{"id":171623,"date":"2009-06-04T00:00:00","date_gmt":"2009-06-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shashi-kumar-and-others-vs-the-financial-commissioner-on-4-june-2009"},"modified":"2018-04-25T00:26:29","modified_gmt":"2018-04-24T18:56:29","slug":"shashi-kumar-and-others-vs-the-financial-commissioner-on-4-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shashi-kumar-and-others-vs-the-financial-commissioner-on-4-june-2009","title":{"rendered":"Shashi Kumar And Others vs The Financial Commissioner on 4 June, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Shashi Kumar And Others vs The Financial Commissioner on 4 June, 2009<\/div>\n
CIVIL WRIT PETITION NO.8788 OF 2009                                   :{ 1 }:\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                 CHANDIGARH\n\n\n                    DATE OF DECISION: JUNE 04, 2009\n\n\n\nShashi Kumar and others\n\n                                                              .....Petitioners\n\n                           VERSUS\n\nThe Financial Commissioner, Haryana, Chandigarh and others\n\n\n\n                                                              ....Respondents\n\n\n\nCORAM:- HON'BLE MR.JUSTICE RANJIT SINGH\n\n1. Whether Reporters of local papers may be allowed to see the judgement?\n2. To be referred to the Reporters or not?\n3. Whether the judgment should be reported in the Digest?\n\n\n\nPRESENT:             Mr. R. D. Bawa, Advocate,\n                     for the petitioners.\n                           ****\n\nRANJIT SINGH, J.\n<\/pre>\n
             This order will dispose of six Civil Writ Petition Nos.8788<\/p>\n
of 2009 (Shashi Kumar and others                        Vs.      The Financial<\/p>\n
Commissioner, Haryana, Chandigarh and others), 8815, 8835, 9975<\/p>\n
and 8921 of 2009 (Shashi Kumar Vs. The Financial Commissioner,<\/p>\n
Haryana, Chandigarh and others), 8824 of 2009 (Shashi Kumar and<\/p>\n
another Vs. The Financial Commissioner, Haryana, Chandigarh and<\/p>\n
others). Facts are common and common question of law have been<\/p>\n
raised in these petitions.\n<\/p>\n
 CIVIL WRIT PETITION NO.8788 OF 2009                           :{ 2 }:\n<\/p>\n
           Challenge in these writ petitions is to the order dated<\/p>\n
19.3.2008 (Annexure P-6) and order dated 10.2.2009 (Annexure P-<\/p>\n
7).    A mutation done in favour of the respondent-tenants on<\/p>\n
24.11.1986 was undone by the Collector on 17.12.2007, which order<\/p>\n
is set-aside by the Commissioner vide Annexure P-6 and the same is<\/p>\n
upheld by Financial Commissioner through order, Annexure P-7.<\/p>\n
       Reference to unnecessary facts as contained in the writ<\/p>\n
petition may not be needed as the challenge in the present petitions<\/p>\n
is to orders, Annexures P-6 and P-7, which relate to mutation in<\/p>\n
favour of the tenants. Accordingly, a mention to facts, in brief,<\/p>\n
relevant to decide the challenge raised in the petitions is being made,<\/p>\n
leaving the unnecessary details disclosed in the petitions.<\/p>\n
              The common facts in all these petitions, as would<\/p>\n
emerge from Civil Writ Petition No.8788 of 2009 are that                Om<\/p>\n
Parkash (now deceased) was a big land owner, having lands in<\/p>\n
different villages. The surplus area case of said Om Parkash is in<\/p>\n
progress since long and had passed through various stages. Large<\/p>\n
portion of land held by said Om Parkash was acquired by the<\/p>\n
Government whereas some other portions were purchased by old<\/p>\n
tenants under Section 18 of the Punjab Security of Lands Tenure Act<\/p>\n
(for short, “the Tenures Act”). Om Parkash died on 18.7.1992 during<\/p>\n
the pendency of his surplus proceedings. He was succeeded by his<\/p>\n
L.Rs, which include the petitioners.\n<\/p>\n
           During the pendency of the surplus proceedings, 6<\/p>\n
applications were filed by the tenants (including Surta, Respondent<\/p>\n
No.4) of village Galoli under Section 18 of the Tenures Act. These<\/p>\n
applications were allowed on 29.1.1969. Mutation of this land came
\n CIVIL WRIT PETITION NO.8788 OF 2009                         :{ 3 }:\n<\/p>\n
to be sanctioned in favour of the tenants (except respondent No.4)<\/p>\n
on the basis of order dated 29.1.1969 vide which the purchase<\/p>\n
applications were allowed. The land owner made an application for<\/p>\n
cancellation of the said mutation on the ground that the order dated<\/p>\n
29.1.1969 was set-aside by the Collector on 23.5.1969. The Collector<\/p>\n
cancelled the mutation on 21.9.1981 and mutated the land in the<\/p>\n
name of land owners. Tenants then filed an appeal against the same,<\/p>\n
which was accepted by the Collector on 12.4.1983 and the case was<\/p>\n
remanded to Assistant Collector to decide the cases of mutation<\/p>\n
afresh after hearing both the parties. On 15.7.1983, the Assistant<\/p>\n
Collector again decided the case of mutation in favour of the land<\/p>\n
owners. Appeal against this order was dismissed by the Collector on<\/p>\n
31.10.1983. The petitioners claim that this order has become final as<\/p>\n
it was never challenged. This assertion of the petitioners does not<\/p>\n
seem to be borne out from the facts. It appears that the revision was<\/p>\n
filed against this order before the Commissioner. On 6.2.1985, this<\/p>\n
revision was forwarded by the Commissioner            to the Financial<\/p>\n
Commissioner, Haryana, with recommendation that the mutation in<\/p>\n
respect of the land in dispute be sanctioned in favour of the tenants<\/p>\n
or the Government and not in favour of the land owners. The<\/p>\n
Financial Commissioner vide his order dated 20.5.1987 had<\/p>\n
accepted these recommendations. The response of the petitioners is<\/p>\n
that these orders relate to the land situated in village Mandebri.<\/p>\n
           The     Assistant Collector IInd Grade, however, had<\/p>\n
sanctioned the mutation of land in favour of the tenants on<\/p>\n
24.11.1986 on the basis of an order dated 29.1.1969 passed on the<\/p>\n
application filed by the tenants under Section 18 of the Tenures Act.\n<\/p>\n
 CIVIL WRIT PETITION NO.8788 OF 2009                       :{ 4 }:\n<\/p>\n
The plea is that order dated 29.1.1969 has already been set-aside on<\/p>\n
23.5.1969. The petitioners would, thus, urge that this mutation was<\/p>\n
done ignoring the order dated 23.5.1969. They would, thus, term the<\/p>\n
order passed by the Assistant Collector to be arbitrary and the one<\/p>\n
which was passed at their back. The petitioners contend that when<\/p>\n
they learnt about this mutation, they filed an appeal on 30.1.1987,<\/p>\n
which was adjourned sine-die on 10.2.1988 till the decision of surplus<\/p>\n
area case of the petitioners. The petitioners have averred that an<\/p>\n
application for restoration of this appeal was accepted on 9.7.1992<\/p>\n
but the order could not be dictated and the incumbent was<\/p>\n
transferred. However, there is no proof available on record in support<\/p>\n
of these averments. The matter has, thus, remained pending and in<\/p>\n
the meanwhile land owner, Om Parkash, died on 18.7.1992.<\/p>\n
           The petitioners also relied upon a family settlement<\/p>\n
reached between the family. On the basis of this settlement, a civil<\/p>\n
suit was filed in the Civil Court, which was decreed on 10.8.1992.<\/p>\n
The family settlement was confirmed through decree as per which<\/p>\n
this land in villages Galoli and Mandebri came to the share of the<\/p>\n
present petitioners. This decree, however, is not placed on record.<\/p>\n
           The petitioners thereafter approached the Collector for<\/p>\n
restoration of their appeals, which had been adjourned sine-die. The<\/p>\n
Collector restored the appeals vide his order dated 28.1.2003. The<\/p>\n
tenants then filed appeals before Commissioner, Ambala Division,<\/p>\n
Ambala, which were dismissed on 27.8.2003. The appeal was then<\/p>\n
heard and the Collector set-aside the mutation dated 24.11.1986 vide<\/p>\n
his order dated 17.12.2007. The petitioners also filed a civil suit,<\/p>\n
seeking declaration to the effect that order dated 24.11.1986 was
\n CIVIL WRIT PETITION NO.8788 OF 2009                            :{ 5 }:\n<\/p>\n
without jurisdiction and void. The necessity to file this suit, as per the<\/p>\n
petitioners, arose because the tenants, who were recorded as<\/p>\n
owners as per mutation dated 24.11.1986, started transferring the<\/p>\n
land in question through different modes. This suit was also decreed<\/p>\n
on 3.5.2007 and the mutations were held illegal, null and void.<\/p>\n
               The mutation entries made on 24.11.1986, which were<\/p>\n
set-aside through order dated 17.12.2007, were challenged in an<\/p>\n
appeal. The appeal was allowed and the order dated 17.12.2007 was<\/p>\n
set-aside on 19.3.2008. Copy of this order is annexed as Annexure<\/p>\n
P-6. This order was challenged by the petitioner-land owners by filing<\/p>\n
a   revision     petition,   which   was   dismissed   by   the   Financial<\/p>\n
Commissioner on 10.2.2009 (Annexure P-7). These orders are, thus,<\/p>\n
challenged through the present writ petition.\n<\/p>\n
               It is seen that the litigation in the present case is pending<\/p>\n
since the year 1960. The respondent-tenants are purchasers of the<\/p>\n
land and are old tenants. Their applications for purchase were<\/p>\n
allowed on 29.1.1969. Though the petitioners claim that this order<\/p>\n
was set-aside but it seems that the case was only remanded to the<\/p>\n
Assistant Collector without any specific direction setting-aside the<\/p>\n
applications of sale which were allowed vide order dated 29.1.1969.<\/p>\n
The case appears to have been remanded to afford opportunity to<\/p>\n
the parties to pursue their case as the value of the land in dispute<\/p>\n
had not been correctly assessed. In this background, it was observed<\/p>\n
that the Assistant Collector Ist Grade should decide the case by<\/p>\n
taking full facts of the land in dispute as per the register of mutation<\/p>\n
and after conducting thorough enquiry regarding reservation and<\/p>\n
selection. These observations appear to have been made for
\n CIVIL WRIT PETITION NO.8788 OF 2009                         :{ 6 }:\n<\/p>\n
assessing the value of the land correctly.\n<\/p>\n
           Further facts, which have been noticed in the impugned<\/p>\n
order are that this Court in Civil Writ Petition No.873 of 1987 appears<\/p>\n
to have remanded the case to the Financial Commissioner. The<\/p>\n
Financial Commissioner, Haryana, thereafter vide his order dated<\/p>\n
16.9.1995 had set-aside the order dated 6.8.1979 passed by Special<\/p>\n
Collector and remanded the case back to Special Collector for<\/p>\n
deciding the same afresh. Thereafter, the Special Collector vide his<\/p>\n
order dated 29.9.1997 declared 119 standard acres 14 units of land<\/p>\n
to be under the old tenants and further declared 30 standard acres<\/p>\n
area of land owners as permissible area. The remaining land was<\/p>\n
considered to be falling under the tenants permissible area. Revision<\/p>\n
filed against this order passed by the Special Collector was<\/p>\n
dismissed on 12.10.1999. The Financial Commissioner dismissed<\/p>\n
the revision against the same on 24.3.2000 and thereafter the<\/p>\n
tenants filed a Civil Writ Petition No.10684 of 2001 in this Court<\/p>\n
against the orders dated 29.9.1997, 12.10.1999 and 24.3.2000. This<\/p>\n
Writ Petition is still pending. Thus, as on date 119 standard acres<\/p>\n
and 14 unit area of the land owners has been declared surplus. It is<\/p>\n
on this basis that the Assistant Collector IInd Grade had sanctioned<\/p>\n
the mutation dated 24.11.1986 in favour of the tenants. Ignoring all<\/p>\n
these facts, the Collector had allowed the appeals of the land owners<\/p>\n
through his order dated 17.12.2007 and had cancelled the mutation<\/p>\n
sanctioned by the Assistant Collector on 24.11.1986. While<\/p>\n
cancelling this mutation in favour of the tenants, the plea on behalf of<\/p>\n
the land owners wrongly put that order dated 31.10.1983 had<\/p>\n
become final was taken into consideration. This, as already noticed,
\n CIVIL WRIT PETITION NO.8788 OF 2009                       :{ 7 }:\n<\/p>\n
had been challenged, leading to an order dated 20.5.1987.<\/p>\n
           The petitioners had also relied upon a decree passed by<\/p>\n
the Civil Court on the basis of family compromise. The respondent-<\/p>\n
tenants, however, would contend that the decree passed by the Civil<\/p>\n
Court on the basis of family partition was wrongly taken into<\/p>\n
consideration for cancelling the mutation sanctioned in favour of the<\/p>\n
tenants. Plea is that the land owners can never become owners of<\/p>\n
the surplus land on the basis of the family compromise, which was<\/p>\n
the basis of the Civil Court decree. In fact, the tenants had<\/p>\n
challenged the decree of family settlement dated 10.8.1992. This<\/p>\n
suit, however, was dismissed on 8.5.2007.\n<\/p>\n
           The whole basis of the arguments advanced by counsel<\/p>\n
for the petitioners is by ignoring the order declaring 119 standards<\/p>\n
acres and 14 units of land to be tenants permissible area. The writ<\/p>\n
petition against these orders, as already noticed, is pending before<\/p>\n
this Court and this Court has passed an order staying the<\/p>\n
dispossession from the land in dispute . The proceedings in the case<\/p>\n
titled Om Parkash etc. Vs. Surta etc. relating to the mutation of the<\/p>\n
land in dispute were adjourned sine die by the Collector on 10.2.1988<\/p>\n
with the consent of the parties. The proceedings in regard to<\/p>\n
mutation No.532 were stayed by Assistant Collector Ist Grade vide<\/p>\n
his order dated 19.3.2002 till the decision of the Civil Writ Petition<\/p>\n
Pending before this Court. Ignoring these facts, the Collector allowed<\/p>\n
the mutation on the basis of the family compromise and the decree<\/p>\n
passed by the Civil Court by cancelling the mutation in favour of the<\/p>\n
tenants made on 24.11.1986. Since the High Court is yet to decide<\/p>\n
the matter regarding the permissible         area and the tenants
\n CIVIL WRIT PETITION NO.8788 OF 2009                         :{ 8 }:\n<\/p>\n
permissible area and the Civil Court has no jurisdiction to decide the<\/p>\n
matter regarding surplus, it was observed that the Collector was not<\/p>\n
justified to restore the mutation cases and cancel the same without<\/p>\n
waiting for the decision on the above issues. The order of the<\/p>\n
Collector was, thus, rightly found to be illegal and set-aside. There<\/p>\n
has been no order in favour of the landlords, which can entitle them<\/p>\n
to retain the ownership over the land. The land declared surplus even<\/p>\n
as per the law would vest in the State and can not remain in the<\/p>\n
names of land owners. The Financial Commissioner accordingly<\/p>\n
found that the case has rightly been adjudicated upon by the<\/p>\n
Commissioner and, thus, did not find any justification to interfere with<\/p>\n
this order.\n<\/p>\n
              The reference made by counsel for the petitioners to the<\/p>\n
observations made by this Court in Onkar and others Vs. Birbal<\/p>\n
and others,1987 PLJ 155 in regard to the presumption in favour of<\/p>\n
the latter entries, which are rebuttable one and would stand rebutted<\/p>\n
if these are found to be unauthorisedly and mistakenly made without<\/p>\n
material to justify the change, apparently would not help him in view<\/p>\n
of the facts as noticed above. The counsel then referred to Jagjit<\/p>\n
Singh Vs. State Election Commission Punjab and others, 2003<\/p>\n
(2) PLR 396 to urge that Civil Court decree even if passed without<\/p>\n
jurisdiction was required to be set-aside before it could be ignored<\/p>\n
would not apparently apply in this case as this was not the only<\/p>\n
basis for which the Commissioner and Financial Commissioner have<\/p>\n
interfered with the order passed by the Collector. It could not be<\/p>\n
disputed by the counsel for the petitioners that the Civil Court did not<\/p>\n
have the jurisdiction to decide the case of mutation entries.\n<\/p>\n
 CIVIL WRIT PETITION NO.8788 OF 2009                         :{ 9 }:\n<\/p>\n
Accordingly, no case for interference in the impugned orders is made<\/p>\n
out.\n<\/p>\n
           The writ petitions are, thus, dismissed in limine.<\/p>\n
June 04, 2009                                  ( RANJIT SINGH )\nkhurmi                                              JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Shashi Kumar And Others vs The Financial Commissioner on 4 June, 2009 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:- […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-171623","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nShashi Kumar And Others vs The Financial Commissioner on 4 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shashi-kumar-and-others-vs-the-financial-commissioner-on-4-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shashi Kumar And Others vs The Financial Commissioner on 4 June, 2009 - 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