C.W.P.No.11002 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.No.11002 of 1989 Date of Decision: 03.05.2011 Gopal Krishan .....Petitioner Vs. State of Haryana and others ......Respondents CORAM : HON'BLE MR.JUSTICE K. KANNAN **** Present : Mr. C.B. Goel, Advocate and Mr. Nitin Jain, Advocate for the petitioner. Mr.S.S. Goripuria, DAG, Haryana. .... K. KANNAN J (Oral) 1. The writ petition challenges the decision of the Financial Commissioner treating certain properties as falling in the surplus area. The petitioners contend that there had been sale of the property subsequent to the appointed date, which fell on 2.12.1972 under Haryana Ceiling on Land Holdings Act, 1972. The Financial Commissioner held that the petitioner had not been able to show any ruling, which exempted bonafide sale after 1972 from the holding of the land for the purpose of calculation of surplus area under the Haryana Ceiling on Land Holdings Act. In my view, the impugned order suffers from the vice of not applying Section 8 in its proper perspective. Section 8 of the Haryana Ceiling on Land Holdings Act reads as follows :- “8. Certain transfers (or dispositions) not to affect surplus area - C.W.P.No.11002 of 1989 2 (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 bonafide 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 advance 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 bonafide one shall be on the transferor. (3) If any person transfers (or disposes 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 (or disposition of) is equal to the surplus area so calculated, the entire C.W.P.No.11002 of 1989 3 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 proposition to the land transferred (or disposed of) to them.” 2. Section 8(2) places a burden of proof of transfer to be a bonafide on the transferor or himself. Sub-section (3) states that if any person transfers or disposes of any land after the appointed date, the land so transferred shall be deemed to be held by that person in calculating the permissible area. Section 8 must be read in conjunction with Section 12, which refers to the vesting of surplus area. A Full Bench of this court has held in Jaswant Kaur and others Vs. State of Haryana, reported in AIR 1977 (Punjab) 221 that there exists no conflict between Section 8 and the provision of Section 12, which, in the context of Section 12 Clause(3), dealt with the area, which is declared surplus and the tenants permissible area under the Punjab law and the area declared surplus under the Pepsu law, which has not so far vested, but it would be deemed to have been vested in the State Government, with effect from the appointed day. 3. Section 8 must be understood in such a way that if a C.W.P.No.11002 of 1989 4 particular property is sought to be excluded from the holding by pointing out to some sale effect subsequent to the appointed day, it should be shown by the owner that it was a bonafide transfer. The contention was, therefore, that the property was transferred for bonafide reason such as in this case, the owner was trying to point out that the property was already held in the hands of the tenant and the sale to him was at the persistence of the tenant. Therefore, the authority could not take a decision without giving a finding as regards the bonafides of the sale. In my view, it was imperative that the prescribed authority entered a finding that the sale was not bonafide and that the owner had not established his bonafides. An assumption that all sales subsequent to the appointed day could mean violence to grains of Section 8 itself. The decision taken by the authority cannot, therefore, be sustained. However, I find that the authority has not dealt with the issues of bonafide, which would be examined in the context of an explanation, which the owner was trying to proffer. The impugned orders are set aside and remitted to the prescribed authority, Gurgaon, who is arrayed as respondent no.5 for due consideration of the issue involved in the writ. The writ petition is disposed of as above. 3.5.2011 ( K. KANNAN ) GS JUDGE