CIVIL WRIT PETITION NO.19981 OF 2001 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: May 19, 2009 Thakardwara Bhagwan Narain Ji, Pandori Mahantan, Tehsil and District Gurdaspur. ...Petitioner VERSUS Financial Commissioner, Appeals-I, Punjab, Chandigarh & others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH Present: Mr.P.K.Palli, Senior Advocate and Mr.Sarjit Singh, Senior Advocate with Ms.Sangita Dhanda, Mr.R.S.Chauhan, Mr.Vikas Singh and Mr.Vishal Goel, Advocates, for the petitioner. (In C.W.P. Nos.19981 of 2001, 2945, 2997 and 1627 of 2002) For the respondents (in C.W.P. Nos.15811 and 15812 of 1999 and 6911 to 6914 of 2002). Mr.Praveen Chander Goyal, Addl.A.G.Punjab, for the State. Mr.R.D.Bawa, Advocate and Ms.Ratna Shree, Mr.C.S.Rana, Mr.Samuel Gill, Mr.Randhir Bawa, Advocates, For the petitioners (in C.W.P. Nos.15811 and 15812 of 1999 and 6911 to 6914 of 2002) For the respondents (In C.W.P. Nos.19981 of 2001, 2945, 2997 and 1627 of 2002) ***** RANJIT SINGH, J. This order will dispose of Civil Writ Petition No.19981 of CIVIL WRIT PETITION NO.19981 OF 2001 :{ 2 }: 2001, 1627, 2945 and 2997 of 2002 (Thakar Dwara Bhagwan Narain Ji, Pandori Mahantan & another Vs. The Financial Commissioner (Appeals-I), Punjab and others). Other writ petitions listed alongwith these petitions are Nos.15811 of 1999 (Fauju Vs. The Financial Commissioner (Relief and Resettlement), Punjab, Chandigarh and others) and 15812 of 1999 (Bachan Singh Vs. The Financial Commissioner (Relief and Resettlement), Punjab, Chandigarh and others). These have been filed by respondent-tenants, challenging the order of their ejectment. Four Writ Petition Nos.6911 and 6912 of 2002 (Lali Vs. The Financial Commissioner (Appeals-I), Punjab and others), 6913 and 6914 of 2002 (Harbans Singh and others Vs. The Financial Commissioner (Appeals-I), Punjab and others) are those through which the tenants have challenged the order directing recovery of rent. Writ Petitions No.2671 of 1982, 2790 of 1983, 2789 of 1983, 1151 of 1985, 1082 of 1985 and 1083 of 1985 were filed by the tenants to challenge finding given by the Commissioner and Financial Commissioner holding that Thakar Dwara Bhagwan Narain Ji, Pandori Mahantan (hereinafter referred to as “Thakur Dwara”) was not the owner, with further prayer to seek permission to purchase the land under the tenancy of the petitioner therein. These writ petitions were disposed of as infructuous on 22.1.2009. The facts are being taken from Civil Writ Petition No.19981 of 2001. Thakur Dwara, in this and other similar writ petitions, seeks quashing of order dated 14.5.2001, Annexure P-6, CIVIL WRIT PETITION NO.19981 OF 2001 :{ 3 }: passed by the Financial Commissioner (Appeals), Punjab, Chandigarh, who had set-aside the order passed by the Additional Commissioner (Appeal), Jalandhar, dated 27.2.1998 and that of the Collector, Gurdaspur dated 7.10.1991. It is pleaded that through this cryptic and non-speaking order, the applications for purchase filed by respondent Nos.2 to 19 stand illegally allowed. It is averred that Thakur Dwara is the owner of the land situated in Villages Sadana, Mahrajpur and Dakhla where respondent Nos.2 to 19 are the tenants, who are cultivating the land. Civil Writ Petition No.2997 of 2002 is concerning the land situated in Village Bhagwanpura, where respondent Nos.2 to 5 in the said writ petition are tenants. On 1.7.1958, Mahant Ram Dass filed a return under the Punjab Security of Land Tenure Act, 1953 (hereinafter called “the Tenures Act”) before Special Collector, Punjab, Chandigarh. The land owned and held by him was then verified, which was situated in District Gurdaspur, District Hoshiarpur, District Kangra and District Una in Himachal Pradesh. Special Collector, Punjab, vide his order dated 27.7.1961, declared the area measuring 1472 standard acre and 8-3/4 units as surplus in the hands of Ram Dass Chela Braham Dass. Area of Thakar Dwara was never determined as surplus. Since the surplus area was declared in the hands of Ram Dass in his individual capacity, he moved application for correction of the revenue record on the ground that instead of Ram Dass, Thakar Dwara be declared and recorded as owner of the land in dispute. The District Collector, Gurdaspur, vide his order dated 11.6.1964 held that Thakar Dwara was the owner of the land and not Ram Dass. All proceedings held at the instance of Ram Dass were declared null CIVIL WRIT PETITION NO.19981 OF 2001 :{ 4 }: and void. Even devotees of Thakar Dwara filed a civil suit for declaring the Thakar Dwara to be owner of the land and that Mahant had no right or title in respect of landed property. This suit was decreed by civil court on 1.6.1968, holding that land belonged to Thakar Dwara and not Mahant. The order passed by the District Collector and the decree dated 1.6.1968, referred to above, attained finality as these were never challenged. On 31.12.1974, the land situated in Villages Bhagwanpura, Dakhla, Sadana Maharajpur, Jattowal etc. which was held to be of Thakar Dwara, was allotted to the respondents under the provisions of the Punjab Land Reforms Act (for short, “the Reforms Act”). This was allegedly done without following the proper procedure. Notices under Section 9(1) of the Act were issued to the Thakar Dwara for delivery of possession. Petitioner, Thakar Dwara, filed Civil Writ Petitions Nos.9 of 1975 and 148 of 1975 before this Court, challenging the action of Collector, Agrarian, in attaching the land and issuing notice under Section 9(1). These writ petitions were allowed on 26.3.1979 and the case was remanded to Collector, Agrarian, for a fresh decision. The possession of petitioner, Thakar Dwara, was protected vide this order. The Collector, Agrarian, then took up the matter and recorded a positive finding on the basis of evidence that actually Thakar Dwara was the owner of the land and not individual, Mahant Ram Dass. In his order dated 13.10.1980, the Collector further held that Thakar Dwara was a temple and so the provisions of Section 14 of the Act would apply. The notices issued to Thakar Dwara under Section 9(1) of the Act were accordingly cancelled. CIVIL WRIT PETITION NO.19981 OF 2001 :{ 5 }: Aggrieved against the same, tenants filed an appeal before the Additional Commissioner, Jalandhar, who allowed the same holding that the property did not belong to Thakar Dwara. The Additional Commissioner directed the Collector to take possession of the land and to give it to various allottees. The petitioner challenged this order passed by the Additional Commissioner, Jalandhar, before the Financial Commissioner through R.O.R. No.514 of 1982- 83. Some of the respondent-tenants also approached the Financial Commissioner as their appeals were rejected on the ground of limitation. These petitions came up for hearing before the Financial Commissioner, who, after going through the detailed arguments and considering all the materials placed before him, came to hold that order of the Collector dated 13.10.1980 was legal, valid and perfect. Financial Commissioner also recorded a finding that mere entry in the name of Mahant in the column of ownership did not mean that property was of Mahant. He accordingly set-aside the order passed by the Additional Commissioner. Apart from other findings, the Financial Commissioner, in this order dated 11.9.1985, also recorded a finding that the land in dispute belongs to Thakar Dwara, which is a religious institution of public nature and as such, provisions of Section 14 of the Act will be attracted in this case. He not only set- aside the notices issued under Sections 9(1) and 9(2) of the Act but also quashed the allotment made to the allottee-respondents in 1974 by the Collector. Accordingly, the revision petition filed by the petitioners was accepted whereas those filed by respondent Nos.2 to 19 were dismissed. Concededly, this order passed by the Financial CIVIL WRIT PETITION NO.19981 OF 2001 :{ 6 }: Commissioner dated 11.9.1985 has acquired finality as none of the parties has challenged the same. The order is placed on record as Annexure P-2. In order dated 11.9.1985, the Financial Commissioner cancelled the allotment of land in favour of the respondent-tenants. Financial Commissioner had also quashed the notices issued under Section 9(1) of the Reforms Act for delivery of possession. Instead of challenging this order, the tenants moved an application on 1.5.1986 before Assistant Collector Ist Grade for purchase of the land under Section 15 of the Reforms Act. The petitioner would challenge this move of the tenants on the ground that this application was barred by time and beyond the scope of Section 15 of the Reforms Act. This Section is stated to be para-materia to Section 18 of the Tenures Act. Since the Reforms Act had come into force on 2.4.1973, it is stated that the tenants could exercise their right for purchase of this land under Section 15 thereof within one year from the commencement of the Act. Respondents, however, never opted to exercise this option of their right to purchase this land within the time stipulated. It is accordingly pleaded by the petitioner that the application filed by the respondent-tenants would not be maintainable after the expiry of the period specified in the Section, which, according to the petitioner is mandatory. Assistant Collector, however, allowed this application on 23.1.1991, which is termed as erroneous by the petitioner besides referring it to be a non-speaking and cryptic order. The petitioner, therefore, challenged this order before Collector, Gurdaspur, who, on 7.10.1991, accepted the appeal and set-aside the order passed by the Assistant Collector Ist Grade. While allowing the appeal, the CIVIL WRIT PETITION NO.19981 OF 2001 :{ 7 }: Collector relied upon order passed by the Financial Commissioner dated 11.9.1985 and also held that Section 15 was mandatory in nature. Respondent-tenants thereupon filed an appeal against the order passed by the Collector before Commissioner, Jalandhar Division, Jalandhar. Commissioner held that there was no evidence brought on file to prove that the land in dispute was declared surplus in the hands of Thakar Dwara. He also recorded a finding that the tenants failed to establish their contention through any cogent or reliable documentary evidence to show that the suit land was ever allotted by any competent authority. He also found fault with the action of the respondents in not exercising their rights in filing the purchase application in time immediately after enforcement of the Reforms Act. He accordingly dismissed the appeal filed by the respondent-tenants on 27.2.1998. Respondent-tenants thereafter filed a revision before the Financial Commissioner, who vide his order dated 14.5.2001, has accepted the same, which is now under challenge in the writ petitions. The grievance of the petitioner is that while passing the impugned order, the Financial Commissioner has not considered the legal and valid pleas raised by the petitioner. The petitioner has specifically pointed out that there was no evidence on record to prove that the area was ever declared surplus in the hands of Thakar Dwara. The surplus area, as per the petitioner, was determined in the hands of Ram Dass in his individual capacity, which had been declared null and void and Thakar Dwara was held to be the owner of the property. This order dated 11.6.1964 had become final as it was never challenged. The contention, thus, is that there was no CIVIL WRIT PETITION NO.19981 OF 2001 :{ 8 }: determination of surplus area, which could lead to allotment or entitle the respondents to file a purchase application. The petitioner would also point out to the order dated 11.9.1985, Annexure P-2, where the then Financial Commissioner, had recorded a finding to the effect that Thakar Dwara was the owner and Mahant Ram Dass had nothing to do. The surplus area declared in the hands of Ram Dass having been declared in individual capacity, thus, was termed as null and void. This order passed by the then Financial Commissioner had become final and the notices issued under Section 9(1) and the allotment in favour of the respondents was quashed. The plea accordingly was that respondent-tenants were not entitled to move application for the purchase of the land. This was in addition to the plea that the respondent-tenants had not exercised their right to purchase within the stipulated period as provided under the Reforms Act and as such, they were now estopped by their own act and conduct from purchasing the land, it being beyond the scope of the provisions of the Reforms Act. It may be recapitulated here that the land was allotted to the respondents in village Bhagwanpura, Dhakhla, Sadana, Mehrajpur and Jattowal on 31.12.1974 after enforcement of the Reforms Act. As per the petitioner, this was done without following the proper procedure. The notices were issued under Section 9(1) of the Reforms Act to the Thakar Dwara for delivery of possession. The petitioner filed Civil Writ Petition Nos.9 of 1975 and 148 of 1975, which were allowed by this Court on 26.3.1979. The case was remanded to the Collector Agrarian for fresh decision. Collector, Agrarian then vide his order dated 13.10.1980, had held that land CIVIL WRIT PETITION NO.19981 OF 2001 :{ 9 }: was actually in the ownership of Thakar Dwara and not that of individual Mahant Ram Dass. The Collector further held that the Thakar Dwara was a Temple and the provisions of Section 14 of the Reforms Act were applicable and accordingly notices issued under Section 9(1) of the Reforms Act were cancelled. This order passed by the Collector was upheld by the Financial Commissioner on 11.9.1985, being perfect, while setting-aside the order passed by the Commissioner dated 27.6.1983. Reference here may be made to Civil Writ Petition No.2671 of 1983 and another connected writ petition, whereby the purchase applications filed by the respondents were rejected and challenged before this Court through the said writ petitions. While issuing notice of motion in these writ petitions on 30.5.1983, this Court directed that the proceedings may go on but final order be not passed. These writ petitions were admitted on 17.4.1983 and the interim order was continued. It is accordingly pleaded by the petitioner that during the pendency of these writ petitions, Financial Commissioner could not have competently decided the matter unless this Court had taken a final decision on the prayer made by the respondents. These writ petitions were dismissed as infructuous on 22.1.2009 as the Financial Commissioner had already allowed the purchase application filed by the respondents. While hearing the petitions and once the counsel for the petitioner had concluded their submissions, it was noticed by the Court that the written statement had only been filed in one case. Counsel for the respondents, thus, prayed for opportunity to file written statement. In the interest of justice, this permission was granted. The written statement was accordingly permitted to be CIVIL WRIT PETITION NO.19981 OF 2001 :{ 10 }: placed on record. In the written statement filed, the respondents have raised some preliminary objections. It is pleaded that separate order was passed by Assistant Collector Ist grade in regard to separate parcel of lands concerning the purchase applications filed by different respondents impleaded in the writ petitions. These orders were challenged by filing separate R.O.R Nos.669, 671, 674, 676, 678 of 1997-98. It is, thus, pleaded that the orders passed in separate R.O.Rs were required to be challenged separately by way of separate writ petitions as these pertained to separate parcel of land and, thus, related to separate causes of action. The respondents, thus, would plead that the said orders having not been challenged in respect of respondent Nos.5 to 19 have accordingly become final. It is pleaded that the writ petitions are, thus, liable to be dismissed being barred by the doctrine of res judicata. The respondents also seek dismissal of the writ petitions for non-joinder and mis-joinder of different causes of action and mis- joinder of parties. It is pointed out that separate orders for separate parcel of land were passed on separate purchase applications filed by all the respondents herein. It is also pointed out that the order dated 23.1.1991 was passed separately in separate purchase applications and, thus, could not be joined together in a single writ petition where order dated 14.5.2001 passed in favour of respondent Nos.2 to 4 alone is under challenge. It is accordingly stated that the writ petition is bad for misjoinder of cause of action and mis-joinder of parties and, thus, liable to be dismissed. The plea of res judicata is also raised on another score. CIVIL WRIT PETITION NO.19981 OF 2001 :{ 11 }: Respondents would plead that order dated 11.9.1985, Annexure P-2, has been allowed to become final and, thus, would be binding on the parties. It is stated that the declaration made in the said order to the effect that surplus land declared under the old Act would be governed by the provisions of the old Act and would not be governed by the provisions of new Act would mean that right to purchase available with the respondents under the old Act would remain intact and would not be effected by the provisions of the new Act. To quote the respondents, “this proposition of law having not been challenged and having become final between the parties, the answering respondents are entitled to purchase the land in question under the provisions of Section 18 of the old Act,” is pressed to justify the impugned order dated 14.5.2001, allowing purchase applications. It is accordingly pleaded that the petitioner can not dispute the rights of the answering respondents to purchase the land under Section 18 of the old Act and the writ petition to make this challenge would be barred by principle of res judicata. While replying on merits, it is pointed out that Mahant Ram Dass had filed the declaration for determination of surplus area as owner through his attorney and accordingly the surplus area was determined in the hands of Mahant Ram Dass. After the aforesaid order of declaring the surplus area, the proceedings for allotment to the tenants were initiated and some land was also allotted to the respondents in different villages. It is pointed out that there was no provision under the old Act, giving any exemption from utilization of the surplus area of the religious institution and no distinction as such could be made while assessing the land in the hands of living person CIVIL WRIT PETITION NO.19981 OF 2001 :{ 12 }: and the religious institution under the provisions of the old Act. Mahant Ram Dass, as per the respondents, had filed this application for correction of record to replace his name by the name of Thakar Dwara with an ulterior motive to save the surplus area from being utilized. The Collector had accordingly declared Thakar Dwara as an owner vide his order dated 1.6.1964 and further held that the surplus area of such religious institution could not be utilized in view of the instructions memo No.2927-39 dated 13.9.1960. Reference is also made to a decree dated 1.6.1968 in favour of Thakar Dwara, which is stated to be a collusive one suffered by the Mahant to save the surplus land from utilization. While this order/decree was under challenge, the surplus area of the petitioner was allotted to different tenants on 31.12.1974. This allotment included the land in question allotted to the answering respondents. The notices were also issued to the land owners under Section 9(1) of the Reforms Act. It was to challenge these orders that Civil Writ Petition Nos.9 and 148 of 1975 were filed, seeking exemption of the surplus area from being utilized in view of the provisions of Section 14 of the Reforms Act. As per the respondents, these writ petitions were allowed to a limited extent for providing hearing to the petitioners and cases were remanded to the Collector vide order dated 26.3.1979. It is then that the Collector had held Thakar Dwara as owner and, thus, granted exemption for utilizing the land under the provisions of Section 14 of the Reforms Act. Notices issued under Section 9(1) were, therefore, cancelled. The appeal filed by one Thura Ram against this order was accepted by the Commissioner on 27.6.1983 whereas the appeals filed by other CIVIL WRIT PETITION NO.19981 OF 2001 :{ 13 }: 36 tenants were dismissed on 23.8.1983 being time barred. The then Financial Commissioner, P.K.Kathpalia, thereafter vide his order dated 11.9.1985 (Annexure P-2) had held that land was owned by petitioner, Thakar Dwara and also quashed the notices under Section 9(1) issued to the land owners. It is conceded that the allotments dated 31.12.1974 would stand cancelled as held by Financial Commissioner in his order dated 11.9.1985 (Annexure P-2)but reference thereafter is made that the Financial Commissioner further held that surplus area was declared in the year 1961 was not challenged and became final and, therefore, the land so declared as surplus under the provisions of the old Act would remain surplus and would continued to be governed by the Tenures Act and the provisions of Section 14 of the Reforms Act would not effect the land already declared surplus under the Tenures Act. The respondents would contend that the allotment already made under the Tenures Act would remain intact. Reference is also made to the observations made by the Financial Commissioner wherein he has said that instructions dated 13.9.1960 did not carry any force of law and, therefore, were inapplicable. From this, the respondents have pleaded that the effect of order dated 11.9.1985 (Annexure P-2) is that the right to purchase the land with the respondents would be available under Section 18 of the Tenures Act. There being no limitation under the said Section, the purchase application as filed by the respondents would be maintainable without any reference to the provisions of Section 15 of the Reforms Act, which, as per the respondents, is not applicable. In the alternative, it is pleaded that even if it is construed CIVIL WRIT PETITION NO.19981 OF 2001 :{ 14 }: that Section 15 of the Reforms Act would be applicable, yet the period of limitation for filing the purchase application would start from the dates when the dispute regarding the ownership and other issues were settled by the Financial Commissioner on 11.9.1985 and the purchase applications, which were filed on 1.5.1986 would, thus, be within the period of limitation i.e. one year from the date of this order. The answering respondents would further plead that in fact there was no need to file any purchase application. As per the respondents, the land in question was allotted to them on 31.12.1974 under the provisions of 1973 Scheme, which is under the Reforms Act. As per this, the answering respondents were to become owners of the land in question and, thus, there was no requirement of filing the purchase application. The requirement of filing the purchase application only arose on 11.9.1985, when the Financial Commissioner set-aside the order of allotment dated 31.12.1974. Thus the cause of action, according to the respondents, arose for filing the purchase application and when order dated 11.9.1985 was passed and period of limitation should be calculated from the said date. The respondents have further pleaded that in order dated 11.9.1985, it has been observed that the provisions of Reforms Act would not apply to the land declared surplus under the Tenures Act and, thus, the allotments made in the year 1974 were cancelled, when the necessity to file the application arose, which the respondents utilized and filed application in January 1986. It is accordingly pleaded that provisions of Section 15 of the Reforms Act would not apply in the instant case as held by the Financial Commissioner, though the respondents would say that this CIVIL WRIT PETITION NO.19981 OF 2001 :{ 15 }: application was filed without any delay having regard to these peculiar facts and circumstances of the case. In the reply, strong reliance has been placed by the respondents on Para 10 of order dated 11.9.1985 (Annexure P-2). The relevant portion of the same has been reproduced in the reply. On this basis, it is pleaded that the Financial Commissioner has held that declaring Thakar Dwara as owner would not effect the position of the tenants and allottees under the Tenures Act