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TMI Blog1995 (10) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... in this appeal, was in occupation of that land as a tenant. Mohan Lal continued to hold the land as his tenant alter the sale. Some time in June 1955, he approached the Village Panchayat as Mohan Lal had not given him his share in the produce. On 16.6.1955 a compromise was arrived at between him and Mohan Lal where under Mohan Lal had agreed to relinquish possession of the land as he was not able to pay the rent and on his part he had agreed not to recover his share/rent. Pursuant to the compromise the Panchayat also passed a resolution to that effect and Mohan Lal willingly handed over possession of the land to him. On 21st June, 1955 i.e. within 5 days of the compromise Mohan Lal approached the Sub-Divisional Magistrate of that area and alleged that he was forcibly dispossessed and claimed restoration of possession under Section 43 of the Act. The Sub Divisional Magistrate rejected that application as an application under Section 43 could be made to the Collector and not to him. Soon after the SDM was invested with that power Mohan Lal again applied to him. On 12.5.1962 the SDM allowed that application and passed an order for his eviction. Mohan Lal got back possession of the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application under Section 43 of the Act to go into the disputed questions like whether the dispossession of the tenant was illegal and whether the compromise was entered into by the tenant voluntarily or under duress. He further held that the language used in Section 43 shows that the legislature by necessary intendment, if not expressly, has given to the Collector the power to enquire not only into the question whether the person concerned is liable to be ejected on the basis of certain facts admitted or already proved before the Civil Court but also into the existence of those facts. In other words, he held that it was open to the Collector to decide the disputed question namely whether the compromise pleaded by the land owner was entered into voluntarily or under duress and as he found on enquiry that the compromise was arrived at under duress and, therefore, possession of the land owner was unlawful, the jurisdiction of the Civil Court was barred in respect of the matter, by virtue of Section 47 of the Act. He, therefore, allowed the appeal and dismissed the plaintiffs suit. 4. Aggrieved by the decision Nahar Singh filed a Letters Patent Appeal in the High Court. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendency of this appeal Mohan Lal died and he is now represented by his legal heirs. When this appeal came up for hearing before a two Judge Bench of this Court, it doubted correctness of the decision in Bhai Ardaman's case (supra) and expressed the view that it requires reconsideration for the following reasons: We do not see any warrant for the proposition that in order to attract Section 43(1)(b) there should be a specific and express provision in the Tenancy Act itself to the effect that those who are in illegal occupation will not be entitled to use the land. The Collector has been invested with the power to eject unlawful occupants under Section 43(1)(b). The provision will become meaningless if even in cases where a tenant admittedly in possession hitherto is forcibly dispossessed, and that the Collector has no jurisdiction to evict him by holding an appropriate enquiry on being satisfied that the tenant was forcibly dispossessed. Certainly, no express provision providing that a person in unlawful occupation will not have a right to continue in possession is necessary. By the very nature of his occupation being found to be unlawful, he has no legal right to continue in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner. A learned Single Judge of the High Court dismissed the petitions filed against those orders. In appeals under the Letters Patent the High Court reversed the orders passed by the learned Single Judge on two grounds. 8. It held that the Act 8 of 1953 did not have retrospective operation and, therefore, no order for restoration of possession could have been passed as dispossession had taken place in 1943 i.e. long before the Act was brought into force. It also held that the proceedings of the Collector were vitiated because the landowner was not given an opportunity to lead evidence. This Court upheld the view of the High Court that Section 43 had no retrospective operation. It also held that in order to attract the jurisdiction of the Collector to hold a summary enquiry and to pass an order of eviction and restoration of possession under Clause (b) of Section 43(1), it was necessary to show that the person in wrongful or unauthorised possession was also not entitled to the use and occupation of the land under the provisions of the Act. As no provision was pointed out which had rendered the landowner disentitled by virtue of the provision of that Act to the use a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther condition contained in Clause (b) was satisfied or not. In order to find that out the Collector had also the jurisdiction to consider the correctness or otherwise of the grounds on the basis of which it was contended by the respondent that it was lawful. It was conceded on behalf of the respondent that a mere denial by the opponent that his possession is not unlawful or unauthorised and that the other condition contained in Clause (a) or (b), as the case may be, is not satisfied, will not be sufficient to the jurisdiction of the Collector. It was also not disputed that before the Collector can exercise his powers under Section 43 it is not necessary that the facts constituting the condition precedent to the exercise of power are either admitted or first established in a Civil Court. What was contended on behalf of the respondent was that the respondent had not merely disputed that he was in unlawful or unauthorised possession but had further pleaded that he had taken possession under a voluntary compromise evidencing surrender of tenancy and also produced a compromise deed in support of that plea. Therefore, the question which arose for consideration by the Collector was not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Act, the Collector can treat it as unlawful and eject him from the land. So also, a person in possession of land, if found not entitled to its use and occupation under the provisions of the Act, can also be ejected there from. This provision clearly indicates the intention of the legislature that it should prevail over not only the acts of the parties but operation of laws also, in the matter of transfer and possession of agricultural lands. The purpose of this provision is to see that the subject of protection of tenancy rights and land reforms is fulfilled. Therefore, it confers a new right and provides a quick and effective remedy for enforcement of that right. It also confers power on the Collector to impose a penalty. The power can be exercised by the Collector suo motu. The words "under the Act" used in Clauses (a) and (b) indicate the scope of enquiry and fix the ambit of the jurisdiction of the Collector to deal with cases of unlawful and unauthorised possession of the land. They also lead to the conclusion that if the nature of possession is to be determined in terms of Clauses (a) and (b) then it would be a matter to be decided under the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low a short and quick procedure for expeditious disposal. Therefore, merely because the Collector acting under Section 43 has to make a summary enquiry it cannot be said that he can decide only simple questions as regards the nature of possession and not those questions which are complicated but have a bearing on the nature of possession. The contention raised if accepted would result in unduly restricting the scope of enquiry and thereby frustrating the very purpose of enacting Section 43. 15. We, therefore, hold that when an application is made to the Collector under Section 43 he has to decide whether possession of the person against whom an application is made is wrongful or unauthorised because of either of the two contingencies mentioned in that section. It is his jurisdiction to enquiry and decide whether transfer of possession from the applicant to the opponent is invalid under the provisions of the Act or not. Similarly, it would be within his jurisdiction to decide whether the person against whom an application is made is not entitled under the provisions of the Act to the use and occupation of the land of which he is alleged to be in wrongful or unauthorised possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary to consider the alternate contention that the decision of the Collector operated as res judicata in view of Explanation VIII to Section 11 and to refer to the decision of this Court in Sulochana Amma v. Narayanan Nair MANU/SC/0047/1994 wherein it is held that an order of an issue which had arisen directly or substantially between the parties or there privies and decided finally by a competent Court or Tribunal, though of limited or special jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such Court of limited or special jurisdiction was not a competent Court to try the subsequent suit. 18. We are, therefore, of the opinion that the Division Bench of the Punjab and Haryana High Court was not right in allowing the Letters Patent Appeal and holding that the Civil Court had the jurisdiction to consider whether possession of the land by the respondent was lawful or not in view of the compromise and voluntary surrender and that the order passed by the Collector in that behalf was not binding on the Civil Court. We allow this appeal, set aside the order passed by the Punjab and Haryana High Court in L.P.A. No. 366 of 1969 ..... 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