Punjab-Haryana High Court
(O&M) Reshami Devi vs State Of Haryana Etc on 3 July, 2024
Neutral Citation No:=2024:PHHC:082013
RSA No.849 of 1990 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.849 of 1990 (O&M)
Reserved on: 27.05.2024
Pronounced on: 03.07.2024
Reshami Devi .....Appellant
Vs.
State of Haryana and another .....Respondents
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. V.K. Jindal, Senior Advocate with
Mr. Rahul Mahajan and Mr. Pankaj Gautam,
Advocates for the appellant.
Mr. Parveen Kumar Aggarwal, DAG, Haryana.
****
DEEPAK GUPTA, J.
Suit for declaration and permanent injunction filed by the
plaintiff (appellant herein) was decreed by the trial court on 19.12.1988.
However, in the appeal filed by the defendant-State of Haryana (respondent
herein), the first appellate court dismissed the suit, by allowing the appeal on
03.08.1989. It is against the judgment/decree of the First Appellate Court
that plaintiff has approached this Court by way of present RSA.
2. In order to avoid any confusion, parties shall be referred as per
their status before the trial court. Trail court record was called, which has
been perused with the able assistance provided by the learned counsel for
both the sides.
3.1 Brief facts relevant for disposal of the present case are that
provisions of Punjab Security of Land Tenures Act, 1953 (hereinafter
referred to as `the 1953 Act') used to hold the field in the State of Haryana,
till the State of Haryana enacted the Haryana Ceiling on Land Holdings Act,
1972 (hereinafter referred to as `the 1972 Act').
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3.2 Inder Singh, the father of plaintiff of Smt. Reshami Devi was
big land owner, holding 269.97 acre of land (referred at many places as
229.97 acres). By way of order of the Collector, Sirsa, 60 simple acres of
land of Inder Singh was declared as his permissible area. 19.94 acres of land
was reserved as the tenant's permissible area; whereas, 190.3 simple acres
land was declared as the surplus area. Consolidation took place in the village
and in lieu of the land held by Inder Singh, the total land of Inder Singh
became 1795 kanal 1 marla. Out of this, said Inder Singh transferred 1/5th
share i.e. 359 kanal in the name of his daughter - plaintiff- Smt. Reshami by
virtue of a Civil Court decree dated 12.04.1969, regarding which mutation
No.2921 was sanctioned. Obviously, the said transfer was effected by Inder
Singh in favour of the plaintiff after the prescribed date of 30.07.1958, as per
1953 Act. Resultantly, plaintiff - Smt. Reshmi was also declared as a big
land owner and out of 359 kanal area transferred in her name, 275 kanal was
declared as her permissible area; whereas, 76 kanal 4 marla was declared as
surplus area.
3.3 The case of the plaintiff is that total holdings belonging to her,
her father Inder Singh and other co-sharers being still joint, the State is
legally bound to initiate proceedings under Section 14 (1) of the 1972 Act
and to separate the share of each co-owner and declare the particular Killa
numbers in the surplus pool, equal to 76 kanal 4 marla in the hands of the
plaintiff and only then, the State can utilize the area under the provisions of
'Haryana Utilization of Surplus and other Areas Scheme,1976' and then the
State can dispossess her, as the State has not initiated the proceedings under
Section 14 (1) of 1972 Act till date nor the co-owners have agreed to
separate their shares by way of mutual consent, as some of the land owners
are small land owners.
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3.4 With these pleadings, plaintiff prayed for decree of declaration
that she is the owner in possession of 275 kanal of land as permissible area
being 5500/35901 share out of the total land measuring 1795 kanal 1 marla
as detailed in the head note of the plaint; and 76 kanal 4 marla as surplus
area, and that defendants be restrained permanently from dispossessing her
from the aforesaid land measuring 275 kanal. Defendants are further sought
to be restrained from dispossessing her from the land measuring 76 kanal 4
marla of the surplus pool, without separating the share of the plaintiff in the
total land and without declaring particular Killa numbers of land as surplus
area by utilizing the same under Section 14 (1) of the 1972 Act.
4. The stand of the defendant-State is that Inder Singh was entitled
to 60 acres of land, which was reserved as his permissible area out of his
total holding and as he transferred 1/5th share in favour of the plaintiff after
30.07.1958, therefore, plaintiff is entitled to only 12 acres of land being her
permissible area and the area left as tenant's permissible area; whereas, the
entire remaining land of the plaintiff being surplus vested in the State on
24.01.1971. It is submitted that the plaintiff being the big land owner had
filed her declaration form under Section 9 of the 1972 Act and she was
accordingly allowed one unit, whereas the remaining land was declared as
surplus. In the order of the Prescribed Authority, there was a condition that
if the land of plaintiff was already declared surplus under the old Act, the
same shall remain surplus and as such, plaintiff is owner only to the extent
of 12 acres of the land. However, it is conceded that allotment of the surplus
land of the plaintiff is to be made after separating her surplus land by
initiating proceedings under Section 14 (1) of the 1972 Act. The respondent-
State also raised objection that the Civil Court did not have the jurisdiction
in the matter.
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5. In the rejoinder, the plaintiff re-iterated her case. It has also
come on record that plaintiff has since married and therefore, she is entitled
to independent unit.
6. Necessary issues were framed. After taking the evidence
produced by the parties, the trial court decreed the suit. However, the First
Appellate Court, after holding that the Civil Court did not have the
jurisdiction, allowed the appeal of defendant-State and dismissed the suit.
7.1 Before this court, it is contended by the learned counsel for the
appellant-plaintiff that proceedings regarding declaring the land as
permissible area or tenant's permissible area or surplus area, pertaining to
Inder Singh were done under the old Act of 1953. Those proceedings have
not been finalized till date because of the pendency of a writ petition before
Hon'ble Supreme Court. Learned counsel has drawn attention towards an
order dated 21.01.1982 of Hon'ble Supreme Court in Writ Petitions Nos.799-
801 of 1982, wherein, dispossession of the petitioners - Inder Singh etc.
from the surplus land in dispute was stayed till further proceedings by
allotting to the eligible tenants by way of resettlement on the surplus area.
Learned counsel contends that thus, at least till 1982, the proceedings under
the 1953 Act pertaining to the land of Inder Singh were not finalized.
Learned counsel has then drawn attention towards Section 33 of the 1972
Act in order to contend that pending proceedings for determination of the
surplus area under 1953 Act shall remain un-effected by the provisions of
1972 Act. To support his submissions, learned counsel relies upon Kirpal
Singh and others vs. Kamla Devi and others, (2020) 11 SCC 273.
7.2 It is further the contention of learned counsel that as per 1953
Act, the vesting in the State takes place only on the execution of
Kabuliyatnama by the allottee, who had been allotted the surplus area.
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However, in this case, it is not the stand of the respondent-State that the land
declared as surplus was ever allotted to any deserving person.
7.3 It is further the contention of the learned counsel that after the
decision of Hon'ble Supreme Court, the prescribed authority is required to
decide the declaration form of Inder Singh, the father of the plaintiff.
However, defendant cannot include and count the permissible area of the
plaintiff in the declaration form of Inder Singh because the plaintiff being
married and now being not a member of the family of Inder Singh, therefore,
even the already declared surplus land of the plaintiff cannot be included in
the hands of head of the family i.e. Inder Singh.
8. On the other hand, contention of the learned State counsel for
the respondent is that plaintiff is entitled to retain only 12 acres of the land
i.e. 1/5th of the total area, which was declared as permissible area of Inder
Singh and that rest of the land in the hands of plaintiff will be surplus land.
9. Having considered the submissions of both the sides, this Court
finds merit in the present appeal.
10. As far as the issue relating to jurisdiction is concerned, the said
question is fully covered by a Five Judge Bench judgment of this Court in
State of Haryana and others vs. Vinod Kumar and others, 1986 (1) PLR
222 and relying upon the same, it is held that in the facts and circumstances
of the present case, the Civil Court will have the jurisdiction in the matter.
As such, contrary finding od the first appellate court in this regard cannot be
sustained.
11. Coming to the merits, it is not in dispute that proceedings to
declare the land of Inder Singh as surplus were initiated under the 1953 Act.
However, the said proceedings were not finalized at least till 1982, when the
order was passed by Hon'ble Supreme Court staying the proceedings. It is
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during this period that Act of 1972 came into force. Although the 1972 Act
repeals the 1953 Act, but section 33 of 1972 Act makes it clear that repeal of
1953 Act, shall not affect the proceedings for determination of the surplus
area pending immediately before the commencement of 1972 Act. Reliance
in this regard can be placed upon Kirpal Singh and others vs. Kamla Devi
and others (supra), wherein it has been held by the Supreme Court that
Section 33 (2)(ii) has clearly provided that repeal of 1953 Act shall not affect
the proceedings for determination of surplus area pending immediately
before the commencement of the 1972 Act under the provisions of 1953 Act,
which shall be continued and disposed of as if this Act had not been passed.
12. In view of the legal position as explained above, it is clear that
after the decision of Hon'ble the Supreme Court pertaining to the declaration
of the land as surplus of Inder Singh, the father of the plaintiff, the
defendant-prescribed authority is required to proceed further under the 1953
Act, in as much as, 1972 Act will not affect the proceedings for determining
the surplus area of Inder Singh, as the proceedings were pending since prior
to the commencement of the 1972 Act.
13. Still further, it is the admitted position that after the transfer of
1/5th share of his land by Inder Singh in favour of the plaintiff, she got 351
kanal 4 marla of land, out of which 275 kanal was declared as her
permissible area, whereas 76 kanal 4 marla was declared as her surplus area.
Not only this, the holding of the plaintiff, her father Inder Singh and other
co-sharers is still joint. Meaning thereby, the permissible area and surplus
area of the plaintiff has not been separated and identified till date. Section 14
of 1972 Act is relevant here, which read as under:
"14. POWER TO SEPARATE SHARES OF LANDOWNERS.--(1) Where a
landowner owns land jointly with other landowners and his share of such land or
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part thereof has been, or is to be, declared as surplus area, the officer competent to
declare such area, or where such area has been declared, the officer competent to
utilize it, may on his own motion, after summary enquiry and affording to the
persons interested in such land an opportunity of being heard, separate his share of
such land or part there0f in the land owned by him jointly with other landowners.
(2) Where, after the declaration of surplus area of any person and before the
utilisation thereof, his land has been subjected to the process of consolidation, the
officers referred to in sub- section (1) shall be competent to separate the surplus
area of such persons out of the area .of land obtained by him after consolidation.
14. In present case, it is not disputed by the defendant-State that 76
kanal 4 marla declared as surplus, has not been utilized till date as per
Section 14 (1) of the Haryana ceiling of Land Holdings Act, 1972. Since the
holding of the plaintiff, her father Inder Singh and other co-sharers is still
joint and the permissible area & surplus area of the plaintiff has not been
separated and distinctively identified till date, so the defendant-State cannot
utilize the area declared as surplus in any manner whatsoever.
15. Reliance can be placed on Chandgi vs. Financial
Commissioner Haryana, 1984 PLJ 437, wherein it has been held by this
Court in that surplus land does not automatically vest in the State. There has
to be a legal order declaring said land as surplus. In absence of such order,
no surplus land can vest in the State authorities. Apart from this, it has been
clarified by Hon'ble Supreme Court in Financial Commissioner, Haryana
vs. Kela Devi, Law Finder Doc ID #73947 that as per Section 10 (a) of the
1953 Act, the completed title does not pass to the allottee on mere order of
allotment. That order is defeasible if the other conditions prescribed by law
are not fulfilled. Hon'ble Supreme Court upheld the findings of the High
Court to the effect that mere allotment of land to other tenants under Section
10 (a) of the Act did not amount to utilization of the surplus area when the
re-settled tenants had not taken the possession under the allotment orders.
16. In the present case, what to talk of completing the formalities,
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even the land declared as surplus of the plaintiff had not been allotted to any
eligible tenants and thus, the proceedings have not been completed till date
nor the possession has been taken from the plaintiff till date.
17. In view of above discussion, the present Regular Second Appeal
is hereby disposed of with the direction that the defendants have to first
complete proceedings under 1953 Act regarding the declaration of the land
as surplus pertaining to Inder Singh and it is only thereafter that land of the
plaintiff is to be declared as surplus or permissible as per 1972 Act by giving
her the benefit of the fact that she has become an independent unit being a
married lady and cannot be included as a unit of family of her father Inder
Singh. Till all these proceedings are completed, defendant - respondent
cannot dispossess the plaintiff from the land held by her as a co-sharer on
the joint land. Accordingly, decree of injunction is passed, restraining the
defendant - respondent State from dispossessing the plaintiff from any part
of the suit land presently held by her, as was transferred to her by her father
Inder Singh, except in due course of law in the manner as indicated above.
The present Regular Second Appeal is disposed of in these terms, leaving
the parties to bear their own costs. Decree sheet be prepared accordingly.
July 03, 2024 (DEEPAK GUPTA)
renu JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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