M.R. No. 5/1994-95

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

M.R.NO. 5 of 1994-95

1.Tulsi Ram son of Sibu Ram.

2.Sant Ram son of Ganga Ram residents of village Balewal, P.O.Kathgarh,Tehsil Balachaur, District Hoshiarpur.

. . .Petitioners

Versus

1.Chief Settlement Commissioner, Punjab, Jalandhar.

2.Settlement Commissioner, Punjab, Jalandhar.

3.Tehsildar(Sales), Balachaur.

. . .Respondents.

Present: Sh.G.K.Chawla, Advocate, counsel for the petitioners.

ORDER

1.This is a petition under Section 33 of the Displaced Persons (Compensation and Rehabilitation)Act,1954 against the order passed by the Chief Settlement Commissioner, Jalandhar dated 6.1.81 vide which purchase of the petitioners of the land in dispute was cancelled. The petitioners want the sale to be held valid or in the alternative want the land to be allotted in their favour. The petitioners claim to be residents of village Ballewal, Tehsil Balachaur, District Hoshiarpur and they purchased the land measuring 4-2 Std.Acres/13OK-17M out of which 71K-4M was 'barani' and 59K-13M was 'banjar qadim' situated at village Mehndipur Tehsil Balachaur, District Hoshiarpur, from one Garibu son of Gamu through his General Attorney Amar Singh son of Gokal Singh in 1967.

2.It all started when the Patwari Halqa gave an undated and unauthenticated note in the remarks column of the jamabandi for the year 1967-68 of village Mehndipur Tehsil Balachaur(then Distt. Hoshiarpur) against the disputed land measuring 13OK-17M, that the said land stood allotted to one Garibu son of Gamu, vide allotment No.HB/4O1.

 The said alleged allottee Garibu son of Gamu sold the entire land in favour of the petitioners for Rs. 7500/- only, in equal shares in 1967 itself. When is came to the notice of the Managing Officer that the alleged Garibu/Amar Singh had got a bogus entry made in the jamabandi in connivance with the subordinate revenue staff he cancelled the allotment vide his order issued vide U.O.No.259-65/2D dated  8.3.69 as per entry made in  the Jamabandi for the year 1967-68.

  The petitioners filed an appeal u/s 22 of the Displaced Persons(C & R)Act,1954 in the court of Settlement Commissioner against the cancellation of allotment of Garibu son of Gamu, which was dismissed vide order dated 28.12.71 of the Settlement Commissioner. The petitioners then filed a revision petition u/s 24 of the Act before the Chief Settlement Commissioner, which too was dismissed vide order dated 6.1.81. The Chief Settlement Commissioner held as under:-

" I have gone through this old case. As held by the lower officer, no regular order regarding allotment of land in dispute was passed by the Managing Officer concerned, but the allottee had come to exist on the record on the basis of some un authorised notes of the Patwari, which could not be treated as order of allotment by a competent authority. In such a case, the question of conferment of proprietary rights on the allottee could not arise. Therefore, there is no force in the plea of the petitioners' counsel that they the bona fide vendees. In these circumstances, present revision being devoid of any force, is rejected. However, it is directed that the request of the petitioners for purchase of the cancelled land may be considered according to rules."

Thereafter the petitioners filed Civil Writ Petition No.2641 of 1993 in the Hon'ble Punjab and Haryana High Court but the same was dismissed as withdrawn and the petitioners filed this revision petition.

3. I have heard the counsel for the petitioners and gone through the record. He argued that the sale is valid as it was made prior to cancellation order. Since they had purchased the land they have become the absolute owners of the same and they should not be divested of the land whether the allotment is bogus or right. The counsel has argued that the petitioners were informed vide letter dated 11-2-93 received 1.3.93, that the Joint Secretary, Punjab, Rehabilitation Department, Chandigarh had rejected their application for the sale of the land and they could get the refund of their money which order was against the provisions of the rules and regulations Properties (Disposal) Act, 1976. He further argued that after the decision of the Chief Settlement Commissioner dated 6.1.81, in 1989 Tehsildar (Sales) had advised the petitioners to deposit Rs.10772/- allegedly representing 20% of the price for 130K-17M of land in order to allot it to the petitioners being recorded as Ghair Maurusi thereof. According to rules a Ghair Maurusi was entitled to allotment of the land if it is a package deal property. The petitioners claimed that they have a double claim as they are bonafide purchasers and they are also occupants of the land since 1967; though their sale from Garibu son of Gamu has been set aside, and they have been recorded  as Ghair Maurusi in the  revenue record. Therefore, the petitioners are entitled for transfer of land.

4.At the outset it is noticed that the present petition is barred by latches. The impugned orders was passed way back on 6.1.1981. The present petition was filed on 4.10.1994 after period a of more than 13 years. Thus the order dated 6-1-81 had attained finality, there is no explanation to show that there was any just and sufficient cause for this long delay. Even the petitioners were informed by Tehsildar Sales vide his letter dated 11.2..1993 regarding the rejection of their application for sale, they did not bother to file the petition upto 4.10.1994. Instead they file a Civil Writ Petition No. 2641 of 1993 in the Hon'ble High Court knowing fully well that no such petition was maintainable without exhausting the remedy available under section 33 of the Displaced Persons (C & R) Act, 1954. The writ petition was inevitably misconceived and was designed to gain time. It was dismissed as withdrawn on 19.7.94.

 As regards merits, it is noticed that no allotment was made to Garibu son of Gamu and fraud was played with the Government to grab un allotted land by manipulating wrong and false entry in the jamabandi which was not based on any allotment order issued competent authority. This fraudulent and fake allotment was justifiably cancelled by the Managing Officer.

5.It is well settled that fraud vitiates all transactions. Accordingly the vendees of the disputed land cannot be recognized as bonafide purchasers for consideration. They did not take any steps to make proper inquiry to verify the title of the so-called allottee. They adopted a perilous course in blindly relying upon bogus entry in the nature of undated and unauthorized note by Halqa Patwari in the remarks column of jamabandi for the year of 1967-68: which was not backed by any order of competent authority. This shatters  their plea of bonafide purchase. Such an accommodation is also barred in view of the provisions of sub rule (1) and (2) of the rule 4-b of Punjab Package Deal Properties Disposal Rules 1976 which reads as under :-

"4-8. Sale by negotiation of the cancelled land in rural area(1) Notwithstanding anything contained in rules 3 and 4, the land allotted to a displaced person in excess of his entitlement the allotment whereof has been cancelled may be transferred to such allottee or his Successors-in-interest or his bonafide vendee(s) at the negotiated price in the manner hereinafter specified if such an allottee is in continuous possession of the land.

                                                xxx       xxx       xxx       xxx

(2)The land, the allotment of which has been cancelled on the grounds of fraud, concealment or mis-representation of material facts, shall not be transferred to the allottee or his successor(s)-in-interest or vendee(s) under sub-rule(i).

The petitioners are also not eligible to the transfer of land, on the basis of cultivating possession view of the provision of Clause (ii) of sub rule ( 2 ) of rule  3 of the Punjab Package Deal Properties (Disposal) 1976, which is reproduced below:-

" ( 2 )   persons not entitled to make applications for the transfer of land:- An occupant shall not be entitled to apply if:-

                               xxx       xxx       xxx       xxx

(ii)        he is an allottee or vendee of land, the allotment  or transfer where of has been cancelled on the grounds of misrepresentation of facts or otherwise.

                                 xxx       xxx       xxx

Thus the petitioners not entitled to purchase the disputed land by sale by way of negotiation under rule  4-B or on the basis of  possession under clause ( ii) of sub rule (2) of Rule 3 of the Punjab Package Deal Properties (Disposal) Rules, 1976  and their request for the purchase of land has rightly been declined.

Rather it may be correct to say that this was not a case of allotment at all, but a case of fraudulent interpolation of revenue record.

6. It is patent on the face of the record that Garibu son of Gamu manoeuvred a  false entry in  the revenue record in his favour and sold the disputed land measuring 130K-17M to the  petitioners through his general attorney Amar Singh for only Rs.7500/- in 1967. Thanks to the inefficiency and inaction on the part of the concerned Govt. functionaries, the petitioners have been successfully continuing in illegal cultivating possession of the land in dispute for the last 32 years.  They have been depositing some rent apparently to regularize their illegal possession. The petitioners dared to file appeals and revisions as a matter of routine and these were also disposed of as such. The connivance between the beneficiaries and the concerned revenue official is also manifest from the fact that during the course of 12 long years after the matter was decided by Chief Settlement Commissioner on 6.1.1981, no concrete steps were taken to take possession from the petitioners. Rather the ostensibly innocuous remarks (which were absolutely unjustified) of the Chief Settlement Commissioner contained in his order dated 6.1.81 that request of the petitioners for the purchase  of the cancelled land may be considered according to rules have been thoroughly exploited in perpetuating the ab initio illegal possession of the petitioners. Rules on the subject  being clear, there was no question of any allotment in favour of the petitioners. Instead, the Tehsildar who was in position in 1989 bent backward to allow deposit of so called 20% amount by the petitioners stating that this was subject to the approval/confirmation by the Government. As already indicated, the Punjab Package Deal Properties (Disposal) Rules,1976 clearly debars regularisation of any allotment in the event the of fraud and it cannot be said that the Tehsildar was blissfully ignorant of this provision. Yet no action was taken against any senior functionary of the Govt. for blatant transgression of rules and instructions. The later Tehsildar (Sales) rightly asked the petitioners vide his letter dated 11.2.93 to get the refund of the earnest money deposited by the petitioners. The petitioners are not entitled to the transfer of the area as vendees as the allotment of the alleged allottee qua disputed area was cancelled as early as 1969 on the ground of fraud. As envisioned under sub-rule ( 1 ) and ( 2 ) of Rule-4B of the Rules ibid, such area could not be transferred to allottee or his successors-in-interest or vendees, the allotment whereof has been cancelled on the ground of fraud.

7. In the aforesaid circumstances, the present revision petition, being devoid of any merits, is dismissed. The Deputy Commissioner-cum-Chief Settlement Commissioner, Nawanshahar is directed to order SDM/Tehsildar to take possession of the disputed land forthwith. The petitioners shall get the refund of the earnest money deposited by them subject to adjustment on account of payment of rent for illegal occupation of the Govt. land.

Secretary Revenue is directed to examine the feasibility of taking departmental action against the delinquent revenue officers responsible for both making false entries and thereafter perpetuating the fraud by their covert and overt action for which purpose detailed inquiry may be conducted and responsibility fixed. A copy of this order be sent to the said quarters for finalising action within six months.

The records reveal that a criminal case was registered under Section 467/420 IPC vide FIR No.114 dated 22.12.1969 in Police Station Balachaur and criminal challans No.85/2 of 1973 and No.8/2 of 1978 had been decided by the Court of Judicial Magistrate, Garhshankar on 3-4-1974. No details are available in the records of this case here regarding the fate of those cases. The result of the same be ascertained by the Deputy Commissioner, Nawanshahar and if necessary, fresh criminal proceedings be launched to bring the delinquents to book. The matter be seriously followed up by the concerned branch of Secretary Revenue.

Announced.

(Shyama Mann)

Financial Commissioner Revenue,

          Punjab.

Chandigarh, dated

the 3rd August,1999