Allowed

Balbir Singh v. the Financial Commissioner Haryana and Others

Punjab & Haryana HC19 Jan 2012CWP/10518/2009

Case brief

AI extract

What is this about?

Petitioner challenged orders adjourning his surplus land case sine die pending unrelated civil suits between allottees. Court held proceedings defective as they occurred in absence of rightful owner. Petitioner entitled to hearing. Writ allowed.

What did the court decide?

Impugned orders of District Collector and Financial Commissioner set aside; case remitted to District Collector for fresh proceedings with adequate hearing.

Balbir Singh Vs the Financial Commissioner Haryana… — Land Acquisition | Punjab & Haryana HC (2012)

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CWP No.10518 of 2009

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No.10518 of 2009 Date of Decision: January 19, 2012

Balbir Singh

…..Petitioner

Versus

The Financial Commissioner, Haryana and others

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….Respondents

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CORAM: HON’BLE MR. JUSTICE PARAMJEET SINGH

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Present: Mr. Avnish Mittal, Advocate for the petitioner.

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Mr. Sandeep S. Mann, Sr. DAG, Haryana for respondents No.1 to 4.

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Mr. Manjit Singh, Advocate for respondents No.5 and 6.

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Paramjeet Singh, J

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The instant writ petition has been filed under Article 226/227 of the Constitution of India by the petitioner for quashing of order dated 23.12.1996 (Annexure P-10) passed by District Collector, Bhiwani and order dated 13.01.2009 (Annexure P-12) passed by Financial Commissioner, Haryana under the provisions of the Punjab Security of Land Tenures Act, 1953 (henceforth to be referred as ‘the Act, 1953) read with Haryana Ceiling on Land Holding Act, 1972 (in short as ‘the Act, 1972).

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Brief facts of the case are that Smt. Patto was the original owner of land measuring 880 bigha 19 biswa situated in Village Naloi, Tehsil Siwani, District Bhiwani. Smt. Patto died in April 1956, leaving behind her daughter namely Har Kaur as legal heir but the mutation of inheritance of Smt. Patto was not sanctioned in favour of Har Kaur. It was got sanctioned

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CWP No.10518 of 2009

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by Smt. Shingari daughter of Kesar, in her favour. After some time Smt. Dharmo (daughter of Har Kaur) mother of the present petitioner –Balbir Singh came to know about the wrong entry of the mutation, she filed a civil suit for declaration and possession against Smt. Shingari, which was dismissed. The appeal filed by Smt. Dharmo has also been dismissed by the District Judge. Meanwhile, Smt. Dharmo died leaving behind Sh. Balbir Singh-present petitioner as her legal heir. Balbir Singh being legal heir of Smt. Dharmo, approached this Court by way of filing RSA No.1126 of 1958, which was allowed by learned Single Judge on 03.02.1967 (Annexure P-1). Against the order of learned Single Judge, Smt. Shingari preferred LPA, which was dismissed on 09.12.1970. As a result of which the suit filed by mother (Smt. Dharmo) of the petitioner has been decreed. The petitionerBalbir Singh has been declared as owner in possession of the property and possession of the property was delivered to petitioner on 24.04.1971 and mutation has also been sanctioned in the name of the petitioner.

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It would be appropriate to mention here that on 11.07.1958, Smt. Shingari had sold some land to Munshi and Begraj and mutation was sanctioned on that basis on 24.09.1959. In fact that land should have been reverted back to petitioner-Balbir Singh and Shingari was not having any right or title to sell the same. During the pendency of civil suit, in the year 1960 proceedings under the Act, 1953 for deciding the land as surplus were initiated qua the property of Har Kaur wrongly mutated in the name of Shingari and a part of land was declared surplus on 16.09.1960. But Smt. Shingari had already sold another part of the land prior to 16.09.1960 when the property was still in the name of Shingari. All the surplus land case proceedings and sale effected by Shingari had been conducted during the

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pendency of the suit in civil Courts. Thereafter, the Haryana Ceiling on Land Holding Act, 1972 came into existence and all the proceedings were taken up under the provisions of said Act and possession was delivered to the allottees Surja Ram son of Mani Ram vide Rapat No.291 dated 10.06.1974.

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On 15.08.1976, petitioner-Balbir Singh filled Form ‘E’ under the Haryana Ceiling on Land Holding Act, 1973 offering an area measuring 972 kanal 1 marla as surplus. Petitioner moved an application for reservation of 442 kanals 13 marlas of land on 14.2.1977. In fact the concerned Patwari made a report that the permissible area is 431 kanal and on 26.1.1978, the area measuring 90 kanal more declared as surplus by the revenue authority. It is also important to mention here that a part of land which was sold by Smt. Shingari on 11.07.1958 to Munshi and Beghraj was also included as part of the surplus land and that was not excluded which was challenged by Munshi and Begraj on the ground that when they had purchased the land, the Act 1972 was not into existence. In the meantime a regular civil suit came up to this Court as RSA No.2080 of 1995, which is stated to be pending in this Court. Petitioner is not a party in that case.

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Petitioner submitted another application (Annexure P-9) to the Collector for permission of selection of surplus land under the Act, 1953 and for deciding the case of surplus area afresh. The said application was adjourned sine die by the Collector vide order dated 23.12.1996 (Annexure P-10). The appeal preferred by the petitioner against that order has been accepted by the Divisional Commissioner, Hisar vide order dated 17.7.1997 directing the authorities to re-open the surplus area case and decide it afresh after hearing the original owner of the land. However, the said order of Divisional Commissioner was challenged by Suber Singh and Manphool

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Singh- respondent No.5 and 6 allottees by way of revision before the Financial Commissioner and the same has been allowed by the Financial Commissioner vide its order dated 13.01.2009 stating therein that the decision will be subject to final outcome in RSA No.2080 of 1995, pending adjudication before this Court. Hence, the present writ petition by Balbir Singh.

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I have heard learned counsel for the parties and perused the orders placed on record.

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Admittedly, Smt. Patto was the original owner of land measuring 880 bigha 19 biswas situated in village Naloi. Smt. Patto died in April 1956 leaving behind her daughter namely Har Kaur as only legal heir. However the mutation of inheritance of Smt. Patto was wrongly sanctioned in the name of Smt. Shingari. The same was challenged in the civil courts by daughter of Har Kaur namely Dharmo (mother of the present petitioner) which ultimately reached up to this Court and learned Single Judge allowed the RSA filed by petitioner vide judgment and decree dated 03.02.1967 (Annexure P-1) which has been affirmed in LPA order dated 9.12.1970. In view of judgment and decree passed by this Court, the petitioner has been held to be owner of the land in question and possession has been delivered to the petitioner on 24.4.1971. The effect of decision in LPA is that the petitioner and his predecessor will be deemed to be owner of property in dispute from the date of death of Smt. Patto. Petitioner is the rightful owner who could have defended the surplus proceeding which were defended by Smt. Shingari and has resulted into loss of land. As and when the petitioner came into possession, he moved an application before the competent authority along with form ‘E’ on 15.8.1976 offering an area measuring 972 kanal 01 marla

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land of Category ‘C’ as surplus and also moved an application on 14.02.1977 for reservation of the area as per his entitlement under Section 9 of the Act, 1972. It is important to note that the surplus area was declared in the absence of the rightful owner i.e. Har Kaur thereafter her daughter Dharmo and then present petitioner-Balbir Singh. The rights of ownership and possession for the first time vested with the petitioner after the decision in LPA (Annexure P-2). The entire surplus proceedings had been conducted in the absence of rightful owner, which are not sustainable in the eyes of law. Petitioner has every right to be heard being the rightful owner, as such the entire proceedings are required to be started de novo. . The petitioner has every right to defend his case, according to his entitlement. The proceedings defended by Shingari will not amount affording an opportunity to the petitioner. So, I hold that petitioner’s surplus case is required to be reopened and decided after hearing the petitioner in accordance with law.

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Another fact of which the revenue authorities have lost sight is that petitioner had moved application twice that his case should be re-opened. The Commissioner allowed to re-open the case of the petitioner vide order dated 17.07.1997 by directing the revenue authority to reopen the surplus area case and decide it afresh after hearing the rightful owners of the land, meaning thereby that earlier surplus proceedings had been defended by illegal owner, not by rightful owner i.e. petitioner. It is settled law that succession never remains in abeyance. The rights of ownership for the first time had crystallized in favour of petitioner-Balbir Singh vide order dated 9.12.1970 (Annexure P-2) passed in LPA by this Court and possession of land was delivered to the petitioner in view of that order. So petitioner has every right to defend his case. Order dated 17.7.1997 passed by the

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Divisional Commissioner is legal and valid order which has been wrongly set aside by the Financial Commissioner on 13.1.2009, affirming the illegal order of District Collector, adjourning the case sine die on the ground of pendency of RSA No.2080 of 1995 with regard to same property between the allottees. It is important to mention here that after the declaration of the surplus area, the surplus land was taken from the petitioner and delivered to Surja Ram son of Mahi Ram on 10.6.1974 being the allottee of the surplus area. RSA No.695 of 1995 titled as Suber Singh Vs. Munshi and others has been admitted on 29.03.1995 (Annexure P-7) and RSA No.2080 of 1995 titled as Haryana State and another Vs. Munshi and others has been admitted on 21.11.1996, ordered to be heard along with RSA No.695 of 1995 (Annexure P-8). However, in Civil Misc. No.3544 of 1995 filed in RSA No.2080 of 1995, the operation of decree passed by the appellate Court has been stayed on 21.12.1995 (Annexure P8). The District Collector, Bhiwani on the basis of orders passed in RSA No.2080 of 1995, adjourned the application for permission of selection of surplus area sine die . Now it is to be seen what is the effect of these RSAs on the rights of the petitioner. In these RSAs petitioner is not a party, neither at this stage nor at the time of filing of the suit. As such, the judgment and decree rendered by the civil Courts as well as interim orders passed in RSA No.695/1995 and RSA No.2080 of 1995 do not effect the rights of the petitioner. It is a well settled principle of law that when a judgment and decree is passed does not operate against the rights of the third party who is not a party in those proceedings. I am of the considered opinion that merely on the ground that appellate court’s decree has been stayed on an application filed in RSA No.2080 of 1995, the proceedings before the Collector cannot be adjourned sine die , particularly

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when the interim order cannot operative against the petitioner as he is not party in the RSAs. It is important to note that RSA No.2080 of 1995 has been filed by the State of Haryana in which stay order has been granted. Apparently the entire proceedings qua the surplus area were initiated against the wrongful owner, which cannot be treated as an opportunity to defend given to the petitioner. It is the basic principle of natural justice that no one can be condemned unheard and the earlier proceeding in the present case were defended by a wrongful owner. The entire proceedings of declaring surplus area are held to be null and void and impugned orders deserve to be set aside. As such the case is required to be re-opened and shall be decided afresh in accordance with law.

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In view of above discussion, the writ petition is allowed. I hereby set aside the impugned order dated 23.12.1996 (Annexure P-10) of the District Collector and order dated 13.01.2009 (Annexure P-12) of Financial Commissioner. The District Collector is directed to reopen the surplus case of the petitioner and decide the case afresh in accordance with law after affording adequate opportunities of hearing to the petitioner and the allottees. Since the order declaring the land of the petitioner as surplus is set aside, the allotments made by the State of Haryana during intervening period are also not sustainable in the eyes of law, are also set aside. Case is remitted to the District Collector. Parties are directed to appear before the District Collector on 26.03.2012. The District Collector shall dispose of the matter in accordance with law as early as possible.

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No order as to costs.

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(PARAMJEET SINGH) JUDGE

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19.01.2012

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vcgarg

Balbir Singh v. the Financial Commissioner Haryana and Others

Case brief

What is this about?

What did the court decide?

Balbir Singh v. the Financial Commissioner Haryana and Others

Case brief

What is this about?

What did the court decide?

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