Punjab-Haryana High Court
Pawan Kumar And Others vs Financial Commissioner (Revenue) ... on 31 May, 2013
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
CWP No. 18103 of 1996 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 18103 of 1996
Date of Decision:- May 31, 2013
Pawan Kumar and others ..............PETITIONER(S)
vs.
Financial Commissioner (Revenue) Haryana and others
...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. R.C. Setia, Sr. Advocate,
with Mr. Pritam Saini, Advocate,
for the petitioners.
Mr. I.K. Mehta, Sr. Advocate,
Mrs.Ranjita Mehta, Advocate,
for respondent no. 5.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
G.S. SANDHAWALIA, J.
1. The present writ petition has been filed challenging order dated 23.08.1994 (Annexure P-2) passed by the Collector, Yamuna Nagar whereby, he came to the conclusion that it would be in the interest of justice to postpone the ejectment proceedings till the tenant was delivered back the possession of the disputed land and referred the matter to the Financial Commissioner. Further, challenge is also laid to the order dated 17.09.1996 wherein, the Financial Commissioner (Revenue) accepted the reference made by the Collector and ordered that the possession of the land in dispute should be first restored to the legal representatives of the tenant-Antu Ram and only thereafter, a decision should be taken on the ejectment proceedings before the Assistant Collector. A further direction was also issued that the Commissioner should enquire into the matter and CWP No. 18103 of 1996 2 fix the responsibility for non-compliance of order dated 06.07.1989 passed by the Financial Commissioner, Haryana and send the case to the State Government for action against the erring revenue officers. A mandamus is also prayed for by the petitioners-land owners that the ejectment application in Form 'L' filed against respondents no. 5 to 7 by respondent no. 4-Gaushala Committee (Regd.), Ambala Cantt. should also be decided before the possession of the land is delivered to respondents no. 5 to 7, the legal representatives of the tenant Antu Ram. The issue thus, which stands to be decided in the present case is that whether the restitution of the tenants was rightly ordered by the Assistant Collector on account of the setting aside of the ejectment order. It is, thus, necessary to narrate the chequered history between the parties spanning over four decades.
2. The land in question was owned by the Gaushala Committee-
respondent no. 4, who inducted one Antu Ram as tenant prior to 1969 who was the predecessor in interest of respondents no. 5 to 7 and had defaulted in making payment of batai. The application for ejectment was filed in Form 'L" which was allowed by the Assistant Collector Ist Grade, Yamuna Nagar on 30.12.1970 and ejectment of Antu Ram was ordered. In pursuance of the execution, possession was delivered to respondent no. 4 on 11.08.1971, the owner at that point of time, who inducted Raghbir Saran, predecessor-in-interest of the petitioners as a tenant. The appeal filed by Antu Ram was dismissed on 11.11.1971 by the Collector on the ground that it was barred by limitation and the said order was confirmed by the Collector in appeal on 14.02.1972. However, the Financial Commissioner, vide order dated 13.02.1978 came to the conclusion that the appeal against the order of the Assistant Collector should not have been dismissed as time barred by the Collector who should have treated the same as a revision since there was a miscarriage of justice. He accepted the revision petition and set aside the orders of the Collector and the Commissioner and remanded the case to the Collector for decision afresh. In pursuance of the order of remand, the Collector also remanded CWP No. 18103 of 1996 3 the case on 10.07.1978 on the ground that the land owner had filed two cases in Form 'L' and Form 'K' and the reply which the cultivator had given was to Form 'K' and was attached with the file of Form 'L' and thus, directed that opportunity for evidence be given and the case be decided on the basis of merits.
3. Antu Ram, thereafter filed an application under Section 144 CPC for restitution on the ground that the ejectment order had been set aside and he should be delivered possession to which objections were filed by Raghbir Saran, the then tenant. The Assistant Collector ordered the restitution of possession on 30.10.1984 which was challenged by Ragbhir Saran and dismissed by the Collector on 09.09.1985 and the order was upheld by the Financial Commissioner on 06.07.1989. Thereafter, the warrant of possession was issued on 15.12.1989 for delivering possession to the legal representative of Antu Ram (Krishan Chand/respondent no. 5) and an application came to be filed by Raghbir Saran that the proceedings on the application be stayed till the ejectment application was decided, which was allowed by the Assistant Collector on 23/26.03.1991. Thereafter, Krishan Chand moved an appeal against the order, which was accepted by the Collector on 26.12.1991, which was then challenged by Raghbir Saran and the Gaushala Committee in the Court of the Commissioner and was dismissed on 07.06.1994. The property was purchased during the interregnum period on 15.12.1993 by Raghbir Saran. On 08.07.1994, Krishan Chand moved an application before the Assistant Collector that ejectment proceedings be stayed till the possession is restored back and he be permitted to tender the rent. The Assistant Collector, vide order dated 21.07.1994, directed that the application would be heard at the time of decision on the ejectment application which was challenged by the tenants before the Collector, who then passed the impugned order dated 23.08.1994 with a direction that the ejectment proceedings be postponed till the tenant was delivered back the possession of the disputed land. On 04.10.1994, CWP No. 12210 of 1994 was filed by Smt. Raj Kali, widow of CWP No. 18103 of 1996 4 Raghbir Saran alongwith her children including petitioners no. 1 to 3 was dismissed wherein, challenge was laid to the order dated 26.12.1991 whereby the appeal of Krishan Chand had been allowed against the order of the Assistant Collector staying the delivery of possession. Challenge was also made in the writ petition to the order dated 07.06.1994 whereby, the Commissioner upheld the order dated 26.12.1991 and held that the revenue authorities were only taking action as per law. Thereafter, the revision filed by the petitioners was dismissed by the Financial Commissioner on 17.09.1996 (Annexure P-3).
4. Counsel for the petitioner has accordingly submitted that the balance of convenience lies in favour of the petitioners since they are in possession for the last more than four decades in pursuance of a decree by the Court since possession was taken on 11.08.1971 and it would be in the interest of justice if all the applications including the ejectment application and the restitution application are decided together. It is further submitted that the Collector had, vide order dated 10.07.1978, wrongly remanded the matter to the Assistant Collector to look into the issue of forms and he had been asked by the Financial Commissioner to decide the issue vide order dated 13.02.1978 and thus, reliance upon Section 84(3) of the Punjab Tenancy Act, 1887 (for short 'the Tenancy Act') was placed upon that the matter was to be referred to the Financial Commissioner.
5. Counsel for the respondent, on the other hand, has vehemently submitted that the petitioners have been denying the possession and the right to enjoy the fruits of the land since 1984 since the restitution had been ordered under Section 144 CPC. It is contended that in the absence of any ejectment order, respondents no. 5 to 7 are entitled for the possession once the ejectment order itself had been set aside by the Collector on 10.07.1978. It is also submitted that the said order was upheld in appeal and thereafter by the Financial Commissioner on 06.07.1989 and the subsequent application for stay which was initially granted by the Assistant Collector was also set aside and again upheld by the Commissioner CWP No. 18103 of 1996 5 and the said order was also not interfered by this Court in CWP No. 12210 of 1994 on 04.10.1994.
6. After hearing learned counsel for the parties, this Court is of the opinion that there is no merit in the writ petition. The present case is a classic case where the travails of the litigant tenant have been successfully prolonged in spite of the fact that all the authorities have decided in his favour. There is no gain say in the fact that the ejectment order initially passed on 30.12.1970 is no longer in force since on remand by the Financial Commissioner vide order dated 13.02.1978 and thereafter by the order of the Collector dated 10.07.1978, the Assistant Collector had been directed to examine the matter afresh on merits. The application for restitution under Section 144 CPC had thus been allowed by the Assistant Collector on 30.10.1984 since the order of ejectment was not in force. Raghbir Saran had then filed a civil suit for permanent injunction against Antu and the Gaushala Committee from interfering in his cultivating possession, which was decreed in his favour that he should not be ejected except in due course of law. The Gaushala Committee had also appealed against order dated 16.01.1979 by which warrants of possession were issued in favour of Antu, the tenant, which was rejected and the Commissioner, Ambala Division had also upheld the said warrants of possession. Thereafter, Raghbir Saran filed objections against the warrants of possession alleging that he could not be dispossessed except in due course of law as he was a tenant under the Gaushala Committee, which was allowed by the Assistant Collector on the ground that Raghbir Saran is not a party. Antu Ram had to file an appeal before the Collector, who accepted the same on 26.08.1983, who remanded the case for fresh decision. The Assistant Collector, after impleading Raghbir Saran as a party, accepted the restitution application and issued warrants of possession on 30.10.1984. The said order was then challenged by Raghbir Saran before the Collector, Ambala unsuccessfully on 09.09.1985 and thereafter, the matter reached the Financial Commissioner, who, vide detailed order dated CWP No. 18103 of 1996 6 06.07.1989, came to the conclusion that the restitution was permissible since the ejectment order stood set aside and the revenue officer had jurisdiction to order restitution of possession. The relevant portion of the order of the Financial Commissioner reads as under:-
"I have heard arguments of both parties and have gone through the record. The main point of contention is whether the restitution of possession is permissible u/s 144 of CPC or not. I find that the ejectment order against the respondent stands set aside and he has been allowed restitution after due procedure of law. A Revenue Officer has jurisdiction to order restoration of possession in Rule 11 of Punjab Security of Land Tenures Rules, 1953 read with rule 10 of the Punjab Tenancy Act. Rule 11 of the Punjab Security of Land Tenures Rules, 1953 provides that wherever there is no rule prescribing the procedure to be followed by the Revenue Officers under the Act, it shall be regulated as far as may be by the procedure prescribed for the Revenue Officers by the provisions of the Punjab Tenancy Act, 1887 and the rules framed thereunder. On reading rule 10 of the Punjab Tenancy Rules, 1909, it is clear that orders of delivery of possession of immovable property shall be enforced in the manner provided in the Code of Civil Procedure for the time being in force in respect of the execution of the decree, whereby a civil Court has ordered ejectment from or delivery of possession of such property. The order of the Collector for delivery of possession to the tenants can be executed under rule 10 of the Punjab Tenancy Rules, 1919, read with rule 11 of the Punjab Security of Land Tenures Rules, 1953 and the Assistant Collector shall have the same powers as the Civil court has for execution of decree of ejectment from or delivery of possession of that property. If a Revenue Officer CWP No. 18103 of 1996 7 passes the order for delivery of possession, he has got powers to order restoration of possession as well. Besides, a Revenue Officer under the Punjab Security of Land Tenures Act has inherent jurisdiction to order restoration of possession as per ruling given in 1972 PLJ 693 (SB). In the circumstances, I find no illegality or irregularity which warrants my interference in the orders of the lower Court. The revision petition is, therefore, accordingly dismissed.
To be communicated.
Chandigarh dated the 6th July, 1989"
7. However, the petitioners thereafter filed the application for staying proceedings before the Assistant Collector, who allowed the same on 23.03.1991 and which was set aside on 26.12.1991. Against the appeal filed by Krishan Chand, the Gaushala Committee and Raghbir Saran filed a joint appeal before the Commissioner, which was dismissed on 07.06.1994 wherein, it was held that they were unnecessarily misusing the process of law and prolonging the matter for restoration. It was further held that the claim of Raghbir Saran had been dismissed uptill the Financial Commissioner on 06.07.1989 and the sub-ordinate revenue officers were bound to obey the order of the Financial Commissioner. The Assistant Collector had no alternate except to order the restoration of possession. The relevant portion of the order dated 07.06.1994 read as under:-
"5. I have heard the ld. Counsels for both the sides in detail and also gone through the relevant record on the file carefully. A perusal of the case reveals that the appellants are unnecessarily by mis-using the process of law prolonging the matter of restoration of the possession to the respondent. The appellant No. 2 Raghbir Saran who is CWP No. 18103 of 1996 8 alleged to be in possession of this land as tenant under appellant No. 1 has agitated his claim/right up to the Financial Commissioner, Haryana and his claim was dismissed on 6.7.1989. It was also held that the Assistant Collector Ist Grade was empowered to issue warrant of possession for restoration of the possession to the respondent. The subordinate revenue officers are bound to comply with the orders of the Financial Commissioner. The application of the respondent under Section 144 CPC was accepted and warrant of possessions for restoration of possession were ordered to be issued on 30.10.1984 by the Assistant Collector Ist Grade, Jagadhri. The revision against this order by the appellant No. 2 Raghbir Sharan was dismissed by the ld. Financial Commissioner, Haryana on 6- 7-1989. In view of the above, the Assistant Collector had no alternative except to order the restoration of possession. The Assistant Collector Ist Grade Jagadhri by passing the order dated 26.3.1991 whereby he kept the restoration application pending till the decision of the ejectment case has committed a violation of F.C.'s orders. This mistake was set right by the Collector vide his impugned orders. As regards the civil suit of permanent injunction filed by appellant No. 2 in the civil court, the interim orders were that they should not be ejected except in due course of law. The relevant authorities are taking action as per law only. Therefore this does not help the appellants at all. The other point regarding non impleading the other two brothers as a party in this case has been raised by the appellant for the first time and is not CWP No. 18103 of 1996 9 tenable. The other two brothers, it appears have no objection in giving the possession of this land to respondent Krishan Chander only as per their family settlement.
In view of the above, this appeal is devoid of any merit and therefore is dismissed.
Announced."
8. This order was further challenged before this Court on CWP No. 12210 of 1994 and a Division Bench of this Court passed the following order:-
"After hearing learned counsel for the parties, we do not find it to be a fit case to interfere in our writ jurisdiction. The Revenue Authorities concerned shall proceed and determine the case according to law and procedure and as per directions already issued and dispose of the very old cases expeditiously. Dismissed."
9. Thus, it would be clear that the petitioners and the predecessors-in- interest, have succeeded in harassing the private respondents no. 5 to 7 successfully since 16.01.1979 when warrants of possession were first ordered in their favour. Period of more than 34 years has expired since then and the petitioners have repeatedly dragged the said private respondents either in Civil Court proceedings by taking injunctions or approaching the highest Revenue Court unsuccessfully and also repeated applications have been filed in one form or the other to delay the delivery of possession and implementation of the order whereby, the restitution had been directed in favour of respondents no. 5 to 7. There is no illegality in the orders of the authorities below, who have directed that possession firstly be handed over to respondents no. 5 to 7 before a decision is taken on ejectment proceedings. The submission of the counsel that the proceedings should have been decided together is without any basis in view of the protracted litigation, which the petitioners have resorted to, unsuccessfully. The writ of mandamus for CWP No. 18103 of 1996 10 directing the authorities to decide the ejectment proceedings and the restitution application together cannot be accepted and the submission that merely because the petitioners are in possession of the land in dispute for the last 40 years would entitle them to any relief, cannot be digested in the present case. The Hon'ble Apex Court, in Indian Council for Enviro-Legal Action vs. Union of India and others, 2011 (8) SCC 161 examined the principles of restitution and the abuse of the process of Court and issue of doctrine of the unjust enrichment of unscrupulous litigants who took advantage by filing various applications to delay the final proceedings. Accordingly, it was held that in order to ensure that the abuse of the legal process is not done, the Courts should adopt a pragmatic approach and also impose realistic costs since litigation is turned into a fruitful industry by such litigants. The relevant observations of the Hon'ble Apext Court read as under:-
"216. In consonance with the principle of equity, justice and good conscience judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved CWP No. 18103 of 1996 11 gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.
217. The court's constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.
xxx xxx xxx xxx xxx
223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the CWP No. 18103 of 1996 12 credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."
10. Present case is also one such case which falls in such category where the petitioners have unjustly enriched themselves by retaining possession for the last more than three decades and made respondents no. 5 to 7 run from one court to the other, whether it be the civil Court or the revenue Courts and this Court in an effort to retain their possession.
11. The contention of the counsel for the petitioner that in view of Section 84(3) of the Tenancy Act, the Collector on 10.07.1978 should have submitted the record to the Financial Commissioner instead of remanding the matter to the Assistant Collector for fresh decision on merits, is without any substance. The said order is not a subject matter of challenge before this Court and it was never challenged and became final inter se the parties. As noticed above, the warrants of possession issued in the restitution application were subsequently challenged unsuccessfully as already has been narrated above and, therefore, the petitioners are not legally entitled now to challenge the legality and validity of the orders which have become final inter se the parties.
12. Accordingly, keeping in view the observations made by the Hon'ble Apex court in the Indian Council's case (supra), a finding can safely be recorded that the petitioners herein have misused the process of law and accordingly CWP No. 18103 of 1996 13 exemplary costs necessarily are to be imposed upon them.
13. Accordingly, the writ petition is dismissed with costs of `50,000/-, which will be deposited with the Assistant Collector, Yamuna Nagar at Jagadhri and payable to respondents no. 5 to 7 within a period of 2 months from the date of order, failing which private respondents no. 5 to 7 shall be free to execute the same.
31.05.2013 (G.S. Sandhawalia)
shivani Judge
CWP No. 18103 of 1996 14