KIRPAL SINGH & ORS. versus KAMLA DEVI & ORS. on 28 January 2020

[2020] 3 S.C.R. 418

SUPREME COURT REPORTS

[2020] 3 S.C.R.

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KIRPAL SINGH & ORS.

v.

KAMLA DEVI & ORS.

(Civil Appeal No. 356 of 2020)

BJANUARY 28, 2020

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Haryana Ceiling of Land Act, 1972:

ss. 8(3) and 33(2) (ii) – Proceedings under Punjab SecurityCof Land Tenures Act, 1953 – For determination of surplus land –During pendency of proceedings enactment of Haryana Ceiling ofLand Act – The original land-owner sold certain area of land andgave the Khasra numbers of the sold lands, in surplus pool – Noticewas issued to the vendee to vacate the land, the same being surplusland – Collector held that the surplus land was to be taken from theDland of the owner, and vendee’s land could be taken into accountonly if the surplus land could not be completed from the land of theowner – In Revision filed by land-owner, it was held that the land-owner could not be forced to exclude the land in question fromsurplus area – The order was further upheld by FinancialECommissioner – Writ petition filed by vendee – The vendee furthersold the land to the appellant – High Court allowing the writ remittedthe matter to consider the case of the vendee for grant of benefitenvisaged u/s. 8(3) of 1972 Act – Writ appeal was decided in favourof the original land-owner – Appeal to Supreme Court – Held:Section 33(2)(ii) of 1972 Act provides that repeal of 1953 Act wouldFnot affect the pending proceedings as regards surplus land andwould be continued and disposed of as per 1953 Act – Therefore,provisions of ss. 8(3) and 9(3) of 1972 Act could not have beenapplied to the pending proceedings – Punjab Security of landTenures Act, 1953 – ss. 5A, 5B and 5C.GDismissing the appeal, the Court HELD: 1. The Haryana Ceiling of Land Holdings Act, 1972was enacted w.e.f. 23.12.1972 on which date the proceedings fordetermination of surplus in the hands of original land-owner whichwere initiated in 1953 were pending. Section 33 of 1972 Act dealsH

with “Repeal and Saving”. The Punjab Security of land TenuresAct, 1953 and the Pepsu Tenancy Act and Agricultural LandsAct, 1955 which were operating in erstwhile State of Punjab wererepealed by Section 33(1). Sub-section (2) of Section 33 providedthat repeal of the provisions of above mentioned two acts shallnot affect certain proceedings. Section 33(2)(ii) thus clearlyprovides that repeal of 1953 Act shall not affect the proceedingsfor determination of surplus areas pending immediately beforethe commencement of 1972 Act under the provisions of 1953Act which shall be continued and disposed of as if this Act hadnot been passed.[Paras 11 and 12][427-D-F; 428-G-H]

2. The legislative intent as reflected in Section 33 makes itclear that the proceedings for determination of surplus area whichwas pending on 23.12.1972 was to be continued and disposed ofas if 1972 Act had not been passed. Thus, in continuation of thedisposal of pending proceedings, 1972 Act was not to be takeninto consideration in any manner. [Para 13][429-A-B]

Jiwas Das (DEAD) through LRS. v. FinancialCommissioner, Revenue, Haryana and others, (1998) 8SCC 740; Bhagwati Devi v. State of Haryana and others(1994) Supp 3 SCC 101 : [1994] 1 SCR 180– reliedon

3. Section 3(l) of 1972 Act provided that Permissible Areameans the extent of land specified in Section 4. The PermissibleArea as defined in Section 4 of 1972 Act was reduced as comparedto Permissible Area under 1953 Act. Sections 8 and 9 occurs inChapter 2 of 1972 Act under the heading “Ceiling on land andacquisition and disposal of surplus Area”. Section 8 contains theheading “Certain transfers (or dispositions) not to affect surplusarea.” Section 9 contains a heading “Selection of permissible areaand persons required to furnish declaration”. As per strength ofSection 9(3), the land owner while selecting land withinpermissible area has to include any transfer made by him afterthe appointed date in contravention provisions of Section 8. Thepermissible Area and selection as occurring in Section 9 has tobe read in reference to permissible area as referred to in Section AB

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A3(l) read with Section 4 and selection there on. The selection ofpermissible area occurring in Section 9 and requirement to includein such selection land transferred by land owner after theappointed date i.e. 25.03.1972 is in reference to the proceedingsunder 1972 Act. [Paras 17, 18 and 19][430-D; H; 431-A; 432-A-C]B

4. The order by the appellate authority on 14.11.1979remanding the matter to the Collector for permitting the landowner to submit a list of plot numbers to be retained by him wasin reference to proceedings of surplus area which was initiatedunder 1953 Act and as per Section 33(2)(ii), the said proceedingsChave to be continued and disposed of as if 1972 Act has not beenpassed. When Section 33(2)(ii) provides for proceedings ofdetermination of surplus area which were pending on 23.12.1972to be continued as if 1972 Act had not been passed, there is noquestion of applying provisions of Section 8(3) and 9(3).D[Para 20][432-D-E]

5. The scheme of 1953 Act as delineated by Section 5A, 5Band 5C indicates that determination of surplus area is a processcontemplating various steps in determination of surplus area. Thesubmission of declaration by land owner, the selection ofEpermissible area by land owner, failure of owner to furnish thedeclaration supported by an affidavit, direction of the Collectorthat whole or part of such land holder or tenant shall be deemedto be surplus area or all part of an integrated process ofdetermination of surplus area. When the meaning of surplus ascontained in Section 2(5a) expressly provides that “area in excessFof permissible area selected deemed to be surplus area”, theselection is clearly indicated as part of the surplus area. The verydefinition of surplus area as contained in Section 2(5a) negatesthe submission of the appellant that selection of permissible areais not covered in the expression determination of surplus area.

GTherefore, it is not correct to say that since selection ofpermissible area by land owner was not covered in determinationof surplus area, Section 8(3) and 9(3) are applicable. [Paras 23and 24][433-D-F]

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

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6. In so far as the submission of the appellant that landowner has cheated his predecessor in interest since the land whichwas already declared surplus was sold by the original land-owneron 18.06.1974, was expressly not pressed by appellant in theHigh Court. Appellant cannot be permitted to raise the abovesubmission. The appellant has purchased the land in dispute fromhis predecessor-in-interest on 16.06.1989, when the claim ofpredecessor-in-interest stood rejected by both Commissioner andFinancial Commissioner and land was included in the surplus pool.The appellant cannot be permitted to raise any issue of fraudplayed on the predecessor-in-interest of appellant by land owner.It was for the predecessor-in-interest in his life time, to establishthe plea of fraud. The appellant could not be allowed to raise anysuch submission. [Paras 28, 29 and 30][434-G-H; 435-C-D]

7. The Division Bench has rightly taken the view that SingleJudge went wrong by holding that provisions of Section 8(3) of1972 Act are applicable in the present case and the competentauthority has to ensure that transferred area at first instance beincluded in the permissible area of the land owner. The DivisionBench has rightly set aside the direction of Single Judge andrestored the order of the Financial Commissioner dated18.02.1987. [Para 31][435-E-F]

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Jagan nath and others v. State of Punjab and others1962 PLR 22 – referred to CIVIL APPELLATE JURISDICTION: Civil Appeal No. 356 of2020.

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From the Judgment and Order dated 21.04.2010 of the High Courtof Punjab & Haryana at Chandigarh in LPA No. 55 of 2010 (O & M).

Narender Hooda, Sr. Adv., Siddharth Mittal, Deepak Aggarwal,Prabhat Kumar, Ms. Usha Nandini. V., Advs. for the Appellants.

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Pradeep Kant, Neeraj Kumar Jain, V.K. Jain, Sr. Advs., GaganGupta, Divyansh Sahay, Ms. Shradha Narayan, Naresh Bakshi, ShekharRaj Sharma, Dr. Monika Gusain, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.B

1. This appeal has been filed by legal heirs of the subsequentpurchasers challenging the judgment of Division Bench dated 21.04.2010of the Punjab and Haryana High Court in LPA No.55 of 2010 by whichthe appeal filed by the legal heirs of land owner has been allowed settingaside the judgement of learned Single Judge by which he directed theCprescribed authority to include the area sold to the appellants within thepermissible area of the land holder.

2. Brief facts of the case giving rise to this appeal are: -

(i) One Jaipal Singh, land holder, was owner of the land measuringD221.72 standard acres in village Kheri, Shishgarh on 15.04.1953,when Punjab Security of land Tenures Act, 1953(hereinafterreferred to as 1953 Act) was enforced. The 1953 Act definedpermissible area, standard acre and surplus area. Permissible areaunder the 1953 Act was defined as 30 standard acres. Land ownerwho owned land in excess of permissible area was entitled toEintimate his selection in the prescribed form and manner to thePatwari of the State. The Collector of the area passed an orderdated 28.07.1960 determining 191.72 standard area of land assurplus in the hand of Shri Jaipal Singh. An appeal was filed byJaipal Singh to the Commissioner, Ambala Division which wasdismissed on 14.11.1960. The Revision Petition before the FinancialFCommissioner, Punjab which was also dismissed on 01.05.1961.

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(ii) CWP No.639 of 1961 filed by the Jaipal Singh was allowed bythe High Court vide judgment dated 12.03.1962 and authoritieswere directed to redecide the surplus area in accordance with thelaw laid down by the judgment of Punjab High Court reported in1962 PLR 22, Jagan Nath and others versus State of Punjaband others. The proceedings before the Collector in pursuanceof the judgment of Punjab High Court dated 12.03.1962 remainedpending. In the meantime, State of Haryana was created andState legislature passed an Act namely, Haryana Ceiling of landAct, 1972(hereinafter referred to as 1972 Act). Jaipal Singh on G

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18.06.1974 executed sale deeds in favour of one Mohan Singh ofan area of 125 Kanal and 8 Marla. The Collector by an orderdated 12.05.1978 allowed exemption of land of Jaipal Singhdeclared surplus measuring 150 standard acres and balance of36.47 standard acres was declared surplus.

(iii) Learned counsel for the plaintiff Jaipal Singh was grantedtime by the Collector to furnish list of land to be retained by JaipalSingh but requisite list was not submitted and order was passedon 20.05.1978 declaring surplus. The appeal against order dated12.05.1978 was filed by Jaipal Singh. The Commissioner, Ambaladivision decided the appeal vide order dated 14.11.1979 andremanded the case to the Collector with a direction that he shouldpermit the appellant Jaipal Singh to give the list of Khasra to begiven in surplus pool to the Collector. Appellant was given time till21.11.1979. Jaipal Singh gave Khasra numbers which were soldto Mohan Singh in surplus pool. A notice was issued to MohanSingh to vacate the land. An application was filed by Mohan Singhbefore the prescribed authority objecting notice given to him tovacate the land. The prescribed authority rejected the applicationof Mohan Singh by the Order dated 11.10.1983 observing that theVendee had purchased the surplus area by registered sale deeddated 18.06.1974.

(iv) Against the order of prescribed authority, Mohan Singh filedan appeal before the Collector. The Collector by order dated06.02.1984 accepted the appeal directing that if the surplus landhad to be taken the same will be taken from the land of the ownerand if the same could not be completed from his land, only then,the land be taken from land in dispute i.e. land of the vendees.The Jaipal Singh having died in between, the widow of JaipalSingh filed a revision before the Commissioner, Ambala Division.The Commissioner allowed the revision. The Commissioner heldthat the surplus area declared by the Collector in the year 1960vested in the State. The Commissioner held that land owner couldnot be forced to exclude this land from surplus area. It was furtherheld that prescribed authority had no jurisdiction to challenge ormodify the orders passed by the Collector. The order of Collectorwas set aside and appeal was allowed. Revision filed by MohanSingh before the Financial Commissioner, Haryana was dismissed A

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by the order dated 18.02.1987 against which writ petition No.2979of 1989 was filed by Mohan Singh.

(v) Mohan Singh executed a sale deed on 16.06.1989 in favour ofappellant of the land which was purchased by him from JaipalSingh vide sale deed dated 18.06.1974.

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(vi) The writ petition was allowed by learned Single Judge settingaside the order of Commissioner and Financial Commissioner.The learned Single Judge remitted the matter to consider the caseof petitioner for the grant of benefit envisaged under Section 8(3)of 1972 Act with regard to permissible area by land owner withouttouching the order of declaration of surplus area. The order of theCollector dated 06.02.1984 was restored to the limited extent.

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(vii) Against the judgement of learned Single Judge 18.11.2009,LPA was filed by the legal heirs of the land owner. LPA has beenallowed by the Division Bench by the impugned judgment datedD21.04.2010. The appellant aggrieved by said judgment has filedthis appeal.

3. We have heard Shri Narender Hooda, senior Advocate for theappellants, Shri Pradeep Kant, senior Advocate, has appeared for thecontesting respondents. We have also heard learned Counsel for theEState of Haryana.

4. Learned counsel for the appellants submits that thepredecessors-in-interest of appellants having purchased land measuring125 Kanal and 8 Marla on 18.06.1974, they were entitled to benefits ofSection 8(3) and 9(3) of 1972 Act, which provides that big land ownerFshall first include his land and only if the same is deficient, the land of thevendee should be included in the surplus pool. It is submitted that appellantis not challenging the declaration of the land of surplus in the hands ofJaipal Singh nor seeking reduction in surplus pool.

4.1. It is submitted that Section 33(2) (ii) & (iv) cannot be read toconclude that the provisions of 1972 Act would not be applicableif the proceedings had commenced under 1953 Act. Thedetermination of surplus area does not include within its ambit theselection of land. The selection of the surplus pool by the landowner has to be made under 1972 Act and any selection madeinconsistent with the provisions of 1972 Act is null and void.

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4.2. Relying on the full Bench judgment of Punjab and HaryanaHigh Court in Chet Ram and another versus Amin Lal andothers, AIR 1983 PH 50, it is submitted that sale can only bevoid by the State but will always remain valid and binding betweenthe vendor and vendee. The big land owner had cheated thepredecessor in interest of appellant, since he represented that theland sold is not included in the surplus area nor shall be given inthe surplus pool. Land owner having sold the land in 1974 bydeclaring that the land was not either in surplus pool nor the samewould be given in surplus pool, the land owner cannot be allowedto deprive the vendee of the land subsequently by giving the KhasraNumber of the land sold by him in 1974 in the surplus pool.

4.3. It is submitted that Section 33 of 1972 Act should be interpretedby applying beneficial rules of construction to fulfil the policy ofthe Act and to protect the interest of person for whose benefit theact has been passed. It is submitted that learned Single Judge hadtaken correct view of the matter and the Division Bench erred inallowing LPA filed by the respondent.

5. Shri Pradeep Kant, learned counsel for the respondent submitsthat Section 8(3) of 1972 Act cannot be pressed into service by theappellant because Section 33(2) of 1972 Act clearly provides that therepeal of the provisions of the enactment mentioned in sub-Section(1),shall not affect (i) proceeding for the determination of the surplus areapending immediately before the commencement of this Act,(ii) whichshall be continued and disposed of as this Act (1972 Act) had not beenpassed and (iii) surplus area so determined shall vest in and be utilisedwith the State Government in accordance with provisions of 1972 Act.On the date when 1972 Act came into force i.e. 23.12.1972, theproceedings of determination of surplus area of the land owner JaipalSingh was pending under 1953 Act. Section 33(2)(ii) of 1972 Act createsa deeming fiction, it eclipses the operation of the new Act untilproceedings for the determination of surplus area under the 1953 Actwere disposed of in accordance with the law. Neither Section 9 norSection 8(3) of 1972 Act can be invoked in the present case.

5.1. The Division Bench has rightly set aside the Order of SingleJudge and confirmed the Order of Financial Commissioner. Thesubmission of the appellant that once the new Act had come intoforce, the selection of Permissible Area could only be made under ABC

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ASection 9 of the new Act as the land had vested in the StateGovernment under Section 12(3) upon commencement of the newAct is misconceived. The appellants were not bonafide purchasers,they have purchased the land from Mohan Singh vide Sale deeddated 14.06.1989 i.e. much after land stood vested in the StateGovernment and after the Orders were passed by theBCommissioner and Financial Commissioner impugned before thelearned Single Judge.

5.2. Learned counsel submits that Sale deed dated 18.06.1974having been obtained by Mohan Singh after the commencementof 1972 Act, the sale deed was void and no benefit can be claimedCby the appellant on that Sale deed.

5.3. Learned counsel for the parties have relied on the judgmentsof this Court as well as of Punjab and Haryana High Court whichshall be referred to by considering the submissions in detail.

6. We have considered the submissions for learned counsel forDthe parties and perused the record.

7. From the submissions as made by learned counsel for the partiesand materials on record, following are the main questions which arisefor consideration in this appeal: - E(i)Whether the proceedings for determination of surplus areawhich was initiated in respect of land owner Shri Jaipal Singhunder 1953 Act was required to be completed in accordancewith provisions of 1953 Act or provisions of 1972 Act alsobecame applicable since the proceedings initiated under 1953FAct were pending on the date of enforcement of 1972 Act.

(ii) Whether determination of surplus land under 1953 Act wasonly confined to declaration of surplus and selection of plotsfor surplus pool shall not be covered by determination ofsurplus land?

G(iii) Whether the appellants and their predecessors-in-interestwere entitled to the benefit of Section 8(3) and 9(3) of 1972Act, which required the land owner to first include his ownedland in surplus pool and only when land owned by him doesnot satisfy the surplus pool land transferred by him after theenforcement of the 1972 Act can be included in the surplusHpool?

8. All the above questions being inter-related are being takentogether for determination.

9. The Punjab Security of Land tenure Act, 1953, was enacted togive effect to the agrarian reforms which were taken in independentIndia by different States. Section 2 of the Act was a definition clausedefining various terms and expressions. Section 2(3) provided thatPermissible Area in relation to the land owner or tenant means 30 standardacres and where such 30 standard acres on being converted to 60 acres,such 60 acres. Section 2(5A) defined surplus area.

10. As noted above, the proceedings for determination of surplusarea in the hands of Jaipal Singh were initiated and an order was passedby the Collector on 28.07.1960 declaring 191.72 standard acres as surplusarea out of 221.72 standard acres owned by Jaipal Singh. The said orderwas carried in Appeal and Revision by Jaipal Singh and ultimately wastaken in the High Court by means of CWP No.639/1961 which wasallowed by the High Court on 12.03.1962 remanding the matter for re-determination of the surplus area.

11. The Haryana Ceiling of Land Holdings Act, 1972 was enactedw.e.f. 23.12.1972 on which date the proceedings for determination ofsurplus in the hands of Jaipal Singh which were initiated in 1953 werepending. What is the effect on the said proceedings by the enactment of1972 Act is a moot question to be considered and answered in the presentcase? Section 33 of 1972 Act deals with “Repeal and Saving”. ThePunjab Security of land Tenures Act, 1953 and the Pepsu Tenancy Actand Agricultural Lands Act, 1955 which were operating in erstwhileState of Punjab were repealed by Section 33(1). Sub-section (2) ofSection 33 provided that repeal of the provisions of above mentionedtwo acts shall not affect certain proceedings. Section 33 of the 1972Act, which is relevant is as follows: - “33. (1) The provisions of the Punjab Security of Land TenuresAct, 1953, and the Pepsu Tenancy and Agricultural LandsAct, 1955, which are inconsistent with the provisions of thisAct are hereby repealed.

(2) The repeal of the provisions of the enactments mentionedin sub-section (1), hereinafter referred to as the saidenactments, shall not affect- AB

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(i) the applications for the purchase of land under section18 of the Punjab Law or section 22 of the Pepsu Law, asthe case may be, pending immediately before thecommencement of this Act, which shall be disposed of as ifthis Act had not been passed;

(ii) the proceedings for the determination of the surplusarea pending immediately before the commencement of thisAct, under the provisions of either of the said enactments,which shall be continued and disposed of as if this Actand not been passed, and the surplus area so determinedshall vest in, and be utilised by, the State Government inaccordance with the provisions of this Act; B

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[(iii) the revisional power of the Financial Commissionerunder Section 24 of the Punjab law or under sub-section(3) of section 39 of the Pepsu law, as the case may be,shall be exercised as if this Act had not been passed; andthe area declared surplus in exercise of such revisionalpower shall vest in, and be utilized by, the State Governmentin accordance with the provisions of this Act; D

(iv) the power exercisable under section 32-BB of the Pepsulaw, as the case may be, shall be exercised as if this Acthad not been passed; and the area determined surplus inexercise of such power shall vest in, and be utilized by, theState Government in accordance with the provisions of thisAct:

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Provided that the powers of the Pepsu LandCommission under the Pepsu law shall vest in, and beexercised by, the Collector of the district concerned.]

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(3) Save as provided in sub-section (2), no authorityshall pass an order in any proceedings whether institutedbefore or after the commencement of this Act which isinconsistent with the provisions of this Act.”

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12. Section 33(2)(ii) thus clearly provides that repeal of 1953 Actshall not affect the proceedings for determination of surplus areas pendingimmediately before the commencement of 1972 Act under the provisionsof 1953 Act which shall be continued and disposed of as if this Act hadHnot been passed.

13. The legislative intent as reflected in Section 33 makes it clearthat the proceedings for determination of surplus area which was pendingon 23.12.1972 was to be continued and disposed of as if 1972 Act hadnot been passed. Thus, in continuation of the disposal of pendingproceedings, 1972 Act was not to be taken into consideration in anymanner.

14. The above interpretation of Section 33 is no longer res integraand has been finally settled by this Court in Jiwas Das (DEAD) throughLRS. versus Financial Commissioner, Revenue, Haryana andothers, 1998 (8) SCC 740. In the above case also, proceedings fordetermination of surplus area were initiated against the land holder on27.07.1959 which proceedings came up to the High Court where HighCourt passed an order on 15.12.1961 remitting the matter for freshdetermination. The proceedings were pending and proceedings weretaken on 11.06.1975 in consequence of direction of the High Court whichproceedings were challenged and the matter came to this Court.

15. In the above context, the provisions of Section 33(2) came tobe interpreted by this Court. In paragraphs 4 and 5, following was laiddown: - “4. It may be mentioned that in the meantime the HaryanaLand Holdings Act has come into force. Section 33(2)(i) ofthe said Act provides that proceedings for determination ofthe surplus area pending immediately before thecommencement of the said Act meaning thereby the PunjabSecurity of Land Tenures Act, 1953, shall be continued anddisposed of as if Haryana Ceiling on Land Holdings Act, 1972had not been passed. In view of the aforesaid Section 33(2)(i)if the proceeding which had been initiated on 27-7-1959 andwas pending when the Haryana Ceiling on Land HoldingsAct, 1972 came into force, that proceeding has to be continuedin accordance with the old Act.

5. On behalf of the appellant it was urged that once theorder dated 19-10-1959 declaring surplus land was quashedthe proceeding came to an end and nothing was pending whichcan be continued. It is difficult to accept this contention. Theorder of the High Court dated 15-12-1961 which quashedthe aforesaid order also directed the department concerned A

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Ato determine the question of surplus land according to thelaw laid down in the case of Jagan Nath v. State of Punjab[.]”

16. To the same effect is another judgment of this Court in 1994Supp (3) SCC 101, Bhagwati Devi versus State of Haryana andothers. Thus, proceedings for determination of surplus land which wereBinitiated under 1953 Act were thus have to be continued and disposed ofin accordance with 1953 Act. Learned counsel for the appellant to supporthis submissions that Section 8(3) and 9(3) of 1972 Act has to be appliedwhile considering the selection of land by land holder in the surplus poolcontends that expression ‘determination of surplus land’ does not includethe selection of land by land owner to be given in surplus pool. BeforeCwe 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) providedthat Permissible Area means the extent of land specified in Section 4 asPermissible Area. The Permissible Area as defined in Section 4 of 1972Act was reduced as compared to Permissible Area under 1953 Act.DSection 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 beenplaced by learned counsel for the appellant provides for: -E“8(3). If any person transfers [or disposes of] any land afterthe appointed day in contravention of the provisions of sub-section (1), the land so transferred [disposed of] shall bedeemed to be owned or held by that person in calculating thepermissible area. The land exceeding the permissible area soFcalculated shall be the surplus area of the person and in casethe area left with him after such transfer [dispose of] is equalto the surplus area so calculated, the entire area left with himshall be deemed to be the surplus area. If the area left withhim is less than the surplus area so calculated, the entire arealeft with him shall be deemed to be the surplus area and to theGextent of the deficiency in it the land so transferred [ordisposed of] shall also be deemed to be the surplus area shallbe made up from each of the transferees in the proportion tothe land transferred [or disposed of] to them.”

18. Further Section 9 on which reliance has been placedHcontains a heading “Selection of permissible area and persons KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS.[ASHOK BHUSHAN, J.]

required to furnish declaration”. Section 9 which is relevant is asfollows: - A

“9. (1) Every person, who on the appointed day or at any time thereafter holdsSelection ofland exceeding the permissible area, shall [within a period of three monthspermissible area andfrom such date as the State Government may, by notification, specify in thispersons required tobehalf] or subsequent acquisition of land, furnish to the prescribed authorityfurnish declarationa declaration supported by an affidavit giving the particulars of all his landand that of the separate unit in the prescribed form and manner and statingBtherein his selection or the parcel or parcels of land not exceeding in theaggregate 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 31[st] October, 1976.]Explanation 1.- Where the person is a member of the family, he shallinclude in his declaration the particulars of land held by him and also of land,Cif any, held by other members of the family [and the separate unit.][Explanation II.- In calculating the extent of land owned or held by aperson, the share of such person in the land owned and held by an undividedfamily, firm or association of individuals, whether incorporated or not, and theland contributed as share capital or otherwise by him to a co-operative societyor a company of which he may be a member or shareholder, shall be taken intoaccount.]D[(2) Every person making a selection of the permissible area undersub-section (1), may also select land for the separate unit.Explanation. - An Adult son, who owns or holds land and is livingseparately 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 placethe land which had been transferred by him after the appointed day inEcontravention of the provisions of Section 8 and in the second place the landmortgaged 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 thePunjab law or the Pepsu Law.F(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 likedisability, the guardian, manager or other person in charge of such person orof the property of such person;(c) in the case of a family, the husband or in his absence, the wife, or,Gin the absence of both, the guardian of the minor children;(d) in the case of any other person, any person competent to act forsuch person in this behalf.”

19. Section 9(3) provides that in making the selection such personsshall include in the first place the land which has been transferred by Ahim after the appointed date in contravention of provisions of Section 8and in the second-place land mortgaged by him without possession. Thus,as per strength of Section 9(3), the land owner while selecting land withinpermissible area has to include any transfer made by him after theappointed date in contravention provisions of Section 8. The permissibleArea and selection as occurring in Section 9 has to be read in referenceBto permissible area as referred to in Section 3(l) read with Section 4 andselection there on. The selection of permissible area occurring in Section9 and requirement to include in such selection land transferred by landowner after the appointed date i.e.25.03.1972 is in reference to theproceedings under 1972 Act.C

20. The submissions of Appellant that while making selection byJaipal Singh of the permissible area in pursuance of appellate order dated14.11.1979. Section 9(3) had to be applied and land of the predecessor-in interest of the appellants which was purchased by Mohan Singh bySale deed dated 18.06.1974 ought to have been included cannot beDaccepted. Firstly, the order by the appellate authority on 14.11.1979remanding the matter to the Collector for permitting the land owner tosubmit a list of plot numbers to be retained by him was in reference toproceedings of surplus area which was initiated under 1953 Act and asper Section 33(2)(ii), the said proceedings have to be continued anddisposed of as if 1972 Act has not been passed. When Section 33(2)(ii)Eprovides for proceedings of determination of surplus area which werepending on 23.12.1972 to be continued as if 1972 Act had not beenpassed, there is no question of applying provisions of Section 8(3) and9(3) as contended by the appellant.21. Now coming to the submissions of learned counsel for theFappellant that present was not a case of determination of surplus arearather it was selection of permissible area by the land owner and whathas to be continued and disposed of as per Section 33(2)(ii) of 1972 Actwas determination of surplus area and present being case of selection ofpermissible area Section 33(2)(ii) of 1972 Act was not applicable andGSection 8 and 9 of 1972 Act has to be applied.

22. What is the content and extent of expression “determinationof surplus area” under 1953 Act needs to be looked into for consideringthe above submissions? Section 2(5a) of 1953 Act defined surplus areain following manner: - H

“2. (5-a). “Surplus Area” means the area other than thereserved area, and, where, no area has been reserved, thearea in excess of the permissible area selected [under Section5-B or the area which is deemed to be surplus area undersub-section (1) of Section 5-C] [and includes the area inexcess 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 partthereof, where such area or part has not been brought underself-cultivation within six months of reserving the same orgetting 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 and5C indicates that determination of surplus area is a process contemplatingvarious steps in determination of surplus area. The submission ofdeclaration 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 tenantshall be deemed to be surplus area or all part of an integrated process ofdetermination of surplus area. When the meaning of surplus as containedin Section 2(5a) expressly provides that “area in excess of permissiblearea selected deemed to be surplus area”, the selection is clearly indicatedas part of the surplus area. The very definition of surplus area ascontained in Section 2(5a) negates the submission of counsel for theappellant that selection of permissible area is not covered in theexpression determination of surplus area.

24. We thus also reject the above submissions of counsel forappellant that since selection of permissible area by land owner was notcovered in determination of surplus area, Section 8(3) and 9(3) areapplicable.

25. Learned counsel for the appellant has placed reliance onjudgment of full Bench of Punjab and Haryana High Court in Chet Ramand another versus Amin Lal and others (Supra) for the propositionthat transfer in contravention of provisions of 1953 Act is only void bythe State but valid between parties inter se. In the above Full Benchjudgment, the High Court had occasion to consider transfer incontravention under Section 19A under 1953 Act. Section 19A provided:- AB

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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 Bwithout the land already owned or held by him, shall in the aggregate exceed the permissible area; Bar on future acquisition of land in excess of 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.

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(2) Any transfer, exchange, lease, agreement or settlement made in contravention of the provisions of sub-section (1) shall be null and void.”

26. In paragraph 23, full Bench gave following answer: - “23. To conclude it must be held that even though theDlanguage of sub-section (2) of S. 19-A is absolute; yet for thereasons of sound interpretation it must be given a slightlyconstricted meaning in order to harmonise it with S. 19-B ofthe Punjab Act. The answer to the question posed at the outsetis that a transfer in contravention of Section 19-A(1) wouldEbe void only qua the State for the purposes of the PunjabAct, but would be valid and binding between the parties interse. The view in Labh Singh’s case 1971 Cri LJ 719(supra) inthis context, is hereby overruled, whilst that in Godhu’s case1979 PLJ 496(supra) is approved and affirmed.”

F27. The above full Bench judgment of Punjab and Haryana HighCourt was on different aspect. Present is not a case for any contraventionof Section 19A, hence, the above judgment does not support thesubmission made by learned counsel for the appellant in the facts of thepresent case.

28. In so far as the submission of learned counsel for the appellantGthat land owner has cheated his predecessor in interest since the landwhich was already declared surplus was sold by Jaipal Singh on18.06.1974, the above submission on the ground of any fraud played onthe appellant was expressly not pressed by appellant in the High Courtwhich has been noticed by the learned Single Judge in paragraph 7 whichHis to the following effect: - “7. At the very outset, it may be mentioned here that althoughthe petitioner has challenged the impugned orders in thispetition on the various grounds mentioned therein, but learnedcounsel for the petitioner has confined his argument only tothe limited extent of legal proposition that Mohan Singh-Petitioner was entitled to the benefit of Section 8(3) of theHaryana Act.”

29. Limited submission pressed before the learned Single Judgeby the appellant was as to whether Mohan Singh was entitled to thebenefit of Section 8(3) of 1972 Act. No other submissions were neitherpressed nor adverted to by the learned Single Judge who decided infavour of the appellant. We are thus of the view that appellant cannot bepermitted to raise above submission.

30. The appellant has purchased the land in dispute from MohanSingh on 16.06.1989, when the claim of Mohan Singh stood rejected byboth Commissioner and Financial Commissioner and land was includedin the surplus pool. The appellant cannot be permitted to raise any issueof fraud played on Mohan Singh the predecessor-in-interest of appellantby land owner, it was for Mohan Singh in his life time, to establish theplea of fraud. The appellant could not be allowed to raise any suchsubmission.

31. In view of the above discussions, we are of the view that noerror has been committed by Division Bench of the Punjab and HaryanaHigh Court in allowing the LPA of the respondents. The Division Benchhas rightly taken the view that Single Judge went wrong by holding thatprovisions of Section 8(3) of 1972 Act are applicable in the present caseand the competent authority has to ensure that transferred area at firstinstance be included in the permissible area of the land owner. TheDivision Bench has rightly set aside the direction of learned Single Judgeand 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 isdismissed.

Kalpana K. Tripathy

Appeal dismissed.

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