Punjab-Haryana High Court
Preetpal And Others vs State Of Haryana And Others on 31 January, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 12938 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No. 12938 of 2010
Date of Decision: 31.1.2013
Preetpal and others
.....Petitioners.
Versus
State of Haryana and others
.....Respondents.
2. Civil Writ Petition No. 13112 of 2010
Preetpal and others
.....Petitioners.
Versus
State of Haryana and others
.....Respondents.
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr.L.N.Verma, Advocate
for the petitioners.
Mr. Sunil Nehra, Sr. DAG, Haryana
for the State.
Mr. S.K.Jain, Advocate
for respondent No.6 ( In CWP No.12938 of 2010) &
for respondent No.6 & 7 ( In CWP No.13112 of 2010)
****
1.Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? RAMESHWAR SINGH MALIK J.
These two writ petitions are filed by the same petitioners against the same impugned orders passed by the Financial Commissioner and Commissioner, Hisar Division, Hisar. The issues involved are also the same. Vide this common order, both these writ petitions are proposed to be decided together. However, for the facility of reference, facts are being culled out from CWP No. 12938 of 2010.
Civil Writ Petition No. 12938 of 2010 2
Facts first.
This case has a long and chequered history. The facts are being taken from the order passed by Commissioner, Hisar Division, (Annexure P-3), dated 31.5.2007. The predecessor-in-interest of the petitioners namely Sh. Mani Ram was declared big land owner, vide order dated 29.01.1963 and the land measuring 66.63 acres was declared surplus in the hands of Mani Ram, which was challenged by Mani Ram up to the Hon'ble Supreme Court. SLP No.2215 of 1982, filed by Mani Ram was finally dismissed by the Hon'ble Supreme Court, vide order dated 21.11.1984. The surplus area having been so declared, came to be vested in the State of Haryana, in view of the provisions of Haryana Ceiling on Lands Holdings Act, 1972 ( for short 'Act of 1972'). Consequently, private respondent No.6 (Hukma in CWP No. 12938 of 2010) and respondents No. 6 and 7 ( Amar Singh and Om Prakash in CWP No. 13112 of 2010) were given possession of the land in dispute, vide rapat rojnamcha No. 324 dated 14.6.1965.
However, in the interregnum, petitioners filed a civil suit and secured a collusive decree dated 11.3.1970, claiming ownership to the extent of 3/48th share in the land belonging to Mani Ram. Thus, Mani Ram suffered this collusive decree in favour of the petitioners, thereby transferring the land which had been declared surplus. Thereafter, on the basis of the above said collusive decree dated 11.3.1970, petitioners filed another civil suit, challenging the initial order dated 29.1.1963, passed by learned Collector, Agrarian, declaring the land surplus in the hands of Mani Ram. The Sub Judge 1st Class, Dabwali, vide his order dated 30.10.1990, set aside the order of learned Collector Agrarian, dated 29.1.1963. Based on the order dated 30.10.1990 passed by the Sub Judge, Dabwali, the Collector, Agrarian, decided the case afresh vide order dated 11.2.1992, Civil Writ Petition No. 12938 of 2010 3 giving benefit of Section 10-A (b) of the Punjab Security of Land Tenures Act, 1953 (for short 'the Act'), to the petitioners. It is pertinent to note here that Mani Ram is stated to have died on 11.2.1991. It is equally pertinent to note that the re-settled tenants, private respondent/respondents were not impleaded as party defendants. Thereafter, claiming to have become owners of the land in question, petitioners moved an ejectment application against the respondents/tenants, seeking ejectment on the ground of non payment of rent, which was ordered by the Assistant Collector 1st Grade, vide Annexure P-1.
Dissatisfied with the order dated 7.2.2007 (Annexure P-1), respondents/tenants filed an appeal before the Collector, who dismissed the same, vide order dated 30.4.2007 (Annexure P-2). Against the order dated 30.4.2007 (Annexure P-2), passed by the District Collector, Sirsa, two revision petitions came to be filed on behalf of the respondents/tenants before learned Commissioner, Hisar Division, who, vide his order dated 31.5.2007 (Annexure P-3), accepted the revision petitions of the tenants. While deliberating on the relationship of tenant and landlord between the parties and coming to know about the above said order dated 11.2.1992 passed by learned Collector Agrarian, giving benefit of Section 10 A (b) of the Act to the petitioners, he also set aside the same, directing the Collector to proceed further, in accordance with law.
Petitioners filed two revision petitions before the Financial Commissioner, who dismissed the same, vide impugned order dated 10.2.2010, upholding the above said order passed by the Commissioner. Feeling aggrieved against the above said impugned orders passed by the Commissioner as well as by the Financial Commissioner, petitioners have approached this Court by way of instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari, for Civil Writ Petition No. 12938 of 2010 4 quashing of the above said impugned orders. That is how, this Court is seized of the matter.
While issuing notice of motion on 16.8.2010, this Court passed the following order:-
"The petitioners pray for issuance of a writ in the nature of Certiorari for quashing orders dated 31.5.2007 and 10.2.2010, passed by the Commissioner, Hisar Division, Hisar and affirmed by the Financial Commissioner, Haryana.
Admittedly, land belonging to Mani Ram, father of the petitioners was declared surplus on 29.1.1963, under the Punjab Security of Land Tenures Act, 1953. The private respondent and others were given possession of the surplus area on 14.6.1965, as resettled tenants. Preet Pal etc. sons of Mani Ram obtained a collusive decree dated 11.3.1970 declaring them as owners of 3/48th share of land belonging to Mani Ram. Thereafter, they filed a civil suit before the Sub Judge, 1st Class, Dabwali, challenging the order of surplus area. Vide judgment and decree dated 30.10.1990, the Sub Judge, 1st Class, Dabwali, set aside the order dated 20.1.1963 and the order of allotment.
The petitioners filed an application for ejectment of the private respondent. The matter eventually came up for consideration before the Commissioner, Hisar Division, Camp at Rohtak. Civil Writ Petition No. 12938 of 2010 5 Vide order dated 31.5.2007, after taking due notice that the land was declared surplus on 29.1.1963, remanded the matter to the District Collector, Sirsa.
Notice of motion for 9.11.2010, limited to the plea that the Commissioner has no jurisdiction to pass an impugned order, as the Commissioner was required to make a reference to the Financial Commissioner, pointing out the alleged fraud detected by himself.
To be put before the Registrar (Judicial- III) on the adjourned date for completion of service."
Learned counsel for the petitioners vehemently contended that in view of the plain reading of the provisions contained in Section 84 (3), Punjab Tenancy Act, 1887 (for short 'Act of 1887'), the Commissioner was having no jurisdiction to set aside the order passed by the Assistant Collector 1st Grade, Dabwali and the District Collector Sirsa. He further submits that if the Commissioner was not agreeing with the orders, which was under challenge in revision before him, he could have formed his opinion and referred the matter to the Financial Commissioner, because he himself had no authority to set aside the orders, which he has done in the present case, thereby acting without jurisdiction.
Learned counsel next contended that the Financial Commissioner also committed serious error of law, while passing the impugned order dated 10.2.2010 (Annexure P-4). He submits that although the order passed by the Commissioner has merged into the order passed by the Financial Commissioner, yet jurisdictional error, on the part Civil Writ Petition No. 12938 of 2010 6 of the Commissioner would not be deemed to be rectified. Learned counsel concluded by submitting that the impugned orders were without jurisdiction and were liable to be set aside. To buttress his arguments, learned counsel relies upon the judgment of this Court in Dhaunkal versus Man Kauri and another, 1970 PLJ 402 and Siri Krishan Chander versus Financial Commissioner, Planning, Punjab and others, 1972 PLJ 329. Finally, he prays for acceptance of the writ petition.
Per contra, learned counsel for the State submits that since the order of the Collector dated 11.2.1992 was a result of fraud played by the petitioners. The fraud played had come to the notice of the Commissioner, while deciding two revisions of the respondents/tenants against the ejectment orders. The Commissioner did not commit any illegality or jurisdictional error, both the matters being inter connected and overlapping between the same parties.
Learned State counsel further submits that even if for the sake of arguments, this technical flaw was there in the impugned order passed by the Commissioner, the same got rectified once the order has merged into the final order passed by the Financial Commissioner. Learned counsel for the State finally submits that since no prejudice has been shown to have been caused to the petitioners and the impugned orders are only the remand orders, both the writ petitions were misconceived and without any substance, thus, liable to be dismissed.
Learned counsel for the respondents/tenants, while supporting the contentions raised by the learned counsel for the State, strenuously argued that the petitioners were not even entitled to be heard on merits of the case because they have played fraud on the Court as well as with the poor tenants. Defending the impugned orders, learned counsel for the respondents/tenants relied upon a full Bench judgment of this Court in Civil Writ Petition No. 12938 of 2010 7 Gurnam Kaur versus State of Punjab, 1992 (2) PLR 746 and Mahant Lakshmi Dhar through his legal representatives versus Financial Commissioner, Taxation, Punjab, Chandigarh and others, 2009 (1) PLR 572.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that present one is a matter wherein no interference is warranted at the hands of this Court, while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than one, which are being recorded hereinafter.
Firstly, the contentions raised by learned counsel for the petitioners, though seem attractive on first blush, yet when considered deeply, the same have been found to be without any force, hence liable to be rejected. So far as the judgments relied upon by learned counsel for the petitioner are concerned, the same do not address the issue on which the notice of motion was issued in the present case i.e. regarding jurisdiction of the Commissioner under Section 84 (3) of the Act of 1887. Thus, the judgments relied upon are of no help to the petitioners, being distinguishable on facts.
Secondly, a careful perusal of the record would show that petitioners, with a view to achieve their ulterior motive of saving the land from surplus pool, even by way of adopting illegal means, have, as a matter of fact, played fraud on the Courts, revenue authorities as well as with the poor tenants and finally with the justice delivery system. Fraud vitiates everything.
The Hon'ble Supreme Court, in the case of S.P.Changalvaraya Naidu versus Jagannath, (1994) 1, SCC 853, which has been Civil Writ Petition No. 12938 of 2010 8 consistently followed in a long catena of judgments, the latest being Union of India versus Ramesh Gandhi, 2012 (1) SCC 476, while beautifully commenting upon such unscrupulous litigtants, observed as under:-
"Fraud avoids all judicial acts,
ecclesiastical or temporal" observed Chief Justice
Edward Coke of England about three centuries
ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
Xxxxxxx The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence".The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who Civil Writ Petition No. 12938 of 2010 9 comes to the court, must come with clean hands.
We are constrained to say that more often than not, process of the court is being abused. Property-
grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal- gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation." Reverting back to the facts of the present case, once the order dated 29.1.1963 declaring the land surplus in the hands of Mani Ram- predecessor-in-interest of the petitioners, was challenged but upheld up to the Hon'ble Supreme Court by dismissal of SLP No. 2215 of 1982, vide order dated 21.11.1984, there was no scope left for tinkering with this order passed by the highest Court of the country. No court or tribunal had any jurisdiction in this regard. However, proceeding on their mala fide intention, the petitioners first secured the collusive decree dated 11.3.1970, in collusion with the none else but their predecessor-in-interest Mani Ram, in spite of the fact the he had no right to suffer that decree, transferring the area which had been declared surplus in his hands.
Thirdly, the petitioners filed another civil suit, challenging the order dated 29.1.1963 passed by the Collector, Agrarian and interestingly the same was set aside by the Sub Judge, Dabwali, vide his order dated 30.10.1990. Still further, drawing support from the above said order dated 30.10.1990, petitioners approached the Collector Agrarian, who decided the surplus area case afresh vide his order dated 11.2.1992, giving benefit of Section 10 A (b) of the Act, to the petitioners, thereby proceeding on Civil Writ Petition No. 12938 of 2010 10 wholly erroneous approach and contrary to the record of the case. The petitioners were neither entitled for the collusive decree dated 11.3.1970 because Mani Ram was no more competent to suffer that collusive decree, nor the petitioners were competent to secure the second civil court decree dated 30.10.1990, by setting aside the order dated 29.1.1963, which has already attained finality up to the Hon'ble Supreme Court. Similarly, the petitioners were not entitled for the order dated 11.2.1992 at the hands of Collector Agrarian, because they were not entitled for any such benefit under Section 10 A (b) of the Act.
Fourthly, since notice of motion was issued to the limited extent i.e. regarding the jurisdiction of the Commissioner, it would be appropriate to refer to section 84 of the Act of 1887. Sub sections 2 and 3 to Section 84 of the Act of 1887, which are relevant in the present case, read as under:-
(2) A Commissioner or Collector may call for the record of the any case pending before, or disposed of by, any Revenue Officer or Revenue Court under his control;
(3) if in any case in which a Commissioner or Collector has called for a record he is of the opinion that the proceedings taken or the order or decree made should be modified or reversed, he shall submit the record with his opinion on the case for the orders of the Financial Commissioner.
A careful reading of the above said provisions of law shows, that generally speaking, the Commissioner is empowered to form his opinion and send the same as reference to the Financial Commissioner. However, in a given fact situation, if it comes to the notice of the Commissioner that Civil Writ Petition No. 12938 of 2010 11 fraud has been played on the Courts as well as with the interested parties, including the State, as it had happened in the present case, Commissioner may not be said to be completely divested of his powers to set right an order, which was nonest in the eyes of law, being based on misrepresentation of facts and falsehood, particularly when the order passed by the Commissioner was merged in the order of the Financial Commissioner.
Fifthly, in the present case, owing to the given fact situation, this Court is convinced and only thereafter, has come to this conclusion that the Commissioner was proceeding on a bonafide approach. Petitioners have, as a matter of fact, played a fraud with all concerned, including the Courts, State authorities and also with the respondents/tenants. Ultimately, it is the justice which has suffered.
Sixthly, the Commissioner has passed the impugned order only with a view to achieve the object of the Act and that too while exercising his inherent powers. Further, even if the order passed by the Commissioner is said to be suffering from an irregularity and not from a patent illegality, that too stood rectified by the Financial Commissioner, upholding the order of the Commissioner. Thus, it is unhesitatingly held that normally, the Commissioner, under Section 84 (3) of the Act of 1887, is empowered to refer the matter to the Financial Commissioner but in view of the peculiar facts of the present case, the order passed by the Commissioner has not been found to be suffering from any patent illegality or perversity, as such, because the same has been upheld by the Financial Commissioner, also.
A Full Bench of this Court in Gurnam Kaur's case (supra), while considering not exactly the same issue as involved in the present case but the scope of powers of the Commissioner as well as of the Financial Commissioner, under Section 84 of the Act of 1887, observed as under:- Civil Writ Petition No. 12938 of 2010 12
"The aforesaid provision does not specially mention that such powers could be exercised by the Commissioner or by the Financial Commissioner suo motu or at the instance of the interested or the aggrieved parties. In the absence of use of such phraseology it cannot be said that the Financial Commissioner or the commissioner could not act under the provision aforesaid. Rather the statute is to be interpreted in such a manner that it fulfills the object for which the same is framed. As and when the Financial Commissioner acts under Section 84 referred to above he would be acting in the exercise of revisional jurisdiction. It would be immaterial whether he was moved by the Department or by any person uninterested, interested or aggrieved. The fact cannot be lost sight of that the object of the Act providing for determination of surplus area is asocial legislation as such and surplus area is to be utilised for rehabilitating the tenants or landless persons. As and when the case of declaration of surplus area of a landowner is decided, if the landowner feels aggrieved obviously he can go in appeal or revision. If the State is aggrieved or the matter otherwise comes to the knowledge of the authorities that the order passed in the case of declaration of surplus area was either illegal or against the provisions of the Act such authorities could bring the matter to the notice of the revisional authorities for passing appropriate orders Civil Writ Petition No. 12938 of 2010 13 as required under the Act. In considering a extreme case as an illustration that when a landlord after getting entries in the revenue records fabricated or otherwise in collusion with the authority under the Act succeeds in getting an order declaring that there was no surplus area with him, obviously such an owner is not expected to move in appeal or revision. Likewise the officer who had passed the order may also be not interested. If ultimately, his successor or any other authority under the Act comes to know of the illegality of the order so passed it could not be said in such circumstances that such an illegal order could not be corrected to bring it in accordance with law. In that sense the procedural provision prescribed under the Act are to be so interpreted that the object of the Act is achieved. Revisional powers are as provided in the statute referred to above in the nature of inherent powers for passing appropriate legal orders contemplated by the statute and if any error had been committed by the subordinate authorities in passing orders under the Act to correct the same.
XXXXXXXX The contention of S. Sarjit Singh Sr. Advocate appearing on behalf of the petitioner that the appeal was time-barred need no consideration for the simple reason that the Commissioner as well as the Financial Commissioner exercised revisional jurisdiction under Section 84 of the Punjab Tenancy Act referred to Civil Writ Petition No. 12938 of 2010 14 above. The action of the Commissioner or the Financial Commissioner ultimately reversing the order of the Collector Agrarian cannot be held to be without jurisdiction. The Financial Commissioner was well within his rights when a case was referred by the Commissioner to decide the revision. The appeal filed before the Commissioner was not sine qua non for action to be taken in the exercise of revisional jurisdiction. It is immaterial how the matter came before the Commissioner that he decided to refer the matter to the Financial Commissioner to take action under the revisional jurisdiction and to quash or modify order of the Collector Agrarian. The order of the Financial Commissioner passed in the present case thus cannot be questioned for want of jurisdiction on the basis of the decision of the Division Bench in Hardial Singh's case.
Again on almost identical set of facts in Mahant Lakshmi Dhar's case (supra) , this Court held as under:-
"A Commissioner, exercising powers under the Punjab Land Reforms Act, is an appellate forum, circumscribed in the discharge of his jurisdiction by the statutory provision that confers powers. The power to call for, examine and revise proceedings and to take suo moto notice vests with the Financial Commissioner alone, under Section 84 of the Punjab Tenancy Act. Section 84(2) however empowers the Commissioner or the Collector to call for the record of Civil Writ Petition No. 12938 of 2010 15 any case pending before, or disposed of by any Revenue Officer or Revenue Court under his control. Where the Commissioner or Collector, who has called for the record is of the opinion that proceedings taken or the order or decree made should be modified or reversed, he shall submit a report with his opinion on the case to the Financial Commissioner, who shall, thereafter, proceed in accordance with the provisions of sub- sections (4), (5) and (6). A Commissioner, therefore, has jurisdiction to call for the record of any case disposed of by any Revenue Officer or Revenue Court under his control but does not have suo moto jurisdiction to set aside such an order and to issue directions in respect thereof. As noticed herein above, the learned Commissioner set aside the order passed by the Collector and directed him to re-examine the surplus area case of the petitioner. This error of jurisdiction, however, need not detain this Court any further as it would not effect the ultimate outcome of this petition.
As and when, an error or illegality comes to the notice of a revenue officer, more particularly, where the error or illegality has the effect of reducing surplus area, it is the duty and obligation of every revenue officer to examine the matter and thereafter either seek permission, of his immediate superior to review the orders or forward a reference to the Civil Writ Petition No. 12938 of 2010 16 Financial Commissioner. The Commissioner, therefore, should have forwarded a reference to the Financial Commissioner, with his comments. However, as the dispute was eventually brought before the Financial Commissioner and examined in detail, this error by the Commissioner would not require acceptance of the writ petition. The directions issued by the Commissioner are limited to the examination of any error in calculation. These directions have been affirmed by the Financial Commissioner. The Collector would, therefore, be required to appraise the calculations and in the case of any prima facie error in calculation, would be required to call upon the petitioner to justify the error after recourse to the procedure established under the Act.
Respectfully following the ratio laid down in the Full Bench of this Court in Gurnam Kaur's case (supra) and also in the case of the Mahant Lakshmi Dhar's case (supra), it is held that since the order passed by the Commissioner has been rightly upheld by the Financial Commissioner, present one is not a fit case for interference at the hands of this Court, while exercising its writ jurisdiction. In such a situation, doctrine of merger is also attracted.
The Hon'ble Supreme Court in case of Kunhayammed versus State of Kerala, 2000 (3) RCR (Civil) 671, while discussing the scope of doctrine of merger, held as under:-
"The logic underlying the doctrine of merger is that there cannot be more than one decree or Civil Writ Petition No. 12938 of 2010 17 operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view"
Following the law laid down by the Hon'ble Supreme Court, it is held that miscarriage of justice which had resulted by passing of the order dated 11.2.1992 by the Collector, Agrarian, has been rightly avoided by passing the impugned orders, which are in the interest of justice and will advance the cause of justice. No prejudice, as such, has been shown to have been caused to the petitioners. Thus, keeping in view the laudable object of doing complete and substantial justice between the litigating parties, in view of the peculiar facts of the present case, this Court feels no hesitation to conclude that the impugned orders do not suffer from any Civil Writ Petition No. 12938 of 2010 18 patent illegality or perversity.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that both the writ petitions are misconceived, bereft of merit and without any substance, thus, these must fail. No case for interference has been made out.
Resultantly, both the writ petitions are ordered to be dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 31.1.2013 Ak Sharma