MEHAR CHAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE surplus area case of Shri Kewal Ram, landowner, since deceased was decided by the Prescribed Authority, Fatehabad under the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as 'the Haryana Act') vide order dated 5.12.1980 and an area of 826 Kanal 5 Marla of "C" category land was declared surplus. Aggrieved by the order of the Prescribed Authority, Kewal Ram filed an appeal before the Collector, Hisar, who dismissed the same vide his order dated 31.3.1981. Kewal Ram then filed a revision petition before the Commissioner, Hisar Division, who vide his order dated 19.7.1984 accepted the revision petition holding that there was no surplus area with the landowner Kewal Ram. Hence, the present revision petition.

(2.) THE learned counsel for the petitioners argued that the Commissioner has wrongly and illegally given the benefit of transfers of sales to Hazoora Ram, Sabu Singh, Jowali, Kartar Singh, Jhanda Singh and other sales to old tenants which are not at all bona fide. These sales and transfers are after the appointed day and were fraudulently and male fidely made by the landowner to save his land from being declared as surplus. He said that the Haryana Ceiling on Land Holdings Act came into operation on 23.12.1972, though the appointed day of the Act is 24.1.1971. All transfers after the Haryana Act have to be ignored. Sections 8(1) and 8(3) are mandatory and he cited the rulings 1977- PLJ-230 F.B. (H.C.) and 1974-PLJ-74 (SC). He cited rulings 1987-PLJ-65, 1987- PLJ-42 and 1990-PLJ-83 and emphasised that these transfers are not bona fide transfers. He further argued that the landowner transferred land to his daughter Tarawati through a decree dated 16.9.1980. Since this decree was made after the appointed day of the Haryana Act, this decree has an effect of diminishing the surplus area of the landowner and is not protected under any clause of the Haryana Act. The Prescribed Authority and the Collector had given the finding that this transfer was made by the landowner only to diminish his surplus area. The Commissioner without looking into the provisions of the law, set aside these concurrent findings and gave illegal benefit to the landowner and hence, the order of the Commissioner deserves to be set aside.

(3.) ON merits, the learned counsel for the respondents No. 2 to 7 argued that transfers made by Kewal Ram are bona fide. He said that the term 'bona fide' has not been defined in the Act, but has been interpreted in the judgments, and the Courts have conceived the following tests to determine the nature of a transfer viz. the sale is made through registered instrument; that vendee is a stranger; that the sale is made at prevailing market price; that actual possession is delivered; that land is mutated in favour of the vendee; that change of ownership is reflected in the revenue records, and thus there is a complete change-over from the vendor to the vendee. He said that all these tests have been fully satisfied in the present case. He said that some of the transfers are even entitled to exemption. An area of 64 kanal was sold on 10.5.1972 in pursuant to the agreement of sale dated 27.7.1970. An area of 96 kanal 18 marla was sold on 12.8.1976 pursuant to agreement dated 22.11.1972. An area of 100 kanal was sold to Kartar Singh etc. on 2.5.1980 and that parties had been litigating since 1964 and the dispute was settled through the Court's intervention. Shri Kewal Ram, landowner, transferred 233 kanal 2 marla land to his daughter Smt. Tarawanti for her maintenance on 14.10.1980 because her husband had not been traceable for so many years. Litigation with the tenants ended on 22.4.1980 and then the Court passed a decree in favour of Smt. Tarawanti on the basis of pre-existing rights, therefore, transfer made in favour of Smt. Tarawanti is bona fide. He cited rulings 1990-PLJ-610, 1980-PLJ-631, 1974-PLJ-374 and 1986-PLJ-188. Thus, all the transfers are bona fide and have been held as such by the Commissioner and there is no merit in the revision petition, which may be dismissed. The Deputy District Attorney appearing on behalf of the State said that the transfers should not diminish the total surplus land.