Dismissed

Gurumukh Singh v. State of Haryana

Punjab & Haryana HC3 Dec 2014CWP/16080/1990

Case brief

AI extract

What is this about?

This judgment dismisses a writ petition challenging the declaration of land as surplus under the Haryana Ceiling on Land Holdings Act. The Court rejected the petitioner's claims regarding a late-produced Will and a post-1971 Civil Court decree, affirming that no notice was required as the petitioner was not in the revenue records.

What did the court decide?

The writ petition was dismissed with no costs.

Gurumukh Singh Vs State of Haryana — Land Acquisition | Punjab & Haryana HC (2014)

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CWP No.16080 of 1990 (O&M)

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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH

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CWP No.16080 of 1990 (O&M) Date of decision:03/12/2014

Gurmukh Singh

…Petitioner

Versus

State of Haryana and others

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… Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK SIBAL

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Present: Mr. Amarjit Markan, Advocate for the petitioner.

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Mr. Pritam Saini, Add. A.G. Haryana.

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Mr. H.N. Mehtani, Advocate for respondent No.7.

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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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DEEPAK SIBAL, J.

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C.M. No.14815 of 2014

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The present application is for placing on record documents Annexures P-6 to P-8.

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The application is allowed and documents Annexures P-6 to P- 8 are permitted to be taken on record subject to all just exceptions.

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Main case

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Jagjit Kaur-respondent No.6 was a big land owner. Vide order dated 13.8.1981, the Prescribed Authority, Fatehabad, after providing hearing to the above said Jagjit Kaur declared 350 kanals 16 marlas of “C” category land of hers to be surplus. This land was declared surplus under the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as “the 1972 Act”)

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Interestingly Jagjit Kaur who suffered the order regarding

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declaration of surplus land did not challenge the same. However, the RAJEEV THAKRAL 2014.12.08 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CWP No.16080 of 1990 (O&M)

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petitioner, who is the brother of Jagjit Kaur, filed an appeal against the above referred order before the Additional Collector (exercising powers of the Collector) Hissar. The challenge to the order by the prescribed authority was made by the petitioner on the ground that it is he who had become owner of the land in question through Will of his father namely Chanda Singh. The alleged Will was also produced alongwith his appeal. The petitioner further relied upon a decree of the Civil Court dated 18.4.1977 to say that as per that decree he had become the owner of the property in question and therefore, on the above two grounds and for the reason that the petitioner was issued no notice by the Prescribed Authority, according to the petitioner, the order of the prescribed authority declaring the land in question to be surplus was liable to be set aside and the matter was required to be decided afresh.

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As against this, Naib Tehsildar Surplus Area appeared before the appellate authority and stated that the alleged Will dated 28.5.1956, does not find any mention in the revenue record as no mutation on the basis thereof had been entered into. It was, thus, submitted that as the alleged Will has surfaced only after the coming into force of the 1972 Act, it has apparently been manufactured only for the purpose of saving the land in question from being declared as surplus. The Naib Tehsildar further submitted that the alleged will related to the time of the erstwhile owner Gurdev Singh and this also had not been reflected in the revenue record. So far as the Civil Court decree is concerned, it was submitted that the same was between the petitioner and his sister. The decree was on the basis of a suit preferred by a brother against his sister and like the Will, the suit had also been preferred after the coming into force of the 1972 Act i.e. on

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RAJEEV THAKRAL 2014.12.08 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CWP No.16080 of 1990 (O&M)

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29.12.1973. It was further submitted that the suit had been decreed on the basis of consent and was, thus, apparently collusive and therefore for all the above reasons the decree was liable to be ignored. It was still further submitted that the decree being after the appointed date i.e. 24.1.1971 was liable to be ignored on this count also.

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After considering the entire gamut of facts, the Additional Commissioner vide order dated 29.1.1992 dismissed the appeal filed by the petitioner.

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Aggrieved by the order dated 29.1.1982 passed by the Additional Collector, Hissar, the petitioner challenged the same before the Commissioner, Hisar Division Hissar who after considering the entire matter in detail, vide order dated 16.4.1984 dismissed the revision filed by the petitioner. Still aggrieved, the petitioner filed a revision petition before the Financial Commissioner, Haryana. The Financial Commissioner considered the entire matter in great detail and vide a speaking and well reasoned order dismissed the revision petition filed by the petitioner. A few paragraphs of the order dismissing the order passed by the Financial Commissioner which are relevant in the present case are reproduced below:

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“As regards the date of death of Shri Chanda Singh, no evidence has been led before the Prescribed Authority. Civil Court decree also makes a general assertion that Chanda Singh died in 1957. Date of death was not a precise issue for determination in Civil court. It is of importance here. Evidence could have been easily led to show the death of Shri Chanda Singh. This could be proved easily by producing the copy of mutation entered for succession of Shri Chanda Singh of his death. Thus, there is nothing to show in reliable terms that Shri Chand Singh died before the 30^th July, 1998.

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Second question is of the existence of Will. A perusal of the so called diary will show that Shri Chand Singh was a well educated person and owner of considerable property. It is difficult to

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RAJEEV THAKRAL 2014.12.08 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CWP No.16080 of 1990 (O&M)

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understand as to why did he write two small pages in his diary which were mainly concerned with ordinary items of income and expenditure to declare his will. He was a type of person, who was in all probability, aware of the implications of the will and, therefore, could be depended upon to execute it in proper form with proper witnesses, registration and, most important of all given proper custody of the document. Handwriting is firm handwriting, clear and legible and shows a person healthy and in full control of his faculties. Such a person, willing most of his property, should have made sure that the will was in proper custody and disclose to the concerned persons at the time of his death. This so called will is also attested by two persons. Why did they not disclose the fact of the existence of the will to the successors during all this period? No reliable explanation is coming for that. A perusal of the diary also shows that it contains some accounts till the date of 2^nd January, 1956, at page 22. Thereafter it goes blank till page 126 when it records the so called will. Thereafter again it is blank till page 195 corresponding to the diary date of 26^th December, 1956, where again it contains some minor accounts for the remaining period. Firstly, no clear proof is coming that this is the diary of Shri Chanda Singh. Secondly, the diary is written not by entering the transaction on the page of the diary marked for the date on which the transaction took place but it is continuous diary. The last regular entry on page 22 corresponding to the diary date of 2^nd February, 1956 is supposed to be the entry on 216.8.1957. This is the entry of 'Hibbanama' (gift deed) in favour of Smt. Jagjit Kaur and is made by someone signing himself as Gurmukh Singh may be the petitioner himself. This is also the handwriting which resembles closely to handwriting of alleged testator Chanda Singh. It is thus observed that the so-called will is not on the pages in continuance of the earlier pages without reference to the diary date. It is specifically under that date in the diary on which it is alleged to be executed. This has left many pages blank before and after t he will and, the entry is not in ordinary course of business. These circumstances coupled with the very late recovery of the Will i.e. 17^th years after the death but immediately after the coming into force of Haryana Ceiling on Land Holdings Act make me believe that the so called will is not a genuine will and has been merely made up to show a

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RAJEEV THAKRAL 2014.12.08 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CWP No.16080 of 1990 (O&M)

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transfer before July, 1958, to reduce the State's claim on surplus area.

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7. What is the effect of civil decree? As mentioned by their Lordships in Smt. Jaswant Kaur and another versus The State of Haryana and another 1977, PLJ Page 230, a decree obtained after the promulgation of the Act and having the effect of reducing the surplus area will have to be ignored under Section 12(4) of Haryana Ceiling on Land Holdings Act. The revenue officers would not even go into the question of its being collusive or not because that would amount to comment on the quality of civil judgment. The decree could just be ignored. Proof has to be led before the revenue officers deciding the surplus area irrespective of the existence of the decree. In State of Punjab (now Haryana) and others Versus Amar Singh and another 1974, PLJ Page 74, Supreme Court also held that such a decree is not binding on the State as State is not a party to it, since it has the effect of depriving the State of its right to use the surplus area. Therefore, this judgment is of no consequence in these proceedings. I have already discussed the evidence led before the revenue officers to establish the will.

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8. Thus it is not proved that there was any transfer of land before July, 1958, which could legitimately reduce the holding of the landowner for purposes of Section 8(1) of Haryana Ceiling on Land Holdings Act. The existence of the Will is not proved. The date of death of landowner being before July, 1958 is also not proved.

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9. Counsel for the State has raised a point that disposition by will is not transfer by inheritance. Inheritance implies absence of volition while will is a voluntary act and not the act of God pure and simple. This is correct. This distinction has been pointed out in R.O.R. No.29 of 1983-84, Fatta etc. Versus State of Harayna etc.

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10. The next question relates to notice. On the date Haryana Ceiling on Land Holdings Act came into force and Smt. Jagjit Kaur was identified as big landowner, the present petitioner was neither owner nor tenant nor a transferee. Therefore, he was not entitled to notice. In 1973 when he became aware of the alleged will and claimed inheritance of his father depriving his sister, he should have been aware that Smt. Jagjit Kaur was a big landowner as per record existed at that time and he should have been cautious to join the contest relating to surplus area. There was no reason whatsoever for

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RAJEEV THAKRAL 2014.12.08 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CWP No.16080 of 1990 (O&M)

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the Prescribed Authority to know of his claim and to issue notice to him. His sister Smt. Jagjit Kaur, after obtaining the decree of the civil court, contested the case on the issue of will but never sought to implead the present petitioner. I have mentioned earlier that the alleged will never existed. Therefore, there is no question of any notice to the present petitioner. It was for the present petitioner himself to go to the Prescribed Authority as soon as he became aware of his rights in the land to claim a contest if he was serious about his rights. It was for him to establish the genuineness of the will before the revenue officers. If the will does not exist or is unacceptable there is no right with the petitioner to be heard. The right comes into existence if there was a will or if the petitioner claimed the existence of the Will before the revenue officers. In the circumstances, no right of the petitioner is violated. There was no right of notice on principles of natural justice. There was no obligation the part of the prescribed Authority to issue notice as he appeared nowhere in the revenue records. The other brother, Bhagar Singh, has not appeared in these proceedings even if he was a respondent. It will be perversity of justice if he now appears and claim de-novo proceedings all through. In this fashion, there will be no end to the surplus proceedings. General principles has to be that notice can be given only to either those who appear as claimants in revenue records or are sought to be impleaded by any of the parties appearing as such in revenue records. Others have to come themselves to join the proceedings.”

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The above referred orders are challenged by the petitioner through the present writ.

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I have heard learned counsel for the parties and have gone through the record of the case.

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In addition to reiteration of the pleas raised on behalf of the petitioner before the authorities, the orders of whom are challenged in the present petition, learned counsel for the petitioner relied upon a death certificate of Chanda Singh prepared and issued on 3.12.1990. Through this RAJEEV THAKRALcertificate, it was sought to be projected that Chanda Singh had died on 2014.12.08 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CWP No.16080 of 1990 (O&M)

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17.11.1957 and before that he had executed a Will dated 28.5.1956 in favour of the petitioner and respondent No.7. This being so, it was prayed that the entire proceedings of declaration of the land in question to be surplus were liable to be set aside and he determined after hearing the petitioner and respondent No.7. Learned counsel for the petitioner further relied upon the civil court decree dated 18.4.1977 to project that through that decree the petitioner had been declared to be owner of the land in question and since he had not been heard by the prescribed authority before declaring the land in question to be surplus, on this ground alone, the entire proceedings were liable to be set aside.

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Per contra, learned State counsel argued that all the authorities had concurrently returned findings against the petitioner. He further submitted that the death certificate is apparently a procured document as the same was admittedly prepared and issued on 3.12.1990 and the same was never produced before any authority below. It was further submitted that so far as the civil court decree is concerned, the same is apparently a collusive decree between a brother and a sister. In any case, the decree is of a date after the appointed date i.e. 24.1.1971 and is thus liable to be ignored. It was further submitted that irrespective of the above since the State was not a party to the civil suit, the decree would not bind the State.

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After considering the submissions made by both the parties and perusal of the record, in my opinion, the present petition deserves to fail. It is not disputed before me that the alleged Will dated 28.8.1956 allegedly executed by Chanda Singh never saw the light of day till about two decades after its alleged execution. It is the petitioner's own case that after 17 years of the execution of the alleged Will, he found the same lying in a box of his

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RAJEEV THAKRAL 2014.12.08 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CWP No.16080 of 1990 (O&M)

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father. Further, no mutation having been entered into on the basis of the so called Will, at least till the time when the land in question had been declared to be surplus, clearly shows that the Will having surfaced after the coming into force of the 1972 Act was manufactured only to save the land in question from being declared surplus. Had the Will been in existence, there was no reason so as to why mutation would not have been entered into as per the Will. It is the admitted case between the parties that at the time when the land was declared surplus, Jagjit Kaur was the only person who was shown to be the owner of the land in question. Still further, the alleged will is said to be in the diary of Chanda Singh. There is nothing on record to show that in fact the diary belongs to Chanda Singh. The Financial Commissioner has rightly held that the diary was written not by entering the transaction on the page of the diary marked for the date on which the transaction took place but was a continuous diary. The Financial Commissioner has further rightly held that the last regular entry on page 22 corresponding to the diary date of 2.2.1956 is supposed to be the entry of 26.8.1957. This is the entry of the gift deed in favour of Jagjit Kaur and is made by someone signing himself as Gurmukh Singh. It was further found that the hand writing in the gift deed was closely resembling the hand writing of the alleged testator Chanda Singh. Many pages were found to be blank before the alleged Will. Due to the above circumstances coupled with the late recovery of the alleged Will i.e. 17 years after the death of Chanda Singh but immediately after coming into force of the 1972 Act, I discard the Will and reject all submissions made on the basis thereof.

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So far as the civil court decree is concerned, the same is liable to be ignored as it is apparently collusive. The decree which is of the year

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RAJEEV THAKRAL 2014.12.08 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CWP No.16080 of 1990 (O&M)

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1977 on the basis of a suit filed after coming into force of the 1972 Act is another example to show the desperate attempt made by the petitioner to save the land from being declared as surplus.

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Even the date of death of Chanda Singh is not coming forward from the record. The death certificate sought to be relied upon by the petitioner in the present writ was not there before any of the authorities below. After the decision of the Financial Commissioner, the same was apparently procured. This certificate can be considered only as another piece of evidence manufactured by the petitioner attempting to save the land in question being declared as surplus. Even in the civil suit filed by the petitioner, no exact date of death of Chanda Singh has been mentioned.

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So far as the issue raised by the petitioner that no notice was issued to him before declaring the land in question to be surplus is concerned, as per the available record, before and at the time of passing of the order declaring the land to be surplus, it was only Jagjit Kaur who was identified as the big land owner. That being so, there was no reason in law whatsoever for the prescribed authority to issue notice to the petitioner. Jagjit Kaur appeared before the prescribed authority to contest the matter but never sought to implead the petitioner. Even otherwise, it is incomprehensible that the petitioner did not know about these proceedings when his sister was admittedly appearing and putting forward her claim before the prescribed authority.

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In view of the above, I find no reason in fact or in law to interfere with the concurrent findings of all the authorities, the orders of whom are challenged in the present writ, in exercise of jurisdiction under Article 226 of Constitution of India.

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RAJEEV THAKRAL 2014.12.08 14:07 I attest to the accuracy and authenticity of this document High Court Chandigarh

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CWP No.16080 of 1990 (O&M)

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Resultantly, the present writ petition being bereft of any merit

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is ordered to be dismissed.

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No costs.