SOM PARKASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is a revision petition which was earlier decided by the then Financial Commissioner (Sh. G.V. Gupta, IAS) vide his order dated 30.4.93 in R.O.R. No. 93 of 89-90 upholding the orders dated 5.1.89, 17.10.89 and 12.1.90 of the Prescribed Authority, Sirsa, Collector Sirsa and the Commissioner, Hisar Division respectively in a surplus area case, now restored for a fresh decision in compliance to High Court order dated 23.1.1995 in C.W.P. No. 5686 of 1994 Smt. Pato etc. v. State etc. whereby the Court directed to decide the matter afresh after giving an opportunity to all the re-settled tenants on the disputed land except those who have already been heard, and directed the parties to appear before the Financial Commissioner, Haryana on 21.2.1995.

(2.) FACTS of the case are that the surplus area case of landowner Som Parkash (who died in 1972) was decided on 19.6.82 leaving 615 kanals and 10 marlas of 'C' category land with him after excluding 63 kanals 8 marlas of land purchased by the tenants under Section 18 of the Punjab Security of Land Tenures Act, 1953 and also 151 kanals 8 marlas of land sold by him for consideration vide sale deed dated 10.4.1972, thereby leaving no surplus area with him holding that his entitlement was more than the area left with him. Later on a complaint was filed that the landowner Som Parkash had died in 1972 and the declaration was filed by his son Sham Lal who has taken a separate unit for him for which he is not entitled. The Collector marked this complaint for investigation by the Prescribed Authority Sirsa who vide his order dated 5.1.89 held that exclusion of 151 kanals 8 marlas land sold on 10.4.1972 was incorrect and re-calculating the holding on that basis declared 83 kanals 17 marlas 'C' category land as surplus. Appeal and revision filed before the Collector Sirsa and the Commissioner, Hisar were dismissed by the Collector and the Commissioner vide order dated 17.10.1989 and 12.1.90 respectively. The petitioner Sham Lal (son and legal representative of deceased landowner Som Parkash) then filed a revision petition before the Financial Commissioner, Haryana who vide his order dated 21.8.90 quashed the order dated 5.1.89, 17.10.89 and 12.1.90 of the Prescribed Authority, Sirsa, Collector Sirsa and the Commissioner, Hisar Division respectively and accepted the revision petition treating the sale dated 10.4.1972 as bona fide having taken place before the commencement of the Haryana Ceiling on Land Holdings Act, 1972 and that it was for consideration and not to the relations and also that no argument having been advanced by the State counsel that it was not bona fide sale. Aggrieved by this order of the Financial Commissioner (Sh. G.V. Gupta, IAS) Jeet Singh and Kaur Singh claiming to be allottees of the disputed land filed a Civil Writ Petition No. 5261 of 1991 in the High Court of Punjab and Haryana seeking a hearing in the case since they had not been heard in the matter when the revision petition was decided by the then Financial Commissioner vide his order dated 21.8.90. The High Court then vide its order dated 29.7.91 quashed the Financial Commissioner's order and remanded the case to him for passing a fresh order in accordance with law after granting an opportunity of hearing to Jeet Singh and Kaur Singh. The then Financial Commissioner (Sh. G.V. Gupta, IAS) then vide his order dated 30.4.1993 dismissed the revision petition in R.O.R. No. 93 of 1989-90 and upheld the orders dated 5.1.1989 of the Prescribed Authority, dated 17.10.1989 of the Collector and dated 12.1.1990 of the Commissioner, thereby declaring 83 kanals 17 marlas 'C' category land as surplus with the landowner. On a C.W.P. No. 7938 of 1993 filed by landowner Som Parkash through his legal representative, the High Court vide its order dated 16.11.93 set aside the order dated 30.4.93 of the Financial Commissioner, Haryana. Then respondents Smt. Pato and others (respondents No. 7 to 11) filed a C.W.P. No. 5686 of 1994 Smt. Pato etc. v. State etc. before the High Court of Judicature for the States of Punjab and Haryana at Chandigarh which holding that the allottees who became owners of the disputed land had not been heard by the Financial Commissioner, directed him vide its order dated 23.1.1995 to decide the matter afresh after giving an opportunity to all the resettled tenants on the land in dispute except those who have already been heard, and directed the parties to appear before him on 21.2.1995 for decision of the matter within six months.

(3.) ON the other hand the counsel for the allottees-respondents No. 6 to 11 states that it is not a case of restricted remand by the High Court and the Financial Commissioner can decide any question as everything is open to him, and draws my attention to the High Court order dated 23.1.1995 (last para). The counsel further states that the sole question in this case is whether the sale made by the landowner on 10.4.1972 is bona fide or not. That the previous order dated 16.11.1993 of the High Court was obtained by concealing the facts from the High Court. The counsel states further that actually landowner Som Parkash was declared a big landowner under the Punjab Security of Land Tenures Act, 1953 and that Bhajan Singh alias Sajjan Singh respondent No. 6 was allotted 64 kanals of the disputed land and delivered possession thereof. The counsel further states that three others had been given possession of the surplus area similarly but they have not appeared here. The sale of 151 kanals 8 marlas land on 10.4.72 after 24.1.71 (appointed day) is not a bona fide sale and the details of mis-information have been given in the second order dated 21.8.90 of the Financial Commissioner Sh. G.V. Gupta, IAS. The counsel states that the area which was declared surplus under the Punjab Security of Land Tenures Act, 1953 will remain so and its nature will not change after coming into being of the Haryana Ceiling on Land Holdings Act, 1972. The counsel refers to a decided case reported as 1994-PLJ-245 (SC) in support of this point. The counsel further states that in this case all the three revenue Courts below and upto the Financial Commissioner have decided the area as surplus with the landowner. That the conduct of original landowner's son (petitioner) has been based on concealment of facts as his father had claimed only one unit and not 2 units. That the allottees of surplus area are not affected by the bona fide transfer, only the persons allotted land in 1992 are adversely affected. Accordingly the counsel for the respondents prays for upholding the orders dated 5.1.89, 17.10.89. 12.1.90 and dated 30.4.93 of the Prescribed Authority, Collector, Commissioner and Financial Commissioner respectively. DDA appearing for the State-respondents has also supported the arguments of the counsel for the respondents.