Allotment case of Mohinder Singh

GOVERNMENT OF PUNJ  DEPARTMENT OF REVENUE & REHABILITATION   (LEGAL POLICY BRANCH

File No.4/56/2000/PL-4/

                                                                                 ORDER

This case relates to the allotment of land in lieu of the land alleged to have been abandoned by Sawan Singh, grandfather of Mohinder Singh in Pakistan at the time of Partition in Tehsil and District Bainsal Nagar, Bhawalpur State in Pakistan.

2. The case of the petitioner is that Sawan Singh, grandfather of Mohinder Singh (son of Gurdial Singh) had joined Narain Singh and Mehnga Singh sons of Fateh Singh to purchase agricultural land measuring 36 acres situated in village Mahsanpura in Bahawalpur State in Pakistan from Sh. Kumbha Ram, Nanak Ram and Bija Ram through an oral agreement without a registered sale deed and the vendees had become the owners of the said land after making full payment to the vendors. Out of the total land measuring 36 acres, Sawan Singh predecessor-in-interest of Mohinder Singh had purchased land measuring 24 acres, whereas Narain Singh and Mehnga Singh had purchased land measuring 12 acres. On a mutalba arazi (claim) having been filed by Sawan Singh, land measuring 9 SAs ¼ units was allotted to him in village Karmuwala Tehsil and District Ferozepur in lieu of the land purchased and left by him in Pakistan. Later on this allotment was cancelled by order dated 20.5.1960 of Managing Officer. The said order was set aside by the Assistant Settlement Commissioner in appeal and the case was remanded to the Managing Officer who, in turn, modified his earlier order and passed an order dated 26.9.1961 and cancelled 6-5¼ S.As instead of 9 SAs ¼ unit of land. Feeling aggrieved against the said order dated 26.9.1961, Sawan Singh filed an Appeal before the Settlement Commissioner who accepted the same and remanded the case to Managing Officer with the direction that the case be decided afresh after affording full opportunity of being heard to the appellant. The Managing Officer again decided the case on 10.7.1963 thereby affirming the order dated 26.9.1961.

It is pertinent to say that Sawan Singh died in 1977 and he remained alive for 14 years after the passing of the order dated 10.7.1963. However, neither Sawan Singh during his life time, nor any of his legal representatives came forward to challenge the aforesaid order for a long period of 32 years till Mohinder Singh the present petitioner filed an appeal before the Monitoring-cum-Evaluation Officer and Settlement Commissioner in 1995, who set aside the orders dated 26.9.1961 and 10.7.1963 vide his order dated 15.9.1995, by summarily condoning the delay of 32 years and remanded the case to Managing Officer Headquarters Punjab, Chandigarh for fresh decisions in the light of Govt. instructions issued vide letter No.5371/A&A dated 4.9.1951 and decision in the case of Gurnam Singh, Hardial Singh etc. successors-in-interest of Narain Singh and Mehnga whose claim for allotment of land had been allowed by the Managing Officer in 1986. Pursuantly, the Tehsildar Boundary Cell-cum-Managing Officer vide his order dated 18.6.1996 allowed the claim of Mohinder Singh for allotment of land measuring 9 SAs ¼ units on the analogy of the claim allowed in the name of Narain Singh etc. predecessor-in-interest of Gurnam Singh.

3. When the case was under examination for issuance of ‘goshwara’ on the basis of order dated 18.6.1996, the matter was referred to Govt. for clearance. However, certain infirmities in this order came to be discovered, prima facie, necessitating interference u/s 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954.

In the meantime Mohinder Singh, petitioner, successor-in-interest of Sawan Singh filed a Civil Writ Petition No.9802 of 2000 in the Hon’ble High Court of Punjab & Haryana. The said writ petition was permitted to be withdrawn vide order dated 14.3.2001 with liberty to approach the Court after the Financial Commissioner decided the matter. The petitioner, Mohinder Singh was directed to appear before the Financial Commissioner on 4.4.2001. When Sh.Mohinder Singh appeared before me on the date fixed, his statement was got recorded.

4. In his statement Mohinder Singh has pressed into service the adjudgement of entitlement of Gurnam Singh etc. as a foundation for his own claim. He stated that the mutalba claim submitted by his grandfather Sawan Singh was rejected on the ground that according to the record the land continued to stand in the name of Kumba Ram. No document regarding the sale was prepared as during those days mutations were effected without a registered sale deed. However, he does not give the date of sale nor does he explain as to why no mutation was effected in the name of Sawan Singh on the basis of oral sale. He has no knowledge of sale price of land purchased by Sawan Singh. He has categorically stated that the mutation was not entered in their name. He further goes on to say that the L.Rs of Kumba Ram are residing in Chak Char MLA Nimwala, Tehsil Ganganagar, Rajasthan. According to him his grandfather Sawan Singh had one son named Gurdial Singh and 3 daughters Gurdial Kaur, Dhan Kaur, and Basant Kaur. His father Gurdial Singh died in Pakistan and the 3 sisters of his father are still alive. He stated that Gurdial Singh had two daughters Gurbax Kaur and Balbir Kaur who were still alive and were married.

5. I have carefully gone through the records and anxiously scrutinised the statement of Mohinder Singh. In my opinion it is a fit case for interference u/s 33 of Displaced Persons (C&R) Act, 1954.

There are a number of infirmities to afflict the claim of Sawan Singh put forward by Mohinder Singh, who claims to be his sole successor-in-interest. Even a casual reading of the order of the Settlement Commissioner dated 15.9.95 and the Managing Officer dated 18.6.96 brings out the following glaring infirmities:-

• It is not without significance to notice that the Managing Officer, Sh. Hari Singh while passing his order dated 18.6.1996 acted blindly without caring to determine the L.Rs of Sawan Singh as required under Section 9 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954. It is also important to note that in the statement of Mohinder Singh recorded on 4.4.2001 he has admitted to his father having 3 more sisters and he himself having two others sisters. There is no mention of the same in his earlier application nor in the Managing Officer’s order. Though now he claims a Will in his favour, no such Will was mentioned earlier. It was the statutory duty of the Managing Officer to determine the L.Rs of Sawan Singh and in case of a Will, to make proper inquiries before accepting it.
• It is noticed that eligibility of Sawan Singh was determined solely on the analogy of the claim of Narain Singh etc., without any further investigation. This analogy has been further illogically stretched on the basis of the instructions issued by Govt. letter No.5371/A & A dated 4.9.1951. Unfortunately, these instructions have not been correctly interpreted and applied by the Settlement Commissioner as well as Managing Officer, while passing orders dated 15.9.1995 and 18.6.1996. The import of these instructions is that allotment in the name of vendee, whose name has not been incorporated in the Revenue record, could only be made if the land owner in whose name the land was recorded in Pakistan gave a statement, after his entitlement had been determined, that he had actually sold the land to vendees-claimants and had no objection if the allotment was made in vendees name. In this case the aforesaid condition was never fulfilled nor any effort was made to ensure its compliance and this aspect was completely ignored. The total entitlement of Kumbha Ram and his total allotment in various places in the country was never consciously brought on record.
• The date of death of Kumba Ram and other two vendors was never mentioned at any stage before any authority nor any statement of Kumba Ram etc. was recorded to the effect that they had sold the land to Sawan Singh etc. In the event of vendors having died, no effort whatsoever was made by any authority to identify their legal representatives of Kumba Ram who could competently swear a declaration in accordance with the instructions dated 4.9.1951. The record further reveals that before passing the order dated 10.7.1963 by Managing Officer, several opportunities were given to the claimant to give details of heirs of Kumba Ram and to show where all he owned land in Pakistan besides village Mehsanpura and to indicate places where allotment had been made to him in lieu thereof. But the said Sawan Singh did not bother to comply with these directions. Therefore the order dated 26.9.61 of the Managing Officer was affirmed on 10.7.63 whereby the land measuring 6-5¼ SAs stood cancelled.
• It may be significantly pointed out that according to order dated 10.7.1963, only an area of 6 SAs-5¼ Units was cancelled whereas the Settlement Commissioner while accepting the appeal in 1995, i.e., after 32 years, and the Managing Officer vide order dated 18.6.1996, obligingly made Sawan Singh entitled to an additional area of 9 SAs-¼ Units. He did not say a word regarding the area which had not been cancelled by the aforesaid order in 1963.
• The Settlement Commissioner failed to give any cogent reason to justify the circumstances about the condonation of delay of 32 years commencing from 10.7.1963 especially when the said Sawan Singh remained alive upto 1977. He perfunctorily condoned this long delay of 32 years and resurrected the claim. Section 22 of Displaced Persons (C & R) Act,1954 prescribes the period of 30 days for filing the appeal. To condone delay the Settlement Officer is to satisfy himself that the appellant was prevented by sufficient cause from filing the appeal. No such satisfaction was demanded. There is not even an oblique mention to justify the long-drawn-out silence of Sawan Singh for 14 years followed by long slumber of his alleged legal representatives for a further period of 18 years more before the order of 10.7.1963 was challenged in 1995. The order dated 10.7.1963 was clearly not an ex-parte order as Sh. Joginder Singh Bhatia, Advocate had duly represented the petitioner. All this shows that Sawan Singh and his successor-in-interest had no legally valid claim to agitate. Otherwise, such a long silence cannot be supported by natural human conduct.
• While remanding the case on 25.8.95 the Settlement Commissioner had also referred to certain affidavits purportedly filed by certain “legal heirs” of Kumbha Ram etc. and wanted these to be taken into consideration while deciding this case. The Managing Officer made no mention of these affidavits referred in his order, leave alone discussing their evidentiary value on merits. Rather, even copies of these affidavits do not form a part of the file of the Managing Officer. The Managing Officer proceeded to allow the claim of Mohinder Singh simply on the analogy of the case of Gurnam Singh.
• It is also note-worthy that the order dated 26.9.1961 and 10.7.1963 though challenged more than 30 years late were set aside by the Settlement Commissioner in a record period of one month withough going into the merits. The merits were left to the Managing Officer to be examined. These affidavits were the only papers produced in support of the claim of Mohinder Singh.

6. The object of the instructions dated 4.9.1951 was to immediately mitigate the miseries of migrants who had purchased land through oral agreements. The said instructions were not intended to serve as a license for all times to come. The affidavits of second, third and fourth generation heirs of the alleged vendors cannot sustain the sole claim of Sawan Singh unless this can be backed by concrete corroborative evidence. It is also noticed that nobody even bothered to identify the L.Rs of the alleged vendors. Not even a faint effort or wisdom is discernible on the part of the concerned functionary to assume that the affidavits have been sworn by the real and actual successors-in-interest of the vendees.

Even otherwise the present affidavits cannot serve as a substitute for the affidavits which were required to be filed in 1951 or soon thereafter when human memory was fresh and scope for loss/creation of evidence to suit the convenience of the claimants was minimal and it was possible to verify facts/veracity of statements made by various parties with reasonable precision by examining the record and even oral examination including cross-examination of parties and witnesses. That opportunity was not availed of by the claimant or his predecessor-in-interest. Rather although Sawan Singh was duly represented by a counsel he did not make any move to challenge the final allotment upto his reported death in 1977. It is noteworthy that Sawan Singh failed to indicate the legal representatives of Kumba Ram in 1963 and even upto his reported death in 1977 nor did he challenge the order dated 1963.

7. It is found that on the Court file of the Settlement Commissioner there are photo copies of two affidavits dated 18.11.1982 purported to be from Jagmal Ram and Bhani Ram sons of Kumbha Ram. The originals of these affidavits are on the file of Gurnam Singh etc. referred to above. In these affidavits there is no mention of Sawan Singh as a joint purchaser of land measuring 36 acres from Kumbha Ram though the entire oral sale has now been projected as a single transaction in favour of Sawan Singh, Narain Singh and Fateh Singh. Therefore, the contents of these two affidavits do not help the case of Mohinder Singh. A crude attempt has been made to improve upon the information imparted in affidavits dated 1982 to espouse the case of Mohinder Singh by procuring three fresh affidavits in 1995 from various parties purporting to be LRs of original vendors in the second, third and fourth decree of succession. All these affidavits have been sworn before a Notary Public in Rajasthan and have been procured on 26.7.1995 i.e. one day after the application filed before the Settlement Commissioner culminating in his order dated 15.9.1995 resurrecting the claim of Mohinder Singh. Their wording quite clearly shows that these have been procured and manoeuvred. The contents of the affidavits filed now before the Settlement Commissioner in 1995 merely strength the belief that no inquiry was conducted to determine the LRs of the vendors. Even in respect of sons of Kumbha Ram their number seems to be on the increase. The latest addition is a third son by the name of Hazari Ram whose son Rohtash has filed one such affidavit. As already indicated throughout the proceedings extending over so many years the date of death of Kumbha Ram and other vendees does not find any mention. It was obligatory for the Managing Officer to go into this aspect of the matter and thereafter proceed to make detailed inquiries. It was further obligatory for the Managing Officer to ensure the genuineness of the parties filing these affidavits and truthfulness of their contents by demanding the personal presence of the deponents and production of corroborative documentary evidence and duly cross-examining them, which he failed to do.

8. Neither the Settlement Commissioner nor the Managing Officer at any stage tried to peruse the old revenue record to ascertain the facts about the total land holding of Kumbha Ram etc. before 1947. Even the revenue record pertaining to the land allegedly sold was not perused. A total of 36 acres of land is projected as having been sold by Kumbha Ram etc. whereas the “Chhant” jamabandi for the said village shows an area of 34 acres in the khewats. Even if this discrepancy is ignored it is found that 20 acres 1 kanal of nehri land out of these khewats stood mortaged with one Narain Singh son of Hazara Singh ½ share, and Bachan Singh, Rattan Singh sons of Bhan Singh equal shares ½ share. Out of the remaining land 10 acres 3 kanals 6 marlas is banjar qadim. It is pointed out that Narain Singh son of Hazara Singh the mortgagee is not Narain Singh son of Fateh Singh, who claimed to be vendee from Kumbha Ram. In the consolidated statement of martgaged area 20 acres 1 kanal figures prominently as mortgaged land. This fact of mortgage was never brought out on record at any time before any authority either by the claimants or by the so called successors of the vendors. This fact was very essential to ascertain the entitlement of the vendors, and to see whether the mortgagees had claimed any allotment or not? There is no mention of this mortgage in any of the affidavits or any of the representations. This establishes that the affidavits are unreliable and cannot be taken prima facie as proof to establish the claim of Mohinder Singh for additional land.

9. When quasi-judicial authorities are charged with the duty of settling land allotment claims involving huge areas, it is obligatory for them to call for cogent and convincing primary evidence in support of the same. They are not expected to act in vacuum whenever a claim is re-agitated especially when such a claim is hopelessly belated. In the present case neither the Settlement Officer nor the Managing Officer asked for any evidence, which may have probative value, to substantiate the claim of Mohinder Singh. As already mentioned above even old revenue record was not referred to. Even when Mohinder Singh was examined on 4.4.2001, he complacently stated that he had no further evidence to adduce. Therefore, the Managing Officer had fallen in serious error in allowing the claim of Mohinder Singh by perfunctorily relying upon the claim of Gurnam Singh by way of analogy.

10. In view of the aforesaid incurable infirmities I am of the firm view that there was no occasion for the Settlement Commissioner to resurrect the claim of Sawan Singh through Mohinder Singh after a time gap of 32 years, and the Managing Officer also fell into serious error in accepting this claim by relying upon the claim of Gurnam Singh by way of analogy. it is a fit case for exercise of powers under Section 33 of Displaced Persons (Compensation & Rehabilitation) Act, 1954. Therefore, the orders dated 25.8.1995 and 18.6.1996 are set aside being perverse and not legally sustainable in so far as the land claimed on the basis of alleged purchase from Kumbha Ram by Sawan Singh is concerned.

It become evident that way back in 1963 Sawan Singh was in possession of cancelled area. Whether he was dispossessed in pursuance of the order dated 10.7.63 has not been brought on record. Effective steps be taken by the CSC, Ferozepur to ensure that the excess area is duly retrieved from the petitioner if this has not already been done.

11. The claim of Narain Singh which was taken as basis for adjudging the entitlement of Sawan Singh (and consequently Mohinder Singh) was resurrected by Settlement Commissioner Sh.V.P.Gupta vide his order dated 28.7.1986. It was he who directed the Managing Officer to take into consideration the affidavits of two reported LRs of Kumbha Ram. The officer at the relevant time was serving as District Revenue Officer in the Revenue Department. The record reveals that the claim of Sawan Singh, which also emanates from alleged sale in the common khewat of Kumbha Ram, Beeja Ram and Nanak Ram in favour of Narain Singh, Fateh Singh and Sawan Singh has also been resurrected by Sh.V.P.Gupta, this time in his capacity as a practicing lawyer. Fresh affidavits have been added in 1995 from more “legal heirs” of the “Common Vendors” to improve upon the information imparted in affidavits dated 1982(and to project that the remaining 24 acres in the same oral sale transaction were sold to Sawan Singh). Sh.V.P.Gupta appeared as counsel both before the Settlement Commissioner when he passed the order dated 25.8.95 and before the Managing Officer when he passed the order dated 18.6.96 holding Mohinder Singh as entitled to 9 SAs ¼ units of land. Writ petition No.9802 of 2000 has also been filed by close relatives of Sh.V.P.Gupta, wherein information has been presented to the Hon’ble High Court selectively.

12. Before parting with this order it may be remarked that the allotment of land to Gurnam Singh and others LRs of Narain Singh vide Managing Officer’s order dated 31.10.1986 which was made solely on the basis of belated affidavits of two LRs of one of the three vendors viz Kumbha Ram is not free from suspicion. The issue of land not being free from mortgage would also need careful consideration. Therefore, the Joint Secretary Rehabilitation is directed to make a thorough probe into the said allotment by summoning the relevant files and submitting the result of his investigation at a very early date.

( SHYAMA MANN )

Chandigarh, dated

Financial Commissioner Revenue,

the 2^nd May, 2001.

Punjab.