Phul Chand vs Parbhati and Another

R.L. Anand, J.—This is a defendant''s appeal and has been directed against the judgment and decree dated 5.11.1979, passed by the Court of Additional District Judge, Narnaul, who allowed the appeal of the plaintiff and decreed his suit by holding that the impugned orders dated 27.1.1961 and 27.11.1973 as 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:-

Parbhati son of Richhpal, plaintiff filed a suit or declaration that the order dated 27.1.1961 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 27.1.1961, the Prescribed Authority passed an order under Para-6 of the Pepsu Utilisation of Surplus Area Scheme, 1960 (hereinafter referred to ''the Scheme'') holding that the plaintiff was ejectable under Sub-section (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 2.2-1/9 standard acres under para-8 of the Scheme wherever 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 holing that the owner of the land could eject the tenant 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 27.1.1961 was a nullity for the various reasons given in para-3 of the plaint and the order dated 27.11.1973 passed by the Collector, Agrarian, was also bad.

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 order was 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 27.1.1961 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 Utilisation 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 Section 32-J of the Pepsu Tenancy and Agricultural Lands 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 u/s 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 27.1.1961 and the order dated 27.11.1973 are illegal. The reasons given by the first appellate court in para-11 can be quoted with advantage and the same read as under:-

"After considering the arguments advanced by the learned counsel for the parties and going through the authorities cited by them I am of the opinion that the argument of the learned counsel for the appellant that the impugned order dated 27.1.1961 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 25.10.1960 vide order dated 6.10.1960, Copy Ex.P-4. Vide order dated 25.10.1960, Copy Ex.P5, the prescribed authority adjourned the case for the written statement of the appellant to 21.11.60 on which day it was again adjourned for the written statement of the appellant to 5.12.60, copy Ex.P-6. A perusal of order dated 5.12.60 Ex.P7 goes to show that the case was again adjourned to 30.12.60 on which day vide order copy Ex.P9 the case was adjourned to 27.1.61 for the written statement. In the impugned order dated 27.1.61 Ex.P1 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 27.1.19961 and, therefore, the prescribed authority was constrained to pass the order tinder 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 land owner 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 u/s 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 from which the land owner 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.D-1 to D-7, 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 them in the estate from which the respondent land-lord sought ejectment and without obtaining the preference it was ordered that wherever the area was available under para 6 of the Scheme the same might 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 land owner 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 1957 Madras 496 supra it was held that where an order was nullity, the fact that there was an unsuccessful appeal would .pot prevent the High court from quashing the order. The authorities cited by the learned counsel for the respondents 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 appellant and against the defendant-respondents."

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. B.S. Gupta, Senior Advocate. 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 plaintiff-respondent. According to the learned counsel for the appellant, the Civil Court had no jurisdiction. More so, when the order dated 27.1.1961 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 27.1.1961 is to be read in the light of the previous orders passed by the Prescribed Authority. Drawing the history of the order, Ex.P-1, the counsel submitted that the appellant was the landlord and he submitted an application dated 28.6.1960 in the prescribed form-1, Ex.P-2 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 defendant-appellant was desirous of ejecting the plaintiff-respondent from the land of his tenancy and his tenancy was liable to be terminated u/s 7-A(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 25.10.1960. The plaintiff appeared before the Prescribed Authority who directed him to file the written statement on or before 21.11.1960. On that day, the tenant did not file the reply and the case was adjourned to 5.12.1960 for the said purpose on the request of the tenant. Again, on 5.12.1960, the plaintiff-respondent did not file the written statement and sought an adjournment, which was granted for 30.12.1960. Again, on 30.12.1960, the tenant did not file the reply and the case was adjourned to 27.1.1961. The counsel submitted that as many as five opportunities were granted to the tenant to rebut the case of the landlord and in-spite 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 27.1.1961, after taking into consideration the report of the Patwari, Ex.P-10.

10 With regard to the allegations of the landlords 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 27.1.1961, 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 five opportunity 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 27.1.1961 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 27.1.1961 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 provisions of the Act and that the impugned order dated 27.1.1961 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 pet 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 Court can interfere only if the orders suffer from inherent jurisdiction or there was non compliance 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.