M.R. No. 14/2000

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

M.R.NO.14 of 2000

1.Gurmail Singh,

2.Mohinder Singh,

3.Tehal Singh

sons of Mehar Singh,

4.Amarjit Singh,

5.Karamjit Singh,

sons of Kapoor Singh,

6.Baljit Singh,

7.Amarjit Singh,

sons of Sadha Singh

all residents of village Chak Swahwala, Tehsil & District Ferozepur.

……Petitioners.

Versus

1.Secretary to Govt. (Rehabilitation Department)-cum-Chief Settlement Commissioner, Punjab, Chandigarh.

2.Sher Bahadur son of Narain Dass s/o Gopal Dass, Mohalla Qain Kharian, Abohar Mandi.

3.Shamsher Bahadur son of Narain Dass, 226, Premgarh, Fazilka.

4.Ramesh Chander son of Hans Raj son of Shiv Dass son of Gopal Dass, Inspector, Civil Supplies, Abohar.

5.Subhash Chander son of Hans Raj son of Shiv Dass s/o Gopal Dass, C/o Wazir Chand Dasuja, Gaushala Road, Fazilka.

6.Wazir Chand Dasuja s/o Shiv Dass s/o Gopal Dass, Gaushala Road, Fazilka.

7.Khushwant Rai s/o Mulakh Raj s/o Gopal Dass, Superintendent, Municipal Committee, Malout.

8.Santosh Kumar s/o Lal Chand s/o Gopal Dass, r/o H.No.7345, Patel Nagar, Abohar, Distt. Ferozepur

…..Respondents.

        Present:    Sh. D.S.Chanan, Advocate, counsel for the petitioners.

                                                                             ORDER

This revision petition has been filed by the petitioner under Section 33 of Displaced Persons (C&R) Act in pursuance of following orders of Hon'ble High Court dated 17.12.1999 in CWP No. 17587 of 1999 with the following observations:  

“ORDER

Mr. D.S. Chanana, Advocate, for the petitioners.

A remedy under Section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, is available to the petitioners, which has not been availed off by them so far.  The Learned counsel for the petitioners states that this petition be dismissed as withdrawn so as to enable them to approach the Central Government under Section 33 of the Act.  Allowed as prayed.

                                                            Sd/- H.S. Bedi

                                                                        Judge

17th December, 1999                           Sd/- R.L. Anand

                                                                        Judge”

                        The petitioners have moved for setting aside orders dated 27.5.1986 of Sh. M.M. Hurria, the Chief Settlement Commissioner and have also challenged the order dated 10.6.1999 passed by his successor.  They have further prayed for allotment of land to them being bonafide vendees from the legal heirs of the allottee Sh. Gopal Dass.  Important facts of the case as made out from record of the case including the impugned order of CSC dated 27.5.1986, are given below.

2. The facts as stated in the petition are that Gopal Dass son of Punjab Rai owned 103 acres of land in village Todar, Tehsil Deepalpur, District Montgomery in West Pakistan in addition to the land held by him in village Mehtab Rai, Tehsil Deepalpur.  The land of village Todar stood mortgaged to Mauj Rai s/o Devi Ditta for a period of 26 years from Rabi 1943.  The mortgagor died in 1944 and left behind his legal heirs Shiv Dass, Lal Chand Narain Dass and Mohomad Din and Mulakh Raj grand son of Gopal Dass.   Muhamad Din embraced Islam and did not migrate to India.  On migration from Pakistan, Lal Chand (deceased) father of Santosh Kumar and Shamsher Bahadur and Shiv Dass filed Mutalba Arazi for the land abandoned by them in village Mehtab Rai Tehsil Deepalpur.  Sh. Mulakh Raj father of Khushwant Rai, the 4th legal heir of mortgagor did not join them.  The allotment was made to Shiv Dass, Lal Chand and Mulakh Raj the legal heirs of Gopal Dass to the tune of 42-6½ S.As,  39-9 S.As and 44-3¼ S.As. respectively in village Changi Rai Hither, District Ferozepur whereas land measuring 43-6 S.As was allotted in village Alamke, Tehsil Fazilka, Distt. Ferozepur to Narain Dass.

3.  Interestingly enough none of the legal heirs of Gopal Dass filed any Mutalba Arazi for the land abandoned by Gopal Dass (deceased) in village Todar, Tehsil Deepalpur Distt. Montgomery.  But at the time of general allotment 31-6½ S.As of land was reportedly allotted in lieu of the land left by Gopal Dass in village Todar.  This allotment was made in village Dona Bahadurke, Tehsil Muktsar.  The possession of the allotted land was taken by the heirs of Gopal Dass.  As the land was shown as mortgaged in the name of Mauj Rai son of Devi Ditta in the revenue records received from Pakistan, the possession of the land was taken over by Hushnak Rai son of Mauj Rai son of Devi Ditta on 10.8.1950.

                        Since Mauj Rai and his two sons had embraced Islam, they did not migrate from Pakistan and the claim for allotment made by Hushnak Rai was cancelled to be bogus as the father of Hushnak Rai was stated to be alive and living in Pakistan.  Later on the legal heirs of Gopal Dass applied on 16.7.1963 to the Registrar Land Claims for reallotment of land to the extent of 31-6½ S.As. in village Dona Bahadurke through one Santosh Kumar.  This application was dismissed in default by the S.O.-cum-Managing Officer on 6.12.1963.  The said order was not challenged at any stage of time before any forum.

4. In 1978 a fresh application was made by Santosh Kumar which was also dismissed on 25.1.1978.  The said order was challenged before the Settlement Commissioner who vide his order dated 23.6.1978 directed the Managing Officer to reprocess the case after tracing out the record.  The application of Santosh Kumar was dismissed on 26.2.1979 by the Managing Officer on account of his failure to produce any evidence in support of his claim.  In appeal the Settlement Commissioner vide his order dated 2.5.1979 again remanded the case for fresh decision.  On 21.9.1979 the Managing Officer declined the claim on the ground that it was not possible for him to pass any order in the presence of the order dated 6.12.1963 of his predecessor.  In appeal the said order dated 6.12.1963 was quashed by the Settlement Commissioner vide his order dated 28.11.1979 and the case was sent back to the Managing Officer for decision.  The Managing Officer allowed the allotment to the tune of 31-6 S.As. in  village Chaksowanwala Tehsil and Distt. Ferozepur vide his order dated 2.3.1982

5. A suo moto reference was made to the Chief Settlement Commissioner by Rehabilitation Department for cancellation of allotment to Sh. Santosh Kumar on the ground that he had procured the allotment fraudulently claiming to be the sole legal heir of Sh. Gopal Dass.  After taking note of the irregularities and improprieties committed in the allotment and after hearing Govt. as well as the respondents (No.2 to 7 herein), Sh. M.M. Huria the then Chief Settlement Commissioner accepted the suo moto reference vide his order dated 27.5.1986 and consequently set aside the orders dated 28.11.1979 of the Settlement Commissioner and order dated 2.3.1982 of the Tehsildar-cum-Managing Officer.  The Chief Settlement Commissioner directed for retrieval of the area wrongly allotted and disposal of the same under rules.

6. In 1999 the petitioners moved application in the court of Chief Settlement Commissioner for review of order dated 27.5.86 of the former Chief Settlement Commissioner alleging that the order was passed ex-parte.  Their grouse was that though they were bonafide vendees from legal heirs of Sh. Gopal Dass allottee, they were not given opportunity of being heard before cancellation of the allotment which is a requirement of Section 24 of Displaced Persons (C&R) Act.  The petition was rejected by Chief Settlement Commissioner vide her order dated 10.6.1999 on many counts e.g. that order of Chief Settlement Commissioner dated 27.5.86 had not been challenged by the vendees for about 13 even though the petitioners lived in the same village in which the land was located.  That the allotment had been procured by the vendors fraudulently and therefore claim of the vendees was not sustainable.  Above all the petitioners were not party before Chief Settlement Commissioner and therefore the impugned decision could not be termed as ex-parte qua them.  Aggrieved by order of Chief Settlement Commissioner, the petitioners filed a writ petition in the High Court but the same was dismissed as withdrawn on a statement by their counsel that they wanted to seek remedy under Section 33 of Displaced Persons (C&R) Act.  That is how the case is being heard by me.

7. In the instant Revision Petition, the petitioners claim to have purchased land from L.R's of Sh. Gopal Dass including Sh. Khushwant Rai on 26.5.1983, 28.6.1983 and 19.7.1985 and have allegedly been in possession since then.  It is surprising that the point regarding land having been sold was not touched at all by Sh. Khushwant Rai who was a petitioner before Financial Commissioner Revenue when the latter passed orders dated 15.10.96.  Similarly there is no mention of these sales in the order of Chief Settlement Commissioner dated 27.5.1986 and no sale deeds were produced either which means the L.R's of Gopal Dass did not take up this issue. This creates a doubt regarding genuineness of the alleged Sales and the claim of the vendees.

8. Though not disclosed before me by the petitioners, M.R.No.199 of 1985-86 and M.R.No.10 of 1986-87 filed by Sh. Santosh Kumar, Hushnak Rai, Sher Bahadur and Shamsher Bahadur ss/o Gopal Dass against order of Chief Settlement Commissioner dated 27.5.1986 were dismissed by the then Financial Commissioner Revenue vide his order dated 15.10.1996.  That Sh. Hushnak Rai, one of the vendors who was petitioner in M.R. No. 199 did not bring up the case of vendees in defence of allotment is also not understandable.  They filed Writ Petition No. 17587 of 1999 for setting aside order of Chief Settlement Commissioner, and on being confronted with availability of alternative remedy under Section 33 of Displaced Persons (C&R) Act., they requested for withdrawal of the writ and Hon'ble High Court dismissed the writ petition as withdrawn on 17.12.1999.  The petitioners have not explained what were the circumstances which prevented them or their vendors from challenging order of Chief Settlement Commissioner for about 13 years.  It is improbable that the petitioners were not aware of cancellation particularly when the land is located in village in which the petitioners reside.  The petitioners did not produce any sale deeds in proof of purchase of land from some L.R's of Sh. Gopal Dass including Hushnak Rai nor did they try to explain why their vendors who were party before Chief Settlement Commissioner in 1986 did not bring up their case when sale transactions had allegedly taken place well before that time. The stunning silence on the part of the petitioners and their vendors creates a doubt about bonafide of the petitioners as vendees.  They never even attempted to explain that they exercised caution of a normal prudent person to check up the veracity of title of the vendors before entering into a purchase deal with them.  

9. It is patent on the face of record that legal heir of Sh. Gopal Dass who died in 1944 did not file any Mutalba Araji for the land left by him in village Todar.  It is also accepted fact that on the basis of record received from Pakistan, the land stood mortgaged with Sh. Mauj Rai son of Devi Dutta before partition.  Sh. Gopal Dass died in 1944.  Sh. Mauj Rai and his sons embraced Islam and did not migrate from Pakistan.  The claim for allotment in lieu of land in village Todar filed by Sh. Hushnak Rai, one of sons of Sh. Mauj Rai though once allowed (to the extent of 31-6½ S.A. in village Dona Bahadur ke) was later on cancelled for the reason that Sh. Mauj Rai was still alive in Pakistan.  However, the land was mortgaged for 25 years which term was to expire in 1988.  If legal heir of Sh. Gopal Dass were interested in having the land redeemed they could have deposited the mortgage money with the custodian before 1954 and got back the land which remedy was not resorted to by them.  In fact, no one except Sh. Santosh Kumar seemed to have remained active in respect of this land and Sh. Santosh Kumar after a number of unsuccessful attempts ultimately managed to procure fraudulent allotment in his favour in the year 1982.  The Managing Officer while making the allotment did not take care to ensure that the allotment was not made earlier to any other legal heir of Sh. Gopal Dass or whether Sh. Santosh Kumar was the sole surviving legal heir of Sh. Gopal Dass.  All these points amongst others weighed with the Chief Settlement Commissioner while cancelling allotment in name of Santosh Kumar on 27.5.1986.  These points have not been contravened by the petitioners. When the allotment was vitiated being fraudulent, the right of vendees from this land cannot sustain.  The petitioners have impugned the order dated 10.6.1999 of Mrs. Agya Rajinder Singh, the then Chief Settlement Commissioner for not allowing review of order of her predecessor Sh. M.M. Huria passed on 27.5.1986.  She very pertinently pointed out the weaknesses in the case of the petitioners and rightly concluded that the review of orders of her predecessor was not called for.

10.Before parting with the order, I would like to observe that the petitioners have concealed a very vital fact pertaining to this case.  After conclusion of arguments, it was brought to my notice that Sh. Santosh Kumar and Sh. Khushwant Rai had challenged order of the Chief Settlement Commissioner dated 27.5.1986 before the Financial Commissioner Revenue under Section 33 of the Displaced Persons (C&R) Act, 1954 which was heard by Sh. C.D. Cheema the then Financial Commissioner Revenue as M.R. No. 199 of 1985-86 and decided alongwith M.R.No.10 of 1986-87 vide his order dated 15.10.1996.  The order is very detailed and very clearly demolishes the case of the petitioners. Surprisingly, Sh.D.S.Chanan, who represented Sh. Santosh Kumar allottee before the Financial Commissioner Revenue in M.R.No.199 of 1985-86 as proxy counsel is now representing the vendees on the strength of alleged sale deeds dated 1983.  This merely strengthens the belief that the vendees are frontmen of the vendors and have been introduced to complicate the issues to facilitate unlawful perpetuation of a fraudulent claim.  The land which is the subject matter of the fraudulent allotment should be got retrieved immediately by the Collector, Ferozepur and steps be also taken by him for recovery of arrears of rent fallen due from the unauthorised occupants for use and occupation of the land relateable to the period of their possession.

                        Announced.

                                                                             (SHYAMA MANN)

Chandigarh, dated                                                Financial Commissioner Revenue,

the 23^rd May, 2000                                                  Punjab.