M.R. No.16/1992-93

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

M.R. No. 16 of 1992-93

Banarsi Dass Sharma son of Shri Amar Nath partner of M/s Raj Saw Mills, College Road, Pathankot, District Gurdaspur.

…Petitioner

Versus

1.Chief Sales Commissioner, Gurdaspur.

2.Sales Commissioner, Pathankot

3.M/s Raj Saw Mills, College Road, Pathankot through its partner Sh. Vishnu Dutt s/o Shri Amar Nath.

4.Lekh Raj s/o Sh. Amar Nath resident of near PWD Rest House Mission Road, Pathankot District Gurdaspur.

5.Tehsildar Mahal-cum-Sales, Pathankot.

…Respondents

ORDER

1. Sh. Banarsi Dass claiming to be partner of M/s Raj Saw Mills, College Road, Pathankot Road, Gurdaspur has filed this petition u/s 33 of the Displaced Persons (C&R) Act, 1954 against the order dated 25.11.1992 passed by Chief Sales Commissioner, Gurdaspur whereby he dismissed the revision petition of the partners against the ex-parte order dated 30.10.90 passed by the Sales  Commissioner, Pathankot whereby the land measuring 4 Kanals 1 Marla situated in Chak Sarai, Pathankot in the name of Vishnu Dutt, respondent was transferred.

2.As per the allegations made by the petitioner, M/s Raj Saw Mills is a firm of three partners namely Banarsi Dass Sharma,Vishnu Dutt Sharma and Lekh Raj sons of Amar Nath. The Urban Agricultural Land measuring 34 kanals comprised in khasra No. 444/36, 55, 56 situated in the revenue estate of Chak Sarai,  Pathankot was evacuee property. Out of the said land Raj Saw Mills took 4K-1M of land comprised in khasra No. 444/36 on rent from M/s Pathankot Bajri & Stone Company, Pathankot and established a saw mill in the year 1960 believing that M/s Pathankot Bajri & Stone Company Pathankot was the owner of the land through in fact it was an evacuee property. The partners of the firms M/s Raj Saw Mills discovered that the property in their possession was evacuee property, and the firm staked its claim for its transfer with the Rehabilitation Department on the basis of its possession. The firm M/s Pathankot Bajri & Stone Company also staked its claim on the said land. The matter ultimately went to the court of Financial Commissioner Revenue, Punjab who exercising the powers of Central Govt. u/s 33 of the Displaced Persons (C&R) Act, 1954, came to the conclusion while passing his order dated 24.7.75 that the Pathankot Bajri & Stone Company was an unauthorised occupant and remanded the case for fresh decision. The learned Financial Commissioner also ruled that the land in dispute was in possession of the firm M/s Raj Saw Mills, but it could by no means be transferred in the name of Vishnu Dutt who claimed to be a partner and Manager of the firm. Aggrieved by the said order of Financial Commissioner the firm M/s Raj Saw Mills filed a Writ Petition No. 7416/75 through its partner and Manager Vishnu Dutt Sharma but the same was dismissed as withdrawn by order dated 2.3.83.

3.In the post remand proceedings, Sh. Vishnu Dutt respondent No. 1 in collusion with the Sales Commissioner obtained an ex-parte order dated 30.10.90 thereby transferring the land in his exclusive name, styling himself as proprietor of firm M/s Raj Saw Mills. In compliance with the impugned order dated 30.10.90 of the Sales Commissioner, Tehsildar Mahal-cum-Sales issued conveyance deed in respect of land in dispute in the name of Vishnu Dutt respondent as proprietor of  M/s Raj Saw Mills instead of in the name of firm M/s Raj Saw Mills through the partners.  This conveyance deed excluded Banarsi Dass petitioner and Lekh Raj respondent No.4.

4.When the petitioner came to know regarding the impugned order and the conveyance deed, be moved an application to Tehsildar Mahal-cum-Sales, Pathankot on 26.3.92 praying for cancellation of allotment/conveyance deed in the name of Vishnu Dutt respondent as proprietor of M/s Raj Saw Mills on the ground that the Vishnu Dutt respondent was not the proprietor of the firm but merely one of its partner.The Tehsildar Sales by virtue of his note dated 27.3.92 recommended to the Sales Commissioner for permission to substitute the name of Raj Saw Mills, but the Sales Commissioner vide his order dated 20.7.92 declined permission by recording that the application was time bared and there was no need to review as Banarsi Dass petitioner had never come in the picture till the decision of the case.

5.The petitioner filed a revision petition before the Chief Sales Commissioner for setting aside the order dated 30.10.90 of Sales Commissioner as also the conveyance deed dated 7.12.90.But this revision petition was dismissed by the Chief Sales Commissioner vide impugned order dated 25.11.92 which forms the subject-matter of the present revision petition.

On a notice of revision petition having been given, the respondent No.3 & 4 put in their appearance through their counsel.  Written arguments were also filed.

6.I have carefully examined the records and have heard the arguments of Learned counsels of both parties.

At the outset the Ld. Counsel for the respondent questioned the jurisdiction of this court to entertain and decide this revision petition under Section 33 of the Displaced Persons (C&R) Act, 1954. According to him with the enactment of the Punjab Package Deal Properties (Disposal) Act, 1976, the matter was dealt with by the authorities under the said Act and thus the revision petition under the provisions of section 33 of Displaced Persons (C&R) Act, 1954 is misconceived and not maintainable.

On the other hand the learned counsel for the petitioner refuted these arguments by the submitting that there is not impediment in the way of this court to interfere in exercise of the residuary powers of the Central Govt. vested by virtue of the provisions of the Section 33 of the Displaced Persons (C&R) Act, 1954.

7.After giving my thoughtful consideration to the arguments addressed on both sides, I am of the opinion that the arguments raised by the Learned counsel for the respondent are devoid of any force.  It is noticed that the revision petition was filed by Vishnu Dutt Sharma as partner of M/s Raj Saw Mills and M/s Pathankot Bajri & Stone Company, u/s 33 of the 1954 Act before Sh. Hardev Singh China, the then Financial Commissioner (Taxation), Punjab with the delegated powers of Central Govt. u/s 33 of the Act, unfortunately for him the proceedings culminated in the order dated 14.7.1975, by the Financial Commissioner (Taxation), the operative part of which is as under :-

   "After hearing the learned counsel for  the parties and going through the relevant record, I feel that the entire case requires to be decided in de-novo proceedings, after considering the allegations and counter allegations of the parties.  So far as the definition of property is concerned, it ordinarily includes sites as well.  But since evacuee sites have separately been mentioned in the instructions, it appears that intention of the Govt. was somewhat different in respect of the sites which had been encroached upon by the occupants of adjoining properties.  In the present case there is no question of encroachment by anybody as the parties are alleged to have established industrial concern on the land which was previously on lease with the Pathankot Bajri and Stone Company, Pathankot.  As the lease had expired before the Partition of the country, whosoever entered the land whether by consent of the Bajri and Stone Company or  otherwise was an unauthorised occupant.  None of the parties have got their possession regularised before 1963 as required under the instructions issued by the Govt. of India vide No. 14(17) Comp-& Prop/61 dated 7^th January, 1963, they are not entitled to the transfer of sites/properties in their possession under the rules 22-25 or 26.  The Industrial concern established on evacuee sites could get those sites transferred, had they got their possession regularised before 1963.  Besides, the site being in possession of the firm, it could not by any means, be transferred in the name of Vishnu Dutt who claims to be the partner and Manager of the Firm.  The transfer in his name had rightly been set aside.  Since, however, the State Govt. in the Rehabilitation, have also issued instructions for the transfer of properties to the occupants, it could be better that the claim and counter claims of the parties in both the cases are decided afresh, under the recent instructions issued by the State Government in the Rehabilitation Department and area sold to the occupant which is actually under the use and occupation of the Firms or other establishments,  at market rates.  The balance if any be disposed of according to rules and instructions.  Petitions are decided accordingly.  The case of other occupants or firms  who came into possession of the land as lessees/tenants of Pathankot Bajri and Stone Company who are alleged to have been transferred certain sites also  be looked into the re-decided as per observations above."

8.Against this order a Civil Writ Petition No. 7416/75 was filed in the Hon'ble Punjab & Haryana High Court by M/s. Raj Saw Mills through its partner-cum-Manager Vishnu Dutt Sharma which was dismissed as withdrawn vide order dated 2.3.1983.  In the result the parties were relegated to the position of de novo proceedings as directed in the order dated  14.7.75 of Sh. H.S.Chhina.  Pursuantly the Court of Sub Divisional Officer (Civil)-cum-the Settlement Commissioner, Pathankot passed the order dated 30.10.90 as Sales Commissioner, Pathankot directing the petitioner M/s. Raj Saw Mills through Vishnu Dutt Sharma to deposit the balance amount of Rs. 26860/-(34960-8100) within one month.  In execution of this order of the Sales Commissioner, a conveyance deed was issued on 7.12.90, in the name of Vishnu Dutt, Proprietor Raj Saw Mills.  The order dated 30.10.90 of the Sales Commissioner Pathankot was challenged in the revision (by Sh. Banarsi Dass Sharma here-in-petitioner) before the court of Chief Sales Commissioner.  In this revision petition the order of Sales Commissioner followed by conveyance deed in the name of Vishnu Dutt Sharma respondent were assailed.  While dismissing the revision petition the Chief Sales Commissioner held that : "It was evident that Vishnu Dutt Sharma was entitled for transfer of land and Settlement Commissioner had rightly concluded that Vishnu Dutt Sharma is the owner in possession of the land in dispute measuring 4 Kanal 1 Marla wherein M/s Raj Saw Mills existed since long and non-else than Vishnu Dutt had any concern with this land.

9. It appears that the concerned courts were in conceptual confusion regarding the provisions of law under which they were called upon to decide the matter. In the heading of the order dated 30.10.90 the name of the court is: "Sub-Divisional Officer (Civil) - cum-Settlement Commissioner, Pathankot" but the order was signed as "Sales Commissioner, Pathankot". Again the order dated 25.11.92 was passed as Chief Sales Commissioner, Gurdaspur. In the heading it was described as the "revision petition". No provisions of law were mentioned in the body of this order under which the review petition was filed. In the concluding part of this order the learned Chief Sales Commissioner observed as follows :-

            "Accordingly, the appeal is dismissed being without any force".

            It is further noticed that the revision petition before Sh. H.S. Chhina, the then Financial Commissioner was filed u/s 33 of the Displaced Persons (C&R) Act, 1954 against the order dated 18-5-72 of the Chief Settlement Commissioner, Punjab, Jalandhar. Sh. Chhina, Financial Commissioner (Appeals) passed the order dated 14-7-75 which resulted in the reversion of the proceedings followed by the impugned orders dated 30-10-90 and 25-11-92 the sequel. In the present case we are dealing only with the validity of orders leading to the issuance of a conveyance deed in favour of Vishnu Dutt alone to the exclusion of Banarsi Dass who claims himself to be one of the partner of the firm styled as M/s Raj Saw Mills, alongwith other partners, namely, Vishnu Dutt and Lekh Raj. The mere fact that the courts below lost the track and fumbled for their statutory designations in rendering the impugned orders cannot be taken as a ground for fettering the gamut of plenary revisional jurisdiction of this court enjoying delegated residuary powers of Central Govt. under section 33 of the Act, 1954.  In my opinion the technicalities of nomenclature of the courts should not stand in the way of substantial justice.  Going by the terms and tenor of remand order dated 14.7.75 passed by the Ld. Financial Commissioner, it is evident that the courts below passed the orders under 1954 Act disguising their statutory designation  by misnomenclature.

10. In this connection a reference may be made to a judgment of Apex Court in Union of India and another Vs. Avtar Singh and another, 1984 PLJ 479 wherein it was observed that the powers u/s 33 of the Displaced Persons (C&R) Act, 1954 is not hedged by any concept of limitation and such power of wide plenitude had to be conferred on the Central Govt. to set right any illegal, unfair, unjust or plainly untenable order because proceedings under the Act were not adversary in form and character.  The Parliament conferred a very wide power of revision on the Central Govt. to reopen any proceedings for order under Act.

            It follows that the arguments of the learned counsel for the respondents regarding the maintainability of this revision petition are fallacious and not tenable.

11.The learned counsel for respondent also challenged the maintainability of this revision petition. In view of the provisions of the section 69 of the Partnership Act.He further argued that the question regarding the existence or otherwise of partnership between the parties could be decided by the civil courts and not in the revisional proceedings. In my opinion these arguments do no hold good. The provisions of section 69 are not at all applicable to the present controversy wherein Shri Banarsi Dass petitioner claiming to the one of the partners of M/s Raj Saw Mills has challenged of the orders of the lower courts whereby land in dispute were transferred in the sole name of Vishnu Dutt, we also a partner of the firm. Rather this matter falls within the exclusive jurisdiction of the court and the jurisdiction of the civil court is barred. Moreover, it is noticed that Banarsi Dass had filed a civil suit 145/92 in the court of Sh. Sarabjit Singh Panesar, Civil Judge, Junior Division, Pathankot against his partner Vishnu Dutt and Lekh Raj for dissolution of partnership of firm styled as M/s. Raj Saw Mills, Pathankot.This civil suit was decided vide judgement dated 5.12.98.A copy of that judgement is placed on records of this court.Vide this judgement a preliminary decree has been passed for dissolution of the partnership and rendition of accounts of the firm styled as M/s Raj Saw Mills.In the wake of this judgement there is no merit in the arguments that the controversy is to be decided by the Civil Court and not in this revision petition.

12.  It takes me to the legality or otherwise of the impugned orders and the conveyance deed, on merits.  In this connection we may hasten to advert to the order dated 14.7.75 of Sh. H.S.Chhina the then Financial Commissioner whereby the matter was remanded for decision in de novo proceedings.  At the cost of repetition it may be stated that in the said order it was specifically remarked that the site being in possession of the firm it could not by any means be transferred in the name of Vishnu Dutt who claimed to be the partner and manager of the firm. In the writ petition filed against this order by M/s Raj Saw Mills through its partner and Manager, Vishnu Dutt Sharma it was averred in the first para thereof that "the M/s Raj Saw Mills is a Registered firm and the writ petition is filed through its partner and Manager Vishnu Dutt.”  In para 2 of the writ petition it was contended that the property in dispute is in possession of the petitioner Mill (firm) since October, 1959.  The contents of the writ petition were sworn to be true through an affidavit accompanying the writ petition filed by Sh. Vishnu Dutt.

13 The Learned counsel for the respondent argued that the property cannot be transferred in the name of firm as it is not a legal entity.  This argument of the Learned Counsel was not held in condoning the mischief committed by Sh. Vishnu Dutt Sharma in obtaining the conveyance deed dated 7.12.1990 in his favour on the basis of the orders of Sales Commissioner confirmed by the Chief Settlement Commissioner vide his order dated 25.11.1992.  In my opinion both the courts below committed grave irregularity bordering on perversity in holding that Vishnu Dutt alone was entitled to the transfer of land in dispute and not firm M/s Raj Saw Mills which he is only one of the partners.  The mere fact that a firm is a compendium of partners and is not a legal entity does not mean that allotment of land cannot be made in the name of firm to the benefit of all the partners when admittedly the firm has been in continuos possession of the disputed property since 1959.  In this connection a reference may be made to enabling provisions of order 30 rule (1) & (2) of the Code of Civil procedure which permit several person who are doing business as partners to sue or be sued in the name of firm.  A suit by or in the name of a firm is thus really a suit by or in the name of all the partners.  (C.A.I.P. 1969 Gujrat 178). Thus there is no merit in the argument that since a firm is not a legal entity, the transfer of land could not be made in the name of the firm.

                        It is evident that Sh. Vishnu Dutt betrayed the trust of his real brothers in obtaining conveyance deed in his favour at their back.  The order dated 30.11.1990 was obtained ex-parte without impleading either the firm as such or its partners.

14. The judgment dated 5.12.1998 passed by the Court of Sh. Sarabjit Pal Singh Paneswar in Civil Suit No. 145/92 instituted on 2.6.92 also throws a flood of light on the genuineness of the claim of Banarsi Dass.  In that suit Vishnu Dutt who appeared D.W. 2 had admitted that on the death of his father on 7.12.84 was adduced in evidence in that case a exhibit P-1.  Vishnu Dutt had further admitted that Banarsi Dass was having 1/3^rd share in the partnership concern.  The Ld. Court had held that the partnership is still in existence and each of the partner was entitled to 1/3^rd share of the assets and liabilities of the firm by rendition of accounts, which evidently include the land in dispute.  Accordingly, a preliminary decree was passed for rendition of accounts for ascertaining and apportioning the assets and liabilities of the firm to the extent of 1/3^rd share each.  The cut of date was taken as 30.5.1992.

15. Undoubtedly the firm is running its business on the disputed land measuring 4 kanals 1 marlas.  The aforesaid judgment of the Civil Court has the effect of reinforcing and strengthening the claim of the petitioner for transfer of land in favour of the firm through all the partners.  I have no doubt in my mind that courts below went out of their way in missing the right track by transferring the land to Vishnu Dutt Sharma alone when he had throughout been pursuing the matter as a partner of the firm styled as M/s Raj Saw Mills.  Both the impugned orders are vitiated by arbitrariness and perversity.  It is not possible to subscribe to the approach the Ld. Lower Courts in excluding the other partners of the firm in favour of Vishnu Dutt alone.   A perusal of the records leads to an inescapable conclusion that since the land was in occupation of the firm, Vishnu Dutt alone could not grab the entire land by misrepresenting himself as sole proprietor of the firm.  The courts below did not apply their mind in allowing the claim of Vishnu Dutt while passing the impugned orders and issuing the conveyance deed in his favour.   In view of this there is ample merit in this revision petition and same is accepted thereby setting aside the impugned orders.   The concerned authority is directed to issue the conveyance deed in favour of M/s Raj Saw Mills through its partners viz Banarsi Dass Sharma, Vishnu Dutt Sharma and Lekh Raj in equal shares.      

            Announced.

Chandigarh, dated                                                        (Shyama Mann)

the 4^th Jan., 2000.                                                       Financial Commissioner Revenue,

                                                                                   Punjab.