Punjab-Haryana High Court
Rajinder Singh And Another vs Financial Commissioner (Appeals-I) on 21 March, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 3821 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 3821 of 2011
Date of Decision: 21.3.2013
Rajinder Singh and another
.....Petitioners.
Versus
Financial Commissioner (Appeals-I), Punjab & others
.....Respondents.
CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Vikas Bahl, Advocate
for the petitioners.
Mr. Pankaj Mulwani, DAG, Punjab
for the State.
Mr. Amit Jain, Advocate
for respondents No. 2 to 4.
***
1.Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? RAMESHWAR SINGH MALIK J.
The present writ petition is directed against the order dated 28.10.2010 (Annexure P-8), passed by the Financial Commissioner, Punjab, upholding order dated 14.8.2006 (Annexure P-5), passed by the Commissioner, Jalandhar Division and the order dated 31.10.2005 (Annexure P-3), passed by the Collector, Nawanshahar, ordering that till the validity of will was decided in the civil suit pending between the parties, mutation of inheritance be sanctioned, as per natural succession.
Civil Writ Petition No. 3821 of 2011 2
Brief facts of the case, which are hardly in dispute, are that Late Sh. Harnam Singh son of Sh. Waryam Singh died on 1.10.2002. Consequent upon his death, succession opened and mutation of inheritance was entered by Halqa Patwari, as per natural succession in favour of three daughters of the deceased, namely Smt. Surinder Kaur, Smt. Manjit Kaur and Smt. Mohinder Kaur, besides in favour of heirs of his pre-deceased son namely Sarwan Singh. Before Assistant IInd Grade, Nawanshahar could sanction mutation on the basis of the natural succession, petitioners moved an application claiming that Late Sh. Harnam Singh had executed a will dated 20.8.2002 and prayed for sanctioning the mutation on the basis of the said will. Thus, the mutation became contested and the Assistant Collector IInd Grade, referred the matter to the Assistant Collector Ist Grade, Nawanshahar. After hearing the parties, going through the evidence led by them, Assistant Collector Ist Grade, Nawanshahar, held that the will Ex. A/1 was free from any suspicious circumstances. He accepted the will as a valid document and sanctioned the mutation on the basis thereof, in favour of the petitioners, vide his order dated 31.8.2005 (Annexure P-2). Dissatisfied, daughters of the deceased Late Shri Harnam Singh filed appeal before the Collector, who accepted the same vide impugned order dated 31.10.2005 (Annexure P-3), holding that since intricate questions of facts and law were involved, which can be decided only by the civil court, it would not be appropriate to sanction the mutation on the basis of will until and unless its validity was decided by the learned civil court. Thus, he set aside the order dated 31.8.2005 Civil Writ Petition No. 3821 of 2011 3 (Annexure P-2) passed by the Assistant Collector Ist Grade, Nawanshahar and ordered that mutation be sanctioned as per natural succession, i.e. in favour of the daughters as well as in favour of the legal heirs of pre-deceased son of Late Shri. Harnam Singh. Petitioners filed their appeal before the Commissioner vide Annexure P-4, which came to be dismissed, vide order dated 14.8.2006 (Annexure P-5). It is pertinent to note here that after passing the impugned order Annexure P-3, petitioners filed a civil suit, which is pending between the parties. Thereafter, the petitioners approached the Financial Commissioner by way of revision petition which was also dismissed vide impugned order dated 28.10.2010 (Annexure P-
8).
Feeling aggrieved against the abovesaid orders passed by the Collector, Commissioner and the Financial Commissioner, petitioners have approached this Court by way of instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Certiorari for quashing the impugned order. That is how, this Court is seized of the matter.
Notice of motion was issued and pursuant thereto, written statement was filed on behalf of respondent Nos. 2 to 4. The petitioners filed their replication to the written statements filed on behalf of respondents No. 2 to 4.
Learned counsel for the petitioners submits that the only factually correct and legally justified order was that of Assistant Collector Ist Grade, Nawanshahar dated 31.8.2005 (Annexure P-2), which has been illegally set aside by the Collector. He further Civil Writ Petition No. 3821 of 2011 4 submits that the Commissioner as well as the Financial Commissioner also fell into serious error of law while not appreciating true facts as well as legal aspect of the matter while passing their respective impugned orders. He next contended that mutation does not confer title on any of the parties. The validity of the will was rightly appreciated by the Assistant Collector Ist Grade, Nawanshahar, holding that will was a genuine document. He submits that in such a situation, the Collector, the Commissioner as well as the Financial Commissioner have acted without jurisdiction while interfering in the orders passed by the Assistant Collector Ist Grade. To substantiate his contentions, learned counsel for the petitioners relies upon the four judgments viz. Harjit Kaur Vs. Kartar Kaur, 2007 (3) RCR (Civil) 196, passed by a Division Bench of this Court, Rur Singh (Th. LRs) and others Vs. Bachan Kaur, 2009 (2) RCR (Civil) 511, passed by the Hon'ble Supreme Court of India, Janardan Badrinarayan Patel Vs. Sheth Ambalal Himatlal, 2000 (1) RCR (Civil) 549, passed by the Gujarat High Court and Sundhri (Dead) through LRs. Vs. Lala Ram (Dead) through LRs., 2005 (2) RCR (civil) 140, passed by a Single Bench of this Court. Finally, he prays for setting aside the impugned orders by allowing the present writ petition.
Per contra, learned counsel for the respondents submits that the order passed by the Assistant Collector Ist Grade, Annexure P-2 was patently illegal because of which it was rightly set aside by the Collector. He further submits that since after passing of the order dated 31.10.2005 (Annexure P-3) by the Collector, Nawanshahar, the Civil Writ Petition No. 3821 of 2011 5 petitioners themselves have filed civil suit for declaration on the basis of will dated 20.8.2002, their appeal before the Commissioner and revision before the Financial Commissioner were not even maintainable. He next contended that the Collector has rightly come to the conclusion that the will was shrouded by suspicious circumstances, because of which, he rightly ordered to sanction the mutation on the basis of natural succession. He also submits that validity of the will cannot be decided in mutation proceedings which were summary in nature and it was only the civil court, which would be competent to decide the validity of the will because intricate questions of facts and law, would be involved. To buttress his arguments, he relies upon the Division Bench judgments of this Court in Jagjit Sigh Vs. Divisional Commissioner, Patiala and others, 2012 (4) PLR 289 and judgment dated 30.11.2012 passed in CWP No. 14419 of 2011 (Suhag Wanti Vs. Commissioner, Patiala Division, Patiala and others). He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in view of the fact situation of the present case, no interference is called for at the hands of the Court, while exercising its writ jurisdiction under Articles 226/227 of the Constitution of India. To say so, reasons are more than one, which are being recorded hereinafter.
It is an admitted position on record that after passing of Civil Writ Petition No. 3821 of 2011 6 the order dated 31.10.2010 (Annexure P-3) by the Collector, Nawanshahar, petitioners themselves have filed a civil suit for declaration before Civil Judge (Sr. Division), Nawanshahar titled as Surjit Kaur and others Vs. Mohinder Kaur and others and plaint thereof, has been placed on record as Annexure R-2, along with the written statement filed on behalf of respondent No. 2 to 4. A perusal of the plaint, Annexure R-2, would show that the petitioners have also sought consequential relief of permanent injunction restraining defendants No.1 to 3 from interfering in their possession and from alienating/selling or transferring the same in any manner. However, simultaneously, the petitioners filed their appeals before the Commissioner against the orders passed by the Collector. Thus, the petitioners had been pursuing their parallel remedies before the learned civil court as well as before the revenue courts.
Filing of civil suit itself prima facie shows that the petitioners were themselves not confident about the validity of the will because of which they themselves filed a suit for declaration, claiming themselves to be owners in possession on the basis of the same will, which was made the basis for claiming the sanctioning of mutation in their favour before Assistant Collector Ist Grade. Thus, in view of this peculiar fact situation of the case, no error of law has been committed by the Collector, Commissioner as well as by the Financial Commissioner, while passing their respective impugned orders.
It is a common case of the parties that due opportunity of being heard was provided by the Collector to both the parties before Civil Writ Petition No. 3821 of 2011 7 passing the impugned order dated 31.10.2005. The Collector has considered each and every aspect of the matter before arriving at a judicious conclusion. Operative part of his order dated 31.10.2005 (Annexure P-3), reads as under:'-
"I have heard the arguments put forth by the Ld. Counsel for both the parties and have given thoughtful consideration to the record led before me. In this case, the deceased was a permanent resident of village Dopalpur and had been staying with the respondents. However, it is not understood as to what were the compelling reasons before the testator that he had to go to Ludhiana for execution of Will in favour of his daughter-in- law and grand sons. In any case, daughters were not residing in the village i.e. Dopalpur. The deceased could have safely got the Will executed and registered in the Tehsil at Nawanshahar itself as none of his daughters was ever supposed to be following him every where. Further, the deceased had expired just after a period of 40 days from the date of execution of the Will also raises suspicion. Further, none of the witnesses could identify the executant as none of them belong to village Dopalpur. Moreover, if the Will was Civil Writ Petition No. 3821 of 2011 8 genuine document, then beneficiaries of the Will could have got the same registered earlier also. There was no occasion for them to wait for full nine months. Under these circumstances, the alleged Will seems to be a fictitious and ingenuine document and therefore the same deserved to be ignored. Such intricate questions of facts/law should be got decided in the civil court and revenue officers, should restrain themselves on such issue. Based on the reasons given above, I am of the considered opinion that the Will dated 20.8.2002 is shrouded by suspicious circumstances and thus is a ingenuine document. Accordingly, the mutation of inheritance of Harnam Singh deceased is sanctioned as per natural succession i.e Surinder Kaur, Mohinder Kaur, Manjit Kaur ¼ share each and Surjit Kaur widow of Sarwan Singh, Rajinder Singh, Sukhwinder Singh sons and Balwinder Kaur daughter 1/16 share each. Record be consigned to the record room after due compliance."
Thereafter, the Commissioner re-examined the matter, heard both the parties and passed the order dated 14.8.2006 (Annexure P-5), without committing any error of law. Similarly, the Civil Writ Petition No. 3821 of 2011 9 Financial Commissioner again re-examined the matter and rightly appreciated the factual as well as legal aspect thereof, before passing the impugned order dated 28.10.2010 (Annexure P-8) and operative part thereof, reads as under:-
"I have considered the rival contentions carefully and have gone through the record of the case. It is seen that the Collector had noted various suspicious circumstances in his detailed order. These are summarized as below:-
(i) The deceased was the resident of village Dipalpur, Tehsil and District S.B.S.Nagar but the will has allegedly been executed at Ludhiana.
(ii) The testator passed only after 40 days after the execution of the will.
(iii) The witnesses to the will could not identify the testator.
(iv) The will was registered as late as nine months after the death of the testator.
These circumstances have also been noted by the Commissioner, Jalandhar Division. In view of the settled legal position that Revenue Officers should not act upon an unregistered will if there is even the slightest Civil Writ Petition No. 3821 of 2011 10 doubt about its execution, I do not find any infirmity or irregularity in the impugned order. This revision petition is, accordingly, held to be without merit and is dismissed."
A combined reading of the above said orders would show that the respondent revenue authorities have proceeded on factually correct and legally justified approach while passing their respective impugned orders. The Collector, Commissioner as well as the Financial Commissioner have recorded their concurrent findings of facts.
During the course of hearing, learned counsel for the petitioners failed to point out any patent illegality or perversity in any of the impugned orders. Having said that, this Court feels no hesitation to conclude that the respondent revenue authorities have arrived at a conclusion which is well justified in law. The mutation proceedings are summary in nature. The intricacies of facts as well as that of law which are involved, for deciding the validity of Will, will be the exclusive domain of the learned civil court and any decision thereof, would be binding upon the parties as well as on the revenue authorities. In this view of the matter, no fault can be found with the impugned orders, passed by the respondent revenue authorities.
So far as the judgments relied upon by learned counsel for the petitioners are concerned, there is no dispute about the law laid down therein, however, the same are of no help to the petitioners, being clearly distinguishable on facts. In the present case, it is the petitioners who have approached the civil court by filing Civil Writ Petition No. 3821 of 2011 11 a suit for declaration claiming themselves to be owners in possession on the basis of same very will. The judgments of the Hon'ble Supreme Court, Gujarat High Court as well as of this Court in Sundhri's case (supra) are regarding the validity of will and about relevant factors for proving the execution of will. So far as the validity of the will in the present case is concerned, the same is pending between the parties before the learned civil court.
It is also the settled proposition of law that whatever will be the outcome of the civil court proceedings culminating into the decree, will be binding on the revenue authorities, as well. Thus, since the validity of the will is yet to be established by the petitioners in their own civil suit for declaration, they cannot be heard to say that even during the pendency of the civil suit, mutation should be sanctioned in their favour on the basis of that very will. In somewhat similar situation, question arose before a Division Bench of this Court in Suhagwanti's case (supra), as to whether the entries in the revenue record pertaining to Khasra girdawris, should be carried out during the pendency of the civil suit and whether the revenue authorities would have any such jurisdiction. Answering this important question of law, the Division Bench in Suhagwanti's case (supra), held as under:-
"While making the reference,
learned Single Judge has expressed his
reservations regarding observations in
Niranjan Singh and others' case (supra) on the ground that if ultimately entries are to be Civil Writ Petition No. 3821 of 2011 12 made in khasra girdawari according to the Civil Court judgment, then the act of the revenue authorities carrying out amendments in the khasra girdawari as per crop inspection at the time of harvest would be a futile exercise.
We would answer the question posed by the learned Single Judge first of all reiterating that rights of the parties in a suit, before a Civil Court, whether with regard to ownership or possession are crystalized on the date of filing of the suit and are determined, as they existed on the date of commencement of the lis. In case a party looses its title over the property in dispute during pendency of the suit, a Civil Court would not be competent to grant a declaration of ownership. In case a defendant produces documentary evidence to prove change of possession and denies the possession of the plaintiff, though the Civil Court may have directed parties to maintain status quo with regard to possession, the corrected khasra girdawari would not be of any help to the defendant until and unless it is proved by independent evidence that possession of the said property was itself relinquished by the plaintiff in favour of the Civil Writ Petition No. 3821 of 2011 13 defendant and the crop was sown by the defendant which had been so recorded by the Halqa Patwari at the time of harvest inspection or preparation of khasra girdawari.
As we have already noticed, the object of harvest inspection/girdawari is to collect accurate information regarding crops, change in rights, rent and possession of land, amendments required in the village map, the data with regard to crops for the purpose of overall planning. One must understand that basis or nature of a revenue entry, namely, it neither confers nor divest a party of its title whether proprietary or possessory and is a mere fiscal entry recorded to update the revenue record. It, therefore, cannot be held that a khasra girdawari cannot be recorded or corrected during pendency of a suit.
Thus, the question posed is hereby answered by holding that a revenue authority has jurisdiction to conduct spot inspection with regard to change of entries in the khasra girdawari even if a suit involving a question of title and/or possession is pending, but such an entry is not binding upon a Civil Court and any change of possession has to be proved by Civil Writ Petition No. 3821 of 2011 14 independent material that may be placed before the Court."
Similarly, in the case of mutation, a Division Bench of this Court in Jagjit Singh's case (supra), opined as under:-
"The fact that the power of the Revenue Officer while sanctioning mutation is an administrative function gets support from the fact that Chapter IX of the Act dealing with the partition of the land empowers a Revenue Officer to determine the question of title as though he was such a 'Court'. If the Revenue Officer acts as a 'Court' under the provisions of Punjab Tenancy Act, 1887, such Revenue Officer discharges quasi judicial functions, but if he acts as a 'Court' under clause (b) of Section 17(2) of the Act, the Revenue Officer would be acting as a 'Civil Court'. Therefore, the same Act in respect of partition empowers the Revenue Officer to act as a 'Court', but on the other hand, the exercise of powers by a Revenue Officer in respect of determination of disputes under Section 36 of the Act, is only an administrative function. In view of the Division Bench Judgment of this court in Sham Kaur's case (supra), with which we are not only bound but are in respectful agreement with, we Civil Writ Petition No. 3821 of 2011 15 hold that the revenue officer while sanctioning mutation is discharging purely administrative functions and not that of a quasi judicial authority possessing some of the trappings of a court.
xxxxxx The judgments, referred to above, have consistently held that the mutation entries are primarily for fiscal purposes recorded in the interest of the State as the only question raised and debated before them. But as the mandate of Section 31 of the Act, the record-of-rights is also to include the name of persons, who are land-owners, tenants or assignees of land- revenue in the estate or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein. Such records are still required to be maintained even if, the land revenue is not payable by the landowners. The purpose of realizing land revenue is not the sole purpose of the maintenance of the records, but one of the purposes contemplated by Section 31 of the Act. Since the proceedings are summary in nature and in exercise of administrative functions, therefore, such proceedings do not Civil Writ Petition No. 3821 of 2011 16 create or extinguish any right or title in the land. The right or title in the property is to be decided by the Civil Court. Therefore, this Court in exercise of writ jurisdiction does not interfere with the orders sanctioning mutation, as such process does not involve any adjudicatory process of resolution of disputes amongst the parties and that any decision arrived at in the mutation proceedings does not determine the rights or interest of the parties.
With the said observations, the question of law is answered that the mutation proceedings cannot be kept in abeyance during the pendency of the dispute before the Civil Court. The revenue officers are duty bound in terms of the statute to enter mutations in exercise of their administrative functions."
Respectfully following the law laid down by the Division Bench of this Court, it is unhesitatingly held that the respondent revenue authorities have rightly sanctioned the mutation on the basis of natural succession, ignoring the will, validity whereof is pending consideration before the learned civil court.
Further, since the Assistant Collector Ist Grade, was performing only his administrative functions while sanctioning the mutation, he should have restrained himself from deciding the issue Civil Writ Petition No. 3821 of 2011 17 of validity of the will for the simple but strong reason that it will be the exclusive domain of the learned civil court. However, in the present case, Assistant Collector Ist Grade, Nawanshahar, proceeded to decide the validity of will, thereby acting without jurisdiction. It is so said, because while performing his administrative functions, Assistant Collector Ist Grade was not having the jurisdiction to exercise his quasi judicial authority for deciding the validity of will. This apparent jurisdictional error was rightly set right by the Collector while accepting the appeal of the respondents and the order passed by the Collector was rightly upheld by the Commissioner as well as by the Financial Commissioner. Thus, there is no illegality or perversity in any of the orders passed by Collector, Commissioner and the Financial Commissioner, which deserve to be upheld.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that present writ petition is misconceived, bereft of any merits and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, the instant writ petition stands dismissed.
(RAMESHWAR SINGH MALIK) JUDGE 21.3.2013 AK Sharma