RSA No. 992 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 992 of 1995 Date of Decision: 13.10.09 1. Punjab State through its Secretary Revenue/Rehabilitation, Punjab Govt. Chandigarh. 2. The Tehsildar Sale, Sultanpur Lodhi (Kapurthala). 3. The Collector, Kapurthala. ... Appellants Versus 1. Bachni widow; 2. Joginder son; 3. Harinder son; 4. Hardev son; all residents of village Bussowal, Tehsil Sultanpur Lodhi, District Kapurthala. 5. Rani wife of Jarnail Singh son of Kartara, resident of village Bahwai, P.O. Sultanpur, Tehsil and District Kapurthala (All Lrs of Babu son of Mal, resident of village Busowal, Tehsil Sultanpur Lodhi, District Kapurthala). ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vivek Chauhan, Assistant Advocate General, Punjab, for the appellants. Mr. Vinod Bhardwaj, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, RSA No. 992 of 1995 2 dated 23.08.91, rendered by the Court of Additional Senior Sub Judge Sultanpur Lodhi, vide which, it decreed the suit of the plaintiff, and, the judgement and decree dated 27.10.94, rendered by the Court of Additional District Judge, Kapurthala, vide which, it dismissed the appeal. 2. Babu Ram, plaintiff/respondent (since deceased), was sold the land, in dispute, in restricted auction, by the Punjab Government, situated in village Bussowal, for a total sale consideration of Rs. 2550/-. Thereafter, he came into possession of the land, in dispute. There was no embargo, on his right, to alienate the land, in dispute. However, Tehsildar (Sales), passed an order dated 03.01.85, cancelling the allotment of the land, in dispute, in favour of Babu Ram (since deceased) without affording him any opportunity of being heard. The defendants, were many a time requested, to treat the order of cancellation, as illegal, but to no avail. On their final refusal, left with no alternative, a suit for declaration, that the order of cancellation, was null and void, and be cancelled, and for permanent injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the jurisdiction of the Civil Court, was barred, under Section 16 of the Punjab Package Deal Properties (Disposal) Act, 1976. It was further pleaded that the suit was not maintainable. It was further pleaded that the defendants were not served with a notice, RSA No. 992 of 1995 3 under Section 80 of the Code of Civil Procedure. It was further pleaded that the suit was bad for non-joinder of the necessary parties. It was stated that the land, in dispute, was purchased, by the plaintiff, in restricted auction, on 28.06.65. It was further stated that, as per the terms and conditions of the auction made, in favour of Babu Ram, he could not transfer the same, by way of sale, before the expiry of ten years or till the final payment of sale consideration. It was further stated that the plaintiff, in violation of the terms and conditions of sale, sold the land, in dispute, to Labh Singh, and Ajit Singh sons of Ujjagar Singh and Mohinder Kaur, in 1972. It was further stated that the sale made, in favour of Babu Ram, was legally, and validly cancelled, by the Tehsildar (Sales). The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the Civil Court has no jurisdiction? OPD (ii) Whether the plaintiff has equally other efficacious remedies? OPD (iii) Whether the suit is not maintainable in the present form? OPD (iv) Whether the suit is bad for mis-joinder of parties? OPD (v) Whether the plaintiff is entitled to the declaration and injunction prayed for? OPP (vi) Relief. RSA No. 992 of 1995 4 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the defendants/appellants, which was dismissed, by the Court of Additional District Judge, Kapurthala, vide judgment and decree dated 27.10.94. 7. Still feeling dissatisfied, the instant Regular Second Appeal, was filed by the appellants/defendants. 8. During the pendency of appeal, Babu Ram, respondent/plaintiff, died, and his legal representatives, were brought, on record. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the Courts below, recorded perverse findings, that the cancellation of sale made, in favour of Babu, respondent (deceased), was in violation of the mandatory provisions of proviso engrafted to Section 7 of the Punjab Package Deal Properties (Disposal) Act, 1976, and, as such illegal? (ii) Whether the Courts below, on misreading and misappreciation of evidence, recorded perverse findings, that the order impugned, was non-speaking, and, as such, null and void? (iii) Whether the Civil Court, had no jurisdiction, to entertain and try the suit? RSA No. 992 of 1995 5 11. The Counsel for the appellants, submitted that, since Babu Ram, violated the terms and conditions of allotment, contained in D1 letter, the competent authority, was well within its rights to cancel the sale in 1985. He further submitted that the Courts below, recorded perverse findings, that the order of cancellation of sale, in favour of Babu Ram (since deceased), respondent, was violative of the principles of natural justice. He further submitted that the Courts below, were also wrong, in coming to the conclusion, that the order, being non-speaking, was illegal and void. He further submitted that the Civil Court, had no jurisdiction, to entertain and try the suit. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 12. On the other hand, the Counsel for the respondents, submitted that the Courts below, recorded concurrent findings, that the order of cancellation of sale, in favour of Babu Ram, being violative of the principles of natural justice, was illegal. He further submitted that, even the Courts below, were right, in coming to the conclusion, that the order, being non-speaking, was illegal and void, and, as such, was liable to be set aside. He further submitted that the Civil Court, had jurisdiction, to entertain and try the suit, as there was clear-cut violation of the mandatory provisions of law, at the time of passing the order of cancellation. He also placed reliance on Rajasthan State Road Transport Corporation & another Vs. Bal Mukund Bairwa, 2009(3) RSJ, 256 (SC), in support of his contention. He further submitted that RSA No. 992 of 1995 6 the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 13. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. Admittedly, the land, in dispute, was sold to Babu Ram (since deceased) by the defendants/appellants. According to defendants/appellants, Babu Ram, plaintiff/respondent (since deceased), violated the terms and conditions of letter D1 and sale certificate D2, in, as much as, he transferred the land, in dispute, in favour of a third person within 10 years. Even if, the plaintiff/respondent, had violated the terms and conditions of the letter RSA No. 992 of 1995 7 D1 and the sale certificate D2, by allegedly selling the land, in favour of a third party, he was required to be issued a show cause notice, before the cancellation of sale and resumption of the site, as to why, the same, be not resumed. Section 7 of the Punjab Package Deal Properties (Disposal) Act, 1976, reads as under:- “Power to vary or cancel leases or transfer or any package deal property – (1) Notwithstanding anything contained in any other law for the time being in force but subject to any rules that may be made under this Act, the Tehsildar (Sales) or Naib- Tehsildar (Sales) may cancel any transfer or terminate any lease or amend the terms or any transfer or lease under which any package deal property is held or occupied by a person; Provided that no transfer shall be cancelled, lease terminated or the terms of any transfer or lease amended unless such an action is permissible under the terms and conditions of the instrument of transfer or lease, as the case may be, and unless an opportunity of showing cause has been given to the transferee or lessee, as the case may be. (2) Where any person- (a) has ceased to be entitled to the possession of any package deal property by reason of any action taken under sub-section (1), or (b) is, in the opinion of the Tehsildar (Sales) or Naib-Tehsildar (Sales) otherwise in unauthorized possession of any package deal property; he shall, after has been given a reasonable opportunity of showing cause against his eviction from such package deal property, surrender possession of the property on demand being made in this behalf by the Tehsildar (Sales) or Naib-Tehsildar (Sales) or RSA No. 992 of 1995 8 by any other person duly authorized by the Tehsildar (Sales) or Naib-Tehsildar (Sales), as the case may be. (3) If any person fails to surrender possession of any package deal property on demand made under sub-section (2), the Tehsildar (Sales) or Naib-Tehsildar (Sales) may, notwithstanding anything to the contrary contained in any other law for the time being in force, eject such person and take possession of such property, and may, for such purpose, use or cause to be used such force as may be necessary.” 14. The plain reading of the provisions of Section 7 of the Punjab Package Deal Properties (Disposal) Act, 1976, extracted above, clearly goes to show that no transfer, could be cancelled or lease terminated or the terms of any transfer or lease amended, unless such an action was permissible, under the terms and conditions of the instrument of transfer or lease, as the case may be, and unless an opportunity of showing cause has been given to the transferee or lessee, as the case may be. The mandatory provisions of Section 7 of the Act, were required to be followed, in letter and spirit, by the defendants/appellants. There is nothing, on the record, that any show cause notice, was issued, to the plaintiff/respondent, before passing the order of cancellation/resumption dated 01.01.85. Thus, there was clear- cut violation of the mandatory provisions of Section 7 of the Act, ibid. The plaintiff/respondent, was, thus, condemned unheard. The order of cancellation/resumption, having been passed, in complete transgression of the proviso, engrafted to Section 7 of the Act, ibid, was, in clear-cut RSA No. 992 of 1995 9 violation of the principles of natural justice, and, thus, was rightly held to be illegal and void, by the Courts below. 15. Not only this, even the order D3 dated 01.01.85, does not contain reasons. It is evident, that an application, was moved, by one Gurcharan Singh son of Charan Singh, that since Babu, plaintiff/respondent (since deceased), had sold the land, in violation of the terms and conditions of D1, and the sale certificate, the same, be cancelled/resumed. A note, was put up, on this application, by the concerned Clerk. Tehsildar (Sales), passed the order D3 dated 01.01.85, by writing “I agree”. The competent authority, therefore, did not apply its mind, to the facts and circumstances of the case. Had the competent authority applied its mind, to the facts and circumstances of the case, it would have come to know, that no show cause notice, was issued, to the plaintiff/respondent, and no opportunity, had been afforded, to him, and, as such, the sale made, in his favour, could not be cancelled, nor the site, could be resumed. D3 order, was passed, by the Tehsildar (Sales), in a mechanical fashion. It is settled principle of law, that every order, may be judicial, quasi-judicial, or administrative, passed by an authority, which affects the civil rights of the person, against whom, the same, is passed, must contain reasons. Reason is the heart-beat of every conclusion, and without the same, it becomes lifeless. Failure to give reasons, amounts to denial of justice. Reasons are live links between the mind of the decision-taker, to the controversy, in question, and the decision or conclusion arrived at. RSA No. 992 of 1995 10 Reasons substitute subjectivity with objectivity. The emphasis of recording reasons, is that, if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence, render it virtually impossible, for the appellate authority, to perform its function. Right to reason is an indispensable part of a sound administrative system. Another rationale is that the affected party can know why the decision has gone against it. One of the salutary requirements of natural justice, is spelling out reasons for the order made. The “inscrutable face of a sphinx”, is ordinarily incongruous with a judicial or quasi-judicial performance. Since the order D3, is bereft of reasons, it is violative of the principles of natural justice, and, is, thus, illegal and void. The Courts below, were also right, in coming to the same conclusion. 16. Now coming to the factum, as to whether, the Civil Court, had jurisdiction, or not, it may be stated here, that when a Tribunal, passed an order, under the Special Act, against the mandatory provisions of the law/rules, then the Civil Court, had got jurisdiction, to entertain and try the suit. In the instant case, the order D3, was passed, by the competent authority, in complete violation of the proviso, engrafted to Section 7 of the Act, ibid. Not only this, the order D3, as stated above, also does not contain reasons, which weigh with the competent authority, to come to the conclusion, that the sale, in favour of the plaintiff/respondent, was liable to be set aside. In Rajasthan State Road Transport Corporation & Another's case (supra), the principle of law, laid down, was to the effect, that the Civil Courts, RSA No. 992 of 1995 11 have jurisdiction, to entertain and try a suit, if an order, is passed, by the competent authority, in violation of the principles of natural justice, or in transgression of the mandatory provisions of law/rules. The Civil Court, thus, had jurisdiction, to entertain and try the suit. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 17. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgments and decrees of the Courts below, are, thus, liable to be upheld. 18. The substantial questions of law, depicted above, are answered, against the appellants. 19. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 14.10.2009 (SHAM SUNDER) Amodh JUDGE