Nand Ram vs The Financial Commissioner Planning, Punjab (now Haryana) Chandigarh and Another

These are two Letters Patent Appeals. They are L. P. A. S. Nos. 480 and 481 of 1969. L. P. A. No. 480 of 1969 has been filed by Nand Ram against the Financial Commissioner and the State of Haryana through the Collector, surplus Area. Sirsa (hereinafter called the Collector). L. P. A. No. 481 of 11969 is by Smt. Sugni against the same respondent. Both are directed against the judgment of a single Judge dated September 11, 1969 refusing to declare certain areas claimed by the appellants to be banjar qadim, banjar jadid and ghairmumkin and declining to exclude it from the area declared as surplus.

The facts being identical in both the appeals and there being common question raised in both of them, facts set out hereafter are being given only in L. P. A. No. 480 of 1969 filed on behalf of Nand Ram. In course of proceedings pending before the Collector, the appellant did not claim that certain area being banjar qadim, banjar jadid or ghairmumkin did not answer the definition of the word, ''land'' given in Section 2(8) of the Punjab Security of Land Tenure Act, 1953, and could not be included in the surplus area. By order dated October 26, 1961, the Collector declared 70.99 standard acres as surplus area in the hands of the appellant. Being aggrieved of the order of the Collector, the appellant took the matter in appeal to the Commissioner. In the grounds of appeal, the appellant never urged that certain banjar qadim, banjar dadid or ghairmumkin area had been included in the surplus declared by the Collector. The Commissioner, by order dated March 28, 1963, disallowed the appeal. Thereafter, the appellant made an application on April 23, 1963 to the Collector for review of his order dated October 26, 1961 pleading that 9.86 acres were banjar and ghairmumkin. By order dated May 14, 1964, the Collector referred the application for review of his previous order for sanction to the Commissioner. By order dated May 29, 1964, the Commissioner declined to accord sanction for review of the order. The appellant invoked the revisional jurisdiction of the Financial Commissioner. The revision was disallowed by order dated March 29, 1965.

Feeling dissatisfied with the above referred to orders of the Collector, the Commissioner and the Financial Commissioner, the appellant filed a writ petition under Arts. 226 and 227 of the Constitution praying for those orders being quashed. The learned Single Judge found that the point raised in the writ petition, namely, that there was certain area banjar qadim and banjar jadid included in the area declared surplus by the Collector had not been raised before the Collector when he passed his order dated October 26, 1961 and declined to interfere.

As is clear from the above resume of facts, the appellant never claimed before the Collector when proceedings were commenced against him for declaration of certain area being surplus area. He did not plead in course of those proceedings that 70.99 standard acres included certain area of banjar or ghairmumkin and consequently that area could not be included in the area sought to be declared surplus. In other words, according to the appellant that area, while those proceedings were on before the Collector, was not banjar or ghairmumkin and hence to the extent of that area, the surplus area was not reduced. It was after the appeal of the appellant had been rejected by the Commissioner that he made application for the review of the order of the Collector dated October 26, 1961. The Collector had no power to review the order in the absence of sanction of the Commissioner. Considering the facts and circumstances of the case, the Commissioner refused to grant the sanction solicited for. The revision petition filed on behalf of the appellant with the Financial Commissioner met the same fate.

The appellant did not claim in course of proceedings before the Collector leading to the declaration of 70.99 standard acres as surplus area in the hands of the appellant for exclusion of any area out of it on account of its being banjar or ghairmumkin. Considering that fact coupled with the non-raising of that point even in his appeal, the Commissioner declined to grant sanction to the Collector to review his order dated October 26, 1961. All the authorities concerned right upto the Financial Commissioner, having held 70.99 standard acres to be surplus and no area out of it having been claimed on behalf of the appellant to be banjar or ghairmumkin, the matter could not be agitated in the High Court in the writ petition. Landowner, who had not claimed any area to be banjar qadim so as to have it excluded from the surplus area, cannot be allowed to reagitate the matter in the writ petition filed on his behalf. While considering that question, their Lordships of the Supreme Court in Amar Surjit Singh v. State of Punjab 1968 PLJ 297 observed as follows:-

"The question whether the disputed land is banjar qadim land or not is a question of fact and that fact had to be decided by the Collector. There is dispute between the parties as to whether that land is banjar qadim or not. The appellant did not contend before the Collector before the impugned order was made that the land in question is a banjar qadim land and consequently the same had to be excluded from consideration in determining the surplus area. The proceedings before the Collector proceeded on the basis that the said land fell within the scope of Section 2 (8) of the Act. It was for the appellant to plead before the Collector that the land in question was a banjar qadim land."

Admittedly, he had included that land in the declaration filed by him u/s 5 (a) of the Act. Before a Division Bench of this Court in Mansa v. Financial Commr. Haryana 1970 RLR 779 (Punj), there arose the question as to whether a landowner, who had not initially raised in course of proceedings before the Collector as to whether certain area of land was banjar qadim, could be allowed to raise it later. The question was answered in the negative. It was observed that raising of new point, which had not been raised at the initial stage, could not be allowed to be raised at the stage of revision and that the question of certain area of land being banjar qadim having been not raised in proceedings for determination of surplus area, it could not be reopened in review or revision simply because, the High Court in some other case had taken the view that the area described as banjar qadim in revenue papers, was not ''land'' within the definition of that word given in Section 2 (8) of the Punjab Security of Land Tenure Act.

For the reasons recorded above, we disallow the appeals and affirm the judgment of the learned Single Judge, without any order as to costs.

Appeals rejected.