M.R. No. 28/1996-97

IN THE COURT OF MRS. SHYAMA MANN.IAS FINANCIAL COMMISSIONER REVENUE. PUNJAB, CHANDIGARH.

M.R.No.28 of 1996-97

1.Kuldip Singh,

2.Inderjit Singh,

3.Narinder Singh,

sons of Gurbachan Singh resident of village Subhanpur Distt. Kapurthala.

. . . . . . Petitioners.

Versus

1.The State of Punjab through S.D.O.(Drainage), Kapurthala.

2.Deputy Commissioner-cum-Chief Settlement Commissioner, Kapurthala.

. . . . . . Contesting Respondents.

3.Shri Teja Singh son of Deva Singh through Chanchal Singh son of Teja Singh legal heir through General Attorney Mohan Sirlgh of village Surakhpur.

4.Ishwar Dass deceased son of Hira Nand through legal heirs Balwant Lal etc. through General Attorney Wazir Singh,

5.Balwant Lal son of Ishwar Dass of Kapurthala.

6.Jagdish Lal deceased through legal heir Harbans Bhagat widow both through Wazir Singh, General Attorney, Kapurthala.

. . . . . Proforma Respondents.

Present :           Sh. Vikas Singh, Advocate for Sh. Jagdev Singh, Advocate, counsel for the petitioners.

Sh. Balbir Singh, Senior State Counsel for the State of Punjab.

ORDER

1.This revision petition u/s 33 of the Displaced Person (C & R) Act, 1954 is directed against tile order dated 6.9.1996 passed by Sh.S.S.Rajput, tile Chief Settlement Commissioner, Kapurthala whereby the allotment of land measuring 15K- 7M being part of khasra No.45 situated in the revenue Estate of Seenpur, District Kapurthala was cancelled.

  The facts of the case culminating in the impugned order are that the Department of Irrigation, Punjab acquired land in five -revenue estates including the revenue estates of Seenpur and Kapurthala on 26.7.1952 for the construction of al1 irrigation canal known as Kapurthala Feeder. The land belonged partly to private owners and partly to Central Government. A part of the said land, measuring 106K-9M comprised in khasra Nos. 44, 45 and 46 & 53, situated in Seenpur was the ownership of the Central Government. The Mutation of this land belonging to the Central Govt. should have been sanctioned in favour of Punjab Government Department of Irrigation, in the year 1952 itself or shortly thereafter But this was not done, Mutation No.1170 of Seenpur in respect of the Central Government land was ultimately entered in favour of Punjab Govt. and sanctioned on 5.3.91. Thus the land comprised in khasra No.44, 45, 46 & 53 of village Seenpur stood shown as ownership of the Punjab Govt. even in the revenue record as on 5.3.91. The Kapurthala Feeder did not become functional and was abandoned. In the meantime the Drainage Wing of the Irrigation Department excavated Wadala Drain in the year 1962-63 to drain out the rain water of more than 25 villages falling in Kapurthala and Jalandhar districts. A  part of the land acquired for the Kapurthala Feeder was utilized in the Wadala Drain, this included khasra Nos.44,45 and 46. The remaining land required for aligning the Wadala drain, which belonged to the private owners was duly acquired for the purpose.

2.Some of the private land-owners whose land had been acquired in 1952 for construction of the Kapurthala Feeder requested the Government to release their unutilized lands in their favour. In response to a letter from Deputy Commissioner, Kapurthala, the Punjab Govt. in the Revenue Department vide its Memo.No.24/9/91-Land Revenue-1/9039-9040, dated 30.5.91 conveyed its approval to the Commissioner, Jalandhar Division and Deputy Commissioner, Kapurthala for release of land acquired for Kapurthala Bein Canal System. This letter was of a general nature and did not mention any particular khasra numbers. Detailed exercise in connection with such release was further required to be undertaken by the Administrative Department concerned, namely, the Irrigation Department. Since the land contained in khasra No.44, 45 and 46 had already been utilized for construction of Wadala Drain way back in 1962-63, in the revenue record these khasra numbers continued to be reflected as belonging to the Provincial Government (in the Irrigation Department).

3. Between 259.92 and    30.9.92 Tehsildar-cum-Managing Officer, Kapurthala made allotment of 15K- 7M out of Khasra No.45 through five different orders in the name of Teja Singh, Ishwar Dass, Balwant Lal and Jagdish Lal respondents No.3 to 6 represented by Mohan Singh, Kanungo, general attorney in case of alleged heir of Teja Singh and Wazir Singh common general attorney of the remaining three parties as per details below:-

1.         Teja Singh son of Deva Singh    8K-10M          25.9.92

2.         Teja Singh son of Deva Singh    0K-17M          30.9.92

3.         IsvJar Dass son of Hira Nand  2K-0M            30.9.92

4.         Balwant Lal son of Ishar Dass   2K-0M            30.9.92

5          Jagdish Lal son of Ishar Dass    2K-OM           30.9.92

On the heels of these allotments followed five corresponding registered sale deeds, which were executed by the alleged General Attorney of the legal heirs of the allottees in favour of Inderjit Singh, Kuldeep Singh, Narinder Singh (petitioners herein) sons of Gurbachan Singh:-

S.No.               Land                Date of Sale Deed                 Amount.

1.                     8K-10M          29.9.92                                    Rs.1,00,000/-

2.                     0K-17M          9.10.92                                    Rs. 12,500/-

3.                     2K-0M            9.10.92                                    Rs. 25,000/-

4.                     2K-0M            9.10.92                                    Rs. 25,000/-

5.                     2K-0M            9.10.92                                    Rs.25,000/-

4. When these illegal transactions came to light, a reference was moved before the Deputy Commissioner-cum-Chief Settlement Commissioner, Kapurthala, for cancellation of these allotments. This reference was accepted by Sh. Satish Chandra, the then Deputy Commissioner-cum-Chief Settlement Commissioner, Kapurthala vide his order dated 16.11.1994 resulting in cancellation of allotments. While passing the said order the Ld. Chief Settlement Commissioner highlighted the various irregularities committed by the Tehsildar. He observed that the land was recorded in the ownership of the Punjab Government and the approval of the Govt. was not obtained before making the allotments although the property was situated within half mile of the Municipal limits, which approval was mandatory as per instructions of the Govt. dated 12.8.70. He also pointed out that certain land had been allotted wrongly classifying it as 'Barani', in the Parcha allotment when it was recorded as 'Ghair Mumkin' as per revenue record. It was observed by the Chief Settlement Commissioner that the allotments were made immediately after receipt of applications from the so called claimants. No verification was done by the rehabilitation staff regarding the pending claims made through the Powers of Attorney. Mohan Singh attorney of legal heirs of Teja Singh was a Kanungo in the revenue department. Goshwara allotment of Teja Singh did not indicate that a plot or two remained to be allotted to him. In remaining three cases even the Goshwaras allotment were not available. The land allotted was sold immediately thereafter without the permission of the competent authority in violation of Rule 102 of the Displaced Persons (C & R) Rules. It was further pointed out in the order of tile Chief Settlement Commissioner that due notices had been given to the allottees and the vendees and the allottees had not appeared and only the vendees were contesting the case.

5.These orders were challenged by the present petitioners before Sh.M.S. Chahal. the then Financial Commissioner Revenue who set aside the order of tile Chief Settlement Commissioner on 4.4.95 on the ground that it required to be determined if on de-notification the land reverted to the Central Government or became part of the properties falling in the "Package Deal" entered into by the Punjab Government with the Central Government. He observed that this question had not been touched upon by the Chief Settlement Commissioner, on which the rights, if any, of the petitioners hinged. The case was accordingly remanded by him to the Chief Settlement Commissioner, Kapurthala for deeper examination after hearing the parties.

6. After rel11and a fresh order was passed by Sh.S.S. Rajput, the then Deputy Commissioner-cum-Chief Settlement Commissioner, Kapurthala, who held that the area was neither available for allotment nor could it be allotted as per. Government Policy/Rules. Accordingly, he accepted the reference and ordered the cancellation of the allotment once again vide his order dated 6.9.1996. The said order of Sh.S.S. Rajput forms the subject matter of the present revision petition. which was instituted in this court on 17.6.1997.

7. At the threshold of the proceedings the counsel for the petitioners made an application dated 21.5.1998 for dispensing with the service of the allottees- vendors on the ground that having sold the land to the petitioners they were left with no interest in the dispute and were just performa respondents. However it was felt that the allot tees deserved to be heard before passing the final order. Accordingly, they were directed to be summoned at Govt. expenses. Since their addresses had not been given, they were directed to be served through 'munadi' on the disputed land and also through Shri Jit Singh Dhillon, their original counsel. They were also sent registered letters at the addresses given in the copy of Power of Attorney placed on record, but to no avail. As per report of the concerned Tehsildar regarding Munadi, the allottees/respondents were served for 22.2.2000 but they did not appear despite service. Therefore they were directed to be proceeded against ex-parte.

8.  The Ld. Counsel for the petitioners-vendees argued the case primarily on two points. Firstly, that the land was available for allotment as it had been de-notified, and secondly, that they were bonafide vendees and therefore entitled to claim protection under the provisions of Section 41 of the Transfer of Property Act. There is virtually no comment available either in their petition or in their verbal submissions regarding the genuineness of the claim of the allot tees. In their petition under Section 33, which is the subject matter of the present discussion the petitioners have admitted that khasra Nos. 44, 45, 46 and 53 of village Seenpur were acquired along with other land for construction of the Feeder Canal. The sole basis of their claim is that khasra No.45 was de-notified by the Punjab Government on 30.5.1991 and had, therefore, reverted to the Central Government and was available for allotment. They have denied that any drain was constructed over the land in dispute and have also stated that this land was under cultivation and was not utilized for the construction of Wadala Drain. However. in their petition they have admitted that since this land was acquired for construction of the canal, therefore, in revenue record it was shown as 'nehar'(Canal). They maintain that the rain water was diverted through some other drain and claim that the land was de-notified because it was of no use to the Irrigation Department. They even claim that after de-notification the possession of the Stale Government became unauthorized.

9. I have carefully examined the record and have heard the arguments of Ld. Counsel for the petitioners. I was assisted by the Senior State Counsel Sh.Balbir Singh. In my opinion the arguments of the petitioners both in relation to land being available for allotment and the petitioners being bonafide vendees are devoid of merit. The petitioners have admitted themselves that the land comprised in khasra No.45, which is the subject matter of the present dispute, was duly acquired on 26.7.1952. Their sole claim regarding land being available for allotment hinges around its so called de-notification by the Punjab Government on 30.5.91. It has been clearly brought out in the order dated 6.9.96 of the Chief Settlement Commissioner, who had also heard Shri Gurdial Singh, S.D.O. Drainage Department (and whose written averments on behalf of the Department are on record) that though the construction of Kapurthala Feeder Canal was abandoned, the Drainage Department constructed the Wadala Drain in the year 1962-63 on apart of the acquired land including khasra No.45, and to give it proper alignment, the Drainage Deptt. also acquired some other area. As a result, the possession of Khasra No.45 remained with the Punjab Government and the de-notification of the land acquired for the Feeder Canal never took place. It has also been pertinently pointed out in the order of the Chief Settlement Commissioner that since this area stood already acquired by the State Govt. in 1952, there was no question of its being included in the "Package Deal" dated 1961 between the Central Govt. and the Punjab Govt. nor of its becoming Central Govt. Property automatically in pursuance of letter of the Revenue Department dated 30.5.91. Rather, formal transfer from Punjab Govt. to Central Govt. never took place after 30.5.91. As brought out in para 2 of this order tile alleged de-notification dated 30.5.1991 on which heavy reliance has been placed by the petitioners was no statutory de-notification at all. The relevant government file shows that the so called de-notification dated 30.5.1991, was only an internal letter issued by the Revenue Department to the address of the Commissioner Jalandhar with copies endorsed to the Deputy Commissioner, Kapurthala and XEN Bist Doab Jalandhar (Canals) Irrigation Department conveying the approval of the Revenue Department to the release of certain acquired land to the original owners or right-holders. No formal de-notification took place through this letter. Rather it was a permission given in principle to the proposed release. Details of such release were, as- per set procedure, to be worked out separately by the Irrigation Deptt. which was the owner of the land. It also needs to be repeated here that mere permission by Revenue Department to the release of certain acquired area does not imply automatic de-notification. Since land is acquired by each Administrative Department through its own independent statutory notifications, under the relevant provisions of the Land Acquisition Act, a notification releasing the said land was also required to be issued formally by the Irrigation Department.  In this case the concerned department v vas the Irrigation Department under which both the Irrigation Wing dealing with the Kapurthala Feeder and the Drainage Wing dealing with the Wadala drain functioned.  It is, therefore, quite understandable why no de-notification ever took place in respect of khasra Nos.44, 45, 46 even after the issue of letter dated 30.5.1991. This v vas because the Wadala Drain was constructed partly by utilizing a part of the abandoned Kapurthala Feeder and partly by issuing fresh notification in 1962-63 itself. In his detailed reply before the Chief Settlement Commissioner, the S.D.O.(Drainage) also placed these notifications on record in support of the averments of his Department.

  In view of this position there is no doubt left that the land was not available for allotment at all and the disputed khasra No.45 had been utilised by the Drainage Department for construction of Wadala Drain in 1962-63 alongwith some more land acquired for the purpose. The Tehsildar, Kapurthala was totally unjustified in allotting this land as per details contained in para 3 above. As already discussed the communication dated 30.5.1991 was no de-notification at all; but merely a permission to the Irrigation Department to proceed as per their proposal which proposal did not take practical shape as far as the disputed land is concerned because of its strategic location. Had the relevant Govt. records been placed before my learned predecessor by the then State Counsel there would have been no occasion for the remand of the case on this technical point.

10. The second main contention of the petitioners is that they had purchased the land after making proper inquiries and are bonafide vendees entitled to protection under Section 41 of the transfer of Property Act. They have argued that Section 24 of the Displaced Persons(C & R) Act, 1954, could not be invoked for cancellation of tile allotment as the allotment had not been obtained by fraud, misrepresentation or concealment of any material fact.

  In my opinion this argument is also devoid of any force. It appears that the prospective vendees (sons of Gurbachan Singh)-petitioners herein had developed a well-planned strategy to usurp this strategic piece of land. Sometime before the allotment to respondents No.3 to 6 (the proforma respondents), the petitioners got the khasra girdawari entries manipulated in their favour so as to show themselves to be in possession of the entire khasra No45, and in order to strengthen their claim by camouflaging their mischief they obtained an order of status quo from the Civil court in Civil Suit No.99 of 1990-91. The said suit was eventually dismissed in favour of the Punjab Government on 16.12.1992.

  The  ingeniously  misleading role engineered by Gurbachan Singh father of the petitioners in securing the allotment in favour of the respondents No.3 to 6 is further manifested by the fact that he made a statement before the Tehsildar that despite the existence of the order of status quo from the civil Court he had no objection to the allotment of the land to Pritam Singh grandson of Teja Singh since his ( Gurbachan Singh’s) sons had executed an agreement for the purchase of this land with him and stay order of the court was not applicable in such a situation. Thus Gurbachan Singh, father of the petitioners masterminded the entire transaction of allotment with the avowed object of regularizing the possession of his sons by 'purchasing' the land from the allottees. The record shows that the alleged allottees applied for possession on 25.9.1992 and 28.9.1992; the Field Kanungo delivered the so called "Malkana Possession", which term commands no legal connotation in such like transactions and rather highlights the connivance of the concerned Govt. functionaries in ratifying the bogus transaction of allotment. The records further reveal that Teja Singh respondent (through his attorney) had made an application for allotment of 8K- 10M of land on 20.9.1992 and the allotment was made on 25.9.1992. Again the same Teja Singh, Ishar Dass, Balwant Lal and Jagdish Lal, respondents No.3 to 6 made request for allotment of land on 29.9.1992 through their attorney and the allotment was made on 30.9.1992. Thus, it is patent on the face of record that the Tehsildar-cum-Managing Officer and his subordinate staff acted in undue haste with servile submission, and without the slightest effort to investigate and verify the genuineness of the claim and entitlement of the applicants. The applications for allotment were processed with uncommon promptitude. All this is clearly suggestive of the conspiracy of the Managing Officer and his staff with the "allottees" and the father of vendees. This inference is further fortified by the fact that the land, which was allotted on 25.9.1992 and 30.9.1992, was immediately sold to the petitioners on 29.9.1992 and 9.10.1992. The khasra girdawari entries regarding this land were manipulated in favour of vendees in advance on 7.5.1992 followed by transactions of allotment and sale. The sequence of events excites an inescapable impression of dramatic setting in which tile concerned Managing Officer played a pivotal role. He went out of his way to jeopardize the State interest by making bogus allotment of land which had already been utilized for construction of Wadala Drain.

Another significant feature of this case is that 8Ks-10Ms of land allotted to Teja Singh was recorded as ‘Ghair Mumkin’ in the jamabandi. But in the proposal for allotment it was wrongly described as ‘Barani’. Thus it is not possible to escape tile conclusion tl1at tl1e classification of the land was illegally transformed from "Ghair Mumkin" to "Barani" with .the perfidious design to facilitate its illegal allotment by the concerned functionaries. Another 17 marlas of land allotted to Teja Singh was classified as "Ghair Mumkin" in the 'parchi allotment in contrast to its classification as 'Barani' at the time of allotment. The remaining allotments are also afflicted by the similar infirmities.

   In view of the facts narrated above it is quite evident that the petitioners cannot claim benefit under Section 41 of the Transfer of the Property Act. I am of the firm view that they cannot be said to be bonafide purchasers without notice. It is evident on the face of the record that they were fully aware of the land having already been utilised for the construction of the Wadala Drain. The record shows that the case for allotment was being pursued by Mohan Singh and Wazir Chand as General Attorney of the legal representatives of the allot tees. At the time of its allotment the land was recorded in the ownership of Punjab Govt. and was not reflected as evacuee property. The vendees were fully aware of the legal status of the land. Even so they had initiated negotiations for the purchase of the land before even its allotment. Sh.Gurbachan Singh father of the petitioners-vendees appeared on the scene by obtaining orders of status quo in favour of his sons (vendees) in respect of possession of suit land in a civil suit instituted on 29.1.1991 in the Court of Senior Sub Judge, Kapurthala. The said suit was eventually dismissed in favour of Punjab Govt on 16.12.1992. The girdawaris were corrected in the name of the Drainage Department by the Collector-cum-S.D.O(Civil), Kapurthala, vide his order dated 7.7.1993. The land never became tile property of the Central Govt. and was illegally allotted by the Tehsildar-cum-rv1anaging Officer though it was not available for allotment as evacuee property. The illegal vendees had blocked the Wadala Drain in Khasra No 45 by throwing earth in it from the adjoining fields and the banks of the feeder/drain in 1991 Due to this illegal blockage by vendees in the Wadala Drain in Khasra No45, the flow of the water in 27 kilometer long drain was diverted and in the floods of 1993 a number of villages and Kapurthala Model Town were inundated. Eventually the unauthorized possession of the vendees was evicted under the Public premises Act and the possession was taken by the Drainage Department on 11.2.1995 through Revenue authorities vide Rapat No.336 of 11.2.1995.

11. It is somewhat intriguing to note that in the aforesaid Civil Suit, Sh. Gurbachan Singh father of the vendees consented to the allotment of the land in favour of the prospective allot tees through Wazir Chand General Attorney of the legal representatives of the allot tees. The petitioner-vendees belonged to the same district (Kapurthala) and purchased the land when they were fully conscious of the fact that the land formed a part of the Wadala Drain and had been allotted illegally. As stated in para 2 of this order, one sale transaction took place within four days of the allotment and the remaining four sale transaction took place within 10 days of the allotment. It is quite evident that the vendees entered into transactions of sale through their father Gurbachan Singh with eyes and ears open, knowing fully well that the land was not available for allotment as shown from the revenue records of the relevant time. It follows that the vendees cannot claim the protection of Section 41 of the Transfer of the Property Act, 1882 in the face of the afore stated glaring facts and circumstances vitiating their transactions.

12.The factum regarding the vendees being the frontmen of the allottees and the allotments being bogus is confirmed by the fact that the allot tees did not evince any interest whatsoever at any stage of the proceedings pertaining to the land in dispute. In this court also, instead of insisting upon the presence of the allottees who are arrayed as respondents No.3 to 6, the petitioners made an application at the threshold of the proceedings on 21.5.1998 for dispensing with the service of the respondents on the plea that, having sold the land, they were left with no interest in the dispute and were just proforma respondents. Even so, this court took pains to effect their service but they did not appear and were proceeded against ex-parte. The dubious demeanour of the petitioners-vendees in pursuing the proceedings in the absence of the "allottees" respondent demonstratively shows that they did not want the “allottees” to be called to attend the proceedings so that their nefarious designs could remains undetected. There is nothing to show an the record that the petitioners vendees had made requisite enquiry to ascertain the nature of the land and the genuineness of the allotment. Rather, as the father of the petitioners actively participated in manipulating the bogus allotment, the petitioners cannot be heard to say that they are bonafide purchasers for consideration and without notice as envisioned by Section 41 of the Transfer of Property Act. It follows that they are not entitled to the protection of said provision of Section 41 of the transfer of Property Act, 1882, in defending their sale.

13.To conclude, Section 24 of the Displaced Persons (C & R) Act, 1954 enables the Chief Settlement Commissioner to examine the legality of the order of subordinate authority in exercise of his power of revision. In the present case it is noticed that Sh. Satish Chandra, Chief Settlement Commissioner had taken great pains to record a comprehensive and well-reasoned order dated 16.11.1994. To divert the attention from the various illegalities committed in the allotment, the petitioners tried to raise technical grounds against the said order and succeeded in getting the matter remanded from the then Financial Commissioner Revenue on 4.4.1995. Thereafter, Sh. S.S. Rajput, the then Chief Settlement Commissioner, Kapurthala reconsidered the matter and eventually adopted the concluding view of Sh. Satish Chandra, I am of the firm opinion that tile Chief Settlement Commissioner, Kapurthala, was amply justified in passing the impugned order dated 6.9.1996 thereby cancelling the bogus allotment made by the Tehsildar-cum-Managing Officer in favour of the allottees. It is not possible to discern any illegality or perversity in the impugned order to vitiate the same. In the result, I do not find any scope for interference and accordingly the petition is dismissed.

14.Deputy Commissioner, Kapurthala is advised to take action against the subordinate revenue functionaries who, conniving with the land-grabbers bartered away public property even at the peril of flooding the 25 villages for which the drain was constructed, and virtually attempting to drown the Kapurthala city itself. At the same time action also needs to be taken against the concerned Tehsildar who allotted this particular land under suspicious circumstances against public interest. Copy of this order be sent to Establishment Branch of the Revenue Department for this purpose.

            Announced.

Chandiqarh. dated

The 25^th April, 2000                                                           (Shyama Mann)

                                                                     Financial Commissioner Revenue,

                                                                                      Punjab.