REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.356 OF 2020 (arising out of SLP (C) No.23296 of 2010)

KIRPAL SINGH & ORS.       ...APPELLANTS

Vs.

KAMLA DEVI & ORS.     ...RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

1.This appeal has been filed by legal heirs of the

subsequent purchasers challenging the judgment of

Division Bench dated 21.04.2010 of the Punjab and

Haryana High Court in LPA No.55 of 2010 by which

the appeal filed by the legal heirs of land owner

has been allowed setting aside the judgement of

learned  Single  Judge  by  which  he  directed  the

prescribed authority to include the area sold to

the appellants within the permissible area of the

land holder.   

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2.Brief  facts  of  the  case  giving  rise  to  this

appeal are: -

(i) One Jaipal Singh, land holder, was owner

of the land measuring 221.72 standard acres

in  village  Kheri,  Shishgarh  on  15.04.1953,

when  Punjab  Security  of  land  Tenures  Act,

1953(hereinafter referred to as 1953 Act) was

enforced.  The  1953  Act  defined  permissible

area,  standard  acre  and  surplus  area.

Permissible  area  under  the  1953  Act  was

defined as 30 standard acres. Land owner who

owned land in excess of permissible area was

entitled  to  intimate  his  selection  in  the

prescribed form and manner to the Patwari of

the State. The Collector of the area passed

an order dated 28.07.1960 determining 191.72

standard area of land as surplus in the hand

of Shri Jaipal Singh.  An appeal was filed by

Jaipal  Singh  to  the  Commissioner,  Ambala

Division which was dismissed on 14.11.1960.

The  Revision  Petition  before  the  Financial

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Commissioner, Punjab which was also dismissed

on 01.05.1961.  

(ii) CWP No.639 of 1961 filed by the Jaipal

Singh  was  allowed  by  the  High  Court  vide

judgment  dated  12.03.1962  and  authorities

were directed to redecide the surplus area in

accordance  with  the  law  laid  down  by  the

judgment  of  Punjab  High  Court  reported  in

1962 PLR 22, Jagan Nath and others versus

State of Punjab and others.  The proceedings

before  the  Collector  in  pursuance  of  the

judgment  of  Punjab  High  Court  dated

12.03.1962 remained pending. In the meantime,

State  of  Haryana  was  created  and  State

legislature  passed  an  Act  namely,  Haryana

Ceiling  of  land  Act,  1972(hereinafter

referred to as 1972 Act). Jaipal Singh on

18.06.1974 executed sale deeds in favour of

one Mohan Singh of an area of 125 Kanal and 8

Marla.  The  Collector  by  an  order  dated

12.05.1978  allowed  exemption  of  land  of

Jaipal Singh declared surplus measuring 150

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standard acres and balance of 36.47 standard

acres was declared surplus.  

(iii)  Learned  counsel  for  the  plaintiff

Jaipal  Singh  was  granted  time  by  the

Collector  to  furnish  list  of  land  to  be

retained by Jaipal Singh but requisite list

was not submitted and order was passed on

20.05.1978  declaring  surplus.  The  appeal

against order dated 12.05.1978 was filed by

Jaipal  Singh.  The  Commissioner,  Ambala

division decided the appeal vide order dated

14.11.1979  and  remanded  the  case  to  the

Collector  with  a  direction  that  he  should

permit the appellant Jaipal Singh to give the

list of Khasra to be given in surplus pool to

the Collector. Appellant was given time till

21.11.1979. Jaipal Singh gave Khasra numbers

which were sold to Mohan Singh in surplus

pool. A notice was issued to Mohan Singh to

vacate the land. An application was filed by

Mohan Singh before the prescribed authority

objecting notice given to him to vacate the

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land. The prescribed authority rejected the

application of Mohan Singh by the Order dated

11.10.1983  observing  that  the  Vendee  had

purchased the surplus area by registered sale

deed dated 18.06.1974.  

(iv)  Against  the  order  of  prescribed

authority, Mohan Singh filed an appeal before

the Collector. The Collector by order dated

06.02.1984 accepted the appeal directing that

if the surplus land had to be taken the same

will be taken from the land of the owner and

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 Jaipal Singh filed a revision before

the  Commissioner,  Ambala  Division.  The

Commissioner  allowed  the  appeal.  The

Commissioner  held  that  the  surplus  area

declared by the Collector in the year 1960

vested in the State. The Commissioner held

that  land  owner  could  not  be  forced  to

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exclude this land from surplus area. It was

further held that prescribed authority had no

jurisdiction  to  challenge  or  modify  the

orders passed by the Collector. The order of

Collector  was  set  aside  and  appeal  was

allowed. Revision filed by Mohan Singh before

the  Financial  Commissioner,  Haryana  was

dismissed  by  the  order  dated  18.02.1987

against which writ petition No.2979 of 1989

was filed by Mohan Singh.  

(v)  Mohan  Singh  executed  a  sale  deed  on

16.06.1989 in favour of appellant of the land

which was purchased by him from Jaipal Singh

vide sale deed dated 18.06.1974.  

(vi) The writ petition was allowed by learned

Single  Judge  setting  aside  the  order  of

Commissioner and Financial Commissioner. The

learned Single Judge remitted the matter to

consider the case of petitioner for the grant

of benefit envisaged under Section 8(3) of

1972 Act with regard to permissible area by

land  owner  without  touching  the  order  of

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declaration of surplus area. The order of the

Collector  dated  06.02.1984  was  restored  to

the limited extent.  

(vii) Against the judgement of learned Single

Judge 18.11.2009, LPA was filed by the legal

heirs of the land owner. LPA has been allowed

by  the  Division  Bench  by  the  impugned

judgment  dated  21.04.2010.  The  appellant

aggrieved  by  said  judgment  has  filed  this

appeal.

3. We  have  heard  Shri  Narender  Hooda,  senior

Advocate for the appellants, Shri Pradeep Kant,

senior Advocate, has appeared for the contesting

respondents. We have also heard learned Counsel

for the State of Haryana.

4.Learned counsel for the appellants submits that

the predecessors-in-interest of appellants having

purchased land measuring 125 Kanal and 8 Marla on

18.06.1974,  they  were  entitled  to  benefits  of

Section 8(3) and 9(3) of 1972 Act, which provides

that big land owner shall first include his land

and only if the same is deficient, the land of

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the  vendee  should  be  included  in  the  surplus

pool.  It  is  submitted  that  appellant  is  not

challenging  the  declaration  of  the  land  of

surplus in the hands of Jaipal Singh nor seeking

reduction in surplus pool.  

4.1.  It is submitted that Section 33(2) (ii) &

(iv)  cannot  be  read  to  conclude  that  the

provisions of 1972 Act would not be applicable if

the proceedings had commenced under 1953 Act. The

determination of surplus area does not include

within  its  ambit  the  selection  of  land.  The

selection of the surplus pool by the land owner

has to be made under 1972 Act and any selection

made inconsistent with the provisions of 1972 Act

is null and void.  

4.2. Relying on the full Bench judgment of Punjab

and Haryana High Court in  Chet Ram and another

versus Amin Lal and others, AIR 1983 PH 50, it is

submitted that sale can only be void by the State

but will always remain valid and binding between

the vendor and vendee. The big land owner had

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cheated the predecessor in interest of appellant,

since he represented that the land sold is not

included in the surplus area nor shall be given

in the surplus pool. Land owner having sold the

land in 1974 by declaring that the land was not

either  in  surplus  pool  nor  the  same  would  be

given in surplus pool, the land owner cannot be

allowed  to  deprive  the  vendee  of  the  land

subsequently by giving the Khasra Number 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  interpreted  by  applying  beneficial

rules of construction to fulfil the policy of the

Act and to protect the interest of person for

whose  benefit  the  act  has  been  passed.  It  is

submitted  that  learned  Single  Judge  had  taken

correct view of the matter and the Division Bench

erred in allowing LPA filed by the respondent.  

5. Shri  Pradeep  Kant,  learned  counsel  for  the

respondent submits that Section 8(3) of 1972 Act

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cannot be pressed into service by the appellant

because Section 33(2)of 1972 Act clearly provides

that  the  repeal  of  the  provisions  of  the

enactment mentioned in sub-Section(1), shall not

affect (i) proceeding for the determination of

the surplus area pending immediately before the

commencement  of  this  Act,(ii)  which  shall  be

continued and disposed of as this Act (1972 Act)

had not been passed and (iii) surplus area so

determined shall vest in and be utilised with the

State Government in accordance with provisions of

1972 Act. On the date when 1972 Act came into

force  i.e.  23.12.1972,  the  proceedings  of

determination of surplus area of the land owner

Jaipal Singh was pending under 1953 Act. Section

33(2)(ii) of 1972 Act creates a deeming fiction,

it eclipses the operation of the new Act until

proceedings for the determination of surplus area

under the 1953 Act were disposed of in accordance

with the law. Neither Section 9 nor Section 8(3)

of 1972 Act can be invoked in the present case.  

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5.1. The Division Bench has rightly set aside the

Order of Single Judge and confirmed the Order of

Financial  Commissioner.  The  submission  of  the

appellant that once the new Act had come into

force, the selection of Permissible Area could

only be made under Section 9 of the new Act as

the land had vested in the State Government under

Section 12(3) upon commencement of the new Act is

misconceived.  The  appellants  were  not  bonafide

purchasers,  they  have  purchased  the  land  from

Mohan Singh vide Sale deed dated 14.06.1989 i.e.

much  after  land  stood  vested  in  the  State

Government and after the Orders were passed by

the  Commissioner  and  Financial  Commissioner

impugned before the learned Single Judge.  

5.2. Learned counsel submits that Sale deed dated

18.06.1974 having been obtained by Mohan Singh

after the commencement of 1972 Act, the sale deed

was void and no benefit can be claimed by the

appellant on that Sale deed.  

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5.3. Learned counsel for the parties have relied

on the judgments of this Court as well as of

Punjab  and  Haryana  High  Court  which  shall  be

referred  to  by  considering  the  submissions  in

detail.  

6. We have considered the submissions for learned

counsel for the parties and perused the record.  

7. From the submissions as made by learned counsel

for  the  parties  and  materials  on  record,

following are the main questions which arise for

consideration in this appeal: -

(i) Whether the proceedings for determination of

surplus area which was initiated in respect

of land owner Shri Jaipal Singh under 1953

Act  was  required  to  be  completed  in

accordance  with  provisions  of  1953  Act  or

provisions of 1972 Act also became applicable

since  the  proceedings  initiated  under  1953

Act were pending on the date of enforcement

of 1972 Act.

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(ii) Whether determination of surplus land under

1953 Act was only confined to declaration of

surplus and selection of plots for surplus

pool shall not be covered by determination of

surplus land?

(iii) Whether  the  appellants  and  their

predecessors-in-interest were entitled to the

benefit of Section 8(3) and 9(3) of 1972 Act,

which  required  the  land  owner  to  first

include his own land in surplus pool and only

when land own by him does not satisfy the

surplus pool land transferred by him after

the  enforcement  of  the  1972  Act  can  be

included in the surplus pool?

8. All the above questions being inter-related are

being taken together for determination.

9. The Punjab Security of Land tenure Act, 1953,

was  enacted  to  give  effect  to  the  agrarian

reforms which were taken in independent India by

different  States.  Section  2  of  the  Act  was  a

definition  clause  defining  various  terms  and

expressions.  Section  2(3)  provided  that

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Permissible Area in relation to the land owner or

tenant means 30 standard acres 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  surplus  area  in  the  hands  of

Jaipal  Singh  were  initiated  and  an  order  was

passed by the Collector on 28.07.1960 declaring

191.72  standard  acres  as  surplus  area  out  of

221.72 standard acres owned by Jaipal Singh. The

said order was carried in Appeal and Revision by

Jaipal Singh and ultimately was taken in the High

Court  by  means  of  CWP  No.639/1961  which  was

allowed 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 enacted w.e.f. 23.12.1972 on which date

the proceedings for determination of surplus in

the hands of Jaipal Singh which were initiated in

1953 were pending. What is the effect on the said

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proceedings by the enactment of 1972 Act is a

moot question to be considered and answered in

the present case? 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 of the 1972 Act,

which is relevant is as follows: -

“33.  (1)  The  provisions  of  the Punjab  Security  of  Land  Tenures Act, 1953, and the Pepsu Tenancy and Agricultural Lands Act, 1955, which  are  inconsistent  with  the provisions of this Act are hereby repealed.  

(2)  The  repeal  of  the provisions  of  the  enactments mentioned  in  sub-section  (1), hereinafter  referred  to  as  the said enactments, shall not affect-

(i) the applications for the purchase  of  land  under section 18 of the Punjab Law or  section  22  of  the  Pepsu Law,  as  the  case  may  be,

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pending  immediately  before the commencement of this Act, which shall be disposed of as if  this  Act  had  not  been passed;

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

[(iii)  the  revisional  power of the Financial Commissioner under  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; and the area declared surplus  in  exercise  of  such revisional  power  shall  vest in, and be utilized by, the State  Government  in accordance  with  the provisions of this Act;

(iv)  the  power  exercisable under  section  32-BB  of  the Pepsu  law,  as  the  case  may be, shall be exercised as if this Act had not been passed; and  the  area  determined surplus  in  exercise  of  such

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power shall vest in, and be utilized  by,  the  State Government in accordance with the provisions of this Act:

Provided that the powers of the Pepsu Land Commission under  the  Pepsu  law  shall vest in, and be exercised by, the Collector of the district concerned.]

(3) Save as provided in sub- section  (2),  no  authority  shall pass an order in any proceedings whether instituted before or after the commencement of this Act which is  inconsistent  with  the provisions of this Act.”

12. 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.  

13. 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

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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.  

14. The above interpretation of Section 33 is no

longer  res integra and has been finally settled

by this Court in  Jiwas Das (DEAD) through LRS.

versus Financial Commissioner, Revenue, Haryana

and others, 1998 (8) SCC 740. In the above case

also,  proceedings  for  determination  of  surplus

area were initiated against the land holder on

27.07.1959 which proceedings came up to the High

Court  where  High  Court  passed  an  order  on

15.12.1961  remitting  the  matter  for  fresh

determination. The proceedings were pending and

proceedings  were  taken  on  11.06.1975  in

consequence of direction of the High Court which

proceedings were challenged and the matter came

to this Court.  

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15. In the above context, the provisions of Section

33(2) came to be interpreted by this Court. In

paragraphs 4 and 5, following was laid down: -  

“4. It may be mentioned that in the meantime  the  Haryana  Land  Holdings Act  has  come  into  force.  Section 33(2)(i)  of  the  said  Act  provides that proceedings for determination of the surplus area pending immediately before the commencement of the said Act  meaning  thereby  the  Punjab Security of Land Tenures Act, 1953, shall be continued and disposed of as if Haryana Ceiling on Land Holdings Act,  1972  had  not  been  passed.  In view of the aforesaid Section 33(2) (i) if the proceeding which had been initiated  on  27-7-1959  and  was pending when the Haryana Ceiling on Land  Holdings  Act,  1972  came  into force,  that  proceeding  has  to  be continued in accordance with the old Act.

5. On  behalf  of  the  appellant  it was urged that once the order dated 19-10-1959 declaring surplus land was quashed the proceeding came to an end and nothing was pending which can be continued. It is difficult to accept this  contention.  The  order  of  the High  Court  dated  15-12-1961  which quashed  the  aforesaid  order  also directed the department concerned to determine  the  question  of  surplus land according to the law laid down in the case of Jagan Nath v. State of Punjab.”

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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

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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.”

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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.]

Selection  of permissible area  and persons required  to furnish declaration

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[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;

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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.”

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,

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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

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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

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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

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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

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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: -

“

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;

Bar  on future acquisitio n  of  land in  excess of permissibl e area.

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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.”

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.

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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.”

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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

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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.

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( NAVIN SINHA )

New Delhi,  January 28, 2020.          

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