Civil Writ Petition No.3768 of 1983 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3768 of 1983 Date of Decision: 08.04.2011 Gopal Singh deceased through his legal representatives .....Petitioners Vs. Union of India and others ....Respondents CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA Present :Mr. Arun Palli, Sr.Advocate with Mr. Sunil Garg, Advocate for the petitioners. Mr. Raman Mahajan, Advocate for respondent no.7. RAJIVE BHALLA, J The petitioner (since deceased) represented by his legal representatives prays for issuance of a writ in the nature of Certiorari for quashing the order dated 21.6.1983, passed by the Financial Commissioner, Revenue, in exercise of powers of the Central Government, under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the 1954 Act). Before proceeding to decide the matter, it would be appropriate to briefly set out the factual matrix of the case. The petitioner, a displaced person from Pakistan, was admittedly entitled to 8 S.A (standard acres) and one unit of land. Civil Writ Petition No.3768 of 1983 -2- The petitioner was, in the first instance, allotted land in Village Bishanpura, Tehsil Dasuya. The allotment was later cancelled and the petitioner was dispossessed in the year 1958-59. A second allotment was made to the petitioner in village Baje Chak, on the cancellation of the allotment to one Mahant Mela Ram. The allotment to the petitioner and his cancellation was impugned by Mahant Mela Ram by filing CWP No.1271 of 1960. The order of cancellation and allotment was stayed. The petitioner was impleaded as a party, but as the matter remained pending, he approached the department for allotment of some other land. In the meanwhile, the S.O.-cum-Managing Officer, made a report dated 18.5.1961 that Thakur Kuldeep Singh, respondent no.7 and his mother Partap Devi deceased have obtained allotments by misrepresentation and by producing false receipts. The Chief Settlement Commissioner, cancelled the quasi permanent allotment and the permanent rights conferred upon Thakur Kuldeep Singh and Partap Devi on 25.5.1961 and 19.6.1961, respectively. The petitioner in the meanwhile approached the Manager (Sales) for a fresh allotment and was allotted 5.12.1/2 standard acres on 27.10.1961 in village Latifpur, from the area cancelled from Thakur Kuldeep Singh and Partap Devi. The possession of this land was delivered to the petitioner on 3.11.1961 as recorded in the rapat roznamcha by Resham Singh, Patwari on 3.11.1961. Permanent rights were conferred on 5.3.1962. Thakur Kuldeep Singh, obtained a report dated 28/31.10.1961, from Resham Singh, Patwari that the cancelled area has not been allotted to anybody. On the basis of this report, Thakur Civil Writ Petition No.3768 of 1983 -3- Kuldeep Singh approached the department with a request to purchase the land, in his possession. On the basis of this report, the Managing Officer, vide order dated 13.11.1961 allowed Thakur Kuldeep Singh to purchase 2.6.1/4 standard acres from the cancelled allotment of Smt.Partap Devi and 3.5 standard acres from his cancelled allotment, though this area stood allotted to the petitioner on 27.10.1961. Armed with this order, Thakur Kuldeep Singh, impugned the order of allotment made in favour of the petitioner, before the Assistant Settlement Commissioner. The application was dismissed on 28.11.1962 by holding that on an enquiry made by the L.C.O., it is clearly established that Thakur Kuldeep Singh had succeeded in depositing the sale price of the excess cancelled land in connivance with patwari after obtaining a wrong report and fake receipts. Thakur Kuldeep Singh filed a revision before the Chief Settlement Commissioner, which was dismissed on 24.10.1964. Despite dismissal of his revision, Thakur Kuldeep Singh filed a review petition, against the order dated 28.11.1962, passed by the Assistant Settlement Commissioner, which was dismissed on 12.01.1965. Still dissatisfied , Thakur Kuldeep Singh filed another review petition, against the order dated 26.10.1961 which was dismissed on 02.11.1963. He filed another revision against the order dated 12.01.1965 before the Chief Settlement Commissioner, which was dismissed on 07.06.1967. The matter should have ended but Thakur Kuldeep Singh filed administrative complaints before the department. Vide order dated 29.12.1978, the complaints were rejected with liberty to seek legal remedy, if any. Civil Writ Petition No.3768 of 1983 -4- Fourteen years after the rejection of his revision by the Chief Settlement Commissioner, Thakur Kuldeep Singh filed a petition under Section 33 of the Act, on 2.11.1981, before the Financial Commissioner, challenging the correctness of the order, passed by the Chief Settlement Commissioner. Vide order dated 21.06.1983 , the Financial Commissioner accepted the petition, cancelled the allotment made in favour of the petitioner and affirmed the allotment in favour of Thakur Kuldeep Singh. Counsel for the petitioner submits that the petition, filed before the Financial Commissioner, 14 years after the final rejection of respondent No. 7's claim by the Chief Settlement Commissioner was clearly barred by time. The Financial Commissioner had no jurisdiction to entertain the belated revision particularly when no explanation was forthcoming for this inordinate delay. It is further argued that the Financial Commissioner has plenary powers to call for and examine the legality of any order “at any time”, but these powers do not provide a license to a party to approach the Financial Commissioner and to the Financial Commissioner to exercise powers after more than a decade. It is further argued that authorities under the Act, apart from the Financial Commissioner, have consistently held that Thakur Kuldeep Singh obtained a false and pre-dated report dated 28/31.10.1961, from Resham Singh, Patwari that the land has not been allotted to anyone and, therefore, duped the department, particularly, the Managing Officer and obtained a fraudulent allotment of 2.6.1/4 standard acres from the cancelled allotment of Smt.Partap Devi and 3.5 standard acres from his cancelled allotment. The Financial Commissioner has not dealt with Civil Writ Petition No.3768 of 1983 -5- much less reversed these findings but has instead, relied upon irrelevant facts. The Financial Commissioner has held that as the petitioner did not disclose the allotment in village Bhaje Chak and did not inform the High Court of the present allotment, the petitioner is guilty of concealment of relevant facts. It is argued that these facts may have been relevant, if the petitioner was accused of double allotment or of taking benefit of the dismissal of the writ petition filed by Mahant Mela Ram. The allegation that the petitioner concealed these facts is factually incorrect as these facts are clearly referred to in orders passed against Thakur Kuldeep Singh. Another factor taken into consideration by the Financial Commissioner is that as Thakur Kuldeep Singh had deposited the price of excess area on 16.11.1961, in compliance with an order dated 13.11.1961, there was no occasion to cancel the excess area. This finding is perverse as it does not refer to findings recorded in orders passed in favour of the petitioner that the order dated 13.11.1961 was obtained by perpetuating a fraud and that the report submitted by the Patwari was ante dated. The Financial Commissioner had no jurisdiction, to pass the impugned order, set aside the allotment made in favour of the petitioner and direct allotment of alternate land without referring to or considering findings recorded by the authorities under the Act. Counsel for the private respondent no.7 (since deceased) represented through his legal representatives, however, submits that Thakur Kuldeep Singh was allotted 5.1.1/2 standard acres of the land cancelled from his allotted land and from Smt.Partap Devi on 27.10.1961, prior to allotment to the petitioner. The land having already been allotted to respondent no.7 and requisite money having Civil Writ Petition No.3768 of 1983 -6- been deposited, the Financial Commissioner rightly held that the land could not be allotted to the petitioner. The order dated 27.10.1961 and the report regarding delivery of possession to the petitioner was procured by the petitioner and was rightly held to be a paper transaction. The findings recorded by authorities under the Act were passed in ignorance of these facts, particularly the fact that the petitioner was agitating the validity of another allotment in a writ petition pending before the High Court. The petitioner obtained the allotment on 27.10.1961 by suppressing the earlier allotment and by misleading the Managing Officer and other authorities under the Act. The Financial Commissioner rightly held that allotment made in favour of the petitioner is illegal. It is further argued that as orders passed by the authorities under the Act were illegal and void, the Financial Commissioner, has in the exercise of his plenary powers under Section 33 of the Displaced Persons Act, 1954, set right this illegality. The fact that respondent no.7 approached the Financial Commissioner after a delay of 14 years, is irrelevant as the Financial Commissioner has exercised the plenary powers of the Central Government. The impugned order cannot be faulted and should be affirmed. It is further submitted that as allotment made to the petitioner in village Baje Chak was never cancelled, the allotment is even otherwise a nullity and was rightly set aside by the Financial Commissioner. I have heard counsel for the parties and perused the impugned order. As facts leading to the filing of the present petition have already been narrated in detail, they do not require repetition, except to an extent that may be necessary. Civil Writ Petition No.3768 of 1983 -7- The dispute herein is whether the land in dispute was validly allotted to the petitioner or respondent no.7 and whether the Financial Commissioner was justified in cancelling the allotment made in favour of the petitioner. The petitioner was allotted land in village Baje Chak. The allotment was challenged in Civil Writ Petition No.1271 of 1960 and the allotment order was stayed. The petitioner approached the Managing Officer(Sales) for a fresh allotment. The land in dispute was allotted to the petitioner on 27.10.1961. As per the Rapat Roznamcha recorded by the Patwari, possession of land was delivered to the petitioner on 03.11.1961. Kuldeep Singh, respondent no.7 approached the Managing Officer (Sales) for allotment of the cancelled land on the basis of his possession. Despite the fact that the land stood allotted to the petitioner, the Patwari concerned, submitted a report dated 31.10.1961 that the land has not been allotted to any one. The Tehsildar (Sales), allotted the land, already allotted to the petitioner to respondent no.7 and his mother on the basis of this report. Armed with this order, respondent no.7 challenged the order of allotment made in favour of the petitioner, before the Assistant Settlement Commissioner. An enquiry was conducted into the allotment. The Assistant Settlement Commissioner dismissed the petition on 28.11.1962 by holding as follows:- “I have heard both the parties. The respondent counsel has produced before me a letter issued to him by the D.C.O. which clearly shows that after certain enquiries made in respect of this case it Civil Writ Petition No.3768 of 1983 -8- was found that the appellants had succeeded in depositing the sale price of the excess cancelled area in connivance with the Patwari after obtaining wrong report and orders after allotment of this area have already been passed. On the basis of this report, I find that the appellants have no case. Their appeal is, therefore, rejected.” Aggrieved by this order, respondent no.7 filed a petition before the Chief Settlement Commissioner, which was dismissed on 24.12 .1963 with liberty to Kuldip Singh to file a review petition. Kuldeep Singh, respondent no.7, thereafter filed a review petition which was dismissed. A relevant extract from this order reads as follows:- “I have gone through the facts on the file and heard the counsel for the petitioners. Brief facts of the case are that area cancelled to the extent of 3- 5 S.A and 2-6¼ S.A from the allotment of the appellants respectively was subsequently allotted to respondent Shri Gopal Singh. The petitioners filed an appeal against the order of the N.T. Cum M.O. Dated 26.10.1961 alleging that the excess cancelled land had been purchased by them through the Sales Orgn and its allotment to the respondent was made subsequently in fraudulent manner by the Revenue Officials by ante-dating papers. The A.S.C rejected this appeal. The counsel referred to the copy of the High Court's Civil Writ Petition No.3768 of 1983 -9- decision in C.W.No.1271 of 1960 whereby the writ petition of Mahant Mela Ram was dismissed and where Gopal Singh respondent is shown as respondent No.6. The counsel asserted that the allotment and therefore, he was not entitled to any allotment in Latifpur. These arguments of the counsel have no force as he has not proved from any record that allotment made to Gopal Singh in Latifpur was made without cancelling the allotment in Baje Chak. On the other hand the A.S.C. exercising the powers of S.C. has definitely held in his order dated 28.11.62 that appellants (petitioners) had succeeded in depositing the sale price after obtaining wrong report and order after allotment of this area. Besides the documents referred to above on which he relies for his present review petition were adjudicated upon earlier on 28.11.1962 when the A.S.C, rejected this appeal. There is no error or omission clerical or otherwise on the basis of which a wrong decision has been made by the A.S.C. The review petition is thus rejected.” The above extract clearly establishes that though allotment made in favour of respondent no.7 was cancelled he obtained a fresh allotment by procuring a false report from the Patwari and succeeded in depositing the sale price by perpetuating a fraud. The Assistant Settlement Commissioner also referred to the filing of CWP No.1271 Civil Writ Petition No.3768 of 1983 -10- of 1960 by Mahant Mela Ram and the fact that it was dismissed, but held that the petitioner has not obtained allotment in village Baje Chak. Kuldip Singh, respondent no.7, filed a revision before the Under Secretary, Rehabilitation-cum-Authorised Chief Settlement Commissioner, Punjab. The petition was dismissed by passing a detailed order. A relevant extract from this order reads as follows:- “The Assistant Settlement Commissioner with powers of Settlement Commissioner observed in his order dated 28.11.1962 that the petitioners appellants had succeeded in depositing the sale price of the excess cancelled area in connivance with the Patwari after obtaining wrong report and after allotment orders of the area in question had already been passed. The circumstances of the case are such that I am inclined to agree with these observations. The learned counsel, for the petitioners argued that in Civil Writ No.1271 of 1960 Shri Gopal Singh filed an application dated 26th April, 1961, that he had been allotted 8 SA of land in village Chak Baje and that the respondent could not get any more allotment till the disposal of the said writ in addition to the allotment already made. It may be noted in the said writ a stay order for delivering possession of the land in village Chak Baje was issued by the Hon'ble High Court. The Civil Writ Petition No.3768 of 1983 -11- learned counsel for the respondent replied that stay in respect of village Baje Chak could not debar the respondent from seeking fresh allotment of the land of the grade to which he was entitled to. In any case, while the application presented to the High Court is dated 26.4.1961, the allotment to Shri Gopal Singh, respondent in village Latifpur was made on 25.10.1961. In his application dated 26.4.1961 he could not obviously mention the allotment which was made on a subsequent date. The chronological order of the case is that the petitioners went in appeal against the order dated 26.10.1961 of the Naib Tehsildar-cum- M.O. Dassuya before the then Assistant Settlement Commissioner with powers of Settlement Commissioner. The appeal was dismissed vide his order dated 28.11.1962. The petitioners filed a revision petition before the then learned Chief Settlement Commissioner on 27.12.1963 i.e. after a period of about 13 months. It was then argued on behalf of the petitioners that certain new facts had come to the notice of the petitioners on the basis of which they wanted to get the order of the Assistant Settlement Commissioner revised. The learned C.S.C. saw no force in the revision petition and dismissed the same, but while doing so it was observed that “the Civil Writ Petition No.3768 of 1983 -12- petitioners, if advised, should file a review petition before the Assistant Settlement Commissioner.” The review petition was rejected vide order dated 12.1.1965 by the Assistant Settlement Commissioner. It is against this order that the present revision petition is before me. Para 2 of the grounds of revision gave me an impression that the review petition against the order dated 28.11.1962 was filed in accordance with the order dated 24.1.1964 passed by the then C.S.C. But on going through the order dated 24.1.1964 of the C.S.C. I find this assertion is contrary to the facts. The revision petition was dismissed and it was left to the petitioner to go in for review, if so advised. In view of the foregoing merits and technical facts of the case, I have only to reject the revision petition and I order accordingly. But while doing so, I direct that the allotment of Shri Gopal Singh, respondent, should be thoroughly scrutinized to ascertain if he has any excess allotment. If so, the excess should be retrieved as the law/instructions permit.” The order clearly refers to and deals with all aspects of the dispute including the allotment of land to the petitioner in village Baje Chak, the filing and dismissal of a writ petition and the dubious nature of the allotment made in favour of Kuldeep Singh. Civil Writ Petition No.3768 of 1983 -13- Fourteen years after the dismissal of his petition by the Chief Settlement Commissioner, respondent no.7 filed a revision before the Financial Commissioner (Revenue), exercising powers of the Central Government under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the 1954 Act). The Financial Commissioner accepted the revision and set aside the allotment made in favour of the petitioner on the ground that the petitioner has concealed the prior allotment in village Baje Chak, and the pendency of the writ petition. The Financial Commissioner also held that as Kuldip Singh, respondent no.7 had deposited price of the land on 16.11.1961, there was no occasion to allot land to the petitioner, apparently ignoring the fact that the land was allotted to the petitioner on 27.10.1961. It was also held that respondent no.7 had given the land to his sons in a family settlement, in the year 1957, they were a necessary party. The order passed by the Financial Commissioner, in my considered opinion suffers from a fundamental error of jurisdiction. The power conferred by Section 33 of the Act, enables the Central Government, or its delegate, in this case the Financial Commissioner, to call for and rectify proceedings or orders passed by subordinate officers. The powers so conferred are plenary in nature and conferred to undo errors of jurisdiction, that have led to serious prejudice and injustice. The power conferred by Section 33 is to be exercised sparingly and in the rarest of rare cases and then to within “reasonable time”. It is true that Section 33 uses the expression “at any time”, but the expression “at any time” necessarily denotes “reasonable time”. The power cannot be invoked or Civil Writ Petition No.3768 of 1983 -14- exercised if the petition suffers from inordinate, unexplained delay and laches and seeks to unsettle a settled position in fact. Admittedly, respondent no.7 approached the Financial Commissioner in the year 1978 i.e. more that a decade after the dismissal of his revision by the Chief Settlement Commissioner, on 07.07.1967 and then also without proffering any explanation whether rudimentary or otherwise for this delay. Plenary powers of superintendence may be exercised to rectify injustice particularly where proceedings or orders suffer from absence of jurisdiction, or an erroneous assumption of jurisdiction or where proceedings and or orders are vitiated by fraud. The order passed by the Financial Commissioner does not deal with much less advert to the delay of more than 10 years. The Financial Commissioner committed an error of jurisdiction in entertaining the revision after a gap of more than 10 years particularly in the absence of any explanation for delay. This apart, the impugned order is erroneous in fact and in law. The Assistant Settlement Commissioner, rejected a similar plea raised by respondent no.7 on two separate occasions by holding that Kuldeep Singh, respondent no.7 has obtained allotment by perpetuating a fraud, in league with the then Patwari. The Financial Commissioner chose, not to deal with or reverse these findings, and instead cancelled the allotment on an altogether new ground neither raised nor pleaded before the Assistant Settlement Commissioner or the Chief Settlement Commissioner. The Financial Commissioner cancelled the petitioner's allotment primarily on the ground that he did not disclose to the High Court that he had been allotted the land Civil Writ Petition No.3768 of 1983 -15- in dispute and was, therefore, not interested in defending the writ petition filed by Mahant Mela Ram. It would be necessary to point out that this fact may have been relevant if the petitioner was accused of double allotment or if while considering the validity of his allotment, authorities under the Act had not taken into consideration, the filing of the writ petition. A perusal of orders passed by the Assistant Settlement Commissioner and the Chief Settlement Commissioner establish that the prior allotment to the petitioner, the filing of the writ petition and its dismissal is clearly referred to. It, therefore, belies comprehension as to how failure of the petitioner to inform the High Court about a fresh allotment is relevant. It is neither alleged, much less established that the petitioner obtained allotment in both villages on the basis of a single claim. It would be appropriate at this stage to once again refer to the findings of fraud recorded by the Assistant Settlement Commissioner. The land in dispute was allotted to Kuldip Singh and his mother. The Chief Settlement Commissioner cancelled this allotment. The petitioner was allotted 5-12½ standard acres, out of this land on 27.10.1961 Resham Singh, Patwari delivered possession to the petitioner on 03.11.1961. However, in connivance with Resham Singh, Patwari, Kuldip Singh procured an ante-dated report dated 28/31.10.1961 that this land has not been allotted to any other person and is in his possession. Kuldip Singh approached the Managing Officer for allotment of this land on the basis of his possession. The Managing Officer, oblivious of this fraud allotted land to Kuldip Singh. The Assistant Settlement Commissioner has clearly held that the report prepared by the Patwari was fraudulent and procured by Kuldip Civil Writ Petition No.3768 of 1983 -16- Singh, in connivance with Resham Singh, Patwari. The Financial Commissioner has, however, chosen to ignore this finding of fraud and without recording any opinion thereon has proceeded to affirm the allotment made in favour of Kuldip Singh and cancel the allotment of the petitioner. It is rather surprising that a finding of fraud has been brushed aside by reference to irrelevant facts. Another finding recorded by the Financial Commissioner, is that as respondent no.7 deposited the price of excess area in the treasury on 16.11.1991, there was no occasion to cancel the excess land. This finding, is incorrect as allotment to the petitioners was made on 27.10.1961 after allotment to respondent no.7 and his mother was cancelled on 25.05.1961 and 19.06.1961 respectively. The Financial Commissioner set aside the original order of cancellation against Kuldip Singh and his mother by holding that Kuldip Singh had transferred this land to his sons in 1957. With due deference to the findings recorded by the Financial Commissioner, suffice is to state that no such challenge was laid before the Assistant Settlement Commissioner or the Chief Settlement Commissioner at any time between 1961 (the date of cancellation) and 1978 (the filing of the petition). The fact that respondent no.7 accepted the cancellation and applied for allotment on the basis of his long