Dhaloo Ram vs State of Haryana

N.C. Jain, J.

To appreciate the questions of law involved in these two writ petitions, it is necessary to notice the facts in detail.

Dhaloo Ram, petitioner, in Civil Writ Petition No. 2983 of 1979 is the landowner, whereas, Dewan Chand, petitioner, in Civil Writ Petition No. 4636 of 1980 is the tenant. He is related to petitioner Dhaloo Ram being his grandson. On the enforcement of the Punjab Security of Land Tenures Act, 1953 (hereinafter called `the Act'') an area measuring 82.49 standard acres was being held by Dhaloo Ram petitioner as an owner. On 13.10.1953 Dhaloo Ram petitioner made reservation which, of course, was not accepted and instead of giving 50 standard acres, petitioner Dhaloo Ram being the displaced person, only 100 ordinary acres was given to him vide order Annexure P. 2 dated 15.9.1961. An appeal was preferred against order Annexure P.2 and the case was remanded by the Commissioner vide his order dated 12.9.1962. After the remand, the Collector vide order Annexure P.3 dated 7.10.1963 again held that the landowner was entitled to 100 ordinary acres as declared and area of 77.04 ordinary acres as surplus. However, in this order Annexure P.3, the petitioner landowner was given the benefits of tenants'' permissible area. Aggrieved against the order Annexure P.3, the petitioner landowner Dhaloo Ram filed an appeal which was accepted by the Additional Commissioner, on 2.3.1964 vide Annexure P.4 to the extent that the petitioner landowner was given the benefit of that area which was cancelled. The petitioner landowner feeling aggrieved against the order dated 2.3.1964 filed a revision petition before the Financial Commissioner which was dismissed on 23.1.1965 vide Annexure P.5. While dismissing the revision petition, the Financial Commissioner, Planning Punjab, by virtue of this order gave Dhaloo Ram petitioner an opportunity of selection. However the right of selection was made subject to protecting the rights of bona fide transverse. Dhaloo Ram petitioner feeling aggrieved against the order of the Financial Commissioner preferred Civil Writ Petition No. 686 of 1965 which was allowed by this Court in view of the dictum of law laid down in Khan Chand v. State of Punjab, 1966 PLR 543. It was held by this Court vide Annexure P.6 that the petitioner was entitled to 50 standing acres of land.

At this stage, a few facts concerning the tenant may be noticed. One Wazir Chand was a tenant on a part of the land of Dhaloo Ram. He left his tenancy rights and gave the same to Dewan Chand. Not only that Dewan Chand by filing an application invited an order under Section 18 of the Act in his favour for purchasing an area measuring 110 Kanals 17 Marlas of land. This order was passed on 19.2.1968 by the Assistant Collector and is attached along with the petition as Annexue P.7. Thereafter the Collector vide this order dated 26.8.1969 Annexure P.8 held that petitioner Dhaloo Ram had no surplus area because he had only 46.22 standard acres of land left with him after he was given the benefit of tenants permissible area and after Dewan Chand the socalled tenant was allowed to purchase the cultivating benefits of the cancelled area.

As regards Dhaloo Ram and Dewan Chand were concerned they would naturally feel satisfied with the order Annexure P.8 and in this situation the chapter would have stood closed but the Assistant Collector Ist Grade acquired the Knowledge that Dewan Chand was not only a tenant but also the grandson of Dhaloo Ram and, therefore, he cannot be treated as a tenant. According to the Assistant Collector Ist Grade, Fatehabad, the cultivation of a son or a grandson was to be treated as the selfcultivation of the landowner and, therefore, he vide Annexure P.9 requested the Collector that he may be allowed to review the purchase order dated 19.2.1968 that is Annexure P.7. On the basis of the letter Annexure P. 9 the review was allowed by the Collector, Hissar, on 5.11.1969. This order also finds mention in Annexure P. 9 itself.

After getting the permission to review, the Assistant Collector Ist Grade, vide order dated 5.2.1970 (not annexed with the petition) cancelled the area which was purchased by Dewan Chand. Against the order dated 5.2.1970 an appeal was preferred by Dewan Chand before the Collector which has been dismissed vide Annexure P. 10. His further appeal and revision for allowing him to purchase have been declined by the Commissioner and the Financial Commissioner vide orders Annexure P. 12 dated 6.4.1977 and Annexure P. 13 dated 12.7.1979 respectively.

As regards Dhaloo Ram petitioners is concerned, his case relating to surplus area was suo motu reviewed by the Collector on 3.8.1970 vide Annexure P. 11 according to which area measuring 110 Kanals 17 Marks which was to be purchased by Dewan Chand, the socalled tenant, and the grandson of Dhaloo Ram petitioner, was declared as surplus. Against this order petitioner Dhaloo Ram went up in appeal before the Commissioner which was dismissed vide Annexure P. 12 on 6.4.1972. Dhaloo Ram''s revision petition was also dismissed vide Annexure P.13 on 12.7.1979. Under these circumstances Dhaloo Ram landowner and Dewan Chand petitioner have come up in two separate writ petitions as has been mentioned in the opening part of the judgment. It is under these circumstances that both the writ petitions are being disposed of by this judgment.

Mr. R.C. Setia, learned counsel for the petitioners in both the writ petitions has vehemently argued that the review has been wrongly allowed by there Collector as regard the case of purchase by Dewan Chand is concerned vide Annexure P. 9. He has further argued that no review could be allowed in the absence of the petitioner Dewan Chand which has been done vide Annexure P.9. Yet another contention which has been raised by him is that in any case petitioner Dhaloo Ram was entitled to retain 50 standard acres of land as this much area was allowed to him by this Court in Civil Writ Petition No. 686 of 1965 vide Annexure P. 6 and the resultant effect of the passing of the impugned order is that petitioner Dhaloo Ram has been left with 46.22 standard acres of land only.

After hearing the learned counsel for the parties at great length, I am of the view that there is force in the contentions advanced by the learned counsel of the petitioners. It has been held by this Court in Hawa Singh and other v. State of Haryana and others, 1980 PLJ 577 that all the affected parties must be heard before permission for review is granted. In view thereof, Annexure P. 9 and Annexure P.11 have to be quashed. The resultant effect of the setting aside of orders Annexure P. 9 and Annexure P. 11 would be that the orders Annexure P. 12 and Annexure P. 13 must also fall and this being the factual and legal position the case has to be remanded to the Collector for a fresh decision.

Before parting with the judgment it is necessary to highlight some facts which stare us. It appears that Dewan Chand, the grandson of petitioner Dhaloo Ram could not apparently be allowed to purchase 110 Kanals 17 Marlas of land and that this land was rightly held to be selfcultivated area of the landowner and, therefore, there was nothing wrong in the view of the Assistant Collector to have thought of seeking the review of the entire matter. The only lapse on the part of the collector was that before reviewing he did not hear the affected parties. In view thereof, the Collector is directed to hear the affected parties. before allowing or before passing any order affecting the interests of the parties. A word of caution is also needed from this Court that the Collector must deal with the matter carefully lest Dhaloo Ram landowner and Dewan Chand, the socalled tenant, who is noneelse but the grandson of Dhaloo Ram landowner may not out manoeuvre and swallow the area which ultimately may be found to be surplus.

It needs to be stated that whatever may be the ultimate orders of the revenue authorities the petitioner Dhaloo Ram land owner''s right to 50 standard acres of the area be safeguarded.

The petitions are consequently allowed and the case is remanded to the Collector (Agrarian) Fatehabad who may proceed in accordance with law and in the light of the observation made above.

The parties through their counsel are directed to appear before the Collector (Agrarian) on December 19, 1988. However, if the parties for some reason or the other do not appear on that date their presence may be secured by issuing notices. It is further directed that the case must be decided within six months.