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PETITIONER: RAM SWARUP & ORS.

       Vs.

RESPONDENT: S.N.MAIRA & ORS

DATE OF JUDGMENT:       17/12/1998

BENCH: S.SAGHIR AHMAD, G.B.PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:  JUDGMENT PATHAK.J. The appellants are landless  persons  and  they  had been  allotted  different  parcels  of  surplus  land of the surplus holder Late Prem Nath Maira after  determination  of the  surplus in his hand by the Collector by Order dated 8th of June, 1960 under the Punjab Security of Land Tenures Act, 1953.  The order of the Collector dated  21.4.61,  declaring surplus  in  the  hands  of  the land holder was assailed in appeal but the  same  was  dismissed  by  the  Commissioner, Ambala Division  by  his  order  dated 14.7.61.  Against the appellate order a revision  was  carried  to  the  Financial Commissioner  in  the  year 1981 and it was contended before the Financial Commissioner that  the  original  land  holder having  died on 5.1.76 before the vesting of the land in the State of Haryana under Section 12(3) of the Haryana  Ceiling on  Land  Holdings  Act,  1972,  the  heirs  of the original surplus land holder inherited the same and consequently  the question  of  surplus  will  have to be determined under the provisions of Haryana Act and there  is  no  surplus.    The Revisional  Authority  dismissed  the  said  revision at the admission stage itself basically  on  the  ground  that  the determination  of  surplus  made by the Collector on 21.4.61 under the provisions of Punjab Security of Land Tenures Act, 1953 cannot be upset after 21 years and also on  the  ground that Section 12(3) of the Haryana Act having come into force retrospectively with effect form 21.3.72, the land must have to  be vested in the State prior to the death of the surplus holder and therefore, no question of inheritance would arise and the lands have been utilised by  way  of  settlement  in favour of  different  landless persons.  The matter was then carried to the High Court in a  writ  petition.    The  High Court  by  the  impugned  Judgment being of the opinion that notwithstanding  the  retrospective  effect  given  to   the provisions  of  Haryana  Ceiling on Land Holdings Act, 1972, the said notification being made only in the year  1976  and the original holder having died prior to that date there was no  vesting  of the land in the State and therefore on death of the surplus land holder the legal heirs would be entitled to individual ceiling units under the Haryana  Act  and  the

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earlier  declaration of surplus under the Punjab Security of Land Tenures Act cannot take away that right.   Accordingly, the  High Court directed for re-determination of the surplus in accordance with the provisions of the Haryana  Act.    It may  be stated at this stage that the present appellants who had been allotted the lands and were given possession of the same  since  1976,  after  declaration  of  surplus  by  the Collector  were not parties to the Writ petition in the High Court and being aggrieved by the order of the High Court  in the writ petition, they have approached this Court. Mr.  Mahabir Singh, the  learned  counsel  appearing for   the   appellants   contends   that   admittedly  after declaration of the surplus in the hand of the  surplus  land holder  under  the  provisions  of  Punjab  Security of Land Tenures Act, 1953 and  allotment  of  the  surplus  land  in favour  of  the  appellant  and deliver of the possession to them confers an indefeasible right which could not have been taken away in their absence and  the  High  Court  committed gross  error in interfering with the order of the Revisional authority.  The learned counsel on merits also contends that Section 12(3) being retrospective in nature in  the  eye  of law,  the  said provision must be held to be existing on the statute book  with  effect  from  23.12.72.    The  original surplus holder having died in the year 1976, the legal heirs cannot  claim  independent  ceiling  units  on  the basis of inheritance under the provisions of  Haryana  Act  and  High Court,   therefore,  committed  error  in  interpreting  the provisions of Section 12(3) of the Act.  The learned counsel appearing for the respondent on  the  other  hand  contended that  death  of  the  surplus holder having occurred earlier than the actual notification bringing Section 12(3)  on  the statute  book,  the  legal  heirs  of the surplus holder are entitled to claim their right  and  the  retrospectively  of Section 12(3)  will  not  take away that right.  The learned counsel further contended that the  lands  not  having  been vested  in the state under the provisions of Punjab Security of Land  Tenures  Act  notwithstanding  the  declaration  of surplus  by  the  Collector and Haryana Act having come into force, the rights and liabilities will have to be determined under the provisions of Haryana Act and the High Court  was, therefore,  justified  in  interfering  with  the Revisional Order. Having  considered  the rival submissions it appears to us that the High Court was not justified  in  interfering with  the  revisional  order  both  on  the  ground that the persons affected were not parties as well as on  the  ground that  the  provision of Section 12(3) of the Haryana Act has not been correctly interpreted.  From the available  records and the orders passed by the authorities it is crystal clear that the Collector declared surplus land in the hands of the original  surplus  land  holder  by  his order dated 8.6.60. Thereafter such surplus lands  were  allotted  to  different landless  persons  and  possession thereof was given to them who have been continuously in possession of the  same  since 1976.  By such allotment and delivery of possession in their favour,  rights  have  been  conferred on such allottees and therefore, any order  without  impleading  them  as  parties could  not  have  been passed which has the effect of taking away their rights.   These  appellants  allottees  were  not parties  to  the writ petition and therefore, the High Court was in error in snatching away their rights without  hearing them  and  without  impleading  them  as parties in the writ petition.    That   apart,   even   on   the   question   of interpretation  of  Section  12(3) of the Haryana Ceiling on Land Holdings Act, 1972, we also find that  the  High  Court

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has committed an error.  The provisions no doubt was brought on  to  the  statute book in the year 1976 by which time the original surplus holder had died but the legislature  having given  the  said  provision  the retrospective effect w.e.f. 23.12.72 and as such the rights of the parties will have  to be  governed, treating the provisions on the statute book on 23.12.72.  The land holder having died much  thereafter,  in the  eye  of law the lands in question vested with the State on 23.12.72.  Death having occurred much later in 1976,  the legal  heirs  cannot  claim any right on the basis that they are entitled to an individual ceiling unit as the  land  has not been  utilised.    The  High  Court  obviously  has  not considered the  effect  of  giving  retrospectively  to  the provisions of  Section  12(3).   In this view of the matter, the conclusion of the High Court cannot be sustained and  we quash the same.   This appeal is allowed.  The writ petition filed by the heirs  of  the  original  surplus  land  holder stands dismissed.    There  will  however  be no order as to costs.