CWP No.8010 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: 26.5.2010 CWP No.8010 of 2007 Gram Panchayat, Village Kassabad, Tehsil and Distt. Ludhiana .....Petitioner Vs. Joint Development Commissioner (IRD),Punjab and others ....Respondents CWP No.9506 of 2008 Gram Panchayat, Village Kassabad, Tehsil and Distt. Ludhiana .....Petitioner Vs. Financial Commissioner (Appeals-II), Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. J.S. Bhandohal, Advocate for the petitioner. Mr. S.S. Sahu, Advocate for respondent no.1. Mr. J.S. Wasu, Sr. Advocate with Mr.S.S. Salar, Advocate for respondents no.2 to 15. .... RAJIVE BHALLA, J This order shall dispose of CWP Nos.8010 of 2007 and 9506 of 2008, as they arise from the same proceedings and involve adjudication of common questions of fact and law. In order to avoid any unnecessary repetition, facts are being taken from CWP No.8010 of 2007. The Gram Panchayat, Kassabad, Tehsil and District Ludhiana, prays that a writ in the nature of Certiorari be issued to quash orders dated CWP No.8010 of 2007 2 25.6.2004 and 22.2.2007, passed by the Addl. Deputy Commissioner-cum- Collector, Ludhiana and the Joint Development Commissioner (IRD) Punjab, respectively. Nirmal Singh etc., respondents no.2 to 15, filed a petition, under Section 11 of the Punjab Village Common Lands (Regulation)Act, 1961 (hereinafter referred to as `the Act'), before the Collector/Additional Deputy Commissioner (Ludhiana), claiming ownership of land measuring 95 kanals 0 marla situated in village Kassabad, Tehsil and District Ludhiana. Respondents no.2 to 15 pleaded that this land was allotted, to one Smt. Lal Kaur on 19.12.1975, by the Rehabilitation department, in lieu of land left behind by her husband, in Pakistan. Smt. Lal Kaur, sold this land, through her attorney Sh.Balbir Singh to one Tarlok Nath on 14.10.1998, who in turn sold it to respondents no.2 to 15 by way of registered sale deeds dated 6.5.1999, 7.5.1999, 7.5.1999, 7.5.1999, 6.5.1999 and 10.5.1999. The Gram Panchayat, in response, asserted its ownership and pleaded that Smt.Lal Kaur is a fictitious person, who has never appeared before any authority or court, whether during the allotment or at the time of execution of the sale deeds or as a witness during mutation proceedings. The allotment is an elaborate fraud perpetuated by Balbir Singh, the alleged attorney, who has been selling the land for the last 22 years. It was prayed that as allotment is vitiated by fraud, the petition should be dismissed. After considering the pleadings, the evidence adduced and the arguments addressed, the Collector, allowed the petition by holding that respondents no.2 to 15 are owners of the land in dispute, as sub-section CWP No.8010 of 2007 3 (ii-a) of Section 2(g)of the Act excludes allotments made by the Rehabilitation department before 9th July 1985, from Shamilat Deh. The appeal filed by the Gram Panchayat before the Joint Development Commissioner was dismissed. Before proceeding any further in the matter, it would be appropriate to refer to a part of the controversy that is concededly no longer in dispute. Admittedly, at the time of partition of the country, the land in dispute was Shamilat Deh and was owned by muslim proprietors, who migrated to Pakistan. A large number of dispute arose between Gram Panchayats, the Rehabilitation department and vendees from the Rehabilitation department, about ownership of such land. These disputes were put to rest by the Hon'ble Supreme Court in Gram Panchayat of Village Jamalpur Vs. Malwinder Singh and others, AIR 1985 S.C. 1394 by holding that such land vests in the respective Gram Panchayats as Shamilat Deh and not in the Rehabilitation department. However, the matter did not rest here. As large tracts of such land had already been allotted by the Rehabilitation department to satisfy verified claims of displaced persons, the State of Punjab, introduced, sub-section(ii-a) in Section 2(g) of the Act, excluding land that had been allotted on a quasi permanent basis to a displaced person or had been otherwise transferred to any person by sale or by any other manner, whatsoever, after the commencement of the 1961 Act, but on or before the 9th day of July 1985, from the purview of Shamilat Deh. The vires of this amendment have been upheld by a Division Bench of this court in CWP No.4816 of 1996 decided on 7.4.2010 “Gram Panchayat of Village Kum Kalan V. State of Punjab and others”. CWP No.8010 of 2007 4 The Collector and the Joint Development Commissioner have held that respondents no.2 to 15 are owners in possession of the land in dispute, on the basis of this amendment. Counsel for the petitioner submits that only such allotments would be saved by sub-section (ii-a) of Section 2(g) of the Act, as are legal and valid. As the allotment made to Smt.Lal Kaur is fraudulent, the sale deeds executed in favour of respondents no.2 to 15, are not saved by sub- section (ii-a) of Section 2(g) of the Act. It is argued that the allotment, in favour of Smt.Lal Kaur, is the result of a fraud, perpetuated by Balbir Singh, her alleged attorney. Smt. Lal Kaur is a fictitious person, who has never been heard of or seen. She has not appeared during allotment proceedings, during the execution of the sale deeds, during mutation proceeding or in the present case. It is further pointed out that while rejecting the prayer for recording a mutation based on the sale deed, the then Assistant Collector, Ist Grade-cum-S.D.M., Ludhiana, recorded a positive finding that the land was allotted to Smt. Lal Kaur by fraud. Though the plea of fraud was specifically pleaded and argued before the Collector and the Joint Development Commissioner and is so recorded in the impugned orders, both the Collector and the Joint Development Commissioner have failed to consider much less decide the plea of fraud. It is further submitted that respondents no.2 to 15 belong to the family of Sarpanches and Ex- Sarpanches, who have defrauded the Gram Panchayat of its property. It is prayed that in this view of the matter, the writ petition should be allowed and the Collector should be directed to decide the plea of fraud after examining the matter in its entirety. Counsel for respondents no.2 to 15 submits that these CWP No.8010 of 2007 5 arguments are untenable. Both the Collector and the Joint Development Commissioner have upheld the validity, of the allotment in favour of Smt.Lal Kaur, the execution of a general power of attorney by her in favour of Balbir Singh, the sale deeds executed in favour of Tarlok Nath and the sale deeds executed by Tarlok Nath in favour of respondents no.2 to 15. The allegation of fraud remains unsubstantiated for want of any evidence. The mere fact that Smt.Lal Kaur did not choose to appear or executed a power of attorney, would not by itself raise an inference of fraud. The status of respondents no.2 to 15 as ex-panches and sarpanches is entirely irrelevant, as they have every right to purchase this property, as it did not vest in the Gram Panchayat. The order passed by the Assistant Collector, Ist Grade- cum-S.D.M., Ludhiana, in mutation proceedings is irrelevant, as mutation proceedings are summary in nature and irrelevant for the purpose of deciding a question of title. I have heard counsel for the parties, perused the impugned orders and tend to agree with the plea that sub-section (ii-a) of Section 2(g) of the Act, would save only such allotments/transfers, made by the Rehabilitation department or its vendees before 9th July 1985, as are bonafide, legal and valid. A saving clause confers legitimacy upon a legal allotment and, therefore, would not legitimise a fraudulent allotment. Thus, if the allotment, in favour of Smt. Lal Kaur, is vitiated by fraud, sub-section (ii-a) of Section 2(g) of the Act, would not save the allotment much less the sale deeds executed in favour of respondents no.2 to 15. It would, therefore, be appropriate to examine, whether the Gram Panchayat has raised a credible plea of fraud and whether this plea of fraud has been decided by the Collector or the Joint Development Commissioner. CWP No.8010 of 2007 6 A perusal of the impugned orders discloses that the Gram Panchayat raised a specific plea, before the Collector, that the allotment to Smt. Lal Kaur through her attorney Balbir Singh, is fraudulent. The Gram Panchayat alleged that Smt. Lal Kaur is a fictitious person, who has never been heard of or seen and has failed to appear before any authority at any time. It was further pleaded that the Assistant Collector, Ist Grade-cum- S.D.M., Ludhiana, while rejecting a prayer for recording a mutation in favour of respondents no.2 to 15 has returned a clear finding that the allotment in favour of Smt.Lal Kaur is fraudulent. At this stage, it would be appropriate to refer to the circumstances pointed out by the Assistant Collector, Ist Grade-cum-S.D.M., Ludhiana, in support of her finding of fraud :- 1. The power of attorney was executed on 12.8.1974, whereas the allotment was made on 19.12.1975. 2. Smt. Lal Kaur has not appeared before any court, tribunal or revenue officer in support of the allotment, the execution of the general power of attorney or the execution of the sale deeds. 3. The sale deeds disclose that Smt. Lal Kaur is a resident of 94 Bharat Nagar Chowk, Kanpur. 4. The summons issued by the Assistant Collector, Ist Grade at this address was returned with a report that no lady by this name resides at this address and the address pertains to a commercial building. 5. The beneficiaries are ex-Panches and Sarpanches of the village. FIR No.285 dated 31.8.2000 was registered against the private respondents with respect to this dispute. CWP No.8010 of 2007 7 The Gram Panchayat, in my considered opinion, did raise a credible plea of fraud before the Collector and the Joint Development Commissioner but though the Collector and the Joint Development Commissioner have specifically adverted to the plea of fraud, they have for reasons that are not discernible from the impugned orders failed to decide this plea. The operative part of the order passed by the Collector reads as follows :- “After hearing the arguments of both the learned counsels of the parties, I have gone through the legal position, from the record it is established that the property is not shamlat deh and does not vest in the Gram Panchayat. It has been excluded from the definition of shamlat deh and Gram Panchayat has no concern with the same. While on the other hand, the petitioners have been proved to be the owners as well as in possession of the property in question. So far the respondent no.2 is concerned, he has totally failed to prove his right or title over the property. So I hereby accept the petition and declare that the petitioners to be the owners in possession of the property subject matter of this petition. Order announced in the open Court and file be consigned to record room.” The operative part of the order passed by the Joint Development Commissioner reads as follows :- “ I have gone through the revenue record placed on file very carefully and thoroughly and have also gone CWP No.8010 of 2007 8 through the written arguments of the parties and I have come to the conclusion that the land in dispute is “Bachat land” it does not fall within the definition of shamlat deh. The land in dispute has never been used or reserved for any common purpose of the village community. Therefore, the lower Court has passed the order on 25.6.2004 rightly and correctly. I am left with no alternative but to dismiss the appeal filed by the Appellant Panchayat. Order was reserved on 8.2.2007 and the same is announced today in the open court.” It is, therefore, beyond dispute that the Gram Panchayat raised a credible plea of fraud, which has not been decided by the Collector or the Joint Development Commissioner. At this stage, it would be appropriate to deal with an argument raised by counsel for respondents no.2 to 15 that as the Collector and the Joint Development Commissioner have noticed the plea of fraud, it shall be deemed to have been rejected. With due deference to the argument raised by the learned Senior Counsel, this argument cannot be accepted. A mere reference to the facts, to the evidence and to the arguments, would not absolve an adjudicatory forum of its duty to record a finding, particularly on a plea of fraud. In view of what has been stated herein above, the writ petitions are allowed, the orders dated 25.6.2004 and 22.2.2007 are set aside and the matter is remitted to the Collector, Ludhiana, for the limited purpose of deciding the plea of fraud, raised by the Gram Panchayat. CWP No.8010 of 2007 9 It would be necessary to mention here that in case the allotment of Smt.Lal Kaur is held to be legal and valid, the transfers made by her attorney would be saved by Sub-Section (ii-a) of Section 2(g) of the Act, but if the allotment is held to be vitiated by fraud, the transfers made in favour of respondents no.2 to 15 would be void and the land in dispute would necessarily vest in the Gram Panchayat as “Shamilat Deh”. Parties are directed to appear before the Collector, Ludhiana, on 26.7.2010. No order as to costs. 26.5.2010. ( RAJIVE BHALLA ) GS JUDGE