SAVITRI AND BHAGWANTI Vs. STATE OF HARYANA

JUDGEMENT

(1.) SMT . Savitri and Smt. Bhagwanti have filed the present writ petition under Articles 226/227 of the Constitution of India, for the issuance of writ of certiorari for the quashment of the orders (Annexures P1 and P2) passed by respondents No. 2 and 3, declaring the area belonging to the petitioners as surplus qua respondent No. 5, under the Haryana Ceiling on Land Holdings Act, 1972 (for short 'the 1972 Act'), and allotting the same to respondents No. 6 to 10, namely, Kaku, Piara, Munshi, Khushal and Nihal.

(2.) THE case set up by the petitioners is that father of the petitioners and husband of respondent No. 5, i.e., Dayal, owned share in Khewat No. 8, Khatauni Nos. 12 to 21, measuring 1494 Kanals 2 Marlas situated in village Banni, Tehsil and District Sirsa. According to the petitioners, Shri Dayal died on 23.6.1956, leaving behind the petitioners and respondent No. 5 as his heirs in equal shares. The surplus land in the hands of Shri Dayal under the Punjab Security of Land Tenures Act, 1953 (for short '1953 Act') had neither been declared nor utilised before he died and he was in possession of the entire holding. By virtue of the exception provided under Section 10-A(b) of the 1953 Act in favour of the heirs acquiring by inheritance, each of the three heirs, i.e., the petitioners and respondent No. 5, succeeded to 249 Kanals each, and they became small landowners within the meaning of the 1953 Act and no part of the land in their hands became surplus. On the death of Shri Dayal, which took place soon after the coming into force of the Hindu Succession Act, 1956, the revenue staff while verifying the annual record (Charsala Jamabandi) on 20.10.1956 mutated the entire land left by Shri Dayal in the name of respondent No. 5 alone, following the Customary law of Succession, in ignorance of or contrary to the provisions of the Hindu Succession Act. The mutation was attested and sanctioned in favour of Smt. Parmeshwari Devi (respondent No. 5) without notice to the petitioners. In spite of the wrong and illegal mutation, the petitioners and their mother Smt. Parmeshwari Devi remained in possession as owners in equal shares. Respondent No. 5 did not inherit the entire share of her husband and, therefore, she was not a big landowner. She did not furnish any declaration to the Collector as required under Section 19-B of the 1953 Act. The grouse of the petitioners is that the mistake of wrong entry was discovered by them in the year 1972 and in order to get the wrong mutation entry undone, the petitioner Smt. Bhagwanti filed a suit for declaration to the effect that she is the owner of the property to the extent of one-third share left by her father and her suit was decreed on 14.4.1972 and mutation No. 3118 was attested and on the basis of that decree mutation No. 3276 was sanctioned on 14.3.1976. Respondent No. 5 misled by the entries in the revenue record, filed declaration in Form I under Section 9 of the 1972 Act, indicating the change of ownership entries vide mutations No. 3118 and 3276, as transfers after 24.1.1971. Respondent No. 3, the Prescribed Authority under the Ceiling Law, without issuing proper notice to respondent No. 4 and without issuing any notice for hearing to the petitioners, passed orders dated 12.10.1978 (Annexure P1) and ignored mutations No. 3118 and 3276 as not bona fide transfers and declared 740 Kanals 4 Marlas 'C' Category land as surplus with Smt. Parmeshwari (respondent No. 5). Respondent No. 5 then filed an appeal before the Collector and the same was dismissed as barred by time. The learned Collector did not take notice of the fact that the petitioners are the owners to the extent of one-third share each in the estate of Shri Dayal. The order passed by the Collector is Annexure P2. Now the challenge has been given to the orders (Annexures P1 and P2) on the ground that the petitioners are the legal heirs of Shri Dayal, who allegedly died on 23.6.1956 after the passing of the Hindu Succession Act, which came into force on 17.6.1956 and, therefore, the Prescribed Authority wrongly proceeded on the assumption that Shri Dayal died prior to the enforcement of the Hindu Succession Act and wrongly mutated the entire land in the name of respondent No. 5 and declared it surplus vide orders (Annexures P1 and P2). It is also the grouse of the petitioners that they were not associated with the enquiries at any stage made by the authorities, and, as such, the impugned orders (Annexures P1 and P2) are illegal and are liable to be set aside in the present writ petition.

(3.) EARLIER this writ petition came up for hearing before the learned Single Judge on 2.2.1989, who passed the following order :-