RSA No.452 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.452 of 2010(O & M) Date of Decision:05.07.2010 Jai Parkash & anr. .... appellants Versus Jakir & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 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.N.D.Achint,Advocate for the appellants **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgement and decrees of the courts below whereby suit of the plaintiff- respondents declaring them owners in possession of the suit land was decreed with consequential relief of permanent injunction restraining the appellants from interfering in their possession and also from alienating the suit land . Brief facts of the present case are that plaintiffs filed a suit for declaration with consequential relief of permanent injunction on the allegations that in the year 1961-62 and prior to that also, Bagdal, predecessor in interest of the plaintiffs was in cultivating possession as tenant under Giriraj Parshad and other owners of the agricultural land detailed in para 1 of the plaint. Giriraj Parshad and others were big land owners and a large part of their holding including the suit land was declared surplus under the provisions of Punjab Security of Land Tenures RSA No.452 of 2010(O & M) 2 Act. In the year 1961-62 the suit land which was already in possession of Mast Khan was allotted to him under the provisions of said Act. After coming into force of the Haryana Ceiling on Land Holdings Act, 1972, rules thereunder were framed in the year 1973 and thereafter the surplus area was disbursed to the eligible tenants/category of other persons in accordance with the Haryana Utilisation of Surplus and other areas Scheme 1976. In pursuance of the said scheme the plaintiffs were allotted the suit land, being eligible persons and the Allotment Authority namely SDO(c) Nuh in pursuance of the said Scheme, issued Form US-3 on 01.01.1990 in favour of the plaintiffs. The total purchase price of the suit land was calculated as Rs.1167/- to be deposited in 10 annual instalments. First and second instalments were deposited by the plaintiffs on 05.01.1990 and 22.01.1991. No further instalment was deposited by the plaintiffs. After paying first two instalments by the plaintiffs, defendant No.1 ceased to have any interest in the suit land which came to vest in the plaintiffs. On depositing the first instalment, the plaintiffs as per the Haryana Ceiling on Land Holding Act, 1972, became owners of the suit land. On 12.08.2002, plaintiffs 1 and 3 approached the village Patwari Hirmathla for mutating their names and the name of other co- sharers in the revenue record. The Patwari told them the suit land along with some other land had since been allotted to defendant No.4 and one Anil Kumar and the mutation of change of ownership had also been sanctioned in their favour and that the possession of the land also stands delivered in his record on the basis of orders of SDO(C) Nuh cum Allotment Authority. During enquiry it was revealed that the allotment in favour of the plaintiffs of the suit land and allotment of some other persons had been cancelled by defendant No. 3 vide order 16.10.2000. A conspiracy was hatched by defendant No. 4 and 5, the village patwari, the surplus patwari RSA No.452 of 2010(O & M) 3 as also Shri C.L. Sankhla the then S.D.O. (c ) Nuh with a view to deprive the plaintiffs and other persons of the land allotted to them. The plaintiffs had no inkling regarding the proceedings, referred to above and for the first time they came to know about the said conspiracy on 12.8.2002. Defendant No. 4 is alleged to have executed lease deed on 15.5.2001 in favour of defendant No. 5 for a period of 80 years in respect of the entire area including the suit land for an ostensible lease amount of Rs. 16000/-. The entire proceedings culminating in the alleged cancellation of the suit land, its allotment to defendant No. 4 and the orders dated 16.10.2000, 24.10.2000, 30.10.2000 and 31.10.2000 and various other orders passed on allotment file are illegal, null and void, without jurisdiction and nonest in the eyes of law on the grounds mentioned in para 8 of the plaint. Now defendants No. 4 and 5 are threatening to interfere in the possession of the plaintiffs and bend upon to alienate the suit land to third parties. The plaintiffs asked the defendants several times to admit the entire proceedings and impugned orders as illegal and defendants No. 4 and 5 were further requested not to interfere and alienate the suit land but the defendants refused to do so. Hence this suit. Upon notice, defendants put in appearance and filed their separate written statements. Defendants No. 1 to 3 now Respondents No.6 to 8 raised various preliminary objections. On merits, it was denied that Mast Khan was cultivating the suit land as alleged. It was further denied that suit land was allotted to Mast Khan or he had paid any sum. It was further stated that Mast Khan, plaintiff's predecessor-in-interest had defaulted in making the remaining outstanding amount and a notice dated 29.09.2000 was issued to the plaintiffs to deposit the amount but they failed to make the deposit. Possession of the appellants/their predecessor-in- interest was also denied. It was also denied that the land ceased to be part of the surplus pool or vested with Mast Khan or the plaintiffs as alleged. It RSA No.452 of 2010(O & M) 4 was further submitted that the land was resumed and was re-allotted to appellant No.1. Other averments were denied and dismissal of the suit was prayed. Defendant No.4 i.e.appellant No.1 in his written statement raised various preliminary objections. On merits, it was denied that Mast Khan was in cultivating possession of the land in question as tenant under Giriraj Parshad. It was denied that the land in question was allotted in favour of Mast Khan being eligible person. It was denied that the total purchase price of the land was calculated or Mast Khan deposited first instalment. It was further denied that Mast Khan deposited the balance sale price in instalments or that entire sale price stands deposited. It was denied that plaintiffs/their forefathers were in continuous possession of the suit land or that land in question stood utilised. It was submitted that land in question was allotted to the appellants and mutation of change of ownership was sanctioned in their favour and possession was also delivered to them on the spot by Rapat Rojnamcha No.73 dated 29.10.2000. It was submitted that plaintiffs did not deposit the purchase price in spite of the notice and as such the allotment was cancelled vide order dated 16.10.2000 the said order had attained finality. Remaining averments were denied. Dismissal of the suit was prayed for. In his written statement, defendant No.5 i.e.appellant No.2 denied the possession of the plaintiffs as tenant under Giriraj Parshad in the year 1961-62 or prior to it. Allotment in favour of Mast Khan was also denied. Deposit of sale price as alleged by the plaintiffs was also denied. Rest of the averments were denied and dismissal of the suit was prayed for. The evidence was recorded by the trial Court and after hearing learned counsel for the parties the suit was decreed vide judgement and decree dated 23.08.2008. RSA No.452 of 2010(O & M) 5 Feeling dissatisfied with the aforesaid judgement and decree, appellants preferred an appeal which was also dismissed vide impugned judgement and decree dated 18.02.2009. While dismissing the appeal, the Lower Appellate Court held that after deposit of first instalment, the plaintiffs-respondents became owner of the disputed land and the authority had no right to cancel the allotment and the transactions/subsequent proceedings beginning from cancellation of allotment in favour of plaintiff-respondents up to allotment of land in dispute in favour of appellants, stood finalised within a short span of 10 days in a hasty and mala fide manner without giving any opportunity of hearing to the plaintiffs-respondents and no notice of cancellation was served upon them and proper procedure was not adopted. Still not satisfied, the appellants have approached this court submitting that the following substantial questions of law arise in this appeal: 1. Whether the Civil Court has got jurisdiction to adjudicate upon the legality of the matter of allotment on surplus land? 2. Whether the impugned order and judgement are against law and are liable to be quashed? 3. Whether the plaintiff respondents were entitled to maintain their status quo when an efficacious remedy was available to them to file appeal against the order of cancellation of allotment? I have heard learned counsel for the appellants and perused the impugned judgements and decrees. While dismissing the appeal the Lower Appellate Court observed as under: “As per admitted case of the parties, the disputed land as detailed in the plaint, was initially allotted to the plaintiffs and on the basis of notice Ex.DW1/A issued on 29.9.2000, RSA No.452 of 2010(O & M) 6 the allotment was cancelled vide order dated 16.10.2000 which is Ex.DW1/B on record. These documents itself reflect that the required procedure was not followed at all while cancelling the allotment already made and notice Ex.DW1/A reflects that there is no report of chowkidar Abdul Gani rather signature of Abdul Gani are there without any report and then after it is report of partwari that notice was got served through chowkidar Abdul Gani and the person to whom notice was issued refused to receive. This report that service of notice was refused is not there by the chowkidar rather this report is that of Patwari whereas in this report it is mentioned that service was got effected through chowkidar. If the notice was given to Abdul Gani chowkidar for service certainly there might have been the report of the chowkidar regarding service or refusal and as such when there is no report of Abdul Gani regarding refusal of the receipt of notice, certainly it could not be established on record that notice for cancellation sent to the plaintiffs was ever received by the plaintiffs. Moreover the cancellation order Ex. DW1/B further reflects that allotment of five different allottees that too of different villages was cancelled by a single order dated 16.10.2000. The allotment to a particular individual is a particular transaction in between the allotment authority and the allottee. Order Ex.DW1/B reflects that as many as five different allotments to different allottees were cancelled by a single line order that none appeared despite notice, hence allotment is cancelled. As such the cancellation order dated 16.10.2000 is again illegal as neither the RSA No.452 of 2010(O & M) 7 service of notice Ex.DW1/A could be proved nor the order dated 16.10.2000 reflects the application of mind with respect to individual cases rather by a single line order, allotment of five different allottees of the different villages was cancelled. Ex.DW1/B further reflects that for some of the allottees even the date of notice was not clear as so mentioned in Ex.DW1/B and as such notice Ex.DW1/A as well as cancellation order Ex.DW1/B are proved to be illegal as service of notice Ex.DW1/A could not be proved and cancellation order dated 16.10.2000 is not for individual allottee rather the cases of five different allottees were decided by a single line order. The matter does not end here as the proceedings after cancellation of order dated 16.10.2000 were completed within a period of 10 days only for re-allotment to defendant No. 4 as defendant No. 4 vide application for allotment of the land Ex.P11 applied for allotment on 20.10.2000 whereas by that time no munadi had been effected as munadi was effected on 21.10.2000 as is evident from Ex.DW2/B. According to Ex.DW2/B vide rapat No. 63 munadi was effected on 21.10.2000 and only two days time was given for inviting applications as applications were invited upto 23.10.2000 when munadi itself was effected on 21.10.2000. Moving of application for allotment by appellant/defendant No.4 vide application Ex.P11 on 20.10.2000 itself reflects collusion in between subsequent allottee and the revenue department. The land which was allotted to the plaintiffs was cancelled on 16.10.2000 and was allotted to appellant/defendant No. 4 vide allotment RSA No.452 of 2010(O & M) 8 order Ex.P7 and then after the possession was shown to have been delivered on 29.10.2000 vide rapat Ex.DW2/C and as such whole of the transaction of re-allotment to defendant No. 4 finished within 10 days as application for allotment was moved on 20.10.2000 and allotment was made on 24.10.2000 and possession was shown to have been delivered on 29.10.2000 and such a hasty action on the part of the revenue officials itself shows mala fide as according to PW1 the Sarpanch of the village defendant No.4 never resided in village Hirmathala whereas allotment has been made in favour of defendant No.4/appellant while showing him resident of village Hirmathala. Now turning to the powers of the revenue authorities in cancellation of the allotment already made to the plaintiffs, according to report Ex.PW3/1 two instalments had already been paid by the plaintiffs and this report was made on application Ex.P-22 moved to Tehsildar. When two instalments had already been paid certainly the plaintiffs had become owners on deposit of first instalment as according to Section 15(5) of the Hr.Ceiling on Land Holding Act 1972, on payment of first instalment the allottee shall be deemed to have become owner of the land and according to the law laid down in 1987 PLJ 42 Kesra Ram vs.State of Hr. under the Punjab Act, the allottee continued to be a tenant of the landowner until he was allowed to purchase the land under Section 18 of the Act and under the Haryana Act, immediately on payment of the first instalment of the price of the land, the allottee becomes land owner itself. If the instalments are not paid, the remedy is RSA No.452 of 2010(O & M) 9 available under Para 11(2) of the Haryana Utilization of Surplus Area Scheme 1976. According to it, in case any instalment is not paid within a period of 30 days from the due date, the amount thereof shall become recoverable as arrears of land revenue together with interest thereon from the due date to the date of payment at the rate of 10% per annum and as such under Section 15(5) of The Haryana Ceiling on L.H.Act, the allottee becomes owner on deposit of first instalment and then after if the instalments are not paid then the cancellation is not remedy rather by virtue of Hr.Utilisation of Surplus area Scheme 1976, the amount is to be recovered as arrears of land revenue and as such the cancellation of allotment itself is proved to be illegal. The hasty action beginning from cancellation till allotment itself suggests mala fide intention on the part of the revenue officers as neither any notice of intended cancellation could be served nor the authorities were competent to cancel the allotment as after payment of first instalment the remedy with the state was to recover the remaining instalments as arrears of land revenue. But instead of carrying out the proceedings for recovery of the instalments as arrears of land revenue on the basis of notice Ex.DW1/A which was never served upon the plaintiffs, the allotment in favour of plaintiffs was cancelled on 16.10.2000 vide order Ex.DW1/B and in hurried manner the land was allotted to appellant who himself is not resident of village Hirmathala as so proved by PW1, the Sarpanch of the village. However, in the present case all the instalments had been paid as mentioned above. RSA No.452 of 2010(O & M) 10 Now, turning to the controversy as to whether the civil court has jurisdiction to decide the suit or not. By a cantina of authorities it has become settle principle of law that when a particular Tribunal abuses its powers or does not act under the Act but in violation of its provisions, the suit will always lie in the civil court and if some reference is needed reference can be made to 1963 PLR 912. SC Firm Seth Radha Kishan Vs. The Administrator, M.C. Likewise in 1986 PLJ, 161 (FB) State of Hr. Vs. Vinod Kumar again it was held that order passed by Tribunal of special jurisdiction in violation of provisions of statute or principles of natural justice is a nullity and can be challenged in civil court even if statute expressly bars jurisdiction of civil court. Again in 2001 (4) RCR 513, Punjab State Electricity Board Vs. Joginder Singh, it has been held that it is basic principle of law that nobody can be condemned unheard. Any action taken in violation of the principles of natural justice would be without jurisdiction and with these observations it was held that civil suit is maintainable. In the present case when the cancellation was not justified after deposit of first instalment, certainly action of the authority for cancellation was in violation of the statute itself and in 1994 (1) RRR, 498 G.M. Worsted Spinning Mills vs. HUDA again it has been held that if the authority under the Act passed the orders in violation of the provisions of the Act itself, Civil Court will have the jurisdiction to set aside such illegal orders. In view of the above discussed legal proposition, civil court has jurisdiction as after deposit of the first RSA No.452 of 2010(O & M) 11 installment the Authority (Agrarian) were not competent to cancel the allotment as by virtue of Sec. 15(5) of the Hr. Ceiling on L.H. Act, on deposit of first instalment of arrears has been provided under the Hr. Utilisation of Surplus and Other Areas Scheme 1976 itself. When recovery of installments can be effected as arrears of land revenue and allottee becomes owner on deposit of first instalment, certainly the authorities had no right to cancel the allotment already made and according to para 10 of Scheme 1976, if the allottee fails to take possession of the allotted land and fails to deposit first instalment within specified period, the allotment shall be cancelled but in the present case it is not the case of the State that possession was not taken by the plaintiffs and when first installment had been paid no case for cancellation of allotment was there and as such order dated 16.10.2000 whereby allotment in favour of plaintiffs was cancelled is proved to be illegal and have been passed in violation of the statute and when impugned order regarding cancellation is proved to be illegal, the impugned order regarding re-allotment of the said delivery of possession are itself illegal without any authority and subsequent allotment cannot be said to be legal allotment in the eyes of law. Moreover, in the present case all the instalments had been paid. “ From the aforesaid observations, it is clearly made out that Lower Appellate Court after reappraisal of the evidence has recorded a finding of concurring with the trial Court and holding that under the rules allotment made to the plaintiffs-respondents could not be cancelled and the RSA No.452 of 2010(O & M) 12 procedure adopted by the respondent- authorities in cancelling the allotment of the plaintiffs-respondents and allotting the land in dispute to the appellants was hasty and mala fide and without adopting the proper procedure. Learned counsel for the appellants could not point out any material evidence on record on the basis of which the aforesaid findings of the courts below could be said to be perverse. In this view of the matter, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 05.07.2010 neenu