Judgment:
CWP No.15157 of 1991 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.15157 of 1991 Date of Decision.30.06.2014 Sunehra and others ......Petitioner Versus State of Haryana and others ......Respondents Present: Mr. R.S. Tacoria, Advocate for the petitioner. Mr. Rajiv Prashad, DAG, Haryana. CORAM:HON'BLE MR. JUSTICE K. KANNAN1 Whether Reporters of local papers may be allowed to see the judgment ?.
2. To be referred to the Reporters or not ?.
3. Whether the judgment should be reported in the Digest?. -.- K. KANNAN J.
1. The point involved in the writ petition is the validity of proceedings taken by the authorities under the Haryana Ceiling on Land Holdings Act, 1972 over the claims of the petitioners who contended that the property which had been declared as surplus did not belong to the land owner Munshi Ram in whose hand the assessment had been made. The contention was that the original land owner Munshi Ram had transferred the property of 103 kanals 10 marlas in favour of petitioners No.1 and 2 through a registered gift deed dated 31.01.1957 and mutation had also been carried out in the names of the petitioners on 22.03.1957. The remaining lands were also said to have been transferred in the names of the petitioners on equal basis through a decree dated 03.12.1969 which is the basis for mutation of the holdings in favour of the petitioners on 17.02.1971. Kamboj Pankaj Kumar 2014.07.03 11:16 I attest to the accuracy and integrity of this document Chandigarh CWP No.15157 of 1991 -2- 2. It is a matter of record that the surplus area case of Munshi Ram was decided by the Collector by his order dated 20.03.1964 where he had declared 11 standard acre 5 ½ units as surplus in the hands of Munshi Ram. The contention was that the property declared as surplus has never been utilized and Munshi Ram had died on 21.04.1974. An application moved by the petitioners under the Act seeking for exclusion of the lands claimed by the petitioners was rejected that has given rise to the impugned orders which are in challenge before this Court.
3. As regards the time of vesting in respect of properties which are declared as surplus, Section 12(3) of the Haryana Ceiling on Land Holdings Act is very explicit that in respect of property which is declared under the Punjab law or the Pepsu law as falling in surplus then the property shall become vested from the appointed date. The appointed date is 21.01.1971. Under the normal circumstances, therefore, it is clear that the property that had been declared as surplus under the Punjab law which has not been challenged till the date of the Act cannot allow for a fresh consideration and divest the property what is statutorily vested in the State.
4. Learned counsel appearing for the petitiones would try to make out an exception for the applicability of Section 12(3) by pointing out that this property has already been disposed of by the land owner by means of gift in the year 1957 that is before 30.06.1958 and therefore, the property shall stand excluded from the holding of the land owner. The contention is that the gratuitous transferees are also required to be joined in proceedings before a declaration could have been made under the Punjab Law. There was a duty cast on the State to verify the holding Kamboj Pankaj Kumar 2014.07.03 11:16 I attest to the accuracy and integrity of this document Chandigarh CWP No.15157 of 1991 -3- of the land owner and even at the time when the mutation had been made and the property declared as surplus, reckoning of the property declared as surplus could not have been made without ascertaining the subsisting ownership in the hands of the land owner. The counsel would refer me to the rules under the Punjab Security of Land Tenure Rules, 1956 which allows for reference to be submitted even by a gratuitous transferee under Section 19(b). Section 19(b) of the Punjab Security of Land Tenures Act states that after the commencement of the Act, any person as land owner or tenant acquired by inheritance or by bequest or by gift from a person, who was a heir any land or even after the commencement of the Act and before 31.07.1958, any property had been acquired by transfer, lease, agreement or settlement then he shall within the period prescribed furnish to the Collector a return in the prescribed form, the particulars of lands and selecting the land any existing in the aggregate permissible area which he decided to retain. The Rule 24 states that if any land owner or tenant failed to furnish the return and select his land within the prescribed period then the Collector may have the information collected in Form D and DD, as the case may be, through the normal revenue agency. The argument is that since the State itself did not collect the necessary information through the normal revenue agency, the gratuitous transferee must be allowed the benefit of such transfer for seeking for exclusion from the total holding of the land owner. The counsel would refer me two Full Bench (Five Member Bench) decisions of this Court, one rendered in Harnek Singh and another Vs. The State of Punjab and others 1972 Vol.LXXIV127which sets out a principle of law that an interested person in a particular land which is Kamboj Pankaj Kumar 2014.07.03 11:16 I attest to the accuracy and integrity of this document Chandigarh CWP No.15157 of 1991 -4- treated as surplus shall be allowed the benefit of participation in the proceedings before property is declared as surplus. The interest which the petitioners claim is the interest which is shown in the mutation proceedings as persons who are lawful transferees of the property. Yet another decision in State of Haryana and others Vs. Vinod Kumar and others 1986 PLR331that if the notice was not served on land owner though recorded as such in revenue records, any order passed in violation of such statutory provision could be challenged not merely under the Act before the authorities but also could bring about a suit and Section 26 of the Punjab Security of Land Tenures Act will not constitute a bar to such a suit.
5. The whole question ought to hinge on whether a gratuitous transferee could obtain the benefit of exclusion in the manner contemplated under Section 8 and whether Section 12(3) which makes an automatic vesting from the appointed date could be excluded from its operation by a person claiming to have an independent right in the property but claiming under the original land owner.
6. This point has been directly raised in a decision in Bhagwani Vs. State of Haryana 1993 (2) AILSR315 Referring to the interplay of Section 8 and 12(3) of the Act of 1972, a Bench of this Court held that a surplus land which had been gifted/transferred and disposed of by the land owner before 30.07.1958 shall not vest in the State and as such is not available for utilization in accordance with utilization of surplus and other area. This Court was setting aside the order passed by the Financial Commissioner directing the vesting of the property and for utilization of surplus area scheme. The transfer that excludes the property from Kamboj Pankaj Kumar 2014.07.03 11:16 I attest to the accuracy and integrity of this document Chandigarh CWP No.15157 of 1991 -5- vesting ought to include also the property which is gratuitously transferred as evident from Rule 24(5) itself of the Punjab Security of Land Tenures Act of 1956. Rule 24(1) allows every land owner who secures land by inheritance or gift or transfer a declaration to be made in form R or form S and sub-clause 5 refers to the Collector's power to elicit the information collected in Form D and DD through the normal revenue agency in every instance where the land owner fails to furnish the detail. If it were to be that gratuitous transferee does not get the benefit and the same would also require to be taken as a property in the reckoning of the transferor then there is no purpose served by having Rule 24(5) that takes into account the duty of the State to bring out the information in a separate form.
7. On a due consideration of all the relevant facts, I hold that a declaration made under the Security of Land Tenures Act by including the property which was gratuitously transferred before 30.07.1958 is bound to be excluded and the declaration will have no effect so as to quash the interest of such a transferee. The proceedings of Financial Commissioner that reckons the property gifted in favour of the petitioner was clearly erroneous and I quash the proceedings of the Financial Commissioner and allow the writ petition. The State shall be entitled to make a fresh reckoning by securing the declaration from the land owner in relation to the property after incorporating his declaration regarding property gratuitously transferred in Form D or DD as the case may be under the Rules and proceed in accordance with law. (K. KANNAN) JUDGE June 30, 2014 Pankaj* Kamboj Pankaj Kumar 2014.07.03 11:16 I attest to the accuracy and integrity of this document Chandigarh