- (1.) Civil Writ Petition Nos. 114 and 123 of 1971 will be disposed of by this common judgment. For proper appreciation of the controversy between the parties in these petitions, facts from Civil Writ Petition No. 114 of 1971 are given.
(2.) Harbhagat was a big landowner. Certain land belonging to him had been declared surplus. Surjan was an ejected tenant and he had been allotted land measuring 11 Bighas and 6 Biswas which had been declared surplus with Harbhagat. The possession of this land had been delivered to Surjan on April 29, 1964. Chhotu, Sahij Ram, Dharmu, Chandgi, Pirdan and Sukh Ram are sons of Harbhagat. They along with their father Harbhagat forcibly took possession of the land allotted to Surjan and continued to be in the unauthorised occupation of the same. Surjan filed an application under Section 43 of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter called the Act) praying for restoration of his land and imposition of penalty on the trespassers. Notice of this application was served on the petitioners. They contested the application on the grounds that the application was time barred, the possession was alleged to have been taken in 1964 and the application was filed in 1968 and as the application was not filed within one year it was barred by limitation. The Assistant Collector found force in the objections raised by the petitioners and dismissed the application of Surjan holding the same to be barred by time. Surjan filed an appeal against this order before the Commissioner and contended that no time limit had been provided in Section 43 of the Act. The Commissioner found force in the contention of Surjan and accepted his appeal and ordered restoration of possession vide his order dated October 7, 1970. The petitioners filed a revision petition against this order before the Financial Commissioner, Haryana. He dismissed the same on December 14, 1970. Dis-satisfied with this order the petitioners have filed this petition. Similar are the facts in C.W.P. No. 123 of 1971. Harbaghat had died during the pendency of these petitions and is now represented by his legal representatives.
(3.) Mr. H.L. Sarin, learned counsel for the petitioners has raised two points before me. He contended : (i) that the application under Section 43 of the Act could be filed by Surjan only within one year of his dispossession; and (ii) that Surjan had paid all the instalments and nothing else remained to be done in the matter and as such the Collector had become functus officio and could not take up this application under Section 43 of the Act and consequently all the proceedings taken on this application are without jurisdiction. It will be useful to notice the provisions of Section 43 of the Act at the threshold :- "Any person who is in wrongful or unauthorised possession of any land - (a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act, or (b) to the use and occupation of which he is not entitled under the provisions of this Act, may, after summary enquiry, be ejected by the Collector, who may also impose on such person a penalty not exceeding five hundred rupees. (2) The Collector may direct that the whole or any part of the penalty imposed under sub-section (1) shall be paid to the person who has sustained any loss or damage by the wrongful or unauthorised possession of the land.";