M.R.98/Jal./96

In the court of Smt. Agya Rajinder Singh, IAS, Secretary to Govt. Punjab-cum-Chief Settlement Commissioner, Revenue & Rehabilitation Department, Punjab.

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Revision Petition No.98/Jal/96/

Puran Chand , Kapur Chand

sons of Karam Chand son of

Bhagat Ram, residents

H.No.13/9, Gandhi Camp,

Jalandhar.

... Petitioner.

Versus

1.         The Union of Ind1a,

2.         Deputy Commissioner-cum-Chief Settlement Commissioner

            Jalandhar .

3.         Smt. Shakuntla Bhalla daughter

            Sh. Bhisham Jaidke son of' late

            Sh. H.R. Jaidke through their

attorney Deepak Bhalla son of

Sh. Satya Pal Bhalla r/o H.No.183/1,

Shaheed Udham Singh Nagar ,

Jalandhar City.

4. The Govt. High School, Gandhi Nagar ,

Jalandhar Parents Teachers Association

through its alleged President....

...Respondents

Present:-           1.Sh.P.N. Aggarwal, Advocate, Counsel for the petitioners

2.Sh.G.S.Nagra, Advocate counsel for respondent No.3.

3.Sh.Dinesh Ghai Advocate, counsel for respondent No. 4.

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                                                                                                    ORDER

This case is being decided in pursuance of order dated 23-4-1996 of the Hon'ble FCR in M.R.No.19 of 1993-94 vide which be accepted the petition filed by Sarv Shri Puran Chand and Kapur Chand sons of Sh. Karam Chand son of Sh. Bhagat Ram under Section 33 of the D.P.(C&R) Act, 1954 and set-aside the order dated 29-10-1973 of the D.C.-Cum-Chief Settlement Commissioner Jalandhar under Section 24 of the Act ibid and remanded the case for decision afresh after giving proper opportunity to the petit1oners.

2. On commencement of proceedings in this Court, Smt. Shakuntla Bhalla and Sh. Bhisham Jaidke vide their application dated 6-8-1996 requested for being impleaded as parties on the ground that the property in question was composite property in which one Smt. Durga Rani wife of Subedar Major Harbans Rai had 119 share having purchased it through registered sale deed dated 1.5.1947. Smt. Durga Rani, who passed away on 27.4.1985, had executed a 'Will', dated 18.4.1985 in favour of the applicants and so they are her legal heir. Since the entire land has been allotted to the petitioners, their rights have been adversely affected and they are therefore necessary parties for the purpose of this case. Later on, Parent Teacher Association,(PTA) Government High School, Gandhi Nagar', Jalandhar made a similar request through its President vide application dated 3.12.1997 on the ground that it was on their complaint that the fraudulent allotment procured by petitioners was cancelled by the D,C. (Jalandhar)-cum-C.S.C. through his orders dated 29.10.1993. The applicants submitted oral and written arguments in support of their requests. After considering their applications and arguments, the applications were allowed vide order dated 31.3.1998. Aggrieved by this," order, petitioners filed a petition under Section 33 of' the D.P. (C&R) Act ibid before FCR who stayed further proceedings. The matter was decided by FCR on 3.8.1999, upholding the impugned order. The parties appeared in this Court on 5.8.99, the date fixed for hearing.

3. Briefly stating the facts of the case are that Sh. Karam Chand son of Sh. Bhagat Ram, predecessor-in-interest an application to the Rehabilitation of the petitioners made Department on 22.3.1974 for transfer of Urban Evacuee Agricultural land bearing Khasra No s. 672 to 675 and 707, Gandhi Camp, Jalandhar. Tehsildar Sales(Headquarters) -cum-M.O. vide his order dated 10.4.1978 rejected the application observing that status of Sh. Karam Chand prior to 1956 was 'Ghair Maurusi' and that name of the lessee under whom the applicant was cultivating as sub-lessee, was not recorded and therefore applicant could not be constructed as sub-lessee. He referred to 8 report dated 21.3.1978 of the Patwari to the effect that there is no lease file relating to these khasra numbers. Appeal against this order was accepted by the S.C. on 1.6.1978, who remanded the case with the direction that Tehsildar-cum-M.O. should locate authenticated copy of the instructions dated 1.10.1962 referred to by the applicant and proceed with the case regarding transfer of land to the applicant. A. S.O-cum-M.O. however, vide his order dated 29.1.1980, again rejected the application saying that onus to prove his case including production of instructions rests on the petitioner. Appeal against this order was accepted by the Settlement Commissioner on 1.7.1980, who remanded the case to ASO-cum-M.O. to decide the case on merits keeping in view an order of FCR dated 20-5-1989 admitting the authenticity of instructions. ASO dismissed the case vide his order dated 20.1.1981 saying that applicant had no right to claim as sub-lessee and that even instructions required the applicant to be in possession of the land since prior to 1.1.1956 in order to .be treated as sub-lessee. However, neither any instructions nor any order of FCR on the issue was placed on the file nor was produced by the petitioners. The appeal against this order was dismissed by the Settlement Commissioner on 10.2.1982 on the ground that continuous possession of the applicant, Karam Chand son of Bhagat Ram was not established as the revenue record repeatedly showed Karam Chand son of Birbal as cultivator. However, C.S.C. vide his order dated 8.9.1982 accepted the appeal, set aside the order of S. C. and remanded the case to the Tehsildar(Sales)-cum-M.O. to process the case as per Govt. policy. He observed that the entry mentioning Karam Chand son of Birbal instead of Karam Chand son of Bhagat Ram had been made by the Patwari due to some misunderstanding as pleaded by the petitioners, No action was taken on these orders of the C.S.C. till 5.10.1992 when the petitioners when the Tehsildar-cum-M.O. for decision. The Tehsildar vide his order dated 9.10.1992 held the applicants eligible for transfer of land comprised in Khasra No. 707 measuring 4K-12M. He directed that the price of land as assessed by Kanungo alongwith rent up-to-date be petitioners deposited the amount demanded on 12.10.1992 and conveyance deed was issued in their favour on 14.10.1992.

4. A number of complaints were made to the D.C.-cum-CSC Jalandhar against allotment. Main complaint was of the PTA saying that the land is adjoining to the School and they had applied for its transfer to the School. The D.C. took suo-moto action under Section 24 of the D.P (C&R) Act and set aside the allotment vide his order dated 29.10.1993 exercising power as Chief Sales Commissioner.

5. Ld. Counsels for the parties were heard at length. Counsels for the PTA filed written arguments also. Sh. P.N. Aggarwal Learned counsel for the petit toners stated in the first instance "' that order dated 8.9.1992 of the Chief Settlement Commissioner had settled the controversy regarding parentage of the petitioners and since it was not challenged it had attained finality. That there is no power of review with Chief Settlement Commissioner. That power under Section 24 can be exercised only in case of' fraud or misrepresentation of facts which has not been proved on record. He further stated that possession of Sh. Karam Chand, father of the petitioners, was fortified by record . That once property is transferred by a valid authority after payment of the amount due, property goes out of compensation pool and cannot be cancelled from the name of the transferees.

6. Sh. Aggarwal referred to the following entries in jamabandis and khasra girdawaris as mentioned in the record of the case in respect of Khasra No.707 allotted to petitioners to support his argument that petitioners' father Sh. Karam Chand s/o Bhagat Ram had been in continuous occupation of the land since before 1.1.1956.

7. Sh. P.N. Aggarwal further stated PTA is merely a complainant and not an interested party since it wants the land for School and so it has no locus standi to che1lenge the allotment. That Smt. Shakunt1a Bhal1a should have f1led independent claim regarding composite property and in the lower Court

8. Sh. Dinesh Ghai, Learned counsel for the PTA submitted that allotments as in the instant case are made under rule 34(C) and 34(D) of D.P(C&R) Rules, 1955 (herein refer to as the Rules) to lessee and sub-lessee. That in the application dated 22-3-1974 of Sh. Karam Chand for transfer of urban evacuee agricultura1 land comprised in Khasra No.672 to 675 and 707 Gandhi Nagar , Jullundhur City, against the column for name of the lessee, the words "Lessee not known” have been written. Counsel argued that when there is no lessee, the applicants have no locus standi to ,be recognized as sub-lessees. Besides as mentioned in the order dated 10.4.1978 of M.O. he (Karam Chard) was recorded as ‘Ghair Maurusi’. Hence he was not entitled to the transfer of land under Rule 34(C) or 34(D) of the Rules. He further argued that continuous occupation of land w.e.f. 1.1.1956 of Sh. Karam Chand son of Sh. Bhagat Ram was not established as entries in jamabandis and khasra girdawaris show different persons by the name of Karam Chand (having different parentage) in possession of the land at different times. Thus he was not entitled for transfer of land as sub-lessee under Rule 34(C) or 34(D) of the Rules. Further, that the Tehsildar-cam-M.O. himself branded the applicants as encroachers and asked S.H.O. on 25.9.92 to register a case against them but made allotment to them soon thereafter.

9. Sh. Nagra, Ld. counsel for Smt. Shakuntala and Mr. Jaidke argued that this clients did not want him to press their claim in the present case as well as in the separate case filed by them before C.S.C. but they are opposed to the allotment of land made to the petitioners. He repeated the arguments made by Sh. Ghai, counsel for PTA that Sh. Karam Chand, applicant was not eligible for transfer of land as sub-lessee, there being no 1essee who leased out the land to him and his occupation not being continuous since 1st January, 1956. Ld. counsel argued that presumption of truth is attached to the entries of the jamabandi which in this case reflect Sh. Karam Chand as Ghair Maurusi and not a sub-lessee. So , Sh. Karam Chand or his legal heir cannot get land as sub-lessee till they get the entries in jamabandi changed through civil court. He further referred to order dated 9.9.1982 of the C.S.C. in which khasra Nos. 672 to 675 and 707, were mentioned as in the original application but the Tehsildar-cum-M.O. allotted specific khasra No.707 only without approval of Regional Settlement Commissioner as required under Rule 34(D) (2) of the Rules. Sh. Nagra concluded that allotment made to the petitioners was in violation of' the rules and deserves to be cancelled.

10. I have carefully considered arguments advanced by Ld. counsel of all the parties and examined the record of the case.

11. Allotment of urban Evacuee Agricultural lands as in the present case are made under Rule 34(C) and 34(D) of D.P(C&R) Rules, 1955. In order to qualify for allotment as a sub-lessee under these rules, an applicant must prove that he got the land as sub-lessee from the lessee to whom land had been leased out by the Govt. under the said Rules. But there is no lessee mentioned in this case. Even original application dated 22.3.1974 of the petitioners clearly says 'Lessee not known'. Obviously, there can be no sub-lessee, in case of lessee being non-existent.

12. As per entries of Khasra girdawaris and jamabandis relied upon by the petitioners themselves, their father Sh. Karam Chand son of Bhagat Ram has been intermittently in possession of the land from kharif 1954 to Rabi 1992. Three different persons by the same name with different parentage (father's name) have been shown to be in occupation of land at different times. Besides, Sh. Karam Chand son of Sh. Bhagat Ram bas been mentioned 'Ghair Maurusi' in the revenue record am not as 'sub-lessee'. Presumption of truth is attached to entries of jamabandi unless rebutted. The petitioners never took any steps to get these corrected. Thus the status of' Sh. Karam Chand son of Sh. Bhagat Ram as sub-lessee has not been established with continuous occupation w.e.f. 1-1-1956 of earlier as such. The claim of the petitioners for transfer of land as sub-lessee is, therefore, not tenable and should not have been accepted.

13. Allotment was made by Tehsildar on 9.10.1992 in name of the petitioners. But there is no revenue entry in name of Sh. Kapoor Chand and Sh. Puran Chand has been shown to be in cultivating possession as "Ghair Maurusi", and not as sub-lessee from 1976-71 to 1983-84 followed by Sh. Karam Chand son of Jagat Ram till 1991-92. It was argued by the Ld. counsel for PTA that Karam Chand s/o Bhagat Ram died in 1974, leaving his six children behind, but there is nothing in the order dated 9.10.1992 of. Tehsildar-cum-M.O. or otherwise on records to show that Sh. Puran Chand or Sh. Kapur Chand or both are the successors-in-interest of Sh. Karam Chand son of Sh. Bhagat Ram. The petitioners, therefore, neither individually nor collectively satisfy the condition of being sub-lessee in continuous occupation of land w.e.f. 1.1.1956 in their own right or as legal heir of Sh. Karam Chand son of Sh. Bhagat Ram. Transfer of land in their favour is, therefore, not in order.

14. It was argued by the Learned counsel for the petitioners that fraud or mis-representation on their part has not been proved on record so as to be a cause for cancellation u/s 24 DPCR Act. The record belies this claim. As per entries of khasra girdawaris cited by the Learned counsel for the petitioners, the name of Sh. Karam Chand son of Sh. Bhagat Ram does not figure in khasra girdawaris from kharif 1954 to kharif 1961. The name of only Sh. Karam Chand (father's name not mentioned) stands recorded till Rabi 1958 and then the name of Sh. Karam Chand son of Birbal figures till Kharif 1961. Evidently the pet1tioners tried to take advantage of a name-sake of their father and staked their Claim. The controversy regarding their father's name arose again and again but they did not take any steps to get entries in khasra girdawari or jamabandi corrected. They kept on mis-representing before various Presiding Officers that Sh. Karam Chand son of Birbal, Karam Chand son of Bhagat Ram and Karam Chand son of Jagat Ram was one and the same person. Ultimately , they succeeded in 1982 , when CSC accepted their version that Sh. Karam Chand son of Sh. Birbal instead of Sh. Karam Chand son of Sh. Bhagat Ram had been recorded by the patwari through some mis-understanding, and again in 1992, when Tehsildar-cum-M.O. Jullundhur ordered the transfer of land in favour of the petitioners accepting false claim of their father Sh. Karam Chand son of. Sh. Bhagat Ram being as sub-lessees in continuous possession of the land w.e.f. 1.1.1956. In fact the order-dated 9.10.1992 of Tehsildar does not disclose even semblance of application of mind on any contentious issue involved in this case. It is noticed that the classification of land is recorded in most of the entries in the khasra girdawaris as 'Banjar Kadim' or as' ghair mumkin abadi deh'. Thus the land in dispute could not be characterised as Urban Evacuee Agricultural Land. Thus neither their father Sh. Karam Chand s/o Sh. Bhagat Ram, nor did the petitioners satisfy the prescribed conditions of being construed in occupation of the land as sub-lessee with uninterrupted possession w.e.f. 1.1.1956. Therefore , the allotment made in their favour is wholly unjustified and legally unsustainable. The conduct of the Tehsildar-cum-M.O. Jullundhur who passed order dated 9.10.1992 in the episode culminating in the allotment of 1and to the petitioners is absolutely deplorable which shocks judicial conscience. He not only acted illegally and without jurisdiction in ordering the transfer of land in favour of the petitioners but also went out of his way in allotting specific khasra No.707, against the application for khasra Nos. 672 to 675 and 707, without obtaining the statutory approval of the Regional Settlement Commissioner who is competent to make such selection under rule 34 (D) of D.P. (C&R) Rules, 1955. The Tehsildar-cum-M.O. also displayed undue haste implementing the order. The case which remained pending for more than 10 years i.e. from 9/82 to 4.10.1992, without any action was finalised by him on 9.10.1992. The cost of land was deposited conveyance deed was issued on 14.10.1992 within an abnormally short span of ten days. He transgressed his competency in fixing the price of the land to be charged and the rent to be recovered as this power vests in the Settlement Commissioner and not in the Tehsildar. It has been reported that much lower price than due was charged from the petitioners thereby causing substantial loss to State exchequer. This action of the Tehsildar-cum-M.O. calls for a departmental inquiry to ascertain the extent of his fault.

15. In view of my aforesaid discussion, I am of the firm opinion that impugned order dated 9.10.1992 of the Tehsildar-cum-Managing officer regarding the transfer of land in quest1on is not sustainable in the eyes of law being based on mis-representation and surmises, besides being in violation of the mandatory provisions of rules 34{C) & 34{D) of DPCR rules 1955.

16. In view of the findings given above, order of Tehsildar-cum-M.O. dated 9.10.1992 transferring land in khasra No.707 measuring 4K-12M in favour of the petitioners is set aside. Consequently, conveyance deed dated 14.10.92 issued in favour of the petitioners, is cancelled. Tehsildar is further directed to take necessary steps to resume possession of land forthwith and also take out proceedings for recovery of rent for unauthorised occupation of land from persons concerned in accordance with the law.

Announced .

                                                                                            Sd/-

Chandigarh dated                                                              Chief Settlement Commissioner ,

the 6th August, 1999.                                                             Punjab, Chandigarh.