Kirpal Singh vs Kamla Devi on 28 January, 2020


Supreme Court of India

Kirpal Singh vs Kamla Devi on 28 January, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, Navin Sinha

                                                                 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

Signature Not Verified
the appellants within the permissible area of the
Digitally signed by
ARJUN BISHT
Date: 2020.01.28
14:16:51 IST
Reason:

land holder.

1

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

2
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

3
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

4
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

5
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

6
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

7
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

8
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

9
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.

10
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.

11
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.

12

(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

13
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

14
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,
15
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
16
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

17
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.

18

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
.”

19

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
20
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.”

21

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      Selection of
appointed day or at any time          permissible
                                      area      and

thereafter holds land exceeding the
persons
permissible area, shall [within a required to
period of three months from such furnish
date as the State Government may, declaration
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.]

22
[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;

                                      23
      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,

24
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

25
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

26
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
27
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

28
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 Bar on
to the contrary in any law, custom, future
acquisitio
usage, contract or agreement, from
n of land
and after the commencement of the in excess
Punjab Security of Land of
Tenures(Amendment) Ordinance, 1958, permissibl
no person, whether as land-owner or e area.
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;

29

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

32
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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