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2008 DIGILAW 1857 (PNJ)

Hari Ram v. State of Haryana

2008-11-04

RAKESH KUMAR JAIN

body2008
JUDGMENT RAKESH KUMAR JAIN, J. 1. This is plaintiff’s second appeal in a suit for declaration in which the plaintiff has claimed himself to be the owner in possession of land measuring 74 Kanals 10 Marlas comprised in Sq. No. 12 Killa No.7(8-0), 8/2(6-0), 13, 14(16-0), 19/1(4-0), 22, 23(16-0), 24/1(4-4), Sq.No.11 Killa No.9/2 (0-16), 13, 14(16-0), 15/1 (3-10), as such recorded in jamabandi for the year 1996-97 of village Umedpura, Tehsil Ellenabad, District Sirsa being allottee of “C” category as ejected tenant vide allotment order dated 30.11.1981 and ejectment order dated 27.7.1964. The plaintiff has challenged the order of Financial Commissioner, Haryana dated 29.6.1999 passed in ROR No.580 of 1992-93 read with Misc. No.41 of 1993-94 as illegal, null and void and without jurisdiction. As a consequential relief, the plaintiff has also prayed to restrain the defendants from dispossessing him from the land measuring 74 kanals 10 marlas. 2. Succinctly, the plaintiff case is that vide order dated 27.7.1964, passed by the Assistant Collector 1st Grade, Sirsa under Section 9 of Punjab Security of Land Tenures Act, the plaintiff was ejected from the land of small land owners and was granted right of allotment from surplus pool to the extent of 5 standard acre. The order of ejectment dated 27.7.1964 was not appealed against and is still operative and the prescribed authority Sirsa vide his order 30.11.1981 allotted the land in dispute in compliance with the order of ejectment dated 27.7.1964. The plaintiff was also allotted land comprised in Murba No.21 Killa No. 2/2, 3, 4, 7, 8 and Killa No.24 Min.(3-16) of Sq. No.12. This allotment of land was challenged by one Gurbax Singh before the Collector by way of appeal which was accepted on 13.3.1982. After the remand, said Gurbax Singh was allotted this very area on 31.3.1983. Gurbax Singh filed a revision petition before the Financial Commissioner in ROR No.399 of 1986-87. Vide order dated 30.9.1988, the Financial Commissioner rejected the claim of Gurbax Singh. The allotment order dated 30.11.1981 was upheld. On complaint filed by some persons, the Collector cancelled the allotment of the suit land on 22.11.1990. Gurbax Singh filed a revision petition before the Financial Commissioner in ROR No.399 of 1986-87. Vide order dated 30.9.1988, the Financial Commissioner rejected the claim of Gurbax Singh. The allotment order dated 30.11.1981 was upheld. On complaint filed by some persons, the Collector cancelled the allotment of the suit land on 22.11.1990. On 29.6.1999 the Financial Commissioner, Haryana cancelled the total allotment of the suit land while affirming the order dated 23.4.1987 and thus acted without jurisdiction, against the mandatory provisions of Punjab Security of Land Tenures Act and thus the impugned order dated 29.6.1999 being ineffective, non-executable, not binding upon the rights and title of plaintiff over the suit land and is liable to be set aside on the grounds that while deciding the case under the provisions of Haryana Ceiling on Land Holdings Act, read with utilization scheme, the Financial Commissioner, Haryana has no jurisdiction to over look, modify, ignore the order of ejectment dated 27.7.1964 passed by Competent Court under the provisions of Punjab Security of Land Tenures Act. The allotment order dated 30.11.1981 qua the suit land had become final in ROR No.399 of 1986-87 passed by Financial Commissioner, Haryana on 30.9.1988 and second Financial Commissioner has no jurisdiction to cancel the allotment made on 29.6.1999, by violating the doctrine of merger, thus the order is without jurisdiction. Hence this suit. 3. In the written statement, defendants had objected the maintainability of the suit as well as the jurisdiction of the Civil Court to try and entertain the suit in view of the provisions of the Haryana Ceiling on Lands Holding Act, 1972 (in short “the Act”) besides other objections. On merits, it was alleged that it was ordered by Commissioner on 23.4.1987 to check the claim of the plaintiff and during the investigation it was found that plaintiff was not entitled for the allotment which has been secured by playing fraud, therefore, the Collector vide his order dated 12.9.1990 cancelled the allotment which was confirmed by Financial Commissioner on 29.6.1999 in view of his powers under Section 18(6) of the Act. Both the Courts below have concurrently found that the plaintiff has played fraud at the time when the land was allotted to him as he has concealed the fact that he was owner in possession of 1/3rd share of 288 kanal and 0 marlas to the extent of 96 kanals as per mutation No. 89 Ex.D3 which was sanctioned in the year 1964. The matter was inquired into by the Collector and found the order of prescribed authority illegal, therefore, the allotment was cancelled which was challenged by the plaintiff by way of revision petition before the commissioner and before the financial commissioner where he remained unsuccessful. Besides the fraud, the Courts below have also found that the Civil Court has no jurisdiction in view of the bar under Section 26(1)(b) of the Act as such both the Courts have dismissed the suit of the plaintiff. 4. Sh. S. K. Jain learned counsel appearing for the plaintiff/appellant has vehemently argued that the plaintiff was ordered to be ejected on 27.7.1964 by the Assistant Collector 1st Grade, Sirsa. Thereafter, the plaintiff had a right for allotment of land from the surplus pool and since plaintiff was not holding land more than 5 standard acre on 27.7.1964 and also on 1.1.1976, therefore, the order dated 29.6.1999 is without jurisdiction. It is also contended that the allotment dated 30.11.1981 pertaining to the suit land had become final in ROR No. 399 of 1986-87 passed by the Financial Commissioner, Haryana on 30.9.1988, therefore, the second Financial Commissioner has no jurisdiction to cancel the allotment on 29.6.1999. It is further contended that the plaintiff has a right to approach the Civil Court whose jurisdiction is not barred in spite of the provision of Section 26(1)(b) of the Act as the order is without jurisdiction. 5. I have heard learned counsel for the appellant in detail and perused the record. Before adverting to the merits of the case, it is necessary to hold as to whether the Civil Courts has got the jurisdiction to try the suit in view of bar created under Section 26(1)(b) of the Act. The First Appellate Authority has relied upon the decision of the apex Court in the case of “Devinder Singh and others Vs. State of Haryana and another” 2006 Volume 2 PLJ page 164, in which it has been held as under: - “15. The First Appellate Authority has relied upon the decision of the apex Court in the case of “Devinder Singh and others Vs. State of Haryana and another” 2006 Volume 2 PLJ page 164, in which it has been held as under: - “15. The principles culled out from various decisions of this Court are that even when the statute has given finality to the orders of the special tribunal, the Civil Court’s jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Section 26(1)(d) on the other hand specifically excludes jurisdiction of the Civil Court so far as matters which are required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, Collector or prescribed Authority. The entitlement, choice of land and the allotment are matters which are to be dealt with specifically by the authorities under the Act. Additionally, Section 18 provides a forum to ventilate the grievances under the Act in respect of several matters. This is a case of exclusion of the remedy in certain contingencies. It is not a case where the controversy cannot be resolved by the forum provided under the Act. Further in case of any grievance, the validity of the order could have been questioned before the forum provided. That has not been done and on the other hand, the suit was filed after about nine years”. 6. Therefore, I am of the opinion that the Civil Court does not have the jurisdiction to try the present suit in view of an express bar provided under Section 26(1)(b) of the Act which is reproduced as under: - “Bar of jurisdiction: - (1) No Civil Court shall have jurisdiction to – (a) entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the right of the State Government to the surplus area under this Act; or (b) Settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, the Collector or the Prescribed Authority. (2) No order of the Financial Commissioner, the Commissioner, the Collector, or the Prescribed Authority made under or in pursuance of this Act shall be called in question in any court.” 7. (2) No order of the Financial Commissioner, the Commissioner, the Collector, or the Prescribed Authority made under or in pursuance of this Act shall be called in question in any court.” 7. So far as the merits of the case are concerned, the counsel for the appellant could not point out the reason as to why the fact in regard to the holding of the plaintiff, to the extent of 96 kanals which was mutated in the year 1964 vide mutation no.89 was concealed at the time of allotment. The reason is obvious that the plaintiff wanted to take undue advantage. In the case reported as “S.P. Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs and others” 1994 Supreme Court 853, the Apex Court held as under: - “The courts of law are meant for imparting justice between the parties. One, who comes to the court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” In view of the above findings, I do not find any merit in the present appeal and there is no question of law much less substantial involved. Hence, the appeal is dismissed in liminie. Appeal dismissed.