KANDHARA SINGH Vs. BHAJAN SINGH

JUDGEMENT

(1.) Proceedings for declaration of surplus area relating to the land of Balbahadur Singh and others in village Dailpur-Bhai-Ka, Tehsil Phul, District Bhatinda, were taken up under the provisions of Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter called the Act), and different orders were pased by the authorities between 3rd June, 1960 and 30th March, 1961. Respondent Bhajan Singh son of Harnam Singh, since deceased and represented by his legal representatives, claimed that he was an old tenant on the land of Lal Singh landlord at the commencement of the Act, but the land under his tenancy was also declared surplus without any notice to him. On coming to know that the area comprised in his tenancy had been declared surplus, he submitted an application to the Collector alleging that the order regarding the declaration of surplus area in respect of the land under his tenancy was wrong and should be set aside. His application was rejected by the Collector, vide his order, dated October 24, 1961 (Copy Annexure 'A'). Bhajan Singh then filed an appeal against the aforesaid order to the Commissioner, Patiala Division, under Section 32-D(3) of the Act, but without success. He thereafter, approached this Court under Articles 226 and 227 of the Constitution, vide Civil Writ No. 1180 of 1962, on January 9, 1963, which was considered along with some other similar writ petitions. Shamsher Bahadur, J., while accepting the writ petition, set aside the order of the Commissioner, dated June 21, 1962, and directed him to hear the appeal afresh in accordance with law, observing that he had failed to exercise the jurisdiction which obviously vested in him with the result that Bhajan Singh petitioner before him had been deprived of his valuable right of appeal, the main order having been passed in Civil Writ No. 1103 if 1962 filed by one Labhu Singh (copy Annexure 'C'). In pursuance of the aforesaid direction, the Commissioner took up the case for reconsideration and remanded the same to the Collector for a fresh decision in accordance with law, vide his order, dated September 26, 1963 (copy Annexure 'D'). Thereupon the Collector (Agrarian) Bhatinda, vide his order, dated July 3, 1964 (copy Annexure 'E') held that Bhajan Singh was an old tenant and the area under his tenancy could not have been declared surplus and allotted to other tenants. He therefore, ordered that any allotment made by the Prescribed Authority shall be cancelled. It was further ordered by him, vide his order, dated April 30, 1965 (copy Annexure 'F') that Bhajan Singh should be given possession of the land which was due to him and that if it had been allotted to other settlers it should be retrieved from them and they should be accommodated on some other surplus area. Kandhara Singh and other settlers then came into the race and they got an order passed in their favour from the Collector (Agrarian Reforms) Bhatinda, dated September 9, 1965, to the effect that the settlers be not disturbed and Bhajan Singh be accommodated on some other surplus land (vide (copy Annexure 'G'). That order was challenged by Bhajan Singh in appeal before the Commissioner, Patiala Division, who by his order, dated January 23, 1967 (copy Annexure 'H') reversed the order of the Collector, dated September 9, 1965, and ordered that Bhajan Singh be put in possession of the land which was in his cultivation. Thereupon Kandhara Singh and other settlers went in revision against the aforesaid order of the Commissioner to the Financial Commissioner, Punjab, who, vide his order, dated February 28, 1968 (copy Annexure 'I'), set aside the order of the Commissioner, dated September 9, 1965 and ordered that the allotment of surplus area to the settlers shall stand. Feeling aggrieved against the aforesaid order of the Financial Commissioner, Bhajan Singh and one Lal Singh approached this Court, under Articles 226 and 227 of the Constitution of India for quashing the impugned order on the ground that the order of the Commissioner, dated January 23, 1967 (copy Annexure 'H') was passed by him under Section 32-D(3) of the Act as a delegate of the State Government and the said order had become final, and, therefore, the same could not be reversed by the Financial Commissioner exercising the powers of the State Government under sub-section (4) delegate of the State Government and the said order had become final, and, therefore, the same could not be reversed by the Financial Commissioner exercising the powers of the State Government under sub-section (4) of Section (4) of Section 32-D of the Act. When the writ petition came up for hearing before D.S. Tewatia, J., on an objection having been raised to the filing of a joint petition, the learned counsel for the writ-petitioners made a statement at the bar that the writ petition be treated as having been filed only on behalf of Bhajan Singh petitioner. It appears that during the pendency of the writ petition Bhajan Singh died and his legal representatives, namely, Parsin Kaur and seven others, were brought on record. Gurmukh Singh and Mit Singh, respondent Nos. 3 and 5 respectively in the writ petition, also died during the pendency of the writ petition. Civil Miscellaneous No. 170 of 1974 having been moved by the writ petitioners seeking permission of the Court to bring the legal representatives of the deceased respondents on record, the learned Single Judge, while rejecting the application on the ground that the same had been filed after the expiry of more than three years, ordered that the legal heirs of the deceased respondents would not in any manner be affected by the orders passed in the writ petition. The learned Single Judge vide his order, dated July 29, 1974, allowed the writ petition against the respondents (now appellants) other than respondent Nos. 3 and 5 and set aside the orders of the Financial Commissioner, dated February 28, 1968, and directed the Revenue Authorities to put the writ petitioner in possession of that area which was under his tenancy or the area that stood allotted to him in lieu thereof after consolidation. Feeling aggrieved against the order of the learned Single Judge, Kandhara Singh and Maghar Singh have filed the present appeal under clause 10 of the Letters Patent.

(2.) The sole argument advanced by the learned counsel for the appellants before us is that the order, dated January 23, 1967 (copy Annexure 'H') had been passed by the Commissioner under Section 39(2) of the Act, and that the Financial Commissioner was very much within his jurisdiction to set aside the same in the exercise of his revisional powers under the provisions of Section 39(3) of the Act. He, therefore, argues that the finding of the learned Single Judge that the Financial Commissioner had no jurisdiction to set side the order of the Commissioner is not sustainable in the eyes of law. To properly appreciate the argument of the learned counsel for the appellants it is necessary to examine the relevant provisions of Section 32-D and Section 39 of the Act which are in these terms :-

(3.) Section 39 of the Act forms part of Chapter VI, which deals with miscellaneous matters. In other words, the provisions of this Section are in general terms and relate to appeals or revisions against the action initiated under the Act by the Prescribed Authority or the Assistant Collector Ist Grade, in cases falling under Section 32-J of the Act as well as orders passed under the Utilisation of Surplus Area Scheme 1960 framed under the aforesaid section and also some of the cases falling under Chapters III and IV-A of the Act. It cannot be disputed that the land which belonged to big landowners and was under the tenancy of Bhajan Singh, was declared as surplus area under Section 32-D of the Act without any notice to him. Naturally Bhajan Singh was aggrieved by this order and he agitated the same up to the level of the Commissioner in appeal and getting no relief, approached this Court by filing a writ petition. It was under the orders of this Court that the Commissioner was directed to hear the appeal afresh in accordance with law. It was in pursuance of the orders of this Court that Shri H.B. Lall, Commissioner, Patiala Division, vide his order, dated September 26, 1963 (copy Annexure 'D') then reconsidered the grievance of Bhajan Singh and remanded the case to the Collector for though examination and fresh decision in accordance with law. Thereafter, the Collector vide his order, dated July 3, 1964, held that Bhajan Singh being an old tenant, the area under his tenancy could not be declared as surplus and allotted to other tenants. Throughout these proceedings the controversy remained confined to the declaration of surplus area of the land which was under the tenancy of Bhajan Singh. It was after the passing of the order dated July 3, 1964, that the settlers entered the race. Under Section 22 of the Act an old tenant was legally entitled to purchase the land of his tenancy and the same could not be declared as surplus and allotted to other tenants. It is on this basis that the Commissioner, Patiala Division, while accepting the appeal of Bhajan Singh gave a direction that he should be put in possession of the land which was under his tenancy. The learned Commissioner, therefore, passed the order (copy Annexure 'H') while deciding the appeal before him under the provisions of Section 32-D(3). In that capacity he acted as a delegate of the Government and exercised its powers as such. The remedies provided under Section 39 of the Act, as already stated, are, therefore, not applicable to cases like the present.