Bhagwani vs State of Haryana

G.R. Majithia, J.—The petitioners have challenged the order of Financial Commissioner, Haryana, Chandigarh, dated October 15,1980, dismissing their revision petition, against the order of the Prescribed Authority dated September 22, 1978, in this petition under Article 226/227 of the Constitution of India.

Facts First. Smt. Ram Piari was a big landowner. She gifted 5/6th share of her total holding under gift deed datedMay 10, 1956 in favour of her five daughters. Her surplus area case was decided on April 22,1960. The, land gifted by her to her daughters was included in her total holding. The petitioners who are donees from Smt. Ram Piari continued in possession of the land gifted to them till the commencement of the Haryana Ceiling on Land Holdings Act, 1972 (in short the Act). They moved a petition under section 8 of the Act before the Prescribed Authority for excluding the land gifted to them, from the total holding of the landowner. The Prescribed Authority only allowed exclusion from the total holding of the landowner to the extent of 2/3rd share and not to the extent to entire land. gifted by landowner in favour of her five daughters.

The petitioners aggrieved against the order or the Prescribed Authority challenged the same in revision before the Financial Commissioner. The revision petition was dismissed primarily on the ground that the same was barred by time.

It is unfortunate that the Financial Commissioner did not invite his attention to section 8 of the Act. Section 8 of the Actreads thus:

"8. Certain transfers for dispositions, not to affect surplus area.(1) Save in the case of land acquired by the Union Government or the State 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, 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 (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) The burden of proving the transfer (or disposition) to be a bona fide one shall be on the transferor.

(3) If any person transfers (or disposes of) any land after the appointed day in contravention of the provisions of subsection (1), the land so transferred or disposed of, shall be deemed to be owned or held by that person in calculating the permissible area. The land exceeding the permissible area so calculated shall be the surplus area of the person and in case the area left with him after such transfer (or disposition), is equal to the surplus area so calculated, the entire area left with him shall be deemed to be the surplus area. If the area left with him is less than the surplus area so calculated, the entire area left with him shall be deemed to be the surplus area and to the extent of the deficiency in it the land so transferred (or disposed of) shall also be deemed to be the surplus area. If there is more than one transferee, the deficiency of the surplus area shall be made up from each of the transferees in the proportion to the land transferred (or disposed of) to them."

Transfer of land in excess, of permissible area under Punjab Law or the Pepsu Law were protected, it these were made Prior to July 30, 1958. in the instant case transfers by gifts were made prior to July 30,1958, and as such were protected under the provisions of Section 8 of the Act. This provision came, up for consideration before a Full Bench of this Court in Smt. Jaswant Kaur and another v. The State of Haryana and another, ? where it was held thus :

"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 earlier, it is our first duty to seek to avoid conflict by endeavoring to harmonise and reconcile every part so that each shall be effective. A closer and critical examination of the provisions show 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 "as 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 came into force on 23rd December, 1972. A harmonious way of construing sections 8 and 12(3) would be to give full to effect section 8(1) upto 23rd December, 1972, that is to say to exclude from the operation of section 12(3), the transfer made upto 23rd December, 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 any heir by inheritance, other transfer of land in excess of permissible area under the Punjab Law or Pepsu Law would be protected if the transfers were made prior to 30th July, 1958. We see no reason 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. In Memo No. 5762AR(LA)76/28819 dated 15th September, 1976, addressed by the Financial Commissioner and Secretary to Government, Haryana, Revenue Department, to the Commissioners of the Ambala and Hissar Division etc., it is said :

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

Again in Memo No. 6632 AR(Il)76/3389 dated 29th October, 1976, 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 section 8 and section 12(3) of the Haryana Ceiling on Land Holdings Act, 1972. 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 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 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 landowners before 30th July, 1968, shall not vest in the State Government 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."

In the light of this, the surplus land which had been transferred or disposed of by the landowners before July 30, 1958 shall not vest in the State Government under section 12(3) of the Act and as such was not available for utilization in accordance with the Utilization. Surplus Area Scheme.

For the reasons stated above, the petition succeeds. the order of Financial Commissioner is quashed and it is ordered that the land which had been transferred under the gift deed dated May 10, 1958 is not available for utilization under the Utilization of Surplus and other Areas Scheme and the land transferred in favour of the donees has to be excluded from the total holding of the landowners, before determining her surplus area. No order as to costs.