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State of Haryana and ors. Vs. Chandgi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 21 of 1978 in Civil Writ Petn. No. 2532 of 1977
Judge
Reported inAIR1982P& H262
ActsPunjab Security of Land Tenures Act, 1953; Haryana Ceiling of Land Holdings Act, 1972 - Sections 8
AppellantState of Haryana and ors.
RespondentChandgi
Cases ReferredSmt. Jaswant Kaur v. State of Haryana
Excerpt:
.....that they are not irreconcilable and all of them fit well into the general scheme of the act. ' 9. a bare perusal of the aforesaid observations of the bench clearly go to show that besides the transfers which are protected by s, 8 (1) of the act, 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 30th july, 1958. in view of the law laid down by the bench in smt......the area with the dohlidar tenant and the old tenants had to be excluded while determining the surplus area of chandgi. on 10th dec. 1957, chandgi sold away 19 standard acres and 6-1/2 units of land to one teka of village mandora through a registered sale deed. attar singh son of chandgi filed a suit to pre-empt the sale made in favour of teka. a decree for possession by pre-emption was passed in favour of attar singh on 14th jan. 1959.2. the surplus area case of chandgi was taken up by the collector and on 26th nov. 1959, 14 standard acres and 15-1/4 units of land was declared surplus, in his hands. while declaring this area as surplus, the land acquired by attar singh by pre-emption was ignored. the appeal, the revision and writ petition in this court filed by chandgi did not.....
Judgment:

Prem Chand Jain, J.

1. The facts of this case may briefly be stated thus :

Chandgi, respondent, owned 44 standard acres and 15-1/4 units of land in the revenue estate of village Jatola, tehsil and district Sonepat, on 15th Apr., 1953. Out of this land, 4 bighas and 4 biswas of land was under a dohlidar tenant and 6 bighas and 7 biswas of land was under old tenants on 15th Apr., 1953. There is no dispute that the area with the dohlidar tenant and the old tenants had to be excluded while determining the surplus area of Chandgi. On 10th Dec. 1957, Chandgi sold away 19 standard acres and 6-1/2 units of land to one Teka of village Mandora through a registered sale deed. Attar Singh son of Chandgi filed a suit to pre-empt the sale made in favour of Teka. A decree for possession by pre-emption was passed in favour of Attar Singh on 14th Jan. 1959.

2. The surplus area case of Chandgi was taken up by the Collector and on 26th Nov. 1959, 14 standard acres and 15-1/4 units of land was declared surplus, in his hands. While declaring this area as surplus, the land acquired by Attar Singh by pre-emption was ignored. The appeal, the revision and writ petition in this Court filed by Chandgi did not succeed. Thereafter, Attar Singh son of Chandgi, respondent, filed a writ petition in this Court, which was allowed on 3rd April, 1975, on the ground that he being a transferee was entitled to a notice before the surplus area of Chandgi respondent could be determined. The matter went back to the Collector, who vide his order dated 27th Nov. 1975, excluded the area obtained by Attar Singh through the pre-emption decree; with the result that no surplus area was left in the hands of Chandgi respondent. The State Government challenged the aforesaid order by filing a revision petition, before the Financial Commissioner, which was allowed on 16th Aug. 1977 resulting in the setting aside of the order of the Collector, dated 27th Nov. 1975. Feeling aggrieved from the order of the Financial Commissioner, Chandgi filed Civil Writ Petition No. 2532 of 1977 in this Court. Though the learned single Judge was prima facie of the view that Attar Singh could not take benefit of the pre-emption decree, yet in view of the Division Bench judgment of this Court in Harpal Singh v. State of Punjab, 1970 Pun LJ 159, it was held that the land acquired by Attar Singh through the pre-emption decree could not be taken into consideration while declaring the surplus area of Chandgi respondent. Consequently, the writ petition was allowed and the order of the Financial Commissioner was set aside.

3. Feeling aggrieved from the judgment and order of the learned single Judge, present appeal under Clause X of the Letters Patent was filed by the State of Haryana and others. When the appeal came up for final hearing, the only contention raised before the Bench by the learned Additional Advocate General was that the judgment in Harpal Singh's case (1970 Punj LJ 159) (supra) was not applicable to the facts of the case in hand, as in that judgment the interpretation of the provisions of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the 'Pepsu Act') was involved, while in the present case we are concerned with the provisions of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the 'Punjab Act'), which are quite different from the provisions of the Pepsu Act. The learned counsel further submitted that the Division Bench judgment of this Court in Chattar Singh v. Financial Commissioner, Revenue, Haryana, 1970 Pun LJ 487, though given in a case in which the provisions of the Punjab Act were involved, does not lay down correct law, as the same is based on the judgment of Harpal Singh's case (supra), and has not taken into consideration the distinction which exists between the provisions of the two Acts.

4. Finding some merit in the contention of the learned Additional Advocate General, the case was referred to a larger Bench for decision. This is how we are seized of the matter.

5. When the matter came up for final hearing before us, Shri R. S. Mittal, learned counsel appearing for the respondent, submitted that it was not necessary to decide the question which was raised before the Division Bench and which necessitated the reference to this Bench, as in view of the provisions of S. 8 of the Haryana Ceiling of Land Holdings Act, 1972 (hereinafter referred to as the Act) and the decision of Full Bench of this Court in Smt. Jaswant Kaur v. State of Haryana, 1977 Pun LJ 230 : (AIR 1977 Punj & Har 221), the transfer made by Chandgi on 10th Dec. 1957 was a valid transfer.

6. After hearing the learned counsel for the parties and giving my thoughtful consideration to the entire matter. I find that the point now raised before us by Mr. R. S. Mittal, learned counsel for the respondent, is fully covered in his favour by the judgment of the Full Bench in Smt. Jaswant Kaur's case (AIR 1977 Punj & Har 221) (supra) and that it would be wasteful to dilate unnecessarily on the question that was referred to by the Bench for decision.

7. Relevant portion of S. 8 of the Act on which reliance has been placed. reads as under :--

'Certain transfer or dispositions not to affect surplus area.--

(1) Save in the case of land acquired by the Union Government or 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, 1951 and

(b) the permissible area under this act, except a bona fide 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 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

(2) & (3)..........................................'

8. In Smt. Jaswant Kaur's case (AIR 1977 Punj & Har 221) (FB) (supra), one of the submission raised before the Bench was to the following effect (at p. 228) :--

'The submission of the learned counsel was that there was glaring inconsistency between S. 12 (3) and the two earlier provisions of S. 4 (1) and S. 8. It was said that while S. 4 (1) provided for the determination of the permissible area of the tenant also, S. 12 (3) prescribed that the tenant's permissible area under the Punjab Law which had not so far vested in the Government shall be deemed to have vested in the State Government with effect from the appointed day. The argument was that if the land vested in the Government what was the point of determining a tenant's permissible area under the Act? It was again said that while S. 8 saved certain transfers from the operation of the Act, S. 12 (3) made no such exception in favour of those transfers. For example, it was said that land which was declared surplus under the Punjab Security of Land Tenures Act but which was unutilized and later acquired by the Central Government would vest under S. 12 (3) in the State Government notwithstanding the acquisition by the Central Government. Similarly land purchased by a tenant under the provisions of S. 18 of the Punjab Security of Land Tenures Act would vest in the State Government under S. 12 (3) notwithstanding the purchase by the tenant. So also, in the case of transfers by inheritance. Even transfers made before 30th July, 1958 (the date mentioned in S. 8 (1) (a) it was argued. would not be saved if they were made after the declaration of surplus area or tenant's permissible area under the Punjab Security of Land Tenures Act.'

The aforesaid submission on behalf of the petitioner was dealt with by the Bench thus (at pp. 228, 229):

'The provisions of Ss. 4 and 8, particularly S. 8, appear on first impression to be inconsistent with the provisions of S. 12 (3) but, as well 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 Ss. 8 and 12 (3) would be to give full effect to S. 8 (1) up to 23-12-1972, that is to say, to exclude from the operation of Section 12 (3), the transfers made up to 23-12-1972 which are protected by s. 8 (1) of the Act, namely (1) acquisition of land by the State or 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 Ss. 8 and 12 (3) should not be construed in this harmonious manner so as to give effect to both and provisions. We find from the instructions issued from time to time that the Government has also construed the provisions in a similar manner. In Memo No.5726-AIR (LA)-76/28819, dated 15-9-1976, addressed by the Financial Commissioner and the Secretary to Government, Haryana, Revenue Department, to the Commissioners of the Ambala and Hissar Divisions etc. it is said:--

'The surplus area already purchased by the eligible tenants/persons under S. 18 of the Punjab law and S. 22 of the Pepsu law should be considered to have been lawfully utilized and should not, therefore, be vested in the State Government under S. 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972. Only such unutilized surplus area which was not purchased by the eligible tenants/persons under the Punjab law or Pepsu law should be deemed to have been vested in the State Government from the appointed day under S. 12 (3) of the Haryana Ceiling on Land Holding Act, 1972, and may be mutated in favour of the State Government immediately and necessary action to allot such are to the eligible persons may be taken in accordance with the provisions of the Utilization of Surplus and Other Areas Scheme, 1976.'

dated 29-10-76 it is said,

'It has come to the notice of the Government that there is some lack of understanding in correctly interpreting the provisions of S. 8 and S. 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972. In this regard it is clarified that s. 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 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 landowners before 30-7-1958, shall not vest in the State Government under S. 12 (3) of the Haryana Ceiling on Land Holdings Act, 1972, and therefore, such area cannot be utilized and accordance with the Utilization of Surplus and Other Areas Scheme, 1976.'

Shri Naubat Singh, the learned Assistant Advocate General, also agreed that we should harmonise S. 8 S. 12 (3) in the manner that we have done but he suggested that the date up to which transfers of the three categories specified by us earlier as (1), (2) and (3) should be recognised, should be the appointed day (24-1-1971) and not the date on which S. 12 (3) came into force. We do not agree. S. 1 (2) of Act XVII of 1976 expressly provides that the Act shall come into force on 23-12-1972. We must give some meaning and effect to it. In our view, the meaning and effect to it. In our view, the effect of S. 12 (3) coming into force from 23-12-1972 on S. 8 is that transfers of three categories specified by us made up to 23-12-1972 would be excluded from the operation of s. 12 (3) that transfers of land in excess of the permissible area under the Punjab or Pepsu law would be protected if made before 30-7-1958 and that all other land not excepted by s. 8 would vest in the State Government with effect from the appointed day.

We may mention here that though under S. 8, transfers out of surplus area declared under the Punjab law are recognised up to 30-7-1958 only, the Government by means of exclusive instructions have recognised, subject to certain conditions being fulfilled transfers up to 15-4-1966. Memo No. 5726-AR (LA)-76/28819 dated 15-9-1976 may be referred to in this connection.'

9. A bare perusal of the aforesaid observations of the Bench clearly go to show that besides the transfers which are protected by S, 8 (1) of the Act, 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 30th July, 1958. In view of the law laid down by the Bench in Smt. Jaswant Kaur's case (AIR 1977 Punj & Har 221) (FB) (supra), it would be futile for the learned Additional Advocate General to argue that the sale made by Chandgi in favour of Teka on 10th Dec. 1957, has to be ignored. Mr. R. S. Mittal, learned counsel for the respondent, is right in contending that the Collector by his order dated 27th Nov. '1975, has done nothing else than giving effect to the provisions of S. 8 (1) of the Act. Thus, in view of the law laid down in Smt. Jaswant Kaur's case, I hold that the sale made in favour of Teka by Chandgi could not legally be ignored and that the surplus area of Chandgi had to be determined taking into consideration the said sale. In this view, of the matter, the judgment of the learned single Judge resulting in allowing the petition or Chandgi respondent and in setting aside the order of the Financial Commissioner, dated 16th August, 1977, is perfectly legal and no exception can be taken to the same.

10. Consequently, this appeal fails and dismissed, but in the circumstances of the case, I make no order as to costs.

S.S. Sandhawalia, C.J.

11. I agree.

I.S. Tiwana, J.

12. I also agree.

13. Appeal dismissed.


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