1. The point involved in this petition on first impressions seems to be covered by judicial authority and yet turns to be intricatingly embroiled requiring analytical examinations.
2. The point in Civil Writ Petitions Nos. 2074 and 1096 of 1977 which can conveniently be disposed of by a single judgment. Facts, however, need be taken note of in Civil Writ Petition No. 2074 of 1977. At this juncture, it may be focussed that Civil Writ Petition No. 2096 of 1977 has been preferred by Machhi Singh, the landowner, whose land is involved in the case.
3. In Civil Writ Petition No. 2074 of 1977. Smt. Kartar Kaur, the petitioners. is the daughter as also a transferee from Machhi Singh, who is a displaced person from west Pakistan. Machhi Singh was allotted 52 standard acres and 13 units of agricultural land in village Nazadalla Kalan,. Tehsil and District Sirsa, somewhere in the year 1949. In August 1958 (not before 31st July, 1958), he transferred 1/3rd share of his total holding in favor of his daughter, the petitioners. Surplus are proceedings under the Punjab Security of Land Tenures Act were commenced against Machhi Singh somewhere in the year 1960 and were culminated by the order of the Collector on 30th September, 1960, who deducted 2. 62 Standard acres (8.37 ordinary acres) from the holding of Machhi Singh on account of the same having been acquired by the State. Though the area was reduced to 49. 51 standard acres, yet in the terms of ordinary acreage, it exceeded 100 acres. And thus the Collector leaving 100 acres as permissible are of Machhi Singh, declared the rest as surplus.
4. Machhi Singh seemingly did not take up the matter in appeal. Since Machhi Singh had earlier sold some land to Sunder Dass and two others on the avowal that the sold area would form part of the permissible are and had yet been put in the surplus pool by the Collector, the vendees filed an appeal before the Commissioner, Ambala Division, Ambala. The said appeal was accepted and the matter was remitted back to the Collector to discern whether the choice need be varied in order to satisfy the vendees. However, at the time of the disposal of the appeal, the Commissioner expressed doubts as to whether the area of a displaced, person--landowner be reckoned in ordinary acres when he was allotted land in standard acres. The matter, on remand, was again taken up by the Collector on 21st June, 1963. The vendees were given relief as prayed by them, but the area of Machhi Singh was again reckoned in terms of ordinary acres despite the doubt expressed by the Commissioner in that regard. And yet the doubt of the Commissioner was not and ordinary one, for the matter was engaging attention of the higher rechelons of judiciary as to the correct measure of reckoning the holding of the displaced persons vis-a-vis the locals. The Court in a Full Bench judgment reported in Khan Chand v. State of Punjab, 1966 Pun LJ 138: (AIR 1966 Punj 423), held that for displaced persons the area need to be reckoned in terms of standard acreage. Had this ratio been applied to the case of Machhi Singh, he would have had no surplus area at all, for his holding stood at the time of the declaration of the surplus area, ignoring all transfers made by him, at the level of 49.51 standard acres and thus he was entitled to his entire area as his permissible area involving no surrender of land to the State. The Full Bench decision was upheld by the Supreme Court in State of Haryana v. Jiwan Singh, 1975 Pun LJ 446: (AIR 1976 SC 63).
5. To catch the thread, the Collector, Surplus Area, reckoned the holding of Machhi Singh in terms of ordinary acreage had declared 59. 44 ordinary acres as surplus. This time the petitioners, as transferee from Machhi Singh, filed an appeal to the Commissioner and was able to persuade him to apply the law as laid down by the Full Bench with regard to the reckoning of the area in the hand of Machhi Singh. Though the appeal was filed by the petitioners delayedly on 15th April, 1975, but seemingly she was able to persuade the Commissioner to entertain it. Ultimately the appeal was allowed on 7th April, 1976 vide order Annexure P-3 in which it was held that Machhi Singh was entitled to retain the entire area and had no land surrender.
6. After the order of the Collector dated 21st June, 1963 (Annexure P-2) it appears that some surplus land was utilised in favour of respondent 4 Sardara. He filed a revision petition before the Financial Commissioner, Haryana, against the order of the Commissioner dt. 7th April, 1976, and objected before him that the appeal before the Commissioner preferred by the petitioner was incompetent, as after the passing of the Haryana Ceiling on Land Holdings Act, 1972, the appeal could not be entertained by the Commissioner at all. Shri V. P. Johar, Financial Commissioner, accepted the revision by focussing his attention to the only aspect as to whether 'proceedings for the determination of the surplus area 'were or were not pending at the time of the commencement of the aforesaid Act. And since factually on that date no proceedings were pending, as the appeal had been instituted much later, he took the view that it was not the intention of sub-section (2)(ii) of 33 of the aforesaid Act, that cases decided and finalised several years ago, should be reopened long after the period of limitation for filing an appeal had expired so as to bring them under the category of 'pending proceedings' mentioned in the aforesaid provision. He thus concluded as follows:--
'........ The pending proceedings visualised in S. 33(2)(ii) must be shown to be concrete proceedings positively pending before the enforcement of the 1972 Act and cannot conceivably be brought into existence retrospectively by the subsequent action of any aggrieved party, in order to fill up the vacuum existing at the commencement of the said Act'.
It is this view of the Financial Commissioner, which is subject of challenge in this petition.
7. Mr. Ram Rang, learned counsel for the petitioners, has strongly relied on the decision of R. N. Mittal, J. in Chanan Mal Newar v. State of Haryana, 1977 Pun LJ 81: (AIR 1977 Punj & Har 34), to contend that the words 'Proceedings for determination of surplus area pending' have been interpreted to mean those proceedings if a litigant can take in any case and then such proceedings shall be considered to be pending within the meaning of S. 33(2) (ii) of the aforesaid Act. That was a case in which surplus area had been declared and on the date of the commencement of the 1972 Act, factually no proceedings were pending, but later a review petition was filed and entertained by the Financial Commissioner. It is in these Circumstances that R. N. Mittal, J. took the firm view that the review petition in case is a step in the same proceeding and the proceeding for determination of surplus area shall be deemed to be pending for the purpose of review in spite of final decision of the case. Reliance was placed by the Hon'ble Judge on the observations of Jessel, M. R. in Fordham v. Clagett, (1882) 20 Ch D 637. They would be worth quoting here to appreciate the grip there of.
'.............. What is the meaning of the word 'pending'? In my opinion, it includes every insolvency in which any proceeding can be 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 sad to be pending in 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'.
The view in Chanan Mal Newar's case (supra) was in an analogous context adopted approvingly by I. S. Tiwana, J. in Ishar Singh V. State of Punjab, 1981 Pun LJ 112: (AIR 1981 NOC 182). That was a case in which a question arose whether the proceedings pending before the Financial Commissioner, Punjab in revision, in a surplus area matter, would affect land situate in Haryana, when the proceedings initially had been undertaken when the State of Punjab was undivided. In the context of S. 92 of the Punjab State Reorganisation Act and S. 33 of the Act under review, it was held that till a party to a litigation can legally take up proceedings under the provisions of a statute, the proceedings under that statue would be taken to be pending till the matter is finally disposed of. It is in this light that it was held that the proceedings before the Financial Commissioner, Punjab, though filed later, tantamounted to pendency of proceedings on the date of coming into force of the Punjab State Reorganisation Act. And sequelly the Haryana State was automatically deemed to be party before the Financial Commissioner, Punjab. So that the decision of the Financial Commissioner, Punjab, would be binding on the authorities concerned in the State of Haryana. I was persuaded to give verdict in favour of the petitioners on the basis of the aforesaid two decisions and I saw no reason why I should not. But before that, the objection of Mr. H. S. Hooda, learned counsel for respondent 4, needed to be disposed of.
8. According to Mr. Hooda, the word 'immediately' has been missed by both the Hon'ble Single Judges, whose decisions would require reconsideration. At this stage, it language of S. 33 be usefully taken note of:--'33. (1) The provisions of the Punjab Security of Land Tenures Act, 1953, and the Pepsu Tenancy and Agricultural Lands Act, 1955. which are consistent 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) the applications for the purchase of land under u/s. 18 of the Punjab Law or S. 22 of the Pepsu Law, as the case may be, pending immediately before the commencement of this Act, which shall be disposed of as if this Act had not been passed;
(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 utilised by, the State Government in accordance with the provisions of this Act;
(iii) the revisional power of the Financial Commissioner under S. 24 of the Punjab Law or under sub-section (3) of S. 39 of the Pepsu law, as the case may, be, shall be exercised as if this Act had not been passed; and the area declared surplus in exercise of such revisional power shall vest in, and be utilized by, the State Government in accordance with the provisions of this Act;
(iv) the power exercisable under S. 5-C of the Punjab Law or under S. 32-BB of the Pepsu Law, as the case may be, shall be exercised as if this Act had not been passed; and the area determined surplus in exercise of such power shall vest in, and be utilized by, the State Government in accordance with the provisions of this Act:
Provided that the powers of the Pepsu Land Commission under the Pepsu law shall vest in, and be exercised by, the Collector of the district concerned.
(3) Save as provided in sub-s. (2) no authority shall pass on order in any proceedings whether instituted before or after the commencement of this Act which is inconsistent with the provisions of this Act'.
It also deserves pointed noticing that Cls. (iii) and (iv) or sub-s. (2) were inserted on 3rd May 1977 by Haryana Act XIV of 1977. Prior to that, only clauses (I) and (ii) existed in sub-section (2). R. N. Mittal, J. had interpreted Clause (ii) and based his decision on the word 'pending' in the light of the decision of the Chancery Division afore quoted. It does seem to me that the word 'immediately' was not pointedly adverted to and perhaps this word has a nexus with some contiguity of time to the commencement of the Act. This aspect, however, need not be stretched any farther, for, whatever was the interpretation to the provisions put by this Court, neither the state of Haryana took the matter in Letters Patent Appeal, nor did the State Legislature step in to take any legislative measure to undo the interpretation. The decision was rendered by R. N. Mittal, J. on 15th Oct. 1976; yet nearly seven months later Clause (iii) in sub-s. (2) was inserted, to assert the revisional power of the Financial Commissioner, already existing and in that exercise it was to be treated as if the 1972 Act had not been passed. That power could obviously be exercised at any time; in other words even when no proceedings were pending immediately before the commencement of the Act. Surplus area proceedings when originally initiate before the Collector and are finalised in time, only established that a cause is afoot, and if in that cause an appeal is taken to the Collector, it is a continuation of the same proceedings, for that is the processful law of this country. See in this connection Lachmeshwar prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5. So would be the result in a review as per R. N. Mittal, J. and in revision by I. S. Tiwana, I.
9. It is also one of the cardinal principles of civil jurisprudence that the right of appeal is a vested right and such a right to enter the superior Court occurs to the litigant and exists as on and from the date the lis commences. And although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. Of course, a vested right of appeal can be taken away by a subsequent enactment only if it so provides expressly or by necessary intendment and not otherwise. Cognizant of these jurisprudential principles, the reason is not far to seek that the Legislature in its wisdom thought of introducing Clause (ii) in sub-section (2) so as t provide forum of revision before the Financial Commissioner, irrespective of the fact that on the date of the commencement of the Act immediately before or remotely, factually no proceeding was pending. It is equally not difficult to discern that the Legislature in letting the view of R. N. Mittal, J. prevail, conceded the existence of the right of appeal by adding explainingly the right of revision.
10. The matter can be looked up from another angle also. Surplus area under the Punjab Security of Land Tenures Act, under which this case arises, did not vest in the State but rather was put at its disposal for utilisation. The landowner continued to be landowner thereof, subject to receiving resettlement of tenants at the instance of the State. It is a different matter that these settled tenants ultimately acquired rights of their own. Their right to purchase the area allotted to them, after the expiry of the statutory period, was protected under S. 18 of the said Act. The landowner was entitled to the produce of the land from the resettled tenants and thus in a sense if could not be said that surplus area proceedings had been concluded to the finale. In the nature of things, it was a continuous cycle till surplus area ceased to be surplus are vis-a-vis a particular landowner. In that sense, even proceedings would be pending, but so far as the order of determination of surplus area is concerned, that became final only if no appeal was taken against it. Now the right of appeal being a substantive right could be availed of by the appealing landowner subject to the statutory requirements governing the subject. The law of limitation entering the field to the appeal does not in any event take away that vested right. If the appeal became time barred, it was only the remedy which was barred and not the right. Thus, it is for the appellate Court to see in a particular case, whether a time barred appeal should be entertained or not. Condoning or not condoning the delay in filing the appeal is a quasi-judicial function and discretion is exercised in that regard judicially. There is no gainsaying the fact that an appeal under the Punjab Security of Land Tenures Act is entertainable under S. 80 of the Punjab Tenancy Act and limitation prescribed for the purpose under S. 81 thereof is extendable with the aid of S. 5 of the Limitation Act. Thus, the conclusion of the Financial Commissioner, afore extracted, has no legal basis for it is oblivious of the aforesaid provisions. When an appellate Court entertains a time-barred appeal, it brings in no retrospectively. All what it does is, it re-hears the cause as it was in the Court of the first instance. There is no vacuum to fill, for it is a continuous process till the proceedings come to finality. The view of the Financial Commissioner equally has no legal basis that factually proceedings must be pending immediately before the commencement of the Act, for, proceedings in contemplation in exercise of the rights conferred under the law, are also within the compass of that expression. I am in respectful agreement with the view expressed by R. N. Mittal, J. in Chanan Mal Newar's case, (AIR 1977 Punj & Har 34) (supra) and by I. S. Tiwana, J. in Ishar Singh's case, (AIR 1981 NOC 182) (supra) for the foregoing discussion.
11. For the view above taken, these petitioners merit acceptance, the order of the Financial Commissioner dt. 12th Oct. 1976 (Annexure P-5 in CWP No. 2074 of 1977) is hereby quashed, and the matter is remitted back to him for re-decision of the case but only in the sphere of the rights of Sardara tenant, if any, to his resettlement or otherwise, as justice and equity may warrant in the Circumstances. The order of the Commissioner dt. 7th April, 1976 (Annexure P-3) is restored in so far as it establishes the status of Machhi Singh to be small landowner, for there is no escape to that conclusion in view of the clear statutory provisions and judicial pronouncements in Khan Chand's case, (AIR 1966 Punj 423) (FB) (supra) and Jiwan Singh's case. (AIR 1976 SC 63) (supra).
12. Parties through their counsel are directed to put in appearance before the Financial Commissioner for the purpose on Jan 16, 1985.
13. Petition allowed.