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2008 DIGILAW 874 (PNJ)

Kanwar Bhan v. Rashid

2008-04-10

PIUS PANDARWANI

body2008
ORDER 1. This is a revision petition under Section 16 of the Punjab Land Revenue Act, 1887 against the order dated 5.8.2005 passed by the Commissioner, Gurgaon Division order dated 9.5.2000 passed by the Collector, Faridabad, and order dated 17.7.1992 ­ passed by Assistant Collector Ist Grade, Ballabgarh. 2. Brief facts of this case are that the respondents filed an application for acquiring occupancy rights regarding the disputed land under Sections 5, 6, 7 and 8 of the Punjab Tenancy Act, 1887. Ex-parte proceedings were taken against the petitioner on 18.7.1991. The Assistant Collector, Ist Grade vide order dated 27.3.1992 sanctioned the occupancy rights in favour of the respondents ori the basis of khasra girdawari 1972-73, 1977-78, 1982-83 and jamabandi for the year 1988-1989, 1989-90 and 1990-91. The petitioner filed an application dated 16-9-1992 for quashing the ex-parte orders and quashing the order dated 27.3.1992. The Assistant Collector Ist Grade, Ballabgarh vide order dated 15-4-1993 quashed his earlier order dated 27.3.1992 and finally, on 8.11.1994, the Assistatnt Collector Ist Grade, Faridabad dismissed the claim of the present respondents. In the year 1999 the petitioner challenged the order dated 27.3.1992 passed by the Assistant Collector, Ist Grade in the court of Collector, Faridabad. The Collector, Faridabad dismissed the appeal vide order dated 9-5-2000. The petitioner filed two revisions before the Commissioner, Gurgaon Division who also dismissed both the revisions with a single order dated 5.8.2005. Now the petitioner is before me against the said order dated 5-8-2005. 3. The counsel for the petitioner argued that the lower courts had dismissed his case as being time-barred without considering the merits. The application of the petitioner dated 16.7.1992 was accepted by the Assistant Collector Ist Grade, Faridabad and the suit of the respondents was dismissed vide order dated 8.11.1994. The order and decree dated 27.3.1992 was already set aside by the Assistant Collector Ist Grade vide order dated 15-4-1993 but the respondents, intentionally and wilfully and on the basis of ex-parte judgment and decree of 27-3-1992 got entered the mutation in their name. After that on 26.10.1999 the petitioner came to know about the mutation in the name of the respondents and filed an appeal before the Collector, Faridabad. The Collector, Faridabad did not accept the appeal of the petitioner who had taken the plea that he came to know about the mutation only in the year 1999. After that on 26.10.1999 the petitioner came to know about the mutation in the name of the respondents and filed an appeal before the Collector, Faridabad. The Collector, Faridabad did not accept the appeal of the petitioner who had taken the plea that he came to know about the mutation only in the year 1999. The Commissioner, Gurgaon Division also dismissed the revision on the same ground. Since the petition of the respondent was dismissed by the Assistant Collector, Ist Grade on 8-11-94, the mutation entries dated 17-7-92 are totally illegal and arbitratory and not binding on the rights of the petitioner. It was also submitted that the mutation entries were made on the basis of the ex-parte judgement and decree dated 27-3-92 which was later on set aside on 15-4-93 and the petition of the respondents was also dismissed on 8-11-94. The mutation entries dated 17-7-92 automatically became in fructuous with the orders dated 15-4-93 and 8-11-94. 4. The Counsel for the respondent argued that the dispute in the present petition is with regard to mutations No.71 and 72 dated 17-7-92 which were entered and sanctioned in favour of the respondents Rashid and others. The present petitioner filed an appeal before the Collector, Faridabad against the order 17-7-92 passed by AC IInd Grade, Ballabgarh. The Collector after hearing both the parties had dismissed the appeal of the petitioner on the ground that the petition was filed after a period of more than six years whereas the said order was in the knowledge of the petitioner since the beginning. The Commissioner, Gurgaon Division had also dismissed the revision petition on the same ground. The Commissioner, Gurgaon Division had also dismissed the revision petition on the ground that the appeal dated 5-11-99 before the Collector, Faridabad against the order dated 17-7-92 passed by the Assistant Collector IInd Grade was highly belated. 5. I have heard both the counsels and have gone through the record available on the file. The Assistant Commissioner Ist Grade, Ballabgarh decided the case of occupancy rights in favour of the present respondents in the absence of the present petitioner by passing ex-parte proceedings against the petitioner. The petitioner was unaware of these orders because the ex-parte proceedings were taken on the basis of non-pursuit of the case by the petitioner to whom the summons had been sent at a wrong address supplied by the respondent tenants. The petitioner was unaware of these orders because the ex-parte proceedings were taken on the basis of non-pursuit of the case by the petitioner to whom the summons had been sent at a wrong address supplied by the respondent tenants. The Assistant Commissioner Ist Grade set aside the order dated 27-3-92 vide his order of 15-4-1993 and suit of the respondents was finally dismissed by the Assistant Commissioner vide order dated 8-11-94 on the ground that decision about occupancy rights was beyond his jurisdiction. Thus the order dated 17-7­ 92 sanctioning the mutation based on the order of the Assistant Collector dated 27-3-92 withdrawn/quashed by the Assistant Collector on 15-4-93 became non existent. The presumption of the Collector, Faridabad and the Commissioner, Gurgaon Division that the petitioner had the knowledge about the mutations and, therefore, his appeal/petition filed in 1999 was time-barred cannot be said to be based on facts as the petitioner, filed his application on 16-7-92 against the ex-parte order dated 27-3-92 whereas the respondents got sanctioned the mutation on 17-7-92, Since, the application of the petitioner dated 16-7-92 before the Assistant Collector was accepted and the Assistant Collector on 15-4-93 quashed his own order dated 27-3-92 and the suit of the respondents was also dismissed on 8-11-94, the petitioner thus could pot be presumed to have had knowledge of impugned mutation entries because then on the basis of the order of 15-4-93, he would have applied for the cancellation of the mutation entries. Even otherwise, once the Assistant Collector, had withdrawn his order of 27-3-92, the very basis of the mutation entries became non est. Therefore, the orders of the Collector, Faridabad and Commissioner, Gurgaon Division also have no basis for maintaining the mutation entries. Accordingly, the petition is accepted. 6. To be communicated. —————————