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2004 DIGILAW 610 (PNJ)

Bijay Singh v. Financial Commissioner Revenue and Secretary to Government Punjab Rehabilitation Department

2004-05-24

G.S.SINGHVI

body2004
JUDGMENT G.S. Singhvi, J. - Bijay Singh (deceased) (hereinafter described as the petitioner), who purchased land measuring 178 Kanals 10 Marlas comprised in Khata No. 75/114, Khasra Nos. 797/15-10, 798/59-14, 800/17-0, 793/19-17, 1050/794 (3-1) and 795/9-2 min situated in the revenue estate of Village Bassi Kikran, District Hoshiarpur from Buta Singh son of Wadhawa Singh through his alleged power of attorney holder-Bhagat Singh vide sale-deed dated 15.3.1966 has filed this petition for quashing orders dated 31.5.1976 (Annexure P.1), 10.2.1978 (Annexure P.2), 2.1.1979 (Annexure P.3) and 4.9.1984 (Annexure P.4) passed by Assistant Registrar-cum-Managing Officer, Rehabilitation Department, Jalandhar (respondent No. 4); Assistant Settlement Commissioner, Jalandhar, exercising the powers of Settlement Commissioner, Punjab (respondent No. 3); Chief Settlement Commissioner, Punjab Rehabilitation Department (respondent No. 2); and Financial Commissioner, Revenue and Secretary to Government, Punjab, Rehabilitation Department (respondent No. 1) respectively under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short, the 1954 Act). 2. During the pendency of the writ petition, the petitioner died and his legal representatives were brought on record vide order dated 5.2.2002 passed in Civil Miscellaneous No. 24531 of 2001. 3. For deciding the issues raised in the writ petition, I may briefly notice the facts : 4. Buta Singh son of Wadhawa Singh, who owned land in Pakistan in Village Khan-Heri/212 and Tehari/208, Tehsil Pasrur, District Sialokot did not migrate to India at the time of partition and stayed back in Pakistan. However, Bhagat Singh, who was Numberdar of Village Khuda, Tehsil and District Hoshiarpur, fabricated the documents and got land measuring 12-13/14 SAs allotted in the name of Buta Singh in Village Khuda/395, Tehsil and District Hoshiarpur in lieu of the land measuring 8-5-3/4 SAs in Village Bassi Kikran/365, District Hoshiarpur in lieu of the land left in Village Tehari. One Jiwan Dass filed complaint dated 8.1.1960 alleging that Buta Singh had never migrated to India and, therefore, allotment made in his name on the basis of bogus documents prepared by Bhagat Singh was liable to be cancelled. Thereupon, a reference was made to Pakistan authorities to confirm whether Buta Singh was still living there. One Jiwan Dass filed complaint dated 8.1.1960 alleging that Buta Singh had never migrated to India and, therefore, allotment made in his name on the basis of bogus documents prepared by Bhagat Singh was liable to be cancelled. Thereupon, a reference was made to Pakistan authorities to confirm whether Buta Singh was still living there. Deputy Commissioner, Sialkot vide his letter dated 5.4.1961 (Annexure R.1) addressed to the Officer on Special Duty, Central Record Office, West Pakistan, Lahore, a copy of which was, later on, sent to the authorities of the Rehabilitation Department, Punjab informed that Buta Singh is still alive and is putting up in Village Khan-Heri, Tehsil Pasrur and that he is in possession of his landed property in the said village. On receipt of copy of letter Annexure R.1 dated 5.4.1961, respondent No. 4, vide his order dated 3.1.1962, cancelled the allotment of land made in the name of Buta Singh son of Wadhawa Singh in Village Khuda. At that time, he did not cancel the allotment of land in Village Bassi Kikran because the complaint of Jiwan Dass was only in relation to the allotment made in Village Khuda. However, when the fraudulent nature of the allotment procured in the name of Buta Singh son of Wadhawa Singh in Village Bassi Kikran was discovered, Managing Officer cancelled the same vide order dated 21.9.1971. 5. In the meanwhile, the petitioner purchased the land allotted in the name of Buta Singh in Village Bassi Kikran vide sale-deed dated 15.3.1966 through his alleged power of attorney holder, namely, Bhagat Singh. After cancellation of the allotment made in the name of Buta Singh, the petitioner filed an appeal before respondent No. 3 who, vide order dated 26.6.1973, remanded the case to respondent No. 4. The latter passed order dated 16.5.1974 and maintained the cancellation of allotment made in the name of Buta Singh by observing that the same had been obtained by fraud. The petitioner then filed an application for permission to purchase the land by claiming that the was a bona fide transferee of the land. The same was rejected by respondent No. 4 vide order dated 31.5.1976 (Annexure P.1). 6. The petitioner then filed an application for permission to purchase the land by claiming that the was a bona fide transferee of the land. The same was rejected by respondent No. 4 vide order dated 31.5.1976 (Annexure P.1). 6. The appeal filed by the petitioner under Section 22 of the 1954 Act was dismissed by respondent No. 3 vide order dated 10.2.1978 (Annexure P.2) and revision petition filed by him under Section 24 of the 1954 Act was dismissed by respondent No. 2 vide order dated 2.1.1979 (Annexure P.3). The petition filed under Section 33 of the 1954 Act was also dismissed by respondent No. 1 vide order dated 4.9.1984. 7. Shri K.S. Dadwal, learned counsel for the petitioner relied on Section 41 of the Transfer of Property Act, 1882 (for short, the 1882 Act) and argued that being a bona fide purchaser of the land in dispute for consideration, the petitioner is entitled to protection of his right against the respondents. He submitted that the petitioner had purchased the land from Bhagat Singh after making due enquiry in relation to the revenue records in which Buta Singh was shown as the owner and there was no reason for him to doubt the genuineness of the power of attorney executed by Buta Singh in the name of Bhagat Singh. Learned counsel emphasised that the petitioner had paid Rs. 10,000/- to Bhagat Singh and had spent another sum of Rs. 5,000/- for developing the land and argued that refusal of respondent No. 4 to grant permission for purchase of land should be declared as vitiated by an error of law apparent on the face of the record and the impugned orders should be quashed. In support of his argument, Shri Dadwal relied on the judgments of this Court in Kali Ram and others v. Union of India and others, 78 PLR 1976 475; Rattan Singh and another v. Chief Settlement Commissioner, Haryana and others, 1978 PLJ 47; Achhar Singh and others v. The State of Punjab and others, 1979 PLJ 278; and Deep Chand v. State of Haryana, 2003(4) RCR(Civil) 630 (P&H). 8. 8. On the other hand, Shri S.S. Behl, Additional Advocate General, Punjab argued that the concurrent finding recorded by the respondents about the nature of transaction entered into between Bhagat Singh and the petitioner is a pure finding of fact based on comprehensive evaluation and correct appreciation of evidence produced before them and such a finding should not be disturbed under Article 226 of the Constitution of India. He submitted that Bhagat Singh had played fraud with the concerned authorities and secured allotment in the name of Buta Singh by showing him as a displaced person, though he had never migrated from Pakistan and argued that the petitioner, who had purchased the land from Bhagat Singh on the basis of fictitious power of attorney, cannot be treated as a bona fide purchaser. 9. I have thoughtfully considered the arguments and carefully perused the record. Before dealing with the arguments of the learned counsel, I consider it imperative to remind myself of the para meters for exercise of jurisdiction by the High Court under Article 226 of the Constitution of India to issue a direction, order or writ in the nature of certiorari to quash the orders passed by inferior Courts, Tribunals and other judicial/quasi-judicial authorities. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals etc. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal etc. acts illegally or improperly, i.e., it decides a question without giving an opportunity to be heard to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and not appellate one. This necessarily means that the finding of fact reached by the inferior Court or Tribunal etc., as a result of the appreciation of evidence, cannot be challenged in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. 10. This necessarily means that the finding of fact reached by the inferior Court or Tribunal etc., as a result of the appreciation of evidence, cannot be challenged in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. 10. The appreciation of the above abstract statement of law does not represent any difficulty but application thereof is not easy and no strait-jacket formula can be applied for deciding whether or not the judgment, order or award passed by a Court or Tribunal or judicial/quasi-judicial authority suffers from an error of law apparent on the face of the record. Broadly speaking, an error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal etc. can be corrected only if it is shown that in recording the said finding, the Court or the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as an error of law which can be corrected by a writ of certiorari. The sufficiency of adequacy of the evidence relied upon by the inferior Court or Tribunal or the quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari. Likewise, the mere possibility of forming a different opinion on re- appreciation of evidence produced by the parties is not sufficient. 11. The sufficiency of adequacy of the evidence relied upon by the inferior Court or Tribunal or the quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari. Likewise, the mere possibility of forming a different opinion on re- appreciation of evidence produced by the parties is not sufficient. 11. In Sayed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC 477, a Constitution Bench of the Supreme Court considered the scope of the High Courts power to issue the writ of certiorari and laid down the following propositions : "A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals; these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can, similarly, be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. The jurisdiction of High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit the admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court." 12. In Shaikh Mohammad Umarsaheb v. Kadalaskar Hasam Karimsab and others, AIR 1970 SC 61, their Lordships of the Supreme Court, while dealing with the power of the High Court under Article 226 to re-appreciate the evidence produced before the trial Judge held as under : "Where the evidence adduced before the trial Judge was not so immaculate that another Judge might not have taken a different view, it cannot be said that there was no evidence on which the trial Judge could have come to the conclusion he did. When the trial Court accepts the evidence, the High Court which is not hearing an appeal cannot be expected to take a different view in exercising jurisdiction under Articles 226 and 227." 13. In Jitendra Singh Rathor v. Shri Baidayanath Ayurved Bhawan Ltd. and another, AIR 1984 SC 976, a two Judges Bench of the Supreme Court dealt with the scope of writ of certiorari jurisdiction of the High Court qua the award passed by the Tribunal under the Act and held as under : "The High Court is undisputably entitled to scrutinise the orders of the subordinate Tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it." 14. The High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it." 14. In R.S. Saini v. State of Punjab and others, JT 1999(6) SC 507, the Supreme Court upheld the order passed by this Court dismissing the writ petition filed against the order of the petitioners removal from the office of the President of Municipal Committee. Some of the observations made in that decision, which are worth noticing are as under : "The Court while exercising writ jurisdiction will not reverse a finding of the enquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the enquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The enquiring authority is the sole Judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings." 15. The view taken in Sayed Yakoobs case (supra) has been reiterated in a recent judgment in Mohd. Shahnawaz Akhtar and another v. Ist ADJ Varanasi and others, JT 2002(8) SC 69. 16. I shall now refer to the impugned orders to find out whether the same suffer from an error of law and call for interference under Article 226 of the Constitution of India. 17. A perusal of the record shows that while dismissing the purchase application filed by the petitioner, respondent No. 4 had taken note of the following starking facts : (i) Buta Singh son of Wadhaw Singh had never migrated from Pakistan, he did not fall within the meaning of the expression displaced person as defined in the 1954 Act. (ii) The allotment of land in the name of Buta Singh was obtained by Bhagat Singh, who was Numberdar of Village Khuda, by preparing bogus documents. (iii) The power of attorney allegedly executed by Buta Singh in favour of Bhagat Singh was fictitious/bogus. (iv) Bhagat Singh had prepared fake report No. 1313 dated 18.4.1957 showing that he had taken possession of the land as heir of Buta Singh. (iii) The power of attorney allegedly executed by Buta Singh in favour of Bhagat Singh was fictitious/bogus. (iv) Bhagat Singh had prepared fake report No. 1313 dated 18.4.1957 showing that he had taken possession of the land as heir of Buta Singh. (v) Bhagat Singh had sold the land in dispute to the petitioner on the basis of fictitious general power of attorney. (vi) Bhagat Singh did not file appeal against cancellation of allotment made in the name of Buta Singh in Village Khuda. 18. Respondent No 4 then held that the petitioner, who became a party to the fraud played by Bhagat Singh, cannot be treated as a bona fide purchaser and as such he was not entitled to any relief. The relevant extract of order dated 31.5.1976 (Annexure P.1) passed by respondent No. 4 is reproduced below : "Shri Buta Singh son of Wadhawa Singh remained in Pakistan at the time of partition which fact has been verified by the Officer on Special Duty, Central Record, on 4.6.1961. Under these circumstances, Buta Singh could not get the power of attorney executed on 20.11.1965 in the name of Bhagat Singh by coming from Pakistan to India. This shows that the General Power of Attorney was forged by Bhagat Singh. Shri Bhagat Singh Numberdar as per Report No. 1313 dated 18.4.1957 obtained possession of the area as heir of Buta Singh. He on the strength of this forged General Power of Attorney sold this area to Bijay Singh son of Thakar Dass for Rs. 10,000/- on 15.3.1996 vide registered sale deed. Buta Singh son of Wadhawa Singh was allotted area in Village Bassi Kikran which was in possession of Bhagat Singh. This allotment on the complaint of Jiwan Singh was cancelled by the Managing Officer vide his order dated 3.1.1962. It is not proved that Buta Singh came from Pakistan and executed the General Power of Attorney in favour of Bhagat Singh or that Bhagat Singh is the heir of Buta Singh. He did not file an appeal regarding the cancellation of allotment in Village Khuda, District Hoshiarpur. After that, he prepared a fictitious power of attorney and sold the area in Village Bassi Kikran to Bijay Singh. This area of the Government has been sold by fraud and Bijay Singh is a party to this fraud. The real allottee has not sold this area. After that, he prepared a fictitious power of attorney and sold the area in Village Bassi Kikran to Bijay Singh. This area of the Government has been sold by fraud and Bijay Singh is a party to this fraud. The real allottee has not sold this area. Therefore, Shri Bijay Singh petitioner cannot be considered as a bona fide transferee. The application of the petitioner for purchase of the area is dismissed." (Emphasis added ) 19. Respondents Nos. 1 to 3 confirmed the finding of fact recorded by respondent No. 4 and held that the petitioner cannot be said to be a bona fide purchaser within the meaning of Section 41 of the 1882 Act. In his order, respondent No. 3 observed that the appellant (petitioner herein) had not purchased the land from the allottee, who was still residing in Pakistan and his transaction with a bogus allottee could not give him the status of a bona fide vendee of the allottee; that he is not entitled to allotment of land from the compensation pool because he did not migrate from Pakistan. Respondent No. 2 noted the argument raised on behalf of the petitioner that in terms of Section 41 of the 1882 Act, he was entitled to purchase the disputed land being a bona fide transferee and rejected the same by making the following observations : "In the first instance, Buta Singh had never migrated from Pakistan; secondly, permanent rights of the allotted area were not obtained; and thirdly, the allotment was obtained by some imposter, namely, Bhagat Singh, who claimed to be the allottees attorney, on the basis of a fraudulently registered power of attorney. In 1978 PLJ 47 and RLR 1976-438, the allotments were obtained by genuine persons; they were granted permanent rights and their allotments were cancelled after they had sold the land to the bona fide vendees. There is no doubt that the ownership was shown for a quite sufficient long time in the name of Buta Singh allottee, in Bassi Kikran, but it was throughout in the possession of Bhagat Singh, who had played the fraud. The petitioner apparently did not make any adequate enquiry before purchasing the land about the real owner and his alleged attorney. The petitioner apparently did not make any adequate enquiry before purchasing the land about the real owner and his alleged attorney. Considering all these circumstances, provisions of Section 41 of the Transfer of Property Act, would not protect the petitioner, who does not appear to be a bona fide purchaser." 20. Respondent No. 1 relied on Rule 102(d) of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 and rejected the additional plea raised on behalf of the petitioner that the allotment made in the name of Buta Singh could not have been cancelled on the ground that he had not migrated from Pakistan. He observed that the fraud played for securing allotment in the name of Buta Singh was sufficient for cancelling the allotment. Respondent No. 1 also rejected the argument raised on behalf of the petitioner that continued depiction of ownership of the land in the name of Buta Singh in the revenue records was sufficient to establish his claim of being a bona fide transferee and observed :- "However, even if it were assumed that the ownership was shown in the name of Buta Singh in Jamabandi, the fact remains that, as held by all the three lower authorities, the allotment had been obtained by Bhagat Singh fraudulently on behalf of Buta Singh who had admittedly not migrated to India from Pakistan ... Even though the name of Buta Singh may have been mentioned in the Jamabandi on the basis of fraudulent allotment obtained in his faovur, a little enquiry in the village would have easily shown that Buta Singh had never migrated to the village from Pakistan and was, therefore, not displaced person to whom any allotment could have been made. Any prudent person would be expected to make such an enquiry, particularly when the sale was being made not by Buta Singh but by another person on the basis of a power of attorney. The petitioner cannot, therefore, be considered to be a bona fide purchaser who purchased the land after due enquiry." 21. In my view, the concurrent finding recorded by the four authorities constituted under the 1954 Act does not suffer from any legal infirmity, much less an error of law apparent on the face of the record and does not call for interference under Article 226 of there Constitution of India. In my view, the concurrent finding recorded by the four authorities constituted under the 1954 Act does not suffer from any legal infirmity, much less an error of law apparent on the face of the record and does not call for interference under Article 226 of there Constitution of India. The mere fact that the name of Buta Singh was recorded in the Jamabandi as owner of the disputed land cannot enure to the petitioners benefit because, as mentioned above, Buta Singh had never migrated from Pakistan and the land could not have been allotted by treating him to be a displaced person. Likewise, the payment of Rs. 10,000/- by the petitioner Bhagat Singh is of no consequence for determining the bona fide character of the sale transaction. The facts brought on the record show that Bhagat Singh had played fraud on the concerned authority of Rehabilitation Department and succeeded in securing allotment in the name of Buta Singh by showing him to a displaced person, though he had never migrated from Pakistan. Therefore, all the subsequent actions and transactions including the sale made in favour of the petitioner, to which Bhagat Singh was a party as the alleged power of attorney holder of Buta Singh, must be treated as vitiated by fraud and the petitioner cannot invoke Section 41 of the 1882 Act for seeking a declaration that the transfer made in his favour was bona fide. 22. The judgments on which Shri Dadwal has placed reliance do not help the cause of the petitioner. In Kali Rams case (supra), the learned Single Judge held that the petitioner was entitled to the protection of Section 41 of the 1882 Act because he had purchased the land from a genuine allottee. 23. In Rattan Singhs case (supra), the learned Single Judge noted that the allottee was in possession of the property; he was recorded as owner and he held title at the time of sale of the land and sale was for consideration and on that premise, he held that the vendee can invoke Section 41 of the 1882 Act. 24. The facts of Achhar Singhs case (supra), show that the land was allotted to the vendor by treating him as a displaced person within the meaning of the 1954 Act. 24. The facts of Achhar Singhs case (supra), show that the land was allotted to the vendor by treating him as a displaced person within the meaning of the 1954 Act. Later on, the allotment was cancelled because it was found that the allottee did not own land in West Pakistan. In the meanwhile, the allottee had sold land to the private respondents. The subsequent allottees applied for possession of the property. The learned Single Judge relied on the judgment of Rattan Singhs case (supra) and held that the purchasers were entitled to protection of Section 41 of the 1882 Act. 25. In Deep Chands case (supra), the learned Single Judge held that even though, the appellant was not entitled to challenge the order of cancellation of allotment because the earlier proceedings taken by him by way of appeal and revision had culminated in the dismissal of the writ petition as withdrawn but, at the same time, observed that as per the policy of the State Government, his claim may be considered for allotment on the basis of his long and unauthorised possession. 26. In none of the afore-mentioned cases, the State was called upon to consider whether the transferee of a fraudulent transaction of allotment can claim the benefit of Section 41 of the 1882 Act. Therefore, the proposition laid down in those cases cannot be relied upon for granting relief to the petitioner by invoking Section 41 of the 1882 Act. 27. In the result, the writ petition is dismissed. Stay order dated 21.12.1984 shall stand automatically vacated and the land shall immediately revert to the State Government. The competent authority shall be free to take appropriate legal proceedings for recovery of damages from the legal heirs of the petitioner for illegal use and occupation of the land in dispute. Petition dismissed.