Narpat Singh vs State of Haryana

S.S. Kang, J.

Whether a transfer of land by landowner in excess of his area before 30.7.1958, which land has been declared surplus under the Punjab Security of Land Tenures Act and which land had been allotted to a tenant in accordance with the scheme framed under the Punjab Security of Land Tenures Rules can be ignored while determining the surplus area of such a landowner under the Haryana Ceiling on Land Holdings Act is the primary question agitated in this Writ Petition under Articles 226/227 of the Constitution. It has been filed under the following circumstances.

Narpat Singh petitioner owned 33 standard acres and 1 unit of land on April 15, 1953. Thus he had three standard acres and 1 unit of land in excess of the permissible area i.e. 30 standard acres prescribed under the Punjab Security of Land Tenures Act, 1953 (the `Punjab Law'' for short). Narpat Singh effected bona fide transfer of 12 standard acres and 91/4 units of land by a registered sale deed to Rampat, Om Datt and others. The vendees were rank strangers to Narpat Singh petitioner. After this transfer the petitioner was left with 20 standard acres and 73/4 units of land on 30.7.1958 which was well within the permissible area of 30 standard acres.

The Collector Surplus Area, Sonepat, decided the surplus area case of the petitioner in accordance with the provisions of the Punjab Law on 29.2.1960 and declared 3 standard acres and 1 unit of land equivalent to 40 ordinary Kanals and 2 ordinary Marlas as surplus in the petitioner''s hands ignoring the sale made to Rampat, Om Datt and others. Under the Punjab Act, land declared surplus was included in the surplus pool but it continued to be in the ownership of the landowner. Baljit Singh respondent No. 4 to this petition was allotted the land declared surplus in the petitioner''s hand in accordance with Part IV of the Punjab Security of Land Tenures Rules (for short, the Rules) Under Rule 20C of the Rules a tenant who is resettled on the surplus land becomes a tenant of the landowner in whose name the land in question stands in the revenue record. He is liable to pay the customary rent to the landowner and is required to execute a Qabuliyat or a Patta in favour of the landowner before he is put in possession of the land. In short, the allottee of the surplus land, according to the Punjab Law, does not acquire the land comprised in his tenancy. After being declared surplus, this land does not come to vest in the State and remains the property of the landowner. Though Baljit Singh became a tenant under the petitioner on allotment of the surplus land to him on 25.9.1964, he did not make any application for acquiring the proprietary rights therein under Section 18 of the Punjab Law.

The Haryana Ceiling on Land Holdings Act (hereinafter referred to as `The Haryana Act'') was enacted by the Haryana Legislature and came into force on December 23, 1972. Section 6 provided that save as otherwise expressly provided in that Act, the provisions thereof shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Thus the provisions of the Haryana Act had overriding effect over the Punjab Law. According to Section 8 of the Haryana Act all transfers or dispositions of land even if they were in excess of the permissible area determined under the Punjab Law were protected if they were made prior to 30.7.1958. In a way for determining whether the petitioner had any area of land in excess of his permissible area under the Haryana Act the holding of such a landowner on 30.7.1958 had to be a reckoned. The petitioner had owned and possessed 20 standard acres and 73/4 units of land on 30.7.1958. The order of the Collector dated 29.2.1960 declaring 3 standard acres and 1 unit of petitioner''s land as surplus was rendered ineffective by virtue of the provisions of Section 6 of Haryana Act. Same applies to the order dated 25.9.1964 allotting the surplus area of the petitioner to respondent No. 4 as a tenant. Respondent No. 4 did not make any application under the Haryana Utilisation of Surplus and Other Areas Scheme, 1976, framed in accordance with the provisions of the Haryana Act for being allotted any surplus area. Since the surplus area belonging to the petitioner had not been utilised under the 1976 scheme, it did not come to vest in the State Government under Section 12(1) of the Haryana Act as it originally stood.

The petitioner along with other landowners of Haryana challenged the vires of different sections of the Haryana Act by means of Writ Petition No. 7393 of 1976 but the same was dismissed with the observations that the petitioners should first approach the Collector Agrarian for obtaining the benefit of Section 8 of the Haryana Act. The petitioner made application on 8.3.1977 to the SubDivisional Officer (Civil)cumCollector (Agrarian), Sonepat, for obtaining the benefit of Section 8 of the Act. The Collector (Agrarian) respondent No. 3 vide his order dated 15.11.1977 accepted this application and allowed the petitioner benefit of Section 8 of the Haryana Act on the ground that because of the transfer of land made by the petitioner before 30.7.1958, the ownership of the petitioner had been reduced to less than the permissible area under the Punjab Law and the petitioner was entitled to the benefit of the provisions of Section 8 of the Haryana Act; his surplus area had not vested in the State. The petitioner was not a big landowner and his area declared surplus under the Punjab Act was excluded from the surplus pool. A copy of this order dated 15.11.1977 of the Collector (Agrarian) is appended as Annexure P1 to this petition. Aggrieved by this order Baljit Singh the tenant filed an appeal and the same was allowed by Collector, Sonepat on 29.8.1978. A copy of this order is appended as Annexure P2. The Collector held that under Section 8 of the Haryana Act recognition had been given only to the transfer of the land beyond the permissible area and effected prior to 30.7.1958. The area beyond the permissible area here means the surplus area. The object of Section 8 was to save those persons who had purchased the land due to ignorance prior to 30.7.1958. Since Narpat Singh landowner has sold the land out of his permissible area, therefore, benefit under Section 8 of the Haryana Act cannot be given to him. Aggrieved, Narpat Singh has filed the present writ petition.

At the motion stage it was argued by the petitioner before the Division Bench that the State Government had issued instructions, Annexure P3, giving direction as to how Section 8 of the Haryana Act had to be interpreted and further that the petitioner was claiming violation of his fundamental rights; so nonavailing of the remedy by way of appeal or revision should not stand in his way. On this the Bench had issued a notice of motion and ultimately admitted the case. So, at this stage the argument regarding availability of an alternative remedy as raised in the written statement of the respondents cannot be entertained.

It will be appropriate to read at the threshold, Section 6 and relevant part of Sections 8 and 12 of the Haryana Act.

``6. Act to override other laws, decrees, orders etc. Save as otherwise expressly provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any Court or other authority.''''

``8. Certain transfers not to affect surplus area. (1) Save in the case of land acquired by the Union Government or the State Government 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 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, 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:

Provided that any person who has received an advantage under such transfer of land shall be bound to restore it, or to pay compensation for it, to the person from whom he received it............''''

``12. Vesting of Surplus Area. (1) The surplus area of a landowner shall, on the date on which possession thereof is taken by or on behalf of the State Government, be deemed to have been acquired by the State Government for a public purpose on payment of amount hereafter provided 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 persons in such area shall stand extinguished and such rights, title and interest shall vest in the State Government free from any encumbrance:

Provided that where any land within the permissible 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 landowner shall stand extinguished.

(3) The area declared surplus or tenant''s permissible area under 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 may be so declared under the Punjab Law or the Pepsu Law after the appointed day shall be deemed to have vested in the State Government with effect from the date of such declaration.''''

The above noted provisions of law came for interpretation by a Full Bench of this Court in Jaswant Kaur v. State of Haryana, 1977 PLJ 230. Later another Full Bench had an occasion to construe these very provisions in State of Haryana and others v. Chandgi, 1981 PLJ 494. So it will be an exercise in futility to endeavour to interpret these provisions on first principles. The law has been succinctly laid down (if I may say with greatest respect) in Jaswant Kaur''s case (supra) and I cannot do better than to reproduce the submissions of the learned counsel for the parties in that case and the findings of their Lordships of the Full Bench. They read as under :

``The submission of the learned counsel was that there was glaring inconsistency between Section 12(3) and the two earlier provisions of Section 4(1) and Section 8. It was said that while Section 4(1) provided for the determination of the permissible area of the tenant also, Section 12(3) prescribed that the tenant''s permissible area under the Punjab Law which had not so far vested in the Government shall be deemed to have vested in the State Government with effect from the appointed day. The argument was that if the land vested in the Government what was the point of determining a tenant''s permissible area under the Act? It was again said that while Section 8 saved certain transfers from the operation of the Act, Section 12(3) made no such exception in favour of those transfers. For example, it was said that land which was declared surplus under the Punjab Security of Land Tenures Act but which was unutilised and later acquired by the Central Government would vest under Section 12(3) in the State Government notwithstanding the acquisition by the Central Government. Similarly, land purchased by a tenant under the provisions of Section 18 of the Punjab Security of Land Tenures Act would vest in the State Government under Section 12(3) notwithstanding the purchase by the tenant. So also, in the case of transfers by inheritance. Even transfers made before 30th July, 1958 [the date mentioned in Section 8(1)(a)], it was argued, would not be saved if they were made after the declaration of surplus area or tenant''s permissible area under the Punjab Security of Land Tenures Act.''''

The Bench held that :

``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 endeavouring to harmonise and reconcile every part so that each shall be effective. A closer and critical examination of the provisions shows 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 it was 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 come into force on 23.12.1972. A harmonious way of construing Sections 8 and 12(3) would be to give full effect to Section 8(1) upto 23.12.1972, that is to say, to exclude from the operation of Section 12(3) the transfers made upto 23.12.1972 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 an heir by inheritance. Other transfers of land in excess of permissible area under the Punjab Law or the Pepsu Law would be protected if the transfers were made prior to 30.7.1958. 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.''''

This view was reiterated in Chandgi''s case (supra), their Lordships observed as under :

``A bare perusal of the aforesaid observations of the Bench clearly go to show that besides the transfer which are protected by Section 8(1) of the Act, other transfer of land in excess of permissible area under the Punjab Law or the Pepsu Law, would be protected if the transfers were made prior to 30th July, 1958. In view of the law laid down by the Bench in Shmt. Jaswant Kaur''s case (supra), it would be futile for the learned Additional Advocate General to argue that the sale made by Chandgi in favour of Teka on 10th December, 1957, has to be ignored. Mr. R.S. Mittal, learned counsel for the respondent, is right in contending that the Collector by his order dated 27th November, 1975, has done nothing else than giving effect to the provisions of Section 8(1) of the Act. Thus, in view of the law laid down in Shmt. Jaswant Kaur''s case, I hold that the sale made in favour of Teka by Chandgi could not legally be ignored and that the surplus area of Chandgi had to be determined taking into consideration the said sale. In this view of the matter, the judgment of the learned Single Judge resulting in allowing the petition of Chandgi respondent and in setting aside the order of the Financial Commissioner, dated 16th August, 1977, is perfectly legal and no exception can be taken to the same.''''

In the present case, Baljit Singh tenant had not acquired the surplus land of the petitioner under the Punjab Law. He had just been allotted that land and had been resettled thereon under Rule 20C of the Rules. He only became a tenant on that land under the petitioner liable to pay rent to him and to execute a Qabuliyat or a Patta in his favour. All this shows that he had not acquired the land in dispute. So, the protection of Section 8 was fully available to the sale of the land by the petitioner to Rampat, Om Datt and others prior to 30.7.1958. By operation of law, this land stood taken out of the surplus pool and was not available for resettlement of the tenants under the scheme prepared for this purpose in pursuance of the provisions of Haryana Act.

In the result, the question raised in the writ petition is answered in the negative. The writ petition is allowed and the order Annexure P2 of the Collector, Sonepat, is quashed.