PETITIONER:
SURJA
Vs.
RESPONDENT:
HARDEVA AND ORS.
DATE OF JUDGMENT:
17/10/1968
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
BACHAWAT, R.S.
CITATION:
1970 AIR 1193 1969 SCR (2) 448
ACT:
Punjab Security of Land Tenures Act (Punj. 10 of 1953)
ss.1 and 24--Land sought to be purchased by tenant--Land
reserved of selected--Whether a question of jurisdiction-
Revisional powers of Financial Commissioner.
HEADNOTE:
The appellant a tenant of. the respondent l(a big, land-
owner). applied. for purchase of the.land cultivated by him
under s. 18 of the Punjab Security of Land Tenures Act, 1953
alleging that he had been in possession of the land for more
than. six years and the land was outside the reserved area
of the-land-oWner. The respondent alleged. that th land was
reserved. The Assistant Collector .held that the appellant
was entitled. to purchase the land'. The respondent filed
an appeal t the Collector. The Collector dismissed the
appeal. The responder then filed a revision to the
Commissioner. While the revision was pending the Financial
Commissioner gave a decision in another matter that a
selection by land-owner under s2 5B(1) for permissible area
under the Act had the same force as.'reservation.under s. 5,
of the Act. There respondent thereupon filed an-application
stating that the entire land dispute was included in the
permissible area selected by him under s. 5-B and as this
disentitled the tenant from purchasing the land prayed that
he may be allowed to raise this plea which involved a
question of jurisdiction. The Commissioner satisfied
himself that the selection document was filed within time
and felt that the land could not purchased and submitted
the case to the Financial Commissioner with the
recommendation that the. revision be accepted. The
Financial Commissioner however dismissed the revision
holding that as the respondent had not put the plea of
selection before Assistant Collector or Collect he could not
be allowed to do so at that stage. The respondent filed a
petition in the High Court and the High Court allowed the
petitioning that the Financial Commissioner should have
accepted the recommendation made by the Commissioner.
In appeal this Court,
HELD: The Financial Commissioner should have gone
into question whether Commissioner's report was acceptable
or not on merits
The question whether the land sought to be purchased by
the appellant was part of the reserved or selected area was
a jurisdictional f Under s. 18 of the Act a tenant is only
entitled to purchase land is not included in the reserved
or selected area of the land-ow Under s. 18(2) the
Assistant Collector is only authorized to determine the
value .of the land after making such enquiries as he thinks
fit. is not authorized expressly to go into the question
whether the sought to be purchased is included in the
reserved or selected are the land-owner or not. But he
should go into these questions be embarking or determining
the price and by wrongly deciding. that.
449
tion he cannot finally confer on himself jurisdiction to
deal with the matter. The revisional power of the Financial
Commissioner under s. 24 of the Act read with s. 84 of the
Tenancy Act being the same as that of the High Court in
exercise of that power the Financial Commissioner had
jurisdiction to go into the question whether the Assistant
Collector or the Collector had rightly assumed jurisdiction.
[453 E--G]
As the question whether the selection by the land-owner
was made in time and whether it was genuine and valid had to
be decided the matter must be remanded to the Financial
Commissioner for decision on these points.
Chaube Jagdish Prasad v. Chaturvedi, [1959] Supp. 1
S.C.R. 733, 746 and Jagannath Ramchandra Datar v. Dattaraya
Balwant Hingmire, C.A. No. 585 of 1964 dated 9-9-1966,
followed.
Rai Brij Raj Krishna v.S.K. Shaw [1951] S.C.R. 145,
Queen v. Commissioners for Special Purposes of Income tax,
21 Q.B.D. 313 and Colonial Bank of Australia v. Willan L.R.
5 P.C. 417, held inapplicable.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 778 of
1966.
Appeal by special leave from the order, dated May 25,
1965 of the Punjab High Court in Letters Patent Appeal No.
146 of 1965.
S.V. Gupte and Naunit Lal, for the appellant.
A.K. Sen, S.C. Mohatta and A.D. Mathur, for respondent
No 1.
V. C. Mahajan and R.N. Sachthey, for respondent Nos. 2,
3 and 4.
The Judgment of the ‘Court was delivered by
Sikri, J. This appeal by special leave is directed
against the judgment and order of the High Court of Punjab
in Letters. Patent Appeal No. 146 of 1965 whereby the High
Court dismissed in limine the Letters Patent Appeal filed by
the appellant Surja against the judgment of the learned
Single Judge allowing the writ petition filed by the
respondent, Hardeva. .
The relevant facts for determining the points raised
before us are as follows; Hardeva, respondent before us, is
a big landlord of village Panniwala Mota in Sirsa Tahsil of
Hissar District. Surja, the appellant, was an old tenant of
Hardeva and had been cultivating the land in dispute since
about 1949. Section 18 of the Punjab Security of Land
Tenures Act, 1953 (Punj..Act X of 1953)-hereinafter referred
to as the Act–entitles a tenant of a land-owner other than
a small land-owner to purchase from the land-owner .the land
held by him, but not included in the reserved area of the
land-owner if he satisfies the conditions laid down in that
section. Section 18(1) & (2) may be set out.
450
“18(1) Notwithstanding anything to the contrary
‘contained in any law, usage or contract, a tenant of a
land-owner other than a small land-owner-
(i) who has been in continuous occupation of the land
comprised in his tenancy for a minimum period of six years,
or
(ii) who has been restored to his tenancy under the
provisions of this Act and whose periods of continuous
occupation of the laud comprised in his tenancy immediately
before ejectment and immediately after restoration of his
tenancy together amounts to six years or more, or
(iii) who was ejected from his tenancy after the 14th
day of August 1947, and before the commencement of this Act,
and who was in continuous occupation of the land comprised
in his tenancy for a period of six years or ,more
immediately before his ejectment, shall be entitled to
purchase from the land-owner the land so held by him but not
included in the reserved area of the land-owner, in the case
of a tenant falling within clause (i) or clause (ii) at any
time, and in the case of a tenant falling within clause
(iii)’ within a period of one year from the date of
commencement of this Act;
Provided that no tenant referred to in this
subsection shall be entitled to exercise any such fight in
respect of the land or any portion thereof if he had sublet
the land or the portion, as the case may be, to any other
person during any period of his continuous occupation,
unless during that period the tenant was suffering from a
legal disability or physical infirmity, or, if a woman, was
a widow or was unmarried;
Provided further that if the land. intended to be
purchased is held by another tenant who is entitled to
preempt the sale under the next preceding section, and who
is not ‘accepted by the purchasing tenant, the tenant in
actual occupation shall have the right to pre-empt the sale.
(2) A tenant desirous of purchasing land under sub-
section (1) shall make an application in writing w an
Assistant Collector of the First Grade having jurisdiction
over the land concerned, and the-Assistant Collector, after
giving notice to the land-over and to all other persons
interested in the land and after making such inquiry as he
thinks fit, shall. determine the value of
451
the land which shall be the average of the
prices obtaining for similar land in the
locality during 10 years immediately preceding
the date on which the application is made.”
Surja accordingly applied on August 5, 1957, to the
Collect or,Hissar District, stating that he intended to
purchase the land in dispute and that the land is outside
the reserved area of the landowner. He further alleged that
he had been in possession of the land for the last eight
years. Hardeva in his written statement, inter alia, stated
that Surja was in possession of the land only for three or
four years. He alleged that Surja had already 150 bighas of
cultivable land. He further stated that the land is
reserved and for that reason Surja was not entitled to
purchase it. In his evidence before the Assistant Collector
given on March 25, 1958, Hardeva deposed:
“The land is reserved. I do not know whether the land in
dispute is reserved or not.”,
By his order, dated March 31, 1959, the Assistant
Collector, Sirsa, held that Surja was entitled to purchase
the land in dispute, and, accordingly, fixed the price.
Regarding reservation he observed:
“It is admitted by the respondent that they
are big land-owners and got this land
reserved, but later on during his very cross-
examination, he denied any knowledge about the
reservation. The respondent produced no
evidence with regard to having this land got
reserved though they are big land-owners.”
Hardeva thereupon filed an appeal before the Collector, and
one of the grounds taken was that the Assistant Collector
erred in holding that the land in dispute was not reserved
land. The Collector, by his order, dated July 20, 1960,
dismissed the appeal. It was common ground before him that
Hardeva was a big landowner and that Surja had been in
continuous possession of the land in dispute for more than
six years, and the only point he determined was whether with
the addition of the 28 bighas and 12 biswas of land which
Surja had been permitted to purchase his total area would
exceed the permissible area or not. On this point he held in
favour of Surja and accordingly dismissed the appeal, .
Hardeva then filed a revision before the Commissioner.
In the grounds of revision dated October 27, 1960, various
grounds were taken but there was no ground regarding
reservation of land or selection of land under s. 5-B of the
Act. On February 1, 1961. Hardeva filed an application in
the Court of the Commissioner. In this application he
stated that the entire land in dis-
452
pute was included in the permissible area selected bY him
under s. 5-B of the Act by submitting form “E”. He further
stated that the Financial Commissioner had in Karan
Singh v. Angraz Singh (1). held that selection under s. 5
-B(1) had the same force as. reservation under s. 5 of the
Act, and this disentitled. Surja from purchasing the land in
dispute. He prayed that he may be allowed to raise the plea
of selection under s. 5-B (1). He stated, that tiffs plea
involved a question of jurisdiction and in the interest
of justice he may be permitted to raise this plea as an
additional ground of revision.
The Commissioner allowed the ground to be taken but as
Surja’s counsel suspected the bona fides of the selection,
the Commissioner sent for the original file and he satisfied
himself, after examining the original form “E” and the
affidavit in relation to form’ “E”, that. Hardeva had duly
submitted the selection document to the Collector within
time on June 19, 1958. It appears that the Financial
Commissioner had held in Dhanpat Raf v. State Punjab(2) that
the period of six months allowed by s..5-B for making
selection would start from March 22, .1958, the date when
the Punjab Government Notification proscribing the form was
issued. The Commissioner felt that the selected land could
not be purchased under s. 18 by the tenant. lie accordingly
submitted the case to the Financial Commissioner with the
recommendation. that the revision petition be accepted and
that the orders of the Assistant Collector and the
Collector be set aside.
The Financial Commissioner dismissed ,the revision. He
held that as Hardeva had not put forward the plea of
selection before the Assistant Collector or the Collector he
could not be allowed to do so at that stage. lie observed:
“In other words the consideration that reservation of
area under section 5 and selection of area under section 5-B
are identical in their effect has no relevance in the
present. cases for the reasons that it was never claimed
(except in revision) that the .area .had .been selected
under section 5-B. If such a claim had been made and
substantiated, the position would have been .different, but
since this.’ was not done, the ‘decision against the
petitioner cannot be challenged. it is also clear that
there is no question in these eases of authorities
concerned having acted without jurisdiction or having
exercised. it with illegality ‘or material .irregularity
which alone could justify interference ‘in revision.”
Hardeva then filed a petition under Arts. 226 and 227. of
the Constitution. The Court held that the Financial Commis
(1) (1960) 39 Lahore Law Times, 57, (2) (1961) Lahore Law
453
sioner should have accepted. the recommendation made by. the
Commissioner and accordingly allowed the petition and
declared that Surja was not entitled to purchase the land in
dispute selected by the land-owner under the provisions of
‘s. 5-B of the Act. The learned Single Judge was of the view
that the disputed question related. to junsdiction and .went
to the root of the whole matter.
It appears that there was some dispute before the
learned Single Judge about the date of the selection,
because the learned Judge observed:
“There is a slight dispute on the question whether the
intimation of selection was given on 19th or’ 20th of June,
1958”.
He, however. preferred to accept the finding of the learned
Commissioner on the point and gave the land.owner the
benefit of it. He further observed that the question could
not have been raised before the Assistant Collector and the
Collector because “the prevailing view up till 1960 appears
to have been that the selected area had. not been equated
with the reserved area” and it was because of this that
Hardeva had not placed it before the Assistant Collector
and the Collector although he had placed the point that the
area was part of the reserved area.
It seems to us that the High Court was right in holding
that the, question whether the land sought to be purchased
by Surja was part of the reserved or selected area was a
jurisdictional fact. Under s. 18 of the Act a tenant is only
entitled to purchase land which as not included in the
reserved or selected area of the landowner. Under S. 18(2)
the Assistant Collector is only authorized to determine the
value of the land after making such enquiries as he thinks
fit. He is not authorized expressly to go into the question
whether the land sought to be purchased is included in the
reserved or selected area of the land-owner or not. But,
obviously it must be the intention that he should go into
these questions before embarking on determining the price.
But by wrongly deciding that question he cannot finally
confer on himself jurisdiction to deal with the matter. In
exercise of the powers under s. 24 of the Act, read with s.
84 of the Tenancy Act, the Financial Commissioner had
jurisdiction to go into the question whether the Assistant
Collector or the Collector had rightly assumed jurisdiction.
It was urged before us that the orders of the Assistant
Collector and the Collector were final and could not be
assailed on the ground that they had wrongly assumed
jurisdiction. Reliance was placed on authorities. like Rai
Brij Raj Krishna v. S..K. Shaw(1) where
(1) [1951] S.C.R. 145.
454
this Court referred to Queen v. Commissioners for Special
Purposes of Income Tax (1) and Colonial Bank of Australia
v. Willan,(2) That was a case of a suit whereby the order of
the Commissioner under the Bihar Buildings (Lease, Rent and
Eviction) Control Act, 1947 (s. 11) was sought to be
declared illegal, ultra vires and without jurisdiction, but
we are concerned with the revisional power.of the Financial
Commissioner which is the same as that of the High Court.
As observed by Kapur, J., speaking for the Court, in Chaube
Jagdish Prasad v. Chaturvedi,.(3) these cases have no
application to the exercise of revisional power. He
observed:
“The appellant also relied on Rai BrijRai
Krishna v.S.K. Shaw and Bros.(4) where this
Court quoted with approval the observations of
Lord Esher in Queen v. Commissioner for pecial
Purposes of the Income Tax(1) and Colonial
Bank of Australia v. Willan(a), where Sir
James Colville said:
“Accordingly the authorities…establish
that an adjudication by a Judge having
jurisdiction over the subject matter is, if no
defect appears on the face of it, to be taken
as conclusive of the facts stated therein and
that the Court of Queen’s Bench will not on
certiorari quash such an adjudication on the
ground that any such fact, however,
essential, has been erroneously found.”
But these observations can have no
application to the judgment of the Additional
Civil Judge whose jurisdiction in the present
case iS to be determined by the provisions of
s. 5 (4) of the Act. And the power of the
High Court to correct questions of
jurisdiction is to be found within the four
corners of s. 115. H there is an error which
falls within this section the High CoUrt will
have the power to interfere, not otherwise.
The only question to be decided in the
instant case is as to whether ,the High Court
had correctly interfered under s. 115 of the
Code of Civil Procedure with the order of the
Civil Judge. As we have held above, at the
instance of the landlord the’suit was only
maintainable if it was based on the inadequacy
of the reasonable annual rent and for that
purpose the necessary jUrisdictional fact to
be found was the date of the construction of
the accommodation and if the court wrongly
decided
(1) 21 Q.B.D. M3. (2) L.R. 5 P.C. 417.
(3) [1959] Supp. 1 S.C.R. 733, 746. (4) [1951] S.C.R. 145.
455
that fact and thereby conferred jurisdiction
upon itself which it did not possess, it
exercised jurisdiction not vested in it and
the matter fell within the. rule laid down by
the Privy Council in Joy Chandlal Babu v.
Kamalksha Chaudhury(1). ‘ The High Court had
the power to interfere and once it had the
power it could determine whether the question
of-the date of construction was rightly ,or
wrongly decided. The High .Court held that
the Civil Judge had wrongly decided that the
conStruction was of a date after June 30,
1946, and therfor fell within s. 3-A.”
Similarly, in Jagannath Ramchandra Datar v. Dattaraya
Balwant Hingmire(2) this Court observed:
“Therefore if it can be shown that the
subordinate court without any evidence
whatsoever held that the’ transaction in
question was not a sale but a mortgage and
that the relationship between the parties was
that of a debtor and a creditor and on that.
footing proceeded to exercise its power under
section 3 and 10 A of the Dekhan
Agriculturists Relief Act the High Court would
be entitled to interfere with such a decision
under both the parts of s. 115. It would
then’ be possible to say that the subordinate
court had clutched at jurisdiction which it
had not under the said section and it would
also be possible to say that court had
exercised its jurisdiction illegally or with
material irregularity.”
It seems to us that the Financial Commissioner did not
appreciate the content of his powers of revision under s.
24, read with s. 84 of the Tenancy Act. It was obvious from
the report of the Commissioner that if the finding arrived
at by the Commissioner was accepted the Assistant Collector
and the Collector had no jurisdiction in the matter.
In our opinion the Financial Commissioner should have
gone into the question whether the Commissioner’s report was
acceptable or not on merits.
It is urged by the learned counsel for Surja that the
High Court did not decide the question whether the selection
had been properly made within time, but it merely, accepted
the report of the Commissioner. He, therefore, still
disputes the fact that the selection was made within time.
He also says that it is not a genuine and valid selection.
These points should be gone into by the Financial
Commissioner. Under these circumstances we allow the
appeal, set aside the orders passed by the High Court
(1) 1949 L.R. 76 I.A. 131.
(2) Civil Appeal No. 585 of 1964–judgment delivered on
September 9, 1966.
456
and the Financial Commissioner and remit the case to the
Financial. Commissioner to dispose of the revision filed
before him in accordance with law.
There will be no order as to Costs in this appeal.’
Y.P. Appeal allowed.
458