In the High Court of Punjab and Haryana, Chandigarh L.P.A. No. 147 of 2005 Date of Decision: February 17, 2009 State of Haryana and others …Appellants Versus Ram Chander and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE H.S. BHALLA Present: Mr. Sanjeev Kaushik, Addl. AG, Haryana for the appellants. Mr. Bhoop Singh, Advocate, for respondent Nos. 1 to 3. Mr. Ram Pal Verma, Advocate, for respondent Nos. 4 & 5. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. The State of Haryana is in appeal under Clause X of the Letters Patent against judgment dated 3.11.2004, passed by the learned Single Judge in C.W.P. No. 1827 of 1986. The learned Single Judge has allowed the writ petition by setting aside order dated 12.9.1984 passed by the Commissioner, Hisar Division (P-3) and order dated 5.3.1986, passed by the Financial Commissioner, Haryana (P-4). As a consequence of quashing of the aforesaid orders, learned Single Judge has upheld the orders dated 23.11.1979 (P-1) and L.P.A. No. 147 of 2005 17.11.1981 (P-2) passed by the Prescribed Authority-cum-Sub Divisional Officer (Civil), Jind and the Collector, Jind respectively. 2. Brief facts of the case are that vide order dated 19.6.1963, the Special Collector (Agrarian) Punjab, declared the area measuring 311 Kanals 19 Marlas as surplus in the hands of Rulia- predecessor in interest of the present respondents (who are sons and grand sons of the land owner). It is pertinent to mention that one Dharam Singh, had filed separate petition under Section 12 of the Haryana Ceiling of Land Holdings Act, 1972 (for brevity, ‘the Ceiling Act’) for exemption of the said land from surplus pool as they have claimed to have purchased/pre-empted the land before 30.7.1958 and have also claimed to be in possession ever since. The Prescribed Authority-cum-Sub Divisional Officer (Civil) Jind, examined the record and granted exemption to the petitioner-respondents vide order dated 23.11.1979. On an appeal filed by the allottees, the order of the Prescribed Authority was upheld by the Collector on 17.11.1981 (P- 2) on the ground that the appeal was barred by limitation. They further filed a revision petition under Section 18(4) of the Ceiling Act and their contention was accepted and the order of the Collector was set aside by observing as under:- “6. I have heard the arguments of both the parties and I have also perused the record. While deciding the surplus case of Rulia Land-owner, the Special Collector vide his order dated 19.6.63 rejected the objection raised by him to the effect that he has sold some land to Charan Singh etc. These orders were challenged in the High Court vide writ petition which was dismissed on 2 L.P.A. No. 147 of 2005 30.8.1979 because the sale of the disputed land was not considered to the proper and the High Court dismissed the writ petition regarding be (the?) same. Therefore, the Prescribed Authority ought to have not given the beneft of selling this land and getting the decree by way of pre- emption suit to Respondent Nos. 2 to 4. If the respondent No. 2 to 4 were aggrieved by the order of the Special Collector dated 19.6.63, then they should have challenged that order at proper time and at proper level. But they did not do so. The land in dispute was allotted to the tenants which includes the appellant on 26.6.68, and the possession of the same was given to them, as is apparent from the Rapat Roznamcha Waqyati dated 26.6.68. Therefore this land the(?) has vested in the State after coming into force of the Haryana Ceiling on land Holding Act. The appellants should have been made the parties before the Prescribed Authority because Respondent No. 2 to 4 must have got the knowledge of the delivery of possession to the appellants. The Prescribed Authority while announcing the order has not heard the State while it was essential as the State was made a party. On the basis of the above mentioned facts, the order of the Prescribed Authority dated 23.11.1979 is not legally correct. The appeal preferred against this order ought to have been decided keeping in view all the above mentioned facts which have not been done. 3 L.P.A. No. 147 of 2005 Therefore, I am unable to accept the order of the Collector dated 17.11.81 as correct.” 3. The petitioner-respondents challenged the order of the Commissioner, Hisar Division before the Financial Commissioner, who upheld the same and declared that the petitioners were not entitled to exclude any area from the surplus pool. 4. The short issue raised in the instant appeal is whether the transaction which has taken place before specified date i.e. 30.7.1958 would be hit by the provisions of the Pepsu Tenancy and Agricultural Lands, Act, 1955 (for brevity, ‘the Pepsu Act’). 5. The learned Single Judge took notice of the fact that the suit land was sold by original owner Rulia to Dharam Singh, resident of Budha Khera, and Sant Lal, vide two sale deeds dated 29.11.1957. The petitioner-respondents alongwith Dharam Singh son of Ram Sarup son of Rulia had filed a civil suit for possession by way of pre- emption, which was decreed in their favour by learned Sub Judge Ist Class, vide judgment and decree dated 31.12.1957. Even mutation was sanctioned in their favour. The learned Single Judge placed reliance on Section 8(1)(a) of the Ceiling Act to conclude that no transfer or disposition of land in excess of the permissible area was to affect the rights of the Government except for the transfer or disposition, which are bona fide and have been made on or before 30.7.1958. The registered sale deeds having been made on 29.11.1957 were found to have transferred the land before the specified date. Learned Single Judge also examined the provisions of Section 12(3) of the Ceiling Act and rejected the argument advanced on behalf of the allottees/tenants holding that there is no conflict 4 L.P.A. No. 147 of 2005 between Section 8(1) and 12(3) of the Ceiling Act and both these sections are part of the general scheme of the Ceiling Act. In that regard, learned Single Judge placed reliance on a 5 Judge Bench judgment of this Court rendered in the case of Smt. Jaswant Kaur v. State of Haryana, 1977 PLJ 230. A categorical reference was made to the decree dated 31.12.1957 passed by the learned Sub Judge Ist Class. He has further proceeded to record the finding that the petitioner-respondents were in possession of the suit land ever since the mutation was sanctioned in their favour on the basis of the decree dated 31.12.1957. 6. The findings recorded by the Commissioner and Financial Commissioner in their orders dated 12.9.1944 (P-3) and 5.3.1986 (P-4) that the possession of the suit land stood delivered to the tenants-allottees on 26.6.1968 were set aside by the learned Single Judge by holding as under:- “Roznamcha Waqyati dated 26.6.1968 d not hold good. Even in their appeal, the said respondents never made any averment to the effect that they were in possession of the suit land. The only averment made by them is that the suit land was allotted to them. On the other hand, the possession of the petitioners stood amply proved by the Jamabandi and khasra Girdawari for the year 1970-71, which is a part of the record and which shows that the petitioners are in cultivation possession of the suit land. Now only this, the Jamabandi of the year 1980-81, a copy of which is annexed with this petition as Annexure P8, also shows that the petitioners along with Dharam 5 L.P.A. No. 147 of 2005 Singh son of Ram Sarup son of Rulia are the owners and in cultivating possession of the suit land. Mere entry in the Rapat Roznamcha Waqyati dated 26.6.1968 does not put respondent Nos. 6 and 7 in possession thereof. It is nowhere case of these respondents that they have forcibly been evicted from their possession by the petitioners.” 7. We have heard learned counsel for the parties and have perused the record with their able assistance. In order to appreciate the controversy raised, it would be necessary to analyse the provisions of Sections 8(1) and 12(3) of the Ceiling Act, which reads thus:- SECTION 8(1) OF THE CEILING 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 20th day of July, 1958; and (b) the permissible area under this Act, except a bona fide transfer, or disposition after the appointed day, 6 L.P.A. No. 147 of 2005 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. SECTION 12(3) OF THE CEILING ACT “12. Vesting of surplus area.- (1) & (2) xxx xxx xxx (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) xxx xxx xxx” 8. A perusal of Section 8(1) would show that the transfer or disposition of the land in excess of the permissible area under the Pepsu Law or the Punjab Law made after 20.7.1958 would not be saved. In other words, any transfer or disposition of land effected before the specified date has to be saved and excluded from the 7 L.P.A. No. 147 of 2005 surplus area. The transfer and disposition made after the specified date would be regarded as surplus land. 9. Section 8(1) and Section 12(3) of the Ceiling Act came up for consideration before a 5 Judge Bench of this Court in the case of Jaswant Kaur (supra). The Full Bench came to the conclusion that both these sections were not irreconcilable and fit well into the general scheme of the Ceiling Act and went on to observe as under:- “”8. The provisions of sections 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 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 sections 8 and 12(3) would be to give full effect to section 8(1) upto 23.12.1972, that is to say, to exclude from the operation of section 12(3), the transfers made upto 23.12.1972 which are protected by section 8(1) of the Act, namely, (1) acquisition of land by the State or 8 L.P.A. No. 147 of 2005 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 sections 8 and 12(3) should not be construed in this harmonious manner so as to give effect to both the provisions. ……” 10. The Full Bench also placed reliance on Memo. No. 6632-AR(II)-76/33309, dated 29.10.1976, which fully support the case of the petitioner-respondents and reads thus:- “ 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 land-owners before 30.7.1958, shall not vest in the State Government under section 12(3) of the Haryana Ceiling on Land Holdings 9 L.P.A. No. 147 of 2005 Act, 1972, and therefore, such area cannot be utilized in accordance with the Utilization of Surplus and Other Areas Scheme, 1976.” 11. In the present case the transfer to the extent of 64 bighas was made by the big land owner, namely, Rulia (who is the father of the petitioner-respondents) vide transfer deed dated 29.11.1957, to Dharam Singh and Sant Lal and the petitioner-respondents who are sons of Rulia asserted their right of pre-emption and a decree dated 31.12.1957 was passed in their favour upholding their rights. In accordance with the decree, mutation has been entered in their names. It is, thus, evident that the whole transaction has taken place in the year 1957 and there is no evidence on record for us to conclude that there was any lack of bona fide. The prohibition craved out in law by virtue of Section 8 read with Section 12(3) of the Ceiling Act as well as Memo. dated 29.10.1976 is only with regard to transfers and disposition of land in excess of the permissible area under the old acts like the Pepsu Act, after the specified date of 30.7.1958. But it protects the transfers made before that date, which have been regularised by law. For the aforementioned proposition, reliance may be placed on Section 32-E and 32-F of the Pepsu Act, which was subject matter of consideration of Hon’ble the Supreme Court in the case of Ujjagar Singh (dead) by L. Rs. v. The Collector, Bhatinda, (1996) 5 SCC 14. It has been categorically held while interpreting Section 32-E and 32-F of the Pepsu Act that the surplus area would vest in the State and the title to it would extinguish only if possession of the surplus area is taken before the coming into force of the Punjab 10 L.P.A. No. 147 of 2005 Land Reforms Act, 1972, which in this regard is pari-materia to the Ceiling Act. 12. It is also pertinent to notice that any declaration made under the Pepsu Act declaring the surplus area was not to vest in the State until and unless the possession of the surplus area was taken by the State. In the present case, categorical findings have been recorded by the learned Single Judge that the possession of the land has continued with the petitioner-respondents and one stray entry in the roznamcha waqyati dated 26.6.1968 would not displace clinching evidence brought on record by the petitioner-respondents. Therefore, it has to be concluded that the land did not vest in the State as the possession continues to be with the petitioner-respondents. 13. We sought one clarification from the learned counsel for the petitioner-respondents as to how the question of surplus area could be re-opened once the rights of their father Rulia were determined in C.W.P. No. 2657 of 1968, which was filed by him and the same was dismissed on 30.8.1979. We are satisfied with the explanation tendered by the learned counsel for the petitioner- respondents who stated that the petitioner-respondents did not approach this Court in their capacity as successor or having inherited the land but on account of the decree of pre-emption in their favour passed by the Civil Court on 31.12.1957. He has further explained that the land to the extent of 64 bighas was sold by their father to Dharam Singh and Sant Lal by registered sale deed dated 29.11.1957 and their right of pre-emption was upheld by the judgment and decree dated 31.12.1957. The declaration of surplus made on 10.6.1963 would not affect the right of the petitioner-respondents to the extent 11 L.P.A. No. 147 of 2005 the decree of pre-emption has been passed in their favour on 31.12.1957, which is a transaction before the specified date which is fixed as 30.7.1958. We are satisfied with the explanation tendered. One small doubt was raised by the reading of order dated 30.8.1979 (R-1). The particulars of the petitioner in that case have been given as if Ram Chand son of Rulia had filed the petition, whereas on the perusal of the report from the office we find that the writ petition, in fact, was filed by Rulia. We have further observed that in Annexure R-1, even the writ petition number has not been correctly given. The correct number of the writ petition as already noticed above is C.W.P. No. 2657 of 1968 and the correct copy of the order dated 30.8.1979 is taken on record as Mark ‘A’. 14. For the reasons aforementioned this appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (H.S. BHALLA) February 17, 2009 JUDGE Pkapoor 12