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