Civil Revision No.2205 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.2205 of 2010 (O&M) Date of decision: 18.08.2010 Sucha Singh and others .....Petitioners Versus Tehsildar (Sales), Ludhiana (West), Ludhiana, and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K.SHARMA 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? Yes 3.Whether the judgment should be reported in the Digest? Yes Present:- Mr. Rajesh Punj, Advocate, for the petitioners. Mr. N.S. Virk, Addl. A.G., Punjab. Mr. I.K. Mehta, Sr. Advocate, with Mr. M.S. Kohli, Advocate, for respondent No.1. ***** VINOD K.SHARMA, J. (ORAL) The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 3.3.2010, passed by the learned Civil Judge (Junior Division), Ludhiana, vide which the application moved by petitioner/defendant No.3 for dismissal of the suit as not maintainable by invoking the provisions of Order 7 Rule 11 of the Code of Civil Procedure, was ordered to be dismissed. Tehsildar (Sales), Ludhiana (West), Ludhiana, Sh. Paramjit Singh, filed a suit claiming the following relief: - Civil Revision No.2205 of 2010 (O&M) -2- “Suit for declaration to the effect that transfer of the land measuring 77K-9M out of total land measuring 80 kanals bearing khata # 75/103, Khasra #6//3, 4, 5, 6, 7, 14, 15, 16, 17//1/1, ½, 9, 10, khata # 76/1, 104/1, Khasra #6//17 as per jamabandi for the years 1991-92 situated within the revenue estate of villa. Majara khurd, Teh. & Distt. Ludhiana through mutation No.295 on the basis of sale deed bearing vasika No.13445 dt. 12.9.97 with court orders on behalf of defendants # 4 to 9 in favour of the defendants # 1 to 3 is illegal, null & void, and is violation of terms & conditions of the conveyance deed dt. 8.9.1991 and further declaration to the effect that the court decree passed by the court of Sh. G.K. Dhir, the then Sub-Judge Ist Class, Ludhiana dt.26.11.94 in case titled as Gurdial Singh etc. vs. Swaran Kaur etc. is also illegal, null & void, result of fraud and misrepresentation, collusive between the parties and is not binding upon the rights of the plaintiff and the comprise submitted for obtaining the said decree allegedly executed on 9.11.1994 along with agreement to sell allegedly executed by the defendants # 4 to 9 in favour of the defendants # 1 to 3 is also null & void, illegal, result of fraud and is liable to be set-aside and further declaration that the property is liable to be restored in the position as it was prior to the sanction of mutation No.295; AND for permanent injunction restraining the defendant # 1 to 3 from in any manner changing the nature or title of the suit property by way of sale, mortgage, gift, transfer or any other manner, forcibly or illegally, except in due course of law. On the basis of oral & documentary evidence.” On notice having been served, an application was moved by petitioner/defendant No.3, for dismissal of the suit on the ground, that the plaintiff had no locus standi to file the present suit. The suit was barred by limitation and not maintainable. It was alleged in the application, that the suit has been filed on the pleadings, that the property in dispute could not be sold within 20 years to a non-scheduled caste, whereas there was no bar to alienate the property in any manner to scheduled castes and scheduled tribes. The Civil Revision No.2205 of 2010 (O&M) -3- pleaded case was, that the property had already been sold to defendant No.11 Ram Chand, and mutation was also entered in the revenue record on the basis of sale deed before 12.9.1997. It was also the case, that when the sale deed was executed in favour of defendants No.1 to 3 and mutation was sanctioned thereon. The case was that defendant No.3 was scheduled caste being Ramdasiya by caste and this fact has been intentionally concealed by the plaintiff and defendant No.11. Therefore, the case pleaded was, that an attempt has been made to mislead the Court, as the property was in fact sold to a scheduled caste person. It was also the case, that the property was sold about 20 years back, therefore, the suit being time barred was not maintainable. The application was contested by raising a preliminary objection, that the application was technically defective, therefore, not maintainable. On merit, it was pleaded, that the property in dispute could not be sold to non-scheduled caste till completion of 20 years from its transfer, therefore, defendant No.3 could not get benefit of sale. It was also the stand taken by the plaintiff, that defendant No.3 had connived with other non-scheduled caste persons to play fraud with the Government. It was further the case of the plaintiff/respondent No.1, that defendant No.3 had intentionally projected by other defendants i.e. Gurdial Singh and Inderjit Kaur to get the benefit. The learned trial Court found the application to be meritless Civil Revision No.2205 of 2010 (O&M) -4- and dismissed the same. Along with the application, referred to above, the other applications, for filing written statement and deletion of name of defendant No.11 etc., were also dismissed. Though, the grounds taken by the petitioner/defendant No.3 for dismissal of the suit cannot be grounds to reject the suit at initial stage, as the objections raised can only be decided after trial, even law of limitation is also question of law and facts. The learned trial Court could reject the suit, under Order 7 Rule 11 of the Code of Civil Procedure, in case, the reading of the pleadings in the plaint taken to be true would have shown that suit was barred by limitation and not otherwise. The question to be decided in this case is, whether the plaintiff can maintain the suit. Tehsildar (Sales), Ludhiana (West), Ludhiana, Paramjit Singh, prima facie does not have any interest in the lis in his capacity as Tehsildar (Sales), Ludhiana, nor is he entitled to represent the State of Punjab, as is sought to be projected. Article 166 of the Constitution of India reads as under: - “166. Conduct of business of the Government of a State. - (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Government shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not Civil Revision No.2205 of 2010 (O&M) -5- business with respect to which the Governor is by or under this Constitution required to act in his discretion.” Under the rules of business framed under Article 166 of the Constitution of India, it is the Secretary of the Government, who can represent the State Government and not Tehsildar (Sales). Even otherwise, it is not understood what interest the Tehsildar of the Government had in the matter, as the allotment is governed by the statutory rules, and the powers are given under act/regulations. The suit prima facie seems to be mala fide exercise having been filed on the wrong advice. The plaintiff was summoned to this Court on 22.7.2010, and was asked as to under what authority of law, the suit was filed by him. The stand taken by the plaintiff/respondent No.1 was, that the suit was filed on behalf of the State Government, and he sought time to file detailed reply to the revision petition. In the reply to the revision petition, the plaintiff/respondent No.1 has taken a stand that the suit was not filed under any pressure, rather it was filed in compliance with the order dated 27.10.2004 of the Deputy Commissioner, Ludhiana. The permission was given, on the basis of the enquiry report submitted by the Commission for Scheduled Caste and Scheduled Tribes, and the legal opinion of the District Attorney, Ludhiana. The order passed by the Deputy Commissioner, Ludhiana, and the legal opinion read as under: - “Please find enclosed copy of memo No.51/NHRC dt. 24.9.2004 dated 18.06.2004 by Director, National Commission for Scheduled Castes & Scheduled Tribes Civil Revision No.2205 of 2010 (O&M) -6- Chandigarh. In order to comply with the action point No.2 this letter, legal opinion of District Attorney had been obtained. Copy of the legal opinion given by the District Attorney is being enclosed. You are directed to take immediate steps to bring the fact of the transfer of land to a person outside scheduled caste to the notice of the Hon'ble Court and take immediate steps to avail of legal remedies for getting the consent decree set aside so that the wrong done can be got undone. Ultimately, the mutation may be reviewed accordingly depending upon the results of the proceedings of the Civil Court. This may kindly accorded TOP PRIORITY.” The opinion given by the District Attorney reads as under: - “I have perused the PUC's. As regards point No.2 in the memo No.2893/SK dated 27.9.2004, I opined that since the land in question was custodian land and was purchased by one Parkash Ram s/o Sh. Biru Ram in a restricted auction being the member of Scheduled Caste. The said land could not be sold by even legal representatives of Parkash Ram to any person outside the Scheduled caste and as such the so-called decree in favour of Gurdial Singh is not in accordance with law. The sale deed subsequently was registered on 12.9.1997 under the orders of the then Civil Judge Senior Division, Shri S.K. Sachdeva, PCS, and subsequently on it basis mutation 295 was sanctioned on 22.9.1997. Regarding I further opined that steps may be taken to bring this fact in the notice of the court and legal remedies be availed for getting the consent decree set aside so that the wrong done can be got undone and ultimately the mutation may be reviewed accordingly depending upon the result of the proceedings in the Civil Court.” The reading of the legal opinion does not show that any directions were issued to Tehsildar, Ludhiana, to file a civil suit, in his own name, rather he was directed to avail legal remedies for getting the consent decree set aside. It is not in dispute that in the consent decree dated 9.11.1994 State was not the party. It is not understood as to how necessity arose to file a suit, to get the decree declared as null and void, as it is well settled Civil Revision No.2205 of 2010 (O&M) -7- law that a person who is not a party to the decree, is not bound by the decree. There was, thus, no occasion for the plaintiff/respondent No.1/or the State to file this suit. The whole action seems to be an outcome of non-application of mind/or for some other consideration. The Hon'ble Supreme Court in District Collector, Srikakulam & Ors. Vs. Bagathi Krishna Rao & Anr., 2010(3) RCR (Civil) 318 has laid down as under: - “5. Section 79 of the Code of Civil Procedure (hereinafter `CPC') specifically deals with suits by and against the Government and provides that in suits by and against the Government, the authority to be impleaded as the plaintiff or defendant, would be the Union of India or Central Government or the State or State Government. Proviso to Rule 9 of Order 1 provides that non-joinder of necessary party is fatal. 6. Rule 1 of Order XXVII CPC deals with suits by or against the Government or by officers in their official capacity. It provides that in any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may like by general or special order authorize in that behalf and shall be verified by any person whom the Government may so appoint. 12. While considering the similar case in Chief Conservator of Forests, Government of A.P. Vs. Collector & Ors; AIR 2003 SC 1805, this Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. This Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person.” In view of the judgment of the Hon'ble Supreme Court, the suit Civil Revision No.2205 of 2010 (O&M) -8- filed by the plaintiff/respondent No.1 was not competent, as Tehsildar (Sales) had no such locus standi to maintain the suit on behalf of State Government. It is pertinent to mention here, that in spite of the defect having been pointed out by this Court, the plaintiff/respondent No.1 instead of correcting the mistake, to save the interests of the Government, has chosen to contest this revision petition tooth and nail. For the reasons stated, the plaint is rejected, being not competent, by allowing this revision petition with costs , which are assessed at Rs.25,000/- (Rupees twenty five thousand only). The costs be deposited with Legal Services Authority, Punjab. It will be open to State to recover the costs from officer guilty of filing this frivolous suit. Revision allowed. (Vinod K. Sharma) Judge August 18, 2010 R.S.