R.S.A.No. 890 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 890 of 2009 (O&M) Date of decision: 2.2.2011 Gurdarshan Singh and others ......Appellants Versus State of Punjab and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.J.R.Mittal, Sr. Advocate with Mr.Kashmir Singh, Advocate, for the appellant. Mr.S.K.Bhanot, Addl.A.G.Punjab. **** SABINA, J. Plaintiffs had filed a suit for declaration that they were owners in possession of the suit land and the defendants had no concern with the same. Order dated 11.5.1999 passed by defendant No.2 was not binding on the plaintiffs. In brief, the case of the plaintiffs was that the plaintiffs and defendant No.3 were owners in possession of the suit land. The suit land was not surplus in the hands of the plaintiffs. The order R.S.A.No. 890 of 2009 (O&M) 2 passed by defendant No.2 declaring the suit land as surplus was illegal, null and void. No notice had been issued to the plaintiffs before passing the impugned order. Defendant No.3 was proceeded ex-parte as he had failed to appear despite service. Defendants No.1 and 2, in their written statement, averred that the plaintiffs were not bonafide purchasers as they had purchased the land after the appointed day i.e. 24.1.1971 from the landlord whose land has been declared surplus by the Collector, Fatehgarh Sahib vide order dated 2.3.1988. The impugned order was legal and valid and was passed as the case had been remanded to the answering defendant. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff and defendant No.3 are owners in possession of the land in dispute?OPP. 2. Whether the plaintiffs are entitled to permanent injunction as prayed for?OPP. 3. Whether order dated 11.5.1999 passed by defendant No.2 is illegal, null and void and without jurisdiction?OPP. 4. Whether the plaintiffs are bonafide purchasers having purchased the suit land after the appointed day i.e. 24.1.1971?OPP. R.S.A.No. 890 of 2009 (O&M) 3 5. Whether the jurisdiction of this Court is barred U/S 21 of the Punjab Land Reforms Act, 1972 ? OPD 6. Relief.” The trial Court decreed the suit of the plaintiffs vide judgment and decree dated 4.2.2004. Aggrieved by the said judgment and decree, defendants preferred an appeal and the same was allowed by Additional District Judge,Fast Track Court, Fatehgargh Sahib vide judgment and decree dated 11.12.2007 . Consequently, suit filed by the plaintiffs was dismissed. Hence, the present appeal by the plaintiffs. The substantial questions of law that arise in this case are “whether the suit filed by the plaintiffs was maintainable and whether the plaintiffs were entitled to be heard before declaration of surplus area in the hands of the landowner?” Learned senior counsel for the appellants has submitted that the impugned order was liable to be set aside as the same had been passed without issuing any notice to the plaintiffs. The plaintiffs being vendees were necessary parties. Civil suit filed by the plaintiffs was maintainable. Learned senior counsel has placed reliance on Sudagar Singh and others vs. Punjab State and others 1981 PLJ 166, wherein, in para Nos. 2 and 3, it was held as under:- “ It is not disputed that while declaring surplus area in the hands of Hardam Singh, the appellants were R.S.A.No. 890 of 2009 (O&M) 4 not heard and that the order declaring surplus area was passed after the appellants made purchases from Hardam Singh. Accordingly, the appellants were entitled to a hearing before declaration of surplus area according to decision of this Court in Harnek Singh and another v. The State of Punjab and others, 1971 PLJ 727. There also the transfers were made by the land owner after 21st August, 1956 and yet it was held that the transferees were entitled to a hearing before the declaration of surplus area.” “Once it is held that the appellants were entitled to a notice then civil suit would be competent inasmuch as if there is a procedural defect in passing the orders by the authorities under the Act then the orders can be challenged before a Civil Court and Section 47 of the Act would not be a bar to the filing of the suit. Therefore, the Courts below were in error in coming to the conclusion that the Civil Court had no jurisdiction to entertain the suit.” Learned senior counsel has next placed reliance on Full Bench decision of this court in State of Haryana and others vs. Vinod Kumar and others 1986 RLR 331, wherein, in para 7, it was held as under:- “The most authoritative pronouncement by the Supreme R.S.A.No. 890 of 2009 (O&M) 5 Court in this regard was made in M/s Kamala Mills Lts. Vs. State of Bombay by a 7-Judges Bench as under:- xx xx xx xx xx xx Whenever it is urged before a civil court that its jurisdiction is 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 exclusion of the civil courts' jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is placed as a matter of necessary implication such considerations would be very important, and in conceivable circumstances, might have become decisive. If it appears that a statue 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 R.S.A.No. 890 of 2009 (O&M) 6 remedies normally associated with actions in civil courts are prescribed by the said statute or not” The matter was again considered at great length by 5-Judges Bench of the Supreme Court in Ram Swarup and others vs. Shikar Chand and another. In this case the provisions of section 3(4) and 16 of the U.P. (Temporary) Control of Rent and Eviction Act 1947 were under consideration. Although the provisions of the said section expressly barred the jurisdiction of the civil courts still it was held that if the order was passed in violation of the statutory provisions or the principles of natural justice the order would be open to challenge in civil court. Paragraphs 12 and 13 which contain the ratio and the precise rule laid down reads as under:- One of points which is often treated as relevant in dealing with question about the exclusion of civil courts' jurisdiction is whether the special statute which it is argued, excludes such jurisdiction, has used clear and unambiguous words indicating that intention. Another test which is applied is: does the said statue provides for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions: Applying these two tests it does appear that the two words used in S. 3(4) R.S.A.No. 890 of 2009 (O&M) 7 and S. 16 are clear. Section 16 in terms provides that that the order made under this Act to which said the section applies shall not be called in any question in any Court. This is an express provision excluding the civil courts' jurisdiction. Section 3(4) does not expressly excludes the jurisdiction of the civil courts but in the context, the inference that the civil courts jurisdiction is intended to be excluded, appears to be inescapable. Therefore, we are satisfied that Mr. Goyal is right in contending that the jurisdiction of the civil courts is excluded in relation to matters covered by the orders included within the provisions of Section 3(4) and S.16. This conclusion, however, does not necessarily means 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 the relevant provisions of the Act excluding the jurisdiction of the civil courts cannot operate in cases where the plea raised before civil courts goes to the root of the matter and would, if held, lead to the conclusion the impugned order is nullity. Take for instance the case of an order purported to have been passed by a District Magistrate who is not a District Magistrate in law. If it is shown by a R.S.A.No. 890 of 2009 (O&M) 8 party impleading the validity of the order in a civil court that the order was passed by a person who was not a District Magistrate, the order in law would be a nullity and such a plea cannot be ruled out on the ground of the exclusion of the jurisdiction of the civil court. Similarly, if an order granting permission to a landlord is passed by a District Magistrate of one District when the property in in question is situated in another district outside his jurisdiction, a party would be entitled to urge before a civil court that the permission purported to have been granted by the District Magistrate is wholly invalid and a nullity in law. Let us take another case to illustrate the position. If Section 3 had provided that before a District Magistrate grant permission to the landlord to sue his tenant he shall issue notice to the tenant and give him an opportunity to represent his case before an application of the landlord is dealt with on the merits and in the face of such a statutory provision, the District Magistrate grants permission ex- parte without issuing notice to the tenant in such case, the failure of the District Magistrate to comply with the mandatory provision prescribed in that behalf would render the order passed by him completely invalid and a plea that an order has been passed by the District Magistrate without complying with the mandatory R.S.A.No. 890 of 2009 (O&M) 9 provision of the Act would be open for examination before a civil court. Likewise in the absence of such a statutory provision, if it is held that the proceedings before the appropriate authorities contemplated by Section 3 are in the nature of quasi judicial proceedings and they must be tried in accordance with principles of natural justice and it is shown that in a given cases an order has been passed without a notice to the party affected by such order, it would be open to the said party to contend that an order passed in violation of the principles of natural justice is a nullity and its existence should be ignored by the civil court. Such a plea cannot, in our opinion be excluded by reason of the provisions contained in Section 3(4) and Section 16 of the Act. It was further observed in paragraph 18 that the earlier decision of the Supreme Court in M/s Kamala Mill's case (supra) fully supports the view taken by them. In the face of this authoritative pronouncement there is no room for any doubt that if an order is passed by a tribunal of limited jurisdiction without issuing a notice to the concerned party, the order would be a nullity and open to a challenge in the civil court even if statute expressly bars the jurisdiction of the civil court to entertain a suit to challenge the validity or legality of the order passed by R.S.A.No. 890 of 2009 (O&M) 10 such a tribunal. This question was once again considered by a Constitution Bench of the Supreme Court in Dhullabhai etc. Vs. State of Madhya Pradesh and another, and the seven principles contained in the judgment of the learned Chief Justice were enunciated. The scope of the observations made and, the rule laid down in M/s Kamala Mill's case (supra) came under specific consideration of the Bench and it was observed that the Special Bench (in M/s Kamala Mill's case) refrained from either accepting the dictum of Mask-Co's case or rejecting it, to the effect that even if jurisdiction is excluded by a provision making the decision of the authorities final, the civil courts have jurisdiction to examine into cases where the provisions of the particular Act are not complied with. The jurisdiction of the civil court to try the suits against the orders passed y the Tribunal or Special Jurisdiction in violation of the provisions of the statute or principles of natural justice was thus upheld even though the jurisdiction of civil court to question the legality or validity or the orders of the Tribunal was expressly barred by the statute.” Learned senior counsel has further placed reliance on Full Bench decision of this Court in Harnek Singh and another vs. The Punjab State and others 1971 RLR 788, wherein, in para 12, it R.S.A.No. 890 of 2009 (O&M) 11 was held as under:- “Following admitted relevant legal propositions emerge from the above mentioned provisions of the Act and the 1958 Rules:- i) Transfers of land effected by a land owner from out of his holding prior to August 21, 1956 have to be given full effect and no part of land so transferred is to be deemed to belong to the land owner for purposes of declaring his surplus area; ii) Voluntary transfers of land made by a land owner after July 30, 1958 have to be completely ignored by the State and the land so transferred is to be deemed to be still belonging to the land owner for purposes of declaring the surplus area of the land owner notwithstanding such transfer; iii) Transfers effected by a land owner for consideration out of his holding between August 21, 1956 and July 30, 1959 to a landless person, or to a small land owner ( up to an area which with or without the area owned or held by him does not in the aggregate exceed the permissible limit) have to be given effect even against the State if the same are not in favour of any of the prescribed relations enumerated in rule 23-A (wife or husband, male or R.S.A.No. 890 of 2009 (O&M) 12 female descendants and the descendants of such female, father, mother, father's or mother's sister, brother and his descendants, mother's brother and his descendants, wife's brother and sister's husband); iv) Such transfers (between August 21, 1956 and July 30, 1958) in favour of any one or more of the prescribed relations referred to above have to be ignored for the purpose of declaring the surplus area of the land owner as if such transfers had not been made; v) Though the ownership of the land declared surplus vests in the State Government, compensation therefor is payable to the land owner or to other persons interested in the land in accordance with the relevant provisions. Any person who has received any advantage under a transfer of land to which transfer effect is not given under the Act, is bound to restore such advantage (or to make compensation for it) to the persons from whom he received it; vi) In his return filed under Section 32-B the land owner is required (by the proviso to that Section) to give particulars of any transfer or other disposition R.S.A.No. 890 of 2009 (O&M) 13 of land made by him after August 21, 1956; and In part B of Form VII-B to be prepared by the Patwari for purposes of declaration of the surplus area of a land owner who has not himself furnished Form VII-A, particulars of the transfer effected by the land-owner along with the name and particulars of the transferee, etc. have to be specifically mentioned.” Admittedly, in the present case, Balbir Singh was earlier owner of the land in dispute. Land in the hands of Balbir Singh was declared surplus and the appointed date was 24.1.1971. Plaintiffs purchased the suit land vide sale deed dated 1.6.1976. The order, on remand, whereby the land in the hands of the land-owner was declared surplus, was passed on 11.5.1999. However, no notice was issued to the plaintiffs and hence, the plaintiffs were deprived of putting up their case before the authorities. The fact that the land owner was participating in the proceedings before the concerned authorities is no ground to hold that the plaintiffs were not entitled to a hearing. Since the land owner had already sold the land to the plaintiffs, he was under no obligation to take up the pleas available to the plaintiffs. In case a notice had been issued to the plaintiffs, they could have put up all their available pleas before the concerned authorities at the time of determination of the surplus area in the hands of the land-owner. Similarly situated persons had filed CWP R.S.A.No. 890 of 2009 (O&M) 14 No.6455 of 1988 challenging the acquisition proceedings and the said writ petition was allowed by this Court vide order dated 23.1.1992 and it was held that the Collector Agrarian, Fatehgarh Sahib should decide the matter afresh after affording hearing to the petitioners. Reliance was placed on decision of the Full Bench of this Court in Vinod Kumar's case (supra). As per the decision of the Full Bench in Vinod Kumar's case (supra), the vendees are necessary parties and should be heard before the order is passed qua declaration of surplus area in the hands of the original land- owner. The order is open to challenge in Civil Court. The case of the plaintiffs was duly covered by the decision of the Full Bench of this Court in Vinod Kumar's case (supra). The substantial questions of law that arise in this appeal stand answered accordingly. In these circumstances, first Appellate Court had erred in dismissing the suit of the plaintiffs. The trial Court had rather rightly decreed the suit of the plaintiffs. Accordingly, this appeal is allowed. The impugned judgment and decree dated 11.12.2007 passed by the first Appellate Court are set aside and the judgment and decree dated 4.2.2004 passed by the trial Court are upheld. (SABINA) JUDGE February 02, 2011 anita