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CASE NO.: Appeal (civil)  3486 of 1998

PETITIONER: Lacchman Singh                                           

RESPONDENT: State of H.P. & Ors.                                     

DATE OF JUDGMENT: 29/01/2004

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

JUDGMENT: JUDGMENT

WITH

CIVIL APPEAL NO. 3487 OF 1998

SHIVARAJ V. PATIL J.

       The Himachal Pradesh Ceiling on Land Holdings Act,  1972 (for brevity ‘the Act’) came into force on  22.11.1973.  A draft statement was served on 24.3.1975  on the appellant by the Collector under Rules 9 and 10  of the Rules framed under the Act stating that he had  surplus area of 108.3 bighas and that he could file his  objections, if any, within 30 days.  The appellant did  not file any objection.  The Collector passed the order  on 14.7.1975 in the absence of any objection confirming  the surplus area of 108.3 bighas of the appellant.  The  appellant was detained under MISA between the period  from 8.7.1975 to 1.1.1977.  An appeal could be filed  against the order of the Collector dated 14.7.1975  within 60 days.  Himachal Pradesh Tenancy and Land  Reforms Act, 1972 (for short ‘the Land Reforms Act’)  came into force on 4.10.1975.  The appellant could  apply for resumption of land under the provisions of  the said Act to the extent he was entitled to, within  one month from the date of application of Rules 6 from  4.10.1975.  In the absence of resumption application,  on 20.2.1976, proprietary rights were proposed to be  conferred on the private respondents under the Land  Reforms Act.  Accordingly, on 22.6.1976, mutations of  proprietary rights were sanctioned in favour of the  tenants.  On 20.10.1976, the appellant filed Civil Writ  Petition No. 456 of 1976 in the High Court through his  son Bhagat Singh, being a General Power of Attorney.   In the said writ petition, constitutional validity of  certain provisions of the Act and Land Reforms Act was  challenged.  Further, there was challenge to the orders  against the appellant passed under both the aforesaid  Acts.  It may be stated here itself that the order  dated 3.7.1986 dismissing the C.W.P. No. 456 of 1976  attained finality as its validity having not been  challenged any further.   

       The appellants filed Misc. Revenue Appeal No. 161  of 1989 before the Commissioner (Shimla Division)  challenging the correctness and validity of the order

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made by the Collector on 14.7.1975 holding that the  appellant had surplus area of 108.3 bighas.  It is to  be noted that the appellant neither mentioned in the  appeal nor brought to the notice of the Commissioner  about his suffering an order of dismissal dated  3.7.1986 passed in C.W.P. No. 456 of 1976.  The  Commissioner disposed of the appeal on 29.10.1990  remanding the case to the Collector to decide the  proceedings as per the provisions of the Act looking to  the pleading of the appellant that he had no excess  holding on the appointed day and that the relevant  records were not available.  After remand, the  Collector disposed of the case on 25.8.1992 rejecting  the contentions of the appellant taking a view that the  High Court having rejected the same contentions in  C.W.P. No. 456 of 1976 by the order dated 3.7.1986, it  was not open to him to consider the same contentions  again, applying the principles of res judicata.  The  appellant filed appeal before the Commissioner again.   The Commissioner, after hearing the learned counsel for  the parties, by a detailed and reasoned order,  concurring with the view taken by the Collector,  dismissed the appeal on 22.12.1992.  The matter did not  rest at that.  The appellant approached the High Court  in the second round by filing Civil Writ Petition No.  1519 of 1995.  A Division Bench of the High Court,  after consideration of the rival contentions, concluded  that the writ petition filed by the appellant was  frivolous and ill-advised.  Consequently, the writ  petition was dismissed on 10.3.1997. Hence, the  appellant is in appeal before this Court in Civil  Appeal No. 3486 of 1998 against the said order of the  Division Bench of the High Court.

       After filing of the appeal, on 8.9.1997 the  appellant took a short adjournment in this Court to  enable the appellant to move an SLP against the earlier  order dated 3.7.1986 passed by the High Court in C.W.P.  No. 456 of 1976.  It is thereafter, SLP was filed by  the appellant against the order dt. 3.7.1986  made in  the writ petition and the Civil Appeal No. 3487 of 1998   arises out of the same SLP.   

       Mr. K.T.S. Tulsi, learned Senior Counsel for the  appellant in C.A. No. 3486 of 1998 contended that the  appellant was not at all excess holder of the land  considering the fact that he has a major son born on  1.6.1944; the appellant could not file objections to  the draft statement as he was under detention during  the period 7.7.1975 to 1.1.1977.  In C.W.P. No. 456 of  1976, only the constitutional validity of certain  provisions of the Act was questioned; in that writ  petition, the question of determination of surplus area  under the Act did not arise; even otherwise, any  observation made in that order in the writ petition  cannot affect the rights of the appellant as regards  the surplus area.  His further submission was that when  the appeal filed by the appellant was allowed by the  Commissioner on 29.10.1990 holding that the appellant  was entitled to two units and the case was remitted to  the Collector, the Collector ought to have decided the  case on merits in the light of the observations made in  the order of the Commissioner; he could not have simply  disposed of the case applying the principle of res  judicata referring to the order made on 3.7.1986 in

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C.W.P. No. 456 of 1976; the Commissioner also committed  an error in dismissing the appeal confirming the order  of the Collector.  He also submitted that the Division  Bench of the High Court was not right in negativing the  contentions of the appellant in the light of the order  made in the earlier C.W.P. No. 456 of 1976 when the  question of determining surplus area did not arise in  that writ petition.  He made grievance that no  authority has decided as to the entitlement of the  appellant for two units taking note of the undisputed  fact that the appellant has a major son.

       Mr. Anoop Choudhary, learned Senior Counsel for  the appellant in C.A. No. 3487 of 1998, while  supporting the submissions made by Mr. Tulsi, made  further submissions that the Collector was wrong in  presuming that the appellant was excess holder; no  declaration is required to be made by the Collector  under the Act as regards surplus area and question of  serving draft statement would arise only in case where  a return is filed by excess holder. He drew our  attention to certain provisions of the Act in support  of his submissions.  He added that even otherwise the  order made by the Collector as regards surplus area was  bad in law as it was done without giving opportunity of  hearing as required under Section 9(2) of the Act; the  draft statement said to have been served on 24.3.1975  was under Section 10 of the Act; the High Court  committed an error in taking the view that the draft  statement served on the appellant on 24.3.1975 was  sufficient service of notice.  He also submitted that  the appellant was not legally obliged to reply to the  draft statement served on him on 24.3.1975; failure to  give reply did not affect the appellant’s rights;  the  appellant is also not paid compensation till date and  the possession of lands could not be taken without  payment of compensation.

       The learned counsel for the respondents made  submissions in support of the impugned orders for the  very reasons stated therein.  They also submitted that  on 14.7.1975 when the Collector passed the order  declaring that the appellant had surplus area of 108.3  bighas, son of the appellant was major; neither the  appellant nor his major son challenged the said order  within 60 days; the appellant in C.W.P. No. 456 of 1976  did not state that he was not excess holder; the  appellant was guilty of suppression of material fact,  i.e., passing of the order in C.W.P. No. 456 of 1976 on  3.7.1986 when he filed appeal before the Commissioner  in 1989;  the order of the Collector dated 14.7.1975  was challenged before the Commissioner after about 14  years and after 3 years from the date of the order made  in C.W.P. No. 456 of 1976; nothing prevented the  appellant from challenging the order of Collector dated  14.7.1975 earlier on all the grounds that were  available, which are sought to be urged now including  the ground that he was not excess holder.  It was not  open to the Collector or the Commissioner in the second  round to pass an order contrary to the order dated  3.7.1986 made in C.W.P. No. 456 of 1976.  The Division  Bench of the High Court in W.P. No. 1519 of 1995 on  proper consideration of all aspects rightly rejected  the contentions of the appellant.  According to learned  counsel, on fact and circumstances of the case and

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looking to the conduct of the appellant, this Court may  not interfere with the impugned orders exercising  jurisdiction under Article 136 of the Constitution.

       We have carefully considered the above submissions  of the learned counsel for the parties in the light of  the facts found and the relevant provisions of law.   The Collector by the order dated 14.7.1975 declared  that the appellant has surplus area of 108.3 bighas.   This order was challenged only in the year 1989 before  the Commissioner almost after 14 years.  The appeal  ought to have been filed within 60 days.  Even if the  appellant was under detention between the period from  8.7.1975 to 1.1.1977, appeal could have been filed  immediately thereafter.  There was no need to wait for  14 years.  Added to this, appellant had major son,  appeal could have been filed through him as writ  petition was filed in 1976 by the appellant through his  son as GPA.  Even after the dismissal of C.W.P. No. 456  of 1976 on 3.7.1986, the appeal was not filed before  the Commissioner for about 3 years.  There is no good  reason or explanation given by the appellant as to why  filing of the earlier writ petition and the order  passed on 3.7.1986 was not disclosed in the appeal  filed before the Commissioner.  The obvious inference  that can be drawn is that the appellant having suffered  the order in the writ petition did not disclose the  same.  If disclosed, it could have gone against him.   Possibly, the Commissioner would not have passed an  order of remand if the order dated 3.7.1986 passed in  C.W.P. No. 456 of 1976 was placed before him.  The  contention that only constitutional validity of the  provisions of the Act was the subject matter of the  C.W.P. No. 456 of 1976 and other contentions relating  to surplus land were not raised, also cannot be  accepted.  The Division Bench of the High Court in  W.P.(C) No. 1519 of 1995 having examined this aspect  recorded a finding that the question with regard to the  surplus area also came for consideration in earlier  writ petition No. 456 of 1976.  From the very order  dated 3.7.1986 made in C.W.P. No. 456 of 1976, it is  clear that all the contentions sought to be urged in  the second writ petition were urged on behalf of the  appellant and they were rejected.  In the order dated  3.7.1986, the High Court dealing with the surplus area  of the appellant has stated thus:-

"I would first deal with the  proceedings initiated and the order made  by the Collector and the relevant  provisions of the Ceiling Act declaring  an area of 108.3 bighas out of the  petitioner’s holdings as surplus area.   The Ceiling Act which had been enacted  "to consolidate and amend the laws  relating to the Ceiling on land holdings  in Himachal Pradesh" was enforced in  July, 1973.  As per Section 6 of this  Act, no person was entitled to hold  whether as a landowner or a tenant or a  mortgagee with possession or partly in  one capacity and partly in another, the  land within the State of Himachal  Pradesh exceeding the ’permissible area’  on or after the ‘appointed day’.  

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‘Appointed day’ has been defined in  Section 3 as meaning 24th day of  January, 1971, and the "permissible  area" has been defined in Section 4.   Section 8 next provides that every  person, who on the ’appointed day’ or at  any time thereafter holds the land  exceeding the permissible area, shall  furnish to the Collector particulars of  all his lands and that of the separate  unit within the prescribed period and in  the prescribed form and manner and  stating therein the selection of land  not exceeding in the aggregate the  permissible area which he desires to  retain.  An option has thus been given  to the land owner whose land holding  exceeded the permissible area to furnish  the particulars to the Collector in the  prescribed form and in the prescribed  manner stating the selection of land  which he desires to retain and which, of  course, must not exceed the permissible  area.  The Rules called the Himachal  Pradesh Ceiling on Land Holdings Rules,  1973, were framed under the Ceiling Act  and the same were notified in the  Official Gazette on 22nd November,  1973.  As per Rule 4 every person  required to furnish a return under  Section 8 shall himself or through an  authorized person or in the case of a  minor through his guardian furnish it in  duplicate in Form C-II to the Collector  in whose jurisdiction the land is  situate, personally or by registered  post (acknowledgement due) within  eighty-five days from the coming into  force of the Rules.  It is not disputed  that the petitioner never cared to  furnish the particulars required under  Section 8 of the Act in the manner  prescribed and within the period  prescribed under Rule 4.  In the case of  a person who fails to select the  permissible area in accordance with the  provisions of Section 8, Section 9(2) of  the Act empowers the Collector to select  the permissible area of such person  by  order after collecting the information  in such manner as he may deem fit.  The  Collector, therefore, in the instant  case proceeded to act in exercise of his  jurisdiction under Section 9(2) of the  Act for selecting the permissible area  of the petitioner.  After collecting  such information, he prepared the  requisite statement under Rule 9 and  sent a copy thereof to the petitioner  inviting him to file his objections, if  any, against that statement within 30  days from the date of service thereof.   This statement found at Annexure-A was  served on the petitioner on 24.3.1975.   The petitioner, however, neither filed

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any objections nor did he care to  himself appear before the Collector for  that purpose.  It was in these  circumstances that the Collector in  exercise of the powers vested in him  under Section 10 of the Act passed his  order declaring 108.3 bighas out of the  petitioner’s land as surplus for the  purposes of Ceiling Act.  In view of the  factual position stated above and which  is not controverted, it is not now open  to the petitioner to contend that he was  afforded no opportunity of selecting his  permissible area or that he was not  heard by the Collector before declaring  his area as surplus.  The challenge of  the petitioner against the order of the  Collector declaring his area as surplus  must, therefore, fail."

(emphasis supplied)

This being the position, it is not possible to accept  the contention that the High Court did not decide the  question of surplus area of the appellant.  In the said  order of the High Court, it is also noticed that the  challenge to the validity of the provisions of the Land  Reforms Act was given up by the learned counsel for the  appellant.  When the order of the High Court dated  3.7.1986 made in C.W.P. No. 456 of 1976 had attained  finality, the Division Bench of the High Court was  right and justified in passing the order on 10.3.1997  dismissing C.W.P. No. 1519 of 1995 taking a view that  it was not open to the appellant to re-agitate the  matter as to the surplus area before the Collector or  the Commissioner or before the High Court in the writ  petition.  If the appellant was not the excess holder,  nothing prevented him from justifying the same by  filing objections when draft statement was served on  him on 24.3.1975.  Assuming that wrong order was passed  by the Collector affecting the rights of the appellant  and when objections were invited, if the appellant has  failed to avail that opportunity, it is not open to him  to contend otherwise.   The argument that opportunity  was not given to the appellant as required under  Section 9(2) of the Act, has also no substance.   Combined reading of Sections 9 and 10 of the Act and  Rules 9 and 10 framed under the Act, it becomes clear  that the opportunities given to file objections to the  draft statement and also opportunity of hearing before  issuing a final statement is one composite hearing,  even otherwise, there was no reason as to why the  appellant should not have taken objections including as  to the denial of opportunity of hearing under Section  9(2).  It is not a case of not giving opportunity of  hearing but a clear case of not availing of the  opportunity given.  It was not possible to Collector or  the Commissioner to consider the case of the appellant  contrary to or overlooking the order dated 3.7.1986 in  C.W.P. No. 456 of 1976.  It appears that the surplus  area of land was in possession of the tenants and the  proprietary rights on those lands were sanctioned in  favour of the tenants as early as in 1976.  The  contention that possession could not be taken from the  appellant without paying any compensation also has no

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force.  It was for the appellant to claim compensation,  if entitled to.  The appellant has suffered the order  on 14.7.1975 having not challenged the said order for  many years, which ultimately attained finality by the  order dated 3.7.1986, passed in C.W.P. No. 456 of 1976.   Rights have accrued to the third parties and at this  stage their rights also cannot be affected.  This is  one more reason as to why the impugned orders cannot be  disturbed.

       SLP was filed against the order dated 3.7.1986  made in C.W.P. No. 456 of 1976 only with a view to get  over the impugned order made in C.W.P. No. 1519 of  1995.  This apart, even on merits in view of what is  stated above and looking to the reasons recorded by the  High Court in the said order dated 3.7.1986, we do not  find any good ground to disturb it that too at this  stage almost after 16= years affecting the rights of  the parties.  Under the circumstances, the Civil Appeal  No. 3487 of 1998 has to be dismissed.

       Alternatively, the learned counsel for the  appellant urged that the appellant having become  landless, his case may be considered by the authorities  for allotment of land in case he applies.  We only  state that the dismissal of these appeals does not come  in the way of the appellant, if in fact he is landless,  to apply for allotment of land if permissible in  accordance with law.

       Thus, considering all aspects and facts and  circumstances of the case, in our view, the impugned  orders do not call for interference.  Hence, the  appeals are dismissed with no order as to costs.