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2012 DIGILAW 1217 (PNJ)

Nirmal Singh v. State of Punjab

2012-09-14

RANJIT SINGH

body2012
JUDGMENT Mr. Ranjit Singh, J.: - What would happen if those who are to protect the public property themselves usurp the same? Government owned land, first is occupied unauthorisedly and then is got allotted to himself for peanuts by an elected representative, who is also in governance of the State as Minister. 2. Who then can be trusted to protect the public property? If the fence starts eating the crop, then nothing would be safe. Law has to check such onslaughts and can not look silently. 3. When respondent No.5 Shri Swarna Ram was sitting MLA, he got himself allotted a Government land measuring 31 kanals 8 marlas, situated within the revenue estate of Chhaula, Tehsil Phillaur, District Jalandhar in his unauthorised occupation by getting a conveyance deed executed in his favour. Alleging that the said allotment was illegal and done only due to the political power and influence yielded by respondent No.5, the petitioner has approached this court through the present writ petition to impugn the said allotment. The petitioner is not before the court as protector, but himself is a claimant being in unauthorised possession thereof. 4. The petitioner is a permanent resident of village Chhaula and claims to be in cultivating possession of the land owned by the Punjab Government and comprised in Khewat No.93, Khatoni No.382 as per the details of Khasra numbers given in the petition for the last more than 13 years. The petitioner has been regularly sowing and cultivating crops in the disputed land. All of a sudden, respondent No.4-Tehsildar Mahal-cum-Sales Phillaur issued a conveyance deed on 2.12.2003 in favour of respondent No.5, who was then the sitting MLA and who later on got this sale regularised while he was a Minister in the Government. The petitioner would allege that Tehsildar (respondent No.4) ignored the fact of physical cultivating possession of the petitioner over the land. 5. The petitioner accordingly appealed against this allotment and against the subsequent conveyance deed before Chief Sales Commissioner. As averred in the appeal, respondent No.5 was never in possession of this land, which was being cultivated by the petitioner. Respondent No.5 had never deposited any rent of the land in question to the Punjab Government. The petitioner states that he has been sowing this land and had also got a tubewell installed. As averred in the appeal, respondent No.5 was never in possession of this land, which was being cultivated by the petitioner. Respondent No.5 had never deposited any rent of the land in question to the Punjab Government. The petitioner states that he has been sowing this land and had also got a tubewell installed. The Lambardar, who had witnessed this conveyance deed, was not from the village where the land is situated and so is another witness, who had witnessed the sale deed. They both were from a different village. Even respondent No.5 is also not the inhabitant of village Chhaula, where the land is situated. This conveyance deed was executed without affording any opportunity of hearing to the petitioner, who was in actual physical possession of the land. 6. Sales Commissioner granted order of status quo in favour of the petitioner on 10.8.2004. By that time, perhaps respondent No.5 had joined Punjab Cabinet as Minister and so used or misused his influence and power to get the appeal decided in his favour. The petitioner thereafter filed an appeal before Commissioner, Jalandhar, who also dismissed the same. Perhaps none could dare to go against a powerful political figure. That is a usual scene noticed when some influential people are involved. 7. Petitioner also moved a complaint before Sub Divisional Magistrate alleging illegal execution of this sale deed as respondent No.5 was never in possession of this land. The petitioner also pointed out that respondent No.5 was going ahead to sell this land as his name is mentioned in the column of cultivation. The petitioner filed an application for correcting the girdawari, if need be, after spot inspection as he was in cultivating possession of the said land. 8. By making reference to the provisions of Section 4 of Punjab Package Deal, Properties (Disposal) Act, 1976 (for short “the Act”) , the petitioner would point out that the maximum area which can be allotted to a person should not exceed 5 standard acres or 10 ordinary acres. Respondent No.5 was already possessing land measuring more than 12 acres in village Fatehgarh Lakha, Tehsil Phillaur, District Jalandhar, whereas the present land measured about 4 acres and with this allotment, he became owner of 16 acres of land on his name. Respondent No.5, thus, was already possessing land in excess of 6 acres than the permissible limits to seek allotment. Respondent No.5, thus, was already possessing land in excess of 6 acres than the permissible limits to seek allotment. The petitioner has referred to the copies of the jamabandies to substantiate this plea. It is also alleged that respondent No.5 has already sold more than 100 kanals out of this land to some persons, which is even not permissible as per law. The petitioner says that despite this position, the Commissioner, Jalandhar dismissed the appeal and Financial Commissioner also dittoed the order. The petitioner accordingly has approached this court through the present writ petition. 9. Notice of motion was issued and the parties were directed to maintain status quo with respect to ownership and possession till further orders. The case has been adjourned thereafter on number of occasions. A common written statement has been filed by respondent Nos.1 to 4. Respondent No.5 has filed separate reply. Respondents have made efforts to justify the allotment. 10. Respondent Nos.1 to 4 in reply have alleged that this writ petition has been filed with an oblique motive and for an ulterior consideration. The official respondents have cast serious aspersion on the petitioner by stating that the petition is engulfed with distorted/twisted version of facts. Allegations further are made against the petitioner that he has made an attempt to create bias in the mind of the this Court for deriving undue advantage. Some such choicest words are used to describe the conduct of the petitioner in filing this petition. It is stated that this is an ‘blatant” attempt to create bias and is said to have been done to achieve his ‘nefarious designs’. What these nefarious designs, however, are not indicated or disclosed. They would find nothing wrong in the conduct of respondent No.5 as they can not dare to say even the obvious truth apparent from record. This may give out the partisan attitude of the official respondents. After all, they have to defend a sitting Minister as is the status of respondent No.5 even at present. 11. Mention is also made to the policy framed by the Punjab Government in the year 1997 regarding the disposal of surplus area evacuee and inferior evacuee land by transfer on the basis of continuous cultivating possession of unauthorised occupants w.e.f. Kharif 1994. 11. Mention is also made to the policy framed by the Punjab Government in the year 1997 regarding the disposal of surplus area evacuee and inferior evacuee land by transfer on the basis of continuous cultivating possession of unauthorised occupants w.e.f. Kharif 1994. As per this policy, the price of a land to be charged is at the rate of Rs.7000/- per acre from the general category and Rs.6000/- per acre from Scheduled Caste and Backward Classes for all kinds of lands. This policy was re-considered in the year 2001 and certain modifications were made in the existing policy of the year 1997. As per the new policy, a person who is in continuos cultivating possession of the Government land since Kharif 1994 is made eligible to apply for allotment of the land. Copies of these policies are annexed with the reply. The State Government in fact had issued advertisement inviting applications from eligible occupants of evacuee land since Kharif 1994. 12. Respondent No.5 applied to Tehsildar, Phillaur for transfer of 31 kanals 8 marlas land situated in the revenue estate of Chhaula on 31.1.2002 pleading that he was in continuos cultivating possession of this land since kharif 1994. The copy of his application is also annexed with the reply. It is stated that respondent No.5 also deposited the rural rent with the Government for the aforesaid land for the period from 1994 to 2002 and in this regard receipt is attached as Annexure R4/T with the reply. As is disclosed in the reply, the report was obtained from the Panchayat, Halqa Patwari, who certified the continuos possession of respondent No.5, which document is also annexed with the reply. On this basis, respondent No.5 was found eligible for allotment of the land. He deposited princely sum of Rs.23,555/- towards the price of land on 31.12.2002 in the Government treasury. 13. SDM exercising the powers of Sales Commissioner executed a conveyance deed in favour of the petitioner on 2.12.2003 and the same was registered on 4.3.2004 with Sub Registrar, Phillaur. It is, thus, stated that this allotment was done in favour of respondent No.5 as per the provisions of the policy of the Government. 14. Reference is also made to the appeal etc. filed by the petitioner to urge that the grounds as raised in this writ petition were the same as were raised in the appeal. It is, thus, stated that this allotment was done in favour of respondent No.5 as per the provisions of the policy of the Government. 14. Reference is also made to the appeal etc. filed by the petitioner to urge that the grounds as raised in this writ petition were the same as were raised in the appeal. The appeals/revisions filed by the petitioner were dismissed upto the level of Financial Commissioner. It is stated in the reply that the land in question is in the possession of respondent No.5 and hence it is prayed that the writ petition carries no merit and be dismissed. 15. Respondent No.5 in his reply has pointed out that the petitioner has also invoked the jurisdiction of the civil court by filing a civil suit for declaration which is pending before Civil Judge (Junior Division), Phillaur. As per respondent No.5, the petitioner has not disclosed this fact and this writ petition would deserve to be dismissed on this ground. Otherwise, it is pleaded that no case for interference in exercise of writ jurisdiction is made out as all the authorities have consistently held against the petitioner. 16. As per respondent No.5, land in question was in possession of his father and on his death, petitioner has stepped into the shoes of his father. He accordingly has claimed possession over this land. Otherwise, respondent No.5 has not disputed that this land is in the ownership of the Provincial Government, which has been allotted to the petitioner and that the sale deed has been executed in his favour. 17. Allegation about respondent No.5 having good relations with Tehsildar to get this revenue record made in his favour is denied. It is, however, not denied that respondent No.5 was sitting MLA at the time of allotment of this land, though at that time as per him, Congress was the ruling party in the State. The fact that respondent No.5 was a Minister in the Government when the conveyance deed was executed or during the time when the subsequent orders are passed is not disputed. 18. Heard counsel for the parties. 19. There are certain facts, which are alleged in the petition, which apparently have not been controverted either by the official respondents or by respondent No.5. 18. Heard counsel for the parties. 19. There are certain facts, which are alleged in the petition, which apparently have not been controverted either by the official respondents or by respondent No.5. In para No.7 of the petition, the petitioner has pleaded that the Lambardar and the witness on the conveyance deed were not from the same village where the land is located. Dev Ram, who has witnessed this conveyance deed, did not reside in village Chhaula and he does not possess any land in the said village. It is further averred that respondent No.5 has no link or concern with the land in question he being not the inhabitant of village Chhaula where the land is situated. It is on this basis that status quo order was passed in favour of the petitioner by the Chief Sales Commissioner, but finally had dismissed the appeal. These facts have not been denied in any manner by either the official respondents or by respondent No.5. This would so reveal from the contents of the reply filed by the State. Even respondent No.5 in his reply has not denied these facts. Except for stating that the grounds in appeal were rightly dealt with by the Chief Sales Commissioner and that there appeared no irregularity, nothing else is mentioned in reply to this para as filed by respondent No.5. Thus, respondent No.5 as well as the official respondents would concede these averments made in para No.7 of the petition. 20. What is averred in this para of the petition may need emphasis and notice here. Respondent No.5 has not denied the allegation that he had no link or concern with the land in question and he was not in possession of the disputed land being not inhabitant of the village. How could petitioner or his father be in possession of this land in this background would require a lot of explanation. Apparently, the influence and power of respondent No.5 is at play. 21. A question to ponder would be as to why any MLA or a Minister needs concession of allotment of a land measuring nearly 4 acres at a paltry sum of Rs.23000/- or so? There may be a policy framed by the State, but was this for the benefit of those, who are ruling or it was meant for some poor scheduled caste, who may need to be uplifted. There may be a policy framed by the State, but was this for the benefit of those, who are ruling or it was meant for some poor scheduled caste, who may need to be uplifted. Would it be proper for elected representative to seek such enrichment at the Government expense? Perhaps that is the norm now. 22. The State has placed on record an affidavit of respondent No.5 where he has given his residential address as Dhian Singh Colony, Hariabad Road, Phagwara, District Kapurthala. In this affidavit, respondent No.5 has claimed to be in possession of this land since Rabi, 1994 and has also undertaken that he will not transfer this land for a period of twenty years. Form No.32-A which is a challan showing recovery of ‘lagan’ clearly shows that the ‘lagan’ from 1994 to Sauni 2002 was paid in one go on 31.12.2002 and was deposited in the State Bank of India, Phillaur by Tehsildar. This would clearly indicate that respondent No.5 had not been regularly paying the lease or lagan for use and occupation of this land. Soon after payment of this lagan on 31.12.2002, this land is allotted to the petitioner. He had made application for allotment on 30.1.2002 claiming to be in continuous possession of this land and thereafter deposited the lagan for all the years from 1994 to 2002 on 31.12.2002. The conveyance deed was executed thereafter on 2.12.2003 and the same was registered on 4.3.2004. It is, thus, clear that respondent No.5 has taken this action only after issuance of policy of allotment of land in the year 2001. Being a Minister or MLA, he apparently would yield enormous influence. He could easily manage to first deposit the lagan by showing his possession over the land from 1994 and then got the land allotted to him. If really respondent No.5 was in possession of this land, though he was not residing in this village, obviously he was expected to regularly deposit the lagan/lease money and could not be expected to do so in one go and that too after having made application for allotment. 23. The counsel appearing for respondent No.5 or the State counsel has not lot many documents to show that respondent No.5 was in cultivating possession of this land since 1994. 23. The counsel appearing for respondent No.5 or the State counsel has not lot many documents to show that respondent No.5 was in cultivating possession of this land since 1994. Even the jamabandi showing respondent No.5 to be in cultivating possession is obtained on 25.1.2002, which as per the petitioner, was obtained by him after exercising his political influence respondent No.5 being close to Tehsildar. 24. Respondent No.5 even has not disputed this fact that he is already possessing land measuring more than 12 acres in village Fatehgarh Lakha, Tehsil Phillaur, District Jalandhar. This fact is denied by the official respondents for want of knowledge, whereas respondent No.5 has chosen not to file any specific response to these allegations contained in para 10(xi) of the petition. Respondent No.5 rather has chosen to file response to all the grounds in few lines in one go without disputing or contesting any of the pleas raised in this petition. His response to all the grounds would need a notice and is as under:- “10(i) to (xiii) that the impugned orders passed by various lower revenue authorities are perfectly valid & legal & hence are not liable to be interfered with at this stage. No fresh ground arises for the kind adjudication by this Hon’ble Court as each & every ground factual/legal has already been dealt with vide the impugned orders by various lower authorities.” 25. As per section 4 of the Act, the maximum area which can be allotted to a person should not exceed 5 standard acres or 10 ordinary acres. Once respondent No.5 has not denied that he was already possessing land measuring over 12 acres, and thus has come to own 16 acres of land, he would be rendered ineligible for this allotment. He has now in his possession excess land than permitted as per Section 4 of the Act. The effect of Section 4 obviously has not been considered and noticed by any one in chain. Perhaps this has been ignored by all the concerned persons being blinded by the position held by respondent No.5, who even now is a Minister in the State Government. This reason coupled with the other telltale signs noticed in this case would show that this allotment has been made illegally and unauthorisedly without properly looking into the entitlement of respondent No.5. This reason coupled with the other telltale signs noticed in this case would show that this allotment has been made illegally and unauthorisedly without properly looking into the entitlement of respondent No.5. He being an influential political figure and stake holder in the Governance of the State could be expected to behave in a better manner. He rather has shown greed to seek benefit by getting Government land. A person, who is an elected representative and is a Minister for considerable duration, would not require any such preferential or concessional allotment of a land by showing to be in an unauthorised occupation of a land owned by the Provincial Government. Was it fair for him to urge that being an MLA or a Minister, he was unauthorisedly occupying the land belonging to the Government of which he is a part and that it should be allotted to him. A Sarpanch or a Panch in a village cannot and is not allowed to remain so if he is in unauthorised occupation of a Panchayat land or a Government land. By the same Government, such a Sarpanch or a Panch is placed under suspension. Should there be a different standard for a Minister, who is part of the governance and who gets himself allotted a land on the ground that he has been in unauthrised occupation thereof. A purity of administration would expect a much better behaviour from a person, who is a part of governance and even if he was unauthorisedly occupying the land belonging to the Government, he ought to have voluntarily given up this possession for use of this land either by the Government or by some needy person or for being put to some better use. 26. It is alleged that not only respondent No.5 has got this land allotted to himself in this unauthorised and illegal manner, but is now planning to sell the same. Perhaps the condition contained in his conveyance deed would be a meaningless for him and he can manage to sell the land ignoring the ban for sale for twenty years. After all, he is ruling being a Minister. 27. This allotment obviously has not been analyzed properly by all the officials apparently being under the influence and glaze of the authority of respondent No.5. After all, he is ruling being a Minister. 27. This allotment obviously has not been analyzed properly by all the officials apparently being under the influence and glaze of the authority of respondent No.5. It would call for interference if not for anything else to ensure purity of administration on the part of those who govern. This allotment cannot be sustained. It is a different matter that the allotment suffers from serious flaws and illegalities which would need to be corrected by judicial intervention. 28. The writ petition is accordingly allowed. The allotment of this land made in favour of respondent No.5 is set-aside. The necessary consequences and the follow up action on the conveyance deed which has been executed subsequently would follow.