RSA No. 643 of 1989 :1: IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH * * * * * RSA No. 643 of 1989 Date of decision : September 16, 2011 * * * * * Punjab State through Collector, Amritsar and another ............Appellant Versus Karam Singh and others .......Respondents * * * * * CORAM: HON'BLE MR. JUSTICE GURDEV SINGH * * * * * Present: Mr. Munish Kumar, AAG, Punjab for the appellant. Ms. Deepali Puri, Advocate for the respondent. * * * * * GURDEV SINGH, J (ORAL) The appellants/defendants have preferred this Second Appeal against the judgment and decree dated 20.11.1987 passed by Additional District Judge, Amritsar vide which he dismissed the first appeal preferred by them against the judgment and decree dated 27.5.1987 passed by Sub Judge First Class, Ajnala decreeing the suit of the respondents/plaintiffs for declaration to the effect that they are the owners in possession of the land in dispute measuring 51 kanals 12 marls situated in the revenue estate of Village Boparai Khurd, Tehsil Ajnala, Distt. Amritsar and for the consequential relief of permanent injunction restraining the defendants from taking possession of that land and from allotting the same to anyone else. The plaintiffs' case, as pleaded in the plaint, is that the land in dispute was originally owned and possessed by Gulzar Singh, RSA No. 643 of 1989 :2: Shangara Singh, Sucha Singh and Banta Singh sons of Jodh Singh which was purchased by them for valuable sale consideration vide sale deeds dated 18.12.1972, 24.12.1975 and 9.2.1979 and they entered into possession thereof at that time to the exclusion of those sale deeds. The defendants allege that this land has been declared surplus out of the holding of Jodh Singh, which is totally incorrect. Even in case there is any such order declaring the land surplus, the same is without jurisdiction, void ab initio and not binding upon them. Gulzar Singh and others were shown as co-sharers in the revenue record and were small land owners and were coming in exclusive possession, after this land had fallen to their share in the family partition about 15 years back. They as well as Jodh Singh were interested parties and no notice was ever served upon them before declaring the land surplus. This land never vested in the defendants and after the death of Jodh Singh, the same in their hands, as his legal heirs, was no longer surplus. It came to their knowledge that the defendants are going to allot this land and to dispossess them. Therefore, they filed suit for declaration with the consequent relief of permanent injunction. The suit was contested by the defendants. In their written statement they admitted that 4/5th share in the total holding of Jodh Singh was gifted by him in favour of Gulzar Singh and others and that the plaintiffs purchased the land in dispute from them. They denied the other contentions made in the plaint and inter alia pleaded that the transfer in favour of the plaintiffs took place on 15.11.1953 after the enforcement of the Punjab Security of Land Tenure Act, RSA No. 643 of 1989 :3: 1953 (for brevity `the Act'). Therefore, the same was rightly included in the holding of the original owner Jodh Singh. In view of Section 10 (a) (b) of the Act. The land was declared as surplus vide order dated 30.11.1959 passed by the Collector, Agrarian. Jodh Singh, Gulzar Singh and others filed an appeal against that order in the Court of the Commissioner, Jalandhar Division, Jalandhar in the year 1964 and the case was remanded with the observation that the banjar land should be excluded in accordance with the provisions of law. That itself shows that Gulzar singh and others were aware of the proceedings being initiated by the Collector for declaring the land as surplus in the hands of their father, Jodh Singh who was the original owner. It was on that account that there was no necessity to serve any further notice upon them. The vendees were associated during the proceedings before the Collector finally passed the order declaring the land in dispute as surplus, after the case was received back. After the land was declared surplus, the same was allotted to one Budh Singh and he was put in possession thereof on 13.12.1970 well before the death of the original land owner, who died on 15.12.1977. Therefore, the land in dispute already stands utilized. The order declaring the land surplus is quite legal and was within the competence of the authority to pass. After the authority, passed the order, the Civil Court has no jurisdiction to try this suit and its jurisdiction is specifically barred by Section 25 of the Act and Section 21(2) of the Punjab Land Reforms Act, 1972. The suit is bad for misjoinder of Gulzar Singh and others. They prayed for the dismissal of the suit. RSA No. 643 of 1989 :4: In replication to the written statement, the plaintiffs denied the contentions raised therein and reiterated their averments made in the plaint. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiffs have purchased the suit land from the original owner for a valuable consideration vide sale deeds dated 18.12.1972, 24.12.1975 and 9.2.1979 and they are in possession of the suit land since then? 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. 643 of 1989 :5: 9. Whether the suit is bad for non-joinder of necessary parties i.e Shangara Singh, Gulzar Singh, Banta Singh and Sucha 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 plaintiffs and Government Pleader for the defendants, the learned trial Court decided all the issues in favour of the plaintiffs and resultantly decreed their 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 and others did appear during those proceedings and the land was declared as surplus after taking into consideration the contentions raised by them. Therefore, the said ground was not available to the plaintiffs 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. RSA No. 643 of 1989 :6: On the other hand, it has been submitted by the counsel for the plaintiffs that as per Rules 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 others, to whom the land in dispute was gifted by Jodh Singh, the original owner, who were interested persons. 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 them, 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. 643 of 1989 :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. 643 of 1989 :8: of his land several years before his land was declared as surplus area, 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 Rules 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 are 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 and others and others was declared as surplus without any notice to Jodh Singh, and Gulzar Singh and others? 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 and others before declaring their land surplus, yet that finding is perverse and is the result of misreading of evidence. The defendants proved on record certified copy of the order dated 9.6.1964 passed by the Commissioner, Jalandhar Division, Jalandhar Ex.D-2. A perusal thereof shows that Jodh Singh RSA No. 643 of 1989 :9: and his sns Gulzar Singh, Shangara Singh, Banta Singh and Sucha Singh filed an appeal against the order dated 30.11.1959 vide which the land measuring 44.07 acre ¼ units was declared as surplus by the Collector. That appeal was accepted and the order passed by the Collector was set aside and he was directed to determine the surplus area afresh. Thereafter the matter was taken up for hearing by the Collector who passed the order dated 8.3.1965; the certified copy of which was proved on record as Ex.D3. Jodh Singh and all his sons were before the Collector who declared the land mentioned in the order as surplus. A perusal of the certified copy of the order dated 19.12.1967 Ex.D-4 shows that all of them preferred an appeal against the order dated 8.3.1965 which was dismissed. In view of this evidence produced by the defendants, it does not lie in the mouth of the plaintiffs to allege that their vendors had no notice of the proceedings vide which the land in the hands of their father Jodh Singh was declared as surplus. Once it is proved that they had notice of those proceedings and were actually present, there was no necessity for the defendants for proving that the notices were duly served upon them before declaring the land surplus. In these circumstances, the finding recorded by the lower Courts in favour of the plaintiffs that his predecessors 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 predecessors-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 RSA No. 643 of 1989 :10: 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 the same is decided against the plaintiffs. 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 RSA No. 643 of 1989 :11: