Punjab-Haryana High Court
Punjab State Through Collector vs Kartar Singh And Others on 24 October, 2013
Author: K. Kannan
Bench: K. Kannan
RSA No.241 of 1986 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.241 of 1986
Date of Decision.24.10.2013
Punjab State through Collector, Faridkot and another ....... Appellants
Versus
Kartar Singh and others ......Respondents
Present: Mr. Ranbir Singh Pathania, DAG Punjab
for the appellants.
None for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J.
1. The following substantial questions of law arise for consideration in the second appeal:-
1. Whether the suit was maintainable for declaration to challenge the order of the Collector issued under the Punjab Land Reforms Act and consequently, the jurisdiction of the Civil Court was ousted ?
2. Whether the suit was bad for non issuance of notice under Section 80 CPC ?
2. The suit had been filed by the plaintiffs claiming to be erstwhile occupancy tenants whose rights were converted as full owners with the order of the Collector Agrarian, Muktsar issued on 27.10.1977 when the plaintiffs' father Mukand Singh had been recognized as an erstwhile tenant and later became an owner under the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953. After Mukand Singh's death, the plaintiffs had been entered as owners as per mutation dated Kamboj Pankaj Kumar 2013.10.25 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.241 of 1986 -2- 23.08.1979.
3. The cause of action for the suit was that the Government had treated the property as available in surplus and that it had allotted to respondent No.3 in the surplus area proceedings. The Collector Agrarian, Muktsar was reported to have declared the property as surplus on 20.08.1982 and after assigning it in favour of 3rd respondent, mutation was also reported to have been made in the name of the 3rd respondent. The trial Court dismissed the suit holding that the Collector's order cannot be a subject of adjudication before a Civil Court and it was specifically barred under Section 21(2) of the Punjab Land Reforms Act, 1972. On an objection taken by the Government that the suit was also bad for want of notice under Section 80 CPC, the Court had merely observed that it had disposed of this petition even on 17.05.1984 holding that an application had been filed under Section 80(2) for entertaining the suit without notice and the Court had allowed for the suit to be taken on file after serving notice. The Court observed that the plaint itself had not been returned and by issuing notice in the application, it should only be presumed that the plaintiffs had been granted the necessary relief to institute the suit.
4. In appeal by the plaintiffs against the dismissal of suit on the ground of maintainability, the Court found that the plaintiff himself had not been a party to the proceedings and if suit had been filed on the basis of title, the Civil Court would still be competent to adjudicate upon the same. The Appellate Court had referred two decisions of this Court in Sodagar Singh and others Vs. Punjab State and others 1983 PLJ 40 and Punjab State Vs. Bhagwan Singh and others 1983 PLJ 40 to hold that the orders passed under the Pepsu Tenancy and Agricultural Lands Act Kamboj Pankaj Kumar 2013.10.25 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.241 of 1986 -3- could be still challenged before the Civil Court and Section 47 of the said Act could not bar the institution of the suit. Comparing Section 47 of the Pepsu Tenancy and Agricultural Lands Act with Section 21 of the Punjab Land Reforms Act, 1972, the Court observed that the provisions are not similar but they are analogous of the provision of Section 25 of the Land Tenures Act, 1953 and referred to the decision in State of Haryana Vs. Hari Singh and others 1973 PLJ 811 where the Collector Agrarian had determined the surplus areas without informing the persons recorded as owners in the revenue record and the Court was holding that the Collector's order was void qua the plaintiff and the Civil Court could step in and hold the same to be so.
5. On a challenge to this order, the key question would be whether there are any provisions under the Act, which could disentitle a person who is not a party to the transaction to challenge the correctness of the order. If the challenge had been at the instance of the land owner from whom the property had been acquired, it should have been possible to fend off that action by reference to the bare provisions in the Act but if the challenge is at the instance of a person, who is not a party to the proceedings who was asserting his own title to the property against the State, there is nothing under the Act which debars such a right of action. The exclusion of jurisdiction of Civil Court shall not be easily inferred and there shall be a specific provision of law that prohibits the institution of suit. Here the issue is not whether the Collector had a power to declare the property as surplus. On the other hand, the issue is whether a person can claim a right to the property not under the land owner or under the Collector but independently thereof by reference to the declared status as Kamboj Pankaj Kumar 2013.10.25 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.241 of 1986 -4- an occupancy tenant and a later order passed by a Collector conferring any statutory recognition of confirmation of the right of ownership in the year 1977. Plaintiff's own right is set through his father who had secured status as an owner without reference to the surplus area proceedings said to have been initiated independently. The relief in the suit for declaration that the order passed by the Collector was not valid was another way of asserting plaintiff's own title to the property through father obtained through yet another order passed earlier on 27.10.1977 and subsequent mutation effected in his favour on 20.10.1978 and still after his father's death on 23.08.1979. I do not think that there is any error in the order passed by the Appellate Court sustaining the jurisdiction of Civil Court against the State and finding that the suit was properly instituted.
6. The Court had actually recorded the fact that there was no argument made regarding invalidity of institution of suit for want of notice under Section 80 CPC. The want of notice Section 80 can be waived and if no such objection had been taken before the Court below, it cannot be heard first time in second appeal and even though it would be an academic exercise, for the trial Court has considered the fact that the plaintiff himself had filed an application under Section 80 CPC and the Court by issuing a notice must be taken to have granted the relief of exemption.
7. The substantial questions of law raised are answered against the appellant and the second appeal is dismissed. No costs.
(K. KANNAN) JUDGE October 24, 2013 Pankaj* Kamboj Pankaj Kumar 2013.10.25 11:01 I attest to the accuracy and integrity of this document Chandigarh