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Chanan Mal Newar and ors. Vs. State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 6521 of 1974
Judge
Reported inAIR1977P& H34
ActsConstitution of India - Articles 226 and 227; Haryana Ceiling on Holdings Act, 1972 - Sections 18, 33 and 33(1); Punjab Security of Land Tenures Act, 1953 - Sections 24; Punjab Tenancy Act, 1887 - Sections 82
AppellantChanan Mal Newar and ors.
RespondentState of Haryana and ors.
Appellant Advocate Roop Chand and; J.S. Shahpuri, Advs.
Respondent Advocate H.S. Hooda,; O.P. Goyal and; Ram Rang, Advs. and;A.A
DispositionPetition partly allowed
Cases ReferredFordham v. Clagett
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........sold that land to the petitioners on january 29, 1960, for rs. 15,000 by a registered sale deed.2. surplus area proceedings were started by the collector agrarian, sirsa, against smt. rukmani devi, but she was declared a small landowner by him vide his order dated november 30, 1961. the said order-was reviewed by him vide his order dated march 10, 1964 and it was held that she was a big landowner and had 46.29 ordinary acres as surplus area. one ladhu ram, tenant of smt. rukmani devi, filed an appeal against the order of the collector, dated march 10, 1964, to the commissioner, who allowed the same and reversed the judgment of the collector. in revision against that order to the financial commissioner, it was reversed and the order of the collector dated march 10, 1964 was confirmed. the.....
Judgment:
ORDER

Rajendra Nath Mittal, J.

1. Briefly the case of the petitioners is that Smt. Rukmani Devi, respondent No. 2, was a displaced person from Bahawalpur State in Pakistan, and was allotted 38.70 Standard Acres of land in her own right in lieu of the land left by her in Pakistan. Her husband, Suraj Bhan, was allotted some land in District Hissar, Suraj Bhan died in the year 1955 and Smt. Rukmani Devi, being his widow, inherited his property. After inheritance she became owner of 44.98 Standard Acres of land. She sold an area measuring 28 Bighas and 2 Biswas for a consideration of Rs. 15,000/- to Smt. Saraswati Devi, her daughter, on May 16, 1958. Smt. Saraswati Devi sold that land to the petitioners on January 29, 1960, for Rs. 15,000 by a registered sale deed.

2. Surplus area proceedings were started by the Collector Agrarian, Sirsa, against Smt. Rukmani Devi, but she was declared a small landowner by him vide his order dated November 30, 1961. The said order-was reviewed by him vide his order dated March 10, 1964 and it was held that she was a big landowner and had 46.29 Ordinary Acres as surplus area. One Ladhu Ram, tenant of Smt. Rukmani Devi, filed an appeal against the order of the Collector, dated March 10, 1964, to the Commissioner, who allowed the same and reversed the judgment of the Collector. In revision against that order to the Financial Commissioner, it was reversed and the order of the Collector dated March 10, 1964 was confirmed. The petitioners, it is alleged, were not made parties by the Collector, to the surplus area case and were not served with notices at the time when area was declared surplus in the hands of Smt. Rukmani Devi though their names appeared in the revenue papers. Similarly they were not implead-ed as parties before the Commissioner or the Financial Commissioner.

3. Surplus area proceedings were also started against Smt. Saraswati Devi, who has since died, and the area sold by her to the petitioners was declared as surplus area by the Collector Agrarian on August 21, 1961, in her hands. The petitioners were not made parties in those proceedings also by the Collector. The petitioners, it is stated, never came to know about these proceedings, They having come to know of the order of the Collector dated. August 21, 1961, filed an appeal before the Commissioner, Ambala Division. On the basis of a compromise between the parties, the Commissioner reserved the area sold to the petitioners in the hands of Smt. Saraswati Devi and she surrendered an equivalent area from her own permissible area in village Ke-harwala to the surplus pool on June 4, 1963. Consequently he accepted the appeal. The petitioners thus, it is stated, remained in possession of the whole land purchased by them.

4. In the year 1972, the Agrarian Authorities allotted land owned by the petitioners to Des Raj and Amar Chand, respondents Nos. 7 and 8, and delivered possession of 41 Kanals and 16 Marias, out of the land purchased by the petitioners, to them on July 11, 1972. When respondents Nos. 7 and 8 were delivered possession of the land in dispute, the petitioners came to know of the fact that the area sold to them had been declared surplus in the hands of Smt. Rukmani Devi, respondent. They consequently filed an appeal to the Commissioner, Ambala Division, at Hissar, on July 30, 1972. The Commissioner, vide his order dated December 20, 1972, accepted the appeal on the ground that a notice should have been served on the petitioners as they were interested parties and remanded the case to the Collector with a direction that a fresh assessment order be passed in their presence. The Collector Agrarian, in pursuance of the order of remand, on March 15, 1973, ordered restoration of the land sold to the petitioners and declared an equal area belonging to Smt. Rukmani Devi as surplus area. He further ordered that an equal area of Rukmani Devi be allotted to respondents Nos. 7 and 8. Respondents Nos. 7 and 8, against the order of restoration of possession by the Collector, filed an appeal before the Commissioner Hissar, which was rejected by him on June 15, 1973. The aforesaid respondents went up in revision to the Financial Commissioner against the order dated June 15, 1973, who accepted the same on July 13, 1974, on the ground that the Commissioner while passing the order on December 20, 1972, went wrong as he did not take into account the fact that the Collector's order dated March 10, 1964, had been confirmed by the Financial Com-missioner, vide his order dated March 21, 1967. He took the view that the order of the Commissioner dated December 20, 1972, had to be ignored and respondents Nos. 7 and 8 were entitled to remain in possession of the property allotted to them. The Financial Commissioner, it is further alleged, observed that the petitioners could file a review petition against the order of the Financial Commissioner dated March 21, 1967, if so advised. The petitioners consequently filed a review petition against the order of the Financial Commissioner, dated March 21, 1967, which was dismissed by the Financial Commissioner on November 22, 1974, on the ground that it was not competent in view of Section 33(3) of the Haryana Ceiling on Land Holdings Act, 1972 (hereinafter referred to as the Ceiling Act). The petitioners have challenged the orders of the Financial Commissioner dated July 30, 1974 and November 22, 1974.

5. The first contention of the learned counsel for the petitioners is that the order of the Financial Commissioner, dated July 30, 1974 (Annexure P-8) is, on the face of it erroneous. He argues that the Financial Commissioner has erred in holding that the order of the Commissioner, dated December 20, 1972, was without jurisdiction and consequently it could be ignored. He also submits that the learned Financial Commissioner had erroneously ordered that the possession of the tenants settled on the land of Smt. Rukmani Devi should remain undisturbed.

6. I have considered the argument of the learned counsel, but do not find any substance in it. The facts of the case are not disputed. It is not disputed that the order of Collector, dated March 10, 1964 whereby the land of Smt. Rukmani Devi was declared surplus, was affirmed by the Financial Commissioner on March 21, 1967. Thereafter the petitioners filed an appeal against the aforesaid order of the Collector before the Commissioner who decided it on December 20, 1972, and remanded the case regarding declaration of surplus area of Smt. Rukmani Devi to the Collector. The Collector decided the matter afresh on March 15, 1973, ordered restoration of the land sold to the petitioners, to them and declared an equal area belonging to Smt. Rukmani Devi as surplus area. He also ordered that respondents Nos. 7 and 8 be allotted equal area from the other land of Smt. Rukmani Devi. Respondents Nos. 7 and 8 went up in appeal before the Commissioner, Haryana, against the order of the Collector which was rejected by him on June 15, 1973. It is not disputed before me that the order of the Commissioner dated December 20, 1972, by which he remanded the case relating to surplus area to the Collector, was without jurisdiction as the earlier order of the Collector dated March 10, 1964, against which the appeal had been filed to the Commissioner, had been confirmed by the Financial Commissioner, Haryana. It is an established proposition of law that in case an order passed by any officer is without jurisdiction, it is not necessary to set it aside and it can be ignored by the officers concerned. In tHe present case, respondents Nos. 7 and 8 were aggrieved against the order of restoration of the land to the petitioners, which had been allotted to them and they went up against that order to the Commissioner who affirmed the same. They further went up to the Financial Commissioner, who vide order dated July 30, 1974 (Annexure P-8) ignored the order of remand and ordered that the possession of the petitioners be not disturbed. The Financial Commissioner, in the circumstances of the case, in my view, rightly ignored the order of the Commissioner dated December 20, 1972, as it was without jurisdiction. The- learned counsel for the petitioners has argued that the Financial Commissioner should have either set aside the order of the Commissioner dated December 20, 1972, or affirmed the same and he could not have ignored it. The argument has not appealed to me. The reasoning of the Financial Commissioner is correct and no fault can be found with it. In the aforesaid circumstances I reject this contention of the learned counsel.

7. The second contention of the learned counsel for the petitioners is that the learned Financial Commissioner has erroneously dismissed the review petition on the ground that no proceedings for determination of surplus area were pending immediately before the commencement of the Ceiling Act and, consequently, no order could be passed on it in view of Sub-section (3) of Section 33 read with Sub-section (2) (ii) of the said section.

8. I have heard the learned counsel for the parties and given a thoughtful consideration to the arguments. In order to determine this question, it will be advantageous to set out the provisions of Section 33 of the Ceiling Act:--

'33. Repeal and saving.

(1) The provisions of the Punjab Security of Land Tenures Act, 1953, and 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), hereinafter referred to as the said enactments, shall not affect,--

(i) * * * *

(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 utilized by the State Government in accordance with the provisions of this Act;

(3) Save as provided in Sub-section (2), no authority shall pass an order in any proceeding whether instituted before or after the commencement of this Act which is inconsistent with the provisions of this Act.

A careful reading of the section shows that the Ceiling Act repeals those provisions of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the 1953 Act) which are inconsistent with its provisions. Sub-section (2) is in the nature of a proviso to Sub-section (1) and it saves the proceedings for the determination of surplus area pending immediately before the commencement of the Ceiling Act. It specifically provides that the proceedings under the 1953 Act, which were pending at the commencement of the Ceiling Act, shall be continued and disposed of in accordance with the provisions of the 1953 Act. In the present case, it is not disputed that the petitioners made an application for review under the 1953 Act. The question for determination is whether the application for review is maintainable after coming into force of Section 33. Power of review has been provided in Section 24 of the 1953 Act as well as in Section 18 of the Ceiling Act. In both the Acts it has been stated that the provisions in regard to review shall be the same as provided in Section 82 of the Punjab Tenancy Act, 1887. It is an established law that under the Punjab Tenancy Act a Court can review its order if it finds some mistake or error on the face of the record. It means that the error should be such which does not require any extraneous matter to show incorrectness of the judgment. The mistake may be of fact or law. The power of review given in the 1953 Act is not inconsistent with the provisions of the Ceiling Act. Consequently, Section 24 of the 1953 Act, which gives power of review, is not repealed by virtue of Section 33 (1) of the Ceiling Act. In the aforesaid situation, the Courts have got the power to review their judgments under the 1953 Act even after coming into force of Section 33 of the Ceiling Act.

9. The other question that arises for determination is whether the proceedings for determination of surplus area can be deemed to be pending for the purpose of review in spite of final decision of the case. It cannot be disputed that if a litigant can take any proceeding in any case, such proceeding will be considered to be pending. In this view I am fortified by the observations in Fordham v. Clagett, (1881-82) 20 Ch D 637, wherein it was held as follows :--

'What is the meaning of the word 'pending' In my opinion, it includes every insolvency in which any proceeding can by any possibility be taken. That I think is the meaning of the word 'pending'. Where the insolvent is dead and all the estate is gone it is not pending, but as long as he is alive the matter is pending in that sense. A cause is said to be pending in a Court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending. 'Pending' does not mean that it has not been tried. It may have been tried years ago. In fact, in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before, and which were still pending. Sometimes no doubt, they require a process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suits, and all such causes have been transferred to the High Court of Justice under the words 'causes which shall be pending' in the 22nd section of the Judicature Act, 1873, when the word 'pending' is used in this large sense.'

If an application for review is to be filed in any case before a Court, the case is considered to be pending till that date, upto which an aggrieved party can file such application. It may, however, be mentioned that such applications are subject to law of limitation. The same analogy applies in appeals. After taking into consideration the aforesaid circumstances, I am of the firm view that the review petition in a case is a step in the same proceeding and the proceedings for determination of surplus area shall be deemed to be pending for the purpose of review, in spite of final decision of the case.

10. In all fairness to the learned counsel for the respondents, it may be mentioned that he has strenuously argued that there are no sufficient grounds for the Financial Commissioner to review his order on merits as Shrimati Rukmani Devi had selected her land under the 1953 Act and in case she had done so, the Collector had no jurisdiction to declare such area as surplus. He further says that the Collector could not reserve the area which had been sold by Shrimati Rukmani Devi to the petitioners if she had not selected that area. On the other hand, the learned counsel for the petitioners has vehemently argued that the selection was made by the Collector and he could not declare the land sold to the petitioners as surplus area of Shrimati Rukmani Devi without serving a notice on the petitioners. He argues that the impugned order is not binding upon the petitioners as they were not parties to the proceedings.

11. It is not necessary to give any decision on the aforesaid argument. The Financial Commissioner has not decided the review petition on merits. He has dismissed it on the solitary ground that the petition for review is not maintainable in view of Section 33 of the Ceiling Act. The parties can raise the aforesaid arguments before the learned Financial Commissioner at the time when he decides the petition on merits.

12. For the reasons recorded above, I partly accept the writ petition, quash the order of the Financial Commissioner dated November 22, 1974 (Annexure P-9) and remand the case to him for deciding it on merits. No order as to costs. The parties are directed to appear before the Financial Commissioner on 15th November, 1976.


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