Surja Vs. Hardeva & Ors [1968] INSC
252 (17 October 1968)
17/10/1968 SIKRI, S.M.
SIKRI, S.M.
BACHAWAT, R.S.
CITATION: 1970 AIR 1193 1969 SCR (2) 448
ACT:
Punjab Security of Land Tenures Act (Punj. 10
of 1953) ss.1 and 24--Land sought to be purchased by tenant--Land reserved of
selected--Whether a question of jurisdiction- Revisional powers of Financial
Commissioner.
HEADNOTE:
The appellant a tenant of. the respondent l(a
big, land- owner). applied. for purchase of the land cultivated by him under s.
18 of the Punjab Security of Land Tenures Act, 1953 alleging that he had been
in possession of the land for more than. six years and the land was outside the
reserved area of the-land-owner. The respondent alleged. that the land was
reserved. The Assistant Collector .held that the appellant was entitled. to
purchase the land'. The respondent filed an appeal t the Collector. The
Collector dismissed the appeal. The responder then filed a revision to the
Commissioner. While the revision was pending the Financial Commissioner gave a
decision in another matter that a selection by land-owner under s2 5B(1) for
permissible area under the Act had the same force as.' Reservation under s. 5,
of the Act. There respondent thereupon filed an-application stating that the entire
land dispute was included in the permissible area selected by him under s. 5-B
and as this disentitled the tenant from purchasing the land prayed that he may
be allowed to raise this plea which involved a question of jurisdiction. The
Commissioner satisfied himself that the selection document was filed within
time and felt that the land could not purchased and submitted the case to the
Financial Commissioner with the recommendation that the. revision be accepted.
The Financial Commissioner however dismissed the revision holding that as the
respondent had not put the plea of selection before Assistant Collector or
Collect he could not be allowed to do so at that stage. The respondent filed a
petition in the High Court and the High Court allowed the petitioning that the
Financial Commissioner should have accepted the recommendation made by the
Commissioner.
In appeal this Court,
HELD: The Financial Commissioner should have
gone into question whether Commissioner's report was acceptable or not on
merits The question whether the land sought to be purchased by the appellant
was part of the reserved or selected area was a jurisdictional f Under s. 18 of
the Act a tenant is only entitled to purchase land is not included in the
reserved or selected area of the land-low Under s. 18(2) the Assistant
Collector is only authorized to determine the value .of the land after making
such enquiries as he thinks fit is not authorized expressly to go into the
question whether the sought to be purchased is included in the reserved or
selected are the land-owner or not. But he should go into these questions be
embarking or determining the price and by wrongly deciding. that.
449 he cannot finally confer on himself
jurisdiction to deal with the matter. The revisional power of the Financial
Commissioner under s. 24 of the Act read with s. 84 of the Tenancy Act being
the same as that of the High Court in exercise of that power the Financial
Commissioner had jurisdiction to go into the question whether the Assistant
Collector or the Collector had rightly assumed jurisdiction.
[453 E--G] As the question whether the
selection by the land-owner was made in time and whether it was genuine and
valid had to be decided the matter must be remanded to the Financial
Commissioner for decision on these points.
Chaube Jagdish Prasad v. Chaturvedi, [1959]
Supp. 1 S.C.R. 733, 746 and Jagannath Ramchandra Datar v. Dattaraya Balwant
Hingmire, C.A. No. 585 of 1964 dated 9-9-1966, followed.
Rai Brij Raj Krishna v.S.K. Shaw [1951]
S.C.R. 145, Queen v. Commissioners for Special Purposes of Income tax, 21
Q.B.D. 313 and Colonial Bank of Australia v. Willan L.R.
5 P.C. 417, held inapplicable.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 778 of 1966.
Appeal by special leave from the order, dated
May 25, 1965 of the Punjab High Court in Letters Patent Appeal No.
146 of 1965.
S.V. Gupte and Naunit Lal, for the appellant.
A.K. Sen, S.C. Mohatta and A.D. Mathur, for
respondent No 1.
V. C. Mahajan and R.N. Sachthey, for
respondent Nos. 2, 3 and 4.
The Judgment of the 'Court was delivered by
Sikri, J. This appeal by special leave is directed against the judgment and
order of the High Court of Punjab in Letters. Patent Appeal No. 146 of 1965
whereby the High Court dismissed in limine the Letters Patent Appeal filed by
the appellant Surja against the judgment of the learned Single Judge allowing
the writ petition filed by the respondent, Hardeva. .
The relevant facts for determining the points
raised before us are as follows; Hardeva, respondent before us, is a big
landlord of village Panniwala Mota in Sirsa Tahsil of Hissar District. Surja,
the appellant, was an old tenant of Hardeva and had been cultivating the land
in dispute since about 1949. Section 18 of the Punjab Security of Land Tenures
Act, 1953 (Punj..Act X of 1953)-hereinafter referred to as the Act--entitles a
tenant of a land-owner other than a small land-owner to purchase from the
land-owner .the land held by him, but not included in the reserved area of the
land-owner if he satisfies the conditions laid down in that section. Section
18(1) & (2) may be set out.
450 "18(1) Notwithstanding anything to
the contrary 'contained in any law, usage or contract, a tenant of a land-owner
other than a small land-owner- (i) who has been in continuous occupation of the
land comprised in his tenancy for a minimum period of six years, or (ii) who
has been restored to his tenancy under the provisions of this Act and whose
periods of continuous occupation of the laud comprised in his tenancy
immediately before ejectment and immediately after restoration of his tenancy
together amounts to six years or more, or (iii) who was ejected from his
tenancy after the 14th day of August 1947, and before the commencement of this
Act, and who was in continuous occupation of the land comprised in his tenancy
for a period of six years or ,more immediately before his ejectment, shall be
entitled to purchase from the land-owner the land so held by him but not
included in the reserved area of the land-owner, in the case of a tenant
falling within clause (i) or clause (ii) at any time, and in the case of a
tenant falling within clause (iii)' within a period of one year from the date
of commencement of this Act;
Provided that no tenant referred to in this
subsection shall be entitled to exercise any such fight in respect of the land
or any portion thereof if he had sublet the land or the portion, as the case
may be, to any other person during any period of his continuous occupation,
unless during that period the tenant was suffering from a legal disability or
physical infirmity, or, if a woman, was a widow or was unmarried;
Provided further that if the land. intended
to be purchased is held by another tenant who is entitled to preempt the sale
under the next preceding section, and who is not 'accepted by the purchasing
tenant, the tenant in actual occupation shall have the right to pre-empt the
sale.
(2) A tenant desirous of purchasing land
under sub- section (1) shall make an application in writing w an Assistant
Collector of the First Grade having jurisdiction over the land concerned, and
the-Assistant Collector, after giving notice to the land-over and to all other
persons interested in the land and after making such inquiry as he thinks fit,
shall. determine the value of 451 the land which shall be the average of the
prices obtaining for similar land in the locality during 10 years immediately
preceding the date on which the application is made." Surja accordingly
applied on August 5, 1957, to the Collect or Hissar District, stating that he
intended to purchase the land in dispute and that the land is outside the
reserved area of the landowner. He further alleged that he had been in
possession of the land for the last eight years. Hardeva in his written
statement, inter alia, stated that Surja was in possession of the land only for
three or four years. He alleged that Surja had already 150 bighas of cultivable
land. He further stated that the land is reserved and for that reason Surja was
not entitled to purchase it. In his evidence before the Assistant Collector
given on March 25, 1958, Hardeva deposed:
"The land is reserved. I do not know
whether the land in dispute is reserved or not.", By his order, dated
March 31, 1959, the Assistant Collector, Sirsa, held that Surja was entitled to
purchase the land in dispute, and, accordingly, fixed the price.
Regarding reservation he observed:
"It is admitted by the respondent that
they are big land-owners and got this land reserved, but later on during his
very cross- examination, he denied any knowledge about the reservation. The
respondent produced no evidence with regard to having this land got reserved
though they are big land-owners." Hardeva thereupon filed an appeal before
the Collector, and one of the grounds taken was that the Assistant Collector
erred in holding that the land in dispute was not reserved land. The Collector,
by his order, dated July 20, 1960, dismissed the appeal. It was common ground
before him that Hardeva was a big landowner and that Surja had been in continuous
possession of the land in dispute for more than six years, and the only point
he determined was whether with the addition of the 28 big has and 12 biswas of
land which Surja had been permitted to purchase his total area would exceed the
permissible area or not. On this point he held in favour of Surja and
accordingly dismissed the appeal, .
Hardeva then filed a revision before the
Commissioner.
In the grounds of revision dated October 27,
1960, various grounds were taken but there was no ground regarding reservation
of land or selection of land under s. 5-B of the Act. On February 1, 1961.
Hardeva filed an application in the Court of the Commissioner. In this
application he stated that the entire land in dispute was included in the
permissible area selected by him under s. 5-B of the Act by submitting form
"E". He further stated that the Financial Commissioner had in Karan
Singh v. Angraz Singh (1). held that selection under s. 5 -B(1) had the same
force as. reservation under s. 5 of the Act, and this disentitled. Surja from
purchasing the land in dispute. He prayed that he may be allowed to raise the
plea of selection under s. 5-B (1). He stated, that tiffs plea involved a
question of jurisdiction and in the interest of justice he may be permitted to
raise this plea as an additional ground of revision.
The Commissioner allowed the ground to be
taken but as Surja's counsel suspected the bona fides of the selection, the
Commissioner sent for the original file and he satisfied himself, after examining
the original form "E" and the affidavit in relation to form'
"E", that. Hardeva had duly submitted the selection document to the
Collector within time on June 19, 1958. It appears that the Financial
Commissioner had held in Dhanpat Raf v. State Punjab(2) that the period of six
months allowed by s..5-B for making selection would start from March 22, .1958,
the date when the Punjab Government Notification proscribing the form was
issued. The Commissioner felt that the selected land could not be purchased under
s. 18 by the tenant. lie accordingly submitted the case to the Financial
Commissioner with the recommendation. that the revision petition be accepted
and that the orders of the Assistant Collector and the Collector be set aside.
The Financial Commissioner dismissed ,the
revision. He held that as Hardeva had not put forward the plea of selection
before the Assistant Collector or the Collector he could not be allowed to do
so at that stage. lie observed:
"In other words the consideration that
reservation of area under section 5 and selection of area under section 5-B are
identical in their effect has no relevance in the present. cases for the
reasons that it was never claimed (except in revision) that the .area .had
.been selected under section 5-B. If such a claim had been made and
substantiated, the position would have been .different, but since this.' was
not done, the 'decision against the petitioner cannot be challenged. it is also
clear that there is no question in these eases of authorities concerned having
acted without jurisdiction or having exercised. it with illegality 'or material
.irregularity which alone could justify interference 'in revision."
Hardeva then filed a petition under Arts. 226 and 227. of the Constitution. The
Court held that the Financial Commis (1) (1960) 39 Lahore Law Times, 57, (2)
(1961) Lahore Law 453 sioner should have accepted. the recommendation made by.
the Commissioner and accordingly allowed the petition and declared that Surja
was not entitled to purchase the land in dispute selected by the land-owner
under the provisions of 's. 5-B of the Act. The learned Single Judge was of the
view that the disputed question related. to junsdiction and .went to the root
of the whole matter.
It appears that there was some dispute before
the learned Single Judge about the date of the selection, because the learned
Judge observed:
"There is a slight dispute on the
question whether the intimation of selection was given on 19th or' 20th of
June, 1958".
He, however. preferred to accept the finding
of the learned Commissioner on the point and gave the land.owner the benefit of
it. He further observed that the question could not have been raised before the
Assistant Collector and the Collector because "the prevailing view up till
1960 appears to have been that the selected area had. not been equated with the
reserved area" and it was because of this that Hardeva had not placed it
before the Assistant Collector and the Collector although he had placed the
point that the area was part of the reserved area.
It seems to us that the High Court was right
in holding that the, question whether the land sought to be purchased by Surja
was part of the reserved or selected area was a jurisdictional fact. Under s.
18 of the Act a tenant is only entitled to purchase land which as not included
in the reserved or selected area of the landowner. Under S. 18(2) the Assistant
Collector is only authorized to determine the value of the land after making
such enquiries as he thinks fit. He is not authorized expressly to go into the
question whether the land sought to be purchased is included in the reserved or
selected area of the land-owner or not. But, obviously it must be the intention
that he should go into these questions before embarking on determining the
price.
But by wrongly deciding that question he
cannot finally confer on himself jurisdiction to deal with the matter. In
exercise of the powers under s. 24 of the Act, read with s. 84 of the Tenancy
Act, the Financial Commissioner had jurisdiction to go into the question
whether the Assistant Collector or the Collector had rightly assumed
jurisdiction.
It was urged before us that the orders of the
Assistant Collector and the Collector were final and could not be assailed on
the ground that they had wrongly assumed jurisdiction. Reliance was placed on
authorities. like Rai Brij Raj Krishna v. S..K. Shaw(1) where (1) [1951] S.C.R.
145.
454 this Court referred to Queen v.
Commissioners for Special Purposes of Income Tax (1) and Colonial Bank of
Australia v. Willan,(2) That was a case of a suit whereby the order of the
Commissioner under the Bihar Buildings (Lease, Rent and Eviction) Control Act,
1947 (s. 11) was sought to be declared illegal, ultra vires and without
jurisdiction, but we are concerned with the revisional power.of the Financial
Commissioner which is the same as that of the High Court.
As observed by Kapur, J., speaking for the
Court, in Chaube Jagdish Prasad v. Chaturvedi,.(3) these cases have no
application to the exercise of revisional power. He observed:
"The appellant also relied on Rai
BrijRai Krishna v.S.K. Shaw and Bros.(4) where this Court quoted with approval
the observations of Lord Esher in Queen v. Commissioner for pecial Purposes of
the Income Tax(1) and Colonial Bank of Australia v. Willan(a), where Sir James
Colville said:
"Accordingly the authorities...establish
that an adjudication by a Judge having jurisdiction over the subject matter is,
if no defect appears on the face of it, to be taken as conclusive of the facts
stated therein and that the Court of Queen's Bench will not on certiorari quash
such an adjudication on the ground that any such fact, however, essential, has
been erroneously found." But these observations can have no application to
the judgment of the Additional Civil Judge whose jurisdiction in the present
case is to be determined by the provisions of s. 5 (4) of the Act. And the
power of the High Court to correct questions of jurisdiction is to be found
within the four corners of s. 115. H there is an error which falls within this
section the High Court will have the power to interfere, not otherwise.
The only question to be decided in the
instant case is as to whether ,the High Court had correctly interfered under s.
115 of the Code of Civil Procedure with the order of the Civil Judge. As we
have held above, at the instance of the landlord the' suit was only
maintainable if it was based on the inadequacy of the reasonable annual rent
and for that purpose the necessary jurisdictional fact to be found was the date
of the construction of the accommodation and if the court wrongly decided (1)
21 Q.B.D. M3. (2) L.R. 5 P.C. 417.
(3) [1959] Supp. 1 S.C.R. 733, 746. (4)
[1951] S.C.R. 145.
455 that fact and thereby conferred
jurisdiction upon itself which it did not possess, it exercised jurisdiction
not vested in it and the matter fell within the. rule laid down by the Privy
Council in Joy Chandlal Babu v. Kamalksha Chaudhury(1). ' The High Court had
the power to interfere and once it had the power it could determine whether the
question of-the date of construction was rightly ,or wrongly decided. The High
.Court held that the Civil Judge had wrongly decided that the construction was
of a date after June 30, 1946, and there for fell within s. 3-A."
Similarly, in Jagannath Ramchandra Datar v. Dattaraya Balwant Hingmire(2) this
Court observed:
"Therefore if it can be shown that the
subordinate court without any evidence whatsoever held that the' transaction in
question was not a sale but a mortgage and that the relationship between the
parties was that of a debtor and a creditor and on that.
footing proceeded to exercise its power under
section 3 and 10 A of the Dekhan Agriculturists Relief Act the High Court would
be entitled to interfere with such a decision under both the parts of s. 115.
It would then' be possible to say that the subordinate court had clutched at
jurisdiction which it had not under the said section and it would also be
possible to say that court had exercised its jurisdiction illegally or with
material irregularity." It seems to us that the Financial Commissioner did
not appreciate the content of his powers of revision under s. 24, read with s.
84 of the Tenancy Act. It was obvious from the report of the Commissioner that
if the finding arrived at by the Commissioner was accepted the Assistant
Collector and the Collector had no jurisdiction in the matter.
In our opinion the Financial Commissioner
should have gone into the question whether the Commissioner's report was
acceptable or not on merits.
It is urged by the learned counsel for Surja
that the High Court did not decide the question whether the selection had been
properly made within time, but it merely, accepted the report of the
Commissioner. He, therefore, still disputes the fact that the selection was
made within time.
He also says that it is not a genuine and
valid selection.
These points should be gone into by the
Financial Commissioner. Under these circumstances we allow the appeal, set
aside the orders passed by the High Court (1) 1949 L.R. 76 I.A. 131.
(2) Civil Appeal No. 585 of 1964--judgment
delivered on September 9, 1966.
456 and the Financial Commissioner and remit
the case to the Financial. Commissioner to dispose of the revision filed before
him in accordance with law.
There will be no order as to Costs in this
appeal.' Y.P. Appeal allowed.
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