http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil)  1645-1647 of 2001

PETITIONER: Brij Lal (Dead) by Lrs. And Ors. etc. etc.

RESPONDENT: State of Haryana and Ors. etc. etc.

DATE OF JUDGMENT: 13/12/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in these appeals is to the judgment of a  Division Bench of the Punjab and Harayan High Court  dismissing the three writ petitions filed by the appellant while  allowing the Civil Writ Petition No.6395 of 1999 in view of the  fact that Dalip Singh, who was respondent had made a  categorical statement before the Assistant Collector First  Grade on 6th December, 1967 to the effect that the appellant is  a small landholder and he has no objection to his ejectment  from the land and did not want any compensation.           2.      The controversy arises in the background of Section 10- A(b) of the Punjab Security of Land Tenures Act, 1953 (in  short \021the Act\022). Few dates need to be noted for resolving the  controversy.

3.       On 26.7.1961, the Collector Surplus Area, Sirsa  assessed the surplus area of Pat Ram under the Act.  On  24.7.1962 an appeal was filed against the said order before the  Commissioner, Ambala Division. But it was not pressed in  view of the enactment of Punjab Security of Land Tenures  (Amendment and Validation) Act, 1962 (in short \021Amendment  Act\022).  On the appeal by two tenants namely Bishan Singh and  Dalip Singh against the order of the Collector dated 26.7.1961,  the Commissioner, remanded the surplus area case and  directed the Collector to re-decide the issues.  Pat Ram died  subsequently on 7.2.1966. On 15.7.1969, the Special  Collector, Haryana pursuant to the order of remand, initiated  proceedings for deciding surplus area case of Pat Ram afresh.   His order dated 15.7.1969 is of considerable importance and  will be dealt with later.  On 23.12.1972, in fact, while the  proceedings were pending the Haryana Ceiling on Land  Holdings Act, 1972 (in short the \021Haryana Act\022) came into  force.  On 20.7.1977 the Sub-Divisional officer (Civil) cum the  Prescribed Authority, Dabwali decided the surplus area cases  of Sohan Lal, Brij Lal and Hazari Lal under the Haryana Act  and held that the total land in respect of each of them was less  than the permissible limit.  Simlarly the surplus area cases of  Dhonkan Ram, Ami Lal and Shankar Lal were decided under  the Haryana Act and it was held that there was no surplus  area.  On 12.10.1989 Brij Lal and others filed an application  under the Act for ejectment of the Balbir Singh, Bhola Singh,  Jagat Singh and Harpal Singh, sons of Bishan Singh before

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

the Assistant Collector, First Grade, Dabwali on the ground  that the appellants were small land owners and they required  the land for self cultivation. On 28.8.1991 an order of  ejectment was passed.  It was held that Balbir Singh and  others were not entitled for resettlement on any alternative  land as they were already in possession of other land. On  22.1.1992 appeal of the respondents Balbir Singh and others  against the order of ejectment was dismissed by the Collector  Sirsa.  The revision petition filed by the respondents Balbir  Singh and others against the order of the Collector was  dismissed by the Commissioner.  On 8.4.1993 which is a very  crucial date, Balbir Singh and others filed revision petition ,  ROR No. 398 of 1992-93, under Section 18(6) of the Haryana  Act for invoking suo moto powers of the Financial  Commissioner for setting aside the orders dated 20.7.1977  and 9.8.1977 passed by the SDO (Civil) cum Prescribed  Authority, Dabwali regarding the surplus area cases of Sohan  Lal, Brij Lal, Hazari Lal and Dhokan Ram under the Haryana  Act.  On 29.6.1993 Jagat Singh and Harpal Singh, sons of  Bishan Singh and Balbir Singh and Bhola Singh, sons of  Kartar Singh filed another petition under Section 18(6) of the  Haryana Act for invoking suo moto powers of the Financial  Commissioner for setting aside the order dated 15.7.1969 of  the Special Collector, Haryana.  On 12.9.1997 the Financial  Commissioner, Haryana passed an order remanding the cases  to the Collector, Surplus Area, Sirsa being of the view that the  surplus area cases of Pat Ram, notwithstanding his death on  7.2.1966, before the commencement of the Haryana Act, and   of his six sons was to be decided under the Act and thereafter  the rights of the tenants to purchase the land was to be  determined.  A review application was filed which was rejected  by order dated 10.3.1999.  Writ petitions were filed  challenging the orders dated 12.9.1997 and 10.3.1999 of the  Financial Commissioner, Haryana.

4.      On 26.7.1961 certain lands were declared to be surplus  in the hands of the original allottee Pat Ram who died on  7.2.1966 leaving behind six sons.  According to the appellant  on the date of his death, inheritance opened and, therefore, it  was to be further decided that the appellants were small  landholders. It was submitted that there are three stages.   First is the stage when the possession of the surplus land after  declaration of the surplus is taken.  Thereafter, the allotment  can be made, and lastly possession has to be given to the  tenant. There was an order dated 15.7.1969 made by the  Special Collector, Haryana, Hissar Camp in case no.SC 340  holding, inter alia, as follows:      

    \023Today the tenants Bishan Singh and  Dalip Singh are present.  They have disclosed  that Pat Ram has since died leaving behind six  sons named Shankar Lal, Dhonkal Ram,  Hazari Lal, Brij Lal, and Amin Lal. The death  took place two or 2-1/2 years back but after  the decision in appeal, the situation has thus  changed and fresh proceedings against the  heirs of Pat Ram are to be taken except to the  extent the area declared surplus has been  utilized. These proceedings are under the  circumstances filed.  The Collector Agrarian,  Sirsa, may be informed and requested to start  proceedings according to law against the heirs  of the deceased allottee Pat Ram for  determination of their status and surplus area,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

if any with them.\024                  5.      It is further submitted that long after the order was  passed in 1969 i.e. in the year 1992-93 challenge was made to  the orders.  Similarly, in the year 1977 there was a declaration  that the appellants were small landholders. Without availing  statutory remedies appeal and revision after long lapse of time  the non-official respondents could not have moved the forum  for unsettling the settled position.          

6.      In the proceedings orders adverse to the appellants  were  passed. They were challenged before the High Court in Writ  Petitions. All other writ petitions except one writ petition wre  dismissed.         7.      It was submitted that the High Court referred to the  decisions of this Court in State of Maharashtra v.  Annapurnabai and other (AIR 1985 SC 1403) and State of U.P.  v. The Civil Judge, Nainital and Ors. (AIR 1987 SC 16) to  decide against appellants.  It is urged that these decisions  related to Maharashtra and Uttar Pradesh respectively and  there is no provision similar to Section 10-A(b) in the said   State Acts and, therefore, this conceptual distinction has been  lost sight of. In the present cases, possession after allotment  has not been taken and therefore there is no utilization which  is the fundamental requirement.    8.      Learned counsel for the respondent on the other hand  submitted that certain factual aspects have not been  highlighted by the appellants.  It is not a case where allotment  after possession had not been taken and, therefore, there was  full utilization of the land declared as surplus.  A suit was filed  in the year 1961 and an appeal was also preferred which was  subsequently not pressed. Reference is also made to judgment  of learned Additional District Judge, Sirsa, dated August 20,  2001, in which according to him, contains findings recorded  which have great relevance and the appellants are, therefore,  clearly disentitled to raise the plea on the factual aspects  raised presently.       

9.      It is to be noted that as rightly contended by the learned  counsel for the appellant the High Court has not recorded any   finding to the effect whether the Maharashtra and Uttar  Pradesh Statutes have any provision similar to Section 10A(b)  of the Act.  

10.     At this juncture, it would be appropriate to take note of a  decision of this Court in Financial Commissioner, Haryana  State and Ors. v. Smt. Kela Devi and Anr. (1980 (1) SCC 77)  where question as to when it can be said that utilization has  taken place was dealt with.                     \0233.  The only question which therefore arises  for consideration is whether the High Court  was right in taking the view that mere  allotment of land to other tenants under  Section 10-A(a) of the Act did not amount to  utilisation of the "surplus area" when the  resettled tenants had not taken possession  under the allotment orders. 4.      It is not in controversy that it had been  finally decided that the "surplus area" in the  case of Nathi was 6 standard acres and 8  standard units, and a decision to that effect

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

was taken in his life time on November 25,  1959. It is also not in dispute that orders were  made for the allotment of the "surplus area" to  other tenants under Section 10-A(a) of the Act  which reads as follows- 10-A (a) The State Government of any  officer empowered by it in this behalf  shall be competent to utilize any  surplus area for the resettlement of  tenants ejected, or to be ejected, under  Clause (i) of Sub-section (1) of Section  9.  While therefore the section empowers the State  Government or its authorised officer to "utilise"  any "surplus area" for the resettlement of  tenants, the Act does not define what is meant  by an order of utilisation under the section. A  clue to what is actually meant by that  expression, is however to be found in Clause  (b) of Section 10-A which provides as follows, - 10-A (b) Notwithstanding anything  contained in any other law for the time  being in force and save in the case of  land acquired by the State Government  under any law for the time being in  force or by an heir by inheritance no  transfer or other disposition of land  which is comprised in surplus area at  the commencement of this Act, shall  affect the utilization thereof in Clause  (a).  The clause therefore has the effect of saving  the land comprised in the surplus area", if it  has been acquired by an heir by inheritance.  So (sic)an heir succeeds by inheritance, as in  this case, that basic fact (sic) affect the  utilisation of the surplus area even if only an  order (sic)been made under Clause (a) of  Section 10-A for its utilisation for  (sic)settlement of other tenants but that order  has not been (sic). 5. In order to understand the full meaning and  effect to the provisions of Section 10-A, it is  necessary to make a cross-reference to Rules  18, 20-A, 20-B and 20-C of the Punjab  Security of Land Tenures Rules, 1956  (hereafter referred to as the Rules). Rule 18  deals with the procedure for allotment of  "surplus area" to other resettled tenants. Rule  20-A provides for the issue of certificates of  allotment of lands to them, and Rule 20-B  provides for delivery of possession and makes  it obligatory for the resettled tenant to take  possession of the land allotted to him within a  period of two months or such extended period  as may be allowed by the officer concerned.  Rule 20-C provides, inter alia, for the  execution of a "qabuliyat" or "patta" by a  resettled tenant. It would thus appear that  while allotment of land is an initial stage in the  process of utilisation of the "surplus area", it  does not complete that process as it is  necessary for the allottee to obtain a certificate  of allotment, take possession of the land within  the period specified for the purpose, and to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

execute a "qabuliyat" or "patta’’ in respect  thereof. The process of utilisation  contemplated by Section 10-A of the Act is  therefore complete, in respect of any "surplus  area", only when possession thereof has been  taken by the allottee or the allottees and the  other formalities have been completed, and  there is no force in the argument that a mere  order of allotment has the effect, of completing  that process. 6. Reference in this connection may also be  made to Rule 20-D of the Rules which provides  that in case a tenant does not take possession  of the "surplus area" allotted to him for  resettlement within the period specified  therefore, the allotment shall be liable to be  cancelled and the area allotted to him may be  utilised for the resettlement of another tenant.  It cannot therefore be dobted that a completed  title does not pass to the allottee on a mere  order of allotment, and that order is defeasible  if the other conditions prescribed by law are  not fulfilled. 7.      So when the process of utilisation of  Nathi’s "surplus area" had not been completed  by the time his heirs by inheritance made the  aforesaid application to the authorities  concerned, it was permissible for those  authorities to re-examine the question whether  there was any "surplus area" at all after  Nathi’s holding had been inherited by his two  (sic) in equal shares so as to reduce the area of  the holding of each (sic) them below the  permissible area. The High Court therefore  (sic) allowed the writ petition of the  respondents.\024

11.     Apparently, the High Court has not taken note of this  decision. It has also not recorded any finding as to whether  after a long lapse of time, the action taken by the non official  respondents in challenging the order in favour of the  appellants disentitle them from any relief. Though the  expression used in Section18(6) of the Haryana Act is \023at any  time\024, obviously it has to be a reasonable time and if action is  taken to impugn the order after long passage of time, the  Court has to examine whether it would be proper to grant a  relief prayer for the same.  12.     As the basic issues have not been dealt with by the High  Court we remit the matter to the High Court to decide the case  afresh after taking note of what has been stated by this Court  in Smt. Kela Devi\022s case (supra).  

13.     The parties shall be permitted to place fresh materials in  support of their respective stands if they do not already form  part of the record. Since the matter is pending since long, we  request the High Court to dispose of the cases as early as  practicable preferably by the end of September, 2008.

14.     The appeals are allowed to the aforesaid extent. There  will be no order as to costs.