Partap Singh vs The Financial Commissioner and Others

K. Kannan, J.—The writ petition challenges the order passed by the authorities constituted under the Haryana Ceiling on Land Holdings Act

of 1972 (for short, the 1972 Act) and for the benefits of allotment made under the Haryana Utilization of Surplus Area Scheme of 1976 (for short,

the 1976 Scheme). The admitted case was that the landowner-Sheo Karan was treated to be a big landowner whose holdings were declared to

have fallen as surplus under the Punjab Security of Land Tenures Act. On 30.06.1961, the 5th respondent-Ran Singh claimed a purchase right u/s

18 of the Punjab Security of Land Tenures Act and it appears that certain proceedings had taken place at the instance of the sons of Sheo Karan

and the sale made in favour of Ran Singh was set aside. The case ended with the decision of the Supreme Court on 1988 holding the sale in favour

of the 5th respondent as invalid. The 5th respondent had, however, secured an allotment of the property as a Category-B tenant brought through

the order in Annexure PI, dated 30.08.1976. The allotment was purported to be in respect of surplus land already declared by way of utilization

under the 1976 Scheme.

The learned counsel for the petitioners-landowners have challenged the proceedings before the authorities making the allotment in favour of the

5th respondent on the following grounds:--

(i) Sheo Karan died on 01.05.1969 and since the property had remained un-utilized, the property fell to inheritance to his sons and if holding was

required to be redetermined, the property that fell under inheritance was not available for resettlement of an ejected tenant as set forth u/s 10A(b)

of the Punjab Security of Land Tenures Act;

(ii) The father had dealt with the property by means of a partition decree passed on 12.07.1958 with his sons and since the transaction had been

brought before 30.07.1958, it was exempt from vesting in the State transferred u/s 8 of the 1972 Act;

(iii) ""Category-B tenant"" as defined under the 1976 Scheme is in respect of tenant who is ordered to be evicted u/s 9 of the Punjab Security of

Land Tenures Act and since the property came to the 5th respondent from the father to his son-in-law much after the declaration was made in a

collusive fashion, he could not be treated as a tenant entitled to an allotment.

As regards the effect of inheritance, the contention of the State is that Sheo Karan did not die only on 01.05.1969, as contended by the

petitioners. In proof of the contention, a copy of the death certificate of Sheo Karan had also been filed as Annexure R1 which shows that Sheo

Karan died only on 01.05.1979. If the succession had taken place only on 01.05.1979, that is, after the vesting u/s 12 itself, it would have no

effect at all. This has been amply brought out through the decision of the Supreme Court in Ram Swarup and Others Vs. S.N. Maira and Others, .

I, therefore, reject the contention that the succession operates to exclude the properly. The learned counsel refers to me to the decision in Deva

Singh (died) now through his L.Rs. and others v. State of Haryana and others, 1997 (1) PLJ 224 for the effect of opening of succession. The

decision was regards succession opening before the appointed day. In this case, the succession has opened subsequent to the Act and in the light

of the judgment of the Supreme Court in Ram Swarup (supra), Deva Singh (supra) cannot help the petitioners'' case.

The second objection, which has been taken by the petitioners, is that the property was transferred by the father on 12.07.1958 under a

partition decree and, therefore, the property would be required to be excluded. The counsel would contend that in terms of Section 5 of the

Transfer of Property Act, the property transferred would include a transfer made to a person to himself and another and when partition was

effected through a decree when specific allotments were made, he must be deemed to have transferred the property. The counsel would also refer

me to a judgment of this Court in Ajmer Singh v. The State of Haryana and others, 1987 PLJ 535 to contend that a partition brought about before

30.07.1958 between the landowner and his sons would also require to be excluded. The reliance on Ajmer Singh (supra) is not proper, since the

judgment in Ajmer Singh was set aside by the Supreme Court in Amar Singh and Others Vs. Ajmer Singh and Others, . Further, a Division Bench

of this Court has also held that a partition before 30.07.1958 will not make a difference to vesting of the surplus in the State under Haryana Act, in

Janga and Others Vs. Zora Singh and Others, . Further, in Smt. Bhagwanti Devi and Another Vs. State of Haryana and Another, , the Supreme

Court held that if a property is declared as surplus under the 1953 Act, the non-utilization by the State is immaterial. I must observe that in the two

decisions of the Supreme Court in Amar Singh (supra) and Bhagwanti Devi (supra), there is no reference to Section 8 of the Haryana Act of 1972

and the exclusion by transfer before 30.07.1958. However, in the Janga''s case (supra), the Division Bench has rejected even the case of partition

as not making a difference. While a mere partition deed will not fall within the definition of transfer u/s 5 of the Transfer of Property Act, a partition

decree will constitute a transfer u/s 2(b) of the Transfer of Property Act, as held by the Supreme Court in Sk. Sattar Sk. Mohd. Choudhari Vs.

Gundappa AMabadas Bukate, . The question of whether a partition decree before 30.07.1958 will render an exclusion of the acquisition/vesting in

favour of the State by operation of Section 8 of the Haryana Land Ceiling law is indeed a moot point that was not dealt with by the Supreme

Court. It may do so in future but judicial discipline demands that I follow the Division Bench decision in Janga''s case (supra) and the Supreme

Court decisions in Bhagwanti Devi (supra) and Amar Singh (supra) as directly covering the issue at hand.

As regards the contention that the 5th respondent was not a Category-B tenant, the learned counsel takes me to the definition of Category-B

tenant under the 1976 Scheme. Category-B tenant is referred to as, ""a tenant who was allotted and given possession of land in the surplus area by

the State Government under the Punjab Law or the Pepsu Law and is holding the same."" Only such property which was granted under the Punjab

Security of Land Tenures Act after declaration of surplus can qualify to a tenant''s status as a Category-B tenant. The allotment made to the 5th

respondent as Category-B tenant was, therefore, not correct and I uphold the objection taken by the petitioner in that regard. It cannot, however,

secure any benefit for the petitioners except that the State will be at liberty to resume possession from the 5th respondent and treat it as available in

the surplus pool for distribution in accordance with law to any person that may be eligible for allotment.

The impugned order would, therefore, require to be modified only to the extent of cancelling the allotment made to the 5th respondent and

treating the property as available for the distribution in accordance with the 1976 Scheme. The writ petition is ordered on the above terms.