OM PARKASH Vs. NATHI

JUDGEMENT

(2.) THE learned counsel for the petitioners argued that the reservation of land by the landowner was done before consolidation because the order declaring the area surplus was dated 25.7.1961 and it has not been proved that the disputed land was indeed reserved since the Khasra Nos. before the consolidation and Killa Nos. after the consolidation have not been connected. He said that the landowner has sold 515 kanal area after 24.1.1971 and according to Section 8(3) if any person transfers or disposes of any land after the appointed day, the land so transferred shall be deemed to be held by that person in calculating the permissible area. Therefore, the land in dispute cannot be reserved by the respondent in any case and he is not liable to be ejected. He cited rulings 1971 PLJ 148 and 1971 PLJ 766 to emphasise that ejectment application cannot be decided till the surplus area case is decided and that the case should be remitted to the Assistant Collector with the direction that he should await the decision on the surplus area case under the Haryana Act.

(3.) I have studied the case file and considered the arguments advanced by the learned counsel for the parties. The landowner-respondent filed an application before the Assistant Collector in Form K-2 on the ground that the tenant Girdawar, predecessor-in-interest of the petitioners is a tenant on the area reserved by the landowner. The Assistant Collector vide his order dated 1.7.1992 came to the conclusion that the land in dispute was part of the area reserved by the landowner and ordered ejectment of the petitioners. The appeal before the Collector and the revision before the Commissioner have been dismissed. The learned counsel for the petitioners has argued that eviction proceedings cannot be initiated after the commencement of the Haryana Act unless the status of the landowner is determined under that Act and since the surplus area case of the respondent-landowner has not been decided under the Haryana Act, the decision on the ejectment application cannot be taken. Section 9 of the Punjab Act gives the grounds for ejectment of the tenants. Under Section 9(1) of the Punjab Act, the landowner is competent to eject a tenant when he is a tenant on the reserved area. The area is reserved under Section 5 of the Punjab Act, according to which landowner may reserve out of the entire land held by him any parcel or parcels not exceeding the permissible area. The permissible area is defined under Section 2(3) of the Punjab Act. However, when the Haryana Ceiling on Land Holdings Act, 1972 came into operation, the permissible area got redefined under Section 4 of the Haryana Ceiling on Land Holdings Act and under Section 9, the landowner who on the appointed day or at any time thereafter, holds land exceeding the permissible area shall furnish a declaration giving the particulars of land and stating therein his selection of the parcel or parcels of land not exceeding in the aggregate the permissible area which he desires to retain. Thus, the definition of reserved area got changed with effect from the appointed day i.e. 24.1.1971 according to the provisions of the Haryana Act. It was, therefore, imperative for the revenue officers to check whether the land in dispute had been selected by the landowner under the Haryana Act also. After the appointed day it was no longer sufficient only to look into the reserved area under the Punjab Law since the Haryana Law was already applicable. This application in Form K-2 was made on 9.6.1989. Thus, the plea taken by the learned counsel for the respondent that position at the time of application is to be seen is not valid, because Haryana Act was in operation at the time when application was moved and it was for the applicant-landowner to prove his status under the Haryana Act also which was not done. The learned counsel for the respondent has also taken a plea that new facts cannot be brought in. In any case question of law can be taken at any stage, but I find that this question was taken before the Assistant Collector also that decision of the surplus area of the landowner has not been taken under the Haryana Act. This plea was also taken before the Collector and the Commissioner, but this plea has been summarily rejected without going into the facts of the case and even without verifying that the surplus case of the landowner was still pending before the Prescribed Authority, Ellenabad in the same district. Thus, it is clear that the ejectment application in Form K-2 cannot be decided until and unless there is a decision on the surplus area case under the Haryana Act. The Hon'ble Punjab and Haryana High Court has held in 1986-PLJ-552 that landowner can initiate proceedings for ejectment only after surplus area case is decided under the Haryana Ceiling on Land Holdings Act and the continuance of ejectment proceedings after coming into force of the Haryana Act is inconsistent with the provisions of the Haryana Ceiling Act. It has been specifically held that though no procedure has been prescribed under the Haryana Ceiling Act for ejectment of tenants, yet concept of permissible limit in the Punjab Security of Land Tenures Act has to give way to definition of permissible area under the Haryana Ceiling Act because it is inconsistent with the definition of permissible area in the later Act and no tenant can be ejected on the grounds given in Section 9 from the area which is not permissible area of landowner as defined in Section 4 of the Haryana Ceiling Act. Therefore, the revision petition is accepted, the orders of the Assistant Collector, Collector and the Commissioner, are set aside and the case is remitted to the Assistant Collector with the direction that he should decide the application in Form K-2 after the decision of the surplus area case of the landowner under the Haryana Act. Petition accepted.