Ghasi vs The Commissioner, Ambala Division

T.H.B. Chalapathi, J.—The petitioner was a tenant of 43 Kanals 4 marlas of land in Killa Nos. 5, 6 of Rectangle No. 103 and Killa Nos. 1, 10, 11 of Rectangle No. 104. Originally, the land belonged to land-owner Kehri. Under the Punjab Security of Land Tenures Act 1953 (hereinafter referred to as ''the Act'') the land-owner Kheri was declared to be in possession of surplus land and the land in occupation of the petitioner was included as the surplus land of the land-owner. The petitioner made application to the authorities concerned for purchase of the surplus land of which he was a tenant. His application was allowed by the Assistant Collector Ist Grade, Rohtak on 29.2.1964. The petitioner filed an appeal against the said order in regard to the payment of compensation while the land-owner filed an appeal against the petitioner to allowing him to purchase the land. The Collector, Rohtak by his order dated 28.4.1965 confirmed the orders of Assistant Collector Ist Grade, Rohtak and allowed the application of the petitioner for purchase of the surplus land to the extent of 39 kanals 8 marlas on payment of Rs. 3767.62 Paise. The said order has become final and the petitioner has paid the amount of instalments and has been continuing in possession of the property by virtue of the order of the Assistant Collector Ist Grade, Rohtak as confirmed by the Collector, Rohtak on 28.4.1965. Subsequently, the Haryana Ceiling on Land Holdings Act, 1972 came into force. It appears that the authorities acting under the said Act included the land which was purchased by the petitioner in the holdings of the land-owner and treated it as surplus land of the land-owner under the provisions of 1972, Act. The petitioner further came to know that the land in his possession was allotted to one Bharat Singh by the authorities on 10.12.1976. Therefore, he filed an application for cancellation of the said allotment to Bharat Singh. The said application came for hearing before the Collector Agrarian, Rohtak and by his order dated 3.8.1977 the Collector Agrarian, Rohtak dismissed the application of the petitioner holding that the petitioner was not entitled to purchase the surplus land u/s 18 of the Act. The said order was also confirmed by the Commissioner, Ambala Division in Executive Appeal No. 191 of 1976-77 dated 28.9.1980. Challenging the orders of the Collector Agrarian, Rohtak dated 3.8.1977 in Case No. 30/C.A.R. and the Commissioner, Ambala Division in Executive Appeal No. 191 of 1976-77 dated 28.9.1980, the petitioner filed the present writ petition. The undisputed facts are as follows:-

The land in question originally belonged to Ghasi son of Jug Lal. He was declared as a surplus land-owner under the provisions of the Punjab Security of Land Tenures Act, 1953 and the land in question was included in the surplus land of the land-owner. According to the petitioner, he was a tenant of the said land. He applied to the authorities for purchase of the surplus land u/s 18 of the Act. His application was allowed by the Assistant Collector Ist Grade, Rohtak on 29.2.1964. The same was confirmed on appeal by the Collector on 28.4.1965. Thereafter the petitioner paid the installments as required under the Act and continued to be in possession of the same. Thus, the transfer in favour of the petitioner of the land in question which was declared surplus land of the land-owner Kheri has become final. After the enactment of the Haryana Ceiling on Land Holdings Act, 1972, the authorities included, this land as surplus land alongwith some other land of the land-owner. On its inclusion, the authorities allotted this land to a person Bharat Singh who is respondent No. 8 in this writ petition. It is pertinent to note that respondent No. 8 did not put in appearance in this writ petition and has not chosen to contest this writ petition. Having come to know of the allotment of the land in favour of respondent No. 8, the petitioner moved an application to the Collector Agrarian, Rohtak for cancellation of the land in favour of Bharat Singh on the ground that the allotment of surplus land in the year 1965 has become final and, therefore, the land should not be treated as land held by the land-owner under the provisions of the Haryana Ceiling on Land Holdings Act, 1972. Therefore, this land, held by the land-owner cannot be treated as surplus land of the land-owner. It is contended by the learned Assistant Advocate General that the State of Haryana is not a party to the proceedings for allowing the petitioner to purchase the surplus land of Kheri in the year 1965 and, therefore, the same is not binding on the State of Haryana and the State can include that land which was transferred to the petitioner in the holdings of the original owner Kheri, respondent No. 5.

The fact that the land was allowed to be purchased by the petitioner, by the Assistant Collector Ist Grade, Rohtak and the Collector Agrarian, Rohtak in the year 1964-65 is not in dispute. It is no doubt that the State of Haryana was not a party in those proceedings, but it does not mean that every order u/s 18 of the Act, is to be set aside on that ground. The order passed u/s 18 of the Ac can only be set aside if the order was procured to diminish the holding of the land-owner so as to enable him to deprive the State from acquiring the surplus land.

It has been held in State of Punjab (Now Haryana) and Others Vs. Amar Singh and Another, as follows:-

" Nor is therefore in the argument that the benefit u/s 18 would be" completely nullified and obliterated" if Section 10-A(C) were to apply to it. It is wrong for the Court to have said that "in every case" orders u/s 18 would have to be ignored. That is not the result of Section 10-A. All the three sub-clauses of that section read together show that if the landlord by any act or omission of his suffered a diminution in the surplus area by a transfer, voluntary or otherwise, in favour of another, contrary to the right of the State Government to dispose of it, such a transfer only is liable to be set aside. Thee tenants described in Section 18 in whose favour the authority sanctions the purchase of the land are not transferees whose transfers have to be set aside as being contrary to the right of the State Government. Actually, the bulk of the Cases u/s 18 would be by tenants who are eligible to purchase by virtue of six years'' continuous occupation u/s 18(1). Their purchases would often be from land which is their permissible area. Every tenant with six years'' standing, be it before or after the commencement of the Act, will be entitled to buy the ownership. Of course, if he is within the reserved area he is liable to be evicted even before he purchases but if he is outside the landlord''s reserved area he can move for purchase. Such a purchase being from the permissible area of the tenant is outside the surplus area of the landlord and does not diminish "the area of such person which could have been declared as his surplus area." Ex hypothesi ''surplus area'' excludes a tenant''s permissible area. Therefore, even if that land falls outside the reserved area of the landowner, if it is within the tenant''s permissible area, its purchase by the tenant cannot diminish the land-owner''s surplus area."

In the case in hand, the surplus land of the land-owner was already declared as surplus land under the provisions of the Punjab Security of Land Tenures Act, 1953. After the surplus land was declared surplus, the petitioner who claimed to be in possession of the same, applied u/s 18 of the said Act for allowing him to purchase the land from the land-owner. The said application was allowed by the authorities concerned and it has become final. It is not the case of the Government now that the application for purchase was made by the petitioner-tenant to diminish the land-owner''s surplus area. Whether the authorities in the present proceedings decided correctly that the petitioner was a tenant, is not a question to be convassed at this stage. The order has to be tested between vis-a-vis the land-owner and the State Government, not vis-a-vis the tenant and the State. Where the orders u/s 18 of the Act have to be nullified, the test is whether the land owner is getting any benefit out of the order passed u/s 18 of the Act. If the land-owner is not getting any benefit then, there is no question of nullifying or obliterating the order u/s 18 of the Act. Therefore, it is not open to the authorities to re-open the question whether the petitioner is a tenant or not. When in earlier proceedings it has been held that the petitioner was a tenant, it is not open to the State Government to contend that he was not a tenant unless the State Government is able to show that by allowing the purchase of the land by the tenant, the land-owner''s surplus land gets diminished. Admittedly, there is no question of land-owner''s land being diminished in this case as the surplus land of the landowner has been decided under the Punjab Security of Land Tenures Act, 1953 and only after such determination the petitioner was permitted to purchase the surplus land of the land-owner. The petitioner has also paid the price of the land at the rates prescribed under the order of the Collector dated 28.4.1965. His possession continued to be for over 12 years, after the final orders were passed by the Collector vide Annexure P2 of the writ petition. I am, therefore, of the opinion that the authorities erred in passing the impugned orders under Annexures P-3 and P-4 dated 3.8.1977 and 28.9.1980 respectively.

The writ petition is accordingly allowed and the impugned orders of the Collector Agrarian, Rohtak dated 3.8.1977 and the Commissioner Ambala Division dated 28.9.1980 are hereby quashed.