RSA No.1415 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1415 of 2009 (O&M) Date of Decision: 26.11.2009 Ashish Kumar ....Appellant. Versus State of Haryana & Ors. ....Respondents. CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Amit Jain, Advocate, for the appellant. Sabina,J.(Oral) Plaintiff filed a suit for possession by way of specific performance and the same was dismissed by the Civil Judge(Sr.Divn.) Fatehabad, vide judgment and decree dated 18.05.2006. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by the Additional District Judge, Fatehabad, vide judgment and decree dated 31.05.2008. Hence, the present appeal by the plaintiff. Brief facts as noticed by the lower Appellate court in paras no.2 to 6 in its judgment read as under: “2. Appellant-plaintiff has brought a RSA No.1415 of 2009 (O&M) 2 suit for possession regarding the land bearing khasra Nos.933(11-3), 932(28-8), 942(6-4)measuring 46 kanals 5 marlas, the old Nos. of which are 4831 Min.4833,4825 to 4829(hereinafter referred to as Suit Land) situated in village Bhuna, Tehsil and District Fatehabad and suit for declaration to the effect that the defendants have no concern with the ownership or possession of the land in dispute and that the mutations and orders and subsequent entries in favour of the defendants are wrong, illegal, null and void, based upon fraud, misrepresentation, without jurisdiction and are liable to be cancelled and liable to be corrected in favour of the plaintiff as owner and as a consequently relief restraining the defendants from raising any construction, alienating or transferring the same or creating encumbrance upon it and auctioning the same in any manner. 3.The case of the appellant-plaintiff is that he was allotted the land in dispute measuring 20 Bighas, 4 Biswas along with RSA No.1415 of 2009 (O&M) 3 other land on 24.2.1950. Accordingly the plaintiff was given proprietary rights in the form of Sanad and subsequently, the mutation of allotment was also sanctioned in favour of the plaintiff and this allotment is still subsisting and has not been cancelled. Vide this allotment, the plaintiff as well as his brother Ram Kishan became the owner in possession of the suit land along with other land. The original owner Ram Kishan, the real brother of the plaintiff had died issueless and unmarried and the mother of the plaintiff Smt.Sita Bai and the plaintiff succeeded the land in dispute.It has been further alleged that subsequently, the mother of the plaintiff also died in July,1994 and the plaintiff became owner of the suit land exclusively. The revenue record was also prepared in favour of the plaintiff alongwith his brother and after his death, as mentioned above, the plaintiff became the owner in possession of the whole land. It has been further alleged that RSA No.1415 of 2009 (O&M) 4 the Government of Punjab, the then showed its intention to acquire the land for the purpose of installation of brick klin for construction of Bhakhra canal and in this connection, 5.51 acres of the land was acquired. The notifications under Sections 4 and 6 of the Land Acquisition Act were issued but no notice was issued to the plaintiff and his brother Ram Kishan despite the fact that they were recorded owner of the suit land in the revenue record. The land in question was mutated in favour of the Provincial Government vide mutation on 23.9.1957 without any notice to the plaintiff and his brother, that no compensation was paid to the plaintiff or his brother and therefore, the acquisition of the land in question is null and void. It has been further pleaded that the land in question has not been used for the purpose of construction of brick klin for which it was allegedly acquired and no brick klin was ever installed in the land in question. Further more after the RSA No.1415 of 2009 (O&M) 5 accomplishment of the alleged purpose, the land in question is no more required and as such the land should have been reverted back to the plaintiff. The government of Haryana has issued standing order no.28 keeping in view the basis provisions of the Act and the Land Administration Manual wherein it was mentioned that if the land acquired for particular purpose is no more required for that purpose, the land should revert back to the original owner. It has been further pleaded that the plaintiff has come to know that the land in question remained lying vacant till 1959-60 and thereafter, the land was transferred in favour of the Gram Panchayat without any notice to the plaintiff. No order regarding transfer of land in favour of Gram Panchayat was obtained from any competent court and no mutation was ever sanctioned in favour of the Gram Panchayat and therefore, the transfer of the land in dispute in favour of Gram Panchayat is null and void. The plaintiff moved an RSA No.1415 of 2009 (O&M) 6 application to the Deputy Commissioner exercising the power of Collector, Hisar for the restoration of the suit land in his favour on 14.11.1994 and the said application was allowed by Sh.N.C.Wadhwa, the then Deputy Commissioner, Hisar vide order dated 16.5.1995 and he was referred the matter to the competent authority i.e the State Government through Director, Panchayat and the Commissioner, Development Department. At the request of the plaintiff, ad-interim order of status quo was granted against the Gram Panchayat, Bhuna for allocation or any other use of the land other than for the purpose for which it was acquired till further orders. This ad-interim order of status quo has not been vacated till today. Subsequently, the plaintiff came to know that the abovesaid order of Deputy Collector was not implemented. Sh.Roshan Lal took the charge of the file and illegally reviewed the order of his predecessor vide order dated 27.7.1996 which is illegal and without RSA No.1415 of 2009 (O&M) 7 jurisdiction. It has been further pleaded that the defendants have no concern with the suit land and the suit land is lying vacant. The plaintiff also filed civil writ petition before the Hon'ble High Court and his civil writ petition No.17130 of 1996 was dismissed on the ground hat Hon'ble High Court was ill equipped to go into the question of title and it was observed by the Hon'ble High Courts that the question of title can only be decided by the Civil Court. The writ petition was not dismissed on merits rather the same was dismissed on technical objections. The transfer of the land from Provincial Government to Gram Panchayat is illegal and is liable to be set aside. The defendants have threatened to further alienate the suit land and to raise construction over the suit land. The defendant Gram Panchayat in collusion with other defendants has collected the material on the spot for raising further construction. Hence this suit. 4. The defendants have resisted the RSA No.1415 of 2009 (O&M) 8 suit of the plaintiff. The defendants no.1 and 3 have filed a joint written statement controverting the pleas taken by the plaintiff. They have taken several legal and preliminary objections including jurisdiction of the civil court and that the suit is time barred. On merits, they have pleaded that the Government under the rules acquired the land in question and the Land Acquisition Collector announced an award in favour of the plaintiff on 17.2.1995. The land in question was acquired for installation of brick klin and the compensation was paid to the plaintiff by the then Collector, Hisar as per award. They have admitted that the land in question was illegally transferred in the revenue record in the name of Gram Panchayat but they have stated that the plaintiff has no right in the suit land and the Provincial Government is the real owner of the suit land. They prayed for dismissal of the suit of the plaintiff with costs. 5. Defendant No.2 has also filed his RSA No.1415 of 2009 (O&M) 9 separate written statement converting the pleas taken in the plaint. He has also taken several legal and preliminary objections including about maintainability of the suit, estoppel, jurisdiction of the civil court and time limitation etc. On merits, they have stated that the land in dispute was acquired by the then Punjab Government for the purpose of installation of brick klin and the compensation for the same has already been paid. He has further stated that the land in dispute was used for the purpose for which it was acquired and the land cannot be reverted to the plaintiff. It has been further pleaded that the application filed by the plaintiff before the Deputy Collector, Hisar was dismissed vide order dated 27.8.1996 and said order has become final because no appal was filed by the plaintiff against the said order. He has also stated that Gram Panchayat was recorded owner of the suit land in revenue record and Gram Panchayat sold some part of the suit land to the RSA No.1415 of 2009 (O&M) 10 Telecommunication Department vide registered sale deed No.393 dated 31.10.1996 and the possession of the said land was also delivered to the vendee and prayed for dismissal of the suit. 6. The defendant No.4 Gram Panchayat has filed its written statement controverting the case of the plaintiff and has taken the preliminary objection about the jurisdiction of the court etc. On merits, it has been pleaded that the land in dispute was acquired by the Punjab Government for the installation of the brick klin and compensation for the same was deposited. The statement of the plaintiff was also recorded and the mutation was sanctioned in favour of the Provincial Government. The brick klin was installed in the land in dispute and at the time of consolidation, the land was mutated in favour of the Gram Panchayat and some other land was given to the State Government in lieu of the said land. The application filed by the plaintiff RSA No.1415 of 2009 (O&M) 11 before the Collector was dismissed after hearing the parties and the said order cannot be challenged in the civil court. The plaintiff also filed the civil writ petition in the Hon'ble Punjab and Haryana High Court which was also dismissed vide order dated 17.9.1998. The petition filed by the plaintiff for review of the order dated 27.9.1998 was also dismissed by the Hon'ble High Court on 26.3.99 and therefore, the plaintiff has no right to file the civil suit. On the pleadings of the parties, the following issues were framed by the trial court: 1. Whether the defendants have no concern with the title and possession of the land as mentioned in the suit?OPP. 2. Whether the mutations, orders and revenue entries under challenge as mentioned in the plaint are illegal, a result of fraud and misrepresentation and without jurisdiction?OPD. 3.Whether the suit is within limitation?OPP 4.Whether the plaintiff is entitled to a decree for possession of the suit land on the grounds mentioned in the plaint?OPP. 5.Whether the plaintiff is entitled RSA No.1415 of 2009 (O&M) 12 to a decree for permanent injunction against raising construction, alienation transfer and encumbrance and auction of the suit land on the grounds as mentioned in the plaint?OPP. 6.Whether the suit is not maintainable in the present form?OPD. 7.Whether the plaintiff is estopped to seek relief due to his own act and conduct?OPD. 8.Whether the plaintiff has not come to the court with clean hands? OPD. 9.Whether the jurisdiction of Civil Court is barred to entertain and try the suit?OPD. 10.Whether the suit is hit by order 2, Rule 2 CPC as claimed in para No.6 of the written statement?OPD. 11.Whether the suit is hit for want of prior notice as required under Section 80 CPC?OPD. 12.Whether the suit is bad for mis- joinder of the necessary parties?OPD. 13.Whether the suit is bad for non- joinder of the necessary parties?OPD. 14.Whether the plaintiff has no locus standi to file the suit?OPD. 15.Whether the suit is false and frivolous to the knowledge of plaintiff?OPD. 16.Whether the suit is improperly stamped?OPD RSA No.1415 of 2009 (O&M) 13 17.Whether the acquisition of the suit land as alleged in para No.4 is illegal?OPD. 18.Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal is devoid of any merit and deserves dismissal. Plaintiff had filed a suit for possession. Admittedly, State acquired 5.15 acres of land for the purposes of installing of brick klin for construction of Bhakara Canal. Notifications under Sections 4 and 6 of the Land Acquisition Act were issued. Admittedly, thereafter award was passed. The land in question was mutated in favour of the Provincial Government on 23.09.1957. The case of the plaintiff is that since the land had not been utilized. An order was passed on his application by Deputy Commissioner, Hisar for restoration of the land in his favour on 16.05.1995. The matter has referred to the competent authority for further necessary action. However, vide order dated 27.07.1996, the order dated 16.05.1995 was reviewed. Petitioner had filed CWP No.870 of 1998 RSA No.1415 of 2009 (O&M) 14 challenging the order dated 27.07.1996. The said writ petition was dismissed as disputed questions of fact were involved in the case. Since in the present case after acquisition of the land, award had also been passed and there is nothing on record to suggest that the acquisition proceedings had been set aside, the courts below had rightly dismissed the suit of the plaintiff. After acquisition of the land in dispute, the same vested in the State and it was for the State to have utilize the same in the manner it liked. Both the courts below after appreciating the evidence led by the parties on record have thus rightly dismissed the suit of the plaintiff. No substantial question of law arises in this case. Accordingly, this appeal is dismissed. 26th Nov.2009 (SABINA) Seema-II Judge