Allowed

Hari Singh v. State of Hry. & Ors.

Punjab & Haryana HC11 Feb 2009CWP/4236/1982

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing appellate orders that set aside a correction of clerical error in land ceiling calculation. The court held that the appeal was filed belatedly without condonation of delay and the appellate authorities erred in considering land acquired after the appointed date.

What did the court decide?

Petitioner's writ petition allowed; impugned appellate orders quashed; permission granted for correction of clerical error in original land ceiling determination.

Hari Singh Vs State of Hry. & Ors. — Land Acquisition | Punjab & Haryana HC (2009)

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CIVIL WRIT PETITION NO.4236 OF 1982 :{ 1 }:

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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DATE OF DECISION: FEBRUARY 11, 2009

Hari Singh

.....Petitioner

VERSUS

State of Haryana and others

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....Respondents

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CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

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Whether Reporters of local papers may be allowed to see the judgement?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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PRESENT: Mr. Arun Jain, Sr.Advocate with Mr. Amit Jain, Advocate, for the petitioner.

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Mr. Yashwinder Singh, AAG, Haryana, for the State.

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RANJIT SINGH, J.(ORAL)

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The petitioner seeks quashing of the orders (Annexures P-1, P-3 and P-4) vide which his land has been declared surplus. Prayer is made to restore the order, Annexure P-2 through which the mistake earlier committed was ordered to be corrected.

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The petitioner is owner in possession of the land in village Balsambandh and Mirzapur in Tehsil and District Hisar. On 28.2.1980, the Prescribed Authority under the Haryana Ceiling of Land Holdings Act, 1972 (hereinafter referred to as “the Act”) declared 11-1/2 acres of land belonging to the petitioner as surplus.

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CIVIL WRIT PETITION NO.4236 OF 1982 :{ 2 }:

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While calculating this surplus land, the authorities took into account that the petitioner was holding 796.98 kanals of `C' category land. The petitioner was held entitled to deduct the area of land sold by him vide sale deed, Ex.D2, which was on the basis of an agreement to sell before 24.1.1971 (the appointed date). The Prescribed Authority found that the sale made by the petitioner with respect to 223 Kanals 16 marlas of land was bonafide and so the petitioner was entitled to deduct this area while determining his surplus area. By taking the area sold to be 223 Kanals 16 Marlas, 148.32 kanals land was declared surplus at the hands of the petitioner. Copy of the order in this regard is Annexure P-1.

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The petitioner would plead that the Prescribed Authority fell into error while granting exemption of the land sold out of his total holdings. Though the petitioner was holding 796.98 kanals but it was C' category land. The land sold bonafidely, which was to be excluded was to be taken into consideration after converting the same into C' category land. This, according to the petitioner, was not done. The petitioner, thus, would plead that the area of 223Kanals 16 marlas sold by him on conversion to `C' category would come to be 350.16 kanals. This, as per the petitioner, is a clerical mistake by Prescribed Authority in making calculation about his land declared surplus.

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The petitioner claims to have noticed this clerical mistake and accordingly moved an application before the Prescribed Authority with a prayer that on conversion, the `C' category land of the petitioner comes to 796.98 kanals. The sale, which was held to be bonafide, was of an area of 223 kanals 16 marlas, which should

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CIVIL WRIT PETITION NO.4236 OF 1982 :{ 3 }:

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also have been converted to C' category and if done, it will work out to be 350.16 kanals. If this land bonafidely sold and deducted from the land holding of the petitioner, then only 14.82 kanals C' category land would be left surplus with the petitioner.

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Copy of the application was marked to Naib Tehsildar, who submitted his report in favour of the petitioner. Naib Tehsildar was also of the view that it was a clerical mistake that had crept in due to official error and accordingly the file was put up before the Prescribed Authority for correction. The Prescribed Authority accordingly carried out the correction through its order dated 26.3.1980, which is annexed with the petition as Annexure P-2. Ultimately, 1-1/2 acres land was found surplus with the petitioner.

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Still, Naib Tehsildar filed appeal against this order on behalf of State of Haryana after a lapse of more than one year. As per Section 18 of the Act, an appeal could be filed within 15 days only. Petitioner also raised objection that Naib Tehsildar was not competent to file the appeal, which otherwise was also highly belated. It was also pleaded by the petitioner that no application under Section 5 of the Limitation Act was filed by Naib Tehsildar for seeking condonation of delay. Grievance is that the Collector, without deciding the question of Limitation either way, accepted the appeal on merits.

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The Collector has viewed that the order passed by the Prescribed Authority would amount to review, which, was not maintainable. Order, Annexure P-2, thus, was termed bad in law.

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No reply has been filed by the State. However, written statement was filed on behalf of respondent Nos.5 and 10. Learned

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CIVIL WRIT PETITION NO.4236 OF 1982 :{ 4 }:

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State counsel says that the State will adopt the reply filed by the private respondents. A perusal of the reply would show that there is not much controversy between the parties regarding to the basic facts. There is no dispute that the total land owned by the petitioner was 796.98 kanals of C' category. The land sold by the petitioner was 223 kanals 16 marlas, which, as per the reply also, is equal to 350.16 kanals category C' land. However, it is stated that the petitioner has acquired 85 kanals 16 marlas land equal to 134 kanals 7 marlas in C' category in village Mirzapur after the appointed date. It is accordingly pleaded that the holdings of the petitioner would work out to be 581 kanals 52 marlas permissible area and, thus, would be entitled to 432 kanals C' category land. Thus, the respondents would plead that the petitioner would have 149 kanals 52 marlas of land as surplus. The aspect that there was a clerical mistake is disputed and accordingly it is prayed that no case for interference in the impugned order is made out.

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Learned counsel for the petitioner submits that even the Collector had accepted that the land sold was 223 kanals 16 marlas and on conversion into `C' category, it would work out to be 350.16 kanals. The Collector did not find any fault with the sale of this land, which has again been found to be bonafide. As per the counsel for the petitioner, the Collector has erred in taking into consideration 88 kanals 16 marlas land, purchased by the petitioner and his son much after the appointed date, to count the surplus land of the petitioner. The finding of the Collector that 149 kanals 52 marlas of land was surplus is under challenge. The approach of the Collector is stated to be contrary to the provisions of Section 4(6) of the Act. Counsel

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CIVIL WRIT PETITION NO.4236 OF 1982 :{ 5 }:

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submits that the position is to be seen on the date of such acquisition in terms of Section 4 (6) of the Act and could not have been taken with prior case of surplus. The petitioner has accordingly challenged the order passed by the Collector and that of the Commissioner on his revision petition (Annexures P-3 and P-4 respectively).

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Having regard to the respective pleas, it is to be decided whether the impugned order could be termed as a review as submitted by the respondents or it was a case of correction only. It is also to be seen if the land purchased by the petitioner subsequent to the appointed date is required to be taken into consideration for determining the area surplus at the hands of the petitioner or it may have to be separately considered.

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Mr.Amit Jain, appearing for the petitioner, would refer to Section 19 of the Act, which makes a provision for carrying out correction in clerical errors. This Section provides that clerical or arithmetical mistakes in any order passed by any officer or authority under this Act or errors arising therein from any accident slip or omission may at any time be corrected by such officer or authority either of his own motion or on an application received in this behalf from any of the parties. The submission is that the authority had erred in calculating C' category land, which the petitioner had sold. Since the entire holdings of the land of the petitioner was calculated by converting it into C' category land, the land sold by him was also required to be converted into `C' category land. In fact, there is not much dispute on this aspect either in the reply or otherwise before the Prescribed Authority. Only ground on which the impugned order was interfered by the Collector was that it would amount to review of

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CIVIL WRIT PETITION NO.4236 OF 1982 :{ 6 }:

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the earlier order and as such, could not have been passed by the Prescribed Authority, there being no power of review available with him.

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To see if the impugned order is to correct mistake or not, reference may be made to the provisions of Section 18 of the Act. This Section provides for appeal, review and revision. Though in the application filed by the petitioner, no provision is mentioned but the contents thereof can be noted to seed if it was review or application for correction of mistake. If the petitioner was to seek review, he was bound to mention Section 18 but he had not filed any appeal, review or revision against the impugned order. Though the application is not on record but the prayer made in the application, as averred in Para 3 of the petition, was for correction of a mistake. Such application is maintainable under Section 19 of the Act. The application has to be, thus, taken as a one filed under Section 19 of the Act for correction of clerical or other errors in the proceedings.

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Having regard to the facts as noticed, the impugned order, Annexure P-3, passed by the Collector can not be termed as such, which amounted to review of his earlier order. This is a case where the Prescribed Authority has simply erred in calculating the area, which was sold by the petitioner. Before excluding this area of , the land sold, it was required to be converted to `C' category and only then was to be excluded from the total land owned by the petitioner. This mistake, when pointed out, had been corrected. Accordingly, the impugned orders, Annexures P-3 and P-4, can not construe as review of the earlier orders passed by the Prescribed Authority . The view of the Collector, which is upheld by the

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CIVIL WRIT PETITION NO.4236 OF 1982 :{ 7 }:

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Commissioner in allowing the appeal and revision on the ground that Prescribed Authority had reviewed its earlier order can not be sustained.

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There is also force in the submission made by counsel for the petitioner that the appellate authority was required to consider the effect of delay on the part of the State in filing the appeal. It is not disputed that appeal against the impugned order could be filed within a period of 15 days, as can be seen from Section 18 of the Act. Order, Annexure P-1, is dated 28.2.1980 and it was corrected on 26.3.1980. The appeal against this order was filed on 15.6.1981. Concededly, no application seeking condonation of delay was filed. Whether such appeal could have been entertained when no prayer was made for condonation of delay, is another matter which may have to be considered. Though the Collector would have power to condone the delay but still it was for the State to take appropriate action in filing application in this regard and the appeal could have been competently constituted only after condonation of delay. It can be said that the appeal was not properly constituted.

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It is now to be seen if the Collector while dealing with the appeal could have taken into consideration the land subsequently purchased by the petitioner to determine his surplus area. In this regard, counsel has relied upon contents of Section 4(6) of the Act. Section 4 talks of permissible area in relation to a land owner or tenant or mortgagee with possession and sub-section (6) thereof reads as under:-

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“(6) For evaluating the land of any person at any time under this Act, the land owned by him immediately before

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CIVIL WRIT PETITION NO.4236 OF 1982 :{ 8 }:

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the commencement of this Act as well as the land acquired by him after such commencement by inheritance, bequest or gift from a person to whom he is an heir shall be valuated as if the evaluation was being made on the appointed day and the land acquired by him after the appointed day in any other manner shall be evaluated as if the evaluation was being made on the date of such acquisition.”

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The above noted provision clearly spells out that the land

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owned by any person immediately before the commencement of this Act as well as the land acquired by him after such commencement by inheritance, bequest or gift from a person to whom he is an heir shall be evaluated as if the evaluation was being made on the appointed day and the land acquired by him after the appointed day in any other manner is to be evaluated as if the evaluation was being made on the date of such acquisition. Thus, any land, which is acquired after the appointed date is required to be evaluated for the purpose of surplus from the date of such acquisition. The necessary consequence is that the land which is acquired after the appointed date could not have been clubbed with the land owned by the petitioner on the appointed date to see as to how much land was surplus with the petitioner. By referring to the observations made by the Collector, learned counsel for the petitioner would also submit that this subsequent acquisition was not by the father alone but was acquired by son and father. Accordingly, this could not have been evaluated in the manner as if the entire acquisition was that of the father. This is urged to be another infirmity in the impugned order.

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CIVIL WRIT PETITION NO.4236 OF 1982 :{ 9 }:

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From the detailed discussion above, it can be noticed that the order passed by the Prescribed Authority can not be termed as an order which is passed in review . It was for a correction, which the Prescribed Authority carried out and had the power to do. Accordingly, the view taken by the Appellate as well as the Revisional authorities that the earlier order could not have been reviewed, can not be sustained. The orders, Annexures P-3 and P-4, are, therefore, set-aside. The above order, however, would not bar the State to take any appropriate further proceedings against the petitioner in case there is any surplus land at the hands of the petitioner in view of the subsequent acquisition.

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The petition is allowed in the above terms. There shall be

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no order as to costs.

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February 11, 2009 ( RANJIT SINGH ) khurmi JUDGE

Hari Singh v. State of Hry. & Ors.

Case brief

What is this about?

What did the court decide?

Hari Singh v. State of Hry. & Ors.

Case brief

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