RSA No. 1294 of 1986(O&M) -1- In the High Court of Punjab and Haryana at Chandigarh RSA No. 1294 of 1986(O&M) Date of Decision: July 08, 2011 The Secretary, Rehabilitation Department, Punjab and another ---Appellants versus Shanti Devi ---Respondent Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr. R.L.Gupta, Addl. Advocate General, Punjab for the appellants *** Gurdev Singh, J. This is the second appeal preferred by the appellants- defendants against the judgment and decree dated 10.5.1985 passed by the Additional District Judge, Amritsar, vide which he dismissed the first appeal preferred by the defendants against the judgment and decree dated 30.10.1984 passed by Sub Judge Ist Class, Amritsar, decreeing the suit of the respondent-plaintiff for declaration to the effect that the order dated 13.8.1981 passed by the Settlement Commissioner (Rehabilitation), Punjab, and order dated 2.12.1981 passed by the Chief Settlement Commissioner (Rehabilitation), Punjab, are illegal, ultravires, unconstitutional, ineffective and void and as such the transfer of the property in dispute consisting of House No. 134-35/13, Khasra No. 29-min, situated in Gwal Mandi, Amritsar, in favour of the plaintiff by the Tehsildar (Sales)-cum- Managing Officer, Amritsar, is legal and valid and Conveyance RSA No. 1294 of 1986(O&M) -2- Deed executed in her favour has already attained finality, with consequential relief restraining the defendants from putting the property in suit to auction and interfering in peaceful possession of the plaintiff. The plaintiff pleaded in her plaint that the property in dispute was an evacuee property and was transferred in her favour by Tehsildar (Sales), Amritsar, on the basis of the application given by her on 13.12.1977. That transfer was confirmed on 29.8.1980 and Conveyance Deed was issued in her favour on 14.11.1980, after the payment of whole of the price. One of her neighbour, Pishori Lal, filed an appeal before the Settlement Commissioner against that transfer and the same was set aside, vide impugned order dated 13.8.1981. She preferred a revision against that order but the same was dismissed, vide the second impugned order dated 2.12.1981. She is coming in continuous possession of this property and had already paid its rent from 1.1.1969 to 31.3.1980. This property is surrounded by a boundary wall and she is tethering her cattle therein. The defendants have no right, title or interest in this property and have no right to auction the same. The above said orders could not have been passed as this property ceased to be evacuee property after the Conveyance Deed was issued in her favour. The suit was contested by the defendants. In their written statement they admitted that the property in dispute was allotted to the plaintiff and the Conveyance Deed was issued in her favour and that the transfer was challenged by Pishori Lal by filing an application before the Settlement Commissioner and that the impugned orders were so passed against the plaintiff. They denied the other contentions of the plaintiff and inter alia pleaded that the property in dispute adjoins the house of Pishori Lal, whereas the house of the plaintiff is situated across the street and did not form part of her house. This property was lying vacant and the transfer was validly set aside RSA No. 1294 of 1986(O&M) -3- in the appeal, so preferred by Pishori Lal. This property could not have been transferred in favour of the plaintiff and the allotment was rightly cancelled. They also pleaded that the civil court has no jurisdiction to entertain the suit as the jurisdiction of the civil court is specifically barred under Sections 27 and 36 of the Displaced Persons(Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as “the Act”). The same is also bad on account of the non-joinder of Pishori Lal, who is a necessary party. In replication to the written statement, the plaintiff denied the contentions raised therein and reiterated her averments made in the plaint. She further pleaded that Chief Settlement Commissioner was competent to set aside the Conveyance Deed only if there had been fraud, concealment of material facts or misrepresentation of facts. In her case, there was no occasion for setting aside the Conveyance deed. As the impugned orders were passed without any jurisdiction so the civil court has the jurisdiction to adjudicate upon the legality and validity thereof. On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether the civil court has no jurisdiction? OPD 2. Whether the suit is not maintainable in the present form? PD 3. Whether no order could be passed after issue of conveyance deed and the order dated 13.8.1981 or the Settlement Commissioner and 2.12.1982 of the Chief Settlement Commissioner are illegal, void? PP 4. Relief After going through the evidence produced by the parties and hearing counsel for the plaintiff and Government Pleader for the defendants, RSA No. 1294 of 1986(O&M) -4- the learned trial court decided all the issues in favour of the plaintiff and resultantly, decreed her suit. The appeal preferred by the defendants before the first appellate court did not find favour with it and was accordingly dismissed. I have heard learned counsel for the appellants. According to the learned State counsel, one of the substantial question of law involved in the present appeal is, whether the civil court has the jurisdiction to entertain and decide the suit when there is a mandate under Section 36 of the Act barring the jurisdiction of the civil court. He asserted that the law as laid down in the judgments of this Court and Hon’ble the Supreme Court, was wrongly applied by the trial court and the appellate court, while recording a finding that the jurisdiction of the civil court is not barred. According to him, the position would have been different if, the Chief Settlement Commissioner had set aside the transfer/allotment in favour of the plaintiff on the basis of fraud under Section 24(2)of the Act. In the present case, its jurisdiction was invoked under Section 24(1) of the Act by way of revision preferred against the order passed in appeal by the Settlement Commissioner under Section 22 of the Act. The finality is attached to the orders passed by the authorities under the Act by virtue of Section 27 of the Act and those could not have been challenged in the civil suit. The above said question, so pointed by learned State counsel is involved in the present appeal. The facts are not disputed. The transfer/allotment in favour of the plaintiff was challenged by one Pishori Lal by means of appeal under Section 22 of the Act and the Settlement Commissioner while accepting the appeal set aside that allotment. Against that order, the plaintiff preferred a revision before the Chief Settlement Commissioner, which lies under Section 24(1) of the Act. The Chief Settlement Commissioner could have cancelled the allotment by invoking his RSA No. 1294 of 1986(O&M) -5- powers under Section 24(2) of the Act. It is not the case so far as the present appeal is concerned. He exercised the jurisdiction under Section 24(1) of the Act. The first judgment relied upon by the lower courts for recording a finding in favour of the plaintiff that the civil court has the jurisdiction to entertain and try a suit is, AIR 1971(HP) 20 (Union of India vs. Rana Himal Chand). That was the judgment in which the order under challenge was passed by the Chief Settlement Commissioner under Section 24(2) of the Act. It was in respect of that order that it was held that “Chief Settlement Commissioner cannot cancel an allotment unless there is fraud, false representation or concealment of any material on the part of the allottee. There must be a finding to this effect by the Commissioner. In the absence of such a finding by him the jurisdiction of the civil court to entertain a suit in respect of the allotment is not barred under Section 36 of the Act. As already observed, the orders, which were challenged by the plaintiff, were passed under Section 24(2) of the Act which deals with the exercise of the original jurisdiction by the Chief Settlement Commissioner.” The second judgment so relied upon by the lower courts is 1970 PLR 719 ( Leela Krishan vs. Union of India). The facts of that case were altogether different. The authorities tried to exercise the jurisdiction in respect of the evacuee property which had already been transferred and ceased to be such. It was held therein that if the property ceased to be evacuee property or part of the compensation pool on the date of action for dispossession is taken, the authorities under the Act will have no jurisdiction to do so. The property ceased to be evacuee property and goes out of compensation pool when it is sold, and the title is conferred on the purchaser by the issue of a sale certificate. The rehabilitation authorities under the Act ceased to have any jurisdiction in RSA No. 1294 of 1986(O&M) -6- respect of that property thereafter. In the present case, the transfer/allotment in favour of the plaintiff itself was set aside by the Settlement Commissioner in the appeal preferred under Section 22 of the Act. That appellant had come out with the pleading that the plaintiff could not have been allotted the property, in dispute, as it never abutted her house and was, in fact part of the court yard of the house already allotted to him. The order regarding the transfer/allotment was made by the Managing Officer under the Act. As per Section 22 of the Act, any person aggrieved by an order of the Managing Officer under the Act, may prefer an appeal before the Settlement Commissioner. Merely because the Conveyance Deed had already been issued in favour of the plaintiff, will not oust the jurisdiction of the Settlement Commissioner to entertain and decide the appeal, as to whether the property could have been transferred/allotted or not. The last judgment so relied upon by the lower courts is AIR 1970 Supreme Court 672 (Shauqin Singh and others v. Desa Singh and others). In that case also, the question involved was regarding the powers of the Chief Settlement Commissioner under Section 24(2) of the Act to cancel the allotment. The lower courts were justified in applying the ratio of that judgment in the present case only in case the impugned order had been passed under Section 24(2) of the Act. As already said above, the impugned order was passed under Section 24(1) of the Act and not under Section 24(2) of the Act. The finality is attached to the orders passed under the Act by virtue of Section 27 of the Act and those cannot be called in question in any court by way of an appeal or revision or in original suit. The jurisdiction of the civil court is specifically barred by Section 36 of the Act which provides that no civil court has the jurisdiction to entertain any suit or proceedings in respect of any matter which the authority appointed under the Act is empowered by or RSA No. 1294 of 1986(O&M) -7- under the Act to determine. The civil court had no jurisdiction to entertain the suit in which the orders passed by the authorities under the Act and which they were competent to pass, were challenged. Therefore, the finding of the trial court and the appellate court on the issue of jurisdiction cannot be sustained. The jurisdiction of the civil court is specifically barred from entertaining and deciding the suit. In the result, this appeal is hereby accepted. The judgment and decrees of the trial court and the first appellate court are set aside and the plaint is rejected. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE July 08, 2011 PARAMJIT Whether to be referred to Reporter or not? Yes