Sarla Devi (Since Died) And Her Lr'S vs State Of Haryana
- Court
- Punjab and Haryana High Court
Sr.No.102
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1. By way of present writ petition filed under Articles 226/227 of
the Constitution of India, the petitioners pray for issuance of a writ in the
nature of certiorari quashing orders dated 10.07.1979 (Annexure P-6) and that
dated 20.03.1980 (Annexure P-7) and that dated 19.04.1982 (Annexure P-8)
passed by the respondent authorities. The petitioners also assail the orders
dated 28.07.1989 (Annexure P-10), 21.04.1992 (Annexure P-11), 05.02.1993
(Annexure P-12) and 13.09.1995 (Annexure P-15).
2. The dispute relates to land declared surplus in the hands of Kallu
Singh under the Punjab Security of Land Tenures Act, 1953 ( hereinafter
referred to as ‘the Punjab Law’ ).
3. As per the pleadings raised in the writ petition, Kallu Singh had
three sons namely Udaibir Singh, Satbir Singh and Manbir Singh. Kallu
Singh by way of Settlement dated 03.09.1953 partitioned his ancestral land.
th
1/4 share each was distributed among Kallu Singh and his three sons out of
the total land. Mutation No.568 was sanctioned by the Assistant Collector
IInd Grade on 06.09.1953 (Annexure P-1) recognizing the family settlement.
Consolidation was carried out in the village in the year 1962-63 and specific
khasra numbers were allotted to the four co-sharers i.e. Kallu Singh and his
three sons.
4. Petitioners claim that Manbir Singh, predecessor-in-interest of
the petitioners, became owner of land measuring 318 Kanals 4 Marlas,
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comprised in Khewat No.100, Khatauni No.111, as per Jamabandi for the year
1962-63 (Annexure P-2).
5. Vide order dated 22.12.1959, the Collector (Agrarian), Jhajjar
declared 52 S.A. 4½ Units as surplus area out of the total land owned by Kallu
Singh as on 15.04.1953 i.e. the date of commencement of the Punjab Law.
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As per petitioners, even though Manbir Singh was recorded as owner of 1/4
share of the total land since 06.09.1953, yet no notice was served upon him
before passing of order dated 22.12.1959. Circle Revenue Officer, Jhajjar
vide order dated 09.11.1967 (Annexure P-3) specified permissible/reserved
area for Kallu Singh and the surplus area. Against order dated 09.11.1967
(Annexure P-3) passed by the Circle Revenue Officer, Jhajjar, Satbir Singh,
one of the sons of Kallu Singh, preferred appeal before the Collector, Jhajjar.
On an appeal preferred by Satbir Singh, order dated 09.11.1967 (Annexure
P-3) was modified. Kallu Singh filed an application (Annexure P-5) before
the Collector Agrarian, Jhajjar seeking review of orders dated 22.12.1959 and
09.11.1967. Application filed by Kallu Singh was dismissed vide impugned
order dated 10.07.1979 (Annexure P-6). Kallu Singh unsuccessfully assailed
the order (Annexure P-6) in appeal before the Divisional Commissioner and
further in revision before the Financial Commissioner. Impugned orders
passed by the Divisional Commissioner and Financial Commissioner are on
record as Annexures P-7 and P-8.
6. Kallu Singh died on 09.03.1982.
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7. After Kallu Singh failed in his attempt to seek review of orders
passed by the authorities declaring his land surplus, Manbir Singh – the
predecessor-in-interest of the petitioners, approached the Collector, Agrarian
by filing application dated 24.11.1986 (Annexure P-9), whereby he sought
protection under Section 8 of the Haryana Ceiling on Land Holdings Act,
1972 ( hereinafter referred to as ‘1972 Act’ ) and sought exemption of land
which had fallen to his share from being declared surplus by relying upon
transfer in his favour by way of Family Settlement dated 03.09.1953 i.e. prior
to 30.07.1958 i.e. the date mentioned under Section 8(1) of 1972 Act. The
application filed by Manbir Singh was dismissed by the Prescribed Authority
vide order dated 22.02.1988. Prior thereto, Manbir Singh died on 06.01.1988.
8. The present petitioners preferred an appeal. The Collector,
Rohtak vide order dated 27.12.1988 remanded the matter to the Prescribed
Authority for fresh decision acknowledging the fact of death of Manbir Singh
prior to passing of order dated 22.02.1988. Prescribed Authority vide
impugned order dated 28.07.1989 (Annexure P-10) rejected the application
filed by Manbir Singh. Aggrieved by the order (Annexure P-10), the
petitioners preferred an appeal before the Collector, Rohtak, which stands
dismissed vide impugned order dated 21.04.1992 (Annexure P-11).
9. Petitioners approached the Commissioner, Rohtak Division by
filing revision, which also stands dismissed vide impugned order dated
05.02.1993 (Annexure P-12). The order (Annexure P-12) has been further
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affirmed by the Financial Commissioner vide impugned order dated
13.09.1995 (Annexure P-15).
10. Petitioners are before this Court assailing the aforesaid orders
passed by the authorities. The contention raised by the petitioners is based
upon Family Settlement dated 03.09.1953 reflected in Mutation dated
06.09.1953 (Annexure P-1). Relying upon the mutation, the petitioners claim
that the land already transferred by Kallu Singh to his sons including their
predecessor-in-interest Manbir Singh, ought not have been declared surplus.
Reliance has been placed upon the provision contained in Section 8(1)(a) of
1972 Act to claim that the transfers made before 30.07.1958 are saved.
11. Mr. Mamli, counsel for the petitioners, in order to hammer-forth
his contention relies upon the ratio of law laid down by Full Bench of this
Court in Smt. Jaswant Kaur and another vs. State of Haryana and another,
1977 PLJ 230 and further relies upon the judgment of the Division Bench of
this Court passed in LPA No.77 of 2013, titled as Ram Karam and another
vs. State of Haryana and others, decided on 30.07.2013 , based upon the ratio
of law laid down in Jaswant Kaur’s case (ibid) . He further relies upon order
dated 16.10.2025 passed by Additional Civil Judge (Sr. Division), Jhajjar in
an application under Order 39 Rules 1 & 2 CPC, titled as Parmod Kumar vs.
Mahesh etc., in which he claims that possession of the petitioners stands
acknowledged and recognized by the Civil Court. Further reliance is being
placed upon the Full Bench judgment of this Court in the matter of State of
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Haryana and others vs. Vinod Kumar and others, 1986 AIR P&H 407 ,
wherein this Court observed that where no opportunity of hearing was given
to the landowners as envisaged by Rule 6 of the Punjab Security of Land
Tenures Rules, 1956 prior to the Collector declaring the land as surplus, the
order is a nullity and the landowners can maintain civil suit to challenge the
validity of such order. Further reliance has been placed on judgment rendered
by the Coordinate Bench in Nanak Singh vs. State of Haryana, passed in
CWP No.3883 of 1986, decided on 06.09.1991 , whereby the Single Bench of
this Court followed the ratio of law laid down by Full Bench in Vinod
Kumar’s case (ibid) to hold that the landowners must be given opportunity of
hearing by Collector while declaring land as surplus.
12. Per contra, learned Senior Counsel appearing on behalf of
respondent No.7 would submit that the land in question already stood utilized
prior to coming into operation of 1972 Act. The possession of the surplus
land was handed over to the allottees in the year 1971 and thus, the 1972 Act
will not be applicable. He submits that prior to the filing of the present writ
petition on 13.09.1995, the land in question was the subject matter of Civil
Suit No.1232 of 1990, instituted on 31.10.1990 by the vendors under Manbir
Singh, titled as Prabhu Dayal vs. Amar Singh . The same was decided vide
judgment and decree dated 16.10.1995 (Annexure R-7/1). The factum of
filing of the said suit was concealed by the petitioners from this Court. One
of the issues on which the civil suit was tried, was qua order of surplus and
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the further allotment. The Civil Court, after analyzing the evidence, found
that the predecessor-in-interest of the private respondent namely Jagdish was
put in possession of land vide Roznamcha under order dated 20.04.1971 and
that respondents are owner in possession of suit land. Prabhu Dayal (plaintiff)
preferred appeal against the judgment and decree dated 16.10.1995. The
appeal was dismissed by the Additional District Judge, Jhajjar vide judgment
and decree dated 03.05.1999 (Annexure R-7/2). No further appeal was filed.
Thus, the aforesaid judgments and decrees (Annexures R-7/1 and R-7/2)
having attained finality, the plea raised by the petitioners has no legs to stand.
13. Learned Senior Counsel appearing for respondent No.7 further
submits that Kallu Singh during his lifetime assailed the order declaring his
land surplus by filing a review. The review application was dismissed and the
order was affirmed in appeal and in revision. He thus submits that the
petitioners cannot be allowed to reagitate the issue, which already stands
concluded in earlier rounds of litigation.
14. I have heard counsel and learned senior counsel for the parties
and have carefully gone through the records of the case.
15. The facts are not much in dispute. The Punjab Law came into
operation w.e.f. 15.04.1953. Section 6 of the Punjab Law reads as under:-
“6. No transfer of land, except a bona fide sale or mortgage with
possession or a transfer resulting from inheritance, made after
the 15th August, 1947 and before the 2nd February, 1955, shall
affect the rights of the tenant on such land under this Act.”
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16. Section 6 of the Punjab Law saves bona fide sale or mortgage
with possession or a transfer resulting from inheritance made before
02.02.1955. The settlement claimed by petitioners on 03.09.1953 does not
fall within the ambit of the transfers saved by Section 6 of the Punjab Law.
Accordingly, the same was ignored by the Prescribed Authority while
declaring surplus land in the hands of Kallu Singh as on 15.04.1953. Part of
the surplus land was further allotted to the tenants including Jagdish son of
Maman, the predecessor-in-interest of the private respondent.
17. Para 17 of the written statement filed on behalf of respondent
Nos.1 to 6 reads as under:-
“That para no.17 is admitted up to the extent that Manbir Singh
filed an application on dated 24.11.1986. Rest of the para is
wrong and denied. The same application was dismissed by the
learned Court. All the surplus proceedings were taken on
account of the Punjab Security of Land Tenures Act, 1953. The
land was allotted to 21 persons or more as per record and as per
order of learned Circle Revenue Officer dated 31.01.1968 and
possession was also delivered as per Rapat Rojnamcha No.361
to 368 to the allottees dated 12.06.1971. Much before filing of
the said application by Manbir Singh even otherwise he had no
locus standi to file the said application. The report of Rapat
Rojnamcha No.361 to 368 are attached as Annexure R-1/A to
R-I/H. The details of allotment and possession is given below:-
1- Maman s/o Singha resident of village Machrauli, total land
134 Kanal 16 Marlas.
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2- Ramu s/o Neki s/o Kishan Lal, resident of village Patsani,
total land 80 Kanal 8 Marlas.
3- Dhupal s/o Sehaj Ram resident of village Machrauli, total
land 4 Kanals 0 Marlas.
4- Mansha s/o Umrao Singh s/o Harna resident of village
Bhatera, 16 Kanal 16 Marlas.
5- Bakhtawar s/o Sukh Dev resident of village Bathera, total
land 44 Kanal 9 Marlas.
6- Badlu, Jai Lal, Sunder Lal, sons of Shri Bihari, r/o Bhatera,
total land 79 Kanal 8 Marlas.
7- Nanak Chand s/o Kanhiya Lal r/o Machrauli, total land 58
Kanal 12 Marlas.
8- Jagdish s/o Maman r/o Machrauli, total land 81 Kanal 5
Marlas.
xxx xxxx xxxx”
18. A copy of the Rapat Roznamcha, as per which the possession of
land measuring 81 Kanals 5 Marlas was delivered to the allottee/tenant
Jagdish son of Maman, has been placed on record as Annexure R-1/E.
Though the petitioners have controverted the same by filing a replication and
have relied upon various orders in the contempt proceedings and in the
petition filed under Section 482 Cr.P.C. seeking quashing of FIR. However,
the counsel for the petitioners is not in a position to dispute that in Civil Suit
No.1230/1990, decided vide order dated 16.10.1995, one of the issues framed
by the Civil Court reads as under:-
“2. Whether the suit land was allotted to one Jagdish who sold
the same to the defendant on 31.05.1990 and the said sale is
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illegal, null void and not binding on the plaintiff as the surplus
allotment order dated 25.04.1988 and the mutation thereon vide
mutation No.1702 dated 31.05.1990 are illegal, null, void and
not binding on the rights of the plaintiff as alleged? OPP.”
19. The Civil Court after analyzing the evidence, returned the
following findings:-
“18. The evidence brought on record shows that after
declaration of the land surplus in the hands of Kallu his heirs had
challenged the surplus order as well as the subsequent order of
allotment but they were not successful. The order of surplus and
consequent allotment is perfectly legal and valid and bindings in
the eyes of law. Manbir Singh had transferred the suit land vide
sale deed dated 24.09.1985 in favour of the plaintiff in order to
take undue benefit of the wrong entries recorded in his
(Manbir’s) favour. Mutation No.1501 (Ex.13) was also wrongly
sanctioned and attested in favour of the plaintiff and his name
was also recorded in the column of owner-ship and cultivation in
the Jamabandi for the year 1986-87 (Ex. P2). This accordingly
shows that revenue authorities have also not acted in accordance
with law. They have not updated the revenue record. Had the
revenue authority acted with due care and precaution in keeping
the revenue record updated then it would not allowed Manbir
Singh and now the present plaintiff to have DIM, misuse wrong
entries. The present plaintiff has colluded with Manbir Singh in
order to usurp the suit land and for creating further technicalities
then Manbir Singh etc. and his heirs were not successful in
challenging the order of surplus and allotment of the surplus
land. The present plaint has been cleverly drafted because the
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plaintiff has filed a suit for permanent injunction on the basis of
entries in the jamabandi as he claims to have purchased the suit
land from Manbir Singh vide sale deed dated 24.09.1995. The
plaintiff has tacitly challenged the surplus order and the
allotment order and also the mutation, which was sanctioned and
tested in favour of the State Govt. and the subsequent allotment.
However, the plaintiff was not having any locus standi to
challenged the order if the present suit is decreed that through
backdoor it will effect in making surplus order & allotment order
nugatory, which is unwarranted of surplus and its subsequent
allotment. The impugned order and the mutations are also not
tendered in evidence by the plaintiff. The plaintiff has also not
appeared in the witness box. It accordingly shows that the
plaintiff has tried to misuse the forum of Civil Court. As far as
the sale deed dated 24.09.1985 is concerned, it is illegal, null and
void because Manbir Singh was having no right, title or interest
in respect of the suit land and therefore he was not in position to
transfer the suit land in favour of the plaintiff. However, the
plaintiff shall be entitled to claim back the sale consideration
from Manbir Singh in accordance with law. The sale deed dated
24.09.1985 as well as entries in favour of Manbir Singh and
Prabhu Dayal after the passing of surplus order and the
allotment of the suit land are illegal, null and void and
accordingly set aside. The evidence brought on record shows that
the suit land was declared surplus in the hands of Kallu and
therefore it vested in Haryana Govt. and it was allotted to
Jagdish, who had sold the suit land in favour of the defendant is
legal and absolute owner in possession of the suit land. Hence,
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issue no.1 and 2 are decided in favour of the defendant and
against the plaintiff.”
20. The aforesaid findings were affirmed by the First Appellate
Court. No further appeal was preferred.
21. Reliance on Section 8 of 1972 Act by the counsel for the
petitioners is misplaced. In order to appreciate rival contentions, it would be
apt to peruse Sections 8, 12 and 33 of 1972 Act :-
“ 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 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
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.
(2) The burden of proving the transfer or disposition to be a bona
fide one shall be on the transferor.
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(3) If any person transfers or dispossess 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 of the area left with
him after such transfer is equal to the surplus area so calculated,
the entire area left with him shall be deemed to be the surplus
area. If the area left with him is less than 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
proportion to the land transferred or disposed of to them.
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 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, rights shall be deemed to have
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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 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.
(4) For the purposes 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.
33. Repeal and savings.
(1) The provisions of the Punjab Security of Land Tenures Act,
1953, and the Pepsu Tenancy and Agricultural Lands Act, 1955,
which are inconsistent with the provisions of this Act are hereby
repealed.
(2) The repeal of the provisions of the enactments mentioned in
sub-section (1), hereinafter referred to as the said enactments,
shall not affect –
(i) the applications for the purchase of land under section 18 of
the Punjab Law or section 22 of the Pepsu Law, as the case may
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be, pending immediately before the commencement of this Act,
which shall be disposed of as if this Act had not been passed;
(ii) the proceedings for the determination of the surplus area
pending immediately before the commencement of this Act, under
the provisions of either of the said enactments, which shall be
continued and disposed of as if this Act had not been passed, and
the surplus area so determined shall vest in, and be utilised by,
the State Government in accordance with the provisions of this
Act;
(iii) the revisional power of the Financial Commissioner under
section 24 of the Punjab law or under sub-section (3) of section
39 of the Pepsu law, as the case may be, shall be exercised as if
this Act had not been passed; and the area declared surplus in
exercise of such revisional power shall vest in, and be utilized
by, the State Government in accordance with the provisions of
this Act;
(iv) the power exercisable under section 5-C of the Punjab law or
under section 32-BB of the Pepsu law, as the case may be, shall
be exercised as if this Act had not been passed; and the area
determined surplus in exercise of such power shall vest in, and
be utilised by, the State Government in accordance with the
provisions of this Act :
Provided that the powers of the Pepsu Land Commission
under the Pepsu law shall vest in, and be exercised by, the
Collector of the district concerned.
(3) Save as provided in sub-section (2), no authority shall pass an
order in any proceedings whether instituted before or after the
commencement of this Act which is inconsistent with the
provisions of this Act.
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22. A bare perusal of Section 8 of 1972 Act would reveal that the
same explicitly saves land acquired by a tenant under the Pepsu Law or the
Punjab Law. In the present case, Jagdish who was tenant over the land in
dispute, was allotted land under Punjab Law and thus acquisition of interest
in the surplus land by Jagdish does not fall within the mischief of Section 8.
The same is also saved under Section 33(2) of 1972 Act. Reliance placed by
the counsel for the petitioners on the ratio of law laid down in Jaswant Kaur’s
case (ibid) is the result of a misreading of the judgment. In Jaswant Kaur’s
case (ibid) , the Court was dealing with a perceived conflict between Section
8(1) and Section 12(3) of 1972 Act. The following observations made by the
Full Bench in Jaswant Kaur’s case (ibid) make the picture explicitly clear: -
“xxxx xxxx xxxx
7. Coming now 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 with 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 Government under any law for the
time being in force or by a tenant under the Pepsu law or
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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 8 . It was said that while
Section 4(1) provided for the determination of the permissible
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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 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 Government. 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 30-7-1958 {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 first impression to be inconsistent with the provisions of
Section 12 (3) but, as we said earlier, it is our first 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
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of the Act. Section 8 has not been repealed expressly, by Section
12(3) of the Act, nor 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 amendment by Act XVII of 1976.
By Section 1 (2) of the 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 (LA)-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, 11972. Only such
unutilized surplus area which was not purchased by the
eligible tenants/persons under the Punjab Law or Pepsu
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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/ 33389, dated 29-10-1976
it is said, "It has come to the notice of the Government that there
is some lack of 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
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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.
xxxx xxxx xxxx”
23. In Jaswant Kaur’s case (ibid) , the Full Bench specifically
noticed that transfers in the form of land acquired by the Union Government
or State 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, is
specifically saved from the operation of Section 8(1) of 1972 Act.
24. In view of above, this Court finds that the ratio of law laid down
by Full Bench in Jaswant Kaur’s case (ibid) and the other precedents
following the same, does not advance the cause of the petitioners. The surplus
land in the hands of Kallu Singh was declared surplus under the Punjab Law
considering his holding as on 15.04.1953. The transfer by way of settlement
dated 03.09.1953 does not fall within the saving clause as contemplated under
Section 6 of the Punjab Law and was thus rightly ignored by the Prescribed
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Authority. Kallu Singh during his lifetime assailed the orders of declaration
of surplus area and determination thereof by filing review application. The
same was dismissed. Concededly, one of the sons of Kallu Singh namely
Satbir Singh sought modification. Manbir Singh, predecessor-in-interest of
the petitioners, remained a fence sitter and never asserted his right as owner.
The land declared surplus, including the land in dispute, was allotted to tenants
under the Punjab Law. Possession to the allottees was delivered prior to
enactment of 1972 Act. The land in question being a surplus area acquired by
a tenant under Punjab Law is specifically saved under Section 8(1)(a) of 1972
Act. The respondents have been held to be in possession by the Civil Court
in a civil suit filed by a successor-in-interest of Manbir Singh. The findings
recorded by the Civil Court have attained finality.
25. In view thereof, this Court finds no merit in the present writ
petition. The same is ordered to be dismissed .
Pending application(s), if any, shall also stand disposed off.
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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