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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Pritam Singh Jain, Advocate and V.M Jain, C.B Goel. Advocates,
  • Gian Singh, Advocate, H.N Mehtani, D.A.G, Haryana:
Judges
  • R.S Narula, C.J
  • D.S Lamba, J.
Acts
  • Article 113 of the Schedule to the Limitation Act, 1963 (hereinafter called the new Act).
  • Article 14 of the Limitation Act, 1908 (hereinafter referred to as the old Act)
  • PUNJAB SECURITY OF LAND TENURES ACT 1953
  • Section 10-A read with Rule 6 of the Rules
  • Section 9 of the Code of Civil Procedure
  • SECTION 80 CIVIL PROCEDURE CODE
  • Article 100 of the new Act
  • Section 10-A (b).
  • Section 10-B,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Pritam Singh Jain, Advocate and V.M Jain, C.B Goel. Advocates,
  • Gian Singh, Advocate, H.N Mehtani, D.A.G, Haryana:
Judges
  • R.S Narula, C.J
  • D.S Lamba, J.
Acts
  • Article 113 of the Schedule to the Limitation Act, 1963 (hereinafter called the new Act).
  • Article 14 of the Limitation Act, 1908 (hereinafter referred to as the old Act)
  • PUNJAB SECURITY OF LAND TENURES ACT 1953
  • Section 10-A read with Rule 6 of the Rules
  • Section 9 of the Code of Civil Procedure
  • SECTION 80 CIVIL PROCEDURE CODE
  • Article 100 of the new Act
  • Section 10-A (b).
  • Section 10-B,
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The factual matrix is undisputed. Bihari Lal was a large land-holder whose surplus area was declared under the Punjab Security of Land Tenures Act, 1953 on 28 January 1960. Bihari Lal died in December 1960. More than two and a half years after his death the surplus area earlier declared in his name was allotted to tenant-respondents and possession was given to them.

On 30 October 1969 the heirs of Bihari Lal (Kul Bhushan and others — sons and widow) instituted a suit for possession, contending that by the time of utilisation they had become small land-owners and therefore there was no surplus in their hands; thus they alleged illegal dispossession and that the order of utilisation could not be justified under the Act.

The trial Court framed ten issues (including the date of death of Bihari Lal; whether the plaintiffs were his heirs; whether they were small land-owners before or after his death; whether the land had been utilised during Bihari Lal's lifetime; whether utilisation after his death was permissible; jurisdiction; limitation; and mis-joinder). The trial Court (judgment dated 30 November 1970) found that the plaintiffs were heirs, that they became small land-owners after Bihari Lal's death, that the land had not been utilised in Bihari Lal's lifetime and therefore could not lawfully be utilised after his death; on those findings it held the utilisation in favour of the tenants void and that the Civil Court had jurisdiction. Nevertheless the trial Court dismissed the suit on the ground that it was time-barred under Article 113 of the Schedule to the Limitation Act, 1963 (the "new Act").

On appeal the Additional District Judge, Gurgaon (R. L. Garg) reversed the trial Court on limitation (applying Article 65 of the Schedule to the new Act) and allowed the plaintiffs' appeal (decree dated 14 February 1973), while affirming other findings. The tenants then succeeded in Regular Second Appeal No. 442 of 1973 before a learned single Judge of this Court (judgment dated 24 October 1973), who held that the suit was barred under Section 25 of the Act and by time under Article 100 of the new Act. The present Letters Patent Appeal was filed by the unsuccessful plaintiffs challenging that single-Judge judgment.

Legal Issues Presented

  1. Whether Section 25 of the Punjab Security of Land Tenures Act, 1953 excludes the jurisdiction of the Civil Court to entertain the plaintiffs' suit (i.e., whether the order of utilisation and possession was an order made "under this Act").
  2. How Sections 10-A(a), 10-A(b) and 10-B of the Act apply to the facts — specifically, whether the order of utilisation made after the death of Bihari Lal falls within the protective savings of Section 10-A(b) or is governed by Section 10-B.
  3. Whether the suit was barred by limitation under Article 100 of the Schedule to the Limitation Act, 1963 (equivalent to Article 14 of the Limitation Act, 1908), or whether Article 65 of the Schedule to the new Act (possession suits) governs and renders the suit within time.
  4. Whether the plaintiffs were required to first seek relief from the authorities under the Act (for example, the Collector under Section 10-A read with the Rules) before instituting a civil suit.

Arguments of the Parties

Appellants' (Plaintiffs') Arguments (as advanced by Mr. Pitam Singh Jain)

  • Section 25 excludes Civil Court jurisdiction only in relation to proceedings or orders taken or made "under this Act"; the order of utilisation and possession was not an order under the Act.
  • The Act (read by reference to Sections 10-A(a), 10-A(b) and 10-B) did not permit the particular order of utilisation and did not envisage the plaintiffs (heirs) being dispossessed in those circumstances because the plaintiffs had become small land-owners after Bihari Lal's death and before utilisation.
  • The plaintiffs did not at any stage attack the original declaration of surplus area in the name of Bihari Lal and did not challenge the January 28, 1960 declaration; their case is that the later utilisation (after Bihari Lal's death) could not operate to dispossess heirs who were within the permissible ceiling.

Respondents' (Tenant-Defendants') Arguments (as advanced by Mr. Gian Singh)

  • Reliance on Kuldip Singh v. The Financial Commissioner (1973 Pun LJ 146): the plaintiffs ought to have moved the Collector under Section 10-A read with Rule 6 of the Rules framed under the Act to obtain relief; therefore, they could not properly file the civil suit.

State's Argument (as advanced by Mr. H. N. Mehtani)

  • Relying on Hardev Singh v. The State of Punjab (1971 Pun LJ 283), counsel argued that although the plaintiffs framed their suit as one for possession, in reality it was a suit for setting aside the order of utilisation under Section 10-A(a) — implying that the statutory remedy should have been pursued and that the suit was caught by the exclusion in Section 25.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 Principle: A decree or order passed by a court without jurisdiction is a nullity and its invalidity may be set up whenever enforcement is sought; defects of jurisdiction cannot be cured by consent. Relied upon to show that an order void ab initio need not be challenged exclusively through the specialised statutory machinery if it is a nullity; supports the proposition that void orders can be set up in civil proceedings.
Secretary of State v. Mask and Co., AIR 1940 PC 105 Cited authority (Privy Council) relevant to the scope of exclusion of ordinary Civil Court jurisdiction. Cited among authorities to support the view that exclusion of Civil Court jurisdiction under statutory provisions (like Section 25) is not to be readily inferred and has no application to the facts of this case.
Lahore Electric Supply Co. Ltd. v. Province of Punjab, AIR 1943 Lah 41 (FB) Authority concerning limits on exclusion of ordinary Civil Court jurisdiction. Used with other authorities to support the conclusion that Section 25 does not bar the Civil Court in the circumstances of the present case.
K. L. Gauba v. Punjab Cotton Press Co. Ltd., AIR 1941 Lah 234 (FB) Authority on exclusion of jurisdiction principles. Cited as supporting authority for the proposition that the bar under a provision like Section 25 must be strictly established and does not apply here.
Dhulabhai etc. v. State of Madhya Pradesh, AIR 1969 SC 78 Supreme Court authority bearing on the question of jurisdictional exclusion. Cited to reinforce the conclusion that Section 25's exclusion does not apply to the facts of this case.
Dhaunkal v. Man Kauri, 1970 Pun LJ 402 (Full Bench) Discusses distinction between void and voidable orders and holds that in case of voidable orders it is necessary to have them set aside. The single Judge relied on it to treat the utilisation order as one that had to be set aside; the present Court distinguished it because here the order was treated as void ab initio (non-existent), not merely voidable.
Sadhu Singh v. Chanda Singh, AIR 1957 Punj 108 Principle: If an act or order of an officer is illegal or ultra vires, it does not require formal setting aside; Article 14 (old Act) does not apply to such cases. Adopted to support the conclusion that Article 100 of the new Act (equivalent to Article 14 old Act) is inapplicable where the order is ultra vires or a nullity, and therefore limitation under Article 100 does not govern this suit.
Jagdish Prasad Mathur v. United Provinces Government, AIR 1956 All 114 Article 14 (old Act) does not apply where the act or order is ultra vires or a nullity; Article applies only where no question of ultra vires or want of jurisdiction exists. Used to support the conclusion that Article 100/new Act (equivalent to Article 14 old Act) is inapplicable to the present case where the order is treated as void ab initio.
Secretary of State v. Faredoon Jijibhai Divecha, AIR 1934 Bom 434 Cited as an earlier authority relied upon in subsequent provincial decisions about invalidity of orders and limitation. Referred to as a supporting antecedent for the principles adopted in Sadhu Singh and related cases; used to trace jurisprudential background.
Thiruvenkatacharyulu v. Secretary of State, AIR 1934 Mad 147 Another High Court decision addressing illegality/ultra vires and limitation implications. Referenced as part of the chain of authority relied upon in Sadhu Singh and in the present analysis on limitation and nullity.
Kuldip Singh v. The Financial Commissioner, 1973 Pun LJ 146 Authority asserting procedural requirement to approach the Collector under Section 10-A read with Rule 6 for relief. Cited by respondents to argue that plaintiffs should have pursued statutory remedy; the Court rejected the proposition that the availability of that remedy barred the civil suit where jurisdiction was not excluded by Section 25.
Hardev Singh v. The State of Punjab, 1971 Pun LJ 283 Invoked to suggest that some suits framed as for possession may, in substance, be suits to set aside statutory orders. Referred to by State counsel; the Court stated it could not derive from that decision the proposition that the present suit must be treated as one for setting aside the order so as to attract Section 25's bar.

Court's Reasoning and Analysis

The Court proceeded by reference to the unchallenged findings of fact and the text of Sections 10-A(a), 10-A(b) and 10-B of the Punjab Security of Land Tenures Act, 1953.

  1. Construction of Sections 10-A and 10-B:

    Section 10-A(a) authorises the State Government or empowered officers to utilise "any surplus area" for resettlement of tenants. Section 10-A(b), introduced as a non obstante provision, saves from the operation of (a) any area which has ceased to be surplus due to acquisition by the State or which is in the hands of an heir by inheritance. Section 10-B removes the saving in favour of heirs where utilisation took place in the lifetime of the original owner and succession opened thereafter.

    On the findings (unchallenged) that the heirs (plaintiffs) were small land-owners after Bihari Lal's death and that utilisation took place after his death, Section 10-B did not apply; instead Section 10-A(b) applied to save the heirs' acquired holdings from having been lawfully utilised under 10-A(a). Therefore, the Court concluded that the proceeding or order of utilisation (as implemented in favour of the tenant-respondents after Bihari Lal's death) was not an order "under this Act" for the purposes of Section 25.

  2. On the scope of Section 25 and jurisdiction:

    The Court recognised the general legal principle that exclusion of ordinary Civil Court jurisdiction is not to be readily inferred and must be strictly established. While accepting that if an order had been passed under the Act and was merely illegal or voidable then statutory remedies would be relevant, the Court emphasised the distinction between orders that are voidable and those that are void ab initio (nullities).

    Applying Kiran Singh (AIR 1954 SC 340), the Court noted that a decree or order passed without jurisdiction is a nullity and can be challenged whenever enforcement is sought; this supports that a void order need not be confined to the Act's internal remedy. Using the Privy Council, Lahore High Court and Supreme Court authorities cited, the Court held that Section 25's exclusion had no application on the facts where the utilisation order was not an order under the Act.

  3. On limitation:

    The single Judge had treated the suit as governed by Article 100 of the Schedule to the new Limitation Act (equivalent to Article 14 of the old Act), which prescribes a one-year period to set aside acts or orders of Government officers. The present Court analysed the precedents and held that where an act or order is illegal, ultra vires or a nullity, Article 100 (Article 14 old Act) is inapplicable — the order does not require formal setting aside and the short limitation does not govern such cases.

    Relying on Sadhu Singh v. Chanda Singh and Jagdish Prasad Mathur, the Court concluded that the utilisation order was not merely voidable but a nullity for present purposes; hence Article 100 did not apply. The suit was a suit for possession of immovable property governed by Article 65 of the Schedule to the new Act. Because the suit was filed within twelve years, it was within time under Article 65.

  4. On alternative remedies and procedural route:

    The Court acknowledged that the plaintiffs could, if so advised, have approached the authorities under the Act to seek setting aside of the utilisation. However, availability of that remedy did not preclude civil proceedings where jurisdiction is not excluded by Section 25. The Court rejected the contention that the mere possibility of approaching the Collector (per Kuldip Singh) or other statutory remedies meant the civil suit was barred.

  5. Conclusion of reasoning:

    On the combined statutory construction and authority, the Court found that (i) the order of utilisation was not an order under the Act as saved by Section 10-A(b) given the facts; (ii) Section 25 did not exclude Civil Court jurisdiction here; and (iii) Article 100 (shorter limitation) did not apply because the order was treated as a nullity, so Article 65 governed the limitation question and the suit was within time.

Holding and Implications

Holding: The Letters Patent Appeal is allowed. The judgment and decree of the learned single Judge (which had dismissed the plaintiffs' suit on the grounds of being barred by Section 25 of the Act and by limitation under Article 100) are reversed. The decree of the learned Additional District Judge (which had allowed the plaintiffs' appeal and held the suit within time under Article 65) is restored. The plaintiffs' suit for possession stands decreed as laid, without any order as to costs.

Implications:

  • The direct effect is that, on the facts of this case (utilisation implemented after the death of the original owner and where heirs were within the permissible ceiling), Section 10-A(b) operates to prevent the utilisation from being treated as an order "under the Act" for the purpose of Section 25; accordingly the Civil Court's jurisdiction was not excluded.
  • The Court held that where the challenged action or order is illegal, ultra vires or a nullity (void ab initio) Article 100 of the new Limitation Act (equivalent to Article 14 of the old Act) does not apply; the suit is then governed by the article applicable to ordinary possession suits (here Article 65), and may be within time accordingly.
  • No broader new legal principle was expressly asserted beyond the application of established authority and statutory construction to the facts; the Court restored the earlier appellate decree and ordered no costs.

This summary is confined to the matters expressly stated in the provided opinion and does not add or infer facts or legal conclusions not contained in that opinion.

Show full summary ...

    Kul Bhushan v. Faqira

    1. The facts giving rise to this appeal are not in dispute. Bihari Lal was a big land-owner. His surplus area was determined and declared under the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Act), on January 28. 1960, In December that year Bihari Lal died. More than 2 1/2 years later, the area which was surplus in the hands of Bihari Lal was allotted to the tenants who are now respondents before us. Possession of the allotted area was also given to the tenants. On October 30, 1969, Kul Bhushan and others (the sons and widow of Bihari Lal), heirs of Bihari Lal filed a suit for possession of the land in dispute on the ground that there was no surplus land in the hands of the plaintiff-appellants who had become small land-owners after the death of Bihari Lal and before the utilisation Of the land, and, therefore, they had been illegally dispossessed of the land which order could not be justified under the Act. The suit was contested by the tenant-respondents on various grounds which led to the framing of as many as ten issues which are reproduced below:--

    "1. When Bihari Lal died ?

    2. Whether the plaintiffs are his heirs?

    3. Whether the plaintiffs were small land-owners on or before the death of Bihari Lal?

    4. Whether the suit land had been utilised in the lifetime of Bihari Lal?

    5. If issue No. 4 is not proved and issues Nos. 2 and 3 are proved, whether it could be utilised after his death?

    6. Whether the utilisation of land in favour of defendants Nos. 4 to 7 is illegal and void for reasons mentioned in paragraph No. 6 of the plaint?

    7. Whether the notice under Section 80, Civil Procedure Code, was illegal ?

    8. Whether the Civil Court has jurisdiction to try the suit?

    9. Whether the suit is barred by time?

    10. Whether the suit is bad for mis-joinder of parties and causes of action and multifariousness ?"

    The findings recorded on the above-quoted issues by the trial Court in its judgment, dated November 30, 1970, were that Bihari Lal had died in December, 1960, that the plaintiffs were his heirs, that the plaintiffs were small land-owners after the death of Bihari Lal, that the suit land had not been utilised in the lifetime of Bihari Lal, and that the same could not be utilised under the Act after his death. It was, therefore, held that the utilisation of the land in favour of defendant-respondents Nos. 4 to 7 was void, and that the Civil Court had the jurisdiction to try the suit. It was further found that the suit was not bad for mis-joinder of parties or causes of action, but the suit was dismissed on account of the finding on issue No. 9 to the effect that it was barred by time. The suit was held to be beyond time under Article 113 of the Schedule to the Limitation Act, 1963 (hereinafter called the new Act). The unsuccessful plaintiffs' appeal was allowed by the judgment and decree of the Court of Shri R. L. Garg, Additional District Judge, Gurgaon, dated February 14, 1973. The learned Additional District Judge applied Article 65 of the Schedule to the new Act to the case for reversing the finding of the trial Court on issue No. 9. All other findings of the trial Court were affirmed. The result of the decree passed by the first appellate Court was that it was the defendant-tenants' turn to go up in Regular Second Appeal No. 442 of 1973. That appeal was allowed by the judgment and decree of a learned single Judge of this Court, dated October 24, 1973. The decision of the learned single Judge has led to the filing of this Letters Patent Appeal by the unsuccessful plaintiffs. The learned Judge has held that the suit was barred under Section 25 of the Act and was also barred by time under Article 100 of the new Act.

    2. In this appeal under Clause X of the Letters Patent against the said judgment of the learned Judge in Chambers it has been contended by Mr. Pitam Singh Jain that the jurisdiction of Civil Court is excluded by Section 25 of the Act for trying only such suits wherein the validity of any proceeding or order taken or made "under this Act" is sought to be called in question. His argument is that the order of utilisation and giving possession of the land in dispute to the contesting respondents was not an order under the Act as the Act did not permit any such order being passed and did not envisage possession of land of the plaintiff-appellants being given to the respondents, and that the plaintiffs were not big land-owners under the Act and did not have any surplus area in their hands. The plaintiffs did not contest the declaration of surplus area in the hands of their predecessor-in-interest, that is Bihari Lal. They have not at any stage attacked the validity, legality or correctness of the order passed under the Act on January 28, 1960. The argument of the learned counsel is based on a plain reading of Section 10-A (a) and (b) read with Section 10-B of the Act. Those provisions are in the following terms:--

    "10-A. (a) The State Government or any officer empowered by it in this behalf, shall be competent to utilise any surplus area for the resettlement of tenants ejected, or to be ejected, under clause (i) of sub-section (1) of section 9.

    (b) Notwithstanding anything contained in any other law for the time being in force, and save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance no transfer or other disposition of land which is comprised in a surplus area at the commencement of this Act, shall affect the utilisation thereof in Clause (a).

    10-B. Saving by inheritance not to apply after utilisation of surplus area. Where succession has opened after the surplus area or any part thereof has been utilised under Clause (a) of Section 10-A, the saving specified in favour of an heir by inheritance under Clause (b) of that section shall not apply in respect of the area so utilised."

    Section 10-A (a) authorises the State Government or any officer empowered by it to utilise "any surplus area". Clause (b) of that section which overrides Clause (a) on account of the non obstante Clause with which it (clause (b)) begins expressly saves from the operation of Clause (a) any area which has ceased to be surplus either on account of acquisition by the State under any law or which may be in the hands of an heir who has got it by inheritance. On the findings of fact recorded in this case which have not been challenged before us it is patent that the plaintiffs were not big land-owners and the land which each one of them had acquired by inheritance was within the permissible ceiling and none of them had, therefore, any surplus area. Tisings would have been different if the surplus area in the hands of Bjhari Lal had been utilised before his death. By operation of Section 10-B, the saving specified in favour of the heirs by inheritance under clause (b) of section 10-a would not then have applied to the case. In this case, however, it is the admitted fact that the order of utilisation and possession in favour of the allottee-tenants was made, passed and implemented after the death of Bihari Lal. Section 10-B of the Act has, therefore, no application to the case which is fully covered by Section 10-A (b). That being the case, it appears to us that the proceeding or order which is sought by the respondents to be made unvulnerable under Section 25 of the Act was not taken or made "under the Act" and, therefore, Section 25 which is reproduced below has no application to the case:--

    "Exclusion of Courts and authorities.-- Except in accordance with the provisions of this Act, the validity of any proceedings or order taken or made under this Act shall not be called in question in any court or before any other authority."

    3. The learned single Judge has taken the view that the order of utilisation was a mere wrong order or an illegal order, and, therefore, it was for the plaintiff to approach the authorities under the Act to avoid that order or proceeding. It was on that basis that the learned Judge has held that the plaintiffs would have to seek a declaration that the order passed by the authorities "under the Act" should be set aside. There is no quarrel with the proposition of law that if the order had been merely wrong, illegal or invalid but passed "under the Act", the jurisdiction of the Civil Court to question the same would have been barred by Section 25 and the plaintiffs would have to approach the authorities under the Act to set that order aside. Nor have we any doubt that even in the present case the plaintiffs could have, if so advised, approached the authorities under the Act for setting aside the order and proceeding of utilisation. Even a Court without jurisdiction has the jurisdiction to decide whether it can or cannot be approached for granting a relief or whether its jurisdiction is or is not barred under a statutory provision. That does not, however, mean that a person is compelled to have an order which' is void ab initio and non est avoided by having resort to a proceeding under the particular enactment under which the order purports to have been passed. This has been authoritatively laid down in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. It was held by their Lordships that it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. Their Lordships observed that a defect of jurisdiction strikes at the very authority of the Court to pass any decree, and, such a defect cannot be cured even by, consent of parties. Be that as it may, the bar under Section 25 of the Act is very much restricted. It is settled law that exclusion of the ordinary Civil Court's jurisdiction under Section 9 of the Code of Civil Procedure has not to be readily inferred, but must be strictly proved. Once it is held that the proceeding or order of utilisation of the lard of the plaintiffs after the death of Bihari Lal was not one under the Act, it only needs reference to the decisions of the Privy Council, the Lahore High Court and the authoritative pronouncement of their Lordships of the Supreme Court in the following cases to hold that the exclusion of the Civil Court's jurisdiction under Section 25 of the Act has no application to the facts of the present case:--

    (i) Secretary of State v. Mask and Co., AIR 1940 PC 105; (ii) Lahore Electric Supply Co. Ltd. v. Province of Punjab, AIR 1943 Lah 41 (FB); (iii) K. L. Gauba V. Punjab Cotton Press Co. Ltd., AIR 1941 Lah 234 (FB) and (iv) Dhulabhai etc. v. State of Madhya Pradesh, AIR 1969 SC 78.

    4. The only other ground on which the plaintiffs' suit has been dismissed by the learned single Judge is the learned Judge's decision on Issue No. 9 relating to limitation. Article 100 of the new Act which is equivalent to Article 14 of the Limitation Act, 1908 (hereinafter referred to as the old Act) provides, inter alia, that the limitation for filing a suit to set aside any act or order of an officer of the Government in his official capacity is one year from the date of the act or order of the officer. Following the judgment of the Full Bench in Dhaunkal v. Man Kauri, 1970 Pun LJ 402; the learned Judge held that the order of utilisation had to be avoided and could not be ignored by the plaintiffs. Vold as well as voidable orders were referred to and discussed in Dhaunkal's case. It was held that in the ease of voidable order it was necessary to have it set aside. From the discussion on the first point it is clear that the order of utilisation of the land in the plaintiffs' hands was not a mere voidable order, but was an order which was non-existent in the eye of law, and was absolutely void ab initio, and, therefore, was one which was in fact non existent in the eye of law. That being the case it was neither necessary for the plaintiffs to have that order set aside, nor could the plaintiffs' suit which was a simple suit for possession be held to be a suit for declaration about the order being voidable or void or a suit for setting aside the order or proceeding. In this view we are supported by the judgment of Bishan Narain, J. (as he then was) in Sadhu Singh v. Chanda Singh, AIR 1957 Punj 108, and the Division Bench judgment of the Allahabad High Court in Jagdish Prasad Mathur v. United Provinces Government, AIR 1956 All 114. In Sadhu Singh's case (the judgment in which case is in turn based on an earlier Division Bench judgment of the Bombay High Court in Secretary of State v. Faredoon Jijibhai Divecha, AIR 1934 Bom 434, and the judgment of the Madras High Court in Thiruvenkatacharyulu v. Secretary of State, AIR 1934 Mad 147) it was held that if the act or an order of an officer is illegal or ultra vires it does not require to be set aside and article 14 of the old act has no application to such a case. In the case of Jagdish Prasad Mathur (supra), the Division Bench of the Allahabad High Court held that article 14 of the old act does not apply to those cases where the act or order of any officer is ultra vires or without jurisdiction or is otherwise a nullity. Their Lordships observed that the article applies only to such cases where there is no question of the ultra vires of the order or of the want of jurisdiction of the person making the order but where the order is sought to be set aside on some other ground. We are in respectful agreement with the dictum of Bishan Narain, J., in Sadhu Singh's case and the decision of the Allahabad High Court in the case of Jagdish Prasad Mathur to the extent to which it is necessary to rely on those cases for the present case. In the absence of applicability of Article 100, the suit is governed by Article 65 of the Schedule to the new Act as this was a suit for possession of immovable property. The suit having been filed within 12 years was obviously within time under that article, Even the respondents have not suggested that any other article would apply in case our finding regarding the non-applicability of Article 100 is correct.

    5. Mr. Gian Singh, learned counsel for the tenant-respondents has argued on the authority of the judgment of a learned Single Judge of this Court in Kuldip Singh v. The Financial Commissioner, 1973 Pun LJ 146, that it was incumbent on the plaintiffs to move the Collector under Section 10-A read with Rule 6 of the Rules framed under the Act to obtain the requisite relief, and. therefore, they could not have filed the suit from which the present appeal has arisen. We have already held that both the remedies were available to the plaintiffs and the mere fact that they could have approached the authorities does not bar the civil suit the jurisdiction to try which is not excluded by Section 25 of the Act. Mr. H. N. Mehtani, learned counsel for the State, has referred to the judgment of this Court in Hardev Singh v. The State of Punjab, 1971 Pun LJ 283, and argued that though the suit was so worded as to make it one for possession, it was in effect and in reality a suit for setting aside the order of utilisation passed under Section 10-A (a) of the Act. We are unable to spell out any such proposition of law from the judgment of the Division Bench in Hardev Singh's case (supra).

    6. No other point has been argued before Us in this appeal. For the foregoing reasons we allow this appeal reverse the judgment and decree of the learned single Judge and restore in its place the decree of the learned Additional District Judge. The suit of the plaintiff-appellants stands decreed as laid though without any order as to costs.

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    Comments

    Kul Bhushan v. Faqira
    (Mar 10, 1976)