Dhan Kaur and others vs State of Punjab and others

J.V. Gupta, J.—This is plaintiffs'' second appeal whose suit for possession of the agricultural land measuring 103 kanals 17 marlas has been dismissed by both the Courts below.

The plaintiffs filed the suit on the allegations that the suit land was owned by Bhajan Singh son of Bagga Singh. He sold to them the land measuring 130 kanals 18 marlas including the suit land for a sum of Rs. 9,000/ vide registered sale deed dated July 22, 1959. They came in possession thereof. The sons of the vendor, defendants 4 and 5, filed the usual declaratory suit challenging the alienation made by their father, under custom, but accepted a sum of Rs. 3,000/ by way of compromise and gave up their claim in the suit. Bhajan Singh, vendor at the time of the sale, did not disclose to them (the plaintiffs), that the land sold by him to them constituted his surplus area. The suit land was declared to be surplus firstly on November 1, 1961, by the Collector, but ultimately the said order was set aside by the Financial Commissioner on April 18, 1964, and the case was remanded to the Collector for fresh decision. The Collector again declared the suit land as surplus area, though without any notice to them on April 30, 1966, vide order, Exhibit P.9. On October 26, 1966, the Naib Tehsildar passed the order, Exhibit P.5, for the utilisation of the suit land which had been declared surplus in the hands of Bhajan Singh. The said order of the Naib Tehsildar was set aside in appeal by the Collector, but was upheld by the Commissioner vide order dated April 10, 1967, Exhibit D2. On June 11, 1968, the Naib Tehsildar ordered the dispossession of the plaintiffs from the suit land. In pursuance thereof, they were forcibly ejected from the suit land on March 17, 1969, by the defendant State and its possession was handed over to the sons of the vendor Bhajan Singh who are defendants to the suit. On September 1, 1969, notice under section 80, Code of Civil Procedure, was given on behalf of the plaintiffs to the State of Punjab and thereafter, the present suit was filed on December 27, 1969. It was averred in the plaint that the orders of the Collector dated November 1, 1961 and April 30, 1966, declaring the land to be surplus and allotting it over again to the defendants Nos. 4 and 5, were illegal and void and so was the order of the Tehsildar Agrarian directing its possession to be given to the aforesaid defendants. The main ground was the plaintiffs were not given any notice before the land was declared surplus and that the land was not evaluated in accordance with the provisions of section 32NN of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter called the Act). The suit was contested both on behalf of the State of Punjab and the allottees of the land. They pleaded the bar of limitation and also took an objection to the jurisdiction of the Civil Court to entertain the suit. It was also averred that the orders passed by the revenue authorities were valid and illegal. On the pleadings of the parties, the trial Court framed the following issues :

(1) Whether the suit is within limitation?

(2) Whether the Civil Court has got the jurisdiction to try the suit?

(3) Whether the suit is barred under Section 11 of the Code of Civil Procedure?

(4) Whether Bhajan Singh sold the land to the plaintiffs? If so, its effect?

(5) If issue No. 4 is proved in favour of the plaintiffs, whether the surplus area and the allotment proceedings are void and illegal as regards the suit land for the reasons given in the plaint?

(6) Whether defendants Nos. 4 and 5 had previously instituted a suit regarding the land, in dispute? If so, its effect?

(7) Relief.

Under Issue No. 1, the trial Court found that the suit of the plaintiffs was barred by time and as such found it against them. Issue No. 2 was also decided against them as it was held thereunder that the Civil Court had no jurisdiction to try the suit. Issue No. 3 was decided against the defendants. Issue No. 4 was decided against the plaintiffs as thereunder it was held that the ownership of the land did not vest in the plaintiffs by the alleged sale and that they had not become the owners thereof in view of the Full Bench judgment of this Court in Pritam Singh and others v. The State of Punjab and others, 1966 Current Law Journal, 165. Under issue No. 5, it was held that since issue No. 4 had been found against the plaintiffs, no right was conferred on them to challenge the sale and, therefore, no finding was required on this issue, because they could not challenge the validity of the orders. Issue No. 6 was also found against the plaintiffs. Consequently, the plaintiffs suit was dismissed. In appeal, the learned Additional District Judge, reversed the findings of the trial Court under issue Nos. 2, 4 and 5 but maintained its findings under issue No. 1. As a result the decree of the trial Court dismissing the plaintiffs'' suit was maintained. Dissatisfied with the same, they have come up in second appeal to this Court.

Since the lower appellate Court nonsuited the plaintiffs on the ground of limitation alone, the learned counsel for the appellants vehemently contended that the suit filed by the plaintiffs was within time from the date when they were forcibly dispossessed by the respondentState on March 17, 1969. According to the learned counsel, the order of the Collector, dated April 30, 1966, Exhibit P.9 was a void order and not a voidable one because it was passed by him without giving any notice to the plaintiffs. In support of this contention, the learned counsel relied upon Harnek Singh v. The State of Punjab, 1971 Punjab Law Journal, 727; State of Haryana v. Hari Singh, 1973 Punjab Law Journal 811; Kul Bhushan v. Faquira, 1976 Punjab Law Journal 480 and Swadeshi Cotton Mills v. Union of India, (1981)1 Supreme Court Cases, 664. The learned counsel also contended that the suit land vested in the State Government only when the possession thereof was taken from the plaintiff on March 17, 1969, and, therefore, the suit filed by the plaintiffs was within time from that date. Thus, it was contended that it was Article 65 of the limitation Act that applied to the present case and not Article 113 or Article 100 as held by the lower appellate Court. To buttress this contention, the learned counsel relied upon Kul Bhushan''s case (supra) and Sunder Dass v. State of Haryana, 1978 Punjab Law Journal 334. In the alternative, the learned counsel also argued that even if it be assumed that it was Article 133 of the aforesaid Act that applied to the plaintiffs'' suit, even then, the terminus a quo would be the date of their dispossession because it would be from that date that the right to sue would accrue to them and, therefore, under that article as well, their suit is within limitation. Reliance in this behalf was placed by the learned counsel on Mst. Rukhmabai v. Laxminarayan, A.I.R. 1960 SC 335 and Niamat Singh v. Darbari Singh, A.I.R. 1956 Punjab 230. On the other hand, the learned counsel for the respondents, did not contest the proposition with respect to the limitation. However, it was contended by the learned counsel that the Civil Court had no jurisdiction to try the suit in view of the provisions of Section 47 of the Act. The remedy, if any, available to the appellants argued the learned counsel, was to approach the authorities under the Act and not to file the civil suit to challenge the orders of the revenue authorities passed under the Act.

I have heard the learned counsel for the parties and have also gone through the case law cited at the bar.

It is well settled by now that if an order is passed without any notice to the party interested then the said order is void and not a voidable one. In paragraph 94 of the judgment in Swadeshi Cotton Mills'' case (supra) their Lordships of the Supreme Court observed:

"In India, this Court has consistently taken the view that a quasijudicial or administrative decision rendered in violation of the audi alteram partem rule, wherever, it can be read as an implied requirement of the law, is null and void."

In the Full Bench decision of this Court in Harnek Singh''s case (supra) (which had also arisen under the Act), it was held that even if the statute and the rules framed thereunder are silent on the point, it appears to be necessary for satisfying the principles of natural justice, without which it is impossible to maintain the rule of law, to give an adequate opportunity to a transferee to safeguard his interest in proceedings, which can possibly culminate in a decision prejudicially affecting him and his property rights. Thus, the plaintiffs, being the transferees'' were entitled to the notice before the land could be declared surplus in the hands of Bhajan Singh, vendor. Having failed to give any notice to them, the order of the Collector dated April 30, 1966, Exhibit P. 9, would be deemed to be a void order as regards them and, therefore, they could ignore the same and the cause of action to them arose only when they were illegally dispossessed from the suit land on March 17, 1969. In the Division Bench judgment of this Court in Kul Bhushan''s case (supra), it has been held that an act or order of an officer if illegal or ultra vires or without jurisdiction or otherwise a nullity does not require to be set aside and that Article 100 of the Limitation Act, 1963 is not applicable to such a case.

As regards this jurisdiction of the Civil Court to entertain the suit, somewhat similar matter came up for decision before G.C. Mittal, J. in Sudagar Singh v. Punjab State, 1981 Punjab Law Journal 166. In paragraph 2 of the judgment in the said case, it has been held :

"It is not disputed that while declaring surplus area in the hands of Hardam Singh, the appellants were not heard and that the order declaring surplus area was passed after the appellants made purchases from Hardam Singh. Accordingly, the appellants were entitled to a hearing before declaration of surplus area according to the decision of this Court in Harnek Singh and another v. The State of Punjab and others, 1971 P.L.J. 727".

In paragraph 3 of the judgment in the abovesaid case, it was further held,

"Once, it is held that the appellants are entitled to a notice then civil suit would be competent inasmuch as if there is a procedural defect in passing the orders by the authorities under the Act then the orders can be challenged before a Civil Court and section 47 of the Act would not be a bar to the filing of the suit."

The ratio of the aforesaid case is fully applicable to the facts of the present case. Thus, section 47 of the Act, was no bar to the filing of the present suit because the appellants were not heard when the order declaring the surplus area in the hands of Bhajan Singh, vendor, was passed vide Exhibit P.9, by the Collector. In that situation, the order could not be said to have been passed by the authorities in pursuance of and under the Act against the plaintiffs.

As a result of the above discussion this appeal succeeds and is allowed. The judgments and the decrees of the Courts below are set aside and the plaintiffs'' suit is decreed with costs. A copy of this judgment be sent to the Collector concerned for determining the surplus area in the hands of Bhajan Singh vendor, afresh, in accordance with law.