1. This is letters patent appeal by the State of Punjab and others against His Highness Raja Sir Harinder Singh Brar and the Pepsu Land Commission respectively impleaded as respondents Nos. 1 and 2 from the judgment of the single Judge dated March 20, 1967 quashing the order for respondent No. 2 dated October 30, 1962.
2. Consequent on merger on July, 15, 1948 in Patiala & East Punjab States Union of Faridkot State of which respondent No. 1 was the ruler he was left with area of 12,000 ghumaons of agricultural land as his personal property. The Government notified accordingly. The Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter called the principal Act) came into force on March 6, 1955. On October 3, 1956, the principal Act was amended by the Pepsu Tenancy and Agricultural Lands (Amendment) Act, No. XV of 1956. Section 32-A inserted in the principal Act prescribed ceiling on holdings of agricultural land. Section 32-K dealt with the exemptions from the fixation of ceiling prescribed by Section 32-A. Under Rule 31 of the Pepsu Tenancy and Agricultural Land Rules, 1958, (hereinafter called the Rules), framed under the principal Act, respondent No. 1 made application claiming exemption under various clauses of sub-section (1) of Section 32-K of the Act. That claim of exemption of respondent No. 1 was referred to respondent No. 2. Respondent No. 2 held enquiry to determine the claim of respondent No. 1 and granted exemption by order dated January 18, 1962 for 324 acres 11 Kanals and 18 marlas as detailed below:--
(1) Under Section 32-K (1)(i) in respect of 278 acres, 5 kanals and 19 marlas of land.
(2) Under Section 32-K (1)(ii) in respect of 34 acres 5 Kanals and 19 marlas of land.
(3) Under Section 32-K (1)(ii) in respect of 12 acres of land.
By that order, respondent No. 2 directed that in respect of exemption claimed under clause (iv) of Section 32-K(1), separate order will be made later. Prior to the passing of that order by respondent No. 2, Supreme Court by its judgment dated July 27, 1962 given in S. Shivdev Singh v. State of Punjab reported in AIR 1963 SC 365, held that R. 31 of the Rules was ultra vires Section 32-K. In the face of that judgment of the Supreme Court, respondent No. 2 did not follow the provisions of Rule 31 for determination of the question of exemption by allotting marks as devised by that rule. The question of exemption under clause (iv) of sub-section (1) of Section 32-K was determined by order dated October 30, 1962 by applying general and broad principles to the facts of the case. Area measuring 438 acres 10 Kanal 16 marlas was found to fall under clause (iv). Then there came into force on December 17, 1962 Pepsu Tenancy and Agricultural Lands (Second amendment) Act, No. XXVII of 1962 amending the provisions of the principal Act. The language of Rule 31 of the Rules was incorporated in Section 5 of Act No. XXVII of 1962 and that Section was made applicable with the retrospective effect by making it a deeming provision. There was filed a writ petition by respondent No. 1 on April 17, 1963 for issue of writ of certiorari to quash the order of respondent No. 2 dated October 30, 1962 seeking exemption of 1569 acres 1 kanal 16 marlas from the limit of ceiling under clause (iv). By enactment of Pepsu Act No. XXVII of 1962, Rule 31 in the form of Section 5 of that Act was inserted. Thus the language of Rule 31 declared ultra vires section 32-K of the Act by the Supreme Court became law in the garb of Section 5 with retrospective effect from the date the principal Act came into force. The learned Single Judge directed that in the light of this deeming provision respondent No. 2 should determine afresh the claim of respondent No. 1 for exemption under clause (iv) of sub-section (1) of Section 32-K.
3. In so far as the order of respondent No. 2 dated October 30, 1962 is concerned, the appellants have not challenged its correctness. It is, however, contended that the area of 324 acres 11 Kanals and 18 marlas as determined by order dated January 18, 1962 to be exempt under clauses (i), (ii) and (vi) of sub-section (1) of Section 32-K also requires reconsideration by respondent No. 2. In the return filed in reply to the writ petition on behalf of respondent No. 1, this point now sought to be urged in the Letters Patent Appeal was not raised. Not only the appellants did not plead to that effect in their return but also do not appear to have raised this point at, the time of arguments. Had that been urged even at the time of arguments, the learned single Judge must have mentioned to that effect. No affidavit has been filed on behalf of the appellants that this point was sought to be raised at the time of arguments. This appeal is a letters patent appeal. The appellants cannot now be allowed to agitate for the first time this point, which they never cared either to plead in their return or to raise in course of arguments before the learned Single Judge. They could invoke the writ jurisdiction of this Court seeking relief to have that order quashed. They have not done so. They have accepted the finality of the order of exemption passed by respondent No. 2 in respect of that area of 324 acres 11 kanals 18 marlas as determined by it. It is not open to the appellants to come round indirectly through the medium of this appeal and to have the matter reopened.
4. In the result, the appeal fails and is disallowed. There will be no order as to costs.
5. Appeal dismissed.