Gurbachan Singh vs State of Punjab

N.K. Kapoor

This is plaintiffs'' second appeal against the judgments and decrees of the Courts below by which his suit for declaration with permanent injunction has been dismissed.

Briefly put, Piara Singhplaintiff purchased land measuring 145 Kanals 7 Marlas, as described in the plaint, situated in village Karaswan Tehsil Dasuya district Hoshiarpur from Brij Lal son of Mehar Narain Lal vide registered sale deed dated 12.3.1958. Piara Singh sold 96 Kanals out of the said land by means of a registered sale deed dated 3.8.1970 to Kartar Singh and Hazara Singh sons of Sohan Singh for a sum of Rs. 12,000/. It is further the case of plaintiffs that Gurbachan Singh and Mohinder Singh plaintiffs sons of Piara Singhplaintiff filed a suit for possession by means of preemption against the vendors and the same was decreed in their favour; and in execution of the decree they were put in possession of the land as well. The plaintiffs further averred that Naib Tehsildaar, Mukerian, defendant No. 3 threatened that part of the land would be allotted to the tenants or others in view of the orders passed by defendant No. 2 dated 11.3.1974 since part of the suit land was declared surplus with the original owner Brij Lal. Thus, the plaintiffs challenged the order of the collector Agrarian Reforms, Dasuya, dated 11.3.1974 and the proceedings taken pursuant thereto by Naib Tehsildaar, Mukerian, on the following grounds :

(i) that there is no valid or legal order of any competent authority declaring land measuring 145 Kanals 7 Marlas or any part of it as surplus;

(ii) that no notice was given to Piara Singh plaintiff and to the original owner Brij Lal nor any opportunity was afforded to them to place their view point,

(iii) that Piara Singhplaintiff held no other land anywhere in India except the land measuring 145 Kanals 7 Marlas purchased by him from Brij Lal Piara Singhplaintiff was and is a small owner and the land in dispute could not be allotted as surplus at any time. The plaintiffs are bona fide purchasers without notice of any entry of the suit land being surplus area. At the time of acquisition of land by the plaintiffs on 28.12.1970, the order of Collector Hoshiarpur date 17.8.1961 stood withdrawn whereby the land described in para no. 1 of the plaint was brought under surplus area. The variation of the said order of the Collector dated 17.8.1961 and that too without notice to the plaintiffs is not binding on them;

(iv) that Brij Lal, original owner, held the land in villages Mehmoodpur and Batala, P.S. Mukerian, tehsil Dasuya which was transferred by him before the transfer to Piara singhplaintiff in 1958. The land in village Kasrawan which was repurchased later cannot be validily or legally utilised by the government under Section 10A of th Punjab Security of Land TEnures Act, 1953 (hereinafter referred to as ''the Act'').

The defendants put in appearance and filed written statement controverting all the allegations made in the plaint.

On the pleadings of the parties, the following issue, were framed by the trial Court :

"(1) Whether the plaintiffs are owners in possession of the suit property ? OPP.

(2) Whether the orders declaring the property in suit as surplus area are binding on the plaintiffs ? OPD.

(3) Whether the Civil Court has no jurisdiction to try this suit ? OPD.

(4) Relief."

The trial Court decided issue nos. 1 and 2 against the plaintiffs holding that permission sought by Naib Tehsildar, Agrarian, to review the order of Special Collector dated 6.10.1961 was perfectly justifiable in view of the executive instructions issued by the Government on 22.7.1961; and thus the plea of the plaintiffs that such an application ought to have been filed within 90 days as prescribed under Section 24 of the Act read with Section 82 of the Punjab Tenancy Act, was without any merit as no fixed period of limitation has been prescribed by this section. The trial Court also found no merit in the plea of the plaintiffs for the reason that they were not party to the same. Issue No. 3 was also decided against the plaintiffs holding that Section 25 of the Act bars jurisdiction of the Civil Court to entertain any suit in respect of the matter which is within the ambit of the Act. Resultantly, the trial Court dismissed the suit of the plaintiffs.

The lower appellate Court concurred with the judgment and decree of the trial Court; thereby dismissing the appeal.

It is the admitted case of the parties that Piara Singh became owner of the land measuring 145 Kanals 7 Marlas on the basis of sale deed dated 12.3.1958. The Collector, Surplus Area, while determining the permissible/surplus area of the erstwhile owner Brij Lal, however, did not issue any notice. Piara Singh and declared the land surplus vide order dated 8.9.1960. Since Piara Singh was not associated with the declaration of surplus area, he filed an application before the Collector, Hoshiarpur, seeking exclusion of his land from the surplus pool which prayer was granted by the Special Collector vide order dated 6.10.1961 and this way he felt satisfied that no part of his holding formed part of surplus pool of the erstwhile owner Brij Lal. It was only in 1970 that Naib Tehsildar, Agrarian, Hoshiarpur, on the basis of some exclusive instructions filed an application on 6.6.1970 seeking review of the earlier order of the Collector, Surplus area, dated 6.10.1961. Strangely enough, even in this application neither Piara Singh nor Gurbachan Singh and Mohinder Singh who became owners on the basis of civil court decree having preempted the sale executed by their father Piara singh, were served any notice. This fact came to their notice when an attempt was made by the Surplus Area Authorities to allot this land to landless persons/ejected tenants etc., vide the impugned order dated 11.3.1974.

The matter stands settled in Harnek Singh and another v. State of Punjab, 1971 PLJ 727, a Full Bench judgment of this Court, wherein it has been held that the transferee is a person interested in participating in the proceedings for declaration of surplus area and he must be given an opportunity of being heard to avoid his interest being prejudicallyaffected before declaring the surplus area of his transferor. It was further held that even if the statute and the rules framed thereunder 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.

This being the position, the impugned order is per se unsustainable in law having been passed without associating the plaintiffs, who had vital interest in the subjectmatter in dispute.

The next objection of the learned counsel for the respondents is that even if the impugned order has been passed without associating the plaintiffs, yet the same could not be challenged under the Act; suggestion that Section 25 of the Act specifically bars the jurisdiction of the Civil Court to adjudicate upon the matter which is within the ambit of the Act. This matter too now stands concluded by the Full Bench of this Court in State of Haryana v. Vinod Kumar, 1986 PLJ 161 : 1987 R.R.R. 81 wherein it has been held that order declaring land as surplus without affording concerned landowner opportunity of being heard is a nullity and such an order can be challenged in a Civil Court even when statute expressly bars jurisdiction of the Civil Court to entertain such suit. Thus, this objection of the learned counsel for the respondents is also without any merit.

Consequently, I accept this appeal,set aside the judgments and decrees of the Courts below and decree the suit of the plaintiffs. No costs.