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PETITIONER: SURJA

       Vs.

RESPONDENT: HARDEVA AND ORS.

DATE OF JUDGMENT: 17/10/1968

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1970 AIR 1193            1969 SCR  (2) 448

ACT: Punjab  Security  of Land Tenures Act (Punj.  10  of   1953) ss.1   and 24--Land sought to be purchased by   tenant--Land reserved  of selected--Whether a question  of  jurisdiction- Revisional powers of Financial Commissioner.

HEADNOTE: The  appellant  a tenant of. the respondent l(a  big,  land- owner). applied. for purchase of the.land cultivated by  him under s. 18 of the Punjab Security of Land Tenures Act, 1953 alleging that he had been in possession of the land for more than.  six years and the land was outside the reserved  area of the-land-oWner.  The respondent alleged. that th land was reserved. The Assistant Collector .held that the   appellant was  entitled. to purchase the land’.  The respondent  filed an  appeal  t the Collector.  The Collector   dismissed  the appeal.   The  responder  then  filed  a  revision  to   the Commissioner.  While the revision was pending the  Financial Commissioner  gave  a  decision in another  matter  that   a selection by land-owner under s2 5B(1) for permissible  area under the Act had the same force as.’reservation.under s. 5, of the Act.  There respondent thereupon filed an-application stating  that the entire land  dispute was included  in  the permissible area selected by him  under s. 5-B  and as  this disentitled the tenant from purchasing the land prayed  that he  may  be  allowed to raise this  plea  which  involved  a question   of  jurisdiction.   The  Commissioner   satisfied himself  that the selection document was filed  within  time and  felt that the land could not  purchased  and  submitted the   case   to  the  Financial   Commissioner   with    the recommendation   that  the.  revision  be   accepted.    The Financial   Commissioner  however  dismissed  the   revision holding  that  as  the respondent had not put  the  plea  of selection before Assistant Collector or Collect he could not be  allowed to do so at that stage. The respondent  filed  a petition  in the High Court and the High Court  allowed  the petitioning  that  the Financial  Commissioner  should  have accepted the recommendation made by the Commissioner. In appeal this Court,      HELD:  The  Financial  Commissioner should  have   gone into  question whether Commissioner’s report was  acceptable or not on merits

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    The question whether the land sought to be purchased by the appellant was part of the reserved or selected area  was a  jurisdictional f Under s. 18 of the Act a tenant is  only entitled  to purchase land  is not included in the  reserved or  selected   area   of  the  land-ow Under  s.  18(2)  the Assistant  Collector  is only authorized  to  determine  the value .of the land after making such enquiries as he  thinks fit.  is  not authorized expressly to go into  the  question whether  the  sought  to be purchased  is  included  in  the reserved  or  selected are the land-owner or  not.   But  he should go into these  questions  be embarking or determining the price and by wrongly deciding. that. 449 tion  he  cannot finally confer on himself  jurisdiction  to deal with the matter.  The revisional power of the Financial Commissioner   under s. 24 of the Act read with s. 84 of the Tenancy  Act  being the same as that of the  High  Court  in exercise  of  that  power  the  Financial  Commissioner  had jurisdiction  to go into the question whether the  Assistant Collector or the Collector had rightly assumed jurisdiction. [453 E--G]     As the question whether the selection by the  land-owner was made in time and whether it was genuine and valid had to be  decided   the matter must be remanded to  the  Financial Commissioner  for  decision on these points.     Chaube  Jagdish  Prasad v. Chaturvedi,  [1959]  Supp.  1 S.C.R. 733, 746 and Jagannath Ramchandra Datar v.  Dattaraya Balwant  Hingmire,  C.A.  No. 585 of  1964  dated  9-9-1966, followed.     Rai  Brij  Raj Krishna v.S.K. Shaw  [1951]  S.C.R.  145, Queen  v. Commissioners for Special Purposes of Income  tax, 21 Q.B.D. 313 and Colonial Bank of Australia v. Willan  L.R. 5 P.C. 417, held inapplicable.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  778  of 1966.     Appeal  by special leave from the order, dated  May  25, 1965  of the Punjab High Court in Letters Patent Appeal  No. 146 of 1965.     S.V. Gupte and Naunit Lal, for the appellant.     A.K.  Sen, S.C. Mohatta and A.D. Mathur, for  respondent No 1.     V. C. Mahajan and R.N. Sachthey, for respondent Nos.  2, 3 and 4.     The Judgment of the ’Court was delivered by     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  the  learned Single  Judge  allowing  the  writ  petition  filed  by  the respondent, Hardeva.   .     The  relevant  facts for determining the  points  raised before us are as follows; Hardeva, respondent before us,  is a big landlord of village Panniwala Mota in Sirsa Tahsil  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 (Punj..Act X of 1953)-hereinafter referred to as the Act--entitles a tenant of a land-owner other  than a small land-owner to purchase from the land-owner .the land held  by him, but not included in the reserved area  of  the

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land-owner if he satisfies the conditions laid down in  that section. Section 18(1) & (2) may be set out. 450      "18(1)   Notwithstanding  anything  to   the   contrary ’contained in any law, usage or contract, a tenant of a land-owner other than a small land-owner-      (i)  who has been in continuous occupation of the  land comprised in his tenancy for a minimum period of six  years, or      (ii)  who  has been restored to his tenancy  under  the provisions  of  this  Act and whose  periods  of  continuous occupation of the laud comprised in his tenancy  immediately before  ejectment and immediately after restoration  of  his tenancy together amounts to six years or more, or      (iii)  who was ejected from his tenancy after the  14th day of August 1947, and before the commencement of this Act, and  who was in continuous occupation of the land  comprised in  his  tenancy  for  a  period  of  six  years  or   ,more immediately  before  his  ejectment, shall  be  entitled  to purchase from the land-owner the land so held by him but not included in the reserved area of the land-owner, in the case of a tenant falling 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;      Provided   that   no  tenant  referred  to   in    this subsection  shall be entitled to exercise any such fight  in respect of the land or any portion thereof if he had  sublet the  land or the portion, as the case may be, to  any  other person  during  any  period of  his  continuous  occupation, unless  during that period the tenant was suffering  from  a legal disability or physical infirmity, or, if a woman,  was a widow or was unmarried;      Provided  further  that  if the land.  intended  to  be purchased  is  held  by another tenant who  is  entitled  to preempt  the sale under the next preceding section, and  who is  not  ’accepted by the purchasing tenant, the  tenant  in actual occupation shall have the right to pre-empt the sale.      (2)  A  tenant desirous of purchasing land  under  sub- section  (1)  shall  make an application  in  writing  w  an Assistant  Collector of the First Grade having  jurisdiction over the land concerned, and the-Assistant Collector,  after giving  notice  to the land-over and to  all  other  persons interested  in the land and after making such inquiry as  he thinks fit, shall. determine the value of 451               the  land  which shall be the average  of  the               prices  obtaining  for  similar  land  in  the               locality during 10 years immediately preceding               the date on which the application is made."     Surja  accordingly  applied on August 5,  1957,  to  the Collect  or,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 his 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:   "The  land is reserved. I do not know whether the land  in dispute is reserved or not.",    By  his  order,  dated  March  31,  1959,  the  Assistant

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Collector,  Sirsa, held that Surja was entitled to  purchase the  land  in dispute, and, accordingly,  fixed  the  price. Regarding  reservation  he observed:               "It  is admitted by the respondent  that  they               are   big  land-owners  and  got   this   land               reserved, but later on  during his very cross-               examination, he denied any knowledge about the               reservation.    The  respondent  produced   no               evidence  with regard to having this land  got               reserved though they are big land-owners." 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  a  big landowner and that Surja  had  been  in continuous  possession of the land in dispute for more  than six years, and the only point he determined was whether with the  addition of the 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, .     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 s. 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 dis- 452 pute  was included in the permissible area selected  bY  him under  s. 5-B of the Act by submitting form "E". He  further stated  that  the  Financial  Commissioner   had   in  Karan Singh  v. Angraz Singh (1). held that selection under  s.  5 -B(1)  had the same force as. reservation under s. 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 s. 5-B (1). He stated, that  tiffs  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.     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 Raf v. State Punjab(2) that the  period  of  six months allowed  by  s..5-B  for  making selection  would start from March 22, .1958, the  date  when the Punjab Government Notification proscribing the form  was issued.  The Commissioner felt that the selected land  could not be purchased under s. 18 by the tenant.  lie accordingly submitted  the case to the Financial Commissioner  with  the recommendation.  that the revision petition be accepted  and that   the  orders  of  the  Assistant  Collector  and   the Collector be set aside.     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 could not be allowed to do so at that stage. lie observed:    "In  other  words the consideration that  reservation  of area under section 5 and selection of area under section 5-B are  identical  in  their effect has  no  relevance  in  the

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present.  cases  for the reasons that it was  never  claimed (except  in  revision) that the .area  .had  .been  selected under  section  5-B.   If such a claim  had  been  made  and substantiated, the position would have been .different,  but since  this.’  was  not  done,  the  ’decision  against  the petitioner  cannot  be challenged.  it is  also  clear  that there  is  no  question  in  these  eases   of   authorities concerned  having  acted  without  jurisdiction  or   having exercised.  it  with illegality ’or  material  .irregularity which alone could justify interference ’in revision."    Hardeva then filed a petition under Arts. 226 and 227. of the Constitution.  The Court held that the Financial Commis (1) (1960) 39 Lahore Law Times, 57,  (2) (1961) Lahore  Law 453 sioner 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 land-owner under the provisions  of ’s. 5-B of the Act. The learned Single Judge was of the view that the disputed question related. to junsdiction and .went to the root of the whole matter.     It  appears  that  there was some  dispute  before   the learned  Single  Judge  about the  date  of  the  selection, because the learned Judge observed:     "There  is a slight dispute on the question whether  the intimation of selection was given on 19th or’ 20th  of June, 1958". He, however. preferred to accept the finding of the  learned Commissioner  on  the  point and  gave  the  land.owner  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 up till 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.     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  a jurisdictional fact. Under s. 18 of the Act a tenant is only entitled  to   purchase land which as not  included  in  the reserved or selected area of the landowner.  Under S.  18(2) the Assistant Collector is only authorized to determine  the value  of the land after making such enquiries as he  thinks fit.  He is not authorized expressly to go into the question whether  the land sought to be purchased is included in  the reserved or selected area of the land-owner  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 s. 24 of the Act, read with  s. 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.  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 Raj Krishna v. S..K. Shaw(1) where (1) [1951] S.C.R. 145. 454 this  Court referred to Queen v. Commissioners  for  Special Purposes   of Income Tax (1) and Colonial Bank of  Australia

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v. Willan,(2) That was a case of a suit whereby the order of the Commissioner under the Bihar Buildings (Lease, Rent  and Eviction)  Control  Act,  1947  (s. 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.  Chaturvedi,.(3)  these  cases  have  no application   to  the  exercise  of  revisional  power.   He observed:                  "The  appellant also relied on Rai  BrijRai               Krishna  v.S.K. Shaw and Bros.(4)  where  this               Court quoted with approval the observations of               Lord Esher in Queen v. Commissioner for pecial               Purposes  of  the Income Tax(1)  and  Colonial               Bank  of  Australia v.  Willan(a),  where  Sir               James Colville said:                  "Accordingly  the   authorities...establish               that   an  adjudication  by  a  Judge   having               jurisdiction over the subject matter is, if no               defect appears on the face of it, to be  taken               as conclusive of the facts stated therein  and               that  the Court of Queen’s Bench will  not  on               certiorari  quash such an adjudication on  the               ground   that   any   such   fact,    however,               essential,  has  been  erroneously found."                   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               s.  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 s. 115. H 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 s. 115 of  the               Code of Civil Procedure 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 (1) 21 Q.B.D. M3.                     (2) L.R. 5 P.C. 417. (3) [1959] Supp. 1 S.C.R. 733, 746.   (4) [1951] S.C.R. 145. 455               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.               Kamalksha  Chaudhury(1). ’ 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 therfor fell within s. 3-A."    Similarly,  in  Jagannath Ramchandra Datar  v.  Dattaraya

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Balwant Hingmire(2) this Court observed:                  "Therefore  if  it can be  shown  that  the               subordinate   court   without   any   evidence               whatsoever  held  that  the’  transaction   in               question  was  not a sale but a  mortgage  and               that the relationship between the parties  was               that  of a debtor and a creditor and on  that.               footing proceeded to exercise its power  under               section   3   and   10   A   of   the   Dekhan               Agriculturists Relief Act the High Court would               be entitled to interfere with such a  decision               under  both  the parts of s.  115.   It  would               then’ be possible to say that the  subordinate               court  had clutched at jurisdiction  which  it               had  not under the said section and  it  would               also  be  possible  to  say  that  court   had               exercised  its jurisdiction illegally or  with               material irregularity."      It seems to us that the Financial Commissioner did  not appreciate  the content of his powers of revision  under  s. 24, read with s. 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.     In  our opinion the Financial Commissioner  should  have gone into the question whether the Commissioner’s report was acceptable or not on merits.      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 (1)  1949 L.R. 76 I.A. 131. (2)  Civil  Appeal No. 585 of  1964--judgment  delivered  on September 9, 1966. 456 and  the  Financial Commissioner and remit the case  to  the Financial.  Commissioner  to dispose of the  revision  filed before him in accordance with law.     There will be no order as to Costs in this appeal.’ Y.P.                                      Appeal allowed. 458