IN THE COURT OF MRS. SHYAMA MANN, IAS, FINANCIAL COMMISSIONER REVENUE, PUNJAB, CHANDIGARH.
M.R.No. 14 of 1999
1, Surjit Singh son of Charan Singh;
2, Darshan Singh son of Nanak Singh;
3.Mohinder Singh son of Ladha Singh;
4.Piara Singh son of Mangal Singh;
5.Mahnga Singh son of Karam Chand;
6.Santokh Singh son of Bhag Singh;
7.Ujjagar Singh son of Maghar Singh;
8.Inder Singh son of Saudagar Singh;
9.Amar Singh son of Khazan Singh;
all residents of village and P.O: Maqsudpur, Tehsil Bholath, District Kapurthala.
1.Tehsildar (Sales)-cum-Managing Officer, Kapurthala (now Bholath).
2.Dalip Singh son of Labh Singh (allottee) through his General Attorney, Surjit Singh son of Arjan Singh son of Narain Singh resident of 499-Field Ganj Gali No.7, Ludhiana.
3.Avtar Singh, Amar Singh sons of Gurbakhsh Singh son of Jassa Singh (Vendees of the allottee)VPO Maqsudpur, Tehsil Bholath District Kapurthala.
Present: Sh.T.R.Vij, Advocate, counsel for the petitioners.
Sh. Malkiat Singh, Advocate, counsel respondent No.3.
Sh. Balbir Singh, Senior State counsel.
This is a petition under section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The petitioners have requested for setting aside the order of the Deputy Commissioner-cum-Chief Settlement Commissioner, Kapurthala dated 8.4.1999 vide which their revision petition was dismissed in limine on grounds of non-maintainability.
The dispute relates to the allotment of an area measuring 2K-3M in favour of Dalip Singh son of Labh Singh through his General Attorney, Surjit Singh son of Arjan Singh of Ludhiana. The plea of the petitioners is that this allotted land is public path, i.e., ‘Shar-e-aam rasta’ and the allotment of this strategic piece of land was made in a very secret manner to Respondent No.2, Dalip Singh. It has been alleged that the allotment is bogus in nature, the Power of Attorney claimed to have been executed in 1979 is a false document and being an imposter the claimant did not come forward himself. The allotment is fraudulent and has been secured by misrepresentation and concealment of facts. It has also been asserted that the allotment of a public path is prohibited. The jamabandi for 1987-88 shows that khasra No.96 in Khewat No.679, Khatauni 1257 is owned by local ‘Malkan’ in 1/8 share and by the Custodian in 7/8 share. The total area is 12K-13M and it is recorded as Gairmumkin Rasta. No Lagaan is being paid for this area. The same entries are repeated in khasra girdawari upto Sauni, 1988 wherein also it is entered as public path. The possession of this path was entered in favour of respondent No.2 vide ‘rapat’ No.6 dated 3.1.1989 and the area was sold to respondent No.3 vide registered sale deed dated 16.1.1989 for a consideration of Rs.6,000/-. Thus, the respondent No.2 has endeavoured to complicate the entire matter for his personal gain. It is further alleged that there is no ‘goshwara’ allotment forwarded by the Rehabilitation Department, Chandigarh to the Tehsildar (Sales) for allotment and no case has been consigned in D.L.R’s office regarding this allotment and nor is the same traceable in Deputy Commissioner Office, Kapurthala. Thus, it is evident that a bogus parchi for allotment was made and “dakhal” of Surjit Singh was entered in the revenue record who immediately, thereafter, sold it through registered sale deed. Otherwise, also the rule has been violated as ‘Shar-e-aam’ rasta is not allotable nor is composite property allotable as per Evacuee Separation Interest Act, 1951 without separating shares after partition. It has also been urged that the path in dispute is being used by 150 families in four villages who would be affected they are deprived of this passage.
Notice of petition was sent to respondents Nos.2 and 3. Sh. Malkiat Singh, Advocate appeared for respondents No.3, Avtar Singh and Amar Singh on 17.8.1999. As no report regarding service of Dalip Singh allottee, was received he was directed to be served again for 14.9.1999. On 14.9.1999 Sh.Ajit Singh, Advocate appeared for Amar Singh respondent No.3 and Surjit Singh alleged General Attorney of respondent No.2. He also filed a Vakalatnama for them. Later on Sh.R.S.Hundal,Advocate filed a Vakalatnama for Surjit Singh and also appeared for him on 22.2.2000.
Efforts were made to effect personal service on Dalip Singh, respondent No.2 but on account of non-availability of his correct address his personal service could not be effected. Dalip Singh allottee was reported to be the resident of village Rahon where he had reportedly been allotted some land. The report dated 19.1.2000 of Tehsildar, Khanna reveals that the patwari had made inquiries regarding the whereabouts of Dalip Singh son of Labh Singh from respectables in the village and they informed that there is no person of this name residing in the village nor had any person of that name ever resided in that village. It was also reported that the examination of the records did not reveal the existence of any such person in that village. The report of the Patwari endorsed by Lambardar Karnail Singh, Lambardar Raghbir Singh, Ram Kishan, Sarpanch, Gram Panchayat Rahon and also Hardial Singh, Panch, Gurnam Singh and Gulzar Singh. On 22.2.2000 the halqa patwari Balbir Singh was also personally present in Court.
When the case was taken up on 22.2.2000 the counsel for respondents No.2 and 3 were directed to produce Dalip Singh the original allottee on the next date i.e. 18.4.2000 for which date the case was also posted for arguments. Till the date of arguments on 30.5.2000 the parties neither produced Dalip Singh in person nor did they seek any time for doing so. Surjit Singh claiming to be the General Attorney of Dalip Singh failed to discharge his onus to ensure the personal appearance of Dalip Singh though personal appearance was all the more necessary particularly in view of the fact that the allotment was alleged to be the result of fraud. Rather for obvious reasons even the counsel for Surjit Singh, the alleged Power of Attorney of Dalip Singh stopped attending the proceedings after 22.2.2000.
I have heard counsel for the parties after going through the records. The narration regarding the failure of the parties to produce Dalip Singh goes a long way in reflecting adversely on credentials of Sh. Surjit Singh the alleged General Attorney of Dalip Singh. A person representing the other as his general Attorney is supposed to know his whereabouts and when so directed it becomes his legal obligation to produce his Principal. The suspicion against the credentials of Surjit Singh is further strengthened by the fact that the original Power of Attorney in favour of Surjit Singh son of Arjun Singh had not been produced on the record. The file of Managing Officer contains an unattested photo copy of Power of Attorney dated 31.8.1978. The allotment file of this case shows that since 1981 the case is being pursued exclusively by Surjit Singh son of Arjun Singh and there is not a single signature or thumb impression of the original allottee. The prosecution of claims for allotment of evacuee land exclusively by the holders of Power of Attorney excites an unfortunate inference that the original allottee had transferred the claim to the attorney. This goes a long a way in defeating the very purpose of rehabilitating the allottee.
It is noticed that the Rehabilitation authorities have allotted Rasta to Dalip Singh respondent. Only Consolidation authorities are competent to carve out a rasta and it is beyond the domain of the Managing Officer to allot a ‘rasta’ against a claim for land. In view of the dubious and peculiar manner in which the allotment was made coupled with the nature of the allotment and the hurried manner in which the property was sold to respondent No.3 there is left no manner of doubt that the allotment made in favour of Dalip Singh through his Attorney Surjit Singh is not a valid allotment; rather it is a bogus allotment.
The impugned order dated 8.4.1999 of the Deputy Commissioner-cum-Chief Settlement Commissioner does not withstand the test of judicial scrutiny. The hollowness of the claim of Dalip Singh whereby he acting through is Attorney had obtained allotment of rasta was not correctly appreciated. As far as respondent No.3 is concerned, I am of the opinion that he has failed to establish that he is a bonafide vendee. The records show that the General Attorney of Dalip Singh got recorded his possession over the land in dispute vide rapat dated 3.1.1989 and the respondents purchased the disputed land a few days thereafter on 16.1.1989. The respondent No.3 cannot be adjudged as a bonafide purchaser as the disputed land was recorded as a path and the same could not be allotted. The vendee purchased this path at his own peril with his eyes and ears open and that too for a paltry sum. With exercise of a little diligence he could easily find out that the land he was purchasing could not be sold being rasta. There is ample substance in assertion of petitioner that the sale has been made only to compound the complications in view of the bogus nature of the allotment.
It is unfortunate that the Deputy Commissioner-cum-Chief Settlement Commissioner, Kapurthala dismissed the case of the petitioners by a one page cryptic order dated 8.4.1999. The operative part of this order comprises of less than half a page in which the Chief Settlement Commissioner has observed that she was satisfied that no fraud had been committed. She also observed that the petitioners had not filed any appeal or revision since 1988. The order of the Chief Settlement Commissioner does not reveal as to what evidence persuaded her to hazard the observation that no fraud had been committed. She even failed to realise the baneful consequences flowing from a public path being allotted by the subordinate authorities.
The facts and events, which have been narrated above, are based on a careful reading of the record. Had the Chief Settlement Commissioner also perused the same with the desired application of mind there would have been no occasion for her to make these observations which are patently unmerited. Legally also a path carved out during Consolidation constituting public property cannot be “gifted away” like this.
The respondents also tried to prove their case by bringing on record a decision dated 27.4.2000 of the Civil Judge, Kapurthala in Civil Suit No.13 of 15.1.1999 in which permanent injunction was granted to them. I find that this judgement is based on the previous orders of the lower authorities in favour of Dalip Singh, which allotment had not been set aside by the competent authority. To my mind it was the bounded duty of the Deputy Commissioner-cum-Chief Settlement Commissioner to take cognizance of the allotment of a path by the Tehsildar (Sales)-cum-Managing Officer and appreciate the circumstances of the matter more closely. The delay in filing the revision petition deserves to be condoned because none of the aggrieved parties were associated with the allotment and there was a clear connivance between the revenue functionaries and the respondents.
Before parting with the case it may be pointed out that in view of the fact that the allotment was bogus, the Deputy Commissioner-cum-Chief Settlement Commissioner, Kapurthala is directed to carry out an inquiry into the remaining allotment/s, if any, made in pursuance of the said Goshwara and take action to cancel the same after due notice to the concerned parties.
A copy of this order be also sent to the Revenue Establishment-I branch together with copy of the Parchi allotment dated 8.4.1988 for taking necessary action against the Tehsildar Mahal-cum-Managing Officer, Kapurthala for having connived with private parties for allotment of public path in favour of the present petitioner under dubious circumstances.
Chandigarh, dated Financial Commissioner Revenue,
the 30th May, 2000 Punjab.