Letters Patent Appeal No. 149 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. 1. Letters Patent Appeal No. 149 of 2009 Date of Decision: 20.8.2009 Mohinder Singh and Others …Appellants Versus The State of Punjab and Others …Respondents AND 2. Letters Patent Appeal No. 428 of 1993 Piara Singh …Appellant Versus The State of Punjab and Others …Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE. HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Pawan Kumar, Senior Advocate with Mr. Swapan Shorey, Advocate for the appellants (In L.P.A. No. 149 of 2009) Letters Patent Appeal No. 149 of 2009 2 Mr. O.P. Gupta, Advocate for the appellant (In L.P.A. No. 428 of 1993) Mr. Rupinder Khosla, Additional Advocate General, Punjab, for the respondents. T.S. Thakur, C.J. (Oral) These two appeals arise out of a common order passed by the learned Single Judge of this Court whereby Writ Petition No. 1950 of 1981 has been dismissed. The controversy leading to the filing of writ petition and the present appeals arises in the following circumstances. Land measuring 71 kanals 14 marlas situate in Khasra Nos. 132 min and 133 min of village Jhal Thikriwala in the district of Kapurthala was, according to the appellants, allotted in favour of late Kishan Singh who passed away during the pendency of writ petition and who is now substituted by his legal representatives, Mohinder Singh and Others in Letters Patent Appeal No. 149 of 2009. Another parcel of land again measuring 71 kanals 14 marls situate in khasra Nos. 130 min, 131 min and 132 min of same village is also alleged to have been allotted in favour of Mohinder Singh, appellant, in Letters Patent Appeal No. 149 of 2009. A third allotment of similar extent of land situate in Khasra Nos. 143 min. and 144 min. was similarly alleged to have been made in favour of Piara Singh, appellant, in Letters Patent Appeal No. 482 of 2009. The case of the appellant is that during the consolidation proceedings, these khasra numbers were given new numbers. The appellants allege that jamabandi for the year 1974-75 shows rectangle No. 47 killa Nos. 1, 2, 3, 4, 7/2, 8 and 9 making a total of 40 kanals 1 Letters Patent Appeal No. 149 of 2009 3 marla in favour of Mohinder Singh. Similarly, Kishan Singh was allotted rectangle No. 43 killa No. 21, rectangle No. 44 killa No. 25, rectangle No. 47 killa Nos. 5, 6, 7/1 and rectangle No. 48 killa Nos.1/1, 2, 9, 19 and 20 making a total of 75 kanals, while Piara Singh was allotted rectangle No. 148 killa Nos.1/1, 10, 11/1, 11/2, 12, 13 and 18 measuring 44 kanals 1½ marlas. The total extent of land, thus, allotted to the above three individuals in the consolidation proceedings, comes to 161 kanals 2½ marlas. Apprehending that the land, which has been in their occupation, may be taken over by the State summarily and without any legal proceedings whatsoever under the Land Acquisition Act, 1894, or under any other provision, the petitioners filed Writ Petition No. 1950 of 1981 in this Court in which they prayed for a mandamus directing the respondents not to dispossess them from the lands in question, otherwise, than in accordance with the procedure established by law. The writ petition was opposed by the respondents, who disputed the averments made by the petitioners and alleged that the petitioners were in illegal occupation of the land and, therefore, had no subsisting right over the same to warrant any protection against their dispossession. G.R. Majithia, J., as his Lordship then was, before whom the petition came up for hearing, dismissed the writ petition holding that there was no evidence of any allotment ever having been made in favour of the petitioners to call for any order in their favour or any protection against their eviction. The present appeals assail the correctness of the said order, as noticed earlier. Appearing for the appellants, Mr. Kumar, learned senior counsel, argued that the learned Single Judge was in error in dismissing Letters Patent Appeal No. 149 of 2009 4 the writ petition on merits in the absence of counsel for the petitioners. He contended that the petitioners' counsel was not, for unavoidable reasons, able to appear to argue the matter when the case was called for hearing in which event the learned Single Judge could or ought to have simply dismissed the writ petition for non-prosecution instead of dismissing the same on merits. Alternatively, he argued that the peaceful possession of the petitioners/appellants herein over the lands in dispute has not been denied by the respondents as indeed the appellants were in possession, even according to the revenue record, for the past many decades. Such being the case, the State could not, summarily and without following the due process of law, evict the petitioners/appellants from their land holdings especially when the petitioners had valid orders of allotment in their favour passed by the Tehsildar and the Assistant Collector concerned. He further argued that in similar situations allotments made by Revenue Officers in favour of other similarly situate individuals had eventually resulted in conferment of ownership rights on them. He, in this connection, referred to the grant of ownership rights in favour of Dalip Singh son of Faquir Singh, Fauja Singh son of Tara Singh and Pritam Singh son of Mehar Singh of the same village who owned adjacent parcels of land. He argued that inasmuch as the respondents not only denied equal treatment to the appellants but also threatened to unceremoniously evict them from the land which they were holding for years, they had committed a blatant illegality which ought to be prevented by this Court by issuing an appropriate mandamus. On behalf of the respondents, Mr. Khosla argued that the Letters Patent Appeal No. 149 of 2009 5 orders of allotment referred to by the petitioners were non-existent and the records of the respondents did not support the theory of any allotment having ever been made in their favour. He also argued that the allotment of the lands could under Rule 10(4) of the Nazool Lands (Transfer) Rules, 1956, be made only by the Collector and not by any other subordinate officer. There was, at any rate, no provision in the Rules for delegation of powers of allotment in favour of any other Officer or Authority to make it even probable that the petitioners were holding valid allotments in their favour. It was also submitted by Mr. Khosla that after the dismissal of the writ petition filed by the appellants, the Estate Officer had initiated proceedings for eviction of the petitioners/appellants under the provisions of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, which proceedings have finally culminated in an order of eviction against the appellants on 10.10.2008. Aggrieved by the said order, the appellants have, according to Mr. Khosla, preferred an appeal before the prescribed Appellate Authority which is pending hearing and disposal as on date. He urged that all the questions, which the petitioners/appellants herein proposed to raise for the consideration of this Court, could be raised by them before the Appellate Authority, mentioned above, for its consideration and determination. He further argued that so long as the appeal, preferred by the petitioners/appellants, was not heard and finally disposed of, the respondents cannot and would not adopt any coercive proceedings for their eviction from the lands in question. It is only after the matters are finally settled by the Appellate Authority that the order of eviction will be Letters Patent Appeal No. 149 of 2009 6 implemented, in accordance with law. Mr. Kumar, learned senior counsel for the appellants, did not dispute that proceedings for eviction of the appellants were initiated and have culminated in an eviction order dated 10.10.2008 which the appellants have assailed before the prescribed Appellate Authority. What he argued was that the petitioners/appellants apprehend their summary eviction from the lands even in anticipation of the dismissal of the appeal or at any rate immediately after the disposal thereof without affording to the appellants any opportunity of agitating the matter in further proceedings before this Court. He urged that if the issues raised by the petitioners/appellants were to be left to be determined by the Appellate Authority, the appellants ought to be protected against any arbitrary or hasty action on the part of the officer concerned so that in an unlikely event of appeal being dismissed by the Appellate Authority, the appellants have the opportunity of challenging the said order before this Court. We have given our careful consideration to the submissions made at the bar and perused the record. It is no doubt true that the order passed by the learned Single Judge dismissing the writ petition even in the absence of the petitioners or their counsel may not have been a proper order to pass. If the petitioners were absent on the date the matter was called for hearing and so was their counsel, the Court should and indeed ought to have dismissed the writ petition for non-prosecution. Inasmuch as the learned Single Judge did not follow that course and proceeded to hear and dispose of the writ petition exparte and behind the back of the Letters Patent Appeal No. 149 of 2009 7 petitioners, he, in our opinion, committed a mistake. Having said so, the natural corollary would have been to set-aside the order passed by the learned Single Judge and remit the matter back for a fresh hearing and disposal, in accordance with law. We are, however, not inclined to do that not only because the matter has been argued at considerable length before us but also because a remand to the learned Single Judge at this distant point of time would keep the proceedings pending in this Court for another decade or so. The nature of controversy in the writ petition and the appeals does not, in our opinion, warrant any such delay. The only question that needs to be considered is whether the petitioners/appellants are entitled to protection against any arbitrary action by way of their summary eviction from the lands in their occupation. The petitioners pray for protection against such eviction which implies that the respondents could always adopt due and proper procedure established by law for their eviction after affording them an opportunity of being heard in the matter. What is noteworthy is that in the absence of any direction from the Court and notwithstanding the dismissal of writ petition filed by the appellants, the State had, on its own, decided to take resort to the provisions of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973, for eviction of the appellants. Resort to those proceedings was perfectly justified for that was the established procedure for eviction of anyone in unauthorized occupation of any Nazool land. With the initiation of the said proceedings, the respondent-State had made it clear that eviction of the petitioners/appellants would follow only on the basis of the said Letters Patent Appeal No. 149 of 2009 8 proceedings culminating in a proper order of eviction against them and not otherwise. Inasmuch as the competent Authority passed an order on 10.10.2008 holding the petitioners/appellants to be in an unauthorized occupation of the Nazool land and directing their eviction from the same, the petitioners/appellants could not complain of the State acting arbitrarily. That is because the State had, instead of summarily evicting the appellants, taken resort to the procedure established by law. The appellants were indeed entitled to question the order of eviction before the prescribed Appellate Authority as they have done. All that now remains is the disposal of the said appeal by the Appellate Authority concerned. The appellants' apprehension that while the appeals are pending before the Appellate Authority, they may be evicted from the lands summarily and unceremoniously does not appear to be well- founded. At any rate, the apprehension can be allayed by this Court directing that the respondents would not take any action by way of eviction of the appellants from the lands in question till such time the appeal filed by them is disposed of by the Appellate Authority and till such time the petitioners/appellants have been given a reasonable opportunity to assail the appellate order if the same goes against them in appropriate proceedings before this Court. To that course of action, we must say to the credit of counsel for the parties they expressed no objection. In the result, we allow both the appeals, set aside the order passed by the learned Single Judge and direct that the respondents shall not evict the petitioners/appellants from the lands in their occupation, otherwise than in accordance with the procedure Letters Patent Appeal No. 149 of 2009 9 established by any law and without the disposal on merits of the appeals pending before the Appellate Authority prescribed. In order that the petitioners/appellants do not suffer any prejudice on account of any hasty action taken by the respondents, we further direct that the respondents shall not evict the appellants for a period of six weeks from the date the Appellate Authority passes the final order on the appeals preferred by them. The Appellate Authority would now endeavour to dispose of the appeals expeditiously and as far as possible within a period of six months from today. We make it clear that we shall not be taken to have expressed any opinion on the merits of the contentions urged before us whether the same relate to the validity or genuineness of the allotments claimed by the petitioners/appellants or the competence of the authorities who are alleged to have made such allotments. The appeals are, with the above directions, disposed of leaving the parties to bear their own costs. At this stage, learned senior counsel for the appellants sought permission of the Court to file an amended memo of appeal before the prescribed Appellate Authority. In the ordinary course, such a request could be made before the Appellate Authority concerned for a proper order on the same, but keeping in view the fact that the matter has been pending for years together, we see no reason why the prayer for raising additional grounds cannot be allowed in the interest of an expeditious disposal of the case. The appellants are, therefore, permitted to file an amended memo of appeal before the prescribed Authority within two weeks from the date of receipt of copy of this order. We also make it Letters Patent Appeal No. 149 of 2009 10 clear that in case the appellants do not appear before the prescribed Appellate Authority and seek a hearing of the appeal, the Appellate Authority shall be free to dispose of the appeal, in accordance with law, without any further procrastination. (T.S.Thakur) Chief Justice (Kanwaljit Singh Ahluwalia) Judge August 20, 2009 “DK”