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File No.6/CSC

In the Court of Shri Satish Chandra, IAS

Deputy Commissioner-cum-Settlement Commissioner, Kapurthala.

 

File No.6/CSC

Date of Institution :- 8.6.1993

Date of decision :- 16.11.1994

 

Reference under section 24 of Displaced Persons (Compensation and Rehabilitation) Act, 1954 regarding cancellation of Khasra No. 45 area 15K-7M situated in village Seenpura, Tehsil and District Kapurthala.

State

Vs.

1.Sh. Teja Singh s/o Deva Singh through Chanchal Singh s/o Teja Singh Legal Heir through general attorney Mohan Singh of village Surakhpur.

2.Ishwar Dass deceased s/o Hira Nand through legal heirs Balwant Lal etc. through general attorney Wazir Singh.

3.Balwant Lal s/o Ishwar Dass through general attorney Wazir Singh of Kapurthala.

4.Jagdish Lal deceased through legal heir Harbans Bhagat widow through general attorney Wazir Singh of Kapurthala.

5.Narindar Singh, Kuldeep Singh, Inderjit Singh ss/o Gurbachan Singh residents of village of Subhanpur, District Kapurthala.

 

Present :-

1.Sh. Jit Singh Dhillon, Advocate, counsel for the respondents.

2.Rehabilitation Assistant for the State.

ORDER

This is a reference u/s 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 filed by Tehsildar-cum-M.O.Kapurthala. This reference has also been recommended by the Sub Divisional Officer (Civil)-cum-Settlement Commissioner, Kapurthala. It has been recommended that allotment of the land measuring 15K-7M in Khasra No.45 situated in revenue estate of Seenpur be cancelled.

 

Facts

2. The department of Irrigation Punjab Government constructed an irrigation canal known as Kapurthala Feeder starting from west Bein and running towards Kapurthala Cantonment. The land for this purpose was acquired on 26.7.1952. The land acquired was situated in five revenue estates including Seenpur and Kapurthala. The land acquired belonged partly to private owners and partly to Central Government. The land measuring 106K-9M comprised in Khasra Nos. 44,45,46,53 situated in the revenue estate of Seenpur were the ownership of Central Government. This land was utilised for construction of the Feeder. The mutation of this land belonging to Central Government should have been sanctioned in favour of the Punjab Government Department of Irrigation in the year 1952 itself or shortly thereafter. But this was not done. Mutation No. 1170 Seenpur in respect of this Central Government land was entered on 11.2.1991 in favour of Punjab Government. The mutation was sanctioned on 5.3.1991. The land comprised in Khasra No. 45 etc. became the ownership of Punjab Government after 5.3.1991 as per revenue record.

 

3.It seems theFeeder never worked and it was abandoned.The Drainage Department excavated Wadala Drain in the year 1962-63.This drain is in existence since then.It drains out the rain water of more than 25 villages of Kapurthala and Jalandhar Districts.The water of these villages situated on north and north-east of Kapurthala town is drained out by this drain into the West Bein. This drain protects the town of Kapurthala from the flood waters of these villages.For Wadala Drain a portion of Kapurthala Feeder was also utilised since the Feeder had been abandoned.The land comprised in Khasra Nos. 44,45,46 Seenpur was utilised for Wadala Drain.This land had earlier been acquired/transferred to Punjab Government for construction of the Kapurthala Feeder.For Wadala Drain while the land belonging to private farmers was acquired, the land comprised in Khasra No. 44,45 and 46 were not acquired since it already vested with Irrigation Department.

 

4.It may, therefore, be seen that the Irrigation Feeder except for the portion which had been utilised for Wadala Drain was lying abandoned.Some of the private land owners whose land had been acquired for the construction ofIrrigation canal in the year 1952 requested the Government for denotifying the land acquired for Irrigation Feeder.The Punjab Government vide its memo No. 24/9/91/Land Revenue-I/9040, dated 30.5.91 denotified the land acquired for the Irrigation Feeder in the year 1952.The portionof the Irrigation Canal on which Wadala drain had been excavated should not have been denotified and it should have been excluded while denotifying the land acquired for the Irrigation Feeder.However by mistake this was not done and the entire area of Kapurthala Feeder including the common portion which had been used for Wadala Drain was denotified.As a result of denotification the land comprised in Khasra No. 44,45 and 46 which were originally the property of Central Government were to be reverted back to the Central Government.Mutation No. 1229 Seenpur was entered for giving effect to the denotification.It was proposed to restore the land acquired for Irrigation Department to the original land owners through this mutation.The ownership of Khasra No. 45 was proposed to be restored to Central Government.This mutation No does not bear the signatures either of the Patwari who had entered the mutation or the Kanungo who had verified the mutation.Even the date of entry has not been mentioned.The reason for entering this mutation has also not been mentioned.The mutation was finally rejected on 9.7.1994 by the Assistant Collector 2nd Grade, Kapurthala.The denotification has therefore not yet been reflected in the Jamabandi.The land comprised in Khasra No. 45 etc continues to be recorded in the ownership of Punjab Government.

 

5.The total area of the Khasra No. 45 is 17 K - 7 M.The Tehsildar (Sales vide his different orders allotted the land measuring 15K-7M to different persons against their claims.

1. Teja Singh s/o Deva Singh 8K-10M 25.9.92

2. Teja Singh s/o Deva Singh 0K-17M 30.9.92

3. Ishwar Dass s/o Hira Nand 2K-0M 30.9.92

4. Balwant Lal s/o Ishar Dass 2K-0M 30.9.92

5. Jagdish Lal s/o Ishar Dass 2K-0M 30.9.92

 

6. The attorneys of legal heirs of the allottees sold the land to Inderjit Singh, Kuldeep Singh, Narindar Singh ss/o Gurbachan Singh immediately after the allotment. The details of the sale deeds are :-

Sr. Land Date of sale deed Amount

No.

1. 8K-10M 29.9.92 Rs.1 lac

2.0K-17M9.10.92Rs. 12,500/-

3.2K-0M9.10.92Rs. 25,000/-

4.2K-0M9.10.92Rs. 25,000/-

5.2K-0M9.10.92Rs. 25,000/-

7. The mutation of inheritance of the allottees were entered but not sanctioned. They were finally rejected. The details are as follows :-

 

Mutation No./Decision

 

Ownership From Ownership to Date Entry Date Decision

1275

Rejected

 

Teja Singh

Pritam Singh s/o Chanchal Singh s/o Teja Singh

29.9.92

4.6.94

1278

Rejected

 

Teja Singh

" "

7.10.92

4.6.94

1279

Rejected

 

Jagdish Lal

Harbans Bhagat wd/o Jagdish Lal

7.10.92

4.6.94

1280

Rejected

Ishwar Dass

Balwant Lal s/o Ishwar Dass, Nirmal Chand s/o Uttam Chand s/o Ishwar Dass, Harbans Bhagat wd/o Jagdish Lal s/o Ishwar Dass, Harsimran Singh s/o Mukand Lal s/o Ishwar Dass

7.10.92

4.6.94

 

These mutations were entered in respect of land measuring 17K-7M comprised in Khasra No 45. The respective shares of the allottees were mentioned. The mutations were rejected by the Assistant Collector 2nd Grade on 4.6.1994. Mutation No. 1281,1282,1283 and 1284 and 1285 were entered in respect of the sale deeds in favour of Narinder Singh, Kuldeep Singh and Inderjit Singh ss/o Gurbachan Singh. These mutations were finally rejected by the Assistant Collector 2nd Grade on 4.6.1994. They were entered on 13.10.1992 on the basis of sale deeds executed by the attorneys of the legal heirs of the allottees. It is relevant to mention that at the time of sale deeds and at present mutations of inheritance of the allottees have not been sanctioned in favour of their legal heirs. But even then the attorneys of the legal heirs executed the sale deeds. They have executed the sale deeds merely on the strength of the entry of mutations in favour of the legal heirs.

8. The Khasra Girdawari entries in respect of Khasra No.45 were recorded in favour of Central Government till Kharif, 1989. Girdawari in respect of land measuring 2K-10M out of 17K-7M of this Khasra No. was changed in favour of Satveer Singh during Rabi 1990. He continued to be recorded in the Khasra Girdawari till Rabbi, 1992. Inderjit Singh, Kuldeep Singh, Narinder Singh applied for the correction of Khasra Girdawari and Tehsildar, Kapurthala vide his order dated 7.5.1992 changed the Khasra Girdawari of the entire 17K-7M land in favour of Inderjit Singh etc. w.e.f. Kharif, 1991. The Collector Sub Division, Kapurthala vide his order dated 18.6.1992 stayed the order of the Tehsildar dated 7.5.1992. He finally vide his order dated 7.7.1993 set aside the order of Tehsildar and he corrected the Khasra Girdawari in favour of the Drainage Department.

9. Gurbachan Singh father of Inderjit Singh etc. had filed a civil suit No.99 of 2.2.1991 in the court of Senior Sub Judge for permanent injunction for restraining defendants Sub Divisional Officer (Civil), Kapurthala and Sub Divisional Officer Drainage, Kapurthala and Secretary, Irrigation from taking forcible possession of the land comprised in Khasra NO. 45 and 46. This civil suit was finally dismissed on 16.12.92.

10. Inderjit Singh, Kuldeep Singh, Narinder Singh ss/o Gurbachan Singh filed another Civil of 1992 against the Sub Divisional Officer (Civil), Sub Divisional Officer Drainage and Secretary, Irrigation in the court of Senior Sub Judge, Kapurthala. It was maintained by them that they purchased the land from the allottees and therefore they had become owners of the land. They claimed to be owners in possession of the suit land. The Senior Sub Judge vide his order dated 20.4.1994 granted injunction against the dispossession of the applicants from the suit land. The suit land measured 24K-17M and was comprised in Khasra No.45 and 46. The Sub Divisional Officer Drainage etc. defendants filed an appeal against this order in the Court of District Judge, Kapurthala who vide his order dated 9.3.94 dismissed the appeal. The learned District Judge held that they could not be dispossessed except in accordance with law.

11. Kuldeep Singh etc. filed an application M.R.No.22 of 1992-93 in the court of Financial Commissioner, Appeals for the transfer of reference pending in the court of the then Deputy Commissioner S. Gian Singh Sandhu. The Financial Commissioner, Appeals, vide his order dated 4.10.1993 stayed the proceedings in the court of the then Chief Settlement Commissioner. The then Chief Settlement Commissioner retired on 30.4.1994 and the Financial Commissioner, Appeals, vide his order dated 18.5.1994 rejected the application since the new Presiding Officer had assumed the charge.

Reference

12. The reference from the Tehsildar-cum-M.O. and recommended by the Settlement Commissioner is quire detailed. It has been stated that in this case the land within ½ mile of the Municipal limits has been allotted without the approval of the Government which was mandatory as per Government instructions dated 12.8.1970. Secondly the land which has been allotted is recorded as Gair Mumkin in the Jamabandi and Gair Mumkin land could not be allotted. However in one case Gair Mumkin land had been allotted by wrongly classifying it as Barani in the Parcha allotment. In the four cases there is no goshwara allotment in the absence of which it is not possible to find out whether the parties were entitled to the allotment. It has been further stated that the allotments were made immediately after the receipt of applications from the so called claimants. Finally it has been mentioned that necessary documents have not been placed on the file and the land allotted was sold immediately after the allotment. The land could not be sold without the permission of competent authority. The Settlement Commissioner had recommended that the allotments should be cancelled because the allotments were fraudulent.

13. Notice of this reference was given to the allottees and vendees. The vendees have appeared in this case. Kuldeep Singh, Narindar Singh, Inderjeet Singh who had purchased the land from the allottees had tried to get the case transferred from this court as already explained in para 11 above but the transfer application was rejected since the then Chief Settlement Commissioner had retired.

Reply

14. The allottees have not appeared. A detailed reply has been filed by Narinder Singh, Kuldeep Singh and Inderjit Singh ss/o Gurbachan Singh on 11.7.1994. They have contended that the reasons for summoning them have not been disclosed. They have contended that they have filed a civil suit in 1992 which is pending in the court of Sub Judge First Class. The subject matter of the suit is the validity of the allotment in favour of the allottees and subsequent sale in favour of the answering respondents. The jurisdiction of this court is therefore barred in view of the pending civil suit.

15.It has been further stated in the reply that they are bonafide purchasers of the land for valuable consideration.Before making the purchase they had made due enquiry about the allotment in favour of the allottees.The sale of the land in their favour is therefore protected under the law.They have alleged that the reference is the result of their declining to oblige the then Sub Divisional Officer (Civil).They have stated that the allegations made in the reference are false and against the true facts.They have further mentioned that it has been wrongly mentioned in the reference that the Drainage Department has asked for the land in dispute, for there is no such application in writing on the record from the Drainage Department.They say that there is no provision under the law to cancel the allotment on the request of some officer of any department.They have maintained that there is absolutely no provision for running of the alleged drain.There is a pucca building on the eastern side (up stream) while on the other side (down stream) agricultural land of other owners exists on much higher level.They have stated that the alleged drain will not be workable.As per their reply if the reference is accepted the result would be that a small pond would be formed and not the alleged drain.

16.They have alleged that there is no truth in the reference forwarded by the Sub Divisional Officer (Civil).They have questioned the recommendations of the Sub Divisional Officer (Civil) to the effect that the Wadala drain is 26.6 Km long and drains out water of the 20 villages.They have alleged that the Sub Divisional Officer Drainage wanted to help a party and for that purpose he made a plan with the Sub Divisional Officer (Civil) to seek cancellation and reallot this piece of land to their men after some time for their vested interest.They say that without acquiring the adjoining land on both sides of this land the alleged drain could not be made workable.

17.They have alleged malafide on the part of the then Sub Divisional Officer (Civil).They have accused him of challenging them u/s 107/151 Criminal Procedure Code.The Sub Divisional Officer (Civil) with the help of Bulldozer tried to dig up the canal in 1993 inspite of stay from the Civil Court.

18.They have stated that there is no provision for any approval.The goshwaras were duly prepared and the land was allotted to the allottees.Since the land was not allotted at reserve price to the weaker section of the society there is no bar against its sale.Possession was delivered to the allottees vide page 113 of the file.There is a letter dated 3.9.1992 from the Deputy Secretary at page 87 of the file directing the Tehsildar to allot the land without further loss of time.They have said that they have been singled out by way of proposed cancellation as there are number of other persons in occupation of the area of the alleged drain who have constructed pucca residential houses but no proceedings have been initiated against them.There is construction on both the sides of the drain.They have suggested that in case the Government decides to revive the scheme they can separately acquire the land.The cancellation of the allotment will negate the purpose of denotification.

Arguments

19. The learned counsel for the defendants reiterated all the points submitted in their written reply to the reference. He stated that there is no drain at the spot and even if this allotment is cancelled and the land dug up the drain will not be workable because it has been encroached upon both the up stream side and down stream side. Secondly the learned Counsel argued that before making the purchase they had made due enquiries and therefore they are bonafide purchasers. The purchase is protected under section 41 of the Transfer of Property Act. Thirdly they have stated that under section 24 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 the allotment can be cancelled only when the allotment is found to have been obtained by fraud false representation and concealment of any material fact. The instant case five allotments does not suffer from either of these infirmities and therefore the allotment cannot be cancelled. The learned counsel has cited a High Court decision dated 14.1.86 contained in 1987(1) Land Law Reporter page 301. The facts of the case were that the land was allotted in 1957 and the land was sold in 1965 and allotment was cancelled in 1970. The vendees were held to be the bonafide purchasers. The other ruling 1986(1)LLR 413 says that the allotment of sub urban land could not has been cancelled without giving the allottee an opportunity to adduce evidence. 1976 PLR 475 cited by the learned counsel also says that bonafide purchasers are protected. In this case the bonafide purchasers had enquired from the village patwari and the seller was recorded as absolute owner and before him his grandfather had been recorded as owner. The Hon'ble High Court had held that the vendors were ostensible owners and the rights of the vendees were protected under section 41 of the Transfer of Property Act.

20. Rehabilitation Assistant appeared on behalf of the State reiterated the points mentioned by the Tehsildar and Sub Divisional Officer (Civil) in reference.

Decision

Issues

21. There are basically three issues involved in the reference. The respondents vendees have contended that the reference does not lie because the allotments have not been obtained by fraud, misrepresentation or concealment of facts. The second issue whether the allotment can be cancelled in view of the irregularities alleged to have been committed. Third issue is whether the respondents are entitled to protection under section 41 of the Transfer of Property Act.

Does the reference lie?

23. Section 24 of Displaced Persons (Compensation & Rehabilitation) Act, 1954 deals with the powers of revision of the Chief Settlement Commissioner. Sub Section (1) of Section 24 reads as follows :-

" 24. Power of revision of the Chief Settlement Commissioner - (1) The Chief Settlement Commissioner may at any time call for the record of any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Additional Settlement Commissioner, a Settlement Commissioner a managing officer or a managing corporation has passed an order for the purpose of satisfying himself as to the legality or property of any such order and may pass such order in relation thereto as he thinks fit."

It may therefore be seen that the Chief Settlement Commissioner has full powers to set aside illegal and improper order. There are number of citations on this point. It has been held by the High Court in 1981 RLR 283 that a transfer can be cancelled by the Chief Settlement Commissioner if it is found that it was erroneously granted. AIR 1964 Punjab 33, AIR 1959 Punjab 370, ILR 1969(1) Punjab 554/1998 PLJ 666 stipulate that the Chief Settlement Commissioner has been conferred wide powers to satisfy himself that the earlier proceedings have been taken legally and properly and he can always interfere on the ground of illegality and impropriety. It is therefore, quite clear that the Chief Settlement Commissioner has full powers to set aside illegal and improper orders of his subordinate. Section 24(2) separately empowers the Chief Settlement Commissioner to cancel the allotment in case the said allotment is obtained by the allottee by means of fraud false representation and concealment of any material fact. The contention of the respondent, vendees that the reference does not lie is without basis and not supported by the facts. There have been number of irregularities and illegalities in the allotments on the basis of which the orders of the Tehsildar-cum-Managing Office requires to be set aside.

Illegalities

No Government approval

25. The Tehsildar and Sub Divisional Officer (Civil) have enumerated the various illegalities committed by the Managing Officer in making the five allotments. Department of Rehabilitation, Punjab Government vide its memo No. 33150-76/50(S) Urban dated 12-8-1970 at page 16 of the compendium containing the instructions governing the disposal of evacuee land has stipulated that the evacuee lands which are stipulated within one mile radius beyond the limits of A-Class Municipal Committee shall not be disposed of by allotment. This was done in view of increase in the value of sub-urban land. The instructions further stipulated that in case it was considered necessary to allot such land then the case may be sent to the Government for approval. It is therefore quite clear that the land situated at the periphery of Municipal limits could not be allotted without the prior approval of the Government. In this case the land is situated right on the Municipal limits. The respondents Kuldeep Singh etc. have contended that the Government vide its letter No. P.4(927)92/6525 dated 3-9-92 has granted approval for allotment of this land. This letter is placed at page 87 of the allotment file of Teja Singh. This letter has been written by Department of Rehabilitation to the Tehsildar in response to letter's letter No. 1316/Reh. Dated 31.7.92 Letter dated 31.7.92 is not on the file. The letter dated 3.9.92 is very brief and its contents are reproduced below:-

“Kindly refer to your letter No. 1316/Rehb dated 31.7.92

2. It may kindly be explained as to why no action has been taken in regard to allotment since 1991. The allotment case should be processed and finalised expeditiously. The reasons for the delay may kindly be explained to the Rehabilitation Department and the case should be disposed of immediately as per the Government instructions and rules. The file of the case sent to this office is returned herewith

Sd/- Supdt.

For Deputy Secretary

Rehabilitation “

The Government has merely asked the Tehsildar to finalize the allotment case expeditiously as per Government instructions and rule and no where it has been stated that evacuee land at the periphery of municipal limits be allotted to the allottees. It is therefore quite clear that five allotments wherein land measuring 15K-7M comprised in Khasra No. 45/2 situated right on the Municipal limits have been made without seeking the approval of the Government which was mandatory as per Government Instructions dated 12.8.1970. The allotments are therefore liable to be set aside for this reasons alone.

Land allotted belongs to Punjab Government

26. The land allotted through five allotments is comprised in Khasra No. 45. The copy of the Jamabandi on the basis of which the proposal has been framed is placed at page 93 of the allotment file of Teja Singh. The land comprised in Khasra No, 45 has been classified as Ghair Mumkin nehar and it is described as property of the Central Government However following notes have been recorded on the copy of the Jamabandi.

Note 4 - Notice No. 1170 altering the ownership of these Khasra Nos. from the Central Government to the Punjab Government Department of Irrigation has been sanctioned. It means Khasra 45 has become the property of the Punjab Government, Department of Irrigation. As mentioned earlier this mutation was sanctioned on 5-3-1991 giving effect to the acquisition of land for irrigation canal. The land was acquired in 1952. But the mutation was sanctioned on 5-3-1991

Note 7 - The senior Sub-Judge vide his order in Civil Suit No. 99 of 2-2-91 from Bachan Singh s/o Gopal Singh has ordered to for status quo of this land till 5-3-91.

Note 8 - The Assistant Collector 2nd Grade has corrected the girdawari of Khasra No. 45 in favour of Kuldeep Singh Inderjit Singh and Narinder Singh ss/o Gurbachan Singh.

Note 9- Mutation No. 1229 for giving effect to the de-notification of the land vide which the land has been restored to the Central Government, is pending for decision.

Note 10- There is no costly tree on this land and this area is outside of Municipal limits.

As per the copy and the notes given on it, it is clear that Khasra No. 45 which was the property of the Central Government has become the property of the Provincial Government vide mutation No. 1170. The land was de-notified but the mutation No. 1229 giving effect to the de-notification vide which the ownership was again restored to the Central Government was pending for decision at the time of allotment. This mutation as described earlier was rejected on 9-7-1994. This mutation was entered but it does not bear the signatures of either the Patwari or the Kanungo. It means as per revenue record the land belonged to the Punjab Government and it was not available for allotment. The allotments have been made in haste by the Tehsildar without verifying the ownership. The proposal for allotment was framed at noting page 103 and 105. It has been mentioned by the Sales Kanungo that the land has been denotified but its mutation was pending for decision. But he recommended its allotment and the land was allotted by the Tehsildar on 25-9-92. It may therefore be seen that in this case the land allotted was the property of Punjab Government and it could not have been allotted in the absence of change of ownership in favour of the Central Government. The change of ownership never took place in the revenue records and it has been clearly mentioned as such in the allotment file. Mere de-notification of the land does not confer ownership on the Central Government. The de-notification merely means that the land acquired for Irrigation Department was no longer required and it was available for restoration to the original land owners. Land owners thereafter will have to come forward and deposit the amount fixed. Then only the land is restored to them. Therefore mere de-notification in the absence of sanction of mutation No. 1229 does not amount to change of ownership from Punjab Government to Central Government. Even then the five allotments were made in respect of land measuring 15K-7M. This is extremely irregular on the part of the Managing Officer. He has allotted land recorded in the ownership of Punjab Government to the allottees.

Allottees not given possession

27. Rule 58 of the Displaced Persons (Compensation & Rehabilitation) Rule 1955 stipulates that any person who is allotted agricultural land under these rules shall be granted vacant possession of this land. However in these five cases of allotment the allottees were not given the possession of the allotted land. Because as per corrected Khasra Girdawari of Gurbachan Singh wherein possession of the entire Khasra No. and Gurbachan Singh himself had obtained a status quo order from the Senior Sub-Judge in Civil Suit No. 99 of 2.2.91. At page 101 of the allotment file is placed a statement of Gurbachan Singh recorded before the Tehsildar on 25-9-92. In this statement, Gurbachan Singh stated that he had no objection if this land was allotted to Pritam Singh (Grandson of Teja Singh) since his sons had executed an agreement of the purchase of this land with him and the stay order of the court was not to be applicable in this case. Pritam Singh on behalf of Teja Singh applied for delivery of possession on 25-9-92 at page 109 of the file. The Field Kanungo on 28-9-92 delivered the so called Malkana possession. There is no concept of Malkana possession. The allotments are therefore in violation of Rule 58 of Rules.

Undue haste

28. In this case there has been undue haste in the allotment. This by itself can not be considered and irregularity but seen in the backdrop of other irregularities it become one of the irregularity. The details of the allotment are as follows :-

 

SN

 

Allotment Land Date of application Date of allotment

1. 

Teja Singh

8K-10M

20-9-1992

25-9-1992

2. 

Teja Singh

0K-17M

29-9-1992

30-9-1992

3. 

Ishwar Dass

2K-10M

29-9-1992

30-9-1992

4. 

Balwant Lal

2K-10M

29-9-1992

30-9-1992

5. 

Jagdish Lal

2K-10M

29-9-1992

30-9-1992

 

The Tehsildar-cum-Managing Officer and his staff had little time to verify the claims and entitlements of the applicants. Within one day the applications were received and processed by the Sales Kanungo and the allotments were ordered by the Tehsildar and Parchi allotments were issued. It is an extremely difficult task and it proves that the staff of the Tehsil made these allotments in connivance with the attorneys of allottees. The staff hardly had any time to verify the claims of the allottees and their entitlements. In fact no verification whatsoever was made in this case as explained in the following paragraphs.

 

Sale of allotted land

29. Another irregularity which has been committed is related to the sale of this property. As mentioned in para 6 above, the land measuring 15K-7M was allotted on 25-9-1992 and 30-9-1992. It was sold to Kuldeep Singh, Inderjit Singh and Narinder Singh on 29-9-1992 and 9-10-1992. Rule 102 of the Displaced Persons (Compensation & Rehabilitation) Rule, 1995 stipulates.

102 Cancellation of allotments and leases - A Managing Officer of Managing Corporation may in respect of the property in the compensation pool entrusted to him or it, cancel an allotment or terminate a lease, or vary the terms of any such or lease or allotment of the allottee or lessee as the case may be -

 

(a) has sublet or parted with possession of the whole or any part of the property allotted or leased to him without the permission of the competent authority or "

 

In this case the entire land has been sold within a few days of the allotment by the allottees without the approval of the Government. The allotment is liable to be set aside on this ground also.

 

Allotment of land measuring 8K-10M to Teja Singh

30. The goshwara of allotment in respect of Teja Singh is placed at page 9 of allotment file. He was entitled to allotment of 37 S.A. and 10½ units. This goshwara was last verified on 27-1-1982. The land allotted to him stood at 36 S.A. and 8 1/4 units. Land measuring 1 S.A. and 2 1/4 units remained to be allotted to him. The allotment has been described as sub urban. From the file it transpires that he was allotted lands as follows: -

 

Page

 

Area

 

Place

Date

35

0 S.A. - 2 1/4 units

2K-5M

Mansurwal Dona

17-10-1984

49

0 S.A. - 1 unit

1K-0M

Talwandi Mahima

26-11-1984

69

0 S.A. - 1 3/4 units

0K-16M

Dalla

13-05-1985

83

0 S.A. - 4 1/4 units

3K-6M

Abdulpur

07-10-1990

107

0 S.A. - 9 units

8K-10M

Seenpur

25-09-1992

 

As already mentioned in the above para the land was and is situated right on the Municipal limits and therefore it required approval of the Government which was not obtained. He was to be allotted land measuring 0 S.A. 9 units of agricultural land. The Government instructions clearly stipulate that Ghair Mumkin land fit for abadi was not to be allotted. Khasra No. 45 was classified as Ghair Mumkin Nehar as per copy of Jamabandi placed at page 93 of the allotment file. Further in the proposal framed at the page 105 of the allotment file the land was wrongly described as Barani and the allotment was made. Even in the allotment Parchi in respect of Teja Singh s/o Deva Singh placed as page 107 the land has been classified Barani. This is nothing but an out right fraud. Since Teja Singh was entitled to allotment of agricultural land and he could not be allotted Ghair Mumkin land the land which has been classified as Ghair Mumkin in the revenue record was knowingly and willfully wrongly described as Barani in the allotment proposal and the allotment Parchi. It may therefore be seen that Teja Singh had been allotted land by willfully and deliberately changing the classification of the land. The allotment of land measuring 8K-10M which is classified as Ghair Mumkin in the Jamabandi and the Fard Jamabandi at page 93 is patently fraudulent and illegal.

The Patwari in his copy of Fard Jamabandi has mentioned that there are no costly three on this land but the Sub Divisional Officer (Civil) in his reference has mentioned that there are seven costly trees on this land. It is therefore quite clear that the allotment of land measuring 8K-10M in favour of Teja Singh is patently fraudulent and illegal. In this case gross irregularities have been connected. Some of the irregularities which are common to all the allotments have been mentioned in para 25,26, 27,28 and 29. The other irregularities in this case relate to willful wrong classification of the land as Barani instead of Ghair Mumkin as described in the copy of Jamabandi and wrong report regarding the existence of the trees.

Allotment of land measuring 0K-17M to Teja Singh

31. As mentioned earlier as per goshwara of allotment land measuring 1 S.A. and 2 1/4 unit remained to be allotted to Teja Singh. There is no mention of allotment of Taur i.e. residential plot. An application was filed on behalf of Teja Singh on 29.9.1992 for allotment of plot. The allotment proposal was framed on that day itself. It was mentioned that the allottee has not been allotted any residential plot and he should be allotted a plot measuring 0K-17M comprised in Khasra No. 45. It was further mentioned that the area was out side the residential area but it was quite near to the residential area. On 30.9.92 the allotment was made. In the allotment Parchi the land has been classified as Ghair Mumkin. This is a contrast with the classification of the same land as Barani at the time of allotment of land measuring 8K-10M. This allotment is also fraudulent because the Tehsildar-cum-MO has no power to allot any land in the absence of goshwara of allotment. The allottee merely mentioned that he has not been allotted any plot and a plot was allotted to him on the very next day. No verification whatsoever was made regarding the contention of the allottee. As per goshwara allotment he was not entitled to residential plot. This allotment is totally fraudulent.

Allotment of land measuring 2K-0M to Ishwar Dass s/o Hira Nand

32. There is no goshwara of allotment in respect of this case also. An application was filed by Wazir Singh on behalf of Ishwar Dass on 29.9.1992. It was mentioned that Ishwar Dass was allotted land measuring 1K-15M which was cancelled by the Chief Settlement Commissioner on 8.5.1990 and the Chief Settlement Commissioner had ordered for alternate allotment within three months. It was mentioned in the allotment proposal that the allottee was entitled to 2 Kanal plot and the Tehsildar on 30.9.92 allotted land measuring 2 Kanals in Khasra No.45. The land was classified as Ghair Mumkin. The order of Chief Settlement Commissioner dated 8.5.1990 has been placed on file. The allotment of land measuring 1K-15M was cancelled in respect of Ishwar Dass on the ground that the land was situated in the Urban area. The complete record of Ishwar Dass was not placed on the file and without verifying the actual entitlement the land measuring 2 Kanals was allotted to Ishwar Dass. Rule 57 of the Rules stipulates that the maximum size of the residential plot can be not more than 600 Sq.Yards which is nearly equal to 1 kanal. This allotment is grossly irregular.

Allotment of land measuring 2K-0M to Balwant Lal s/o Ishar Dass

33. This case is quite similar to that of Ishwar Dass. An application was received on 29.9.92 for allotment of a plot on behalf of Balwant Lal. Balwant Lal had been allotted land measuring 2 Kanals but its allotment was cancelled by the Chief Settlement Commissioner vide his order dated 8.5.1990. He was required to be given alternative plot. There is no goshwara allotment on the file. It was not verified by the staff whether any residential plot had been allotted to Balwant Lal earlier and else where as per order of the Chief Settlement Commissioner dated 8.5.90. The land measuring 2 Kanals cannot be allotted for residential plot. This allotment is also irregular.

Allotment of land measuring (2K-0M) to Jagdish Lal s/o Ishar Dass

34. An application was received on behalf of Jagdish Lal on 29.9.1992 to the effect that he was allotted land in Khera Bet but he had not been allotted any residential plot. There is no goshwara allotment. His case was not even covered by the order of the Chief Settlement Commissioner dated 8.5.1990. The land measuring 2 Kanals comprised in Khasra No.45 was allotted. There is no reason or logic whatsoever for the allotment of land measuring 2 Kanals to Jagdish Lal. There is no goshwara allotment nor is there any order of the Chief Settlement Commissioner. The allotment to Jagdish Lal is an out right fraud.

Are the vendees entitle to protection under Section 41 of Transfer of Property Act ?

35. The respondents Kuldeep Singh etc. have contended that they are bonafide purchasers of this land. The purchase of land from the legal heirs of the allottee is therefore protected u/s 41 of the Transfer of Property Act. Their contention is however not supported by the facts of this case. Section 41 of the Transfer of Property Act is attracted if and only if the following three conditions are satisfied :-

(1)the transferor must be an ostensible owner of the property transferred with the consent of the persons interested.

(2)The transfer must be for consideration; and

(3)The transferee must have acted in good faith after taking reasonable care to ascertain that the transferor had power to transfer the same.

In this case the vendees have purchased the lands from the attorneys of legal heirs of the allottees. The land purchased is comprised in Khasra No.45. It has been explained in detail that as per copy of the Jamabandi the land at the time of allotment and at the time of sale was recorded in the ownership of Punjab Government and therefore it was not available for allotment. This should have been obvious to the vendees from mere perusal of the revenue record. The land was allotted to Teja Singh, Ishwar Dass, Balwant Lal and Jagdish Lal. The mutations of their inheritance as explained in para 7 above were entered but no sanctioned at the time of execution and registration of the sale deeds. These mutations were finally rejected. It is therefore quite clear that mutations of inheritance of the allottees have not been sanctioned in favour of their legal heirs. The legal heirs had therefore not been recorded as owners of the land sold. However it has been mentioned in the sale deeds that mutations of inheritance of the allottees had been sanctioned in favour of their legal heirs. For example in the sale deed relating to land measuring 8K-10M allotted to Teja Singh it has been mentioned that the mutation of inheritance of Teja Singh in favour of his legal heirs has been sanctioned at Mutation No.1275. In regard to sale deed of land measuring 0K-17M it has been mentioned that mutation of inheritance of Teja Singh allottee had been sanctioned in favour of his legal heirs at NO.1278. Similarly in regard to the sale deed of land measuring 2 Kanals allotted to Ishwar Dass it has been mentioned that mutation of his inheritance has been sanctioned in favour of his legal heirs at No.1280. In respect of sale of land allotted to Jagdish Lal it has been mentioned that mutation of his inheritance has been sanctioned in favour of his legal heirs at No.1279. But these mutations were merely entered and not sanctioned at the time of the sale deeds. These mutations were finally rejected. It means that what was written in sale deeds regarding the mutations of inheritance was false and baseless. The legal heirs of the allottees therefore had not been recorded as owners of the land sold. It is not clear how the vendees came to the conclusion that the so called attorneys could sell the land it is also not clear how they ascertained the authenticity of the status of the legal heirs and their attorneys.

The allottees of land were dead at the time of their allotments and mutations of their inheritance were not sanctioned. Had the respondents vendees even consulted the revenue record it would have been obvious to them that the transferors were not recorded as owners and therefore they were prima facie not competent to sale the land in fact they did not even verify what was written in the sale deeds. The protection of section 41 is available only if the vendees had taken reasonable care to ascertain that the transferor had power to transfer the property. In this case what to talk of reasonable care, the vendees willfully shut their eye and the purchased the lands. They did not even ascertain the veracity of what was written in the sale deeds.

The learned counsel was asked on 28.10.1994 when the hearing was resumed about his clients not having verified about the status of the transferors from the Jamabandi and the Mutation Register. He argued that even if what had been scribed in the sale deed in regard to Mutations of inheritance, was false and untrue, it would not make the sale deed invalid. The reason given by him is that the land stood allotted to the allottees and therefore the land could be sold on their behalf. It is true that the land stood allotted but in this case the land has not been sold by the allottees. It has been sold by the attorneys of their legal heirs. The question is whether the vendees had ascertained that the transferors were prima facie owner of the land. In this case the transferors were not recorded as owners in the revenue record. This would have been clear to them had they consulted the revenue record. This goes to show that the vendees have been negligent and they purchased the land in haste.

In fact the sale deeds were executed within few days of the allotments. As mentioned earlier vendees Inderjit Singh, Kuldeep Singh and Narinder Singh had applied for correction of Khasra Girdawari of Khasra No.45 much before the allotment and the Tehsildar vide his order dated 7.5.1992 corrected the Khasra Girdawari in favour of Vendees w.e.f. Kharif 1991. Not only that Gurbachan Singh father of the vendees filed a Civil Suit No.99 of 2.2.91 in the court of Senior Sub Judge for permanent injunction against the Sub Divisional Officer (Civil) and Sub Divisional Officer Drainage etc. and the Senior Sub Judge ordered for the maintenance of status quo. It makes it clear that the Vendees had occupied the land much before the allotment. Gurbachan Singh has recorded a statement at page 101 of the allotment file of Teja Singh that he had no objection if the land was allotted to Pritam Singh grandson of Teja Singh because his sons had executed an agreement with Pritam Singh for purchase of this land. It means that the vendees had agreed to buy this land even before its allotment. Under these circumstances it cannot be believed that they are the bonafide purchasers of this land. The vendees grabbed the Government land much before its allotment and agreed to buy it from the allottees. It looks as though the vendees wanted to grab this land. They first occupied it illegally, obtained status quo order from the court and then tried to regularise their possession through the fraudulent allotments and the subsequent sale in their favour. It looks as if the vendees were party to the fraudulent and irregular allotments. It is therefore quite clear that they are not bonafide purchasers and the protection u/s 41 of the Transfer of Property Act is not available to them.

Decision

36. Glaring irregularities have been committed in these allotments. They can be summarised as follows :

(a)the land allotted was and is still recorded in the ownership of Punjab Government and it was not recorded as evacuee land in the revenue record.It was not available for allotment.

(b)Even if it had been evacuee land the approval of the Government was required before its allotment since the land was situated within one mile of the Municipal limits.The Government approval was not obtained.

(c)The possession of the land was not given to the allottees.

(d)the land was wrongly classified as Barani in one case and the remaining four cases there was no goshwara allotment in the absence of which the land could not have been allotted at all.

(e)The allotted land was sold without any approval.

As mentioned above the sale deeds were also illegal since the vendors were not recorded as owners of this land. The vendees are not entitled to any protection. The contention of the vendees that there is no drain at the spot is totally baseless. There exists a drain on both the up stream and down stream of Khasra NO.45. There is no merit or substance in the contention of the respondents. The allotments are highly irregular and they are required to be set aside. If the allotments are not set aside, it would amount to legitimising the glaring irregularities committed by the Managing Officer and his Sale Kanungo. The respondent vendees grabbed the Government land and tried to regularise their possession through these fraudulent allotments. The allotments are accordingly cancelled. The land would accordingly vest with the Provincial Government, Irrigation/Drainage Department till any mutation is sanctioned. The reference is accepted and the allotments are cancelled.

 

Announced

Dated 16.11.1994                                                                                Chief Settlement Commissioner

                                                                                                                        Kapurthala

Hon'ble Revenue Minister

Hon'ble Minister-In-Charge
Shri. Gurpreet Singh Kangar

 


 

Special Chief Secretary, Department of Revenue, Rehabilitation and Disaster Mangement
Shri. Karan Bir Singh Sidhu, IAS

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