CIVIL WRIT PETITION NO.8788 OF 2009 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: JUNE 04, 2009
Shashi Kumar and others
.....Petitioners
VERSUS
The Financial Commissioner, Haryana, Chandigarh and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. R. D. Bawa, Advocate,
for the petitioners.
****
RANJIT SINGH, J.
This order will dispose of six Civil Writ Petition Nos.8788
of 2009 (Shashi Kumar and others Vs. The Financial
Commissioner, Haryana, Chandigarh and others), 8815, 8835, 9975
and 8921 of 2009 (Shashi Kumar Vs. The Financial Commissioner,
Haryana, Chandigarh and others), 8824 of 2009 (Shashi Kumar and
another Vs. The Financial Commissioner, Haryana, Chandigarh and
others). Facts are common and common question of law have been
raised in these petitions.
CIVIL WRIT PETITION NO.8788 OF 2009 :{ 2 }:
Challenge in these writ petitions is to the order dated
19.3.2008 (Annexure P-6) and order dated 10.2.2009 (Annexure P-
7). A mutation done in favour of the respondent-tenants on
24.11.1986 was undone by the Collector on 17.12.2007, which order
is set-aside by the Commissioner vide Annexure P-6 and the same is
upheld by Financial Commissioner through order, Annexure P-7.
Reference to unnecessary facts as contained in the writ
petition may not be needed as the challenge in the present petitions
is to orders, Annexures P-6 and P-7, which relate to mutation in
favour of the tenants. Accordingly, a mention to facts, in brief,
relevant to decide the challenge raised in the petitions is being made,
leaving the unnecessary details disclosed in the petitions.
The common facts in all these petitions, as would
emerge from Civil Writ Petition No.8788 of 2009 are that Om
Parkash (now deceased) was a big land owner, having lands in
different villages. The surplus area case of said Om Parkash is in
progress since long and had passed through various stages. Large
portion of land held by said Om Parkash was acquired by the
Government whereas some other portions were purchased by old
tenants under Section 18 of the Punjab Security of Lands Tenure Act
(for short, “the Tenures Act”). Om Parkash died on 18.7.1992 during
the pendency of his surplus proceedings. He was succeeded by his
L.Rs, which include the petitioners.
During the pendency of the surplus proceedings, 6
applications were filed by the tenants (including Surta, Respondent
No.4) of village Galoli under Section 18 of the Tenures Act. These
applications were allowed on 29.1.1969. Mutation of this land came
CIVIL WRIT PETITION NO.8788 OF 2009 :{ 3 }:
to be sanctioned in favour of the tenants (except respondent No.4)
on the basis of order dated 29.1.1969 vide which the purchase
applications were allowed. The land owner made an application for
cancellation of the said mutation on the ground that the order dated
29.1.1969 was set-aside by the Collector on 23.5.1969. The Collector
cancelled the mutation on 21.9.1981 and mutated the land in the
name of land owners. Tenants then filed an appeal against the same,
which was accepted by the Collector on 12.4.1983 and the case was
remanded to Assistant Collector to decide the cases of mutation
afresh after hearing both the parties. On 15.7.1983, the Assistant
Collector again decided the case of mutation in favour of the land
owners. Appeal against this order was dismissed by the Collector on
31.10.1983. The petitioners claim that this order has become final as
it was never challenged. This assertion of the petitioners does not
seem to be borne out from the facts. It appears that the revision was
filed against this order before the Commissioner. On 6.2.1985, this
revision was forwarded by the Commissioner to the Financial
Commissioner, Haryana, with recommendation that the mutation in
respect of the land in dispute be sanctioned in favour of the tenants
or the Government and not in favour of the land owners. The
Financial Commissioner vide his order dated 20.5.1987 had
accepted these recommendations. The response of the petitioners is
that these orders relate to the land situated in village Mandebri.
The Assistant Collector IInd Grade, however, had
sanctioned the mutation of land in favour of the tenants on
24.11.1986 on the basis of an order dated 29.1.1969 passed on the
application filed by the tenants under Section 18 of the Tenures Act.
CIVIL WRIT PETITION NO.8788 OF 2009 :{ 4 }:
The plea is that order dated 29.1.1969 has already been set-aside on
23.5.1969. The petitioners would, thus, urge that this mutation was
done ignoring the order dated 23.5.1969. They would, thus, term the
order passed by the Assistant Collector to be arbitrary and the one
which was passed at their back. The petitioners contend that when
they learnt about this mutation, they filed an appeal on 30.1.1987,
which was adjourned sine-die on 10.2.1988 till the decision of surplus
area case of the petitioners. The petitioners have averred that an
application for restoration of this appeal was accepted on 9.7.1992
but the order could not be dictated and the incumbent was
transferred. However, there is no proof available on record in support
of these averments. The matter has, thus, remained pending and in
the meanwhile land owner, Om Parkash, died on 18.7.1992.
The petitioners also relied upon a family settlement
reached between the family. On the basis of this settlement, a civil
suit was filed in the Civil Court, which was decreed on 10.8.1992.
The family settlement was confirmed through decree as per which
this land in villages Galoli and Mandebri came to the share of the
present petitioners. This decree, however, is not placed on record.
The petitioners thereafter approached the Collector for
restoration of their appeals, which had been adjourned sine-die. The
Collector restored the appeals vide his order dated 28.1.2003. The
tenants then filed appeals before Commissioner, Ambala Division,
Ambala, which were dismissed on 27.8.2003. The appeal was then
heard and the Collector set-aside the mutation dated 24.11.1986 vide
his order dated 17.12.2007. The petitioners also filed a civil suit,
seeking declaration to the effect that order dated 24.11.1986 was
CIVIL WRIT PETITION NO.8788 OF 2009 :{ 5 }:
without jurisdiction and void. The necessity to file this suit, as per the
petitioners, arose because the tenants, who were recorded as
owners as per mutation dated 24.11.1986, started transferring the
land in question through different modes. This suit was also decreed
on 3.5.2007 and the mutations were held illegal, null and void.
The mutation entries made on 24.11.1986, which were
set-aside through order dated 17.12.2007, were challenged in an
appeal. The appeal was allowed and the order dated 17.12.2007 was
set-aside on 19.3.2008. Copy of this order is annexed as Annexure
P-6. This order was challenged by the petitioner-land owners by filing
a revision petition, which was dismissed by the Financial
Commissioner on 10.2.2009 (Annexure P-7). These orders are, thus,
challenged through the present writ petition.
It is seen that the litigation in the present case is pending
since the year 1960. The respondent-tenants are purchasers of the
land and are old tenants. Their applications for purchase were
allowed on 29.1.1969. Though the petitioners claim that this order
was set-aside but it seems that the case was only remanded to the
Assistant Collector without any specific direction setting-aside the
applications of sale which were allowed vide order dated 29.1.1969.
The case appears to have been remanded to afford opportunity to
the parties to pursue their case as the value of the land in dispute
had not been correctly assessed. In this background, it was observed
that the Assistant Collector Ist Grade should decide the case by
taking full facts of the land in dispute as per the register of mutation
and after conducting thorough enquiry regarding reservation and
selection. These observations appear to have been made for
CIVIL WRIT PETITION NO.8788 OF 2009 :{ 6 }:
assessing the value of the land correctly.
Further facts, which have been noticed in the impugned
order are that this Court in Civil Writ Petition No.873 of 1987 appears
to have remanded the case to the Financial Commissioner. The
Financial Commissioner, Haryana, thereafter vide his order dated
16.9.1995 had set-aside the order dated 6.8.1979 passed by Special
Collector and remanded the case back to Special Collector for
deciding the same afresh. Thereafter, the Special Collector vide his
order dated 29.9.1997 declared 119 standard acres 14 units of land
to be under the old tenants and further declared 30 standard acres
area of land owners as permissible area. The remaining land was
considered to be falling under the tenants permissible area. Revision
filed against this order passed by the Special Collector was
dismissed on 12.10.1999. The Financial Commissioner dismissed
the revision against the same on 24.3.2000 and thereafter the
tenants filed a Civil Writ Petition No.10684 of 2001 in this Court
against the orders dated 29.9.1997, 12.10.1999 and 24.3.2000. This
Writ Petition is still pending. Thus, as on date 119 standard acres
and 14 unit area of the land owners has been declared surplus. It is
on this basis that the Assistant Collector IInd Grade had sanctioned
the mutation dated 24.11.1986 in favour of the tenants. Ignoring all
these facts, the Collector had allowed the appeals of the land owners
through his order dated 17.12.2007 and had cancelled the mutation
sanctioned by the Assistant Collector on 24.11.1986. While
cancelling this mutation in favour of the tenants, the plea on behalf of
the land owners wrongly put that order dated 31.10.1983 had
become final was taken into consideration. This, as already noticed,
CIVIL WRIT PETITION NO.8788 OF 2009 :{ 7 }:
had been challenged, leading to an order dated 20.5.1987.
The petitioners had also relied upon a decree passed by
the Civil Court on the basis of family compromise. The respondent-
tenants, however, would contend that the decree passed by the Civil
Court on the basis of family partition was wrongly taken into
consideration for cancelling the mutation sanctioned in favour of the
tenants. Plea is that the land owners can never become owners of
the surplus land on the basis of the family compromise, which was
the basis of the Civil Court decree. In fact, the tenants had
challenged the decree of family settlement dated 10.8.1992. This
suit, however, was dismissed on 8.5.2007.
The whole basis of the arguments advanced by counsel
for the petitioners is by ignoring the order declaring 119 standards
acres and 14 units of land to be tenants permissible area. The writ
petition against these orders, as already noticed, is pending before
this Court and this Court has passed an order staying the
dispossession from the land in dispute . The proceedings in the case
titled Om Parkash etc. Vs. Surta etc. relating to the mutation of the
land in dispute were adjourned sine die by the Collector on 10.2.1988
with the consent of the parties. The proceedings in regard to
mutation No.532 were stayed by Assistant Collector Ist Grade vide
his order dated 19.3.2002 till the decision of the Civil Writ Petition
Pending before this Court. Ignoring these facts, the Collector allowed
the mutation on the basis of the family compromise and the decree
passed by the Civil Court by cancelling the mutation in favour of the
tenants made on 24.11.1986. Since the High Court is yet to decide
the matter regarding the permissible area and the tenants
CIVIL WRIT PETITION NO.8788 OF 2009 :{ 8 }:
permissible area and the Civil Court has no jurisdiction to decide the
matter regarding surplus, it was observed that the Collector was not
justified to restore the mutation cases and cancel the same without
waiting for the decision on the above issues. The order of the
Collector was, thus, rightly found to be illegal and set-aside. There
has been no order in favour of the landlords, which can entitle them
to retain the ownership over the land. The land declared surplus even
as per the law would vest in the State and can not remain in the
names of land owners. The Financial Commissioner accordingly
found that the case has rightly been adjudicated upon by the
Commissioner and, thus, did not find any justification to interfere with
this order.
The reference made by counsel for the petitioners to the
observations made by this Court in Onkar and others Vs. Birbal
and others,1987 PLJ 155 in regard to the presumption in favour of
the latter entries, which are rebuttable one and would stand rebutted
if these are found to be unauthorisedly and mistakenly made without
material to justify the change, apparently would not help him in view
of the facts as noticed above. The counsel then referred to Jagjit
Singh Vs. State Election Commission Punjab and others, 2003
(2) PLR 396 to urge that Civil Court decree even if passed without
jurisdiction was required to be set-aside before it could be ignored
would not apparently apply in this case as this was not the only
basis for which the Commissioner and Financial Commissioner have
interfered with the order passed by the Collector. It could not be
disputed by the counsel for the petitioners that the Civil Court did not
have the jurisdiction to decide the case of mutation entries.
CIVIL WRIT PETITION NO.8788 OF 2009 :{ 9 }:
Accordingly, no case for interference in the impugned orders is made
out.
The writ petitions are, thus, dismissed in limine.
June 04, 2009 ( RANJIT SINGH ) khurmi JUDGE