CWP No.18837 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.18837 of 2007 Date of Decision: 28.4.2010 Mohinder Singh .....Petitioner Vs. State of Punjab and others .....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. S.S. Rangi, Advocate for the petitioner. Mr. S.S. Sahu, AAG, Punjab, for respondent no.1. Mr.S.S. Salar, Advocate for respondent no.2. .... RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ in the nature of certiorari for quashing the order dated 13.1.2005 (Annexure P-8), whereby the Financial Commissioner, Revenue, Punjab, Chandigarh, has ordered a correction in Column No.5 of the jamabandies for the years 1978-79, 1981- 82, 1991-92, 1996-97 and 2001-02. Counsel for the petitioner submits that the Financial Commissioner has no jurisdiction to order corrections in a jamabandi, by resort to administrative powers under Section 11 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as `the Act') and then also without issuing a show cause notice to the petitioner or affording him an opportunity of hearing. It is argued that a revenue officer, including the Financial Commissioner can only order correction of clerical errors in a jamabandi in accordance with powers conferred and the procedure CWP No.18837 of 2007 2 prescribed by para 7.29 of Chapter VII of the Punjab Land Records Manual. The Financial Commissioner is a revenue officer and, therefore, has no jurisdiction to order correction of a jambandi by resort to administrative powers conferred by Section 11 of the Act. Counsel for respondent no.2, submits that the petitioner got entries changed by colluding with the revenue staff from “gair marusi” to 'Muzariaan and then to “allottiaan” and “Mushtriaan”. The illegal entries were brought to the notice of the Financial Commissioner, who directed the Additional Secretary, Revenue to hold an enquiry. The enquiry established grave manipulations in the jamabandis thus, conferring jurisdiction upon the Financial Commissioner to pass an order under Section 11 of the Act. I have heard counsel for the parties, perused the provisions of the Punjab Land Revenue Act, 1887 and paras 7.29 and 7.30 of Chapter VII of the Punjab Land Records Manual. The Financial Commissioner directed the Additional Secretary, Revenue, to hold an enquiry into certain revenue entries recorded in favour of the petitioner. The Additional Secretary submitted a report that entries in the jamabandi were changed from “allottiaan” to “Muzariaan” and to “Gair Marusi” etc. in connivance with revenue staff. The Financial Commissioner, by resort to his administrative powers under Section 11 of the Act, ordered that Column No.5 of the jamabandis for the years 1978-79, 1981-82, 1991-92, 1996-97 and 2001-02 shall reflect the status of the petitioner as recorded in the jamabandi for the year 1973-74. Chapter IV of the Act,bears the title “Records” :- “Records of Rights and Annual Records”. Chapter IV of the Act confers power upon revenue officers to prepare the record of rights for a revenue estate and CWP No.18837 of 2007 3 also sets out, amongst others, the contents of record-of-rights, the procedure for its preparation and special revision of record of rights, annual records, determination of disputes during the making, revision or preparation of any record or in the course of any enquiry under Chapter IV and restrictions on variation of entries in the record of rights. Sections 34, 36 and 37 of the Act read as follows :- “34. Making of that part of the annual record which relates to land-owners, assignees of revenue and occupancy tenants – (1) Any person acquiring by inheritance, purchase, mortgage, or otherwise, any right in an estate as a land- owner, assignee of land-revenue or tenant having a right of occupancy, shall report his acquisition of the right to the patwari of the estate. (2) If the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the patwari. (3) The patwari shall enter in his register of mutations every report made to him under sub-section (1) or sub- section (2) and shall also make an entry therein respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place and of which a report should have been made to him under one or other of those sub-sections and has not been so made. (4) A Revenue Officer shall from time to time inquire CWP No.18837 of 2007 4 into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the forgoing sub-sections, report should have been made to the patwari and entry made in that register and shall in each case make such order as he thinks fit with respect to the entry in the annual record of the right acquired. 5. Such an entry shall be made by the insertion in that record of a description of the right acquired and by the omission from that record of any entry in any record previously prepared which by reason of the acquisition has ceased to be correct.” 36. Determination of disputes - (1) If during the making, revision or preparation of any record or in the course of any enquiry under this Chapter a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue officer may of his own motion, or on the application of any party interested but subject to the provisions of the next following section, and after such inquiry as he thinks fit, determine the entry to be made as to that matter. (2) If in any such dispute the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates,he shall ascertain by summary inquiry who is the person best entitled to the property and shall by order direct that CWP No.18837 of 2007 5 that person be put in possession thereof, and that an entry in accordance with the order be made in the record of register. (3) A direction of a Revenue officer under sub-section (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.” “37.Restrictions on variations of entries in records – Entries in records-of-rights or in annual records, except entries made in annual records by Patwaris under clause (a) of Section 35 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by - (a) making entries in accordance with facts proved or admitted to have occurred; (b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties; (c ) making new maps where it is necessary to make them.” Section 11 of the Act, on the other hand, confers the administrative power of superintendence and control, upon revenue officers over their subordinates in the following terms and reads as follows :- “ 11 – Superintendence and control of Revenue-officers - (1) The Financial Commissioner shall be subject to the control of the State Government. CWP No.18837 of 2007 6 (2) The general superintendence and control over all other Revenue officers shall be vested in, and all such officers shall be subordinate to the Financial Commissioner. (3) Subject to the general superintendence and control of the Financial Commissioner, a Commissioner shall control all other Revenue officers in his division. (4) Subject as aforesaid and to the control of the Commissioner, a Collector shall control all other Revenue officers in his district.” Chapter IV of the Act governs the original powers conferred upon a revenue officer to vary entries in the records of rights. A revenue officer may vary an entry in the record of rights only in accordance with the provisions of Chapter IV of the Act. Sections 34, 36 and 37 of the Act make it abundantly clear that an entry in the record of rights, which includes a jamabandi, can only be altered in accordance with procedure prescribed by Chapter IV of the Act. Section 44 of the Act, attaches a presumption of truth to an entry in the records of rights and Section 45 prescribes that any person considering himself aggrieved by an entry in the records of rights, or annual record, may file a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1877. The Act, therefore, does not confer statutory powers, upon a revenue officer, including a Financial Commissioner, to unilaterally vary an entry recorded in the records of rights, other than by adopting the procedure prescribed by Chapter IV of the Act. Section 11 of the Act de-limits the CWP No.18837 of 2007 7 administrative powers of revenue officers over their subordinates and, therefore, cannot be invoked by a revenue officer, including the Financial Commissioner, for recording corrections in the revenue record. The Act makes a sharp distinction between administrative powers conferred by Section 11 of the Act and the powers conferred by Sections 31 to 37, Sections 44 and 45 of the Act. The latter provisions when read together leave no manner of doubt that the power of administrative control, conferred by Section 11 of the Act is distinct from the powers conferred by Sections 31 to 45 of the Punjab Land Revenue Act, as they operate in markedly different spheres. The Financial Commissioner, therefore, had no jurisdiction to order correction of entries in the jamabandis, in the exercise of his administrative powers under Section 11 of the Act. It would be appropriate at this stage, in order to place these conclusions in their correct perspective, to make a reference to a Division Bench judgement of this court reported as Tarlok Singh Vs. Financial Commissioner, Cooperation, Punjab, Chandigarh and others, 2004(3) RCR (Civil) 548. Paragraphs 24 and 25 of the judgement read as follows :- “24. The learned Financial Commissioner also ignored the mandate of Section 45 of the Act, which reads as under “ “Section 45 :- Suit for declaratory decree by persons aggrieved by an entry in a record – If any person considers himself aggrieved as to any right of which he is in the possession by an entry in a record-of-rights or in an annual record, he may CWP No.18837 of 2007 8 institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877.” Section 45 of the Act, by the very words used therein, bars the jurisdiction of the revenue officers, including the Financial Commissioner, from directing correction in the Jamabandis. The only remedy available to an aggrieved individual, is to file a suit under Chapter VI of the Specific Relief Act, 1963. The Financial Commissioner was obviously not exercising jurisdiction under the aforementioned Act. 25. The learned Financial Commissioner, apparently, sought to exercise powers under paras 7.29 and 7.30 of the Punjab Land Records Manual. The said provisions only permit the correction of clerical mistakes appearing in the previous jamabandi which have crept into the current jamabandi. As no such clerical mistake existed in the jamabandi for the year 1997-98, the learned Financial Commissioner had no jurisdiction to exercise powers under Paras 7.29 an 7.30 of the Punjab Land Records Manual and order correction of the jamabandi.” The only exception to this enunciation of law “may” arise where the entry has been recorded by perpetuating a fraud. In such a situation, the Financial Commissioner “may” in the exercise of his powers under Section 16 (1) of the Act take suo-moto notice of a fraudulent entry in the records of rights and order its correction on the basis of an CWP No.18837 of 2007 9 “established fraud”. To hold otherwise, would in essence, place a premium upon fraud. It would, however, be appropriate to sound a note of caution. The power under Section 16(1) of the Act shall be exercised in the rarest of rare cases and then also after affording an opportunity of hearing to the party likely to be affected and by recording a reasoned order. In view of what has been stated herein above, the writ petition is allowed, the order dated 13.1.2005, is set aside and the matter is remitted to the Financial Commissioner, Revenue,Punjab, Chandigarh, to consider the matter afresh, in accordance with powers conferred by Section 16(1) of the Act, after affording an opportunity of hearing to the petitioner. Parties are directed to appear before the Financial Commissioner, Revenue, Punjab, Chandigarh, on 25.10.2010. 28.4.2010 ( RAJIVE BHALLA ) sonia/GS JUDGE CWP No.18837 of 2007 10