IN THE COURT OF MRS. SHYAMA MANN, IAS, FINANCIAL COMMISSIONER REVENUE, CHANDIGARH

 

M.R. No. 16 of 1992-93

 

Banarsi Dass Sharma son of Shri Amar Nath partner of M/s Raj Saw Mills, College Road, Pathankot, District Gurdaspur.

…Petitioner

Versus

 

1.                  Chief Sales Commissioner, Gurdaspur.

2.                  Sales Commissioner, Pathankot

3.                  M/s Raj Saw Mills, College Road, Pathankot through its partner Sh. Vishnu Dutt s/o Shri Amar Nath.

4.                  Lekh Raj s/o Sh. Amar Nath resident of near PWD Rest House Mission Road, Pathankot District Gurdaspur.

5.                  Tehsildar Mahal-cum-Sales, Pathankot.

 

…Respondents

 

Present :

During arguments on 14.12.99

Sh. P.C. Mehta, Advocate, counsel for the petitioner.

Sh. R.D. Bawa, Advocate  Proxy for Sh. A.K. Chopra, Advocate counsel for the respondent alongwith clerk of Sh.B.S. Khoji, Advocate, counsel for respondents No. 3 & 4.

 

ORDER

 

1.                     Sh. Banarsi Dass claiming to be partner of M/s Raj Saw Mills, College Road, Pathankot Road, Gurdaspur has filed this petition u/s 33 of the Displaced Persons (C&R) Act, 1954 against the order dated 25.11.1992 passed by Chief Sales Commissioner, Gurdaspur whereby he dismissed the revision petition of the partners against the ex-parte order dated 30.10.90 passed by the Sales  Commissioner, Pathankot whereby the land measuring 4 Kanals 1 Marla situated in Chak Sarai, Pathankot in the name of Vishnu Dutt, respondent was transferred.

 

2.                     As per the allegations made by the petitioner, M/s Raj Saw Mills is a firm of three partners namely Banarsi Dass Sharma,Vishnu Dutt Sharma and Lekh Raj sons of Amar Nath. The Urban Agricultural Land measuring 34 kanals comprised in khasra No. 444/36, 55, 56 situated in the revenue estate of Chak Sarai,  Pathankot was evacuee property. Out of the said land Raj Saw Mills took 4K-1M of land comprised in khasra No. 444/36 on rent from M/s Pathankot Bajri & Stone Company, Pathankot and established a saw mill in the year 1960 believing that M/s Pathankot Bajri & Stone Company Pathankot was the owner of the land through in fact it was an evacuee property. The partners of the firms M/s Raj Saw Mills discovered that the property in their possession was evacuee property, and the firm staked its claim for its transfer with the Rehabilitation Department on the basis of its possession. The firm M/s Pathankot Bajri & Stone Company also staked its claim on the said land. The matter ultimately went to the court of Financial Commissioner Revenue, Punjab who exercising the powers of Central Govt. u/s 33 of the Displaced Persons (C&R) Act, 1954, came to the conclusion while passing his order dated 24.7.75 that the Pathankot Bajri & Stone Company was an unauthorised occupant and remanded the case for fresh decision. The learned Financial Commissioner also ruled that the land in dispute was in possession of the firm M/s Raj Saw Mills, but it could by no means be transferred in the name of Vishnu Dutt who claimed to be a partner and Manager of the firm. Aggrieved by the said order of Financial Commissioner the firm M/s Raj Saw Mills filed a Writ Petition No. 7416/75 through its partner and Manager Vishnu Dutt Sharma but the same was dismissed as withdrawn by order dated 2.3.83.

 

3.                     In the post remand proceedings, Sh. Vishnu Dutt respondent No. 1 in collusion with the Sales Commissioner obtained an ex-parte order dated 30.10.90 thereby transferring the land in his exclusive name, styling himself as proprietor of firm M/s Raj Saw Mills. In compliance with the impugned order dated 30.10.90 of the Sales Commissioner, Tehsildar Mahal-cum-Sales issued conveyance deed in respect of land in dispute in the name of Vishnu Dutt respondent as proprietor of  M/s Raj Saw Mills instead of in the name of firm M/s Raj Saw Mills through the partners.  This conveyance deed excluded Banarsi Dass petitioner and Lekh Raj respondent No.4.

 

4.                  When the petitioner came to know regarding the impugned order and the conveyance deed, be moved an application to Tehsildar Mahal-cum-Sales, Pathankot on 26.3.92 praying for cancellation of allotment/conveyance deed in the name of Vishnu Dutt respondent as proprietor of M/s Raj Saw Mills on the ground that the Vishnu Dutt respondent was not the proprietor of the firm but merely one of its partner.  The Tehsildar Sales by virtue of his note dated 27.3.92 recommended to the Sales Commissioner for permission to substitute the name of Raj Saw Mills, but the Sales Commissioner vide his order dated 20.7.92 declined permission by recording that the application was time bared and there was no need to review as Banarsi Dass petitioner had never come in the picture till the decision of the case.

 

5.                  The petitioner filed a revision petition before the Chief Sales Commissioner for setting aside the order dated 30.10.90 of Sales Commissioner as also the conveyance deed dated 7.12.90.  But this revision petition was dismissed by the Chief Sales Commissioner vide impugned order dated 25.11.92 which forms the subject-matter of the present revision petition.

On a notice of revision petition having been given, the respondent No.3 & 4 put in their appearance through their counsel.  Written arguments were also filed.

 

6.                  I have carefully examined the records and have heard the arguments of Learned counsels of both parties.

At the outset the Ld. Counsel for the respondent questioned the jurisdiction of this court to entertain and decide this revision petition under Section 33 of the Displaced Persons (C&R) Act, 1954. According to him with the enactment of the Punjab Package Deal Properties (Disposal) Act, 1976, the matter was dealt with by the authorities under the said Act and thus the revision petition under the provisions of section 33 of Displaced Persons (C&R) Act, 1954 is misconceived and not maintainable.

On the other hand the learned counsel for the petitioner refuted these arguments by the submitting that there is not impediment in the way of this court to interfere in exercise of the residuary powers of the Central Govt. vested by virtue of the provisions of the Section 33 of the Displaced Persons (C&R) Act, 1954.

 

7.                     After giving my thoughtful consideration to the arguments addressed on both sides, I am of the opinion that the arguments raised by the Learned counsel for the respondent are devoid of any force.  It is noticed that the revision petition was filed by Vishnu Dutt Sharma as partner of M/s Raj Saw Mills and M/s Pathankot Bajri & Stone Company, u/s 33 of the 1954 Act before Sh. Hardev Singh China, the then Financial Commissioner (Taxation), Punjab with the delegated powers of Central Govt. u/s 33 of the Act, unfortunately for him the proceedings culminated in the order dated 14.7.1975, by the Financial Commissioner (Taxation), the operative part of which is as under :-

            "After hearing the learned counsel for  the parties and going through the relevant record, I feel that the entire case requires to be decided in de-novo proceedings, after considering the allegations and counter allegations of the parties.  So far as the definition of property is concerned, it ordinarily includes sites as well.  But since evacuee sites have separately been mentioned in the instructions, it appears that intention of the Govt. was somewhat different in respect of the sites which had been encroached upon by the occupants of adjoining properties.  In the present case there is no question of encroachment by anybody as the parties are alleged to have established industrial concern on the land which was previously on lease with the Pathankot Bajri and Stone Company, Pathankot.  As the lease had expired before the Partition of the country, whosoever entered the land whether by consent of the Bajri and Stone Company or  otherwise was an unauthorised occupant.  None of the parties have got their possession regularised before 1963 as required under the instructions issued by the Govt. of India vide No. 14(17) Comp-& Prop/61 dated 7th January, 1963, they are not entitled to the transfer of sites/properties in their possession under the rules 22-25 or 26.  The Industrial concern established on evacuee sites could get those sites transferred, had they got their possession regularised before 1963.  Besides, the site being in possession of the firm, it could not by any means, be transferred in the name of Vishnu Dutt who claims to be the partner and Manager of the Firm.  The transfer in his name had rightly been set aside.  Since, however, the State Govt. in the Rehabilitation, have also issued instructions for the transfer of properties to the occupants, it could be better that the claim and counter claims of the parties in both the cases are decided afresh, under the recent instructions issued by the State Government in the Rehabilitation Department and area sold to the occupant which is actually under the use and occupation of the Firms or other establishments,  at market rates.  The balance if any be disposed of according to rules and instructions.  Petitions are decided accordingly.  The case of other occupants or firms  who came into possession of the land as lessees/tenants of Pathankot Bajri and Stone Company who are alleged to have been transferred certain sites also  be looked into the re-decided as per observations above."

 

8.                     Against this order a Civil Writ Petition No. 7416/75 was filed in the Hon'ble Punjab & Haryana High Court by M/s. Raj Saw Mills through its partner-cum-Manager Vishnu Dutt Sharma which was dismissed as withdrawn vide order dated 2.3.1983.  In the result the parties were relegated to the position of de novo proceedings as directed in the order dated  14.7.75 of Sh. H.S.Chhina.  Pursuantly the Court of Sub Divisional Officer (Civil)-cum-the Settlement Commissioner, Pathankot passed the order dated 30.10.90 as Sales Commissioner, Pathankot directing the petitioner M/s. Raj Saw Mills through Vishnu Dutt Sharma to deposit the balance amount of Rs. 26860/-(34960-8100) within one month.  In execution of this order of the Sales Commissioner, a conveyance deed was issued on 7.12.90, in the name of Vishnu Dutt, Proprietor Raj Saw Mills.  The order dated 30.10.90 of the Sales Commissioner Pathankot was challenged in the revision (by Sh. Banarsi Dass Sharma here-in-petitioner) before the court of Chief Sales Commissioner.  In this revision petition the order of Sales Commissioner followed by conveyance deed in the name of Vishnu Dutt Sharma respondent were assailed.  While dismissing the revision petition the Chief Sales Commissioner held that : "It was evident that Vishnu Dutt Sharma was entitled for transfer of land and Settlement Commissioner had rightly concluded that Vishnu Dutt Sharma is the owner in possession of the land in dispute measuring 4 Kanal 1 Marla wherein M/s Raj Saw Mills existed since long and non-else than Vishnu Dutt had any concern with this land.

 

9.                     It appears that the concerned courts were in conceptual confusion regarding the provisions of law under which they were called upon to decide the matter. In the heading of the order dated 30.10.90 the name of the court is: "Sub-Divisional Officer (Civil) - cum-Settlement Commissioner, Pathankot" but the order was signed as "Sales Commissioner, Pathankot". Again the order dated 25.11.92 was passed as Chief Sales Commissioner, Gurdaspur. In the heading it was described as the "revision petition". No provisions of law were mentioned in the body of this order under which the review petition was filed. In the concluding part of this order the learned Chief Sales Commissioner observed as follows :-

            "Accordingly, the appeal is dismissed being without any force".

 

            It is further noticed that the revision petition before Sh. H.S. Chhina, the then Financial Commissioner was filed u/s 33 of the Displaced Persons (C&R) Act, 1954 against the order dated 18-5-72 of the Chief Settlement Commissioner, Punjab, Jalandhar. Sh. Chhina, Financial Commissioner (Appeals) passed the order dated 14-7-75 which resulted in the reversion of the proceedings followed by the impugned orders dated 30-10-90 and 25-11-92 the sequel. In the present case we are dealing only with the validity of orders leading to the issuance of a conveyance deed in favour of Vishnu Dutt alone to the exclusion of Banarsi Dass who claims himself to be one of the partner of the firm styled as M/s Raj Saw Mills, alongwith other partners, namely, Vishnu Dutt and Lekh Raj. The mere fact that the courts below lost the track and fumbled for their statutory designations in rendering the impugned orders cannot be taken as a ground for fettering the gamut of plenary revisional jurisdiction of this court enjoying delegated residuary powers of Central Govt. under section 33 of the Act, 1954.  In my opinion the technicalities of nomenclature of the courts should not stand in the way of substantial justice.  Going by the terms and tenor of remand order dated 14.7.75 passed by the Ld. Financial Commissioner, it is evident that the courts below passed the orders under 1954 Act disguising their statutory designation  by misnomenclature.

 

10.                   In this connection a reference may be made to a judgment of Apex Court in Union of India and another Vs. Avtar Singh and another, 1984 PLJ 479 wherein it was observed that the powers u/s 33 of the Displaced Persons (C&R) Act, 1954 is not hedged by any concept of limitation and such power of wide plenitude had to be conferred on the Central Govt. to set right any illegal, unfair, unjust or plainly untenable order because proceedings under the Act were not adversary in form and character.  The Parliament conferred a very wide power of revision on the Central Govt. to reopen any proceedings for order under Act.

            It follows that the arguments of the learned counsel for the respondents regarding the maintainability of this revision petition are fallacious and not tenable.

 

11.              The learned counsel for respondent also challenged the maintainability of this revision petition. In view of the provisions of the section 69 of the Partnership Act.  He further argued that the question regarding the existence or otherwise of partnership between the parties could be decided by the civil courts and not in the revisional proceedings. In my opinion these arguments do no hold good. The provisions of section 69 are not at all applicable to the present controversy wherein Shri Banarsi Dass petitioner claiming to the one of the partners of M/s Raj Saw Mills has challenged of the orders of the lower courts whereby land in dispute were transferred in the sole name of Vishnu Dutt, we also a partner of the firm. Rather this matter falls within the exclusive jurisdiction of the court and the jurisdiction of the civil court is barred. Moreover, it is noticed that Banarsi Dass had filed a civil suit 145/92 in the court of Sh. Sarabjit Singh Panesar, Civil Judge, Junior Division, Pathankot against his partner Vishnu Dutt and Lekh Raj for dissolution of partnership of firm styled as M/s. Raj Saw Mills, Pathankot.  This civil suit was decided vide judgement dated 5.12.98.  A copy of that judgement is placed on records of this court.  Vide this judgement a preliminary decree has been passed for dissolution of the partnership and rendition of accounts of the firm styled as M/s Raj Saw Mills.  In the wake of this judgement there is no merit in the arguments that the controversy is to be decided by the Civil Court and not in this revision petition.

 

12.                   It takes me to the legality or otherwise of the impugned orders and the conveyance deed, on merits.  In this connection we may hasten to advert to the order dated 14.7.75 of Sh. H.S.Chhina the then Financial Commissioner whereby the matter was remanded for decision in de novo proceedings.  At the cost of repetition it may be stated that in the said order it was specifically remarked that the site being in possession of the firm it could not by any means be transferred in the name of Vishnu Dutt who claimed to be the partner and manager of the firm. In the writ petition filed against this order by M/s Raj Saw Mills through its partner and Manager, Vishnu Dutt Sharma it was averred in the first para thereof that "the M/s Raj Saw Mills is a Registered firm and the writ petition is filed through its partner and Manager Vishnu Dutt.”  In para 2 of the writ petition it was contended that the property in dispute is in possession of the petitioner Mill (firm) since October, 1959.  The contents of the writ petition were sworn to be true through an affidavit accompanying the writ petition filed by Sh. Vishnu Dutt.

 

13.                   The Learned counsel for the respondent argued that the property cannot be transferred in the name of firm as it is not a legal entity.  This argument of the Learned Counsel was not held in condoning the mischief committed by Sh. Vishnu Dutt Sharma in obtaining the conveyance deed dated 7.12.1990 in his favour on the basis of the orders of Sales Commissioner confirmed by the Chief Settlement Commissioner vide his order dated 25.11.1992.  In my opinion both the courts below committed grave irregularity bordering on perversity in holding that Vishnu Dutt alone was entitled to the transfer of land in dispute and not firm M/s Raj Saw Mills which he is only one of the partners.  The mere fact that a firm is a compendium of partners and is not a legal entity does not mean that allotment of land cannot be made in the name of firm to the benefit of all the partners when admittedly the firm has been in continuos possession of the disputed property since 1959.  In this connection a reference may be made to enabling provisions of order 30 rule (1) & (2) of the Code of Civil procedure which permit several person who are doing business as partners to sue or be sued in the name of firm.  A suit by or in the name of a firm is thus really a suit by or in the name of all the partners.  (C.A.I.P. 1969 Gujrat 178). Thus there is no merit in the argument that since a firm is not a legal entity, the transfer of land could not be made in the name of the firm.

                        It is evident that Sh. Vishnu Dutt betrayed the trust of his real brothers in obtaining conveyance deed in his favour at their back.  The order dated 30.11.1990 was obtained ex-parte without impleading either the firm as such or its partners.

 

14.                   The judgment dated 5.12.1998 passed by the Court of Sh. Sarabjit Pal Singh Paneswar in Civil Suit No. 145/92 instituted on 2.6.92 also throws a flood of light on the genuineness of the claim of Banarsi Dass.  In that suit Vishnu Dutt who appeared D.W. 2 had admitted that on the death of his father on 7.12.84 was adduced in evidence in that case a exhibit P-1.  Vishnu Dutt had further admitted that Banarsi Dass was having 1/3rd share in the partnership concern.  The Ld. Court had held that the partnership is still in existence and each of the partner was entitled to 1/3rd share of the assets and liabilities of the firm by rendition of accounts, which evidently include the land in dispute.  Accordingly, a preliminary decree was passed for rendition of accounts for ascertaining and apportioning the assets and liabilities of the firm to the extent of 1/3rd share each.  The cut of date was taken as 30.5.1992.

 

15.                   Undoubtedly the firm is running its business on the disputed land measuring 4 kanals 1 marlas.  The aforesaid judgment of the Civil Court has the effect of reinforcing and strengthening the claim of the petitioner for transfer of land in favour of the firm through all the partners.  I have no doubt in my mind that courts below went out of their way in missing the right track by transferring the land to Vishnu Dutt Sharma alone when he had throughout been pursuing the matter as a partner of the firm styled as M/s Raj Saw Mills.  Both the impugned orders are vitiated by arbitrariness and perversity.  It is not possible to subscribe to the approach the Ld. Lower Courts in excluding the other partners of the firm in favour of Vishnu Dutt alone.   A perusal of the records leads to an inescapable conclusion that since the land was in occupation of the firm, Vishnu Dutt alone could not grab the entire land by misrepresenting himself as sole proprietor of the firm.  The courts below did not apply their mind in allowing the claim of Vishnu Dutt while passing the impugned orders and issuing the conveyance deed in his favour.   In view of this there is ample merit in this revision petition and same is accepted thereby setting aside the impugned orders.   The concerned authority is directed to issue the conveyance deed in favour of M/s Raj Saw Mills through its partners viz Banarsi Dass Sharma, Vishnu Dutt Sharma and Lekh Raj in equal shares.      

            Announced.

 

Chandigarh, dated                                                                                                        (Shyama Mann)

the 4th Jan., 2000.                                                                                             Financial Commissioner Revenue,

                                                                                                                                        Punjab.

 

IN THE COURT OF MRS, SHYAMA MANN, FINANCIAL COMMISSIONER REVENUE, PUNJAB, CHANDIGARH

 

                                                                                    MR No. 124

1.                  Bachan Singh,

2.                  Daulat Singh.

3.                  Bawa Singh.

            Sons of late Sh.Kablu1 Singh son of Munshi Singh residents of village Takhar,   P.O. Sargondi, Tehsil Phillaur, District Jalandhar.

 

Versus

 

1.         Arur Singh Dhillon son or late Sh. Avtar Singl1 Dhillon, XEN. PSEB Grid Division. Model Town, Jalandhar.

2.         Smt. Nihal Kaur wd/o Late Sh.Avtar Singh C/o Sh.A.S. Dhillon, XEN, PSEB Model Town, Jalandhar.

3.         The State of Punjab.

 

Present : during arguments on 11.11.99

Sh. C.L. Gulati, Advocate alongwith Sh. Surjit Singh, petitioner in person

Sh. T.R. Vij, Advocate, alongwith Sh. Aroor Singh Dhillon respondents in person.

Sh. Balbir Singh Senior State counsel

 

ORDER

 

1.                     This revision petition U/S 33 of the Displaced Persons (C&R) 1954 is directed against the order dated 8.1.87 of the Deputy Commissioner-cum-Chief Settlement Commissioner. Jallandhar whereby he accepted the. revision petition of Arur Singh Dhillon, and Nihal Kaur, respondents No.1 and 2 and cancelled the allotment made in favour of the petitioners in respect of land measuring 18K-11M as fully described in para 2(infra).

 

2.                     Briefly stated, the facts of the case are that the Tehsildar (Sales)-cum-Managing Officer, Jalandhar by his order dated 24.12.84 allotted land measuring 49K-1M situated in village Nangal Salimpur to unsatisfied claimants namely Bachan Singh, Daulat Singh. and Bawa Singh (petitioners herein) sons of Kabul Singh. This allotment was challenged by Rur Singh Dhillon and his mother Nihal Kalli. son and widow respectively of Avtar Singh in an appeal before the SDO(C)-cum-Settlement Commissioner, Jalandhar on the ground that a part of land in dispute stood allotted to Avtar Singh in lieu of the land abandoned in Pakistan, by allotment order bearing No JL  1/205/1, dated 20.8.58 and possession of land measuring 18K-I1 M was delivered on 30.8.58 and P. rights were also conferred on the allottees.  The Settlement Commissioner, Jalandhar dismissed the appeal by his order dated 2.7.1985.Thereupon Rur Singh and Nihal Kaur, respondent nos. 1 and 2(herein) filed a revision petition before the Deputy Commissioner-cum-C.S.C. who accepted the revision petition vide impugned order dated 8.1.87 and set aside the allotment which had been made in favour of petitioners in respect of khasra no.6//14/1, 15/2, 24/1,  7//20, 17//12/3 and13/1.

 

3.                     Bachan Singh and others petitioners filed a revision petition before Sh.C.D.Cheema, the then Financial Commissioner (Appeals), Punjab, Chandigarh. The court of Sh. C.D.Cheema, sent registered letter to the petitioners and their attorney Surjit Singh which were received back with the report of the Postman that Bachan Singh did not meet him; Daulat Singh was out or India and Bawa Singh had since died.  A notice was sent to Surjit Singh, Attorney, by special1 messenger, which was received by one Randhir Singh on behalf of Surjit Singh, by that notice Surjit Singh was directed to appear on 3.10.91 but neither Surjit Singh nor his counsel attended his Court on the date fixed. Sh.C.D.Cheema dismissed the petition vide order dated 3.10.91 as infructuous and not maintainable on the ground that one of the petitioners namely Bawa had since died and no efforts had been made by the Attorney to bring his legal representatives on record coupled with the fact that non was appearing on behalf of the petitioners.

 

4.                              Aggrieved by the order of Sh. C.D. Cheema, the petitioners carried the matter to the Hon'ble High Court of Punjab & Haryana in C.W.P.No.4772 of 1995, whereon the Hon'ble High Court issued directions vide order dated 14.2.96 to decide the case afresh on merits in accordance with law after granting opportunity to the petitioner.  The petitioners were also directed to pay Rs. 1000/-.  The petition was dismissed by Sh. C.D. Cheema in default vide his order dated 27.8.1996.  It was restored on 8.10.96.  Sh. K.S. Janjua who then dealt with the petition and again dismissed the same vide his order dated 15.9.97 on account of non-payment of costs imposed by Hon'ble High Court of Punjab & Haryana coupled with the fact that none had appeared on behalf of the petitioners despite repeated calls.

            A review petition was filed on the following dated, i.e. on 16.9.1997.  The amount of Rs. 1000/- was deposited by the petitioners in the Court and the petition stood restored vide order dated 17.11.1997 by the Court of Sh. Janjua.  Then the matter came before this Court.

 

5.                     I have heard the arguments of the parties and have perused the written arguments filed by them.  I have also heard Sh. Balbir Singh, Senior State Counsel who appeared on behalf of the State.  The Learned counsel for the petitioners argued that the cancellation of land allotted in favour of the petitioner by the Chief Settlement Commissioner was not justified as the respondents had not produced any satisfactory and authentic documentary evidence in support of an earlier allotment of 18-KJ11M in their favour.   According to them there were a number of cuttings in the Sanad produced by the respondents on record.  It was accordingly asserted that the allotment made in favour of the respondents be cancelled  and the same be restored in favour of the petitioners.

 

6.                     In reply the Learned counsel for the respondents argued with matching vehemence that no suspicion surrounds the authenticity of the documents produced by them and thus no fault can be found with the orders of the Chief Settlement Commissioner regarding the cancellation of allotment of land which stood already made in favour of the respondents.

 

7.                     At this stage it may be pertinently mentioned that the conduct of the petitioners in the entire proceedings before this court was unconscionably unnatural and excites adverse inference regarding the hollowness of their  claim.  The original petitioner u/s 33 of the Displaced Persons (C&R) Act, 1954 was filed on 8.4.1987 by Sh. S.S. Toor, Advocate.  This petition was not signed by the petitioners and it was signed only by Sh.N.S.Gujral, Advocate and Sh. S.S.Toor, Advocate. It was returned for want of certified copies of some documents and was re-filed by Sh. S.S. Toor, Advocate on 22.5.1987. With this petition, inter alia photocopies of following General Powers of Attorney of the petitioners were annexed: -

(i)                                          Bachan Singh dated 21.11.1984;

(ii)                                        Bawa Singh dated 28.7.1983;

(iii)                                       Daulat Singh dated 28.7.1983.

 

All these Powers of Attorney were in favour of Surjit Singh son of Arjan Singh. These Powers of Attorney relate to dates even earlier to the date of allotment. On 17.8.1999, in order to assure itself regarding the genuineness of claim of the petitioners, this court directed the petitioners to establish the locus standi of Surjit Singh as also Bachan Singh etc. before proceeding further with the matter. It was only on 31.8.1999 which was the next date fixed in the proceedings that Surjit Singh made an admission that Bachan Singh and Bawa Singh had since died and their Powers of Attorney were no longer effective. Accordingly, the counsel for the petitioners was directed to produce the details of the legal representatives of the deceased petitioners, namely, Bachan Singh and Bawa Singh alongwith their Death Certificates as also the correct address of the third petitioner Daulat Singh. On the next date i.e. 7.9.1999, the counsel for the petitioners failed to produce the desired documents. Surjit Singh, who appeared in person before this court, verbally stated that Bachan Singh died on 9.7.1996 and Bawa Singh died on 24.1.1991. He further claimed that both Bachan Singh and Bawa Singh executed Wills in "his" favour as a substitute for the Powers of Attorney in his favour. However, he did not produce the Wills either in original or their certified copies. He was accordingly directed to produce the relevant documents including the alleged Wills of deceased Bachan Singh and Bawa Singh in his favour as also the list of all the natural heirs of Kabal Singh and the natural heirs of two deceased, namely, Bachan Singh and Bawa Singh together with their addresses. The case was listed for 5.10.1999. On the next date, the counsel for the petitioners  failed to produce the documents as directed vide order dated 7.9.1999. He was again directed to produce the original Wills of Bachan Singh and Bawa Singh of which only photostat copies had been produced. He was also directed to produce the Death Certificate of Bawa Singh who was stated to have died in Canada on 24.1.1991. On the next date the counsel produced on record the photocopy of Power of Attorney of Daulat Singh but he did not produce any other documents. He was again directed to produce original Wills of Bachan Singh and Bawa Singh and original General Power of Attorney of Daulat Singh. He state that Daulat Singh had gone abroad. He was directed to produce documentary evidence in support of his assertion. Eventually the case was listed for arguments on 11.11.1999 on which date also the requisite documents were not produced. Arguments were heard on that day.

 

8.                     As already stated, it is noticed from the photocopies of the General Powers of Attorney in favour of Surjit Singh (who happens to be the king-pin of the entire show), that these were executed on 21.11.1984, 28.7.1983 and 28. 7.1983. During the proceedings Surjit Singh disclosed that Bawa Singh petitioner died on 24.1.1991 and Bachan Singh died on 9.7.1996. As a result of their death the General Powers of Attorney alleged to have been executed in favour of Surjit Singh were ipso-facto rendered ineffective. The counsel for the petitioners, as also Surjit Singh who claims to be holding the Powers of Attorney on behalf of Bachan Singh and Bawa Singh earlier never bothered to intimate this court regarding the death of aforesaid two petitioners and consequential invalidation of then General Powers of Attorney claimed to be held by him. This petition was dealt with by my four predecessors for the period ranging from 1987 to 1998. But at no stage of time Surjit Singh or his counsel took to their head to bring to the notice of the Court the factum regarding the death of Bachan Singh and Bawa Singh nor was any effort made to implead the L. Rs. of the deceased, Bachan Singh and Bawa Singh. Vide application dated 7.2.1999 Sh. C.L.Gulati, Advocate, made a prayer for impleading Surinder Pal Singh son of Joginder Singh as legal representative of Bachan Singh and Bawa Singh on the basis of the 'Wills' alleged to have been executed by them in favour of Surinder Pal Singh on 2.12.1984 and "30.7.1984" respectively. This application was accompanied by the sworn affidavit from Surinder Pal Singh affirming that the Wills were executed by Bachan Singh on 2.12.1984 and Bawa Singh on "30.7.1984”.

 

9.                     In pursuance of the Zimine orders dated 7.9.1999 of this Court, a notice dated 22.9.1999 was issued by the office for production of documents desired by this Court as detailed above (in Para 7 supra).  In the reply to this notice filed on 4.10.1999 Sh. C.L.Gulati counsel for the petitioners submitted that Bawa Singh died in Canada on 24.1.1991 and the names and address of his natural legal heirs were not known but he left a Will dated "30.7.1983" in favour of Surinder Pal Singh son of Joginder Singh.  A copy of the Will was annexed.  As regards Bachan Singh he stated that he died on 9.7.96 at village Takhar, and his son Chuhar Singh had pre-deceased him on 30.6.1988.  At the same time Bachan Singh had executed a Will dated 2.12.1984 bequeathing his 1/3rd share in respect of his property in favour of Surinder Pal Singh.  Regarding Daulat Singh it was stated that he was alive and was residing in village Takhar District Jalandhar.

 

10.                   The afore-stated chronological narration of the proceedings of this court highlights the anxiety of this court to ensure that justice is done.  This case demonstratively represents manipulative professional skill of Surjit Singh, the so called General Attorney in deluding the court to beef up his false claim.  At the cost of repetition it may be stated that he had kept the death of Bachan Singh as a guarded secret and continued to proceed with this petition tenaciously before he made a dubious disclosure on 31.8.99 regarding the death of Bachan Singh, one of the petitioners.  Original death Certificates of Bachan Singh and Bawa Singh have not been brought on the record.  The photocopy of death certificate of "Bawa Singh" records "Bawa Thakar Singh" without father's name.  Again the death certificate of "Bachan Singh" mentions the name as "Gurbachan Singh".  So these certificates are patently bogus and forged.  Thereafter he manipulated typed un-registered Wills dated 30.7.1983 and 2.12.1984 i.e. of dates prior to parcha allotment, purportedly from Bawa Singh and Bachan Singh petitioners in favour of Surinder Pal Singh son of Joginder Singh wherein it was recited that the executant had received full amount regarding their share of the claim from legatee, Surinder Pal Singh.  These Wills never saw the light of the day earlier to 4.10.1999.  If  Bawa Singh had died on 24.1.1991 and Bachan Singh had died on 9.7.1996, these Wills, if genuine should have been produced with desired promptitude.  The Wills set up herein were executed for consideration and do not satisfy the judicial conscience and have no meaning in the eyes of law.  Moreover, these Wills were clearly fabricated and are designed to fill in the void created by the reported deaths of Bachan Singh and Bawa Singh.  These Wills were filed with the reply on 5.10.1999 when the counsel for the petitioners were repeatedly pressed to indicate the legal representatives of Bachan Singh and Bawa Singh deceased.  It is interesting to note that with the application Dated 7.02.1999 for impleading the legal representatives of Bachan Singh and Bawa Singh the dates of Will alleged to have been executed by Bawa Singh was mentioned as “30.7.1984” and not 30.7.1983. The same date was mentioned in the affidavit dated 7.2.1999 of Surinder Pal Singh who claims to be the legatee. However the photocopy of the Wills produced for Bawa Singh, is dated 30.7.1983. These are not entered anywhere, and have not been scribed by a registered Deed Writer. The name of the Scribe is conspicuously absent on these ‘Wills’. According to the reply dated 5.10.1999 to the notice issued by the Court, the whereabouts of legal heirs of Bawa Singh are not known. As regards Bachan Singh, it has been stated that his son Chuhar Singh pre-deceased him. In his reply it is mentioned that the third petitioner Daulat Singh is alive and is residing in village Takhar. He never appeared despite being alive. But on 26.10.1999, it was stated by the counsel for the petitioners that Daulat Singh had gone abroad.

 

11.                   From all this, the only irresistible conclusion is that Sh. Surjit Singh who claims to hold the Powers of Attorney for the three petitioners had fabricated and forged the Wills from Bachan Singh and Bawa Singh. The repeated orders of this Court for production of the original Wills did not fetch any positive response from Surjit Singh or his counsel. The Wills are stereotyped and purport to be for consideration in favour Surinderpal Singh who is not even remotely related to the petitioner. There is no satisfactory documentary evidence regarding the death of Bachan Singh and Bawa Singh as also regarding the whereabouts of Daulat Singh. Accordingly, this petition deserves to be thrown out on this sole ground being not competent and maintainable.

 

12.                   It is true that the controversy herein primarily revolves only around the land measuring 18K-11M out of the total area measuring 49K-1M which stood allotted to Bachan Singh etc. and it traces its origin to the order dated 8.1.97 of the Deputy Commissioner-cum-Chief Settlement Commissioner, Jalandhar whereby he accepted the revision petition of Rur Singh Dhillon and his mother Nihal Kaur, respondent No. 1 & 2 and cancelled the allotment of land to the extent of 18K-11M. But going by the circumstances detailed above afflicting the Powers of Attorney in favour of Sh. Surjit Singh on behalf of the petitioners, the matter assumes wider ramifications and this court being vested with plenary powers u/s 33 of the Displaced Persons (C&R) Act, 1954 would be failing in its duty in leaving the matter to be consigned to quiet burial in respect of entire claim of Bachan Singh etc. The Powers u/s 33 are of wide plenitude and are conferred to set right any illegal, unfair, unjust or plainly untenable order (U.O.I. Vs Avtar Singh 1985(1)-ILR-76). In my opinion the peculiar circumstances warrant reinvestigation of the entire claim of the petitioners. Accordingly, the Chief Settlement Commissioner Headquarters is directed to probe in entire claim arising out of the Goshwara allotment of the petitioners and if necessary, take suitable action for re-opening  the same for cancellation after affording reasonable opportunity of hearing to the affected parties.

 

13.                   At the same time, the dismissal of the petition of Bachan Singh etc. shall not ipso facto be construed as acceptance of the claim of respondents regarding land measuring 18K-11M, which also demands a through probe and investigation by the concerned authorities. The documents produced by the respondents in support of their claim, which found favour of Ld. Chief Settlement Commissioner in his order dated 8.1.1987, do not bear unimpeachable authenticity.  Accordingly, in case they fail to satisfy regarding the genuineness of their documents forming the foundation of their claim, the land in their possession be retrieved. Managing Officer Headquarter may make an inquiry into the matter.

                        Announced.

                                                                                                                                                            Sd/-

Chandigarh, dated                                                                                                                    (SHYAMA MANN)

The 21st December, 1999                                                                                             Financial Commissioner, Revenue

                                                                                                                                                            Punjab.

 

Contents           Next