Case: KIRPAL SINGH Vs. KAMLA DEVI

2. Brief facts of the case giving rise to this appeal are:(i) One Jaipal Singh, land holder, was owner of the land measuring 221.72 standard acres in village Kheri, Shishgarh on 15.04.1953, when Punjab Security of land Tenures Act, 1953(hereinafter referred to as 1953 Act) was enforced. The 1953 Act defined permissible area, standard acre and surplus area. Permissible area under the 1953 Act was defined as 30 standard acres. Land owner who owned land in excess of permissible area was entitled to intimate his selection in the prescribed form and manner to the Patwari of the State. The Collector of the area passed an order dated 28.07.1960 determining 191.72 standard area of land as surplus in the hand of Shri Jaipal Singh. An appeal was filed by Jaipal Singh to the Commissioner, Ambala Division which was dismissed on 14.11.1960. The Revision Petition before the Financial Commissioner, Punjab which was also dismissed on 01.05.1961(ii) CWP No.639 of 1961 filed by the Jaipal Singh was allowed by the High Court vide judgment dated 12.03.1962 and authorities were directed to redecide the surplus area in accordance with the law laid down by the judgment of Punjab High Court reported in 1962 PLR 22, Jagan Nath and others versus State of Punjab and others. The proceedings before the Collector in pursuance of the judgment of Punjab High Court dated 12.03.1962 remained pending. In the meantime, State of Haryana was created and State legislature passed an Act namely, Haryana Ceiling of land Act, 1972(hereinafter referred to as 1972 Act). Jaipal Singh on 18.06.1974 executed sale deeds in favour of one Mohan Singh of an area of 125 Kanal and 8 Marla. The Collector by an order dated 12.05.1978 allowed exemption of land of Jaipal Singh declared surplus measuring 150 standard acres and balance of 36.47 standard acres was declared surplus(iii) Learned counsel for the plaintiff Jaipal Singh was granted time by the Collector to furnish list of land to be retained by Jaipal Singh but requisite list was not submitted and order was passed on 20.05.1978 declaring surplus. The appeal against order dated 12.05.1978 was filed by Jaipal Singh. The Commissioner, Ambala division decided the appeal vide order dated 14.11.1979 and remanded the case to the Collector with a direction that he should permit the appellant Jaipal Singh to give the list of Khasra to be given in surplus pool to the Collector. Appellant was given time till 21.11.1979. Jaipal Singh gave Khasra numbers which were sold to Mohan Singh in surplus pool. A notice was issued to Mohan Singh to vacate the land. An application was filed by Mohan Singh before the prescribed authority objecting notice given to him to vacate the land. The prescribed authority rejected the application of Mohan Singh by the Order dated 11.10.1983 observing that the Vendee had purchased the surplus area by registered sale deed dated 18.06.1974(iv) Against the order of prescribed authority, Mohan Singh filed an appeal before the Collector. The Collector by order dated 06.02.1984 accepted the appeal directing that if the surplus land had to be taken the same will be taken from the land of the owner and if the same could not be completed from his land, only then, the land be taken from land in dispute i.e. land of the vendees. The Jaipal Singh having died in between, the widow of Jaipal Singh filed a revision before the Commissioner, Ambala Division. The Commissioner allowed the appeal. The Commissioner held that the surplus area declared by the Collector in the year 1960 vested in the State. The Commissioner held that land owner could not be forced to exclude this land from surplus area. It was further held that prescribed authority had no jurisdiction to challenge or modify the orders passed by the Collector. The order of Collector was set aside and appeal was allowed. Revision filed by Mohan Singh before the Financial Commissioner, Haryana was dismissed by the order dated 18.02.1987 against which writ petition No.2979 of 1989 was filed by Mohan Singh(v) Mohan Singh executed a sale deed on 16.06.1989 in favour of appellant of the land which was purchased by him from Jaipal Singh vide sale deed dated 18.06.1974(vi) The writ petition was allowed by learned Single Judge setting aside the order of Commissioner and Financial Commissioner. The learned Single Judge remitted the matter to consider the case of petitioner for the grant of benefit envisaged under Section 8(3) of 1972 Act with regard to permissible area by land owner without touching the order of declaration of surplus area. The order of the Collector dated 06.02.1984 was restored to the limited extent(vii) Against the judgement of learned Single Judge 18.11.2009, LPA was filed by the legal heirs of the land owner. LPA has been allowed by the Division Bench by the impugned judgment dated 21.04.2010. The appellant aggrieved by said judgment has filed this appeal.

Reasoning:
12. Section 33(2)(ii) thus clearly provides that repeal of 1953 Act shall not affect the proceedings for determination of surplus areas pending immediately before the commencement of 1972 Act under the provisions of 1953 Act which shall be continued and disposed of as if this Act had not been passed13. The legislative intent as reflected in Section 33 makes it clear that the proceedings for determination of surplus area which was pending on 23.12.1972 was to be continued and disposed of as if 1972 Act had not been passed. Thus, in continuation of the disposal of pending proceedings, 1972 Act was not to be taken into consideration in any manner14. The above interpretation of Section 33 is no longer res integra and has been finally settled by this Court in Jiwas Das (DEAD) through LRS. versus Financial Commissioner, Revenue, Haryana and others, 1998 (8) SCC 740 .  In the above case also, proceedings for determination of surplus area were initiated against the land holder on 27.07.1959 which proceedings came up to the High Court where High Court passed an order on 15.12.1961 remitting the matter for fresh determination. The proceedings were pending and proceedings were taken on 11.06.1975 in consequence of direction of the High Court which proceedings were challenged and the matter came to this CourtThus, proceedings for determination of surplus land which were initiated under 1953 Act were thus have to be continued and disposed of in accordance with 1953 Act. Learned counsel for the appellant to support his submissions that Section 8(3) and 9(3) of 1972 Act has to be applied while considering the selection of land by land holder in the surplus pool contends that expression determination of surplus land does not include the selection of land by land owner to be given in surplus pool19. Section 9(3) provides that in making the selection such persons shall include in the first place the land which has been transferred by him after the appointed date in contravention of provisions of Section 8 and in the second-place land mortgaged by him without possession. Thus, as per strength of Section 9(3), the land owner while selecting land within permissible area has to include any transfer made by him after the appointed date in contravention provisions of Section 8. The permissible Area and selection as occurring in Section 9 has to be read in reference to permissible area as referred to in Section 3(l) read with Section 4 and selection there on. The selection of permissible area occurring in Section 9 and requirement to include in such selection land transferred by land owner after the appointed date i.e.25.03.1972 is in reference to the proceedings under 1972 Act20. The submissions of Appellant that while making selection by Jaipal Singh of the permissible area in pursuance of appellate order dated 14.11.1979. Section 9(3) had to be applied and land of the predecessor-in interest of the appellants which was purchased by Mohan Singh by Sale deed dated 18.06.1974 ought to have been included cannot be accepted. Firstly, the order by the appellate authority on 14.11.1979 remanding the matter to the Collector for permitting the land owner to submit a list of plot numbers to be retained by him was in reference to proceedings of surplus area which was initiated under 1953 Act and as per Section 33(2)(ii), the said proceedings have to be continued and disposed of as if 1972 Act has not been passed. When Section 33(2)(ii) provides for proceedings of determination of surplus area which were pending on 23.12.1972 to be continued as if 1972 Act had not been passed, there is no question of applying provisions of Section 8(3) and 9(3) as contended by the appellant23. The scheme of 1953 Act as delineated by Section 5A, 5B and 5C indicates that determination of surplus area is a process contemplating various steps in determination of surplus area. The submission of declaration by land owner, the selection of permissible area by land owner, failure of owner to furnish the declaration supported by an affidavit, direction of the Collector that whole or part of such land holder or tenant shall be deemed to be surplus area or all part of an integrated process of determination of surplus area. When the meaning of surplus as contained in Section 2(5a) expressly provides that area in excess of permissible area selected deemed to be surplus area , the selection is clearly indicated as part of the surplus area. The very definition of surplus area as contained in Section 2(5a) negates the submission of counsel for the appellant that selection of permissible area is not covered in the expression determination of surplus area24. We thus also reject the above submissions of counsel for appellant that since selection of permissible area by land owner was not covered in determination of surplus area, Section 8(3) and 9(3) are applicable28. In so far as the submission of learned counsel for the appellant that land owner has cheated his predecessor in interest since the land which was already declared surplus was sold by Jaipal Singh on 18.06.1974, the above submission on the ground of any fraud played on the appellant was expressly not pressed by appellant in the High Court which has been noticed by the learned Single Judge in paragraph 7 which is to the following effect: -7. At the very outset, it may be mentioned here that although the petitioner has challenged the impugned orders in this petition on the various grounds mentioned therein, but learned counsel for the petitioner has confined his argument only to the limited extent of legal proposition that Mohan Singh- Petitioner was entitled to the benefit of Section 8(3) of the Haryana Act29. Limited submission pressed before the learned Single Judge by the appellant was as to whether Mohan Singh was entitled to the benefit of Section 8(3) of 1972 Act. No other submissions were neither pressed nor adverted to by the learned Single Judge who decided in favour of the appellant. We are thus of the view that appellant cannot be permitted to raise above submission30. The appellant has purchased the land in dispute from Mohan Singh on 16.06.1989, when the claim of Mohan Singh stood rejected by both Commissioner and Financial Commissioner and land was included in the surplus pool. The appellant cannot be permitted to raise any issue of fraud played on Mohan Singh the predecessor-in-interest of appellant by land owner, it was for Mohan Singh in his life time, to establish the plea of fraud. The appellant could not be allowed to raise any such submission.