Diwan Chand vs State of Haryana

D.S. Tewatia, J. (Oral)

Diwan Chand, Khan Chand, Bhagwan Dass and Sher Chand sons of Darya Ram, petitioners purchased land measuring 146 Kanals 6 Marlas by means of a registered sale deed dated 15th June, 1971, from Shri Anant Ram son of Diwan Chand and Parmod, Ashok, Vikram and Prabhat sons of Anant Ram. Out of this land nearly 65 Kanals is alleged to be Banjar Qadim which they allegedly reclaimed by spending unspecified amount. The land so purchased by the petitioners stood already declared surplus in the hands of their vendor landowners.

The petitioners besides, seeking to restrain the State Government from dispossessing them from the said land, have also sought to quash the mutation of ownership effect regarding that land in favour of the State Government inter alia, on plea that the land had all through remained unutilised; that the petitioners whose total holding including the land purchased by them, was less than 10 standard acres, and thus stood saved from vesting in the State Government in view of the various notifications issued by the erstwhile Punjab Government and later on by the Haryana Government; that 65 Kanals land out of the purchased land which was Banjar Qadim and that in any case the petitioners being possessed of less than 10 standard acres, were entitled to be considered for allotment of the said land under the Utilization of Surplus Area envisaged under the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as `the Act'').

In reply to the assertion in the petition in regard to the quantum of Banjar Qadim land, it was stated that Banjar Qadim and Gair Mumkin land was only to the extent of 52 Kanals 13 Marlas out of the total land purchased by the petitioners. It was denied that the land purchased by the petitioners was covered by any notification either issued by the erstwhile Punjab Government or by the Haryana Government. The assertion that the land had not been utilised by the State Government till the appointed day is however admitted.

Learned counsel for the petitioners Mr. Sharma sought to bring the case of the petitioners within the purview of section 8 of the Act. Section 8 is in the following terms:

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

(2) the burden of proving the transfer to be a bona fide one shall be on the transferor.

(3) If any person transfers any land after the appointed day in contravention of the provisions of subsection (1), the land so transferred 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 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 to the extent of the deficiency in it the land so transferred shall also be deemed to be the surplus area. If there is more than one transferee, the deficiency of the surplus area shall be made up from each of the transferees in the proportion to the land transferred to them".

Perusal of clause (a) of subsection (1) of Section 8 would show that such transfers which were in excess of the permissible area under the Pepsu Law or Punjab Law and were made on or before 30th day of July, 1958 were saved. Clause (b) of subsection (1) of Section 8 saved such bona fide transfers as were made in excess of permissible area under the Haryana Act and after the appointed day.

Reasonable construction of both the clauses of subsection (1) of section 8 would show that if under the Pepsu Law or Punjab Law, a landlord was possessed of surplus area, then any transfer effected by him on or before the 30th day of July, 1958, that transfer was to be given effect and to the extent of the area covered by such transfers, the surplus area was to stand reduced. However, if any transfer was effected after 30th day of July, 1958 by the high landowner, the same had to be ignored. Clause (b) of subsection (1) of Section 8 refer to the bona fide transfer in excess of permissible area by a landowner who became big landowner for the first time under the Act. Any bona fide transfers in this case by a big landowner even after the appointed day, was not to be taken into consideration for assessing the surplus area.

Subsection (3) of Section 8 envisaged that if any big landowner effected transfer of the land in excess of the permissible area after the appointed day, in contravention of the provisions of subsection (1) of section 8 i.e., if the transfer was not bona fide, then the transferred land was to be considered to be the land of the big landowner and it was provided that the surplus area shall be taken in the first instance from the area left with the big landowner and the transferees were to be touched only if the surplus area could not be made good from the area left with the big landowner.

In view of the interpretation that I have placed on the provisions of clauses (a) and (b) of subsection (1) of section 8, the petitioners'' case is not covered either by clause (a) or by clause (b). The petitioners'' case is, therefore, also not covered by provisions of subsection (3), as in this case the transfer was not effected by a big landowner who became big landowner only by virtue of the Act.

It is conceded by the learned counsel for the petitioners that in fact none of the notifications issued by the erstwhile Punjab Government or the Haryana Government covered the present case. The latest Haryana Government notification No. 5726AR(LA)76/28819, dated the 15th September, 1976, covered cases of purchase effected only upto 15th April, 1966.

So far as the submission as to whether the Banjar Qadim area could or could not be declared surplus in the hands of the big landowner, it may be observed that such a question had first to be raised either by the big landowner or by the transfereepetitioners before the concerned statutory authority. Also the question in regard to their entitlement to the allotment of the land purchased by them under the Surplus Area Utilization Scheme is to be raised by the petitioners before the statutory authority under such a Scheme.

For the reasons aforementioned, I find no merit in this petition and dismiss the same. No order as to costs.