Punjab-Haryana High Court
Punjab State Through Collector vs Sukhdev Singh on 16 September, 2011
RSA No. 642 of 1988 :1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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RSA No. 642 of 1988
Date of decision : September 16, 2011
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Punjab State through Collector, Amritsar
and another
............Appellant
Versus
Sukhdev Singh
.......Respondents
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CORAM: HON'BLE MR. JUSTICE GURDEV SINGH
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Present: Mr. Munish Kumar, AAG, Punjab.
Ms. Deepali Puri, Advocate for respondent.
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GURDEV SINGH, J (ORAL)
This second appeal has been preferred by the appellants/defendants against judgment and decree dated
20.11.1987 passed by Additional District Judge, Amritsar, vide which he dismissed the appeal preferred by these defendants against the judgment and decree dated 27.5.1987 passed by Sub Judge, First Class, Ajnala decreeing the suit of the respondent/plaintiff for declaration to the effect that he is the owner in possession of the land measuring 8 kanals bearing killa no.92/13 situated in Village Boparai Khurad, Tehsil Ajnala, District Amritsar, fully detailed in the heading of the plaint and for the consequential relief of permanent injunction restraining the defendants from taking possession of that land and allotting the same in favour of any one.
RSA No. 642 of 1988 :2:
The plaintiff filed the suit for the aforesaid relief. He pleaded in his plaint that Gulzar Singh was the original owner of the land in dispute and he purchased the same from him, vide sale deed dated 31.3.1982. At the time of execution of the sale deed, he entered into the possession of that land. The defendants allege that the suit land has been declared as surplus out of the bolding of Jodh Singh son of Jiwan Singh. Gulzar Singh was shown as co-sharer in the suit land at the time the same is said to have been declared as surplus. No notice was ever served upon him. While declaring the land of Jodh Singh as surplus, the revenue officer overstepped the jurisdiction conferred upon him under the Punjab Land Reforms Act, 1972. Even if this land was declared as surplus, the order declaring it surplus is not binding upon him as the same is void ab initio. No notice was ever served upon him and Gulzar Singh. This land was exclusively owned by Gulzar Singh as it had fallen to his share in the family partition about 15 years back and thereafter the authorities had no jurisdiction to declare that land as surplus.
The suit was contested by the defendants. In their written statement, they admitted that the land in dispute has already been declared as surplus and vest in the Punjab Government. They denied the other contentions of the plaintiff and inter alia pleaded that the transfer in favour of Gulzar Singh was effected on 15.11.1953 after the Punjab Security Land Tenures Act, 1953 (for brevity `the Act') had already come into operation. This land was rightly included in the holding of the original owner; namely Jodh Singh and was declared as surplus, vide order dated 30.11.1959 passed by the RSA No. 642 of 1988 :3: Collector, Agrarian, Amritsar. After that order was passed, said Jodh Singh along with Gulzar Singh filed an appeal against the said order in the year 1964 in the Court of the Commissioner, Jalandhar Division, Jalandhar, which was decided on 9.6.1964 and the case was remanded back with the observation that the banjar land should be excluded in accordance with the provisions of law. Thus, Gulzar Singh was made a party to the surplus proceedings initiated by the Collector for declaring the land surplus in the hands of his father Jodh Singh. No such notice was necessary to be served upon him in view of his being a party to the proceedings. In view of the filing of the appeal by himself against the order declaring the land as surplus, he was duly associated during the proceedings before the Collector, who finally passed the order regarding the surplus land of Jodh Singh. The land so declared as surplus was allotted to one Fauja Singh and he was put in possession thereof on 13.12.1970. The land has already been utilized before the death of original land owner, who died on 15.12.1977 and as such his death has no effect so far as the ownership of the land in dispute is concerned. There was no question of taking any proceedings under the Punjab Land Reforms Act 1972, as the land had already been declared surplus under the Act. They also pleaded that the jurisdiction of the Civil Court to decide the present suit is specifically barred under section 25 of the Punjab Security of Land Tenures Act, 1953 and Section 21 (2) of the Punjab Land Reforms Act, 1972. The suit is bad for misjoinder of Gulzar Singh, who is unnecessary party. They prayed for the dismissal of the suit.
RSA No. 642 of 1988 :4:
In replication to the written statement, the plaintiff denied the contentions made therein and reiterated his averments made in the plaint.
On the pleadings of the parties, following issues were framed by the learned trial Court:
1. Whether the plaintiff has purchased the suit land from the original owners for a valuable consideration vide sale deed dated 31.3.1982 and is in possession of the suit land ? OPP.
2. Whether the land in dispute is no longer surplus in the hands of heirs of Jodh Singh deceased ? OPP.
3. Whether the Govt. has no authority to allot the suit land to other person? OPP.
4. Whether the suit is of urgent and immediate nature. If so its effect? OPP.
5. Whether the plaintiff is entitled to the declaration with consequential relief of permanent injunction? OPP.
6. Whether the order dated 30.11.1959 of the Collector Agrarian Amritsar declaring the land surplus is without jurisdiction and without serving notice to the concerned party? OPP.
7. Whether the Civil Court has no jurisdiction to try the present suit? OPD.
8. Whether the suit is not maintainable in the present suit form? OPD.RSA No. 642 of 1988 :5:
9. Whether the suit is bad for non-joinder of necessary party i.e Gulzar Singh? OPD.
10.Relief.
Both the sides adduced evidence in support of the respective pleadings. After going through the evidence and hearing learned counsel for the plaintiff and Government Pleader for the defendants, the learned trial Court decided all the issues in favour of the plaintiff and resultantly decreed his suit.
I have heard the learned counsel for both the sides. Learned State counsel assailed the finding of the learned trial Court on issue no.7. He has submitted that the land in dispute was declared as surplus in the hands of the original owner, Jodh Singh, after the proceedings were taken under the Act and as such the jurisdiction of the Civil Court is specifically barred under section 25 of the Act. The only ground on which the proceedings before the authorities under the Act have been challenged is that no notice was served upon the plaintiff or his predecessor-in-interest Gulzar Singh and as such those proceedings are null and void and any order passed during those proceedings is nonest in the eyes of law. In fact Gulzar Singh did appear during those proceedings and the land was declared as surplus after taking into consideration the contentions raised by him. Therefore, the said ground was not available to the plaintiff and there is no ground for declaring the order passed under the Act as void. Therefore, the jurisdiction of the Civil Court is specifically barred.
On the other hand, it has been submitted by the counsel RSA No. 642 of 1988 :6: for the plaintiff that as per Rule 6 of the Punjab Security of Land Tenure Rules, 1956 (hereinafter referred to as `the Rules') it was incumbent on the part of the authorities under the Act, to serve a notice upon Gulzar Singh and Jodh Singh, the original owner of the land, who had gifted 4/5th share of his total land to him and he was an interested person. No such notice was served upon him before declaring the land to be surplus and as such that order is illegal. Once the Court comes to the conclusion that no notice was served upon him, and the order in question is illegal, there is no question of the jurisdiction of the Civil Court being barred under Section 25 of the act. Jurisdiction of the Civil Court is not excluded in respect of the void orders passed under the Act. He supported her submissions by following three judgments:
1) State of Haryana and others vs. Vinod Kumar and others, All Indial Land Laws Reporter Vol. XIV, 188.
2) Gurbachan Singh vs State of Punjab 1992 PLJ 376
3) Babu Ram and others vs. State of Punjab and others 1974 PLJ 158.
As per Section 25 of the Act, the validity of the proceedings taken in accordance with the provisions of the Act or the order taken or made thereunder cannot be called in question in any Court or any other authority except in accordance with the provisions of the Act. That Section specifically excludes the jurisdiction of the Civil Court in respect of the proceedings validly taken under the Act and a valid order made thereunder. As was held in Vinod Kumar and others' RSA No. 642 of 1988 :7: case (supra), the exclusion of jurisdiction of the Civil Court is not to be readily inferred but that such exclusion must either be explicitly excluded or clearly implied. Even if the jurisdiction is so excluded, the Civil Courts have the jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory authority has not acted in conformity with the fundamental principles of judicial procedure or the order passed by it is void. In that case, the land owner was not afforded an opportunity by the Collector before declaring his land to be surplus and keeping in view the different provisions of the Act, that order was held to be nullity and it was concluded that the Civil Court has the jurisdiction to entertain the suit for declaration that the order is void and inoperative. Question arose before the Single Bench of this Court in Gurbachan Singh's case (supra), as to whether, a notice was required to be issued to the transferee in the proceedings for declaration of surplus area. In that case, the transfer was effected in the year 1958 whereas surplus area was determined in the year 1960 without notice to the transferee. It was held therein that a transferee is a person interested in proceedings for declaration of surplus area and must be given an opportunity to be heard before declaring surplus area of his transferer. It was also held therein that the order declaring land surplus without affording concerned land owner and transferee any opportunity of hearing is nullity and can be challenged in the civil Court even when the statute expressly bars jurisdiction of Civil Court to entertain such a suit.
In Babu Ram's case(supra), the land owner gifted most RSA No. 642 of 1988 :8: of his land several years before his land was declared as surplus area, and the donees were already recorded as owners in possession in respect of that land. Before declaring the area surplus, no notice was issued to those donees. It was held therein that the donees who were recorded as owners in possession of that land were `person interested' within the meaning of Rule 6 (3) of the Punjab Security of Land Tenures Rules, 1956 and the Circle Revenue Officer should have issued notices and heard them before the area was declared surplus and as no notice was given to them, the orders declaring surplus area are invalid and illegal.
In view of these propositions of law, following substantial questions of law arises in the present appeal:
1. "Whether the land in the hands of Jodh Singh, predecessor-in-interest of Gulzar Singh was declared as surplus without any notice to Jodh Singh and Gulzar Singh
2. Whether the jurisdiction of the Civil Court was specifically barred under Section 25 of the Act from entertaining and deciding the suit."
Though concurrent findings have been recorded by the Lower Courts that no notice as required by the provisions of the Act and the Rules was served upon Gulzar Singh before declaring his land surplus, yet that finding is perverse and is the result of misreading of evidence. The most important document for determining that controversy is the certified copy of the order dated 9.6.1964 (Ex.D-2) passed by the Commissioner, Jalandhar Division, RSA No. 642 of 1988 :9: Jalandhar. A perusal thereof shows that Jodh Singh and his sons Shingara Singh, Gulzar Singh, Bachan Singh and Sucha Singh filed a joint appeal against the order of the Collector dated 30.11.1959 vide which area measuring 40 standard acres and ¼ units was declared as surplus. The only contention raised in that appeal was that the banjar land was not taken into consideration while declaring the surplus area. It was never the case of Jodh Singh or Gulzar Singh that no notice was served upon them before the land was declared as surplus In that appeal, the order dated 30.11.1959 was set aside and the matter was remanded back to the Collector for determining the surplus area afresh in accordance with law. Jodh Singh and all his sons were specifically directed to appear before the Collector, Ajnala. It was only thereafter that the impugned order declaring surplus area was passed. In these circumstances, the finding recorded by the lower Courts in favour of the plaintiff that his predecessor had no notice of the proceedings in which the land was declared as surplus, cannot be sustained. Once this Court has come to the conclusion that the predecessor-in-interest of the plaintiff had the notice of those proceedings, the provisions of Section 25 of the Act cannot be ignored which specifically bars the jurisdiction of the Civil Court in respect of the proceedings taken and the order passed in those proceedings. Therefore, both the above said substantial questions of law are answered in favour of the defendants/appellants.
In view of the said finding recorded by this Court, the finding recorded by the lower Courts on issue no. 7 is reversed and RSA No. 642 of 1988 :10: the same is decided against the plaintiff. Once it has been concluded that the Civil Court has no jurisdiction to entertain and try the suit, the findings on the other issues was not to be recorded.
Therefore, the appeal is hereby accepted. The judgment and decree of the Lower Courts are set aside and the plaint is hereby rejected.
September 16, 2011 ( GURDEV SINGH ) ritu JUDGE