Punjab-Haryana High Court
Surinder Pal Singh And Another vs The Financial Commissioner ... on 24 July, 2009
Author: Ranjit Singh
Bench: Ranjit Singh
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: JULY 24, 2009
Surinder Pal Singh and another
.....Petitioners
VERSUS
The Financial Commissioner (Appeals-II), Chandigarh and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Sumeet Mahajan, Sr.Advocate with
Mr. Dinesh Ghai, Advocate,
for the applicant-petitioners.
****
RANJIT SINGH, J.
The petitioners have filed this review application to seek review of order passed by this Court on 15.4.2009, dismissing their writ petition in limine. The order under challenge in the writ petition was dated 31.8.2006 passed by the Financial Commissioner (Appeals), Punjab. Gram Panchayat, Hussainpura, had filed a R.O.R before the Financial Commissioner to impugn the order passed by the Commissioner, who had, in turn, set-aside the finding given by the Collector and had upheld the order passed by Assistant Collector IInd Grade. Assistant Collector IInd Grade in fact had R.A.NO.237 OF 2009 IN C.W.P. NO.8960 OF 2007 :{ 2 }:
sanctioned the mutation Nos.276 and 278 on 16.3.1998. This order was challenged by the Gram Panchayat on the ground that Smt.Malkiat Kaur had already died and Surinder Pal and Jagtar Singh, petitioners, had fraudulently shown that the property was purchased from Smt. Malkiat Kaur. The petitioners could neither produced original parchi nor the sale deed before the Collector. He accordingly held that the transaction of sale was a bogus transaction and an attempt to usurp the Panchayat land. The Collector accordingly rejected both the mutations through his order dated 18.6.2001. The Commissioner set-aside the order passed by the Collector and upheld the order passed by Assistant Collector IInd Grade. This order passed by the Commissioner was under challenge before the Financial Commissioner, who set-aside the same. This order of the Financial Commissioner was challenged before this Court through the writ petition, which was dismissed. The review of this order is now being sought.
The counsel representing the petitioners sought number of adjournments for placing on record the copies of plaint, written statement and the judgement and decree passed and sale deeds stated to have been executed by Smt.Malkiat Kaur. This time was granted on 24.7.2007 but till April 15, 2009, when the order was passed, no document had been placed on record. Despite number of adjournments, except for sale deed, nothing was placed on record. The case set-up before the Court was that application was filed for obtaining these documents from the Court and in response thereto, the petitioners were informed that due to dilapidated condition, 80-
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 3 }:
85% record has been spoiled and file could not be traced out from the record in good condition. This application had been returned to the petitioners. It is, thus, obvious that on the date when the case was taken up for hearing, the petitioners and the counsel representing them had expressed their helplessness to produce the requisite documents/record and in this context the Court proceeded to pass the order, review of which is now sought. The ground to seek review is that the documents could not be placed due to communication gap between the counsel and the petitioners and also due to the fact that counsel was under erroneous impression that all the four documents are to be filed together. It is stated that the counsel had the copy of the judgment lying in his brief. Having placed some documents on record, prayer for review is accordingly made.
The counsel, who had initially appeared for the petitioners, is now assisting another senior counsel, Sh.Sumeet Mahajan, who has appeared to argue the review application. It is stated in the application that the agreement was executed directly with Malkiat Kaur and was not executed through attorney. It is also stated that even in the civil suit, Smt.Malkiat Kaur had been arrayed in her own capacity and not through the power of attorney. The plea further is that she had herself appeared and filed a written statement. It is then stated that Smt.Malkiat Kaur was impleaded as proforma respondent through her power of attorney by Gram Panchayat and in this background the petitioners had impleaded Malkiat Kaur through her attorney in the writ petition. While making this ground to seek review, the petitioners are blissfully silent about R.A.NO.237 OF 2009 IN C.W.P. NO.8960 OF 2007 :{ 4 }:
the death of Malkiat Kaur and the date of her death.
The Gram Panchayat had challenged the order passed by Assistant Collector dated 16.3.1998 primarily on the ground that Malkiat Kaur was already dead. Even in the order dated 18.5.2001 passed by Assistant Collector IInd Grade, it is noticed that on 29.7.1997, an application was presented to Tehsildar by Surinder Pal Singh (petitioner No.1) on behalf of Malkiat Kaur, seeking direction to Halqa Patwari to enter mutation in his favour as the land had been allotted to Malkiat Kaur by the Punjab Government. It may be noticed that as per jamabandi for the year 1991-92, the Gram Panchayat was recorded as owner of the land measuring 52 kanals 16 marlas in village Hussainpura. Order of Collector would show that as per the report of Patwari, Surinder Pal Singh, petitioner, who was the applicant, was adamant that the said land be mutated in his favour and he should be shown as owner in possession of the land by virtue of Parchi allotment. At the time of mutation, Surjit Singh had appeared as an attorney of Malkiat Kaur. It would be of interest to notice the arguments advanced by counsel for the Gram Panchayat, which are as under:-
"He further pleaded that as there had been no change of possession, the mutation could not be attested, merely on the basis of a parchi allotment, the authenticity and the validity of which was also in question, as neither any original allotment order had been placed on record nor there was any number of issue on the parchi allotment, as per the photostat copy produced by the respondent. Even R.A.NO.237 OF 2009 IN C.W.P. NO.8960 OF 2007 :{ 5 }:
if the photostat copy of the allotment is to be believed, the allottee did not come forward at present or at any previous appropriate time to stake claim for taking the possession of the said land. This can only lead to the presumption that the allottee is no more. Moreover, the respondents have not produced any sale deeds said to be executed in 1985 and Malkit Kaur has been said to be acting through her so called attorney, Surjit Singh. While presenting a photostat copy of the rule 4(v) of the Punjab Package Deal Properties (Disposal) Rules, 1976, the ld. Counsel further stated that this sale was infact void in the eyes of law as the original allottee could not resell the land allotted to her, as the allottees, who are war widows cannot resell the land for 10 years after allotment under the provisions of the said rule. Rule 4(v) states that "No allottee shall be permitted to sell or alienate in any manner, the land allotted to him or her, before the expiry of a period of ten years, even if the full price has been paid." In view of the said provision of the law, the allotment, even if the same is to be believed to be true, is liable to be cancelled and as such, the property cannot be said to be transferred in the name of the respondents."
The counsel further pleaded:-
".......the respondents are the persons who have been getting such type of allotments made by using their influence and then they have been creating false power of R.A.NO.237 OF 2009 IN C.W.P. NO.8960 OF 2007 :{ 6 }:
attorney's in their favour with the intention of usurping public property in the garb of fictitious land claims created by fabrication of documents. The ld. Counsel also produced a copy of the order dated 2.6.2000 of the court of the learned Civil Judge (J.D.), Ludhiana, in the case of Gurinder Pal Singh Vs. Avtar Singh, pertaining to the same land. After discussing the situation arising out of the attestation of the mutation Nos.276 and 278 (under challenge in this appeal), it has been held by the ld. Civil Judge (J.D.) that the said land is under the ownership of Gram Panchayat, Hussainpura. (a copy of the order has been placed on the file)."
On the other hand the counsel appearing for Surjit Singh, so called attorney of Malkiat Kaur, conceded that there had been no change of possession as the previous cultivators of the land were cultivating the land and paying rent to the Gram Panchayat. Still it was submitted that mutation was rightly sanctioned by Assistant Collector IInd Grade on the basis of a Government letter/parchi allotment, though there had been no transfer of possession. The counsel was asked to produce Malkiat Kaur in the Court but he could not give any convincing answer. They were even asked to produce original copy of the general power of attorney of Malkiat Kaur, which was not produced. They also could not tell if the allottee could sell this land within a period of 10 years in view of Rule 4(v) the Punjab Package Deal Properties (Disposal) Rules, 1976.
It is, thus, clear that Malkiat Kaur was not available during R.A.NO.237 OF 2009 IN C.W.P. NO.8960 OF 2007 :{ 7 }:
those proceedings. They had prayed for adjourning the proceedings sine-die before the Collector on the ground that the respondents had filed suit for declaration before the civil Court. These telltale signs available on record were enough to put doubt even on the sale deed or other documents referred to or relied upon in the writ petition while challenging the order passed by the Financial Commissioner. None of the documents which are now being produced were available on record. The date of death of Malkiat Kaur is also not being disclosed. That will be crucial and material. In any case, Malkiat Kaur was not in this world during the mutation proceedings which were the subject matter of challenge through the writ petition. To seek review in this background, is not within the scope of the provisions of Section 114 read with Order 47 Rule 1. The review of the order can not be sought on the basis of documents which were not placed on the record at the time of passing of the order.
This review petition is not only misconceived but seems to be another aim to usurp the Gram Panchayat's land by those unscrupulous elements, who seems to be indulging and acting on behalf of the claimants in getting belated allotment of claims posing as partially unsatisfied as is noticed in the order passed by the Financial Commissioner. The learned Senior counsel, who has now been brought in to argue the review petition, should have gone through the impugned order, whereby the counsel representing the petitioners at the time of arguing the writ petition, could not answer when asked as to why he could not produce the plaint and judgment from his record as he must have obtained a copy of the judgment for R.A.NO.237 OF 2009 IN C.W.P. NO.8960 OF 2007 :{ 8 }:
getting the sale deed executed through the Court. Now from where the documents have come into existence is really not made out. The story set up to seek review of the order seems to be made up. Not only that these documents were not produced with the writ petition despite the case having been adjourned for more than 2 years but none of these documents were produced before the authorities like Assistant Collector, Collector, Commissioner and Financial Commissioner. The part of the order passed by Collector and reproduced above would show that mutation was being sought on the basis of parchi allotment, not by Malkiat Kaur but by her attorney. Original allotment was not on record and only photostat copy of parchi was produced. The sale deed now placed on record was not produced before the Collector. May be this was to circumvent the objection that Malkiat Kaur could not sell the land allotted within 10 years or that she was not available and so attorney was made to stand on her place. The sale in favour of the petitioners even is not valid. The Collector had even drawn a presumption that the allottee is no more. Less said is better in regard to the conduct of attorney. These documents, which were not produced before the authorities below, can not be permitted to be placed on record. It is sought to be done. Collector asked the petitioners to produce Malkiat Kaur but they could not do so. If sale deed is the basis of claim by the petitioners, then it is not understood as to why they were relying upon parchi allotment before Collector. Everything is fishy. In any event, the reasons on which the review is sought, would not fall within the scope of review.
R.A.NO.237 OF 2009 IN
C.W.P. NO.8960 OF 2007 :{ 9 }:
The review application is accordingly dismissed with costs which are assessed at Rs.10,000/- to be deposited in the account of Legal Service Authority, Punjab.
July 24, 2009 ( RANJIT SINGH ) khurmi JUDGE