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PETITIONER: MOHAN LAL

       Vs.

RESPONDENT: KARTAR SINGH & OTHERS

DATE OF JUDGMENT17/10/1995

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) JEEVAN REDDY, B.P. (J) SEN, S.C. (J)

CITATION:  1995 SCC  Supl.  (4) 684 JT 1995 (7)   573  1995 SCALE  (6)27

ACT:

HEADNOTE:

JUDGMENT:                       J U D G E M E N T NANAVATI J.      This appeal,  under certificate  granted under  Article 133 (1) (a) of the Constitution, by the High Court of Punjab and Haryana,  is against  its decision  in LPA No. No.366 of 1969.      Nahar Singh,  original  plaintiff  and  father  of  the respondents, on 18.5.1964, filed a suit in the court of sub- judge, Dhuri  for possession  of the suit land, on the basis of ownership  of the  land and  also on  the ground that the order of  eviction passed against him by the Collector under Section 43  of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter  referred to  as ‘the Act’) on 12.5.62 was void and ineffective. His case was that he has purchased the suit land  from Sharif  Hussain on  24.2.1955. At  that time Mohan Lal,  original defendant and appellant in this appeal, was in  occupation of  that land  as  a  tenant.  Mohan  Lal continued to  hold the  land as  his tenant  after the sale. Some time  in June 1955, he approached the Village Panchayat as Mohan  Lal had not given him his share in the produce. On 16.6.1955 a  compromise was arrived at between him and Mohan Lal whereunder Mohan Lal had agreed to relinquish possession of the  land as  he was  not able to pay the rent and on his part he  had agreed  not to recover his share/rent. Pursuant to the  compromise the Panchayat also passed a resolution to that affect  and Mohan  Lal willingly handed over possession of the land to him. On 21st June, 1955 i.e. within 5 days of the  compromise  Mohan  Lal  approached  the  Sub-Divisional Magistrate of  that area  and alleged  that he  was forcibly dispossessed and  claimed restoration  of  possession  under Section  43  of  the  Act.  The  Sub  Divisional  Magistrate rejected that application as an application under Section 43 could be  made to  the Collector  and not to him. Soon after the SDM was invested with that power Mohan Lal again applied

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to him.  On 12.5.1962  the SDM  allowed that application and passed an  order  for  his  eviction.  Mohan  Lal  got  back possession of  the land  under that order on 25th May, 1962. He filed  an appeal  to the  Commissioner. It was dismissed. His revision  application to  the Financial Commissioner was also rejected.  He then  filed a writ petition in the Punjab and Haryana  High Court  and that was also dismissed. It was also his  plea that  as the  order passed  by  the  SDM  was without jurisdiction  and, therefore void ab-initio, earlier proceedings under  the Act  were no  bar to  his filing  the suit.      The learned  Civil Judge  believed the  version of  the plaintiff that  Mohan Lal  had voluntarily  surrendered  his possession and,  therefore, held  that the  relationship  of landlord and  tenant between  the parties had come to an end and for  that reason  the Sub-Divisional  Magistrate had  no jurisdiction to  pass an  order of eviction under Section 43 of the  Act. He  decreed the suit. Mohan Lal filed an appeal to the  District Court but it failed. He then filed a second appeal in  the High  Court. It  was not  disputed before the learned Single Judge who heard that appeal that if Mohan Lal had been  forcibly dispossessed by Nahar Singh on 16.6.1955, then  Nahar   Singh  would   be  a  person  in  wrongful  or unauthorised  possession   of  the  land,  to  the  use  and occupation of  which he  would not  be  entitled  under  the provisions of  the Act.  In view  of the  rival contentions, what the  learned Judge  was required to decide was "whether the  dispute  about  the  manner  in  which  the  respondent obtained possession  of the  land from the appellant on 16th June, 1955,  was to  be decided  by the  Collector or by the Civil Court". The contention raised on behalf of Nahar Singh was that  the dispute  before the  Court was  not  a  matter covered by  Section 47,  and that before the Collector could assume jurisdiction,  the facts  covered by  clauses (a) and (b) of sub-section (1) of Section 43 should have been either admitted or  established in  a  Civil  Court  and  that  the Collector did  not have  jurisdiction under  Section  43  to adjudicate upon matters relating to status or title over the land.  The   learned  Single  Judge  after  considering  the beneficent object  of the  Act and  its material  provisions held that those provisions should be liberally construed. He also held  that the  Act is  a complete  Code in  itself and provides for  a complete machinery for decision of a dispute like the  one which  was before him. He further held that it was open  to the Collector while dealing with an application under Section  43  of  the  Act  to  go  into  the  disputed questions like  whether the  dispossession of the tenant was illegal and  whether the  compromise was entered into by the tenant voluntarily or under duress. He further held that the language used  in Section  43 shows  that the legislature by necessary intendment,  if not  expressly, has  given to  the Collector the  power to  enquire not  only into the question whether the  person concerned is liable to be ejected on the basis of certain facts admitted or already proved before the Civil Court  but also  into the existence of those facts. In other words,  he held  that it  was open to the Collector to decide the  disputed question  namely whether the compromise pleaded by  the land  owner was  entered into voluntarily or under duress  and as he found on enquiry that the compromise was arrived  at under  duress and,  therefore, possession of the land  owner was  unlawful, the jurisdiction of the Civil Court was  barred in  respect of  that matter,  by virtue of Section 47 of the Act. He, therefore, allowed the appeal and dismissed the plaintiff’s suit.      Aggrieved by  the decision  Nahar Singh filed a Letters

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Patent Appeal  in the  High Court.  In view  of its previous decisions in  Harnam Singh and ors. vs. Dalip Singh and ors. 1963 P.L.R.  1133 and  Hartej Bahadur Singh vs. The State of Punjab and  ors. 1964  P.L.R.751, wherein  it has  been held that Section  7 of the Act which lays down a ground on which the landlord can terminate tenancy does not constitute a bar to tenancy  rights being given up by the tenant himself when he no longer wishes to remain in possession as a tenant, the High Court  held that as possession was handed over by Mohan Lal in  view of the compromise Nahar Singh’s possession was, prima facie,  neither unlawful nor opposed to the provisions of the Act. Relying upon the observations made by this Court in State  of Punjab  vs. Bhai Ardaman Singh and ors., A.I.R. 1969 SC  13 the  High Court further held that it was open to the Civil  Court to consider whether the condition precedent to the  exercise of  power by the Collector was satisfied or not. The  High Court  further held  that as  possession  was taken by the landlord in pursuance of the compromise between him and  the  tenant  through  the  instrumentality  of  the Panchayat it  was certainly not unlawful and, therefore, the Collector had  no jurisdiction to go into the matter and put the tenant  in possession. The decision of the Collector was held as void and of no legal effect. As regards the question whether the  compromise was a result of fraud or coercion it held that  it was  not a  question which  was required to be settled decided  or dealt with under the Act and, therefore, Section 47  of the  Act was  no bar to the Civil Court going into that  question. As  the enquiry  to be conducted by the Collector under  Section 43  is of a summary nature the High Court held  that the Collector does not have jurisdiction to decide civil disputes of complicated nature wherein disputed questions of  facts relating to status and title to property are required  to be  determined. The High Court further held that  even   if  it  becomes  necessary  for  the  Collector incidentally to  decide such a disputed matter that would be only for  the purpose  of giving immediate possession to the tenant but  his decision would not become final as it is the Civil Court which can pronounce finally on such matters. The High Court,  therefore, allowed  the Letters  Patent Appeal, set aside  the order  passed by the learned Single Judge and restored that of the lower appellate court.      During the  pendency of  this appeal Mohan Lal died and he is  now represented  by his legal heirs. When this appeal came up  for hearing before a two Judge Bench of this Court, it doubted  correctness of  the decision  in Bhai  Ardaman’s case  (supra)  and  expressed  the  view  that  it  requires reconsideration for the following reasons:      "We do  not  see  any  warrant  for  the      proposition that  in  order  to  attract      Section 43(1)  (b)  there  should  be  a      specific and  express provision  in  the      Tenancy Act  itself to  the effect  that      those who are in illegal occupation will      not be  entitled to  use the  land.  The      Collector has  been  invested  with  the      power to  eject unlawful occupants under      Section 43(1)  (b). The  provision  will      become  meaningless  if  even  in  cases      where a  tenant admittedly in possession      hitherto is  forcibly dispossessed,  and      that the  Collector has  no jurisdiction      to evict  him by  holding an appropriate      enquiry  on  being  satisfied  that  the      tenant   was    forcibly   dispossessed.      Certainly,    no    express    provision

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    providing  that  a  person  in  unlawful      occupation will  not  have  a  right  to      continue in  occupation of  the land. It      is implicit in Section 43(1) (b) that an      unauthorised or unlawful occupant has no      right under  the  said  Tenancy  Act  to      remain in  possession. In  view  of  the      numerous  judgments  of  this  Court  in      regard to tenancy legislations, the said      decision requires  constitute a complete      code  and   are  specially   enacted  to      protect  the  tenants  without  obliging      them   to   resort   to   time-and-money      consuming civil  suit, the  decision  in      Ardaman    Singh’s     case     requires      reconsideration.".      Section 43  and 47  of the Act, in the context of which we  have  to  decide  the  questions  which  arise  for  our consideration, read as under:      "Section 43.  (1) Any  person who  is in      wrongful or  unauthorised possession  of      any land:-      (a)  the transfer of which either by the      act of  parties or  by the  operation of      law is  invalid under  the provisions of      this Act, or      (b)  to the  use and occupation of which      he is  not entitled under the provisions      of this Act, may, after summary enquiry,      be ejected  by the  Collector,  who  may      also impose on such person a penalty not      exceeding five hundred rupees.      (2)  the Collector may direct that whole      or any part of the penalty imposed under      sub-section (1)  shall be  paid  to  the      person who  has sustained  any  loss  or      damage by  the wrongful  or unauthorised      possession of the land.           Section  47.  (1)  No  Civil  Court      shall  have   jurisdiction  to   settle,      decide or  deal with any matter which is      under this  Act required  to be settled,      decided or  dealt with  by the Financial      Commissioner,  the   Collector  or   the      prescribed authority.      (2)  No   order    of   the    Financial      Commissioner,  the   Commissioner,   the      Collector or  the  prescribed  authority      made under  or in  pursuance of this Act      shall  be  called  in  question  in  any      Court."      In Bhai Ardaman Singh’s case the tenants had applied to the Collector  under Section  43 of  the Pepsu  Agricultural Lands and  Tenancy Act  of 1953 (Pepsu Act 8 of 1953), which had come into force on December 13, 1953, for restoration of possession of  lands which were in their possession earlier, alleging that  they were  forcibly dispossessed  by the land owner and,  therefore, he  was in  wrongful and unauthorised possession  of   those  lands.  The  Collector  granted  the applications and  ordered  restoration  of  possession.  The orders were  confirmed in  appeal  by  the  Commissioner.  A learned  Single  Judge  of  the  High  Court  dismissed  the petitions filed  against those  orders. In appeals under the Letters Patent  the High Court reversed the orders passed by the learned Single Judge an two grounds.

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    It held  that the  Act  of  8  of  1953  did  not  have retrospective  operation   and,  therefore,   no  order  for restoration  of   possession  could   have  been  passed  as dispossession had  taken place  in 1943 i.e. long before the Act  was   brought  into   force.  It  also  held  that  the proceedings of  the  Collector  were  vitiated  because  the landowner was  not given  an opportunity  to lead  evidence. This Court upheld the view of the High Court that Section 43 had no  retrospective operation.  It also held that in order to attract  the jurisdiction  of the  Collector  to  hold  a summary enquiry  and  to  pass  an  order  of  eviction  and restoration of  possession under  clause (b)  of Section  43 (1), it was necessary to show that the person in wrongful or unauthorised possession was also not entitled to the use and occupation of  the land  under the provisions of the Act. As no  provision   was  pointed  out  which  had  rendered  the landowner disentitled by virtue of the provision of that Act to the  use and occupation of the land, it was held that the condition precedent to the investment of jurisdiction in the Collector being  absent, the  orders passed  by the  revenue authorities were  without jurisdiction.  Obviously that view was taken by this Court because in that case the tenants had made applications  under Section  43 of  Act 8  of 1953 and, therefore, unless  the conditions  mentioned in that Section were satisfied  no order  of eviction could have been passed thereunder.  The   said  Act   did  not  have  retrospective operation and the remedy provided by Section 43 was intended for acts  of unlawful  or unauthorised  dispossession  which were to  take place  after that  Act came into force and for those  cases  where  a  person  was  found  in  unlawful  or unauthorised possession  since before  that Act  and the Act had  rendered   that  person  disentitled  to  the  use  and occupation of  that land.  It was  in this context that this Court observed that no provision of that Act was pointed out to show  that the  landlord besides  being  in  unlawful  or unauthorised possession,  was not  entitled to  the use  and occupation of  those lands  under the  Act. In  view of  the peculiar facts  of that case, we are of the opinion that, it was correctly  decided by  this Court.  Another factor which possibly influenced  this Court in taking that view was that prior to  the passing  of that Act the tenants did not enjoy the protection  as was  granted by Section 7 of that Act and it was  open to the landlord to terminate the tenancy at any time without giving any reason.      In this  case, it is not in dispute that if Nahar Singh had in fact dispossessed Mohan Lal forcibly then Nahar Singh would be  a person  in unlawful  and unauthorised possession and also  not entitled  to the  use and  occupation of  that land. It  was not  contended before  us, and  in our opinion rightly, that  even after  the Act  has come  into force, it would still  be necessary  for  the  person  applying  under Section 43  for an  order of eviction to show that the other person is not only in unlawful or unauthorised possession of the land  out is also not entitled to its use and occupation under the Act.      We will now deal with the contentions raised before us. The contention  raised on  behalf of  the appellant was that under Section  43, the  Collector had  the  jurisdiction  to decide whether  Nahar Singh  was in wrongful or unauthorised possession of  the land  and  whether  the  other  condition contained in  clause (b)  was satisfied  or not. In order to find that  out the  Collector had  also the  jurisdiction to consider the  correctness or otherwise of the grounds on the basis of  which it  was contended  by the respondent that it was lawful. It was conceded on behalf of the respondent that

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a mere  denial by  the opponent  that his  possession is not unlawful  or  unauthorised  and  that  the  other  condition contained in  clause (a)  or (b), as the case may be, is not satisfied, will  not be  sufficient to bust the jurisdiction of the  Collector. It  was also not disputed that before the Collector can exercise his powers under Section 43 it is not necessary  that   the  facts   constituting  the   condition precedent to  the exercise  of power  are either admitted or first established  in a  civil court.  What was contended on behalf of  the respondent  was that  the respondent  had not merely disputed  that he  was in  unlawful  or  unauthorised possession  but  had  further  pleaded  that  he  had  taken possession under a voluntary compromise evidencing surrender of tenancy and also produced a compromise deed in support of that  plea.   Therefore,  the   question  which   arose  for consideration by  the Collector  was not  merely whether the respondent was in unlawful or unauthorised possession of the land and  not entitled  to its  use and  occupation; but,  a further question  whether that  compromise was  voluntary or was entered  into as  a result  of the duress or coercion as contended by the appellant arose and that was not a question which was  required to  be decided under the Act. Therefore, it was  open to the civil court to go into that question and the civil  court’s decision  should be  regarded as final on that point.      The rival  contentions require  us to  examine the true scope and  ambit of  Section 43.  Was it  intended  to  make available a  remedy in  simple cases which can be decided by holding a  summary enquiry?  Did the  legislature intend  to exclude from  its purview  those  cases  where  the  dispute becomes complicated  because of  the facts  of the  case and pleas raised  by the  contesting party?  As can be seen from its Preamble,  the Act has been enacted with a view to amend and  consolidate   the  law   relating  to   tenancies   and agricultural lands  and to  provide for  certain measures of land reforms. The object of the Act, as can be gathered from its provisions,  is to  restrict the rights of the landlord, to protect  the tenancies,  confer new rights on the tenants and to implement land reforms. It restricts the right of the landowner to  retain land  beyond the  permissible limit for his personal  cultivation and requires him to make a choice, once and  for all,  of the  lands which  he wants to retain. Sections 7 and 7A put restrictions on his right to terminate tenancy. It  also confers  on the  tenant an important and a valuable right  to acquire proprietary rights over the lands held by  him as  a tenant.  Now no tenancy can be terminated except in  accordance with  the provisions  of  the  Act  or except on  the grounds  specified in  Sections 7 and 7A. The Act also  provides machinery for deciding the questions that are likely  to arise  in the  implementation of  the Act and further  provides   for  appeals   and  other  miscellaneous matters. The  Act is  thus a  beneficent legislation  and  a complete code in itself.      Section 43 is aimed at a person who may be found by the Collector in  unlawful or  unauthorised possession  of  land because of  one of  the two  contingencies mentioned in that Section. Even  if the transfer in his favour is by an act of the parties  or by operation of law, if it is declared to be invalid under  the provisions  of the Act, the Collector can treat it as unlawful and eject him from the land. So also, a person in  possession of  land, if found not entitled to its use and occupation under the provisions of the Art, can also be ejected  therefrom. This  provision clearly indicates the intention of the legislature that it should prevail over not only the  acts of the parties but operation of laws also, in

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the matter of transfer and possession of agricultural lands. The purpose  of this  provision is to see that the object of protection of  tenancy rights and land reforms is fulfilled. Therefore, it  confers a  new right and provides a quick and effective remedy  for enforcement  of that  right.  It  also confers power  on the  Collector to  impose a  penalty.  The power can  be exercised by the Collector suo motu. The words "under the  Act" used  in clauses  (a) and  (b) indicate the scope of  enquiry and  fix the  ambit of the jurisdiction of the  Collector   to  deal   with  cases   of  unlawful   and unauthorised possession  of the  land. They also lead to the conclusion that  if  the  nature  of  possession  is  to  be determined in  terms of clauses (a) and (b) then it would be a matter  to be  decided under  the Act. The decision of the Collector made  under or  in pursuance  of the  Act has been made final in the sense that it cannot be called in question in any  court. Section 47 specifically bars the jurisdiction of civil  court in  matters which are required to be settled decided or  dealt with  by  the  Collector.  It,  therefore, becomes clear  that the  legislature wanted the Collector to be an  exclusive forum  for the  matters falling  within the scope of Section 43.      On consideration  of the  object of the Act the purpose of Section 43 and the bar contained in Section 47 it becomes clear that the legislature intended to bust the jurisdiction of the  civil court and confer exclusive jurisdiction on the Collector in  matters which  fall within the scope and ambit of Section  43. As  rightly contended by the learned counsel for the  appellant this view would be in consonance with the principles of  interpretation pointed  out by  this Court in Dhulabhai and  others vs.  The State  of Madhya  Pradesh and another 1968 (3) SCR 662.      It was  next contended  that  we  should  not  construe Section 43  liberally and  include within  its  scope  other questions which  may also arise for determination, before it can be  decided by the Collector as to whether possession of the person  against whom  an application is made is unlawful or unauthorised.  It was submitted that the enquiry which is contemplated by  Section 43  is only  a summary enquiry and, therefore, complicated  questions of  status  or  title  and right to  possess,  where  an  elaborate  enquiry  would  be necessary, should  not be  regarded as  falling  within  the jurisdiction of  the Collector.  We do not find any force in this  contention.  Though  the  enquiry  is  summary  it  is judicial in nature. As pointed out by this Court in the case of Ardaman  Singh (supra), though "the trial is summary, the Collector is  bound to  exercise the  jurisdiction vested in him not  on a  subjective satisfaction.... but on a judicial determination of facts which invest him with jurisdiction to pass an  order in  ejectment". The  word "summary" implies a short and  quick procedure  instead of or, as in alternative to, the  more  elaborate  procedure  ordinarily  adopted  or prescribed for  deciding a  case. The  proceedings before  a court,  tribunal   or  an   authority  are   called  summary proceedings if  it is  not required  to follow  the  regular formal procedure  but is  authorised to  follow a  short and quick procedure  for expeditious disposal. Therefore, merely because the  Collector acting under Section 43 has to make a summary enquiry  it cannot  be said  that he can decide only simple questions as regards the nature of possession and not those questions  which are complicated but have a bearing on the nature  of possession. The contention raised if accepted would result  in unduly restricting the scope of enquiry and thereby frustrating the very purpose of enacting Section 43.      We, therefore, hold that when an application is made to

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the Collector  under Section  43 he  has to  decide  whether possession of the person against whom an application is made is wrongful  or unauthorised  because of  two  contingencies mentioned in that Section. It is his jurisdiction to enquire and decide whether transfer of possession from the applicant to the  opponent is  invalid under the provisions of the Act or not.  Similarly, it  would be  within his jurisdiction to decide whether  the person  against whom  an application  is made is  not entitled under the provisions of the Act to the use and  occupation of the land of which he is alleged to be in  wrongful  or  unauthorised  possession.  If  the  person against whom  an application  is made  claims that he is not disentitled under  the provisions  of the Act to the use and occupation  of   the  land  then  the  Collector  will  have jurisdiction to  examine the  validity of the grounds on the basis of  which the  claim is  made. If  the application  is resisted on the ground that there was a valid surrender then the Collector  will have  the jurisdiction to decide whether there was  a surrender  or not  and if  a  further  question arises whether that surrender was voluntary or not that also would fall  within the  scope of  his jurisdiction.  Such  a question cannot  be said  to be  a collateral  question  not falling  exclusively   within  the   jurisdiction   of   the Collector. Though it is not specifically provided in the Act that whether  the surrender  was voluntary  or not  shall be decided by the Collector on true construction of Section 43, we hold  that even  that would  be a  matter required  to be settled or  decided under  the  Act.  It  appears  that  the legislature has  advisedly not specified the questions to be decided by  the Collector  because on  various  grounds  the party can  claim that  his possession  is  not  unlawful  or unauthorised. So far  as the  facts of this case are concerned the case of the respondent  was that  he had  obtained possession of the land under  a voluntary  surrender by  the appellant. It was also contended  on his  behalf that  voluntary surrender  of tenancy rights  is not prohibited by the Act as already held by the  Punjab and  Haryana High  Court in  Harnam Singh and others vs.  Dalip Singh  and another  1963 P.L.R.  1133  and Hartej Bahadur Singh vs. The State of Punjab and others 1964 P.L.R. 751.  But in  this case the surrender was disputed by the appellant.  Therefore, the  question which  really arose before the  Collector was  whether  there  was  a  voluntary surrender  of  tenancy  rights.  For  that  reason  the  two decisions  relied  upon  by  the  learned  counsel  for  the respondent are of no help to him.      Once it is held that the question whether the surrender was voluntary  or not  fell within  the jurisdiction  of the Collector, it  will have  to be further held that in view of the bar  contained in  Section 47(2) Collector’s decision on that point  became final  and could  not have been called in question in  suit. In  view of  the bar contained in Section 47(1) the  civil court  had no  jurisdiction to consider the same. It  is,  therefore,  not  necessary  to  consider  the alternate contention  that the  decision  of  the  Collector operated as  res judicata  in view  of Explanation  VIII  to Section 11  and to  refer to  the decision  of this Court in Sulochana Amma  vs. Narayanan  Nair JT  1993  (5)  S.C.  448 wherein it  is held  that an  order or  an issue  which  had arisen directly  or substantially  between  the  parties  or their privies  and decided  finally by  a competent court or tribunal, though  of limited  or special  jurisdiction, will operate as  res judicata in a subsequent suit or proceeding, notwithstanding the  fact that  such  court  of  limited  or special jurisdiction  was not  a competent  court to try the

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subsequent suit.      We are,  therefore, of  the opinion  that the  Division Bench of  the Punjab and Haryana High court was not right in allowing the  Letters Patent  Appeal and  holding  that  the civil  court   had  the  jurisdiction  to  consider  whether possession of  the land  by the respondent was lawful or not in view  of the  compromise and voluntary surrender and that the order  passed by  the Collector  in that  behalf was not binding on  the Civil Court. We allow this appeal, set aside the order  passed by  the Punjab  and Haryana  High Court in L.P.A. No.366  of 1969  and restore  the order passed by the learned  Single   Judge  in  R.S.A.  No.1496  of  1965.  The respondent shall pay the cost of the appellant throughout.