Balwant Singh vs State of Haryana

T.H.B. Chalapathi, J.

As common question of law and facts arises in both these cases, they are heard together and disposed of by this common judgment.

The petitioners in Civil Writ Petition No. 549 of 1993 purchased the land of an extent of 66 kanals 1 marla from Baljit Kaur respondent No. 4, under registered sale deed dated 10.6.1977 for a sum of Rs. 40,000/ executed by the power of attorney holder of Baljit Kaur namely Surjit Singh who is her husband (respondent No. 5). As the vendor Baljit Kaur and her husband Surjit Singh owned land exceeding the permissible limit under the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as Act) they submitted a declaration under the Act. The Collector assessed the total holding of respondents No. 4 and 5 as 897 kanals 3 marlas which came to be 1567 kanals 6 marlas of `C'' category land. By an order dated 9.2.1979 the Collector held that the respondents No. 4 and 5 were entitled to 132 kanals of `C'' category land as permissible area and declared the remaining land as surplus.

The petitioner in Civil Writ Petition No. 554 of 1993 purchased 60 kanals 8 marlas of land form Baljit Kaur under registered sale deed dated 14.6.1974 for a sum of Rs. 30,000/. The sale deed was executed by her husband Surjit Singh (respondent No. 5) as the power of attorney holder of Baljit Kaur.

In both the writ petitions the petitioners purchased the land from Baljit Kaur and two different sale deeds were executed in favour of the petitioners in both the writ petitions. The petitioners averred that the Collector Sirsa by his order dated 9.2.1979 held that the respondents No. 4 and 5 are entitled to 432 kanals of `C'' category land as permissible area and the remaining land owned by them as surplus. Their further case is that no notice was issued to them though they were bona fides purchasers of land for valuable consideration and that their names stood recorded in the register of mutations and that the Collector did not conduct any enquiry into the factum of bona fideness or otherwise of the transactions effected by the 4th respondent on 10.6.1977 and 14.6.1974 in favour of the petitioners in these writ petitions. Coming to know about the orders passed by the Collector dated 9.2.1979 the petitioners in both the writ petitions preferred revisions before the Financial Commissioner, Haryana in RCR 231 of 198081 and 230 of 198081. The Commissioner by his order dated 11th November, 1982 dismissed both the revision petitions on the ground that the landowner i.e. 4th respondent did not put forward the plea that the sale deeds executed in favour of the petitioners were bona fide in nature and, therefore, no notice was required to be given to the transferees and that the land had already been utilised. Therefore, it was not possible to reopen the case and that the transferees'' right was to claim compensation from the transferor. Accordingly, he dismissed the revision petitions. Aggrieved by the same the petitioners filed these two writ petitions challenging the order of the Financial Commissioner and also the order of the Collector determining the surplus area of the respondents No. 4 and 5.

There is no dispute that the land purchased by the petitioners belonged to the 4th respondent. The 4th respondent and her husband 5th respondent are entitled to one primary unit as permissible area. The sale deeds in favour of the petitioners came to be executed after the appointed day i.e. 24th January, 1971. Under Section 8(1)(b) of the Act a bona fide purchaser after the appointed day is protected. It is no doubt true that the burden of proving that the transfer is a bona fide one shall be on the transferor. Under subsection 3 of Section 8 of the Act the surplus area shall be taken in the first instance from the area left with the landowner and the transferees were to be touched only if the surplus area could not be made good from the area left with the landowner. Therefore, the authorities have to see whether the surplus area can be taken possession of from the landowner from the area left with him after excluding the land transferred in which case a notice to the transferees is also necessary as their rights will be affected. There is not dispute of the fact that no notice was given to the petitioners who are the transferees of the 4th respondent. It has been consistently held by this Court in a number of decisions that a notice is required to be given under the provisions of the Act to all the affected persons. It has been held by Full Bench of five Judges in Harnek Singh v. State of Punjab, 1971 PLJ 727 that a transferee is a person interested in participating in the proceedings for declaration of surplus area and he must be given an opportunity of being heard to avoid his interest prejudicially affected before declaring the surplus area of his transferor. It is further held that even if the statute and the rules framed thereunder are silent on the point it appears to be necessary for satisfying the principles of natural justice without which it is impossible to maintain rule of law to give an adequate opportunity to the transferee to safeguard his interest in proceedings with can plausibly culminate in decision prejudicially affecting him and his property rights.

In the case on hand, the surplus land in the hands of 4th respondent was declared on 9.2.1979. The transfers were effected before the said date though after the apponted day. Only bona fide transfers are protected under Section 8(1)(b) of the Act. Under Section 12(1) of the Act the surplus area of the landowner shall be deemed to have been acquired by the State Government from the date on which it is declared as such. Therefore, the surplus area vests in the Government only on the determination of the surplus area under the provisions of the Act. As the surplus area was determined on 9.2.1979, the surplus land will vest in the State Government from that date only. As already observed the property which has been transferred before the date though not bona fide can be taken over by the Government if the surplus area exceeds the permissible area of the landowner in his hands then only the transferee can be touched as provided in Section 8(3) of the Act.

In this view of the matter I am of the opinion as no notice is given to the petitioners by the Collector either at the time of determination of the surplus area of the 4th respondent or at the time of the utilisation of the surplus area, the orders of the Collector and the Financial Commissioner are liable to be set aside (sic) the impugned orders and remand the matter to the Collector to decide the matter afresh after giving an opportunity to all concerned. The parties are directed to appear before the Collector exercising the powers under the Haryana Ceiling on Land Holdings Act, 1972, on 30.5.1997.