Holding

Section 33(2)(ii) of the Haryana Ceiling of Land Holdings Act, 1972 saves pending surplus‑land proceedings to be decided entirely under the Punjab Security of Land Tenures Act, 1953, precluding the application of sections 8(3) and 9(3) of the 1972 Act.

Summary

The case concerned land owned by Jaipal Singh that was declared surplus under the Punjab Security of Land Tenures Act, 1953, and subsequently sold to Mohan Singh in 1974 and later to the present appellant. While the surplus‑land proceedings were pending, the Haryana Ceiling of Land Holdings Act, 1972 came into force, raising the question of whether the newer Act's provisions, particularly sections 8(3) and 9(3), could affect the pending determination. The Supreme Court examined the saving clause in section 33(2)(ii) of the 1972 Act, which mandates that any surplus‑land proceedings pending before its commencement continue as if the 1972 Act had not been enacted. The Court held that the pending proceedings must be decided under the 1953 Act, and therefore the provisions of sections 8(3) and 9(3) of the 1972 Act are inapplicable. It also rejected the appellant's attempt to raise a fraud claim that was not pleaded before the lower courts. Consequently, the Division Bench’s decision was affirmed and the appeal was dismissed.

Issues considered

Whether surplus‑land proceedings initiated under the Punjab Security of Land Tenures Act, 1953, pending at the commencement of the Haryana Ceiling of Land Holdings Act, 1972, must be continued under the 1953 Act despite the later enactment.
Whether the determination of surplus land under the 1953 Act includes the selection of permissible area, thereby invoking sections 8(3) and 9(3) of the 1972 Act.
Whether the vendee and subsequent purchaser are entitled to the benefit of sections 8(3) and 9(3) of the 1972 Act in relation to land transferred after the appointed day.
Whether a claim of fraud by the predecessor‑in‑interest can be raised at this stage of the proceedings.

Legislation cited

Haryana Ceiling of Land Holdings Act, 1972s. 33(2)(i), s. 33(2)(ii), s. 33(2)(iv), s. 3(l), s. 4, s. 8(3), s. 9(3)
Pepsu Tenancy and Agricultural Lands Act, 1955
Punjab Security of Land Tenures Act, 1953s. 19A, s. 2(5a), s. 5A, s. 5B, s. 5C

Subjects

land ceilingsurplus land determinationrepeal and saving clausestatutory interpretationPunjab Security of Land Tenures ActHaryana Ceiling of Land Holdings Actsection 33selection of permissible areacivil appeal

Judgment

418 [2020]REPORTS
SUPREME COURT 3 S.C.R. 418 [2020] 3 S.C.R.

A KIRPAL SINGH & ORS.
v.
KAMLA DEVI & ORS.
(Civil Appeal No. 356 of 2020)
B JANUARY 28, 2020
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Haryana Ceiling of Land Act, 1972:
ss. 8(3) and 33(2) (ii) – Proceedings under Punjab Security
C of Land Tenures Act, 1953 – For determination of surplus land –
During pendency of proceedings enactment of Haryana Ceiling of
Land Act – The original land-owner sold certain area of land and
gave the Khasra numbers of the sold lands, in surplus pool – Notice
was issued to the vendee to vacate the land, the same being surplus
land – Collector held that the surplus land was to be taken from the
D
land of the owner, and vendee’s land could be taken into account
only if the surplus land could not be completed from the land of the
owner – In Revision filed by land-owner, it was held that the land-
owner could not be forced to exclude the land in question from
surplus area – The order was further upheld by Financial
E Commissioner – Writ petition filed by vendee – The vendee further
sold the land to the appellant – High Court allowing the writ remitted
the matter to consider the case of the vendee for grant of benefit
envisaged u/s. 8(3) of 1972 Act – Writ appeal was decided in favour
of the original land-owner – Appeal to Supreme Court – Held:
Section 33(2)(ii) of 1972 Act provides that repeal of 1953 Act would
F
not affect the pending proceedings as regards surplus land and
would be continued and disposed of as per 1953 Act – Therefore,
provisions of ss. 8(3) and 9(3) of 1972 Act could not have been
applied to the pending proceedings – Punjab Security of land
Tenures Act, 1953 – ss. 5A, 5B and 5C.
G Dismissing the appeal, the Court
HELD: 1. 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 original land-owner which
were initiated in 1953 were pending. Section 33 of 1972 Act deals
H
418
KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. 419

with “Repeal and Saving”. The Punjab Security of land Tenures A
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(2)(ii) thus clearly
B
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. [Paras 11 and 12][427-D-F; 428-G-H]
C
2. 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 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. [Para 13][429-A-B] D

Jiwas Das (DEAD) through LRS. v. Financial
Commissioner, Revenue, Haryana and others, (1998) 8
SCC 740; Bhagwati Devi v. State of Haryana and others
(1994) Supp 3 SCC 101 : [1994] 1 SCR 180– relied
E
on

3. Section 3(l) of 1972 Act provided that Permissible Area
means the extent of land specified in Section 4. The Permissible
Area as defined in Section 4 of 1972 Act was reduced as compared
to Permissible Area under 1953 Act. Sections 8 and 9 occurs in F
Chapter 2 of 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 9 contains a heading “Selection of permissible area
and persons required to furnish declaration”. As per strength of
Section 9(3), the land owner while selecting land within G
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
H
420 SUPREME COURT REPORTS [2020] 3 S.C.R.

A 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. [Paras 17, 18 and 19][430-D; H; 431-A; 432-A
-C]
B
4. The order by the appellate authority on 14.11.1979
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
C 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).
D [Para 20][432-D-E]
5. The scheme of 1953 Act as delineated by Section 5A, 5B
and 5C indicates that 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
E 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
F
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 the appellant that selection of permissible area
is not covered in the expression determination of surplus area.
G Therefore, it is not correct to say that since selection of
permissible area by land owner was not covered in determination
of surplus area, Section 8(3) and 9(3) are applicable. [Paras 23
and 24][433-D-F]
Chet Ram and another v. Amin Lal and others AIR 1983
H PH 50 – distinguished.
KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. 421

6. In so far as the submission of the appellant that land A
owner has cheated his predecessor in interest since the land which
was already declared surplus was sold by the original land-owner
on 18.06.1974, was expressly not pressed by appellant in the
High Court. Appellant cannot be permitted to raise the above
submission. The appellant has purchased the land in dispute from
B
his predecessor-in-interest on 16.06.1989, when the claim of
predecessor-in-interest 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 the predecessor-in-interest of appellant by land owner.
It was for the predecessor-in-interest in his life time, to establish C
the plea of fraud. The appellant could not be allowed to raise any
such submission. [Paras 28, 29 and 30][434-G-H; 435-C-D]
7. 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 D
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 Single Judge and
restored the order of the Financial Commissioner dated
18.02.1987. [Para 31][435-E-F]
E
Jagan nath and others v. State of Punjab and others
1962 PLR 22 – referred to
Case Law Reference
1962 PLR 22 referred to Para 2
F
(1998) 8 SCC 740 relied on Para 14
[1994] 1 SCR 180 relied on Para 16
AIR 1983 PH 50 distinguished Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 356 of
2020. G

From the Judgment and Order dated 21.04.2010 of the High Court
of Punjab & Haryana at Chandigarh in LPA No. 55 of 2010 (O & M).
Narender Hooda, Sr. Adv., Siddharth Mittal, Deepak Aggarwal,
Prabhat Kumar, Ms. Usha Nandini. V., Advs. for the Appellants. H
422 SUPREME COURT REPORTS [2020] 3 S.C.R.

A Pradeep Kant, Neeraj Kumar Jain, V.K. Jain, Sr. Advs., Gagan
Gupta, Divyansh Sahay, Ms. Shradha Narayan, Naresh Bakshi, Shekhar
Raj Sharma, Dr. Monika Gusain, Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
B
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
C prescribed authority to include the area sold to the appellants within the
permissible area of the land holder.
2. Brief facts of the case giving rise to this appeal are: -
(i) One Jaipal Singh, land holder, was owner of the land measuring
D 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
E 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
F dismissed on 14.11.1960. The Revision Petition before the Financial
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
G
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
H Act, 1972(hereinafter referred to as 1972 Act). Jaipal Singh on
KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. 423
[ASHOK BHUSHAN, J.]

18.06.1974 executed sale deeds in favour of one Mohan Singh of A
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 standard acres and balance of
36.47 standard acres was declared surplus.
(iii) Learned counsel for the plaintiff Jaipal Singh was granted B
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 C
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 D
before the prescribed authority objecting notice given to him to
vacate the 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.
E
(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. F
The Jaipal Singh having died in between, the widow of Jaipal
Singh filed a revision before the Commissioner, Ambala Division.
The Commissioner allowed the revision. 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 G
not be forced to 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
H
424 SUPREME COURT REPORTS [2020] 3 S.C.R.

A 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.
B (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
C touching the order of 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
D 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
E 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
F shall first include his land and only if the same is deficient, the land of 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
G
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.
H
KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. 425
[ASHOK BHUSHAN, J.]

4.2. Relying on the full Bench judgment of Punjab and Haryana A
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 cheated the
predecessor in interest of appellant, since he represented that the
B
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. C
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 D
allowing LPA filed by the respondent.
5. Shri Pradeep Kant, learned counsel for the respondent submits
that Section 8(3) of 1972 Act 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), E
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 F
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 G
Section 8(3) of 1972 Act can be invoked in the present case.
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 H
426 SUPREME COURT REPORTS [2020] 3 S.C.R.

A 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
B
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
C by the appellant on that Sale deed.
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.
D 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: -
E (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
F Act were pending on the date of enforcement of 1972 Act.
(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?
G (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 owned
land in surplus pool and only when land owned 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
H pool?
KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. 427
[ASHOK BHUSHAN, J.]

8. All the above questions being inter-related are being taken A
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 B
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 C
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. D

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 proceedings by the enactment of
1972 Act is a moot question to be considered and answered in the present E
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 F
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 G
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-
H
428 SUPREME COURT REPORTS [2020] 3 S.C.R.

A (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, pending immediately before the
commencement of this Act, which shall be disposed of as if
this Act had not been passed;
B (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
C 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
D 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
E had not been passed; and the area determined surplus in
exercise of such 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
F 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
G 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
H not been passed.
KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. 429
[ASHOK BHUSHAN, J.]

13. The legislative intent as reflected in Section 33 makes it clear A
that the proceedings for determination of surplus area which was pending
on 23.12.1972 was to be continued and 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.
B
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 C
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.
15. In the above context, the provisions of Section 33(2) came to D
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 E
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) F
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 G
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
H
430 SUPREME COURT REPORTS [2020] 3 S.C.R.

A to determine the question of surplus land according to the
law laid down in the case of Jagan Nath v. State of Punjab.”
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
B 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
C 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.
D Section 8 and 9 occurs in Chapter 2 of 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: -
E “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
F 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
G 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.”
18. Further Section 9 on which reliance has been placed
H contains a heading “Selection of permissible area and persons
KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. 431
[ASHOK BHUSHAN, J.]

required to furnish declaration”. Section 9 which is relevant is as A
follows: -
“9. (1) Every person, who on the appointed day or at any time thereafter holds Selection of
land exceeding the permissible area, shall [within a period of three months permissible area and
from such date as the State Government may, by notification, specify in this persons required to
behalf] or subsequent acquisition of land, furnish to the prescribed authority furnish declaration
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 B
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 31 st 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.] C
[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.]
D
[(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 E
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; under the
Punjab law or the Pepsu Law.

(4) The declaration under sub-section (1) shall be furnished by-
F
(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, G
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
H
432 SUPREME COURT REPORTS [2020] 3 S.C.R.

A him after the appointed date in contravention of provisions of Section 8
and in the second-place land mortgaged by him without possession. Thus,
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
B
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.
C 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
D accepted. Firstly, the order by the appellate authority on 14.11.1979
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)
E 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
F 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 33(2)(ii) of 1972 Act was not applicable and
G 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: -
H
KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. 433
[ASHOK BHUSHAN, J.]

“2. (5-a). “Surplus Area” means the area other than the A
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];
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, C
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 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, D
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 E
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.
F
24. We thus also reject the above submissions of counsel for
appellant that since selection of 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 G
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:- H
434 SUPREME COURT REPORTS [2020] 3 S.C.R.

A “
19-A.(1)Notwithstanding anything to the contrary in any law, Bar on future
custom, usage, contract or agreement, from and after the acquisition of
commencement of the Punjab Security of Land land in excess of
Tenures(Amendment) Ordinance, 1958, no person, whether as permissible area.
land-owner or tenant, shall acquire or possess by transfer,
exchange, lease, agreement or settlement any land, which with or
B without the land already owned or held by him, shall in the
aggregate exceed the permissible area;

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.
C
(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
D 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
E 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.”

F 27. The above full Bench judgment of Punjab and Haryana High
Court was on different aspect. 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.

G 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
H is to the following effect: -
KIRPAL SINGH & ORS. v. KAMLA DEVI & ORS. 435
[ASHOK BHUSHAN, J.]

“7. At the very outset, it may be mentioned here that although A
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
B
Haryana Act.”
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 C
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 D
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 E
error has been committed by 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 F
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. G

Kalpana K. Tripathy Appeal dismissed.

H