Smt. Reshma v. The Financial Commissioner, Haryana, Chandigarh & Ors.

HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Sumeet Mahajan, Senior Advocate with Mr. Sham Lal Bhalla, Advocate and Mr. Amit Kahar, Advocate for the petitioner. Mr. S. S. Gorkhpuria. DAG, Haryana for the respondents.

2. 3. **** Whether reporters of local papers may be allowed to see the judgment ? No To be referred to the reporters or not? Yes Whether the judgment should be reported in the digest?Yes K. Kannan, J (oral).

1. The writ petition addresses two issues for consideration in a matter involving the assessment of total holding for the purpose of determination of surplus area under the terms of Haryana Ceiling of Land Holdings Act, 1972. The twin points are ; i) in the manner of assessment of the permissible area, the authority has not taken note of the size of the family correctly and has failed to provide for 1/5th unit for a child who had been born before the appointed date i.e. 24.1.1971. In the manner of reckoning apart from taking the family as one unit for the land owner, her husband, a son and two daughters, it had provided for an additional unit of only 1/5th share for one additional daughter when the fact was that the land owner had yet another daughter who had been born on

6..8.1970 before the appointed date. (ii) The second point for consideration CWP No. 7757 of 1990 2 was that in the matter of reckoning the permissible area, the authority had not duly considered the fact that the land owner was a half sharer in a tubewell, the other share being the share of her sister's husband. In independent proceedings for reassessment making a reference to the same tubewell the appropriate authority, Kaithal had already taken a view that the half share belonged to the land owner's sister's husband Rai Singh and the computation has to be reassessed for her share as well.

2. As far as the first point is concerned, the contention of the counsel is that the mistake arose on account of the fact that in the manner of the statutory form that was required to be filled in by the land owner referring to the extent of her holding over permissible area, she had expressed that she was illiterate and that she was not in a position to fill in the declaration as per Section 9 but she had, however, furnished the affidavit setting out that her family comprised of seven members that included two daughters in excess of a family comprising of one unit of five members. Learned counsel would argue that the form had been wrongly filled up as would be evident from the fact that it did not take into account the correct size of the family and the permissible limit of additional 1/5th unit for a child who has born before the appointed date. The discrepancy is seen from the details disclosed in the affidavit itself and in a situation where it must be taken that the person had failed to give the permissible area in accordance with the provisions of Section 9, the prescribed authority could have passed an order only after giving a notice to the person affected and after giving him opportunity of being heard as set out through Section 10. Section 10 reads as follows:- “10. SELECTION OF PERMISSIBLE AREA BY PRESCRIBED AUTHORITY. --If a person fails to select the permissible area in accordance with the provisions of Section 9, the Prescribed Authority may, after collecting the information in such manner as it may CWP No. 7757 of 1990 3 deem fit, by order select the permissible area of such person: Provided that no such order shall be made without giving all persons interested an opportunity of being heard. “

3. Although Section 9 cannot be applied pro prio vigore in a case where declaration had been given, I find that there is a definite mismatch between what was filled up on her behalf and the details contained in the affidavit which is required to be given under Section 9. I would therefore hold that when the authorities were making a selection of the permissible area, they were bound to give a notice to the owner to ascertain that the details are properly filled up. It can be noticed that Section 10 itself is a statutory direction for a person who fails to comply with the declaration formalities under Section 9. I would understand that Section 9 would apply also to a declaration which is inadequate or inappropriate. The fact that land owner had two daughters in addition to a family of five persons that qualify for one unit in terms of Section 4 of the Act was brought through a Civil Court decree in which the Government was a party. The copy of the decree is produced in Annexure P-5 and if this judgment has become final when the government took the decision on appeal and the appeal also confirmed the trial Court's view, a Civil Court decree between the parties was binding on the Revenue authorities on an issue of fact and the implication that such fact was bound to be reckoned in the manner of determination of the extent that a person would hold under Section 4 of the Act.

4. The second objection taken by the owner is also justified, for, if there had been a decision taken already by the appropriate authority, Kaithal on 22.1.1982 providing for a reassessment on the basis that a tubewell situated in a particular land belonging to the sister who was CWP No. 7757 of 1990 4 irrigating lands of the sister as well as the land owner herself and if a reckoning were to be made by taking that the land owner had only half share in the tubewell, it ought to have been done in tune with the order passed on 22.1.1982 by the appropriate authority and there cannot be two different approaches for land owners whose respective holdings were being assessed.

5. The objections taken in the writ petition are justified and the assessment made by the authority is set aside and the matter is remitted to the appropriate authority, Kaithal for redetermination of the permissible area in terms of the observations made above.

6. The writ petition is allowed to the above extent. May 6, 2011 archana (K. KANNAN) JUDGE