Chandgi vs Financial Commissioner, Haryana

I.S. Tiwana, J.(Oral)

These thirteen Civil Writ Petitions Nos. 5288 of 1982 and 590 to 601 of 1983, are by the same landowners whose land has been allotted to thirteen different persons (impleaded as respondent No. 4 in each petition) on the assumption that their allotted lands had been declared as surplus by the Collector under the Punjab Security of Land Tenures Act, 1953 in the year 1959. According to the petitioners, this order of the Collector had been set aside vide order dated November 5, 1964, of the Financial Commissioner, Revenue, Punjab (Annexure P6). The operative part of this order reads as under :

``I have personal knowledge of such areas in Rohtak District. The plight of landowners, with practically no land to cultivate, defies description as there is no point in declaring surplus area when lands are under water and when neither the permissible area nor the surplus area is available for cultivation. The other complication is that consolidation has taken place after the lands had been declared surplus and the owners have the right to select their permissible areas afresh. I want the Collector to have these cases reexamined with reference to the following points :

(1) Were the lands of the petitioners, either in whole or in part, under flood water when the orders in question were passed?

(2) How much of the petitioners'' lands continue to be under water?

(3) What are the chances of the water being drained off in the near future?

(4) When was consolidation effected?

(5) Do the petitioners want, because of flooding and consolidation, to select their permissible areas afresh? If so, should they not on human considerations be permitted to select afresh their permissible areas. It may be noted that wherever surplus areas were declared before consolidation and possession of surplus area has not been taken, the landowners affected have the right to select afresh their permissible area.

The cases are now sent to the Collector for disposal in the light of the above observations. In the meantime, the areas declared surplus are not to be taken over.

Announced.

Sd/ A.L. Fletcher

Financial Commissioner, Revenue, Punjab.

Chandigarh, dated the 5th November, 1964/14th Kartika, 1886 Saka.''''

The rest of the facts which deserve to be noticed to dispose of these petitions are that subsequent to the declaration of the area as surplus in the year 1959 and even after the order of the Financial Commissioner, Exhibit P. 6, the surplus area of the petitioners was allotted to the private respondents (No. 4 in each case) in the year 1976 on the assumption that the same stood vested in the State in terms of section 12(3) of the Haryana Ceiling on land Holdings Act, 1972 (hereinafter called the Act). It deserves to be highlighted here that from a bare reading of this provision it is apparent that before any land can automatically vest in the State, there has to be a legal order declaring the said land as surplus. In the absence of such an order, no land obviously can vest in the State authorities. So it is patent that subsequent to the setting aside of the 1959 order of the Collector by the Financial Commissioner vide his order Annexure P. 6, nothing could vest in the State of Haryana in terms of the above noted provision.

These claim of the petitioners further is that as a matter of fact they were never dispossessed from the areas allotted to the private respondents and the proceedings initiated by the revenue staff with regard to the delivery of possession etc. to those allottees were just paper transactions and without any substance. Later these allottees initiated proceedings against the petitioners under section 22 of the Act with the allegations that they had been dispossessed from the areas allotted in their favour and the petitioners were wrongly and unauthorisedly continuing in possession of the surplus area. This prayer of these allottees was accepted by the Collector and while directing the petitioners to deliver the possession of the allotted areas to the private respondents, he also penalised them. This order of the Collector was later even affirmed by the Financial Commissioner vide the impugned order Annexure P4 in each one of these cases.

The short submission now raised by Mr. Hooda, learned counsel for the petitioners is that when the order of the Collector declaring the petitioners'' land as surplus in the year 1959 had been set aside by the Financial Commissioner vide order Annexure P6, neither any land could possibly vest in the State Government in terms of section 12(3) of the Act nor could the same be validly allotted to the private respondents. In the light of that the petitioners could not be directed vide the impugned order Annexure P. 4 to deliver possession of any land to the private respondents nor could they be fined for any supposed dispossession of those respondents.

It deserves to be noticed here that in the return filed by the respondentauthorities it has nowhere been mentioned that the physical possession of the area declared as surplus by the Collector in the year 1959 had at any stage been taken by these authorities. Their precise and specific case is that the area declared as surplus by the Collector in 1959, stood automatically vested in the State Government on January 24, 1971, i.e. the appointed day as envisaged by the Act and thereafter these authorities were well within their right to allot this area to the eligible tenants, i.e. private respondents in these cases.

To say the least, the respondent authorities appear to be talking in the air. As already pointed out, neither it is their case that during the interRegulation m the declaration of the area as surplus in the year 1959 and the date of the order of the Financial Commissioner (November 5, 1964), Annexure P. 6 the respondent authorities or anybody on their behalf including the private respondents had taken physical possession of that land nor have they shown that they could legally take possession of any land of the petitioners subsequent to the passing of the order Annexure P. 6. As a matter of fact the private respondents have not chosen to contest these petitions as they have filed no written statements. In the light of this factual and legal position, the learned counsel for the appellants appears to be wholly right in submitting that the private respondents were never delivered physical possession of any land of the petitioners and all the records prepared by the subordinate revenue staff in this regard appear to be bogus. This is more so in the light of the conclusion recorded by the Financial Commissioner in his order Annexure P. 6 where he says that the alleged surplus land was under water and same could not be available for cultivation.

It is nobody''s case that subsequent to the passing of the order, Annexure P. 6 by the Financial Commissioner, the Collector has dealt with the case of the petitioners in any manner or has declared any area with them as surplus. It is thus patent that all orders of the authorities under the Act culminating in the impugned orders (Annexure P. 4) in all these case) whereby the petitioners have been directed to deliver possession of the land to the private respondents and have even been penalised for the supposed dispossession of those allottees, are wholly unsustainable and have to be set aside.

In the light of the discussion above, I allow these petitions as already indicated with costs which I determine at Rs. 400/ in each case.