Abnashi Lal and another vs Smt. Joginder Kaur and others

Man Mohan Singh Gujral, J.—Abnashi Lal petitioner No. 1 was a displaced person from West Pakistan and was allotted 46 standard acres and 8� units of land in village Jalalabad. The petitioners uncle Gobind Sahai died in India in November 1947 and in lieu of the land left by him petitioner No. 1 and his other uncle were allotted 46 standard acres and 3� units of land in village Jalalabad. The petitioner''s total holding thus came to be 70 standard acres and 73/4 units in 1953 when the Punjab Security of Land Tenures Act (hereinafter called the Act) came into force. In 1955 in a family settlement petitioner No. 2, who is the son of petitioner No. 1, got 212 kanals and 4 marlas of land and the latter then brought a suit and obtained a decree in respect of this land. Petitioner No. 2 (Harkishan Lal) then got a mutation entered in his name and was subsequently shown as owner of this land. Similarly, Kesan Bai, the mother of petitioner No. 1, also brought a suit and obtained a decree for her share of the land. On the basis of this decree mutation in respect of 99 kanals 3 marlas of land was entered in the name of Kesan Bai in 1959. As earlier to that Kesan Bai had died leaving a will in favour of petition No. 2, mutation of inheritance respect of this land was entered in the name of the latter.

On the 16th June 1958 petitioner No. 1 filed a declaration before the Collector, Ferozepore, showing that he was holding less than 50 standard acres of land and consequently had no surplus area. Subsequently on 7th November 1958 Abnashi Lal sold 113 kanals 10 marlas of land to Gurbax Singh Sub-Inspector, Judicial lock-up, Gidderbaha, but as he was a Government servant he got the sale deed executed in the name of his wife Joginder Kaur respondent No. 1.

In view of the position taken by him that he had no surplus land, petitioner No. 1 did not exercise his right of reservation in 1953 when the Act came into force or his right of selection in 1958. The concerned authorities, however, started proceedings under the Act and the rules made thereunder for the assessment of the surplus area of Abnashi Lal and as a result of these proceedings the Collector found the land measuring 11 standard acres and 3/4 unit was surplus with petitioner No. 1. In these proceedings acting u/s 5-B of the Act the Collector also proceeded to allocate the permissible area of the petitioner by order dated 6th May 1964. The principal question that arose for determination in these proceedings was whether the land sold to respondent No. I should be shown as the reserved area of petitioner No. 1 or his surplus area and considering that no fraud had been played on the vendee the Collector came to the conclusion that this area could not be considered as part of the reserved area of the landowner. Feeling aggrieved by this order, respondent No. 1 filed an appeal which was heard by the Commissioner, Jullundur Division, on 16th July 1965 and was dismissed by order, copy of which is Annexure F to the ''writ petition. Not deterred by these failures, respondent No. 1 then filed a revision petition before the Financial Commissioner which was decided by order, copy of which is Annexure G. By this order the stand taken by respondent No. 1 was accepted by the Financial Commissioner and it was directed that the land sold to Joginder Kaur must be demarcated after the land which was the reserved area of Abnashi Lal and his son petitioner No. 2. The case was then remanded to the Sub Divisional Officer (Civil) Fazilka to take action in the light of this direction. Abnashi Lal and petitioner No. 2 then filed the present writ petition under Articles 226 and 227 of the Constitution challenging the order of the Financial Commissioner on the grounds that it was wholly without jurisdiction and disclosed an error apparent on the face of the record.

The petition was contested by respondent No. 1 and it was asserted that the Collector had wrongly declared the land purchased by Gurbax Singh as surplus area and that the order of the Financial Commissioner was perfectly legal and had been passed in exercise of the jurisdiction vested in him by law. The petition was also contested by respondents 2 to 4 through the affidavit of Shri Amarjit Singh, Under Secretary to Government, Punjab, Revenue Department, and most of the facts stated in the petition were admitted. It was, however, asserted that the Financial Commissioner had the jurisdiction to pass the impugned order.

Basing himself on the decisions of this Court in Bhagat Gobind Singh v. Punjab State 1962 PLJ 125. The State of Punjab v. Shamsher Singh 1966 PLJ 16, and Mote Singh v. The Financial Commissioner, Punjab 1963 PLJ 40, it was contended by the learned counsel for the petitioners that no fraud on the part of petitioner No. 1 having been pleaded and proved, the land sold to respondent could not be included in the permissible area of the petitioners and was rightly included in the surplus area by the Collector.

In Bhagat Gobind Singh''s case it was held that the principal Act does not invalidate alienations of an area from the holding of a landowner in which there is subsequently found to be surplus area, and all that it does is to provide in section 10-A that the total holding of the landowner, ignoring the alienation or alienations, will be taken into consideration for determination of permissible area or surplus area. It was further observed that there was nothing in the Act, which deprives the landowner of his right to dispose of any part of his holding simply because subsequently it may be found that part of his holding comes to be surplus area. It was also ruled that unless there was a clear allegation of misrepresentation, fraud or deceit in the shape of concealment of the possibility of surplus area being found with the transferor, the transferee is in no better position than the transferor so far as the provisions of the principal Act are concerned. With regard to the case of deceit, fraud or misrepresentation, it was held that it mast be clearly alleged and probed. In that case however, it was not decided as a matter of law that if no reservation was made by the vendor the Collector was bound to include the area alienated by the vendor in the latter''s surplus area and not the reserved area in case no fraud, deceit or misrepresentation was alleged or proved.

In The State of Punjab and others v. Shamsher Singh 1966 PLJ 16, the question was again considered and it was ruled as under :--

The Punjab Security of Land Tenures Act does not invalidate alienations of an area from the holding of a landowner in which there is subsequently found to be surplus area, and all that it does is to provide in Section 10-A that the total holding of the landowner, ignoring the alienations, will be taken into consideration for determination of permissible area and surplus area. There is nothing in the Act which deprives the landowner of his right to dispose of any part of his holding simply because subsequently it may be found that part of his holding comes to be surplus area.

These observations no doubt make it clear that the landowner is not estopped from alienating the land which may subsequently be included in his surplus area and all that the Act provides it that alienations would be taken into consideration at the time of the determination of the permissible area and the surplus area, but the question whether the Collector was bound to include the land covered by alienations in the surplus area or the reserved area, where no reservation had been made by the landowner, was left unanswered.

In Mota Singh''s case (supra) the landowner had sold some land and had later on shown it in surplus area while submitting an application in Form E for selecting his permissible area u/s 5-B of the Act and on these facts it was held as follows :--

Where a landowner in the Punjab had sold some land from his holding to third parties and the question for determination and utilisation of his surplus area came up before the authorities set up under the Punjab Security of Land Tenures Act, held, the land which had been transferred to the vendees would be included in surplus area and can be utilised for the resettlement of tenants but the permissible area selected by the landowner u/s 5-B (1) of the Act cannot be included in surplus area.

As in Mota Singh''s case the landowner had shown the area which he had alienated as surplus area and the other area as reserved area while in the present case the landowner had not at all made any reservation or declaration in respect of the reserved area, the ratio of that decision does not support the contention of the petitioners that in such cases the authorities under the Act were bound to include the area covered by the alienations in the surplus area. The question has now been answered by a recent judgment of the Supreme Court in Gurcharan Singh and Others Vs. Prithi Singh and Others, . In this case after the coming into force of the Act the landowner transferred part of his land to his two sons and these three then sold some land to some persons. The landowners had not made any reservation in 1953 or selection in 1958 of their permissible area and in 1964 proceedings were started for the determination of their surplus area. In these proceedings the Collector declared 155 standard acres and 12 units as surplus area of Pritam Singh, the original landowner. Against this order the vendees, filed an appeal which was dismissed and so was their revision petition. The vendees then filed a writ petition which was dismissed in limine. In appeal before the Supreme Court one of the questions raised was whether in case where the sales were made before the permissible area of the vendor had been fixed by voluntary reservation or selection, the lands sold should be included by the Collector in the permissible area of the vendor or in the surplus area. While dealing with this matter it was ruled as under :--

Nor do we find any force in the contention that since the sales were made, before the permissible area of the vendor (Respondent) had become fixed by voluntary reservation or selection, the lands sold should have been included by the Collector in the permissible area of the vendor in proceedings under S.5-B (2) of the Act. While it is true that a landowner who fails to reserve or select his permissible area within the prescribed period, cannot exercise that right subsequently, and thereafter it is for the Collector to determine the defaulter''s permissible and surplus area, in exercising this power under S. 5-B, the Collector has to act judicially. He is bound to give notice to the landowner, and the transferees from him, if known. Thereafter he has to hear the parties who appear, and to take into consideration their representations and then pass such order as may be just. In so exercising his discretion, Collector may, subject to the adjustment of equities on both sides, include the transferred area in the ''permissible area'' or the ''surplus area'' of the landowner. Thus, in the process the Collector is not to ignore altogether the wishes of the landowner. He may accept them to the extent they are consistent with the equities of the case. In the instant case, the appellants did not furnish even the particulars of the purchases made by them, much less did they oppose the preference expressed by the landowner being accepted by the Collector. In the circumstances there was no equity in favour of the transferees.

Examining the decisions of this Court in Bhagat Gobind Singh''s case Shamsher Singh''s case and Mota Singh''s case in the light of the decision of the Supreme Court in Gurcharan Singh''s case, it would emerge (i) that in a case where a landowner made reservation or selection of his permissible area and sold land out of the surplus area the alienation is not invalid and that this land could not be included in the reserved area by the Collector or the authorities under the Act, (ii) that if a case of deceit, fraud or misrepresentation is alleged and proved, the area transferred may he included in the reserved area of the landowner, but in other cases this area does not cease to be available for utilisation u/s 10-A of the Act and it is of no consequence that the reservation or selection was made either before or after the alienation and (iii), that where the landowner has failed to reserve or select his permissible area within the prescribed period it is for the Collector to select his permissible area in exercise of his powers u/s 5-B of the Act. While exercising this power the Collector has to hear the parties and then arrive at a conclusion after taking into consideration their representations and "what appears to be just and equitable in the circumstances of the case." The Collector may include this transferred area in the permissible area or the surplus area of the landowner keeping in view the equities on both sides but is not bound to include it in the surplus area.

Proceeding to examine the order of the learned Financial Commissioner in the light of the above, I find that in holding that the decision in Sukhbir Singh v. Financial Commissioner 1964 LLT 43 did not apply to the facts of the case, the view taken is unexceptionable. In Sukhbir Singh''s case the landowner had reserved his permissible area and had then sold the land out of the surplus area. In that situation, the land which had been transferred to the vendees could not be included in the permissible area by the authorities under the Act, as the Act does not deprive the landowner of his right to alienate any part of his holding even if it is subsequently included in his surplus area by the landlord. In the present case, no reservation or selection had been made by the landowner. The ratio of the decision in Sukhbir Singh''s case was, therefore, not attracted and on behalf of the petitioner this view of the Financial Commissioner could not be assailed. It appears that the learned Financial Commissioner proceeded on the basis that it was for the authorities under the Act to decide whether in the circumstances of the case the land sold was to be included in the surplus area or permissible area, as the landowner had made no reservation or selection and this approach is in accordance with the decision of the Supreme Court in Gurcharan Singh''s case. Further more while coining to the conclusion that the land sold to Joginder Kaur be included in the reserved area of Abnashi Lal and not in the latter''s surplus area, the learned Financial Commissioner was influenced by the fact that Abnashi Lal had not included the additional land inherited by him in his declaration. It was further reasoned that even if this omission was made bona-fide, Joginder Kaur could not be penalised for this mistake on the part of Abnashi Lal. From the reasoning adopted it appears that the Financial Commissioner had come to the conclusion that equities were in favour of the land sold to Joginder Kaur being shown as reserved area and not as surplus land. This finding having been arrived at on the basis of the material before the Financial Commissioner cannot be set aside in the exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India.

On behalf of the petitioners it was vehemently contended that the orders of the Collector and the Commissioner could not be revised by the Financial Commissioner as these authorities had the jurisdiction to pass the orders and the orders did not suffer from any material illegality or irregularity. In other words, the jurisdiction of the Financial Commissioner to interfere in revision was challenged before me.

Under the Punjab Security of Land Tenures Act, 1953, the revisional powers of the Financial Commissioner are the same as under the Punjab Tenancy Act, 1887. Section 84 of the Punjab Tenancy Act provides that the Financial Commissioner can, interfere with the proceedings or the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may under the law for the time being in force interfere with the proceedings or an order or decree of a civil Court. The powers of the High Court in this respect are contained in section 115 of the Code of Civil Procedure. According to this provision the orders of the Subordinate Court can only be interfered with if the Court has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity.

This being the position of law it has to be examined whether the orders of the Collector or the Commissioner suffered from any of the infirmities pointed out in section 115 of the Code of Civil Procedure. So far as the appellate order is concerned the learned Commissioner did not think it necessary to determine whether any fraud had been committed in this case or not and proceeded on the assumption that "a fraud had been played with the appellants". Proceeding on this assumption the learned Commissioner dismissed the appeal on the basis of the decision in Sukhbir Singh''s case (supra) and the decision in Hosawa Ram Govind Ram v. State of Punjab 1964 PLJ 94. In these cases it was ruled that the Financial Commissioner could not go into the question of fraud by the vendor if the land is sold out of the surplus area without declaring this fact to the vendee. This view was taken in a case where the vendor-landowner had made the reservation and had then sold the land out of the surplus area without informing the vendee of this fact. This case was obviously not applicable to the facts of the present case as the petitioners in this case had not made any reservation or selection and the reservation or selection had to be made by the authorities u/s 5-B (2) of the Act. By omitting to decide whether fraud had been played on the vendee or where the equities lay, on the basis of the decision which was not applicable to the case, the learned Commissioner clearly failed to exercise jurisdiction vested in him under law. Similarly by holding that the Financial Commissioner could not interfere with the selection made by land-owners to oblige a subsequent vendee the learned Commissioner proceeded on the basis as if the land-owner had made a selection and then had made the alienation. By assuming this wrong fact the learned Commissioner decided that if the vendee feels that he has been cheated his remedy lay either in the civil or criminal Court and no relief could be given to him in the appeal, and this would clearly amount to the Commissioner having failed to exercise jurisdiction. It was consequently open to the learned Financial Commissioner to quash this order, and decide the matter keeping in view the correct position of law.

As to the order of the learned Collector he reached the conclusion that the area sold to Joginder Kaur could not be considered out of the reserved area of the land owner on the ground that no plea of fraud had been taken and the documents did not show that in fact any fraud had been committed. While coming to this conclusion he did not at all consider that leaving the question of fraud apart he had also to scrutinise the circumstances of the case in order to hold where the equities lay and what was just and proper in the circumstances. In view of this the contention of the learned counsel for the respondent that the Collector had failed to exercise jurisdiction is not without plausibility. Moreover by proceeding on the basis that no plea of fraud had been taken before him when in fact it had been alleged in the objection filed by the vendee that she had been defrauded the Collector had also acted with material irregularity and his order could be quashed by the Financial Commissioner.

Basing himself on the decisions of the Supreme Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, and Ratilal Balabhai Nazar v. Ramchhodhhai Shankarhhai Patel AIR 9666 SC 439, it was contended on behalf of the petitioners that the orders of the Collector and the Commissioner even if erroneous in law or fact could not be interfered with as only those erroneous conclusions of law or fact are relevant u/s 115 of the CPC in which the question of jurisdiction is involved. It is well settled that erroneous decisions of the Subordinate Courts only justify an interference in revision if those decisions result in the subordinate Court exercising jurisdiction not vested in it by law or failing to exercise jurisdiction so vested. Interference in revision is also justified where some errors of procedure in the course of the trial which may affect the ultimate decision have been committed or in exercising the jurisdiction breach of some provision of law has been committed by the subordinate Court.

In the present case, as observed earlier, both the Commissioner and the Collector while acting on a wrong view of the law failed to exercise the jurisdiction vested in them by law in as much as neither of them examined the circumstances in order to determine where the equities of the case lay and as to whether it was jus to Include the area in the surplus area of the vendor or the reserved area. Erroneous conclusions of law or fact were such in which the question of jurisdiction was involved. I consequently find no merit in this argument raised on behalf of the petitioners.

For the reasons recorded above I find no merit in this writ petition and dismiss the same with costs.