Darbara Singh and others vs Haryana State and others

G.R. Majithia, J.—This judgment will dispose of Civil writ Petitions No. 2650, 5282 of 1981, 4164, 4948 and 4950 of 1982, 1416 and 4949 of 1983. The pleadings in all these petitions follow substantially the same pattern. With the consent of the parties'' counsel, C.W. P. No. 1416 of 1983, was treated as the main writ petition. Therefore, for convenience, I will refer to the pleadings in C. W. P. No. 1416 of 1983, and whatever I say in regard to this writ petition would apply to all other writ petitions.

The precise question which arises for determination is; whether a land owner whose land has been declared surplus under the Punjab Security of Land Tenures Act, 1953 (for short the ''Punjab Act'') and who has not yet been divested of the ownership of the surplus area before the enforcement of the Haryana Ceiling of Land Holdings Act, 1972 (for short the ''Haryana Act'') is entitled to select the permissible area for his family and for each of his adult son ?

The facts as unfold in this petition are:

Jhanda Singh predecessor-in-interest of the Petitioners was a big land owner. The Collector Ambala, vide order dated June 8. 1960, found that the land owner held land in excess of the permissible area and declared 21-11/4 standard acres of land as surplus under the Punjab Act The land declared was never utilised u/s 10-A of the Punjab Act. The Haryana Act came into force on December 23, 1972. Some land out of the surplus area is alleged to have been allotted to Respondents No. 3 to 10 and an entry to this effect was made in Rapat Roznamcha No. 325 dated April 23. 1982. The Petitioners maintain that the entry in the Rapat Roznamcha is only paper transaction. The allottees were never delivered possession. The possession throughout remained with the Petitioner''s father who expired on January 7, 1984, and thereafter with them.

The private Respondents filed written statement and strongly refuted the allegations made in the petition and pleaded that the possession was delivered to them under the orders of the prescribed authority. Respondents No. 1 and 2 also filed an affidavit and controverted the plea of the Petitioners that the land has not been utilised. They also urged that allotment in favour of Respondents No. 3 to 5 and 7 to 10 was made in December, 1977 and actual possession was handed over to Respondents No. 4, 5, 7, 8 and 9 on December 11, 1979 and to Respondents No. 3 and 10 on April 23, 1982.

The writ petition came up for motion hearing on March 14, 1983, on which dale the following order was passed:

Learned Counsel relies on the admission of C.W.P. No. 2631 of 1982.

Notice of motion for 4th April, 1980. In case the Petitioners are still in actual possession, they will not be dispossessed till farther orders.

After the service of notice of motion on the State and the private Respondents, the case was listed before the Motion Bench on July 26, 1983, and the following order was passed:-

Admitted. To be heard with CWP No. 2631 of 1982. The stay granted On 14th March, 1983, is hereby vacated in view of the stand taken in the return filed by the State.

The Petitioners moved CM. No. 71 of 1987, and it came up for motion hearing on March 11, 1987, and the following order was passed:

Let notice issue to the Advocate General Haryana and counsel for the opposite party Mr. M. R. Khanna, Advocate for 18.3.1987.

The matter was placed before the learned Single Judge on March 20, 1987, and the following order was passed:

There is a serious dispute between the parties as to who is in actual possession of the land in dispute. Let Status quo regarding possession be maintained as it prevails today.

The Petitioners in the Civil miscellaneous, referred to above, pleaded that the Respondents No. 3, 4, 5 and, 7 claimed to have been delivered possession vide Rapat Roznamcha Nos. 123 to 126 dated November 19, 1986; the entries in the Rapat Roznamcha are wrong and they are still in possession. There was apprehension of breach of peace and a report was lodged by the alleged allottees with police station Sadar Ambala. The Station House Officer, investigated the matter and found that the allottees were not in possession. The possession was still with the owners. There is a serious dispute about the delivery of possession to the private Respondents as alleged by them.

In order to decide the principal question posed above, it will be useful to refer to the relevant provisions of the Haryana Act. 10. Section 4 of the Haryana Act reads as under:

Permissible area:

(1) The permissible area in relation to land owner or tenant or mortgagee with possession or partly in one capacity or partly in another; of person or family consisting of husband, wife and upto three minor children (hereinafter referred to as the Primary Unit of family) shall be in respect of:

(a) Land under assured irrigation capable of growing at least two crops in a year (hereinafter referred to as the land under assured irrigation) 7.25 hectares.

(b) Land under assured irrigation capable of growing at least one crop in a year 10 9 hectares

(c) Land of all other type including land under orchard 21.8 hectares

(2) The pemissible area shall be increased by one fifth of the permissible area of the primary unit of family for each additional member of the family ;

Provided that the permissible area shall not exceed twice the permissible area of the primary unit of family.

(3) The permissible area shall be further increased upto the permissible area of primary unit of a family for each separate unit:-

Provided that where the separate unit also owns any land, the same shall be taken into account for calculating the permissible area;

(4) The permissible area shall be determined on the basis of valuation to be calculated in the prescribed manner taking into consideration the ownership of the means of irrigation, their intensity and such other factors as may be prescribed, subject to the conditions that the total physical holding does not exceed 21.8 hectares.

(5) In determining the permissible area for the purpose of Clause (a) of Sub-section (I) five hectares of land under irrigation from privately owned tubewell, pumping sets etc. shall be equal to four hectares of land under irrigation from canal as defined in the Northern India Canal and Drainage Act, 1873 (Central Act 8 of 1873) or from State tubewell as defined in the Punjab State Tubewell Act, 1954 (Punjab Act 21 of 1954).

(6) For evaluation the land of any person at any time under this Act, the land owned by him immediately before the commencement of this Act as well as the land acquired by him after such commencement by inheritance, bequest or gift from a person to whom he is an heir shall be evaluated as if the evaluation was being made on the appointed day and the land acquired by him after the appointed day in any other manner shall be evaluated as if the evaluation was being made on the date of such acquisition.

Section 7 of the Haryana Act, reads as under:-

Ceiling on land.

"Notwithstanding anything to the contrary contained in any law, custom, usage or agreement no person shall be entitled to hold whether as land owner or tenant or as a mortgagee with possession or partly in one capacity or partly, in another, land with the State of Haryana exceeding the permissible area on or after the appointed day.

Explanation

where the person is a family including the separate unit if any, the land owned or held by such person together with the land owned or held by the members of the family and the separate unit, shall be taken into account for the purpose of calculating the permissible area.

Section 9 of the Haryana Act, reads as under:

Selection of permissible area and person required to furnish declaration:

(1) Every person, who on the appointed day or at any time thereafter holds land exceeding the permissible area shall within a period of three months from such date as the State Government, by notification, specify in this behalf or subsequent acquisition of of land, furnish to the prescribed authority a declaration supported by an affidavit giving the particulars of all his land and that of the separate unit in the prescribed form and manner and stating therein his selection of the parcel or parcels of land not exceeding in aggregate the permissible area which he desired to retain.

Provided that in case of member of the Armed Forces of the Union (the last date for furnishing the declaration shall be the 31st'' October, 1976).

Explanation I. xxx xxx xxx

Explanation II. In calculating the extent of land owned or held by a person, the share of such person in the land owned or held by an undivided family, firm or association of individuals, whether incorporated or not, and the land contributed as share capital or otherwise by him to a cooperative society or a company of which he may be a member of share-holder, shall be taken into account.

(2) Every person making a selection of the permissible area under Sub-section (1) may also select land for the separate unit.

Explanation: An adult son, who owns or holds land and is living separately from his parents, shall file the declarations under Sub-section (1) and make the selection of permissible area under Sub-section (2) separately.

(3) In making the selection of such person shall include In the first place the land which had been transferred by him after the appointed day In contravention of the provisions of Section 8 and in the second place the land mortgaged by him without possession, but shall not include any land ;

(i) which is declared surplus ;

(ii) which was under the permissible area of the tenant; under the Punjab Law or the Pepsu Law.

(4) The declaration under Sub-section (1) shall be furnished by:

(a) in the case of an adult unmarried person, such person ; be in case of a minor lunatic, idiot, or a person subject to like disability, the guardian, manager, or other person in charge of such person or of the property of such person ;

(c) in case of a family, the husband or in his absence, the wife or in the absence of (sic) the guardian of the minor children ;

(d) in the case of any other person, any person competent to act for such person in this behalf.

Section 10 of the Haryana Act reads as under:

Selection of permissible area by the prescribed authority ;

If a person fails to select the permissible area in accordance with the provisions of Section 9, the prescribed authority may, after collecting the information in such manner as it may deem fit, by order select the permissible area of such person ,

Provided that no such order shall be made without giving all persons interested an opportunity of being heard." Section 12 of the Haryana Act reads as under:

Vesting of surplus area--

(1) The surplus area of a land owner shall from the date on which it is declared as such shall be deemed to have been acquired by the State Government for the public purpose and all rights, title and interest (including the contingent interest, if any recognised by any law, custom or usage for the time being in force) of all person in such area shall stand extinguished and such rights, title and interest shall vest in the State Government free from any en-cumberance.

Provided that where any land within the permissibe area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.

(2) The right and interest of the tenant in his surplus area which is included within the permissible area of the land owner shall stand extinguished.

(3) The area declared surplus or tenant''s permissible area under the Punjab Law and the area declared surplus under the Pepsu Law, which has not so far vested in the State Government, shall be deemed to have vested in the State Government with effect from the appointed day and the area which be so declared under the Punjab Law or the Pespu Law after the appointed day shall be deemed to have vested in the State Government with effect from the date of such declaration.

(4) For the purposes of determining the surplus area under this Act, any judgment, decree or order of a Court or other authority, obtained after the appointed day and having effect of diminishing the surplus area shall be ignored.

Section 4 of the Haryana Act deals with the extent of permissible area to which a land owner is entitled. Section 9 of the Haryana Act pertains to the selection of permissible area by a landowner and it postulates that a land owner is entitled to select permissible area for himself and for his adult son who is living separately from his parents. u/s 10 of the Haryana Act, if the selection is not made by the landowner as enjoined by Section 9 of the Haryana Act.....meaning thereby that the prescribed authority while making the selection will comply with the provision of Section 9 of the Haryana Act. Section 12 of the Haryana Act deals with the vesting of surplus area. Sub-section (3) of Section 12 provides that the area which has been declared surplus under the Punjab Act or the Pepsu Law and which has not so far been vested in the State Government, shall be deemed to have vested in it with effect from the appointed date and the area which may be declared surplus under the Punjab Act or the Pepsu Act after the appointed day shall be deemed to have been vested in the State Government with effect from the date of such declaration. The idea behind is that the land which has been declared surplus under the Puajab Act will be deemed to have vested in the State with effect from the appointed date viz January 24, 1971.

12 Under Sub-section (3) of Section 12 of the Haryana Act, that land will vest in the State which is capable of vesting The provisions of Sections 4, 7, 9 and 12 of the Haryana Act have to be harmoniously construed. Each provision has to be given full effect If the precise words used are plain and unambiguous we are bound to construe them in their ordinary sense and give their full effect Where the language is explicit its consequences are for legislature, and not for the courts, to consider.

"Where the language of an Act is clear and explicit", said Viscount Simon in AIR 1945 48 (Privy Council) , "We must give effect to it whatever may be the consequences for in that case the words of the statute speak the intention of the legislature " This judgment was followed by the Apex Court in Ajay Pradhan Vs. State of Madhya Pradesh and Others, . Resultantly, under Sub-section (3) of Section 12 of the Haryana Act, the Surplus land will vest in the State. The land owner will be entitled to select a permissible area for himself and for his adultson. If he does not select the land for his family and his adult son, the Collector is bound to make the selection keeping in view the provisions of Section 9 of the Haryana Act After the selection has been made either by the land owner and in the event of his failure by the Collector, the remaining land will be surplus and that will vest in the State under the 12 of the Haryana Act. This can be the only proper construction of the statute. Sub-section (3) of Section 12 of the Haryana Act, is not pari materia with Section 9 of the Punjab Land Reforms Act. u/s 9 of the Punjab Land Reforms Act the Collector has to pass order directing the land owner to surrender possession of such area which has become surplus under the Punjab Act or under the Pepsu Act. Under the Haryana Act, there is auto-matic vesting of the surplus area as is suggested by Sub-section (3) of Section 12 of the Act but that automatic vesting of the surplus land will be after its determination in conformity with Sections 9 and 10 of the Act. If the provisions of Sub-section (3) of Section 12 of the Haryana Act, are construed in this manner, then the ratio of the Full Bench judgment of this Court in Ranjit Ram Vs. The Financial Commissioner, Revenue Punjab, Chandigarh and Others, is attracted where it was held as under:

A landowner whose land has been declared surplus under the Punjab Security of Land Tenures Act, 1953, or under the Pepsu Tenancy Agricultural lands Act, 1955, who has not been divested of the ownership of the surplus area before the Punjab Land Reforms Act, 1973, is entitled to select the permissible area for his family and for each of his adult sons in view of the provisions of Section 4 read with Section 50 of the Land Reforms Act.

It is no doubt true that under the provisions of Section 8, the area which has been declared surplus under the Punjab Law or the Pepsu Law, can also vest in the State Government, but this section cannot be interpreted to mean that the area of a land owner declared surplus, whose case falls within the purview of Sections 4 and 5 of the Reforms Acts, can be taken possession of u/s 8 of the Reforms Act. There may be cases where the surplus area has been declared under the Punjab Law or the Pepsu Law, but such cases do not fall within the purview of Sections 4 and 5 of the Reforms Act. In those cases, the area so declared surplus becomes final and the State Government under the provisions of Section 8 of the Reforms Act is entitled to take possession of the same so as to divest the owner of the ownership of the land so declared surplus. Thus, the provisions of Section 8 of the Reforms Act would be fully complied with when possession in such cases is taken by the State. Section 8 of the Reform Act cannot be interpreted in seclusion. The said provision is subject to the provisions of Sections 4 and 5 read with Section 7 of the Reforms Act. The Legislature clearly intended that landowners, who own land more than the permissible area as defined in the Reforms Act, their case had to be processed again on the touchstone of the provisions of Sections 4 and 5 of the Reforms Act. This conclusion is farther reinforced in view of the provisions of Section 28(2) of the Reforms Act, under which all pending cases at the time of enforcement of the Reforms Act have to be processed in accordance with the provisions of the Punjab Law or Pepsu Law, as the case may be. The cases of the landowners, who owned land more than the permissible area either under the Punjab Law or under the Pepsu law could be only of two categories: firstly, the cases which already stand concluded with the enforcement of the Reforms Act, and secondly, the cases which were yet pending at the commencement of the Reforms Act. The Legislature clearly provided that all such pending cases shall be processed as if the Land Reforms Act. had not been passed, but the area so declared surplus shall vest in the State Govt, in accordance with the provisions of the Reforms Act. Cases can be visualise where landowners might have been given permissible area, which area, may happen to be more than permissible area under the Reforms Act. In such cases after pending proceedings are disposed of in accordance with the provisions of the previous Acts, the Legislature intended that the same may be reprocessed in accordance with the provisions of Sections 4 and 5 of the Reforms Act. Thus, the scheme of the Act appears to be clear that all cases shall first be processed in accordance with the provisions of the Punjab Law or Pepsu Law, as the case may be, and if out of those cases, any case satisfies the ingredients of Sections 4 and 5 of the Reforms Act, the same shall have to be reprocessed. It would thus be seen that finality in all cases where the area had been declared surplus, has not been given by the Legislature and some cases which fell within the purview of Sections 4 and 5 of the Reforms Act, shall have to be reprocessed even if the area had already been declared surplus under the Punjab Law or the Pepsu Law.

The only answer possible is that the land owner will be entitled to select the permissible area for his family and for each of his adult sons on the appointed day and after the selection, the remaining land will be surplus land and will vest in the State.

There is yet another aspect of the matter which has to be highlighted and that is how the surplus land has to be utilised by the authorities. This question was settled by the Apex Court in Financial Commissioner, Haryana and Ors. v. Smt. Kela Devi and Anr. 1980 P. L. J. 121, wherein it was held thus:

In order to understand the full meaning and effect of the provisions of Section 10-A. it is necessary to make a cross reference to rules 18, 20-A, 20-B and 20-C of the Punjab Security of Land Tenures Rules 1956 (hereinafter referred to as the Rules). Rule 18 deals with the procedure for allotment of "surplus area" to other resettled tenants. Rule 20-A provides for the issue of certificates of allotment of lands to them and Rule 20-B provides for delivery of possession and make it obligatory for the resettled tenant to take possession of land allotted to him within a period of two months or such extended period as may be allowed by the officer concerned. Rule 20-C provides, inter-alia, for the execution of a "qabuliyat" or "Patta" by a resettled tenant. It would thus appear that while allotment of land is an initial stage in the process of utilisation of the "surplus area", it does not complete that process as it is necessary for the allottee to obtain a certificate of allotment, take possession of the land within the period specified for the purpose, and to execute "qabuliyat" or "patta" in respect thereof. The process of utilisation contemplated by Section 10-A of the Act is therefore complete in respect of any "surplus area", only when possession thereof has been taken by the allottee or the allottees and the other formalities have been completed, and there is no force in the argument that a mere order of allotment has the effect of completing that process.

The allotment is not complete merely by putting the allottee in possession of the property but only when the allottees fulfils and complies with the mandatory provisions of Section 10-A, rules 18, 20-A, 20-B and 20-C of Punjab Security of Land Tenures Rules. Accordingly, I allow the writ petitions, quash the impugned orders in all the writ petitions and remit the same to the Collector of the respective areas to redetermine the surplus areas of the landowner in the light of the observations made in this writ petition.