SHRIMATI CHANDRO Vs. STATE OF HARYANA

JUDGEMENT

(1.) The writ petitioner seeks for quashing of the order issued by the Financial Commissioner in proceedings under the Haryana Ceiling on Land Holdings Act, 1972, setting aside the order of the Collector holding that the property mortgaged by the landowner was a bona fide one and it was required to be excluded for computation of the land holding. This was in continuation of the proceedings that started at the instance of the petitioner seeking for exemption of the land held by him as a mortgagee. The application for exemption was rejected, but this was set aside by the Collector by his order dated 23.11.1983.

(2.) It is not now denied before me that if the property mortgaged in favour of the petitioner had also been included, the landowner certainly held property in excess of the permissible area. The petitioner as a mortgagee sought for exemption of the land on two grounds:

(3.) I find that both the contentions are not tenable. The Haryana Ceiling on Land Holdings Act sets out through Section 4 the mode of computation of the permissible area. The holding could be either as a landowner or a tenant or a mortgagee in possession partly in one capacity and party in another. Section 8 which marks out an exception for certain proceedings or disposition as not to affect the surplus area protects, however, a transfer which is a bona fide transaction. Section 8(2) places the burden of proof that a transfer is bona fide only on the transferor. The contention of the learned senior counsel appearing on behalf of the petitioner is mat since the transfer has been made prior to the notified date, the property secured under the mortgage ought to have been excluded. The learned counsel argues mat the mortgage involves a transfer and consequently, a transfer which was made prior to the notified date would require to be excluded from the total holdings of the landowner. I find this contention to be unacceptable, for, the transfer that is contemplated under Section 8 is a transfer that divests the owner of the right in the property. A mortgage which constitutes a transfer does not create any divestiture. The property which is mortgaged cannot, therefore, be removed from the permissible area of the landowner. The learned counsel refers to a Full Bench ruling of this Court to contend that the mortgage property will be excluded from the land holding and refers to a decision in Chet Ram and another v. Amin Lal and others, 1982 PunLJ 115. This decision was rendered in the context of Punjab Security of Land Tenures Act and the effect of holding of a mortgagee. The reference to this decision is wholly inappropriate and misleading. Punjab Security of Land Tenures Act creates fiction by bringing within the definition of a 'landowner' also the property hold by a person as a mortgagee in possession. This fiction must be applied only to the holding mat is relevant for considering the rights of Punjab Security of Land Tenures Act and cannot be extended for understanding the permissible area under the Haryana Ceiling on Land Holdings Act, 1972.