STATE OF HARYANA Vs. HARI SINGH

JUDGEMENT

(1.) This appeal has been preferred by the defendant Nos. 1 to 3 against the judgment and decree of the District Judge, Gurgaon, dated April 14, 1967.

(2.) The facts giving rise to the present appeal are that Parbhu Singh son of Ganga Sahai defendant No. 4, was the owner of land measuring 628 Bighas and 4 Biswas, situated in village Khatrika, tehsil Gurgaon. He made a gift of 6/7 share of that land in favour of plaintiffs 1 to 5 and Amir Singh, husband of plaintiff No. 6, on October 24, 1952, and delivered possession thereof to them. On the same day, he made a report regarding the gift to the Patwari which was entered at Serial No. 733 in the roznamcha. A mutation on the basis of the rapat roznamcha was entered and the same was sanctioned on June 29, 1953. The gift was incorporated in the Jamabandi relating to year 1956-57 and the plaintiffs 1 to 5 and Amir Singh were entered as the owners of the land in dispute. Thereafter, Amir Singh, husband of plaintiff No. 6, died. On December 9, 1959, the surplus area of Parbhu Singh was determined and land measuring 143 Bighas and 9 Biswas belonging to the plaintiffs was declared as surplus in his hands. The surplus area was allotted to defendants 5 to 28. Before declaration of surplus area, no notice was issued to the plaintiffs. They instituted a suit for declaration that the order passed by the Collector (Agrarian) was illegal, without authority and jurisdiction and, as such, was not binding on them as no notice had been issued to them before passing the impugned order. The suit was contested by the defendants. Inter alia, it was pleaded by them that the civil Court had no jurisdiction to try the suit, that the order was good and within the jurisdiction of the Collector (Agrarian). The trial Court held that the civil Court had the jurisdiction to try the suit and that the order was illegal, ultra vires, and in excess of the powers of the Collector. Consequently, it decreed the suit of the plaintiffs. Defendants 1 to 3 went up in appeal before the District Judge, Gurgaon, who affirmed the findings of the trial Court and dismissed the same. They having felt aggrieved from the judgment and decree of the first appellate Court have come up in appeal to this Court.

(3.) It is contended by the learned counsel for the appellants that the order of the Collector (Agrarian) was not in excess of his powers and that the civil Court had no jurisdiction to try the suit. There is not much controversy about the facts. A report was made by Parbhu Singh regarding the oral gift to the Patwari which was entered in the rapat roznamcha, Exhibit P.1, dated October 24, 1952, wherein it was mentioned that he had gifted 6/7th share of his land to plaintiffs 1 to 5 and Amir Singh, husband of plaintiff No. 6. The mutation on the basis of rapat roznamcha was attested on June 26, 1953, in favour of the aforesaid persons. The entry on the basis of the mutation was also made in the Jamabandi relating to year 1956-57. Thus plaintiffs 1 to 5 and Amir Singh deceased were shown as owners of the land in the Jamabandi. Thereafter, proceedings for declaration of surplus area were started by the Collector (Agrarian) who without serving notices on the plaintiffs declared land measuring 143 Bighas and 9 Biswas belonging to the plaintiffs as surplus and the same was allotted to defendants 5 to 28. According to sub-rule (3) of rule 6 of the Punjab Security of Land Tenures Rules, 1956 (hereinafter referred to as 'the Rules') framed under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as 'the Act'), it was incumbent upon the Collector (Agrarian) to have issued notices to the plaintiff-respondents before declaring the land in their hands as surplus. In this view, I am fortified by a Full Bench judgment of this Court in Harnek Singh and another V. The State of Punjab and others, 1971 PunLJ 727, wherein it was observed that where a transfer is made by a landowner after August 21, 1956, the transferee is a person interested in participating in the proceedings for declaration of surplus area and he must be given an opportunity of being heard to avoid his interest being prejudicially affected before declaring the surplus area of his transferor under the Act. It is further observed that even if the statute and the rules framed thereunder are silent on the point, it appears to be necessary for satisfying the principles of natural justice, without which it is impossible to maintain the rule of law, to give an adequate opportunity to a transferee to safeguard his interest in proceedings which can possibly culminate in a decision prejudicially affecting him and his property rights. The aforesaid observations were made in a case under the Pepsu Tenancy and Agricultural Lands Act, 1955, in similar circumstances. The above ratio applies to the present case which is under the Act.