Shakuntla vs Punjab State

Shamaher Bahadur, J.—The three petitions which are being disposed of by this Judgment, Shakuntla v. Punjab State, (Civil Writ No. 2186 of 1963), Tarawati v. Punjab State, (Civil Writ No. 2265 of 1963) and Hans Raj v. Punjab State, (Civil Writ No. 2266 of 1963), raise a common question of law relating to the construeton which is to be placed on section 32-FF of the Pepsu Tenancy and Agricultural Lands Act, 1955. It would be sufficient if facts in Shakuntla v. Punjab State (Civil Writ No. 2186 of 1963) are set out.

The Collector, Agrarian, Narnaul, in his order of 30th of November, 1962, declared 8.14 standard acres to be surplus. An appeal was filed by Shakuntla which was dismissed by the Commissioner on 18th March, 1963. The Financial Commissioner, in the impugned order passed by him on 9th of July, 1963, affirmed the order of the Commissioner and the petitioner feeling aggrieved has come to this Court in writ proceedings.

The only point urged before the Financial Commissioner and, in this Court is that the area which has been declared surplus had been gifted by the petitioner and this alienation is saved, according to her counsel Mr. Sarin, u/s 32-FF. Section 82-FF says:

Save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance or up to 30th July, 1958, by a landless person, or a small landowner, not being a relation as prescribed of the person making the transfer or disposition of land, for consideration up to an area which with or without the area owned or held by him does not in the aggregate exceed the permissible limit, no transfer or other disposition of land effected alter 21st August, 1965, shall affect the right of the State Government under this Act to the surplus area to which it would be entitled but for such transfer or disposition.

It is common ground that the transfer was made by Shakuntla in favour of the donee after the 21st August, 1956, and that the donee is not a relation as prescribed in rule 23-A of the Pepsu Tenancy and Agricultural Land Rules, 1958, which says that these relations "shall be the wife or husband, male or female descendants and the descendants of such female, father, mother, father''s or mother''s sister, brother and his descendants, mother''s brother and his descendants, wife''s brother and sister''s husband". It is plain that a transfer or disposition made after the 21st August, 1956, has been made void and inoperative against the State Government and only three exceptions are provided for in this section, these being:

(1) Land acquired by the State Government;

(2) Land acquired by inheritance by an heir; and

(3) Land acquired by a landless person up to 30th of July, 1958, or a small landowner not being a prescribed relation, making the transfer or disposition of land for consideration up to the permissible area.

Mr. Sarin, the learned counsel for the petitioner, seeks to bring the disposition in question under the 3rd exception, it being contended by him that the alienee is not a prescribed relation and was gifted this land before 30th of July, 1958, for love and affection. It is conceded that no consideration ever passed. The question for determination is whether "disposition of land for consideration" includes a gift for love and affection. Plainly, it does not. The relations in whose favour gifts may be made for love and affection are prescribed and they are definitely excluded from the exceptions. It is also significant to note that the proviso to section 32-FF says that:

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

It is contended by Mr. Kaushal, the learned Deputy Advocate-General that when a person receiving an advantage under the transfer has been made bound to restore it to the donor, it implies that the consideration is pecuniary or at any rate something which is capable of being handed ever It is obvious that ''love and affection'' constitutes an advantage which cannot be handed over or restored or even compensated for. In the circumstances, the plain meaning of the third, exception is that a transfer or disposition in favour of a landless person or a small land owner would be upheld only if it is for consideration. The present transfer not being for consideration cannot be excepted u/s 32-FF. This is exactly what has been held by the Surplus authorities and upheld by the Financial Commissioner.

I see no force in this petition which fails and is dismissed, but as the point has been raised, according to Mr. Sarin, for the first time before this Court, I would make no order as to costs.