KUL BHUSHAN Vs. FAQUIRA

JUDGEMENT

(1.) The facts giving rise to this appeal are not in dispute. Bihari Lal was a big land-owner. His surplus area was determined and declared under the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Act), on January 28. 1960, In December that year Bihari Lal died. More than 2 1/2 years later, the area which was surplus in the hands of Bihari Lal was allotted to the tenants who are now respondents before us. Possession of the allotted area was also given to the tenants. On October 30, 1969, Kul Bhushan and others (the sons and widow of Bihari Lal), heirs of Bihari Lal filed a suit for possession of the land in dispute on the ground that there was no surplus land in the hands of the plaintiff-appellants who had become small land-owners after the death of Bihari Lal and before the utilisation Of the land, and, therefore, they had been illegally dispossessed of the land which order could not be justified under the Act. The suit was contested by the tenant-respondents on various grounds which led to the framing of as many as ten issues which are reproduced below:-"

(2.) In this appeal under Clause X of the Letters Patent against the said judgment of the learned Judge in Chambers it has been contended by Mr. Pitam Singh Jain that the jurisdiction of Civil Court is excluded by Section 25 of the Act for trying only such suits wherein the validity of any proceeding or order taken or made "under this Act" is sought to be called in question. His argument is that the order of utilisation and giving possession of the land in dispute to the contesting respondents was not an order under the Act as the Act did not permit any such order being passed and did not envisage possession of land of the plaintiff-appellants being given to the respondents, and that the plaintiffs were not big land-owners under the Act and did not have any surplus area in their hands. The plaintiffs did not contest the declaration of surplus area in the hands of their predecessor-in-interest, that is Bihari Lal. They have not at any stage attacked the validity, legality or correctness of the order passed under the Act on January 28, 1960. The argument of the learned counsel is based on a plain reading of Section 10-A (a) and (b) read with Section 10-B of the Act. Those provisions are in the following terms:-" 10-A. (a) The State Government or any officer empowered by it in this behalf, shall be competent to utilise any surplus area for the resettlement of tenants ejected, or to be ejected, under Clause (i) of Sub-section (1) of Section 9. (b) Notwithstanding anything contained in any other law for the time being in force, and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in a surplus area at the commencement of this Act, shall affect the utilisation thereof in Clause (a). 10-B. Saving by inheritance not to apply after utilisation of surplus area. Where succession has opened after the surplus area or any part thereof has been utilised under Clause (a) of Section 10-A, the saving specified in favour of an heir by inheritance under Clause (b) of that section shall not apply in respect of the area so utilised." Section 10-A (a) authorises the State Government or any officer empowered by it to utilise "any surplus area". Clause (b) of that section which overrides Clause (a) on account of the non obstante Clause with which it (clause (b)) begins expressly saves from the operation of Clause (a) any area which has ceased to be surplus either on account of acquisition by the State under any law or which may be in the hands of an heir who has got it by inheritance. On the findings of fact recorded in this case which have not been challenged before us it is patent that the plaintiffs were not big land-owners and the land which each one of them had acquired by inheritance was within the permissible ceiling and none of them had, therefore, any surplus area. Tisings would have been different if the surplus area in the hands of Bjhari Lal had been utilised before his death. By operation of Section 10-B, the saving specified in favour of the heirs by inheritance under Clause (b) of Section 10-A would not then have applied to the case. In this case, however, it is the admitted fact that the order of utilisation and possession in favour of the allottee-tenants was made, passed and implemented after the death of Bihari Lal. Section 10-B of the Act has, therefore, no application to the case which is fully covered by Section 10-A (b). That being the case, it appears to us that the proceeding or order which is sought by the respondents to be made unvulnerable under Section 25 of the Act was not taken or made "under the Act" and, therefore, Section 25 which is reproduced below has no application to the case:--

(3.) The learned single Judge has taken the view that the order of utilisation was a mere wrong order or an illegal order, and, therefore, it was for the plaintiff to approach the authorities under the Act to avoid that order or proceeding. It was on that basis that the learned Judge has held that the plaintiffs would have to seek a declaration that the order passed by the authorities "under the Act" should be set aside. There is no quarrel with the proposition of law that if the order had been merely wrong, illegal or invalid but passed "under the Act", the jurisdiction of the Civil Court to question the same would have been barred by Section 25 and the plaintiffs would have to approach the authorities under the Act to set that order aside. Nor have we any doubt that even in the present case the plaintiffs could have, if so advised, approached the authorities under the Act for setting aside the order and proceeding of utilisation. Even a Court without jurisdiction has the jurisdiction to decide whether it can or cannot be approached for granting a relief or whether its jurisdiction is or is not barred under a statutory provision. That does not, however, mean that a person is compelled to have an order which' is void ab initio and non est avoided by having resort to a proceeding under the particular enactment under which the order purports to have been passed. This has been authoritatively laid down in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. It was held by their Lordships that it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. Their Lordships observed that a defect of jurisdiction strikes at the very authority of the Court to pass any decree, and, such a defect cannot be cured even by, consent of parties. Be that as it may, the bar under Section 25 of the Act is very much restricted. It is settled law that exclusion of the ordinary Civil Court's jurisdiction under Section 9 of the Code of Civil Procedure has not to be readily inferred, but must be strictly proved. Once it is held that the proceeding or order of utilisation of the lard of the plaintiffs after the death of Bihari Lal was not one under the Act, it only needs reference to the decisions of the Privy Council, the Lahore High Court and the authoritative pronouncement of their Lordships of the Supreme Court in the following cases to hold that the exclusion of the Civil Court's jurisdiction under Section 25 of the Act has no application to the facts of the present case:-- (i) Secretary of State v. Mask and Co., AIR 1940 PC 105; (ii) Lahore Electric Supply Co. Ltd. v. Province of Punjab, AIR 1943 Lah 41 (FB); (iii) K. L. Gauba V. Punjab Cotton Press Co. Ltd., AIR 1941 Lah 234 (FB) and (iv) Dhulabhai etc. v. State of Madhya Pradesh, AIR 1969 SC 78.