SARMUKH SINGH Vs. SECRETARY TO GOVERNMENT OF PUNJAB

JUDGEMENT

(1.) Through this petition under Article 226 of the Constitution of India, the petitioner has challenged the order of the Financial Commissioner dated May 12, 1977, Annexure P-6, whereby order of the Commissioner Jullundur Division dismissing his complaint against the allotment of the surplus area to Sohan Singh respondent No. 6 was confirmed.

(2.) Ajaib Singh, predecessor-in-interest of the respondent Nos. 7 and 8 was a big landowner owning 61 standard acres of land situate at village Haveli, tehsil Nakodar and 3-1/2 standard acres in district Amritsar. The Special Collector Punjab vide his order dated January 13, 1961, allowed 46-1/2 standard acres of land situate at village Haveli and 8-1/2 standard acres in district Amritsar as his permissible area. Out of the remaining land situate at village Haveli 11-3/4 standard acres was declared as the permissible area of the petitioner as tenant and the remaining 3 standard acres and 1-1/4 standard units was declared as surplus area. The said surplus area was later on allotted to Sohan Singh respondent and its possession delivered to him on December 28, 1963 vide Annexure R-6/1. Thereafter, Sarmukh Singh, petitioner, made a complaint to the Collector that Sohan Singh got the said allotment made by suppression of the fact that he had been allotted another surplus area by the Collector in Kaithal. This complaint was enquired into by the Collector (Agrarian) Nakodar, who vide order dated September 4, 1967, directed that the Collector, Kaithal, be informed to take action against Sohan Singh. In pursuanee of that order, the area alotted to Sohan Singh in village Kabulpur, tehsil Kaithal was cancelled by the Collector (Agrarian) Kaithal, vide order dated September 25, 1967. In the meantime, Sarmukh Singh went in appeal before the Commissioner Jullundur Division against the order of the Collector Nakodar, dated September 4, 1967 who accepted that appeal and cancelled the allotment made in favour of Sohan Singh at village Haveli vide order dated December 12, 1967. This order was challenged by Sohan Singh through an appeal before the Financial Commissioner who set aside the order of the Commissioner and remanded the case to the Naib-Tehsildar Nakodar to hold a thorough enquiry and pass fresh order in accordance with law. After remand, the Naib-Tehsildar upheld the allotment of Sohan Singh and rejected the claim of Sarmukh Singh on the ground that he was not proved to be a tenant of the said area. Aggrieved by that order, Sarmukh Singh went in appeal before the Collector who reversed the order of the Naib-Tehsildar (Agrarian) and ordered that the surplus area be allotted to him. This order was set aside by the Commissioner Jullundur Division on appeal vide order dated August 18, 1975 and his order was confirmed by the Financial Commissioner. Dissatisfied with the said orders, the petitioner has come up to this Court by way of this petition.

(3.) The validity of the impugned order has been challenged on two grounds that the land in dispute formed part of the petitioner-tenant's permissible area and the same, therefore, could not be declared as surplus area and that Sohan Singh was not eligible for allotment of the surplus area according to the provisions of section 10-A of the Punjab Security of Land Tenures Act (hereinafter called the Act). In support of his first contention, the learned counsel for the petitioner relied on the order of the Collector, Jullundur, dated November 9, 1961, Annexure P-2, whereby whole of the land situate at village Haveli, apart from the permissible area of the landowner, was declared to be the permissible area of the petitioner. As regards the order of the Special Collector, the learned counsel contended that the same having been passed without notice to the petitioner does not bind him and was non est so far as he was concerned. I am, however, unable to agree with the contention of the learned counsel. The area of the landowner was situated in two districts and according to rule 4-B of the Act, the jurisdiction to determine surplus area in such a case is only that of the Special Collector. The order ofthe Collector, Jullundur, Annexure P-2, therefore, was wholly without jurisdiction. Moreover, the order of the Special Collector as held in Dhaunkal v. Man Kauri and another, 1970 RajdhaniLR 376 was only voidable for non-issuing of the notice to the tenant and not void ab initio as claimed by the petitioner. The learned counsel for the petitioner, however, challenged the correctness of the view of the Full Bench on the basis of the decision of the Supreme Court in the State of Punjab (now Haryana) and others v. Amar Singh and another, 1974 PunLJ 74 In that case the order passed between the landlord and the tenant under section 18 of the Act allowing the tenant to acquire proprietary rights was held to be not binding on the State because of its being not a party to those proceedings. The State was held to be not bound by the said order on the ground that it had no right of appeal against that order. On the other hand, in the surplus area proceedings the Special Collector is required to serve a notice on the tenant and as such he is deemed to be a party to those proceedings. The tenant, therefore, would be an aggrieved party and have the right of appeal against any other order passed by the Special collector. The ratio of the decision of the Supreme Court, consequently cannot be invoked in the present case to urge that the order of the Special Collector was void ab initio and non est qua the petitioner. The petitioner came to know of the said order on December 28, 1963 when the possession of the area declared surplus was delivered to Sohan Singh respondent but he never challenged that order. He, therefore, cannot be allowed to challenge that order now after a lapse of 14 years.