Punjab-Haryana High Court
Sawarna Ram vs State Of Punjab And Ors. on 10 December, 2003
Equivalent citations: (2004)136PLR835, 2004 A I H C 1048, (2004) 1 PUN LR 835 (2004) 2 RECCIVR 25, (2004) 2 RECCIVR 25
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. The petitioner seeks the issue of a writ in the nature of Certiorari/Mandamus/Prohibition quashing the order Annexure P6 qua the petitioner dated 9.5.1971 passed by the Deputy Commissioner, Hoshiarpur relating to allotment of inferior land in Village Chak Sowana (File No. 39) cancelling the land earlier allotted to the petitioner, on the basis of the government instructions on the subject contained in Government Circular No. 2692-R-III-68/1952 dated 31.3.1968.
2. The Governor of Punjab issued an order for disposal of inferior evacuee land purchased by the Central Government, Ministry of Rehabilitation. In this policy, it was provided that after establishing a colony for Ex-serviceman, Colony for Graduates in Agriculture in an area of about 500 acres of land, 50% of the remaining land was to be allotted to Harijans of the Village and the rest to other landless person, including the members of Scheduled Castes, Backward Classes and Indian Christians of the village as well as Ex-Servicemen on terms and conditions contained in Memo No. 7841-JN(iv)-61/2699 Chandigarh dated 29.8.1961. The petitioner was a member of the Scheduled Castes of Village Bhikhowal Thana Hariana, Tehsil and District Hoshiarpur. On the recommendations of the Advisory Committee, he was allotted 127 kanals 11 Marias of inferior land in Village Chak Sowana, Tehsil and Distt. Hoshiarpur by order dated 27.12.1962. The possession of the land was delivered to the petitioner on 28.12 1962. In the first instance, the land was leased to the petitioner for a period of 30 years with an option to purchase the land after expiry of five years. Although the petitioner made an application for purchase of the land, it was not filed within the stipulated period. According to the petitioner, no decision had been taken on the aforesaid application. On 31.7.1968, the State of Punjab issued executive instructions through Circular No. 2692-B-III-68/1952. Following these instructions the previous allotments, including the allotment in the name of the petitioner has been cancelled by order dated 9.5.1971. The present writ petition has been filed challenging the aforesaid order on the ground that the same has been passed in breach of rules of natural justice. The writ petition has been filed on 20.12.1983.
3. Respondents No. 3 to 6 are the subsequent allottees of the land. According to these respondents, the possession of the land has already been delivered to them. They have been in cultivating possession of the land for many years. They have placed on record the revenue record of the relevant years to show that they have been in possession from Rabi 1972 to Kharif 1978. From the year, 1979, the petitioner got some of the land from the answering respondents for cultivation as sub-tenant. They have stated that the petitioner has no legal rights to claim the allotment of the land as the same had been made in excess of the powers conferred on the Officer who made the allotment. The allotment itself being void ab-initio, no legal right of the petitioner has been infringed. It is also stated that the allotment of inferior quality of the land was only a concession. Therefore, the petitioner cannot claim allotment as a matter of right.
4. The State of Punjab has also filed the reply. It has been stated that the impugned order was passed by the competent authority on 9.5.1971. The writ petition having been filed after 13 years is liable to be dismissed on the ground of delay and latches only. It is admitted that the allotment was made to the petitioner and, the possession was also delivered to him on 28.12.1962. However, the meeting in which the allotment was made to the petitioner was not attended by the Chairman (Deputy Commissioner) of the Tehsil Advisory Committee nor the allotment made was approved by the Chairman (Deputy Commissioner). In view of the instructions of the Government contained in the letter dated 29.8.1961, the orders of allotment passed by the Tehsil Advisory Committee were without jurisdiction. Therefore, the aforesaid allotment was cancelled by the Deputy Commissioner. It is even denied that the land was ever leased to the petitioner by the competent authority or that any lease-deed was issued to him by the competent authority. The respondents also deny that the petitioner had made any application for the purchase of the land as the same had never been received in the office of the Deputy Commissioner. It is further averred that in the Circular letter No. 2692-R-III-68/1952 dated 31.3.1968, the Tehsil Advisory Committee earlier constituted were dissolved and the Deputy Commissioner had been empowered to make allotment of such lands in future. However, the land allotted to the petitioner by the Tehsil Advisory Committee was not cancelled, on the basis of these instructions, rather it was cancelled on the ground that the allotment had not been approved by the Chairman (Deputy Commissioner) of the Tehsil Advisory Committee. Fresh allotment of the entire inferior evacuee land in the village was made on 9.5.1971 in accordance with the Government instructions of 1961. Even the petitioner was allotted 17 kanals 17 marias of land by the same order dated 9.5.1971. The petitioner opted for the confirmation of the proprietary rights on him and the same were conferred on him. It is further stated that respondents No. 3 to 6 were allotted the land in question on 9.5.1971. Possession of the land was delivered to respondents No. 4 to 6 during Rabi/Kharif, 1972, and to respondent No. 3 from Rabi 1974. The petitioner was, therefore, divested of the possession of the land in pursuance of the order passed by the Deputy Commissioner dated 9.5.1971. It is emphatically stated that the order dated 9.5.1971 was within the knowledge of the petitioner and in fact he had accepted the order because he had been allotted 17 Kanals and 17 Marias of land alongwith others in the same order.
5. I have heard the learned counsel for the parties at length and perused the paper-book.
6. It appears that the writ petition came up for hearing before Swantanter Kumar, J. On 13.11.2002 when the counsel for the State was directed to file an affidavit stating the land which has been allotted to the petitioner; when the allotted land was cancelled; was the allotment of land cancelled after hearing the petitioner. The respondents were also directed to state which 6f the land has been allotted as alternative land to the petitioner when it was allotted and what is its status as of today. In compliance with the aforesaid directions, the State of Punjab has filed an affidavit of Bhupinder Singh, Tehsildar, Hoshiarpur on 25.8.2003. In this affidavit, the facts as noticed earlier have been reiterated. It is further stated that the petitioner had accepted the allotment of the land measuring 17 kanals 17 Marias in the year 1972 and after this period, upto the year 1983 he did not raise any objection or filed any writ petition. Thereafter, further details have been given in paragraph 5 of the affidavit which are as under;-
"5. That land bearing No. 5//l (4-15), 2/7-15) alongwith other Kh. Nos.5//3 (5-4), total measuring 17 Kanals 14 Marias was allotted to Nachhatar Singh son of Partap Singh, 18 Kanals 0 Marias of land, bearing Kh.No.5//9(8-0) alongwith Kh. No. 10/1 (3-16), 8 min (6-4) total measuring 18 kanals-0 Marias Babu Ram son of Bagga Ram and land measuring 17 Kanals-16 Mis. was allotted to Rakha Ram son of Jawahar Ram, bearing Kh.Nos.5//12 (8-0) alongwith Kh.No.5//11/2 (5-12) and 13/1 (4-4) and land measuring 9 Kls. 16 Mis. was allotted to Banta Ram son of Pala bearing Kh.No.5//7 (8-0) 8 min (1-16) in the year 1972 and they were delivered the possession of the land allotted to them as per entries of the relevant revenue records and they are recorded as "Gair Marusi Abal" whereas the petitioner is recorded as "Gair Marusi Dom". However, the petitioner have been in possession of 17 Kanals-17 Marias, and the remaining land had been under his illegal possession."
7. Mr. G.S.Jaswal, learned counsel appearing for the petitioner has vehemently argued that the writ petition is not belated as the order dated 9.5.1971 was not to the knowledge of the petitioner. He submits that the aforesaid order was general in nature and was not brought to the notice of the individuals. The petitioner only came to know about the passing of the aforesaid order when the respondent came to take possession of the land. Thereafter, the present writ petition was filed. Since the petitioner was not aware of the order, the writ petition cannot be dismissed on the ground of delay and latches alone. In support of his submission, learned counsel has relied on the judgment passed in Bodh Rai Sharma and Ors. v. The Improvement Trust, Amritsar and Ors., 1984 P.L.J. 413. Learned counsel also submits that the order dated 9.5.1971 is nullity having been passed in breach of rules of natural justice. Therefore, the aforesaid order can be challenged at any time. Merely because the initial order was without jurisdiction would not be a ground to deny an opportunity of hearing to the petitioner. In support of this submission, learned counsel relies on the judgment of this Court passed in Sh. Gurdas Ram v. The State of Punjab and Ors., 1980 P.L.J. 13.
8. It has, however, been argued by Mr. Sran, learned counsel for respondents No. 1 and 2 that the petitioner having come to Court after 13 years, cannot be granted any discretionary relief even if the impugned order has been passed in breach of rules of natural justice. Learned counsel submits that even void orders would have to be challenged in Court of law within a reasonable period of time. Therefore, the petitioner is not entitled to any discretionary relief.
9. Mr. Y.K.Sharma, learned counsel for respondents No. 3 to 6 has submitted that the petitioner was fully aware of the order dated 9.5.1971 having accepted the allotment of 17 Kanals and 17 Marias of land in his favour. He cannot be permitted to challenge part of the order and accept the part which is beneficial to him.
10. I have considered the submissions made by the learned counsel for the petitioners. A perusal of the judgment of the Division Bench in the case of Sh. Gurdas Ram (supra) shows that the Division Bench was dealing with the order passed on 8.9.1971 passed by Deputy Commissioner whereby he cancelled the allotment of land made to the petitioners thereon. The petitioner took up the matter in appeal before the Commissioner, Jullundur Division which was rejected as being not competent by order dated 5.3.1973. Thereafter, the petitioners filed the writ petition on the sole ground that the order Annexure-C dated 8.9.1971 had been passed by the Deputy Commissioner without hearing the petitioner before passing the same. In the return filed by the State of Punjab, it was not denied that the petitioners had not been heard before the impugned order had been passed. It was highlighted that the allotment could only be made by an authorised person. The land had not been allotted in accordance with the instructions and therefore, the petitioner was not entitled to be heard before passing an order of cancellation. The Division Bench held as follows:-
"4. After hearing the learned counsel for the parties, we are of the view that whether the original allotment was regular or irregular, the matter should have been decided after hearing the petitioner. This matter has already been dealt with by a Letters Patent Bench of this Court in LPA No. 623 of 1975, Smt. Charan Kaur v. The State of Punjab, decided on 23.3.1977 and there also it was held that before passing an adverse order against the petitioners they would be entitled to a hearing.
5. For the reasons recorded above, we allow all these petitions quash the orders of cancellation of allotment and direct that the Deputy Commissioner, Hoshiarpur shall consider all these cases afresh in accordance with law after affording a hearing to the petitioners. The petitioners through their counsel have been directed to appear before the Deputy Commissioner, Hoshiarpur on 12th of November, 1979, for proceeding further in the matter. There will be no order as to costs."
11. A perusal of the aforesaid shows that it was not disputed by the State that the petitioners therein had not been heard. In the present case, the State of Punjab as also respondents No. 3 to 6 have categorically stated that the petitioner was very much aware of the order of cancellation. He was also very much aware of the re-allotment of the land. He himself had been allotted 17 kanals 17 marlas of land in the same order. He accepted the ownership of the land allotted to him by order dated 9.5.1971. He also accepted the delivery of possession vide Rapat Raznamcha waqiati dated 18.2.1972. He became the owner of the aforesaid land. He is stated to be in possession of the aforesaid land till today. He accepted the proprietary rights of the aforesaid land. I am of the considered opinion that the aforesaid facts would clearly show that the petitioner cannot raise the plea that he had been condemned unheard. Therefore, the ratio of law laid down by the Division Bench in the case of Gurdas Ram (supra) would not be applicable in the facts and circumstances of the present case.
12. I also find much substance in the submission made by Mr. Sran that the writ petition deserves to be dismissed on the ground of delay and latches. It has been rightly submitted that the petitioner slept over his right from 9.5.1971 till 1983. Thereafter he filed the present writ petition on 20.12.1983. A perusal of the record, however, shows that the petitioner did not all of a sudden wake up to file the present writ petition. The decision rendered by the Division Bench in the case of Gurdas Ram (supra) has obvi-ously been the real incentive for filing the present writ petition. It is a different matter that the case of the petitioner is not identical to the petitioners in Gurdas Ram's (supra). Mr. Sran is right in his submission that the petitioner has filed this petition in order to take advantage of the judgment rendered by the Division Bench in the case of Gurdas Ram (supra).
13. It is a settled proposition of law that even void orders have to be challenged so that the same can be declared void. Even void orders continue to have effect till the same are declared non-est. In the present case, respondents No. 3 to 6 have been allotted the land which had been earlier allotted to the petitioner. In the present petition no prayer has been made even for the cancellation of the subsequent allotment in favour of respondents No. 3 to 6. Even if the order dated 9.5.1971 is liable to be declared non-est qua the petitioner, it would still remain operative so far as respondents No. 3 to 6 are concerned. The scales of equity and of justice clearly lean against the petitioner and in favour of respondents No. 3 to 6.
14. Although not argued by any of the counsel for the respondents, yet the writ petition deserves to be dismissed also on the ground that the petitioner has not come to Court with clean hands. While exercising writ jurisdiction under Articles 226/227 of the Constitution, this Court has the power to adjudicate on question of law which arise from the perusal of the record. As noticed earlier, the petitioner was well aware of the order dated 9.5.1971. He accepted the bona fides of the order of allotment of 17 Kanals 17 Marias of land. He took possession of land. He was declared owner of the land. He accepted it all. He filed the present writ petition on 20.12.1983. Not a word is mentioned about these facts in the writ petition. In the title page of he writ petition, it is mentioned that the matter is covered by the judgment of the Division Bench of this Court rendered in CWP No. 1388 of 1979, dated 11.10.1979. As noticed earlier, the petitioner has not been condemned unheard and he was, therefore, not entitled to the benefit of the law laid down by the Division Bench. It is settled proposition of law by a catena of judgments of the Supreme Court that any party claiming relief under Articles 226/227 of the Constitution of India is duty bound to make a true and faithful disclosure of all relevant facts. No party is permitted to give selective information to the court. No party can withhold information, which in the opinion of that particular party, may adversely affect merit of the case projected by any particular party. The relevance or otherwise is for the Court to decide. In the present case, the petitioner has concealed allotment of 17 Kanals 17 Marias of land in the very same order which has been challenged in the writ petition. This would be an added ground to dismiss the writ petition.
15. In view of the foregoing discussion, the writ petition is dismissed. No costs.