CWP No.20533 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.20533 of 2006 Date of Decision: 21.9.2010 Nand Kishore .....Petitioner Vs. State of Haryana and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate for the petitioner. Ms. Shruti Jain, AAG, Haryana, for respondents no.1 to 5. Mr. Arun Palli, Sr. Advocate with Mr. Tushar Sharma, Advocate for respondents no.6,7 and 9. .... RAJIVE BHALLA, J The petitioner prays for issuance of a writ in the nature of Certiorari for quashing the orders dated 29.3.1996, 7.1.1997, 11.1.2002 and 1.8.2005, passed by the Sub Divisional Officer (Civil)-cum Prescribed Authority, Narnaul, District Collector, Mahendergarh at Narnaul, the Commissioner (Revenue), Gurgaon Division, Gurgaon and the Financial Commissioner and Secretary, Revenue, Haryana, Chandigarh, respectively. Counsel for the petitioner submits that apart from the fact that private respondents are not the petitioner's tenants, their application for purchase of the land comprising their so called tenancy, filed after repeal of the Pepsu Tenancy and Agricultural Land Act, 1955 (hereinafter referred to CWP No.20533 of 2006 2 as `the Pepsu Act'),was not maintainable. The Prescribed Authority, Narnaul, had no jurisdiction to entertain the application, admittedly filed on 24.5.1993, much less allow the application, as with the repeal of the Pepsu Act by Section 33 of the Haryana Act, such an application is not maintainable under the Pepsu or the Haryana Act. It is further pointed out that as the land in dispute has been reserved by the petitioner as his permissible area, the private respondents cannot be allowed to purchase this land. It is also submitted that though these points were pleaded and specifically urged, the revenue officers have neither adverted to nor adjudicated these points. Counsel for respondents No.6,7 and 9 submits that as private respondents were sitting tenants, their right to purchase the land comprising their tenancy, under Section 22 of the Pepsu Act, cannot be nullified by the repeal of the Pepsu Act. It is further argued that as the right to purchase accrued before the repeal of the Pepsu Act, the application for purchase was maintainable and was rightly allowed. I have heard counsel for the parties and perused the impugned orders. The dispute that falls for adjudication is whether, the right to purchase land comprising tenancy survives after the repeal of the Pepsu Act and if so to what extent. Section 22 of the Pepsu Act enabled a sitting tenant to purchase the land comprising his tenancy. The Pepsu Act has, however, been repealed by Section 33 of the Haryana Act, which reads as follows :- “33. Repeal and saving – (1) The provisions of the Punjab Security of Land Tenures Act, 1953, and the Pepsu Tenancy and Agricultural Lands Act, 1955, which CWP No.20533 of 2006 3 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 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 CWP No.20533 of 2006 4 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.” Section 33 of the Haryana Act, has repealed the Pepsu Act, insofar as its provisions are inconsistent with the provisions of the Haryana Act. The Haryana Act does not contain any statutory provision that empowers a tenant to purchase the land comprising his tenancy. As a consequence, Section 22 of the Pepsu Act would be deemed to have been repealed by the Haryana Act being inconsistent with the provisions of the Haryana Act. Section 33(2)(i) of the Haryana Act, however, provides that any application for purchase pending immediately before the commencement of the Haryana Act shall be disposed of as if the Haryana CWP No.20533 of 2006 5 Act had not been passed. It is, therefore, beyond debate that after the commencement of the Haryana Act, a tenant cannot file an application under Section 22 of the Pepsu Act for purchase of the land comprising his tenancy and only such applications as were pending on the commencement of the Haryana Act shall be decided as if the Haryana Act has not been passed. Admittedly, the Haryana Act came into force on 22.12.1972. The private respondents filed an application, under Section 22 of the Pepsu Act on 24.5.1993. The application filed by private respondents on 24.5.1993, after the commencement of the Haryana Act was not maintainable. The Prescribed Authority had no jurisdiction to entertain the application, much less allow the application. The Commissioner and the Financial Commissioner failed to peruse Section 33 of the Haryana Act or discern that the application for purchase was filed after the repeal of the Pepsu Act. It would be necessary, at this stage to point out that though various other points including the inter-se relationship of landlord and tenant and the status of the petitioner as a big/small land owner have also been adjudicated in the impugned orders, but as the application filed under Section 22 of the Pepsu Act is not maintainable, no opinion is being recorded for or against these findings In view of what has been stated herein above, the writ petition is allowed, the impugned orders are set aside and the application filed under Section 22 of the Pepsu Act is dismissed, as not maintainable. The private respondents would, however,be at liberty to seek their remedy, if any, under the provisions of the Haryana Act, in accordance with law. This order shall CWP No.20533 of 2006 6 not be construed to be an expression of opinion on the inter se relationship of landlord and tenant or the status of the petitioner as a big/small landowner. No order as to costs. 21.9.2010 ( RAJIVE BHALLA ) GS JUDGE