Lekh Raj etc. Vs Deputy Secy. Rehabilitation Department etc.

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

Misc. No. 136 of 1995-96

In

M.R.No. 27 of 1993-94

1. Lekh Raj son of Saran Dass
2. Harbhajan Lal son of Arjan Ram
3. Tara Ram son of Arjan Ram
4. Balhar alias Bihari Ram son of Bhagat Ram
5. Hans Raj son of Kartara Ram through Balwinder Singh Mukhtiar
6. Sohan Lal son of Nazir Ram
7. Birbal son of Amar Chand through his attorney Surjit son  of Amar Chand
8. Parkash Kaur mother of Balbir son of Nachhatar Ram
9. Devi son of Jit Ram
10. Neeta Raj
11. Balwinder Kaur
12. Baljit Kaur

minor daughters of Balbir through their grandmother Parkash Kaur w/o Nachhatar Ram.

All residents of village Jamalpur, Tehsil Phagwara, Distt. Kapurthala.

….Petitioners

Versus

1. Deputy Secretary, Rehabilitation Department, Punjab, Sector 34-A, Chandigarh.
2. Tehsildar (Sales)-cum-Settlement Officer, Phagwara, Distt. Kapurthala.
3. Hira Nand son of Rurra Mal resident of 51-Narella Colony, Delhi through attorney Satish Kumar son of Dewan Chand, resident of EF-279, Mandi Road, Jalandhar
4. Ajit Singh son of Rattan Singh resident of village, Jamalpur, The. Phagwara, Distt. Kapurthala.

…..Respondents

 Present :-         Sh. Sunil Chadha, Advocate, counsel for the petitioner.

Sh. R.C. Chaudhary, Advocate, counsel for respondent No. 3

                        Sh. Mansoor Ali, Advocate, counsel for respondent No. 4

                        Sh. Balbir Singh, Senior State counsel for the State.

ORDER

This petition u/s 33 of Displaced Persons (C&R) Act, 1954 seeks to challenge the order dated 1.7.1992 of Deputy Secretary, Rehabilitation Department with a further prayer for directions to respondent No. 1 and 2 to consider the claim of petitioners for allotment of land measuring 3 Kanals 1 Marla situated in village Jamalpur.  The said order dated 1.7.1992 had allowed the transfer of claim of Hira Nand s/o Rura Mal for 9½  units from tehsil Kapurthala to tehsil Phagwara.

2.         As per averments contained in the petition the petitioners have been continuing in uninterrupted possession of land measuring 3 Kanals 1 Marla comprised in khasra No. 565/3-1 situated in village Jamalpur District Kapurthala for the last 22 years.  In the first week of April, 1994 they came to know that vide report No. 82 dated 7.1.1994 the possession of the said land had been shown as allegedly handed over to Hira Nand s/o Rura Mal.  respondent No. 3 in pursuance of the allotment alleged to have been made by respondent No.1 at the back of the petitioners.  It is further alleged that the aforesaid report is merely a paper report as the petitioners are still in continuous physical possession of the disputed land.  Despite this the land has been further sold by respondent no. 3 to Ajit Singh S/o Rattan Singh, (Respondent No.4), vide registered sale deed dated 17.2.1994.

It is further stated that on 29.1.1987 the petitioners filed a Civil Suit for permanent injunction for restraining the respondents from dispossessing the petitioners from the disputed land except in due course of law which was decided in favour of the petitioners by the Court of Sub Judge Ist Class Phagwara  vide judgement dated 5.4.1989.  An appeal against the said judgement was dismissed as withdrawn on 11.10.1991 by the Court of Additional Distt. Judge, Kapurthala.  In a suit filed by Jit Ram and others on 21.5.1988 for permanent injunction regarding the suit land, the Court of Sub Judge Ist Class, Phagwara while dismissing the same held the petitioners be in possession of land vide judgement dated 20.11.1991.  An appeal against the said judgement was dismissed by Additional Distt. Judge, Kapurthala vide his order dated 25.8.1993.  A regular (2nd) Second Appeal No. 2301 of 193 was got dismissed as withdrawn from the Court of Hon’ble Justice Sh. V.K.Bali on 8.4.1994. The petitioners claim that they have filled foundations around their respective plots and have placed cowdung thereon.  According to the petitioners the said orders are liable to be quashed on the following grounds :-

(a)                The petitioners are entitled to allotment of land on account of their continuous possession for the last 22 years by virtue of various instructions issued by he Punjab Govt.

(b)               No opportunity of hearing was given while passing the order dated 1.7.1992.

(c)                The land in dispute was sold by the respondent No. 3 to respondent No. 4 in contravention of usual terms and conditions of allotment letter.

(d)               The allotment dated 1.7.1992 had been made in violation of Rules and Regulations.

3.         It is noticed from the proceedings that notices were issued for the appearance of the respondents.  On 27.2.1996, Satish Kumar claiming to be the Attorney of Hira Nand  (Respondent No.3) appeared through Jamuna Dass, Advocate.  The said Advocate again appeared on 30.4.1996 whereafter neither he nor Satish Kumar appeared in the proceedings.  On 4.11.1996, an application was made for impleading Shanti Parkash as legal representative of Hira Nand (deceased) being his son.  This application was allowed.  Sh. R.C. Chaudhary appeared for Shanti Parkash but even at this stage the respondent or his counsel never indicated that there were any other LRs of “Hira Nand” who might have interest in the proceedings.  

With a view to ensuring the genuineness of the competing claims, the counsel for the parties were directed to prove their identity and credentials vide Zimini order dated 21.9.99.  The counsel for the respondent  No. 4 was also directed to produce Power of Attorney executed by Hira Nand in favour of Satish Kumar and the sale deed made by Satish Kumar in favour of Respondent No.4.  On 14.12.1999 the Counsel for respondent No. 4 produced a photo copy of death certificate of one Heera Lal son of Rudra Ram and a photo copy of Power of Attorney.  Later on the original Power of Attorney was also placed on record alongwith an “original” death certificate.

4.         Some discrepancies were discovered deserving reconciliation.  The Power of Attorney of Hira Nand S/o Rura Mal dated 13/15.12.1993 executed at Delhi was in favour of Satish Kumar S/o Diwan Chand and Ajit Singh S/o Lachhman Singh whereas the unregistered Special Power of Attorney dated 23.12.1993 on the basis of which proceedings were carried out before tehsildar Phagwara, was in favour of Satish Kumar alone.  It also became doubtful if Shanti Parkash was the only legal representative of Hira Nand.  Two (2) death certificates of Heera Lal who died on 29.3.94  were produced on the record out of which one was photo copy and the other was carbon copy of the ‘original’.  However, the photo copy did not tally with the carbon copy as they bore different serial numbers.  The photo copy described the name of deceased as Heera Lal S/o  Rudra Ram whereas in the carbon copy of a purported original certificate (issued on an un specified date) the name of  his father had been shown as corrected to Rura Ram on 17.4.1995.  In the original petition the name of respondent No. 3 was mentioned as Hira Nand S/o Rurra Mal.  The discrepancy regarding description of the name of respondent No. 3 as Hira Nand and Heera Lal was never reconciled.

5.         On 31.10.2000 i.e. four years after the petitioners impleaded Shanti Parkash  Rakesh Kumar appeared as another son of Hira Nand.  Sh. R.C.Chowdary filed a Power of Attorney on behalf of 6(six) legal representatives of Hira Nand including Shanti Parkash and Rakesh Kumar, who admitted the existence of the photograph of Hira Nand on the General Power of Attorney purporting to have been executed by Hira Nand in favour of Satish Kumar and Ajit Singh.  At the same time they stated that their father used to sign in Hindi and would not affix his thumb impression on the documents whereas the Power of Atttorney produced on the record purported to bear his thumb impression.  It is significant to note that Shanti Parkash and Rakesh Kumar appeared in the proceedings claiming to be sons of Hira Nand wherein they disclaimed the genuineness of the Power of Attorney of Hira Nand in favour of Satish Kumar and Ajit Singh.  However, they did not bother to pursue their case to a logical end nor did they show any interest to launch criminal proceedings against the persons responsible for preparing fake Power of Attorney on behalf of their father by affixing his photograph thereon.  They also did not show any concern to establish the identity of Hira Nand.  All this shows that some interested parties had projected the aforesaid persons as sons of Hira Nand.

6.         With a view to verifying the genuineness of the Power of Attorney set up by the vendee Ajit Singh S/o Rattan Singh (respondent No. 4), the holders of the Power of Attorney, namely, Ajit Singh S/o Lachhman Singh and Satish Kumar S/o Diwan Chand  were directed to be summoned through registered notices directing them to appear in person.  As per report of the Postal Authorities registered notices sent to Ajit Singh S/o Lachhman Singh and Satish Kumar S/o Diwan Chand were received back undelivered with the remarks that they had not met at their given addresses.  However as per report of Tehsildar Jalandhar Satish Kumar had refused to accept the summons and Ajit Singh S/o Lachhman Singh was not available at his residence and his relatives were informed of the next date of hearing at his residence.  Both the alleged attorneys did not appear despite service nor did Ajit Singh vendee make any effort to produce them in Court and therefore ex-parte proceedings were taken against them.

7.         I have carefully examined the records and have heard the Ld. Counsel of the parties.  From the records it is noticed that Goshwara allotment was issued in the name of Hira Nand S/o Rura Mal on 8.8.1984 regarding his entitlement for allotment of land measuring 0-9½  units and the same was sent to Managing Officer Kapurthala for allotment of land.  The Managing Officer proceeded to summon Hira Nand but he did not appear in person before Tehsildar-cum-M.O.Kapurthala for many years.  On 1.7.1992, the case of allotment was transferred to Tehsildar-cum-M.O. Phagwara not at the instance of Hira Nand but at the instance of Jagmohan Singh son of Sadhu Singh as Special Attorney of Kishen Chand who claimed himself to be General Attorney of Hira Nand. The Tehsildar-cum-Managing Officer, Phagwara also took the proceedings to summon Hira Nand but he never appeared in person.  Satish Kumar who became his alleged attorney in December 1993 appeared before Tehsildar Phagwara for allotment of land.  On 3.1.1994 a ‘parchi’ allotment for 4½ Units was issued by Tehsildar-cum-M.O.Phagwara whereby Hira Nand was allotted 3 Kanals 1 Marlas of land bearing khasra No. 565 in village Jamalpur Tehsil Phagwara.  Here also as per report dated 7.1.1994 the so called “possession” of land was delivered to Satish Kumar S/o Diwan Chand, Special Attorney of Hira Nand.  It is significant to note that during the entire proceedings running over ten years Hira Nand allottee never appeared on the scene.  

8.         A careful persual of Zimni orders, a detailed reference to which have been made in the earlier part of this order, manifestly shows that the identity of Hira Nand in whose favour the allotment was made could not be established at any stage of time.  He never appeared either before Tehsildar-cum-M.O.Kapurthala or before the Tehsildar-cum-M.O.Phagwara and the allotment of land measuring 4½ Units was obtained by his Special Attorney Satish Kumar.  In the present case General Power of Attorney dated 13.12.1993 purporting to have been executed by Hira Nand in favour of Satish Kumar S/o Diwan Chand and Ajit Singh S/o Lachhman Singh has been produced.  There is another unregistered Special Power of Attorney in the allotment file of Managing Officer-cum-Tehsildar which purports to have been executed by Hira Nand in favour of Satish Kumar on 23.12.1993.  In the presence of General Power of Attorney dated 13.12.1993 in favour of Satish Kumar and Ajit Singh, there was absolutely no occasion for executing another Special Power of Attorney in favour of Satish Kumar alone ten days thereafter on 23.12.1993.  Unfortunately, Satish Kumar and Ajit Singh did not appear in these proceedings to remove this confusion and the counsel who originally appeared for Satish Kumar also stopped coming.  However, these Powers of Attorney further strengthen the doubts regarding the identity of Hira Nand who remained absent in the entire proceedings and never came to the forefront.  As the Attorneys, namely, Ajit Singh S/o Lachhman Singh and Satish Kumar also felt shy of appearing in the proceedings despite the fact that Satish Kumar had transferred the land measuring 3 Kanals 1 Marla in favour of Ajit Singh S/o Rattan Singh Respondent No. 4 through registered Sale Deed dated 17.2.1994, the question-marks raised above remained unanswered.

9.         All this goes a long way in demolishing the claim in the name of Hira Nand for allotment of land.  In the result the goshwara for allotment of 9½ Units of land is cancelled thereby setting aside the allotment of land measuring 4½ units.  The Deputy Commissioner Kapurthala is directed to make further inquiry regarding the position of the remaining land measuring 5 units and take appropriate steps for cancellation of that land, in the event of the same having been allotted.

The same malady afflicts the transfer of land by so called Attorney of Hira Nand viz. Satish Kumar in favour of Ajit Singh vide registered sale deed dated 17.2.1994 promptly after allotment.  As the credentials and identity of Hira Nand have not been established, the vendee Ajit Singh S/o Rattan Singh cannot be treated as a bonafide purchaser with any sketch of imagination. He is rather a privy to the entire manipulation.  As per report No.82 dated 7.1.94 the “possession” was shown to have been delivered to Satish Kumar son of Diwan Chand, Special Attorney of Hira Nand; and on 17.2.94 the property was promptly shown to have been sold by the same Satish Kumar to one Ajit Singh S/o Rattan Singh for 1,15,000.  The sale deed mentions that the vendor & the vendee had entered into an agreement for sale on 4.1.1994, i.e., prior to vendor receiving possession, and that the entire consideration had already been received by the vendor.  No exchange of money took place before the ‘Sub Registrar’.  Thus the transaction regarding sale turns out to be a sham transaction.  Evidently in collusion with the revenue authorities Satish Kumar manipulated the report regarding the possession during the subsistence of injunction the petitioners had obtained against their dispossession in the Civil Suit filed by them which eventually culminated in the order dated 8.4.1994 of the Hon’ble Punjab & Haryana High Court as referred to in para 2 (supra).  The proceedings regarding delivery of actual possession of land to Satish Kumar also appear to be fake and fictitious as the petitioners had succeeded in getting injunction against their dispossession from the land in dispute except in due course of law.  In the result the claim of Ajit Singh vendee stands completely obliterated.  It follows that the vendee is an accomplice in the dubious transaction of sale and cannot claim to be a genuine vendee.  It is evident that he had got the sale deed executed knowing fully well the risk involved in such a transaction. Otherwise, also, the moment the claim of Hira Nand for allotment is set aside, the sale deed purporting to have been executed by his so-called attorney is rendered null, void and infructuous.

10.       As regards the claim of the petitioners, it is evident that they are in illegal possession of land measuring 3 Kanals and 1 Marla.  No doubt they have obtained injunction from the Civil Court against their dispossession except in due course of law but this injunction only recognises their possession and does not confer any right for the allotment of land in their favour.  At no stage of time had these petitioners staked their claim for allotment of the land in dispute in pursuance of Govt. policy and instructions.  They have been enjoying the fruit of the land by continuing in illegal possession by paying no rent to the State Govt.  Therefore they have no right to continue in possession of land on the basis of their long possession.  Accordingly, the land is ordered to be sold in open auction by giving a notice to the petitioners.  The Deputy Commissioner, Kapurthala is directed to take steps for recovery of damages for use and occupation of the land measuring 3 Kanals 1 Marla from the petitioners for the period of their respective illegal possession of the land.

     (SHYAMA MANN)

Chandigarh, dated                                                        Financial Commissioner Revenue

The 29 May, 2001                                                                               Punjab.