Ajmer Singh vs State of Haryana and ors.

Sukhdev Singh Kang, J.—The challenge in this writ petition under Articles 226/227 of the Constitution of India is directed against the order dated 2.12.1985 (annexure P1) passed by Sub Divisional OfficercumPrescribed Authority, Thanesar. It is also prayed that respondent No. 1 be directed to declare that the land in question is not surplus and it should deliver possession thereof to the petitioner. It has been filed in the following circumstances.

Maru Ram, father of Ajmer Singh petitioner, was a big landowner. His holding was partitioned amongst him and his four sons in equal shares through a decree dated 16.6.1958 (incorrectly mentioned as 25.7.1958 in the impugned order.) Effect was given to the decree and the partition in the revenue record through mutation No. 109 sanctioned on 20.11.1958. However, erroneously, the revenue authorities in the purported exercise of their jurisdiction under the Punjab Security of Land Tenures Act, declared 9 standard acres and 31/4 units of land surplus in the hands of Maru Ram. It may be useful to bear in mind that Maru Ram was not the owner of all the land which was taken into account. The land which was owned and possessed by the petitioner and his three brothers was also taken to be the land owned and possessed by Maru Ram and his surplus area case was decided on that basis. The petitioner or his brothers were not associated with these proceedings of declaration of surplus land though their land had been declared surplus. The revenue record shows that they were owners of this land. This order was passed on 10.3.1961. Under the Punjab Law as prevelant at the relevant time and applicable to the land in dispute the landowner could transfer his land to others and such transfers uptill 30.7.1958 were recognized.

The Haryana Ceiling on Land Holdings Act, 1972 (hereinafter called the Act) was in certain matters given effect to from 24.1.1971. Section 8 of the Act reads as under :

"8. Certain transfers 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 and 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 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."

The petitioner''s case is that the transfers of land effected by landowners prior to 30.7.1958 were recongised by the Act and lands so transferred could not be taken into account while determining this surplus area of the landowner under provisions of the Act. State of Haryana issued instructions dated 29.10.1976 to the Subordinate Revenue Officers giving therein construction of Section 8 and 12 (3) of the Act. It is provided therein:

"In this regard it is clarified that Section 8 of the Haryana Ceiling on Land Holdings Act, 1972 inter alia prohibits transfers and dispositions of land in excess of the premissible 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 stand 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 land owners before 30.7.1958, shall not vest in the State Govt. under Section 12(3) of the Haryana Ceiling on Land Holdings Act, 1972 and therefore, such area cannot be utilized in accordance with the utilization of surplus and other Areas Scheme, 1976."

This very construction found favour with a Full Bench of five Hon''ble Judges in Smt. Jaswant Kaur and another v. The State of Haryana and another, 1977 P.L.J. 230. The following observations clinches the issue:

"The provisions of Sections 4 and 8, particularly Section 8, appear on first impression to be inconsistent with the provisions of Section 12 (3) but, as we said either, it is our first duty to seek to avoid conflict by endeavring 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 constructing Sections 8 and 12 (3) would be to give full effect to Section 8(1) upto 23.12.1972, that is to say, to exclude from the operation of Section 12(3), the transfer made upto 23.12.1972 which are protected by Section 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 a 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 reasons why Sections 8 and 12(3) should not be construed in this harmonious manner so as to give effect to both the provisions. We find from the instructions issued from time to time that the Government has also construed the provisions in a similar manner."

(Emphasis supplied)

It is thus clear that the lands which had been transferred by Shri Maru Ram by way of partition to his sons could not be taken into account while determining his surplus area under the Act. The authorities therefore, could not declare the petitioner''s land surplus and utilize the same because by virtue of the provisions of Section 8 and 12 of the Act the land though declared surplus under the provisions of Punjab Security of Land Tenures Act had not come to vest in the State of Haryana and when the case was again taken up for determination of the surplus area of Maru Ram, he had already become small landowner and the land owned and possessed by the petitioner had wrongly been included within his holding and declared surplus.

The fact that this land had been allotted to some tenants is of no consequence because the land had not been validity and legally declared surplus.

Shri C.M. Chopra, learned counsel for the private respondents had contended that the transfer made by Maru Ram could not be taken into account because the decree by which this land is said to have been transferred to the petitioner and his brothers was never registered and could not be taken into account because it purported to the transfer of immoveable property of value of more than one hundred rupees. There is no merit in this contention. A copy of the decree has not been produced by Shri Chopra. So, it cannot be said what precisely were its contents. Furthermore, mutation in the name of the petitioner had been entered and sanctioned as back as 1958. The authorities while deciding surplus area cases have to rely on the entries in the revenue record.

For the foregoing reasons, the writ petition is allowed and the orders passed by the revenue authorities declaring the petitioner''s land as surplus and allotting the same to the private respondents are quashed but with no order as to costs.