PARTAP SINGH Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) THE writ petition challenges the order passed by the authorities constituted under the Haryana Ceiling on Land Holdings Act of 1972 (for short, the 1972 Act) and for the benefits of allotment made under the Haryana Utilization of Surplus Area Scheme of 1976 (for short, the 1976 Scheme). The admitted case was that the landowner -Sheo Karan was treated to be a big landowner whose holdings were declared to have fallen as surplus under the Punjab Security of Land Tenures Act. On 30.06.1961, the 5th respondent -Ran Singh claimed a purchase right under Section 18 of the Punjab Security of Land Tenures Act and it appears that certain proceedings had taken place at the instance of the sons of Sheo Karan and the sale made in favour of Ran Singh was set aside. The case ended with the decision of the Supreme Court on 1988 holding the sale in favour of the 5th respondent as invalid. The 5th respondent had, however, secured an allotment of the property as a Category -B tenant brought through the order in Annexure PI, dated 30.08.1976. The allotment was purported to be in respect of surplus land already declared by way of utilization under the 1976 Scheme.

(2.) THE learned counsel for the petitioners -landowners have challenged the proceedings before the authorities making the allotment in favour of the 5th respondent on the following grounds: - -

(3.) THE second objection, which has been taken by the petitioners, is that the property was transferred by the father on 12.07.1958 under a partition decree and, therefore, the property would be required to be excluded. The counsel would contend that in terms of Section 5 of the Transfer of Property Act, the property transferred would include a transfer made to a person to himself and another and when partition was effected through a decree when specific allotments were made, he must be deemed to have transferred the property. The counsel would also refer me to a judgment of this Court in Ajmer Singh v. The State of Haryana and others,, 1987 PLJ 535 to contend that a partition brought about before 30.07.1958 between the landowner and his sons would also require to be excluded. The reliance on Ajmer Singh (supra) is not proper, since the judgment in Ajmer Singh was set aside by the Supreme Court in Amar Singh v. Ajmer Singh, : (1994 -3) 108 PLR 433. Further, a Division Bench of this Court has also held that a partition before 30.07.1958 will not make a difference to vesting of the surplus in the State under Haryana Act, in Janga v. Zora Singh, : (2003) 4 RCR (Civil) 811 (DB). Further, in Bhagwanti Devi v. State of Haryana, : 1994 Supp (3) SCC 101, the Supreme Court held that if a property is declared as surplus under the 1953 Act, the non -utilization by the State is immaterial. I must observe that in the two decisions of the Supreme Court in Amar Singh (supra) and Bhagwanti Devi (supra), there is no reference to Section 8 of the Haryana Act of 1972 and the exclusion by transfer before 30.07.1958. However, in the Janga's case (supra), the Division Bench has rejected even the case of partition as not making a difference. While a mere partition deed will not fall within the definition of transfer under Section 5 of the Transfer of Property Act, a partition decree will constitute a transfer under Section 2(b) of the Transfer of Property Act, as held by the Supreme Court in S.K. Sattar S.K. Mohammed Choudhary v. Gundappa Amabadass, : (1996) 6 SCC 373. The question of whether a partition decree before 30.07.1958 will render an exclusion of the acquisition/vesting in favour of the State by operation of Section 8 of the Haryana Land Ceiling law is indeed a moot point that was not dealt with by the Supreme Court. It may do so in future but judicial discipline demands that I follow the Division Bench decision in Janga's case (supra) and the Supreme Court decisions in Bhagwanti Devi (supra) and Amar Singh (supra) as directly covering the issue at hand.