AMARJIT SINGH Vs. FINANCIAL COMMISSIONER TAXATION PUNJAB CHANDIGARH

JUDGEMENT

(1.) THESE five writ petitions, (C. W. P. No. 3097 of 1977, 3255 of 1977, 3254 of 1977, 3253 of 1977 and 3252 of 1977) deal with a common question of law and fact and hence can conveniently be disposed by a single judgment. The petitioners claim to be land--owners of different parcels of land situate in village Mehmood Khera, Tehsil Muktsar, District Faridkot. The land originally belonged to one Balwant Singh who died on Jan. 13, 1967 and the petitioners became owners by succession and respondents 2 and 3 are tenants and since they failed to pay rent from Rabi 1968 to Kharif 1970, and also failed to cultivate the land property, and thus they rendered it unfit for cultivation, the petitioners filed an application under S. 9 (1) (ii) of the Punjab Security of Land Tenures Act for the ejectment of the respondents 2 and 3. The plea of the respondents 2 and 3 was that they had paid rent to one Paras Ram, who held power of attorney from the petitioners. The plea prevailed with the Assistant Collector and the application of the petitioners was dismissed on January 24, 1972. Thereafter the petitioners filed appeal before the Collector, Faridkot, which too was dismissed. Thereafter a revision petition was filed before the Commissioner, Patiala Division, which was also dismissed in the year 1973. Finally a revision was filed by the petitioners before the Financial Commissioner Punjab, respondent No. 1 and by his order dated April 2, 1976 the plea of the petitioners was accepted and the order of ejectment was passed against the respondents 2 and 3 from the land in dispute. Being dissatisfied with the order of the Financial Commissioner, the respondents filed a Civil Writ Petition before the High Court, which was dismissed in limine by a Division Bench on May 5, 1976. After the judgment was pronounced in the Civil Writ Petition, respondents 2 and 3 were ejected from the disputed land and possession was delivered to the petitioners. Since then, the petitioners are in possession over the land. Respondents 2 and 3, however, became active once again and filed an application for review before the Assistant Collector, Muktsar, stating that they were resettled tenants over the surplus land of which the original owner was Balwant Singh, and under para No. 13 of the Punjab Utilisation of Surplus Area Scheme, 1973 (hereinafter to be referred as 'the Scheme') they were not the tenants and as such could not be ejected from the land of which the original owner was Balwant Singh, and under para No. 13 of the Punjab Utilisation of Surplus Area Scheme, 1973 (hereinafter to be referred as 'the Scheme') they were not the tenants and as such could not be ejected from the land. The said application was, however, dismissed by the Assistant Collector. Thereafter respondents 2 and 3 filed review application before the financial Commissioner, respondent No. 1, on the very same ground and succeeded. The Financial Commissioner held that he can review his previous order and held respondents 2 and 3 to be allottees of the disputed land within the meaning of para 13 of the Scheme and as such they were not liable to ejectment. The petitioners contended that the order of the Financial Commissioner, Annexure P--1, which was confirmed by the High Court in the Civil Writ Petition could not be reviewed by the Financial Commissioner. It was no longer the order of the Financial Commissioner but had merged into the order of the High Court and the Financial Commissioner had no jurisdiction to review that order. Besides, it was also contended that the review application was barred by limitation as prescribed under S. 82 (1) (b) of the Punjab Tenancy Act. Therefore, the petitioners claimed for a Writ in the nature of Certiorari quashing the order Annexure 'p--2' of the Financial Commissioner, respondent No. 1, Whereby he reviewed his previous order and held respondents 2 and 3 to be allottees and not tenants under the petitioners.

(2.) THE contentions of respondents 2 and 3 are that they were ejected tenants under S. 9 (1) (i) of the Punjab Security of Land Tenures Act, 1953 (hereinafter to be referred to as Act No. X of 1953) and under S. 10--A of this Act, they were to be resettled as tenants over the surplus area of the said Balwant Singh. That being so, under Para No. 13 of the Scheme, they were rightly held to be allottees and not the tenants. Since the previous order of the Financial Commissioner was obviously illegal, the same was set aside in review before the same authority. In fact respondents 2 and 3 could not urge the said contention before the Assistant Collector, Collector, Commissioner and the Financial Commissioner and even in the High Court due to a mistake committed by their counsel. It was only alter on that they learnt about the plea and hence got the matter reviewed by the Financial Commissioner. The Financial Commissioner had in fact condoned the delay, whatever committed in filing the review application and as such the same was competent before him. Regarding the merger of the order of Financial Commissioner with the order of the High Court in the Civil Writ Petition, it was submitted that since the petition was dismissed in limine and the present plea was not contended in that petition, the order of the High Court could not be deemed to have decided this plea and as such the Financial Commissioner was at liberty to review his previous decision. In fact he had not reviewed the order of the High Court but he had reviewed his own order for which he had the jurisdiction. It was also stated that it was an admitted case between the parties that respondents 2 and 3 were resettled tenants within the meaning of S. 10--A (a) of the Act No. X of 1953. On these allegations it was contended that the writ petitions have no force and that the same be dismissed.

(3.) THE doctrine of merger is well recognised in law. Much less to say, the doctrine has a direct bearing on the principle of res judicata, as the objects to be achieved by the application of this doctrine are twofold: (a) to avoid multiplicity of proceedings, and (b) to achieve the finality in decision. The rule of res judicata has always been applied to a decision of High Court in writ petition. The basis on which the rule of res judicata is founded, is on a principle of public policy. It is in the interest of public that finality is attached to a binding decision pronounced by a Court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over for the same litigation. The doctrine of merger comes in when the decision of the interior Court merges with the decision of the Superior Court and thereafter if anybody wants to challenge that decision, he is the direct his efforts against the decision of the Superior Court. This question very often arises whenever a challenge is made to the decision arrived at and a question of limitation arises or a question of jurisdiction crops up. It may as well be that a dispute arises as to what were the questions of fact and law decided by the Court. For all these considerations one has to look into the decision of the superior Court and it is that decision which prevails over the decision of the inferior Court. It is settled that the High Court was a superior Court as compared to the Financial Commissioner. The learned Judge who decided Rajwant Singh (AIR 1974 Punj 137 ) (supra) emphasised on the hierarchy of Courts and pointed out to the extraordinary jurisdiction of the High Court. In our opinion the doctrine of merger cannot be made to depend on any such conception, so long it is held that the superior Court was competent to go into the very same question which arose before the inferior Court. It could be in ordinary revision or appeal, or it could be a constitutional remedy or it could be a writ petition filed in the High Court. It is nevertheless correct that the High Court had also exercised the statutory jurisdiction under Art. 226, Therefore, the decision of the High Court being the decision of a Superior Court, if it deals with the very same question of law and fact, which had culminated in the decision of the Financial Commissioner positively merged in the decision of the High Court. Therefore, the emphasis of Shri Dhingra on the basis of Rajwant Singh (supra), that the High Court did not fall within the hierarchy of Courts starting from Assistant Collector and ending with the Financial Commissioner and that the High Court exercised extraordinary jurisdiction in writ petition, would be of no consequence. This is so spelled out from so many other decisions of the Supreme Court in which the plea of merger was successfully raised and upheld by that Court. Even the conception of a statutory remedy under a different statute would be of no avail. The contention of Shri Dhingra is that because of that statutory remedy the decision by a superior Court even on merits, would be brushed aside by an inferior Court provided the latter exercises jurisdiction under a statute and a specific remedy is given. This would not only be against the public policy, but would also greatly affect the doctrine of res judicata and would confer jurisdiction on inferior tribunals to set at naught the decisions of superior Courts including, of the High Court in writ jurisdiction. This could not conceivable be the position.