Kirpal Singh & Ors. vs Kamla Devi & Ors.

HELD: 1. The Haryana Ceiling of Land Holdings Act, 1972 was enacted w.e.f. 23.12.1972 on which date the proceedings for determination of surplus in the hands of original land-owner which were initiated in 1953 were pending. Section 33 of 1972 Act deals with “Repeal and Saving”. The Punjab Security of land Tenures Act, 1953 and the Pepsu Tenancy Act and Agricultural Lands Act, 1955 which were operating in erstwhile State of Punjab were repealed by Section 33(1). Sub-section (2) of Section 33 provided that repeal of the provisions of above mentioned two acts shall not affect certain proceedings. Section 33(2)(ii) thus clearly provides that repeal of 1953 Act shall not affect the proceedings for determination of surplus areas pending immediately before the commencement of 1972 Act under the provisions of 1953 Act which shall be continued and disposed of as if this Act had not been passed. [Paras 11 and 12][427-D-F; 428-G-H]

2. The legislative intent as reflected in Section 33 makes it clear that the proceedings for determination of surplus area which was pending on 23.12.1972 was to be continued and disposed of as if 1972 Act had not been passed. Thus, in continuation of the disposal of pending proceedings, 1972 Act was not to be taken into consideration in any manner. [Para 13][429-A-B] Jiwas Das (DEAD) through LRS. v. Financial

Commissioner, Revenue, Haryana and others, (1998) 8 SCC 740; Bhagwati Devi v. State of Haryana and others (1994) Supp 3 SCC 101 : [1994] 1 SCR 180– relied on

3. Section 3(l) of 1972 Act provided that Permissible Area means the extent of land specified in Section 4. The Permissible Area as defined in Section 4 of 1972 Act was reduced as compared to Permissible Area under 1953 Act. Sections 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 9 contains a heading “Selection of permissible area and persons required to furnish declaration”. 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. [Paras 17, 18 and 19][430-D; H; 431-A; 432-A -C]

4. 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). [Para 20][432-D-E]

5. 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 the appellant that selection of permissible area is not covered in the expression determination of surplus area. Therefore, it is not correct to say 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. [Paras 23 and 24][433-D-F]

Chet Ram and another v. Amin Lal and others AIR 1983 PH 50 – distinguished.

6. In so far as the submission of the appellant that land owner has cheated his predecessor in interest since the land which was already declared surplus was sold by the original land-owner on 18.06.1974, was expressly not pressed by appellant in the High Court. Appellant cannot be permitted to raise the above submission. The appellant has purchased the land in dispute from his predecessor-in-interest on 16.06.1989, when the claim of predecessor-in-interest 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 the predecessor-in-interest of appellant by land owner. It was for the predecessor-in-interest in his life time, to establish the plea of fraud. The appellant could not be allowed to raise any such submission. [Paras 28, 29 and 30][434-G-H; 435-C-D]

7. 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 Single Judge and restored the order of the Financial Commissioner dated 18.02.1987. [Para 31][435-E-F]

Jagan nath and others v. State of Punjab and others 1962 PLR 22 – referred to