IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No. 1806 of 2010 ( O&M ) DATE OF DECISION : 23.02.2011 Dalip Singh .... APPELLANT Versus The Financial Commissioner (Appeals), Punjab and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Ashwani Kumar Chopra, Senior Advocate, with Mr. Harminder Singh, Advocate, for the appellant. * * * SATISH KUMAR MITTAL , J. Dalip Singh has filed the instant Letters Patent Appeal against the order dated 11.5.2010, passed by the learned Single Judge, whereby his writ petition (CWP No. 16603 of 1990), challenging the orders dated 9.1.1986 (Annexure P-2) and 23.8.1990 (Annexure P-3), passed by the Deputy Commissioner-cum-Chief Sales Commissioner, Jalandhar, and the Financial Commissioner (Appeals), Punjab, setting aside the transfer of plot measuring 17 marlas 65 square feet, situated in village Lohian Khas, Tehsil Nakodar, District Jalandhar, in his favour, has been dismissed. We have heard learned counsel for the appellant and have gone through the impugned order as well as the aforesaid two orders, passed by LPA No. 1806 of 2010 -2- the revenue authorities. In this case, on the basis of his possession over the plot measuring 17 marlas 65 square feet, situated in village Lohian Khas, Tehsil Nakodar, District Jalandhar, the appellant moved an application on 14.5.1982 before the Tehsildar (Sales) Nakodar for transfer of the aforesaid plot to him by taking the same as evacuee property. The said application was forwarded by Tehsildar (Sales) to the Sales Commissioner, Nakodar, for approval. The Sales Commissioner, vide office note dated 21.10.1982, approved the transfer of plot for a consideration of ` 503/-. When the Gram Panchayat, village Lohian Khas (respondent No.3 herein) came to know about the above said transfer, it challenged the said order by filing a revision petition before the Chief Sales Commissioner, Jalandhar, on the ground that the disputed plot was not an evacuee property, rather it was property of the Gram Panchayat and was part of village pond and vest in it being shamilat deh. The Chief Sales Commissioner, after making spot inspection and providing an opportunity of hearing to both the parties, vide his order dated 9.1.1986 (Annexure P-2), set aside the above said order of transfer of the disputed plot, while coming to the conclusion that the said transfer was secured fraudulently. It was held that actually, the disputed plot was never declared as evacuee property. It is pertinent to mention here that at the time of the spot inspection by the Chief Sales Commissioner, the disputed plot was found to be part of the village pond. LPA No. 1806 of 2010 -3- On a revision, filed by the appellant under Section 15 of the Punjab Package Deal Evacuee Properties (Disposal) Act, 1976 (hereinafter referred to as `the Act'), the Financial Commissioner (Appeals) Punjab, vide his order dated 23.8.1990 (Annexure P-3) upheld the order of the Chief Sales Commissioner. Vide order dated 11.5.2010, the learned Single Judge has upheld both the aforesaid orders, while coming to the conclusion that since the disputed property was never declared as evacuee property, therefore, the same could not be taken as package deal property, which could have been disposed of by the Sales Commissioner under Section 4 of the Act. Learned counsel for the appellant argued that in paragraph 2 of the writ petition, filed by the appellant, it was specifically averred that the property in dispute was earlier owned by Muslims, who had migrated to Pakistan at the time of partition of the country. Therefore, obviously, the entire abadi site of the village, which was a Muslim village, became the evacuee property and it automatically vested in the Custodian under Section 4 of the East Punjab Evacuees (Admn. of Property) Act, 1947. According to the learned counsel, this averment was not specifically denied in the written statement, filed on behalf of the Gram Panchayat. We find that the submission made by learned Senior counsel for the appellant is not factually correct. In paragraph 2 of the written statement filed on behalf of the Gram Panchayat, it has been specifically stated that the disputed land was not an evacuee property and it did not vest in the LPA No. 1806 of 2010 -4- custodian, as alleged. Rather the property was originally a pond and in view of Section 2 (1) of the Punjab Village Common Lands (Regulation) Act, 1961, it falls within the definition of shamilat deh, and therefore, vests in the Gram Panchayat. Secondly, learned counsel for the appellant argued that the Chief Sales Commissioner was having no authority to decide the question as to whether the disputed plot was shamilat and vests in the Gram Panchayat. According to the learned counsel, the said question could have been decided by the authorities under the Punjab Village Common Lands (Regulation) Act, 1961 and not by the Chief Sales Commissioner. We also do not find any force in this contention. A perusal of the order, passed by the Chief Sales Commissioner, shows that the disputed plot was never declared and notified as an evacuee property and on the spot inspection, it was found to be part of the village pond. Before the Chief Sales Commissioner, the appellant heavily relied upon copy of register Shikni, wherein detail of evacuee property was mentioned. In the said copy, the disputed property was found mentioned. When the Chief Sales Commissioner called the original register, entry made in the same with regard to the disputed property was found to be fabricated. It was admitted by the Patwari Halqa that originally, in the register, no such entry was existing, but he made the entry later on, when the property was `discovered'. It was held that the Tehsildar (Sales) was not competent to declare a property as evacuee property. The Chief Sales Commissioner observed that LPA No. 1806 of 2010 -5- it is a clear case of fraud, where the revenue authorities and respondent Dalip Singh (appellant herein) have joined hands to fraudulently declare some property (which was part of the village pond) as evacuee property at their own level and proceeded to allot it. The learned Single Judge, while referring to the provisions of the Administration of Evacuee Property Act, 1950, has rightly come to the conclusion that no notification was ever made under Section 7 of this Act, declaring the disputed property as evacuee property. Undisputedly, no notification issued under the said Act was ever produced or is available. The appellant is heavily relying upon the aforesaid entry made in register Shikni, which was found to be fraudulent entry. The argument of learned counsel for the appellant that the Chief Sales Commissioner has decided the issue of the nature of the land being shamilat deh and it being vested in the Gram Panchayat, which he was not competent, is totally mis-placed, because the Chief Sales Commissioner, on the basis of the record, had recorded the finding that the disputed property was not the evacuee property and it was not so declared at any point of time. In view of the aforesaid finding of fact, Tehsildar (Sales) was having no jurisdiction to recommend for transfer of the disputed plot in favour of the appellant and the Sales Commissioner was having no jurisdiction to approve the sale of the property, which was not the evacuee property. Thus, the Chief Sales Commissioner rightly set aside the sale of the disputed plot in favour of the appellant and his order has been rightly LPA No. 1806 of 2010 -6- upheld by the Financial Commissioner (Appeals), Punjab as well as by the learned Single Judge. No merit. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE February 23, 2011 ( M. JEYAPAUL ) ndj JUDGE