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2011 DIGILAW 93 (PNJ)

Shamsher Singh v. State of Punjab

2011-01-10

M.JEYAPAUL, SATISH KUMAR MITTAL

body2011
JUDGMENT Mr. Satish Kumar Mittal, J.: - Shamsher Singh has filed this Letters Patent Appeal for setting aside the order dated 6.9.2010, passed by the learned Single Judge. By the said order, the learned Single Judge dismissed the writ petition (CWP No. 1019 of 1987), filed by the appellant, whereby he had challenged the order dated 28.11.1986, passed by the Financial Commissioner, Revenue & Secretary to Government, Punjab, Rehabilitation Department, setting aside the allotment of the land in question in favour of the appellant by the Sales Commissioner, the Chief Sales Commissioner, Jalandhar and the Commissioner, Jalandhar Division, Jalandhar, and further upholding the allotment of the said land in favour of respondent No.2. 2. We have heard learned counsel for the appellant and have gone through the various orders, passed by the authorities, including the Financial Commissioner as well as the order passed by the learned Single Judge. 3. In this case, the appellant is claiming the land in question i.e. 8 Kanals 10 Marlas, on the basis of the un-authorised occupation of the same under the Press Note dated 26.2.1980, issued under the provisions of the Punjab Package Deal Properties (Disposal) Act, 1976 (hereinafter referred to as ‘the Punjab Package Act’). On the other hand, respondent No.2 is a displaced person and in lieu of his unsatisfied claim, he was allotted the land in question under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as ‘the Displaced Persons Act’) and the Rules framed thereunder. 4. The appellant applied for allotment of the land under the Press Note dated 26.2.1980, claiming himself to be in un-authorised possession of the land since Rabi 1978, but actually in the revenue record i.e. Khasra Girdawari, the appellant was recorded in un-authorised possession of the land in dispute only from Rabi, 1979. Thus, as per the condition of the aforesaid Press Note, he was not eligible for the allotment and, therefore, his application was rejected by Tehsildar (Sales), Nawanshahar, on 30.4.1980. Against the said order, the appellant filed an appeal before the Sales Commissioner, Nawanshahar, who was the Appellate Authority under the Punjab Package Act. During the pendency of the said appeal, vide order dated 22.7.1980, respondent No.2, who was a displaced person and was having unsatisfied claim, was allotted the land in dispute under the provisions of the Displaced Persons Act. During the pendency of the said appeal, vide order dated 22.7.1980, respondent No.2, who was a displaced person and was having unsatisfied claim, was allotted the land in dispute under the provisions of the Displaced Persons Act. Subsequently, on 14.1.1981, the Sales Commissioner, without noticing the aforesaid allotment and without providing opportunity of hearing to respondent No.2, allowed the appeal of the appellant and allotted the land in question to him on the basis of his unauthorised occupation. 5. Aggrieved against the abovesaid order, respondent No.2 filed appeal before the Chief Sales Commissioner, Jalandhar, who vide his order dated 23.4.1981 accepted the appeal and set aside the order dated 14.1.1981, while holding that the appeal filed by the appellant before the Sales Commissioner was not competent, as the order of allotment was passed by Tehsildar (Sales) under the Displaced Persons Act. Thereafter, the appellant filed a revision against the said order before the Commissioner, Jalandhar Division, Jalandhar, who vide his order dated 18.8.1981 set aside both the aforesaid orders, i.e. one passed by the Sales Commissioner and the other passed by the Chief Sales Commissioner, and remanded the case to Tehsildar (Sales) to ascertain whether the appellant was in possession of the disputed land since Rabi, 1978 and was entitled for allotment under the Press Note. Tehsildar (Sales), vide his order dated 12.11.1982, dismissed the application filed by the appellant, while coming to the conclusion that the appellant was not in possession of the land prior to Rabi 1978. 6. Against the abovesaid order, the appellant filed appeal before the Sales Commissioner, who accepted the same vide order dated 10.3.1983 and ordered for allotment of the land in his favour, while coming to the conclusion that the un-authorised possession of the appellant was prior to Rabi 1978. The order of the Sales Commissioner was affirmed by the Chief Sales Commissioner, Jalandhar, on 12.8.1983. 7. Aggrieved against the said order, respondent No.2 filed revision before the Financial Commissioner under Section 15 of the Punjab Package Act. Vide order dated 28.11.1986, the Financial Commissioner allowed the said revision petition and set aside the orders, passed by the Sales Commissioner and the Chief Sales Commissioner, and upheld the allotment of land in favour of respondent No.2. The said order has been upheld by the learned Single Judge. 8. Vide order dated 28.11.1986, the Financial Commissioner allowed the said revision petition and set aside the orders, passed by the Sales Commissioner and the Chief Sales Commissioner, and upheld the allotment of land in favour of respondent No.2. The said order has been upheld by the learned Single Judge. 8. The Financial Commissioner as well as the learned Single Judge have clearly noted that respondent No.2 was allotted the land in question by Tehsildar (Sales) against the verified claim under the provisions of the Displaced Persons Act. The first question, which is to be taken into account, is whether the land in question was evacuee property, which has to be dealt with and disposed of in accordance with the provisions of the Displaced Persons Act, or it was a package deal property, which was transferred by the Central Government under a package to the State Government, which could have been disposed of in accordance with the provisions of the Punjab Package Act. It has come on record that as per the Jamabandi, the land in question has been recorded under the ownership of the Central Government, which indicates that it is not the package deal property. During the course of arguments, a specific question was asked to learned counsel for the appellant to show any document, indicating that the property in question was a package deal property, but he was unable to show any such document on record. Even in para 2 of the writ petition, it has been stated by the appellant that the land in question is an evacuee land, situated in village Jadla. It has not been disputed either before the authorities or before this Court that respondent No.2 was not a displaced person and he was not having a verified claim, and was not entitled for allotment of the land under the provisions of the Displaced Persons Act. Even the allotment of land to respondent No.2 has not been questioned. Learned counsel for the appellant only argued that the appellant was in illegal and un-authorised possession of the land in dispute before Rabi 1978, therefore, under the Press Note, issued under the Punjab Package Act, he was entitled for allotment of the land. Even the allotment of land to respondent No.2 has not been questioned. Learned counsel for the appellant only argued that the appellant was in illegal and un-authorised possession of the land in dispute before Rabi 1978, therefore, under the Press Note, issued under the Punjab Package Act, he was entitled for allotment of the land. Undisputedly, it has been clearly stipulated in the Press Note that only those un-authorised occupants, who were in possession of the land prior to Rabi 1978 would be eligible for allotment of the said land. The un-authorised possession is to be ascertained from the revenue record on the date of issuance of the Press Note. Under Rule 3 of the Punjab Package Deal Properties (Disposal) Rules, 1976, it is specifically stated that correction of khasra girdawari entries secured after the issuance of the Press Note would be ignored, while determining the unauthorised possession of the occupant. Learned Financial Commissioner, while setting aside the order of the Sales Commissioner, has specifically held that the Sales Commissioner was having no justification for considering the corrected khasra girdawari to determine the factum of possession of the appellant over the land in dispute from Rabi 1978. Undisputedly, in the khasra girdawari, possession of the appellant is recorded from Kharif 1979. It has been argued by learned counsel that it is not the appellant, who got the khasra girdawari changed, but the Sales Commissioner himself has come to this conclusion on the basis of the argument, submitted by the counsel. Learned Financial Commissioner, in our view, has rightly come to the conclusion that the authorities, while determining the date of possession have to rely upon the khasra girdawari, which exist on the date of issuance of the Press Note. Neither an authority can be permitted to rely upon the corrected khasra girdawari nor such an argument could have been accepted that possession of the appellant was much prior to the cut off date. In para 6 of the order, passed by the learned Financial Commissioner, it has been recorded that from the revenue record, it is quite clear that the respondent came in possession of the land in dispute in Rabi 1979. Prior to that, it has been in the occupation of his mother-inlaw Smt. Parbati. In para 6 of the order, passed by the learned Financial Commissioner, it has been recorded that from the revenue record, it is quite clear that the respondent came in possession of the land in dispute in Rabi 1979. Prior to that, it has been in the occupation of his mother-inlaw Smt. Parbati. The correction of khasra girdawari secured by the respondent after the issue of Press Note had to be ignored under Rule 3 of the Punjab Package Deal Properties (Disposal) Rules, 1976. The finding recorded by the Sales Commissioner as well as the Chief Sales Commissioner about possession of the appellant on the disputed land prior to Rabi 1978 was held to be wrong. Thus, in our opinion, the learned Financial Commissioner has been right, while coming to the aforesaid conclusion. Even if the appellant is held to be in possession of the disputed land prior to Rabi 1978, he was not entitled for allotment of the same under the Punjab Package Act, because the disputed land is not a package deal property vesting in the State Government, but it is an evacuee property, which is to be dealt with and disposed of in accordance with the provisions of the Displaced Persons Act. Under Section 2 (1-A) of the Punjab Package Act, the package deal property has been defined as the surplus evacuee property taken over by the State Government under the letter of the Central Government, excluding such property as may be required for transfer or allotment, by way of compensation to a displaced person, as defined in the Displaced Persons Act and rural agricultural land required for similar allotment to a displaced person of non-Punjabi extraction in pursuance of the directions of the Central Government given under Section 32 of the Displaced Persons Act. Such property has been recorded under the ownership of the Provincial Government. On this account also, the appellant has not claimed the land in question. 9. In view of above, we do not find any illegality in the order passed by the learned Single Judge. 10. Dismissed. -----------0.K.B.0------------