Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 516 (PNJ)

Mansa Ram v. Raj Pal

2004-05-04

GURBINDER CHAHAL

body2004
ORDER Gurbinder Chahal, F.C. - These are two revision petitions filed separately under section 15(1) of the Punjab Package Deal Properties (Disposal) Act 1976, one by 1). Mansa Ram, S/o Hoshiara Ram, 2) Sham Lal, 3) Gurdial 4) Ram Dayal all sons of Hans Raj S/o Hoshiara Ram against Sh. Raj Pal S/o Sadhu Ram and the other has been filed by Raj Pal son of Sadhu Ram (through his legal heir Pushpa Devi (widow), Satish Pal, Rajesh Kumar, Pardeep Saini (Sons) v. Swaran Kaur etc. against the orders dated 20.11.2001 passed by the Commissioner, Jalandhar Division, Jalandhar. 2. Brief facts of the case, are that Raj Pal submitted two applications for allotment of rural evacuee land on the basis of his continuous possession. The first application was 9.5.88 for 5K-19M and 2nd application was for 1K-5M. The Tehsildar (Mahal)-cum-Sales Officer, Pathankot vide his order dated 27.1.89 allotted 4K-14M of land with regard to first application and with regard to 2nd application, the Tehsildar vide his order dated 29.4.91 allotted 1K-5M land to Raj Pal, Mansa Ram etc. and Swaran Kaur etc. challenged these two orders in revision petition before the Chief Sales Commissioner, Gurdaspur in 1998 who accepted the same vide his order dated 17.5.99 and set aside the allotment order dated 27.1.89 and 29.4.91 of the Tehsildar Sales, Pathankot. Raj Pal further challenged these orders before Commissioner, Jalandhar Division, Jalandhar who, vide his single order dated 20.11.2001 accepted his one revision petition regarding 4K-14M and rejected the other petition with regard to 1K-5M. Aggrieved by these orders Mansa Ram etc. have filed MR 3/2002 and Raj Pal through his legal heirs filed M.R. 35/2002. 3. In the first petition No. M.R. 3/2002, Mansa Ram etc. v. Raj Pal etc., 2004(3) R.C.R.(Civil) 510 counsel for petitioners (Mansa Ram etc.) has vehemently argued that the petitioners have been actually cultivating the land in question (4K-14M) for the last 40 years and the A.C.-II grade, Pathankot also categorically upheld this contention vide his order dated 24.9.98; that Raj Pal, respondent obtained allotment illegally by concealing and misrepresenting the material facts that he was not a Govt. servant. Actually at the time of allotment Raj Pal was serving as Centre Head Teacher and retired on 30.6.96 as per certificate issued by Block Primary Education Officer, Narot Jaimal Singh, Distt. Gurdaspur; that as per Govt. instructions and judgment 1998(2) LLR page 688, Govt. servant. Actually at the time of allotment Raj Pal was serving as Centre Head Teacher and retired on 30.6.96 as per certificate issued by Block Primary Education Officer, Narot Jaimal Singh, Distt. Gurdaspur; that as per Govt. instructions and judgment 1998(2) LLR page 688, Govt. servant is not allowed to purchase the Govt. land; that the illegal and void order can be set aside at any time. Therefore, he has prayed that the impugned order of the Commissioner, Jalandhar and of Tehsildar, Pathankot be set aside and orders of Chief Sales Commissioner, Gurdaspur be restored. 4. Counsel for petitioners further submitted that the affidavit attached to application dated 9.5.88 for allotment was not signed by Raj Pal hence that application could not be termed as valid application in the eyes of law and allotment on the basis of invalid application should be treated as illegal allotment. 5. On the other hand counsel for the respondent, Raj Pal contended that the allotment orders could have been challenged with 30 days by the petitioner but they have chosen to file the petition after 7 years, that he has been held to be in possession of the said land by the Civil Court vide orders dated 22.7.97; that he had applied and was allotted land on 27.1.89 whereas the condition on Govt. servant for taking prior permission from the Distt. Collector was imposed vide amendment dated 3.9.91, hence prior permission of Distt. Collector was not necessary. Accordingly, the allotment of 4K-14M is perfectly valid, therefore, petition of the petitioner may be dismissed. 6. In the 2nd case No. M.R. 35/2002 titled as Raj Pal etc. v. Swaran Kaur etc. the counsel for Raj Pal etc. submitted that allotment was made in favour of Raj Pal on 29.4.91 after due verification and compliance with the provisions of the Act and Rules. 6. In the 2nd case No. M.R. 35/2002 titled as Raj Pal etc. v. Swaran Kaur etc. the counsel for Raj Pal etc. submitted that allotment was made in favour of Raj Pal on 29.4.91 after due verification and compliance with the provisions of the Act and Rules. The challenge to the allotment order after 9 years was devoid of any merit in law and the same being hit by the Principal of delay and laches as also limitation; that Raj Pal originally applied vide his application dated 9.5.88 seeking allotment of 5K-19M of the land of which he was in cultivation possession as per jamabandi for the year 1986-87 but inadvertently the allotment was made only of 4K-14M vide order dated 27.1.89 instead of 5K-19M, that the petitioner (Raj Pal) approached the authorities to correct the mistake in allotment and sought allotment of the area originally applied, which was under the cultivating possession of the petitioner and the request of the petitioner was acceded to vide order dated 29.4.91 by making allotment of remaining 1K-5M, the later order was in a way an order of making up the deficiency in allotment which occurred while making allotment vide order dated 27.1.89. The authorities below have committed a serious mistake in holding that the subsequent application upon which later allotment was made was unsigned and was not supported by requisite affidavit, this approach of the authorities below is totally unwarranted and misdirected, there was no second application seeking allotment. 7. The Ld. counsel for Swaran Kaur etc. stated that land in question was transferred to Raj Pal by Tehsildar (M), Pathankot illegally and arbitrarily on the basis of undated, unsigned application. The affidavit on the application was also neither signed by Raj Pal nor attested by competent authority, therefore, that is not an application in the eyes of law. The land in question was got transferred by Raj Pal illegally and fraudulently by means of fraud concealing/misrepresenting the material facts. He made false statement on 6.3.91 that he was not a Govt. servant, whereas he was a Govt. servant at the time of allotment; that the respondent (Swaran Kaur etc.) have been in actual cultivating possession of the suit land and the entries of khasra girdwaries were also corrected in her favour of by A.C.-III Pathankot from the illegal entries of Raj Pal. servant, whereas he was a Govt. servant at the time of allotment; that the respondent (Swaran Kaur etc.) have been in actual cultivating possession of the suit land and the entries of khasra girdwaries were also corrected in her favour of by A.C.-III Pathankot from the illegal entries of Raj Pal. Therefore, the counsel for respondent prayed that the petition be dismissed. 8. I have heard the learned counsel for both the parties and with their assistance have gone through the entire record. The Primary contention raised by the learned counsel for Mansa Ram etc. petitioners in MR No. 3/2002 and Swaran Kaur etc. respondent in MR. No. 35/2002 is that Raj Pal got the land in dispute transferred in his name by means of fraud, false representation/concealment of material facts regarding his service. In support of his argument he quoted the following lines from the statement given by Raj Pal at the time of allotment :- Even he got the above statement confirmed by Panchayat (Sarpanch; Gram Panchayat) Dhobra (Pathankot). They have written :- Whereas he was a Centre Head Teacher and retired as such on 30.6.96 as per certificate issued by the Block Primary Education Officer, Narot Jaimal Singh, Distt. Gurdaspur. The fact that he was a teacher was never denied by Raj Pal before this court. In this way Raj Pal got the land in dispute transferred by means of false representation/concealment of material facts. Therefore, the same is liable to be cancelled straightaway. 9. When the point that a Govt. employee has to seek prior permission of the Deputy Commissioner before allotment of evacuee land, was raised he immediately defended this action by stating that a Govt. employee who was allotted land prior to 1991 need not take the approval of Deputy Commissioner. At that time he forgot that he got the land allotted by claiming that he was not Govt. employee. The counsel for Raj Pal when confronted with the provision of conduct rule as per which the Govt. employee is bound to take prior approval of Government before acquiring immoveable property, could not rebut it. Counsel for Mansa Ram and Swaran Kaur etc. also referred, a case cited as 1988(2) ILR-668 wherein it has been held :- "Displaced Persons (C&R) Act 1954 Section 33 - Govt. servant in unauthorised possession to property - Can he be allowed benefit of transfer - No - Govt. Counsel for Mansa Ram and Swaran Kaur etc. also referred, a case cited as 1988(2) ILR-668 wherein it has been held :- "Displaced Persons (C&R) Act 1954 Section 33 - Govt. servant in unauthorised possession to property - Can he be allowed benefit of transfer - No - Govt. being custodian of public properties as trustee for larger community of citizen, no functionary of Govt. can be allowed to encroach upon Govt. properties and therefore, transfer of proprietary right." Though this pertains to the provision of Displaced Persons (C&R) Act, 1954 but it is a very relevant case here also. As per above judgment Raj Pal being Govt. employee, cannot be allowed the benefit of transfer of the disputed land. Raj Pal contended that the allotment order could have been challenged within 30 days by Mansa Ram, Swaran Kaur etc. but they have chosen to file the petition after 7 years; In rebuttal counsel for Mansa Ram and Swaran Kaur has submitted that illegal and void order can be set aside at any time as per provisions of the Act. I agree with this contention. 10. I have also examined the applications submitted by Raj Pal for allotment of the disputed land. First application S. No. 7410 is dated 9.5.88 signed by Raj Pal but the affidavit on that application, though attested by Oath Commissioner yet has not been signed by Raj Pal himself, therefore, this is incomplete application and it cannot be treated as valid application in the eyes of law and on the basis of this invalid application the land should not have been allotted to Raj Pal. Similarly, 2nd application (S. No. 16777) is undated, unsigned and unattested and I fail to understand as to how on the basis of this very application the land measuring 1K-5M was allotted to Raj Pal. Ld. counsel for Raj Pal has stated that there was no 2nd application for seeking allotment. Whereas, as per record available in Tehsildar (Sales) file, there were two separate applications for allotment and in 2nd application he (Raj Pal) mentioned the area of 4K-14M already allotted to him. Therefore, it is wrong that there was no 2nd application for allotment. The counsel for Raj Pal also referred to the decision of Civil Court (Civil Judge, Sr. Whereas, as per record available in Tehsildar (Sales) file, there were two separate applications for allotment and in 2nd application he (Raj Pal) mentioned the area of 4K-14M already allotted to him. Therefore, it is wrong that there was no 2nd application for allotment. The counsel for Raj Pal also referred to the decision of Civil Court (Civil Judge, Sr. Division, Pathankot) dated 18.2.98 whereby it was held that Raj Pal is owner and in possession of the suit land and the defendants cannot dispossess him forcibly from the suit land except in due course of law. That the Civil Court had even otherwise no jurisdiction in the matter being barred by Section 16 of the Act. Hence, Civil Courts decision is not binding. 11. As per above findings Raj Pal got the land in question allotted by misrepresenting and concealing the material facts regarding Govt. service, his applications for allotment were not valid applications in the eyes of law, illegal and void order can be set aside at any time. 12. Therefore, in view of the above findings the revision petition, in Ist case M.R. 3/2002, of Mansa Ram etc. is accepted and in the 2nd petition, i.e. M.R. 35/2002 of the revision petition of Raj Pal is rejected. Impugned order dated 27.1.89 and 29.4.81 of Tehsildar Sales Pathankot and conveyance deed dated 29.5.91 and 10.1.92 respectively issued in favour of Raj Pal with respect to land measuring 4K-14M and 1K-5M are set aside and as prayed for the orders dated 17.5.1999 passed by the Chief Sales Commissioner, Gurdaspur are upheld. Announced. Order accordingly.