Punjab-Haryana High Court
Nagar Panchayat Begowal vs State Of Punjab And Others on 9 January, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CWP No.21578 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CWP No.21578 of 2010 (O&M)
Date of Decision: 09.01.2014
*****
Nagar Panchayat Begowal, Tehsil Bhollath, District
Kapurthala
. . . .Petitioner
Versus
State of Punjab and others
. . . . Respondents
*****
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
*****
Present: Mr.Harsh Aggarwal, Advocate,
for the petitioner.
Mr.V. Ramswaroop, Addl. A.G. Punjab
Mr.J.S. Wasu, Advocate,
for respondent Nos.6 and 7.
*****
RAKESH KUMAR JAIN, J.
The petitioner has challenged the validity of order dated 12.5.2010 passed by respondent No.2 and has prayed for cancellation of allotment of land in dispute in favour of the private respondents made out of the land of Shamilat Deh.
In brief, the facts of the case are that Tehsildar (Sales)-cum-Managing Officer, Kapurthala, allotted land bearing Khasra No.227 min (03-0), 315/1 min (01-0) total 4 kanals situated in village Begowal, Hadbast No.10, Tehsil and District Kapurthala in favour of Laxmi Narayan son of Daulat CWP No.21578 of 2010 (O&M) -2- Ram, resident of 46 Partap Road, Jalandhar in lieu of land measuring 6 standard acres situated in village Kot Butan Dera Ismial Khan, Pakistan, by way of allotment slip dated 7.12.1984. The aforesaid property was purchased by Surinder Pal Singh s/o Late S. Joginder Singh, resident of 31 Habowal Khurd, Ludhiana from the allottee, vide sale deed dated 7.2.1986. The Gram Panchayat, Begowal challenged the allotment of the evacuee land before the Chief Settlement Commissioner, Kapurthala, who vide his order dated 30.3.1989 directed the Gram Panchayat to approach the Deputy Secretary, Rehabilitation for getting the nature of the property decided. The said order was challenged by the Gram Panchayat before the Financial Commissioner, Revenue, Punjab, who vide his order dated 8.8.1995 held that "in case Rehabilitation Department comes to the conclusion that the land allotted to the respondents was evacuee land, the allottee will hold the land in dispute, otherwise the respondents should be given alternative allotment, under the rules". The allottee and the vendee filed CWP No.17129 of 1996 against the order dated 8.8.1995 which was upheld by this Court vide its order dated 16.1.1997. The report of the Deputy Commissioner, Kapurthala regarding nature of land was called by the Additional Secretary, Revenue, Punjab vide letter dated 11.6.2002, who vide his letter dated 13.8.2002 confirmed that the entire area of village Begowal was owned by the Muslims. CWP No.21578 of 2010 (O&M) -3-
In view thereof, the Financial Commissioner, vide his order dated 11.2.2003, held that the allotted land was an evacuee property. The relevant paragraph of his order reads thus: -
"I, therefore, accept the petition and remand this case to the Chief Settlement Commissioner, Kapurthala with directions to treat the land as evacuee and implement the order dated 8.8.1995 passed by learned Financial Commissioner, Revenue, Punjab and judgment dated 16.1.1997 of Hon'ble High Court in its letter and spirit by restoring the allotment to the petitioners."
The petitioner filed CWP No.14641 of 2003 against the order dated 11.2.2003. The said order was set aside by this Court on 21.2.2006 and the case was remanded back to the Financial Commissioner to decide the same afresh. The operative portion of the order passed by this Court reads as under:-
"For the reasons afore-mentioned and without going into merits of the rival contentions made by learned counsel for the parties and leaving it open to CWP No.21578 of 2010 (O&M) -4- them to raise the same before the learned Financial Commissioner (Revenue) and/or any other appropriate forum, we set aside the impugned order dated February 11, 2003 (Annexure P-
5), for the solitary reason that it lacks non-observance of principles of natural justice and remit the case back to the Financial Commissioner (Revenue) to decide the same afresh after hearing the parties concerned, including the Gram Panchayat, Begowal and /or its successor."
After the remand, the case was adjourned sine die on account of the repeal of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 vide Displaced Persons Claims and Other Laws Repeal Act, 2005 (No.38 of 2005). However, the Punjab Package Deal Properties (Disposal) Amendment Act, 2009 came into force w.e.f. 1.4.2009 and the Financial Commissioner, vide his order dated 12.5.2010 held that the land allotted to allottee Laxmi Narain was an evacuee property and was rightly maintained as an evacuee property in the earlier order passed on 11.2.2003 by the Financial Commissioner, Punjab. He passed his order on the report of the Revenue Department according CWP No.21578 of 2010 (O&M) -5- to which Khasra No.227 Min (4-3) was carved out from old Khasra Nos.3089, 2105, 3190 & 2593 and Khasra No.315//1 (2-6) from Khasra No.4912 and 4963 during the consolidation proceedings as mentioned in Misal Hakiat. It was also observed that in the Jamabandi for the year 1934-38 before the partition, khasra No.3089, 2105 and 3190 were in the names of Fazal Mohammad s/o Amar Khan and Chowdhary Adbul Gaffur Khan s/o Mohand Satik Khan respectively and Khasra No.2593 was in the name of Shamilat Deh Hasab Rasad Zar Khewat. Thus, most of the land was belonging to only Muslims, who migrated to Pakistan and after the partition the Panchayat became owner of the Shamilat Deh.
Learned counsel for the petitioner has submitted that the land in dispute falling in Khasra No. 227 (4-3) is shown as GM Chappar and Khasra No.315/1(2-6) as GM Roori. However, with the passage of time, Chappar and Roori are no more in existence and even the land in dispute has come within the Nagar Panchayat. However, it is submitted that since the land in dispute was recorded as Shamilat Deh and was used for common purposes, therefore, it would vest in the Gram Panchayat and not the custodian. In this regard, he has placed reliance on the Supreme Court judgment rendered in "Gram Panchayat of Village Jamalpur Vs. Malwinder Singh and others" AIR 1985 SC 1394. CWP No.21578 of 2010 (O&M) -6-
On the other hand, learned counsel for the respondents has submitted that since the allotment has been made and possession was delivered to the allottee of the land in dispute by the Tehsildar (Sales)-cum-Managing Officer, Kapurthala on 7.12.1984 as per the allotment slip, the allotment made to him is protected in view of Section 2(g)(ii-a) of the Punjab Village Common Lands (Regulations) Act, 1961 [for short 'the 1961 Act']. In this regard, he has relied upon decision of this Court rendered in the case of "Puran Vs. Financial Commissioner (Appeals), Punjab" 1996(1) PLR 523 (DB) and "Gram Panchayat, Village Kherari, Teh. & Distt. Rohtak Vs. State of Haryana and others" 2004(2) PLR 585 (SB). He has also submitted that the vires of Section 2(g)(ii-a) of the 1961 Act has already been upheld by this Court in "Gram Panchayat of Village Kum-Kalan Vs. The State of Punjab and others" 2010(3) RCR (Civil) 729 (DB). It is further submitted that the petitioners had also made an application within the prescribed time in terms of Section 4-B of the Punjab Package Deal Properties (Disposal) Amendment Act, 2009 [for short 'the Act of 2009'] to the Financial Commissioner on 3.6.2009. It is further submitted that once the property in dispute is determined as an evacuee property by the Revenue Department and the allotment has been made by the custodian before the cut off date as provided under CWP No.21578 of 2010 (O&M) -7- Section 2(g)(ii-a) of the Act, the order passed by the Financial Commissioner cannot be faulted.
I have heard learned counsel for the parties and perused the available record.
Learned counsel for the petitioner has strongly relied upon the decision of the Supreme Court in the case of Gram Panchayat of Village Jamalpur (Supra).
In this regard, it would be relevant to refer to Section 2(g)(ii-a) of the Act which reads that land "was shamilat deh, but has been allotted on quasi-permanent basis to a displaced person, or, has been otherwise transferred to any person by sale or by any other manner whatsoever after the commencement of this Act, but on or before the 9th day of July, 1985". Firstly there is no dispute that the land in question was allotted on 7.12.1984, after the commencement of Act, 1961 and before the cut off date of 9th July 1985. Secondly, the vires of Section 2(g(ii-a) of the Act has been upheld by this Court in the case of Gram Panchayat of Village Kum-Kalan (Supra). Thirdly, the nature of land has been determined on the basis of revenue record to be an evacuee property. In the case of Puran (Supra), it is held that the land excluded under Section 2(g)(ii-a), the right title and interest of the Panchayat in such land shall cease and would vest in the allottee and the persons to whom the land has been sold. The only condition impressed upon is that the CWP No.21578 of 2010 (O&M) -8- consideration amount shall be deposited by the Rehabilitation Department with the department of Rural Development and Panchayats for onward disbursement to the Panchayat concerned. It is, thus, clear from the amended provision of the 1961 Act that the Legislature has recognised sales affected by the Rehabilitation Department even in respect of Shamilat land and by virtue of a deeming provision, the defect, if any, in the action of the Rehabilitation Department to transfer property by way of sale etc. have been removed. Following the aforesaid decision, in the case of Gram Panchayat, vill. Kherari, Teh. & Distt. Rohtak (Supra), this Court had observed that the only course available to the Gram Panchayat, in order to succeed, was either to challenge the vires of the amendment i.e. Section 2(g)(ii-a) of the Act or to establish that the controversy would not fall within the ambit of the said amendment. In the said case, the vires of the amendment was not challenged and the case was decided on the ground that the allotment was made in March 1981 and since it was a sale before the cut off date i.e. 9.7.1985, therefore, it was held that the provision of Section 2(g)(ii-a) of the Act would clearly protect the ownership of the allottee. However, as observed earlier, the vires of the amendment of Section 2(g)(ii-a) of the Act has already been upheld by a Division Bench of this Court in the case of Gram Panchayat of Village Kum-Kalan (Supra), the other course available to CWP No.21578 of 2010 (O&M) -9- the petitioner was to establish that the allottee was not entitled to the allotment de hors the amendment but looking from the admitted facts on record, the allotment has been made to the allottee on 27.12.1984, prior to the cut off date i.e. 9.7.1985, therefore, the provision of Section 2(g)(ii-a) of the Act would apply. Insofar as the allottee is concerned, they had also moved an application to the Financial Commissioner, where their case was pending, for allotment in terms of the Act of 2009.
Thus, looking from any angle, I do not find any error in the order under challenge and hence, the writ petition is found denuded of any merit and is hereby dismissed. No costs.
(RAKESH KUMAR JAIN) 09.01.2014 JUDGE Vivek Pahwa Vivek 2014.01.10 12:39 I attest to the accuracy and integrity of this document