CIVIL WRIT PETITION NO.1911 OF 1985 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 22, 2009 Uttam Chand and others .....Petitioners VERSUS Financnial Commissioner, Haryana, Chandigarh etc. ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Som Nath Saini, Advocate for the petitioners. Mr. Yashwinder Singh, AAG, Haryana for the State. **** RANJIT SINGH, J. The petitioners have filed this writ petition for quashing of the orders Annexures P-2, P-3, P-4 and P-6. Uttam Chand, Petitioner No. 1, was allotted 150 standard acres 13 ¼ units of land in village Jund, District Karnal being a displaced person in lieu of land abandoned by him in West Pakistan. Collector Agrarian, Karnal vide his order dated 17.6.1962, declared land measuring 83 standard acres, 13 ¼ units of his land as surplus. 50 standards acres of land as noted by the said petitioner was CIVIL WRIT PETITION NO.1911 OF 1985 :{ 2 }: allowed as his permissible area. 24 standard acres, 12 units was determined as tenants permissible area. On 3.6.1978, petitioner No.1 submitted an application under Section 8 of the Haryana Ceiling of Land Holdings Act, 1972 (for short, “the Ceiling Act”) before the prescribed authority, pleading that he had transferred 95 standard acres of land to his son on 4.1.1957 i.e. prior to 30.7.2008. Petitioner No.1 accordingly prayed that transfer of land being prior to 30.7.1958 would be exempted from the surplus pool being saved by Section 8 (1) of the Ceiling Act. Prescribed authority vide his order dated 3.7.1978 allowed this application and also cancelled the allotment order issued in respect of this land and directed that form US 3 already issued be recalled back. Aggrieved against this order the tenant-respondent filed an appeal before the Collector who accepted the same on 21.3.1979. Collector remanded the case back for fresh decision after hearing all the interested parties. After hearing the case on remand, the prescribed authority dismissed the application filed by petitioner No.1 and refused to give him benefit on the ground that US 3 Form had been issued in favour of the tenants-respondents. Copy of this order is annexed with the petition as Annexure P-2. Now it was turn of the petitioner No.1 to file an appeal against the order passed by the Collector which he did but the same was rejected on 28.12.1981. This order was upheld by the Commissioner vide his order dated 20.7.1983. Thereafter petitioner No.1 alongwith his sons and wife filed a revision before the Financial Commissioner pleading that the land transferred prior to 30.7.1958 was saved and not available for utilisation. The Financial Commissioner rejected the revision filed by CIVIL WRIT PETITION NO.1911 OF 1985 :{ 3 }: the petitioner on 5.12.1984. The petitioner has now impugned all these orders passed by various authorities. Notice of motion in this case was issued on 17.4.1985. After filing the written statement, the writ petition was admitted on 31.7.1985 and has now come up for hearing. Written statement on behalf of the State as well as private respondents has been filed. The facts as pleaded in the writ petition have not been disputed. However, the State has justified the impugned order passed by the authorities being in conformity with the provisions of the Ceiling Act. It is also mentioned in the reply that the judgment relied upon by the petitioners are not attracted to the facts of the present case as the land in dispute was utilised in the year 1963 and 1965 much before the commencement of the Ceiling Act. In the written statement filed by respondents No. 5 to 13, 15 and 16 it is pleaded that the writ petition is not maintainable as the respondents were given possession of the land in the year 1965 and had thus become owner thereof. The mutation was also sanctioned in their favour and Form US 3 had already been issued. The respondent had already made some payment as first instalment. It is also pleaded that the petitioners had never challenged the order dated 17.6.1962 whereby the land was declared surplus. In this background it is pleaded that this order declaring the land surplus is challenged after the lapse of 23 years while seeking protection under Section 8 of the Ceiling Act. It is also stated that the provisions of Section 8 of the Ceiling Act are not applicable as the proceedings for declaring the surplus area were initiated under the old Act. Reference is made to Clause 2 of sub Section 2 of Section 33 of the CIVIL WRIT PETITION NO.1911 OF 1985 :{ 4 }: Ceiling Act which provides that proceedings for determining the surplus area pending before the commencement of the Ceiling Act shall continue and dispose of as if the said Act had not come into force and the surplus area so determined shall vest and be utilised by the State Government in accordance with the provisions of the Ceiling Act. It is also pleaded that the area which has been declared surplus under the old Act and was utlised for settling the tenant cannot be exempted in terms of the provisions of Section 8 of the Ceiling Act. Heard. Counsel for the parties. Mr.Saini, appearing for the petitioners, contends that the impugned order passed by the Financial Commissioner can not be sustained as transfer made prior to 30.7.1958 of a land in excess of permissible area under Punjab Security of Land Tenures Act (for short, “the Tenures Act”) or Pepsu Tenancy and Agricultural Lands Act (for short, “the Pepsu Act”) would be protected and can not be ignored while determining the surplus area. He would rely upon a Full Bench decision of this Court in State of Haryana and others Vs. Chandgi Ram,1981 PLJ 494. He would also place reliance on some instructions issued by the Government in this regard. The counsel would also plead that even utilisation was not complete as certain conditions precedent thereto were not satisfied. On the other hand, counsel for the respondent-State as well as private respondents, by referring to number of judgments, would urge that proceedings brought to finality under the Old Act, can not be reopened under the Ceiling Act. In this regard, reliance is placed on Dharam Pal and others Vs. State of Haryana and others, 2002 (1) PLJ 188, CIVIL WRIT PETITION NO.1911 OF 1985 :{ 5 }: Smt.Ishwar Devi Vs. the State of Haryana and others,1983 PLJ 363, Amar Singh and others Vs. Ajmer Singh and others, 1994 Suppl.(3) Supreme Court Cases 213. Reliance is also placed on a recent Division Bench judgment of this Court in the case of Ghasitu Singh and others Vs. the State of Haryana and others, 2008 (4) PLR 586 and an unreported judgment in LPA No.389 of 2003 (State of Haryana Vs. Smt.Ram Kali Etc.), decided on 13.2.2009 and LPA No.147 of 2008 (State of Haryana and others Vs. Ram Chander and others )decided on 17.2.2009. In Dharam Pal's case (supra), this Court has viewed that surplus area proceedings can not be reopened by taking benefit of the provisions of Ceiling Act, claiming that the land owner was entitled to re-evaluation of the surplus area, though the proceedings have become final under the Tenures Act with regard to declaration of surplus area. It is further held that simply because surplus land declared under the Tenures Act was not utilized and remained in possession of the land owner would not make any difference. As held in this case, land declared surplus under the Tenures Act stood vested in the State under Section 12(3) and non utilisation of the surplus land till the date of vesting (23.12.1972) would be of no consequences and would make no difference. While taking this view, the Division Bench has relied upon the judgment of the Hon'ble Supreme Court in the case of Amar Singh (supra). The Hon'ble Supreme court observed that area already declared surplus under the the Tenures Act stood vested in the State with effect from the appointed date (24.1.1971) and the mere fact that it was not utilized and remained in possession of the heirs of the quondam landlord till CIVIL WRIT PETITION NO.1911 OF 1985 :{ 6 }: some time after the date of commencement of the Ceiling Act (23.12.1972) was held to be in consequential. Allotment of the land was held valid. In Amar Singh's case (supra) the Hon'ble Supreme has distinguished the case of Jaswant Singh Vs,. State of Haryana, AIR 1977 Pb. & Hy. 221. In fact, this Court had allowed the writ petition filed by Ajmer Singh by relying upon the Full Bench decision in the case of Jaswant Kaur (supra). The observations of the Hon'ble Supreme Court in this regard would be relevant and are reproduced:- “4. 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 case. 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. 5. 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 CIVIL WRIT PETITION NO.1911 OF 1985 :{ 7 }: 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 (23.12.1972) is of no consequence and makes no difference. The view we have taken is supported by the judgment of this Court in Bhagwanti Devi V. State of Haryana. We, therefore, allow the appeal, set-aside the impugned judgment of learned Single Judge of the High Court dated 23.9.1987 and also the order of the Letters Patent Bench dated 3.11.1987. Civil Writ Petition No.163 of 1986 filed by Ajmer Singh in the High Court stands dismissed. The appellant shall be entitled to his cost which we quantify as Rs.11,000/-. Costs to be paid by respondent-Ajmer Singh.” In Amar Singh's case (supra), the Hon'ble Supreme Court has relied upon an earlier view taken in Bhagwanti Devi V. State of Haryana, 1994 Suppl. (3) SCC 101. In Ghasitu Singh's case (supra), it is held that where surplus land is utilized before coming into force of the Ceiling Act, then under such circumstances benefit of exemption under Section 8 of the Ceiling Act can not be claimed as the land had already been utilized and allotted under the Tenures Act. Somewhat similar is the ratio laid down in Ishwar Devi's case (supra). Thus viewed, it is possible to say that a land declared surplus under the Tenures Act or Pepsu Law, if utilized prior CIVIL WRIT PETITION NO.1911 OF 1985 :{ 8 }: to commencement of the Ceiling Act, then it will not be available for exemption under Section 8 of Ceiling Act. Even if it is not utilized and had remained in the possession of the heirs of the landlord, still it would not make any difference as it is held to be in consequential. The land in this case was declared surplus on 17.6.1962 and petitioner No.1 filed an application under Section 8 of the Ceiling Act on 3.1.1978. He claimed to have transferred 95 standard acres of land to his sons on 4.1.1957, which was prior to 30.7.1958 and, thus, prayed that this transfer be exempted from the surplus pool, being saved under Section 8(1) of the Ceiling Act. This land has been transferred/sold by petitioner No.1 to his close relatives who are his sons and wife. The land was declared surplus in the year 1962 and the respondents herein were the tenants over the land. It was allotted to them and they were given possession thereof. After the commencement of the Ceiling Act, U.S. 3 Forms were duly issued for conferring proprietary rights in their favour. The petitioners had not filed any appeal against this order of allotment passed in the year 1965. It was accordingly pleaded that this matter can not be reopened. In a recent decision, this court in a case titled Megh Raj and others Vs. Manphool and others, 2008 (3) RCR (Civil) 241, has held that Section 8(1)(a) of the Ceiling Act does not admit an interpretation that the proceedings concluded under the Tenures Act could be undone or reopened. It is viewed that this Section applies to such cases where the proceedings for declaration of surplus area CIVIL WRIT PETITION NO.1911 OF 1985 :{ 9 }: under the Tenures Act were pending on the appointed day under Ceiling Act. It is further viewed that any other interpretation to the provisions of said Act would in essence assign a retrospective operation to the Section. It has accordingly been held that this Section does not apply to proceedings or orders of surplus area which have been concluded/attained finality before coming into force of the Ceiling Act. While taking this view, reliance has been placed on the cases of Bhagwanti Devi, Amar Singh, Dharam Pal cases (Supra). Support can also be sought from the unreported judgments of this Court in Ram Kali's case and Ram Chander's case (supra) referred to above. In the instant case, it is clear that land was declared surplus in the year 1962 and it was utilized also in the year 1965, much before the Ceiling Act came into existence. It has been consistently viewed that cases finalised under the Tenures Act or the Pepsu Act can not be reopened under the Ceiling Act, even if the land declared surplus has not been utilized. It is possible to view that Section 8 of the Ceiling Act would apply to a situation where proceedings under the Tenures Act and the Pepsu Act are pending and then would protect the transfers, which were made prior to 30.7.1958. In this case, the transfer obviously are to close relatives and even may be by sale but appears to have been pleaded just to get the benefit of this Section in the year 1978. It would be significant to notice that the petitioners had sought exemption of this land so transferred, at the time when his case for surplus land was being considered in the year 1962. This benefit, however, was declined to the petitioners. CIVIL WRIT PETITION NO.1911 OF 1985 :{ 10 }: There is, thus, no merit in the writ petition and the same is dismissed. April 22,2009 ( RANJIT SINGH ) rts/khurmi JUDGE