Punjab-Haryana High Court
Kuldeep Singh & Ors vs State Of Hry. & Ors on 16 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:052149
RSA-2406-2005 (O&M)
and other connected cases 1 2024:PHHC:052149
106-1 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1.RSA-2406-2005 (O&M)
Kuldeep Singh and others
....Appellants
Versus
State of Haryana and another
..Respondents
2. RSA-2476-1994 (O&M)
Haryana State through Collector and another
....Appellants
Versus
Uma Kant and others
..Respondents
3.RSA-43-1997 (O&M)
Haryana State through Collector and another
....Appellants
Versus
Hemant Kumar and another
..Respondents
4.RSA-1612-1994 (O&M)
Haryana State through Collector and another
....Appellants
Versus
Surender and others
..Respondents
Date of decision: 16.04.2024
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Ashok Kumar Verma, Advocate for the
appellants in RSA-2406-2005 and
1 of 7
::: Downloaded on - 22-04-2024 21:54:26 :::
Neutral Citation No:=2024:PHHC:052149
RSA-2406-2005 (O&M)
and other connected cases 2 2024:PHHC:052149
for the respondents in RSA-2476-1994, 1612-1994 and
RSA-43-1997
Mr.J.S.Pannu, AAG, Haryana
for the respondent in RSA-2406-2005 and
for the appellants
in RSA-2476-1994, 1612-1994 and 43-1997 and
ANIL KSHETARPAL, J (Oral)
1. With the consent of the learned counsel representing the
parties, a batch of four connected Regular Second Appeals shall stand
disposed of by a common order. These three appeals (RSA-2476-1994,
1612-1994 and RSA-43-1997) have been filed by the State of Haryana
against the concurrent findings of fact arrived at by the courts below in
three separate suits whereas the fourth appeal RSA-2406-2005 has been
filed by the plaintiff to challenge the correctness of judgment passed by
the First Appellate Court, which in turn has reversed the judgment and
decree passed by the trial court.
2. Learned counsel representing the State admits that for the
first time Sh.Jagdish was declared big landowner under the Haryana
Ceiling of Land Holdings Act, 1972 (hereinafter referred to as '1972
Act') on 06.01.1984. In other words, it is admitted case of the State of
Haryana that there was no declaration to the effect that Sh.Jagdish was a
prominent landowner under the provisions of the Punjab Security of
Land Tenure Act, 1953 (hereinafter referred to as '1953 Act'). While
acknowledging the family settlement, a civil court passed a decree on
05.01.1971, declaring that four sons of Sh.Jagdish namely Surinder,
Uma Kant, Kuldeep and Hemant Kumar are owners in possession of the
2 of 7
Neutral Citation No:=2024:PHHC:052149
RSA-2406-2005 (O&M)
and other connected cases 3 2024:PHHC:052149
respective parcels of land. These four suits were filed by the aforesaid
children of Sh.Jagdish claiming that the order passed by the prescribed
authority on 06.01.1984 is illegal, null and void as they were not given
any opportunity of hearing, although, they were owners of the property
by virtue of a family settlement, it was later on acknowledged in the
civil court decree dated 05.01.1971. As per the provisions of 1972 Act,
the appointed day is 24.1.1971. In this case, acknowledging that four
sons of Jagdish had become owners, the civil court decree has been
passed before the appointed day. As per Section 12 of the 1972 Act, the
surplus area of the landowner was deemed to have been acquired by the
State Government for public purpose from the date on which it was
declared as such. Section 8 of the 1972 Act provides that certain transfer
or disposition shall not affect the surplus area. Any transfer of
permissible area except the bonafide transfer or disposition after the
appointed day shall not affect the rights of the State Government. Thus,
even if it is assumed that the civil court decree dated 05.01.1971 results
in transfer of the property, however, the said decree has not been passed
after the appointed day.
3. In RSA-2406-2005, the First Appellate Court has reversed
the judgment and decree passed by the trial court on the ground that the
suit was filed beyond the prescribed period of limitation and the civil
court had no jurisdiction. The court has held that cause of action to file
the suit arose on 06.01.1984. Hence, the suit filed on 29.09.1993, was
filed beyond the prescribed time.
3 of 7
Neutral Citation No:=2024:PHHC:052149
RSA-2406-2005 (O&M)
and other connected cases 4 2024:PHHC:052149
4. In this case, the First Appellate Court has not held that these
four plaintiffs were given any notice before passing the order on
06.01.1984. The First Appellate Court also did not find that the
plaintiffs were aware of the order passed on 06.01.1984, prior to the
filing of the suit. The land which was declared surplus was never
utilized. It is evident that the prescribed authority passed the order in
violation of the fundamental principles of natural justice i.e right of
hearing or notice to the owners. Thus, the First Appellate Court erred in
declaring that the suit filed by the plaintiffs was filed beyond the
prescribed the period of limitation. The period of limitation will not
begin to run from 06.01.1984, the date of order.
5. With reference to the jurisdiction of the civil court, by now
it is well settled legal principle that if an order passed by the Special
Tribunal created under the Special Act proceeds in violation of the basic
principles of natural justice, the civil court can interfere. Reliance in this
regard can be placed on Five Judge Bench of the Supreme Court in
Dhulabhai And Others vs The State Of Madhya Pradesh And
Another 1968 (3) SCR 662, which was followed by the Supreme Court
in AIR 1971 SC 71. The Supreme Court in Dhulabhai's case (supra),
while laying down six conclusions, held as under:-
"32. Neither of the two cases of Firm of
Illuri Subayya(1) or Kamla Mills(2) can be said to
run counter to the series of cases earlier noticed. The
result of this inquiry into the diverse views expressed
in this Court may be stated as follows :-
(1) Where the statute gives a finality to
the orders of the special tribunals the Civil Courts'
jurisdiction must be held to be excluded if there is
adequate remedy to do what the Civil Courts would
4 of 7
Neutral Citation No:=2024:PHHC:052149
RSA-2406-2005 (O&M)
and other connected cases 5 2024:PHHC:052149
normally do in a suit. Such provision, however, does
not exclude those cases where the provisions of the
particular Act have not been complied with or the
statutory tribunal has not acted in conformity with
the fundamental principles of judicial procedure.
(2) Where there is an express bar of the
jurisdiction of the court, an examination of the
scheme of the particular Act to find the adequacy or
the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction
of the civil court. Where there is no express exclusion
the examination of the remedies and the scheme of the
particular Act to find out the intendment becomes
necessary and the result of the inquiry may be
decisive. In the latter case it is necessary to see if the
statute creates a special right or a liability and
provides for the determination of the right or liability
and further lays down that all ques- tions about the
said right and liability shall be determined by the
tribunals so constituted, and whether remedies
normally associated with actions in Civil Courts are
prescribed by the said statute or not.
(3) Challenge to the provisions of the
particular Act as ultra vires cannot be brought before
Tribunals constituted under that Act. Even the High
Court cannot go into that question on a revision or
reference from the decision of the Tribunals.
(4) When a provision is already declared
unconstitutional. Or the constitutionality of any
provision is to be challenged, a suit is open. A writ of
certiorari may include a direction for refund if the
claim is clearly within the time prescribed by the
Limitation Act but it is not a compulsory remedy to
replace a suit.
(5) Where the particular Act contains no
machinery for refund' of tax collected in excess of
constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the
assessment apart from its constitutionality are for. the
decision of the authorities and a civil suit does not lie
if the orders of the authorities are declared to be final
or there is an express prohibition in the particular
Act. In either case the scheme of the particular Act
must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court
is not readily to be inferred unless the conditions
above set down apply."
5 of 7
Neutral Citation No:=2024:PHHC:052149
RSA-2406-2005 (O&M)
and other connected cases 6 2024:PHHC:052149
6. The Five Judge Bench of this Court in State of Haryana
and others vs. Vinod Kumar and others 1986 PLJ 161 has also held
that the order of Collector declaring land as surplus, without giving an
opportunity of hearing to the landowners, is nullity and the civil suit to
challenge the validity of such order is maintainable despite Section 26 of
the 1972 Act.
7. In RSA-43-1997 the only distinguishable feature is that the
trial court dismissed the suit however, the same was reversed by the First
Appellate Court.
8. The learned counsel representing the State has relied upon
the judgment passed in Davinder Singh and others vs State of
Haryana and another 2006 AIR (SC) 2850 to contend that the civil
court jurisdiction is barred under Section 26 of the 1972 Act. This Court
has carefully read the aforesaid judgment. In that case the big
landowner initially challenged the correctness of the order passed by the
prescribed authority in appeal and in revision petition. Subsequently, he
filed the civil suit. It was the allegation of the plaintiffs that their case
under the provisions of 1953 Act was decided on 30.12.1961. Hence,
Davinder Singh's case (supra) does not apply to the facts of the case at
hand.
9. Consequently, RSA-2406-2005 shall stand allowed and the
judgment passed by the First Appellate Court shall stand set aside and
the trial court shall stand restored. Remaining three appeals i.e RSA-
2476-1994, 1612-1994 and RSA-43-1997 shall stand dismissed.
6 of 7
Neutral Citation No:=2024:PHHC:052149
RSA-2406-2005 (O&M)
and other connected cases 7 2024:PHHC:052149
10. All the pending miscellaneous applications, if any, are also
disposed of.
16.04.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
7 of 7
