Gopi Chand vs Onkar

R.L. Anand, J. (Oral)

This is a defendant''s appeal and has been directed against the judgment and decree dated 5.11.1979, passed by the court of Addl. Distt. Judge, Narnaul, who allowed the appeal of the plaintiff and decreed his suit by holding that the impugned orders dated 25.1.1961 and 27.11.1973 are null and void and not effective against the rights of the plaintiff.

The brief facts of the case can be noticed in the following manner :

Onkar son of Ghaman, plaintiff filed a suit for declaration that the order dated 25.1.1961 passed by the Prescribed Authority, Narnaul and the order dated 27.11.1973, passed by the Collector, Agrarian, Dadri, were null and void and without any jurisdiction and for permanent injunction that the same had no effect on his rights. It was alleged in the plaint that on 25.1.1961, the Prescribed Authority passed an order under para6 of the Pepsu Utilization of Surplus Area Scheme, 1960 (hereinafter referred to as the Scheme) holding that the plaintiff was ejectable under subsection (1) of section 7A of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as the Act) on an allotment of an area 1.123/4 standard acres under para8 of the Scheme where ever the same was available. It was further alleged by the plaintiff that in connection with the above order of the Prescribed Authority, the Collector, Agrarian, passed order on 27.11.1993 holding that the owner of the land could eject the tenants after obtaining their ejectment order from the court and he had the right to get a surplus land allotted to the tenant and that the allotment made by the Prescribed Authority was confirmed. The plaintiff alleged that the order dated 25.1.1961 was a nullity for the various reasons given in para3 of the plaint and the order dated 27.11.1973 passed by the Collector, Agrarian, was also bad for the reasons given in para4 of the plaint.

Notice of the plaint was given to the defendants 1 and 2 who contested the suit and a preliminary objection was taken that the civil court had no jurisdiction in the matter and the impugned orders dated 25.1.1961 and 27.11.1973 were stated to be valid having been passed in accordance with law.

From the pleadings of the parties, the following issues were framed by the trial court :

"1. Whether the order dated 25.1.1961 of the prescribed authority under the Pepsu Utilisation of Surplus Area Scheme is null and void, illegal and without jurisdiction ? OPP.

Whether order dated 27.11.1973 of the Collector Agrarian Dadri under the Pepsu Utilization of Surplus Area Scheme is null, void and illegal and without jurisdiction ? OPP

Whether para 6(b) of the Pepsu Utilisation of Surplus Area Scheme is opposed to section 7(A)(1) or S. 32J of the Pepsu Tenancy and Agricultural Land as Act 1955 ? OPP

Whether this court has jurisdiction to decide regarding vires of the Pepsu Tenancy and Agricultural land and Pepsu Utilisation of Surplus Area Scheme ? OPP

Whether the suit is not maintainable in the present form ? OPD

Whether the suit is properly valued for purposes of court fee and jurisdiction ? OPP

Whether the plaint does not disclose any cause of action ? OPD

Whether the notice under section 80 CPC is not required before filing the present suit against Haryana State ? OPP

Relief."

The parties led oral and documentary evidence and on the conclusion of the trial, the trial court vide the judgment and decree dated 9.1.1976 dismissed the suit of the plaintiff and aggrieved by the judgment and decree of the trial court, unsuccessfully the plaintiff filed the first appeal before the appellate court which for the reasons given in para 11 of the judgment and decree dated 5.11.1979, decreed the suit and granted a declaration in favour of the plaintiff by holding that the order dated 25.1.1961 and the order dated 27.11.1973 are illegal. The reasons given by the first appellate court in para11 can be quoted with advantage and the same read as under :

"After considering the arguments advanced by the Ld. counsel for the parties and going through the authorities cited by them I am of opinion that the argument of the learned counsel for the appellant that the impugned order dated 25.1.1961 was passed in violation of para No. 6 of the scheme and the appellant was not heard is not without force. On receipt of the application of the respondent under para 3 of the scheme notice of the application was given to the appellant by the prescribed authority for 21.10.1960 vide order dated 11.10.1996, copy Ex. P1. Vide order dated 5.12.1960, copy Ex. P2, the prescribed authority adjourned the case for the written statement of the appellant to 4.1.1961 on which day it was again adjourned for the written statement of the appellant to 21.1.1961. A perusal of order Ex.P4, would go to show that the case was taken up on 20.1.1961 when the parties were present and the case was adjourned by the prescribed Authority to 25.1.1961 for the written statement of the respondent. In the impugned order dated 25.1.61 Ex. P6 neither the presence of the parties nor their counsel is marked. The order does not show that the parties were heard or that the order was pronounced to any one. The observation of the learned Sub Judge that the respondent did not file any written statement on 25.1.1961 and, therefore, the prescribed authority was constrained to pass the order under para 6 of the Scheme and therefore he recorded the finding after making summary inquiry, does not find support from the evidence on the record or from the impugned order passed by the prescribed authority. If the prescribed authority granted opportunity to the appellant to file written statement and the order passed does not show that he heard the parties before passing the order or that the parties were present before him when he passed the order, it would mean that the order was passed in the absence of the parties and the granting of opportunity for filing written statement would not amount to hearing the parties. Para 6 of the Scheme under which the order was made laid down that the prescribed authority shall after hearing parties concerned and making such summary inquiry as he may think necessary, record a finding on the following points :

(a) whether the landowner is desirous of ejecting his tenant ?

(b) whether the tenancy is liable to be terminated under sub section (1) of section 7A of the Act ?

(c) the extent of area required for allotment under Section 7A, and

(d) The estate or estates for which the tenant indicates preference for allotment of land in case no area is available for allotment to him in the state (estate ?) from which the landowner seeks ejectment."

The respondent did not even produce himself to say that the impugned order was passed by the prescribed authority after hearing the parties. In support of his case he only produced documents Exs. D1 to D7, none of which shows that the parties were heard at the time of the impugned order. A perusal of the impugned order would also go to show that the prescribed authority did not obtain any preference of the appellant for allotting land to him if no area was available for allotment to him in the estate from which the respondent landlord sought ejectment and without obtaining the preference it was ordered that wherever the area was available under para 8 of the scheme the same might to be allotted. Clause (d) of para 6 of the scheme did not require as to where the land was to be allotted to the tenant but it provided that the names of their estate or estates should be mentioned for which, the tenant indicated preference for allotment of land in case no area was available for allotment to him in the estate from which the landowner sought ejectment. The order of the prescribed authority under that clause passed without obtaining preference of the tenant, seems to have been passed in routine without making any summary inquiry. In fact it is not an order but only columns have been filled in. In view of the above the finding of the learned Sub Judge that the impugned order was passed after hearing the appellant cannot be subscribed and rather it would appear that the order was passed without hearing the appellant. That being so the order was not only against the principles of natural justice but was also in violation of para 6 of the Scheme and was, therefore, nullity. In view of the authorities cited by the learned counsel for the appellant if the order was nullity then the provisions of Limitation Act would not supply for setting aside the same. The fact that no revision or appeal was filed against that order cannot also stand in the way of declaring the same to be nullity. In AIR 1957 Madras 496 supra it was held that where an order was nullity, the fact that there was an unsuccessful appeal would not prevent the High Court from quashing the order. The authorities cited by the learned counsel for the respondent do not apply to the facts of this case where the order has been held to be nullity on the ground of principles of natural justice and violative of the statute. Issue No. 1 is therefore decided in favour of the plaintiffappellant and against the defendantrespondent."

This time the defendant is aggrieved by the judgment and decree of the first appellate court and he has come in the present appeal.

I am disposing of this appeal with the assistance of Mr. Jaswant Jain, Advocate, appearing on behalf of the appellant. No body has given the appearance on behalf of the respondents.

The learned counsel for the appellant submitted that the first appellate court has committed a patent illegality in decreeing the suit of the plaintiffrespondent. According to the learned counsel for the appellant, the civil court had no jurisdiction. More so, when the order dated 25.1.1961 has been challenged by the respondent before the competent authority and finally he lost all the remedies upto the Collector and the Financial Commissioner and the latest order dated 27.11.1973 had put seal to all the earlier orders passed by the Collector, Agrarian, dismissing all the appeals, of the respondent under the Act. The counsel submitted that the order dated 25.1.1961 is to be read in the light of the previous orders passed by the Prescribed Authority. The counsel submitted that the appellant was the landlord and he submitted an application dated 28.9.1960 in the prescribed formI, Ex. P2 before the Prescribed Authority under clause 3 of the Scheme for the allotment of the land to the plaintiff being his tenant out of the surplus area as the defendantappellant was desirous of ejecting the plaintiff respondent from the land of his tenancy and his tenancy was liable to be terminated under section 7A(1) of the Act. The counsel further submitted that on presentation of the said application before the Prescribed Authority, vide order dated 6.10.1960, the plaintiff was summoned for filing the objections to the application filed by the appellant for 21.10.1960. The plaintiff appeared before the Prescribed Authority who directed him to file the written statement on or before 5.12.1960. On that day, the tenant did not file the reply and the case was adjourned to 4.1.1961. Again, on 4.1.1961, the plaintiffrespondent did not file the written statement and sought an adjournment, which was granted for 21.1.1961. Again, on 21.1.1961, the tenant did not file the reply and the case was adjourned to 25.1.1961. The counsel submitted that as many as three/four opportunities were granted to the tenant to rebut the case of the landlord and inspite of that, the tenant did not opt to file the written statement as a result of which the Prescribed Authority was left with no other option but to hold a summary inquiry and decide the matter according to law, which was done on 25.1.1961, after taking consideration the report of the Patwari, Ex. P5.

With regard to the allegations of the landlord as to the surplus area and the quantum of the land to be allotted to the tenant, the counsel also submitted that the first appellate court, for unconvincing reasons, came to the conclusion that on 25.1.1961, the presence of the parties had not been recorded by the Prescribed Authority and, therefore, the tenant had no opportunity to file the objections against the application of the landlord.

I have considered the submissions of the counsel for the appellant and I am of the opinion that sufficient and proper time was granted to the tenant to rebut the allegations of the landlord. As many as 3/4 opportunities were granted to the tenant to rebut the claim of the landlord. If the tenant did not adopt or opt to contest the claim of the landlord, he should thank his own stars. The order dated 25.1.1961 has been passed by the Prescribed Authority under the Act after his due satisfaction that some area has to be allotted to the tenant being the surplus area of the landlord. Not only this, the tenant was well aware of this order dated 25.1.1961 and he challenged this order before the Collector, Agrarian, who dismissed the appeal of the tenant. So much so, this order was taken right upto the Financial Commissioner, who confirmed the orders of the authorities below. In these circumstances, it was, apparently, wrong on the part of the first appellate authority to observe that the prescribed authority did not comply with the previsions of the Act and that the impugned order dated 25.1.1961 and the subsequent orders are illegal.

Section 47 of the Act lays down that no civil court shall have jurisdiction to settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Collector or the prescribed authority. As per clause (2) of section 47 of the Act, no order of the Financial Commissioner, the Commissioner, the Collector or the prescribed authority made under or in pursuance of this Act shall be called in question in any court.

The law has always drawn a patent and basic distinction between erroneous orders and the orders which are without jurisdiction. So far as the legality of the orders is concerned, that was within the scope of the Collector, Commissioner or Financial Commissioner. The courts can interfere only if the orders suffer from inherent jurisdiction or there was noncompliance of the proper procedure, which was required to be adopted by the prescribed authority. There is no illegality with regard to the fundamental procedure which was required to be adopted by the prescribed authority and, in this view of the matter, the civil court had no jurisdiction to entertain the suit.

Resultantly, the first appellate court has committed a patent illegality in decreeing the suit of the plaintiff as a result of which the findings of the first appellate court as contained in the judgment and decree dated 5.11.1979 are hereby set aside and the judgment and decree of the trial court is hereby restored and the suit of the plaintiff respondent is hereby dismissed with no order as to costs.