RSA No. 3839 of 2004 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: August 19 , 2009 1. RSA No. 3839 of 2004 (O&M) Gurbachan Singh and others ...... Appellants Versus Shri Kishan Gopal and others ...... Respondents 2. RSA No. 4517 of 2004 Thuru Ram and others ......... Appellants Versus Kishan Gopal and others ........ Respondents 3. RSA No. 4627 of 2004 Bua Ditta ....... Appellant Versus Kishan Gopal and others ......... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.R.N.Mudgil, Advocate with Mr.Kuldeep Sanwal, Advocate for the appellants. Mr.Atul Kaushik, Advocate for respondent No.1. Mr.R.S.Chauhan, Advocate for LRs of respondent No.3. **** RSA No. 3839 of 2004 (O&M) 2 1. Whether Reporters of 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? Ajay Tewari, J. The above mentioned three appeals have been filed against the judgments and decrees of the Courts below decreeing the suit of the respondents for declaration that they were owners in possession and the order dated 4.9.90 conferring proprietary rights on the appellants is illegal, null and void and not binding on the respondents. Since common questions of law and facts are involved, all the three appeals are being decided by a common judgment. The following substantial questions have been proposed:- 1) Whether in the facts and circumstances of this case the suit land stood already utilised under the provisions of the Punjab Security of Land Tenure Act, 1953 and thereafter it was not open for the Collector Agrarian, Pathankot to reopen the surplus area case of Jia Lal, the predecessor-in-interest of the respondents in the year 1982? 2) Whether the alleged redetermination of the surplus area case of Jia Lal in the year 1982 is otherwise also bad in law for want of notice to the appellants who are already settled on the suit land? 3) Whether the judgments and decrees of the courts below are without jurisdiction in view of Section 25 of the Punjab Security of Land Tenures Act, 1953 and also under Section 21 of Punjab Land Reforms Act, 1972? On 3.8.2009 the following order was passed:- “The appellants have filed this appeal against the concurrent judgments of the Court below decreeing the suit of the respondents for declaration that they continued to be owners of the land in dispute despite the order dated 4.9.90 Ex.D2 whereby the appellants were allowed RSA No. 3839 of 2004 (O&M) 3 to purchase the land in dispute. Learned counsel for the appellants has argued that in fact the land stood allotted to their predecessor-in-interest and has, by way of an application for additional evidence, sought to place on record the original allotment order and the Rapat Roznamcha. Learned counsel for the respondent has relied upon the order Annexure D-2 wherein the appellants have been directed to make the payment of the compensation. He has argued that even if the best case of the appellants is taken to be correct still it shows that the appellants never paid the compensation under the 1953 Act and thus never protected their alleged title. Learned counsel for the appellants, however, seeks a short adjournment to go through this aspect of the matter. Adjourned to 19.8.2009. To be shown in the urgent list.” Thus apart from the three questions the fourth question which arises is whether by not depositing the compensation, the appellants lost whatever right that may have inhered in them. It would be seen that questions No. 1 and 2 (supra) are related to question No. 4 which has now been raised. The Punjab Security of Land Tenures Act, 1953 dealt not only with securing land tenancies but also went a step further, incorporating provisions of allotment of certain land to tenants/land less persons. The Punjab Security of Land Tenures Rules 1956 deal with the modalities of utilisation of surplus area. Rule 20-A, 20-B, 20-C and 23 specifically deal with the issue of certificates to the tenants who are allotted land, delivery of possession and the conditions of a settlement and payment of purchase price. Rule 23 is reproduced herein below:- “Payment of purchase price in instalments.-(1)A RSA No. 3839 of 2004 (O&M) 4 tenant desiring to purchase land under section 18 of the act shall make an application in Form Q to the Assistant Collector I Grade, having jurisdiction, personality or through his recognised agent. (2) The payment of compensation, under sub-section (4) or Section 18,shall be made either in a lump sum or in six monthly-equated instalments, not exceeding ten, the balance being payable with last instalment. (3) The lump-sum or the fist instalment of purchase price shall be deposited in Government treasury, or sub-treasury or paid to the Assistant Collector I Grade, having jurisdiction,within 15 days of his determining the value of the land and every subsequent instalment within fifteen days of the date on which it becomes due.” Similarly for the analogous The Pepsu Tenancies and Agricultural Land Acts of 1955, The Utilisation of Surplus Area Scheme 1960 was notified. Similarly clauses 10, 11 and 12 thereof deal with the issue of certificate, delivery of possession and conditions of settlement. Rule 12 is reproduced herein below :- “Conditions of settlement.-(1) The settler - (a) shall be liable to pay all Government dues such as land revenue, surcharge, special charge, special assessment, abiana, betterment levy, consolidation fee, in respect of the land allotted to him, from the date he takes possession of the same; (b) shall be liable to pay the prescribed amount of compensation in the manner laid down in paragraph 13; ( c )shall become full owner of the land allotted to him when all payments due in respect of such land have been made; and (d) shall not be competent to transfer his right in the land allotted to him to any person till at the dues in respect o the land are cleared,except for the purpose of raising a loan from RSA No. 3839 of 2004 (O&M) 5 a Land Mortgage Co-operative Bank by mortgaging the same. (2 ) In case the settler makes any default in the payment of whole of the amount of compensation or two successive instalments thereof, in the manner laid down in paragraph 13, the allotment, on such part thereof, as may be sufficient to realize the amount which remains unpaid at the time when default is committed, shall be liable to be cancelled.” I asked learned counsel for the appellants whether there was any material on the record to establish that the compensation which the appellants were liable to deposit was ever deposited. Learned counsel has not been able to show any material on the record to establish this fact. Consequently it has to be held that the allotment in favour of the appellants was nullified in view of the non-fulfilment of the conditions of settlement. Consequently in reply to question No. 1 it has to be held that the land did not stand utilised. With regard to question No.2 also it has to be held that since the rights of the appellants had been nullified no notice was required to be served upon them. In the circumstances questions No.1, 2 and 4 are decided against the appellants. With regard to question No.3 I find that the learned lower Appellate Court has rightly relied upon the Full Bench decision of this Court in State of Haryana and others v. Vinod Kumar and others reported as 1986 PLJ 161 where it has been held that the bar created by the relevant provisions of the Act excluding jurisdiction of the Civil Courts cannot operate in cases where the plea raised before the Civil Court goes to the root of the matter and would if upheld lead to the conclusion that the impugned order is a nullity. The relevant para of the above enunciation of law is reproduced here as under: RSA No. 3839 of 2004 (O&M) 6 “7. “...The most authoritative pronouncement by the Supreme Court in this regard was made in M/s Kamala Mills Ltd v. State of Bombay, A.I.R. 1965 S.C. 1942 by a 7 Judges Bench as under :- “....... Whenever it is urged before a civil Court that its jurisdiction in excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclussion of the civi Court's jurisdiction is expressly provided for,the consideration as to the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important,and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf and it further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil Courts are prescribed by the said stature or not.” xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx This conclusion, however, does not necessarily mean that the plea against the validity of the order passed by the District Magistrate,or the Commissioner or the State Government can never be raised in a civil Court. In our opinion, the bar created by the civil Courts cannot operate in cases where the plea raised before the civil RSA No. 3839 of 2004 (O&M) 7 Court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity.” (emphasis supplied). It has to be noticed that in view of this exposition of law the redetermination of the surplus area of Jiya Lal, predecessor-in-interest of the respondents could not have been done without issuing notice to them and thus that entire exercise was a nullity. In the circumstances holding all the questions proposed against the appellants these appeals are dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE August 19, 2009 sunita