Surja v. Hardeva, (SC) BS75832
SUPREME COURT OF INDIA

Before:- S.M. Sikri and R.S. Bachawat, JJ.

Civil Appeal No. 778 of 1966. D/d. 17.10.1968

Surja - Appellant

Versus

Hardeva and others - Respondents

A. Punjab Security of Land Tenures Act, 1953, Sections 18 and 24 - Punjab Tenancy Act, 1887, Section 84 - Revision - Power of Financial Commissioner - In exercise of the revisional power under section 24 of the 1948 Act read with Section 84 of the Punjab Tenancy Act, the Financial Commissioner has the jurisdiction to go into the question whether the Assistant Collector or the Collector rightly assumed jurisdiction.

[Para 10]

B. Punjab Security of Land Tenures Act, 1953, Sections 18 and 24 - Punjab Tenancy Act, 1887, Section 84 - Civil Procedure Code, 1908 Section 115 Revision - Suit was only maintainable at the instance of the landlord if it was based on the inadequacy of the reasonable annual rent - For that purpose the necessary jurisdictional fact to be found was the date of the construction of the accommodation - If the Court wrongly decided that fact and thereby conferred jurisdiction upon itself which it did not possess, it exercised jurisdiction not vested in it.

[Para 11]

C. Punjab Security of Land Tenures Act, 1953, Sections 18 and 24 - Punjab Tenancy Act, 1887, Section 84 - Civil Procedure Code, 1908 Section 115 Revision - Jurisdictional fact - Question whether the land sought to be purchased by the tenant under Section 18 of the Punjab Security of Land Tenures Act was part of the reserved or selected area - Is jurisdictional fact.

[Para 10]

D. Punjab Security of Land Tenures Act, 1953, Sections 18 and 24 - Punjab Tenancy Act, 1887, Section 84 - Revisonal power of Financial Commissioner - Is the same as that of the High Court.

[Para 11]

E. Civil Procedure Code, 1908 Section 115 Revision - If a Court wrongly decides jurisdictional fact and thereby confers jurisdiction upon itself which, it did not possess, it exercises jurisdiction not vested in it - High Court has the power to interfere under Section 115 of the Civil Procedure Code - Once it has the power it can determine whether the jurisdictional fact was rightly or wrongly decided.

[Para 11]

Cases Referred :-

Karam Singh v. Angrez Singh, 1960(39) Lahore Law Times 57 : 1960 P.L.J. 51.

Dhanpat Rai v. State of Punjab, 1961 Lahore Law Times 8 : 1960 P.L.J. 64.

Rai Brij Krishna v. S.K. Shaw and Bros, 1951 S.C.R. 145.

Queen v. Commissioner for Special Purposes of Income Tax, (1888)21 Q.B.D. 313.

Colonial Bank of Australia v. Willan, (1874) L.R. 5 P.C. 417.

Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi, 1959 Supp. 1 S.C.R. 733.

Joy Chand Lal Babu v. Kamalaksha Chaudhry, 1949 L.R. 761. A. 131.

Jagannath Ramchandra Datar v. Dattaraya Balwant Hingmir, Civil Appeal No. 585 of 1964.

JUDGMENT

S.M. 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 learned Single Judge allowing the writ petition filed by the respondent Hardeva.

2. The relevant facts for determining the points raised before us are as follows :- Hardeva, respondent before us, is big landlord of village Panniwal Mota in Sirsa Tehsil 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 (Punjab Act X of 1953) - hereinafter referred to as the Act - entitles a tenant of a landowner other than a small landowner to purchase from the landowner the land held by him, but not included in the reserved area of the landowner if he satisfies the conditions laid down in that Section. Section 18(1) and (2) may be set out.

shall be entitled to purchase from the landowner the land so held by him but not included in the reserved area of the landowner, in the case of a tenant failing 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 :

3. Surja accordingly applied on August 5, 1957, to the Collector, 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 the 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 :

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 :

4. 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 big landowner and that Surja had been in continuous possession of the land in dispute for more than six years, and the only point to be determined was whether with the addition of 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.

5. 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 Section 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 dispute was included in the permissible area selected by him under Section 5-B of the Act by submitting Form "E". He further stated that the Financial Commissioner had in Karam Singh v. Angrez Singh ((1960)39 Lahore Law Times 57 : 1960 P.L.J. 51), held that selection under Section 5-B(1) had the same force as reservation under Section 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 Section 5-B(1). He stated that this 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.

6. 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 Rai v. State of Punjab (1961 Lahore Law Times 8 : 1960 P.L.J. 64), that the period of six months allowed by Section 5-B for asking selection would start from March 22, 1958, the date when the Punjab Government Notification prescribing the form was issued. The Commissioner felt that the selected land could not be purchased under Section 18 by the tenant. He accordingly submitted the case to the Financial Commissioner with the recommendation that revision petition be accepted and that the orders of the Assistant Collector and the Collector be set aside.

7. 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 would not be allowed to do so at that stage. He observed :

8. Hardeva then filed a petition under Articles 226 and 227 of the Constitution. The High Court held that the Financial Commissioner 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 landowner under the provisions of Section 5-B of the Act. The learned Single Judge was of the view that the disputed question related to jurisdiction and went to the root of the whole matter.

9. It appears that there was some dispute before the learned Single Judge about the date of the selection, because the learned Judge observed :

He, however, preferred to accept the finding of the learned Commissioner on the point and gave the landowner 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 uptil 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.

10. 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 jurisdictional fact. Under Section 18 of the Act a tenant is only entitled to purchase land which is not included in the reserved or selected area of the landowner. Under Section 18(2) the Assistant Collector is only authorised to determine the value of the land after making such enquiries as he thinks fit. He is not authorised expressly to go into the question whether the land sought to be purchased is included in the reserved or selected area of the landowner 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 Section 24 of the Act, read with Section 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.

11. 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 Krishna v. S.K. Shaw and Bros. (1951 S.C.R. 145) where this Court referred to Queen v. Commissioner for Special Purposes of Income Tax ((1888) 21 Q.B.D. 313), and Colonial Bank of Australia v. Willan ((1874) L.R. 5 P.C. 417, 443). That was a case of a suit whereby the order of the Commissioner under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (section 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. Ganga Prasad Chaturvedi (1959 Supp. I.S.C.R. 733, 746) these cases have no application to the exercise of revisional power. He observed :

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 Section 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 Section 115. If 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 Section 115 of the Civil Procedure Code 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 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. Kamalaksha Chaudhury (1949 L.R. 76 I.A. 131). 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 therefore fell within Section 3-A.

Similarly, in Jagannath Ramchandra Datar v. Dattarava Balwant Hingmir (Civil Appeal No. 585 of 1964), this Court observed :

12. It seems to us that the Financial Commissioner did not appreciate the content of his powers of revision under Section 24, read with Section 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.

13. In our opinion, the Financial Commissioner should have gone into the question whether the Commissioner's report was acceptable or not on merits.

14. 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 and the Financial Commissioner and remit the case to the Financial Commissioner to dispose of the revision filed before him in accordance with law.

15. There will be no order as to costs in this appeal.

Appeal allowed.