Judgment:
K.S. Garewal, J.
1. This as well as the connected petitions involve the interpretation of Section 8(1) of the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter called the Ceiling Act) and exemption of land from surplus area by the State Government. This provision excludes land which had been purchased before July 30, 1958 from being declared surplus. However, lesser questions also arise but they would be answered on the basis of the decision which is taken on the main point of law.
2. The facts of the case are being taken from C.W.P. 5188 of 1990, Ghasitu Singh's categoric averment is that he and his three brothers had bought 204 Kanals 2 Maria from Bishan Singh for valuable consideration vide sale deed dated June 12, 1958. They had been put in possession of the land, mutation 395 was also entered in their favour on the basis of the sale deed. Petitioners were not related to the vendor and were small landowners.
3. On July 1, 1960 Bishan Singh's surplus area case was decided and the land in question .was put in the surplus pool. This was done without notice to the purchasers. Some of the land was also banjar jaded and kadim and had been so recorded in the revenue record. So, this land deserved to be exempted altogether in terms of the definition of land given under Section 2(8) of the Punjab Security of Lahd Tenures Act, 1953 (hereinafter referred to as 'Punjab Law') read with Section 4(1) of the Punjab Tenancy Act.
4. Subsequently, 26 Kanals 8 Marias was allotted to Sampuran Singh under the Punjab Security of Land Tenures Rules, 1956 as a tenant. Land measuring 61 Kanals 18 Marias, out of the land purchased by the petitioners from Bishan Singh, was allotted to Partapa (father of Sada Ram respondent 4) under the said Rules.
5. Sarmpuran Singh and Partapa remained tenants. They did not purchase the land under Section 18 of the Punjab Law nor obtained proprietory rights before the commencement of the Ceiling Act. Sampuran Singh died in 1976. Partapa also died in 1976.
6. Petitioners filed an application before the Prescribed Authority, Jagadhri to get the land exempted from the Ceiling Act. Their application dated June 2, 1978 was allowed on July 27, 1978. Appeals were filed against that order by the allottees/tenants which were dismissed by the Collector on August 27, 1980. However, on the basis of the order passed in revision by the Commissioner on April 17, 1985, the case was remanded back to the Prescribed Authority for passing a fresh order. After a full hearing to both sides, a fresh order was passed by the Prescribed Authority and the land in question was again exempted in terms of Section 8(1) of the Ceiling Act. Appeals filed by respondent 4 were dismissed. However, their revision was accepted by the Commissioner and further revision filed by the petitioners before the Financial Commissioner was also dismissed.
7. In these cases the sole question is with regard to the entitlement of the purchasers of land from big landowner to seeks its release, because the purchases was before July 30, 1958.
8. The decision of the question raised by the petitioners would depend upon a review of the case law on the subject and interpretation given by courts.
9. To begin with the provisions of law would be revisited. Under Section 8 of the Ceiling Act, no transfer of the land in excess of the permissible area under the Punjab Law after July 1958 shall affect the right of the State Government under the said law to the surplus area.
10. Learned Counsel relies upon Jaswant Kaur and Anr. v. State of Haryana 1977 P.L.J. 230 (F.B.). This case relates to challenge to the constitutional validity of the Ceiling Act but the provisions of Section 8 also came up for consideration. On harmonious construction it came up to be held that transfers of land in excess of the permissible area under the Punjab or Pepsu Law would be protected if made before July 30, 1958.
11. The above view again came up for consideration before Full Bench in State of Haryana v. Chandgi 1981 P.L.J. 494 and it was again held that a bare perusal of the aforesaid observations of the Bench clearly go to show that besides the transfers which are protected by Section 8(1) of the Act, 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 30th July, 1958.
12. Likewise many judgments of our court followed the above dictum and consistently held that transfers of surplus area was protected upto July 30, 1958 in terms of Section 8 of the Ceiling Act. These are Ishwar Devi v. State of Haryana 1983 P.L.J. 363; Narpat Singh v. State of Haryana 1985 P.L.J. 221 and Ajmer Singh v. State of Haryana 1987 P.L.J. 535.
13. Supreme Court also had an occasion to consider the provisions of Section 8 of the Ceiling Act in Jodha Ram v. Financial Commissioner 1994 P.L.J 28 (S.C.) and laid down 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.
14. The above dictum of law still holds the field.
15. On behalf of the respondents, the argument was that analysis of cases would show that the key to the application of provision of Section 8 of the Ceiling Act was whether the land had been utilized or not. If the land was unutilized the protection would be available as held in Narain Gir and Ors. v. State of Haryana and Ors. 1986 P.L.J. 461 (F.B.) and Balwant Singh v. State of Haryana 1986 P.L.J. 522 (S.B.).
16. Learned Counsel also relied upon the judgment of the Supreme Court in Financial Commissioner, Haryana and Ors. v. Kela Devi and Anr. 1980 P.L.J. 121 where it was laid down that the process of utilization of surplus area is complete when possession thereof has been taken by the allottee and all other formalities have been completed. Allotment order did not have the effect of completing that process. Counsel also cited the same judgments which had been relied upon by the Counsel for the petitioners, but in order to support his case he put a different interpretation to those judgments.
17. In the light of the above we shall now proceed to consider what the Financial Commissioner had held and how the matter was dealt with by the Agrarian Courts. As already detailed above, upto the stage of the Collector the position was that the land purchased by the petitioners on June 12, 19S8 could not be taken into this surplus pool. It was at the stage, of the Commissioner that this view was overturned on the ground that the area on which tenants had been settled under the Punjab Law before the commencement of the Ceiling Act, could not be exempted under Section 8 of the Ceiling Act. The reason for holding this was that the land had been utilized under the Punjab Law before the enforcement to the ceiling Act.
18. The Financial Commissioner relied heavily on an earlier ruling of his predecessor in which it had been held that 'Under Section 8 of the Haryana Act mention has been made of the Pepsu Act also, it is quite obvious that there could be no intention to apply this Section to areas which had already been vested in it under the Pepsu Act. Therefore, it is quite clear that Section 8 would not be applicable to such area which had been utilized under the old Acts. In Ishwar Devi's case 1983 P.L.J. 363 relying on the ruling in Jaswant Kaur's case it has been held by the learned Single Judge mat land on which tenants had been settled in 1965 before the enforcement of the Haryana Act will not be protected by the provision of Section 8. In the present case the surplus lands having been utilized in the year 1963 the petitioners cannot be given the benefit of the provisions of Section 8 of the Haryana Act even if the transfers are deemed to have taken place before 30.7.1958.'
19. According to the respondents the benefit of exemption under Section 8 of the Ceiling Act cannot be claimed by the petitioners because the surplus land of the big landowner had already been utilized before the Ceiling Act came into force. The surplus area had in fact been allotted to the allottees and thus utilized way back in 1963.
20. We may perhaps look at a parallel provision in order to test the argument of the petitioners that even utilized surplus land is protected. Take the case of land acquired by heirs by inheritance. Such land would be protected from surplus in excess of the permissible area even after July 30, 1958.
21. The protection would continue until surplus was finally determined. However, where succession opened after surplus area has been utilized under Clause (a) of Section 10-A of the Punjab Law, the saving in favour of an heir would come to apply. The provision of Section 10-A of the Punjab Law are similar to the provisions to the Section 8 of the Haryana Act. It seems that utilization of land by the State Government is clearly the final determining factor. If the land has been utilized, the benefit of Section 8 shall not be available.
22. The provision under which the petitioner seeks benefit came into force in 1972 and it certainly excluded land purchased before July 30, 1958 from being surplus. However, neither provisions of law nor enforcement of rights by tenants nor even land transactions remain static. The benefit of Section 8(1) is only available if land has still not been declared surplus in the hands of landowner and utilized by allotment to landless persons. In the present case land was declared surplus in 1960 in the hands of Bishan Singh. It was subsequently allotted to Partapa under the Punjab Law. Therefore, it is impossible to undo something which has already happened and declare land sold by Bishan Singh to the petitioners on June 12, 1958, as outside the surplus area of Bishan Singh. The sale may have been bona fide, without any dubious intentions to reduce Bishan Singh's surplus area, but the fact remains that the land which was sold by Bishan.Singh was declared surplus by him and subsequently allotted to Partapa.
23. The petitioners have sought exemption of the land from the surplus area of Bisnan Singh and have pleaded that part of the land in question was banjar jaded/banjar kadim etc. on April 1953. This ground was available to Bishan Singh. The petitioners' best plea was that they had purchased land before July 30, 1958 and were, therefore, entitled to the benefit under Section 8 of the Ceiling Act.
24. This plea has been found to be untenable, primarily on the ground that the land had already been utilized when the plea was raised. Likewise the plea that the land should be released on the ground of being banjar is not available to the petitioners because the land stands utilized altogether. Similarly, utilization of land would stand in the way of the petitioners to raise other pleas like the ejectment of the private respondents from the land for non-payment of rent. This is altogether different cause of action and is not related to the plea raised by the petitioner regarding the purchase of land before the cut-off date.
25. In view of the above we hold that benefit of exemption under Section 8 of the Ceiling Act cannot be claimed by the petitioners as land had already been utilized and allotted. There is a clear distinction between cases cited by the petitioner and the cases cited by the respondent which clearly brings out that land which has been utilized is not covered by the provisions of Section 8 of the Ceiling Act.
26. Having pondered over all aspects of the case we are unable to agree with the petitioners that their land deserves to be released from the surplus of their vendor Bishan Singh. There is no merit in this petition. The same is hereby dismissed.