Punjab-Haryana High Court
The Ferozabad Fisheremen Cooperative ... vs State Of Punjab on 25 February, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
RSA No.3427 of 1987
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3427 of 1987
Date of decision: 25.02.2014
The Ferozabad Fisheremen Cooperative Society
....Appellant
Versus
State of Punjab
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the 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 ?
Present: - Mr. Kanwaljit Singh, Sr. Advocate, with
Mr. J.S. Thind, Advocate, for the appellant.
Ms. Harsimrat Rai, DAG, Punjab.
*****
PARAMJEET SINGH, J. (ORAL)
This regular second appeal has been filed by the plaintiff and is directed against the judgment and decree dated 05.08.1987 passed by learned Additional District Judge, Jalandhar, whereby the appeal preferred by the respondent/defendant against the judgment and decree dated 26.10.1984 passed by learned Senior Sub Judge, Jalandhar, whereby the suit for declaration filed by the appellant/plaintiff was decreed, has been allowed, the judgment of Court of first instance has been reversed and the suit of the plaintiff has been dismissed with costs.
For convenience sake, reference to parties is being made as per their status in the civil suit.
Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -2- RSA No.3427 of 1987
The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiff (a registered society) was the successful bidder at a public auction made by Fisheries Department, Punjab, for catching fish from the waters in District Kapurthala for 11 months for the year 1981- 82 through licence No.5/1981-82 dated 2.9.1981. As per the pleadings in the plaint, major quantity of fishes i.e. about 70% were to be caught in the jheel water, detailed at serial No.10 of the licence, known as jheel near village Bharoware, Sheikh Mange, Sarowal, District Kapurthala and the remaining from the other auctioned water. An amount of Rs.3,45,000/- was paid by the plaintiff to the defendants as first instalment for the licence. According to the plaintiff, after obtaining licence, when the plaintiff's employees went to the said water to catch fishes, a number of armed Nihangs, who have constructed a Gurudwara at the bank of the jheel threatened to use force in case plaintiff's employees tried to catch fishes from the jheel because jheel has become a 'sacred talab' of Gurudwara and plaintiff's employees were not allowed to catch fishes. This fact was brought to the notice of the authorities but they failed to do anything. It is also pleaded in the plaint that several notices were issued and even a suit for injunction was filed for direction to the defendant to remove obstructions created by the Nihangs and also not to claim the balance amount of the licence fee but to no avail. Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -3- RSA No.3427 of 1987 Ultimately suit of the plaintiff became infructuous as no ad interim injunction was granted. It is further alleged that the Department cancelled the contract of the plaintiff without serving notice upon it. Disputed waters were re-auctioned and this was done at the risk of the plaintiff, instead of compensating the plaintiff for heavy losses as plaintiff had been deprived of catching fishes from the disputed water. Thereafter vide letter dated 19.05.1982 Collector, Jalandhar was directed to recover Rs.6,57,570.60 paise as land revenue from the plaintiff. The said notice has been impugned in the civil suit for declaration and permanent injunction on the ground that such action of the Collector is against the law and demand has been raised without adjudication by the competent authority. Such action of the defendant is not sustainable in the eyes of law. Hence, the plaintiff filed the suit.
Upon notice defendant filed written statement contenting that plaintiff had paid Rs.3,45,000/- on 09.07.1981 as 1/3rd of the bid amount at the fall of hammer and the remaining amount was to be paid in instalments, out of which the first instalment was due on 01.12.1981, which the plaintiff did not pay. Only the jheel water with the Government boundary was auctioned and not any water beyond it. It was mentioned in the written statement that jheel where present Gurudwara exists is a religious place and is outside the Dhusibandh. It was further submitted that plaintiff failed to pay first and second instalments which were due on 01.12.1981 and 20.03.1982, respectively, Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -4- RSA No.3427 of 1987 therefore, the licence of the plaintiff was cancelled by the Director and Warden of Fisheries, Punjab, and plaintiff was duly informed about it vide letter dated 22.04.1982. Notice of re-auction was also served on the plaintiff. Thereafter the contract was re-auctioned at the risk and responsibility of the plaintiff as per departmental Rules. As a result of re-auction loss of Rs.6,57,570.60 paise became recoverable from the plaintiff as land revenue. The action of the authorities is in accordance with law.
Court of first instance, on the basis of pleadings of the parties, framed following issues: -
"1. Whether the plaintiff was estopped to catch fish from the water detailed at serial No.10 of the auction condition? OPP
2. If issue No.1 is proved whether the defendant is entitled to recover Rs.6,57,570/- from the plaintiff? OPP
3. Whether the defendant is entitled to recover Rs.6,57,570/- as land revenue without getting it adjudicated from the court? OPP
4. Whether the demand of the defendant amount to Rs.6,57,570/- is illegal, void and is not binding upon the plaintiff? OPP
5. Relief."
Parties led their respective evidence. The Court of first instance, after appreciating evidence on record held on issue No.3 that defendant is not entitled to recover Rs.6,57,570.60 paise as land revenue Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -5- RSA No.3427 of 1987 without getting it adjudicated from the Court or authority of competent jurisdiction. In view of this, no finding was found necessary to be recorded on issues No.1, 2 and 4. Resultantly, the Court of first instance decreed the suit of the plaintiff and restrained the defendant from recovering the amount without adjudication of the same by a Court or adjudicating authority. On appeal being preferred by the defendant the appellate Court framed an additional issue and sought for the report of the Court of first instance on issues No.1, 2 and additional issue. The additional issue reads as under: -
"Whether the civil Court has no jurisdiction to entertain and try the suit? OPD"
The Court of first instance vide its report dated 21.02.1987 decided issues No.1 and 2 against the plaintiff and in favour of the defendant. However, on additional issue it was held that jurisdiction of civil Court is barred and thus, this issue was also decided against the plaintiff. Thereafter, the lower appellate Court accepted the report dated 21.02.1987 thereby accepting the appeal of the defendant set aside the judgment and decree dated 26.10.1984 of the Court of first instance. Hence, this regular second appeal.
I have heard learned counsel for the parties and perused the record.
At the time of admission of the appeal no substantial question of law was framed, however, during the course of arguments following substantial question of law has been raised by the learned counsel for the Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -6- RSA No.3427 of 1987 appellant: -
"1. Whether Collector can issue a recovery notice without adjudication of the amount and affording opportunity of hearing to the plaintiff?
2. Whether civil Court has jurisdiction to try the suit?"
Learned counsel for the appellant vehemently contended that recovery notice has been issued by the Collector without any adjudication; such a notice cannot be issued by the Collector. The Collector assumed that once a licencee committed breach of agreement loss suffered by the State would be equal to the amount payable by the licencee as represented in the notice. This presumption raised by the Collector is not sustainable in the eyes of law. Learned counsel for the appellant contended that judgment of the learned lower appellate Court is illegal, perverse and not sustainable. No opportunity of hearing was granted to the appellant before issuing notice and determining the amount due. Learned counsel for the appellant relied upon the judgment of Hon'ble Supreme Court in Masum Hussein v. State of M.P., AIR 1981 SC 1680 to contend that an action on the part of the Government without adjudication and following principles of natural justice is not sustainable.
Per contra, learned counsel for the respondent - State vehemently contended that it is an admitted fact that auction was carried out and the plaintiff was successful bidder in the auction. It was further contended that plaintiff deposited first intalment of Rs.3,45,000/-. Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -7- RSA No.3427 of 1987 Thereafter plaintiff did not deposit the remaining amount, which was payable as second and third instalments and raised objection that it had been prevented from catching fishes from the area by Nihangs. This assertion of the plaintiff is not sustainable. The plaintiff did not lodge any complaint against obstruction allegedly caused by Nihangs nor it could prove the same by any documentary evidence. Before re- auctioning the jheel water, due notice was issued to the plaintiff. Thereafter re-auction was carried out as a result of which loss to the tune of Rs.6,57,570.60 paise has been caused to the State. Notice to the plaintiff issued by the Department is sufficient compliance of the principles of natural justice.
I have considered the contentions raised by learned counsel for the parties.
I am of the opinion that the demand issued by the Collector for recovery cannot be sustained and must be set aside, however, it will be open to the Collector to proceed afresh in accordance with law after affording opportunity of hearing. Admittedly there is no adjudication by the Collector before rasing the demand. Collector cannot act in a coercive manner for effecting recovery as he is required to make adjudication with regard to amount after affording opportunity of hearing to the plaintiff.
Further perusal of record shows that notice dated 22.04.1982 was issued to Sh. Jagdish Lal, one of the functionaries of the plaintiff Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -8- RSA No.3427 of 1987 society by the Assistant Director Fisheries (Conservation), Kapurthala, wherein it is mentioned that fishing lease of Kapurthala District for the year 1981-82 given to the plaintiff has been cancelled due to failure to pay first and second instalments as due on 01.12.1981 and 20.03.1982. It is further mentioned in the notice that fishing rights of the notified waters of Kapurthala District would be put to re-auction. This notice cannot be treated as sufficient compliance of the principles of natural justice. Once State Government came to conclusion that some loss has been caused to the State then it must give the details of the loss caused and submit to the person who is a successful bidder in the auction affording him opportunity to defend and thereafter any recovery notice can be issued. Opportunity of hearing to the party is a necessity before adjudication of the claim. So the first question is answered in favour of the appellant.
Next question is whether the civil Court has jurisdiction to entertain the suit?
Learned counsel for the appellant vehemently contended that recovery as land revenue is a drastic subject which results into arrest and detention of the defaulter, distress and sale of his immovable property. If the notice of demand for recovery itself is illegal then the jurisdiction of the civil Court is not barred. Civil Court has jurisdiction to look into the legality or illegality of the order under which the recovery as land revenue is made. Learned counsel further submitted that the provisions Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -9- RSA No.3427 of 1987 of Section 158 of the Punjab Land Revenue Act will not apply.
Per contra, learned counsel for the State contended that both the Courts below have recorded a finding that the civil Court has no jurisdiction to entertain the suit as the recovery is being effected as arrears of land revenue by the Collector under the provisions of the Punjab Land Revenue Act. Section 158(xvi) of the Punjab Land Revenue Act specifically bars the jurisdiction of the civil Court.
I have considered the contentions raised by learned counsel for the parties.
Processes for recovery of arrears as land revenue are of drastic character. The same is clear from the provisions of Section 67 of the Punjab Land Revenue Act, which includes arrest and detention of the defaulter, distress and sale of is immovable property. Under Section 158 of the Punjab Land Revenue Act, a civil Court shall not exercise jurisdiction, inter alia, over any claim connected with or arising out of the collection by the Government or the enforcement by the Government of any process for the recovery of land revenue or any sum recoverable as arrear of land revenue.
The contention of the learned State counsel appears to be tempting, however, it needs to be seen whether this is sustainable in the present case. I have already recorded a finding that without any adjudication recovery notice was issued. A subject cannot be deprived of his right to resort to ordinary Courts of law. Exclusion of the Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -10- RSA No.3427 of 1987 jurisdiction of the civil Courts is not to be inferred by ratiocination resting on any statutory rules. It is a firmly established principle that a person cannot be deprived of his right to resort to the Court of law except by express enactment. The summary remedy under Section 67 of the Punjab Land Revenue Act is restricted to sums legally recoverable i.e. the sums which were admitted or approved to be due and could not be extended to the sums which were alleged or claimed to be due. In this case, recovery is on account of breach of contract and the resultant loss caused to the State but the same has not been determined in accordance with law. No opportunity of hearing was provided to the appellant before determining the amount. No calculation was submitted to the appellant; as such the demand is certainly illegal. When the demand itself is illegal, jurisdiction of the civil Court is not excluded. It is within the powers of the civil Court to examine whether the demand is legal and valid and is in accordance with law. The Act does not provide for exclusion of the jurisdiction of the civil Court if the demand itself is illegal. Since it has been held as aforesaid that demand itself is illegal then the jurisdiction of the civil Court is not barred. Therefore, the question whether the civil Court has jurisdiction is answered in affirmative.
In view of above, I set aside the judgment and decree of the lower appellate Court. However, direct the Collector to pass fresh order in accordance with law after giving opportunity of hearing and giving Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh -11- RSA No.3427 of 1987 details of the loss and how it has been caused to the State Government. If any amount is assessed recoverable from the appellant/plaintiff, question of limitation will not come in the way of the respondent/defendant in recovering the same in accordance with law.
Disposed of.
No order as to costs.
(Paramjeet Singh) Judge February 25, 2014 R.S. Singh Ravinder 2014.03.10 16:53 I attest to the accuracy and integrity of this document Chandigarh