Sultan Singh vs State of Haryana

J.S. Sekhon, J. (Oral)

Ram Dhan son of Ram Singh, predecessorin interest of the petitioner owned about 99.31 standard acres of land situated in village Salwan, Tehsil and District Karnal on 15.4.1953, when the Punjab Security of Land Tenures Act, 1953, came into force. It is an admitted case of the parties that vide order dated 26.8.1960 of the Collector, land measuring 57.13 standard acres of Ram Dhan was declared surplus but at that time consolidation proceedings in the village were in progress. After completion of those proceedings, 56.62 standard acres of land was declared surplus by the Collector vide order dated 921960 (Annexure P2).

In the return, it is averred that only 50 Kanals 7 Marlas out of the total surplus land was utilized during the life time of Ram Dhan. Said Ram Dhan died issueless on 21.11.1971 and the petitioners contend themselves to be his legal heirs. The sole ground of the petitioners in this writ petition is that since no notice for selecting permissible area in Form ''F'' of Punjab Security of Land Tenures Act was given to Ram Dhan and that he was not duly represented at the time of passing the order, the above referred orders are illegal. In the alternative, it is maintained that the unutilized surplus area of Ram Dhan would be exempted after his death on 21.11.1971, this area was inherited by the petitioners.

In the return, it is maintained that Udhey Singh, real brother of Ram Dban was present at the time of passing the original orders declaring the surplus area and that he has exercised the option for reserving the permissible area on behalf of his brother Rain Dhan, as provided in the Act and Form ''F'' and that the ownership of the land of Ram Dhan, which stood already declared surplus during his lifetime would vest in the State Government and the provisions of Section 12(3) of the Haryana Ceiling on Land Holdings Act, 1972 would not have any effect in terms of section 8(1) of the said Act.

I have heard the learned counsel for the parties, besides perusing the record.

None of the parties had brought on the file the copy of the order dated 2681960 of the Collector whereby land measuring 16062 standard acres of Ram Dhan was declared surplus. On the other hand, in the return, it is maintained that the case of surplus area of Ram Dhan was decided after giving him due notice & affording him full opportunity of hearing. It is further maintained that Form ''F'' was duly issued to Ram Dhan, which was received by his brother Udhey Singh. Since certain land of Ram Dhan only was declared surplus, it cannot be said that this land belongs to Joint Hindu or that his brother Udhey Singh was cosharer therein. Thus, the service of notice in Form "F" on Udhey Singh is bad in the eye of law. Anyhow, since Ram Dhan had not challenged the said order during his life time, till his death on 21.11.1971, the above referred infirmity in the proceedings resulting in declaring surplus area is of no consequence at this belated stage, especially when 50 kanals and 7 marlas of land out of the surplus area of Ram Dhan has already been utilized during his life time as averred in the written statement and the petitioners have not controverted this fact by filing any replication. The utilization of surplus land involves the allotment of the area to certain persons and delivery of possession thereof. Thus, it has to be assumed that Rain Dhan, original owner of the land, had due notice of some area of land having been declared surplus during his life time.

The question then arises whether the unutilized area of a big landlord on account of his death before coming into force the provisions of Haryana Ceiling on Land Holdings Act, 1972, would be inherited by his successorin interest and the benefit of the provisions of Section 12(3), read with section 8(1) of the said Act would be available to them. The relevant provisions of Section 12(3), read as under :

"12(3) The area declared surplus or tenant''s permissible area under the 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."

A bare perusal of the said provisions leaves no doubt that any area of a person declared surplus under the Punjab Law or the Pepsu Law, the ownership of which has not so far vested in the State shall be deemed to have vested in the State with effect from the appointed day i.e. 23.12.1972, when the Haryana Act, 1972 came into force but section 8(1) of the Haryana Act protects certain transfers from the effect of surplus area. The provisions of Section 8(1) read as under :

"8. Certain transfers or dispositions not to affect surplus area. (1) Save in the case of land acquired by the Union Government or 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 or disposition 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 bonafide transfer or disposition, 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 or disposition of land shall be bound to restore it, or to pay compensation for it to the person from whom he received it."

A bare glance through the same leaves no doubt that land acquired by an heir by inheritance has been exempted before the coming into force of the Haryana Ceiling on Land Holdings Act, 1972 has been protected. This controversy came under the scrutiny of the Full Bench of this Court in Smt. Jaswant Kaur v. State of Haryana, 1977 PLJ 230. In para 8 of the judgment, the Full Bench after putting harmonious construction on the provisions of Sections 8 and 12(3) of the Haryana Ceiling of Holdings Act had observed as under :

"... ... ... ...

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."

In the Punjab Security of Land Tenures Act, there is no specific provision regarding the vesting of the ownership of the land declared surplus in the State Government, but there is a provision of utilization of such land to the evicted tenants of the small land owners or big landlords or other persons. Consequently it cannot be said that the ownership of the unutilized area of surplus land of Ram Dhan vested in the State Government till 23.12.1972 when the Haryana Ceiling of Land Holdings Act, 1972 came into force. If that is so then original owner Ram Dhan having died on 21.11.1971, his land would devolve by inheritance upon his legal heirs. Thus, the unutilized area of the surplus land of Ram Dhan cannot go to the surplus pool as per the above referred provisions of Haryana Act of 1972.

Consequently, by accepting this petition, the respondents are a restrained from treating the above referred land of Ram Dhan as surplus. The respondents shall, however, be at liberty to decide the surplus land case of the petitioners by taking into account that they had inherited the surplus land of Ram Dhan under the provisions of Section 8(1) of the Act much before this Act came into force. There is, however, no order as to costs.