Manphul vs The State of Punjab and Others

T.H.B. Chalapathi, J.—The petitioner was a tenant in respect of Khasra Nos. 6195/4358, 4311 and 4312. Originally, the land belonged to land-owner Dalip Singh and his sons Atter Singh and Sher Singh. Under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as ''the Act'') the landowner Dalip Singh was declared to be in possession of surplus land and the land in possession of the petitioner was included as the surplus land of the land-owner. After determination of surplus area under the Act, the tenant namely ''the petitioner'' herein made an application u/s 18 of the Act for purchase of surplus land of which he was a tenant. His application was allowed in respect of Khasra No. 6195/4308 measuring 2.8 acres and 4312 measuring 2.13 acres situated in village Mokhra Kheri by an order of the Assistant Collector 1st Grade, Gohana dated 11.1.1968 on condition of the petitioner''s paying a consideration of Rs. 904.71 paise. The said order has become final and the petitioner has been continuing in possession of the said land. While so, the authorities included the said land in the surplus land of the land-owner while deciding the excess land of said land-owner under the provisions of Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as ''the Haryana Act''). The petitioner objected to the inclusion of (and purchased by him in the holding of the land-owner and treating it as the surplus land of the landowner under the provisions of the Haryana Act. Therefore, he filed an application before the Sub Divisional Officer (Civil) and Prescribed Authority, Rohtak for release of the said land from the surplus area of the land-owner. The Sub Divisional Officer (Civil) and Prescribed Authority, Rohtak by his order dated 16.8.1979 held that the purchase of the land by the petitioner u/s 18 of the Act is not valid and the petitioner is not entitled to get exemption from utilisation. In his order, he referred to (1974) 76 P.L.R. 74. Against the said order, the petitioner filed an appeal before the Collector, Rohtak who by his order dated 5.5.1980 held that the purchase is legal and therefore, allowed the appeal and granted leave of the land out of the surplus pool. He further held that if the Government establishes any tenant on this land, he may be shifted to some other surplus land. Against the order of the Collector, the State of Haryana filed an appeal before the Commissioner, Ambala Division who by his order dated 12.12.1980 allowed the revision petition of the State and set aside the order of the Collector dated 5.5.1980 and restored the order of the Sub Divisional Officer (Civil) dated 16.8.1979. Aggrieved by the order of the Commissioner Ambala Division in Ex. Revision No. 164 of 1979-80, the writ petitioner filed the above writ petition for quashing the order dated 12.12.1980.

There is no dispute that the land in question originally belonged to Dalip Singh who was declared as surplus land-owner under the provisions of 1973, Act 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 and he applied to the authorities for purchase of the same u/s 18 of the Act. His application was allowed by the Assistant Collector Ist Grade, Gohana on 11.1.1968. The said order became final. After the enactment of the Haryana Ceiling on Land Holdings Act, 1972, the authorities included the land purchased by the petitioner in the holdings of the land-owner as surplus land alongwith some other land of the land-owner. The petitioner aggrieved by the same, approached the Sub Divisional Officer, Rohtak under the Haryana Act saying that the land was purchased by him under the Act cannot be included in the holding of the land-owner. The learned State counsel contended that the State of Haryana is not a party to the application filed by the petitioner for purchase of surplus land u/s 18 of the Act and, therefore, the order of Assistant Collector Ist Grade, Gohana dated 11.1.1968 is not binding on the State and, therefore, the State can include the said land in the holdings of the landowner for the purpose of determining the surplus land in the hands of the landowner under the provisions of the Haryana Act.

The fact that the land was allowed to be purchased by the petitioner in the year 1968 is not disputed. It is no doubt true that the State of Haryana was not a party to the proceedings initiated by the tenant under the provisions of Section 18 of the Act but it does not mean that the order passed u/s 18 of the Act has to be invariably set aside on that ground. The order passed u/s 18 of the Act can only be set aside if it is shown that the order passed u/s 18 of the Act was procured to diminish the holding of the land-owner so as to enable him to deprive the State from acquiring the surplus land in the hands of the land-owner. In this context, it is useful to refer to the decision of the Supreme Court in State of Punjab (Now Haryana) and Others Vs. Amar Singh and Another, wherein it was observed as follows:-

"Nor is there force 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-clause 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. The 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 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 hypothesis ''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 on hand, the surplus land of the land-owner was already declared surplus under the provisions of the Punjab Security of Land Tenures Act, 1953. After determination of the surplus land in the hands of the land-owner, the petitioner who claimed to be in possession of the same as tenant applied for purchase of the same u/s 18 of the Act. The said application was allowed by the authorities concerned and the said order 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 for the purpose of determination of surplus land in the hands of the land-owner under the provisions of Haryana Ceiling on Land Holdings Act, 1972. Whether the authorities in the earlier proceedings came to a correct conclusion that the petitioner was a tenant, is not a question to be convassed at this stage. The order u/s 18 of the Act allowing the tenant to purchase the land has to be tested vis-a-vis the landowner and the State Government and not vis-a-vis the State Government and the tenant. The test for nullifying the effect of the order passed u/s 18 of the Act, is to see whether the land owner is getting any benefit out of the order passed by the authorities u/s 18 of the Act. If the land-owner is not getting any benefit from the said order, then there is no question of nullifying or obliterating the order passed u/s 18 of the Act. Therefore, it is not open to the authorities to re-open the question whether the petitioner was a tenant or not when it was decided in the earlier proceedings that the petitioner was a tenant, it is not open to the State Government at this stage to contend that he was not a tenant unless the State Government is able to show that by allowing the tenant to purchase the surplus land of the landowner, the landowner''s surplus area gets diminished. Admittedly, there is no question of landowner''s surplus area, being diminished as the surplus land of the land-owner was already declared surplus under the provisions of the Punjab Security of Land Tenures Act, 1953 and only after determination of such surplus area, the petitioner was permitted to purchase the surplus land of the land-owner. His possession continued for over 12 years after the order passed in 1968. I am, therefore, of the opinion that the Collector rightly held in his order dated 5.5.1980 that the land which has been purchased by the petitioner under the Punjab Security of Land Tenures Act, 1953 is legal.

I, therefore, set aside the order of the Commissioner Ambala Division in Ex. Revision No. 164 of 1979-80 dated 12.12.1980 and restore the order of the Collector, Rohtak in Case No. (143 CRR) 4/E, dated 16.8.1979, dated 5.5.1980. The writ petition is accordingly allowed.