High Court Punjab-Haryana High Court

Kulwant Singh Through His L.Rs vs State Of Punjab And Another on 21 January, 2009

Punjab-Haryana High Court
Kulwant Singh Through His L.Rs vs State Of Punjab And Another on 21 January, 2009
CIVIL WRIT PETITION NO.3462 OF 1998                               :{ 1 }:

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                    DATE OF DECISION: JANUARY 21, 2009

             Kulwant Singh through his L.Rs

                                                             .....Petitioners

                                         VERSUS

             State of Punjab and another

                                                              ....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. M. L. Sarin, Sr.Advocate with
             Mr. Gulshan Sharma, Advocate,
             for the petitioners.
             (in C.W.P. No.3462 of 1998)

             Mr. Gulshan Sharma, Advocate,
             for the petitioners.
             (in Civil Writ Petition Nos.1433 and 1455 of 2008)

             Ms. Charu Tuli, Sr.DAG, Punjab,
             for the State.
                              ****

RANJIT SINGH, J.(ORAL)

This order will dispose of three writ petition bearing

Nos.3462 of 1998 (Kulwant Singh through his L.Rs Vs. State of

Punjab and another), 1433 of 2008 (Anokh Singh and others Vs.

State of Punjab and others) and 1455 of 2008 (Surinder Singh

and others Vs. State of Punjab and others). The facts are being

taken from Civil Writ Petition No.3462 of 1998.

CIVIL WRIT PETITION NO.3462 OF 1998 :{ 2 }:

Gurnam Singh, father of the petitioner Kulwant Singh,

was allotted land in Village Sheikhe Pind alongwith other 116

allottees in Sufi Pind. After the death of Gurnam Singh, the petitioner,

being his son alongwith his brothers and sisters, had inherited the

rights in the property left by Gurnam Singh. He has accordingly filed

this writ petition, to seek protection of his right in the property in

question.

This was an evacuee land and was initially allotted by the

Rehabilitation Authority to these persons by imposing a cut of 18-

3/4%. The cut was increased to 50% from that of 18-3/4% in the year

1952 and the proposal was accepted. This cut was imposed on all

117 allottees, including the father of the petitioner. The predecessor

in interest of the petitioner alongwith others filed Civil Writ Petitions

Nos.2671-2690 of 1965 in this Court, challenging the cancellation of

the area allotted to them and asking for enhanced price at the rate of

Rs.2200/- per standard acre. Only 20 allottees out of 117, which

included the father of the petitioner, had not accepted this cut and did

not deposit the amount. They had, thus, filed these writ petitions in

the year 1965, challenging the cancellation of the area allotted.

These writ petitions were dismissed, which order was

impugned by filing Letters Patent Appeals. The same were also

dismissed. The matter was then taken to Supreme Court. The

Hon’ble Supreme Court also dismissed the appeals. The Supreme

Court rather approved the view taken by the High Court while

dismissing the writ petitions and the Letters Patent Appeals.

While dismissing the appeal, Hon’ble Supreme Court,

however, observed that there is no justification for affording any
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 3 }:

differential treatment to those 20 allottees, particularly when, all the

117 allottees stood at par so far as the application of the decision

contained in order 3.2.1952 is concerned. Yet, the Hon’ble Supreme

Court went on to record an observation of significance, reading “it is

not known if under the changed circumstances, the same benefit is

available to be extended to the appellant (now petitioner), without

permitting him/them to pay the extra premium at present”. It was also

noticed that more than 30 years have passed and with this passage

of time, the changed situation must have come to prevail.

Accordingly, Hon’ble Supreme Court seems to have left liberty with

authorities to still consider the claim of the petitioners by observing

that dismissal of appeal should not preclude the respondent

authorities from entertaining the offer by the appellant if made to pay

extra premium or any further time with a view to obtain a lawful

settlement of the entire property without cut on the basis of the initial

allotment.

It is perhaps this part of the order which had given a new ray of

hope and a straw to the petitioners to swim. The petitioner addressed

representation to Chief Minister, which was dealt with by the then

Revenue Minister. He made a noting dated 2.2.1996, observing that

request is genuine and for taking action under the Rules. This came

as new leaf of life to the petitioners. The case was then examined.

Respondent No.1 took a decision to charge enhanced price at the

rate of 10% per year. This order/decision of respondent No.1-

Financial Commissioner (Revenue) is annexed with the petition as

Annexure P-1. It was decided to charge Rs.71,500/- per standard

acre from these allottees and statedly was conveyed to Deputy
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 4 }:

Commissioner, Jalandhar, vide letter dated 25.7.1996 (Annexure P2).

In the meanwhile, one Ashok Kumar filed Civil Writ

Petition No.7296 of 1996, seeking allotment of sub-urban land as

was the claim being made by the petitioners. This writ petition was

admitted on 9.9.1999. Since the issue of allotment of sub-urban land

was in issue in this writ petition, Government decided to keep the

allotment in abeyance till the matter was decided by this Court. The

decision of the Government to hold the allotment in abeyance was

communicated to Deputy Commissioner, Jalandhar, through

Annexure P-3. This gave a cause to the petitioners, who were

awaiting allotment. The petitioners, thus, challenged this order by

filing the present writ petitions. Plea is that decision to hold the

allotment in abeyance on the basis of challenge made in Civil Writ

Petition No.7296 of 1996 would not have any effect on the rights of

the petitioners for the allotment. These writ petitions were also

admitted to be heard with Civil Writ Petition No.6168 of 1995 filed by

others and Ashok Kumar.

Reply is filed. The stand of the respondents is that the

land, which is sub-urban, can not be allotted to the petitioner as this

land is required to be put to auction in terms of the rules framed in

the Punjab Package Deal Properties (Disposal) Act, 1976. This

apart, the State counsel would refer to the order passed in Civil Writ

Petition Nos.6168 of 1995, 7296 of 1996 and 6169 of 1995 to

highlight that the prayer of the petitioners in these writ petitions for

allotment of sub-urban land has been declined by this Court. By

referring to the prayer made in these petitions, it is urged that the

instructions concerning disposing of sub-urban land by way of
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 5 }:

auction have been upheld by this Court by dismissing the writ petition

filed by Ashok Kumar and others on 6.11.2006 The State counsel

would, thus, plead that there is no merit in the instant writ petitions

containing identical prayer and the same, thus, would deserve to be

dismissed.

During the course of arguments, the State counsel has

placed before me the file containing original notings, on the basis of

which the order passed by the Financial Commissioner (P-1) was

ordered to be held in abeyance. The challenge is made to this order

(P-3). This is a communication from Financial Commissioner

(Revenue) to Deputy Commissioner, Jalandhar. In fact, through this

order, Financial Commissioner (Revenue) has informed the Deputy

Commissioner, Jalandhar, that decision to allot land was

superseded and not held in abeyance as made out by the

petitioners. This communication is annexed by the petitioners.

Learned State counsel would refer to the original notings which also

show that the decision was taken by the Government to cancel

Annexure P-1. This part of the noting in Punjabi is read over and

perused when the file was placed before the Court. Counsel for the

petitioner says that this noting was not brought to the notice of the

petitioners and they are, thus, taken by surprise.

I have heard learned counsel for the parties.

Mr.M.L.Sarin has made a prayer, more in the nature of a

mercy to say that the petitioners (in all the three writ petitions), who

are the allottees of evacuee property and displaced persons would

need a sympathetic consideration of these cases. Submission,

primarily is that the decision taken by Financial Commissioner,
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 6 }:

Revenue, was held in abeyance and so would need to be

implemented with directions to the Government to allot the land at

the enhanced price as ordered by the then Financial Commissioner

(Revenue). The respondents ofcourse would stoutly oppose the

prayer by pointing out that the decision which was cancelled would

not call for implementation and that the land, which is sub-urban is

now required to be put to auction and hence, can not be allotted.

The petitioners herein are victim of their own unwise

decision to challenge the increase in cut and, thus, have put

themselves to a great loss. They now plead for mercy to seek

equivalence with those who were wise enough to deposit the amount

and accept the offer made by accepting allotment.

It clearly comes out that the allotment, if any in favour of

the petitioner, was cancelled. This cancellation of allotment was

challenged by the petitioner and others by filing various Writ Petitions

No.2671-2690 of 1965. The petitioners remained unsuccessful. They

took the matter to Supreme Court but the cancellation was up-held.

The petitioners, thus, can not rely upon the allotment which was

made in their favour and was cancelled, which was up-held upto

Supreme Court. The petitioners do not have any right in this regard.

They are taking support from the observation made by Hon’ble

Supreme Court which lead to passing of an order by Financial

Commissioner (Revenue). No doubt, the Financial Commissioner,

Revenue, did make an order for charging some enhanced rate but it

is now revealed that this order has been cancelled. On the basis of

this order, no communication was made to the petitioners. In fact,

Annexure P-1 appears to be a noting and it is not claimed that any
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 7 }:

communication has followed thereafter to the petitioners. It is not

made out, how this came in the hands of the petitioners. This was

subsequently cancelled. Where would be the need to communicate

cancellation, when no order of allotment was sent to the petitioners. I

need not go into the right of the petitioners to receive communication

about decision taken in the form of notings. No offer on the basis of

order, Annexure P-1, was ever made to the petitioners. Reliance on

Annexure P-2, which was a decision taken by the Government and

communicated to the Deputy Commissioner, Jalandhar, would also

not help as concededly, this was never addressed to the petitioners.

It now transpires that decision, Annexure P-1, of the Financial

Commissioner, apparently was not held in abeyance as made out

but was superseded as per showing by the petitioners. The noting

now placed before the Court would not leave any doubt in this regard

and show that decision then was taken to cancel the decision taken

by the Financial Commissioner, Revenue. Internal notings are not to

be communicated as per settled position of law. No offer was made

to the petitioner on the basis of a decision, Annexure P-1.

Concededly, order Annexure P-1, even if passed by Financial

Commissioner, Revenue, was not communicated to the petitioner for

implementation. Accordingly, no right would accrue in favour of the

petitioner, for which direction need to be issued, as prayed.

It may not be possible to issue direction as sought by the

petitioner. The allotment in favour of the petitioner stood cancelled

long long ago. They had raised challenge against this cancellation

but remained unsuccessful upto Hon’ble Supreme Court. The matter

can not now again be allowed to be re-opened. It will not be within
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 8 }:

the scope of writ Court to re-open this matter and issue fresh

direction either for allotment or for accepting the enhanced amount

as determined by the Financial Commissioner, Revenue. The internal

decision, which was taken but not communicated, would not create

any right in favour of the petitioner, which could be enforced through

writ Court.

While dismissing the appeals filed by the petitioners,

Hon’ble Supreme Court had observed:-

“In dealing with a matter of this type that broad

perspective of the scheme has to be kept in view. People

who were uprooted from Pakistan and became displaced

persons were to be compensated on the footing that they

had left behind lands in Pakistan and lands of people who

had left India for Pakistan had become evacuee property

and the compensation to the displaced persons could be

by settlement of such lands. In a case of this type no one

can look for undue enrichment. Once it is held as a fact

that the properties are semi-urban and admittedly this had

not been kept in view when original allotment had been

made, it should always be possible to make an

adjustment. Such an adjustment is just and fair. It is

appropriate to take note of a very significant feature,

namely, there were 117 allottees in these villages which

were declared sub-urban and 97 of these allottees paid

the extra premium, and were allowed to acquire the entire

land given to them. Twenty allottees including the

appellant took steps to challenge the decision regarding
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 9 }:

levy of premium as also cut in the allotments. There is no

justification as to why any differential treatment should be

shown to these twenty allottees particularly when all the

117 allottees stood at par so far as the application of the

decision contained in the order dated February 3, 1952 is

concerned. We do not know if under the changed

circumstances the same benefit is available to be

extended to the appellant now, viz., permitting him to pay

the extra premium at present. More than 30 years have

passed and with the passage of such a length of time

changed situations must have come to prevail. We see no

justification to accept the appeal and allow the benefit

claimed by the appellant. But our dismissal of the appeal

should not preclude the respondent authorities from

entertaining the offer by the appellant, if made, to pay the

extra premium and/or any further demand with a view to

obtaining a lawful settlement of the entire property without

cut on the basis of the initial allotment. We make no order

for costs in this appeal.”

After observing that displaced persons are to be

compensated, it is noticed that the fact that the properties allotted

were semi-urban was not kept in view. Accordingly, the Court has

advocated for seeing the possibility of adjustment, which should be

just and fair. Still, the Court declined to extend the benefit of paying

extra premium as prayed. Hon’ble Supreme Court still did not

preclude the authorities from entertaining the offer from the

petitioners. Though the petitioners may not have right to seek
CIVIL WRIT PETITION NO.3462 OF 1998 :{ 10 }:

directions as prayed but still it would be open for the respondents to

consider if they so wish, to make any reasonable just and fair offer.

One such suggestion, which was made by the Court during the

course of hearing was to offer this land to the petitioners at the price

determined by way of open auction. This was, however, not

acceptable to the petitioners. Respondents, if still want to show any

sympathetic consideration, may do so. The respondent-Government

would be at liberty to take any appropriate action in accordance with

law.

The writ petitions are, however, dismissed. No order as to

costs.

January 21,2009                           ( RANJIT SINGH )
khurmi                                         JUDGE