CWP No.17871 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.17871 of 2007 Date of decision:30.08.2010 Suresh Kumar and another ...... Petitioners VERSUS State of Haryana through Financial Commissioner, Haryana and others ......Respondents CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA. Present: Mr. Robin Dutt, Advocate for the petitioners. Mr.D.Khanna, Addl.A.G.,Haryana for respondents no.1 and 2 Mr.K.L.Suneja, Advocate for respondent no.3. ***** RAJIVE BHALLA.J The petitioners prays for issuance of a writ in the nature of certiorari for quashing the orders dated 01.04.1997 and 28.08.2007, passed by the Commissioner, Ambala Division, Ambala and the Financial Commissioners Haryana, respectively. Sharan Bihari Lal was owner of agricultural land which was declared surplus, on 18.07.1960, under the Punjab Security of Land Tenures, Act, 1953 (hereinafter referred to as the Punjab Act). After the coming into force of the Haryana Ceiling of Land Holdings Act, 1972 (hereinafter referred to as the Haryana Act), Sharan Bihari Lal filed a return of his land holding by including the land declared surplus on 18.07.1960. The prescribed authority vide order dated 10.02.1978 held that as Sharan Bihari Lal has two adult sons, he does not own or possess any surplus area. On 10.02.1995, one Banwari Lal, filed a complaint before the Collector pointing out that while assessing the land belonging to Sharan Bihari Lal, CWP No.17871 of 2007 -2- the order passed in 1960 has been over-looked and even otherwise the order dated 18.07.1960 is illegal as it does not delimit tenants permissible area and surplus area. The Collector forwarded the complaint to the Commissioner, Ambala Division, Ambala. The Commissioner, examined the complaint and the record and directed the Collector, to review the order dated 18.07.1960. Aggrieved by this order, Sharan Bihari Lal filed a revision. A Division Bench of Financial Commissioners dismissed the revision. Counsel for the petitioners submits that the impugned orders are null and void as the Haryana Act, does not empower a revenue officer to exercise power of review. The Commissioner had no jurisdiction to direct the Collector to review the order dated 18.07.1960 as with the repeal of the Punjab Act, the correctness of an order passed under the Punjab Act can only be examined by the Financial Commissioner. It is further argued that even if it is presumed that the Commissioner had jurisdiction to pass the impugned order, he could only do so after affording an opportunity of hearing to the petitioners. The absence of an opportunity of hearing, to the petitioners, renders the impugned orders null and void. Counsel for the respondents submits that sanction to review is an administrative order that does not require a revenue officer to grant an opportunity of hearing. The petitioners would even otherwise be able to defend their case when the Collector takes up the matter for hearing. It is further submitted that as the Commissioner has taken suo moto notice of an illegality in the order dated 18.07.1960, the writ petition should be dismissed. I have heard counsel for the parties and perused the impugned CWP No.17871 of 2007 -3- orders. The Commissioner has directed the Collector to review the order dated 18.07.1960, passed under the Punjab Act. The questions that arise for adjudication are whether the Commissioner has the power to pass such an order and if not the remedy, if any, available to an aggrieved person, including the State, against an order passed under the Punjab Act. The answers to these questions lie in the provisions of Sections 24 of the Punjab Act and 33 of the Haryana Act and Section 84 of the Punjab Tenancy Act, 1887 as applicable to the State of Haryana. Section 33 of the Haryana Act, reads as follows: - 33. Repeal and saving.-(1) The provisions of the Punjab Security of Land Tenures Act, 1953, and the Pepsu Tenancy and Agricultural Lands Act, 1955, which are inconsistent with the provisions of this Act are hereby repealed. (2) The repeal of the provisions of the enactments mentioned in sub-section (1), hereafter referred to as the said enactments, shall not affect: - (i) the applications for the purchase of land under section 18 of the Punjab Law or Section 22 of the Pepsu Law, as the case may be, pending immediately before the commencement of this Act, which shall be disposed of as if this Act had not been passed; (ii) the proceedings for the determination of the surplus area pending immediately before the commencement of this Act, under the provisions of either of the said enactments, which shall be continued and disposed of as if this Act had not been passed, and the surplus area so determined shall vest in, and be utilised by, the State Government in accordance with the provisions of this Act; CWP No.17871 of 2007 -4- (iii) the revisional power of the Financial Commissioner under section 24 of the Punjab law or under sub-section (3) of section 39 of the Pepsu law, as the case may be, shall be exercised as if this Act had not been passed, and the area declared surplus in exercise of such revisional power shall vest in, and be utilized by, the State Government in accordance with the provisions of this Act; (iv) the power exercisable under section 5-C of the Punjab law or under section 32-BB of the Pepsu law, as the case may be, shall be exercised as if this Act had not been passed; and the area determined surplus in exercise of such power shall vest in, and be utilised by, the State Government in accordance with the provisions of this Act: Provided that the powers of the Pepsu Land Commission under the Pepsu law shall vest in, and be exercised by, the Collector of the district concerned. (3) Save as provided in sub-section (2), no authority shall pass an order in any proceedings whether instituted before or after the commencement of this Act which is inconsistent with the provisions of this Act. The power of review is neither plenary nor inherent and may only be exercised if conferred by statute. The power of review as originally conferred by the Haryana Act has been deleted by way of a statutory amendment. Section 33 of the Haryana Act, has repealed the Punjab Act in so far as it is inconsistent with the provisions of the Haryana Act. The power of review conferred by Section 24 of the Punjab Act shall, therefore, be deemed to have been repealed as it is inconsistent with the provisions of CWP No.17871 of 2007 -5- the Haryana Act. In the absence of any power of review in the Haryana Act, the Commissioner had no jurisdiction to entertain the request forwarded by the Collector or to pass an order directing him to review the order passed under the Punjab Act. The repeal of the Punjab Act, by Section 33(1) of the Haryana Act, apart, Section 33(2) of the Haryana Act, postulates that the repeal shall not affect (a) an application for purchase filed by a tenant under Section 18 of the Punjab Act, pending before the commencement of the Haryana Act (b) proceedings pending for determination of surplus area; (c) the revisional power of the Financial Commissioner under Section 24 of the Punjab Act and (d) the power conferred by Section 5-C of the Punjab Act. Section 33 (2) of the Haryana Act, therefore, sets out powers conferred by the Punjab Act, that are saved for adjudication by authorities exercising power under the Haryana Act. While passing the impugned order, the Commissioner was not dealing with an application for purchase, or with proceedings for determination of a surplus area, or exercising power conferred under Section 5-C of the Punjab Act and was obviously not exercising the powers of the Financial Commissioner as saved by Section 33(2)(iii). The deletion of the power of review from the Haryana Act and the repeal of the Punjab Act by Section 33 of the Haryana Act places the controversy beyond debate. The Commissioner had no power to direct the Collector to review the order passed under the Punjab Act and as a consequence, assumed a jurisdiction, where there was none thereby rendering his order null and void. The Financial Commissioner, however, failed to discern this error and dismissed the revision. The question that remains to be answered is whether in the CWP No.17871 of 2007 -6- absence of the power of review, a person (including the State) aggrieved by an order passed under the Punjab Act would be without a remedy? The answer to this question lies in Section 33(2)(iii) of the Haryana Act (already reproduced). Section 33(2)(iii) of the Haryana Act, saves the revisional powers conferred upon the Financial Commissioner, under Section 24 of the Punjab Act. Section 24 confers revisional powers, upon the Financial Commissioner, in terms of Section 84(1) (5) & (6) of the Punjab Tenancy Act, 1887, which read as follows: - “84. Power to Call for, examine and revise proceedings of revenue officers and revenue courts. (1) The Financial Commissioner may at any time call for the record of any case pending before, or disposed of by any Revenue Officer or Revenue Court subordinate to him. (2) XXX (3) XXX (4) XXX (5) If, after examining the record, the Financial Commissioner is of opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the [High Court] (Subs.for the words “Chief Court' by Act 18 of 1919) in the exercise of its revisional jurisdiction may under the law for the time being in force interfere with the proceedings or an order or decree of Civil Court, he shall fix a day for hearing the case, and may, on that or any subsequent day to which he may adjourn the hearing or which he may appoint in this behalf, pass such orders as he thinks fit in the case. (6) Except when the Financial Commissioner CWP No.17871 of 2007 -7- fixes under sub-section (5) a day for hearing the case, no party has any right to be heard before the Financial Commissioner when exercising his powers under this section.” Section 33(2)(iii) of the Haryana Act, Section 24 of the Punjab Act when read alongwith Sections 84(1) (5) & (6) of the Punjab Tenancy Act, 1887, clearly establishes the powers of the Financial Commissioner, to call for the record of any case pending before, or disposed of by a revenue officer or a revenue court subordinate to him under the provisions of the Punjab Act, and to pass such order in the exercise of his revisional powers, have not been repealed. The power to entertain a petition, against an order passed under the Punjab Act, continues to vest in the Financial Commissioner. The Commissioner, however, does not have any power, whether plenary, revisional or of review, to interfere with an order passed under the Punjab Act. In view of what has been stated hereinabove, the writ petition is allowed and the impugned orders are set aside. The complaint filed by Banwari Lal with respect to the order dated 18.07.1960, is placed before the Financial Commissioner/Financial Commissioners, exercising powers under the Haryana Act, for consideration in accordance with law. This order shall not be construed to be an expression of opinion in favour of or against the rights of the petitioners. Parties are directed to appear before the Financial Commissioner, on 26.10.2010. 30.08.2010 [RAJIVE BHALLA] shamsher JUDGE