IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1231 of 1986 Date of Decision: 12.8.2011 State of Punjab and another. ....... Appellants through Shri Vijay Kumar Chaudhary, Assistant Advocate General, Punjab. Versus Shri Didar Singh. ...... Respondent through Shri Harsh Aggarwal, Advocate. CORAM: HON'BLE MR.JUSTICE VIJENDER SINGH MALIK .... 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? .... VIJENDER SINGH MALIK,J. This regular second appeal has been brought by the defendants against the judgment and decree dated 31.1.1986 passed by Additional District Judge (III), Sangrur vide which the appeal of Didar Singh, plaintiff had been accepted. The proceedings between the parties commenced by way of a suit filed by Didar Singh for declaration to the effect that no land held by him had been surplus and R.S.A.No.1231 of 1986 -2- .... that Collector, Agrarian, Sangrur had assessed a part of his land as surplus on wrong assessment of valuation of his land. He had challenged the orders of the Collector, Agrarian and the Appellate Authority in respect of the same and had sought permanent injunction restraining the defendants from allotting the land measuring 47 kanals 2 marlas situated in the area of village Ubhawal detailed in the head note of the plaint to any one else as also from taking possession thereof. The case set up by Didar Singh is as under:- The plaintiff is owner of the land measuring 340 kanals 16 marlas situated in the revenue estate of village Ubhawal as per jamabandi for the year 1968-69. Out of this land, land measuring 41 kanals 6 marlas has been chahi, land measuring 108 kanals 5 marlas has been nehri and land measuring 191 kanals 19 marlas has been barani. No land in his possession/ ownership has been surplus. He filed necessary application before Collector, Agrarian, Sangrur under the Punjab Land Reforms Act,1972 (for short “the Act”). However, after requisite enquiry, the Collector held 3.40 hectares of his land as surplus vide order dated 30.6.1976. His appeal before the Commissioner, Patiala Division, Patiala succeeded on 20.12.1978 and the case was remanded to the Collector, Agrarian for fresh decision. Vide order dated 27.1.1981, the Collector again declared 1.84.77 hectares of land of the plaintiff as surplus. The plaintiff again went in R.S.A.No.1231 of 1986 -3- .... appeal before the Commissioner, Patiala Division, Patiala where he raised the plea that value of his land has been wrongly assessed on the ground that he had installed a 5-horse power electric motor in his fields for irrigating the same. The Commissioner accepted his appeal and again remanded the case back. Now, the Collector, vide his order dated 15.10.1981, had held that the land measuring 1.66.62 hectares was surplus with the plaintiff. The Collector, accordingly, issued notice under section 9 of the Act on 27.1.1982 for delivering possession of the said land. The plaintiff has questioned the orders dated 19.8.1981, 15.10.1981 and 27.1.1982 as illegal and not binding on him. According to him, the authorities under the Act did not take into consideration the khasra girdawari entries for the crops of rabi and kharif, 1970 while assessing the value of the land. He has also claimed that the authorities have wrongly held him to have installed a 5-horse power electric motor in his fields for irrigating the same. According to him, he has been irrigating the land by way of a Persian Wheel. Therefore, he has prayed for the relief. On notice, the defendants appeared and contested the claim of the plaintiff. Objections regarding maintainability, want of notice under section 80 of the C.P.C. and want of jurisdiction with the civil court under section 21 of the Act have been taken. It is alleged that the plaintiff did not file any appeal or revision against the R.S.A.No.1231 of 1986 -4- .... impugned orders and as such, the suit is liable to be dismissed. On merits, the orders of the Collector, Agrarian and the Commissioner are claimed to be perfectly legal and in accordance with the provisions of law. The value of the land held by the plaintiff is said to be correctly assessed in view of the provisions of the Punjab Land Reforms Rules,1973 (for brevity, `the Rules'). It is alleged that the plaintiff was irrigating his land by 5-horse power electric motor and that he could not prove that the said motor was installed after the appointed day in spite of a number of opportunities given to him. It is also alleged that possession of the land has been taken by the State vide rapat rojnamacha wakiati no.466 dated 3.7.1982 and the Collector is fully competent to allot the said land. On the pleadings of the parties, the following issues were framed:- 1. Whether the civil court has got jurisdiction to entertain this suit?OPP 2. Whether the suit in the present form is not maintainable?OPD 3. Whether the plaintiff served a valid notice under section 80 of C.P.C. on the defendants before the filing of the present suit?OPP 4. Whether the order of Agrarian Department dated R.S.A.No.1231 of 1986 -5- .... 19.8.1981, 15.10.1981 and 27.1.1982 are illegal, void and without jurisdiction as alleged?OPP 5. Whether the plaintiff is entitled to the injunction prayed for?OPP 6. Relief. Taking evidence of the parties, learned trial court took up issue no.4 in the beginning and has concluded under the said issue that the impugned orders were perfectly legal and passed in accordance with law and that the same are binding on the plaintiff. The civil court was, however, found to have jurisdiction to try the suit under issue no.1. Under issue no.2, the suit is returned as maintainable in the present form. Under issue no.3, the plaintiff was found to have served the defendants with notice under section 80 of the C.P.C. Under issue no.5, the plaintiff was held not entitled to the injunction as prayed for. In the result, the suit failed and has been dismissed with costs vide the judgment and decree dated 28.5.1985. In the appeal preferred by Didar Singh, learned Additional District Judge(III), Sangrur, vide his judgment and decree dated 31.1.1986, has set aside the judgment and decree passed by the trial court. Learned first appellate court has decreed the suit of the plaintiff for declaration to the effect that the land of the plaintiff has not been correctly assessed for the purpose of finding out surplus area R.S.A.No.1231 of 1986 -6- .... with him. Consequently, a decree for permanent injunction was granted in favour of the plaintiff and against the defendants restraining the latter from allotting the land measuring 47 kanals 2 marlas to any body else and taking possession thereof till the assessment of the land has been correctly made by the agrarian authorities on the basis of crops of 1970 ignoring the fact that there was any electric motor installed by the plaintiff in that land. Aggrieved by the aforesaid judgment and decree of the first appellate court, the defendants have brought this appeal. I have heard Shri Vijay Kumar Chaudhary, learned Assistant Advocate General, Punjab for the appellants and Shri Harsh Aggrawal, learned counsel for the respondent. I have gone through the record carefully. The substantial question of law involved in this appeal is as to “whether the civil court has got jurisdiction to entertain and try the present suit?” Learned Assistant Advocate General has submitted that the jurisdiction of the civil court to entertain this suit is barred under section 21 of the Act. According to him, the authorities unde the Act are competent to decide the question involved in this case and their decision cannot be called in question before the civil court. In this regard, he has cited before me a Division Bench judgment of this R.S.A.No.1231 of 1986 -7- .... court in a case reported as Ram Gopal Versus State of Punjab, 2002(1) R.C.R.(Civil) 30 (P&H). He has also cited before me another decision of this Court in The Punjab State and others Versus Shri Chanan Singh and others, 2010 (2) P.L.R. 812 (P&H). Both these judgments are on the provisions of section 21(1) of the Act and the ratio of these decisions support the submission made by learned Assistant Advocate General. On the other hand, learned counsel for the respondent has submitted that learned first appellate court has not set aside the order of the Collector. According to him, learned first appellate court has only directed the authorities under the Act to re-assess the land of Didar Singh to find out any surplus area with him. He has submitted that for the purpose of determining the irrigated and unirrigated land, rule 12 of the Rules lays down that the relevant revenue record for finding out whether the land is irrigated or unirrigated shall be the entries in the khasra girdawaris recorded in the year 1970. According to him, Collector, Agrarian did not take into account the entries of khasra girdawari for the crops of the year 1970 and, therefore, has wrongly assessed the surplus area in his hands. Learned counsel for the respondent has further submitted that the respondent has no surplus area with him. He has also submitted that the State is in this appeal for the last twenty five years and in the meanwhile, it could R.S.A.No.1231 of 1986 -8- .... have very well assessed the surplus area of Didar Singh as per the directions of learned first appellate court. Learned counsel for the respondent has submitted that the jurisdiction of the civil court to entertain and try this suit is not barred. He has cited before me a number of decisions on this point, which are reported as Santa Singh (Dead) Versus State of Punjab, 1972 Revenue Law Reporter 249 (P&H); State of Haryana and ors. Versus Vinod Kumar and ors., 1986 (1) P.L.R. 222 (P&H); Municipal Committee, Bathinda Versus Krishan Lal, 1986 (2) P.L.R. 483 (P&H); Jagat Singh Versus Punjab State, 1992(1) P.L.R. 677 (P&H); Bhag Mal and others Versus Ram Murti and others, 2005(1) P.L.R. 116 (P&H); Giani Ram and others Versus Ompati and others, 2008(1) R.C.R. (Civil) 619 (P&H); Haryana Urban Development Authority and another Versus Vipin Sharma and another, 2009(3) R.C.R. (Civil) 695 (P&H); Joginder Nath alias Joginder Pal Versus Sat Pal and others, 2010(2) R.C.R. (Civil) 217 (P&H); and Sarupa (died)) through LRs and others Versus The Panchayat Akhara and others, 2010(5) R.C.R. (Civil) 751 (P&H). The Collector, Agrarian had asked the plaintiff- respondent several times to prove that there was no such electric motor available with him for irrigating the land before the appointed day. The Collector, Agrarian has not over-stepped his jurisdiction. The decision is there under the provisions of the Act itself. An order made R.S.A.No.1231 of 1986 -9- .... under the Act cannot be called in question in any court. The plaintiff- respondent instead of questioning the decision of the Collector, Agrarian before the authorities under the Act or challenging the same before this court in writ jurisdiction, has filed the suit which is barred by the provisions of section 21 of the Act. The case is covered by the ratio of Ram Gopal's and Chanan Singh's cases (supra). One of the submissions of learned counsel for the respondent has been that no plea had been raised by the appellants before the first appellate court challenging the jurisdiction of the civil court. According to him, the State could not make a submission on this point in the regular second appeal. The State is taking the plea in this regard right from the beginning. There is a preliminary objection to this effect in the written statement. The grounds of appeal also carry a plea in this regard. In the face of the same, it cannot be said that this plea was never taken up or that it had been given up. So, I cannot agree with the learned counsel for the respondent that this submission cannot be made at the stage of the second appeal. None of the aforementioned decisions cited by learned counsel for the respondent applies to the facts of this case. In Santa Singh's case (supra), the Collector, while making decision under the Pepsu Tenancy and Agricultural Lands Act,1955, was found to have over-stepped his jurisdiction under the said Act. In that event, the bar R.S.A.No.1231 of 1986 -10- .... of section 47 of the said Act was held not to become operative. In Vinod Kumar's case (supra), the Collector did not give opportunity of hearing to the landowners as per the provisions of rule 6 of the Punjab Security of Land Tenures Rules,1956. The order itself was held a nullity and the suit challenging the validity of such an order was held maintainable despite there being provisions of section 25 of the Punjab Security of Land Tenures Act,1953 excluding the jurisdiction of the civil court. Similarly, in other cases also, either the decision had not been made under the provisions of the statute giving power to the Collector or the authorities concerned had over-stepped their jurisdiction or had violated such principles of natural justice as were sufficient to render their decisions nullity. In these circumstances, none of the afore-mentioned decisions stands attracted to the facts of this case. On the basis of aforesaid conclusion, the substantial question of law framed as above is decided in favour of the appellants and against the respondent holding that the civil court has no jurisdiction to try the suit. While parting with his submissions, learned counsel for the respondent has submitted that in case this appeal is allowed, the respondent may be given opportunity to approach the authorities R.S.A.No.1231 of 1986 -11- .... under the Act. No permission of this court is required by the respondent to approach the authorities under the Act if he is otherwise entitled to do so. Hence, allowing the appeal, the judgment and decree passed by learned first appellate court are set aside and the judgment and decree of the trial court dismissing the suit are restored. The parties are left to bear their own costs. August 12,2011 ( VIJENDER SINGH MALIK) “SCM” JUDGE