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Judgment
Chopra, J.—This appeal against the deci-sionVf a Single Bench of this Court arises out of the following facts: one Gadnu Labana of Haripur Sandholi, in the erstwhile Nalagarh State, died issueless. On the death of his widow Mst. Biro some time after, his estate comprising 63 bighas and 7 biswas of agricultural land and one house was declared "unclaimed," and escheated to the State.
Law of escheat with respect to Des Ilaqa of State, to which the property in question relates, L- contained in para 53 of its Settlement Report as approved by the Gcvernor-in-Council, Punjab. In spite of our best efforts we have not been able to lay our hands on the original Settlement Report or any authenticated copy of it. The para, as reproduced in judgments of the Courts below and with respect to the correctness of which there is no dispute, says:
If no person proves a rightful heir within ten generations the aforesaid property shall be declared unclaimed and the State shall be obliged to offer it at a suitable market value in the first place to the Zamindars of the village in which the property is situate and if they decline to purchase it to outsiders.
By his order dated 9-9-1999 Bk, the Ruler of Nalagarh State granted this property on payment of Rs. 660/- as Nazrana to Gandu Ram Respondent. Gandu Ram is a Brahmin and belonged to another village Baili and was, therefore, an "outsider". Mutation of the land in his favour was sanction-eel on 25-9-1999 Bk.
The Appellants, some of the Labana Zamindars of Haripur Sandholi, brought the suit giving rise to this appeal alleging that according to Wajib-ul-arz and the Settlement Report, they as Zamindars of the village were entitled to purchase the escheat property and it could be offered to a stranger only when they refused to exercise that right, that the Ruler of the State was bound by the law of escheat and had no authority to over-ride the plaintiffs'' right of first option and pass on the property to the Defendant, and consequently they were entitled to obtain possession of it from the Defendant on payment of Rs. 660/-, its suitable market value.
The suit was filed on 20-12-2003. "The Secretary of State Sahib Bahadur, Rayast Nalagarh" was impleaded as Defendant. The Defendants contested the suit on various grounds, including one of limitation. The trial Court found in favour of the plaintiffs on essential points and decreed the suit. The decree was maintained in appeal by District Judge, Kapurthala.
In an earlier case from Nalagarh, the facts of which were almost identical, ''Dalip Singh v. Chief Secretary, Pepsu'', First Appeal No. 402 of 2005, D/-26-3-1951 (Pep.) (A), a Division Bench of this Court has held that the proper remedy for Zamindars of the village, under these circumstances, was to have the Ruler''s order granting escheat property to an outsider set aside,'' and-that Article 14, Limitation Act being applicable iber suit brought more than a year after the order 18 would be barred by time; Following this decision, the learned Single Judge accepted Gandu Ram''s appeal, set aside judgment of the Courts below and dismissed the plaintiffs'' suit. However, the learned judge granted certificate for an appeal to the Division Bench, as certain important points raised before him did not appear to have been considered by the earlier, Division Bench.
The only point argued before us is one of limitation and regarding the application of Article 14, Limitation Act. Article 14 lays down a period of one year for a suit, not otherwise ex-provided for, to set aside any act or order of an officer of Government in his official capacity. The period begins to run from the date of the act or order
Shri K.N. Tewari, learned Counsel for the Appellants, contends that the article has no application to the present case for the following reasons:
(i) The order complained of cannot affect the plaintiffs'' right and hence, to get the relief claimed, it is not necessary for them to set aside the order;
(ii) The order is a nullity; and
(iii) The order, made by the Ruler as it is, cannot be regarded as one of "an officer of the government in his. Official capacity.
On the, first ground it is urged that in their plaint the plaintiffs do not specifically pray for setting aside the order, that they were not made party to the proceedings in which the order was passed |the order therefore, would not affect their right to acquire the property in preference to a stranger and that they can enforce that right without getting the order set aside. Reliance in this connexion is placed on ''Balwant Ramchandra v. Secy, of State'', 29 Bom. 480 (B), and Secretary of State Vs. Abdul Rahim and Another,
It is correct that the plaintiffs do not expressly pray for setting aside the order as one of their reliefs; They seek possession of the suit property ''through a declaration that, by virtue of certain provisions in the Wajib-ul-arz and the Settlement Report, they are entitled to acquire the property from the State''. In the body of the plaint, reference is made to the order. The order is stated to be illegal and in violation of the plaintiffs'' rights and to have formed the cause of action.
In its heading, the suit is described as one, inter alia, for a declaration that the order is liable to be set aside. ''This is also a fact that the plaintiffs are not shown to have been given notice of the proposed sale to the Defendant or to have been made parties to those proceedings. But all this would not suffice to accept the plaintiffs'' contention that in fact the suit is not one for setting aside the order or that it is not necessary for them to get it set aside.
The plaintiffs do not have, nor did they ever have, any right or title in the property itself Their alleged right is limited to one of acquiring the, property from the State in preference to a stranger. It is nothing more than a potential right, enforceable when and if the State decides to part with an "unclaimed" property. I doubt of the provision in para 53, reproduced above, gives the "Zamindars of the village" an indefeasible right to claim the property under all circumstances and to force the State to part with it in their favour.
The State is obliged to Offer it to the Zamin-dars in the first place and if they decline to purchase it, to outsiders. This cannot be understood to mean that the State cannot decide to keep the property to itself and that it had no option in the-matter. If that were the interpretation, the right to claim the property accrued to the Zamindars-on the death of Mt. Biro, when the property escheated. The record is silent as to when Mt. Biro-died. The Appellants, therefore, prefer to accept the position that their right to claim the property accrued on its sale to the Defendant.
As already pointed out, the right of the Zamindars is limited to claim the property from, the State. Law of escheat, as contained in para right of pre-emption against a transferee from, the State. The right does not extend to their getting the property from the "outsider" purchaser on payment of its sale price or the market value. Nor is any such right alleged to be re cognized by general usage of the village or the State.
If that were so, the right could only be enforced against the purchaser, Gandu Ram Defendant, within one year of his taking physical possession of the property sold. The suit having; been brought more than four years thereafter would, in that case, be hopelessly barred under . Article 10, Limitation Act.
After the sale in favour of Gandu Ram no saleable interest in the property was left with the State. The title passed on to Gandu Ram, and obviously the right to sell it no longer remained with the State. So long as the sale in favour of Gandu Ram subsists the State has no right to transfer the property to the Appellants. Thus the sale in favour of Gandu Ram stands as a bar rier to the enforcement of the right claimed by the Appellants.
Until that barrier was removed the Appellants could not ask for sale of the property in. their favour or seek possession of it. It is not open to the Appellants to bring a suit for enforcement of their alleged right without asking for the other relief which is a condition precedent to the grant of the relief they claim.
Where a plaintiff cannot seek the relief he wants unless he sets aside an act or order which stands in. his way, the mere fact that he frames the suit in a different manner will not take the case out of the operation of Article 14- Whether a suit is for setting aside an act or order is to be decided not from the form of the relief but from a consideration of the substance of the relief sought by the plaintiff
If the act or order is a nullity; which the "plaintiff may disregard, this article will have no- application even if the plaintiff in terms seeks. to set it aside, for there is in reality nothing to be set aside. But if the act or order is only void able at the instance of the plaintiff, he cannot avoid the application of this article by seeking reliefs which though different are inconsistent with the validity of the act or order. the preen force Ram do sale in must in the relit make to for ''set made. (12 by Shr 48 plaintiff session they We and the defenda held to "not-otl contem by virti ed. it ''w If viously ground, setting sity,-an not ''bro order-tiffs dei Powers ment, it aside, b If it is, entirely then it to set'' 11 (13) 1246 CO the sui'' order o to be cl w able pr order o aside, b that has sessed from the Article 141 abider It was: "W the order sign off the plai have no for in the ed, and Which to those cerneod But ion tor order depriving a person of his property on the ground of doing a dishonest act towards his co-sharer was not supported by any law. or rule of the state, It was, therefore, held that the order of the Dewan was entirely without jurisdiction and null and void, and consequently the order of the dismissal of the appeal questioning, such an order would be of similar nature although passed by the Hazur". NO argument is required to impress that the decision is of no help to the Appellants.
In the present case, as already observed, the right claimed by the Appellants cannot be enforced so long as the sale in favour of Gandu Ram Defendant subsists. Unless the order of sale in his favour be a nullity, the Appellants must necessarily get the order set aside before the relief prayed for can be granted. That would make the article applicable even though a prayer for setting aside the order is not specifically made.
The facts of the two cases relied upon by Shri Tewari were widely different. In ''29 Bom 480(B)'', the suit was for declaration of the plaintiffs'' proprietary right to land and for possession of that land. The plaintiffs alleged that they were owners and in possession of the land and that they were forcibly dispossessed by the Defendants. Article 142, and not Article 14, was held to be applicable, for the suit was not one "not-otherwise-provided-for" in the schedule as contemplated in Article 14. As regards the order by virtue of which the plaintiffs were dispossessed, it was observed :
If the order cannot be set aside, then obviously the suit, though it may fail on that ground, cannot be regarded as one in which the setting aside of the order is the primary necessity, and which would be barred accordingly if not brought within one year of the date of that order. The Defendants alleging and the plaintiffs denying, that the order was within statutory powers exercisable by the Executive Government, the real issue is not whether it can be set aside, but whether it is final or a mere nullity. If it is, as the plaintiffs allege it to be, an order entirely ultra vires of the Executive Government, then it is a mere nullity and no suit is necessary to set it aside.
In the Secretary of State Vs. Abdul Rahim and Another, also the plaintiff was in possession of the suit property and was dispossessed by an order of the Government. Article 142 was held to be clearly applicable, because:
Where a person is dispossessed of immovable property by a public servant it is not the order of the public servant that has to be set aside, but the right of the party to possession that has to be determined; and the party dispossessed is entitled to bring a suit within 12 years from the date of dispossession; in other words, Article 14 has no application as no order need be set, aside in order to obtain relief.
It was further observed :
Where possession is sought for it is not the order that stands in the way but the possession of the party which wrongfully dispossesses the plaintiffs.
It cannot be disputed that Article 14 will have no application if the act or order is a nullity, for in that case the act or order may be disregard and need not be set aside in any proceedings. The article applies only to those acts or orders which are valid until they are set aside and not those which are bad from their inception. The act or order would be a nullity if it was beyond the authority or jurisdiction of the officer concerned.
But if the officer had the power or jurisdiction, to make the order and he made it disregard ing any formality required by law or he made it irregularly, the order will not be regarded as bad from its inception and. a nullity, but it would be an irregular order which" could be challenged in a Court of law and set aside. Till such an order is set aside, it continues to be good and a binding order. The order in the present case, passed by the Ruler of the State, cannot be regarded as one beyond his jurisdiction or in excess of his authority.
Under para 53 of the Settlement Report, the State could declare the estate of a deceased proprietor leaving no rightful heir within ten generations as "unclaimed" and sell it to the Zamindars of the village or an outsider; the only limitation being that the Zamindars would have the first option to purchase it. This authority could; be exercised by the Ruler, the head of the State Government. Unquestionably, he had the autho�rity to declare any property as unclaimed and to dispose of it.
Consequently, the order and the sale in question were well within his powers and in no way ultra vires. The only ground on which validity of the order is questioned is that the Ruler should have offered the property .to Zamindars of the village before selling it to a stranger. The objection is to the correctness of the order and not its legality in the sense that it was without authority. The order may be wrong on that score and liable to be set aside, but that does not affect the jurisdiction of the author thereof.
The order would not be ultra vires and a nullity simply because the procedure provided for was not observed and the property was not first offered to the Zamindars. It may only be an irregular exercise of jurisdiction vested in the Ruler. As has been repeatedly held, Courts have jurisdiction to decide wrong as well as right.
The principle would apply to all decisions or orders passed by competent authority under the law. A wrong or irregular order would not neces sarily be one without jurisdiction and a nullity; it continues to be regarded as legal and having bind ing force till it is properly avoided or set aside by a competent authority. The order in question, therefore, cannot be ignored by persons whose rights it adversely affects.
In ''Harsur Samat v. Samat Rama, AIR 1953 Sau 94 (D), relied upon by the learned coun�sel, the parties were co-sharers in an agri. cultural land and the plaintiff brought a suit for its partition and separate possession of his share. The Defendant took his stand on a peculiar order of the Dewan of Nawanagar State. By this order, the Dewan forfeited the plaintiff''s share in the land and gave it to the Defendant because the plaintiff was found to have been responsible for a conspiracy to deprive the Defendant of his share. plaintiff''s petition complaining against this order was dismissed by the "Hazur".
The defence was that the suit was barred by limitation as the relief by partition could not be given without setting aside the order of the Dewan passed more than a year before the suit was instituted, and also that the order of the Dewan confirmed by the "Hazur" was binding. On merits, the Court found that the order depriving a person of his property on the ground of doing a dishonest act towards his co-sharer was not supported by any law. or rule of the state, It was, therefore, held that
the order; of the Dewan was entirely with�out jurisdiction and null and void, and conse�quently the order of the dismissal of the appeal questioning, such an order would be of similar nature although passed by the Hazur.
NO argument is required to impress that the decision is of no help to the Appellants.
According to para 53 of the Settlement Report, the State is first to determine whether the deceased had left behind him any legal heir within the prescribed degree or whether the estate is liable to escheat. When the State declares-the property to be unclaimed and decides to dispose of the property, reasonability of the prices offered is then to be determined. Deputes- between the rival claimants, Za-mindars on the one hand and outsiders on the other or between the Zamindars inter se, may also have to be gone into and decided; these may involve the question whether a particular preferential claimant can be regarded as a Zamin-dar of,the village. Any order by the State under this law, of escheat would unavoidably affect rights of the subjects, and the questions involved require a judicial approach for their decision by the authority concerned. The existence of judicial element in the process leading to the decision makes the decision a quasi-judicial one.
An act or order of an officer of Government in his official capacity can be set aside, if the authority or law under which the officer professed to act, does not, when all the facts are judicially inquired into, justify such an act or order. As observed by West J. in ''Shivaji Yesji v. Collector of Ratnagiri'' 11 Bom 429 (E),Article 14 refers
to orders and proceedings of a functionary to which by law is given a particular effect in favour of one person or against another, subject, in the regular course, to a further judicial proceeding having for its object to quash them or set them aside.
The order in question cannot be regarded as purely administrative, and would therefore fall within the ambit of Article 14.
In Gurudwara Sahib Shri Tej Baha dur Gaja v. Piyara Singh AIR 1953 Pepsu 1 (FB)(F), the question referred to the. Full Bench was:
Does not a Civil Court have jurisdiction to determine whether it was within the competence of the, Rulers of the erstwhile Patiala State to give the land that was the private property of the plaintiffs to the Gurdwara Committee by an executive order?
The question was unanimously answered in the negative, as it was found that the Ruler of erstwhile Patiala State was a sovereign in the sense that his power with regard to inter-nal matters was unlimited and unrestricted; he could make,and administer laws; he was foun-tain head of justice; and his word was law.
If the Ruler of Nalagarh as well en-joyed similar sovereignty the Appellants would at once be out of Court, for, as held by the Full Bench, the order of the Ruler would be unquestionable in a civil Court. Shri Tewari distin-quishes the present case on the ground,that the Ruler of Nalagarh did not enjoy the same status'',, and could not be regarded as sovereign.
The learned Counsel strenuously contends that neither in external nor internal affairs of the State, the Ruler''s powers were unlimited or, unrestricted: Settlement of the State territories, which laid down the escheat law, was imposed upon the Ruler by the British Government and he was to abide by the same: The Ruler had no authority to override its provision or make any change in it without previous sanction of the Punjab Government.
For instance, it is pointed out, even in matters of appointment or removal "of officers sanction of the Punjab Government was being obtained. In 1919 A.D., Pt. Hir Nand who was acting as Nazim of the State, wanted to be relieved of his services on personal grounds. The Ruler moved the uperintendent Hill States, Simla, for abolition of the post of Nazim and in its place the Settlement Tahsildar to be designated as Revenue'' Assistant with powers to supervise the revenue work and to do a part of the judicial work and the latter''s salary to be raised to Rs. 170/- per month.
Sanction had also to be obtained for raising the salary of the Wazir from Rs. 200/- to Rs. 240/-, and to Rs. 250/- per mensem for the period he was supervising the settlement work in addition to his duties. Sanction of the Governor: in-Council, Punjab, was obtained for imposition within the Des Ilaqa of the State of a three per cent cess in lieu of the "Road Bagar". Sanction of the same authority was obtained to the reduction of cash rent of Rs. 2/- per month per Ghrat (water-mill) in the State to one of Rs. 1/ 8/ per month.
During the settlement operations, appeals ; from the announcement of Jama, after hearings objections, by the Settlement Officer lay to the Superintended Hill States, Simla. The above material is gathered from the records supplied by the Archives Department, Pepsu, and the: facts are not disputed but are relied upon by learned Counsel for the Respondents as well.
Our attention has also been drawn to the Sunnud granted by the Governor General of India to the Rajah of Nalagarh on 20-10-1815: The relevant words of the Sunnud are:
Whereas all the hill country has come into the possession of the British Government; and whereas Raja Ram Singh has, during the present war, performed worthily the part of an ally of the British Government joining the British troops in person with his forces, and furnishing begarees to level roads and to perform other work therefore, by order of the Right Honourable the Governor-General, this Sunnud is granted to the said Rajah, conferring on him and his heirs for ever Hindoor, etc......together with all the rights and appurtenances belonging thereto, and the sayer collections, and right of distributing justice to the ryots'', without exaction of begarees, or of services, or of nuzzuranah, all these dues being remitted....
The Rajah considering this Sunnud a full and valid title for himself and his descendant will exert himself to the utmost to promote the Welfare of his subjects, and will abstain from encroaching on the possessions of others; and being grateful for the favour which has been shown him by the British Government, he will continue firm allegiance to it, and will conform to all the conditions of this Sunnud."
The settlement in the State was conducted by and under the supervision of the officers deputed by the Punjab Government. The final report, as reviewed and amended by Mr. C. King, Political Assistant Commissioner, Simla, and Mr. E.G.R. Ebraham, Superintendent Hill States, Simla, was approved and sanctioned by the Governor-in-Council, Punjab. Para 53 of this report, which is relied upon as the escheat law for the State, authorised "the State" to declare the estate of a deceased proprietor as "unclaimed", and then to sell it to the Zamindars of the village or outsiders.
"The State" here does not denote any particular individual or a corporate body capable to act by itself. It stands for the Government responsible for'' carrying on the State administration. Again, the Government is to act through its officers, howsoever, high or low they may be. According to Rules of Business, different functions may be assigned to different officers, the Ruler being the supreme executive authority of the State and the executive head of its Government.
The sale in favour of the Defendant mate rialized like this: . The Wazir of the State sub mitted a proposal to the Ruler saying that the estate of Mt. Biro widow of Gadnu, died with out leaving any legal heir, be declared
unclaimed and the same be sold, out of the several claimants, to Gandu Ram Brahmin, a poor loyal citizen of the State, who was prepared to pay a fair price of Rs. 660/- for it.
The Ruler''s order dated 9-9-1999 Bk. says- "Taj-weez-manzur hai." (Proposal is accepted.) The Wazir thereafter sent the file to the Tahsildar for compliance. The Tahsildar got the amount deposited, delivered possession of the property to Gandu Ram, sanctioned the mutation in his favour and returned the file to the Wazir. The Wazir directed the file to be consigned to the record room.
It is common ground between the parties that the Ruler''s order sanctioning the sale was passed under pare 53 of the Settlement Report. It was not made by virtue of any royal prerogative, but in exercise of the authority conferred by a provision in the Report. He acted on behalf of the State, as its agent and the executive head of its Government. An "officer" is one to whom a charge is committed, or who performs a function.
The Ruler discharged the functions of the State Government, and in the present case he acted in that capacity. My view therefore is that for the purpose of Article 14, Limitation Act, the order in question can be deemed to have been made by an officer of the Government in his official capacity; and that makes the article applicable. The suit instituted more than a year after the order was rightly held to be barred by time.
In the result, the appeal is dismissed, but in view of the question involved the parties are left to bear their own costs throughout.