LPA No.77 o”
1. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No.77 of 2013 Date of Decision:- July 30, 2013 Ram Karam and another ..............APPELLANT(S) versus State of Haryana and others ...........RESPONDENT(S) CORAM:- HON'BLE Mr.JUSTICE JASBIR SINGH HON'BLE Mr.JUSTICE G.S.SANDHAWALIA Present:- Mr.Mani Ram Verma, Advocate, and Mr.Nipun Verma, Advocate, for the appellants.
Mr.D.Khanna, Addl.
A.G., Haryana, for respondents No.1 to 5.
JASBIR SINGH, J.
(Oral) Dispute herein is with regard to 16 kanals of land falling in KhaSr.No.28//3 (8-0).4 (8-0) situated in revenue estate of village Kutana, Tehsil and District Rohtak.
The land in dispute was purchased by Harphool and Mehar Chand, the predecessor-in-interest of the appellants, from one Sh.
Brij Bhan, a big land owner.
Sale deed was executed on 06.06.1956 for an amount of `2,000/-.
It is also necessary to mention here that Mehar Chand sold his 1/4th share in the land referred to above to Sh.
Harphool on 20.03.1962 against consideration.
Both the appellants are sons of Harphool Singh.
To determine surplus land in the hands of Brij Bhan, proceedings were initiated as per the provisions of The Punjab Security of Land Tenures Act, 1953 (in short 'the 1953 Act').after notice, land measuring 21.13-1/2 standard acres in village Kutana was declared surplus in his hands on 03.08.1960.
It is an admitted fact that land falling in khaSr.No.28//3, 4 was part of the land so Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
2. declared surplus.
That order has become final.
It is also an admitted fact that when proceedings to determine surplus area, in the hands of big land owner were taken over, notice was not sent to the purchasers namely Harphool and Mehar Chand, though a mutation of the sale deed was sanctioned in their name on 21.09.1956.
The area so declared surplus, was not reflected into the revenue record.
Land continued to be shown in the name of Harphool and thereafter in the name of the appellants, in whose favour mutation was entered on the basis of inheritance.
In the meantime, The Haryana Ceiling on Lands Holdings Act, 1972 (in short 'the 1972 Act') came into existence and for its application, 24.01.1971 was fixed as an appointed date as per the provisions of Section 3(c) of the Act.
In the year 1995-96, mutation of land declared surplus in the hands of Brij Bhan in the year 1960 was entered in the name of State of Haryana.
At that time, the appellants filed an application on 26.10.1996 before the competent authority claiming exemption under Section 8 of the 1972 Act.
That application was dismissed on 29.04.1999 (Annexure P-1).Petitioners went in appeal, which was allowed vide order dated 07.06.2000.
It was opined by the Collector that as the sale deed in favour of the appellants was executed on 06.06.1956, in terms of provisions of Section 8 of the 1972 Act, that transaction was saved and the land cannot be mutated in the name of the State of Haryana.
The respondent-State went in appeal, which was allowed vide order dated 26.04.2002.
Order passed by the Collector on 07.06.2000 was set aside and that of the prescribed authority dated 29.04.1999 was restored.
Appellants failed before the Financial Commissioner on 22.05.2003.
Their revision petition was dismissed by observing as under:- “I have heard both the ld.
counsels and gone through the record.
It is an admitted fact that after deducting 30 standard acres as permissible area of the big Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
3. land owner, Brij Bhan remaining 24 standard acres area was declared surplus on 3.8.1960.
No appeal was filed against that order and hence it has become final.
Moreover as per govt.
Instructions dated 29.9.1997 the cases decided under old act are not to be reopened.
Land declared surplus under Act.
1953 vested in the state as per rule and the same is to be utilized under the scheme.
Hence the benefit of exemption granted under Section 8 of the Haryana Ceiling on Holdings Act, 1971 by the Collector was wrong and the petitioners had no right to remain in possession.
Having got the benefit of section 8 and remained in possession of the surplus land and utilize for the purpose of cultivation, it is not open to the petitioner to contend that land having remained un – utilized and continued to be in their possession and hence it should be taken out of surplus pool.
Mere enjoyment of surplus land does not create any right in land owner to claim any title.
Sampuran Singh versus State Supreme Court 1994 PLJ 267.
Therefore, the possession held by the petitioner of surplus land becomes invalid and entitled the Collector being Competent Authority to got back the possession.
Neither section 12(3) for section 7 and 9 of Haryana Act empower the competent authority to reopen the proceedings relating to surplus land which had become final.
The surplus land is vested in the State and can be utilized by State Govt.
in accordance with the provision of the Act, 1972.
In this context I have gone through the order of Commissioner Rohtak Division dated 26.4.2000.
I find the order is based on reason and correct appreciation of fact.
I do not find any Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
4. ground warranting interference with the orders under challenge.
Resultantly the revision petition is dismissed.
Appellants came to this Court by filing CWP No.20585 of 2009, which was dismissed on 05.11.2012.
The learned Single Judge has dismissed their writ petition primarily opining that once area has been declared surplus under the 1953 Act, it cannot be reopened and in terms of provisions of Section 12 of the 1972 Act, it automatically will vest in the State Government.
Benefit of sale in favour of predecessor-in-interest of the petitioners dated 06.06.1956 cannot be extended to them.
It was further observed that writ petition, having been filed belatedly, cannot be entertained.
To say so, it was noted that a revision petition filed by the petitioners was dismissed on 22.05.2003.
The writ petition was filed after six yeaRs.It was further said that application filed by the petitioners in the year 1996 was rightly dismissed having been filed after 30 years from the date of determination of surplus area in the hands of Sh.
Brij Bhan.
Counsel for the appellants has vehemently contended that in view of the provisions of Section 8 of the 1972 Act read with Section 12 of the said Act, appellants are entitled to retain land which they had purchased before 30.07.1958.
It is further argued that the Hon'ble Single Judge has wrongly relied upon ratio of the judgment in the case of Smt.
Bhagwanti Devi and another versus State of Haryana and another, 1994 (2) RRR 358.
In the said judgment, effect of application of the provisions of Section 8 and Section 12 of the 1972 Act, when read together, was not considered.
So was the position in the case of Mohan Singh (dead) through Kirpal Singh and others versus State of Haryana and otheRs.2010 (1) RCR (Civil) 497.
It is stated that as Sh.
Harphool, predecessor-in-interest of the appellants, had purchased the land on 06.06.1956, in view of the provisions of Section 8 of the 1972 Act, the said sale is saved and it will not vest automatically in the State of Haryana in terms of provisions of Section 12 of the 1972 Act.
It is prayed that the judgment passed by the learned Single Judge and Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
5. orders of the lower authorities passed against the appellants be set aside and their entitlement to retain the land be upheld.
Prayer made has vehemently been opposed by Sh.D.Khanna, Additional Advocate General, Haryana by stating that once determination of surplus area had become final in the hands of Sh.
Brij Bhan in the year 1960, it cannot be reopened.
The land so declared surplus shall vest in the State of Haryana as per the provisions of Section 12 of the 1972 Act.
It is further argued that the provisions of Section 8 of the 1972 Act will be applicable only in those cases where determination of surplus area was not made under the provisions of 1953 Act and the land was declared surplus for the fiRs.time under the provisions of the 1972 Act.
Before dealing with the arguments raised by counsel for the parties, it is necessary to mention that the 1972 Act was notified on 23.12.1972.
To determine surplus land in the hands of big land owneRs.as per the provisions of Section 3(c) of the said Act, 24.01.1971 was fixed as an appointed date.
The mode and manner to determine permissible area is mentioned in Section 4 of the Act.
Section 5 gives detail of the lands on which the provisions of the 1972 Act were not made applicable.
Section 5-A of the 1972 Act details lands exempted, belonging to religious or charitable institutions.
With the provision of Section 6, over riding effect was given to the provisions of the 1972 Act.
As per the provisions of Section 7, limitation was imposed upon a person, whether a land owner or a tenant or a mortgagee in possession, not to retain land exceeding the prescribed limit.
Section 8 talks of some transfers or dispositions which will not affect surplus area to be determined under the 1972 Act.
Above said provision reads thus:- “8.
Certain transfer or dispositions not to affect surplus area.
- (1) Save in the case of land acquired by the Union Government or the State Government under any law for the time being in force or by a tenant under the Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
6. pepsu law or the Punjab law or by an heir by inheritance, no transfer or disposition of land in excess of- (a) the permissible area under the Pepsu law or the Punjab law after the 30th day of July, 1958; and (b) the permissible area under this Act, except a bona fide transfer, or disposition after the appointed day, shall affect the right of the State Government under the aforesaid Acts to the surplus area to which it would be entitled out for such transfer or disposition: Provided that any person who has received an advantage under such transfer, or disposition of land shall be bound to restore it, or to pay compensation for it, to the person from whom he received it.
(Vide Act No.17 of 1976) (2) The burden of proving the transfer or disposition to be a bona fide one shall be on the transfer.
(3) If any person transfers or disposes of any land after the appointed day in contravention of the provisions of sub-section (1).the land so transferred or disposed of shall be deemed to be owned or held by that person in calculating the permissible area.
The land exceeding the permissible area so calculated shall be the surplus area of the person and in case the area left with him after such transfer or disposition is equal to the surplus area so calculated, the entire area left with him shall be deemed to be the surplus area and to the extent of the deficiency in it the land so transferred or disposed of shall also be deemed to be the surplus area.
If there is more than one transferee, the deficiency of the surplus area shall be made up from each of the transferees in the proposition to the land transferred or disposed of to them.
(Vide Act No.17 of 1976)”.As per the provisions of Section 9 of the 1972 Act, after determination of surplus area, liberty is granted to the land owner to select his holding and regarding surplus land to file a declaration.
If he failed to do so, the process can be initiated to separate surplus area by the prescribed authority as per Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
7. the provisions of Section 10 of the 1972 Act.
Further process to determine surplus area is given in Section 11 of the 1972 Act.
Section 12 of the 1972 Act describes the manner in which the land shall vest in the State.
Qua the land declared surplus under the 1953 Act or to be declared surplus under the 1972 Act, the said provision reads thus:- “12.
Vesting of surplus area.
--(1) The surplus area of a landowner shall, (from the date on which it is declared as such shall be deemed to have been acquired by the State Government for a public purpose) (Vide Act No.17 of 1976) and all rights, title and interest (including the contingent interest, if any, recognised by any law, custom or usage for the time being in force) of all persons in such area shall stand extinguished and such rights, title and interest shall vest in the State Government free from any encumbrance: Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.
(2) The right and interest of the tenant in his surplus area which is included within the permissible area of the landowner shall stand extinguished.
(3) The area declared surplus or tenant's permissible area under the Punjab law and the area declared surplus under the Pepsu Law, which has not so far vested in the State Government, shall be deemed to have vested in the State Government with effect from the appointed day and the area which day shall be deemed to have vested in the State Government with effect from the date of such declaration.(Vide Act No.40 of 1976) (4) For the purpose of determining the surplus area under this Act, any judgment, decree or order of a court or other authority, obtained after the appointed day and having the effect of diminishing the surplus area shall be ignored.”
Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
8. Section 13 of the 1972 Act provides the mode and manner to take possession of the surplus area declared.
When we look into the provisions of Section 8, it talks of certain transactions which will not affect permissible area under the Pepsu Law or the Punjab Law (1953 Act) after 30.07.1958.
It is also provided that permissible area under the 1972 Act shall not be effected except for a bona fide transfer or disposition made after the appointed date.
Section 12 of the 1972 Act mandates that for area declared surplus under the 1953 Act, of which possession has not been taken by the Government, shall be deemed to have vested in the State Government with effect from the appointed dated i.e.24.01.1971.
The main question in this case is whether purchase of land measuring 16 kanals by the appellants, out of the area so declared surplus in the year 1960 in the hands of Brij Bhan, is saved in terms of the provisions of Section 8 of the 1972 Act or not.
The provisions of Sections 8 and 12 of the 1972 Act came up for consideration before a Full Bench of this Court in the case of Smt.
Jaswant Kaur and another versus State of Haryana and another, 1977 PLJ 230.
The Full Bench, after taking note of objects of the Act and conditions in which the provisions of Section 8 and 12 will be applicable, has observed as under:- “7.
Coming not to the attack based upon inconsistencies between the various provisions of the Act, it was directed almost exclusively against Section 12 (3) (introduced by Act XVII of 1976).which provision, it was said was in conflict within Section 4 (1) and Section 8 of the Act.
Section 4 (1) provides for the determination of permissible area in relation to a landowner as well as a tenant.
Section 8 has the effect of saving certain transfers from the operation of the Act.
It is useful to extract the whole of Section 8 (1).It is as follows:-- "8.
Certain transfers or dispositions not to affect surplus area.
(1) Save in the case of land acquired by the Union Government or State Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
9. Government under any law for the time being in force or by a tenant under the Pepsu law or the Punjab law or by an heir by inheritance, no transfer or disposition of land in excess of:-- (a) the permissible area under the Pepsu law or the Punjab law after the 30th day of July, 1958 and (b) the permissible area under this Act, except a bona fide transfer or disposition, after the appointed day, shall affect the right of the State Government under the aforesaid Acts to the surplus area to which it would be entitled but for such transfer: Provided that any person who has received an advantage under such transfer or disposition of land shall be bound to restore it, or to pay compensation for it to the person from whom he received it."
Section 12(1) provides that the surplus area of a landowner shall be deemed to have been acquired by the State Government for a public purpose from the date on which it is declared as such and that all rights, title or interest of all persons in such area shall stand extinguished, all such rights vesting in the State Government free from encumbrances.
Section 12 (2) provides that the right and interest of the tenant in his surplus area which is included within the permissible area of the landowner shall stand extinguished.
Section 12 (3) against which, as we said, the attack was concentrated is as follows:-- "The area declared surplus or tenants permissible area under the Punjab law and the area declared surplus under the Pepsu law which has not so far vested in the State Government, shall be deemed to have vested in the State Government with effect from the appointed day and the area which may be so declared in pending proceedings to be decided under the Punjab law or Pepsu law shall be deemed to have vested in the State Government with effect from the date of such declaration".
The submission of the learned counsel was that there was glaring inconsistency between Section 12 (3) and the two earlier provisions of Section 4 (1) and Section Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
10. 8.
It was said that while Section 4 (1) provided for the determination of the permissible area of the tenant also, Section 12 (3) prescribed that the tenant's permissible area under the Punjab Law which had not so far vested in the Government shall be deemed to have vested in the State Government with effect from the appointed day.
The argument was that if the land vested in the Government what was the point of determining a tenant's permissible area under the Act ?.
It was again said that while Section 8 saved certain transfers from the operation of the Act, Section 12 (3) made no such exception in favour of those transfeRs.For example, it was said that land which was declared surplus under the Punjab Security of Land Tenures Act but which was unutilized and later acquired by the Central Government would vest under Section 12 (3) in the State Government notwithstanding the acquisition by the Central Govern-ment.
Similarly, land purchased by a tenant under the provisions of Section 18 of the Punjab Security of Land Tenures Act would vest in the State Government under Section 12 (3) notwithstanding the purchase by the tenant.
So also, in the case of transfers by inheritance.
Even transfers made before 20-07-1958 {the date mentioned in Section 8 (1) (a).it was argued, would not be saved if they were made after the declaration of surplus area or tenant's permissible area under the Punjab Security of Land Tenures Act.”
8. The provisions of Ss.
4 and 8, particularly Section 8, appear on fiRs.impression to be inconsistent with the provisions of Section 12 (3) but, as we said earlier, it is our fiRs.duty to seek to avoid conflict by endeavouring to harmonise and reconcile every part -so that each shall be effective.
A closer and critical examination of the provisions shows that they are not irreconcilable and all of them fit well into the general scheme of the Act.
Section 8 has not been repealed expressly, by Section 12 (3) of the Act, not can it be said, in the view that we are taking, that it was repealed by necessary implication.
Section 12 (3) was introduced by way of am-endment by Act XVII of 1976.
By Section 1 (2) of the Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
11. Amending Act, it is deemed to have come into force on 23-12-1972.
A Harmonious way of construing Ss.
8 and 12 (3) would be to give full effect to Section 8 (1) up to 23-12-1972, that is to say, to exclude from the operation of Section 12 (3).the transfers made up to 23-12-1972 which are protected by Section 8 (1) of the Act, namely, (1) acquisition of land by the State or Central Government, (2) acquisition by a tenant under the Pepsu Law or the Punjab Law, or (3) acquisition by an heir by inheritance.
Other transfers of land in excess of permissible area under the Punjab Law or the Pepsu Law would be protected if the transfers were made prior to 30-7-1958.
We see no reason why Ss.
8 and 12 (3) should not be construed in this harmonious manner so as to give effect to both the provisions.
We find from the instructions issued from time to time that the Government has also construed the provisions in a similar manner.
In Memo No.5726-AR (IA)-76/ 28819, dated 15-9-1976, addressed by the Financial Commissioner and the Secretary to Government, Haryana, Revenue Department, to the Commissioners of the Ambala and Hissar Divisions etc., it is said:-- "The surplus area already purchased by the eligible tenants/persons under Section 18 of the Punjab Law and Section 22 of the Pepsu law should be considered to have been lawfully utilized and should not, therefore, be vested in the State Government under Section 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972.
Only such unutilized surplus area which was not purchased by the eligible tenants/persons under the Punjab Law or Pepsu Law should be deemed to have been vested in the State Government from the appointed day under Section 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972, and may be mutated in favour of the State Government immediately and necessary action to allot such area to the eligible persons may be taken in accordance with the provisions of the Utilization of Surplus and Other Areas Scheme, 1976."
Again in Memo No.6632-AR(II)-76/ 33309, dated 29-10-1976 it is said, "It has come to the notice of the Government that there is some lack of Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
12. understanding in correctly interpreting the provisions of Section 8 and Section 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972.
In this regard it is clarified that Section 8 of the Haryana Ceiling on Land Holdings Act, 1972, inter alia prohibits transfers and dispositions of land in excess of the permissible area under the old Acts made after the 30th July, 1958, Therefore, transfers or dispositions of surplus area under the Punjab Law or the Pepsu Law made before the 30th July, 1958 stand regularised by law or in other words they would affect the surplus pool.
As a result of this, the surplus area which had been transferred or disposed of by the landowners before 30-7-1958, shall not vest in the State Government under Section 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972, and therefore, such area cannot be utilized in accordance with the Utilization of Surplus and Other Areas Scheme, 1976."
9.
Shri Naubat Singh, the learned Assistant Advocate General, also agreed that we should harmonise Section 8 and Section 12 (3) in the manner that we have done but he suggested that the date up to which transfers of the three categories specified by us earlier as (1).(2) and (3) should be recognised, should be the appointed day (24-1-1971) and not the date on which Section 12 (3) came into force.
We do not agree.
Section 1 (2) of Act XVII of 1976 expressly provides that the Act shall come into force on 23-12-1972.
We must give some meaning and effect to it.
In our view, the effect of Section 12 (3) coming into force from 23-12- 1972 on Section 8 is that transfers of the three categories specified by us made up to 23-12-1972 would be excluded from the operation of Section 12 (3).that transfers of land in excess of the permissible area under the Punjab or Pepsu Law would be protected if made before 30-7-1958 and that all other land not excepted by Section 8 would vest in the State Government with effect from the appointed day.”
10. We may mention here that though under Section 8, transfers out of surplus area declared under the Punjab Law are recognised up to 30-7-1958 Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
13. only, the Government by means of executive instructions have recognised, subject to certain conditions being fulfilled, transfers up to 15-4-1966.
Memo No.5726- AR(LA)-76/28819 dated 15-9-1976 may be referred to in this connection.”
11. In regard to the supposed, conflict between Section 4 and Section 12 (3).an examination of the.
other provisions of the Act would show that there is no conflict in truth and substance.
Section 15 (1) declares that the surplus area acquired or vested under Section 12 shall be at the disposal of the State Government.
Section 15 (2) enjoins a duty upon the State Government to frame a scheme for utilizing the surplus area by allotment of land to various categories of persons which include tenants.
The proviso to Section 15 (2) expressly provides for the allotment of land to various categories of tenants.
They are : "(i) a tenant holding land declared as the tenant's permissible area under the Punjab Law or the Pepsu Law, as the case mav be, may be allotted land to the extent of the area held by him or the permissible- area under this Act, whichever is less; (ii) a tenant who was allotted and given possession of land in the surplus area by the State Government under the Punjab law or the Pepsu law, may be allotted land to the extent of the area so allotted to him.
(iii) a tenant liable to ejectment as a result of an ejectment order or decree passed against him under Clause (i) of Sub-section (1) of Section 9 of the Punjab law or Sub-section (1) of Section 7-A of the Pepsu law, may be allotted land to the extent of the area mentioned in Section 9-A of the Punjab Law or Section 7-A of the Pepsu Law, as the case may be; (iv) a tenant, settled on the.
surplus area bv the landowner before Kharif, 1968, who is not-- (a) landowner's relation of the category specified in Clause (9) of Section 2 of the Punjab law or the rules made thereunder; or (b) the landowner's relative of the category specified in the rule made under sub- Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
14. Clause (ii) of Clause (g) of Section 2 read with Section 52 of the Pepsu law; or (c) the landowner's relation of the category specified in the rule made under clause (s) of Section 3 read with Section 31 of this Act, may be allotted land to the extent of two hectares of the category specified in Clause (c) of Sub-section (1) of Section 4 or land of equivalent value subject to the condition that the land so allotted and the land held by him, if any, do not exceed two hectares of lend of the category specified in Clause (c) of Sub-section (1) of Section 4 or land of equivalent value; and (v) a person from any other eligible category may be allotted land to the extent of two hectares of the category specified in Clause (c) of Sub-section (1) of Section 4 or land of equivalent value subject to the condition that the land so allotted and the land held by him, if any, do not exceed two hectares of land of the category specified in Clause (c) of Sub-section (1) of Section 4 or land of equivalent value."
A scheme has in fact been framed by the State Government.
Clause (4) of the Scheme enumerates the categories of persong eligible for allotment of surplus land.
Category A is "a tenant holding land declared as the tenant's permissible area under the Punjab Law or the Pepsu Law, as the case may be".
Category B is "a tenant who was allotted and given possession of land in the surplus area by the State Government under the Punjab Law or the Pepsu Law and is holding the same".
Categories C, D and E are other classes of tenants, and, Categories F, G, H and I are other classes of persons entitled to allotment.
Clause (7) of the Scheme prescribes the principles and procedure of allotment.
Sub-clause (i) of Clause (7) provides: "Inter se priority amongst the eligible categories shall be in the same order in which these have been listed in para.
4 i.
e., Category A will take precedence over Category B and Category B will take precedence over Category C and so on".
Sub-clause (ii) of Clause (7) provides: "Eligible persons of Category 'A' will be allotted land to the extent of permissible area under this Act out of the areas held by them".
Similarly, sub-clause (iii) provides "Eligible Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
15. persons of Category B will be allotted the areas held by them".
It is thus seen that the determination of tenant's permissible area under Section 4 is not an exercise in futility.
It is intended to secure to him under the Scheme land to the extent of permissible area under this Act out of the area held by him.
The ultimate effect of allotment under the Scheme would be to convert the tenancy rights which he previously possessed in the land into rights of ownership.”
It was specifically opined that any sale effected before 30.07.1958 would be saved.
The view taken in the case of Jaswant Kaur's case (supra) was reiterated by a Single Bench of this Court in the case of Ajmer Singh versus State of Haryana and otheRs.1987 PLJ 535.
In that case, area had already been declared surplus in the hands of a big land owner.
Taking note of transactions effected before 30.07.1958, it was said that under the provisions of 1972 Act, the big land owner has become small land owner.
By taking note of the provisions of Section 8 of the 1972 Act and ratio of the judgment in Jaswant Kaur's case (supra) qua transactions effected out of the surplus land declared under the 1953 Act by a big land owner, it was observed as under:- “It is thus clear that the lands which had been transferred by Shri Maru Ram by way of partition to his sons could not be taken into account while determining his surplus area under the Act.
The authorities, therefore, could not declare the petitioner's land surplus and utilize the same because by virtue of the provisions of Sections 8 and 12 of the Act the land though declared surplus under the provisions of Punjab Security of Land Tenures Act had not come to vest in the State of Haryana and when the case was again taken up for determination of the surplus area of Maru Ram, he had already become small landowner and the land owned and possessed by the petitioner had wrongly been Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
16. included within his holding and declared surplus.”
It was very clearly declared that the land which was transferred by a big land owner by way of partition to his sons could not be taken into account when determining his surplus area under the 1972 Act.
Same is the ratio of the judgment of the Hon'ble Supreme Court in the case of Jodha Ram (dead) by legal representatives versus Financial Commissioner, Haryana and otheRs.1994 PLJ 28.
Before the Hon'ble Supreme Court, it was averred that all transfers made by the land owners prior to 30.07.1958, even in respect of excess area, have been exempted from the scope of operation of the 1972 Act.
After noting the provisions of Sections 8 and 12 of the above said Act.
It was observed as under:- “It is true that Section 8(1)(a) says that no transfer or disposition of land in excess of the permissible area under the Punjab Law after July 30, 1958, shall affect the right of the State Government under the aforesaid Act, to which surplus area the State Government would be entitled but for the transfer or disposition.
July 30, 1958 has been fixed as the cut-off date.
Transfer or disposition of land in excess of the permissible area, under the Punjab Law made after July 30, 1958, will only be covered under the Haryana Ceiling on Land Holdings Act.
Any transfer made prior to July 30, 1958 in respect of an excess area under the Land Tenures Act, is not covered and has been exempted.
It was pointed out that as such lands transferred prior to July 30, 1958, shall not vest in the State Government under Section 12(3) of the Act.”
The ratio of the Full Bench in the case of Jaswant Kaur's case (supra) was approved.
Same is the position so far as ratio of the judgment in the case of Sampuran Singh versus State of Haryana, 1994 (2) PLR 42.is concerned.
Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
17. By placing reliance on ratio of judgment in Jodha Ram's case (supra).it was held that any transfer made prior to 30.07.1958 is saved.
In view of the facts mentioned above, argument of Sh.D.Khanna that benefit of provisions of Section 8 of the 1972 Act cannot be given to the appellants is liable to be rejected.
It is his proposition that Section 8 would be applicable only in those cases where surplus area was not determined under the provisions of 1953 Act.
Above issue has elaborately been dealt with by a Full Bench of this Court in Jaswant Kaur's case (supra).which has been approved by the Hon'ble Supreme Court in various judgments, as referred to above.
Otherwise also, it is coming out from the judgment of Jaswant Kaur's case (supra) that to clarify such like disputes, the State of Haryana had also issued instructions from time to time.
It is noted in the judgment that vide instructions dated 29.10.1976, it was specifically ordered that the surplus area which was transferred or disposed of a the land owner before 30.07.1958 shall not vest in the State Government as per the provisions of Section 12 of the 1972 Act and such area cannot be utilized in accordance with the scheme prepared in the year 1976.
Reliance on the ratio of judgment of the Hon'ble Supreme Court in the case of Smt.
Bhagwanti Devi's case (supra) was not justified.
In that case, facts were altogether different.
The effect of conjoint reading of provisions of Section 8 and 12 of the 1972 Act were not discussed.
In a different context, it was said that the proceedings which had become final determining surplus area under the 1953 Act cannot be reopened.
The ratio of the judgment is not applicable to the facts of the case in view of the facts mentioned hereinbefore.
Same is the situation so far as ratio of the judgment in the case of Mohan Singh's case (supra) is concerned.
In that case, the sale deed in question was executed on 18.06.1974 and not before 30.07.1958, as is the issue in the present appeal.
In view of the facts mentioned above, we allow this appeal.
Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh LPA No.77 o”
18. Order passed by the learned Single Judge dated 05.11.2012 and that of the Financial Commissioner dated 22.05.2003, Commissioner dated 26.04.2002 and prescribed authority dated 29.04.1999 are set aside and order of the Collector dated 07.06.2000 is restored.
It is declared that the land measuring 16 kanals falling in KhaSr.No.24//3-4 village Kutana, Tehsil and District Rohtak shall not vest in the State of Haryana.
(Jasbir Singh) Judge 30.07.2013 (G.S.Sandhawalia) shivani Judge Gupta Shivani 2013.08.20 15:49 I attest to the accuracy and integrity of this document High Court Chandigarh