JASMER SINGH JAIJEE Vs. FINANCIAL COMMISSIONER PUNJAB

JUDGEMENT

(1.) The prayer made in this petition under Articles 226/227 of the Constitution of India, is to the issuance of a writ in the nature of certiorari quashing the order dated 28.5.1996 (Annexure P16) passed by the Financial Commissioner (respondent No.1) whereby the order dated 21.9.1994 (Annexure P12) passed by the Commissioner, Patiala Division, holding the petitioners entitled to be considered having been vested with the proprietary rights over the land measuring 4 Bighas 11 Biswas situated in the revenue estate of Patiala, has been set aside by allowing the revision petition (R.O.R.No.281 of 1994-95) filed by the Municipal Committee, Patiala (respondent No.3) as well as the State of Punjab (respondent No.2). Facts in brief are that the petitioners are in possession of the land measuring 4 Bighas 11 Biswas comprised in Khewat/Khatauni No.3002/4632/1 Khasra No.2106/478 situated in the revenue estate of Patiala (hereinafter referred to as 'the land in dispute'). Their father late Sardar Harchand Singh has been entered as an 'occupancy tenant' in the Jamabandi for the year 1949-50 (Annexure P1). He continued to be so entered in all the subsequent Jamabandies uptill-now. On 29.8.1953 Patiala and East Punjab States Union Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 (for short 'the Act') was enacted whereby all the rights, title and interest of the landlords were extinguished and the same were vested in the occupancy tenants free from all encumbrances. Thus, all the persons recorded as Occupancy Tenants, immediately before the commencement of the Act were vested with the proprietary rights with effect from the appointed date, i.e., 29.8.1953. In the year 1981 late S.Harchand Singh, predecessor-in-interest of the present petitioners, moved an application before the Assistant Collector Ist Grade, Patiala, for sanctioning of the mutation in his name on the basis of his having been recorded as Occupancy Tenant over the land in dispute, in view of the provisions of Section 3 of the Act. The application was contested by the Municipal Committee, Patiala (respondent No.3). After hearing the counsel for the parties, the Assistant Collector Ist Grade, Patiala, rejected the application filed by late S.Harchand Singh, vide order dated 15.10.1984. A copy of the order is annexed with the written statement filed by respondent No.3 as Annexure R3/1. The appeal filed against this order was also dismissed by the Collector, Patiala vide order dated 12.1.1988 (Annexure R-3/2). In the meantime Sardar Harchand Singh died. The present petitioners, who are his sons, filed an application under Section 4 of the Act asking the Collector to determine the compensation payable to the Government for the land in question, claiming themselves to have become owners of the land in dispute by virtue of their being Occupancy Tenants thereon before the commencement of the Act. The State of Punjab was impleaded as a respondent therein. However, the Municipal Committee, Patiala, was allowed to become a respondent by the Collector later on. Anyhow, after hearing the counsel for the parties, the Collector dismissed the application filed by the petitioners under Section 4 of the Act vide order dated 15.7.1994 (Annexure P10). However, the appeal filed by the petitioners was accepted by the Commissioner, Patiala Division, vide order dated 21.9.1994 (Annexure P12) who held that the petitioners had become owners of the land in dispute by virtue of their being recorded as Occupancy Tenants in the revenue record continuously since the year 1949-50. With regard to compensation, it was held that the question of compensation to be paid to the State Government shall be considered as and when it applies therefor. Aggrieved against the order passed by the Commissioner, the Municipal Committee, Patiala, filed a revision petition before the Financial Commissioner (respondent No.1), who vide order dated 28.5.1996 (Annexure P16) allowed the same and set aside the order passed by the Commissioner, holding that the entry in the Jamabandi for the year 1949-50 was manipulated by the predecessor-in-interest of the petitioners in connivance with the Revenue Officers at the lower level. It is this order passed by the Financial Commissioner, which is under challenge in the present writ petition filed by the sons of late S.Harchand Singh. Notice of motion was issued to the respondents, who filed separate written statements to contest the petition. The petitioners also filed two separate replications to contest the averments made in the written statements filed on behalf of the respondents. Shri S.C.Kapoor, learned Senior Advocate, appearing on behalf of the petitioners, submitted that the status of the petitioners has to be determined under the provisions of Section 2(h) of the Act whereunder their claim as 'Occupancy Tenants' cannot be disallowed in view of consistent entries made in the revenue record. His submission is that a bare reading of the statutory provision would show that if a person is entered in the Jamabandi prior to the commencement of the Act as a Occupancy Tenant, he shall be deemed to be an occupancy tenant. Mr.Kapoor contended that even the State had admitted this fact in para 6 of the written statement filed before the Collector. Thus, as the petitioners had been recorded as Occupancy Tenants in the Jamabandies as well as the Khasra girdawaries since the year 1949-50, they had qualified to be declared as owners of the land in dispute.

(2.) The counsel has also drawn my attention to Annexure P7, which is an extract from the register of properties maintained by respondent No.3, i.e., the Municipal Committee, Patiala, wherein the predecessor-in-interest of the petitioners has been recorded as Occupancy Tenant. Mr.Kapoor has assailed the findings of the Financial Commissioner to the effect that the basis of the entries in the revenue record had not been shown by the petitioner, by contending that it was for the party alleging that the entries are not correct to prove the allegation and onus therefor cannot be placed on the petitioners. In support of his contention, Mr.Kapoor has placed reliance on Balwant Singh and another v. Daulat Singh (dead) by L.Rs. and others , 1997(2) PLJ 132. Mr.Kapoor has also assailed the findings of the Financial Commissioner to the effect that the provisions of the Act were not applicable to the government land. He contends that no exception has been made in the Act so far as the property situated in the erstwhile State of Patiala is concerned though some exceptions in this regard have been made in the erstwhile State of Faridkot, which provisions could not be applied to the case of the petitioners, as the property in the present case is situated in Patiala. The next argument raised by Mr.Kapoor is that the Financial Commissioner has acted without jurisdiction in holding that he had power to correct the entries in the revenue records. His contention is that only the Civil Court is competent to make any correction in the revenue record in view of the provisions of Section 45 of the Punjab Land Revenue Act, 1887.

(3.) The finding of the Financial Commissioner in the impugned order to the effect that since the petitioners' application for sanction of the mutation had been rejected, therefore, they were debarred from filing the application under Section 4 of the Act, has also been assailed by Mr.Kapoor by contending that the application for sanction of mutation was filed under the Punjab Land Revenue Act and the order passed under that Act could not act as res judicata to the application filed under provisions of PEPSU Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953.