R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 23, 2009 Gurdip Singh and others .....Petitioners VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. P. K. Gupta, Advocate, for the applicant-petitioners. **** RANJIT SINGH, J. This order will dispose of two Review Applications No.239 of 2009 in Civil Writ Petition No.9161 of 2007 and 241 of 2009 in Civil Writ Petition No.13163 of 2006. Civil Writ Petition Nos.9161 of 2007 and 13163 of 2006 were disposed of in terms of an order passed in Civil Writ Petition No.7490 of 2006. The two review applications noted above have now been filed to say that the facts averred in these two writ petitions and the relief claimed in these writs have not been noticed in the common order passed while disposing of these writ petitions alongwith Civil Writ Petition No.7490 of 2006. Though reliefs claimed in these two writ petitions are somewhat different but both these writ petitions can R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 2 }: be termed as offshoot of the claim made in Civil Writ Petition No.7490 of 2006. Gurdip Singh is the common petitioner in all the three Civil Writ Petition No.7490 of 2006 and No.9161 of 2007 as well as No.13163 of 2006 though Satwinder Singh is the first petitioner in the last petition. The facts mentioned in these petitions are common, though there may be a difference in the relief sought in the petitions. No review of the order passed in Civil Writ Petition No.7490 of 2006 is sought. It appears that while arguing the LPA, the counsel for the petitioners when confronted with some observations made in the order, has chosen to file these review petitions on the ground that the reliefs claimed in these two writ petitions have not been attended to. It appears that the counsel who had represented the petitioners before this Court stated before the L.P.A Bench that these three writ petitions were separately argued but have been disposed of without noticing the relief in these two writ petitions. Apparently, it was further stated before the L.P.A Bench that facts in these writ petitions were different and so these writ petitions could not have been disposed of by a common order. It was in this background, the counsel, who appeared in the review applications, but had not appeared at the time of arguing the writ petitions, was asked to file an affidavit indicating the facts which are different in these writ petitions. The operative part of the order in this regard dated 27.7.2009 is as under:- “Let the arguing counsel file an affidavit indicating what are the differences between the facts in the petition where R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 3 }: order is passed and the once which was disposed of in terms of the same order. The arguing counsel will also file an affidavit whether he had argued these petitions separately and what was the argument raised before the Court when the writ petitions were disposed of.” The counsel who had argued these writ petitions declined to file the requisite affidavit and this was so noticed in order dated 13.8.2009, which is as under:- “Counsel appearing for the applicant-petitioners says that the counsel, who had argued the matter before this Court when the order under review was passed is not willing to file an affidavit.” Though initially, Mr.Munish Gupta, Advocate, appeared to argue the review application, ultimately Mr.P.K.Gupta, Advocate, has appeared and argued these review petitions. He has still not made any attempt to clarify as to what different facts are pleaded in these two writ petitions, which would have called for separate consideration. The relief claimed in these writ petitions, however, appears slightly different than the one prayed for in Civil Writ Petition No.7490 of 2006. This, in my considered opinion, would not make any difference as the relief which is claimed in these two writ petitions, ultimately was dependent upon the outcome of the decision in Civil Writ Petition No.7490 of 2006. It would, thus, be essential to notice the background in which the relief is claimed in these two writ petitions. As noticed in the order disposing of these writ petitions, R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 4 }: the petitioners claim to have purchased this land from the right holders through various sale deeds in January 2006. Long ago, the right holders had filed a petition under Section 42 of the East Punjab Holding, Consolidation and Prevention of Fragmentation Act (for short, “the Act”) for repartition of the bachat land. As averred in the petition, this petition was allowed. Aggrieved against this order, Gram Panchayat had filed a Civil Writ Petition before this Court, which was dismissed on 21.3.1997. It is then claimed that the mutation of the land and repartition was incorporated in the jamabandi in the year 2005. The petitioners, thus, are the subsequent purchasers from the right holders through various sale deeds in the year 2006. As is noticed in the order disposing of these writ petitions, Gram Panchayat appears to have taken action to auction this land. The right holders of the village filed a petition under Section 10-A on 20.3.2006, challenging the validity of the auction conducted by the Gram Panchayat. It will be significant to observe here that the petitioners never challenged the action of the Gram Panchayat to put any land to auction. The order, which was passed by the Collector on the application moved by the right holders is annexed with the petition, which would clearly show that the petitioners are not the applicants or the petitioners, who had moved this application before the Collector. The Collector, however, finally came to conclude that the auction of the land conducted by the Gram Panchayat was legal but since the applicants who had filed the petition before the Collector had become owner and mutation had also been sanctioned R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 5 }: in their names so the Gram Panchayat can not conduct auction of this land in future. It has not been stated or shown that this order pertained to a land which has been purchased by the petitioners. The Gram Panchayat felt aggrieved against this order and preferred an appeal before the Commissioner on 12.4.2006. The order passed by the Collector was stayed. Accordingly, the Gram Panchayat auctioned this land on 24.4.2006. This action on the Gram Panchayat can not be faulted. In my view, the Gram Panchayat has every right to put the land to auction as the order passed by the Collector was stayed by the Commissioner. The petitioners would not disclose anything if this order passed by the Commissioner was challenged by the present petitioners or not. They, however, disclosed that the petitioners filed a civil suit in the Court of Civil Judge (Sr.Division), Amloh, which was titled as Satwinder Singh Vs. Gram Panchayat. The Gram Panchayat appeared and filed a written statement, disclosing that the land had been put to auction on 24.4.2006. The petitioners then would not disclose as to what happened to that civil suit. The petitioners, however, would still maintain that Panchayat has no right or interest in the property and so could not put this land to auction for the purpose of lease. Such a relief, obviously must have been sought by the petitioners or could seek in the civil suit which they filed. Nothing is stated in the writ petitions in this regard. The Panchayat again issued a proclamation for putting the land to auction and fixed 16.5.2007 as the date for auction of the land. Petitioner Gurdip Singh then filed a Civil Writ Petition No.7490 R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 6 }: of 2006, when while issuing notice of motion, dispossession of the petitioners was stayed. These are the facts which have been noticed in the order disposing of these writ petitions. These are the only relevant facts to dispose of these two writ petitions in which review applications have now been filed. In the written statement filed in Civil Writ Petition No.7490 of 2006, it is rightly pointed out that the petitioners would have an alternative remedy under Section 10-A of the Act to impugn the order of the Panchayat to put this land for auction and hence, the writ petition would not be maintainable. It may be pointed out that the earlier action of the Gram Panchayat in putting the land to auction was challenged by the right holders by filing an application under Section 10-A of the Act, when the effective order was passed by the Collector. This order was taken in appeal by the Gram Panchayat, which was stayed by the Commissioner. If subsequent action is taken to put the land to auction, the petitioners or any other aggrieved person would definitely have an alternative remedy which is effective one under Section 10-A of the Act. In the reply, it was further pointed out that the petitioners were seeking the quashing of order Annexure P-10 passed by the Commissioner, which was not at the instance of the petitioners but some other eight persons. The petitioners had never challenged the action of the Gram Panchayat for putting this land to auction. They were not even party in the appeal, which was filed. In this background, it was urged that the petitioners have no locus to file this writ petition and that they could not take support from the earlier order either passed by the Collector R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 7 }: or Commissioner. In any case, if the petitioners were aggrieved against any action of the Gram Panchayat for putting this land to auction, they also had an efficacious alternative remedy under Section 10-A of the Act. Instead, they chose to file writ petition directly before this Court, where their dispossession was stayed. During the pendency of Civil Writ Petition No.7490 of 2006, they have filed two writ petitions No.13163 of of 2006 and 9161 of 2007. The prayer made in Civil Writ Petition No.13163 of 2006 is for quashing the letter/order dated 7.8.2006, through which a request has been made to the Financial Commissioner for cancellation of mutation No.941 stated to have been sanctioned in favour of predecessor-in-interest of the petitioners. It is further prayed that the respondents be prohibited/restrained from proceeding further on the letter. The prayer in Civil Writ Petition No.9161 of 2007 for cancelling the auction conducted on 27.5.2007 and for restraining the respondents from utilising the lease money received by respondent No.3. Further prayer is made for refund of the amount received by respondent No.3 to respondent Nos.4 and 5. Thus, the main relief claimed in Civil Writ Petition No.9161 of 2007 is for cancelling the auction, which was the primary prayer in Civil Writ Petition No.7490 of 2006. The prayer of the petitioners to challenge the auction has been found to be without locus and has been declined on the ground that they would have an alternative remedy under Section 10-A of the Act. The same, as such, would equally apply so far as this part of the prayer made in Civil Writ Petition No.9161 of 2007 is concerned. The petitioners otherwise have not also been able to show their locus. R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 8 }: They appears to have purchased land from the right holders. The mutation, if any, also appears to be in the name of the right holders and not in the names of the petitioners. In this background, what right the petitioners would have is really not understood. The petitioners and the counsel representing them have apparently misled this Court in getting the notice issued in these writ petitions only on the basis that dispossession of the petitioners have been stayed in an order passed in CWP No.7490 of 2006. It can be noticed that the petitioners are found to have no locus in challenging the auction on the basis of order passed by the Collector or the Commissioner. The relief claimed in Civil Writ Petition No.13163 of 2006 as noticed above would give out the entire mechanism and the scheme woven by the petitioners with the help of their counsel. The petitioners have challenged a letter written to the Financial Commissioner for cancellation of a mutation, which is not in favour of the petitioners but their predecessor-in-interest. Firstly, they would have no locus to challenge a letter written to Commissioner. It is not even stated that the mutation has been cancelled. The cause to challenge would arise when mutation is cancelled. There is no right with the petitioners to challenge a communication, which is addressed by a Collector to Commissioner. Strangely, the petitioners are not the one in whose favour this mutation is for them to agitate the same. It is their predecessor-in-interest, who can do so, if at all it is open to challenge through a writ petition. The mutation, even if cancelled, could be challenged under the relevant provisions and writ directly that too to challenge the letter or a communication initiated is highly R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 9 }: misconceived. So is the relief claimed in Civil Writ Petition No.9161 of 2007. The petitioners are seeking cancellation of an auction without indicating as to how they have a locus so far as the land put to auction is concerned. Even if they have any locus, they have an alternative remedy as noticed in the order disposing of these writ petitions under Section 10-A of the Act. The other prayer made in the petition for prohibiting/restraining the respondents from utilsing the lease money is certainly not within the purview of writ Court. Once the order passed by the Collector was stayed by the Commissioner, the Panchayat had every right to put the land to auction. A writ prohibiting the respondents Panchayat from utilizing the money received is certainly a remedy, which is not made out. So is the prayer for refund of this amount as made in this writ petition. The petitioners had filed a civil suit and further proceedings thereon are not disclosed in the writ petition. That also seems to be with the purpose of misleading the Court. It is in this background that the counsel for the petitioners was asked to explain and file an affidavit as to what different facts were pleaded in these writ petitions. Basically, the petitions filed by the petitioners were dismissed on the ground that they did not have a locus to file these petitions in the background as noticed and also on the ground that if they have any grievance, then they have an alternative remedy available to them, which is efficacious and which had been so exercised by some of the right holders. When Civil Writ Petition No.7490 OF 2006 was filed, the appeal filed by the right holders was pending before the R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 10 }: Commissioner. As stated by counsel for the petitioners, the said appeal was dismissed. That being the position, none perhaps would be left with any grievance. As observed in the order disposing of these writ petitions, it is not disclosed if any land in possession of the petitioners is sought to be put to auction or has been put to auction. It was, thus, observed that the writ petition to challenge the auction of land by the Gram Panchayat can not be made a subject matter of challenge by way of writ petition. The scope of writ of prohibition in this background was also noticed to say that the prayer made in the writ petition would not fall within the purview of writ of prohibition. Availability of an alternative remedy for all the relief claimed in these writ petitions was another reason which weighed with the Court to dismiss these writ petitions. It has already been noticed in the order under review that during the pendency of these proceedings, mutation which was in favour of the right holders has already been changed. The counsel for the petitioners and the petitioners have failed to disclose this fact, which is an attempt to mislead the Court. Once the mutation has been changed, the petitioners can not take any advantage of any observation that might have been made either by the Collector or Commissioner. In fact, the petitioners have not been able to show the sale in their favour, which ultimately would now get effected, once the mutation has been changed. There was, thus, hardly any need to notice these facts separately. Another reason for not noticing the facts and prayer separately in the order was that these petitions were not separately argued and only CWP No.7490 of 2006 alone was R.A. No.239 of 2009 in CIVIL WRIT PETITION NO.9161 OF 2007 :{ 11 }: argued and no submissions in these writ petitions were ever made. The counsel who had initially argued the case, did not appear to argue the review applications, and appeared only on the final date and that too when this Court made some observations in this regard, which need not be noticed here. There is, thus, no merit in the review applications and the same are accordingly dismissed. September 23, 2009 ( RANJIT SINGH ) khurmi JUDGE