Punjab-Haryana High Court
Arjun Dev And Ors. vs The State Of Haryana And Anr. on 21 January, 1998
Equivalent citations: (1998)119PLR634
Author: N.K. Agarwal
Bench: N.K. Agarwal
JUDGMENT G.C. Garg, J.
1. Petitioners herein, residents of Main Bazar, Kaithal, filed this writ petition through their General Attorney Arjun Dev, under Articles 226/227 of the Constitution of India for quashment of order dated 20.9.1996, Annexure P6 passed by the Deputy Commissioner, Kaithal.
2. The petitioners purchased land measuring 1 kanal 7 marlas from one Dharam Pal son of Dila Ram vide registered sate deed dated 10.12.1990 The land purchased by them was originally situated in Patti Gadar, Tehsil Kaithal and was later on brought within the Municipal limits of Kaithal and converted in Plot Nos. 281/9 and 282/9. With a view to raise construction over the land the petitioners submitted a building plan to the Municipal Committee, Kaithal for sanction. The building plan was rejected by the Municipal Committee, Kaithal by order dated 17.9.1991, Annexure PI. Aggrieved by the order of rejection, the petitioners filed appeal before the Deputy Commissioner, Kaithal who after hearing learned counsel for the parties, by his order dated 20.1.1992, Annexure P2, set aside the order dated 17.9.1991 and remanded the matter back to the Municipal Committee, Kaithal with a direction that a fresh decision regarding the ownership of the disputed land and sanctioning or non-sanctioning of the site plan be taken after going through the revenue records after 1960-61 and the house tax record of the Municipal Committee, as in his opinion the order dated 17.9.1991 was defective inasmuch as the same has been passed without considering the relevant records. The Municipal Committee, Kaithal re-considered the matter and ultimately sanctioned the site plan by its resolution dated 5.12,1992, Annexure P3 subject to certain conditions referred to in the resolution.
3. Some dispute was going on amongst the proprietors regarding ownership of the land including the land purchased by the petitioners. Some of the proprietors filed a civil suit against the vendors of the petitioners. The suit was dismissed by the civil Court at Kaithal by judgment and decree dated 30.5.1989 and the title of the predecessor-in-interest of the petitioners was held to be valid. Appeal against the judgment and decree of the trial Court was dismissed by learned Add], District Judge, Kurukshetra by judgment and decree dated 21.11.1990, Annexure P4. It deserves to be noticed that the petitioners purchased the land after the dispute to the title thereof was finally decided by the trial Court and the appeal there-against was dismissed by the learned Addl. District Judge. Despite the above situation, the Deputy Commissioner, Kaithal suspended the resolution Annexure P3 of the Municipal Committee, Kaithal by order dated 11.12.1992. This order was challenged by the petitioners by filing a writ petition being CWP 1035 of 1993. The writ petition was allowed by this Court by order dated 2.5.1996 Annexure P5, the order of the Deputy Commissioner suspending the resolution passed on 11.12.1992 was set aside and the matter was again remitted to the Deputy Commissioner with a direction to pass a fresh order in accordance with law. The Deputy Commissioner Kaithal, apparently in compliance of the direction of this Court in the aforesaid writ petition was again seized of the matter and he on a consideration thereof, in exercise of his powers conferred Under Section 246 of the Haryana Municipal Act, 1973 again passed an order suspending the resolution of the Municipal Committee, dated 5.12.1992, Annexure P3, on 20.9.1996 (Annexure P6). It is this order of the Deputy Commissioner which has been challenged by the petitioners by filing the present writ petition.
4. In response to notice of motion, respondents have put in appearance and filed reply. In the preliminary objection, it is stated that the resolution dated 5.12.1992 passed by the Municipal Committee is vague as it was passed only to accommodate Arjun Dev who was one of the members of the Committee during the relevant time. It was further stated that the land in question is a part of a religious Tirath "Bidhkyar" and thus its sanctity is required to be maintained. It was also stated that as per the revenue record relating to the period 1906-07 to 1960-61, land measuring 73 kanals and 18 marlas including the land purchased by the petitioners was in the ownership of the Gram Panchayat and it was being used as a common pond. The ownership of this land was later changed as Shamlat Deh Hasab Rasad Jar Khewat and therefore, the landowners of this revenue estate are now the co-sharers of this common land. It was further stated that as per the consolidation scheme of the village, all the common lands left for common use, viz ponds, roads and burial grounds cannot be partitioned by the co-sharers and their use also cannot be changed. The further stand in the reply is that the land in question is shamlat deh and the petitioners only purchased the rights of co-sharers of that land.
5. After hearing learned counsel for the parties and going through the record, we are of the opinion that this petition deserves to succeed. Undisputedly, land measuring 73 kanals and 18 marlas comprising in Khasra No. 192 originally situated in village Patti Gaddar, Tehsil Kaithal was brought within the municipal limits of Kaithal. Land measuring 1 kanal and 7 marlas purchased by the petitioners out of the above land was previously owned by one Dhararn Pal son of Dila Ram. However, a dispute had arisen about the title to the land owned by Dharam Pal amongst the proprietors of the entire land. Some of the proprietors filed a civil suit against Dharam Pal, the vendor of the petitioners and others challenging their title to the property. As noticed already, the suit was dismissed by the civil Court and the title of the vendor of the petitioners was held to be valid. Appeal against the judgment and decree of the trial Court was dismissed by learned Addl. District Judge by judgment and decree dated 21.11.1990. It is further evident that it was only after the dismissal of the appeal and when title to the property in question was no longer in dispute, petitioners purchased the land from Dharam Pal vide registered sale deed dated 10.12.1990.
6. After the purchase of the land, the petitioners applied for sanction of the building plan. The Municipal Committee initially rejected the plan as the relevant record could not be made available. It is for this reason that learned Deputy Commissioner on an appeal preferred by the petitioners, set aside the rejection order and remitted the case to the Municipal Committee with a direction that a fresh decision regarding sanctioning or non-sanctioning of the plan and also of the ownership of the disputed land be taken after going through the revenue record pertaining to the period after 1960-61 and house tax records of the Committee. The Municipal Committee re-considered the matter and after considering the relevant records passé resolution dated 5.12.1992 sanctioning the plan. The Deputy Commissioner, however suspended the resolution of the Committee and this constrained the petitioners to file a writ petition and in compliance of the direction issued by this Court in the writ petition, the Deputy Commissioner again considered the matter and passed order. Annexure P6 suspending the resolution of the Committee passed on 5.12.1992. Once the title of the vendor of the petitioners to the land purchased by them was settled by the civil Court and decree of the civil Court was upheld by the appellate Court and the said land was thereafter purchased by the petitioners, who had applied for sanction of the building plan, the Deputy Commissioner had no right or authority to pass an order and hold contrary to what was settled by way of a civil Court decree. The Deputy Commissioner, as a matter of fact, had no power under any law to upset the finding recorded by the civil Court. A reading of the impugned order Annexure P6 goes to show that the Deputy Commissioner has commented in the order that learned Additional District Judge agreed that the land in question was 'Johar' as per the revenue record, but the learned Judge has not given importance to that record and rather relied upon the entries of assessment registers of house tax and sale of it: specific portions. In our opinion, the Deputy Commissioner is not right in his comment and he could not arrive at a conclusion contrary to the findings recorded by the civil Court. In his endeavour to suspend the resolution he, as a matter of fact reversed the finding recorded by the civil Courts. The Deputy Commissioner also observed in his order that entries in the assessment record do not determine the ownership am the said entries are merely for the assessment of tax and not a solid proof of owner ship or the kind of the land. It may be a just opinion of the Deputy Commissioner, but he could not sit in judgment over the decision of the civil Court and bypass the same by making the above comment. The assessment record and the revenue entrie coupled with the oral evidence was considered by the civil Court for declining relief to the plaintiffs and coming to the conclusion. By virtually re-appraising the evidence the Deputy Commissioner, could not record a different finding and suspend the resolution on that basis.
7. In the wake of the above, we find that the Deputy Commissioner while passim the impugned order Annexure P6 exceeded his jurisdiction. He had no power at all in law or otherwise, to go into the validity of the decree passed by the civil Court and come to a conclusion contrary to the one arrived by it. The writ petition is therefore, allowed and the impugned order dated 28.9.1996, Annexure P6 is quashed.