Civil Writ Petition No.23536 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.23536 of 2011 Date of Decision:20.12.2011 Kirpal Singh ......Petitioner Versus The Naib Tehsildar-cum-A.C.IInd Grade Rania and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Ashok Verma, Advocate, for the petitioner. **** M EHINDER S INGH S ULLAR , J.(oral) The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record is that, private respondents are the owners of the land in dispute, measuring 24 Kanals 12 Marlas, situated within the revenue estate of Village and Tehsil Rania, District Sirsa. 2. Petitioner-Kirpal Singh claiming himself to be the gair marusi tenant on payment of 1/3rd share in produce(Batai-Tihai) over it, moved an application for correction of the Khasra Girdawari, under the provisions of The Punjab Land Revenue At, 1887 and the Rules framed thereunder(hereinafter to be referred as “the Act and the Relevant Rules”). 3. The Assistant Collector IInd Grade, Rania, accepted the application and ordered the correction of Khasra Girdawari of the land in question, vide order dated 29.12.1997(Annexure P-1). 4. Dis-satisfied with order(Annexure P-1), Munsha Singh and others filed the appeal, which was accepted, order(Annexure P-1) was set aside and the Civil Writ Petition No.23536 of 2011 2 matter was remanded back to the Assistant Collector IInd Grade, with the direction to decide the case afresh on merits, after hearing both the parties and inspecting the spot, by the Collector, by means of impugned order dated 01.08.2001(Annexure P-2). 5. Aggrieved by the order(Annexure P-2), the petitioner filed the appeal, which was dismissed as well by the Commissioner, Hisar Division, Hisar, through the medium of impugned order dated 30.12.2008(Annexure P-3). Sequelly, the revision petition filed by him was also dismissed by the Financial Commissioner, Haryana, by virtue of impugned order dated 07.04.2011(Annexure P-4). 6. The petitioner still did not feel satisfied and preferred the present writ petition, challenging the impugned orders(Annexures P-2 to P-4), invoking the provisions of Articles 226/227 of the Constitution of India. 7. After hearing the learned counsel for the petitioner, going through the record with his valuable help and after deep consideration of the entire matter, to my mind, there is no merit in the instant writ petition in this context. 8. As is evident from the record that, the private respondents are the owners of the land in litigation and the petitioner claimed his possession as a tenant(gair marusi) over it on payment of 1/3rd share in produce(Batai-Tihai) with effect from Kharif 1993 till date. The Assistant Collector IInd Grade, Rania, did not effect due service on all the owners of the land and illegally ordered ex-parte proceedings against them, without following the due procedure of service, as contemplated under the Act and the Relevant Rules. He did not follow the due procedure and ordered the correction of Khasra Girdawari of the relevant period, in a very casual manner. 9. However, the solitary argument of the learned counsel that, since the name of petitioner was entered into Jamabandi, so, the authorities have committed a legal mistake in remanding the case for fresh decision, is not only devoid of Civil Writ Petition No.23536 of 2011 3 merit but misconceived as well. 10. Assuming for the sake of arguments(though not admitted), the name of the petitioner was mentioned in the Jamabandi, it ipso-facto is not sufficient to infer that entry is legal, which has been made on the basis of illegal order (Annexure P-1)(which was set aside by the authorities). On the contrary, such baseless entry would be void and inoperative on the rights of true owners. 11. As indicated earlier, the petitioner claimed himself to be a gair marusi tenant over the land in dispute, which he has utterly failed to prove in this respect. No cogent material is forthcoming on record to prove that how, in what manner and by whom the petitioner was inducted as a gair marusi tenant on the land in dispute. It is not a matter of dispute that the relationship of landlord and tenant only comes into existence as a result of bilateral agreement. It may be implied from the acts and conduct of the parties, which may indicate that the landlord ever intended to divest himself of the possession of the land in question and to give it to the petitioner as a gair marusi. One of the most important circumstances, from which, the inference of tenancy may be drawn is the payment of rent. Meaning thereby, the payment of rent is a normal incident of tenancy and on the other end, the fact that no rent was paid would lead one to a contrary conclusion and negatived the existence of such relationship of landlord and the tenant. When there is an implicit intention of the landlord to create tenancy rights in the property, the tenancy only comes into existence as a result of bilateral agreement and payment of rent etc., which are totally lacking in the instant case. There is no material on record to prove the existence and incidence of tenancy. Moreover, the impugned order was passed by the Assistant Collector IInd Grade, at the back of the owners. 12. In this manner, to me, the Collector and Commissioner, Hisar Division have rightly remanded the case back to the Assistant Collector IInd Grade, to decide the real controversy between the parties, after affording the Civil Writ Petition No.23536 of 2011 4 opportunity to the real owners. 13. Not only that, the orders of Collector and Commissioner, Hisar Division were upheld by the Financial Commissioner, Haryana, by means of impugned order(Annexure P-4), which in substance is as under: - “I have heard both the counsels and gone through the record. The main contention of the petitioner is that the Collector has not passed order of delay in the appeal filed before the Collector. However, the respondents have asserted that they had not been served notice and therefore cannot be held responsible for the delay. I feel that though the Collector was required to specifically mention that he had condoned the delay however the very fact that he has passed an order after hearing by him, both the parties implies that the delay has been condoned. Therefore, a formal mention could be considered under a technicality. There is a presumption of truth attached to Jamabandi. However, the Commissioner has clearly mentioned, the fact of possession can still be determined and inspection is still relevant as the question of Khasra Girdawari can also be decided as per the present position for the present and future consideration. The issue of entry in Khasra Girdawari is still live and has not been resolved. The statement of some of the owners in the order of the Collector, Ellenabad dated 01.08.2011 casts a doubt in the decision made by the Assistant Collector specially when it was ex-parte case. Therefore, there is nothing wrong in the order of the Collector which directs the Assistant Collector 2nd Grade to carry out spot inspection. Spot inspection gives an opportunity to the Assistant Collector for making better assessment because more people can be associated as witnesses. Therefore, I find no illegality in the order of the Commissioner, Hisar Division and the Collector, Ellenabad. Therefore, appeal is dismissed.” 14. Meaning thereby, the authorities have recorded the cogent grounds in this relevant connection. Such orders(Annexures P-2 to P-4), containing the valid reasons, cannot legally be set aside, in exercise of writ jurisdiction of this Court, as contemplated under Articles 226/227 of the Constitution of India, unless the same are perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned orders deserve to be and are hereby maintained in the obtaining Civil Writ Petition No.23536 of 2011 5 circumstances of the case. 15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner. 16. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent proceedings before the Assistant Collector IInd Grade, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. 17. Needless to mention that, nothing recorded hereinabove would reflect, in any manner, on the merits of the case, as the same has been so observed for a limited purpose of deciding the present controversy. December 20, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter?Yes/No