C.W.P. No.14936 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.14936 of 1994 Date of Decision: 01.09.2011 Jeet Singh and another ....Petitioners Versus State of Punjab and others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Sarjit Singh, Sr. Advocate with Mr. Vikas Singh, Advocate for the petitioners. Ms. Monika Chhibber Sharma, D.A.G., Punjab for the respondent-State. Mr. P.N. Aggarwal, Advocate for respondents Nos. 6 to 12. ***** 1. Whether Reporters of Local Newspapers 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 ? ** NIRMALJIT KAUR, J. The petitioners, who are the sons of Santa Singh, the land owner, are seeking quashing of the order dated 24.08.1994 (Annexure P-9), whereby, the revision petition of respondents No.3 to 12, who are the allottees has been accepted. The facts necessary for deciding the writ petition are that the proceedings for determination of surplus area permissible were started against the father of the petitioners-Santa Singh under the provisions of the Pepsu Tenancy and Agricultural Land Act, 1955 (here-in-after referred to as “the Act”). Ultimately, 195 K 5 M of land was declared surplus by the Collector Agrarian Barnala vide his order dated C.W.P. No.14936 of 1994 2 10.07.1961. Although the suit was dismissed on the ground of jurisdiction, the trial Court gave specific finding with respect to issue No.4 i.e the father of the petitioners was in possession of the land. The judgment and decree of the trial Court were challenged in the Civil Appeal. The Appellate Court granted temporary injunction in favour of the father of the petitioners that he should not be dispossessed. However, the said appeal was dismissed on 19.06.1965. Santa Singh, the father of the petitioners filed R.S.A No.853 of 1965. This Court vide order dated 02.05.1965 stayed the dispossession of the deceased. Meanwhile, Santa Singh had been dispossessed after the dismissal of the appeal by the First Appellate Court and before the stay was granted by the High Court in R.S.A on 02.07.1965. The R.S.A was allowed by the learned Single Bench of this Court vide order and judgment dated 01.02.1972. The findings on other issues were not disputed before the High Court and the High Court set aside the findings of the Courts below on issues No.1 and 7. The High Court held that the order, whereby, the surplus area was declared, was void, ineffective and unenforceable. It was, however, observed that the Collector could decide the matter de-novo in accordance with law. In the meantime, the father of the petitioners had died and the petitioners were brought as legal representatives in R.S.A. Accordingly, the case was taken up by the Collector Agrarian, Barnala after the decision of this Court in R.S.A. Assessment of surplus area was taken up by the Collector. Since, Santa Singh had died by this time, the Collector, therefore, held that the order of the determination of surplus area being no more in existence, there was no surplus area in the hands of legal heirs. He further held that the proceedings regarding determination of surplus area de-novo had become infructuous because Santa Singh had died on 15.07.1971. As the land had ceased to be surplus area, so the Collector vide his order dated 25.03.1974 ordered that the surplus area be restored to the petitioners. C.W.P. No.14936 of 1994 3 The State did not challenge the order. The same therefore attained finality. However, the allottees filed an application for review of the order of the Collector Agrarian dated 25.03.1974. This review was recommended by the Commissioner. The order of the Commissioner, whereby, he had sanctioned that the Collector may review the order, was challenged by the petitioners in R.O.R. No.84-85. The Financial Commissioner dismissed the review and held that the order of the Collector Agrarian dated 26.03.1974 could not be reviewed but observed that the same could only be challenged in revision. The respondent-allottees moved application to the Collector for reference of revision against the order dated 25.03.1974 of the Collector. The same was dismissed by the Collector vide order dated 19.05.1986. The respondent-allottees filed an appeal before the Commissioner under Section 32(d)(3) of the Act. This appeal was heard by the Commissioner, Patiala under the said Act. He, too, vide his order 17.11.1987 (Annexure P-8) held that there was no surplus area. Thereafter, the petitioners filed revision against the order of the Commissioner before the Financial Commissioner. The Financial Commissioner, however, set aside the order dated 25.03.1974 vide impugned order dated 24.08.1994. While impugning the order of the Financial Commissioner dated 24.08.1994, it was contended by Mr. Sarjit Singh, learned Senior Counsel for the petitioners, firstly on the ground that the Financial Commissioner had ignored the order of the High Court and the Financial Commissioner had absolutely no jurisdiction to pass a contrary order to the judgment passed by this Court. Secondly, the matter pertains to surplus area. As such, under Section 32(d)(3) of the Act, the appeal/revision is to be heard only by the State Government. In the present case, the revision against the order of the Commissioner dated 17.11.1987 was passed by him as delegate of the C.W.P. No.14936 of 1994 4 State Government was passed under Section 32(d)(3) of the Act. Thus, the revision against the order was not maintainable before the Financial Commissioner as the Commissioner had passed the order as delegate of the State Government. Reliance was placed on the judgment rendered by the Full Bench of this Court in the case titled as Sukhdarshan Singh vs. State of Punjab reported as 1979 P.L.J. 393. Thirdly, the order, whereby the surplus area was declared, has been set aside by the High Court. Once the same has been set aside, there was no surplus area. No proceeding was pending regarding determination of surplus area when Punjab Land Reforms Act came into force. Therefore, the proceedings against the petitioners could be initiated only under the Punjab Land Reforms Act. No such proceedings have been initiated under the said Act. Fourth, the Financial Commissioner has wrongly assumed that the land has been utilized under the Act. The State takes possession from the land owners and then allots land to the eligible allottees. There is nothing on record to show that the State had taken the possession from the land owners and allotted to the allottees. As such, there was no utilization of the land. Since, there is no utilization of the land, the surplus land has to be determined afresh after the death of the original owner. The petitioners had succeeded to the land of the land owner. There is no surplus area in the hands of the petitioners after the land has been divided among them upon inheritance. Lastly the Financial Commissioner had wrongly held that because the allottees were not the party before the High Court, the same is not applicable to them as the allottees were claiming the land through the State and were very much aware of the Civil Court proceedings as they had appeared as witnesses. While opposing the contentions, Mr. P.N. Aggarwal, learned C.W.P. No.14936 of 1994 5 counsel for the respondents submitted that the surplus area was duly allotted to the respondents on 20.05.1963. Later on, Santa Singh, the land owner, illegally and forcibly dispossessed the allottees from the allotted land. However, on the applications of the above allottees to the Collector, Agrarian, Barnala, the possession of the above allotted land was restored to the allottees on 13.05.1965. Santa Singh, the father of the present petitioners, had put in appearance before the Collector, Agrarian, Barnala on 31.12.1965 on which date he made his statement before the said Collector. He also admitted that the amount of compensation of ` 12447.18 p was also correctly assessed and he requested that it should be paid to him. He further admitted that he had given up possession of the allotted land and the allottees were in possession thereof. Santa Singh received the entire amount of ` 12447.18 p as the full and final compensation of his surplus allotted land. It is abundantly clear that there was complete utilization of the surplus area in question during the life time of Santa Singh, the father of the present petitioners. Thus, utilization of surplus area, being complete in every respect, is not adversely affected either by the death of said Santa Singh which took place later on i.e. on 15.07.1981 or by any judgment or decree passed in the suit of Santa Singh to which the above allottees of surplus area were not impleaded as parties in any of the three Courts. Reliance has been placed on the judgment of Hon'ble the Apex Court rendered in the case titled as Bhagwan Singh and others vs. The State of Punjab and others reported as 1987 PLJ 149 and Tilak Raj and others vs. Financial Commissioner (Revenue) Punjab and others reported as 1992 PLJ 142. Secondly, since none of the allottees/their successors-in- interest had been impleaded as parties in the above suit or in the appeals arising from that suit at any stage and no hearing was given to the allottees in the above suit or appeal, they are not bound at all by any judgment or C.W.P. No.14936 of 1994 6 decree passed therein being null, void and non-est qua them who were necessary and affected parties and relied on the judgments rendered in the case titled as State of Punjab (now Haryana) and others vs. Amar Singh and another reported as 1974 PLJ 74, State of Haryana and others vs. Vinod Kumar and others reported as 1986 PLJ 161 and Smt. Anguri Devi vs. Moti Ram and others reported as PLJ Vol. CXXXII (2002-3) 616. Third, the Financial Commissioner has the jurisdiction to decide the revision, in as much as, the Financial Commissioner vide his order dated 08.09.1985 while holding that the review against the order dated 25.03.1974 was not competent had observed that the revisional jurisdiction could be invoked and the said order was passed in the presence of both the parties. As such, they cannot turn around and say that the Financial Commissioner has no jurisdiction. Further, the revision is against the order dated 19.05.1986 which is not against the order determining surplus area. The Collector did not determine or redetermine the surplus area and merely declined to refer the matter to the Financial Commissioner for exercising of revisional jurisdiction against the earlier order of the Collector. The order of the Collector is being misrepresented. Since the order dated 19.05.1986 does not fall under Section 32(d)(3) of the Pepsu Tenancy and Agricultural land Act, Section 32(d)(3) of the Pepsu Tenancy and Agricultural land Act was not applicable and that the said section was wrongly quoted while filing the appeal before the Collector. Quoting of wrong section will not deprive the petitioners from availing of proper remedy. It was further submitted that the procedural law stood amended by coming into force by the Punjab Land Reforms Act, 1972 w.e.f. 02.04.1973 and the earlier procedural law regarding appeal, review and revision stood repealed. Thus the revision petition before the learned C.W.P. No.14936 of 1994 7 Financial Commissioner was fully competent under Section 84 of the Punjab Tenancy Act, 1887 read with Section 18 of the Punjab Land Reforms Act, 1972 and para 14 of the utilization of surplus area Scheme, 1960 and in any case even under Section 39(3) of the Act, 1955. Accordingly, it was argued that the judgment rendered by the Full Bench of this Court in the case of Sukhdarshan Singh (supra) is not applicable at all. Fourth, the order and judgment is an outcome of fraud played by the petitioners on the Court and hence is not applicable to the respondents as it was not brought to the notice of the High Court that the allottee were put in possession of the surplus area and that the father of the petitioners has taken the compensation but were illegally and forcibly dispossessed by the land owners on 20.05.1963. Reliance has been placed on the judgment of Hon'ble the Apex Court rendered in the case titled as S.P. Chengalvaraya Naidu vs. Jagannath reported as 1994(2) Civil Court Cases 131, as well as, the judgment of this Court rendered in the case titled as Minakshi Saini vs. Gurcharan Singh Bharmra reported as 2002(2) Civil Court Cases 229. Lastly, the respondents raised yet another argument. As per Section 32 FF of the Act, certain transfers do not affect the surplus area. Transfer by Will will not affect the surplus area. It was contended that the present petitioners are stated to have become owners through Will and not through inheritance. The Will is admitted. As such, the legatees under the Will cannot be treated as heirs by inheritance. Thus, the benefit of Section 10-A(b) of Punjab Security of Land Tenures Act is not available. Reliance has been placed on the judgment of this Court rendered in the case titled as Mohan Singh and another vs. Haryana State and others reported as 1978 P.L.J. 180, Bhan Singh and others vs. Budh Singh and others reported as 1980 P.L.J. 596 and State of Punjab vs. Gurcharan Singh C.W.P. No.14936 of 1994 8 and others reported as 1991 PLJ 421. Heard. The Commissioner, Patiala Division passed the order dated 17.11.1987 under Section 32(d)(3) of the Act. In revision, the Financial Commissioner set aside the said order. One of the question herein is, as to whether the revision against the order dated 17.11.1987 under Section 32 (D)(3) of the Act was maintainable and whether the impugned order passed by the Financial Commissioner dated 24.08.1994 setting aside the order of the Commissioner was within his jurisdiction or not. The relevant sub- sections of Section 32(D) of the Act read as under :- “32-D. (3) Any person aggrieved by an order of the Collector under sub-section (2) may, within thirty days of the order, prefer an appeal to the State Government or an officer authorized by the State Government in this behalf. (4) Without prejudice to any action under sub- section (3), the State Government may of its own motion call for any record relating to the draft statement at any time and, after affording the person concerned an opportunity of being heard, pass such order as it may deem fit. (5) Any order of the State Government under sub-section (3) or sub-section (4), or of the Collector subject to the decision of the State Government under those sub-sections shall be final.” Learned counsel for the petitioner contended that Section 32-D was brought in by the insertion of Chapter IV-A by the Pepsu Act No.15 of 1956 and while inserting Chapter IV-A in the parent Act, although Section 50 was already there authorizing delegation of power by the State Government to any officer, yet by way of abundant caution and specially for purposes of Chapter IV-A, a provision was made in sub-section (3) of Section 32-D giving authority to the State Government to authorize an C.W.P. No.14936 of 1994 9 officer to hear an appeal. From the perusal of the above provisions of Section 32-D, it is evident that the Commissioner is the duly authorized person by the State Government. The appeal under Section 32(d)(3) of the Act is before the State Government and not before any individual Officer. Thus, once an appeal is heard by the Commissioner as an officer authorized as a nominee of the State Government, then there can be no further revision under sub section (4) of Section 32-D either to the State Government or its delegate i.e the Financial Commissioner. In order to meet the above, learned counsel for the respondent submitted that the said appeal was wrongly filed under Section 32(d)(3) of the Act. The appeal was against the order dated 19.05.1986 passed by the Collector Agrarian, Barnala, wherein, he had simply declined to make a reference for revision. As such, the said order was not an order declaring or refusing to declare a surplus area. Thus, the case squarely falls under Section 39(3) of the Act. The Financial Commissioner decided the revision accordingly. The argument of the learned counsel for the respondents is difficult to accept in view of the fact that Chapter IV-A of the Act exclusively deals with Ceiling on land and acquisition and disposal of surplus area. The entire proceedings and the various orders passed are with respect to the surplus area. The dispute, in hand, is with respect to the surplus area in the hands of Santa Singh-the land owner. The respondents, herein, are the allottees of the alleged surplus area. Annexure P-4 is the order dated 25.03.1974 passed by the Collector Agrarian, Barnala declaring that there was no surplus area. The allottees filed an application for review of the order dated 25.03.1974 passed by the Collector Agrarian, Barnala. The Collector Agrarian, Barnala declined the reference. The Financial Commissioner vide his order dated 08.09.1985 also declined the review. The order of the Collector dated 19.05.1986 declining the application for C.W.P. No.14936 of 1994 10 sanction of the revision against the order dated 25.03.1974 resulted in upholding the order dated 25.03.1974 passed by the Collector Agrarian, Barnala, vide which, it was held that there was no surplus area. The respondents filed an appeal against the order dated 19.05.1986 before the Commissioner, Patiala Division. The said appeal was filed under Section 32(d)(3) of the Act. The same too was dismissed. While dismissing the appeal, the Commissioner, Patiala Division, in his order dated 17.11.1987 held as under :- “ I have considered the above plea of the learned counsel in the presence of Shri Joginder Singh, Advocate and the Assistant District Attorney, Patiala, along with Naib Tehsildar, Agrarian on behalf of the State. It is obvious from the facts of the case that on the date of the death of Santa Singh, there was no valid declaration of the area surplus with him because the order dated 10.07.1961 was set aside by the High Court on 01.02.1971. Under the law the mere enactment of the Punjab Land Reforms Act did not put a stop to proceedings which were being taken under the Pepsu Tenancy and Agricultural Lands Act and the Punjab Security of Land Tenures Act. These proceedings were saved by Section 28 of the New Act. After the death of Santa Singh, therefore, the surplus area had to be assessed by taking into consideration the holding of each of his legal representatives. To this extent, the order dated 25.03.1974 was within the law. Since the surplus area was not determined, the allotment along with the status of the resettled tenants automatically came to an end because allotment pre supposes the availability of surplus area which in the present case was not legally available as on 10.07.1961. Under the circumstances the order passed by the Collector, Agrarian is fully justified. The appeal is dismissed. Announced.” C.W.P. No.14936 of 1994 11 It is evident from the perusal of the above order that the Commissioner, Patiala Division recorded a finding that there was no surplus area. Thus, to say that the order under challenge had nothing to do with the surplus area cannot be sustained in view of the above as also the very appeal before the Commissioner was under Section 32(d)(3) of the Act against which no revision is maintainable as held by the Full Bench of this Court rendered in the case of Sukhdarshan Singh (supra) as under :- “ 21. So far as Kishan Singh vs. The State of Punjab and others (supra), is concerned, that decision is also correct as it was held therein that an order under sub-section (3) cannot be reversed in exercise of power under sub- section (4) of section 32-D of the Act. We approve of this decision also. 22. After analysing the whole situation, we come to the following conclusions :- (i) that if against the order of the Collector an appeal is decided under sub-section (3) of section 32-D of the Act, no further revision would lie under sub-section (4) and finality would attach to the order under sub-section (3) by virtue of sub-section (5), as the order under sub-section (3) would be deemed to be passed by the State Government even if passed by an officer authorized by the State Government in this behalf. (ii) that if no appeal is filed under sub-section (3) then the revisional power under sub-section (4) can be exercised by the State Government or its delegate and finality will attach under sub- section (5) to such an order deeming the same to be of the State Government even if passed by its delegate. (iii) Clause (i) of the notification dated December 23,1963, would be redundant as the Financial Commissioner will not be able to hear C.W.P. No.14936 of 1994 12 a revision under sub-section (4) against an order passed by the Commissioner under sub- section (3) of section 32-D of the Act and clause (2) of the notification will stand intact inasmuch as the power of revision under sub- section (4) would be exercised by the Commissioner in cases where no appeal has been preferred under sub-section (3) of section 32-D of the Act. (iv) The notification dated September 18, 1958, would stand superseded by notification dated October 1, 1964, which would be valid and operative.” In the present case too, the appeal against the order dated 19.05.1986 passed by the Collector was also filed before the Commissioner under Section 32(d)(3) of the Act. The appeal was decided by the Commissioner as the State Government. No revision was maintainable against the order of the Financial Commissioner. The order of the Financial Commissioner passed in revision was therefore without jurisdiction and deserves to be set aside on this ground alone. The argument of learned counsel for the respondents that the order dated 08.09.1985 passed by the Financial Commissioner refusing to review but observing that he may be able to hear the same in revision was passed in the presence of both the parties and that the petitioners never raised any objection qua jurisdiction before the Financial Commissioner at the time of hearing the revision will not empower the Financial Commissioner with jurisdiction or convert an order passed without jurisdiction a valid order. The question of jurisdiction can be raised at any point of time. The second question is as to whether the order of the High Court was binding on the allottees and whether there is any surplus area available at all. The Collector Agrarian, Barnala vide his order dated C.W.P. No.14936 of 1994 13 10.07.1961 decided the surplus area in the hands of land owner Santa Singh. The land owner Santa Singh filed Civil Suit No.268 against the State of Punjab on 09.12.1963. The said suit was dismissed by the trial Court vide order dated 09.02.1965. The appeal too was dismissed by the First Appellate Court on 19.06.1965. Meanwhile, Santa Singh died on 15.07.1971. Regular Second Appeal No.853 of 1965 was filed by Santa Singh before the High Court. During the pendency of the Regular Second Appeal, Santa Singh died on 15.07.1971. The High Court allowed the appeal vide its order and judgment dated 01.02.1972. The High Court in no uncertain terms held that the Collector had overstepped his jurisdiction by calculating surplus area in standard acres and the order of the Collector, vide which, the area was declared surplus, was held to be “void, ineffective and unenforceable” with permission to the Collector to decide the matter de-novo in accordance with law. Accordingly, the Collector Agrarian, Barnala took up the case after the decision of R.S.A and vide his order dated 25.03.1974 held that no area of Santa Singh-deceased was surplus at that point of time as the order deciding land surplus in the hands of Santa Singh stood set aside by the High Court and as the land owner had died on 15.07.1971, the sons of deceased