IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CASE NO.: LPA No.389 of 2003
DATE OF DECISION : 13 February,2009
STATE OF HARYANA .......APPELLANT
VERSUS
SMT. RAM KALI ETC.
......RESPONDENTS
CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA
HON'BLE MS. JUSTICE NIRMALJIT KAUR.
PRESENT: Mr. Gagandeep Singh Wasu, D.A.G., Haryana
for the appellant-State.
Mr. Arun Jain, Sr. Advocate
with Mr. Amit Jain, Advocate
and Mr. Vikram Singh, Advocate
for the respondents.
Mr. O.P. Goyal, Sr. Advocate
with Ms. Priya Khurana, Advocate
for the respondents.
NIRMALJIT KAUR, J.
This order will dispose of three L.P.As bearing Nos. 389 of
2003, 82 of 2003 and 246 of 2003 as common question of law and facts
arise. For the sake of convenience, the facts have been taken from LPA
No.389 of 2003. As per the facts of the present case, the land of the big
land owner Sham Lal was declared surplus on 21-11-1966 by the Collector
Agrarian Sonepat. Earlier the big landlord Sham Lal son of Rattan Singh
had sold 84 Bighas 3 Biswas of land vide sale deed dated 27-10-1953. The
mutation was sanctioned on 12-12-1953 to Smt. Shanti Devi. Thereafter,
LPA No.389 of 2003 -2-
Shanti Devi vide sale deed dated 29-11-1955 transferred the same to
Smt. Kishan Devi. Kishan Devi died on 13-05-1966 and the land stand
inherited by the petitioners in the writ petition and respondents herein in the
L.P.A. However, as mentioned above, 24 acres of land was declared
surplus in his hands on 21-11-1966. Admittedly, this order of the Collector
has become final and has not been challenged before any Court.
Meanwhile, the Haryana Ceiling on Land Holdings Act, 1972 came in
operation. Ram Kali and Lalita Devi, who are petitioners in the writ petition
and had inherited the land on the basis of the Will, filed an application
before the prescribed authority under Section 8 of the Haryana Ceiling on
Land Holdings Act, 1972 with a request that since the transfer has taken
place prior to 30-07-1958, the land be excluded from the surplus pool. The
prescribed authority vide order dated 08-08-1978 accepted the application
and after ignoring the land acquired by the State Government and the one
which had been purchased by the tenants, directed the remaining land
measuring 105 Kanals 17 Marlas be released from the surplus area of the
land owner. The tenants who were settled on this land, filed an appeal
against this order before the Collector. The Collector, vide his order dated
14-02-1979, set aside the order dated 08-08-1978. The revision petition
filed by the petitioners in the writ petition and the respondents herein, was
dismissed on 17-08-1979. Petition under Section 18(6) was also dismissed
by the Financial Commissioner vide order dated 26-10-1982. The order
dated 14-02-1979 passed by the Collector and the order dated 26-10-1982
passed by the Financial Commissioner were challenged in the writ
petition. Learned Single Judge allowed the petition and granted benefit of
LPA No.389 of 2003 -3-
Section 8 to the petitioners in the writ petition on the ground as envisaged
in the Section itself that since the transfer had taken place prior to
30-07-1958, they were entitled to the protection and the lands so
transferred, should be released from the surplus area. Learned counsel for
the petitioner states in the LPA No.389 of 2003 as well as the learned
counsel for the petitioners, who were tenants, settled on this land in LPA
No.246 of 2003 and LPA No.82 of 2003 argued that the land of the big
landlord was declared surplus in the year 1966 under the old Act of Punjab
Security of Land Tenures Act, 1953. Hence, the same vested with the
State. As per Section 10(b) of the old Act, the protection of the land sold
prior to 1958, is not available to the land owners with respect to the land on
which the tenants had been settled. The Section 8 of the new Act does not
cover a land which is utilised. Apart from this, the land declared surplus
under the old Act, had vested in the Government under Section 12(3) of the
Haryana Ceiling Act w.e.f. 24-01-1971. Since, the petitioners had filed this
application under Section 8 of the Act only on 28-08-1976, all proceedings
under the old Act on this day stood completed and nothing was pending on
the appointed date when the new Act came into force. The land, therefore,
stood utilised and vested in the Government. Moreover, it has been
judicially settled by the Apex Court that the land declared surplus under the
Punjab Security of Land Tenures Act, 1953 cannot be re-opened after it
stood vested in the State. In the present case, the land was declared
surplus in the year 1966 and the said order, declaring the land surplus, has
become final. No appeal till date has been filed against the order declaring
the land surplus. The land stood allotted to the tenants in the meanwhile.
LPA No.389 of 2003 -4-
The order vide which the land became surplus, has become final. The
same cannot be allowed to be re-opened under the garb of Section 8 of the
new Act, specially in view of Section 12 of the same Act. On the other
hand, learned counsel for the respondents and petitioners in the writ
petition, has argued that there is no question of vesting of the land, in
question, in the State Government under Section 12(3) of the Haryana
Ceiling Act. Learned Single Bench had rightly considered the provisions of
Section 8 of the Haryana Ceiling on Land Holdings Act, 1972, while holding
that since the transfer of the land is prior to 30-07-1958, the said transfer
was subject to protection and the land so transferred was to be left out
while determining the surplus land of the landlord. According to him,
Section 8 and Section 12(3) of the Haryana Ceiling on Land Holdings Act,
1972 are not inconsistent and both these provisions can be reconciled.
The contention of learned counsel for the parties have been
heard at length. Certain admitted facts that arise are that the land was of
the big landlord and was declared surplus on 21-11-1966 under the old Act
of Punjab Security of Land Tenures Act, 1953. The land was declared
surplus on 21-11-1966. The order, declaring the land surplus, has become
final. It was never challenged. When the Haryana Ceiling on Land Holdings
Act, 1972, came into force, the tenants moved an application under Section
8 of the Haryana Ceiling on Land Holdings Act, 1972 before the prescribed
authority for getting the land released from the surplus area as the land
stood sold/transferred in the year 1958 and declared surplus as late as in
the year 1966 ought to be determined in view of Section 8 of the Haryana
Ceiling on Land Holdings Act, 1972.
After having given considerable thought to the arguments and
LPA No.389 of 2003 -5-
the judgments of the Hon’ble Supreme Court as well as the various
provisions of the two Act, it is not possible for us to accept this contention.
At this stage, it would be relevant to refer to the provisions of sub-section
(1) of Section 8 of the Act, which reads as under :-
“8. Certain Transfers or Dispositions Not to Affect Surplus
Area-
(1) Save in the case of land acquired by the Union
Government or the State 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 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.”
On the bare reading of the aforesaid provisions, it appears that
the transfers made by big land owner prior to 30-07-1958 were valid and
cannot be ignored for the purpose of determining surplus area in his
hands. The facts, in the present case, however, do not allow protection
under Section 8 of the Haryana Ceiling on Land Holdings Act, 1972. In the
present case, the land was declared surplus by the Collector (Agrarian),
Sonpeat. This order of the Collector became final and has not been
challenged before any Court. Once, the order has become final under the
LPA No.389 of 2003 -6-
Punjab Security of Land Tenures Act, 1953, thus the concession available
under Section 8 of the Haryana Ceiling on Land Holdings Act, 1972 is not
available to the respondents in such a situation as has been held by the
Division Bench of this Court in the case of Janga vs. Zora Singh 2003(4)
RCR (Civil) 811 which relied on the judgment of the Apex Court in Amar
Singh and others v. Ajmer Singh and others (1994(3) Punjab Law Reporter
433. The Hon’ble Supreme Court in the case of Amar Singh (supra) while
holding that there is no provision under the Haryana Ceiling on Land
Holdings Act, 1972 to re-open the proceedings finalised under the Punjab
Act, observed as follows :-
” We have heard learned counsel for the parties.
The High Court fell into patent error in allowing the
writ petition on the basis of the ratio in Jaswant Kaur
and anr. v. State of Haryana and anr., 1977 PLJ 230.
The said case is not even remotely relevant to the
facts of the present case. The learned Judge failed to
appreciate that in the present case the surplus
proceedings under the Punjab Act had been finalised
as back as 1961/1962. There is no provision under
the Haryana Act to reopen the surplus determined
under the Punjab Act. Based on wholly erroneous
assumptions the learned Judge allowed the writ
petition. The Letters Patent Bench of the High Court
mechanically dismissed the appeal in limine.”
Having been faced with the situation, Mr. Goel, counsel for the
respondents raised second contention that the land declared as
surplus under the provisions of Punjab Security of Land Tenures
Act, 1953 remained un-utilised and as such, the petitioners were entitled to
LPA No.389 of 2003 -7-
re-determine the same under the provisions of Haryana Ceiling on Land
Holdings Act, 1972. With respect to this issue, a reference is being made to
the findings recorded by the Collector, Sonepat as follows :-
” In this case, out of 105 Kanals 17 Marlas surplus
land, 49 Kanals 8 Marlas had been allotted to the
tenants under the old Act. These tenants are in
possession of the same. Under the allotment scheme,
this allotment has been regularised and these tenants
are also paying the instalments. Remaining 56 Kanals 9
Marlas has been alloted to Desa and other tenants
under the new allotment scheme. It is clear that this
entire surplus land has been utilised (allotted).”
Thus viewed, it is apparent that the land in question did not
remain un-utilised. Section 8(1)(a) of the Haryana Ceiling on Land
Holdings Act, 1972 cannot come to the rescue for releasing of the land
which already stand declared surplus under the Punjab Act as the same
would vest in the State of Haryana under Section 12(3) of the Act. A
reading of Section 8(1)(a) and Section 12(3) of the Act leaves no doubt that
there is no scope for re-opening or re-determining the land where
proceedings for declaration of surplus are under the Punjab Act have
become final. Section 12(3) of the Act is, therefore, necessary to be
viewed.
” Section 12(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 may be so declared
under the Punjab law or the Pepsu law after the appointed
day shall be deemed to have vested in the State
Government with effect from the date of such declaration.”
LPA No.389 of 2003 -8-
Thus, as per Section 12(3) of the Haryana Act, the land would
automatically vest in the Government, once, the proceedings for
declaration of the surplus area under the Punjab Act have attained finality.
The Haryana Act does not give any scope to re-determine the land for
which proceedings stand finalised under the Punjab Act. In fact Amar
Singh’s case (supra), while considering the question of re-opening the
surplus area declared under the Punjab Act, concluded as follows :-
” Learned counsel for Ajmer Singh, respondent,
has contended that although the surplus proceedings
against Maru Ram was finalised in the year 1961/1962 but
the possession of the surplus land remained with Ajmer
Singh, respondent, till 1981 when the same was handed
over to the appellant. Simply because the surplus land
declared under the Punjab Act was not utilised and it
remained in possession of Ajmer Singh-respondent would
not make any difference so far as the position in law is
concerned. The language of Section 12(3) is unequivocal
and clear. According to it the surplus land declared under
the Punjab Act stood vested in the State. The non-
utilisation of surplus land till the date of vesting (December
23, 1972) is of no consequence and makes no difference.
The view we have taken is supported by the judgment of
this Court in Smt. Bhagwanti Devi and another v. State of
Haryana and another 1994(1) Scale 861. We, therefore,
allow the appeal, set aside the impugned judgment of
learned single judge of the High Court dated September
23, 1987 and also the order of the Letter Patent Bench
dated November 3, 1987. Civil Writ Petition No.163 of
1986 filed by Ajmer Singh in the High Court stand
dismissed. The appellant shall be entitled to his cost which
we quantify as Rs.11,000/-. Costs to be paid by
respondent-Ajmer Singh.”
LPA No.389 of 2003 -9-
Learned counsel however referred to the Full Bench Judgment
of this Court reported as Jaswant Kaur v. State of Haryana 1977 PLJ 230
to show that the suit land could not vest in the State of Haryana. We are
afraid that the said judgment does not help in the facts of the present case
as the land already stood declared surplus under the Punjab Act and the
proceedings to that effect had become final rather upheld the vires of
Section 12 of the Haryana Act and the Hon’ble Supreme Court in a similar
situation held that this Court had erred in relying on the judgment in
Jaswant Kaur’s case (supra) in a situation, where the proceedings already
stood finalised.
Learned counsel for the respondents, however, cited yet
another judgment of the Hon’ble Supreme Court titled as Jodha Ram vs.
Financial Commissioner, Haryana 1994 PLJ 28 to emphasis his argument
that Section 12 will not affect the transfer in respect of surplus land prior to
30-07-1958 as held above, while discussing the case of Jaswant Kaur
(supra). The said judgment also does not support the argument in the facts
of the present case i.e. the proceedings with respect to the surplus area
having attained finality. In the case of Megh Raj v. Manphool 2008(3)
P.L.R. 331, a Single Bench of this Court while relying on the various
judgments rendered by this Court and the Hon’ble Supreme Court dealt
with similar question after thoroughly examining the facts and legal aspect
in the following terms :-
” A Division Bench of this Court in Dharam Pal and
others v. State of Haryana and others 2002(2) RCR
(Civil) 37: 2002(1) PLJ 188 by relying upon the
aforementioned judgment and after considering the
provisions of Section 8(1)(a) and 12(3) of the Haryana Act,
held that proceedings which have attained finality under
the Punjab Act, cannot be reopened by taking benefit of the
LPA No.389 of 2003 -10-
Haryana Act. Section 8(1)(a) of the Haryana Act, would not,
therefore, entitle a land owner to pray for reopening of an
order of surplus area, passed under the Punjab Act.
As the suit land was already surplus on the
appointed day under the Haryana Act, it vested in the State
of Haryana under Section 12(3) of the Haryana Act, which
provides that lands declared surplus under the Punjab 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. Thus, even if it is presumed
that the suit land had not vested in the joint State of Punjab,
but as it was declared surplus under the Punjab Act, it
vested in the State of Haryana, with the enactment of the
Haryana Act, under the provisions of Section 12(3) of the
Haryana Act. Even otherwise, it would be necessary to
reiterate that neither Ram Rikh nor any of the landowners
ever impugned the correctness of the order declaring the
suit land surplus.”
Another Division Bench of this Court while rendering a
judgment Ghasitu Singh and others v. The State of Haryana and others
2008(4) RCR (Civil)352 in the similar facts as the present in almost, held
that under the circumstances benefit of exemption under Section 8 of 1972
cannot be claimed by the petitioner as land had already been utilised and
allotted under 1953 Act. Thus, we hold that the benefit of Section 8(1) is
only available if the land has still not been declared surplus in the hands of
the landowner. A reading of Section 8(1) and Section 12(2) of the
Haryana Ceiling on Land Holdings Act, 1972 leaves no doubt that the
surplus area cannot be redetermined under Section 8 of the new Act only
on the ground that the surplus area has remained un-utilised as Section
LPA No.389 of 2003 -11-
12(2) of the Act provides that the area declared surplus under the Punjab
Security of Land Tenures Act, 1953, shall deemed to have been vested in
it w.e.f. the appointed date. It is further quite obvious that the protection
under Section 8 will be available only, in case, all valid transfers only if the
proceedings relating to surplus area have not been finalised under the
Punjab Security of Land Tenures Act, 1953, are still pending. In the
present case, although the transfer was way back in the year 1958, the
proceedings relating to surplus area concluded in the year 1966. The
same have not been challenged and have attained finality. Neither any
proceedings under the Punjab Security of Land Tenures Act, 1953 are
pending.
For the reasons recorded here-in-above, the L.P.As are
allowed and the order dated 16-10-2002 passed by the learned Single
Judge is set aside.
(NIRMALJIT KAUR)
JUDGE
(ASHUTOSH MOHUNTA)
JUDGE
February 13, 2009
gurpreet