Paragraph numbers below are the court’s original numbering, recovered from the source text.
16. To the same effect is another judgment of this Court in 1994 Supp (3) SCC 101, Bhagwati Devi versus State of Haryana and others. Thus, proceedings for determination of surplus land which were initiated under 1953 Act were thus have to be continued and disposed of in accordance with 1953 Act. Learned counsel for the appellant to support his submissions that Section 8(3) and 9(3) of 1972 Act has to be applied while considering the selection of land by land holder in the surplus pool contends that expression ‘determination of surplus land’ does not include the selection of land by land owner to be given in surplus pool. Before we proceed further, few more provisions of 1972 Act need to be noted.
17. Section 3 of 1972 Act is a definition clause. Section 3(l) provided that Permissible Area means the extent of land specified in Section 4 as Permissible Area. The Permissible Area as defined in Section 4 of 1972 Act was reduced as compared to Permissible Area under 1953 Act. Section 8 and 9 occurs in Chapter 2 of 1972 Act under the heading “Ceiling on land and acquisition and disposal of surplus Area”. Section 8 contains the heading “Certain transfers (or dispositions) not to affect surplus area.” Section 8(3) on which reliance has been placed by learned counsel for the appellant provides for: – “8(3). If any person transfers [or disposes of] any land after the appointed day in contravention of the provisions of sub- section (1), the land so transferred [disposed of] shall be deemed to be owned or held by that person in calculating the permissible area. The land exceeding the permissible area so calculated shall be the surplus area of the person and in case the area left with him after such transfer [dispose of] is equal to the surplus area so calculated, the entire area left with him shall be deemed to be the surplus area. If the area left with him is less than the surplus area so calculated, the entire area left with him shall be deemed to be the surplus area and to the extent of the deficiency in it the land so transferred [or disposed of] shall also be deemed to be the surplus area shall be made up from each of the transferees in the proportion to the land transferred [or disposed of] to them.”
18. Further Section 9 on which reliance has been placed contains a heading “Selection of permissible area and persons required to furnish declaration”. Section 9 which is relevant is as follows: – “9. (1) Every person, who on the appointed day or at any time thereafter holds land exceeding the permissible area, shall [within a period of three months from such date as the State Government may, by notification, specify in this behalf] or subsequent acquisition of land, furnish to the prescribed authority a declaration supported by an affidavit giving the particulars of all his land and that of the separate unit in the prescribed form and manner and stating therein his selection or the parcel or parcels of land not exceeding in the aggregate the permissible area which he desires to retain: Provided that in case of a member of the Armed Forces of the Union, [the last date for furnishing the declaration shall be the 31st October, 1976.] Explanation 1.- Where the person is a member of the family, he shall include in his declaration the particulars of land held by him and also of land, if any, held by other members of the family [and the separate unit.] [Explanation II.- In calculating the extent of land owned or held by a person, the share of such person in the land owned and held by an undivided family, firm or association of individuals, whether incorporated or not, and the land contributed as share capital or otherwise by him to a co-operative society or a company of which he may be a member or shareholder, shall be taken into account.] [(2) Every person making a selection of the permissible area under sub-section (1), may also select land for the separate unit. Explanation. – An Adult son, who owns or holds land and is living separately from his parents, shall file the declaration under sub-section (1) and make the selection of permissible area under sub-section (2) separately.] (3) In making the selection such person shall include in the first place the land which had been transferred by him after the appointed day in contravention of the provisions of Section 8 and in the second place the land mortgaged by him without possession but shall not include any land- (i)which is declared surplus; (ii) which was under the permissible area of a tenant; under the Punjab law or the Pepsu Law. (4) The declaration under sub-section (1) shall be furnished by- (a) in the case of an adult unmarried person, such person; (b) in the case of a minor, lunatic, idiot or a person subject to like disability, the guardian, manager or other person in charge of such person or of the property of such person; (c) in the case of a family, the husband or in his absence, the wife, or, in the absence of both, the guardian of the minor children; (d) in the case of any other person, any person competent to act for such person in this behalf.” Selection of permissible area and persons required to furnish declaration KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. [ASHOK BHUSHAN, J.]
19. Section 9(3) provides that in making the selection such persons shall include in the first place the land which has been transferred by him after the appointed date in contravention of provisions of Section 8 and in the second-place land mortgaged by him without possession. Thus, as per strength of Section 9(3), the land owner while selecting land within permissible area has to include any transfer made by him after the appointed date in contravention provisions of Section 8. The permissible Area and selection as occurring in Section 9 has to be read in reference to permissible area as referred to in Section 3(l) read with Section 4 and selection there on. The selection of permissible area occurring in Section 9 and requirement to include in such selection land transferred by land owner after the appointed date i.e.25.03.1972 is in reference to the proceedings under 1972 Act.
20. The submissions of Appellant that while making selection by Jaipal Singh of the permissible area in pursuance of appellate order dated 14.11.1979. Section 9(3) had to be applied and land of the predecessor- in interest of the appellants which was purchased by Mohan Singh by Sale deed dated 18.06.1974 ought to have been included cannot be accepted. Firstly, the order by the appellate authority on 14.11.1979 remanding the matter to the Collector for permitting the land owner to submit a list of plot numbers to be retained by him was in reference to proceedings of surplus area which was initiated under 1953 Act and as per Section 33(2)(ii), the said proceedings have to be continued and disposed of as if 1972 Act has not been passed. When Section 33(2)(ii) provides for proceedings of determination of surplus area which were pending on 23.12.1972 to be continued as if 1972 Act had not been passed, there is no question of applying provisions of Section 8(3) and 9(3) as contended by the appellant.
21. Now coming to the submissions of learned counsel for the appellant that present was not a case of determination of surplus area rather it was selection of permissible area by the land owner and what has to be continued and disposed of as per Section 33(2)(ii) of 1972 Act was determination of surplus area and present being case of selection of permissible area Section 33(2)(ii) of 1972 Act was not applicable and Section 8 and 9 of 1972 Act has to be applied.
22. What is the content and extent of expression “determination of surplus area” under 1953 Act needs to be looked into for considering the above submissions? Section 2(5a) of 1953 Act defined surplus area in following manner: – “2. (5-a). “Surplus Area” means the area other than the reserved area, and, where, no area has been reserved, the area in excess of the permissible area selected [under Section 5-B or the area which is deemed to be surplus area under sub-section (1) of Section 5-C] [and includes the area in excess of the permissible area selected under Section 19-B]; but is will not include a tenant’s permissible area: Provided that it will include the reserved area, or part thereof, where such area or part has not been brought under self-cultivation within six months of reserving the same or getting possession thereof after ejecting a tenant from it, whichever is later, or if the land-owner admits a new tenant, within three years of the expiry of the said six months.]”
23. The scheme of 1953 Act as delineated by Section 5A, 5B and 5C indicates that determination of surplus area is a process contemplating various steps in determination of surplus area. The submission of declaration by land owner, the selection of permissible area by land owner, failure of owner to furnish the declaration supported by an affidavit, direction of the Collector that whole or part of such land holder or tenant shall be deemed to be surplus area or all part of an integrated process of determination of surplus area. When the meaning of surplus as contained in Section 2(5a) expressly provides that “area in excess of permissible area selected deemed to be surplus area”, the selection is clearly indicated as part of the surplus area. The very definition of surplus area as contained in Section 2(5a) negates the submission of counsel for the appellant that selection of permissible area is not covered in the expression determination of surplus area.
24. We thus also reject the above submissions of counsel for appellant that since selection of permissible area by land owner was not covered in determination of surplus area, Section 8(3) and 9(3) are applicable.
25. Learned counsel for the appellant has placed reliance on judgment of full Bench of Punjab and Haryana High Court in Chet Ram and another versus Amin Lal and others (Supra) for the proposition that transfer in contravention of provisions of 1953 Act is only void by the State but valid between parties inter se. In the above Full Bench judgment, the High Court had occasion to consider transfer in contravention under Section 19A under 1953 Act. Section 19A provided:- KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. [ASHOK BHUSHAN, J.] 19-A.(1)Notwithstanding anything to the contrary in any law, custom, usage, contract or agreement, from and after the commencement of the Punjab Security of Land Tenures(Amendment) Ordinance, 1958, no person, whether as land-owner or tenant, shall acquire or possess by transfer, exchange, lease, agreement or settlement any land, which with or without the land already owned or held by him, shall in the aggregate exceed the permissible area; Provided that nothing in this section shall apply to lands belonging to registered co-operative societies formed for purposes of co-operative farming if the land owned by an individual member of the society does not exceed the permissible area. (2) Any transfer, exchange, lease, agreement or settlement made in contravention of the provisions of sub-section (1) shall be null and void.” Bar on future acquisition of land in excess of permissible area.
26. In paragraph 23, full Bench gave following answer: – “23. To conclude it must be held that even though the language of sub-section (2) of S. 19-A is absolute; yet for the reasons of sound interpretation it must be given a slightly constricted meaning in order to harmonise it with S. 19-B of the Punjab Act. The answer to the question posed at the outset is that a transfer in contravention of Section 19-A(1) would be void only qua the State for the purposes of the Punjab Act, but would be valid and binding between the parties inter se. The view in Labh Singh’s case 1971 Cri LJ 719(supra) in this context, is hereby overruled, whilst that in Godhu’s case 1979 PLJ 496(supra) is approved and affirmed.”
27. The above full Bench judgment of Punjab and Haryana High Court was on different aspect. Present is not a case for any contravention of Section 19A, hence, the above judgment does not support the submission made by learned counsel for the appellant in the facts of the present case.
28. In so far as the submission of learned counsel for the appellant that land owner has cheated his predecessor in interest since the land which was already declared surplus was sold by Jaipal Singh on 18.06.1974, the above submission on the ground of any fraud played on the appellant was expressly not pressed by appellant in the High Court which has been noticed by the learned Single Judge in paragraph 7 which is to the following effect: – “7. At the very outset, it may be mentioned here that although the petitioner has challenged the impugned orders in this petition on the various grounds mentioned therein, but learned counsel for the petitioner has confined his argument only to the limited extent of legal proposition that Mohan Singh- Petitioner was entitled to the benefit of Section 8(3) of the Haryana Act.”
29. Limited submission pressed before the learned Single Judge by the appellant was as to whether Mohan Singh was entitled to the benefit of Section 8(3) of 1972 Act. No other submissions were neither pressed nor adverted to by the learned Single Judge who decided in favour of the appellant. We are thus of the view that appellant cannot be permitted to raise above submission.
30. The appellant has purchased the land in dispute from Mohan Singh on 16.06.1989, when the claim of Mohan Singh stood rejected by both Commissioner and Financial Commissioner and land was included in the surplus pool. The appellant cannot be permitted to raise any issue of fraud played on Mohan Singh the predecessor-in-interest of appellant by land owner, it was for Mohan Singh in his life time, to establish the plea of fraud. The appellant could not be allowed to raise any such submission.
31. In view of the above discussions, we are of the view that no error has been committed by Division Bench of the Punjab and Haryana High Court in allowing the LPA of the respondents. The Division Bench has rightly taken the view that Single Judge went wrong by holding that provisions of Section 8(3) of 1972 Act are applicable in the present case and the competent authority has to ensure that transferred area at first instance be included in the permissible area of the land owner. The Division Bench has rightly set aside the direction of learned Single Judge and restored the order of the Financial Commissioner dated 18.02.1987.
32. In result, we do not find any merit in the appeal. The appeal is dismissed. Kalpana K. Tripathy Appeal dismissed. KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. [ASHOK BHUSHAN, J.]