Punjab-Haryana High Court
Municipal Council vs Mohinder Singh And Others on 2 April, 2013
Bench: Rajive Bhalla, Rekha Mittal
CWP No.14195 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.14195 of 2009
Decided on: 02.04.2013
Municipal Council, Zirakpur ..... Petitioner
VERSUS
Mohinder Singh and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr.Rupinder S.Khosla, Advocate, for the petitioner.
Mr.Sarjit Singh, Senior Advocate, with
Mr.D.S.Gurna, Advocate, for respondent No.1.
Mr.J.S.Brar, Advocate, for respondent No.2.
Mr.Nilesh Bhardwaj, DAG, Punjab,
for respondents No.3 and 4.
*******
RAJIVE BHALLA, J. (ORAL)
By way of this order, we shall dispose of CWPs No.11887 and 14195 of 2009 as they involve adjudication of the same questions of fact and law. For the sake of convenience, facts are being taken from CWP No.14195 of 2009.
CWP No.14195 of 2009 has been filed by Municipal Council, Zirakpur, successor to the Nagar Council and Gram Panchayat, Zirakpur, for issuance of a writ of certiorari, quashing order dated 18.03.2009 (Annexure P-3), passed by the Director-cum-Special Secretary, Punjab, Chandigarh, exercising the powers of the 'Commissioner' under the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the "1961 Act") holding that the CWP No.14195 of 2009 -2- land, in dispute, vests in Mohinder Singh.
CWP No.11887 of 2009 has been filed by, one Karam Chand, impugning the above orders on the ground that the land, in dispute, vests in Ishro Devi and not in Mohinder Singh.
Counsel for Municipal Council, Zirakpur, submits that the Collector as well as the appellate authority have disregarded provisions of the 1961 Act, ignored the fact, that the land was merely leased out to Ganga Ram, for seven years, under the East Punjab Utilisation of Land Act, 1949 (hereinafter referred to as the "1949 Act") and by a perverse process of reasoning declared Mohinder Singh, his alleged heir, as owner of the land, in dispute. The Collector and the appellate authority have held that as Mohinder Singh is in possession and the Gram Panchayat has not claimed ownership against other similarly situated allottees/lessees, it has failed to prove its title. It is argued that failure of the Gram Panchayat to claim ownership with respect to other similarly situated lessees, cannot, divest the Gram Panchayat or its successors of their title or confer title upon the private respondent. Mohinder Singh, respondent No.1, claims that he has inherited the land, in dispute, as he is the grandson of Ganga Ram and also pleads that Ganga Ram executed an agreement dated 03.11.1978, agreeing to sell the land, in dispute, to him. In the absence of any document of title, much less, an allotment or even a lease deed beyond the initial period of seven years, Ganga Ram had no right, title or interest that he could pass on to Mohinder Singh, by an agreement to sell or by CWP No.14195 of 2009 -3- inheritance. The land, in dispute, is recorded as ownership of the Gram Panchayat, thereafter, as ownership of the Nagar Council and now the ownership of Municipal Council, Zirakpur. The land, in dispute, clearly vests in the petitioner. The impugned orders, holding to the contrary, may, therefore, be set aside.
Counsel for respondent No.1 submits that it is true that the land, in dispute, was leased to Ganga Ram under the 1949 Act but as no action has been taken against other similarly situated lessees, who have sold the land, the Gram Panchayat is estopped from asserting ownership over the land, in dispute. It is further submitted that the land, in dispute, was Banjar Qadim, and as it was not used for any common purpose, it does not vest in the Gram Panchayat. It is further submitted that as order passed by the Collector has not been challenged in the writ petition, filed by the Municipal Council, the writ petition has to be dismissed summarily for failure to challenge the order passed by the Collector.
We have heard counsel for the parties, perused the impugned order, the pleadings and various affidavits filed by officers of the State of Punjab, during the course of hearing and have no hesitation in holding that the impugned orders are perverse and arbitrary as they disclose a failure to consider the nature of allotment/lease, rights flowing therefrom, have been passed by ignoring the absence of any document conferring proprietary rights upon Ganga Ram, from whom respondents No.1 and 2 draw title and that the land is CWP No.14195 of 2009 -4- recorded as ownership of the Gram Panchayat, thereafter as ownership of the Nagar Council and is now recorded as ownership of the Municipal Council.
Mohinder Singh, filed a petition under Section 11 of the 1961 Act, claiming ownership of the land, in dispute, on the ground that the land, in dispute, was allotted to Ganga Ram. Mohinder Singh relied upon copy of a Rapat Roznamcha, dated 17.02.1968, to contend that the Collector, Rajpura, allotted the land, in dispute, to Ganga Ram son of Sunder Dass. Mohinder Singh also pleaded that Ganga Ram had executed a registered agreement to sell, dated 03.11.1978, in his favour and, after the death of Ganga Ram, he has inherited the rights of Ganga Ram, being his grandson (daughter's son). The petition was opposed by the Municipal Council and the petitioner in CWP No.11887 of 2009. The Collector allowed the petition by holding that the Gram Panchayat is not owner of the land, in dispute. The appeal filed by the petitioner was dismissed. Smt.Ishro Devi, who has since passed away, contested Mohinder Singh's rights by pleading that she is the widow of Ganga Ram. CWP No.11887 of 2009 has been filed by one Karam Chand, alleging that he is the legal representative of Smt.Ishro Devi, while challenging orders passed by the Collector and the Appellate Authority, claims that the land belongs to Smt.Ishro Devi.
The land, in dispute, was Shamilat Deh and, therefore, vested in the Gram Panchayat, predecessor-in-interest of Municipal Council, Zirakpur. The contesting respondents have not adduced any CWP No.14195 of 2009 -5- evidence, to prove that Ganga Ram had any proprietary interest in the land, in dispute. The land, in dispute, was leased out to Ganga Ram and others by the Collector, Rajpura, on 08.09.1967, under the 1949 Act, for seven years. The terms & conditions of the lease read as follows: -
"The parties are present with their counsels. An area to the extent of 142 Bighas and 7 Biswas is lying Banjar in village Ghazipur, Tehsil Rajpura, the same has been acquired under the East Punjab Utilisation of Lands Act, 1949. The same is leased out to the following persons for a period of 7 years: -
Sr.No. Name of person Area
Bighas Biswas
1. Sh.Budh Ram son 35 11
of Sh.Norata Ram
2. Sh.Ganga Ram son 35 12
of Sh.Sunder Dass
3. Sh.Paramjit Singh son 35 12
of Sh.Arjan Singh
4. Sh.Santokh Singh son 35 12
of Sh.Mangal Singh
Total 142 7"
A perusal of the above extract reveals that 152 bighas and 7 biswas of land, which was lying Banjar (fallow), in village Ghazipur, Tehsil Rajpura, was appropriated by the Collector, in the exercise of powers under the 1949 Act, and leased out to Budh Ram son of Norata Ram, Ganga Ram son of Sunder Dass, Paramjit Singh son of Arjan Singh and Santokh Singh son of Mangal Singh, for a period of seven years, each. A lease, under the 1949 Act, neither confers proprietary rights nor extinguishes rights of the true owner, in this case the Gram Panchayat. The 1949 Act merely empowers, the Collector of a district, to appropriate uncultivated land and lease it out for cultivation, as a temporary arrangement in view of the serious scarcity of food CWP No.14195 of 2009 -6- prevailing at the time. Ganga Ram and others were mere lessees on the land, in dispute. After expiry of lease period, Ganga Ram, was a mere trespasser with no proprietary, legal or possessory rights that could be claimed by Mohinder Singh as beneficiary of an alleged agreement to sell or as his alleged grandson or by Ishro Devi as his widow.
A perusal of the order, passed by the Collector, reveals a perverse and arbitrary exercise of power. The Collector has held that as Mohinder Singh has remained in possession, after the demise of Ganga Ram, the Gram Panchayat cannot claim ownership. We fail to comprehend the legal basis for such a finding. The possession of Mohinder Singh, without any right, title or interest, cannot possibly translate into ownership or estop the Gram Panchayat from asserting its title. This apart, the Collector, has referred to an order passed against the Gram Panchayat under Section 7 of the 1961 Act. The Collector was apparently unaware that orders, passed under Section 7 of the 1961 Act, are summary in nature and any finding recorded on a question of title, does not operate as res-judicata, in proceedings initiated for adjudication of a question of title. The only authority empowered to decide a question of title, is the Collector, exercising power under Section 11 of the 1961 Act. Apart from these errors, the Collector has committed another serious error while holding that as land allotted to other lessees (referred to as allottees) has been sold and the Gram Panchayat has not taken any steps to claim the land from other lessees, or challenge the sale deeds, the land, in dispute, does not vest in the CWP No.14195 of 2009 -7- Gram Panchayat. We are once again at a loss to comprehend any principle of law underlining this finding. The illegal sale of Gram Panchayat land by other lessees or the failure of the Gram Panchayat to challenge these sale deeds cannot divest the Gram Panchayat, of its proprietary rights. The Collector also failed to peruse the relevant revenue record that clearly records the Nagar Panchayat and after the Nagar Panchayat, the Nagar Council, as owner of the land, in dispute.
The appellate authority, a senior officer, fared no better as he dismissed the appeal, filed by the Gram Panchayat, by holding that the Gram Panchayat has not challenged allotments made in favour of Budh Ram, Paramjit Singh and Santokh Singh, or the sale deeds executed by them. The appellate authority was apparently oblivious, of the fact, that the petition under Section 11 of the 1961 Act was filed by Mohinder Singh and not by the Gram Panchayat. The fact that land belonging to other lessees has been sold, is irrelevant and reference to this fact, as being sufficient to divest the Gram Panchayat of its ownership, discloses the absence of a rudimentary knowledge of the 1949 and the 1961 Acts.
The District Collector, while appropriating land under the 1949 Act, grants leasehold rights for a limited period without a right to seek ownership or transfer of the land in derogation to the rights of the true owner. The 1949 Act, merely, empowers the Collector to appropriate uncultivated land and lease it out for a limited period. The impugned orders, in our considered opinion, are illegal and perverse as CWP No.14195 of 2009 -8- they have been passed without perusing the facts or considering the law.
An argument that as the order passed by the Collector has not been impugned by Municipal Council, Zirakpur, while filing CWP No.14195 of 2009, merits dismissal of the writ petition, may have been accepted, if the order passed by the Collector had not been challenged in CWP No.11887 of 2009, filed by Smt.Ishro Devi, which is being decided alongwith this petition. Even otherwise, the order passed by the Collector has merged into the order passed by the appellate authority and this mere irregularity would not necessarily entail dismissal of the writ petition.
Another argument that as the land, in dispute, was allotted to Ganga Ram, he was entitled to deal with it and execute an agreement to sell and in view of his demise, the land has been inherited by Mohinder Singh being his grandson (daughter's son) or by Smt.Ishro Devi, his so called widow, disregards the fact that Ganga Ram was a lessee for seven years. After expiry of seven years, the lease period was not extended, thereby, bringing an end to the leasehold rights. The order leasing out the land to Ganga Ram, cannot be construed as an allotment, conferring proprietary rights or a right to assert rights in opposition to the proprietary rights of the Gram Panchayat. Ganga Ram was a mere lessee and became an unauthorised occupant, after expiry of the lease period.
The last plea, though, not raised before the Collector or the CWP No.14195 of 2009 -9- Commissioner or in the reply filed to the writ petition, is that as the land, in dispute, was Banjar Qadim, it is excluded from Shamilat Deh. The plea cannot be raised for the first time, in writ proceedings and even otherwise, cannot be raised by the respondents, who are unauthorised occupants and are not proprietors of the village.
In view of what has been held hereinabove, CWPs No.11887 and 14195 of 2009 are allowed, the impugned orders are set aside and the petition filed under Section 11 of the 1961 Act, is dismissed by holding that the land, in dispute, vests in the Gram Panchayat and Ganga Ram, Mohinder Singh (Ganga Ram's alleged grandson) and Smt.Ishro Devi (Ganga Ram's alleged widow) have no right, title or interest in the land, in dispute.
Before parting with the judgment, we would fail in our duty if we do not record certain disturbing facts that have come to the fore during hearing of this case. As referred to in the earlier part of our order, land was allotted to Budh Ram, Ganga Ram, Paramjit Singh and Santokh Singh, as lessees, for seven years each. Budh Ram, Paramjit Singh and Santokh Singh, appear to have, in collusion, with officers of the State Government, be it officers posted with the Gram Panchayat, or revenue officers assigned with the duty to register documents, sold land belonging to the Gram Panchayat on the basis of collusive decrees for injunction, sale deeds and by recording mutations etc. After these illegal sale deeds were brought to our notice, the following order was passed on 18.09.2012: -CWP No.14195 of 2009 -10-
"Apart from the inter-se dispute between the petitioner and the private respondents regarding ownership of the land allotted by the Collector under the East Punjab Utilization Lands Act, 1949 (hereinafter referred to as the 'Utilization Act'), there is another significant aspect of the matter that has been brought to our notice. A perusal of the pleadings reveals that four separate parcels of land measuring 35 bighas and 11 biswas each were allotted to Budh Singh son of Narata Ram, Ganga Ram son of Sunder Dass, Paramjit Singh son of Arjun Singh and Santosh Singh son of Mangal Singh, under the Utilization Act, on the ground that the land was banjar and would be cultivated by allottees. It appears that though the Utilization Act allows lease for a limited period of 20 years, the land has been sold to the allottees, except in the case of Ganga Ram, where a dispute regarding inheritance is pending adjudication before us.
There is yet another aspect of the matter that would require a pointed reference. CWP No.4186 of 2005 was filed to challenge these transfers and though admitted for final hearing was eventually withdrawn on 09.05.2006, by filing of CM No.7885 of 2006. We, therefore, take suo motu notice of sale of the land to allottees and issue notices to the State of Punjab and the Municipal Council, Zirakpur, for 06.11.2012, to file a detailed record-based affidavit to show cause how land allotted under the Utilization Act, has been sold to allottees/lessees. The affidavits shall also explain how the Collector, the Registrar of Documents and the Tehsildar, have allowed sale of this land and recorded mutations of ownership in favour of vendees.
At the asking of the Court, Mr.Rajesh Bhardwaj, Addl.A.G., Punjab, accepts notice on behalf of the State and prays for time to seek instructions.
A copy of this order be handed over to counsel for the State of Punjab under signatures of Court Secretary of this Bench."
After receipt of the report from the Deputy Commissioner, the following order was passed on 11.12.2012: -
"Affidavit of Shri Varun Roojam, Deputy Commissioner, SAS Nagar, Mohali, filed in Court, today, is taken on record.
A perusal of the affidavit reveals that the land, in dispute, belongs to the Gram Panchayat and was leased out to Budh Ram son of Norata Ram, Ganga Ram son of Sunder Dass, Paramjit Singh son of Arjan Singh and Santokh Singh son of Mangal Singh by the then Collector, Rajpura, on 08.09.1967 (Annexure A-1), under the East Punjab Utilization of Lands Act, 1949, for a period of seven years. This order was challenged before the Commissioner, Patiala Division, Patiala but the grant of lease was upheld. After expiry of this period, lessees were required to return the land to the Gram Panchayat but instead filed civil suits and obtained decrees, on the basis of which, revenue authorities sanctioned mutations of ownership in favour of Paramjit Singh and Santokh Singh who then proceeded to sell the land. It is rather surprising that the Collectors and the Sub-Registrar/Registrar concerned failed to peruse the revenue record and discern the absence of any title in the vendors, while registering the sale deeds. 142 Bighas and 7 Biswas of land, CWP No.14195 of 2009 -11- admittedly, owned by the Gram Panchayat, have been misappropriated and sold.
Counsel for the parties as well as the Deputy Commissioner, Mohali, are directed to place on record copy/copies of judgments/decrees that may have been passed by civil court with respect to the land, in dispute."
The order dated 11.12.2012 was followed by order dated 21.12.2012, which reads as follows: -
"This order, shall be read in continuation of order dated 11.12.2012.
"Shamilat Deh" land, allotted under the East Punjab Utilization Lands Act, 1949 (hereinafter referred to as the 'Utilization Act'), has been sold by allottees by executing sale deeds on the basis of judgments and decrees passed by a Civil Court and mutations have been entered. We direct the Additional Civil Judge (Senior Division), Rajpura, to forward the original files of Civil Suit No.262 dated 4.8.1975, decided on 13.12.1976 and Civil Suit No.263 dated 4.8.1975, decided on 22.3.1977, to the High Court, as it appears that though suits were for grant of injunction simpliciter, the judgments and decrees have been used for registering sale deeds, entering mutations.
The State of Punjab, is directed to file a detailed affidavit before the next date of hearing.
Adjourned to 30.1.2013."
However, the original files are not traceable. The State of Punjab was called upon, by order dated 13.02.2013, to file an affidavit as to the steps it proposes to take to retrieve the land, in dispute. Mr.S.S.Khara, Special Secretary to Government of Punjab, Department of Revenue, Rehabilitation and Disaster Management, has filed an affidavit dated 13/14.03.2013, alongwith proceedings of the meeting. A relevant extract reads as follows: -
"3. That in view of the above order the whole issue has been deliberated upon in a meeting held on 07-03-2013 under the Chairmanship of Financial Commissioner, Revenue, Punjab. The proceedings of the meetings are annexed at Annexure P-1.
4. That in view of the decision taken in the meeting the process to review the mutations, sanctioned by revenue officers in a fraudulent manner allegedly on the basis of Civil Court decrees and subsequent mutations of sale/resale, shall be initiated after giving proper opportunity to the concerned persons.CWP No.14195 of 2009 -12-
5. That once after review of the mutations the ownership of Nagar Council is recorded in the revenue record the eviction of the unauthorized persons occupying the land in question shall be made under the provisions of The Punjab Public Premises and Land (Eviction & Rent Recovery) Act, 1973."
An extract from the proceedings of the meeting, reads as follows: -
"3. The issue was discussed in detail, with focus on the following two options: -
(i) That the Collector under the East Punjab Utilization of Lands Act, 1949 may be requested to pass an order under Section 7 thereof asking the occupants to restore the land to the owner i.e. Nagar Council: or
(ii) That proceedings to review the mutations entered in favour of the private persons may be initiated.
Pros and cons of both options were discussed. Regarding option No.(i) above, it was noted that the Collector had already passed an order under Section 7 about 50 years back, and an appeal against this order had also been dismissed by the Commissioner. Presumably it was against these orders that the private persons had obtained injunction orders (not declaratory decrees) from Civil Court in their favour. It was therefore felt that since this option had already been exercised once, it might not be appropriate to resort to it again. It was therefore decided to proceed in accordance with option No.(ii) above, for prima-facie it seemed that the mutations were sanctioned, on the basis of civil court orders that actually did not create any title. In view of various rulings of the Apex Court and the Hon'ble Court, it is clear that mutations sanctioned through fraud are void. The subsequent sale/resale deeds registered on the basis of such mutations are also fall in the same category. Hence there should be no difficulty in resorting to review of the mutations already entered in favour of the private persons. It was also noted that even if the civil court decrees were declaratory in nature even then these would be void in view of Section 13 of the Punjab Villager Common Lands (Regulation) Act, 1961, as amended on 27-4-1976."
The State has finally woken up to a "fraud" whereby a large parcel of land, leased out under the 1949 Act, has been misappropriated and sold with apparent connivance and collusion of officers of the State.
The Secretary to Government of Punjab, Department of Revenue, Rehabilitation and Disaster Management, is directed to, CWP No.14195 of 2009 -13- forthwith take up the matter and initiate proceedings, both, civil and criminal in accordance with law against all such persons, who may have perpetuated the fraud or may have colluded in misappropriating Gram Panchayat property, and submit a report before this Court, within three months of receipt of a certified copy of this order. The Secretary to Government of Punjab, Department of Revenue, Rehabilitation and Disaster Management, shall ensure that the property, in dispute, is restored to its original owner, i.e., the Gram Panchayat, now represented by Municipal Council, Zirakpur.
[ RAJIVE BHALLA ]
JUDGE
02.04.2013 [ REKHA MITTAL ]
shamsher JUDGE