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L.A.R
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LOCAL ACTS REPORTER
2012(1)
Subject Index
Abadi deh
Gorah deh – Vacant land – Vesting of -- Vacant land in
abadi deh or gorah deh, as on 12.02.1981, is deemed to have vested in the
Panchayat being shamilat deh. Hans Raj
v. The Assistant Collector 1st Grade, Ambala and others, 2012(1) L.A.R. 698
(P&H DB).
Acquisition of land
Bachat land – Compensation for Bachat land -- Right of
subsequent vendee -- Bachat land was acquired by the Government, compensation
was distributed to all the original proprietors as per their shares – Sale deed
only shows that all rights in connection with the land has been sold -- Even
the mutation was sanctioned regarding the land sold as mentioned in the sale
deed -- Mutation regarding share in shamlat land has not been sanctioned in
their favour -- If all the rights in connection of the land have been sold the
same would not automatically include the rights in shamlat land -- Suit
claiming that vendee are entitled to compensation regarding acquisition of the
said land, rightly dismissed. Maru Ram
and others v. Randhir and others, 2012(1) L.A.R. 556 (P&H).
Land Acquisition Act, 1894 -- Challenge to -- Delay and
laches – Award not passed within statutory period -- Writ petition was filed
immediately after pronouncement of the award – Could not have been non-suited
by invoking the rule of laches. R.
Indira Saratchandra v. State of Tamil Nadu & others, 2012(1) L.A.R. 136
(SC).
Land Acquisition Act, 1894 --
Market Value – Compensation payable to the claimants has to be computed in
terms of Sections 23 and 24 of the Act -- Market value of the land has to be
determined at the date of the publication of the notification u/s 4(1) of the
Act, after taking into consideration what is stated under Sections 23(1),
23(1A), 23(2) and excluding the considerations stated under Section 24 of the
Act -- It is not possible to fix the compensation with exactitude or arithmetic
accuracy -- Court may have to take recourse to some guesswork while determining
the fair market value of the land and the consequential amount of compensation.
Trishala Jain & Anr. v. State of
Uttaranchal
Land Acquisition Act, 1894 -- Objections – Report of
Collector -- Report of the Collector is not an empty formality -- It is only
upon receipt of the said report that the Government can take a final decision
on the objections – Formation of opinion by the appropriate Government as
regards the public purpose must be preceded by application of mind as regards
consideration of relevant factors and rejection of irrelevant ones –
Recommendations must indicate objective application of mind. M/S. Kamal Trading Private Limited (Now
Known As Manav Investment & Trading Co. Ltd.) v. State of West Bengal
Land Acquisition Act, 1894 -- Objections – Right of --
Section 5A(1) gives a right to any person interested to file an objection,
Section 5A(2) requires the Collector to give the objector an opportunity of
being heard in person or by any person authorized by him -- After hearing the
objections, the Collector can, if he thinks it necessary, make further inquiry,
thereafter, he has to make a report to the appropriate Government containing
his recommendations on the objections together with the record of the
proceedings held by him for the decision of the appropriate Government and the
decision of the appropriate Government shall be final -- It is a minimal
safeguard afforded to him by law to protect himself from arbitrary acquisition
-- Act being an ex-proprietary legislation, its provisions will have to be
strictly construed. M/S. Kamal Trading
Private Limited (Now Known As Manav Investment & Trading Co. Ltd.) v. State
of West Bengal
Land Acquisition Act, 1894 -- Release of 90 % land –
Other landholder’s right -- At the time of awards, substantial area was
released being thickly constructed – 90% area has been recommended for
exclusion from acquisition -- Public purpose of acquiring the land seems to
have been defeated -- Whereas the land/construction belonging to the
petitioners is sought to be acquired -- Such an action would smacks of
arbitrariness and, thus, violative of Article 14 of the Constitution --
Notifications u/s 4 and 6 of the Act as well as the awards subsequently passed,
set aside. Satish Kumar and others v.
State of Haryana
Land Acquisition Act, 1894 -- Stay of proceedings –
Statutory period for Award -- If any action or proceeding required to be taken
after the issue of declaration u/s 6 is stayed by a Court, the entire period of
stay will get excluded in calculating the period of two years within which an
award is required to be made by the Collector -- Once the stay order passed by
a Court is vacated or ceases to operate, the clog put on the running of the
period specified in the main section is removed. R. Indira Saratchandra v. State of Tamil Nadu & others, 2012(1)
L.A.R. 136 (SC).
Land Acquisition Act, 1894 -- Stay of proceedings –
Statutory period for Award -- Time taken in supply of copy of the judgment
cannot extend the period of two years specified in Section 11A. R. Indira Saratchandra v. State of Tamil
Nadu & others, 2012(1) L.A.R. 136 (SC).
Market Value -- Plotting has been
done only on part of the acquired land and the land is surrounded by colonies
like ITBP etc. but, there is no evidence to show that the acquired land itself
is developed and is having all the required facilities and amenities -- It may
be a case where less deduction may be applied but certainly it is not a case of
‘no deduction' -- Deduction of 10% from the market value on account of
development charges and other possible expenditures would be justifiable and
called for in the facts and circumstances of the present case. Trishala Jain & Anr. v. State of Uttaranchal
Market Value – Principle of
guesstimation -- Principle of guesstimation will have no application to the
case of “no evidence'’-- This principle is only intended to bridge the gap
between the calculated compensation and the actual compensation – Certain
principles controlling the application of guesstimate are : (a) Wherever the
evidence produced by the parties is not sufficient to determine the
compensation with exactitude, this principle can be resorted to -- (b)
Discretion of the court in applying guesswork to the facts of a given case is
not unfettered but has to be reasonable and should have a connection to the
data on record produced by the parties by way of evidence. Further, this entire
exercise has to be within the limitations specified under Sections 23 and 24 of
the Act and cannot be made in detriment thereto. Trishala
Jain & Anr. v. State of Uttaranchal
Market Value -- Sale instance –
Law of deduction – Not possible to state precisely the exact deduction which
could be made – Deduction is to be applied on account of carrying out
development activities like providing roads or civic amenities such as
electricity, water etc. when the land has been acquired for construction of
residential, commercial or institutional projects -- It shall also be applied
where the sale instances (exemplars) relate to smaller pieces of land and in
comparison the acquisition relates to a large tract of land -- Deduction can
also be applied on account of wastage of land -- It is neither possible nor
appropriate to stricto sensu define a class of cases where the Court would not
apply any deduction -- The cases where the acquired land itself is fully
developed and has all essential amenities, before acquisition, for the purpose
for which it is acquired requiring no additional expenditure for its
development, falls under the purview of cases of ‘no deduction'. Trishala Jain & Anr. v. State of Uttaranchal
Market Value -- Sale
instance -- Sale Uttaranchal
Market Value -- Sale
instance -- Vendor or vendee of sale deed had not been examined to prove them
in Court -- Sale India Uttaranchal
Market Value -- Sale instance of
smaller size of land – Sale instances even of smaller plots could be considered
for determining the market value of a larger chunk of land with some deduction
unless, there was comparability in potential, utilisation, amenities and
infrastructure with hardly any distinction. Trishala
Jain & Anr. v. State of Uttaranchal
Market Value – Small sale
instance -- Deduction from -- Land acquired had the potential of being
developed for residential or institutional purposes, the same was acquired for
construction of a Government Polytechnic Institute – Sale instance is situated
at a distance of 1-1/2 furlong from the acquired land cannot be said to be incomparable
sale instance, i.e. it has to be taken as a comparable sale instance – Value of
sale of small pieces of land can be taken into consideration for determining
even the value of a large tract of land – 10% deduction is made from the
estimated market value of acquired land. Trishala
Jain & Anr. v. State of Uttaranchal
Objections – Opportunity of hearing -- Land
Acquisition Officer adjourned the hearing on one occasion as requested by the
appellant, however, refused to adjourn the matter any further -- Second request
was rejected – Land Acquisition Officer could have adjourned the proceedings
after putting the appellant to terms because hearing the representative of the
owner companies was mandatory. M/S.
Kamal Trading Private Limited (Now Known As Manav Investment & Trading Co.
Ltd.) v. State of West Bengal
Objections – Report of Collector -- Mere use of the
words ‘for the greater interest of public’ does not lend the report the character
of a report made after application of mind -- He was not expected to write a
detailed report but, his report, however brief, should have reflected
application of mind. M/S. Kamal Trading
Private Limited (Now Known As Manav Investment & Trading Co. Ltd.) v. State
of West Bengal
Acquittal
in criminal case
Appointment of Lambardar – Mere acquittal will not
wash away the stigma of registration of a criminal case attached. Hira Khan @ Gajala v. Divisional
Commissioner, Patiala and others, 2012(1) L.A.R. 56 (P&H).
Actual notice
When notice is directly served upon a party in a formal
manner or when it is received personally by him, there is actual notice. The Special Deputy Collector, Land
Acquisition C.M.D.A. v. J. Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Adverse inference
Non-reply of Notice – In view of the pending litigation, non
issue of the replies to the notices cannot be treated as an admission of the
averments in the notices. Dnyaneshwar
Ranganath Bhandare & Another v. Sadhu Dadu Shettigar (Shetty) &
Another, 2012(1) L.A.R. 120 (SC).
Adverse possession
Punjab Village Common Lands (Regulation) Act, 1961 –
Occupants cannot claim title over the Panchayat property u/s 11 of the Act
being in adverse possession. Hazara
Singh and others v. The State of Punjab
Age
Appointment of Lambardar – Experience with Tau -- Contention
that private respondent has made a false statement with regard to his
experience and working with his Tau – Contention that at the time of death of
previous Lambardar, private respondent was about 12 years of age and this will
affect merit qua the appointment of respondent No.5 -- Contention is rejected. Jai Bhagwan v. Financial Commissioner,
Haryana and others, 2012(1) L.A.R. 204 (P&H).
Agreed rent
Rent Act -- Expiry of lease – Penal rent – Nature of
-- Agreed rent fixed was Rs.77,034/- per month -- It was agreed in para no.5 of
the lease deed “that in case the lessees do not vacate the premises at the end
of 3 years from the date of commencement of the lease period i.e. by 31.07.2010
and no mutual agreed terms are settled between the lessor and the lessees on or
before 01.05.2010 the lessees will be liable to pay rent of Rs.1,50,000/- per
month, and the lessor can take over the premises from the lessees -- Since this
condition was accepted by the tenants who have not challenged the same in the
written statement as a penal provision, the protection of Section 7 of the Act
is not available to them -- Moreover, tenants has failed to show as to how the
amount of Rs.1,50,000/- was within the definition of fine or premium -- It is
permissible for the parties to provide for increase in rent by agreement as
rent is defined as periodical payment for use of another's property and
increase in rent by agreement does not take the character of fine or premium. Smt. Navjeet Chadha and others v. Ravinder
Sandhu, 2012(1) L.A.R. 533 (P&H).
Agricultural land
Land Acquisition Act, 1894 – Market Value -- Merely by
notifying the regional plan showing certain agricultural lands as earmarked for
industrial purpose, those lands will not cease to be agricultural lands. Goa Housing Board v. Rameshchandra Govind
Pawaskar & another, 2012(1) L.A.R. 434 (SC).
Agriculturist
Appointment of Lambardar -- A villager who is running
a poultry farm or engaged in agriculture is not disqualified for being
appointed as Lambardar. Mohinder Singh
v. Financial Commissioner, Appeals-II, Punjab, Chandigarh and others, 2012(1)
L.A.R. 691 (P&H DB).
Allotment of land
Evacuee property – As per the Jamabandi, the land in
question has been recorded under the ownership of the Central Government, which
indicates that it is not the package deal property -- Appellant was unable to
show any document, indicating that the property in question was a package deal
property – Appellant is not entitled for allotment of the same under the Punjab
Package Act. Shamsher Singh v. State of Punjab
Punjab Package Deal Properties (Disposal) Rules, 1976 --
Delay and laches -- Husband of the petitioner had made supreme sacrifice of his
life for the country during the Indo-Pak War of 1965 -- Case of the petitioner
for allotment of land to her was duly recommended by the concerned Commanding
Officer – Petitioner is directed to move an application and the same shall be
sympathetically considered by the competent authority, without adhering to the
technical objection of non-filing of the application and by passing a
well-reasoned speaking order, within a period of two months thereafter --
Whether the Government is duty bound to consider the case of petitioner on
merits or not? – Answer must obviously be in the affirmative. Jagir Kaur v. The State of Punjab
Surplus area – Held, issue that the assessment of
surplus itself was wrong is not an issue that is available at the stage of
distribution of the property – Landlords will not have a right to challenge the
issue of allotment of the land, after the vesting has taken place. Dona Ram and others v. The State of Haryana
Allotment of plot
Cancellation of – Challenge to -- Allottees are weaker
sections of the society, homeless and Scheduled Castes -- But merely because
they have not constructed their houses on the plots allotted to them within the
specified period, their allotment cannot automatically be cancelled by the
authority -- Authority under the Public Premises Act has no jurisdiction to
entertain such application -- Proprietors have no locus standi to challenge the
allotment of plots because neither they belong to the weaker sections of the
society nor Scheduled Castes nor homeless. Wattan
Singh @ Sadhu Singh and another v. State of Punjab and others, 2012(1) L.A.R.
567 (P&H DB).
HUDA Matters -- Oustees claim – Rate to be charged --
What price could be charged from an allottee i.e. price prevailing on the date
the allotment or when the Sector is floated first -- 'normal allotment rate' in
all circumstances shall be the date when the sector is first floated for sale
-- As a matter of fact, the normal allotment rate would be the rate advertised
by the HUDA in pursuance of which applications are invited from the general
public and the oustees, in pursuance of which the plots are allotted. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Allotment of plots to the homeless, Scheduled
Castes, weaker sections of the society etc.
Unauthorized possession – Public premises – Undisputedly,
the plots allotted to the petitioners under the Scheme were never cancelled by
the competent authority -- Mutation of the ownership was sanctioned and their
names appeared in the Jamabandi -- Thereafter the Gram Panchayat was not the
owner of the plots – Held, no application either by the Gram Panchayat or the
inhabitants of the village could have been filed under the Public Premises Act
because the plots allotted to the private respondents do not fall under the
definition of “public premises”. Wattan
Singh @ Sadhu Singh and another v. State of Punjab and others, 2012(1) L.A.R.
567 (P&H DB).
Alternative water course
Haryana Canal and Drainage Act, 1974 – Watercourse –
Demolition of – While dealing with an application u/s 24 of the Act, the canal authorities
cannot provide for alternative watercourse -- Scope of Section 24 is very
limited -- Canal authorities are bound to record a finding with regard to
existence of the watercourse and its demolition -- Unless and until the canal
authorities come to a conclusion that the water course has been dismantled then
authorities can allow the application for restoration. Ram Kumar v. State of Haryana and others, 2012(1) L.A.R. 589
(P&H).
Amendment in electoral roll
Appeal
Punjab Municipal Act, 1911 -- House tax assessment –
Nature of property, whether it is rented out or in self occupation, present
market value and rental income, require the evidence -- Only the appellate
authority can determine such questions of fact based on the evidence –
Petitioner has right to appeal, it cannot legally be permitted to
ignore/bye-pass these statutory remedies under the garb of provisions of
Articles 226/227 of the Constitution of India. Punjab Alkalies & Chemicals Limited v. The Municipal Council,
2012(1) L.A.R. 1 (P&H).
Punjab Village Common Lands (Regulation) Act, 1961 --
Stay of impugned order – Speaking order – Natural justice -- Appellate
Authority has the power to stay the order impugned -- No reason is required to
be given while granting the stay of the order – No requirement of the
principles of natural justice that even such interim order is to be speaking
order. Hazara Singh and others v. The
State of Punjab
Applicability of CPC
Punjab Village Common Lands (Regulation) Act, 1961 -- CPC is not applicable to the
proceedings under the Act, but the principles of CPC, which are in consonance
with the justice, equity and good conscience, can very well be extended by the
Authorities under the Act. Hazara Singh
and others v. The State of Punjab
Appointment of Administrator
Haryana Co-operative Societies Act, 1984 -- Election
petition – Financial Commissioner directed the Assistant Registrar, Cooperative
Societies, to treat the petition as an election petition u/s 102 of the Act and
to decide the same within a period of 60 days; meanwhile, Administrator was
appointed to look into the affairs of the Society – Held, Section 34 of the Act
nowhere authorized the Registrar or Secretary to appoint the administrator
pending the election petition – Order is without jurisdiction which cannot be
sustained in the eyes of law -- Orders to the extent of appointment of
administrator stand set aside. Arun
Kumar Basra and others v. State of Haryana and others, 2012(1) L.A.R. 419
(P&H).
Appointment of Lambardar
A villager who is running a poultry farm or engaged in
agriculture is not disqualified for being appointed as Lambardar. Mohinder Singh v. Financial Commissioner,
Appeals-II, Punjab, Chandigarh and others, 2012(1) L.A.R. 691 (P&H DB).
Acquittal in criminal case – Effect of -- Mere
acquittal will not wash away the stigma of registration of a criminal case
attached. Hira Khan @ Gajala v. Divisional
Commissioner, Patiala and others, 2012(1) L.A.R. 56 (P&H).
Age – Experience with Tau -- Contention that private
respondent has made a false statement with regard to his experience and working
with his Tau – Held, in the villages it is a common practice that an aged man
is accompanied by younger male member in the family -- If such statement is
made, such cannot be treated as misleading -- Contention that at the time of
death of previous Lambardar, private respondent was about 12 years of age and
this will affect merit qua the appointment of respondent No.5 -- Contention is
rejected. Jai Bhagwan v. Financial
Commissioner, Haryana and others, 2012(1) L.A.R. 204 (P&H).
Choice of Collector – Choice of the Collector in the
matter of appointment of Village Lambardar should not normally be interfered
with, unless the Collector has taken a perverse view and has not exercised his
choice judiciously. Hira Khan @ Gajala
v. Divisional Commissioner, Patiala and others, 2012(1) L.A.R. 56 (P&H).
Choice of Collector – Collector after appreciating the
merits of the case prepared a comparative chart of all the three candidates –
Candidate appointed by Collector is 24 years of age and is 12th
Pass, whereas other is 8th pass and 50 years of age – Appointed
candidate had been president of the Milk Society of the village and has 4 acres
of land, whereas other although has excess land but he has taken loans from
different banks – Candidature of appointed candidate has been supported by
majority of the residents of the village – Finding of the Collector affirmed by
the Divisional Commissioner as well as Financial Commissioner – No illegality
or perversity in the order passed by the Collector has been pointed out – No
ground to interfere in the findings recorded by the revenue authorities. Jaswant Singh v. State of Punjab and
others, 2012(1)
L.A.R. 658 (P&H).
Choice of Collector -- Collector is the appointing
authority and in an advantageous position to examine the merits and demerits of
the candidates – Collector appointed private respondent as Lambardar, who is a
graduate and better qualified than the other two candidates, who has passed
Urdu examination and commanding good reputation in the village -- Naib
Tehsildar and S.D.O.(C) have recommended his name -- On the contrary, a criminal
case was registered against petitioner u/s 148, 323, 324, 326, 506/149 IPC,
which was pending in the Court of JMIC – Orders, containing valid reasons,
cannot possibly be interfered with under Articles 226/227 of the Constitution
of India, unless and until, the same are illegal and perverse. Sukhdev Singh v. State of Punjab and
others, 2012(1) L.A.R. 102 (P&H).
Choice of Collector -- Collector, after taking into
consideration all the relevant factors regarding age, education, holding of
land, social activities of the candidates, hereditary claim of respondent No.4
as well as the criminal background of the appellant, appointed respondent No.4
as Lambardar of the village -- There was no illegality or perversity in the
said order -- It cannot be said that respondent No.4, who was appointed as
Lambardar, was not eligible for the said post -- In view of these facts,
Commissioner had wrongly interfered in the choice of the Collector. Jaibir Singh v. State of Haryana and
others, 2012(1) L.A.R. 672 (P&H DB).
Choice of Collector – Comparative merits -- District
Collector has observed that petitioner’s availability to the villagers was not
sure while respondent would be easily available to the villagers for the whole
time and he is physically fit as per medical certificates and has sufficient
education -- Moreover he enjoys good reputation among the villagers -- Further
the choice of the District Collector confirmed by the Commissioner should not
be interfered with unless it suffers from illegality or perversity -- Revision
petition is dismissed being devoid of merits. Paramjit Singh v. Gurcharan
Singh, 2012(1)
L.A.R. 640 (FC Pb.).
Choice of Collector -- In the matter of appointment of
Lambardar, the choice of the Collector is final and should not be ordinarily
interfered until and unless the order is arbitrary, capricious or unreasonable. Jaibir Singh v. State of Haryana and
others, 2012(1) L.A.R. 672 (P&H DB).
Choice of Collector – Interference in -- Choice of the
Collector in the matter of appointment of Lambardar should not be interfered,
until and unless the order of the Collector is illegal on the face of it --
Appointment should not be interfered by the Commissioner, until and unless the
order of the Collector was found to be totally perverse and an ineligible person
had been appointed as Lambardar. Tarlok
Chand v. Joginder Singh and others, 2012(1) L.A.R. 689 (P&H DB).
Choice of Collector – Review -- Collector, after
considering the comparative merit of both the candidates, had appointed
respondent No.4 as Lambardar of the village -- Commissioner, without any
justification and while totally ignoring the settled law that the choice of the
Collector should not be interfered with until and unless the order is perverse
and the appointed person is ineligible for the appointment, had set aside the
order of the Collector -- Financial Commissioner, though at one point of time,
had set aside the illegal order of the Commissioner, but subsequently, had
taken the ‘U' turn on the review application and on a different ground had
recalled his earlier order totally without any justification and reason – Order
of Financial Commissioner in review application set aside -- Collector’s order
appointing respondent No.4 as Lambardar of the village restored. Manjit Singh v. Financial Commissioner
(Appeal-I), Punjab, Chandigarh
Choice of Collector – Writ jurisdiction -- After
considering the respective merits and demerits of the candidates, the District
Collector appointed private respondent as Lambardar – Choice of the Collector
in the matter of appointment of village Lambardar should not normally be
interfered -- Orders, containing valid reasons, cannot possibly be interfered,
while exercising the limited jurisdiction of this Court under Articles 226/227
of the Constitution of India, unless and until, the same are illegal and
perverse. Siri Ram v. Financial
Commissioner, Punjab and others, 2012(1) L.A.R. 7 (P&H).
Choice of the Collector cannot be set aside lightly unless
there is perversity in the order passed by the Collector -- Collector has
appreciated the comparative merit of the candidates and has come to a
conclusion that private respondent is a more suitable and meritorious candidate
for appointment as Lambardar -- Commissioner did not find any perversity in the
order of the Collector, inspite of that the appointment was set aside --
Financial Commissioner restored the order of Collector – In the judicial
review, the power of High Court is limited to the extent of looking into the
perversity, illegality or impropriety in the order passed by the competent
authority -- Held, there is no illegality, infirmity or perversity in the order
of the Financial Commissioner – Writ dismissed. Surender Kumar v. State of Haryana and others, 2012(1) L.A.R. 202 (P&H).
Choice of the Collector cannot be set aside lightly, it can
only be set aside if there is any perversity or illegality. Harpreet Singh v. State of Punjab and
others, 2012(1) L.A.R. 132 (P&H).
Choice of the Collector in the matter of appointment
of Lambardar should not be interfered, until and unless the order of the
Collector is totally perverse or an ineligible person has been appointed as
Lambardar. Kuldip Singh v. Financial
Commissioner (Appeals-II), Punjab, Chandigarh
Choice of the Collector is to be respected, in so much
as Collector is a Revenue Officer in the District who is required to take work
from the Lambardar, in context of provisions of Rule 20 of the Punjab Land
Revenue Rules. Hoshiar Chand v. The
Financial Commissioner (Appeals-II), Punjab, Chandigarh
Choice of the Collector should not be interfered by
the higher revenue authorities, until and unless the order of the Collector is
totally perverse or the person appointed is ineligible. Makhan Singh v. Financial Commissioner (Co-operation) Punjab, Chandigarh
Comparative merits – Choice of Collector -- Criminal case
was pending against petitioner -- Further on comparative merits of the
candidates, the Collector found private respondent as suitable, more influence
in the village and has more land than petitioner -- Petitioner has encroached
upon gair mumkin chhapar (pond) and found him to be a person of suspicious
character being involved in criminal case -- Finding of the District Collector
has been concurred up to Financial Commissioner -- Choice of the Collector
cannot be set aside lightly, it can only be set aside if there is any
perversity or illegality – No illegality or perversity pointed out -- No ground
is made out which may warrant interference in judicial review. Gursev Singh v. State of Punjab and
others, 2012(1)
L.A.R. 665 (P&H).
Comparative merits – Choice of Collector -- Petitioner has
misappropriated the amount of the Cooperative Society of the village and his
services were terminated -- Besides this private respondent is an Ex-serviceman
and is a middle pass and he had been a member of the Market Committee and he
also remained Sarpanch of the village -- He also remained Sarbrah Lambardar of
the village for five years and is well conversant with the works of the
lambardari – Collector found private respondent to be a better candidate for
appointment to the post of Lambardar -- It is settled law that the choice of
the Collector cannot be set aside lightly. Harbhagwan
Singh v. The Financial Commissioner (Revenue), Punjab
and another, 2012(1) L.A.R. 198 (P&H).
Comparative merits -- Petitioner is 36 years of age, graduate and diploma holder in computer
education, he owns 6 kanal and 11 marlas of land in the village and 32 kanals
in another village -- Petitioner further got Fixed Deposits to the tune of Rs.
57 lac and 15 family planning cases – Private respondent to the contrary, is 55
years of age, 9th class pass and owns 10 acres of land in the village – Private
respondent got Fixed Deposits worth Rs. 45,74,000/- and Fixed Deposit to the
tune of Rs. 8 lac in his own name; one LIC policy and 9 cases of family
planning, he himself has been a Sarpanch for one term, his Mother has been
Panch for one term -- Petitioner has been a member of the Block Samiti for 5
years and father of the petitioner also remained Sarpanch of the village –
Criminal complaint against respondent ended in a compromise u/s 323, 324, 326,
341 and 506 IPC -- Acquittal was recorded by the Judicial Magistrate – Held,
after considering overall merits/ disabilities, respondent has substantially
more social standing as compared to the petitioner – Private respondents’
appointment as Lambardar upheld. Bhim Singh
v. Financial Commissioner, Haryana & others, 2012(1) L.A.R. 162 (P&H).
Comparative merits -- Petitioner is more educated
being matriculate and a retired teacher, private respondent is 7th pass -- When
applications were invited for appointment of Lambardar, the petitioner owned 19
kanals of land whereas respondent owned only 4 kanals and 10 marlas of land --
Merit amongst the candidates is required to be seen at the point in time when
applications are to be filled -- Subsequent addition of land would not be a
good ground to hold the order passed by the Collector to be perverse – Held,
petitioner has an edge over the private respondent. Hoshiar Chand v. The Financial Commissioner (Appeals-II), Punjab, Chandigarh
Comparative merits -- Private Respondent is having more
land, son of deceased Lambardar, is also an ex-serviceman, served in the Army
for five years and his character has been found to be exemplary and also
remained as Sarbrah Nambardar of the village, who is well conversant with the
works of the Lambardar, whereas the reputation of petitioner is not clear as a
criminal case has been registered against him -- Petitioner is having less land
-- Only young age of the petitioner cannot be a ground to appoint him as
Lambardar -- Mere fact that a number of persons supported the candidature of
the petitioner does not give any right to the petitioner to be appointed as
Lambardar – Collector appointed petitioner as Lambardar – Order upheld. Swaran Singh v. State of Punjab and others,
2012(1) L.A.R. 195 (P&H).
Disqualification -- Defaulter of loan – Relevant date
-- Eligibility of a candidate for the post of Lambardar is to be seen on the
date of appointment of the Lambardar -- On the date of submission of the
application as well as on the date of his appointment as Lambardar, the
appellant was defaulter of three Co-operative banks/institutions, which is one
of the dis-qualifications -- Payment of the loan amount by the appellant
subsequently was meaningless and was not to be taken into consideration. Jarnail Singh v. Financial Commissioner
(Appeals) Punjab, Chandigarh
Disqualification -- Father was defaulter – Held, for the
fault of father, he cannot be deprived of his right and his merit cannot be
ignored on this ground alone. Jai
Bhagwan v. Financial Commissioner, Haryana and others, 2012(1) L.A.R. 204
(P&H).
Disqualification – For the fault of the family members, a
person claiming his right in his individual capacity cannot be deprived of
those rights. Jai Bhagwan v. Financial
Commissioner, Haryana and others, 2012(1) L.A.R. 204 (P&H).
Disqualification -- Petitioner did not intimate the
authorities about the death of his father, who was the earlier Lambardar --
Conduct of the petitioner is certainly despicable insomuch as he continued to
collect land revenue and continued to perform the duties of Lambardar, without
any legal authority to do the same -- In such circumstances, a person like the
petitioner, if allowed to be appointed as Lambardar, would not make a good
choice. Bhajan Singh v. State of Punjab
& Ors., 2012(1) L.A.R. 310 (P&H).
Duty of Collector -- Appointment of Lambardar is
administrative function and is prerogative of the District Collector, being
In-charge of the Administration -- It is the duty of the Collector to appoint
such person in the office of Lambardar, who is otherwise eligible and competent
to carry out the duties efficiently.
Siri Ram v. Financial Commissioner, Punjab and others, 2012(1) L.A.R. 7
(P&H).
Educational qualification -- No qualification prescribed
under the rules -- There is not much difference in 10+2 or Matric. Harpreet Singh v. State of Punjab and
others, 2012(1) L.A.R. 132 (P&H).
Employed candidate -- Choice of Collector --
Commissioner/Financial Commissioner has only limited right to interfere that
too when the choice of the Collector is found to be perverse, suffers from
material irregularity -- Collector held that merely because the petitioner is
working at Stone Crusher Company, does not deprive him from performing his
duties as Lambardar, rather it should be appreciated that the person is working
and earning livelihood of his family -- This cannot be treated as a perverse
finding – Order of Collector upheld.
Umed Singh v. Financial Commissioner, Haryana and others, 2012(1) L.A.R. 50
(P&H).
Ex-serviceman -- Contention that the appellant was a
soldier, whereas respondent No.1 was a carpenter in the Army, therefore, the
appellant should be given preference over respondent No.1, cannot be accepted
-- Any person who served in the Army, whether he was employed as soldier or in
the Engineering Wing of the Army, is an Ex- Serviceman -- It does not make any
difference in the case of appointment of Lambardar. Tarlok Chand v. Joginder Singh and others, 2012(1) L.A.R. 689 (P&H
DB).
F.I.R. – Effect of – Contention that private respondent is
not eligible for appointment as Lambardar since a criminal case was registered
against him u/s 323, 324 and 34 of the IPC – Held, registration of FIR is to
set the law in motion -- Those offences are compoundable and the case has been
compromised and challan has not been presented, so the contention is rejected. Harbhagwan Singh v. The Financial
Commissioner (Revenue), Punjab and another,
2012(1) L.A.R. 198 (P&H).
Hereditary claim -- Though only on the basis of
hereditary claim, a person cannot be appointed as Lambardar, but certainly it
is one of the factors, which has to be considered while appointing Lambardar. Jaibir Singh v. State of Haryana and
others, 2012(1) L.A.R. 672 (P&H DB).
Land in other village – Whether it is disqualification
-- Merely because respondent No.4 is owning land in the adjoining villages, it
cannot be said that he will not be available in the village, particularly when
he is a permanent resident of the village.
Makhan Singh v. Financial Commissioner (Co-operation) Punjab, Chandigarh
Qualification -- Collector, being the appointing
authority, was required to consider the relative merits, in the context of educational
qualification, for discharge of duties by the incumbent Lambardar, as provided
under Rule 20 of the Punjab Land Revenue Rules. Bhajan Singh v. State of Punjab & Ors., 2012(1) L.A.R. 310 (P&H).
Qualification -- Member Panchayat – Eligibility of -- A
Member Panchayat is required to operate within the village/estate and so is the
Lambardar -- Rule 15 or any other provision in the Act or the Rules does not
provide for any disability to be appointed as Lambardar, in case such a person
is a Member Panchayat, rather rule 15 indicates that it would be a
qualification if the person has personal influence, character and ability -- A
Panch of the village indicates better qualification, in terms of Rule 15 (d)
and (e). Bhajan Singh v. State of Punjab
& Ors., 2012(1) L.A.R. 310 (P&H).
Qualification -- Personal influence, character, services
rendered to the State by himself or by the family, service rendered to the
community and development programmes are relevant considerations for
appointment of a Lambardar. Bhim Singh
v. Financial Commissioner, Haryana & others, 2012(1) L.A.R. 162 (P&H).
Recommendation by Revenue officers -- Name of the
respondent was recommended by Naib Tehsildar, Tehsildar and Sub Divisional
Magistrate, but District Collector appointed petitioner as Lambardar giving no
reason of difference with the recommendation of the lower revenue officers --
If reports of the revenue officers are to be discarded without assigning any
reason then the entire exercise of getting reports from the revenue officers
becomes meaningless -- Commissioner has rightly set aside the order of the
District collector being perverse order. Balbir Chand v. Kuldip Singh, 2012(1) L.A.R. 630 (FC Pb.).
Recommendation of revenue authorities -- Collector,
after taking into consideration the comparative merits of the candidates, had
come to the conclusion that respondent No.4 was a better candidate to be
appointed as Lambardar -- Held, after taking into consideration the comparative
merits of all the candidates, appointment of suitable person as Lambardar of
the village, the recommendations made by the revenue authorities are not
relevant. Kuldip Singh v. Financial
Commissioner (Appeals-II), Punjab, Chandigarh
Recommendation of Revenue Authorities – Remand by
Commissioner – Effect of -- Earlier recommendations made by the A.C. IInd Grade
and Ist Grade are insignificant, since the Divisional Commissioner, had set
aside the order of the Collector appointing petitioner as Lambardar -- Only the
subsequent order after the remand is to be taken into consideration. Swaran Singh v. State of Punjab and
others, 2012(1) L.A.R. 195 (P&H).
Recommendation of S.D.M. -- Choice of Collector –
Collector had appointed appellant as Lambardar of the village finding him a
better candidate, who as per the report/recommendation of the Sub Divisional
Magistrate, is not even permanent resident of the village and is running a shop
elsewhere -- Respondent, who is permanent resident of the village and doing the
business of readymade garments, was found more suitable candidate than
appellant by the Sub Divisional Magistrate in his report/recommendation -- This
reflects the total non-application of mind by the Collector – Matter was
rightly remanding back to District Collector with the direction to re-examine
the entire case. Raj Kumar v. Financial
Commissioner (Appeal-II), Punjab, Chandigarh
Respondent No.4 being younger in age, more educated,
he is also grand-son of the deceased Lambardar and having a clean image, cannot
be said to be a bad choice for the post of Lambardar, particularly when the
appellant, being defaulter of three Co-operative banks/institutions, was not
eligible for the post. Jarnail Singh v.
Financial Commissioner (Appeals) Punjab, Chandigarh
Sarpanch of the Village – Eligibility of -- At
present, respondent No.4 is not the Sarpanch of the village, though at the time
of his initial appointment as Lambardar, he was Sarpanch of the village -- This
factor does not go against him -- It cannot be presumed that the Sarpanch of a
village would be affiliated with a political party, thus he cannot discharge
his duty honestly and without any bias.
Karamjit Singh v. Financial Commissioner Appeals-II, Punjab, Chandigarh and
others, 2012(1) L.A.R. 651 (P&H DB).
Sarpanch of the village -- This fact made him more
meritorious and better. Tarlok Chand v.
Joginder Singh and others, 2012(1) L.A.R. 689 (P&H DB).
Work place 20 KM away – Effect of -- Appellant is
serving as Helper in Warehousing Corporation, which is 20 Kilometres away from
the village, and in that situation, he will not be available to the villagers. Kuldip Singh v. Financial Commissioner
(Appeals-II), Punjab, Chandigarh
Arrears of rent
Rent Act -- Assessment of provisional rent –
Non-tendering of -- Tenant failed to deposit the provisionally assessed rent on
the due date -- Order of ejectment has to follow and nothing more is required
to be done and the Rent Controller had no jurisdiction at all to extend time. Kundan Singh v. Smt. Roop Rani and another,
2012(1) L.A.R. 262 (P&H).
Rent Act -- Provisional assessment of – First date of
hearing -- Extension of – Right of -- Rent Controller did not assess the exact
amount of provisional rent to be tendered by the tenant – But tenant has not
requested to the Rent Controller that he is unable to pay the rent on the first
date of hearing in the absence of assessment of exact amount rather the prayer
was that entire arrears of rent is not available in time and an adjournment was
sought for payment of the balance amount after offering Rs.20,000/- -- Tenant
can challenge, but cannot escape his eviction if he does not tender the
provisionally assessed rent on the first date of hearing -- Said arrears are
tendered by the tenant on account of conditional stay which does not take away
the right already accrued in favour of the landlord – Held, non-availability of
provisionally assessed rent on the date of its tender is not a ground for
extension of time and the eviction order passed on that account cannot be set
aside even on the ground that the Rent Controller had failed to assess the
exact amount of rent. Kailash Chandra
Kaushik v. Kamaljeet Rangi, 2012(1) L.A.R. 514 (P&H).
Assessment of House Tax
Punjab Municipal Corporation Act, 1976 --
Section 93(c) is applicable only where the rental value cannot be worked
out -- Where the property is situated, the provisions of the Rent Act are
applicable, there was no bar to assess the rental value -- Matter is remanded
back to the Municipal Corporation, to determine the house tax value under
Section 93(b). M/s Dwarka Cheap Store v.
The Municipal Corporation and others, 2012(1)
L.A.R. 350 (P&H).
Assessment of provisional rent
Rent Act -- Arrears of rent – Non-tendering of --
Tenant failed to deposit the provisionally assessed rent on the due date --
Order of ejectment has to follow and nothing more is required to be done and
the Rent Controller had no jurisdiction at all to extend time. Kundan Singh v. Smt. Roop Rani and another,
2012(1) L.A.R. 262 (P&H).
Auction sale
Confirmation of – Effective date of sale -- Auction
property shall be vested in favour of the auction purchaser from the date of
its auction if auction sale is confirmed later on -- Section 65 C.P.C. may not
be applicable in strict sense in the proceedings under the Act, however,
principles can be pressed in service to find out as to when property shall vest
in the auction purchaser -- Therefore, any allotment or creation of third party
interest during the intervening period shall cease to have any effect
immediately on the confirmation of auction sale. Jog Raj Singh v. State of Punjab
Confirmation/cancellation of – Duty of authorities --
Every effort should be made by the authorities hearing the objections against
the auction sale to decide the question of confirmation / cancellation of the
auction sale at the earliest and meanwhile, property subject matter of the
auction sale should not be allowed to exchange hands either by the parties
before the authority hearing the question of confirmation of the sale or by the
authority himself. Jog Raj Singh v.
State of Punjab
Bachat land
Acquisition of land – Compensation for Bachat land --
Right of subsequent vendee -- Bachat land was acquired by the Government,
compensation was distributed to all the original proprietors as per their
shares – Sale deed only shows that all rights in connection with the land has
been sold -- Even the mutation was sanctioned regarding the land sold as
mentioned in the sale deed -- Mutation regarding share in shamlat land has not
been sanctioned in their favour -- If all the rights in connection of the land
have been sold the same would not automatically include the rights in shamlat
land -- Suit claiming that vendee are entitled to compensation regarding
acquisition of the said land, rightly dismissed. Maru Ram and others v. Randhir and others, 2012(1) L.A.R. 556
(P&H).
Shamilat land -- Jumla Mushtarka Malkan Hasad Rasad
Khewat -- Some land deducted from holding of proprietors by imposing a pro-rata
cut on holdings at the time of consolidation to be used for common purposes of
the entire proprietary bodies – Bachat land is a land which was left after
utilising the land for common purposes, as mentioned in consolidation scheme --
Said land is normally recorded in the revenue record as Jumla Mushtarka Malkan
Hasad Rasad Khewat -- Same also describes the share of each proprietor, which
is to the extent of land contributed by such land owners -- Management and
control of bachat land does not vest in Gram Panchayat. Maru Ram and others v. Randhir and others, 2012(1) L.A.R. 556
(P&H).
Banjar Jadid
Banjar Kadim -- Ghair Mumkin -- Uncultivated land is
classified as Banjar Jadid, Banjar Kadim and Ghair Mumkin -- If for four
successive harvests the land, which was once cultivated, has not been sown, it
is classified as Banjar Jadid or new fallow and if it continues to be
uncultivated and the said entries are maintained for the next four harvests,
then such land passes into the category of Banjar Kadim or old fallow, whereas
the term Ghair Mumkin is barren land. Gurdev
Singh (deceased) through his LRs. v. The Additional Director, Panchayats, Punjab and another, 2012(1) L.A.R. 596 (P&H DB).
Banjar Kadim
Banjar Jadid -- Ghair Mumkin -- Uncultivated land is
classified as Banjar Jadid, Banjar Kadim and Ghair Mumkin -- If for four
successive harvests the land, which was once cultivated, has not been sown, it
is classified as Banjar Jadid or new fallow and if it continues to be
uncultivated and the said entries are maintained for the next four harvests,
then such land passes into the category of Banjar Kadim or old fallow, whereas
the term Ghair Mumkin is barren land. Gurdev
Singh (deceased) through his LRs. v. The Additional Director, Panchayats, Punjab and another, 2012(1) L.A.R. 596 (P&H DB).
Board
of Directors
Punjab Co-operative Societies Act, 1961 – Election – Cancellation of –
Jurisdiction of District Magistrate --
Election process commenced for the post of Board of Directors -- Head Constable
and two Constables were deployed for the smooth conduct of the election –
District Magistrate cancelled the election process on the ground of law and
order situation – Held, District Magistrate was well within his right to
initiate appropriate proceedings/action under Chapters VIII & XI Cr.P.C.,
or may pass order u/s 144 and 144-A of the Cr.P.C., or any other law for the
time being in force, as the case may be, as warranted by the situation but did
not have the jurisdiction, to cancel the already commenced democratic election
process, in a very casual and abrupt manner, without any material/basis. Navraj Singh and another v. State of
Punjab and others, 2012(1) L.A.R. 10 (P&H).
Bonafide need
Rent Act -- Change of user -- There must be first a
requirement by the landlord which means that it is not a mere whim or a
fanciful desire by him, further such requirement must be bona fide which is
intended to avoid the mere wish or desire -- Bona fide requirement must be in
praesenti and must be manifested in actual need which would evidence the court
that it is not a mere fanciful or whimsical desire. Rakesh Kumar v. Darshan Singh, 2012(1)
L.A.R. 271 (P&H).
Rent Act -- Evidence show that other shops are the
ownership of Trust and not the ownership of landlord – Tenant failed to point
out any other commercial property or shop which is owned by the landlord --
Bonafide requirement of the shop in dispute of the landlord to set up his
office stands proved and no fault can be found with the findings recorded by
the Authorities below – Eviction order upheld. Ramesh Gupta v. Ashok Kumar Jain, 2012(1)
L.A.R. 289 (P&H).
Rent Act -- Landlord is the best judge of his needs and
the tenant cannot dictate him regarding his suitability of the premises –
Simply because, at one point of time, the landlord was planning to let out his
residential portion to some bank will not dis-entitle him to seek ejectment on
the ground of personal necessity.
Jagdish Kaur v. Sat Pal Madan, 2012(1) L.A.R. 240
(P&H).
Rent Act -- Landlord is the best judge of his needs
and the tenant cannot dictate his terms regarding the suitability of the
premises. Onkar Singh v. Dilbagh Rai
& another, 2012(1) L.A.R. 409 (P&H).
Rent Act -- Landlord is the best judge of his own
needs. Tarsem Chand v. Gurdial Singh, 2012(1) L.A.R. 253 (P&H).
Rent Act -- Landlord, being a retired man, wants to
come back to Chandigarh where he owns property in the shape of SCF where he wants
to start his business of consultancy services for which the tenant cannot
dictate terms to the landlord that since the landlord has got a house in Mumbai
which, of course, is in the name of his wife, therefore, he should not shift to
Chandigarh in pursuit of new vocation.
Shri Shiv Kumar v. Shri Chander Mohan Sharma and another, 2012(1) L.A.R. 700
(P&H).
Rent Act -- Revisional Jurisdiction -- Whether demised
premises are required by the landlord for his personal need is essentially a
question of fact – Concurrent finding against the tenant, High Court in its
revisional jurisdiction will not substitute its opinion with the findings of
the courts below only because another view is possible. Jagdish Kaur v. Sat Pal Madan, 2012(1)
L.A.R. 240 (P&H).
Rent Act -- Suitability of accommodation -- Tenant is
no one to dictate his terms to the landlord in the matter of bona fide
requirement with regard to suitability of the accommodation. Rakesh Kumar v. Darshan Singh, 2012(1) L.A.R. 271 (P&H).
Rent Act -- Vacation of building – Sufficient cause --
Landlord closed his tractor business in the year 2001, whereas he started his
new business only in the year 2004 meaning thereby landlord has no idea in the
year 2001 that he will be starting his new business – Held, it cannot be said
that the landlord had vacated the premises in his occupation after commencement
of the Act without sufficient cause.
Ramesh Gupta v. Ashok Kumar Jain, 2012(1)
L.A.R. 289 (P&H).
Rent Act (Haryana) -- Petition u/s 13-A -- Contention
that respondents are in occupation and possession of another adjoining shop, to
the shop in dispute which is lying vacant disentitles the respondents to file
and maintain the present ejectment application in view of the provisions of
section 13 (3)(a) (i) of the Act, thus, no benefit could have been granted to
them under section 13-A of the Act – Contention rejected. Surinder Kumar v. Smt. Leela Sharma and others, 2012(1) L.A.R. 318 (P&H).
Rent Act (Punjab) -- NRI landlord – In case a landlord
fulfills the conditions of section 13-B of the Act, a presumption is to be
drawn in his favour for his bona fide need and thereafter it is for the tenant
to make out a strong case in his application for grant of leave to defend. Poonam Kumari v. Rajinder Kumar, 2012(1)
L.A.R. 559 (P&H).
Rent Act (Punjab) -- NRI landlord – Leave to defend --
Simply because the tenant is disputing the need of the landlord is not enough
to hold that the tenant has raised triable issues in his application for leave
to contest -- Except the allegations of harassment the tenant has not come out
with any plausible defence -- Genuineness and veracity of the complaint made by
the tenant before the police authorities can only be determined by the criminal
Court and not under provisions of the Rent Act -- Since the landlord fulfilled
all the ingredients of section 13-B of the Act and there being not an iota of
evidence to rebut the presumption of bona fide need in favour of the landlord,
the eviction order needs no interference. Poonam
Kumari v. Rajinder Kumar, 2012(1) L.A.R. 559 (P&H).
Rent Act (Punjab ) -- NRI
landlord – Right of the NRI can be defeated by a tenant by showing that the
bona fide requirement was a pretext to get the accommodation vacated and the
landlord was not owner of the premises. Onkar
Singh v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).
Bonafide need of sons
Rent Act -- Petitioner is to settle his sons in
business and has also been proved on file that he has got no other such shop
available to him -- Simply because they were doing tempo business does not mean
that they were precluded from starting their own independent business -- Law
does not expect from the landlord to remain idle and to face starvation during
the pendency of the petition. Rakesh
Kumar v. Darshan Singh, 2012(1) L.A.R. 271
(P&H).
Rent Act -- Shop in dispute is required by landlord
for starting business of sons -- Fact that the sons of the landlord were taking
training in some other business or were doing some business will not disentitle
them from doing their own business of any nature in the shop in dispute. Rakesh Kumar v. Darshan Singh, 2012(1) L.A.R. 271 (P&H).
Branch water course
Warabandi – It is settled principle of law that
firstly from the main watercourse, the Branch watercourse will run --
Thereafter, the water will again flow into the main watercourse. Krishan Lal v. Superintending Canal Officer
and others, 2012(1) L.A.R. 377 (P&H).
Warabandi – Land of the petitioner is on the branch
watercourse and is to be irrigated first, whereas, the land of private respondent
is at the main watercourse in the end -- So, private respondent is entitled to
the jhara (residue) of the water. Krishan
Lal v. Superintending Canal Officer and others, 2012(1) L.A.R. 377 (P&H).
Building
East Punjab Urban Rent Restriction Act, 1949 --
Specified landlord -- Non-residential building – When the eviction petition was
filed, there was no access to the main residential building through the demised
premises (shop) -- Court is to take into consideration the position of the
demised premises at the time of the filing of the eviction petition – Held, it
has to be essentially accepted that it was segregated portion of the main
building and was an independent unit falling within the definition of a
building itself in terms of Section 2(a) of the Act – Demised premises is not a
residential building. M/s Bharat
Electricals and another v. Dr. Sukhdev Raj Goyal and another, 2012(1) L.A.R.
422 (P&H).
Cancellation of Allotment of plot
Allottees are weaker sections of the society, homeless
and Scheduled Castes -- But merely because they have not constructed their
houses on the plots allotted to them within the specified period, their
allotment cannot automatically be cancelled by the authority -- Authority under
the Public Premises Act has no jurisdiction to entertain such application --
Proprietors have no locus standi to challenge the allotment of plots because
neither they belong to the weaker sections of the society nor Scheduled Castes
nor homeless. Wattan Singh @ Sadhu Singh
and another v. State of Punjab and others, 2012(1) L.A.R. 567 (P&H DB).
Cancellation of Auction sale
Duty of authorities -- Every effort should be made by
the authorities hearing the objections against the auction sale to decide the
question of confirmation / cancellation of the auction sale at the earliest and
meanwhile, property subject matter of the auction sale should not be allowed to
exchange hands either by the parties before the authority hearing the question
of confirmation of the sale or by the authority himself. Jog Raj Singh v. State of Punjab
Cancellation
of Election of Board of Directors
Punjab Co-operative Societies Act, 1961 – Jurisdiction of District Magistrate -- Election process
commenced for the post of Board of Directors -- Head Constable and two
Constables were deployed for the smooth conduct of the election – District
Magistrate cancelled the election process on the ground of law and order
situation – Held, District Magistrate was well within his right to initiate
appropriate proceedings/action under Chapters VIII & XI Cr.P.C., or may
pass order u/s 144 and 144-A of the Cr.P.C., or any other law for the time
being in force, as the case may be, as warranted by the situation but did not
have the jurisdiction, to cancel the already commenced democratic election
process, in a very casual and abrupt manner, without any material/basis. Navraj Singh and another v. State of
Punjab and others, 2012(1) L.A.R. 10 (P&H).
Capital of Punjab
(Development and Regulation) Act, 1952 (27 of 1952)
Section 1, 8-A, 22(2)(c) – Chandigarh (Sale of Sites
and Building) Rules, 1960, Rule 9 -- Chandigarh Lease Hold of Sites and
Building Rules, 1973, Rule 17 – Shop cum flat – Tourist lodge/Guest house –
Misuse of premises – Conversion of use of building -- Sites allotted for use as
(SCFs), whereas petitioner are using F.F. and S.F. as guest houses/lodges,
which is not permissible -- Stand of the administration that until and unless
the petitioners seek firstly conversion for use as for the office purposes and
secondly to seek permission to use the office portion for commercial purpose
i.e. for tourist lodges and guest houses, the petitioners are violating the
provisions of the Act and the building is liable to be resumed – Writ petition
challenging to notices served u/s 8A of the 1952 Act dismissed with liberty to
the petitioners to seek conversion of the use of buildings in terms of the
scheme framed under the Act. Gurcharan
Singh v. Union Territory Chandigarh & others, 2012(1) L.A.R. 330 (P&H DB).
Challenge to Acquisition of land
Land Acquisition Act, 1894 -- Delay and laches – Award not
passed within statutory period -- Writ petition was filed immediately after
pronouncement of the award – Could not have been non-suited by invoking the
rule of laches. R. Indira Saratchandra
v. State of Tamil Nadu & others, 2012(1) L.A.R. 136 (SC).
Rule 9 -- Capital of Punjab (Development and
Regulation) Act, 1952 (27 of 1952), Section 1, 8-A, 22(2)(c) – Chandigarh Lease
Hold of Sites and Building Rules, 1973, Rule 17 – Shop cum flat – Tourist
lodge/Guest house – Misuse of premises – Conversion of use of building -- Sites
allotted for use as (SCFs), whereas petitioner are using F.F. and S.F. as guest
houses/lodges, which is not permissible -- Stand of the administration that
until and unless the petitioners seek firstly conversion for use as for the
office purposes and secondly to seek permission to use the office portion for
commercial purpose i.e. for tourist lodges and guest houses, the petitioners
are violating the provisions of the Act and the building is liable to be
resumed – Writ petition challenging to notices served u/s 8A of the 1952 Act
dismissed with liberty to the petitioners to seek conversion of the use of buildings
in terms of the scheme framed under the Act. Gurcharan Singh v. Union Territory Chandigarh & others, 2012(1) L.A.R. 330 (P&H DB).
Rule 17 – Capital of Punjab (Development and
Regulation) Act, 1952 (27 of 1952), Section 1, 8-A, 22(2)(c) – Chandigarh (Sale
of Sites and Building) Rules, 1960, Rule 9 -- Shop cum flat – Tourist
lodge/Guest house – Misuse of premises – Conversion of use of building -- Sites
allotted for use as (SCFs), whereas petitioner are using F.F. and S.F. as guest
houses/lodges, which is not permissible -- Stand of the administration that
until and unless the petitioners seek firstly conversion for use as for the
office purposes and secondly to seek permission to use the office portion for
commercial purpose i.e. for tourist lodges and guest houses, the petitioners
are violating the provisions of the Act and the building is liable to be
resumed – Writ petition challenging to notices served u/s 8A of the 1952 Act
dismissed with liberty to the petitioners to seek conversion of the use of
buildings in terms of the scheme framed under the Act. Gurcharan Singh v. Union Territory Chandigarh & others, 2012(1) L.A.R. 330 (P&H DB).
Change of outlet
Change of user
Rent Act -- Written consent of landlord is required,
even the knowledge of the landlord of the change of user, may be even from the
very inception of the tenancy, would not absolve the tenant for liability for
eviction on that ground – Even long user of the changed business does not
amount to consent of the landlord to avoid eviction under the Rent Act. Rakesh Kumar v. Darshan Singh, 2012(1) L.A.R. 271 (P&H).
Change of Warabandi
Third party right -- Original owner has not moved any
application -- Third party has no right to make a prayer for transfer of area. Gurmeet Singh and others v. Chief Canal
Officer (BWSU) Irrigation Department, Sector 2, Panchkula and others, 2012(1)
L.A.R. 379 (P&H).
Choice of Collector
Appointment of Lambardar -- Choice of the Collector cannot
be set aside lightly, it can only be set aside if there is any perversity or
illegality. Harpreet Singh v. State of
Punjab and others, 2012(1) L.A.R. 132 (P&H).
Appointment of Lambardar -- Choice of the Collector cannot
be set aside lightly unless there is perversity in the order passed by the
Collector -- Collector has appreciated the comparative merit of the candidates
and has come to a conclusion that private respondent is a more suitable and
meritorious candidate for appointment as Lambardar -- Commissioner did not find
any perversity in the order of the Collector, inspite of that the appointment
was set aside -- Financial Commissioner restored the order of Collector – In
the judicial review, the power of High Court is limited to the extent of
looking into the perversity, illegality or impropriety in the order passed by
the competent authority -- Held, there is no illegality, infirmity or
perversity in the order of the Financial Commissioner – Writ dismissed. Surender Kumar v. State of Haryana and
others, 2012(1) L.A.R. 202 (P&H).
Appointment of Lambardar – Choice of the Collector in
the matter of appointment of Village Lambardar should not normally be
interfered with, unless the Collector has taken a perverse view and has not
exercised his choice judiciously. Hira
Khan @ Gajala v. Divisional Commissioner, Patiala and others, 2012(1) L.A.R. 56
(P&H).
Appointment of Lambardar – Choice of the Collector in
the matter of appointment of Lambardar should not be interfered, until and
unless the order of the Collector is totally perverse or an ineligible person
has been appointed as Lambardar. Kuldip
Singh v. Financial Commissioner (Appeals-II), Punjab, Chandigarh
Appointment of Lambardar – Choice of the Collector in
the matter of appointment of Lambardar should not be interfered, until and
unless the order of the Collector is illegal on the face of it -- Appointment
should not be interfered by the Commissioner, until and unless the order of the
Collector was found to be totally perverse and an ineligible person had been
appointed as Lambardar. Tarlok Chand v.
Joginder Singh and others, 2012(1) L.A.R. 689 (P&H DB).
Appointment of Lambardar -- Choice of the Collector is
to be respected, in so much as Collector is a Revenue Officer in the District
who is required to take work from the Lambardar, in context of provisions of
Rule 20 of the Punjab Land Revenue Rules.
Hoshiar Chand v. The Financial Commissioner (Appeals-II), Punjab, Chandigarh
Appointment of Lambardar – Choice of the Collector
should not be interfered by the higher revenue authorities, until and unless
the order of the Collector is totally perverse or the person appointed is
ineligible. Makhan Singh v. Financial
Commissioner (Co-operation) Punjab, Chandigarh
Appointment of Lambardar – Collector after appreciating the
merits of the case prepared a comparative chart of all the three candidates –
Candidate appointed by Collector is 24 years of age and is 12th
Pass, whereas other is 8th pass and 50 years of age – Appointed
candidate had been president of the Milk Society of the village and has 4 acres
of land, whereas other although has excess land but he has taken loans from
different banks – Candidature of appointed candidate has been supported by
majority of the residents of the village – Finding of the Collector affirmed by
the Divisional Commissioner as well as Financial Commissioner – No illegality
or perversity in the order passed by the Collector has been pointed out – No
ground to interfere in the findings recorded by the revenue authorities. Jaswant Singh v. State of Punjab and
others, 2012(1)
L.A.R. 658 (P&H).
Appointment of Lambardar – Collector is the appointing
authority and in an advantageous position to examine the merits and demerits of
the candidates – Collector appointed private respondent as Lambardar, who is a
graduate and better qualified than the other two candidates, who has passed
Urdu examination and commanding good reputation in the village -- Naib
Tehsildar and S.D.O.(C) have recommended his name -- On the contrary, a
criminal case was registered against petitioner u/s 148, 323, 324, 326, 506/149
IPC, which was pending in the Court of JMIC – Orders, containing valid reasons,
cannot possibly be interfered with under Articles 226/227 of the Constitution
of India, unless and until, the same are illegal and perverse. Sukhdev Singh v. State of Punjab and
others, 2012(1) L.A.R. 102 (P&H).
Appointment of Lambardar – Collector, after taking
into consideration all the relevant factors regarding age, education, holding
of land, social activities of the candidates, hereditary claim of respondent
No.4 as well as the criminal background of the appellant, appointed respondent
No.4 as Lambardar of the village -- There was no illegality or perversity in
the said order -- It cannot be said that respondent No.4, who was appointed as
Lambardar, was not eligible for the said post -- In view of these facts,
Commissioner had wrongly interfered in the choice of the Collector. Jaibir Singh v. State of Haryana and
others, 2012(1) L.A.R. 672 (P&H DB).
Appointment of Lambardar – Comparative merits – Criminal
case was pending against petitioner -- Further on comparative merits of the
candidates, the Collector found private respondent as suitable, more influence
in the village and has more land than petitioner -- Petitioner has encroached
upon gair mumkin chhapar (pond) and found him to be a person of suspicious
character being involved in criminal case -- Finding of the District Collector
has been concurred up to Financial Commissioner -- Choice of the Collector
cannot be set aside lightly, it can only be set aside if there is any
perversity or illegality – No illegality or perversity pointed out -- No ground
is made out which may warrant interference in judicial review. Gursev Singh v. State of Punjab and others,
2012(1) L.A.R. 665 (P&H).
Appointment of Lambardar – Comparative merits --
District Collector has observed that petitioner’s availability to the villagers
was not sure while respondent would be easily available to the villagers for
the whole time and he is physically fit as per medical certificates and has
sufficient education -- Moreover he enjoys good reputation among the villagers
-- Further the choice of the District Collector confirmed by the Commissioner
should not be interfered with unless it suffers from illegality or perversity
-- Revision petition is dismissed being devoid of merits. Paramjit Singh v.
Gurcharan Singh, 2012(1)
L.A.R. 640 (FC Pb.).
Appointment of Lambardar – Comparative merits – Petitioner
has misappropriated the amount of the Cooperative Society of the village and
his services were terminated -- Besides this private respondent is an
Ex-serviceman and is a middle pass and he had been a member of the Market
Committee and he also remained Sarpanch of the village -- He also remained Sarbrah
Lambardar of the village for five years and is well conversant with the works
of the lambardari – Collector found private respondent to be a better candidate
for appointment to the post of Lambardar -- It is settled law that the choice
of the Collector cannot be set aside lightly. Harbhagwan Singh v. The Financial Commissioner (Revenue), Punjab and another, 2012(1) L.A.R. 198 (P&H).
Appointment of Lambardar – Employed candidate --
Choice of the Collector cannot be set aside lightly -- No interference with the
choice made by the Collector even if two views are possible --
Commissioner/Financial Commissioner has only limited right to interfere that
too when the choice of the Collector is found to be perverse, suffers from
material irregularity -- Collector held that merely because the petitioner is
working at Stone Crusher Company, does not deprive him from performing his
duties as Lambardar, rather it should be appreciated that the person is working
and earning livelihood of his family -- This cannot be treated as a perverse
finding – Order of Collector upheld.
Umed Singh v. Financial Commissioner, Haryana and others, 2012(1) L.A.R. 50
(P&H).
Appointment of Lambardar – In the matter of
appointment of Lambardar, the choice of the Collector is final and should not
be ordinarily interfered until and unless the order is arbitrary, capricious or
unreasonable. Jaibir Singh v. State of
Haryana and others, 2012(1) L.A.R. 672 (P&H DB).
Appointment of Lambardar -- Recommendation of S.D.M.
-- Collector had appointed appellant as Lambardar of the village finding him a
better candidate, who as per the report/recommendation of the Sub Divisional
Magistrate, is not even permanent resident of the village and is running a shop
elsewhere -- Respondent, who is permanent resident of the village and doing the
business of readymade garments, was found more suitable candidate than
appellant by the Sub Divisional Magistrate in his report/recommendation -- This
reflects the total non-application of mind by the Collector – Matter was
rightly remanding back to District Collector with the direction to re-examine
the entire case. Raj Kumar v. Financial
Commissioner (Appeal-II), Punjab, Chandigarh
Appointment of Lambardar – Review -- Collector, after
considering the comparative merit of both the candidates, had appointed
respondent No.4 as Lambardar of the village -- Commissioner, without any
justification and while totally ignoring the settled law that the choice of the
Collector should not be interfered with until and unless the order is perverse
and the appointed person is ineligible for the appointment, had set aside the
order of the Collector -- Financial Commissioner, though at one point of time,
had set aside the illegal order of the Commissioner, but subsequently, had
taken the ‘U' turn on the review application and on a different ground had
recalled his earlier order totally without any justification and reason – Order
of Financial Commissioner in review application set aside -- Collector’s order
appointing respondent No.4 as Lambardar of the village restored. Manjit Singh v. Financial Commissioner
(Appeal-I), Punjab, Chandigarh
Appointment of Lambardar – Writ jurisdiction -- After
considering the respective merits and demerits of the candidates, the District
Collector appointed private respondent as Lambardar – Choice of the Collector
in the matter of appointment of village Lambardar should not normally be
interfered -- Orders, containing valid reasons, cannot possibly be interfered,
while exercising the limited jurisdiction of this Court under Articles 226/227
of the Constitution of India, unless and until, the same are illegal and
perverse. Siri Ram v. Financial
Commissioner, Punjab and others, 2012(1) L.A.R. 7 (P&H).
Circulation of newspaper
Land Acquisition Act, 1894 -- Notification u/s 4 -- Publication of notification in two
newspapers -- If there is failure to publish in two daily newspapers or if the
publication is in two newspapers that have no circulation at all in the
locality, without anything more, the notification u/s 4(1) of the Act and the
consequential acquisition proceedings will be vitiated, on the ground of
non-compliance with an essential condition of section 4(1) of the Act. The Special Deputy Collector, Land
Acquisition C.M.D.A. v. J. Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Land Acquisition Act, 1894 -- Notification u/s 4 -- Publication of notification in two
newspapers -- If the two newspapers carrying the publication of the
notification have reasonably wide circulation in the locality, then the
requirements of section 4(1) are complied with -- In that event, neither the
notification u/s 4(1), nor the consequential acquisition proceedings would be
open to challenge, on the ground of violation of Section 4 of the Act. The Special Deputy Collector, Land
Acquisition C.M.D.A. v. J. Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Land Acquisition Act, 1894 -- Notification u/s 4 -- Publication of notification in two
newspapers -- Pleadings -- If the newspapers in which the notification is
published were circulating in the locality, but did not have a reasonably wide
circulation in the locality, then neither the notification u/s 4(1) nor the
consequential acquisition proceedings, will become vitiated automatically -- If
the person aggrieved, apart from demonstrating that the two newspapers did not
have reasonably wide circulation in the locality, also asserts that as a
consequence, he did not have notice of the proposed acquisition that was
provided for in Section 4(1) of the Act, in the absence of evidence to the
contrary, the acquisition to the extent of the land of such person will be
vitiated -- But if such assertion is rebutted by the acquiring authority by
placing evidence to show that the person concerned had in fact notice (as for
example where he participated in the enquiry under section 5A of the Act), the
acquisition will not be vitiated. The
Special Deputy Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam &
others, 2012(1) L.A.R. 151 (SC).
Civil suit
Mutation proceedings – In a Civil suit, observation made in
the summary proceedings of the mutation by the revenue authorities starting
from the Assistant Collector Ist Grade upto the Financial Commissioner, shall
not prejudice the mind of the Civil
Court Civil Court
Mutation proceedings – Observation made in the summary
proceedings of the mutation by the revenue authorities starting from the
Assistant Collector Ist Grade upto the Financial Commissioner, shall not
prejudice the mind of the Civil
Court Civil Court
Clubbing of Three khewats
Partition of land – All the three khewats do not have a
common joint owners, different joint owners are in different khewats -- Held,
it would not be appropriate that all the khewats should have been consolidated
and should have been clubbed together -- Clubbing of khewats could have been
only possible if all the joint owners/co-sharers would have been common in all
the khewats. Darshan Singh v. Financial
Commissioner, Haryana and others, 2012(1) L.A.R. 114 (P&H).
Code of Civil Procedure, 1908 (V of 1908)
Order 37 Rule (1)(2) – Ejectment of tenant -- Recovery suit
– Leave to defend -- Ejectment order was passed on account of non-payment of
rent – Suit for recovery of arrears of rent -- A perusal of the application for
leave to defend shows that neither the rate of interest nor the amount claimed
by the plaintiff-petitioner had been disputed except to allege that the rent
note was forged – Held, in the absence of any prima facie material to
substantiate that the petitioner had made payment of the amount either by way
of rent or mense profits for the period he had occupied the premises, leave to
defend granted by the trial court was not justified -- Only plea regarding
forged rent note could not be a substantial defence entitling the defendant to
leave to defend. Dhrenderpal Gupta v.
Mahipal, 2012(1) L.A.R. 171 (P&H).
Section 65 -- Punjab Package Deal Properties
(Disposal) Rules, 1976, Rule 6 – Auction sale –Confirmation of – Effective date
of sale -- Auction property shall be vested in favour of the auction purchaser
from the date of its auction if auction sale is confirmed later on -- Section
65 C.P.C. may not be applicable in strict sense in the proceedings under the
Act, however, principles can be pressed in service to find out as to when
property shall vest in the auction purchaser -- Therefore, any allotment or
creation of third party interest during the intervening period shall cease to
have any effect immediately on the confirmation of auction sale. Jog Raj Singh v. State of Punjab
Section 149 – Deficiency in court fees – Make up of
deficiency – Right of -- Court has every power to allow the plaintiff to pay
the court fees in whole or in part at any stage of suit -- Payment of such
court fees, thereupon, shall have the force and effect of having been paid in
the first instance -- Power is exercised at the discretion of the court and a
party cannot claim it as a matter of right -- However, the discretion is
exercised where the court is satisfied that sufficient ground exists for not
paying the court fee in the first instance.
Sanjokta Devi v. Satwinder Kaur and another, 2012(1) L.A.R. 660 (P&H).
Section 151 – Punjab Village Common Lands (Regulation)
Act, 1961 (18 of 1961), Section 11 -- Applicability of CPC – CPC is not
applicable to the proceedings under the Act, but the principles of CPC, which
are in consonance with the justice, equity and good conscience, can very well
be extended by the Authorities under the Act. Hazara Singh and others v. The State of Punjab
Common purposes
Consolidation proceedings -- Gairmumkin marian -- Land
claimed is recorded as Gairmumkin marian in the Jamabandi – As per definition,
it is to be held that this land was being used for common purpose -- By virtue
of the provisions of the Act, 1961, this land became vested in the Gram
Panchayat – Such a land cannot be partitioned amongst the proprietors of the
village and could not have been allotted to private respondents for making up
deficiency in the value of the land. Gram Panchayat
Village Kakarwal v. Additional
Director, Consolidation of Holding Punjab , and
others, 2012(1) L.A.R. 618 (P&H).
Public premises laws -- Right of Proprietors –
Eviction of -- Land is reserved for common purpose i.e. Baisak Mawashian (place
of gathering of cattle) and school -- Such land would be public premises --
Collector can issue notice to get unauthorized occupant from such land evicted
-- Proprietors of the village can also be evicted from the land reserved for
common purpose. Puran and others v. The
Commissioner and others, 2012(1) L.A.R. 448 (P&H).
Vesting of -- East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 -- In revenue record in the ownership
column, names of the proprietors/right holders of the village are recorded and
in the cultivation column, the entry is Rafai Aam and under the column of kind
of land, the entry is shown as Gair Mumkin (un cultivable)-Baisak Mawashian
(place of gathering of cattle) and school – In extract of Register of
Consolidation proceedings it has been recorded as Baisak Mawashian (place of
gathering of cattle) – From above it is clear that disputed land in the revenue
record is reserved for common purposes, so, vests in the Panchayat for
management and control. Puran and others
v. The Commissioner and others, 2012(1) L.A.R. 448 (P&H).
Comparative merits
Appointment of Lambardar – Choice of Collector -- Criminal
case was pending against petitioner -- Further on comparative merits of the
candidates, the Collector found private respondent as suitable, more influence
in the village and has more land than petitioner -- Petitioner has encroached
upon gair mumkin chhapar (pond) and found him to be a person of suspicious
character being involved in criminal case -- Finding of the District Collector
has been concurred up to Financial Commissioner -- Choice of the Collector
cannot be set aside lightly, it can only be set aside if there is any
perversity or illegality – No illegality or perversity pointed out -- No ground
is made out which may warrant interference in judicial review. Gursev Singh v. State of Punjab and
others, 2012(1)
L.A.R. 665 (P&H).
Appointment of Lambardar – Choice of Collector –
District Collector has observed that petitioner’s availability to the villagers
was not sure while respondent would be easily available to the villagers for
the whole time and he is physically fit as per medical certificates and has
sufficient education -- Moreover he enjoys good reputation among the villagers
-- Further the choice of the District Collector confirmed by the Commissioner
should not be interfered with unless it suffers from illegality or perversity
-- Revision petition is dismissed being devoid of merits. Paramjit Singh v.
Gurcharan Singh, 2012(1)
L.A.R. 640 (FC Pb.).
Appointment of Lambardar – Choice of Collector -- Petitioner
has misappropriated the amount of the Cooperative Society of the village and
his services were terminated -- Besides this private respondent is an
Ex-serviceman and is a middle pass and he had been a member of the Market
Committee and he also remained Sarpanch of the village -- He also remained
Sarbrah Lambardar of the village for five years and is well conversant with the
works of the lambardari – Collector found private respondent to be a better
candidate for appointment to the post of Lambardar -- It is settled law that
the choice of the Collector cannot be set aside lightly. Harbhagwan Singh v. The Financial Commissioner (Revenue), Punjab and another, 2012(1) L.A.R. 198 (P&H).
Appointment of Lambardar – Petitioner is 36 years of
age, graduate and diploma holder in
computer education, he owns 6 kanal and 11 marlas of land in the village and 32
kanals in another village -- Petitioner further got Fixed Deposits to the tune
of Rs. 57 lac and 15 family planning cases – Private respondent to the
contrary, is 55 years of age, 9th class pass and owns 10 acres of land in the
village – Private respondent got Fixed Deposits worth Rs. 45,74,000/- and Fixed
Deposit to the tune of Rs. 8 lac in his own name; one LIC policy and 9 cases of
family planning, he himself has been a Sarpanch for one term, his Mother has
been Panch for one term -- Petitioner has been a member of the Block Samiti for
5 years and father of the petitioner also remained Sarpanch of the village –
Criminal complaint against respondent ended in a compromise u/s 323, 324, 326,
341 and 506 IPC -- Acquittal was recorded by the Judicial Magistrate – Held,
after considering overall merits/ disabilities, respondent has substantially
more social standing as compared to the petitioner – Private respondents’
appointment as Lambardar upheld. Bhim
Singh v. Financial Commissioner, Haryana & others, 2012(1) L.A.R. 162
(P&H).
Appointment of Lambardar – Petitioner is more educated
being matriculate and a retired teacher, private respondent is 7th pass -- When
applications were invited for appointment of Lambardar, the petitioner owned 19
kanals of land whereas respondent owned only 4 kanals and 10 marlas of land --
Merit amongst the candidates is required to be seen at the point in time when
applications are to be filled -- Subsequent addition of land would not be a
good ground to hold the order passed by the Collector to be perverse – Held,
petitioner has an edge over the private respondent. Hoshiar Chand v. The Financial Commissioner (Appeals-II), Punjab, Chandigarh
Appointment of Lambardar – Private Respondent is having more
land, son of deceased Lambardar, is also an ex-serviceman, served in the Army
for five years and his character has been found to be exemplary and also
remained as Sarbrah Nambardar of the village, who is well conversant with the
works of the Lambardar, whereas the reputation of petitioner is not clear as a
criminal case has been registered against him -- Petitioner is having less land
-- Only young age of the petitioner cannot be a ground to appoint him as
Lambardar -- Mere fact that a number of persons supported the candidature of
the petitioner does not give any right to the petitioner to be appointed as
Lambardar – Collector appointed petitioner as Lambardar – Order upheld. Swaran Singh v. State of Punjab and others,
2012(1) L.A.R. 195 (P&H).
Compensation for Bachat land
Bachat land – Acquisition of land – Right of
subsequent vendee -- Bachat land was acquired by the Government, compensation
was distributed to all the original proprietors as per their shares – Sale deed
only shows that all rights in connection with the land has been sold -- Even
the mutation was sanctioned regarding the land sold as mentioned in the sale
deed -- Mutation regarding share in shamlat land has not been sanctioned in
their favour -- If all the rights in connection of the land have been sold the
same would not automatically include the rights in shamlat land -- Suit
claiming that vendee are entitled to compensation regarding acquisition of the
said land, rightly dismissed. Maru Ram
and others v. Randhir and others, 2012(1) L.A.R. 556 (P&H).
Complainant
Right of -- Removal of Panch – In pursuance of the complaint
made by the complainant and on the basis of reports, the Director removed the
Panch – Appellate authority accepted the appeal without impleading the complainant
as a party – Held, since the complainant was the aggrieved party, so the
appellate authority slipped into a legal error in accepting the appeal of
private respondent, even without issuing notice to complainant, who was a
necessary party -- Matter remitted back to Appellate authority. Ashok Kumar v. State of Punjab and others,
2012(1) L.A.R. 188 (P&H).
Confirmation of Auction sale
Duty of authorities -- Every effort should be made by
the authorities hearing the objections against the auction sale to decide the
question of confirmation / cancellation of the auction sale at the earliest and
meanwhile, property subject matter of the auction sale should not be allowed to
exchange hands either by the parties before the authority hearing the question
of confirmation of the sale or by the authority himself. Jog Raj Singh v. State of Punjab
Effective date of sale -- Auction property shall be
vested in favour of the auction purchaser from the date of its auction if
auction sale is confirmed later on -- Section 65 C.P.C. may not be applicable
in strict sense in the proceedings under the Act, however, principles can be
pressed in service to find out as to when property shall vest in the auction
purchaser -- Therefore, any allotment or creation of third party interest
during the intervening period shall cease to have any effect immediately on the
confirmation of auction sale. Jog Raj
Singh v. State of Punjab
Constitution of India
Article 14 -- Haryana Urban Development Authority Act,
1977 (13 of 1977), Section 15 -- Rehabilitation & Resettlement Policies
framed by Haryana Urban Development Authority – Oustees claim – Reservation of
– Extent of -- Whether the policy of allotment of plot to an oustee, a distinct
and separate category, is exception to Article 14 of the Constitution of India
and whether, there can be any upper limit for allotment of plots to such
category – Held, oustees, whose land has been acquired either for residential,
commercial, institutional or any other purpose, form a separate and distinct
category and are entitled to be considered for allotment of a plot, as a part
of rehabilitation process -- Plots for the oustees including all other
constitutionally permissible classes of reservation cannot exceed 50%. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Article 14, 226 – Judicial review -- Constitution
enshrines and guarantees rule of law and the High Court under Article 226 of the
Constitution is empowered to ensure that each and every authority of the State,
including the government acts bonafide and within the limits of its power --
Where there is arbitrariness in the state action or such action is to help some
individual at the cost and peril of other similarly situated person(s)
resulting in discrimination leading to depriving him/them of their rights --
Article 14 steps in and judicial review strikes such an action to be not in
accordance with law and, thus, has to be struck down. Surinder Kumar and others v. State of Punjab and others, 2012(1) L.A.R. 277 (P&H DB).
Article 226,227 -- Punjab Land Revenue Rules, Rule 15
– Appointment of Lambardar – Choice of Collector – Writ jurisdiction -- After
considering the respective merits and demerits of the candidates, the District
Collector appointed private respondent as Lambardar – Choice of the Collector
in the matter of appointment of village Lambardar should not normally be
interfered -- Orders, containing valid reasons, cannot possibly be interfered,
while exercising the limited jurisdiction of this Court under Articles 226/227
of the Constitution of India, unless and until, the same are illegal and
perverse. Siri Ram v. Financial
Commissioner, Punjab and others, 2012(1) L.A.R. 7 (P&H).
Article 226/227 -- Punjab Land Revenue Rules, Rule 15
– Appointment of Lambardar – Choice of Collector -- Collector is the appointing
authority and in an advantageous position to examine the merits and demerits of
the candidates – Collector appointed private respondent as Lambardar, who is a
graduate and better qualified than the other two candidates, who has passed
Urdu examination and commanding good reputation in the village -- Naib
Tehsildar and S.D.O.(C) have recommended his name -- On the contrary, a
criminal case was registered against petitioner u/s 148, 323, 324, 326, 506/149
IPC, which was pending in the Court of JMIC – Orders, containing valid reasons,
cannot possibly be interfered with under Articles 226/227 of the Constitution
of India, unless and until, the same are illegal and perverse. Sukhdev Singh v. State of Punjab and
others, 2012(1) L.A.R. 102 (P&H).
Article 226/227 -- Punjab Municipal Act, 1911 (3 of
1911), Section 3(1), 67, 68-A, 84 – House tax assessment – Challenge to –
Appeal -- Writ Jurisdiction -- Nature of property, whether it is rented out or
in self occupation, present market value and rental income, require the
evidence -- Only the appellate authority can determine such questions of fact
based on the evidence – Petitioner has right to appeal, it cannot legally be
permitted to ignore/bye-pass these statutory remedies under the garb of
provisions of Articles 226/227 of the Constitution of India. Punjab Alkalies & Chemicals Limited v.
The Municipal Council, 2012(1) L.A.R. 1 (P&H).
Article 243T – Punjab Municipal Act, 1911 (3 of 1911),
Section 8 – Reservation of seats -- Section 8 of the Act is pari-materia with
the provisions of Article 243T -- Reservation of seats for women, Scheduled
Castes and Backward Classes alone is mandatory -- How such seats are rotated is
left to the State Government with play in joints as there may be situations,
where rotation of all the seats may not be feasible keeping in view the
population of the Scheduled Castes and Backward Classes being concentrated in a
pocket of a Municipality. Inderjit v.
State of Punjab
Article 243T – Punjab Municipal Act, 1911 (3 of 1911),
Section 8 – Reservation of seats -- Intention of Article 243T of the
Constitution and Section 8 of the Act is to provide reservation for women,
Scheduled Castes and Backward Classes in a Municipality – As to which seats are
reserved for them, is a matter of procedure and is directory – Therefore, while
rotating the wards, it is not necessary for the State Government to rotate the
wards with exactitude -- State has to be given play in knees joints to adjust
according to the requirements keeping in view the population of the Backward
Classes/Scheduled Castes voters. Inderjit
v. State of Punjab
Seventh Schedule, Entry 33,62, 97 -- Punjab
Entertainment Duty Act, 1955 (16 of 1955), Sections 2(d), 3 -- Entertainment
tax – Imposition of -- Legislative competence of State – Whether exclusion of
‘sport’ as a subject from taxing Entry 62, and inclusion of the same in
non-taxing Entry 33 of the State List of the Seventh Schedule of the
Constitution is intentional so as to deprive the State Legislature their
competence to tax ‘sport’ and leave that competence to Parliament under the
residuary Entry 97 of the Union List? – Held, State Legislature is competent to
impose entertainment duty/tax on entertainments and amusements, which include
sports and accordingly question is answered in favour of the revenue and
against the assessee. DLF Golf Resorts
Ltd. v. State of Haryana and others, 2012(1) L.A.R. 78 (P&H Full Bench).
Constructive notice
Notice arising by presumption of law from the existence of
certain specified facts and circumstances is constructive or deemed notice -- For
example, any person purchasing or obtaining a transfer of an immovable property
is deemed to have notice of all transactions relating to such property effected
by registered instruments till the date of his acquisition or, where the
statute provides for publication of the notification relating to a proposed
acquisition of lands in the Gazette and newspapers and by causing public notice
of the substance of the notification at convenient places in the locality, but
does not provide for actual direct notice, then such provision provides for
constructive notice; and on fulfillment of those requirements, all persons
interested in the lands proposed for acquisition are deemed to have notice of
the proposal regarding acquisition. The
Special Deputy Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam &
others, 2012(1) L.A.R. 151 (SC).
Conversion of use of building
Capital of Punjab (Development and Regulation) Act,
1952 -- Misuse of premises – Shop cum flat – Tourist lodge/Guest house – Sites
allotted for use as (SCFs), whereas petitioner are using F.F. and S.F. as guest
houses/lodges, which is not permissible -- Stand of the administration that
until and unless the petitioners seek firstly conversion for use as for the
office purposes and secondly to seek permission to use the office portion for
commercial purpose i.e. for tourist lodges and guest houses, the petitioners
are violating the provisions of the Act and the building is liable to be
resumed – Writ petition challenging to notices served u/s 8A of the 1952 Act
dismissed with liberty to the petitioners to seek conversion of the use of
buildings in terms of the scheme framed under the Act. Gurcharan Singh v. Union Territory Chandigarh & others, 2012(1) L.A.R. 330 (P&H DB).
Correction in Khasra Girdawari
Petitioner did not come present before A.C. 2nd
Grade despite proclamation -- Plea regarding ex-parte order is not tenable --
Moreover A.C. 2nd Grade had passed the order after visiting the land in dispute
where he found respondents in cultivating possession of land -- No
illegality/irregularity or any perversity in the order of the lower revenue
courts. Dev Raj and others v. Commissioner, Jalandhar Division and others, 2012(1) L.A.R. 628 (FC Pb.).
Countermanding of Declaration of result
Punjab State
Election Commission Act, 1994 – Respondent No.5 was declared as elected
unopposed on 19.5.2008 – On written complaint, election of the Gram Panchayat
fixed for 26.5.2008 was countermanded – Thereafter elections were directed to
be held on 22.6.2008 -- Respondent No.5 neither challenged the order
countermanding the election nor filed nomination for the said election nor
challenged the declaration of the result of petitioner No.1 as having been
elected -- However, the Deputy Commissioner vide letter, stated that who had
filed their nomination papers earlier were to be elected as having been
declared elected unopposed -- Consequently the name of respondent No.5 was
shown as having been elected in form No. IX – Held, order countermanding the
election of respondent No.5 was clearly illegal – Contention that respondent
No.5 acquiesced would not avail against the statutory provisions. Paramjit Kaur and others v.
State of Punjab and others, 2012(1) L.A.R. 343
(P&H).
Cultivating possession
Shamilat deh – In the absence of any evidence that the
land in dispute was in individual cultivating possession of a co-sharer, not
being an excess of his share, on or before 26.1.1950, the petitioners are not
entitled to any benefit under Section 2(g)(viii) of the 1961 Act. Sher Singh and others v. Director Rural
Development & Panchayat, Punjab and
others, 2012(1) L.A.R. 677 (P&H DB).
Shamilat deh – No material to prove partition and
cultivating possession of the land in dispute, as provided by Section 2(g)
(iii) of the 1961 Act, thereby negating the plea raised under Section 2(g)(iii)
of the 1961 Act. Sher Singh and others
v. Director Rural Development & Panchayat, Punjab
and others, 2012(1) L.A.R. 677 (P&H DB).
Death of landlord
Rent Act (Haryana) -- Eviction petition – Conversion
of petition u/s 13 to 13-A -- Landlord was serving in the Armed Forces died --
By application Lr’s had given up all other grounds and had prayed for treating
the ejectment application under the provisions of section 13-A of the Act –
Held, no prejudice has been caused to the tenant as in view of the proviso to
section 13-A of the Act, the respondents could have filed an independent
petition in their own right for eviction of the petitioner from the demised
premises being dependent of landlord.
Surinder Kumar v. Smt. Leela Sharma and others, 2012(1)
L.A.R. 318 (P&H).
Death
of landowner
Haryana Ceiling on Land Holdings Act, 1972 -- Surplus
area – Permissible area – So long as the Collector's determination is a subject
of an appeal or a challenge before this Court under Article 226 or in further
proceedings before the Hon'ble Supreme Court, it must only be taken that the
determination has not been finally made and consequently, a death of the
landowner would certainly cause affectation of the surplus area which would
require to be redetermined in the hands of the heirs of the deceased landowner
-- So long as the proceedings are still pending, it would inevitably mean that
the holding of the deceased that has fallen to be distributed amongst the heirs
shall require a fresh reckoning for determination of surplus – Case would
require to be remitted to the competent authority under the 1972 Act. Sardara
Singh’s case 2008(2) RCR (Civil) 744, relied. Kehar Singh (deceased) through his LRs v. Financial Commissioner,
Haryana, Chandigarh
Declaration of result
Countermanding
of -- Punjab State Election Commission Act, 1994 – Respondent No.5 was declared
as elected unopposed on 19.5.2008 – On written complaint, election of the Gram
Panchayat fixed for 26.5.2008 was countermanded – Thereafter elections were
directed to be held on 22.6.2008 -- Respondent No.5 neither challenged the
order countermanding the election nor filed nomination for the said election
nor challenged the declaration of the result of petitioner No.1 as having been
elected -- However, the Deputy Commissioner vide letter, stated that who had
filed their nomination papers earlier were to be elected as having been
declared elected unopposed -- Consequently the name of respondent No.5 was
shown as having been elected in form No. IX – Held, order countermanding the
election of respondent No.5 was clearly illegal – Contention that respondent
No.5 acquiesced would not avail against the statutory provisions. Paramjit Kaur and others v.
State of Punjab and others, 2012(1) L.A.R. 343
(P&H).
Defaulter of loan
Appointment of Lambardar – Relevant date --
Eligibility of a candidate for the post of Lambardar is to be seen on the date
of appointment of the Lambardar -- On the date of submission of the application
as well as on the date of his appointment as Lambardar, the appellant was
defaulter of three Co-operative banks/institutions, which is one of the
dis-qualifications -- Payment of the loan amount by the appellant subsequently
was meaningless and was not to be taken into consideration. Jarnail Singh v. Financial Commissioner
(Appeals) Punjab, Chandigarh
Deficiency in court fees
Make up of deficiency – Right of -- Court has every
power to allow the plaintiff to pay the court fees in whole or in part at any
stage of suit -- Payment of such court fees, thereupon, shall have the force
and effect of having been paid in the first instance -- Power is exercised at
the discretion of the court and a party cannot claim it as a matter of right --
However, the discretion is exercised where the court is satisfied that
sufficient ground exists for not paying the court fee in the first instance. Sanjokta Devi v. Satwinder Kaur and
another, 2012(1) L.A.R. 660 (P&H).
Delay and laches
HUDA Matters -- Oustees claim – Whether an oustee can
be permitted to raise a grievance in respect of non-allotment of a plot on
failure to apply for a plot in pursuance of public advertisement issued for the
reason of delay and laches – Held, no merit in the argument that there can be
any delay and laches, if an application is not made for allotment of plot in
pursuance of public advertisement issued at one stage or the other -- An
oustee, whose land has been acquired, does not lose his status as that of an
oustee merely for the reason that he has not applied for a plot at an earlier
stage -- He has a right to seek allotment of a plot as a separate and distinct
category as and when advertisements are issued inviting applications from the
eligible applicants including the oustees. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
Land Acquisition Act, 1894 -- Challenge to Acquisition of
land – Award not passed within statutory period -- Writ petition was filed
immediately after pronouncement of the award – Could not have been non-suited
by invoking the rule of laches. R.
Indira Saratchandra v. State of Tamil Nadu & others, 2012(1) L.A.R. 136
(SC).
Punjab Package Deal Properties (Disposal) Rules, 1976 --
Allotment of land – Husband of the petitioner had made supreme sacrifice of his
life for the country during the Indo-Pak War of 1965 -- Case of the petitioner
for allotment of land to her was duly recommended by the concerned Commanding
Officer – Petitioner is directed to move an application and the same shall be
sympathetically considered by the competent authority, without adhering to the
technical objection of non-filing of the application and by passing a
well-reasoned speaking order, within a period of two months thereafter --
Whether the Government is duty bound to consider the case of petitioner on
merits or not? – Answer must obviously be in the affirmative. Jagir Kaur v. The State of Punjab
Delay in challenge to Mutation entries
Mutation was sanctioned in favour of the gram
panchayat way back in 1964 -- If petitioners did not challenge any entry for
long i.e. for more than 46 years, now they shall be debarred from challenging
the same in view of principle of waiver, acquiescence and estoppel -- Long
standing entries have strong presumption of their correctness unless proved by
cogent evidence otherwise. Dharambir and
another v. Financial Commissioner, Haryana and others, 2012(1) L.A.R. 265 (P&H).
Delay in instalments
HUDA matters – Resumption order – Validity of --
Whether due to delay in payment, resumption order can be sustained – Held,
resumption is very harsh measure and it should be resorted only when the
allottee has no intention to pay the instalments. Haryana Urban Development Authority, Faridabad
Delivery
of possession
Power of Assistant Consolidation Officer --
Consolidation proceedings have been completed in the village, claim of
ownership of the petitioners was negatived in the civil suits -- Appropriate
authorities are required to follow the due/established procedure to implement
the orders or to execute the decrees in accordance with law and not otherwise –
ACO did not have the power/jurisdiction to write a letter to SDM to deliver the
possession of the land in litigation in a casual manner. Sher Singh (since deceased) through his LRs & Another v. State of Haryana
Requirement of -- Mutation – Even if there is no
actual delivery of possession, even then, AC 2nd Grade was duty bound to enter
the mutations on the basis of registered sale deeds as contemplated u/s 34 --
In case of entertaining any kind of doubt of acquisition of any interest in the
land by other, then he was duty bound to refer the same (disputed mutations) to
the Collector for its adjudication, as envisaged u/s 35. Smt.Nirmaljit Kaur and others v. State of Punjab
Demolition of Water Course
Haryana Canal and Drainage Act, 1974 – Alternative
water course -- While dealing with an application u/s 24 of the Act, the canal
authorities cannot provide for alternative watercourse -- Scope of Section 24
is very limited -- Canal authorities are bound to record a finding with regard
to existence of the watercourse and its demolition -- Unless and until the
canal authorities come to a conclusion that the water course has been
dismantled then authorities can allow the application for restoration. Ram Kumar v. State of Haryana and others,
2012(1) L.A.R. 589 (P&H).
Northern India Canal and Drainage Act, 1873 – Restoration of -- Held, the orders of the
canal authorities, particularly ordering restoration of the water course, with
a clear finding that prior to its demolition, the water course was running and
irrigating the fields, should not be interfered in the writ jurisdiction --
Even if the water course was not sanctioned under the provisions of the Act,
and if the same was in running condition for a long time, it should have been
ordered to be restored. Gurmail Singh
and another v. Superintending Canal Officer, Sirhind Canal Circle, Ludhiana and
others, 2012(1) L.A.R. 642 (P&H DB).
Northern India Canal and Drainage Act, 1873 – Restoration of -- Orders passed by Canal
authorities does not indicate that those orders are non-speaking and do not
assign good reasons for ordering restoration of the water course – Remand of
the case to the Divisional Canal Officer to decide the matter afresh, is not
justified -- Canal matters, particularly demolition of the water course, should
be decided expeditiously, without any delay, as demolition of the water course
adversely affects the irrigation of the fields of the farmers. Gurmail Singh and another v. Superintending
Canal Officer, Sirhind Canal Circle, Ludhiana and others, 2012(1) L.A.R. 642
(P&H DB).
Northern India Canal and Drainage Act, 1873 -- Restoration of -- On receiving the
application u/s 30-FF (1), the Divisional Canal Officer was required to make an
enquiry as he deemed fit and issue notice to the person who demolished,
altered, enlarged or obstructed the water course, and after providing
opportunity of hearing to the defaulter, order for restoration of the said
water course to its original condition -- Divisional Canal Officer could not
have refused to restore a water course, only on the ground that the water
course was not sanctioned according to the provisions of the Act. Gurmail Singh and another v.
Superintending Canal Officer, Sirhind Canal Circle, Ludhiana and others,
2012(1) L.A.R. 642 (P&H DB).
Restoration of -- Canal authorities have admitted that
watercourse was in existence and was running prior -- Only objection raised by
the S.C.O. was that Act does not permit restoration of the water course which
has been demolished and was not running -- Contention of the S.C.O. is not
sustainable in law -- Sub Divisional Canal Officer may, after making such
enquiry as he may deem fit, require, by a notice in writing served on the
persons found to be responsible for so demolishing, altering, enlarging,
obstructing or causing damage, to restore, at his own cost, the watercourse or
temporary watercourse to its original condition within such period not
exceeding 21 days, as may be specified in the notice. Ram Kumar v. State of Haryana and others, 2012(1) L.A.R. 589 (P&H).
Restoration of -- Concurrently finding by Canal
authorities of the existence of water course, which was dismentalled by the
petitioners -- No other alternative water course for irrigation of land of
private respondent – Canal Authorities have rightly ordered the restoration of
the water course. Bharat Singh and
others v. Divisional Canal Officer and others, 2012(1) L.A.R. 372 (P&H).
Restoration of -- Contention that alleged watercourse
was not in existence over the common watt of Killa Nos.8,9,10 and 11,12,13,
rather, the watercourse existed in Killa No.8,9,10 -- Canal authorities, after
considering the verification report given by the Ziledar and visiting the spot,
found as a fact that a watercourse was existing and running on the Killa
Nos.8,9,10 and 11,12,13, and after coming to the said conclusion, the said
watercourse was ordered to be restored being illegally demolished by the
appellant – Learned Single Judge has rightly declined to interfere in the
concurrent findings of fact recorded by the canal authorities. Sukhwinder Pal v. Superintending Canal
Officer, Ferozepur and others, 2012(1) L.A.R. 696 (P&H DB).
Deposits made in Bank
Lease – Tenancy – Occupants did not send any communication
informing the owner about the deposits nor did the challans showed that the
deposits were being made towards rent -- There were no rent receipts from the
appellants -- Respondents did not choose to send the rents by postal money
orders -- There is no explanation as to non-deposit of the alleged rents for
the earlier period – Held, deposits were not bonafide. Dnyaneshwar Ranganath Bhandare & Another v. Sadhu Dadu Shettigar
(Shetty) & Another, 2012(1) L.A.R. 120 (SC).
Discrimination
Land Acquisition Act, 1894 -- Acquisition of land –
Challenge to –Vacant land of TDI was not included in the acquisition, for which
either CLU was applied but not granted till the date of notification u/s 6 of
the Act and in three instances CLU was applied for after the issuance of
notification u/s 6 of the Act – Petitioner’s claim is much better than that of
TDI for the reason that they had already obtained the necessary sanctions and
approval from the Competent Authority for constructing and occupying their
premises -- This itself is a good ground for quashing the notification issued
u/s 6 of the Act. Surinder Kumar and
others v. State of Punjab and others, 2012(1)
L.A.R. 277 (P&H DB).
Dismissal of eviction petition
Title suit – Resjudicata -- Dismissal of a petition
u/s 7 of the 1961 Act does not operate as resjudicata in a subsequent petition
filed u/s 11 of the 1961 Act. Maghi Ram
(deceased) through his LRs. and another v. Gram Panchayat, Chirwa and others,
2012(1) L.A.R. 519 (P&H DB).
Displaced Persons (Compensation and Rehabilitation) Act,
1954 (44 of 1954)
Section 33 -- Punjab Package Deal Properties (Disposal) Act,
1976 (21 of 1976), Section 2(1-A) -- Evacuee property – Allotment of land -- As
per the Jamabandi, the land in question has been recorded under the ownership
of the Central Government, which indicates that it is not the package deal
property -- Appellant was unable to show any document, indicating that the
property in question was a package deal property – Appellant is not entitled
for allotment of the same under the Punjab Package Act. Shamsher Singh v. State of Punjab
Disqualification
Appointment of Lambardar – Father was defaulter – Held, for
the fault of father, he cannot be deprived of his right and his merit cannot be
ignored on this ground alone. Jai
Bhagwan v. Financial Commissioner, Haryana and others, 2012(1) L.A.R. 204
(P&H).
Appointment of Lambardar – For the fault of the family
members, a person claiming his right in his individual capacity cannot be
deprived of those rights. Jai Bhagwan v.
Financial Commissioner, Haryana and others, 2012(1) L.A.R. 204 (P&H).
Appointment of Lambardar – Petitioner did not intimate
the authorities about the death of his father, who was the earlier Lambardar --
Conduct of the petitioner is certainly despicable insomuch as he continued to
collect land revenue and continued to perform the duties of Lambardar, without
any legal authority to do the same -- In such circumstances, a person like the
petitioner, if allowed to be appointed as Lambardar, would not make a good
choice. Bhajan Singh v. State of Punjab
& Ors., 2012(1) L.A.R. 310 (P&H).
Punjab Panchayat matters -- Panch of village --
Illegal possession of Gram Panchayat land – Possessing land of the Gram
Panchayat illegally is a disqualification in section 208 (i)(k) of the Act 9 of
1994 which is conspicuously absent in Section 11 of Act No.19 of 1994 – Since
Act No.9 of 1994 is later in time, therefore, the provision of Act No. 9 of
1994, which are not consistent with the provisions of Act of 19 of 1994 would
not be applicable. Balbir Singh v.
Karnail Singh & others, 2012(1) L.A.R. 255
(P&H).
Duty of authorities
Auction sale – Confirmation/cancellation of – Every
effort should be made by the authorities hearing the objections against the
auction sale to decide the question of confirmation / cancellation of the
auction sale at the earliest and meanwhile, property subject matter of the
auction sale should not be allowed to exchange hands either by the parties
before the authority hearing the question of confirmation of the sale or by the
authority himself. Jog Raj Singh v.
State of Punjab
Duty
of Collector
Appointment of Lambardar – Appointment of Lambardar is
administrative function and is prerogative of the District Collector, being
In-charge of the Administration -- It is the duty of the Collector to appoint
such person in the office of Lambardar, who is otherwise eligible and competent
to carry out the duties efficiently.
Siri Ram v. Financial Commissioner, Punjab and others, 2012(1) L.A.R. 7 (P&H).
Duties of Lambardar
A Lambardar is required to know the villagers and other
details in the estate for performance/ discharge of his duties -- A Lambardar
is required to remain present, by and large at all hours, in the village for
discharge of his duties -- Duties involve active interaction with the
villagers/residents of the area -- Headman/ Lambardar is required to be aware
of the deaths in the village for various reports to be made -- He is required
to be aware of the pensioners residing in the estate; marriage/ re-marriage of
a female drawing family pension residing in the estate or in case any such
person goes absent from estate -- He is also required to be aware of the
encroachments on roads or Government buildings within the boundaries of estate
-- He is required to conduct crop inspections so as to assist the Collector --
He is further required to attend the summons of authorities having jurisdiction
in the estate and assist all officers of the Government in execution of their
public duties. Bhim Singh v. Financial
Commissioner, Haryana & others, 2012(1) L.A.R. 162 (P&H).
Section 2(bb)(iii), 42 – Punjab Village Common Lands
(Regulation) Act, 1961 (18 of 1961), Section 4 --Consolidation proceedings --
Gairmumkin marian -- Common purposes -- Land claimed is recorded as Gairmumkin
marian in the Jamabandi – As per definition, it is to be held that this land
was being used for common purpose -- By virtue of the provisions of the Act,
1961, this land became vested in the Gram Panchayat – Such a land cannot be
partitioned amongst the proprietors of the village and could not have been
allotted to private respondents for making up deficiency in the value of the
land. Gram Panchayat
Village Kakarwal v. Additional
Director, Consolidation of Holding Punjab , and
others, 2012(1) L.A.R. 618 (P&H).
Section 18 -- Bachat land – Acquisition of land –
Compensation for Bachat land -- Right of subsequent vendee -- Bachat land was acquired
by the Government, compensation was distributed to all the original proprietors
as per their shares – Sale deed only shows that all rights in connection with
the land has been sold -- Even the mutation was sanctioned regarding the land
sold as mentioned in the sale deed -- Mutation regarding share in shamlat land
has not been sanctioned in their favour -- If all the rights in connection of
the land have been sold the same would not automatically include the rights in
shamlat land -- Suit claiming that vendee are entitled to compensation
regarding acquisition of the said land, rightly dismissed. Maru Ram and others v. Randhir and others, 2012(1) L.A.R. 556
(P&H).
Section 18 -- Bachat land – Shamilat land -- Jumla
Mushtarka Malkan Hasad Rasad Khewat -- Some land deducted from holding of
proprietors by imposing a pro-rata cut on holdings at the time of consolidation
to be used for common purposes of the entire proprietary bodies – Bachat land
is a land which was left after utilising the land for common purposes, as
mentioned in consolidation scheme -- Said land is normally recorded in the
revenue record as Jumla Mushtarka Malkan Hasad Rasad Khewat -- Same also
describes the share of each proprietor, which is to the extent of land
contributed by such land owners -- Management and control of bachat land does
not vest in Gram Panchayat. Maru Ram and
others v. Randhir and others, 2012(1) L.A.R. 556 (P&H).
Section 21 – Delivery of possession of land – Power of
Assistant Consolidation Officer -- Consolidation proceedings have been
completed in the village, claim of ownership of the petitioners was negatived
in the civil suits -- Appropriate authorities are required to follow the
due/established procedure to implement the orders or to execute the decrees in
accordance with law and not otherwise – ACO did not have the power/jurisdiction
to write a letter to SDM to deliver the possession of the land in litigation in
a casual manner. Sher Singh (since
deceased) through his LRs & Another v. State of Haryana
Section 23-A -- East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Rules, 1949, Rule 16(ii) – Common purposes –
Vesting of -- In revenue record in the ownership column, names of the
proprietors/right holders of the village are recorded and in the cultivation
column, the entry is Rafai Aam and under the column of kind of land, the entry
is shown as Gair Mumkin (un cultivable)-Baisak Mawashian (place of gathering of
cattle) and school – In extract of Register of Consolidation proceedings it has
been recorded as Baisak Mawashian (place of gathering of cattle) – From above
it is clear that disputed land in the revenue record is reserved for common
purposes, so, vests in the Panchayat for management and control. Puran and others v. The Commissioner and
others, 2012(1) L.A.R. 448 (P&H).
Section 23-A -- Haryana Public Premises and Land
(Eviction and Rent Recovery) Act, 1972 (24 of 1972), Section 2(e),4,5 – Common
purposes – Public premises -- Right of Proprietors – Eviction of -- Land is
reserved for common purpose i.e. Baisak Mawashian (place of gathering of
cattle) and school -- Such land would be public premises as defined under
Section 2(e) of the Act -- Collector can issue notice to get unauthorized
occupant from such land evicted -- Proprietors of the village can also be
evicted from the land reserved for common purpose. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448
(P&H).
Section 23-A, 42-A -- Punjab Village Common Lands
(Regulation) Act, 1961 (18 of 1961), Section 2(g) -- East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Rules, 1949, Rule 16(ii) –
Jumla Malkan & Dikar Haqdaran Hasab Rasad Rakba Khewat -- Makbuja Nagar
Panchayat Rafaae Aam & Share Aam – Shamilat deh – Vesting of -- Land in the
revenue record has been described as Jumla Malkan & Dikar Haqdaran Hasab
Rasad Rakba Khewat and in the cultivation column, it has been shown as Makbuja
Nagar Panchayat Rafaae Aam & Share Aam – In the latest jamabandi, the Gram
Panchayat has been shown as the owner -- Such land falls in the definition of
Shamlat as defined under Section 2(g) of the Act -- No iota of evidence on
record to indicate that what was the share of the petitioners in the
proprietary body nor they have proved their possession over the land prior to
26.1.1950 -- As per Section 23A and Rule 16 (ii) of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948, such land vests for
management and control in the Gram Panchayat -- Entire land being given on
lease to various persons for year to year basis and the income derived from it,
is being used for common purposes of the village -- After about 50 years of the
Act, the petitioners cannot claim any right over the land in question -- Even
the Bachat land cannot be partition amongst the original cultivators --
Concurrent finding of fact recorded by the revenue authorities, the Gram
Panchayat has been rightly held to be the owner of the land in dispute, upheld. Surinder Singh and others v. Joint
Development Commissioner/IRD and others, 2012(1) L.A.R. 530 (P&H DB).
Section 42 -- East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Rules, 1949, Rule 18 -- Delay of 40 years -- Delay
in itself has been held to be a good ground to decline interference. Reference
can be made to Gram Panchayat Kakran’s case (1997) 8 SCC 484, Gram Panchayat,
Bhattian Bet’s case, 2005 (2) RCR (Civil) 246, and Joginder Nath alias Joginder
Pal’s case 2010 (2) RCR (Civil) 247.
Jaswant Singh and others v. Additional Director, Consolidation of Holdings
Punjab and others, 2012(1) L.A.R. 552 (P&H).
Section 42 – East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Rules, 1949, Rule 18 -- Limitation -- Delay of 34 years in
filing the petition before the consolidation authorities – Prayer made is that
there was shortage of 12 annas of land, which was against the scheme and that
shortage was bound to be made good – Held, it was for the party to give some
explanation for the delay in filing the petition u/s 42 of the Act and it was
for that Additional Director to record a finding that the cause so disclosed
was sufficient to condone the delay – Delay is unreasonable and inordinate and
the same was liable to be dismissed. Gram Panchayat
Village Kakarwal v. Additional
Director, Consolidation of Holding Punjab , and
others, 2012(1) L.A.R. 618 (P&H).
Section 42 – Punjab Land Revenue Act, 1887 (XVII of 1887),
Section 45 -- Section 45 of the Punjab Land Revenue Act provides that a person
aggrieved by a revenue entry shall have to file a suit for declaration --
Petitioners having unsuccessful, could not approach consolidation authorities
to correct the revenue record, particularly when revenue entries were recorded,
three to four decades before consolidation proceedings. Aattish Kumar and another v. State of Haryana and others, 2012(1) L.A.R. 663 (P&H DB).
Rule 16(ii) – East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 23-A -- Common
purposes – Vesting of -- In revenue record in the ownership column, names of
the proprietors/right holders of the village are recorded and in the
cultivation column, the entry is Rafai Aam and under the column of kind of
land, the entry is shown as Gair Mumkin (un cultivable)-Baisak Mawashian (place
of gathering of cattle) and school – In extract of Register of Consolidation
proceedings it has been recorded as Baisak Mawashian (place of gathering of
cattle) – From above it is clear that disputed land in the revenue record is
reserved for common purposes, so, vests in the Panchayat for management and
control. Puran and others v. The
Commissioner and others, 2012(1) L.A.R. 448 (P&H).
Rule 16(ii) – Punjab Village Common Lands (Regulation)
Act, 1961 (18 of 1961), Section 2(g) -- East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 23-A, 42-A --
Jumla Malkan & Dikar Haqdaran Hasab Rasad Rakba Khewat -- Makbuja Nagar
Panchayat Rafaae Aam & Share Aam – Shamilat deh – Vesting of -- Land in the
revenue record has been described as Jumla Malkan & Dikar Haqdaran Hasab
Rasad Rakba Khewat and in the cultivation column, it has been shown as Makbuja
Nagar Panchayat Rafaae Aam & Share Aam – In the latest jamabandi, the Gram
Panchayat has been shown as the owner -- Such land falls in the definition of
Shamlat as defined under Section 2(g) of the Act -- No iota of evidence on
record to indicate that what was the share of the petitioners in the
proprietary body nor they have proved their possession over the land prior to
26.1.1950 -- As per Section 23A and Rule 16 (ii) of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948, such land vests for
management and control in the Gram Panchayat -- Entire land being given on
lease to various persons for year to year basis and the income derived from it,
is being used for common purposes of the village -- After about 50 years of the
Act, the petitioners cannot claim any right over the land in question -- Even
the Bachat land cannot be partition amongst the original cultivators --
Concurrent finding of fact recorded by the revenue authorities, the Gram
Panchayat has been rightly held to be the owner of the land in dispute, upheld. Surinder Singh and others v. Joint
Development Commissioner/IRD and others, 2012(1) L.A.R. 530 (P&H DB).
Rule 18 -- East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 -- Delay of 40
years -- Delay in itself has been held to be a good ground to decline
interference. Reference can be made to Gram Panchayat Kakran’s case (1997) 8
SCC 484, Gram Panchayat, Bhattian Bet’s case, 2005 (2) RCR (Civil) 246, and
Joginder Nath alias Joginder Pal’s case 2010 (2) RCR (Civil) 247. Jaswant Singh and others v. Additional
Director, Consolidation of Holdings Punjab and others, 2012(1) L.A.R. 552
(P&H).
Rule 18 -- East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Limitation --
Delay of 34 years in filing the petition before the consolidation authorities –
Prayer made is that there was shortage of 12 annas of land, which was against
the scheme and that shortage was bound to be made good – Held, it was for the
party to give some explanation for the delay in filing the petition u/s 42 of
the Act and it was for that Additional Director to record a finding that the
cause so disclosed was sufficient to condone the delay – Delay is unreasonable
and inordinate and the same was liable to be dismissed. Gram Panchayat
Village Kakarwal v. Additional
Director, Consolidation of Holding Punjab , and
others, 2012(1) L.A.R. 618 (P&H).
Section 2(a), 2(d), 13-A – Specified landlord --
Building – Non-residential building – When the eviction petition was filed,
there was no access to the main residential building through the demised
premises (shop) -- Court is to take into consideration the position of the
demised premises at the time of the filing of the eviction petition – Held, it
has to be essentially accepted that it was segregated portion of the main
building and was an independent unit falling within the definition of a
building itself in terms of Section 2(a) of the Act – Demised premises is not a
residential building -- Since it was let out for non-commercial purpose, the
application of the landlord under Section 13-A is not maintainable. M/s Bharat Electricals and another v. Dr.
Sukhdev Raj Goyal and another, 2012(1) L.A.R. 422 (P&H).
Section 7, 13(2)(i) -- Agreed rent – Expiry of lease –
Penal rent – Nature of -- Agreed rent fixed was Rs.77,034/- per month -- It was
agreed in para no.5 of the lease deed “that in case the lessees do not vacate
the premises at the end of 3 years from the date of commencement of the lease
period i.e. by 31.07.2010 and no mutual agreed terms are settled between the
lessor and the lessees on or before 01.05.2010 the lessees will be liable to
pay rent of Rs.1,50,000/- per month, and the lessor can take over the premises
from the lessees -- Since this condition was accepted by the tenants who have
not challenged the same in the written statement as a penal provision, the
protection of Section 7 of the Act is not available to them -- Moreover, tenants
has failed to show as to how the amount of Rs.1,50,000/- was within the
definition of fine or premium -- It is permissible for the parties to provide
for increase in rent by agreement as rent is defined as periodical payment for
use of another's property and increase in rent by agreement does not take the
character of fine or premium. Smt. Hardev Kaur’s case, 1992(2) PLR 712 relied. Smt. Navjeet Chadha and others v. Ravinder
Sandhu, 2012(1) L.A.R. 533 (P&H).
Section 13 – Bonafide need -- Landlord is the best
judge of his needs and the tenant cannot dictate his terms regarding the
suitability of the premises. Onkar Singh
v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).
Section 13 – Eviction of tenant – Stay of – Mesne
profit -- Landlord is entitled to the payment of mesne profits as assessed by
Court after passing of the eviction order till its possession is handed over to
the landlord -- Mesne profits of the demised premises assessed and made payable
with effect from the date on which the High Court admitted the revision
petition and had stayed the dispossession of the tenant. M/s Bird Travels (P) Ltd. v. Smt. Amarjit Kaur and others, 2012(1) L.A.R. 313 (P&H).
Section 13 (2)(ii)(b) -- Change of user -- Admitting
the change of user the tenant took defence that the same had been done with the
consent and permission of the landlord – Tenant failed to adduce any evidence
on record – Written consent of landlord is required, even the knowledge of the
landlord of the change of user, may be even from the very inception of the
tenancy, would not absolve the tenant for liability for eviction on that ground
– Even long user of the changed business does not amount to consent of the
landlord to avoid eviction under the Rent Act – Eviction order upheld.
Dhanpati’s case 1988 (1) R.C.R. (Rent) 163 (P&H) & K.R. Verma’s case
2006(2) L.A.R. 4 relied. Rakesh Kumar v.
Darshan Singh, 2012(1) L.A.R. 271
(P&H).
Section 13 (3)(2)(i) – Arrears of rent – Assessment of
provisional rent – Non-tendering of -- Tenant failed to deposit the provisionally
assessed rent on the due date -- Order of ejectment has to follow and nothing
more is required to be done and the Rent Controller had no jurisdiction at all
to extend time. Mrs. Birinder Khullar’s case 2011 (1) RCR (Rent) 307 &
Rakesh Wadhawan’s case AIR 2002 Supreme Court 2004, relied. Kundan Singh v. Smt. Roop Rani and another, 2012(1) L.A.R. 262 (P&H).
Section 13(2)(i) -- Arrears of rent – Provisional
assessment of – First date of hearing -- Extension of – Right of -- Rent
Controller did not assess the exact amount of provisional rent to be tendered
by the tenant – But tenant has not requested to the Rent Controller that he is
unable to pay the rent on the first date of hearing in the absence of
assessment of exact amount rather the prayer was that entire arrears of rent is
not available in time and an adjournment was sought for payment of the balance
amount after offering Rs.20,000/- -- Tenant can challenge, but cannot escape
his eviction if he does not tender the provisionally assessed rent on the first
date of hearing -- Said arrears are tendered by the tenant on account of
conditional stay which does not take away the right already accrued in favour
of the landlord – Held, non-availability of provisionally assessed rent on the
date of its tender is not a ground for extension of time and the eviction order
passed on that account cannot be set aside even on the ground that the Rent
Controller had failed to assess the exact amount of rent. Kailash Chandra Kaushik v. Kamaljeet Rangi, 2012(1) L.A.R. 514
(P&H).
Section 13(2)(ii)(a) – Sub-tenancy -- Landlord is
required to prove that tenant has delivered the possession to the sub tenant
for consideration/rent and tenant has no control over the business being run in
the shop – Landlord failed to prove these important facts, to the contrary,
tenant has established that tenant is running two wheelers repair shop and
still in occupation of the possession of the shop in dispute – Held,
sub-tenancy not proved. Sohan Singh
Sidhu v. Charanjit Singh, 2012(1) L.A.R. 30 (P&H).
Section 13(2)(ii)(a), 15(5) – Sub-tenancy – Revisional
Authority’s Power -- Question of sub tenancy is a question of law also -- While
exercising revisional powers High Court has to satisfy as to whether
ingredients of sub tenancy are proved or not -- If High court finds that
ingredients are not proved then it would be open for this Court to disturb
judgments/findings of both the Courts below on the question of sub tenancy. Sohan Singh Sidhu v. Charanjit Singh,
2012(1) L.A.R. 30 (P&H).
Section 13(3)(a)(i) -- Bonafide need -- Landlord,
being a retired man, wants to come back to Chandigarh where he owns property in
the shape of SCF where he wants to start his business of consultancy services
for which the tenant cannot dictate terms to the landlord that since the
landlord has got a house in Mumbai which, of course, is in the name of his
wife, therefore, he should not shift to Chandigarh in pursuit of new vocation. Shri Shiv Kumar v. Shri Chander Mohan
Sharma and another, 2012(1) L.A.R. 700 (P&H).
Section 13 (3)(a)(i)(a) – Bonafide need – Suitability
of accommodation -- Tenant is no one to dictate his terms to the landlord in
the matter of bona fide requirement with regard to suitability of the
accommodation. Rakesh Kumar v. Darshan
Singh, 2012(1) L.A.R. 271 (P&H).
Section 13 (3)(a)(i)(a) – Bonafide need of sons --
Petitioner is to settle his sons in business and has also been proved on file
that he has got no other such shop available to him -- Simply because they were
doing tempo business does not mean that they were precluded from starting their
own independent business -- Law does not expect from the landlord to remain
idle and to face starvation during the pendency of the petition. Rakesh Kumar v. Darshan Singh, 2012(1) L.A.R. 271 (P&H).
Section 13 (3)(a)(i)(a) – Bonafide need of sons --
Shop in dispute is required by landlord for starting business of sons -- Fact
that the sons of the landlord were taking training in some other business or
were doing some business will not disentitle them from doing their own business
of any nature in the shop in dispute. Rakesh
Kumar v. Darshan Singh, 2012(1) L.A.R. 271
(P&H).
Section 13 (3)(a)(i)(a) -- Change of user -- Bonafide
need -- There must be first a requirement by the landlord which means that it
is not a mere whim or a fanciful desire by him, further such requirement must
be bona fide which is intended to avoid the mere wish or desire -- Bona fide
requirement must be in praesenti and must be manifested in actual need which
would evidence the court that it is not a mere fanciful or whimsical desire. Rakesh Kumar v. Darshan Singh, 2012(1) L.A.R. 271 (P&H).
Section 13 (3)(a)(i)(b) -- Bonafide need -- Landlord
is the best judge of his needs and the tenant cannot dictate him regarding his
suitability of the premises – Simply because, at one point of time, the
landlord was planning to let out his residential portion to some bank will not
dis-entitle him to seek ejectment on the ground of personal necessity. Jagdish Kaur v. Sat Pal Madan, 2012(1) L.A.R. 240 (P&H).
Section 13 (3)(a)(i)(b) -- Bonafide need -- Landlord
is the best judge of his own needs.
Tarsem Chand v. Gurdial Singh, 2012(1) L.A.R. 253
(P&H).
Section 13 (3)(a)(i)(b), 15(5) -- Bonafide need –
Revisional Jurisdiction -- Whether demised premises are required by the
landlord for his personal need is essentially a question of fact – Concurrent
finding against the tenant, High Court in its revisional jurisdiction will not
substitute its opinion with the findings of the courts below only because another
view is possible. Jagdish Kaur v. Sat
Pal Madan, 2012(1) L.A.R. 240 (P&H).
Section 13(3)(a)(i)(c) – Bonafide need – Evidence show
that other shops are the ownership of Trust and not the ownership of landlord –
Tenant failed to point out any other commercial property or shop which is owned
by the landlord -- Bonafide requirement of the shop in dispute of the landlord
to set up his office stands proved and no fault can be found with the findings
recorded by the Authorities below – Eviction order upheld. Ramesh Gupta v. Ashok Kumar Jain, 2012(1)
L.A.R. 289 (P&H).
Section 13(3)(a)(i)(c) – Bonafide need – Vacation of
building – Sufficient cause -- Landlord closed his tractor business in the year
2001, whereas he started his new business only in the year 2004 meaning thereby
landlord has no idea in the year 2001 that he will be starting his new business
– Held, it cannot be said that the landlord had vacated the premises in his
occupation after commencement of the Act without sufficient cause. Ramesh Gupta v. Ashok Kumar Jain, 2012(1) L.A.R. 289 (P&H).
Section 13-B -- NRI landlord – Bonafide need -- Right
of the NRI can be defeated by a tenant by showing that the bona fide
requirement was a pretext to get the accommodation vacated and the landlord was
not owner of the premises. Onkar Singh
v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).
Section 13-B -- NRI landlord – Eight shops in one
building – Right of eviction -- Landlords established that all the eight shops
which are part of the one main building are required by them – Contention that
landlord have already got evicted the tenant from another part of the building
and therefore they are not entitled to ask for eviction of the tenant as such
right can be exercised by the landlords only once in life time, is liable to be
rejected -- All the shops which form part of one integral building can be got
vacated by a NRI owner/landlord. M/s Bhandhari General Store’s case RCR(Rent)
2006(1) 306 relied. Onkar Singh v.
Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).
Section 13-B – NRI landlord – Other NRI/Co-owner used his
rights as NRI – Effect of -- Leave to defend -- Whether an NRI landlord, who is
a co-owner in two different properties which are in occupation of the tenants,
can maintain a petition u/s 13-B of the Act after filing of the petition by his
co-owners as NRI in respect of the other property”? – Sufficient grounds for
granting leave to defend with regard to the maintainability of eviction
petition as NRI landlords. Bachan Kaur’s case 2011 (3) L.A.R. 263 (P&H DB)
relied. Harbhajan Singh v. Sukhjinder
Singh Aulak @ Billa and another, 2012(1) L.A.R. 145 (P&H).
Section 13-B -- NRI landlord/owner – Petition by owner
not by landlord – Maintainability of -- Contention that NRI who is the owner of
the demised premises was not landlord of the petitioner is liable to be
rejected -- NRI owner has a right to seek eviction after a period of 5 years
from the date of becoming owner of such building irrespective of the fact that
the building is let out by him or her. Smt.Bachan Kaur’s case, 2011(3) L.A.R.
263 (P&H D.B.) relied. Onkar Singh
v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).
Section 13-B, 18-A – NRI landlord – Leave to defend --
Admittedly respondent is a British passport holder and settled in U.K,
respondent-landlady is of Indian origin – Respondent-landlord has categorically
stated that she wants to settle in India and for the purpose she requires the
premises in dispute -- A presumption with regard to need of the
respondent-landlord is deemed to be drawn in his/her favour as provided under
Section 18-A (4) of the Act – Once leave to defend is declined, eviction order
has to follow. Harjinder Singh v. Baljit
Kaur, 2012(1) L.A.R. 460 (P&H).
Section 13-B, 18-A – NRI landlord – Leave to defend –
Eviction -- Where u/s 13-B of the Act, leave is refused to the tenant to defend
the proceedings brought by the N.R.I. landlord, eviction of the tenant has to
be ordered as an automatic consequence.
Anwar Ali v. Gian Kaur, 2012(1) L.A.R. 306
(P&H Full Bench).
Section 13-B, 18A(4) – NRI landlord – Bonafide need –
Leave to defend -- Simply because the tenant is disputing the need of the
landlord is not enough to hold that the tenant has raised triable issues in his
application for leave to contest -- Except the allegations of harassment the
tenant has not come out with any plausible defence -- Genuineness and veracity
of the complaint made by the tenant before the police authorities can only be
determined by the criminal Court and not under provisions of the Rent Act --
Since the landlord fulfilled all the ingredients of section 13-B of the Act and
there being not an iota of evidence to rebut the presumption of bona fide need
in favour of the landlord, the eviction order needs no interference. Poonam Kumari v. Rajinder Kumar, 2012(1)
L.A.R. 559 (P&H).
Section 13-B, 18A(4) – NRI landlord – Bonafide need –
Presumption of -- In case a landlord fulfills the conditions of section 13-B of
the Act, a presumption is to be drawn in his favour for his bona fide need and
thereafter it is for the tenant to make out a strong case in his application
for grant of leave to defend. Poonam
Kumari v. Rajinder Kumar, 2012(1) L.A.R. 559 (P&H).
Section 15(5) -- Revision before High Court – Misuse
of process of law – Costs -- Dispossession of tenant from the shop in dispute
stayed – Service could not complete, petitioner was directed to supply correct
addresses -- After getting the dispossession stayed, on 9.10.2007 and despite
the fact that at many stages, the Court has asked the petitioner to serve the
respondent dasti, the petitioner failed to do so -- Held, it seems that
petitioner is abusing the process of law by not making efforts to serve the
respondent and is enjoying the stay order in his favour -- Petition dismissed
with costs of Rs. 1 lac. Durga Dutt v.
Vidya Sagar, 2012(1) L.A.R. 415 (P&H).
Educational qualification
Appointment of Lambardar -- No qualification prescribed
under the rules -- There is not much difference in 10+2 or Matric. Harpreet Singh v. State of Punjab and
others, 2012(1) L.A.R. 132 (P&H).
Effective date of sale
Auction sale – Confirmation of – Auction property
shall be vested in favour of the auction purchaser from the date of its auction
if auction sale is confirmed later on -- Section 65 C.P.C. may not be
applicable in strict sense in the proceedings under the Act, however,
principles can be pressed in service to find out as to when property shall vest
in the auction purchaser -- Therefore, any allotment or creation of third party
interest during the intervening period shall cease to have any effect
immediately on the confirmation of auction sale. Jog Raj Singh v. State of Punjab
Eight shops in one building
East Punjab Urban Rent Restriction Act, 1949 -- NRI landlord – Right of eviction --
Landlords established that all the eight shops which are part of the one main
building are required by them – Contention that landlord have already got
evicted the tenant from another part of the building and therefore they are not
entitled to ask for eviction of the tenant as such right can be exercised by
the landlords only once in life time, is liable to be rejected -- All the shops
which form part of one integral building can be got vacated by a NRI
owner/landlord. M/s Bhandhari General Store’s case RCR(Rent) 2006(1) 306
relied. Onkar Singh v. Dilbagh Rai &
another, 2012(1) L.A.R. 409 (P&H).
Ejectment
Punjab Village Common Lands (Regulation) Act, 1961 --
Question of title raised – Effect of – Eviction order passed -- Revenue
authorities considered each and every revenue record produced by the
predecessor of the appellants before coming to the conclusion – Held, no
prejudice is caused to the appellants, if the Assistant Collector Ist Grade had
not converted the eviction proceedings into the title suit. Balbir Kaur alias Godhan and others v. Gram
Panchayat Jhorarh Rohi and others, 2012(1) L.A.R. 43 (P&H DB).
Ejectment application
Punjab Village Common Lands (Regulation) Act, 1961 --
Ejectment application by the Gram Panchayat through its Sarpanch with the averment
that the then Sarpanch was duly authorised by the Gram Panchayat to file the
ejectment application -- Photo-copy of the resolution is on record -- Merely
because the subsequent Sarpanch, while appearing before the Collector, had
stated that he has not brought the original copy of the resolution and cannot
say whether the photo-copy is attested or not, it cannot be inferred that the
earlier Sarpanch was not authorised to file the ejectment application. Tarsem Singh v. Director Rural Development
and Panchayat (Punjab ) Exercising the powers
of Commissioner, and others, 2012(1) L.A.R. 298
(P&H DB).
Punjab Village Common Lands (Regulation) Act, 1961 --
Power of Sarpanch – Sarpanch of the Gram Panchayat is fully competent to
maintain the ejectment application u/s Section 7 of the Act. Tarsem Singh v. Director Rural Development
and Panchayat (Punjab ) Exercising the powers
of Commissioner, and others, 2012(1) L.A.R. 298
(P&H DB).
Ejectment order by Asstt. Collector
Challenge to – Punjab Security of Land Tenures Act, 1953 --
Maintainability of civil suit -- On the one hand the plaintiffs have
challenged the order passed by the AC Ist Grade by filing the suit and on the
other hand they had challenged the same very order before the superior
authorities – Suit was not maintainable. Narender
Singh and others v. Kewal Krishan and others, 2012(1) L.A.R. 386 (P&H).
Ejectment petition
Punjab Village Common Lands (Regulation) Act, 1961 --
Title dispute -- In reply to the application u/s 7 of the Act, vaguely it has
been stated that the land in dispute is not shamilat deh and does not vest in
the Gram Panchayat -- Since the petitioner could not make out a prima facie
case, the Collector have not directed him to raise the question of title by
filing the title suit u/s 11 of the Act -- Even the petitioner was at liberty
to file the title suit which he did not file – Contention that once he had
raised the question of title, the Collector was bound to decide the same after
framing the issues and recording a finding on the issue of question of title,
is not tenable. Tarsem Singh v. Director
Rural Development and Panchayat (Punjab )
Exercising the powers of Commissioner, and others, 2012(1) L.A.R. 298 (P&H DB).
Election
of Board of Directors
Punjab Co-operative Societies Act, 1961 – Cancellation of election –
Jurisdiction of District Magistrate --
Election process commenced for the post of Board of Directors -- Head Constable
and two Constables were deployed for the smooth conduct of the election –
District Magistrate cancelled the election process on the ground of law and
order situation – Held, District Magistrate was well within his right to
initiate appropriate proceedings/action under Chapters VIII & XI Cr.P.C.,
or may pass order u/s 144 and 144-A of the Cr.P.C., or any other law for the
time being in force, as the case may be, as warranted by the situation but did
not have the jurisdiction, to cancel the already commenced democratic election
process, in a very casual and abrupt manner, without any material/basis. Navraj Singh and another v. State of
Punjab and others, 2012(1) L.A.R. 10 (P&H).
Election of Panch
Challenge to -- At the time of filing of nomination
papers. N.O.C. issued by B.D.P.O. was attached alongwith papers by the
appellant and the same was accepted by the competent authority but at that time
no objection was raised regarding holding of Panchayat land unauthorizedly
which was the right stage and now it can not lie on respondent’s mouth to take
such objection. Balbir Singh v. Karnail
Singh & others, 2012(1) L.A.R. 255
(P&H).
Election result – Jurisdiction of Returning Officer --
Returning Officer did not have the jurisdiction to direct the Presiding Officer
to change the election result already duly announced by him by way of election
result. Kulwant Singh and another v.
State of Punjab and others, 2012(1) L.A.R. 179 (P&H).
Reservation of Seats -- Category/reservation of seats of
Panches already notified before elections, cannot possibly be subsequently
changed after the completion of election process and declaration of the result.
Kulwant Singh and another v. State of
Punjab and others, 2012(1) L.A.R. 179 (P&H).
Election petition
Haryana Co-operative Societies Act, 1984 --
Appointment of Administrator – Power of -- Financial Commissioner directed the
Assistant Registrar, Cooperative Societies, to treat the petition as an
election petition u/s 102 of the Act and to decide the same within a period of
60 days; meanwhile, Administrator was appointed to look into the affairs of the
Society – Held, Section 34 of the Act nowhere authorized the Registrar or
Secretary to appoint the administrator pending the election petition – Order is
without jurisdiction which cannot be sustained in the eyes of law -- Orders to
the extent of appointment of administrator stand set aside. Arun Kumar Basra and others v. State of Haryana and others, 2012(1)
L.A.R. 419 (P&H).
Election petition through Advocate
Punjab State Election Commission Act -- Election
petition is not presented by the candidate/appellant himself rather it has been
filed through his advocate -- If the election petition is not filed by the
candidate himself, then there is no alternative left with the Election Tribunal
but to dismiss the election petition -- If any objection is not taken by the
returned candidate even in the written statement about the non-compliance of
Section 76(1) of the Act, it would not deemed to be a waiver on his part --
Election petition dismissed. Suresh
Kumar Singla v. Election Tribunal, Fatehgarh Sahib and others, 2012(1) L.A.R. 363 (P&H).
Election result
Election of Panch -- Jurisdiction of Returning Officer --
Returning Officer did not have the jurisdiction to direct the Presiding Officer
to change the election result already duly announced by him by way of election
result. Kulwant Singh and another v.
State of Punjab and others, 2012(1) L.A.R. 179 (P&H).
Embezzlement of Gram Panchayat fund
Punjab Panchayati Raj Act, 1994 – Recovery from ex-Sarpanch – Opportunity of hearing -- By letter
ex-Sarpanch was directed to pay an amount, which was kept excessive cash in
hand, by him during the period from January 1993 to September, 2010 -- No
material, muchless cogent, on record to suggest that any proper inquiry was
conducted, after providing the opportunity, as contemplated u/s 216 of the Act
-- Moreover, the impugned letter have been issued, without affording adequate
opportunity of being heard to him, which renders it nullity -- Impugned letter
cannot legally be sustained. Gurmail
Chand (Ex-Sarpanch) v. The State of Punjab & Ors., 2012(1) L.A.R. 166
(P&H).
Employed
candidate
Appointment of Lambardar – Collector held that merely
because the petitioner is working at Stone Crusher Company, does not deprive
him from performing his duties as Lambardar, rather it should be appreciated
that the person is working and earning livelihood of his family -- This cannot
be treated as a perverse finding – Order of Collector upheld. Umed Singh v. Financial Commissioner,
Haryana and others, 2012(1) L.A.R. 50 (P&H).
Encroachment
Plaintiffs claims themselves to be owners in possession
-- Onus of proof -- Irrespective of the plea as set up by the defendant, the
plaintiff have to stand on their own legs.
Rattan Devi and others v. Municipal Committee, Loharu and another, 2012(1) L.A.R. 304 (P&H).
Environment (Protection) Act, 1986 (29 of 1986)
Section 3(2)(v) – Punjab Land Preservation Act, 1900
(II of 1900), Section 3 -- Notification dated 14.9.2006 – Prior Environmental
Clearance -- Minor Mineral Quarries -- Auction of -- Held, though individual
mineral quarries on which mining is proposed to be allowed does not exceed 4.5
hectares which takes the matter outside the notification dated 14.9.2006, the
mining mineral quarries covered by the auction notices are certainly of large
areas and thus, by using the device of limiting the area of individual quarries
to 4.5 hectares, the requirement of environment clearance as per notification
dated 14.9.2006 cannot be allowed to be defeated -- Said notification is a
statutory notification -- Prior environmental clearance is mandatory -- State cannot
proceed with the grant of mining rights in pursuance of impugned notices until
environmental clearance is granted in terms of notification dated 14.9.2006. Sandeep Sangwan v. Union of India and
others, 2012(1) L.A.R. 454 (P&H DB).
Evacuee property
Allotment of land -- As per the Jamabandi, the land in
question has been recorded under the ownership of the Central Government, which
indicates that it is not the package deal property -- Appellant was unable to
show any document, indicating that the property in question was a package deal
property – Appellant is not entitled for allotment of the same under the Punjab
Package Act. Shamsher Singh v. State of Punjab
Eviction
Rent Act (Punjab ) --
NRI landlord – Leave to defend – Where u/s 13-B of the Act, leave is refused to
the tenant to defend the proceedings brought by the N.R.I. landlord, eviction
of the tenant has to be ordered as an automatic consequence. Anwar Ali v. Gian Kaur, 2012(1) L.A.R. 306 (P&H Full
Bench).
Eviction
of occupants
Punjab Village Common Lands (Regulation) Act, 1961 --
Shamilat deh – Predecessor of the appellants came into possession only in the
year 1955-56, thus, the said land is not exempted under Section 4 (3) (ii) of
the Act -- Appellants have also failed to prove their individual cultivating
possession prior to 26th January, 1950 – Held, no illegality in the order of
eviction passed against the appellants.
Balbir Kaur alias Godhan and others v. Gram Panchayat Jhorarh Rohi and others,
2012(1) L.A.R. 43 (P&H DB).
Eviction of tenant
Rent Act -- Mesne profit – Interest upon -- Contention
that no interest could have been granted by the Appellate Authority on the
amount of mesne profit as imposed by the Court is without any merit -- On mesne
profits, interest has to be calculated on yearly basis. Sunil Kumar v. Lal Chand and others, 2012(1) L.A.R. 548 (P&H).
Rent Act -- Mesne profit -- While passing the order of
stay, the Court can put the parties to terms --
A tenant is liable to pay mesne profits from the date of eviction order,
during the pendency of the appeal for the use and occupation of the demised
premises. Sunil Kumar v. Lal Chand and
others, 2012(1) L.A.R. 548 (P&H).
Rent Act -- Stay of eviction – Mesne profit --
Landlord is entitled to the payment of mesne profits as assessed by Court after
passing of the eviction order till its possession is handed over to the
landlord -- Mesne profits of the demised premises assessed and made payable
with effect from the date on which the High Court admitted the revision
petition and had stayed the dispossession of the tenant. M/s Bird Travels (P) Ltd. v. Smt. Amarjit Kaur and others, 2012(1) L.A.R. 313 (P&H).
Eviction petition
Public premises laws -- Locus standi -- Contention
that it is only the owner who can file an application for eviction against the
unauthorized occupants rejected – Held, anyone can bring to the notice of the
Collector about illegal occupants of such premises. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448
(P&H).
Public premises laws -- Notice -- Contention that
notice issued by the Collector was defective as no description of the land was
mentioned therein – Held, in the column of particulars of premises, it is
mentioned that copy of petition attached -- Contention is devoid of any merit. Puran and others v. The Commissioner and
others, 2012(1) L.A.R. 448 (P&H).
Punjab Village Common Lands (Regulation) Act, 1961 –
Question of title – Power of Commissioner -- Commissioner, while setting aside
orders of eviction has directed the Collector to scrutinize the papers properly
and direct the Gram Panchayat to file a petition in case it is found that the
Gram Panchayat has any title – Held, Commissioner, was exercising quasi
judicial powers and was therefore, required to direct the Assistant Collector,
Ist Grade, Fatehabad, to frame a question of title, as required by the first
proviso to Section 7 of the Act and keep the application under Section 7 in
abeyance, till the question of title is finally decided -- Commissioner had no
jurisdiction to direct the Collector to deal with the matter on the
administrative side. Gram Panchayat
Dharni, Village Dharni, Tehsil and District Fatehabad v. Commissioner, Hisar
Division, Hisar and others, 2012(1) L.A.R. 580 (P&H DB).
Punjab Village Common Lands (Regulation) Act, 1961 –
Title suit – Res-judicata -- Held, if question of title was raised in earlier
proceeding u/s 7 of the 1961 Act and question of title has been decided then no
suit would lie under Section 13-A thereafter. Ram Saroop @ Ram Swarup v. Financial Commissioner and Principal
Secretary, Haryana, Development & Panchayat Department and others, 2012(1)
L.A.R. 468 (P&H).
Rent Act (Haryana) -- Death of landlord – Conversion
of petition u/s 13 to 13-A -- Landlord was serving in the Armed Forces died --
By application Lr’s had given up all other grounds and had prayed for treating
the ejectment application under the provisions of section 13-A of the Act –
Held, no prejudice has been caused to the tenant as in view of the proviso to section
13-A of the Act, the respondents could have filed an independent petition in
their own right for eviction of the petitioner from the demised premises being
dependent of landlord. Surinder Kumar v.
Smt. Leela Sharma and others, 2012(1) L.A.R. 318 (P&H).
Exchange of land
Punjab Village Common Lands (Regulation) Act, 1961 --
Oral Exchange -- Before exchanging the land, the Gram Panchayat neither sought
(nor granted) prior approval by the Government, which was a condition precedent
for a valid exchange – Contention that alleged oral exchange, which was based
upon a resolution by the Gram Panchayat, is reflected in the revenue record,
therefore, the appellant could not have been ordered to be evicted from the
land in dispute cannot be accepted – Mere passing of the resolution by the Gram
Panchayat is not enough -- Possession of the land of the Gram Panchayat taken
by the appellant under the said oral exchange is totally illegal and
unauthorized -- Appellant was rightly ordered to be evicted from the disputed
land. Bant Kaur v. The Director,
Department of Rural Development and Panchayats, Punjab ,
SAS Nagar and others, 2012(1) L.A.R. 539 (P&H DB).
Execution of Will
Proving of -- Legal requirements for proving execution
of Will can be summarised as - A Will like any other document is to be proved
in terms of provisions of Indian Succession Act and the Indian Evidence Act;
Onus of proving the Will is on the propounder; Testamentary capability of the
propounder must also be established; The execution of the Will by the testator
has to be proved; At least one attesting witness is required to be examined for
the purpose of proving the execution of the Will; It is required to be shown
that the Will has been signed by the testator with his free will and that at
the relevant time, he was in sound disposing state of mind and understood the
nature and effect of disposition; It is also required to be established that he
has signed the Will in the presence of two witnesses, who attested his
signatures in his presence or in the presence of each other; When there exist
suspicious circumstances, the onus would be on the propounder to explain the
same to the satisfaction of the court before it can be expected as genuine. The
Court must satisfy its conscience before its genuineness is accepted by taking
a rationale approach. Charan Singh and
another v. Amar Singh and others, 2012(1) L.A.R. 608 (P&H).
Exemption from House tax
Punjab Municipal Act, 1911 -- Hospital and charitable
institution – By government Notification dated 19.09.1963, the registered
charitable institutions were exempted from payment of House Tax – By subsequent
Notification dated 3.12.1975, even all hospitals were exempted from House Tax –
In letter written by the Secretary to Government of Punjab, Local Government
Department clarifying to the effect that only the property of the registered
religious institutions should be exempted from payment of House Tax, reference
has not been made to the earlier Notifications -- Earlier Notifications have
not been withdrawn so far – Held, this letter will not help the appellant and
on the basis of this letter it cannot be said that the charitable institutions,
like the respondent-Hospital, are not exempted from payment of House Tax. Municipal Committee, Ferozepur City v.
Francis Newton Hospital, Ferozepur City and others, 2012(1) L.A.R. 694 (P&H
DB).
Exemption from Shamilat deh
In order to apply this provisions, it is sine qua non
to prove the -- individual cultivating possession of the co-sharers; not being
in excess of their respective shares; land being assessed to land revenue; on
or before 26th January, 1950. Gurdev
Singh (deceased) through his LRs. v. The Additional Director, Panchayats, Punjab and another, 2012(1) L.A.R. 596 (P&H DB).
In order to invoke the provisions of Section
2(g)(viii) of the 1961 Act, the petitioners have not only to prove that the
shamilat deh was assessed to land revenue, but also that they have been in
individual cultivating possession not being in excess of their respective
shares. Sat Pal and others v. Gram
Panchayat of Village Sarangpur and others, 2012(1) L.A.R. 683 (P&H
DB).
Tibba/Banjar Kadim land – Petitioner is not deemed to
be in cultivating possession of Tibba/Banjar Kadim land, which has been
recorded as such in the Jamabandi for the year 1947-48 -- A presumption of
truth attaches to a Jamabandi that the land being an old fallow, i.e.
uncultivated for 8 successive harvests, cannot be in the cultivating possession
of the petitioners, before 26.01.1950 so as to exclude it from Shamilat Deh --
Petitioner is not entitled to any exemption under Sections 2(g)(viii) and 4
(3)(ii) of the 1961 Act. Gurdev Singh
(deceased) through his LRs. v. The Additional Director, Panchayats, Punjab and another, 2012(1) L.A.R. 596 (P&H DB).
Expiry of lease
Rent Act -- Agreed rent – Penal rent – Nature of --
Agreed rent fixed was Rs.77,034/- per month -- It was agreed in para no.5 of
the lease deed “that in case the lessees do not vacate the premises at the end
of 3 years from the date of commencement of the lease period i.e. by 31.07.2010
and no mutual agreed terms are settled between the lessor and the lessees on or
before 01.05.2010 the lessees will be liable to pay rent of Rs.1,50,000/- per
month, and the lessor can take over the premises from the lessees -- Since this
condition was accepted by the tenants who have not challenged the same in the
written statement as a penal provision, the protection of Section 7 of the Act
is not available to them -- Moreover, tenants has failed to show as to how the
amount of Rs.1,50,000/- was within the definition of fine or premium -- It is
permissible for the parties to provide for increase in rent by agreement as
rent is defined as periodical payment for use of another's property and
increase in rent by agreement does not take the character of fine or premium. Smt. Navjeet Chadha and others v. Ravinder
Sandhu, 2012(1) L.A.R. 533 (P&H).
Ex-serviceman
Appointment of Lambardar – Contention that the
appellant was a soldier, whereas respondent No.1 was a carpenter in the Army,
therefore, the appellant should be given preference over respondent No.1,
cannot be accepted -- Any person who served in the Army, whether he was
employed as soldier or in the Engineering Wing of the Army, is an Ex-
Serviceman -- It does not make any difference in the case of appointment of
Lambardar. Tarlok Chand v. Joginder
Singh and others, 2012(1) L.A.R. 689 (P&H DB).
Failure to apply Oustees claim
Effect of -- HUDA Matters -- Whether the failure to
apply for a plot in response to advertisement published at one stage entitles a
oustees to apply for allotment of a plot as and when the advertisements are
issued subsequently till such time the plots are available within overall limit
of 50% of the total plots in a sector – Held, since the oustees form a separate
and distinct category, failure to apply in response to an advertisement will
not dis-entitle an oustee from submitting application at a subsequent stage as
and when advertisement is again issued inviting applications for allotment of
plots. Haryana Urban Development
Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H
DB).
Fard Badar
Mutation entries – Jamabandi entries – Substantial
variations have been made in the entries in jamabandi by way of fard badar as
the earlier mutations were cancelled – Held, Fard badar is patently illegal –
No jurisdiction to make substantial changes/variations in the jamabandi, which
can only be carried out by way of a Civil Suit, in terms of Chapter VI of the
Specific Relief Act, 1877. Rahul and
others v. State of Haryana and others, 2012(1) L.A.R. 576 (P&H DB).
Father was defaulter
Appointment of Lambardar – Disqualification -- Held, for the
fault of father, he cannot be deprived of his right and his merit cannot be
ignored on this ground alone. Jai
Bhagwan v. Financial Commissioner, Haryana and others, 2012(1) L.A.R. 204
(P&H).
Finalization of Partition
Challenge to -- Dakhal has been given and changed
entries has been incorporated in the jamabandi -- Collector and the
Commissioner has upheld the partition proceedings – Their orders are not
suffering from any illegality/irregularity and any perversity -- Revision
petition is dismissed in limine being devoid of merits. Baldev Kaur and
others v. Balkar Singh and others, 2012(1)
L.A.R. 625 (FC Pb.).
FIR
Appointment of Lambardar -- Contention that private
respondent is not eligible for appointment as Lambardar since a criminal case
was registered against him u/s 323, 324 and 34 of the IPC – Held, registration
of FIR is to set the law in motion -- Those offences are compoundable and the
case has been compromised and challan has not been presented, so the contention
is rejected. Harbhagwan Singh v. The
Financial Commissioner (Revenue), Punjab and
another, 2012(1) L.A.R. 198 (P&H).
Municipal area – Land in dispute has already been
included in the limits of MC, by virtue of notifications -- Once there is
projected violation of any provision of MC Act, then, the same can only be
dealt with the provisions of the said Act and no FIR can possibly be registered
u/s 6 & 7 of the Punjab Scheduled Roads and Controlled Areas (Restriction
of Unregulated Development) Act, 1963. Gurdip
Singh v. The State of Haryana
First date of hearing
Rent Act -- Extension of – Arrears of rent –
Provisional assessment of – Rent Controller did not assess the exact amount of
provisional rent to be tendered by the tenant – But tenant has not requested to
the Rent Controller that he is unable to pay the rent on the first date of
hearing in the absence of assessment of exact amount rather the prayer was that
entire arrears of rent is not available in time and an adjournment was sought
for payment of the balance amount after offering Rs.20,000/- -- Tenant can
challenge, but cannot escape his eviction if he does not tender the
provisionally assessed rent on the first date of hearing -- Said arrears are
tendered by the tenant on account of conditional stay which does not take away
the right already accrued in favour of the landlord – Held, non-availability of
provisionally assessed rent on the date of its tender is not a ground for
extension of time and the eviction order passed on that account cannot be set
aside even on the ground that the Rent Controller had failed to assess the
exact amount of rent. Kailash Chandra
Kaushik v. Kamaljeet Rangi, 2012(1) L.A.R. 514 (P&H).
Gairmumkin marian
Consolidation proceedings -- Common purposes -- Land
claimed is recorded as Gairmumkin marian in the Jamabandi – As per definition,
it is to be held that this land was being used for common purpose -- By virtue
of the provisions of the Act, 1961, this land became vested in the Gram
Panchayat – Such a land cannot be partitioned amongst the proprietors of the
village and could not have been allotted to private respondents for making up
deficiency in the value of the land. Gram Panchayat
Village Kakarwal v. Additional
Director, Consolidation of Holding Punjab , and
others, 2012(1) L.A.R. 618 (P&H).
Ghair Mumkin
Banjar Jadid -- Banjar Kadim -- Uncultivated land is
classified as Banjar Jadid, Banjar Kadim and Ghair Mumkin -- If for four
successive harvests the land, which was once cultivated, has not been sown, it
is classified as Banjar Jadid or new fallow and if it continues to be
uncultivated and the said entries are maintained for the next four harvests,
then such land passes into the category of Banjar Kadim or old fallow, whereas
the term Ghair Mumkin is barren land. Gurdev
Singh (deceased) through his LRs. v. The Additional Director, Panchayats, Punjab and another, 2012(1) L.A.R. 596 (P&H DB).
Gorah deh
Abadi deh – Vacant land – Vesting of -- Vacant land in
abadi deh or gorah deh, as on 12.02.1981, is deemed to have vested in the
Panchayat being shamilat deh. Hans Raj
v. The Assistant Collector 1st Grade, Ambala and others, 2012(1) L.A.R. 698 (P&H
DB).
Guest house
Capital of Punjab (Development and Regulation) Act,
1952 -- Shop cum flat – Misuse of premises – Conversion of use of building --
Sites allotted for use as (SCFs), whereas petitioner are using F.F. and S.F. as
guest houses/lodges, which is not permissible -- Stand of the administration
that until and unless the petitioners seek firstly conversion for use as for
the office purposes and secondly to seek permission to use the office portion
for commercial purpose i.e. for tourist lodges and guest houses, the
petitioners are violating the provisions of the Act and the building is liable
to be resumed – Writ petition challenging to notices served u/s 8A of the 1952
Act dismissed with liberty to the petitioners to seek conversion of the use of buildings
in terms of the scheme framed under the Act. Gurcharan Singh v. Union Territory Chandigarh & others, 2012(1) L.A.R. 330 (P&H DB).
Section 2(15) – Watercourse -- Watercourse sanctioned
under this Act or in existence under an agreement or by prescription will be
deemed to be a watercourse. Ram Kumar v.
State of Haryana and others, 2012(1) L.A.R. 589 (P&H).
Section 2(15), 16, 17, 18 -- Watercourse – Resjudicata
-- Writ was dismissed by Ld. Single Judge by holding that principle of res
judicata is not applicable in the summary proceedings – No reasons to interfere
in the order of Ld. Single Judge.
Bhagirath v. The Divisional
Canal
Section 2(15), 24 – Watercourse left in consolidation
proceedings -- Watercourses which had been carved out during consolidation as
per the scheme approved by the residents of the village, will be deemed to be
left out under the agreement and are sanctioned watercourses -- Authorities are
bound to restore such watercourses under the provisions of Section 24 of the
Act -- Watercourse has been running for more than 20 years will also come under
prescription. Ram Kumar v. State of
Haryana and others, 2012(1) L.A.R. 589 (P&H).
Section 16,17 -- Water course – Restoration of --
Matter was got investigated by the DCO through the Zilledar, who, after spot
inspection recommended for the restoration of watercourse – Watercourse was
running since long, private respondents were irrigating their land, they have
no other watercourse to irrigate their land -- SDCO has rightly accepted the
claim, which has been upheld by DCO -- No patent illegality or legal infirmity
pointed out, in the orders -- Orders passed by Canal authorities maintained. Baru Ram and others v. The Sub-Divisional
Canal Officer, Hisar and others, 2012(1) L.A.R. 14 (P&H).
Section 17 – Change of outlet – Power of Deputy
Collector -- Power u/s 55 is only limited to order use or distribution of water
and settlement of differences -- No power conferred on Deputy Collector u/s 55
of the Act to shift the area from one outlet to another outlet. Nakchhatar Singh and another v.
Superintending Canal Officer, Bhakra Water Services, Circle-II, Hisar and others,
2012(1) L.A.R. 382 (P&H).
Section 17 – Warabandi – Branch water course – Main
watercourse -- It is settled principle of law that firstly from the main
watercourse, the Branch watercourse will run -- Thereafter, the water will
again flow into the main watercourse. Krishan
Lal v. Superintending Canal Officer and others, 2012(1) L.A.R. 377 (P&H).
Section 17 – Warabandi – Branch water course – Main
watercourse -- Land of the petitioner is on the branch watercourse and is to be
irrigated first, whereas, the land of private respondent is at the main
watercourse in the end -- So, private respondent is entitled to the jhara
(residue) of the water. Krishan Lal v.
Superintending Canal Officer and others, 2012(1) L.A.R. 377 (P&H).
Section 17 – Warabandi – Change of – Third party right
-- Original owner has not moved any application -- Third party has no right to
make a prayer for transfer of area.
Gurmeet Singh and others v. Chief Canal Officer (BWSU) Irrigation Department,
Sector 2, Panchkula and others, 2012(1) L.A.R. 379 (P&H).
Section 17 – Warabandi -- Warabandi (fixing of turn of
water) is a temporary arrangement -- It can never be considered as permanent --
Petitioner cannot claim as a matter of right that turn once fixed must continue
-- Aggrieved shareholders can at any stage raise the issue of wrong fixation of
turn -- Canal Authorities have specifically framed the rules for regulating the
turns of water. Krishan Lal v.
Superintending Canal Officer and others, 2012(1) L.A.R. 377 (P&H).
Section 24 – Water Course – Demolition of –
Restoration of -- Concurrently finding by Canal authorities of the existence of
water course, which was dismentalled by the petitioners -- No other alternative
water course for irrigation of land of private respondent – Canal Authorities
have rightly ordered the restoration of the water course. Bharat Singh and others v. Divisional Canal Officer and others,
2012(1) L.A.R. 372 (P&H).
Section 24 – Watercourse – Demolition of – Alternative
water course -- While dealing with an application u/s 24 of the Act, the canal
authorities cannot provide for alternative watercourse -- Scope of Section 24
is very limited -- Canal authorities are bound to record a finding with regard
to existence of the watercourse and its demolition -- Unless and until the
canal authorities come to a conclusion that the water course has been
dismantled then authorities can allow the application for restoration. Ram Kumar v. State of Haryana and others,
2012(1) L.A.R. 589 (P&H).
Section 24 – Watercourse – Demolition of -- Canal
authorities have admitted that watercourse was in existence and was running
prior -- Only objection raised by the S.C.O. was that Act does not permit
restoration of the water course which has been demolished and was not running
-- Contention of the S.C.O. is not sustainable in law -- Sub Divisional Canal
Officer may, after making such enquiry as he may deem fit, require, by a notice
in writing served on the persons found to be responsible for so demolishing,
altering, enlarging, obstructing or causing damage, to restore, at his own
cost, the watercourse or temporary watercourse to its original condition within
such period not exceeding 21 days, as may be specified in the notice. Ram Kumar v. State of Haryana and others,
2012(1) L.A.R. 589 (P&H).
Section 24 – Watercourse – Shifting of – No one can
run the water at his own through the watercourse. Ram Kumar v. State of Haryana and others, 2012(1) L.A.R. 589 (P&H).
Rule 7, 11 – Publication of Scheme/Notice – Notice –
Issuance of – Presumption of -- Held, official acts shall be presumed to have
been done correctly and if the records brought before the Court show that the
notices had been issued, a disputed question of fact that such notice had not
been issued cannot be adjudicated before the High Court. Tek Ram and another v. The State of Haryana
Rule 7, 11 – Publication of Scheme/Notice – Rules do
not require personal service of notices -- Only a publication by beat of drum
and the acknowledgment of Lambardar and his statement of having announced and
given publicity of the same on the file of the scheme. Tek Ram and another v. The State of Haryana
Haryana Ceiling on Land Holdings Act, 1972 (26
of 1972)
Section 3(r), 4 11, 12, 13 – Punjab Security of Land
Tenures Act, 1953 (10 of 1953), Section 2(5a), 5-B – Surplus area – Permissible
area – Death of landowner – Effect of -- So long as the Collector's
determination is a subject of an appeal or a challenge before this Court under
Article 226 or in further proceedings before the Hon'ble Supreme Court, it must
only be taken that the determination has not been finally made and
consequently, a death of the landowner would certainly cause affectation of the
surplus area which would require to be redetermined in the hands of the heirs
of the deceased landowner -- So long as the proceedings are still pending, it
would inevitably mean that the holding of the deceased that has fallen to be
distributed amongst the heirs shall require a fresh reckoning for determination
of surplus – Case would require to be remitted to the competent authority under
the 1972 Act. Sardara Singh’s case 2008(2) RCR (Civil) 744, relied. Kehar Singh (deceased) through his LRs v.
Financial Commissioner, Haryana, Chandigarh
Section 3(r), 4, 8 – Transfer of land -- Surplus area
– Permissible area – Disposition of 3/4th share in favour of the son and
retention of 1/4th share only for landowner – Prime facie it cannot be accepted
that there had been any valid disposition and it will be a matter for
adjudication before the competent authority at the enquiry. Kehar Singh (deceased) through his LRs v.
Financial Commissioner, Haryana, Chandigarh
Section 12(3), 14(2) -- Punjab Security of Land
Tenures Act, 1953 (10 of 1953), Section 2(3), 10-A -- Haryana Utilization of
Surplus and Other Areas Scheme 1976, Paragraph 4 – Permissible area -- Surplus
area – Vesting of land in State -- Allotment of land – Held, issue that the
assessment of surplus itself was wrong is not an issue that is available at the
stage of distribution of the property – Landlords will not have a right to
challenge the issue of allotment of the land, after the vesting has taken
place. Dona Ram and others v. The State
of Haryana
Haryana Co-operative Societies Act, 1984 (22 of
1984)
Section 34 – Election petition – Appointment of
Administrator – Power of -- Financial Commissioner directed the Assistant
Registrar, Cooperative Societies, to treat the petition as an election petition
u/s 102 of the Act and to decide the same within a period of 60 days;
meanwhile, Administrator was appointed to look into the affairs of the Society
– Held, Section 34 of the Act nowhere authorized the Registrar or Secretary to
appoint the administrator pending the election petition – Order is without
jurisdiction which cannot be sustained in the eyes of law -- Orders to the
extent of appointment of administrator stand set aside. Arun Kumar Basra and others v. State of Haryana and others, 2012(1)
L.A.R. 419 (P&H).
Haryana Municipal Act, 1973 (24 of 1973)
Section 4(1) – Punjab Scheduled Roads and Controlled
Areas (Restriction of Unregulated Development) Act, 1963 (41 of 1963), Section
6,7, 12 -- Municipal area -- Land in dispute has already been included in the
limits of MC, by virtue of notifications -- Once there is projected violation
of any provision of MC Act, then, the same can only be dealt with the
provisions of the said Act and no FIR can possibly be registered u/s 6 & 7
of the Controlled Areas Act. Pritam Singh’s case 1995(3) PLR 762 & Satpal’s
case 2010(4) RCR (Civil) 331 relied.
Gurdip Singh v. The State of Haryana
Haryana Municipal Corporation Act, 1994 (16 of
1994)
Section 347, 348 – Punjab Scheduled Roads and
Controlled Areas (Restriction of Unregulated Development) Act, 1963 (41 of
1963), Section 12 -- Repairs – Notice for violation of Act -- Land of the plaintiff falls within the
Municipal Limits where Director, Town and Country Planning has no authority to
issue notice under the Scheduled Roads Act because the suit property is located
within the municipal limits – If at all there is violation, the Municipal
Corporation has sufficient powers under the Haryana Municipal Act to initiate
action, however, no action under the Scheduled Roads Act can be initiated. Municipal Corporation, Faridabad
v. M/s Continental Device (India
Haryana Public Premises and Land (Eviction and
Rent Recovery) Act, 1972 (24 of 1972)
Section 2(e),4,5 – East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 23-A -- Common
purposes – Public premises -- Right of Proprietors – Eviction of -- Land is
reserved for common purpose i.e. Baisak Mawashian (place of gathering of
cattle) and school -- Such land would be public premises as defined under
Section 2(e) of the Act -- Collector can issue notice to get unauthorized
occupant from such land evicted -- Proprietors of the village can also be
evicted from the land reserved for common purpose. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448
(P&H).
Section 3, 4, 5, 7 -- Unauthorised occupation –
Ejectment order – Penalty – Damages/compensation -- Collector can only pass an
ejectment order, and he cannot impose the penalty, as envisaged u/s 4 and 5 of
the Act -- He has only the power to recover the rent or damages/compensation as
arrears of land revenue u/s 7 of the Act and not otherwise after following the
statutory procedure provided u/s 7(2) of the Act read with Rule 7 and not
otherwise. Sanjay Kumar v. State of
Haryana and others, 2012(1) L.A.R. 37 (P&H).
Section 4,5 – Eviction petition – Locus standi --
Contention that it is only the owner who can file an application for eviction
against the unauthorized occupants rejected – Held, anyone can bring to the
notice of the Collector about illegal occupants of such premises. Puran and others v. The Commissioner and
others, 2012(1) L.A.R. 448 (P&H).
Section 4,5 – Eviction petition – Notice -- Contention
that notice issued by the Collector was defective as no description of the land
was mentioned therein – Held, in the column of particulars of premises, it is
mentioned that copy of petition attached -- Contention is devoid of any merit. Puran and others v. The Commissioner and
others, 2012(1) L.A.R. 448 (P&H).
Section 6, 7 -- Haryana Public Premises and Land (Eviction
and Rent Recovery) Rules, 1973, Rule 7 -- Penalty – Notice – Opportunity of
hearing -- No statutory notice u/s 7(2) of the Act read with Rule 7 was issued
to the petitioner before imposing the penalty -- Joint notice of ejectment
cannot possibly be termed to be the compliance of these statutory provisions --
No opportunity of hearing was granted before imposing the penalty, as envisaged
u/s 7(2) – Impugned orders, relatable to imposition of penalty, cannot legally
be maintained. Sanjay Kumar v. State of
Haryana and others, 2012(1) L.A.R. 37 (P&H).
Haryana
Public Premises and Land (Eviction and Rent Recovery) Rules, 1973
Rule 7 -- Haryana Public Premises and Land (Eviction
and Rent Recovery) Act, 1972 (24 of 1972), Section 6, 7 -- Penalty – Notice –
Opportunity of hearing -- No statutory notice u/s 7(2) of the Act read with
Rule 7 was issued to the petitioner before imposing the penalty -- Joint notice
of ejectment cannot possibly be termed to be the compliance of these statutory
provisions -- No opportunity of hearing was granted before imposing the
penalty, as envisaged u/s 7(2) – Impugned orders, relatable to imposition of
penalty, cannot legally be maintained. Sanjay
Kumar v. State of Haryana and others, 2012(1) L.A.R. 37 (P&H).
Haryana Urban (Control of Rent and Eviction)
Act, 1973 (11 of 1973)
Section 13 – Eviction of tenant – Mesne profit –
Interest upon -- Contention that no interest could have been granted by the
Appellate Authority on the amount of mesne profit as imposed by the Court is
without any merit -- On mesne profits, interest has to be calculated on yearly
basis. Ramnik Vallabhdas Madhvani’s case, 2004(1) SCC 497 relied. Sunil Kumar v. Lal Chand and others,
2012(1) L.A.R. 548 (P&H).
Section 13 – Eviction of tenant – Mesne profit -- While
passing the order of stay, the Court can put the parties to terms -- A tenant is liable to pay mesne profits from
the date of eviction order, during the pendency of the appeal for the use and
occupation of the demised premises. M/s Atma Ram Properties (P) Ltd.s case
2005(1) SCC 705, relied. Sunil Kumar v.
Lal Chand and others, 2012(1) L.A.R. 548 (P&H).
Section 13, 13-A – Eviction petition – Death of
landlord – Conversion of petition u/s 13 to 13-A -- Landlord was serving in the
Armed Forces died -- By application Lr’s had given up all other grounds and had
prayed for treating the ejectment application under the provisions of section
13-A of the Act – Held, no prejudice has been caused to the tenant as in view
of the proviso to section 13-A of the Act, the respondents could have filed an
independent petition in their own right for eviction of the petitioner from the
demised premises being dependent of landlord. Surinder Kumar v. Smt. Leela Sharma and others, 2012(1) L.A.R. 318 (P&H).
Section 13(3)(a)(i), 13-A – Petition u/s 13-A --
Bonafide need – Contention that respondents are in occupation and possession of
another adjoining shop, to the shop in dispute which is lying vacant
disentitles the respondents to file and maintain the present ejectment application
in view of the provisions of section 13 (3)(a) (i) of the Act, thus, no benefit
could have been granted to them under section 13-A of the Act – Contention
rejected. M/s Sant Ram Das Raj Kalka’s case AIR 1963 Punjab
1 (P&H Full Bench) & Ramesh Kumar’s case 1987(1) RCR (Rent) 101 relied.
Surinder Kumar v. Smt. Leela Sharma and
others, 2012(1) L.A.R. 318 (P&H).
Haryana Urban Development Authority Act, 1977
(13 of 1977)
Section 15 -- Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority -- Oustees claim –
Clause of ownership of the land for a certain period before the issue of
notification u/s 4 of the Land Acquisition Act – Sustainability of -- Period of
one year or five years prior to the date of publication of notification is
without any reasonable basis -- Date of notification u/s 4 of the Act is a
reasonable date -- Any other date in the R&R Policy is, therefore, quashed
and set aside. Haryana Urban Development
Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H
DB).
Section 15 -- Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Constitution of India,
Article 14 -- Oustees claim – Reservation of – Extent of -- Whether the policy
of allotment of plot to an oustee, a distinct and separate category, is
exception to Article 14 of the Constitution of India and whether, there can be
any upper limit for allotment of plots to such category – Held, oustees, whose
land has been acquired either for residential, commercial, institutional or any
other purpose, form a separate and distinct category and are entitled to be
considered for allotment of a plot, as a part of rehabilitation process --
Plots for the oustees including all other constitutionally permissible classes
of reservation cannot exceed 50%. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
Section 15 -- Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Oustees claim –
Release of land – Effect of -- Whether, the release of land from acquisition so
as to dis-entitle an oustee from allotment of a plot, means release of land in
terms of Section 48 of the Act or includes the non publication of the
declaration under Section 6 of the Act as well -- Held, the release
contemplated in the policies is not the release of land after acquisition u/s
48 of the Land Acquisition Act -- Purpose of policies stands satisfied, when a
constructed portion is not included in Section 6 notification as the landloser
has some land in his possession for his purposes -- Thus, the expression
“released from acquisition” in fact means “released from intention to acquire”
-- Therefore, the condition of release of land to dis-entitle an oustee from
such status is fair and reasonable. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
Section 15 -- Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Oustees policy --
Object of the policy – Object of the policy is to rehabilitate and not to allot
alternative land – In order to achieve such objective, the extent of holding
acquired or the land not acquired is not relevant as an oustee, whose land has
been acquired has some land to bank upon for his use and occupation. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Section 15 -- Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Oustees claim – Delay
and laches -- Whether an oustee can be permitted to raise a grievance in
respect of non-allotment of a plot on failure to apply for a plot in pursuance
of public advertisement issued for the reason of delay and laches – Held, no
merit in the argument that there can be any delay and laches, if an application
is not made for allotment of plot in pursuance of public advertisement issued
at one stage or the other -- An oustee, whose land has been acquired, does not
lose his status as that of an oustee merely for the reason that he has not
applied for a plot at an earlier stage -- He has a right to seek allotment of a
plot as a separate and distinct category as and when advertisements are issued
inviting applications from the eligible applicants including the oustees. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Section 15 -- Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Oustees claim --
Purpose of acquisition is industrial and institutional – Eligibility to apply
residential plot -- Whether an oustee is entitled to an allotment of a plot in
the next residential Sector even if the land is acquired for industrial,
institutional or such like purposes irrespective of date of acquisition – Held,
even if land has been acquired for a purpose other than residential/commercial,
an oustee is entitled to apply for a plot in the next residential sector even
if acquisition is prior to the circular dated 27.03.2000 -- Entitlement of an
oustee for a plot would be as per the existing policy at the time, when an
oustee apply for a plot in response to public advertisement. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Section 15 -- Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Oustees Claim –
Procedure of – Right of -- Separate claim – Requirement of -- Finding that since the claim from the oustees was not
separately invited and could not have been clubbed or joined with General Category,
therefore, such action is violative of law is not sustainable – Such provision
is directory and inviting of applications through a public advertisement along
with the applications from the general public meets the intent of the policies
-- An oustees is entitled to apply for a plot till such time, the plots falling
to the category of the oustees remain unallotted -- Such writ petitioner would
be entitled to apply for a plot in pursuance of public notice inviting
applications from the oustees, if the plots for such category are available. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Section 15 -- Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Ousteees Claim -- Consideration of – Law summarized -- Held,
(i) That date of notification under Section 4 of the Land Acquisition Act, 1894
is relevant to determine the eligibility of a land-owner for allotment of a
residential plot, even if the acquisition is for the purposes of commercial,
industrial or institutional; (ii) That the entitlement of the size of the plot
and the procedure for allotment shall be as on the date of allotment in
pursuance of an advertisement issued inviting application from the oustees;
(iii) That the HUDA or such other authority can reserve plots up to 50% of the
total plots available for all reserved categories including that of oustees. As
to what extent there would be reservation for the oustees, is required to be
decided by the State Government and/or by HUDA or any other authority, who is
entitled to acquire land; (iv) That the oustees are entitled to apply for
allotment of plot along-with earnest money in pursuance of public advertisement
issued may be inviting applications from the general public and the oustees
through one advertisement. If an oustee is not successful, he/she can apply
again and again till such time, the plots are available for the oustees in the
sector for which land was acquired for residential/commercial purposes or in the
adjoining sector, if the land acquired was for institutional and industrial
purposes etc. The plots to the oustees shall be allotted only by public
advertisement and not on the basis of any application submitted by an oustee;
(v) That the price to be charged from an allottee shall be the price mentioned
in the public advertisement in pursuance of which, the plot is allotted and not
when the sector is floated for sale for the first time; (vi) That the State
Government or the acquiring authority shall not advertise any residential plot
for sale without conducting an exercise in respect of plots ear-marked for
reserved categories and after identification of the plots available for the
oustees in each sector. Thereafter, the State Government or the acquiring authority
shall publish an advertisement inviting applications from such oustees to apply
for allotment of plots in accordance with law: and (vii) If in any sector, more
than 50% plots have been allotted by way of reservation including to the
oustees, then such allotment shall not be cancelled or reviewed in view of the
judgment of this court. Haryana Urban
Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475
(P&H DB).
Section 15 – Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Oustees claim --
Whether the condition in the Policies, seeking applications from the oustees
before the Sector is floated for sale, is directory and the said condition is
satisfied even when the applications along-with earnest money are invited from
the general public including from the oustees – Held, oustees form a distinct
and separate category and are entitled to reservation -- Such reservation can
be given effect to, when the plots available in a sector are determined and the
percentage of reservation of each category is fixed – When the HUDA invited
applications from the general public along with the applications from the
oustees, it substantially complies with the conditions in the policies framed
by it -- Condition in the policies to seek applications from the oustees before
the floatation of the sector is not mandatory -- Mandatory provision is the
right of consideration for allotment of plots -- Condition of inviting
applications before the floatation of a sector is a directory provision, as it
relates to procedure of allotment of plots. Haryana Urban Development Authority & others v. Sandeep &
others, 2012(1) L.A.R. 475 (P&H DB).
Section 15 – Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Oustees claim –
Failure to apply – Effect of -- Whether the failure to apply for a plot in
response to advertisement published at one stage entitles a oustees to apply
for allotment of a plot as and when the advertisements are issued subsequently
till such time the plots are available within overall limit of 50% of the total
plots in a sector – Held, since the oustees form a separate and distinct
category, failure to apply in response to an advertisement will not dis-entitle
an oustee from submitting application at a subsequent stage as and when
advertisement is again issued inviting applications for allotment of plots. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Section 15 – Rehabilitation & Resettlement
Policies framed by Haryana Urban Development Authority – Oustees claim –
Allotment of plot – Rate to be charged -- What price could be charged from an
allottee i.e. price prevailing on the date the allotment or when the Sector is
floated first -- 'normal allotment rate' in all circumstances shall be the date
when the sector is first floated for sale -- As a matter of fact, the normal
allotment rate would be the rate advertised by the HUDA in pursuance of which
applications are invited from the general public and the oustees, in pursuance
of which the plots are allotted. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
Section 15, 16, 17 – Delay in instalments --
Resumption order – Validity of -- Whether due to delay in payment, resumption
order can be sustained – Held, resumption is very harsh measure and it should
be resorted only when the allottee has no intention to pay the instalments. Haryana Urban Development Authority, Faridabad
Haryana Utilization of Surplus and Other Areas
Scheme 1976
Paragraph 4 – Punjab Security of Land Tenures Act,
1953 (10 of 1953), Section 2(3), 10-A -- Haryana Ceiling on Land Holdings Act,
1972 (26 of 1972), Section 12(3), 14(2) -- Permissible area -- Surplus area –
Vesting of land in State -- Allotment of land – Held, issue that the assessment
of surplus itself was wrong is not an issue that is available at the stage of
distribution of the property – Landlords will not have a right to challenge the
issue of allotment of the land, after the vesting has taken place. Dona Ram and others v. The State of Haryana
Hereditary claim
Appointment of Lambardar – Though only on the basis of
hereditary claim, a person cannot be appointed as Lambardar, but certainly it
is one of the factors, which has to be considered while appointing Lambardar. Jaibir Singh v. State of Haryana and
others, 2012(1) L.A.R. 672 (P&H DB).
Hindu Succession Act, 1956 (30 of 1956)
Section 15 -- Indian Succession Act, 1925 (39 of
1925), Section 63 -- Will – Minor discrepancies -- Minor discrepancies in the
depositions of attesting witnesses -- Depositions further find corroboration
from the deposition of fingerprint expert – Will was executed by deceased in
favour of defendants, who are her brothers and their sons -- Moreover, it has
come in evidence that after death of her husband, she had started residing with
her brother and their sons as she was being harassed by brothers of her husband
-- She had to contest various suits with brothers of her husband -- She
remained alive for four years after execution of Will -- Will is also
registered one – Ld. Lower courts upheld the Will, which is not illegal. Charan Singh and another v. Amar Singh and
others, 2012(1) L.A.R. 608 (P&H).
Hospital and charitable institution
Punjab Municipal Act, 1911 -- House tax – Exemption
from – By government Notification dated 19.09.1963, the registered charitable
institutions were exempted from payment of House Tax – By subsequent
Notification dated 3.12.1975, even all hospitals were exempted from House Tax –
In letter written by the Secretary to Government of Punjab, Local Government
Department clarifying to the effect that only the property of the registered
religious institutions should be exempted from payment of House Tax, reference
has not been made to the earlier Notifications -- Earlier Notifications have
not been withdrawn so far – Held, this letter will not help the appellant and
on the basis of this letter it cannot be said that the charitable institutions,
like the respondent-Hospital, are not exempted from payment of House Tax. Municipal Committee, Ferozepur City v.
Francis Newton Hospital, Ferozepur City and others, 2012(1) L.A.R. 694 (P&H
DB).
House tax
Punjab Municipal Act, 1911 – Exemption – Hospital and
charitable institution – By government Notification dated 19.09.1963, the
registered charitable institutions were exempted from payment of House Tax – By
subsequent Notification dated 3.12.1975, even all hospitals were exempted from
House Tax – In letter written by the Secretary to Government of Punjab, Local
Government Department clarifying to the effect that only the property of the
registered religious institutions should be exempted from payment of House Tax,
reference has not been made to the earlier Notifications -- Earlier
Notifications have not been withdrawn so far – Held, this letter will not help
the appellant and on the basis of this letter it cannot be said that the
charitable institutions, like the respondent-Hospital, are not exempted from
payment of House Tax. Municipal
Committee, Ferozepur City v. Francis Newton Hospital, Ferozepur City and
others, 2012(1) L.A.R. 694 (P&H DB).
Punjab Municipal Corporation Act, 1976 -- Section 93(c) is applicable only
where the rental value cannot be worked out -- Where the property is situated,
the provisions of the Rent Act are applicable, there was no bar to assess the
rental value -- Matter is remanded back to the Municipal Corporation, to
determine the house tax value under Section 93(b). M/s Dwarka Cheap Store v. The Municipal Corporation and others, 2012(1) L.A.R. 350 (P&H).
House
tax assessment
Punjab Municipal Act, 1911 -- Appeal -- Writ
Jurisdiction -- Nature of property, whether it is rented out or in self
occupation, present market value and rental income, require the evidence --
Only the appellate authority can determine such questions of fact based on the
evidence – Petitioner has right to appeal, it cannot legally be permitted to
ignore/bye-pass these statutory remedies under the garb of provisions of
Articles 226/227 of the Constitution of India. Punjab Alkalies & Chemicals Limited v. The Municipal Council,
2012(1) L.A.R. 1 (P&H).
Illegal possession of Gram Panchayat land
Punjab Panchayat matters -- Panch of village --
Disqualification -- Possessing land of the Gram Panchayat illegally is a
disqualification in section 208 (i)(k) of the Act 9 of 1994 which is
conspicuously absent in Section 11 of Act No.19 of 1994 – Since Act No.9 of
1994 is later in time, therefore, the provision of Act No. 9 of 1994, which are
not consistent with the provisions of Act of 19 of 1994 would not be
applicable. Som Lal’s case 2008 (2) RCR (Civil) 760, relied. Balbir Singh v. Karnail Singh &
others, 2012(1) L.A.R. 255 (P&H).
Implied notice
If from the facts it can be inferred that a party knew about
the subject matter of the notice, knowledge is imputed by implied notice – For
example, if the purpose of the notice is to require a party to appear before an
authority on a particular date, even though such a notice is not personally
served on him, if the person appears before the authority on that date or
participates in the subsequent proceedings, then the person can be said to have
implied notice. The Special Deputy
Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam & others, 2012(1)
L.A.R. 151 (SC).
Indian Stamp Act, 1899 (Act No. 2 of 1899)
Section 47-A – Sale deed – Registration of – Nature of
property – Relevant date -- Nature and user of the building, residential on the
date of the purchase -- Merely because the property is being used for
commercial purpose at the later point of time may not be a relevant criterion
for assessing the value for the purpose of stamp duty -- Nature of user is
relatable to the date of purchase and it is relevant for the purpose of
calculation of stamp duty. State of U.P.
& Ors. v. Ambrish Tandon & another, 2012(1) L.A.R. 431 (SC).
Indian Succession Act, 1925 (39 of 1925)
Section 63 -- Execution of Will – Proving of -- Legal
requirements for proving execution of Will can be summarised as - A Will like
any other document is to be proved in terms of provisions of Indian Succession
Act and the Indian Evidence Act; Onus of proving the Will is on the propounder;
Testamentary capability of the propounder must also be established; The
execution of the Will by the testator has to be proved; At least one attesting
witness is required to be examined for the purpose of proving the execution of
the Will; It is required to be shown that the Will has been signed by the
testator with his free will and that at the relevant time, he was in sound
disposing state of mind and understood the nature and effect of disposition; It
is also required to be established that he has signed the Will in the presence
of two witnesses, who attested his signatures in his presence or in the
presence of each other; When there exist suspicious circumstances, the onus
would be on the propounder to explain the same to the satisfaction of the court
before it can be expected as genuine. The Court must satisfy its conscience
before its genuineness is accepted by taking a rationale approach. Charan Singh and another v. Amar Singh and
others, 2012(1) L.A.R. 608 (P&H).
Section 63 -- Hindu Succession Act, 1956 (30 of 1956),
Section 15 -- Will – Minor discrepancies -- Minor discrepancies in the
depositions of attesting witnesses -- Depositions further find corroboration
from the deposition of fingerprint expert – Will was executed by deceased in
favour of defendants, who are her brothers and their sons -- Moreover, it has
come in evidence that after death of her husband, she had started residing with
her brother and their sons as she was being harassed by brothers of her husband
-- She had to contest various suits with brothers of her husband -- She
remained alive for four years after execution of Will -- Will is also
registered one – Ld. Lower courts upheld the Will, which is not illegal. Charan Singh and another v. Amar Singh and
others, 2012(1) L.A.R. 608 (P&H).
Section 63 -- Will – Sound disposing mind – Proof of –
Doctor, who had issued a certificate Ex.DW2/A shows that deceased was treated
by him as OPD patient and that at that time she was suffering from major
depressive order -- However DW2, Doctor deposed that at that time when this OPD
slip was issued, other Doctor was Psychiatrist in the hospital and he could not
say as to since how long she was suffering from the disease -- No other entry
in the register except the said entry -- Even the said OPD slip was not
produced -- Even it was not mentioned as to what medicine was prescribed --
Hence, it was rightly held by both the courts below that appellants have failed
to prove that deceased was suffering from some major disease and that she was
not in sound disposing mind when Will was allegedly executed by her in favour
of defendants. Charan Singh and another
v. Amar Singh and others, 2012(1) L.A.R. 608 (P&H).
Instrument of partition
Partition of land – Finalisation of -- Private respondents are
subsequent vendees, they had purchased the land after partition of the land --
Mutation has been sanctioned on the basis of instrument of partition -- Civil
Court in appeal upheld the order of partition also – Held, there was no
occasion for the Financial Commissioner to set aside the orders of the revenue
authorities. Faqir Singh and others v.
Financial Commissioner (Co-operation), Punjab
and others, 2012(1) L.A.R. 134 (P&H).
Interest
Rent Act -- Mesne profit – Contention that no interest
could have been granted by the Appellate Authority on the amount of mesne
profit as imposed by the Court is without any merit -- On mesne profits,
interest has to be calculated on yearly basis. Sunil Kumar v. Lal Chand and others, 2012(1) L.A.R. 548 (P&H).
Jamabandi
An entry in a jamabandi merely records a fact, but is
not the fact itself. Sher Singh and
others v. Director Rural Development & Panchayat, Punjab
and others, 2012(1) L.A.R. 677 (P&H DB).
Presumption of truth attached to jamabandis, which are
per-se admissible in evidence. Maghi Ram
(deceased) through his LRs. and another v. Gram Panchayat, Chirwa and others,
2012(1) L.A.R. 519 (P&H DB).
Jamabandi entries
Mutation entries – Fard Badar -- Substantial
variations have been made in the entries in jamabandi by way of fard badar as
the earlier mutations were cancelled – Held, Fard badar is patently illegal –
No jurisdiction to make substantial changes/variations in the jamabandi, which
can only be carried out by way of a Civil Suit, in terms of Chapter VI of the Specific
Relief Act, 1877. Rahul and others v.
State of Haryana and others, 2012(1) L.A.R. 576 (P&H DB).
Presumption of truth – Rebuttal of -- Mere vague
report of Kanungo, site plan and Index report is not sufficient to rebut the
presumption of truth attached to the entries contained in the Jamabandis,
particularly when Field Kanungo, who prepared the report has admitted that no
pacca points were affixed by him at the time of demarcation. Manmohan Kaur v. Davinder Pal Singh,
2012(1) L.A.R. 62 (P&H).
Joint land
Partition of land -- Purchase of specific Khasra –
Effect of -- Even though the petitioner has purchased a specific khasra numbers
from one of the co-sharers, the same will be deemed to have been purchased as
share in the joint land in question that is why the partition proceedings are
permitted under the provisions of the law -- Long standing possession over the
property cannot be deemed to be possession for all times to come. Lichhmi v. State of Haryana and others, 2012(1) L.A.R. 193 (P&H).
Possession -- Nature of -- Once the parties to the lis
have purchased their respective shares out of joint property, then they cannot
claim to be in exclusive possession of any particular portion of the suit
property, unless and until, the joint land is legally partitioned between them
-- It will remain a joint property of the parties and plaintiff cannot claim
exclusive possession of any specific portion. Manmohan Kaur v. Davinder Pal Singh, 2012(1) L.A.R. 62 (P&H).
Possession -- Partition of land -- If any co-owner is
in possession of any portion of the land, he can protect the same, unless and
until, the joint land is duly partitioned in accordance with law – Co-owner
wants the possession of the suit land, then she has to file a suit for
partition of the joint land -- In the absence of the same, suit for possession
is not maintainable. Manmohan Kaur v.
Davinder Pal Singh, 2012(1) L.A.R. 62 (P&H).
Judicial review
Constitution enshrines and guarantees rule of law and
the High Court under Article 226 of the Constitution is empowered to ensure
that each and every authority of the State, including the government acts
bonafide and within the limits of its power -- Where there is arbitrariness in
the state action or such action is to help some individual at the cost and peril
of other similarly situated person(s) resulting in discrimination leading to
depriving him/them of their rights -- Article 14 steps in and judicial review
strikes such an action to be not in accordance with law and, thus, has to be
struck down. Surinder Kumar and others
v. State of Punjab and others, 2012(1) L.A.R. 277
(P&H DB).
Jumla Malkan & Dikar Haqdaran Hasab Rasad
Rakba Khewat
Makbuja Nagar Panchayat Rafaae Aam & Share Aam –
Shamilat deh – Vesting of -- Land in the revenue record has been described as
Jumla Malkan & Dikar Haqdaran Hasab Rasad Rakba Khewat and in the
cultivation column, it has been shown as Makbuja Nagar Panchayat Rafaae Aam
& Share Aam – In the latest jamabandi, the Gram Panchayat has been shown as
the owner -- Such land falls in the definition of Shamlat as defined under
Section 2(g) of the 1961 Act. Surinder
Singh and others v. Joint Development Commissioner/IRD and others, 2012(1)
L.A.R. 530 (P&H DB).
Jumla Mushtarka Malkan Hasad Rasad Khewat
Bachat land – Shamilat land -- Some land deducted from
holding of proprietors by imposing a pro-rata cut on holdings at the time of
consolidation to be used for common purposes of the entire proprietary bodies –
Bachat land is a land which was left after utilising the land for common
purposes, as mentioned in consolidation scheme -- Said land is normally
recorded in the revenue record as Jumla Mushtarka Malkan Hasad Rasad Khewat --
Same also describes the share of each proprietor, which is to the extent of
land contributed by such land owners -- Management and control of bachat land
does not vest in Gram Panchayat. Maru
Ram and others v. Randhir and others, 2012(1) L.A.R. 556 (P&H).
Jurisdiction of Collector
Punjab Village Common Lands (Regulation) Act, 1961 --
Reduction of lease period – Collector came to a definite conclusion that the
auction was conducted without any proper munadi -- At the time of auction, even
BDPO was also not present, his signatures were obtained lateron -- Collector
decreased the period of lease from 8 years to 3 years and ordered that if the
petitioner is ready to take the pond on Patta at the rate of Rs.1,50,000/- per
year after 3 years then he should deposit its ¼th in the Panchayat Department,
after three years – Held, period of lease has been reduced keeping in view the
facts of the case and interest of the Gram Panchayat -- Under section 10-A of
the Act, AC 1st Grade is empowered to cancel the lease or vary the terms
thereof unconditionally or subject to such condition as he may think fit --
Therefore, it cannot be said that reduction of lease period is without
jurisdiction. Jaibir v. District
Collector, Bhiwani & Ors., 2012(1) L.A.R. 169 (P&H DB).
Jurisdiction of civil Court
Punjab Land Reforms Act, 1972 – Surplus area –
Declaration of – Challenge to -- Collector held that the land measuring 1.66.62
hectares was surplus with the plaintiff – Collector, accordingly, issued notice
under section 9 of the Act for delivering possession of the said land – Civil
suit questioning the orders – Held, civil court has no jurisdiction to try the
suit. State of Punjab
Shamilat deh -- Question of title – Civil court
would have no jurisdiction to decide the question of title pertaining to land
which is shamlat deh and vests with the Panchayat. Yudhvir Singh v. Gram Panchayat Halla and another, 2012(1) L.A.R. 259 (P&H).
Jurisdiction of High Court
Northern India Canal and Drainage Act, 1873 --
Transfer/Shifting of outlet – Contention that land of the appellants shown as
Mark A, B and D in the site plan and new outlet is situated at lower level,
therefore, land of the appellants situated in these blocks will not be properly
irrigated – Held, High Court cannot go into the question of level of land -- It
is for the canal authorities to examine this aspect and provide an outlet to
the land of the farmers, by keeping in view the interest of better irrigation
-- They are expert in such matters.
Jagtar Singh and others v. Superintending Canal Officer, Ferozepur Canal
Circle, Ferozepur and others, 2012(1) L.A.R. 702 (P&H DB).
Jurisdiction of Presiding officer
Election result – Presiding Officer did not have the
jurisdiction/power to change the result, by means of election result at the
direction of Returning Officer -- Same is not only illegal, but against the
statutory provisions of law, as well and cannot legally be sustained. Kulwant Singh and another v. State of
Punjab and others, 2012(1) L.A.R. 179 (P&H).
Presiding Officer did not have the jurisdiction/power to
change the result, by means of election result at the direction of Returning
Officer -- Same is not only illegal, but against the statutory provisions of
law, as well and cannot legally be sustained. Kulwant Singh and another v. State of Punjab and others, 2012(1) L.A.R.
179 (P&H).
Jurisdiction of Returning Officer
Election of Panch -- Election result – Returning Officer did
not have the jurisdiction to direct the Presiding Officer to change the
election result already duly announced by him by way of election result. Kulwant Singh and another v. State of
Punjab and others, 2012(1) L.A.R. 179 (P&H).
Khasra Girdawari
Correction in -- Petitioner did not come present
before A.C. 2nd Grade despite proclamation -- Plea regarding ex-parte order is
not tenable -- Moreover A.C. 2nd Grade had passed the order after visiting the
land in dispute where he found respondents in cultivating possession of land --
No illegality/irregularity or any perversity in the order of the lower revenue
courts. Dev Raj and others v. Commissioner, Jalandhar Division and others, 2012(1) L.A.R. 628 (FC Pb.).
Land Acquisition Act, 1894 (1 of 1894)
Section 3, 4,6 – Public purpose – Acquisition of land
– Land for town or rural planning -- Challenge to – As per Section 3 of the
Act, public purpose has been defined to include the provision of land for town
or rural planning which obviously has to be prior to issuance of a notification
u/s 4 of the Act -- Master Plan was notified after issuance of notification u/s
4 -- Unless there is proper planning for acquisition of land by the Appropriate
Government, it would not pass the test of public purpose for which only the
land can be acquired -- Notifications acquiring land cannot be upheld. Surinder Kumar and others v. State of
Punjab and others, 2012(1) L.A.R. 277
(P&H DB).
Section 4(1) – Notification u/s 4 -- Notice -- Acquiring
authority need not prove actual notice of the proposal to acquire u/s 4(1) of
the Act, to the person challenging the acquisition -- Such notice can also be
by way of implied notice or constructive notice. The Special Deputy Collector, Land Acquisition C.M.D.A. v. J.
Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Section 4(1) – Notification u/s 4 -- Publication of
notification in two newspapers -- Object and purpose is to provide for
publication of the preliminary notification in two daily newspapers having
reasonably wide circulation in the locality so that people (persons interested)
in that locality may become aware of the proposals for acquisition. The Special Deputy Collector, Land
Acquisition C.M.D.A. v. J. Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Section 4(1) – Notification u/s 4 -- Publication of
notification in two newspapers -- Circulation of newspaper -- If there is
failure to publish in two daily newspapers or if the publication is in two
newspapers that have no circulation at all in the locality, without anything
more, the notification u/s 4(1) of the Act and the consequential acquisition
proceedings will be vitiated, on the ground of non-compliance with an essential
condition of section 4(1) of the Act. The
Special Deputy Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam &
others, 2012(1) L.A.R. 151 (SC).
Section 4(1) – Notification u/s 4 -- Publication of
notification in two newspapers -- Circulation of newspaper -- If the two newspapers
carrying the publication of the notification have reasonably wide circulation
in the locality, then the requirements of section 4(1) are complied with -- In
that event, neither the notification u/s 4(1), nor the consequential
acquisition proceedings would be open to challenge, on the ground of violation
of Section 4 of the Act. The Special
Deputy Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam & others,
2012(1) L.A.R. 151 (SC).
Section 4(1) – Notification u/s 4 -- Publication of
notification in two newspapers -- Circulation of newspaper – Pleadings -- If
the newspapers in which the notification is published were circulating in the
locality, but did not have a reasonably wide circulation in the locality, then
neither the notification u/s 4(1) nor the consequential acquisition
proceedings, will become vitiated automatically -- If the person aggrieved,
apart from demonstrating that the two newspapers did not have reasonably wide
circulation in the locality, also asserts that as a consequence, he did not
have notice of the proposed acquisition that was provided for in Section 4(1)
of the Act, in the absence of evidence to the contrary, the acquisition to the
extent of the land of such person will be vitiated -- But if such assertion is
rebutted by the acquiring authority by placing evidence to show that the person
concerned had in fact notice (as for example where he participated in the
enquiry under section 5A of the Act), the acquisition will not be vitiated. The Special Deputy Collector, Land Acquisition
C.M.D.A. v. J. Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Section 4(1) – Notification u/s 4 -- Publication of
notification in two newspapers -- If the person challenging the acquisition is
able to establish that the notifications were deliberately and with malafides,
published in newspapers having negligible circulation, to avoid notice to the
persons concerned, then section 4(1) will be violated. The Special Deputy Collector, Land Acquisition C.M.D.A. v. J.
Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Section 4, 6 – Acquisition of land – Release of 90 %
land – Other landholder’s right -- At the time of awards, substantial area was
released being thickly constructed – 90% area has been recommended for
exclusion from acquisition -- Public purpose of acquiring the land seems to
have been defeated -- Whereas the land/construction belonging to the
petitioners is sought to be acquired -- Such an action would smacks of
arbitrariness and, thus, violative of Article 14 of the Constitution -- Notifications
u/s 4 and 6 of the Act as well as the awards subsequently passed, set aside. Satish Kumar and others v. State of Haryana
Section 4,5A, 6 – Acquisition of land – Objections –
Opportunity of hearing -- Land Acquisition Officer adjourned the hearing on one
occasion as requested by the appellant, however, refused to adjourn the matter
any further -- Second request was rejected – Land Acquisition Officer could
have adjourned the proceedings after putting the appellant to terms because
hearing the representative of the owner companies was mandatory. M/S. Kamal Trading Private Limited (Now
Known As Manav Investment & Trading Co. Ltd.) v. State of West Bengal
Section 4,5A, 6 – Acquisition of land – Objections –
Report of Collector -- Report of the Collector is not an empty formality -- It
is only upon receipt of the said report that the Government can take a final
decision on the objections – Formation of opinion by the appropriate Government
as regards the public purpose must be preceded by application of mind as
regards consideration of relevant factors and rejection of irrelevant ones –
Recommendations must indicate objective application of mind. M/S. Kamal Trading Private Limited (Now
Known As Manav Investment & Trading Co. Ltd.) v. State of West Bengal
Section 4,5A, 6 – Acquisition of land – Objections –
Report of Collector -- Mere use of the words ‘for the greater interest of
public’ does not lend the report the character of a report made after
application of mind -- Land Acquisition Officer’s report is utterly laconic and
bereft of any recommendations – He was not expected to write a detailed report
but, his report, however brief, should have reflected application of mind. M/S. Kamal Trading Private Limited (Now
Known As Manav Investment & Trading Co. Ltd.) v. State of West Bengal
Section 4,5A, 6 – Acquisition of land – Objections –
Right of -- Section 5A(1) gives a right to any person interested to file an
objection, Section 5A(2) requires the Collector to give the objector an
opportunity of being heard in person or by any person authorized by him --
After hearing the objections, the Collector can, if he thinks it necessary,
make further inquiry, thereafter, he has to make a report to the appropriate
Government containing his recommendations on the objections together with the
record of the proceedings held by him for the decision of the appropriate
Government and the decision of the appropriate Government shall be final -- It
is a minimal safeguard afforded to him by law to protect himself from arbitrary
acquisition -- Act being an ex-proprietary legislation, its provisions will
have to be strictly construed. M/S. Kamal
Trading Private Limited (Now Known As Manav Investment & Trading Co. Ltd.)
v. State of West Bengal
Section 4,6 – Acquisition of land – Challenge to –
Mixed land use – Discrimination -- Vacant land of TDI was not included in the
acquisition, for which either CLU was applied but not granted till the date of
notification u/s 6 of the Act and in three instances CLU was applied for after
the issuance of notification u/s 6 of the Act – Petitioner’s claim is much
better than that of TDI for the reason that they had already obtained the
necessary sanctions and approval from the Competent Authority for constructing
and occupying their premises -- This itself is a good ground for quashing the
notification issued u/s 6 of the Act.
Surinder Kumar and others v. State of Punjab and others, 2012(1) L.A.R. 277 (P&H DB).
Section 4,6,23,24 – Acquisition
of land -- Market Value – Compensation payable to the claimants has to be
computed in terms of Sections 23 and 24 of the Act -- Market value of the land
has to be determined at the date of the publication of the notification u/s
4(1) of the Act, after taking into consideration what is stated under Sections
23(1), 23(1A), 23(2) and excluding the considerations stated under Section 24
of the Act -- It is not possible to fix the compensation with exactitude or
arithmetic accuracy -- Court may have to take recourse to some guesswork while
determining the fair market value of the land and the consequential amount of
compensation. Trishala Jain
& Anr. v. State of Uttaranchal
Section 4,6,23,24 – Acquisition
of land -- Market Value -- Plotting has been done only on part of the acquired
land and the land is surrounded by colonies like ITBP etc. but, there is no
evidence to show that the acquired land itself is developed and is having all
the required facilities and amenities -- It may be a case where less deduction
may be applied but certainly it is not a case of ‘no deduction' -- Deduction of
10% from the market value on account of development charges and other possible
expenditures would be justifiable and called for in the facts and circumstances
of the present case. Trishala Jain
& Anr. v. State of Uttaranchal
Section 4,6,23,24 – Acquisition
of land -- Market Value – Principle of guesstimation -- Principle of
guesstimation will have no application to the case of “no evidence'’-- This
principle is only intended to bridge the gap between the calculated
compensation and the actual compensation – Certain principles controlling the
application of guesstimate are : (a) Wherever the evidence produced by the
parties is not sufficient to determine the compensation with exactitude, this
principle can be resorted to -- (b) Discretion of the court in applying
guesswork to the facts of a given case is not unfettered but has to be
reasonable and should have a connection to the data on record produced by the
parties by way of evidence. Further, this entire exercise has to be within the
limitations specified under Sections 23 and 24 of the Act and cannot be made in
detriment thereto. Trishala Jain
& Anr. v. State of Uttaranchal
Section 4,6,23,24 – Acquisition
of land -- Market Value -- Sale instance -- Sale deeds executed in favour of
the family members or persons known to the claimants just about two months
prior to the issuance of the notification u/s 4(1) are liable to be ignored. Trishala
Jain & Anr. v. State of Uttaranchal
Section 4,6,23,24 – Acquisition
of land -- Market Value -- Sale instance --
Vendor or vendee of sale deed had not been examined to prove them in Court -- Sale India Uttaranchal
Section 4,6,23,24 – Acquisition
of land -- Market Value -- Sale instance – Law of deduction – Not possible to
state precisely the exact deduction which could be made – Deduction is to be
applied on account of carrying out development activities like providing roads
or civic amenities such as electricity, water etc. when the land has been
acquired for construction of residential, commercial or institutional projects
-- It shall also be applied where the sale instances (exemplars) relate to
smaller pieces of land and in comparison the acquisition relates to a large
tract of land -- Deduction can also be applied on account of wastage of land --
It is neither possible nor appropriate to stricto sensu define a class of cases
where the Court would not apply any deduction -- The cases where the acquired
land itself is fully developed and has all essential amenities, before
acquisition, for the purpose for which it is acquired requiring no additional
expenditure for its development, falls under the purview of cases of ‘no
deduction'. Trishala Jain
& Anr. v. State of Uttaranchal
Section 4,6,23,24 – Acquisition
of land -- Market Value -- Sale instance of smaller size of land – Sale
instances even of smaller plots could be considered for determining the market
value of a larger chunk of land with some deduction unless, there was
comparability in potential, utilisation, amenities and infrastructure with
hardly any distinction. Trishala Jain
& Anr. v. State of Uttaranchal
Section 4,6,23,24 – Acquisition
of land -- Market Value – Small sale instance -- Deduction from -- Land
acquired had the potential of being developed for residential or institutional
purposes, the same was acquired for construction of a Government Polytechnic
Institute – Sale instance is situated at a distance of 1-1/2 furlong from the
acquired land cannot be said to be incomparable sale instance, i.e. it has to
be taken as a comparable sale instance – Value of sale of small pieces of land
can be taken into consideration for determining even the value of a large tract
of land – 10% deduction is made from the estimated market value of acquired
land. Trishala Jain & Anr. v. State
of Uttaranchal
Section 6 -- Mixed land use – Discrimination -- Vacant
land of TDI was not included in the acquisition, for which either CLU was
applied but not granted till the date of notification u/s 6 of the Act and in
three instances CLU was applied for after the issuance of notification u/s 6 of
the Act – Petitioner’s claim is much better than that of TDI for the reason
that they had already obtained the necessary sanctions and approval from the
Competent Authority for constructing and occupying their premises -- This
itself is a good ground for quashing the notification issued u/s 6 of the Act. Surinder Kumar and others v. State of
Punjab and others, 2012(1) L.A.R. 277
(P&H DB).
Section 6, 11-A – Acquisition of land – Challenge to --
Delay and laches – Award not passed within statutory period -- Writ petition
was filed immediately after pronouncement of the award – Could not have been
non-suited by invoking the rule of laches. R.
Indira Saratchandra v. State of Tamil Nadu & others, 2012(1) L.A.R. 136
(SC).
Section 6, 11-A – Acquisition of land – Stay of proceedings
– Statutory period for Award -- If any action or proceeding required to be
taken after the issue of declaration u/s 6 is stayed by a Court, the entire period
of stay will get excluded in calculating the period of two years within which
an award is required to be made by the Collector -- Once the stay order passed
by a Court is vacated or ceases to operate, the clog put on the running of the
period specified in the main section is removed. R. Indira Saratchandra v. State of Tamil Nadu & others, 2012(1)
L.A.R. 136 (SC).
Section 6, 11-A – Acquisition of land – Stay of proceedings
– Statutory period for Award -- Time taken in supply of copy of the judgment
cannot extend the period of two years specified in Section 11A. R. Indira Saratchandra v. State of Tamil
Nadu & others, 2012(1) L.A.R. 136 (SC).
Section 23 – Market Value -- Agricultural land --
Merely by notifying the regional plan showing certain agricultural lands as
earmarked for industrial purpose, those lands will not cease to be agricultural
lands. Goa Housing Board v. Rameshchandra Govind
Pawaskar & another, 2012(1) L.A.R. 434 (SC).
Section 23 – Market Value – In so far as the landowner
is concerned, the compensation to which he is entitled would be what he would
have got if he had sold it in open market to a willing purchaser who could have
used it only for agricultural purpose. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1)
L.A.R. 434 (SC).
Section 23 – Market Value -- Land under tenancy –
Prohibition regarding use of land for any purpose other than agriculture --
Atleast 50% will have to be deducted from the market value of freehold land
with development potential to arrive at the market value of such land which can
be used only for agricultural purposes. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1)
L.A.R. 434 (SC).
Section 23 – Market Value – Report of consultant on
trees -- Witness-consultant in Agriculture and Horticulture personally visited
the acquired land and gave the details of the trees standing on different parts
of the land, their present and future age, condition, height, width, spread and
annual fruit production capacity -- Valuation made by him was amply supported
by the market rates of fruits fixed by Agriculture and Horticulture Department
of Government – In the cross-examination, the witness stood by reports given by
him – Held, this being the position, the High Court had no reason to overturn
the finding recorded by the Reference Court on the issue of existence of trees
on the acquired land and their valuation. Chindha
Fakira Patil (D) through L.Rs. v. The Special Land
Section 23 – Market Value – Sale deed exhibited -- No
basis for the assumption that the purchaser of the land must have offered
higher price for special reasons -- It was open to the respondent to
cross-examine the witness and elicit the special reasons, if any, for sale of
land allegedly at a higher price – However, no such question was put to the
witness – Mere fact that average sale price of the transactions relied upon by
the respondent was substantially less could not be made a ground for discarding
sale deed. Chindha Fakira Patil (D)
through L.Rs. v. The Special
Land
Section 23 -- Market Value of land – Prohibition
regarding use of the land for purposes other than agriculture – Effect of -- If
there is a prohibition regarding use of the land for purposes other than
agriculture, the value of such land on account of the same being put to
commercial, residential or industrial use cannot form the basis of determining
the market value -- In view of the permanent restriction regarding user, that
is it should only be used for agricultural purposes, and the bar in regard to
any non-agricultural use, it will have to be valued only as an agricultural
land and cannot be valued with reference to sales statistics of other nearby lands
which have the potential of being used for urban development. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1)
L.A.R. 434 (SC).
Land in other village
Appointment to Lambardar – Merely because respondent
No.4 is owning land in the adjoining villages, it cannot be said that he will
not be available in the village, particularly when he is a permanent resident
of the village. Makhan Singh v.
Financial Commissioner (Co-operation) Punjab, Chandigarh
Land for town or rural planning
Land Acquisition Act, 1894 -- Acquisition of land –
Challenge to -- As per Section 3 of the Act, public purpose has been defined to
include the provision of land for town or rural planning which obviously has to
be prior to issuance of a notification u/s 4 of the Act -- Master Plan was
notified after issuance of notification u/s 4 -- Unless there is proper
planning for acquisition of land by the Appropriate Government, it would not
pass the test of public purpose for which only the land can be acquired --
Notifications acquiring land cannot be upheld. Surinder Kumar and others v. State of Punjab and others, 2012(1) L.A.R. 277 (P&H DB).
Land under tenancy
Land Acquisition Act, 1894 -- Market Value --
Prohibition regarding use of land for any purpose other than agriculture --
Atleast 50% will have to be deducted from the market value of freehold land
with development potential to arrive at the market value of such land which can
be used only for agricultural purposes. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1)
L.A.R. 434 (SC).
Lease
Punjab Village Common Lands (Regulation) Act, 1961 --
Reduction of lease period – Jurisdiction of Collector -- Collector came to a
definite conclusion that the auction was conducted without any proper munadi --
At the time of auction, even BDPO was also not present, his signatures were
obtained lateron -- Collector decreased the period of lease from 8 years to 3
years and ordered that if the petitioner is ready to take the pond on Patta at
the rate of Rs.1,50,000/- per year after 3 years then he should deposit its ¼th
in the Panchayat Department, after three years – Held, period of lease has been
reduced keeping in view the facts of the case and interest of the Gram Panchayat
-- Under section 10-A of the Act, AC 1st Grade is empowered to cancel the lease
or vary the terms thereof unconditionally or subject to such condition as he
may think fit -- Therefore, it cannot be said that reduction of lease period is
without jurisdiction. Jaibir v. District
Collector, Bhiwani & Ors., 2012(1) L.A.R. 169 (P&H DB).
Tenancy – Deposits made in Bank -- Occupants did not send
any communication informing the owner about the deposits nor did the challans
showed that the deposits were being made towards rent -- There were no rent
receipts from the appellants -- Respondents did not choose to send the rents by
postal money orders -- There is no explanation as to non-deposit of the alleged
rents for the earlier period – Held, deposits were not bonafide. Dnyaneshwar Ranganath Bhandare &
Another v. Sadhu Dadu Shettigar (Shetty) & Another, 2012(1) L.A.R. 120
(SC).
Tenancy -- Electoral Roll will not show whether a person is
occupying a premises as a tenant or as a licencee -- It may at best show that
the person was residing in the premises -- Inference drawn by the court from
the electoral roll, that respondent was not a mere licencee, is totally
illogical and unsustainable. Dnyaneshwar
Ranganath Bhandare & Another v. Sadhu Dadu Shettigar (Shetty) & Another,
2012(1) L.A.R. 120 (SC).
Tenancy -- No lease deed or tenancy agreement to evidence
the tenancy; nor were there any receipts for payment of any rent – Owner had
given evidence on oath that respondents were gratuitous licensees and they had
never paid any rent or other charges and his evidence was corroborated by a
neighbour – Held, the burden was on the occupants to establish that they were
tenants and not licensees. Dnyaneshwar
Ranganath Bhandare & Another v. Sadhu Dadu Shettigar (Shetty) &
Another, 2012(1) L.A.R. 120 (SC).
Leave to defend
C.P.C. -- Ejectment of tenant -- Recovery suit – Ejectment
order was passed on account of non-payment of rent – Suit for recovery of
arrears of rent -- A perusal of the application for leave to defend shows that
neither the rate of interest nor the amount claimed by the plaintiff-petitioner
had been disputed except to allege that the rent note was forged – Held, in the
absence of any prima facie material to substantiate that the petitioner had
made payment of the amount either by way of rent or mense profits for the
period he had occupied the premises, leave to defend granted by the trial court
was not justified -- Only plea regarding forged rent note could not be a
substantial defence entitling the defendant to leave to defend. Dhrenderpal Gupta v. Mahipal, 2012(1)
L.A.R. 171 (P&H).
East Punjab Urban Rent Restriction Act, 1949 -- NRI landlord
– Other NRI/Co-owner used his rights as NRI – Effect of -- Whether an NRI
landlord, who is a co-owner in two different properties which are in occupation
of the tenants, can maintain a petition u/s 13-B of the Act after filing of the
petition by his co-owners as NRI in respect of the other property”? –
Sufficient grounds for granting leave to defend with regard to the
maintainability of eviction petition as NRI landlords. Bachan Kaur’s case 2011
(3) L.A.R. 263 (P&H DB) relied.
Harbhajan Singh v. Sukhjinder Singh Aulak @ Billa and another, 2012(1) L.A.R.
145 (P&H).
Rent Act (Punjab) -- NRI landlord – Admittedly
respondent is a British passport holder and settled in U.K, respondent-landlady
is of Indian origin – Respondent-landlord has categorically stated that she
wants to settle in India and for the purpose she requires the premises in
dispute -- A presumption with regard to need of the respondent-landlord is
deemed to be drawn in his/her favour as provided under Section 18-A (4) of the
Act – Once leave to defend is declined, eviction order has to follow. Harjinder Singh v. Baljit Kaur, 2012(1)
L.A.R. 460 (P&H).
Rent Act (Punjab) -- NRI landlord – Bonafide need –
Simply because the tenant is disputing the need of the landlord is not enough
to hold that the tenant has raised triable issues in his application for leave
to contest -- Except the allegations of harassment the tenant has not come out
with any plausible defence -- Genuineness and veracity of the complaint made by
the tenant before the police authorities can only be determined by the criminal
Court and not under provisions of the Rent Act -- Since the landlord fulfilled
all the ingredients of section 13-B of the Act and there being not an iota of
evidence to rebut the presumption of bona fide need in favour of the landlord,
the eviction order needs no interference. Poonam
Kumari v. Rajinder Kumar, 2012(1) L.A.R. 559 (P&H).
Rent Act (Punjab ) --
NRI landlord – Eviction -- Where u/s 13-B of the Act, leave is refused to the
tenant to defend the proceedings brought by the N.R.I. landlord, eviction of
the tenant has to be ordered as an automatic consequence. Anwar Ali v. Gian Kaur, 2012(1)
L.A.R. 306 (P&H Full Bench).
Limitation
East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948 -- Delay of 34 years in filing the petition before the
consolidation authorities – Prayer made is that there was shortage of 12 annas of
land, which was against the scheme and that shortage was bound to be made good
– Held, it was for the party to give some explanation for the delay in filing
the petition u/s 42 of the Act and it was for that Additional Director to
record a finding that the cause so disclosed was sufficient to condone the
delay – Delay is unreasonable and inordinate and the same was liable to be
dismissed. Gram
Panchayat Village
Kakarwal v. Additional Director, Consolidation of Holding Punjab ,
and others, 2012(1) L.A.R. 618 (P&H).
Revision – Any appeal /revision can be admitted
after the prescribed period if the appellant satisfies the court that he had
sufficient cause for not preferring the appeal /revision within such period --
Delay of every day has to be justified -- No plausible explanation has been
given for the undue delay on 11 years, 1 month and 11 days -- Abnormal delay of
more than 11 years does not deserve condonation, the same is rejected --
Revision petition is dismissed being time barred. Tara Chand v. Administrator,
New Mandi Township ,
Punjab , 2012(1)
L.A.R. 634 (FC Pb.).
Void order -- Law of limitation does not take away a
right but only bars the remedy -- Principle is significant in a situation where
a person's right is sought to be defeated by citing an order alleged to have
been passed against his interest -- A person defending his right against such a
contention is at all times entitled to point out that he had not been himself a
party and that he is entitled to ignore the same -- There exists no period of
limitation for a person to ignore a void order, so long as a writ is not being
filed to declare about the alleged invalidity of the order. Chand Singh (deceased) through his LRs, and
others v. The State of Punjab
Locus standi
Public premises laws -- Eviction petition – Contention
that it is only the owner who can file an application for eviction against the
unauthorized occupants rejected – Held, anyone can bring to the notice of the
Collector about illegal occupants of such premises. Puran and others v. The Commissioner and others, 2012(1) L.A.R. 448
(P&H).
Main watercourse
Warabandi – Branch water course – It is settled
principle of law that firstly from the main watercourse, the Branch watercourse
will run -- Thereafter, the water will again flow into the main watercourse. Krishan Lal v. Superintending Canal Officer
and others, 2012(1) L.A.R. 377 (P&H).
Warabandi – Branch water course – Land of the
petitioner is on the branch watercourse and is to be irrigated first, whereas,
the land of private respondent is at the main watercourse in the end -- So,
private respondent is entitled to the jhara (residue) of the water. Krishan Lal v. Superintending Canal Officer
and others, 2012(1) L.A.R. 377 (P&H).
Maintainability of civil suit
Punjab Security of Land Tenures Act, 1953 -- Ejectment order
by Asstt. Collector – Challenge to – On the one hand the plaintiffs have
challenged the order passed by the AC Ist Grade by filing the suit and on the
other hand they had challenged the same very order before the superior
authorities – Suit was not maintainable. Narender
Singh and others v. Kewal Krishan and others, 2012(1) L.A.R. 386 (P&H).
Maintainability of Election petition through
Advocate
Punjab State Election Commission Act -- Election
petition is not presented by the candidate/appellant himself rather it has been
filed through his advocate -- If the election petition is not filed by the
candidate himself, then there is no alternative left with the Election Tribunal
but to dismiss the election petition -- If any objection is not taken by the
returned candidate even in the written statement about the non-compliance of
Section 76(1) of the Act, it would not deemed to be a waiver on his part --
Election petition dismissed. Suresh Kumar
Singla v. Election Tribunal, Fatehgarh Sahib and others, 2012(1) L.A.R. 363 (P&H).
Maintainability of Petition by owner not by
landlord
East Punjab Urban Rent Restriction Act, 1949 -- NRI
landlord/owner –Contention that NRI who is the owner of the demised premises
was not landlord of the petitioner is liable to be rejected -- NRI owner has a
right to seek eviction after a period of 5 years from the date of becoming
owner of such building irrespective of the fact that the building is let out by
him or her. Onkar Singh v. Dilbagh Rai
& another, 2012(1) L.A.R. 409 (P&H).
Makbooja Malkan
Entry with regard to the Makbooja Malkan in the column
of cultivation reflects the possession in common of the proprietary body but
not the individual cultivating possession. Gurdev
Singh (deceased) through his LRs. v. The Additional Director, Panchayats, Punjab and another, 2012(1) L.A.R. 596 (P&H DB).
Shamilat deh -- Shamilat Deh Hasab Hissas Mundarza
Shijra Nasar -- Expression “Shamilat Deh
Hasab Hissas Mundarza Shijra Nasar”, coupled with the expression “Makbuja
Malkan” merely refers to ownership as it existed prior to the vesting of
“Shamilat Deh” in a Gram Panchayat under the Pepsu Act and the 1961 Act and
records the possession of the proprietors in common, without any particular
proprietor being in a specific possession of the land much less in cultivating
possession so as to exclude it from “Shamilat Deh” under Section 2(g)(iii) of
the 1961 Act. -- Petitioners have not
placed any revenue record to show that they ever “cultivated” the land before
1950 -- Collector and the Appellate Authority did not commit any error in
holding that the land was “Shamilat Deh” and, therefore, vested in the Gram
Panchayat. Maghi Ram (deceased) through
his LRs. and another v. Gram Panchayat, Chirwa and others, 2012(1) L.A.R. 519
(P&H DB).
Makbuja Nagar Panchayat Rafaae Aam & Share
Aam
Jumla Malkan & Dikar Haqdaran Hasab Rasad Rakba
Khewat -- Shamilat deh – Vesting of -- Land in the revenue record has been
described as Jumla Malkan & Dikar Haqdaran Hasab Rasad Rakba Khewat and in
the cultivation column, it has been shown as Makbuja Nagar Panchayat Rafaae Aam
& Share Aam – In the latest jamabandi, the Gram Panchayat has been shown as
the owner -- Such land falls in the definition of Shamlat as defined under
Section 2(g) of the 1961 Act. Surinder
Singh and others v. Joint Development Commissioner/IRD and others, 2012(1)
L.A.R. 530 (P&H DB).
Make up of deficiency
Deficiency in court fees – Court has every power to
allow the plaintiff to pay the court fees in whole or in part at any stage of
suit -- Payment of such court fees, thereupon, shall have the force and effect
of having been paid in the first instance -- Power is exercised at the
discretion of the court and a party cannot claim it as a matter of right --
However, the discretion is exercised where the court is satisfied that
sufficient ground exists for not paying the court fee in the first instance. Sanjokta Devi v. Satwinder Kaur and
another, 2012(1) L.A.R. 660 (P&H).
Margin money (subsidy)
Punjab Khadi and Village Industries Board Loan Rules,
1958 -- Principle of promissory estoppels -- Respondent-Samiti after availing
the loan had also repaid the same along with interest within the stipulated
time given in the agreement -- There was no default on its account -- At a
subsequent stage, the appellant-Board asked the respondent-Samiti to convert
the margin money (subsidy) into loan -- Said action of the appellant-Board set
aside being hit by the principle of promissory estoppel. Punjab Khadi and Village Industries Board, Chandigarh
Punjab Khadi and Village Industries Board Loan Rules,
1958 -- Rules does not say that the margin money (subsidy) will not be available
on the loan account of working capital -- Held, subsequent Policy of the Khadi
Commission to the effect that margin money (subsidy) cannot be availed on the
working capital loan does not override the Rules. Punjab Khadi and Village Industries Board, Chandigarh
Market Value
Acquisition of land -- Plotting
has been done only on part of the acquired land and the land is surrounded by
colonies like ITBP etc. but, there is no evidence to show that the acquired
land itself is developed and is having all the required facilities and
amenities -- It may be a case where less deduction may be applied but certainly
it is not a case of ‘no deduction' -- Deduction of 10% from the market value on
account of development charges and other possible expenditures would be
justifiable and called for in the facts and circumstances of the present case. Trishala Jain & Anr. v. State of Uttaranchal
Acquisition of land -- Principle
of guesstimation -- Principle of guesstimation will have no application to the
case of “no evidence'’-- This principle is only intended to bridge the gap
between the calculated compensation and the actual compensation – Certain principles
controlling the application of guesstimate are : (a) Wherever the evidence
produced by the parties is not sufficient to determine the compensation with
exactitude, this principle can be resorted to -- (b) Discretion of the court in
applying guesswork to the facts of a given case is not unfettered but has to be
reasonable and should have a connection to the data on record produced by the
parties by way of evidence. Further, this entire exercise has to be within the
limitations specified under Sections 23 and 24 of the Act and cannot be made in
detriment thereto. Trishala Jain
& Anr. v. State of Uttaranchal
Acquisition of land -- Sale
instance – Law of deduction – Not possible to state precisely the exact
deduction which could be made – Deduction is to be applied on account of
carrying out development activities like providing roads or civic amenities
such as electricity, water etc. when the land has been acquired for
construction of residential, commercial or institutional projects -- It shall
also be applied where the sale instances (exemplars) relate to smaller pieces
of land and in comparison the acquisition relates to a large tract of land --
Deduction can also be applied on account of wastage of land -- It is neither possible
nor appropriate to stricto sensu define a class of cases where the Court would
not apply any deduction -- The cases where the acquired land itself is fully
developed and has all essential amenities, before acquisition, for the purpose
for which it is acquired requiring no additional expenditure for its
development, falls under the purview of cases of ‘no deduction'. Trishala Jain & Anr. v. State of Uttaranchal
Acquisition of land -- Sale instance -- Sale Uttaranchal
Acquisition of land -- Sale instance -- Vendor or vendee of sale deed had not
been examined to prove them in Court -- Sale India Uttaranchal
Acquisition of land -- Sale
instance of smaller size of land – Sale instances even of smaller plots could
be considered for determining the market value of a larger chunk of land with
some deduction unless, there was comparability in potential, utilisation,
amenities and infrastructure with hardly any distinction. Trishala Jain & Anr. v. State of Uttaranchal
Acquisition of land -- Small sale
instance -- Deduction from -- Land acquired had the potential of being
developed for residential or institutional purposes, the same was acquired for
construction of a Government Polytechnic Institute – Sale instance is situated
at a distance of 1-1/2 furlong from the acquired land cannot be said to be
incomparable sale instance, i.e. it has to be taken as a comparable sale
instance – Value of sale of small pieces of land can be taken into
consideration for determining even the value of a large tract of land – 10%
deduction is made from the estimated market value of acquired land. Trishala Jain & Anr. v. State of Uttaranchal
Land Acquisition Act, 1894 – Agricultural land --
Merely by notifying the regional plan showing certain agricultural lands as
earmarked for industrial purpose, those lands will not cease to be agricultural
lands. Goa Housing Board v. Rameshchandra Govind
Pawaskar & another, 2012(1) L.A.R. 434 (SC).
Land Acquisition Act, 1894 --
Compensation payable to the claimants has to be computed in terms of Sections
23 and 24 of the Act -- Market value of the land has to be determined at the
date of the publication of the notification u/s 4(1) of the Act, after taking
into consideration what is stated under Sections 23(1), 23(1A), 23(2) and
excluding the considerations stated under Section 24 of the Act -- It is not
possible to fix the compensation with exactitude or arithmetic accuracy --
Court may have to take recourse to some guesswork while determining the fair
market value of the land and the consequential amount of compensation. Trishala Jain & Anr. v. State of Uttaranchal
Land Acquisition Act, 1894 -- If there is a prohibition regarding use of the land for
purposes other than agriculture, the value of such land on account of the same
being put to commercial, residential or industrial use cannot form the basis of
determining the market value -- it will have to be valued only as an
agricultural land and cannot be valued with reference to sales statistics of
other nearby lands which have the potential of being used for urban
development. Goa Housing Board v. Rameshchandra Govind
Pawaskar & another, 2012(1) L.A.R. 434 (SC).
Land Acquisition Act, 1894 -- Land under tenancy –
Prohibition regarding use of land for any purpose other than agriculture --
Atleast 50% will have to be deducted from the market value of freehold land
with development potential to arrive at the market value of such land which can
be used only for agricultural purposes. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1)
L.A.R. 434 (SC).
Land Acquisition Act, 1894 -- Prohibition regarding
use of land for any purpose other than agriculture -- In so far as the
landowner is concerned, the compensation to which he is entitled would be what
he would have got if he had sold it in open market to a willing purchaser who
could have used it only for agricultural purpose. Goa Housing Board v. Rameshchandra Govind Pawaskar & another, 2012(1)
L.A.R. 434 (SC).
Land Acquisition Act, 1894 -- Report of consultant on
trees -- Witness-consultant in Agriculture and Horticulture personally visited
the acquired land and gave the details of the trees standing on different parts
of the land, their present and future age, condition, height, width, spread and
annual fruit production capacity -- Valuation made by him was amply supported
by the market rates of fruits fixed by Agriculture and Horticulture Department
of Government – In the cross-examination, the witness stood by reports given by
him – Held, this being the position, the High Court had no reason to overturn
the finding recorded by the Reference Court on the issue of existence of trees
on the acquired land and their valuation. Chindha
Fakira Patil (D) through L.Rs. v. The Special Land
Member Panchayat
Appointment of Lambardar – Punjab Land Revenue Rules
-- Qualification -- A Member Panchayat is required to operate within the
village/estate and so is the Lambardar -- Rule 15 or any other provision in the
Act or the Rules does not provide for any disability to be appointed as
Lambardar, in case such a person is a Member Panchayat, rather rule 15
indicates that it would be a qualification if the person has personal
influence, character and ability -- A Panch of the village indicates better
qualification, in terms of Rule 15 (d) and (e). Bhajan Singh v. State of Punjab & Ors., 2012(1) L.A.R. 310 (P&H).
Mesne profit
Rent Act -- Eviction of tenant – Stay of – Landlord is
entitled to the payment of mesne profits as assessed by Court after passing of
the eviction order till its possession is handed over to the landlord -- Mesne
profits of the demised premises assessed and made payable with effect from the
date on which the High Court admitted the revision petition and had stayed the
dispossession of the tenant. M/s Bird
Travels (P) Ltd. v. Smt. Amarjit Kaur and others, 2012(1) L.A.R. 313 (P&H).
Rent Act -- Eviction of tenant – While passing the
order of stay, the Court can put the parties to terms -- A tenant is liable to pay mesne profits from
the date of eviction order, during the pendency of the appeal for the use and
occupation of the demised premises. Sunil
Kumar v. Lal Chand and others, 2012(1) L.A.R. 548 (P&H).
Rent Act -- Interest upon -- Contention that no
interest could have been granted by the Appellate Authority on the amount of
mesne profit as imposed by the Court is without any merit -- On mesne profits,
interest has to be calculated on yearly basis. Sunil Kumar v. Lal Chand and others, 2012(1) L.A.R. 548 (P&H).
Minor discrepancies
Will – Minor discrepancies in the depositions of
attesting witnesses -- Depositions further find corroboration from the
deposition of fingerprint expert – Will was executed by deceased in favour of
defendants, who are her brothers and their sons -- Moreover, it has come in
evidence that after death of her husband, she had started residing with her
brother and their sons as she was being harassed by brothers of her husband --
She had to contest various suits with brothers of her husband -- She remained
alive for four years after execution of Will -- Will is also registered one –
Ld. Lower courts upheld the Will, which is not illegal. Charan Singh and another v. Amar Singh and others, 2012(1) L.A.R. 608
(P&H).
Misuse of premises
Capital of Punjab (Development and Regulation) Act,
1952 -- Shop cum flat – Tourist lodge/Guest house – Conversion of use of
building -- Sites allotted for use as (SCFs), whereas petitioner are using F.F.
and S.F. as guest houses/lodges, which is not permissible -- Stand of the
administration that until and unless the petitioners seek firstly conversion
for use as for the office purposes and secondly to seek permission to use the
office portion for commercial purpose i.e. for tourist lodges and guest houses,
the petitioners are violating the provisions of the Act and the building is
liable to be resumed – Writ petition challenging to notices served u/s 8A of
the 1952 Act dismissed with liberty to the petitioners to seek conversion of
the use of buildings in terms of the scheme framed under the Act. Gurcharan Singh v. Union Territory
Chandigarh & others, 2012(1) L.A.R. 330
(P&H DB).
Misuse of process of law
Rent Act -- Revision before High Court – Costs --
Dispossession of tenant from the shop in dispute stayed – Service could not
complete, petitioner was directed to supply correct addresses -- After getting
the dispossession stayed, on 9.10.2007 and despite the fact that at many
stages, the Court has asked the petitioner to serve the respondent dasti, the
petitioner failed to do so -- Held, it seems that petitioner is abusing the
process of law by not making efforts to serve the respondent and is enjoying
the stay order in his favour -- Petition dismissed with costs of Rs. 1 lac. Durga Dutt v. Vidya Sagar, 2012(1) L.A.R.
415 (P&H).
Mixed land use
Land Acquisition Act, 1894 -- Acquisition of land –
Challenge to – Discrimination -- Vacant land of TDI was not included in the
acquisition, for which either CLU was applied but not granted till the date of
notification u/s 6 of the Act and in three instances CLU was applied for after
the issuance of notification u/s 6 of the Act – Petitioner’s claim is much
better than that of TDI for the reason that they had already obtained the
necessary sanctions and approval from the Competent Authority for constructing
and occupying their premises -- This itself is a good ground for quashing the
notification issued u/s 6 of the Act.
Surinder Kumar and others v. State of Punjab and others, 2012(1) L.A.R. 277 (P&H DB).
Mode of partition
Collector remanded the case with a direction to A.C.
Ist Grade to partition the land by keeping the possession intact after
inspecting the spot -- No prejudice has been caused to any party -- No
illegality/irregularity or any perversity in the remand order of the Collector.
Roop Lal v. Ram Kumar, 2012(1)
L.A.R. 632 (FC Pb.).
Earlier
the mode of partition was challenged by the petitioner by way of an appeal
which was also dismissed so there is no question of filing a fresh application
for preparation of fresh mode of partition.
Vinod Kumar v. Financial Commissioner, Haryana and others, 2012(1) L.A.R. 73
(P&H).
No party has stated that they should be given
specific Khasra numbers to them -- However A.C.Ist Grade while framing the mode
of partition have given specific Khasra numbers to respondent No. 1 – A
particular co-sharer cannot be given preferential treatment over others when
objections have been raised by other co-sharers -- Partition has to be affected
as per the value and quality of land -- A.C. Ist Grade is directed to frame
fresh mode of partition after hearing the parties. Sant Singh v. Chander
Bhan Singh and others, 2012(1)
L.A.R. 655 (FC Pb.).
Municipal area
FIR -- Punjab Scheduled Roads and Controlled Areas
(Restriction of Unregulated Development) Act, 1963 -- Land in dispute has
already been included in the limits of MC, by virtue of notifications -- Once
there is projected violation of any provision of MC Act, then, the same can
only be dealt with the provisions of the said Act and no FIR can possibly be
registered u/s 6 & 7 of the Controlled Areas Act. Gurdip Singh v. The State of Haryana
Mutation
Challenge to -- Party aggrieved by the orders passed
in mutation proceedings can always redress his grievance by way of filing suit
for title. Smt.Nirmaljit Kaur and others
v. State of Punjab
Delivery of possession – Requirement of -- Even if
there is no actual delivery of possession, even then, AC 2nd Grade was duty
bound to enter the mutations on the basis of registered sale deeds as
contemplated u/s 34 -- In case of entertaining any kind of doubt of acquisition
of any interest in the land by other, then he was duty bound to refer the same
(disputed mutations) to the Collector for its adjudication, as envisaged u/s
35. Smt.Nirmaljit Kaur and others v.
State of Punjab
Possession – Relevancy of -- Even if the petitioners
are not in possession even then the mutation to the extent of the share is
required to be sanctioned as the mutation does not confer any title. Madan Lal and others v. Financial
Commissioner, Punjab and others, 2012(1) L.A.R. 71 (P&H).
Private respondents were in possession of the land,
which they have purchased by way of sale-deed and enquiry was initiated with
regard to insufficient stamp duty on their sale-deed by the Collector -- During
the course of enquiry, the petitioners also purchased the same Khasra Number
from other co-sharers through the Power of Attorney -- All these vital aspects
were not considered and just ignored by the Assistant Collector Ist Grade with
impunity -- Collector has rightly remitted the matter back to the Assistant
Collector. Narinder Kumar Gupta and
another v. Divisional Commissioner, Patiala and others, 2012(1) L.A.R. 22
(P&H).
Proceedings of mutations are not judicial proceedings
-- Mutation entries do not convey or extinguish any title and are relevant only
for the purpose of collection of land revenue. Smt.Nirmaljit Kaur and others v. State of Punjab
Purchase of Specific Khasra -- Partition of land --
Contention that specific khasra number has been transferred and the mutation
should have been sanctioned by the revenue authorities with respect to that
specific Khasra number only – Held, contention is not sustainable. Daljit Singh and others v. The Financial
Commissioner (Revenue) Punjab and others,
2012(1) L.A.R. 143 (P&H).
Mutation entries
Delay in challenge – Effect of -- Mutation was
sanctioned in favour of the gram panchayat way back in 1964 -- If petitioners
did not challenge any entry for long i.e. for more than 46 years, now they
shall be debarred from challenging the same in view of principle of waiver,
acquiescence and estoppel -- Long standing entries have strong presumption of
their correctness unless proved by cogent evidence otherwise. Dharambir and another v. Financial
Commissioner, Haryana and others, 2012(1)
L.A.R. 265 (P&H).
Jamabandi entries – Fard Badar -- Substantial
variations have been made in the entries in jamabandi by way of fard badar as
the earlier mutations were cancelled – Held, Fard badar is patently illegal –
No jurisdiction to make substantial changes/variations in the jamabandi, which
can only be carried out by way of a Civil Suit, in terms of Chapter VI of the
Specific Relief Act, 1877. Rahul and
others v. State of Haryana and others, 2012(1) L.A.R. 576 (P&H DB).
Mutation does not confer any title. Mohinder Singh v. Financial Commissioner and others, 2012(1) L.A.R.
238 (P&H).
Mutation proceedings
Challenge to – Civil suit -- In a Civil suit, observation
made in the summary proceedings of the mutation by the revenue authorities
starting from the Assistant Collector Ist Grade upto the Financial
Commissioner, shall not prejudice the mind of the Civil Court and the Civil
Court shall independently decide the suit in accordance with law. Smt. Gurjeet Kaur and others v. Financial
Commissioner and others, 2012(1) L.A.R. 200 (P&H).
Civil suit -- Observation made in the summary proceedings of
the mutation by the revenue authorities starting from the Assistant Collector
Ist Grade upto the Financial Commissioner, shall not prejudice the mind of the Civil Court Civil Court
Res-judicata -- Finding recorded during the mutation
proceedings while sanctioning or rejecting the same in favour of either of the
parties in a suit for declaration of title or possession on the basis of sale
deed etc., does not operate as res judicata. Mohinder Singh v. Financial Commissioner and others, 2012(1) L.A.R. 238
(P&H).
Res-judicata -- Mutation does not confer any title --
Finding recorded during the mutation proceedings while sanctioning or rejecting
the same in favour of either of the parties in a suit for declaration of title
or possession on the basis of sale deed etc., does not operate as res judicata. Smt. Gurjeet Kaur and others v. Financial
Commissioner and others, 2012(1) L.A.R. 200 (P&H).
Natural justice
Punjab Village Common Lands (Regulation) Act, 1961 --
Appeal – Stay of impugned order – Speaking order – Appellate Authority has the
power to stay the order impugned -- No reason is required to be given while
granting the stay of the order – No requirement of the principles of natural
justice that even such interim order is to be speaking order. Hazara Singh and others v. The State of Punjab
Nature
of Mutation
Proceedings of mutations are not judicial proceedings
-- Mutation entries do not convey or extinguish any title and are relevant only
for the purpose of collection of land revenue. Smt.Nirmaljit Kaur and others v. State of Punjab
Nature of property
Indian Stamp Act -- Sale deed – Registration of –
Relevant date -- Nature and user of the building, residential on the date of
the purchase -- Merely because the property is being used for commercial
purpose at the later point of time may not be a relevant criterion for
assessing the value for the purpose of stamp duty -- Nature of user is
relatable to the date of purchase and it is relevant for the purpose of
calculation of stamp duty. State of U.P.
& Ors. v. Ambrish Tandon & another, 2012(1) L.A.R. 431 (SC).
Nikal
Wari -- Land of private respondents comes at the end
of the main watercourse, they are entitled to Nikal – Petitioners are having
only 5 acres of land, whereas the land of private respondents is more than 13
acres, as such, the petitioners cannot consume the entire Nikal, whereas the
private respondents can use the entire Nikal as per the provisions of the law
-- Nikal cannot be given in parts – Held, private respondents have a right to
Nikal. Satnam Chand and another v.
Superintending Canal Officer, Ferozepur Canal Circle and others, 2012(1) L.A.R.
34 (P&H).
No-Confidence
motion against Sarpanch
Punjab Panchayati Raj Act, 1994 -- Mere passing of
resolution of ‘No Confidence Motion' is not sufficient to debar the elected
Sarpanch, unless all the formalities, essential to issue notification to
de-notify his name are completed.
Mohinder Singh v. State of Punjab and others, 2012(1) L.A.R. 59 (P&H).
Nomination is over
Non-reply of Notice
Adverse inference -- In view of the pending litigation, non
issue of the replies to the notices cannot be treated as an admission of the
averments in the notices. Dnyaneshwar
Ranganath Bhandare & Another v. Sadhu Dadu Shettigar (Shetty) &
Another, 2012(1) L.A.R. 120 (SC).
Non-residential building
East Punjab Urban Rent Restriction Act, 1949 --
Specified landlord -- Building – When the eviction petition was filed, there
was no access to the main residential building through the demised premises
(shop) -- Court is to take into consideration the position of the demised
premises at the time of the filing of the eviction petition – Held, it has to
be essentially accepted that it was segregated portion of the main building and
was an independent unit falling within the definition of a building itself in
terms of Section 2(a) of the Act – Demised premises is not a residential
building -- Since it was let out for non-commercial purpose, the application of
the landlord under Section 13-A is not maintainable. M/s Bharat Electricals and another v. Dr. Sukhdev Raj Goyal and
another, 2012(1) L.A.R. 422 (P&H).
Non-tendering of Arrears of rent
Rent Act -- Tenant failed to deposit the provisionally
assessed rent on the due date -- Order of ejectment has to follow and nothing more
is required to be done and the Rent Controller had no jurisdiction at all to
extend time. Kundan Singh v. Smt. Roop
Rani and another, 2012(1) L.A.R. 262
(P&H).
Northern India Canal
Section 20, 23 – Transfer/Shifting of outlet –
Jurisdiction of High Court -- Contention that land of the appellants shown as
Mark A, B and D in the site plan and new outlet is situated at lower level,
therefore, land of the appellants situated in these blocks will not be properly
irrigated – Held, High Court cannot go into the question of level of land -- It
is for the canal authorities to examine this aspect and provide an outlet to
the land of the farmers, by keeping in view the interest of better irrigation
-- They are expert in such matters.
Jagtar Singh and others v. Superintending Canal Officer, Ferozepur Canal
Circle, Ferozepur and others, 2012(1) L.A.R. 702 (P&H DB).
Section 20, 23 – Transfer/Shifting of outlet – Writ
jurisdiction -- Matter of transfer of an area from one outlet to another by the
canal authorities should be seldom interfered with in the writ jurisdiction,
particularly when the canal authorities had taken the decision after hearing
the interested parties and in the interest of better irrigation, and also
considering that while making such transfer, the maximum land will be properly
irrigated. Mohinder Singh and others v.
The State of Punjab
Section 30FF – Watercourse – Demolition of –
Restoration of -- Contention that alleged watercourse was not in existence over
the common watt of Killa Nos.8,9,10 and 11,12,13, rather, the watercourse
existed in Killa No.8,9,10 -- Canal authorities, after considering the
verification report given by the Ziledar and visiting the spot, found as a fact
that a watercourse was existing and running on the Killa Nos.8,9,10 and
11,12,13, and after coming to the said conclusion, the said watercourse was
ordered to be restored being illegally demolished by the appellant – Learned
Single Judge has rightly declined to interfere in the concurrent findings of
fact recorded by the canal authorities.
Sukhwinder Pal v. Superintending Canal Officer, Ferozepur and others, 2012(1)
L.A.R. 696 (P&H DB).
Section 30FF – Watercourse – Demolition of –
Restoration of -- Held, the orders of the canal authorities, particularly
ordering restoration of the water course, with a clear finding that prior to
its demolition, the water course was running and irrigating the fields, should
not be interfered in the writ jurisdiction -- Even if the water course was not
sanctioned under the provisions of the Act, and if the same was in running
condition for a long time, it should have been ordered to be restored. Gurmail Singh and another v. Superintending
Canal Officer, Sirhind Canal Circle, Ludhiana and others, 2012(1) L.A.R. 642
(P&H DB).
Section 30FF – Watercourse – Demolition of –
Restoration of -- On receiving the application u/s 30-FF (1), the Divisional
Canal Officer was required to make an enquiry as he deemed fit and issue notice
to the person who demolished, altered, enlarged or obstructed the water course,
and after providing opportunity of hearing to the defaulter, order for
restoration of the said water course to its original condition -- Divisional
Canal Officer could not have refused to restore a water course, only on the
ground that the water course was not sanctioned according to the provisions of
the Act. Gurmail Singh and another v.
Superintending Canal Officer, Sirhind Canal Circle, Ludhiana and others,
2012(1) L.A.R. 642 (P&H DB).
Section 30FF – Watercourse – Demolition of –
Restoration of -- Orders passed by Canal authorities does not indicate that
those orders are non-speaking and do not assign good reasons for ordering
restoration of the water course – Remand of the case to the Divisional Canal
Officer to decide the matter afresh, is not justified -- Canal matters,
particularly demolition of the water course, should be decided expeditiously,
without any delay, as demolition of the water course adversely affects the irrigation
of the fields of the farmers. Gurmail
Singh and another v. Superintending Canal Officer, Sirhind Canal Circle,
Ludhiana and others, 2012(1) L.A.R. 642 (P&H DB).
Section 68 – Nikal – Wari -- Land of private
respondents comes at the end of the main watercourse, they are entitled to
Nikal – Petitioners are having only 5 acres of land, whereas the land of
private respondents is more than 13 acres, as such, the petitioners cannot
consume the entire Nikal, whereas the private respondents can use the entire Nikal
as per the provisions of the law -- Nikal cannot be given in parts – Held,
private respondents have a right to Nikal. Satnam
Chand and another v. Superintending Canal Officer, Ferozepur Canal Circle and
others, 2012(1) L.A.R. 34 (P&H).
Section 68 – Turn of the water -- In view of the
consolidated land, the turn of water first will be on the basis of the
principle of “First Come, First Serve” basis. Satnam Chand and another v. Superintending Canal Officer, Ferozepur
Canal Circle and others, 2012(1) L.A.R. 34 (P&H).
Section 68 – Warabandi – Temporary in nature -- U/s 68
of the Act, the Deputy Collector decides only about the use and distribution of
water -- Order fixing the Warabandi does not become final for all times to come
-- If one Warabandi is suggested at one time, then after some time, on the
application of an aggrieved person, the same can be changed -- Fixing of
Warabandi u/s 68 of the Act, is a temporary arrangement -- It may go on for
some years or it may be changed earlier.
Satnam Chand and another v. Superintending Canal Officer, Ferozepur Canal
Circle and others, 2012(1) L.A.R. 34 (P&H).
Notice
Haryana Public Premises Act -- Penalty – Opportunity
of hearing -- No statutory notice u/s 7(2) of the Act read with Rule 7 was
issued to the petitioner before imposing the penalty -- Joint notice of
ejectment cannot possibly be termed to be the compliance of these statutory
provisions -- No opportunity of hearing was granted before imposing the
penalty, as envisaged u/s 7(2) – Impugned orders, relatable to imposition of
penalty, cannot legally be maintained. Sanjay
Kumar v. State of Haryana and others, 2012(1) L.A.R. 37 (P&H).
Land Acquisition Act, 1894 – Notification u/s 4 -- Acquiring authority need not prove actual
notice of the proposal to acquire u/s 4(1) of the Act, to the person
challenging the acquisition -- Such notice can also be by way of implied notice
or constructive notice. The Special
Deputy Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam & others,
2012(1) L.A.R. 151 (SC).
Non-reply of – Adverse inference -- In view of the pending
litigation, non issue of the replies to the notices cannot be treated as an
admission of the averments in the notices. Dnyaneshwar
Ranganath Bhandare & Another v. Sadhu Dadu Shettigar (Shetty) &
Another, 2012(1) L.A.R. 120 (SC).
Public premises laws -- Eviction petition – Contention
that notice issued by the Collector was defective as no description of the land
was mentioned therein – Held, in the column of particulars of premises, it is
mentioned that copy of petition attached -- Contention is devoid of any merit. Puran and others v. The Commissioner and
others, 2012(1) L.A.R. 448 (P&H).
NRI landlord
Rent Act (Punjab) -- Bonafide need – Leave to defend
-- Simply because the tenant is disputing the need of the landlord is not
enough to hold that the tenant has raised triable issues in his application for
leave to contest -- Except the allegations of harassment the tenant has not
come out with any plausible defence -- Genuineness and veracity of the complaint
made by the tenant before the police authorities can only be determined by the
criminal Court and not under provisions of the Rent Act -- Since the landlord
fulfilled all the ingredients of section 13-B of the Act and there being not an
iota of evidence to rebut the presumption of bona fide need in favour of the
landlord, the eviction order needs no interference. Poonam Kumari v. Rajinder Kumar, 2012(1) L.A.R. 559 (P&H).
Rent Act (Punjab ) -- Bonafide
need – Presumption of -- In case a landlord fulfills the conditions of section
13-B of the Act, a presumption is to be drawn in his favour for his bona fide
need and thereafter it is for the tenant to make out a strong case in his
application for grant of leave to defend.
Poonam Kumari v. Rajinder Kumar, 2012(1) L.A.R. 559 (P&H).
Rent Act (Punjab ) -- Bonafide
need -- Right of the NRI can be defeated by a tenant by showing that the bona
fide requirement was a pretext to get the accommodation vacated and the
landlord was not owner of the premises. Onkar
Singh v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).
Rent Act (Punjab) -- Eight shops in one building –
Right of eviction -- Landlords established that all the eight shops which are
part of the one main building are required by them – Contention that landlord
have already got evicted the tenant from another part of the building and
therefore they are not entitled to ask for eviction of the tenant as such right
can be exercised by the landlords only once in life time, is liable to be
rejected -- All the shops which form part of one integral building can be got
vacated by a NRI owner/landlord. Onkar
Singh v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).
Rent Act (Punjab) -- Leave to defend -- A presumption
with regard to need of the respondent-landlord is deemed to be drawn in his/her
favour as provided under Section 18-A (4) of the Act – Once leave to defend is
declined, eviction order has to follow.
Harjinder Singh v. Baljit Kaur, 2012(1) L.A.R. 460 (P&H).
Rent Act (Punjab ) --
Leave to defend – Eviction -- Where u/s 13-B of the Act, leave is refused to
the tenant to defend the proceedings brought by the N.R.I. landlord, eviction
of the tenant has to be ordered as an automatic consequence. Anwar Ali v. Gian Kaur, 2012(1) L.A.R. 306 (P&H Full
Bench).
Rent Act (Punjab) -- Other NRI/Co-owner used his rights as
NRI – Effect of -- Leave to defend -- Whether an NRI landlord, who is a
co-owner in two different properties which are in occupation of the tenants,
can maintain a petition u/s 13-B of the Act after filing of the petition by his
co-owners as NRI in respect of the other property”? – Sufficient grounds for
granting leave to defend with regard to the maintainability of eviction
petition as NRI landlords. Bachan Kaur’s case 2011 (3) L.A.R. 263 (P&H DB)
relied. Harbhajan Singh v. Sukhjinder
Singh Aulak @ Billa and another, 2012(1) L.A.R. 145 (P&H).
Rent Act (Punjab) -- Petition by owner not by landlord
– Maintainability of -- Contention that NRI who is the owner of the demised
premises was not landlord of the petitioner is liable to be rejected -- NRI
owner has a right to seek eviction after a period of 5 years from the date of
becoming owner of such building irrespective of the fact that the building is
let out by him or her. Smt.Bachan Kaur’s case, 2011(3) L.A.R. 263 (P&H
D.B.) relied. Onkar Singh v. Dilbagh Rai
& another, 2012(1) L.A.R. 409 (P&H).
NRI owner
East Punjab Urban Rent Restriction Act, 1949 --
Petition by owner not by landlord – Maintainability of -- Contention that NRI
who is the owner of the demised premises was not landlord of the petitioner is
liable to be rejected -- NRI owner has a right to seek eviction after a period
of 5 years from the date of becoming owner of such building irrespective of the
fact that the building is let out by him or her. Smt.Bachan Kaur’s case,
2011(3) L.A.R. 263 (P&H D.B.) relied. Onkar
Singh v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).
Objections
Acquisition of land – Opportunity of hearing -- Land
Acquisition Officer adjourned the hearing on one occasion as requested by the
appellant, however, refused to adjourn the matter any further -- Second request
was rejected – Land Acquisition Officer could have adjourned the proceedings
after putting the appellant to terms because hearing the representative of the
owner companies was mandatory. M/S.
Kamal Trading Private Limited (Now Known As Manav Investment & Trading Co.
Ltd.) v. State of West Bengal
Acquisition of land – Report of Collector -- Mere use
of the words ‘for the greater interest of public’ does not lend the report the
character of a report made after application of mind -- He was not expected to
write a detailed report but, his report, however brief, should have reflected
application of mind. M/S. Kamal Trading
Private Limited (Now Known As Manav Investment & Trading Co. Ltd.) v. State
of West Bengal
Land Acquisition Act, 1894 -- Acquisition of land –
Report of Collector -- Report of the Collector is not an empty formality -- It
is only upon receipt of the said report that the Government can take a final
decision on the objections – Formation of opinion by the appropriate Government
as regards the public purpose must be preceded by application of mind as
regards consideration of relevant factors and rejection of irrelevant ones –
Recommendations must indicate objective application of mind. M/S. Kamal Trading Private Limited (Now
Known As Manav Investment & Trading Co. Ltd.) v. State of West Bengal
Land Acquisition Act, 1894 -- Section 5A(1) gives a
right to any person interested to file an objection, Section 5A(2) requires the
Collector to give the objector an opportunity of being heard in person or by
any person authorized by him -- After hearing the objections, the Collector
can, if he thinks it necessary, make further inquiry, thereafter, he has to
make a report to the appropriate Government containing his recommendations on
the objections together with the record of the proceedings held by him for the
decision of the appropriate Government and the decision of the appropriate
Government shall be final -- It is a minimal safeguard afforded to him by law
to protect himself from arbitrary acquisition -- Act being an ex-proprietary
legislation, its provisions will have to be strictly construed. M/S. Kamal Trading Private Limited (Now
Known As Manav Investment & Trading Co. Ltd.) v. State of West Bengal
Acquisition of land – Objections – Land Acquisition
Officer adjourned the hearing on one occasion as requested by the appellant,
however, refused to adjourn the matter any further -- Second request was
rejected – Land Acquisition Officer could have adjourned the proceedings after
putting the appellant to terms because hearing the representative of the owner
companies was mandatory. M/S. Kamal
Trading Private Limited (Now Known As Manav Investment & Trading Co. Ltd.)
v. State of West Bengal
Haryana Public Premises Act -- Penalty – Notice – No
statutory notice u/s 7(2) of the Act read with Rule 7 was issued to the
petitioner before imposing the penalty -- Joint notice of ejectment cannot
possibly be termed to be the compliance of these statutory provisions -- No
opportunity of hearing was granted before imposing the penalty, as envisaged
u/s 7(2) – Impugned orders, relatable to imposition of penalty, cannot legally
be maintained. Sanjay Kumar v. State of
Haryana and others, 2012(1) L.A.R. 37 (P&H).
Punjab Panchayati Raj Act, 1994 – Embezzlement of Gram Panchayat fund -- Recovery from ex-Sarpanch
– By letter ex-Sarpanch was directed to pay an amount, which was kept excessive
cash in hand, by him during the period from January 1993 to September, 2010 --
No material, muchless cogent, on record to suggest that any proper inquiry was
conducted, after providing the opportunity, as contemplated u/s 216 of the Act
-- Moreover, the impugned letter have been issued, without affording adequate
opportunity of being heard to him, which renders it nullity -- Impugned letter
cannot legally be sustained. Gurmail
Chand (Ex-Sarpanch) v. The State of Punjab & Ors., 2012(1) L.A.R. 166
(P&H).
Oral Exchange
Punjab Village Common Lands (Regulation) Act, 1961 --
Exchange of land – Before exchanging the land, the Gram Panchayat neither
sought (nor granted) prior approval by the Government, which was a condition
precedent for a valid exchange – Contention that alleged oral exchange, which
was based upon a resolution by the Gram Panchayat, is reflected in the revenue record,
therefore, the appellant could not have been ordered to be evicted from the
land in dispute cannot be accepted – Mere passing of the resolution by the Gram
Panchayat is not enough -- Possession of the land of the Gram Panchayat taken
by the appellant under the said oral exchange is totally illegal and
unauthorized -- Appellant was rightly ordered to be evicted from the disputed
land. Bant Kaur v. The Director,
Department of Rural Development and Panchayats, Punjab ,
SAS Nagar and others, 2012(1) L.A.R. 539 (P&H DB).
Ousteees Claim
HUDA Matters -- Allotment of plot – Rate to be charged
-- What price could be charged from an allottee i.e. price prevailing on the
date the allotment or when the Sector is floated first -- 'normal allotment
rate' in all circumstances shall be the date when the sector is first floated
for sale -- As a matter of fact, the normal allotment rate would be the rate
advertised by the HUDA in pursuance of which applications are invited from the
general public and the oustees, in pursuance of which the plots are allotted. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
HUDA Matters -- Clause of ownership of the land for a
certain period before the issue of notification u/s 4 of the Land Acquisition
Act – Sustainability of -- Period of one year or five years prior to the date
of publication of notification is without any reasonable basis -- Date of
notification u/s 4 of the Act is a reasonable date -- Any other date in the
R&R Policy is, therefore, quashed and set aside. Haryana Urban Development Authority & others v. Sandeep &
others, 2012(1) L.A.R. 475 (P&H DB).
HUDA Matters -- Consideration of – Law summarized --
Held, (i) That date of notification under Section 4 of the Land Acquisition Act,
1894 is relevant to determine the eligibility of a land-owner for allotment of
a residential plot, even if the acquisition is for the purposes of commercial,
industrial or institutional; (ii) That the entitlement of the size of the plot
and the procedure for allotment shall be as on the date of allotment in
pursuance of an advertisement issued inviting application from the oustees;
(iii) That the HUDA or such other authority can reserve plots up to 50% of the
total plots available for all reserved categories including that of oustees. As
to what extent there would be reservation for the oustees, is required to be
decided by the State Government and/or by HUDA or any other authority, who is
entitled to acquire land; (iv) That the oustees are entitled to apply for
allotment of plot along-with earnest money in pursuance of public advertisement
issued may be inviting applications from the general public and the oustees
through one advertisement. If an oustee is not successful, he/she can apply
again and again till such time, the plots are available for the oustees in the
sector for which land was acquired for residential/commercial purposes or in
the adjoining sector, if the land acquired was for institutional and industrial
purposes etc. The plots to the oustees shall be allotted only by public
advertisement and not on the basis of any application submitted by an oustee;
(v) That the price to be charged from an allottee shall be the price mentioned
in the public advertisement in pursuance of which, the plot is allotted and not
when the sector is floated for sale for the first time; (vi) That the State
Government or the acquiring authority shall not advertise any residential plot
for sale without conducting an exercise in respect of plots ear-marked for
reserved categories and after identification of the plots available for the
oustees in each sector. Thereafter, the State Government or the acquiring
authority shall publish an advertisement inviting applications from such
oustees to apply for allotment of plots in accordance with law: and (vii) If in
any sector, more than 50% plots have been allotted by way of reservation
including to the oustees, then such allotment shall not be cancelled or
reviewed in view of the judgment of this court. Haryana Urban Development Authority & others v. Sandeep &
others, 2012(1) L.A.R. 475 (P&H DB).
HUDA Matters -- Delay and laches -- Whether an oustee
can be permitted to raise a grievance in respect of non-allotment of a plot on
failure to apply for a plot in pursuance of public advertisement issued for the
reason of delay and laches – Held, no merit in the argument that there can be
any delay and laches, if an application is not made for allotment of plot in
pursuance of public advertisement issued at one stage or the other -- An
oustee, whose land has been acquired, does not lose his status as that of an
oustee merely for the reason that he has not applied for a plot at an earlier
stage -- He has a right to seek allotment of a plot as a separate and distinct
category as and when advertisements are issued inviting applications from the
eligible applicants including the oustees. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
HUDA Matters -- Failure to apply – Effect of --
Whether the failure to apply for a plot in response to advertisement published
at one stage entitles a oustees to apply for allotment of a plot as and when
the advertisements are issued subsequently till such time the plots are
available within overall limit of 50% of the total plots in a sector – Held,
since the oustees form a separate and distinct category, failure to apply in
response to an advertisement will not dis-entitle an oustee from submitting
application at a subsequent stage as and when advertisement is again issued
inviting applications for allotment of plots. Haryana Urban Development Authority & others v. Sandeep &
others, 2012(1) L.A.R. 475 (P&H DB).
HUDA Matters -- Object of the policy – Object of the
policy is to rehabilitate and not to allot alternative land – In order to
achieve such objective, the extent of holding acquired or the land not acquired
is not relevant as an oustee, whose land has been acquired has some land to
bank upon for his use and occupation. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
HUDA Matters -- Procedure of – Right of -- Separate
claim – Requirement of -- Finding that
since the claim from the oustees was not separately invited and could not have
been clubbed or joined with General Category, therefore, such action is
violative of law is not sustainable – Such provision is directory and inviting
of applications through a public advertisement along with the applications from
the general public meets the intent of the policies -- An oustees is entitled
to apply for a plot till such time, the plots falling to the category of the
oustees remain unallotted -- Such writ petitioner would be entitled to apply
for a plot in pursuance of public notice inviting applications from the oustees,
if the plots for such category are available. Haryana Urban Development Authority & others v. Sandeep &
others, 2012(1) L.A.R. 475 (P&H DB).
HUDA Matters -- Purpose of acquisition is industrial
and institutional – Eligibility to apply residential plot -- Whether an oustee
is entitled to an allotment of a plot in the next residential Sector even if
the land is acquired for industrial, institutional or such like purposes
irrespective of date of acquisition – Held, even if land has been acquired for
a purpose other than residential/commercial, an oustee is entitled to apply for
a plot in the next residential sector even if acquisition is prior to the
circular dated 27.03.2000 -- Entitlement of an oustee for a plot would be as
per the existing policy at the time, when an oustee apply for a plot in
response to public advertisement. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
HUDA Matters -- Release of land – Effect of --
Whether, the release of land from acquisition so as to dis-entitle an oustee
from allotment of a plot, means release of land in terms of Section 48 of the
Act or includes the non publication of the declaration under Section 6 of the
Act as well -- Held, the release contemplated in the policies is not the
release of land after acquisition u/s 48 of the Land Acquisition Act -- Purpose
of policies stands satisfied, when a constructed portion is not included in
Section 6 notification as the landloser has some land in his possession for his
purposes -- Thus, the expression “released from acquisition” in fact means
“released from intention to acquire” -- Therefore, the condition of release of
land to dis-entitle an oustee from such status is fair and reasonable. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
HUDA Matters -- Reservation of – Extent of -- Whether
the policy of allotment of plot to an oustee, a distinct and separate category,
is exception to Article 14 of the Constitution of India and whether, there can
be any upper limit for allotment of plots to such category – Held, oustees,
whose land has been acquired either for residential, commercial, institutional
or any other purpose, form a separate and distinct category and are entitled to
be considered for allotment of a plot, as a part of rehabilitation process --
Plots for the oustees including all other constitutionally permissible classes
of reservation cannot exceed 50%. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1) L.A.R.
475 (P&H DB).
HUDA Matters -- Whether the condition in the Policies,
seeking applications from the oustees before the Sector is floated for sale, is
directory and the said condition is satisfied even when the applications
along-with earnest money are invited from the general public including from the
oustees – Held, oustees form a distinct and separate category and are entitled
to reservation -- Such reservation can be given effect to, when the plots
available in a sector are determined and the percentage of reservation of each
category is fixed – When the HUDA invited applications from the general public
along with the applications from the oustees, it substantially complies with
the conditions in the policies framed by it -- Condition in the policies to
seek applications from the oustees before the floatation of the sector is not
mandatory -- Mandatory provision is the right of consideration for allotment of
plots -- Condition of inviting applications before the floatation of a sector
is a directory provision, as it relates to procedure of allotment of plots. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Owner of Poultry Farm
Appointment of Lambardar -- A villager who is running
a poultry farm or engaged in agriculture is not disqualified for being
appointed as Lambardar. Mohinder Singh
v. Financial Commissioner, Appeals-II, Punjab, Chandigarh and others, 2012(1)
L.A.R. 691 (P&H DB).
Package deal property
Package deal property is surplus evacuee property taken over
by the State Government under the letter of the Central Government, excluding
such property as may be required for transfer or allotment, by way of
compensation to a displaced person, as defined in the Displaced Persons Act and
rural agricultural land required for similar allotment to a displaced person of
non-Punjabi extraction in pursuance of the directions of the Central Government
given under Section 32 of the Displaced Persons Act. Shamsher Singh v. State of Punjab
Panchayat land
Allotment of land -- Petitioners are in possession of
a parcel of land, where they have raised kacha/pucca, residential structures --
Taking into consideration the rights conferred upon the petitioners, by way of
policy dated 14.8.2008 read with Section 5 of the Act, 1961 and Rule 13 (a) of
the Rules, 1964, and acceptance of their rights by the Gram Panchayat, writ
petition disposed of in the following terms: The Gram Panchayat shall abide by
the policy taken by the Government and their acceptance of the petitioners’
rights, as averred in their reply. The Gram Panchayat shall allot plots to the
eligible petitioners, preferably on the land in their occupation; The
allotments, so made shall be forwarded to the Deputy Commissioner, who shall
pass appropriate orders, after apprising the eligibility of the petitioners, in
accordance with terms and conditions set out in the policy; If, the Wakf Board
is held to be owner of the land in possession of the petitioners, the
petitioners would be required to vacate the land and in that eventuality the
Gram Panchayat would be required to make allotment of alternative land to the
petitioners. Krishan and others v. State
of Punjab and others, 2012(1) L.A.R. 670 (P&H DB).
Panch of village
Punjab Panchayat matters -- Illegal possession of Gram
Panchayat land – Disqualification -- Possessing land of the Gram Panchayat
illegally is a disqualification in section 208 (i)(k) of the Act 9 of 1994
which is conspicuously absent in Section 11 of Act No.19 of 1994 – Since Act
No.9 of 1994 is later in time, therefore, the provision of Act No. 9 of 1994,
which are not consistent with the provisions of Act of 19 of 1994 would not be
applicable. Som Lal’s case 2008 (2) RCR (Civil) 760, relied. Balbir Singh v. Karnail Singh &
others, 2012(1) L.A.R. 255 (P&H).
Partition
Challenge to -- Partition has attained finality;
Possession of the partitioned land has been delivered to the parties, no
interference is warrant at this stage -- Revision petition is dismissed accordingly.
Daulat Ram deceased through his LRs. v. Hans Raj and others, 2012(1) L.A.R. 638 (FC Pb.).
Partition of land
Instrument of partition – Finalisation of -- Private
respondents are subsequent vendees, they had purchased the land after partition
of the land -- Mutation has been sanctioned on the basis of instrument of
partition -- Civil Court in appeal upheld the order of partition also – Held,
there was no occasion for the Financial Commissioner to set aside the orders of
the revenue authorities. Faqir Singh and
others v. Financial Commissioner (Co-operation), Punjab
and others, 2012(1) L.A.R. 134 (P&H).
Joint land – Possession -- If any co-owner is in
possession of any portion of the land, he can protect the same, unless and
until, the joint land is duly partitioned in accordance with law – Co-owner
wants the possession of the suit land, then she has to file a suit for
partition of the joint land -- In the absence of the same, suit for possession
is not maintainable. Manmohan Kaur v.
Davinder Pal Singh, 2012(1) L.A.R. 62 (P&H).
Joint land – Purchase of specific Khasra – Effect of
-- Even though the petitioner has purchased a specific khasra numbers from one
of the co-sharers, the same will be deemed to have been purchased as share in
the joint land in question that is why the partition proceedings are permitted
under the provisions of the law -- Long standing possession over the property
cannot be deemed to be possession for all times to come. Lichhmi v. State of Haryana and others, 2012(1) L.A.R. 193 (P&H).
Purchase of Specific Khasra -- Mutation – Contention that
specific khasra number has been transferred and the mutation should have been
sanctioned by the revenue authorities with respect to that specific Khasra
number only – Held, contention is not sustainable -- Out of the joint khewat
even sale of specific khasra number will be deemed to be sale of share which is
always subject to partition. Daljit
Singh and others v. The Financial Commissioner (Revenue) Punjab
and others, 2012(1) L.A.R. 143 (P&H).
Three khewats -- Clubbing of -- All the three khewats do not
have a common joint owners, different joint owners are in different khewats --
Held, it would not be appropriate that all the khewats should have been
consolidated and should have been clubbed together -- Clubbing of khewats could
have been only possible if all the joint owners/co-sharers would have been
common in all the khewats. Darshan Singh
v. Financial Commissioner, Haryana and others, 2012(1) L.A.R. 114 (P&H).
Penalty
Haryana Public Premises Act -- Notice – Opportunity of
hearing -- No statutory notice u/s 7(2) of the Act read with Rule 7 was issued
to the petitioner before imposing the penalty -- Joint notice of ejectment
cannot possibly be termed to be the compliance of these statutory provisions --
No opportunity of hearing was granted before imposing the penalty, as envisaged
u/s 7(2) – Impugned orders, relatable to imposition of penalty, cannot legally
be maintained. Sanjay Kumar v. State of
Haryana and others, 2012(1) L.A.R. 37 (P&H).
Penal rent
Rent Act -- Agreed rent – Expiry of lease – Agreed
rent fixed was Rs.77,034/- per month -- It was agreed in para no.5 of the lease
deed “that in case the lessees do not vacate the premises at the end of 3 years
from the date of commencement of the lease period i.e. by 31.07.2010 and no
mutual agreed terms are settled between the lessor and the lessees on or before
01.05.2010 the lessees will be liable to pay rent of Rs.1,50,000/- per month,
and the lessor can take over the premises from the lessees -- Since this
condition was accepted by the tenants who have not challenged the same in the
written statement as a penal provision, the protection of Section 7 of the Act
is not available to them -- Moreover, tenants has failed to show as to how the
amount of Rs.1,50,000/- was within the definition of fine or premium -- It is
permissible for the parties to provide for increase in rent by agreement as
rent is defined as periodical payment for use of another's property and
increase in rent by agreement does not take the character of fine or premium. Smt. Navjeet Chadha and others v. Ravinder
Sandhu, 2012(1) L.A.R. 533 (P&H).
Permissible
area
Haryana Ceiling on Land Holdings Act, 1972 -- Surplus
area – Death of landowner – Effect of -- So long as the Collector's determination
is a subject of an appeal or a challenge before this Court under Article 226 or
in further proceedings before the Hon'ble Supreme Court, it must only be taken
that the determination has not been finally made and consequently, a death of
the landowner would certainly cause affectation of the surplus area which would
require to be redetermined in the hands of the heirs of the deceased landowner
-- So long as the proceedings are still pending, it would inevitably mean that
the holding of the deceased that has fallen to be distributed amongst the heirs
shall require a fresh reckoning for determination of surplus – Case would
require to be remitted to the competent authority under the 1972 Act. Sardara
Singh’s case 2008(2) RCR (Civil) 744, relied. Kehar Singh (deceased) through his LRs v. Financial Commissioner,
Haryana, Chandigarh
Transfer of land -- Surplus area – Disposition of
3/4th share in favour of the son and retention of 1/4th share only for
landowner – Prime facie it cannot be accepted that there had been any valid
disposition and it will be a matter for adjudication before the competent
authority at the enquiry. Kehar Singh
(deceased) through his LRs v. Financial Commissioner, Haryana, Chandigarh
Pepsu Tenancy and Agricultural Lands Act, 1955
(13 of 1955)
Section 4 -- Punjab Village Common Lands (Regulation)
Act, 1961 (18 of 1961), Section 2(g), 3, 4 – Shamilat deh -- Shamilat Deh Hasab
Hissas Mundarza Shijra Nasar -- Makbuja
Malkan -- Expression “Shamilat Deh Hasab Hissas Mundarza Shijra Nasar”, coupled
with the expression “Makbuja Malkan” merely refers to ownership as it existed
prior to the vesting of “Shamilat Deh” in a Gram Panchayat under the Pepsu Act
and the 1961 Act and records the possession of the proprietors in common,
without any particular proprietor being in a specific possession of the land
much less in cultivating possession so as to exclude it from “Shamilat Deh”
under Section 2(g)(iii) of the 1961 Act -- Petitioners have not placed any
revenue record to show that they ever “cultivated” the land before 1950 --
Collector and the Appellate Authority did not commit any error in holding that
the land was “Shamilat Deh” and, therefore, vested in the Gram Panchayat. Maghi Ram (deceased) through his LRs. and
another v. Gram Panchayat, Chirwa and others, 2012(1) L.A.R. 519 (P&H DB).
Permissible area
Selection of – Punjab Security of Land Tenures Act, 1953 -- Relevant date -- Surplus area --Status of
possession of property in the year 1953 cannot be transported and applied in
the same way while considering selection under Section 5-B -- Landlord, who
makes a selection after coming into force of the Amending Act of 1957 by Act 46
of 1957 effective from 11th December, 1957 must exercise his option in such a
way that the status of holding as on the date when he makes a selection must be
seen. Chand Singh (deceased) through his
LRs, and others v. The State of Punjab
Petition by owner not by landlord
Maintainability of -- East Punjab Urban Rent
Restriction Act, 1949 -- NRI landlord/owner – Contention that NRI who is the
owner of the demised premises was not landlord of the petitioner is liable to
be rejected -- NRI owner has a right to seek eviction after a period of 5 years
from the date of becoming owner of such building irrespective of the fact that
the building is let out by him or her. Smt.Bachan Kaur’s case, 2011(3) L.A.R.
263 (P&H D.B.) relied. Onkar Singh
v. Dilbagh Rai & another, 2012(1) L.A.R. 409 (P&H).
Pleadings
Land Acquisition Act, 1894 -- Notification u/s 4 -- Publication of notification in two
newspapers -- Circulation of newspaper – If the newspapers in which the
notification is published were circulating in the locality, but did not have a
reasonably wide circulation in the locality, then neither the notification u/s
4(1) nor the consequential acquisition proceedings, will become vitiated
automatically -- If the person aggrieved, apart from demonstrating that the two
newspapers did not have reasonably wide circulation in the locality, also
asserts that as a consequence, he did not have notice of the proposed
acquisition that was provided for in Section 4(1) of the Act, in the absence of
evidence to the contrary, the acquisition to the extent of the land of such
person will be vitiated -- But if such assertion is rebutted by the acquiring
authority by placing evidence to show that the person concerned had in fact
notice (as for example where he participated in the enquiry under section 5A of
the Act), the acquisition will not be vitiated. The Special Deputy Collector, Land Acquisition C.M.D.A. v. J.
Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Principle of guesstimation
Acquisition of land -- Market
Value – Principle of guesstimation will have no application to the case of “no
evidence'’-- This principle is only intended to bridge the gap between the
calculated compensation and the actual compensation – Certain principles
controlling the application of guesstimate are : (a) Wherever the evidence
produced by the parties is not sufficient to determine the compensation with
exactitude, this principle can be resorted to -- (b) Discretion of the court in
applying guesswork to the facts of a given case is not unfettered but has to be
reasonable and should have a connection to the data on record produced by the
parties by way of evidence. Further, this entire exercise has to be within the
limitations specified under Sections 23 and 24 of the Act and cannot be made in
detriment thereto. Trishala Jain
& Anr. v. State of Uttaranchal
Possession
Joint land – Partition of land -- If any co-owner is
in possession of any portion of the land, he can protect the same, unless and
until, the joint land is duly partitioned in accordance with law – Co-owner
wants the possession of the suit land, then she has to file a suit for
partition of the joint land -- In the absence of the same, suit for possession
is not maintainable. Manmohan Kaur v.
Davinder Pal Singh, 2012(1) L.A.R. 62 (P&H).
Relevancy of -- Mutation – Even if the petitioners are
not in possession even then the mutation to the extent of the share is required
to be sanctioned as the mutation does not confer any title. Madan Lal and others v. Financial Commissioner, Punjab and others,
2012(1) L.A.R. 71 (P&H).
Shamilat deh – Pleadings -- Contention that
petitioners were in cultivating possession of Shamilat Deh, 12 years,
immediately preceding the commencement of the 1961 Act, their possession is
protected by Section 4 (3)(ii) of the 1961 Act -- Argument, cannot be
entertained as no such plea was raised before the Collector or the Commissioner
and nor has such a plea been raised in the pleadings -- Petitioners cannot be
allowed, at this belated stage, of this long drawn out litigation, to raise a
new plea and alter the very basis of their claim of ownership. Sher Singh and others v. Director Rural
Development & Panchayat, Punjab and
others, 2012(1) L.A.R. 677 (P&H DB).
Shamilat deh – Relevant date -- Requisite period of 12
years, before the enactment of the 1961 Act, to claim protection of their
possession, required by Section 4(3)(ii) of the 1961 Act -- Period of 12 years
has to be reckoned from the date of enactment of the 1961 Act i.e. 4.5.1961. Sher Singh and others v. Director Rural
Development & Panchayat, Punjab and
others, 2012(1) L.A.R. 677 (P&H DB).
Power
of Assistant Consolidation Officer
Delivery of possession of land – Consolidation
proceedings have been completed in the village, claim of ownership of the
petitioners was negatived in the civil suits -- Appropriate authorities are
required to follow the due/established procedure to implement the orders or to
execute the decrees in accordance with law and not otherwise – ACO did not have
the power/jurisdiction to write a letter to SDM to deliver the possession of
the land in litigation in a casual manner.
Sher Singh (since deceased) through his LRs & Another v. State of Haryana
Power of Commissioner
Punjab Village Common Lands (Regulation) Act, 1961 –
Eviction petition – Question of title – Commissioner, while setting aside
orders of eviction has directed the Collector to scrutinize the papers properly
and direct the Gram Panchayat to file a petition in case it is found that the
Gram Panchayat has any title – Held, Commissioner, was exercising quasi
judicial powers and was therefore, required to direct the Assistant Collector,
Ist Grade, Fatehabad, to frame a question of title, as required by the first
proviso to Section 7 of the Act and keep the application under Section 7 in
abeyance, till the question of title is finally decided -- Commissioner had no
jurisdiction to direct the Collector to deal with the matter on the
administrative side. Gram Panchayat
Dharni, Village Dharni, Tehsil and District Fatehabad v. Commissioner, Hisar
Division, Hisar and others, 2012(1) L.A.R. 580 (P&H DB).
Power of Deputy Collector
Presumption of Bonafide need
East Punjab Urban Rent Restriction Act, 1949 – NRI
landlord – In case a landlord fulfills the conditions of section 13-B of the
Act, a presumption is to be drawn in his favour for his bona fide need and
thereafter it is for the tenant to make out a strong case in his application
for grant of leave to defend. Poonam
Kumari v. Rajinder Kumar, 2012(1) L.A.R. 559 (P&H).
Presumption of Publication of Scheme/Notice
Haryana Canal and Drainage Rules – Held, official acts
shall be presumed to have been done correctly and if the records brought before
the Court show that the notices had been issued, a disputed question of fact
that such notice had not been issued cannot be adjudicated before the High
Court. Tek Ram and another v. The State
of Haryana
Presumption of truth
Jamabandi – Presumption of truth attached to
jamabandis, which are per-se admissible in evidence. Maghi Ram (deceased) through his LRs. and another v. Gram Panchayat,
Chirwa and others, 2012(1) L.A.R. 519 (P&H DB).
Jamabandi entries – Rebuttal of -- Mere vague report
of Kanungo, site plan and Index report is not sufficient to rebut the
presumption of truth attached to the entries contained in the Jamabandis,
particularly when Field Kanungo, who prepared the report has admitted that no
pacca points were affixed by him at the time of demarcation. Manmohan Kaur v. Davinder Pal Singh,
2012(1) L.A.R. 62 (P&H).
Principle of promissory estoppels
Punjab Khadi and Village Industries Board Loan Rules,
1958 -- Margin money (subsidy) -- Respondent-Samiti after availing the loan had
also repaid the same along with interest within the stipulated time given in
the agreement -- There was no default on its account -- At a subsequent stage,
the appellant-Board asked the respondent-Samiti to convert the margin money
(subsidy) into loan -- Said action of the appellant-Board set aside being hit
by the principle of promissory estoppel. Punjab
Khadi and Village Industries Board, Chandigarh
Procedure of Oustees Claim
HUDA Matters -- Separate claim – Requirement of --
Finding that since the claim from the
oustees was not separately invited and could not have been clubbed or joined
with General Category, therefore, such action is violative of law is not
sustainable – Such provision is directory and inviting of applications through
a public advertisement along with the applications from the general public
meets the intent of the policies -- An oustees is entitled to apply for a plot
till such time, the plots falling to the category of the oustees remain
unallotted -- Such writ petitioner would be entitled to apply for a plot in pursuance
of public notice inviting applications from the oustees, if the plots for such
category are available. Haryana Urban
Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475
(P&H DB).
Proof of Will
Mere registration of Will does not prove the
execution and validity of the Will -- Will whether registered or unregistered
needs to be proved as per law. Tarsem Singh and others v. Ujjwal Deep Singh
Soora and another, 2012(1)
L.A.R. 636 (FC Pb.).
Proving of Execution of Will
Legal requirements for proving execution of Will can
be summarised as - A Will like any other document is to be proved in terms of
provisions of Indian Succession Act and the Indian Evidence Act; Onus of
proving the Will is on the propounder; Testamentary capability of the propounder
must also be established; The execution of the Will by the testator has to be
proved; At least one attesting witness is required to be examined for the
purpose of proving the execution of the Will; It is required to be shown that
the Will has been signed by the testator with his free will and that at the
relevant time, he was in sound disposing state of mind and understood the
nature and effect of disposition; It is also required to be established that he
has signed the Will in the presence of two witnesses, who attested his
signatures in his presence or in the presence of each other; When there exist
suspicious circumstances, the onus would be on the propounder to explain the
same to the satisfaction of the court before it can be expected as genuine. The
Court must satisfy its conscience before its genuineness is accepted by taking
a rationale approach. Charan Singh and
another v. Amar Singh and others, 2012(1) L.A.R. 608 (P&H).
Provisional assessment of Arrears of rent
Rent Act -- First date of hearing -- Extension of –
Right of -- Rent Controller did not assess the exact amount of provisional rent
to be tendered by the tenant – But tenant has not requested to the Rent
Controller that he is unable to pay the rent on the first date of hearing in the
absence of assessment of exact amount rather the prayer was that entire arrears
of rent is not available in time and an adjournment was sought for payment of
the balance amount after offering Rs.20,000/- -- Tenant can challenge, but
cannot escape his eviction if he does not tender the provisionally assessed
rent on the first date of hearing -- Said arrears are tendered by the tenant on
account of conditional stay which does not take away the right already accrued
in favour of the landlord – Held, non-availability of provisionally assessed
rent on the date of its tender is not a ground for extension of time and the
eviction order passed on that account cannot be set aside even on the ground
that the Rent Controller had failed to assess the exact amount of rent. Kailash Chandra Kaushik v. Kamaljeet
Rangi, 2012(1) L.A.R. 514 (P&H).
Public premises
Common purposes – Right of Proprietors – Eviction of
-- Land is reserved for common purpose i.e. Baisak Mawashian (place of
gathering of cattle) and school -- Such land would be public premises --
Collector can issue notice to get unauthorized occupant from such land evicted
-- Proprietors of the village can also be evicted from the land reserved for
common purpose. Puran and others v. The
Commissioner and others, 2012(1) L.A.R. 448 (P&H).
Unauthorized possession – Allotment of plots to the
homeless, Scheduled Castes, weaker sections of the society etc. – Undisputedly,
the plots allotted to the petitioners under the Scheme were never cancelled by
the competent authority -- Mutation of the ownership was sanctioned and their
names appeared in the Jamabandi -- Thereafter the Gram Panchayat was not the
owner of the plots – Held, no application either by the Gram Panchayat or the
inhabitants of the village could have been filed under the Public Premises Act
because the plots allotted to the private respondents do not fall under the
definition of “public premises”. Wattan
Singh @ Sadhu Singh and another v. State of Punjab and others, 2012(1) L.A.R.
567 (P&H DB).
Public purpose
Land Acquisition Act, 1894 -- Acquisition of land –
Land for town or rural planning -- Challenge to – As per Section 3 of the Act,
public purpose has been defined to include the provision of land for town or
rural planning which obviously has to be prior to issuance of a notification
u/s 4 of the Act -- Master Plan was notified after issuance of notification u/s
4 -- Unless there is proper planning for acquisition of land by the Appropriate
Government, it would not pass the test of public purpose for which only the
land can be acquired -- Notifications acquiring land cannot be upheld. Surinder Kumar and others v. State of
Punjab and others, 2012(1) L.A.R. 277
(P&H DB).
Publication of notification in two newspapers
Land Acquisition Act, 1894 -- Notification u/s 4 -- Circulation of newspaper -- If there is
failure to publish in two daily newspapers or if the publication is in two
newspapers that have no circulation at all in the locality, without anything
more, the notification u/s 4(1) of the Act and the consequential acquisition
proceedings will be vitiated, on the ground of non-compliance with an essential
condition of section 4(1) of the Act. The
Special Deputy Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam &
others, 2012(1) L.A.R. 151 (SC).
Land Acquisition Act, 1894 -- Notification u/s 4 -- Circulation of newspaper -- If the two
newspapers carrying the publication of the notification have reasonably wide
circulation in the locality, then the requirements of section 4(1) are complied
with -- In that event, neither the notification u/s 4(1), nor the consequential
acquisition proceedings would be open to challenge, on the ground of violation
of Section 4 of the Act. The Special
Deputy Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam & others, 2012(1)
L.A.R. 151 (SC).
Land Acquisition Act, 1894 -- Notification u/s 4 -- Circulation of newspaper – Pleadings --
If the newspapers in which the notification is published were circulating in
the locality, but did not have a reasonably wide circulation in the locality,
then neither the notification u/s 4(1) nor the consequential acquisition
proceedings, will become vitiated automatically -- If the person aggrieved,
apart from demonstrating that the two newspapers did not have reasonably wide
circulation in the locality, also asserts that as a consequence, he did not
have notice of the proposed acquisition that was provided for in Section 4(1)
of the Act, in the absence of evidence to the contrary, the acquisition to the
extent of the land of such person will be vitiated -- But if such assertion is
rebutted by the acquiring authority by placing evidence to show that the person
concerned had in fact notice (as for example where he participated in the
enquiry under section 5A of the Act), the acquisition will not be vitiated. The Special Deputy Collector, Land
Acquisition C.M.D.A. v. J. Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Land Acquisition Act, 1894 – Notification u/s 4 -- If the person challenging the acquisition
is able to establish that the notifications were deliberately and with
malafides, published in newspapers having negligible circulation, to avoid
notice to the persons concerned, then section 4(1) will be violated. The Special Deputy Collector, Land
Acquisition C.M.D.A. v. J. Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Land Acquisition Act, 1894 -- Notification u/s 4 -- Object and purpose is to provide for
publication of the preliminary notification in two daily newspapers having
reasonably wide circulation in the locality so that people (persons interested)
in that locality may become aware of the proposals for acquisition. The Special Deputy Collector, Land
Acquisition C.M.D.A. v. J. Sivaprakasam & others, 2012(1) L.A.R. 151 (SC).
Publication of Scheme/Notice
Haryana Canal and Drainage Rules – Notice – Issuance
of – Presumption of -- Held, official acts shall be presumed to have been done
correctly and if the records brought before the Court show that the notices had
been issued, a disputed question of fact that such notice had not been issued
cannot be adjudicated before the High Court. Tek Ram and another v. The State of Haryana
Haryana Canal and Drainage Rules -- Rules do not
require personal service of notices -- Only a publication by beat of drum and
the acknowledgment of Lambardar and his statement of having announced and given
publicity of the same on the file of the scheme. Tek Ram and another v. The State of Haryana
Section 26 -- Board of Directors – Election of –
Cancellation of – Jurisdiction of
District Magistrate -- Election process commenced for the post of Board
of Directors -- Head Constable and two Constables were deployed for the smooth
conduct of the election – District Magistrate cancelled the election process on
the ground of law and order situation – Held, District Magistrate was well
within his right to initiate appropriate proceedings/action under Chapters VIII
& XI Cr.P.C., or may pass order u/s 144 and 144-A of the Cr.P.C., or any
other law for the time being in force, as the case may be, as warranted by the
situation but did not have the jurisdiction, to cancel the already commenced
democratic election process, in a very casual and abrupt manner, without any
material/basis. Navraj Singh and another
v. State of Punjab and others, 2012(1) L.A.R. 10 (P&H).
Sections 2(d), 3 -- Constitution of India, Seventh
Schedule, Entry 33,62, 97 -- Entertainment tax – Imposition of -- Legislative
competence of State – Whether exclusion of ‘sport’ as a subject from taxing
Entry 62, and inclusion of the same in non-taxing Entry 33 of the State List of
the Seventh Schedule of the Constitution is intentional so as to deprive the
State Legislature their competence to tax ‘sport’ and leave that competence to
Parliament under the residuary Entry 97 of the Union List? – Held, State
Legislature is competent to impose entertainment duty/tax on entertainments and
amusements, which include sports and accordingly question is answered in favour
of the revenue and against the assessee.
DLF Golf Resorts Ltd. v. State of Haryana and others, 2012(1) L.A.R. 78
(P&H Full Bench).
Sections 2(d), 3 – Sports club – Entertainment tax --
Imposition of entertainment duty is not only on sport but on the ‘sports club’,
which is embroiled in score of other activities which included partying, wining
and dining -- Words ‘amusements’ and ‘entertainments’ would include ‘sports’ as
well. DLF Golf Resorts Ltd. v. State of
Haryana and others, 2012(1) L.A.R. 78 (P&H Full Bench).
Sections 2(d), 3 – Sports club – Entertainment tax --
Video games are subject to entertainment tax -- Even if a person is entertained
in a video parlour by his own performance, there is no legal requirement that
the owner of the video parlour should organise some entertainment programme
like performance in theatre, amusement, games or any sport -- In other words,
it is no longer sine qua non that performance by a third party organised at the
instance of the assessee is imperative in order to attract entertainment tax --
Mode of payment is wholly immaterial whether made at the entry or at the time
of playing games, therefore, a lump sum amount paid in the beginning or annual
subscription given year after year would hardly make any difference -- A
performance becomes public in character when people come to play the game by
displaying their own skill for consideration at a place where the members of
the public are invited to pay and enjoy the facilities. DLF Golf Resorts Ltd. v. State of Haryana and others, 2012(1) L.A.R. 78
(P&H Full Bench).
Sections 2(d), 3 – Sports club – Entertainment tax --
Whether the Division Bench judgment of this Court in M/s Chrysalis
International Pvt. Ltd. v. State of Haryana, 2008 (4) PLR 323, has been
correctly decided by applying the law laid by Hon’ble the Supreme Court in M/s
Geeta Enterprises v. State of U.P., (1983) 4 SCC 202. The question is ‘does the
Homer nod’? – Held, the judgment in case of Chrysalis International (P) Ltd.
has been correctly decided. DLF Golf
Resorts Ltd. v. State of Haryana and others, 2012(1) L.A.R. 78 (P&H Full
Bench).
Rule 4, 9 – Margin money (subsidy) -- Principle of
promissory estoppels -- Respondent-Samiti after availing the loan had also
repaid the same along with interest within the stipulated time given in the
agreement -- There was no default on its account -- At a subsequent stage, the
appellant-Board asked the respondent-Samiti to convert the margin money
(subsidy) into loan -- Said action of the appellant-Board set aside being hit
by the principle of promissory estoppel. Punjab
Khadi and Village Industries Board, Chandigarh
Rule 4, 9 – Margin money (subsidy) -- Rules does not
say that the margin money (subsidy) will not be available on the loan account
of working capital -- Held, subsequent Policy of the Khadi Commission to the
effect that margin money (subsidy) cannot be availed on the working capital
loan does not override the Rules. Punjab
Khadi and Village Industries Board, Chandigarh
Section 3 -- Environment (Protection) Act, 1986,
Section 3(2)(v) – Notification dated 14.9.2006 – Prior Environmental Clearance
-- Minor Mineral Quarries -- Auction of -- Held, though individual mineral quarries
on which mining is proposed to be allowed does not exceed 4.5 hectares which
takes the matter outside the notification dated 14.9.2006, the mining mineral
quarries covered by the auction notices are certainly of large areas and thus,
by using the device of limiting the area of individual quarries to 4.5
hectares, the requirement of environment clearance as per notification dated
14.9.2006 cannot be allowed to be defeated -- Said notification is a statutory
notification -- Prior environmental clearance is mandatory -- State cannot
proceed with the grant of mining rights in pursuance of impugned notices until
environmental clearance is granted in terms of notification dated 14.9.2006. Sandeep Sangwan v. Union of India and
others, 2012(1) L.A.R. 454 (P&H DB).
Para 7.30, 7.31 -- Punjab Land Revenue Act, 1887 (XVII
of 1887), Section 34, 45 – Mutation entries – Jamabandi entries – Fard Badar --
Substantial variations have been made in the entries in jamabandi by way of
fard badar as the earlier mutations were cancelled – Held, Fard badar is
patently illegal – No jurisdiction to make substantial changes/variations in
the jamabandi, which can only be carried out by way of a Civil Suit, in terms
of Chapter VI of the Specific Relief Act, 1877. Rahul and others v. State of Haryana and others, 2012(1) L.A.R. 576
(P&H DB).
Section 21 – Surplus area – Declaration of – Challenge
to -- Jurisdiction of the Civil Court – Collector held that the land measuring
1.66.62 hectares was surplus with the plaintiff – Collector, accordingly,
issued notice under section 9 of the Act for delivering possession of the said
land – Civil suit questioning the orders – Held, civil court has no
jurisdiction to try the suit. State of Punjab
Section 13, 15 -- Appointment of Lambardar – Choice of
Collector -- Choice of the Collector in the matter of appointment of Lambardar
should not be interfered, until and unless the order of the Collector is
totally perverse or an ineligible person has been appointed as Lambardar. Kuldip Singh v. Financial Commissioner
(Appeals-II), Punjab, Chandigarh
Section 13, 15 – Appointment of Lambardar – Choice of
Collector -- Choice of the Collector should not be interfered by the higher
revenue authorities, until and unless the order of the Collector is totally
perverse or the person appointed is ineligible. Ujagar Singh’s case, 2008 (3)
RCR (Civil) 28 and Gurdial Singh’s case 2008 (4) RCR (Civil) 283, relied. Makhan Singh v. Financial Commissioner
(Co-operation) Punjab, Chandigarh
Section 13, 15 – Appointment of Lambardar – Choice of
Collector -- In the matter of appointment of Lambardar, the choice of the
Collector is final and should not be ordinarily interfered until and unless the
order is arbitrary, capricious or unreasonable. Jaibir Singh v. State of Haryana and others, 2012(1) L.A.R. 672
(P&H DB).
Section 13, 15 – Appointment of Lambardar – Choice of
Collector -- Collector, after taking into consideration all the relevant
factors regarding age, education, holding of land, social activities of the
candidates, hereditary claim of respondent No.4 as well as the criminal
background of the appellant, appointed respondent No.4 as Lambardar of the
village -- There was no illegality or perversity in the said order -- It cannot
be said that respondent No.4, who was appointed as Lambardar, was not eligible
for the said post -- In view of these facts, Commissioner had wrongly
interfered in the choice of the Collector. Jaibir
Singh v. State of Haryana and others, 2012(1) L.A.R. 672 (P&H DB).
Section 13, 15 – Appointment of Lambardar – Choice of
Collector – Review -- Collector, after considering the comparative merit of
both the candidates, had appointed respondent No.4 as Lambardar of the village
-- Commissioner, without any justification and while totally ignoring the
settled law that the choice of the Collector should not be interfered with
until and unless the order is perverse and the appointed person is ineligible
for the appointment, had set aside the order of the Collector -- Financial
Commissioner, though at one point of time, had set aside the illegal order of
the Commissioner, but subsequently, had taken the ‘U' turn on the review
application and on a different ground had recalled his earlier order totally
without any justification and reason – Order of Financial Commissioner in
review application set aside -- Collector’s order appointing respondent No.4 as
Lambardar of the village restored.
Manjit Singh v. Financial Commissioner (Appeal-I), Punjab, Chandigarh
Section 13, 15 – Appointment of Lambardar – Choice of
Collector – Collector after appreciating the merits of the case prepared a
comparative chart of all the three candidates – Candidate appointed by
Collector is 24 years of age and is 12th Pass, whereas other is 8th
pass and 50 years of age – Appointed candidate had been president of the Milk
Society of the village and has 4 acres of land, whereas other although has
excess land but he has taken loans from different banks – Candidature of
appointed candidate has been supported by majority of the residents of the
village – Finding of the Collector affirmed by the Divisional Commissioner as
well as Financial Commissioner – No illegality or perversity in the order
passed by the Collector has been pointed out – No ground to interfere in the
findings recorded by the revenue authorities. Jaswant Singh v. State of Punjab and others, 2012(1) L.A.R. 658 (P&H).
Section 13, 15 – Appointment of Lambardar – Comparative
merits – Choice of Collector -- Criminal case was pending against petitioner --
Further on comparative merits of the candidates, the Collector found private
respondent as suitable, more influence in the village and has more land than
petitioner -- Petitioner has encroached upon gair mumkin chhapar (pond) and
found him to be a person of suspicious character being involved in criminal
case -- Finding of the District Collector has been concurred up to Financial
Commissioner -- Choice of the Collector cannot be set aside lightly, it can
only be set aside if there is any perversity or illegality – No illegality or
perversity pointed out -- No ground is made out which may warrant interference
in judicial review. Gursev Singh v.
State of Punjab and others, 2012(1)
L.A.R. 665 (P&H).
Section 13, 15 – Appointment of Lambardar --
Recommendation of S.D.M. -- Choice of Collector – Collector had appointed
appellant as Lambardar of the village finding him a better candidate, who as
per the report/recommendation of the Sub Divisional Magistrate, is not even
permanent resident of the village and is running a shop elsewhere --
Respondent, who is permanent resident of the village and doing the business of
readymade garments, was found more suitable candidate than appellant by the Sub
Divisional Magistrate in his report/recommendation -- This reflects the total
non-application of mind by the Collector – Matter was rightly remanding back to
District Collector with the direction to re-examine the entire case. Raj Kumar v. Financial Commissioner
(Appeal-II), Punjab, Chandigarh
Section 13, 15 -- Punjab Land Revenue Rules, Rule 15 –
Appointment of Lambardar – Comparative merits – Choice of Collector --
Petitioner has misappropriated the amount of the Cooperative Society of the
village and his services were terminated -- Besides this private respondent is
an Ex-serviceman and is a middle pass and he had been a member of the Market
Committee and he also remained Sarpanch of the village -- He also remained
Sarbrah Lambardar of the village for five years and is well conversant with the
works of the lambardari – Collector found private respondent to be a better
candidate for appointment to the post of Lambardar -- It is settled law that
the choice of the Collector cannot be set aside lightly. Harbhagwan Singh v. The Financial Commissioner (Revenue), Punjab and another, 2012(1) L.A.R. 198 (P&H).
Section 13,15 -- Appointment of Lambardar -- Choice of
Collector -- Choice of the Collector cannot be set aside lightly, it can only
be set aside if there is any perversity or illegality. Harpreet Singh v. State of Punjab and others, 2012(1) L.A.R. 132
(P&H).
Section 13,15 -- Appointment of Lambardar – Choice of
Collector – Choice of the Collector in the matter of appointment of Village
Lambardar should not normally be interfered with, unless the Collector has
taken a perverse view and has not exercised his choice judiciously. Hira Khan @ Gajala v. Divisional
Commissioner, Patiala and others, 2012(1) L.A.R. 56 (P&H).
Section 13,15 – Appointment of Lambardar – Choice of
Collector – Interference in -- Choice of the Collector in the matter of
appointment of Lambardar should not be interfered, until and unless the order
of the Collector is illegal on the face of it -- Appointment should not be
interfered by the Commissioner, until and unless the order of the Collector was
found to be totally perverse and an ineligible person had been appointed as
Lambardar. Tarlok Chand v. Joginder
Singh and others, 2012(1) L.A.R. 689 (P&H DB).
Section 13,15 – Choice of Collector -- Choice of the
Collector cannot be set aside lightly unless there is perversity in the order
passed by the Collector -- Collector has appreciated the comparative merit of
the candidates and has come to a conclusion that private respondent is a more
suitable and meritorious candidate for appointment as Lambardar -- Commissioner
did not find any perversity in the order of the Collector, inspite of that the
appointment was set aside -- Financial Commissioner restored the order of
Collector – In the judicial review, the power of High Court is limited to the
extent of looking into the perversity, illegality or impropriety in the order
passed by the competent authority -- Held, there is no illegality, infirmity or
perversity in the order of the Financial Commissioner – Writ dismissed. Surender Kumar v. State of Haryana and
others, 2012(1) L.A.R. 202 (P&H).
Section 13,15,20 – Appointment of Lambardar -- Choice
of Collector – Interference in -- Choice of the Collector is to be respected,
in so much as Collector is a Revenue Officer in the District who is required to
take work from the Lambardar, in context of provisions of Rule 20 of the Punjab
Land Revenue Rules. Hoshiar Chand v. The
Financial Commissioner (Appeals-II), Punjab, Chandigarh
Section 13, 16 – Appointment of Lambardar – Employed
candidate -- Choice of Collector -- Choice of the Collector cannot be set aside
lightly -- No interference with the choice made by the Collector even if two
views are possible -- Commissioner/Financial Commissioner has only limited
right to interfere that too when the choice of the Collector is found to be
perverse, suffers from material irregularity -- Collector held that merely
because the petitioner is working at Stone Crusher Company, does not deprive
him from performing his duties as Lambardar, rather it should be appreciated
that the person is working and earning livelihood of his family -- This cannot
be treated as a perverse finding – Order of Collector upheld. Umed Singh v. Financial Commissioner,
Haryana and others, 2012(1) L.A.R. 50 (P&H).
Section 13, 34 – Mutation -- Private respondents were
in possession of the land, which they have purchased by way of sale-deed and
enquiry was initiated with regard to insufficient stamp duty on their sale-deed
by the Collector -- During the course of enquiry, the petitioners also
purchased the same Khasra Number from other co-sharers through the Power of
Attorney -- All these vital aspects were not considered and just ignored by the
Assistant Collector Ist Grade with impunity -- Collector has rightly remitted
the matter back to the Assistant Collector.
Narinder Kumar Gupta and another v. Divisional Commissioner, Patiala and
others, 2012(1) L.A.R. 22 (P&H).
Section 33, 34 -- Jamabandi -- An entry in a jamabandi
merely records a fact, but is not the fact itself. Sher Singh and others v. Director Rural Development & Panchayat, Punjab and others, 2012(1) L.A.R. 677 (P&H DB).
Section 34 -- Khasra Girdawari – Correction in --
Petitioner did not come present before A.C. 2nd Grade despite proclamation --
Plea regarding ex-parte order is not tenable -- Moreover A.C. 2nd Grade had
passed the order after visiting the land in dispute where he found respondents
in cultivating possession of land -- No illegality/irregularity or any
perversity in the order of the lower revenue courts. Dev Raj and others v.
Commissioner, Jalandhar Division and others, 2012(1)
L.A.R. 628 (FC Pb.).
Section 34 – Mutation – Possession – Relevancy of --
Even if the petitioners are not in possession even then the mutation to the
extent of the share is required to be sanctioned as the mutation does not
confer any title. Madan Lal and others
v. Financial Commissioner, Punjab and others, 2012(1) L.A.R. 71 (P&H).
Section 34 – Mutation proceedings – Challenge to – Civil suit
-- In a Civil suit, observation made in the summary proceedings of the mutation
by the revenue authorities starting from the Assistant Collector Ist Grade upto
the Financial Commissioner, shall not prejudice the mind of the Civil Court Civil Court
Section 34 – Mutation proceedings – Civil suit --
Observation made in the summary proceedings of the mutation by the revenue
authorities starting from the Assistant Collector Ist Grade upto the Financial
Commissioner, shall not prejudice the mind of the Civil Court Civil Court
Section 34 – Mutation proceedings – Mutation does not confer
any title. Mohinder Singh v. Financial
Commissioner and others, 2012(1) L.A.R. 238 (P&H).
Section 34 – Mutation proceedings – Res-judicata -- Finding
recorded during the mutation proceedings while sanctioning or rejecting the
same in favour of either of the parties in a suit for declaration of title or
possession on the basis of sale deed etc., does not operate as res judicata. Mohinder Singh v. Financial Commissioner
and others, 2012(1) L.A.R. 238 (P&H).
Section 34 – Mutation proceedings – Res-judicata -- Mutation
does not confer any title -- Finding recorded during the mutation proceedings
while sanctioning or rejecting the same in favour of either of the parties in a
suit for declaration of title or possession on the basis of sale deed etc.,
does not operate as res judicata. Smt.
Gurjeet Kaur and others v. Financial Commissioner and others, 2012(1) L.A.R.
200 (P&H).
Section 34,35 – Mutation – Challenge to -- Party
aggrieved by the orders passed in mutation proceedings can always redress his
grievance by way of filing suit for title. Smt.Nirmaljit
Kaur and others v. State of Punjab
Section 34,35 – Mutation – Delivery of possession –
Requirement of -- Even if there is no actual delivery of possession, even then,
AC 2nd Grade was duty bound to enter the mutations on the basis of registered
sale deeds as contemplated u/s 34 -- In case of entertaining any kind of doubt
of acquisition of any interest in the land by other, then he was duty bound to
refer the same (disputed mutations) to the Collector for its adjudication, as
envisaged u/s 35. Smt.Nirmaljit Kaur and
others v. State of Punjab
Section 34,35 – Mutation – Nature of -- Proceedings of
mutations are not judicial proceedings -- Mutation entries do not convey or
extinguish any title and are relevant only for the purpose of collection of
land revenue. Smt.Nirmaljit Kaur and
others v. State of Punjab
Section 34, 42 – Jamabandi – Presumption of truth --
Presumption of truth attached to jamabandis, which are per-se admissible in
evidence. Maghi Ram (deceased) through
his LRs. and another v. Gram Panchayat, Chirwa and others, 2012(1) L.A.R. 519
(P&H DB).
Section 34, 42 -- Punjab Village Common Lands
(Regulation) Act, 1961 (18 of 1961), Section 2(g)(viii), 4 – Tibba/Banjar Kadim
land – Shamilat deh – Exemption from -- Petitioner is not deemed to be in
cultivating possession of Tibba/Banjar Kadim land, which has been recorded as
such in the Jamabandi for the year 1947-48 -- A presumption of truth attaches
to a Jamabandi that the land being an old fallow, i.e. uncultivated for 8 successive
harvests, cannot be in the cultivating possession of the petitioners, before
26.01.1950 so as to exclude it from Shamilat Deh -- Petitioner is not entitled
to any exemption under Sections 2(g)(viii) and 4 (3)(ii) of the 1961 Act. Gurdev Singh (deceased) through his LRs. v.
The Additional Director, Panchayats, Punjab
and another, 2012(1) L.A.R. 596 (P&H DB).
Section 34, 44 --
Mutation entries – Delay in challenge – Effect of -- Mutation was
sanctioned in favour of the gram panchayat way back in 1964 -- If petitioners
did not challenge any entry for long i.e. for more than 46 years, now they
shall be debarred from challenging the same in view of principle of waiver,
acquiescence and estoppel -- Long standing entries have strong presumption of
their correctness unless proved by cogent evidence otherwise. Dharambir and another v. Financial
Commissioner, Haryana and others, 2012(1)
L.A.R. 265 (P&H).
Section 34, 44 – Jamabandi entries – Presumption of
truth – Rebuttal of -- Mere vague report of Kanungo, site plan and Index report
is not sufficient to rebut the presumption of truth attached to the entries
contained in the Jamabandis, particularly when Field Kanungo, who prepared the
report has admitted that no pacca points were affixed by him at the time of demarcation.
Manmohan Kaur v. Davinder Pal Singh,
2012(1) L.A.R. 62 (P&H).
Section 34, 45 – Punjab Land Record Manual, Para 7.30,
7.31 -- Mutation entries – Jamabandi entries – Fard Badar -- Substantial
variations have been made in the entries in jamabandi by way of fard badar as
the earlier mutations were cancelled – Held, Fard badar is patently illegal –
No jurisdiction to make substantial changes/variations in the jamabandi, which
can only be carried out by way of a Civil Suit, in terms of Chapter VI of the
Specific Relief Act, 1877. Rahul and
others v. State of Haryana and others, 2012(1) L.A.R. 576 (P&H DB).
Section 34, 111, 121 – Partition of land – Instrument of
partition – Finalisation of -- Private respondents are subsequent vendees, they
had purchased the land after partition of the land -- Mutation has been
sanctioned on the basis of instrument of partition -- Civil Court in appeal
upheld the order of partition also – Held, there was no occasion for the
Financial Commissioner to set aside the orders of the revenue authorities. Faqir Singh and others v. Financial
Commissioner (Co-operation), Punjab and
others, 2012(1) L.A.R. 134 (P&H).
Section 34.111,121 –
Purchase of Specific Khasra -- Mutation – Partition of land -- Contention that
specific khasra number has been transferred and the mutation should have been
sanctioned by the revenue authorities with respect to that specific Khasra
number only – Held, contention is not sustainable -- Out of the joint khewat
even sale of specific khasra number will be deemed to be sale of share which is
always subject to partition. Daljit
Singh and others v. The Financial Commissioner (Revenue) Punjab
and others, 2012(1) L.A.R. 143 (P&H).
Section 45 -- East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Section 45 of
the Punjab Land Revenue Act provides that a person aggrieved by a revenue entry
shall have to file a suit for declaration -- Petitioners having unsuccessful,
could not approach consolidation authorities to correct the revenue record,
particularly when revenue entries were recorded, three to four decades before
consolidation proceedings. Aattish Kumar
and another v. State of Haryana and others, 2012(1)
L.A.R. 663 (P&H DB).
Section 111 – Joint land – Possession -- Nature of --
Once the parties to the lis have purchased their respective shares out of joint
property, then they cannot claim to be in exclusive possession of any
particular portion of the suit property, unless and until, the joint land is
legally partitioned between them -- It will remain a joint property of the
parties and plaintiff cannot claim exclusive possession of any specific
portion. Manmohan Kaur v. Davinder Pal
Singh, 2012(1) L.A.R. 62 (P&H).
Section 111 – Joint land – Possession -- Partition of
land -- If any co-owner is in possession of any portion of the land, he can
protect the same, unless and until, the joint land is duly partitioned in
accordance with law – Co-owner wants the possession of the suit land, then she
has to file a suit for partition of the joint land -- In the absence of the
same, suit for possession is not maintainable. Manmohan Kaur v. Davinder Pal Singh, 2012(1) L.A.R. 62 (P&H).
Section 111, 114 -- Mode of partition – Collector
remanded the case with a direction to A.C. Ist Grade to partition the land by
keeping the possession intact after inspecting the spot -- No prejudice has
been caused to any party -- No illegality/irregularity or any perversity in the
remand order of the Collector. Roop Lal v. Ram Kumar, 2012(1) L.A.R. 632 (FC Pb.).
Section 111, 114 -- Mode of partition -- No party
has stated that they should be given specific Khasra numbers to them -- However
A.C.Ist Grade while framing the mode of partition have given specific Khasra
numbers to respondent No. 1 – A particular co-sharer cannot be given
preferential treatment over others when objections have been raised by other
co-sharers -- Partition has to be affected as per the value and quality of land
-- A.C. Ist Grade is directed to frame fresh mode of partition after hearing
the parties. Sant Singh v. Chander Bhan Singh and others, 2012(1) L.A.R. 655 (FC Pb.).
Section
111, 116 – Mode of partition – Earlier the mode of partition was challenged by
the petitioner by way of an appeal which was also dismissed so there is no
question of filing a fresh application for preparation of fresh mode of
partition. Vinod Kumar v. Financial
Commissioner, Haryana and others, 2012(1) L.A.R. 73 (P&H).
Section 111, 116 – Partition of land – Three khewats --
Clubbing of -- All the three khewats do not have a common joint owners,
different joint owners are in different khewats -- Held, it would not be
appropriate that all the khewats should have been consolidated and should have
been clubbed together -- Clubbing of khewats could have been only possible if
all the joint owners/co-sharers would have been common in all the khewats. Darshan Singh v. Financial Commissioner,
Haryana and others, 2012(1) L.A.R. 114 (P&H).
Section 111, 121 – Partition – Challenge to --
Partition has attained finality; Possession of the partitioned land has been
delivered to the parties, no interference is warrant at this stage -- Revision
petition is dismissed accordingly. Daulat Ram deceased through his LRs. v.
Hans Raj and others, 2012(1)
L.A.R. 638 (FC Pb.).
Section 111, 121 – Partition – Finalization of –
Challenge to -- Partition has attained finality -- Dakhal has been given and
changed entries has been incorporated in the jamabandi -- Collector and the
Commissioner has upheld the partition proceedings – Their orders are not
suffering from any illegality/irregularity and any perversity -- Revision
petition is dismissed in limine being devoid of merits. Baldev Kaur and
others v. Balkar Singh and others, 2012(1)
L.A.R. 625 (FC Pb.).
Section 111, 121 – Partition of land -- Joint land –
Purchase of specific Khasra – Effect of -- Land in question is a joint -- Even
though the petitioner has purchased a specific khasra numbers from one of the
co-sharers, the same will be deemed to have been purchased as share in the
joint land in question that is why the partition proceedings are permitted
under the provisions of the law -- Long standing possession over the property
cannot be deemed to be possession for all times to come. Lichhmi v. State of Haryana and others, 2012(1) L.A.R. 193 (P&H).
Rule 15 --
Appointment of Lambardar – Comparative merits -- Petitioner is more
educated being matriculate and a retired teacher, private respondent is 7th
pass -- When applications were invited for appointment of Lambardar, the
petitioner owned 19 kanals of land whereas respondent owned only 4 kanals and
10 marlas of land -- Merit amongst the candidates is required to be seen at the
point in time when applications are to be filled -- Subsequent addition of land
would not be a good ground to hold the order passed by the Collector to be
perverse – Held, petitioner has an edge over the private respondent. Hoshiar Chand v. The Financial Commissioner
(Appeals-II), Punjab, Chandigarh
Rule 15 – Appointment of Lambardar – Age – Experience with
father -- Contention that private respondent has made a false statement with
regard to his experience and working with his Tau – Held, in the villages it is
a common practice that an aged man is accompanied by younger male member in the
family -- If such statement is made, such cannot be treated as misleading --
Contention that at the time of death of previous Lambardar, private respondent
was about 12 years of age and this will affect merit qua the appointment of
respondent No.5 -- Contention is rejected.
Jai Bhagwan v. Financial Commissioner, Haryana and others, 2012(1) L.A.R. 204
(P&H).
Rule 15 – Appointment of Lambardar -- Agriculturist –
Owner of Poultry Farm -- A villager who is running a poultry farm or engaged in
agriculture is not disqualified for being appointed as Lambardar. Mohinder Singh v. Financial Commissioner,
Appeals-II, Punjab, Chandigarh and others, 2012(1) L.A.R. 691 (P&H DB).
Rule 15 – Appointment of Lambardar – Comparative merits --
Private Respondent is having more land, son of deceased Lambardar, is also an
ex-serviceman, served in the Army for five years and his character has been
found to be exemplary and also remained as Sarbrah Nambardar of the village,
who is well conversant with the works of the Lambardar, whereas the reputation
of petitioner is not clear as a criminal case has been registered against him
-- Petitioner is having less land -- Only young age of the petitioner cannot be
a ground to appoint him as Lambardar -- Mere fact that a number of persons
supported the candidature of the petitioner does not give any right to the
petitioner to be appointed as Lambardar – Collector appointed petitioner as
Lambardar – Order upheld. Swaran Singh
v. State of Punjab and others, 2012(1) L.A.R. 195 (P&H).
Rule 15 – Appointment of Lambardar – Disqualification
-- Defaulter of loan – Relevant date -- Eligibility of a candidate for the post
of Lambardar is to be seen on the date of appointment of the Lambardar -- On
the date of submission of the application as well as on the date of his
appointment as Lambardar, the appellant was defaulter of three Co-operative
banks/institutions, which is one of the dis-qualifications -- Payment of the
loan amount by the appellant subsequently was meaningless and was not to be
taken into consideration. Inderaj’s case AIR 1994 SC 753 relied. Jarnail Singh v. Financial Commissioner
(Appeals) Punjab, Chandigarh
Rule 15 – Appointment of Lambardar – Disqualification --
Father was defaulter – Held, for the fault of father, he cannot be deprived of
his right and his merit cannot be ignored on this ground alone. Jai Bhagwan v. Financial Commissioner,
Haryana and others, 2012(1) L.A.R. 204 (P&H).
Rule 15 – Appointment of Lambardar – Disqualification – For
the fault of the family members, a person claiming his right in his individual
capacity cannot be deprived of those rights. Jai Bhagwan v. Financial Commissioner, Haryana and others, 2012(1)
L.A.R. 204 (P&H).
Rule 15 -- Appointment of Lambardar – Disqualification
-- Petitioner did not intimate the authorities about the death of his father,
who was the earlier Lambardar -- Conduct of the petitioner is certainly
despicable insomuch as he continued to collect land revenue and continued to
perform the duties of Lambardar, without any legal authority to do the same --
In such circumstances, a person like the petitioner, if allowed to be appointed
as Lambardar, would not make a good choice. Bhajan Singh v. State of Punjab & Ors., 2012(1) L.A.R. 310 (P&H).
Rule 15 -- Appointment of Lambardar – Duty of
Collector -- Appointment of Lambardar is administrative function and is
prerogative of the District Collector, being In-charge of the Administration --
It is the duty of the Collector to appoint such person in the office of
Lambardar, who is otherwise eligible and competent to carry out the duties
efficiently. Siri Ram v. Financial
Commissioner, Punjab and others, 2012(1) L.A.R. 7 (P&H).
Rule 15 -- Appointment of Lambardar -- Educational
qualification -- No qualification prescribed under the rules -- There is not
much difference in 10+2 or Matric.
Harpreet Singh v. State of Punjab and others, 2012(1) L.A.R. 132 (P&H).
Rule 15 – Appointment of Lambardar – Ex-serviceman --
Contention that the appellant was a soldier, whereas respondent No.1 was a
carpenter in the Army, therefore, the appellant should be given preference over
respondent No.1, cannot be accepted -- Any person who served in the Army,
whether he was employed as soldier or in the Engineering Wing of the Army, is
an Ex- Serviceman -- It does not make any difference in the case of appointment
of Lambardar. Tarlok Chand v. Joginder
Singh and others, 2012(1) L.A.R. 689 (P&H DB).
Rule 15 – Appointment of Lambardar -- F.I.R. – Effect of –
Contention that private respondent is not eligible for appointment as Lambardar
since a criminal case was registered against him u/s 323, 324 and 34 of the IPC
– Held, registration of FIR is to set the law in motion -- Those offences are
compoundable and the case has been compromised and challan has not been
presented, so the contention is rejected.
Harbhagwan Singh v. The Financial Commissioner (Revenue), Punjab
and another, 2012(1) L.A.R. 198 (P&H).
Rule 15 – Appointment of Lambardar – Hereditary claim
-- Though only on the basis of hereditary claim, a person cannot be appointed
as Lambardar, but certainly it is one of the factors, which has to be
considered while appointing Lambardar. Jaibir
Singh v. State of Haryana and others, 2012(1) L.A.R. 672 (P&H DB).
Rule 15 -- Appointment of Lambardar – Qualification --
Collector, being the appointing authority, was required to consider the
relative merits, in the context of educational qualification, for discharge of
duties by the incumbent Lambardar, as provided under Rule 20 of the Punjab Land
Revenue Rules. Bhajan Singh v. State of
Punjab & Ors., 2012(1) L.A.R. 310
(P&H).
Rule 15 -- Appointment of Lambardar – Recommendation
of revenue authorities -- Collector, after taking into consideration the comparative
merits of the candidates, had come to the conclusion that respondent No.4 was a
better candidate to be appointed as Lambardar -- Held, after taking into
consideration the comparative merits of all the candidates, appointment of
suitable person as Lambardar of the village, the recommendations made by the
revenue authorities are not relevant.
Kuldip Singh v. Financial Commissioner (Appeals-II), Punjab, Chandigarh
Rule 15 – Appointment of Lambardar – Recommendation of
Revenue Authorities – Remand by Commissioner – Effect of -- Earlier
recommendations made by the A.C. IInd Grade and Ist Grade are insignificant,
since the Divisional Commissioner, had set aside the order of the Collector
appointing petitioner as Lambardar -- Only the subsequent order after the
remand is to be taken into consideration.
Swaran Singh v. State of Punjab and others, 2012(1) L.A.R. 195 (P&H).
Rule 15 – Appointment of Lambardar – Respondent No.4
being younger in age, more educated, he is also grand-son of the deceased
Lambardar and having a clean image, cannot be said to be a bad choice for the
post of Lambardar, particularly when the appellant, being defaulter of three
Co-operative banks/institutions, was not eligible for the post. Jarnail Singh v. Financial Commissioner
(Appeals) Punjab, Chandigarh
Rule 15 -- Appointment of Lambardar -- Sarpanch of the
village -- This fact made him more meritorious and better. Tarlok Chand v. Joginder Singh and others, 2012(1) L.A.R. 689 (P&H
DB).
Rule 15 -- Appointment of Lambardar – Sarpanch of the
Village – Eligibility of -- At present, respondent No.4 is not the Sarpanch of
the village, though at the time of his initial appointment as Lambardar, he was
Sarpanch of the village -- This factor does not go against him -- It cannot be
presumed that the Sarpanch of a village would be affiliated with a political
party, thus he cannot discharge his duty honestly and without any bias. Karamjit Singh v. Financial Commissioner
Appeals-II, Punjab, Chandigarh and others, 2012(1) L.A.R. 651 (P&H DB).
Rule 15 -- Appointment of Lambardar – Work place 20 KM
away – Effect of -- Appellant is serving as Helper in Warehousing Corporation,
which is 20 Kilometres away from the village, and in that situation, he will
not be available to the villagers. Kuldip
Singh v. Financial Commissioner (Appeals-II), Punjab, Chandigarh
Rule 15 – Appointment to Lambardar – Land in other
village – Whether it is disqualification -- Merely because respondent No.4 is
owning land in the adjoining villages, it cannot be said that he will not be
available in the village, particularly when he is a permanent resident of the
village. Makhan Singh v. Financial
Commissioner (Co-operation) Punjab, Chandigarh
Rule 15 – Constitution of India, Article 226,227 --
Appointment of Lambardar – Choice of Collector – Writ jurisdiction -- After
considering the respective merits and demerits of the candidates, the District
Collector appointed private respondent as Lambardar – Choice of the Collector
in the matter of appointment of village Lambardar should not normally be
interfered -- Orders, containing valid reasons, cannot possibly be interfered, while
exercising the limited jurisdiction of this Court under Articles 226/227 of the
Constitution of India, unless and until, the same are illegal and perverse. Siri Ram v. Financial Commissioner, Punjab
and others, 2012(1) L.A.R. 7 (P&H).
Rule 15 – Constitution of India, Article 226/227 --
Appointment of Lambardar – Choice of Collector -- Collector is the appointing
authority and in an advantageous position to examine the merits and demerits of
the candidates – Collector appointed private respondent as Lambardar, who is a
graduate and better qualified than the other two candidates, who has passed
Urdu examination and commanding good reputation in the village -- Naib
Tehsildar and S.D.O.(C) have recommended his name -- On the contrary, a
criminal case was registered against petitioner u/s 148, 323, 324, 326, 506/149
IPC, which was pending in the Court of JMIC – Orders, containing valid reasons,
cannot possibly be interfered with under Articles 226/227 of the Constitution
of India, unless and until, the same are illegal and perverse. Sukhdev Singh v. State of Punjab and
others, 2012(1) L.A.R. 102 (P&H).
Rule 15 – Punjab Land Revenue Act, 1887 (XVII of 1887),
Section 13, 15 -- Appointment of Lambardar – Comparative merits – Choice of
Collector -- Petitioner has misappropriated the amount of the Cooperative
Society of the village and his services were terminated -- Besides this private
respondent is an Ex-serviceman and is a middle pass and he had been a member of
the Market Committee and he also remained Sarpanch of the village -- He also
remained Sarbrah Lambardar of the village for five years and is well conversant
with the works of the lambardari – Collector found private respondent to be a
better candidate for appointment to the post of Lambardar -- It is settled law
that the choice of the Collector cannot be set aside lightly. Harbhagwan Singh v. The Financial
Commissioner (Revenue), Punjab and another,
2012(1) L.A.R. 198 (P&H).
Rule 15 (For Punjab)-- Appointment of Lambardar –
Qualification -- Member Panchayat – Eligibility of -- A Member Panchayat is
required to operate within the village/estate and so is the Lambardar -- Rule
15 or any other provision in the Act or the Rules does not provide for any
disability to be appointed as Lambardar, in case such a person is a Member
Panchayat, rather rule 15 indicates that it would be a qualification if the
person has personal influence, character and ability -- A Panch of the village
indicates better qualification, in terms of Rule 15 (d) and (e). Bhajan Singh v. State of Punjab & Ors.,
2012(1) L.A.R. 310 (P&H).
Rule 15 (c),(d),(e),(f) and (g) – Appointment of Lambardar –
Qualification -- Personal influence, character, services rendered to the State
by himself or by the family, service rendered to the community and development
programmes are relevant considerations for appointment of a Lambardar. Bhim Singh v. Financial Commissioner,
Haryana & others, 2012(1) L.A.R. 162 (P&H).
Rule 15, 16 – Appointment of Lambardar – Acquittal in
criminal case – Effect of -- Mere acquittal will not wash away the stigma of
registration of a criminal case attached.
Hira Khan @ Gajala v. Divisional Commissioner, Patiala and others, 2012(1)
L.A.R. 56 (P&H).
Rule 15, 20 -- Appointment of Lambardar – Comparative merits
-- Petitioner is 36 years of age,
graduate and diploma holder in computer education, he owns 6 kanal and
11 marlas of land in the village and 32 kanals in another village -- Petitioner
further got Fixed Deposits to the tune of Rs. 57 lac and 15 family planning
cases – Private respondent to the contrary, is 55 years of age, 9th class pass
and owns 10 acres of land in the village – Private respondent got Fixed
Deposits worth Rs. 45,74,000/- and Fixed Deposit to the tune of Rs. 8 lac in
his own name; one LIC policy and 9 cases of family planning, he himself has
been a Sarpanch for one term, his Mother has been Panch for one term --
Petitioner has been a member of the Block Samiti for 5 years and father of the
petitioner also remained Sarpanch of the village – Criminal complaint against
respondent ended in a compromise u/s 323, 324, 326, 341 and 506 IPC --
Acquittal was recorded by the Judicial Magistrate – Held, after considering
overall merits/ disabilities, respondent has substantially more social standing
as compared to the petitioner – Private respondents’ appointment as Lambardar
upheld. Bhim Singh v. Financial
Commissioner, Haryana & others, 2012(1) L.A.R. 162 (P&H).
Rule 15, 20 -- Appointment of Lambardar – Qualification –
Duties of Lambardar -- A Lambardar is required to know the villagers and other
details in the estate for performance/ discharge of his duties -- A Lambardar
is required to remain present, by and large at all hours, in the village for
discharge of his duties -- Duties involve active interaction with the villagers/residents
of the area -- Headman/ Lambardar is required to be aware of the deaths in the
village for various reports to be made -- He is required to be aware of the
pensioners residing in the estate; marriage/ re-marriage of a female drawing
family pension residing in the estate or in case any such person goes absent
from estate -- He is also required to be aware of the encroachments on roads or
Government buildings within the boundaries of estate -- He is required to
conduct crop inspections so as to assist the Collector -- He is further
required to attend the summons of authorities having jurisdiction in the estate
and assist all officers of the Government in execution of their public duties. Bhim Singh v. Financial Commissioner,
Haryana & others, 2012(1) L.A.R. 162 (P&H).
Rule 16 -- Appointment of Lambardar – Choice of
Collector – Comparative merits -- District Collector has observed that
petitioner’s availability to the villagers was not sure while respondent would
be easily available to the villagers for the whole time and he is physically
fit as per medical certificates and has sufficient education -- Moreover he
enjoys good reputation among the villagers -- Further the choice of the
District Collector confirmed by the Commissioner should not be interfered with
unless it suffers from illegality or perversity -- Revision petition is
dismissed being devoid of merits. Paramjit Singh v. Gurcharan Singh, 2012(1) L.A.R. 640 (FC Pb.).
Rule 16 – Appointment of Lambardar – Recommendation
by Revenue officers -- Name of the respondent was recommended by Naib
Tehsildar, Tehsildar and Sub Divisional Magistrate, but District Collector
appointed petitioner as Lambardar giving no reason of difference with the
recommendation of the lower revenue officers -- If reports of the revenue
officers are to be discarded without assigning any reason then the entire
exercise of getting reports from the revenue officers becomes meaningless --
Commissioner has rightly set aside the order of the District collector being
perverse order. Balbir Chand v. Kuldip Singh, 2012(1) L.A.R. 630 (FC Pb.).
Section 3(1), 67, 68-A, 84 – Constitution of India,
Article 226/227 -- House tax assessment – Challenge to – Appeal -- Writ
Jurisdiction -- Nature of property, whether it is rented out or in self
occupation, present market value and rental income, require the evidence --
Only the appellate authority can determine such questions of fact based on the
evidence – Petitioner has right to appeal, it cannot legally be permitted to
ignore/bye-pass these statutory remedies under the garb of provisions of
Articles 226/227 of the Constitution of India. Punjab Alkalies & Chemicals Limited v. The Municipal Council,
2012(1) L.A.R. 1 (P&H).
Section 8 – Constitution of India, Article 243T –
Reservation of seats -- Section 8 of the Act is pari-materia with the
provisions of Article 243T -- Reservation of seats for women, Scheduled Castes
and Backward Classes alone is mandatory -- How such seats are rotated is left
to the State Government with play in joints as there may be situations, where
rotation of all the seats may not be feasible keeping in view the population of
the Scheduled Castes and Backward Classes being concentrated in a pocket of a
Municipality. Inderjit v. State of Punjab
Section 8 – Constitution of India, Article 243T –
Reservation of seats -- Intention of Article 243T of the Constitution and
Section 8 of the Act is to provide reservation for women, Scheduled Castes and
Backward Classes in a Municipality – As to which seats are reserved for them,
is a matter of procedure and is directory – Therefore, while rotating the
wards, it is not necessary for the State Government to rotate the wards with
exactitude -- State has to be given play in knees joints to adjust according to
the requirements keeping in view the population of the Backward
Classes/Scheduled Castes voters. Inderjit
v. State of Punjab
Section 8(1)(b) – Reservation of seats – Rotation in –
No merit in the argument that the power conferred on the State Government to
notify the seats to be reserved for women including the women belonging to the
Scheduled Castes before every General Elections means that such provision is
arbitrary. Inderjit v. State of Punjab
Section 67,68 – Hospital and charitable institution –
House tax – Exemption from – By government Notification dated 19.09.1963, the
registered charitable institutions were exempted from payment of House Tax – By
subsequent Notification dated 3.12.1975, even all hospitals were exempted from
House Tax – In letter written by the Secretary to Government of Punjab, Local
Government Department clarifying to the effect that only the property of the
registered religious institutions should be exempted from payment of House Tax,
reference has not been made to the earlier Notifications -- Earlier
Notifications have not been withdrawn so far – Held, this letter will not help
the appellant and on the basis of this letter it cannot be said that the
charitable institutions, like the respondent-Hospital, are not exempted from
payment of House Tax. Municipal
Committee, Ferozepur City v. Francis Newton Hospital, Ferozepur City and
others, 2012(1) L.A.R. 694 (P&H DB).
Punjab Municipal Corporation Act, 1976 (42 of
1976)
Section 93(b), 93(c) – House Tax – Assessment of –
Section 93(c) is applicable only where the rental value cannot be worked out --
Where the property is situated, the provisions of the Rent Act are applicable,
there was no bar to assess the rental value -- Matter is remanded back to the
Municipal Corporation, to determine the house tax value under Section 93(b). M/s Dwarka Cheap Store v. The Municipal
Corporation and others, 2012(1) L.A.R. 350
(P&H).
Section 15 (3) – Revision – Limitation -- Any appeal
/revision can be admitted after the prescribed period if the appellant
satisfies the court that he had sufficient cause for not preferring the appeal
/revision within such period -- Delay of every day has to be justified -- No
plausible explanation has been given for the undue delay on 11 years, 1 month
and 11 days -- Abnormal delay of more than 11 years does not deserve
condonation, the same is rejected -- Revision petition is dismissed being time
barred. Tara Chand v. Administrator, New Mandi
Township , Punjab ,
2012(1) L.A.R. 634 (FC Pb.).
Section 2(1-A) -- Displaced Persons (Compensation and
Rehabilitation) Act, 1954 (44 of 1954), Section 33 -- Evacuee property –
Allotment of land -- As per the Jamabandi, the land in question has been
recorded under the ownership of the Central Government, which indicates that it
is not the package deal property -- Appellant was unable to show any document,
indicating that the property in question was a package deal property –
Appellant is not entitled for allotment of the same under the Punjab Package
Act. Shamsher Singh v. State of Punjab
Section 2(1-A) -- Package deal property -- Package deal
property is surplus evacuee property taken over by the State Government under
the letter of the Central Government, excluding such property as may be
required for transfer or allotment, by way of compensation to a displaced
person, as defined in the Displaced Persons Act and rural agricultural land
required for similar allotment to a displaced person of non-Punjabi extraction
in pursuance of the directions of the Central Government given under Section 32
of the Displaced Persons Act. Shamsher
Singh v. State of Punjab
Rule 3 – Press Note – Unauthorised occupation -- Khasra
Girdawari – Change in -- Financial Commissioner, has rightly come to the
conclusion that the authorities, while determining the date of possession have
to rely upon the khasra girdawari, which exist on the date of issuance of the Press
Note -- Neither an authority can be permitted to rely upon the corrected khasra
girdawari nor such an argument could have been accepted that possession of the
appellant was much prior to the cut off date. Shamsher Singh v. State of Punjab
Rule 4 – Allotment of land – Delay and laches -- Husband of
the petitioner had made supreme sacrifice of his life for the country during
the Indo-Pak War of 1965 -- Case of the petitioner for allotment of land to her
was duly recommended by the concerned Commanding Officer – Petitioner is
directed to move an application and the same shall be sympathetically
considered by the competent authority, without adhering to the technical
objection of non-filing of the application and by passing a well-reasoned
speaking order, within a period of two months thereafter -- Whether the
Government is duty bound to consider the case of petitioner on merits or not? –
Answer must obviously be in the affirmative. Jagir Kaur v. The State of Punjab
Rule 6 – Code of Civil Procedure, 1908 (V of 1908),
Section 65 -- Auction sale –Confirmation of – Effective date of sale -- Auction
property shall be vested in favour of the auction purchaser from the date of
its auction if auction sale is confirmed later on -- Section 65 C.P.C. may not
be applicable in strict sense in the proceedings under the Act, however,
principles can be pressed in service to find out as to when property shall vest
in the auction purchaser -- Therefore, any allotment or creation of third party
interest during the intervening period shall cease to have any effect
immediately on the confirmation of auction sale. Jog Raj Singh v. State of Punjab
Rule 6 –Auction sale – Confirmation/cancellation of –
Duty of authorities -- Every effort should be made by the authorities hearing
the objections against the auction sale to decide the question of confirmation
/ cancellation of the auction sale at the earliest and meanwhile, property subject
matter of the auction sale should not be allowed to exchange hands either by
the parties before the authority hearing the question of confirmation of the
sale or by the authority himself. Jog
Raj Singh v. State of Punjab
Rule 33(2)(2) – Punjab State Election Commission Act, 1994
(19 of 1994), Section 66 -- Election of Panch -- Election result – Jurisdiction
of Returning Officer -- Returning Officer did not have the jurisdiction to
direct the Presiding Officer to change the election result already duly
announced by him by way of election result.
Kulwant Singh and another v. State of Punjab and others, 2012(1) L.A.R. 179
(P&H).
Rule 33(2)(2) – Punjab State Election Commission Act, 1994
(19 of 1994), Section 66 -- Election result – Jurisdiction of Presiding officer
-- Presiding Officer did not have the jurisdiction/power to change the result,
by means of election result at the direction of Returning Officer -- Same is
not only illegal, but against the statutory provisions of law, as well and
cannot legally be sustained. Kulwant
Singh and another v. State of Punjab and others, 2012(1) L.A.R. 179 (P&H).
Section 9, 19 – Sarpanch – Re-instatement of -- Once a
person was reinstated on the post of Sarpanch, then the petitioner, who was a
Panch, temporarily authorized to act as Sarpanch, has got no right, title or
interest to act as Sarpanch. Mohinder
Singh v. State of Punjab and others, 2012(1) L.A.R. 59 (P&H).
Section 11,12 – Election of Panch – Reservation of Seats --
Category/reservation of seats of Panches already notified before elections,
cannot possibly be subsequently changed after the completion of election
process and declaration of the result. Kulwant
Singh and another v. State of Punjab and others, 2012(1) L.A.R. 179 (P&H).
Section 16, 20 -- Punjab Village Common Lands
(Regulation) Act, 1961 (18 of 1961), Section 7(1) – Ejectment application –
Power of Sarpanch – Sarpanch of the Gram Panchayat is fully competent to
maintain the ejectment application u/s Section 7 of the Act. Tarsem Singh v. Director Rural Development
and Panchayat (Punjab ) Exercising the powers
of Commissioner, and others, 2012(1) L.A.R. 298
(P&H DB).
Section 19 – No-Confidence motion against Sarpanch --
Mere passing of resolution of ‘No Confidence Motion' is not sufficient to debar
the elected Sarpanch, unless all the formalities, essential to issue
notification to de-notify his name are completed. Mohinder Singh v. State of Punjab and others, 2012(1) L.A.R. 59
(P&H).
Section 20 – Removal of Panch – Complainant – Right of -- In
pursuance of the complaint made by the complainant and on the basis of reports,
the Director removed the Panch – Appellate authority accepted the appeal
without impleading the complainant as a party – Held, since the complainant was
the aggrieved party, so the appellate authority slipped into a legal error in
accepting the appeal of private respondent, even without issuing notice to
complainant, who was a necessary party -- Matter remitted back to Appellate
authority. Ashok Kumar v. State of
Punjab and others, 2012(1) L.A.R. 188 (P&H).
Section 20 – Removal of Panch -- Director removed Panch on
two counts that he and other Members Panchayat have caused huge loss to the
government grant and damage to the panchayat property -- Appellate authority
accepted his appeal, without deciding the subject matter of the lis by passing
a non-speaking and non-reasoned order -- Held, Appellate authority ought to have
discussed the material on record and was legally required to record valid
reasons for arriving at a right conclusion, in order to decide the real
controversy between the parties in the right perspective – Matter remitted back
to Appellate authority. Ashok Kumar v.
State of Punjab and others, 2012(1) L.A.R. 188 (P&H).
Section 208(i)(k) -- Election of Panch – Challenge to
-- At the time of filing of nomination papers. N.O.C. issued by B.D.P.O. was
attached alongwith papers by the appellant and the same was accepted by the
competent authority but at that time no objection was raised regarding holding
of Panchayat land unauthorizedly which was the right stage and now it can not
lie on respondent’s mouth to take such objection. Balbir Singh v. Karnail Singh & others, 2012(1) L.A.R. 255 (P&H).
Section 208(i)(k) -- Punjab State Election Commission
Act, 1994 (19 of 1994), Section 11 -- Panch of village -- Illegal possession of
Gram Panchayat land – Disqualification -- Possessing land of the Gram Panchayat
illegally is a disqualification in section 208 (i)(k) of the Act 9 of 1994
which is conspicuously absent in Section 11 of Act No.19 of 1994 – Since Act
No.9 of 1994 is later in time, therefore, the provision of Act No. 9 of 1994,
which are not consistent with the provisions of Act of 19 of 1994 would not be
applicable. Som Lal’s case 2008 (2) RCR (Civil) 760, relied. Balbir Singh v. Karnail Singh &
others, 2012(1) L.A.R. 255 (P&H).
Section 216 – Embezzlement of Gram Panchayat fund --
Recovery from ex-Sarpanch – Opportunity of hearing -- By letter ex-Sarpanch was
directed to pay an amount, which was kept excessive cash in hand, by him during
the period from January 1993 to September, 2010 -- No material, muchless
cogent, on record to suggest that any proper inquiry was conducted, after
providing the opportunity, as contemplated u/s 216 of the Act -- Moreover, the
impugned letter have been issued, without affording adequate opportunity of
being heard to him, which renders it nullity -- Impugned letter cannot legally
be sustained. Gurmail Chand
(Ex-Sarpanch) v. The State of Punjab & Ors., 2012(1) L.A.R. 166 (P&H).
Section 5 – Punjab Village Common Lands (Regulation)
Rules, 1964, Rule 13-A -- Public premises – Unauthorized possession – Allotment
of plots to the homeless, Scheduled Castes, weaker sections of the society etc.
– Undisputedly, the plots allotted to the petitioners under the Scheme were
never cancelled by the competent authority -- Mutation of the ownership was
sanctioned and their names appeared in the Jamabandi -- Thereafter the Gram
Panchayat was not the owner of the plots – Held, no application either by the
Gram Panchayat or the inhabitants of the village could have been filed under
the Public Premises Act because the plots allotted to the private respondents
do not fall under the definition of “public premises” as envisaged in Section 2
(e) of the Public Premises Act. Wattan
Singh @ Sadhu Singh and another v. State of Punjab and others, 2012(1) L.A.R.
567 (P&H DB).
Section 5,6 – Allotment of plot – Cancellation of –
Challenge to -- Allottees are weaker sections of the society, homeless and
Scheduled Castes -- But merely because they have not constructed their houses
on the plots allotted to them within the specified period, their allotment
cannot automatically be cancelled by the authority -- Authority under the
Public Premises Act has no jurisdiction to entertain such application --
Proprietors have no locus standi to challenge the allotment of plots because
neither they belong to the weaker sections of the society nor Scheduled Castes
nor homeless. Wattan Singh @ Sadhu Singh
and another v. State of Punjab and others, 2012(1) L.A.R. 567 (P&H DB).
Section 6,7, 12 -- Haryana Municipal Act, 1973 (24 of
1973), Section 4(1) – Municipal area -- Land in dispute has already been
included in the limits of MC, by virtue of notifications -- Once there is
projected violation of any provision of MC Act, then, the same can only be
dealt with the provisions of the said Act and no FIR can possibly be registered
u/s 6 & 7 of the Controlled Areas Act. Pritam Singh’s case 1995(3) PLR 762
& Satpal’s case 2010(4) RCR (Civil) 331 relied. Gurdip Singh v. The State of Haryana
Section 6,7, 12 – FIR – Quashing of -- FIR does not
disclose the commission of any cognizable offence u/s 6 & 7 of the
Controlled Areas Act -- Allegations contained in the FIR are as vague as
anything -- No allegation or material, much less cogent, is forth coming on
record, even to suggest remotely, as to when, how and in what manner, the
petitioner has violated the provisions of sections 6 & 7 of the Controlled
Areas Act, which would entail a criminal action under section 12 of the said
Act – Lodging of such FIR amounts to abuse of process of law against the
petitioner and deserves to be quashed. Gurdip
Singh v. The State of Haryana
Section 12 -- Haryana Municipal Corporation Act, 1994
(16 of 1994), Section 347, 348 – Repairs – Notice for violation of Act -- Land of the plaintiff falls within the
Municipal Limits where Director, Town and Country Planning has no authority to
issue notice under the Scheduled Roads Act because the suit property is located
within the municipal limits – If at all there is violation, the Municipal
Corporation has sufficient powers under the Haryana Municipal Act to initiate
action, however, no action under the Scheduled Roads Act can be initiated. Municipal Corporation, Faridabad
v. M/s Continental Device (India
Section 2(3), 10-A -- Haryana Ceiling on Land Holdings
Act, 1972 (26 of 1972), Section 12(3), 14(2) -- Haryana Utilization of Surplus
and Other Areas Scheme 1976, Paragraph 4 – Permissible area -- Surplus area –
Vesting of land in State -- Allotment of land – Held, issue that the assessment
of surplus itself was wrong is not an issue that is available at the stage of
distribution of the property – Landlords will not have a right to challenge the
issue of allotment of the land, after the vesting has taken place. Dona Ram and others v. The State of Haryana
Section 2(3), 2(5-a), 9 -- Eviction order against tenant
-- Permissible area – Tenants’ right – Contention that the tenants' right had
been subsequently enlarged to proprietary rights and the landlord was
attempting to defeat such a claim by contending that by a subsequent order
passed by a Collector during the pendency of the proceedings in this Court that
his holdings fell within the permissible area of the landlord's – Held, the
tenant has only to show that the order set up in defence by a respondent had
been passed behind his back and he was entitled to ignore the same -- However,
it will be improper to completely ignore the subsequent proceedings which had taken
place in 1995 -- Defendants are entitled to apply to the authority for a fresh
adjudication, who after serving a notice on the tenants, may take a decision in
their presence. Chand Singh (deceased)
through his LRs, and others v. The State of Punjab
Section 5, 5-B --
Permissible area – Selection of – Relevant date -- Surplus area --Status of
possession of property in the year 1953 cannot be transported and applied in
the same way while considering selection under Section 5-B -- Landlord, who
makes a selection after coming into force of the Amending Act of 1957 by Act 46
of 1957 effective from 11th December, 1957 must exercise his option in such a
way that the status of holding as on the date when he makes a selection must be
seen. Chand Singh (deceased) through his
LRs, and others v. The State of Punjab
Section 9 -- Eviction petition u/s 9 of the 1953 Act
-- Tenants claiming themselves as tenants since 1941 – Patwari gave evidence to
the effect that the property had been the subject of adjudication in surplus
area proceedings under the Act -- Matter remitted back to the Assistant
Collector for consideration of i) whether the properties covered in the
petitions came within the subject of surplus area proceedings under the Punjab
Security of Land Tenure Act, 1953; ii) Whether the property had been shown as
falling within the permissible area of the landlords, and whether proceedings
had been taken to determine the entitlement of the holding of the landlord
within the permissible area; iii) whether notices had been served to all the
tenants to elicit whether the properties were declared as permissible area of
the tenants if the landlords had not shown them as within their permissible area;
iv) If the property had been shown as falling within the permissible area of
the tenants, whether any further proceedings initiated for grant of proprietary
rights of the tenants in the manner contemplated under the Punjab Security of
Land Tenure Act, 1953 – Held, the above directions are relevant only to do
complete justice for the parties who are not at par. Balraj and others v. The Financial Commissioner, Haryana, Chandigarh
Section 9, 25 – Ejectment order by Asstt. Collector –
Challenge to – Maintainability of civil suit -- On the one hand the plaintiffs
have challenged the order passed by the AC Ist Grade by filing the suit and on
the other hand they had challenged the same very order before the superior
authorities – As such suit was not maintainable – Further u/s 25 of the 1953
Act, except in accordance with the provisions of the 1953 Act, the validity of
any proceedings or order taken or made under this Act shall not be called in
question in any court or before any other authority. Narender Singh and others v. Kewal Krishan and others, 2012(1) L.A.R.
386 (P&H).
Section 9, 25 – Ejectment order by Asstt. Collector – Order
upheld by Collector and Commissioner -- Civil suit challenging the order passed
by the Asstt. Collector – Held, order of AC Ist Grade has merged with those of
the Collector and Commissioner and therefore, the suit challenging the order of
AC Ist Grade without challenging those of the superiors is not maintainable. Narender Singh and others v. Kewal Krishan
and others, 2012(1) L.A.R. 386 (P&H).
Section 17 – Tenant – Sale of land – Right to Pre-empt --
Landlord is a small land owner, tenant had no right to pre-empt the sale of
land – Moreover the father of the plaintiffs was ordered to be evicted from the
suit land -- Tenancy between the landlord and the father of the plaintiffs came
to an end – Suit was rightly dismissed.
Ran Singh and others v. Vijay and others, 2012(1) L.A.R. 176 (P&H).
Section 2(5a), 5-B – Haryana Ceiling on Land Holdings
Act, 1972 (26 of 1972), Section 3(r), 4 11, 12, 13 – Surplus area – Permissible
area – Death of landowner – Effect of -- So long as the Collector's
determination is a subject of an appeal or a challenge before this Court under
Article 226 or in further proceedings before the Hon'ble Supreme Court, it must
only be taken that the determination has not been finally made and
consequently, a death of the landowner would certainly cause affectation of the
surplus area which would require to be redetermined in the hands of the heirs
of the deceased landowner -- So long as the proceedings are still pending, it
would inevitably mean that the holding of the deceased that has fallen to be
distributed amongst the heirs shall require a fresh reckoning for determination
of surplus – Case would require to be remitted to the competent authority under
the 1972 Act. Sardara Singh’s case 2008(2) RCR (Civil) 744, relied. Kehar Singh (deceased) through his LRs v.
Financial Commissioner, Haryana, Chandigarh
Section 11 -- Punjab Panchayati Raj Act, 1994 (9 of
1994), Section 208(i)(k) -- Panch of village -- Illegal possession of Gram
Panchayat land – Disqualification -- Possessing land of the Gram Panchayat
illegally is a disqualification in section 208 (i)(k) of the Act 9 of 1994
which is conspicuously absent in Section 11 of Act No.19 of 1994 – Since Act
No.9 of 1994 is later in time, therefore, the provision of Act No. 9 of 1994,
which are not consistent with the provisions of Act of 19 of 1994 would not be
applicable. Som Lal’s case 2008 (2) RCR (Civil) 760, relied. Balbir Singh v. Karnail Singh &
others, 2012(1) L.A.R. 255 (P&H).
Section 32(3) – Amendment in electoral roll –
Nomination is over – Effect of -- There cannot be any amendment by way of
transposition or deletion in the electoral roll of a constituency after the
date of making nominations is over.
Suresh Kumar Singla v. Election Tribunal, Fatehgarh Sahib and others, 2012(1) L.A.R. 363 (P&H).
Section 66 -- Punjab Panchayat Election Rules, 1994, Rule
33(2)(2) – Election of Panch -- Election result – Jurisdiction of Returning
Officer -- Returning Officer did not have the jurisdiction to direct the
Presiding Officer to change the election result already duly announced by him
by way of election result. Kulwant Singh
and another v. State of Punjab and others, 2012(1) L.A.R. 179 (P&H).
Section 66 -- Punjab Panchayat Election Rules, 1994, Rule
33(2)(2) – Election result – Jurisdiction of Presiding officer -- Presiding
Officer did not have the jurisdiction/power to change the result, by means of
election result at the direction of Returning Officer -- Same is not only
illegal, but against the statutory provisions of law, as well and cannot
legally be sustained. Kulwant Singh and
another v. State of Punjab and others, 2012(1) L.A.R. 179 (P&H).
Section 69, 74,
76 – Declaration of result -- Countermanding of -- Respondent No.5 was declared
as elected unopposed on 19.5.2008 – On written complaint, election of the Gram
Panchayat fixed for 26.5.2008 was countermanded – Thereafter elections were
directed to be held on 22.6.2008 -- Respondent No.5 neither challenged the
order countermanding the election nor filed nomination for the said election
nor challenged the declaration of the result of petitioner No.1 as having been
elected -- However, the Deputy Commissioner vide letter, stated that who had
filed their nomination papers earlier were to be elected as having been
declared elected unopposed -- Consequently the name of respondent No.5 was
shown as having been elected in form No. IX – Held, order countermanding the
election of respondent No.5 was clearly illegal – Contention that respondent
No.5 acquiesced would not avail against the statutory provisions -- However,
the petitioners may challenge the said election within 30 days. Rajpreet's
case 2010(4) PLR 254 relied. Paramjit Kaur and others v. State of Punjab and
others, 2012(1) L.A.R. 343 (P&H).
Section 76, 80 – Election petition through Advocate –
Maintainability of -- Election petition is not presented by the
candidate/appellant himself rather it has been filed through his advocate -- If
the election petition is not filed by the candidate himself, then there is no
alternative left with the Election Tribunal but to dismiss the election
petition -- If any objection is not taken by the returned candidate even in the
written statement about the non-compliance of Section 76(1) of the Act, it
would not deemed to be a waiver on his part -- Election petition dismissed.
Gurlal Singh’s case 2010(5) R.C.R. (Civil) 474 relied. Suresh Kumar Singla v. Election Tribunal, Fatehgarh Sahib and others, 2012(1) L.A.R. 363 (P&H).
Section 2(g) -- East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 23-A, 42-A --
East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules,
1949, Rule 16(ii) – Jumla Malkan & Dikar Haqdaran Hasab Rasad Rakba Khewat
-- Makbuja Nagar Panchayat Rafaae Aam & Share Aam – Shamilat deh – Vesting
of -- Land in the revenue record has been described as Jumla Malkan & Dikar
Haqdaran Hasab Rasad Rakba Khewat and in the cultivation column, it has been
shown as Makbuja Nagar Panchayat Rafaae Aam & Share Aam – In the latest
jamabandi, the Gram Panchayat has been shown as the owner -- Such land falls in
the definition of Shamlat as defined under Section 2(g) of the Act -- No iota of
evidence on record to indicate that what was the share of the petitioners in
the proprietary body nor they have proved their possession over the land prior
to 26.1.1950 -- As per Section 23A and Rule 16 (ii) of the East Punjab Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948, such land vests for
management and control in the Gram Panchayat -- Entire land being given on
lease to various persons for year to year basis and the income derived from it,
is being used for common purposes of the village -- After about 50 years of the
Act, the petitioners cannot claim any right over the land in question -- Even
the Bachat land cannot be partition amongst the original cultivators --
Concurrent finding of fact recorded by the revenue authorities, the Gram
Panchayat has been rightly held to be the owner of the land in dispute, upheld. Surinder Singh and others v. Joint
Development Commissioner/IRD and others, 2012(1) L.A.R. 530 (P&H DB).
Section 2(g) – Shamilat deh – Cultivating possession
-- In the absence of any evidence that the land in dispute was in individual
cultivating possession of a co-sharer, not being an excess of his share, on or
before 26.1.1950, the petitioners are not entitled to any benefit under Section
2(g)(viii) of the 1961 Act. Sher Singh
and others v. Director Rural Development & Panchayat, Punjab
and others, 2012(1) L.A.R. 677 (P&H DB).
Section 2(g) – Shamilat deh – Cultivating possession
-- No material to prove partition and cultivating possession of the land in
dispute, as provided by Section 2(g) (iii) of the 1961 Act, thereby negating
the plea raised under Section 2(g)(iii) of the 1961 Act. Sher Singh and others v. Director Rural Development & Panchayat, Punjab and others, 2012(1) L.A.R. 677 (P&H DB).
Section 2(g) – Shamilat deh – Exemption from -- In
order to invoke the provisions of Section 2(g)(viii) of the 1961 Act, the
petitioners have not only to prove that the shamilat deh was assessed to land
revenue, but also that they have been in individual cultivating possession not
being in excess of their respective shares.
Sat Pal and others v. Gram Panchayat of Village Sarangpur and others, 2012(1)
L.A.R. 683 (P&H DB).
Section 2(g) – Shamilat deh -- Petitioners have failed
to produce any sale-deed or any mutation as to the particulars of the sale deed
to support the entries in the jamabandis and the Missal Haqiat -- Petitioners
were required to prove purchase of the land by producing a sale deed or at
least a mutation recording the sale -- Petitioners’ plea of exclusion of land from
Shamilat deh must fail on this solitary ground. Sher Singh and others v. Director Rural Development & Panchayat, Punjab and others, 2012(1) L.A.R. 677 (P&H DB).
Section 2(g) – Shamilat deh – Possession – Relevant
date -- Requisite period of 12 years, before the enactment of the 1961 Act, to
claim protection of their possession, required by Section 4(3)(ii) of the 1961
Act -- Period of 12 years has to be reckoned from the date of enactment of the
1961 Act i.e. 4.5.1961. Sher Singh and
others v. Director Rural Development & Panchayat, Punjab
and others, 2012(1) L.A.R. 677 (P&H DB).
Section 2(g) – Shamilat deh -- Shamilat Deh Hasab
Hisas Paimana Haqiyat Mundarza Sajra Nasab
-- In the column of ownership in the name of Shamilat Deh Hasab Hisas
Paimana Haqiyat Mundarza Sajra Nasab, which means as per their shares on the
basis of inheritance and cultivation of Makbooja Malkan, means that it was not
in cultivation of individuals, but in cultivation of the proprietary body
jointly -- Petitioners cannot take advantage only of the payment of land
revenue, by the owners of the Taraf Patti as they have also to prove the other
ingredients of Section 2(g)(viii) of the 1961 Act, for the purpose of exclusion
of land from the definition of shamilat deh. Sat Pal and others v. Gram Panchayat of Village Sarangpur and others,
2012(1) L.A.R. 683 (P&H DB).
Section 2(g)(5) -- Shamilat deh hasab rasad khewat --
In the revenue record, the land in dispute has been described as shamilat deh
hasab rasad khewat – Held, such land vests in the Gram Panchayat if it is not
covered by any of the exceptions provided under Section 2(g)(5)of the Act –
Merely on the basis of possession, which is not prior to 26.1.1950 in the
capacity of a proprietor of the shamilat, the petitioner cannot claim that the
land in dispute does not fall under the definition of shamilat deh and does not
vest in the Gram Panchayat. Tarsem Singh
v. Director Rural Development and Panchayat (Punjab )
Exercising the powers of Commissioner, and others, 2012(1) L.A.R. 298 (P&H DB).
Section 2(g)(viii) – Shamilat deh – Exemption from --
In order to apply this provisions, it is sine qua non to prove the --
individual cultivating possession of the co-sharers; not being in excess of
their respective shares; land being assessed to land revenue; on or before 26th
January, 1950. Gurdev Singh (deceased)
through his LRs. v. The Additional Director, Panchayats, Punjab
and another, 2012(1) L.A.R. 596 (P&H DB).
Section 2(g), 3, 4 – Pepsu Tenancy and Agricultural
Lands Act, 1955 (13 of 1955), Section 4 -- Shamilat deh -- Shamilat Deh Hasab
Hissas Mundarza Shijra Nasar -- Makbuja
Malkan -- Expression “Shamilat Deh Hasab Hissas Mundarza Shijra Nasar”, coupled
with the expression “Makbuja Malkan” merely refers to ownership as it existed
prior to the vesting of “Shamilat Deh” in a Gram Panchayat under the Pepsu Act
and the 1961 Act and records the possession of the proprietors in common,
without any particular proprietor being in a specific possession of the land
much less in cultivating possession so as to exclude it from “Shamilat Deh”
under Section 2(g)(iii) of the 1961 Act -- Petitioners have not placed any
revenue record to show that they ever “cultivated” the land before 1950 --
Collector and the Appellate Authority did not commit any error in holding that
the land was “Shamilat Deh” and, therefore, vested in the Gram Panchayat. Maghi Ram (deceased) through his LRs. and
another v. Gram Panchayat, Chirwa and others, 2012(1) L.A.R. 519 (P&H DB).
Section 2(g)(viii), 4 – Punjab Land Revenue Act, 1887
(XVII of 1887), Section 34, 42 -- Tibba/Banjar Kadim land – Shamilat deh –
Exemption from -- Petitioner is not deemed to be in cultivating possession of
Tibba/Banjar Kadim land, which has been recorded as such in the Jamabandi for
the year 1947-48 -- A presumption of truth attaches to a Jamabandi that the
land being an old fallow, i.e. uncultivated for 8 successive harvests, cannot
be in the cultivating possession of the petitioners, before 26.01.1950 so as to
exclude it from Shamilat Deh -- Petitioner is not entitled to any exemption
under Sections 2(g)(viii) and 4 (3)(ii) of the 1961 Act. Gurdev Singh (deceased) through his LRs. v. The Additional Director,
Panchayats, Punjab and another, 2012(1) L.A.R.
596 (P&H DB).
Section 2(g), 4 -- Shamilat deh -- Shamlat Deh Hasab
Rasad Zar Khewat Wa Sanai Mahajrin – Vesting of -- In the Jamabandi for the
year 1955-56, the land in question was recorded as Shamlat Deh Hasab Rasad Zar
Khewat Wa Sanai Mahajrin and according to Section 2(g)(i) read with Section 4 of
the Act, such land vests in the Gram Panchayat. Inderjit Singh and others v. The Director Rural Development and
Panchayat-cum-Commissioner, Pb.,Chandigarh
Section 2(g)4(a) (Haryana) – Abadi deh – Gorah deh –
Vacant land – Vesting of -- Vacant land in abadi deh or gorah deh, as on
12.02.1981, is deemed to have vested in the Panchayat being shamilat deh. Hans Raj v. The Assistant Collector 1st
Grade, Ambala and others, 2012(1) L.A.R. 698 (P&H DB).
Section 2(g), 4(3)(ii) -- Shamilat deh – Possession --
Pleadings -- Contention that petitioners were in cultivating possession of
Shamilat Deh, 12 years, immediately preceding the commencement of the 1961 Act,
their possession is protected by Section 4 (3)(ii) of the 1961 Act -- Argument,
cannot be entertained as no such plea was raised before the Collector or the
Commissioner and nor has such a plea been raised in the pleadings --
Petitioners cannot be allowed, at this belated stage, of this long drawn out
litigation, to raise a new plea and alter the very basis of their claim of
ownership. Sher Singh and others v.
Director Rural Development & Panchayat, Punjab
and others, 2012(1) L.A.R. 677 (P&H DB).
Section 2(g), 7 – Shamilat deh – Shamilat law –
Possession – Proof of -- Relevant date -- Eviction -- Panchayat relied on
jamabandi for the year 1985-86 to say that the property had been entered as the
property belonging to Gram Panchayat -- Contention that property which is
described in the revenue records as shamlat deh could qualify for being treated
as such only in cases where the property was shown as shamlat deh at the time
when shamlat deh law came into force and, therefore, the revenue entry for the
relevant year must have been 09.01.1954 when shamlat deh law came into force --
The reference to an entry in the jamabandi of the year 1985-86 cannot be taken
as proof of the property as shamlat deh -- Gram Panchayat sought for ejectment
only treating the property as shamlat deh and that fact was taken as
established -- Contention of the petitioner that the authorities misconstrued
the revenue entries themselves as referring to shamlat deh when they were not,
upheld -- Even if such a reference was taken to be found in the year 1985-86,
without proving that the property existed as such at the time when shamlat law
came into force, the respondents cannot be called upon to prove that they were
in possession of the property even before 1950 – Eviction order set aside. Joginder Singh v. Additional Director,
Panchayats, Punjab, Chandigarh and others, 2012(1) L.A.R. 572 (P&H).
Section 2(g), 11 – Shamilat deh – Even if the issues
have not been framed by the authorities, while dealing with the petition under
Section 11 of the 1961 Act, yet it is an admitted fact that both the parties
led their oral as well as documentary evidence being alive to the issues
involved about their rights and title in the land in question – Held, no grave
error of procedure which has allegedly led to a miscarriage of justice. Sat Pal and others v. Gram Panchayat of
Village Sarangpur and others, 2012(1) L.A.R. 683 (P&H DB).
Section 4 -- East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 2(bb)(iii), 42 –
Consolidation proceedings -- Gairmumkin marian -- Common purposes -- Land
claimed is recorded as Gairmumkin marian in the Jamabandi – As per definition,
it is to be held that this land was being used for common purpose -- By virtue
of the provisions of the Act, 1961, this land became vested in the Gram
Panchayat – Such a land cannot be partitioned amongst the proprietors of the
village and could not have been allotted to private respondents for making up
deficiency in the value of the land. Gram Panchayat
Village Kakarwal v. Additional
Director, Consolidation of Holding Punjab , and
others, 2012(1) L.A.R. 618 (P&H).
Section 4 -- Shamilat Deh Hasab Hisis Mundarja Shajra
Nasab -- Even if the land is recorded in the column of ownership as Shamilat
Deh Hasab Hisis Mundarja Shajra Nasab, it would only indicate shareholdings of proprietors
as per inheritance prior to vesting. Gurdev
Singh (deceased) through his LRs. v. The Additional Director, Panchayats, Punjab and another, 2012(1) L.A.R. 596 (P&H DB).
Section 4(3)(ii), 2(g)(5)(v),(viii) – Shamilat deh –
Eviction of occupants -- Predecessor of the appellants came into possession
only in the year 1955-56, thus, the said land is not exempted under Section 4
(3) (ii) of the Act -- Appellants have also failed to prove their individual
cultivating possession prior to 26th January, 1950 – Held, no illegality in the
order of eviction passed against the appellants. Balbir Kaur alias Godhan and others v. Gram Panchayat Jhorarh Rohi and
others, 2012(1) L.A.R. 43 (P&H DB).
Section 5 -- Punjab Village Common Lands (Regulation)
Rules, 1964, Rule 13 – Panchayat land -- Allotment of land -- Petitioners are
in possession of a parcel of land, where they have raised kacha/pucca,
residential structures -- Taking into consideration the rights conferred upon
the petitioners, by way of policy dated 14.8.2008 read with Section 5 of the
Act, 1961 and Rule 13 (a) of the Rules, 1964, and acceptance of their rights by
the Gram Panchayat, writ petition disposed of in the following terms: The Gram
Panchayat shall abide by the policy taken by the Government and their
acceptance of the petitioners’ rights, as averred in their reply. The Gram
Panchayat shall allot plots to the eligible petitioners, preferably on the land
in their occupation; The allotments, so made shall be forwarded to the Deputy
Commissioner, who shall pass appropriate orders, after apprising the
eligibility of the petitioners, in accordance with terms and conditions set out
in the policy; If, the Wakf Board is held to be owner of the land in possession
of the petitioners, the petitioners would be required to vacate the land and in
that eventuality the Gram Panchayat would be required to make allotment of
alternative land to the petitioners.
Krishan and others v. State of Punjab and others, 2012(1) L.A.R. 670 (P&H
DB).
Section 5(5) (For Punjab) -- Punjab Village Common
Lands (Regulation) Rules, 1964, Rule 5 -- Exchange of land – Oral Exchange --
Before exchanging the land, the Gram Panchayat neither sought (nor granted)
prior approval by the Government, which was a condition precedent for a valid exchange
– Contention that alleged oral exchange, which was based upon a resolution by
the Gram Panchayat, is reflected in the revenue record, therefore, the
appellant could not have been ordered to be evicted from the land in dispute
cannot be accepted – Mere passing of the resolution by the Gram Panchayat is
not enough -- Possession of the land of the Gram Panchayat taken by the
appellant under the said oral exchange is totally illegal and unauthorized --
Appellant was rightly ordered to be evicted from the disputed land. Bant Kaur v. The Director, Department of
Rural Development and Panchayats, Punjab , SAS
Nagar and others, 2012(1) L.A.R. 539 (P&H DB).
Section 7 – Eviction petition – Question of title –
Power of Commissioner -- Commissioner, while setting aside orders of eviction
has directed the Collector to scrutinize the papers properly and direct the
Gram Panchayat to file a petition in case it is found that the Gram Panchayat
has any title – Held, Commissioner, was exercising quasi judicial powers and was
therefore, required to direct the Assistant Collector, Ist Grade, Fatehabad, to
frame a question of title, as required by the first proviso to Section 7 of the
Act and keep the application under Section 7 in abeyance, till the question of
title is finally decided -- Commissioner had no jurisdiction to direct the
Collector to deal with the matter on the administrative side. Gram Panchayat Dharni, Village Dharni,
Tehsil and District Fatehabad v. Commissioner, Hisar Division, Hisar and
others, 2012(1) L.A.R. 580 (P&H DB).
Section 7(1) – Ejectment – Question of title raised –
Effect of – Eviction order passed -- Revenue authorities considered each and
every revenue record produced by the predecessor of the appellants before
coming to the conclusion – Held, no prejudice is caused to the appellants, if
the Assistant Collector Ist Grade had not converted the eviction proceedings
into the title suit. Balbir Kaur alias
Godhan and others v. Gram Panchayat Jhorarh Rohi and others, 2012(1) L.A.R. 43
(P&H DB).
Section 7(1) – Ejectment application -- Ejectment
application by the Gram Panchayat through its Sarpanch with the averment that
the then Sarpanch was duly authorised by the Gram Panchayat to file the
ejectment application -- Photo-copy of the resolution is on record -- Merely
because the subsequent Sarpanch, while appearing before the Collector, had
stated that he has not brought the original copy of the resolution and cannot
say whether the photo-copy is attested or not, it cannot be inferred that the
earlier Sarpanch was not authorised to file the ejectment application. Tarsem Singh v. Director Rural Development
and Panchayat (Punjab ) Exercising the powers
of Commissioner, and others, 2012(1) L.A.R. 298
(P&H DB).
Section 7(1) – Punjab Panchayati Raj Act, 1994 (9 of
1994), Section 16, 20 -- Ejectment application – Power of Sarpanch – Sarpanch
of the Gram Panchayat is fully competent to maintain the ejectment application
u/s Section 7 of the Act. Tarsem Singh
v. Director Rural Development and Panchayat (Punjab )
Exercising the powers of Commissioner, and others, 2012(1) L.A.R. 298 (P&H DB).
Section 7, 11 – Dismissal of eviction petition – Title
suit – Resjudicata -- Dismissal of a petition u/s 7 of the 1961 Act does not
operate as resjudicata in a subsequent petition filed u/s 11 of the 1961 Act --
Proceedings u/s 7 of the 1961 Act are summary in nature, whereas proceedings
u/s 11 of the 1961 Act are in the nature of a suit which requires the Collector
to decide the question of title. Tara Chand and Fateh Singh’s case, 1979 PLJ, 1
relied. Maghi Ram (deceased) through his
LRs. and another v. Gram Panchayat, Chirwa and others, 2012(1) L.A.R. 519
(P&H DB).
Section 7, 11 – Ejectment petition – Title dispute --
In reply to the application u/s 7 of the Act, vaguely it has been stated that
the land in dispute is not shamilat deh and does not vest in the Gram Panchayat
-- Since the petitioner could not make out a prima facie case, the Collector
have not directed him to raise the question of title by filing the title suit
u/s 11 of the Act -- Even the petitioner was at liberty to file the title suit
which he did not file – Contention that once he had raised the question of
title, the Collector was bound to decide the same after framing the issues and
recording a finding on the issue of question of title, is not tenable. Tarsem Singh v. Director Rural Development
and Panchayat (Punjab ) Exercising the powers
of Commissioner, and others, 2012(1) L.A.R. 298
(P&H DB).
Section 7, 13-A – Eviction petition – Title suit –
Res-judicata -- Held, if question of title was raised in earlier proceeding u/s
7 of the 1961 Act and question of title has been decided then no suit would lie
under Section 13-A thereafter. Ram
Saroop @ Ram Swarup v. Financial Commissioner and Principal Secretary, Haryana,
Development & Panchayat Department and others, 2012(1) L.A.R. 468
(P&H).
Section 10-A -- Lease – Reduction of lease period –
Jurisdiction of Collector -- Collector came to a definite conclusion that the
auction was conducted without any proper munadi -- At the time of auction, even
BDPO was also not present, his signatures were obtained lateron -- Collector
decreased the period of lease from 8 years to 3 years and ordered that if the
petitioner is ready to take the pond on Patta at the rate of Rs.1,50,000/- per
year after 3 years then he should deposit its ¼th in the Panchayat Department,
after three years – Held, period of lease has been reduced keeping in view the
facts of the case and interest of the Gram Panchayat -- Under section 10-A of
the Act, AC 1st Grade is empowered to cancel the lease or vary the terms
thereof unconditionally or subject to such condition as he may think fit --
Therefore, it cannot be said that reduction of lease period is without
jurisdiction. Jaibir v. District
Collector, Bhiwani & Ors., 2012(1) L.A.R. 169 (P&H DB).
Section 11 -- Code of Civil Procedure, 1908 (V of
1908), Section 151 – Applicability of CPC – CPC is not applicable to the
proceedings under the Act, but the principles of CPC, which are in consonance
with the justice, equity and good conscience, can very well be extended by the
Authorities under the Act. Hazara Singh
and others v. The State of Punjab
Section 11 – Question of title -- Adverse possession
-- Occupants cannot claim title over the Panchayat property u/s 11 of the Act
being in adverse possession. Hazara
Singh and others v. The State of Punjab
Section 11 – Title suit – Resjudicata -- Adjudication
on a question of title, pursuant to a petition filed u/s 11 of the 1961 Act
operates as resjudicata in a subsequent petition pertaining to the same land
and between the same parties -- Collector and the Appellate Authority,
therefore, had no jurisdiction to entertain the petition and pass orders. Maghi Ram (deceased) through his LRs. and
another v. Gram Panchayat, Chirwa and others, 2012(1) L.A.R. 519 (P&H DB).
Section 11(2) – Appeal – Stay of impugned order –
Speaking order – Natural justice -- Appellate Authority has the power to stay
the order impugned -- No reason is required to be given while granting the stay
of the order – No requirement of the principles of natural justice that even
such interim order is to be speaking order. Hazara Singh and others v. The State of Punjab
Section 13 – Shamilat deh -- Question of title –
Jurisdiction of civil court – Civil court would have no jurisdiction to decide
the question of title pertaining to land which is shamlat deh and vests with
the Panchayat. Yudhvir Singh v. Gram
Panchayat Halla and another, 2012(1) L.A.R. 259
(P&H).
Rule 5 -- Punjab Village Common Lands (Regulation)
Act, 1961 (18 of 1961), Section 5(5) (For Punjab) -- Exchange of land – Oral Exchange
-- Before exchanging the land, the Gram Panchayat neither sought (nor granted)
prior approval by the Government, which was a condition precedent for a valid
exchange – Contention that alleged oral exchange, which was based upon a
resolution by the Gram Panchayat, is reflected in the revenue record,
therefore, the appellant could not have been ordered to be evicted from the
land in dispute cannot be accepted – Mere passing of the resolution by the Gram
Panchayat is not enough -- Possession of the land of the Gram Panchayat taken
by the appellant under the said oral exchange is totally illegal and
unauthorized -- Appellant was rightly ordered to be evicted from the disputed
land. Bant Kaur v. The Director,
Department of Rural Development and Panchayats, Punjab ,
SAS Nagar and others, 2012(1) L.A.R. 539 (P&H DB).
Rule 13 – Punjab Village Common Lands (Regulation)
Act, 1961 (18 of 1961), Section 5 -- Panchayat land -- Allotment of land --
Petitioners are in possession of a parcel of land, where they have raised
kacha/pucca, residential structures -- Taking into consideration the rights
conferred upon the petitioners, by way of policy dated 14.8.2008 read with
Section 5 of the Act, 1961 and Rule 13 (a) of the Rules, 1964, and acceptance
of their rights by the Gram Panchayat, writ petition disposed of in the
following terms: The Gram Panchayat shall abide by the policy taken by the
Government and their acceptance of the petitioners’ rights, as averred in their
reply. The Gram Panchayat shall allot plots to the eligible petitioners,
preferably on the land in their occupation; The allotments, so made shall be
forwarded to the Deputy Commissioner, who shall pass appropriate orders, after
apprising the eligibility of the petitioners, in accordance with terms and conditions
set out in the policy; If, the Wakf Board is held to be owner of the land in
possession of the petitioners, the petitioners would be required to vacate the
land and in that eventuality the Gram Panchayat would be required to make
allotment of alternative land to the petitioners. Krishan and others v. State of Punjab and others, 2012(1) L.A.R. 670
(P&H DB).
Rule 13-A -- Punjab Public Premises and Land (Eviction
and Rent Recovery) Act, 1973 (31 of 1973), Section 5 – Public premises –
Unauthorized possession – Allotment of plots to the homeless, Scheduled Castes,
weaker sections of the society etc. – Undisputedly, the plots allotted to the
petitioners under the Scheme were never cancelled by the competent authority --
Mutation of the ownership was sanctioned and their names appeared in the
Jamabandi -- Thereafter the Gram Panchayat was not the owner of the plots –
Held, no application either by the Gram Panchayat or the inhabitants of the
village could have been filed under the Public Premises Act because the plots
allotted to the private respondents do not fall under the definition of “public
premises” as envisaged in Section 2 (e) of the Public Premises Act. Wattan Singh @ Sadhu Singh and another v.
State of Punjab and others, 2012(1) L.A.R. 567 (P&H DB).
Purchase of Specific Khasra
Mutation – Partition of land -- Contention that specific
khasra number has been transferred and the mutation should have been sanctioned
by the revenue authorities with respect to that specific Khasra number only –
Held, contention is not sustainable -- Out of the joint khewat even sale of
specific khasra number will be deemed to be sale of share which is always
subject to partition. Daljit Singh and
others v. The Financial Commissioner (Revenue) Punjab
and others, 2012(1) L.A.R. 143 (P&H).
Partition of land -- Joint land – Land in question is
a joint -- Even though the petitioner has purchased a specific khasra numbers
from one of the co-sharers, the same will be deemed to have been purchased as
share in the joint land in question that is why the partition proceedings are
permitted under the provisions of the law -- Long standing possession over the
property cannot be deemed to be possession for all times to come. Lichhmi v. State of Haryana and others, 2012(1) L.A.R. 193 (P&H).
Qualification
Appointment of Lambardar – Collector, being the
appointing authority, was required to consider the relative merits, in the
context of educational qualification, for discharge of duties by the incumbent
Lambardar, as provided under Rule 20 of the Punjab Land Revenue Rules. Bhajan Singh v. State of Punjab &
Ors., 2012(1) L.A.R. 310 (P&H).
Appointment of Lambardar – Personal influence, character,
services rendered to the State by himself or by the family, service rendered to
the community and development programmes are relevant considerations for
appointment of a Lambardar. Bhim Singh
v. Financial Commissioner, Haryana & others, 2012(1) L.A.R. 162 (P&H).
Appointment of Lambardar – Punjab Land Revenue Rules
-- Member Panchayat – Eligibility of -- A Member Panchayat is required to
operate within the village/estate and so is the Lambardar -- Rule 15 or any
other provision in the Act or the Rules does not provide for any disability to
be appointed as Lambardar, in case such a person is a Member Panchayat, rather
rule 15 indicates that it would be a qualification if the person has personal
influence, character and ability -- A Panch of the village indicates better
qualification, in terms of Rule 15 (d) and (e). Bhajan Singh v. State of Punjab & Ors., 2012(1) L.A.R. 310 (P&H).
Quashing of FIR
FIR does not disclose the commission of any cognizable
offence u/s 6 & 7 of the Punjab Scheduled Roads and Controlled Areas
(Restriction of Unregulated Development) Act, 1963 -- Allegations contained in
the FIR are as vague as anything -- No allegation or material, much less
cogent, is forth coming on record, even to suggest remotely, as to when, how
and in what manner, the petitioner has violated the provisions of sections 6
& 7 of the Controlled Areas Act, which would entail a criminal action under
section 12 of the said Act – Lodging of such FIR amounts to abuse of process of
law against the petitioner and deserves to be quashed. Gurdip Singh v. The State of Haryana
Question of law
Payment of rent -- Facts – High Court did not interfere on
the ground that no question of law was involved -- It failed to notice that the
inferences and legal effect from proved facts is a question of law -- High
Court’ order is unsustainable. Dnyaneshwar
Ranganath Bhandare & Another v. Sadhu Dadu Shettigar (Shetty) &
Another, 2012(1) L.A.R. 120 (SC).
Question of title
Punjab Village Common Lands (Regulation) Act, 1961 –
Adverse possession -- Occupants cannot claim title over the Panchayat property
u/s 11 of the Act being in adverse possession. Hazara Singh and others v. The State of Punjab
Shamilat deh -- Jurisdiction of civil court – Civil court
would have no jurisdiction to decide the question of title pertaining to land
which is shamlat deh and vests with the Panchayat. Yudhvir Singh v. Gram Panchayat Halla and another, 2012(1) L.A.R. 259 (P&H).
Question
of title raised
Punjab Village Common Lands (Regulation) Act, 1961 --
Ejectment – Eviction order passed -- Revenue authorities considered each and
every revenue record produced by the predecessor of the appellants before
coming to the conclusion – Held, no prejudice is caused to the appellants, if
the Assistant Collector Ist Grade had not converted the eviction proceedings
into the title suit. Balbir Kaur alias
Godhan and others v. Gram Panchayat Jhorarh Rohi and others, 2012(1) L.A.R. 43
(P&H DB).
Rate to be charged from oustees
HUDA Matters -- Allotment of plot – What price could
be charged from an allottee i.e. price prevailing on the date the allotment or
when the Sector is floated first -- 'normal allotment rate' in all
circumstances shall be the date when the sector is first floated for sale -- As
a matter of fact, the normal allotment rate would be the rate advertised by the
HUDA in pursuance of which applications are invited from the general public and
the oustees, in pursuance of which the plots are allotted. Haryana Urban Development Authority & others v. Sandeep &
others, 2012(1) L.A.R. 475 (P&H DB).
Rebuttal
of Presumption of truth
Jamabandi entries – Mere vague report of Kanungo, site
plan and Index report is not sufficient to rebut the presumption of truth
attached to the entries contained in the Jamabandis, particularly when Field
Kanungo, who prepared the report has admitted that no pacca points were affixed
by him at the time of demarcation. Manmohan
Kaur v. Davinder Pal Singh, 2012(1) L.A.R. 62 (P&H).
Recommendation by Revenue officers
Appointment of Lambardar – Collector, after taking
into consideration the comparative merits of the candidates, had come to the
conclusion that respondent No.4 was a better candidate to be appointed as
Lambardar -- Held, after taking into consideration the comparative merits of
all the candidates, appointment of suitable person as Lambardar of the village,
the recommendations made by the revenue authorities are not relevant. Kuldip Singh v. Financial Commissioner
(Appeals-II), Punjab, Chandigarh
Appointment of Lambardar – Name of the respondent
was recommended by Naib Tehsildar, Tehsildar and Sub Divisional Magistrate, but
District Collector appointed petitioner as Lambardar giving no reason of
difference with the recommendation of the lower revenue officers -- If reports
of the revenue officers are to be discarded without assigning any reason then
the entire exercise of getting reports from the revenue officers becomes
meaningless -- Commissioner has rightly set aside the order of the District
collector being perverse order. Balbir Chand v. Kuldip Singh, 2012(1) L.A.R. 630 (FC Pb.).
Appointment of Lambardar – Remand by Commissioner – Effect
of -- Earlier recommendations made by the A.C. IInd Grade and Ist Grade are
insignificant, since the Divisional Commissioner, had set aside the order of
the Collector appointing petitioner as Lambardar -- Only the subsequent order
after the remand is to be taken into consideration. Swaran Singh v. State of Punjab and others, 2012(1) L.A.R. 195
(P&H).
Recommendation of S.D.M.
Appointment of Lambardar -- Choice of Collector –
Collector had appointed appellant as Lambardar of the village finding him a
better candidate, who as per the report/recommendation of the Sub Divisional
Magistrate, is not even permanent resident of the village and is running a shop
elsewhere -- Respondent, who is permanent resident of the village and doing the
business of readymade garments, was found more suitable candidate than
appellant by the Sub Divisional Magistrate in his report/recommendation -- This
reflects the total non-application of mind by the Collector – Matter was
rightly remanding back to District Collector with the direction to re-examine
the entire case. Raj Kumar v. Financial
Commissioner (Appeal-II), Punjab, Chandigarh
Recovery from ex-Sarpanch
Punjab Panchayati Raj Act, 1994 – Embezzlement of Gram Panchayat fund -- Opportunity of hearing --
By letter ex-Sarpanch was directed to pay an amount, which was kept excessive
cash in hand, by him during the period from January 1993 to September, 2010 --
No material, muchless cogent, on record to suggest that any proper inquiry was
conducted, after providing the opportunity, as contemplated u/s 216 of the Act
-- Moreover, the impugned letter have been issued, without affording adequate
opportunity of being heard to him, which renders it nullity -- Impugned letter
cannot legally be sustained. Gurmail
Chand (Ex-Sarpanch) v. The State of Punjab & Ors., 2012(1) L.A.R. 166
(P&H).
Recovery suit
Ejectment of tenant -- Leave to defend -- Ejectment order
was passed on account of non-payment of rent – Suit for recovery of arrears of
rent -- A perusal of the application for leave to defend shows that neither the
rate of interest nor the amount claimed by the plaintiff-petitioner had been disputed
except to allege that the rent note was forged – Held, in the absence of any
prima facie material to substantiate that the petitioner had made payment of
the amount either by way of rent or mense profits for the period he had
occupied the premises, leave to defend granted by the trial court was not
justified -- Only plea regarding forged rent note could not be a substantial
defence entitling the defendant to leave to defend. Dhrenderpal Gupta v. Mahipal, 2012(1) L.A.R. 171 (P&H).
Reduction of lease period
Punjab Village Common Lands (Regulation) Act, 1961 --
Jurisdiction of Collector -- Collector came to a definite conclusion that the
auction was conducted without any proper munadi -- At the time of auction, even
BDPO was also not present, his signatures were obtained lateron -- Collector
decreased the period of lease from 8 years to 3 years and ordered that if the
petitioner is ready to take the pond on Patta at the rate of Rs.1,50,000/- per
year after 3 years then he should deposit its ¼th in the Panchayat Department,
after three years – Held, period of lease has been reduced keeping in view the
facts of the case and interest of the Gram Panchayat -- Under section 10-A of
the Act, AC 1st Grade is empowered to cancel the lease or vary the terms thereof
unconditionally or subject to such condition as he may think fit -- Therefore,
it cannot be said that reduction of lease period is without jurisdiction. Jaibir v. District Collector, Bhiwani
& Ors., 2012(1) L.A.R. 169 (P&H DB).
Rehabilitation & Resettlement Policies
framed by Haryana Urban Development Authority
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 -- Oustees claim – Clause of ownership of the land for a
certain period before the issue of notification u/s 4 of the Land Acquisition
Act – Sustainability of -- Period of one year or five years prior to the date
of publication of notification is without any reasonable basis -- Date of
notification u/s 4 of the Act is a reasonable date -- Any other date in the
R&R Policy is, therefore, quashed and set aside. Haryana Urban Development Authority & others v. Sandeep &
others, 2012(1) L.A.R. 475 (P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 -- Constitution of India, Article 14 -- Oustees claim – Reservation
of – Extent of -- Whether the policy of allotment of plot to an oustee, a
distinct and separate category, is exception to Article 14 of the Constitution
of India and whether, there can be any upper limit for allotment of plots to
such category – Held, oustees, whose land has been acquired either for
residential, commercial, institutional or any other purpose, form a separate
and distinct category and are entitled to be considered for allotment of a
plot, as a part of rehabilitation process -- Plots for the oustees including
all other constitutionally permissible classes of reservation cannot exceed
50%. Haryana Urban Development Authority
& others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of 1977),
Section 15 -- Oustees claim – Release of land – Effect of -- Whether, the
release of land from acquisition so as to dis-entitle an oustee from allotment
of a plot, means release of land in terms of Section 48 of the Act or includes
the non publication of the declaration under Section 6 of the Act as well --
Held, the release contemplated in the policies is not the release of land after
acquisition u/s 48 of the Land Acquisition Act -- Purpose of policies stands
satisfied, when a constructed portion is not included in Section 6 notification
as the landloser has some land in his possession for his purposes -- Thus, the
expression “released from acquisition” in fact means “released from intention
to acquire” -- Therefore, the condition of release of land to dis-entitle an
oustee from such status is fair and reasonable. Haryana Urban Development Authority & others v. Sandeep &
others, 2012(1) L.A.R. 475 (P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 -- Oustees policy -- Object of the policy – Object of the
policy is to rehabilitate and not to allot alternative land – In order to
achieve such objective, the extent of holding acquired or the land not acquired
is not relevant as an oustee, whose land has been acquired has some land to
bank upon for his use and occupation. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 – Oustees claim -- Whether the condition in the Policies,
seeking applications from the oustees before the Sector is floated for sale, is
directory and the said condition is satisfied even when the applications
along-with earnest money are invited from the general public including from the
oustees – Held, oustees form a distinct and separate category and are entitled
to reservation -- Such reservation can be given effect to, when the plots
available in a sector are determined and the percentage of reservation of each
category is fixed – When the HUDA invited applications from the general public
along with the applications from the oustees, it substantially complies with
the conditions in the policies framed by it -- Condition in the policies to
seek applications from the oustees before the floatation of the sector is not
mandatory -- Mandatory provision is the right of consideration for allotment of
plots -- Condition of inviting applications before the floatation of a sector
is a directory provision, as it relates to procedure of allotment of plots. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 – Oustees claim – Failure to apply – Effect of -- Whether the
failure to apply for a plot in response to advertisement published at one stage
entitles a oustees to apply for allotment of a plot as and when the
advertisements are issued subsequently till such time the plots are available
within overall limit of 50% of the total plots in a sector – Held, since the
oustees form a separate and distinct category, failure to apply in response to
an advertisement will not dis-entitle an oustee from submitting application at
a subsequent stage as and when advertisement is again issued inviting applications
for allotment of plots. Haryana Urban
Development Authority & others v. Sandeep & others, 2012(1) L.A.R. 475
(P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 -- Oustees claim – Delay and laches -- Whether an oustee can
be permitted to raise a grievance in respect of non-allotment of a plot on
failure to apply for a plot in pursuance of public advertisement issued for the
reason of delay and laches – Held, no merit in the argument that there can be
any delay and laches, if an application is not made for allotment of plot in
pursuance of public advertisement issued at one stage or the other -- An
oustee, whose land has been acquired, does not lose his status as that of an
oustee merely for the reason that he has not applied for a plot at an earlier
stage -- He has a right to seek allotment of a plot as a separate and distinct
category as and when advertisements are issued inviting applications from the
eligible applicants including the oustees. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 -- Oustees claim -- Purpose of acquisition is industrial and
institutional – Eligibility to apply residential plot -- Whether an oustee is
entitled to an allotment of a plot in the next residential Sector even if the
land is acquired for industrial, institutional or such like purposes
irrespective of date of acquisition – Held, even if land has been acquired for
a purpose other than residential/commercial, an oustee is entitled to apply for
a plot in the next residential sector even if acquisition is prior to the
circular dated 27.03.2000 -- Entitlement of an oustee for a plot would be as
per the existing policy at the time, when an oustee apply for a plot in
response to public advertisement. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 – Oustees claim – Allotment of plot – Rate to be charged --
What price could be charged from an allottee i.e. price prevailing on the date
the allotment or when the Sector is floated first -- 'normal allotment rate' in
all circumstances shall be the date when the sector is first floated for sale
-- As a matter of fact, the normal allotment rate would be the rate advertised
by the HUDA in pursuance of which applications are invited from the general
public and the oustees, in pursuance of which the plots are allotted. Haryana Urban Development Authority &
others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 -- Oustees Claim – Procedure of – Right of -- Separate claim
– Requirement of -- Finding that since the
claim from the oustees was not separately invited and could not have been
clubbed or joined with General Category, therefore, such action is violative of
law is not sustainable – Such provision is directory and inviting of
applications through a public advertisement along with the applications from
the general public meets the intent of the policies -- An oustees is entitled
to apply for a plot till such time, the plots falling to the category of the
oustees remain unallotted -- Such writ petitioner would be entitled to apply
for a plot in pursuance of public notice inviting applications from the
oustees, if the plots for such category are available. Haryana Urban Development Authority & others v. Sandeep &
others, 2012(1) L.A.R. 475 (P&H DB).
Haryana Urban Development Authority Act, 1977 (13 of
1977), Section 15 -- Ousteees Claim --
Consideration of – Law summarized -- Held, (i) That date of notification
under Section 4 of the Land Acquisition Act, 1894 is relevant to determine the
eligibility of a land-owner for allotment of a residential plot, even if the
acquisition is for the purposes of commercial, industrial or institutional;
(ii) That the entitlement of the size of the plot and the procedure for
allotment shall be as on the date of allotment in pursuance of an advertisement
issued inviting application from the oustees; (iii) That the HUDA or such other
authority can reserve plots up to 50% of the total plots available for all
reserved categories including that of oustees. As to what extent there would be
reservation for the oustees, is required to be decided by the State Government
and/or by HUDA or any other authority, who is entitled to acquire land; (iv)
That the oustees are entitled to apply for allotment of plot along-with earnest
money in pursuance of public advertisement issued may be inviting applications
from the general public and the oustees through one advertisement. If an oustee
is not successful, he/she can apply again and again till such time, the plots
are available for the oustees in the sector for which land was acquired for
residential/commercial purposes or in the adjoining sector, if the land
acquired was for institutional and industrial purposes etc. The plots to the
oustees shall be allotted only by public advertisement and not on the basis of
any application submitted by an oustee; (v) That the price to be charged from
an allottee shall be the price mentioned in the public advertisement in
pursuance of which, the plot is allotted and not when the sector is floated for
sale for the first time; (vi) That the State Government or the acquiring
authority shall not advertise any residential plot for sale without conducting
an exercise in respect of plots ear-marked for reserved categories and after
identification of the plots available for the oustees in each sector.
Thereafter, the State Government or the acquiring authority shall publish an
advertisement inviting applications from such oustees to apply for allotment of
plots in accordance with law: and (vii) If in any sector, more than 50% plots
have been allotted by way of reservation including to the oustees, then such
allotment shall not be cancelled or reviewed in view of the judgment of this
court. Haryana Urban Development
Authority & others v. Sandeep & others, 2012(1) L.A.R. 475 (P&H
DB).
Re-instatement
of Sarpanch
Once a person was reinstated on the post of Sarpanch,
then the petitioner, who was a Panch, temporarily authorized to act as
Sarpanch, has got no right, title or interest to act as Sarpanch. Mohinder Singh v. State of Punjab and
others, 2012(1) L.A.R. 59 (P&H).
Release of 90 % land
Land Acquisition Act, 1894 -- Acquisition of land –
Other landholder’s right -- At the time of awards, substantial area was
released being thickly constructed – 90% area has been recommended for
exclusion from acquisition -- Public purpose of acquiring the land seems to
have been defeated -- Whereas the land/construction belonging to the
petitioners is sought to be acquired -- Such an action would smacks of
arbitrariness and, thus, violative of Article 14 of the Constitution --
Notifications u/s 4 and 6 of the Act as well as the awards subsequently passed,
set aside. Satish Kumar and others v.
State of Haryana
Relevant date
Appointment of Lambardar – Defaulter of loan –
Eligibility of a candidate for the post of Lambardar is to be seen on the date
of appointment of the Lambardar -- On the date of submission of the application
as well as on the date of his appointment as Lambardar, the appellant was defaulter
of three Co-operative banks/institutions, which is one of the
dis-qualifications -- Payment of the loan amount by the appellant subsequently
was meaningless and was not to be taken into consideration. Jarnail Singh v. Financial Commissioner
(Appeals) Punjab, Chandigarh
Eviction -- Shamilat deh – Shamilat law – Possession –
Proof of -- Panchayat relied on jamabandi for the year 1985-86 to say that the
property had been entered as the property belonging to Gram Panchayat --
Contention that property which is described in the revenue records as shamlat
deh could qualify for being treated as such only in cases where the property
was shown as shamlat deh at the time when shamlat deh law came into force and,
therefore, the revenue entry for the relevant year must have been 09.01.1954
when shamlat deh law came into force -- The reference to an entry in the
jamabandi of the year 1985-86 cannot be taken as proof of the property as
shamlat deh -- Gram Panchayat sought for ejectment only treating the property
as shamlat deh and that fact was taken as established -- Contention of the
petitioner that the authorities misconstrued the revenue entries themselves as
referring to shamlat deh when they were not, upheld -- Even if such a reference
was taken to be found in the year 1985-86, without proving that the property
existed as such at the time when shamlat law came into force, the respondents
cannot be called upon to prove that they were in possession of the property
even before 1950 – Eviction order set aside. Joginder Singh v. Additional Director, Panchayats, Punjab, Chandigarh
and others, 2012(1) L.A.R. 572 (P&H).
Indian Stamp Act -- Sale deed – Registration of –
Nature of property – Nature and user of the building, residential on the date
of the purchase -- Merely because the property is being used for commercial
purpose at the later point of time may not be a relevant criterion for
assessing the value for the purpose of stamp duty -- Nature of user is
relatable to the date of purchase and it is relevant for the purpose of
calculation of stamp duty. State of U.P.
& Ors. v. Ambrish Tandon & another, 2012(1) L.A.R. 431 (SC).
Punjab Security of Land Tenures Act, 1953 -- Permissible area – Selection of –
Surplus area --Status of possession of property in the year 1953
cannot be transported and applied in the same way while considering selection
under Section 5-B -- Landlord, who makes a selection after coming into force of
the Amending Act of 1957 by Act 46 of 1957 effective from 11th December, 1957
must exercise his option in such a way that the status of holding as on the
date when he makes a selection must be seen. Chand Singh (deceased) through his LRs, and others v. The State of Punjab
Shamilat deh – Possession – Requisite period of 12
years, before the enactment of the 1961 Act, to claim protection of their
possession, required by Section 4(3)(ii) of the 1961 Act -- Period of 12 years
has to be reckoned from the date of enactment of the 1961 Act i.e. 4.5.1961. Sher Singh and others v. Director Rural
Development & Panchayat, Punjab and
others, 2012(1) L.A.R. 677 (P&H DB).
Remand by Commissioner
Appointment of Lambardar – Earlier recommendations made by
the A.C. IInd Grade and Ist Grade are insignificant, since the Divisional
Commissioner, had set aside the order of the Collector appointing petitioner as
Lambardar -- Only the subsequent order after the remand is to be taken into
consideration. Swaran Singh v. State of
Punjab and others, 2012(1) L.A.R. 195 (P&H).
Removal of Panch
Complainant – Right of -- In pursuance of the complaint made
by the complainant and on the basis of reports, the Director removed the Panch
– Appellate authority accepted the appeal without impleading the complainant as
a party – Held, since the complainant was the aggrieved party, so the appellate
authority slipped into a legal error in accepting the appeal of private
respondent, even without issuing notice to complainant, who was a necessary
party -- Matter remitted back to Appellate authority. Ashok Kumar v. State of Punjab and others, 2012(1) L.A.R. 188
(P&H).
Director removed Panch on two counts that he and other
Members Panchayat have caused huge loss to the government grant and damage to
the panchayat property -- Appellate authority accepted his appeal, without
deciding the subject matter of the lis by passing a non-speaking and
non-reasoned order -- Held, Appellate authority ought to have discussed the
material on record and was legally required to record valid reasons for
arriving at a right conclusion, in order to decide the real controversy between
the parties in the right perspective – Matter remitted back to Appellate
authority. Ashok Kumar v. State of
Punjab and others, 2012(1) L.A.R. 188 (P&H).
Report
of Collector
Land Acquisition Act, 1894 -- Acquisition of land –
Objections – Report of the Collector is not an empty formality -- It is only
upon receipt of the said report that the Government can take a final decision
on the objections – Formation of opinion by the appropriate Government as
regards the public purpose must be preceded by application of mind as regards
consideration of relevant factors and rejection of irrelevant ones –
Recommendations must indicate objective application of mind. M/S. Kamal Trading Private Limited (Now
Known As Manav Investment & Trading Co. Ltd.) v. State of West Bengal
Land Acquisition Act, 1894 -- Objections – Mere use of
the words ‘for the greater interest of public’ does not lend the report the
character of a report made after application of mind -- He was not expected to
write a detailed report but, his report, however brief, should have reflected
application of mind. M/S. Kamal Trading
Private Limited (Now Known As Manav Investment & Trading Co. Ltd.) v. State
of West Bengal
Report of consultant on trees
Land Acquisition Act, 1894 -- Market Value –
Witness-consultant in Agriculture and Horticulture personally visited the
acquired land and gave the details of the trees standing on different parts of
the land, their present and future age, condition, height, width, spread and
annual fruit production capacity -- Valuation made by him was amply supported
by the market rates of fruits fixed by Agriculture and Horticulture Department
of Government – In the cross-examination, the witness stood by reports given by
him – Held, this being the position, the High Court had no reason to overturn
the finding recorded by the Reference Court on the issue of existence of trees
on the acquired land and their valuation. Chindha
Fakira Patil (D) through L.Rs. v. The Special Land
Reservation of seats
Election of Panch – Category/reservation of seats of Panches
already notified before elections, cannot possibly be subsequently changed
after the completion of election process and declaration of the result. Kulwant Singh and another v. State of
Punjab and others, 2012(1) L.A.R. 179 (P&H).
Punjab Municipal Act, 1911 -- Intention of Article
243T of the Constitution and Section 8 of the Act is to provide reservation for
women, Scheduled Castes and Backward Classes in a Municipality – As to which
seats are reserved for them, is a matter of procedure and is directory –
Therefore, while rotating the wards, it is not necessary for the State
Government to rotate the wards with exactitude -- State has to be given play in
knees joints to adjust according to the requirements keeping in view the
population of the Backward Classes/Scheduled Castes voters. Inderjit v. State of Punjab
Punjab Municipal Act, 1911 -- No merit in the argument
that the power conferred on the State Government to notify the seats to be
reserved for women including the women belonging to the Scheduled Castes before
every General Elections means that such provision is arbitrary. Inderjit v. State of Punjab
Punjab Municipal Act, 1911 -- Section 8 of the Act is
pari-materia with the provisions of Article 243T -- Reservation of seats for
women, Scheduled Castes and Backward Classes alone is mandatory -- How such
seats are rotated is left to the State Government with play in joints as there
may be situations, where rotation of all the seats may not be feasible keeping
in view the population of the Scheduled Castes and Backward Classes being
concentrated in a pocket of a Municipality. Inderjit v. State of Punjab
Resjudicata
Dismissal of eviction petition – Title suit –
Dismissal of a petition u/s 7 of the 1961 Act does not operate as resjudicata
in a subsequent petition filed u/s 11 of the 1961 Act. Maghi Ram (deceased) through his LRs. and another v. Gram Panchayat,
Chirwa and others, 2012(1) L.A.R. 519 (P&H DB).
Mutation proceedings – Finding recorded during the mutation
proceedings while sanctioning or rejecting the same in favour of either of the
parties in a suit for declaration of title or possession on the basis of sale
deed etc., does not operate as res judicata. Mohinder Singh v. Financial Commissioner and others, 2012(1) L.A.R. 238
(P&H).
Mutation proceedings – Mutation does not confer any title --
Finding recorded during the mutation proceedings while sanctioning or rejecting
the same in favour of either of the parties in a suit for declaration of title
or possession on the basis of sale deed etc., does not operate as res judicata. Smt. Gurjeet Kaur and others v. Financial
Commissioner and others, 2012(1) L.A.R. 200 (P&H).
Punjab Village Common Lands (Regulation) Act, 1961 –
Eviction petition – Title suit – Held, if question of title was raised in
earlier proceeding u/s 7 of the 1961 Act and question of title has been decided
then no suit would lie under Section 13-A thereafter. Ram Saroop @ Ram Swarup v. Financial Commissioner and Principal
Secretary, Haryana, Development & Panchayat Department and others, 2012(1)
L.A.R. 468 (P&H).
Title suit – Adjudication on a question of title,
pursuant to a petition filed u/s 11 of the 1961 Act operates as resjudicata in
a subsequent petition pertaining to the same land and between the same parties
-- Collector and the Appellate Authority, therefore, had no jurisdiction to
entertain the petition and pass orders. Maghi
Ram (deceased) through his LRs. and another v. Gram Panchayat, Chirwa and
others, 2012(1) L.A.R. 519 (P&H DB).
Watercourse – Writ was dismissed by Ld. Single Judge
by holding that principle of res judicata is not applicable in the summary
proceedings – No reasons to interfere in the order of Ld. Single Judge. Bhagirath v. The Divisional Canal
Restoration of Water Course
Concurrently finding by Canal authorities of the
existence of water course, which was dismentalled by the petitioners -- No
other alternative water course for irrigation of land of private respondent –
Canal Authorities have rightly ordered the restoration of the water course. Bharat Singh and others v. Divisional
Canal Officer and others, 2012(1) L.A.R. 372 (P&H).
Contention that alleged watercourse was not in
existence over the common watt of Killa Nos.8,9,10 and 11,12,13, rather, the
watercourse existed in Killa No.8,9,10 -- Canal authorities, after considering
the verification report given by the Ziledar and visiting the spot, found as a
fact that a watercourse was existing and running on the Killa Nos.8,9,10 and
11,12,13, and after coming to the said conclusion, the said watercourse was
ordered to be restored being illegally demolished by the appellant – Learned
Single Judge has rightly declined to interfere in the concurrent findings of
fact recorded by the canal authorities.
Sukhwinder Pal v. Superintending Canal Officer, Ferozepur and others, 2012(1)
L.A.R. 696 (P&H DB).
Matter was got investigated by the DCO through the
Zilledar, who, after spot inspection recommended for the restoration of
watercourse – Watercourse was running since long, private respondents were
irrigating their land, they have no other watercourse to irrigate their land --
SDCO has rightly accepted the claim, which has been upheld by DCO -- No patent
illegality or legal infirmity pointed out, in the orders -- Orders passed by
Canal authorities maintained. Baru Ram
and others v. The Sub-Divisional Canal Officer, Hisar and others, 2012(1)
L.A.R. 14 (P&H).
Northern India Canal and Drainage Act, 1873 – Orders passed by Canal authorities does not
indicate that those orders are non-speaking and do not assign good reasons for
ordering restoration of the water course – Remand of the case to the Divisional
Canal Officer to decide the matter afresh, is not justified -- Canal matters,
particularly demolition of the water course, should be decided expeditiously,
without any delay, as demolition of the water course adversely affects the irrigation
of the fields of the farmers. Gurmail
Singh and another v. Superintending Canal Officer, Sirhind Canal Circle,
Ludhiana and others, 2012(1) L.A.R. 642 (P&H DB).
Northern India Canal and Drainage Act, 1873 – Held,
the orders of the canal authorities, particularly ordering restoration of the
water course, with a clear finding that prior to its demolition, the water
course was running and irrigating the fields, should not be interfered in the
writ jurisdiction -- Even if the water course was not sanctioned under the
provisions of the Act, and if the same was in running condition for a long
time, it should have been ordered to be restored. Gurmail Singh and another v. Superintending Canal Officer, Sirhind
Canal Circle, Ludhiana and others, 2012(1) L.A.R. 642 (P&H DB).
Northern India Canal and Drainage Act, 1873 -- On receiving the application u/s
30-FF (1), the Divisional Canal Officer was required to make an enquiry as he
deemed fit and issue notice to the person who demolished, altered, enlarged or
obstructed the water course, and after providing opportunity of hearing to the
defaulter, order for restoration of the said water course to its original
condition -- Divisional Canal Officer could not have refused to restore a water
course, only on the ground that the water course was not sanctioned according
to the provisions of the Act. Gurmail
Singh and another v. Superintending Canal Officer, Sirhind Canal Circle,
Ludhiana and others, 2012(1) L.A.R. 642 (P&H DB).
Resumption order
Validity of – HUDA matters -- Delay in instalments --
Whether due to delay in payment, resumption order can be sustained – Held,
resumption is very harsh measure and it should be resorted only when the
allottee has no intention to pay the instalments. Haryana Urban Development Authority, Faridabad
Review
Appointment of Lambardar – Choice of Collector –
Collector, after considering the comparative merit of both the candidates, had
appointed respondent No.4 as Lambardar of the village -- Commissioner, without
any justification and while totally ignoring the settled law that the choice of
the Collector should not be interfered with until and unless the order is
perverse and the appointed person is ineligible for the appointment, had set aside
the order of the Collector -- Financial Commissioner, though at one point of
time, had set aside the illegal order of the Commissioner, but subsequently,
had taken the ‘U' turn on the review application and on a different ground had
recalled his earlier order totally without any justification and reason – Order
of Financial Commissioner in review application set aside -- Collector’s order
appointing respondent No.4 as Lambardar of the village restored. Manjit Singh v. Financial Commissioner
(Appeal-I), Punjab, Chandigarh
Revision
Limitation -- Any appeal /revision can be admitted
after the prescribed period if the appellant satisfies the court that he had
sufficient cause for not preferring the appeal /revision within such period --
Delay of every day has to be justified -- No plausible explanation has been
given for the undue delay on 11 years, 1 month and 11 days -- Abnormal delay of
more than 11 years does not deserve condonation, the same is rejected -- Revision
petition is dismissed being time barred. Tara Chand v. Administrator, New Mandi Township ,
Punjab , 2012(1)
L.A.R. 634 (FC Pb.).
Revisional Authority’s Power
Rent Act -- Sub-tenancy – Question of sub tenancy is a question of law
also -- While exercising revisional powers High Court has to satisfy as to
whether ingredients of sub tenancy are proved or not -- If High court finds
that ingredients are not proved then it would be open for this Court to disturb
judgments/findings of both the Courts below on the question of sub tenancy. Sohan Singh Sidhu v. Charanjit Singh,
2012(1) L.A.R. 30 (P&H).
Revisional Jurisdiction
Rent Act -- Bonafide need – Whether demised premises are required by the
landlord for his personal need is essentially a question of fact – Concurrent
finding against the tenant, High Court in its revisional jurisdiction will not
substitute its opinion with the findings of the courts below only because
another view is possible. Jagdish Kaur
v. Sat Pal Madan, 2012(1) L.A.R. 240
(P&H).
Revision before High Court
Rent Act -- Misuse of process of law – Costs -- Dispossession of tenant
from the shop in dispute stayed – Service could not complete, petitioner was
directed to supply correct addresses -- After getting the dispossession stayed,
on 9.10.2007 and despite the fact that at many stages, the Court has asked the
petitioner to serve the respondent dasti, the petitioner failed to do so --
Held, it seems that petitioner is abusing the process of law by not making
efforts to serve the respondent and is enjoying the stay order in his favour --
Petition dismissed with costs of Rs. 1 lac.
Durga Dutt v. Vidya Sagar, 2012(1) L.A.R. 415 (P&H).
Revoking of suspension
Suspension of Panch/Sarpanch – Right of Complainant -- While revoking
the order of suspension passed at the behest of a complainant, the complainant
is not required to be heard – In case the complainant is aggrieved by what is
perceived to be an unjust order of revocation, the writ jurisdiction under
Articles 226/227 of the Constitution of India is always available to him. Dhup Singh v. Phulla Ram and others,
2012(1) L.A.R. 75 (P&H Full Bench).
Right of Complainant
Removal of
Panch – In pursuance of the complaint made by the complainant and on the basis
of reports, the Director removed the Panch – Appellate authority accepted the
appeal without impleading the complainant as a party – Held, since the
complainant was the aggrieved party, so the appellate authority slipped into a
legal error in accepting the appeal of private respondent, even without issuing
notice to complainant, who was a necessary party -- Matter remitted back to
Appellate authority. Ashok Kumar v.
State of Punjab and others, 2012(1) L.A.R. 188 (P&H).
Suspension of Panch/Sarpanch – Revoking of suspension – While revoking
the order of suspension passed at the behest of a complainant, the complainant
is not required to be heard – In case the complainant is aggrieved by what is
perceived to be an unjust order of revocation, the writ jurisdiction under
Articles 226/227 of the Constitution of India is always available to him. Dhup Singh v. Phulla Ram and others,
2012(1) L.A.R. 75 (P&H Full Bench).
Right of eviction
East Punjab Urban Rent Restriction Act, 1949 -- NRI landlord – Eight shops in one
building – Landlords established that all the eight shops which are part of the
one main building are required by them – Contention that landlord have already
got evicted the tenant from another part of the building and therefore they are
not entitled to ask for eviction of the tenant as such right can be exercised
by the landlords only once in life time, is liable to be rejected -- All the
shops which form part of one integral building can be got vacated by a NRI
owner/landlord. Onkar Singh v. Dilbagh
Rai & another, 2012(1) L.A.R. 409 (P&H).
Right of Proprietors
Eviction of -- Public premises laws -- Land is
reserved for common purpose i.e. Baisak Mawashian (place of gathering of
cattle) and school -- Such land would be public premises -- Collector can issue
notice to get unauthorized occupant from such land evicted -- Proprietors of
the village can also be evicted from the land reserved for common purpose. Puran and others v. The Commissioner and
others, 2012(1) L.A.R. 448 (P&H).
Right of subsequent vendee
Bachat land – Acquisition of land – Compensation for
Bachat land -- Bachat land was acquired by the Government, compensation was
distributed to all the original proprietors as per their shares – Sale deed
only shows that all rights in connection with the land has been sold -- Even
the mutation was sanctioned regarding the land sold as mentioned in the sale
deed -- Mutation regarding share in shamlat land has not been sanctioned in
their favour -- If all the rights in connection of the land have been sold the
same would not automatically include the rights in shamlat land -- Suit
claiming that vendee are entitled to compensation regarding acquisition of the
said land, rightly dismissed. Maru Ram
and others v. Randhir and others, 2012(1) L.A.R. 556 (P&H).
Right to Pre-empt
Punjab Security of Land Tenures Act, 1953 – Tenant – Sale of
land – Landlord is a small land owner, tenant had no right to pre-empt the sale
of land – Moreover the father of the plaintiffs was ordered to be evicted from
the suit land -- Tenancy between the landlord and the father of the plaintiffs
came to an end – Suit was rightly dismissed. Ran Singh and others v. Vijay and others, 2012(1) L.A.R. 176
(P&H).
Rotation in Reservation of seats
Punjab Municipal Act, 1911 -- No merit in the argument
that the power conferred on the State Government to notify the seats to be
reserved for women including the women belonging to the Scheduled Castes before
every General Elections means that such provision is arbitrary. Inderjit v. State of Punjab
Punjab Municipal Act, 1911 -- Reservation of seats for
women, Scheduled Castes and Backward Classes alone is mandatory -- How such
seats are rotated is left to the State Government with play in joints as there
may be situations, where rotation of all the seats may not be feasible keeping
in view the population of the Scheduled Castes and Backward Classes being
concentrated in a pocket of a Municipality. Inderjit v. State of Punjab
Punjab Municipal Act, 1911 -- While rotating the
wards, it is not necessary for the State Government to rotate the wards with
exactitude -- State has to be given play in knees joints to adjust according to
the requirements keeping in view the population of the Backward
Classes/Scheduled Castes voters. Inderjit
v. State of Punjab
Registration of – Indian Stamp Act -- Nature of
property – Relevant date -- Nature and user of the building, residential on the
date of the purchase -- Merely because the property is being used for
commercial purpose at the later point of time may not be a relevant criterion
for assessing the value for the purpose of stamp duty -- Nature of user is
relatable to the date of purchase and it is relevant for the purpose of calculation
of stamp duty. State of U.P. & Ors.
v. Ambrish Tandon & another, 2012(1) L.A.R. 431 (SC).
Acquisition of land -- Market
Value -- Law of deduction – Not possible to state precisely the exact deduction
which could be made – Deduction is to be applied on account of carrying out
development activities like providing roads or civic amenities such as
electricity, water etc. when the land has been acquired for construction of
residential, commercial or institutional projects -- It shall also be applied
where the sale instances (exemplars) relate to smaller pieces of land and in
comparison the acquisition relates to a large tract of land -- Deduction can
also be applied on account of wastage of land -- It is neither possible nor
appropriate to stricto sensu define a class of cases where the Court would not
apply any deduction -- The cases where the acquired land itself is fully
developed and has all essential amenities, before acquisition, for the purpose
for which it is acquired requiring no additional expenditure for its
development, falls under the purview of cases of ‘no deduction'. Trishala Jain & Anr. v. State of Uttaranchal
Acquisition of land -- Market
Value -- Sale Uttaranchal
Acquisition of land -- Market
Value -- Vendor or vendee of sale deed had not been examined to prove them in
Court -- Sale India Uttaranchal
Acquisition of land -- Market
Value -- Sale instances even of smaller plots could be considered for
determining the market value of a larger chunk of land with some deduction
unless, there was comparability in potential, utilisation, amenities and
infrastructure with hardly any distinction. Trishala
Jain & Anr. v. State of Uttaranchal
Punjab Security of Land Tenures Act, 1953 – Tenant – Right
to Pre-empt -- Landlord is a small land owner, tenant had no right to pre-empt
the sale of land – Moreover the father of the plaintiffs was ordered to be
evicted from the suit land -- Tenancy between the landlord and the father of
the plaintiffs came to an end – Suit was rightly dismissed. Ran Singh and others v. Vijay and others, 2012(1) L.A.R. 176
(P&H).
Sarpanch of the Village
Appointment of Lambardar – At present, respondent No.4
is not the Sarpanch of the village, though at the time of his initial
appointment as Lambardar, he was Sarpanch of the village -- This factor does
not go against him -- It cannot be presumed that the Sarpanch of a village
would be affiliated with a political party, thus he cannot discharge his duty
honestly and without any bias. Karamjit
Singh v. Financial Commissioner Appeals-II, Punjab, Chandigarh and others,
2012(1) L.A.R. 651 (P&H DB).
Appointment of Lambardar -- This fact made him more
meritorious and better. Tarlok Chand v.
Joginder Singh and others, 2012(1) L.A.R. 689 (P&H DB).
Separate claim
Requirement of – HUDA Matters -- Oustees claim --
Finding that since the claim from the
oustees was not separately invited and could not have been clubbed or joined
with General Category, therefore, such action is violative of law is not
sustainable – Such provision is directory and inviting of applications through
a public advertisement along with the applications from the general public
meets the intent of the policies -- An oustees is entitled to apply for a plot
till such time, the plots falling to the category of the oustees remain
unallotted -- Such writ petitioner would be entitled to apply for a plot in
pursuance of public notice inviting applications from the oustees, if the plots
for such category are available. Haryana
Urban Development Authority & others v. Sandeep & others, 2012(1)
L.A.R. 475 (P&H DB).
Shamilat deh
Cultivating possession -- In the absence of any
evidence that the land in dispute was in individual cultivating possession of a
co-sharer, not being an excess of his share, on or before 26.1.1950, the
petitioners are not entitled to any benefit under Section 2(g)(viii) of the
1961 Act. Sher Singh and others v.
Director Rural Development & Panchayat, Punjab
and others, 2012(1) L.A.R. 677 (P&H DB).
Cultivating possession -- No material to prove
partition and cultivating possession of the land in dispute, as provided by
Section 2(g) (iii) of the 1961 Act, thereby negating the plea raised under
Section 2(g)(iii) of the 1961 Act. Sher
Singh and others v. Director Rural Development & Panchayat, Punjab and others, 2012(1) L.A.R. 677 (P&H DB).
Exemption from -- In order to apply this provisions,
it is sine qua non to prove the -- individual cultivating possession of the
co-sharers; not being in excess of their respective shares; land being assessed
to land revenue; on or before 26th January, 1950. Gurdev Singh (deceased) through his LRs. v. The Additional Director,
Panchayats, Punjab and another, 2012(1) L.A.R.
596 (P&H DB).
Exemption from -- In order to invoke the provisions of
Section 2(g)(viii) of the 1961 Act, the petitioners have not only to prove that
the shamilat deh was assessed to land revenue, but also that they have been in
individual cultivating possession not being in excess of their respective
shares. Sat Pal and others v. Gram
Panchayat of Village Sarangpur and others, 2012(1) L.A.R. 683 (P&H
DB).
Exemption from -- Tibba/Banjar Kadim land – Petitioner
is not deemed to be in cultivating possession of Tibba/Banjar Kadim land, which
has been recorded as such in the Jamabandi for the year 1947-48 -- A
presumption of truth attaches to a Jamabandi that the land being an old fallow,
i.e. uncultivated for 8 successive harvests, cannot be in the cultivating
possession of the petitioners, before 26.01.1950 so as to exclude it from
Shamilat Deh -- Petitioner is not entitled to any exemption under Sections
2(g)(viii) and 4 (3)(ii) of the 1961 Act. Gurdev
Singh (deceased) through his LRs. v. The Additional Director, Panchayats, Punjab and another, 2012(1) L.A.R. 596 (P&H DB).
Petitioners have failed to produce any sale-deed or
any mutation as to the particulars of the sale deed to support the entries in
the jamabandis and the Missal Haqiat -- Petitioners were required to prove
purchase of the land by producing a sale deed or at least a mutation recording
the sale -- Petitioners’ plea of exclusion of land from Shamilat deh must fail
on this solitary ground. Sher Singh and
others v. Director Rural Development & Panchayat, Punjab
and others, 2012(1) L.A.R. 677 (P&H DB).
Possession -- Pleadings -- Contention that petitioners
were in cultivating possession of Shamilat Deh, 12 years, immediately preceding
the commencement of the 1961 Act, their possession is protected by Section 4
(3)(ii) of the 1961 Act -- Argument, cannot be entertained as no such plea was
raised before the Collector or the Commissioner and nor has such a plea been
raised in the pleadings -- Petitioners cannot be allowed, at this belated
stage, of this long drawn out litigation, to raise a new plea and alter the
very basis of their claim of ownership. Sher
Singh and others v. Director Rural Development & Panchayat, Punjab and others, 2012(1) L.A.R. 677 (P&H DB).
Possession – Relevant date -- Requisite period of 12
years, before the enactment of the 1961 Act, to claim protection of their
possession, required by Section 4(3)(ii) of the 1961 Act -- Period of 12 years
has to be reckoned from the date of enactment of the 1961 Act i.e. 4.5.1961. Sher Singh and others v. Director Rural
Development & Panchayat, Punjab and
others, 2012(1) L.A.R. 677 (P&H DB).
Punjab Village Common Lands (Regulation) Act, 1961 --
Eviction of occupants -- Predecessor of the appellants came into possession
only in the year 1955-56, thus, the said land is not exempted under Section 4
(3) (ii) of the Act -- Appellants have also failed to prove their individual
cultivating possession prior to 26th January, 1950 – Held, no illegality in the
order of eviction passed against the appellants. Balbir Kaur alias Godhan and others v. Gram Panchayat Jhorarh Rohi and
others, 2012(1) L.A.R. 43 (P&H DB).
Punjab Village Common Lands (Regulation) Act, 1961 --
Shamlat Deh Hasab Rasad Zar Khewat Wa Sanai Mahajrin – Vesting of -- In the
Jamabandi for the year 1955-56, the land in question was recorded as Shamlat
Deh Hasab Rasad Zar Khewat Wa Sanai Mahajrin and according to Section 2(g)(i)
read with Section 4 of the Act, such land vests in the Gram Panchayat. Inderjit Singh and others v. The Director
Rural Development and Panchayat-cum-Commissioner, Pb.,Chandigarh
Question of title – Jurisdiction of civil court – Civil court
would have no jurisdiction to decide the question of title pertaining to land
which is shamlat deh and vests with the Panchayat. Yudhvir Singh v. Gram Panchayat Halla and another, 2012(1) L.A.R. 259 (P&H).
Shamilat Deh Hasab Hisas Paimana Haqiyat Mundarza
Sajra Nasab -- In the column of
ownership in the name of Shamilat Deh Hasab Hisas Paimana Haqiyat Mundarza
Sajra Nasab, which means as per their shares on the basis of inheritance and
cultivation of Makbooja Malkan, means that it was not in cultivation of
individuals, but in cultivation of the proprietary body jointly -- Petitioners
cannot take advantage only of the payment of land revenue, by the owners of the
Taraf Patti as they have also to prove the other ingredients of Section
2(g)(viii) of the 1961 Act, for the purpose of exclusion of land from the
definition of shamilat deh. Sat Pal and
others v. Gram Panchayat of Village Sarangpur and others, 2012(1) L.A.R. 683
(P&H DB).
Shamilat Deh Hasab Hissas Mundarza Shijra Nasar -- Makbuja Malkan -- Expression “Shamilat Deh
Hasab Hissas Mundarza Shijra Nasar”, coupled with the expression “Makbuja
Malkan” merely refers to ownership as it existed prior to the vesting of
“Shamilat Deh” in a Gram Panchayat under the Pepsu Act and the 1961 Act and
records the possession of the proprietors in common, without any particular
proprietor being in a specific possession of the land much less in cultivating
possession so as to exclude it from “Shamilat Deh” under Section 2(g)(iii) of
the 1961 Act -- Petitioners have not placed any revenue record to show that
they ever “cultivated” the land before 1950 -- Collector and the Appellate
Authority did not commit any error in holding that the land was “Shamilat Deh”
and, therefore, vested in the Gram Panchayat. Maghi Ram (deceased) through his LRs. and another v. Gram Panchayat,
Chirwa and others, 2012(1) L.A.R. 519 (P&H DB).
Vesting of -- Jumla Malkan & Dikar Haqdaran Hasab
Rasad Rakba Khewat -- Makbuja Nagar Panchayat Rafaae Aam & Share Aam – Land
in the revenue record has been described as Jumla Malkan & Dikar Haqdaran
Hasab Rasad Rakba Khewat and in the cultivation column, it has been shown as
Makbuja Nagar Panchayat Rafaae Aam & Share Aam – In the latest jamabandi,
the Gram Panchayat has been shown as the owner -- Such land falls in the
definition of Shamlat as defined under Section 2(g) of the 1961 Act. Surinder Singh and others v. Joint
Development Commissioner/IRD and others, 2012(1) L.A.R. 530 (P&H DB).
Shamilat deh hasab rasad khewat
In the revenue record, the land in dispute has been
described as shamilat deh hasab rasad khewat – Held, such land vests in the
Gram Panchayat if it is not covered by any of the exceptions provided under
Section 2(g)(5)of the Act – Merely on the basis of possession, which is not
prior to 26.1.1950 in the capacity of a proprietor of the shamilat, the
petitioner cannot claim that the land in dispute does not fall under the
definition of shamilat deh and does not vest in the Gram Panchayat. Tarsem Singh v. Director Rural Development
and Panchayat (Punjab ) Exercising the powers
of Commissioner, and others, 2012(1) L.A.R. 298
(P&H DB).
Shamilat Deh Hasab Hisas Paimana Haqiyat
Mundarza Sajra Nasab
Shamilat deh -- In the column of ownership in the name
of Shamilat Deh Hasab Hisas Paimana Haqiyat Mundarza Sajra Nasab, which means
as per their shares on the basis of inheritance and cultivation of Makbooja
Malkan, means that it was not in cultivation of individuals, but in cultivation
of the proprietary body jointly -- Petitioners cannot take advantage only of
the payment of land revenue, by the owners of the Taraf Patti as they have also
to prove the other ingredients of Section 2(g)(viii) of the 1961 Act, for the
purpose of exclusion of land from the definition of shamilat deh. Sat Pal and others v. Gram Panchayat of
Village Sarangpur and others, 2012(1) L.A.R. 683 (P&H DB).
Shamilat Deh Hasab Hisis Mundarja Shajra Nasab
Even if the land is recorded in the column of
ownership as Shamilat Deh Hasab Hisis Mundarja Shajra Nasab, it would only
indicate shareholdings of proprietors as per inheritance prior to vesting. Gurdev Singh (deceased) through his LRs. v.
The Additional Director, Panchayats, Punjab
and another, 2012(1) L.A.R. 596 (P&H DB).
Shamilat Deh Hasab Hissas Mundarza Shijra Nasar
Shamilat deh -- Makbuja Malkan -- Expression “Shamilat
Deh Hasab Hissas Mundarza Shijra Nasar”, coupled with the expression “Makbuja
Malkan” merely refers to ownership as it existed prior to the vesting of
“Shamilat Deh” in a Gram Panchayat under the Pepsu Act and the 1961 Act and
records the possession of the proprietors in common, without any particular
proprietor being in a specific possession of the land much less in cultivating
possession so as to exclude it from “Shamilat Deh” under Section 2(g)(iii) of
the 1961 Act -- Petitioners have not placed any revenue record to show that
they ever “cultivated” the land before 1950 -- Collector and the Appellate
Authority did not commit any error in holding that the land was “Shamilat Deh”
and, therefore, vested in the Gram Panchayat. Maghi Ram (deceased) through his LRs. and another v. Gram Panchayat,
Chirwa and others, 2012(1) L.A.R. 519 (P&H DB).
Shamilat land
Bachat land – Jumla Mushtarka Malkan Hasad Rasad
Khewat -- Some land deducted from holding of proprietors by imposing a pro-rata
cut on holdings at the time of consolidation to be used for common purposes of
the entire proprietary bodies – Bachat land is a land which was left after
utilising the land for common purposes, as mentioned in consolidation scheme --
Said land is normally recorded in the revenue record as Jumla Mushtarka Malkan
Hasad Rasad Khewat -- Same also describes the share of each proprietor, which
is to the extent of land contributed by such land owners -- Management and
control of bachat land does not vest in Gram Panchayat. Maru Ram and others v. Randhir and others, 2012(1) L.A.R. 556
(P&H).
Shamlat Deh Hasab Rasad Zar Khewat Wa Sanai
Mahajrin
Punjab Village Common Lands (Regulation) Act, 1961 --
Shamilat deh -- In the Jamabandi for the year 1955-56, the land in question was
recorded as Shamlat Deh Hasab Rasad Zar Khewat Wa Sanai Mahajrin and according
to Section 2(g)(i) read with Section 4 of the Act, such land vests in the Gram
Panchayat. Inderjit Singh and others v.
The Director Rural Development and Panchayat-cum-Commissioner, Pb.,Chandigarh
Shifting of outlet
Northern India Canal and Drainage Act, 1873 --
Jurisdiction of High Court -- Contention that land of the appellants shown as
Mark A, B and D in the site plan and new outlet is situated at lower level,
therefore, land of the appellants situated in these blocks will not be properly
irrigated – Held, High Court cannot go into the question of level of land -- It
is for the canal authorities to examine this aspect and provide an outlet to
the land of the farmers, by keeping in view the interest of better irrigation
-- They are expert in such matters.
Jagtar Singh and others v. Superintending Canal Officer, Ferozepur Canal
Circle, Ferozepur and others, 2012(1) L.A.R. 702 (P&H DB).
Writ jurisdiction -- Matter of transfer of an area
from one outlet to another by the canal authorities should be seldom interfered
with in the writ jurisdiction, particularly when the canal authorities had
taken the decision after hearing the interested parties and in the interest of
better irrigation, and also considering that while making such transfer, the
maximum land will be properly irrigated.
Mohinder Singh and others v. The State of Punjab
Shifting of Watercourse
No one can run the water at his own through the
watercourse. Ram Kumar v. State of
Haryana and others, 2012(1) L.A.R. 589 (P&H).
Shop cum flat
Capital of Punjab (Development and Regulation) Act,
1952 -- Tourist lodge/Guest house –
Misuse of premises – Conversion of use of building -- Sites allotted for use as
(SCFs), whereas petitioner are using F.F. and S.F. as guest houses/lodges,
which is not permissible -- Stand of the administration that until and unless
the petitioners seek firstly conversion for use as for the office purposes and
secondly to seek permission to use the office portion for commercial purpose
i.e. for tourist lodges and guest houses, the petitioners are violating the
provisions of the Act and the building is liable to be resumed – Writ petition
challenging to notices served u/s 8A of the 1952 Act dismissed with liberty to
the petitioners to seek conversion of the use of buildings in terms of the scheme
framed under the Act. Gurcharan Singh v.
Union Territory Chandigarh & others, 2012(1)
L.A.R. 330 (P&H DB).
Small sale instance
Acquisition of land -- Market
Value – Deduction from -- Land acquired had the potential of being developed
for residential or institutional purposes, the same was acquired for
construction of a Government Polytechnic Institute – Sale instance is situated
at a distance of 1-1/2 furlong from the acquired land cannot be said to be
incomparable sale instance, i.e. it has to be taken as a comparable sale
instance – Value of sale of small pieces of land can be taken into
consideration for determining even the value of a large tract of land – 10%
deduction is made from the estimated market value of acquired land. Trishala Jain & Anr. v. State of Uttaranchal
Sound disposing mind
Proof of – Will – Doctor, who had issued a certificate
Ex.DW2/A shows that deceased was treated by him as OPD patient and that at that
time she was suffering from major depressive order -- However DW2, Doctor
deposed that at that time when this OPD slip was issued, other Doctor was
Psychiatrist in the hospital and he could not say as to since how long she was
suffering from the disease -- No other entry in the register except the said
entry -- Even the said OPD slip was not produced -- Even it was not mentioned
as to what medicine was prescribed -- Hence, it was rightly held by both the
courts below that appellants have failed to prove that deceased was suffering
from some major disease and that she was not in sound disposing mind when Will
was allegedly executed by her in favour of defendants. Charan Singh and another v. Amar Singh and others, 2012(1) L.A.R. 608
(P&H).
Speaking order
Punjab Village Common Lands (Regulation) Act, 1961 --
Appeal – Stay of impugned order – Natural justice -- Appellate Authority has
the power to stay the order impugned -- No reason is required to be given while
granting the stay of the order – No requirement of the principles of natural
justice that even such interim order is to be speaking order. Hazara Singh and others v. The State of Punjab
Specified landlord
East Punjab Urban Rent Restriction Act, 1949 --
Building – Non-residential building – When the eviction petition was filed,
there was no access to the main residential building through the demised
premises (shop) -- Court is to take into consideration the position of the
demised premises at the time of the filing of the eviction petition – Held, it
has to be essentially accepted that it was segregated portion of the main
building and was an independent unit falling within the definition of a
building itself in terms of Section 2(a) of the Act – Demised premises is not a
residential building -- Since it was let out for non-commercial purpose, the
application of the landlord under Section 13-A is not maintainable. M/s Bharat Electricals and another v. Dr.
Sukhdev Raj Goyal and another, 2012(1) L.A.R. 422 (P&H).
Statutory period for Award
Land Acquisition Act, 1894 -- Acquisition of land – Stay of
proceedings – If any action or proceeding required to be taken after the issue
of declaration u/s 6 is stayed by a Court, the entire period of stay will get
excluded in calculating the period of two years within which an award is
required to be made by the Collector -- Once the stay order passed by a Court
is vacated or ceases to operate, the clog put on the running of the period
specified in the main section is removed.
R. Indira Saratchandra v. State of Tamil Nadu & others, 2012(1) L.A.R. 136
(SC).
Land Acquisition Act, 1894 -- Acquisition of land – Stay of
proceedings – Time taken in supply of copy of the judgment cannot extend the
period of two years specified in Section 11A. R. Indira Saratchandra v. State of Tamil Nadu & others, 2012(1)
L.A.R. 136 (SC).
Stay of Eviction of tenant
Rent Act -- Mesne profit -- Landlord is entitled to
the payment of mesne profits as assessed by Court after passing of the eviction
order till its possession is handed over to the landlord -- Mesne profits of
the demised premises assessed and made payable with effect from the date on
which the High Court admitted the revision petition and had stayed the
dispossession of the tenant. M/s Bird
Travels (P) Ltd. v. Smt. Amarjit Kaur and others, 2012(1) L.A.R. 313 (P&H).
Stay of order in appeal
Punjab Village Common Lands (Regulation) Act, 1961 --
Speaking order – Natural justice -- Appellate Authority has the power to stay
the order impugned -- No reason is required to be given while granting the stay
of the order – No requirement of the principles of natural justice that even
such interim order is to be speaking order. Hazara Singh and others v. The State of Punjab
Stay of proceedings
Land Acquisition Act, 1894 -- Acquisition of land –
Statutory period for Award -- If any action or proceeding required to be taken
after the issue of declaration u/s 6 is stayed by a Court, the entire period of
stay will get excluded in calculating the period of two years within which an
award is required to be made by the Collector -- Once the stay order passed by
a Court is vacated or ceases to operate, the clog put on the running of the
period specified in the main section is removed. R. Indira Saratchandra v. State of Tamil Nadu & others, 2012(1)
L.A.R. 136 (SC).
Land Acquisition Act, 1894 -- Acquisition of land –
Statutory period for Award -- Time taken in supply of copy of the judgment
cannot extend the period of two years specified in Section 11A. R. Indira Saratchandra v. State of Tamil
Nadu & others, 2012(1) L.A.R. 136 (SC).
Subsidy (Margin money)
Punjab Khadi and Village Industries Board Loan Rules,
1958 -- Principle of promissory estoppels -- Respondent-Samiti after availing
the loan had also repaid the same along with interest within the stipulated
time given in the agreement -- There was no default on its account -- At a
subsequent stage, the appellant-Board asked the respondent-Samiti to convert
the margin money (subsidy) into loan -- Said action of the appellant-Board set
aside being hit by the principle of promissory estoppel. Punjab Khadi and Village Industries Board, Chandigarh
Punjab Khadi and Village Industries Board Loan Rules,
1958 -- Rules does not say that the margin money (subsidy) will not be
available on the loan account of working capital -- Held, subsequent Policy of
the Khadi Commission to the effect that margin money (subsidy) cannot be
availed on the working capital loan does not override the Rules. Punjab Khadi and Village Industries Board,
Chandigarh
Sub-tenancy
Rent Act -- Landlord is required to prove that tenant
has delivered the possession to the sub tenant for consideration/rent and
tenant has no control over the business being run in the shop – Landlord failed
to prove these important facts, to the contrary, tenant has established that
tenant is running two wheelers repair shop and still in occupation of the
possession of the shop in dispute – Held, sub-tenancy not proved. Sohan Singh Sidhu v. Charanjit Singh,
2012(1) L.A.R. 30 (P&H).
Rent Act -- Revisional Authority’s Power -- Question
of sub tenancy is a question of law also -- While exercising revisional powers
High Court has to satisfy as to whether ingredients of sub tenancy are proved
or not -- If High court finds that ingredients are not proved then it would be
open for this Court to disturb judgments/findings of both the Courts below on
the question of sub tenancy. Sohan Singh
Sidhu v. Charanjit Singh, 2012(1) L.A.R. 30 (P&H).
Sufficient cause
Rent Act -- Bonafide need – Vacation of building –
Landlord closed his tractor business in the year 2001, whereas he started his new
business only in the year 2004 meaning thereby landlord has no idea in the year
2001 that he will be starting his new business – Held, it cannot be said that
the landlord had vacated the premises in his occupation after commencement of
the Act without sufficient cause. Ramesh
Gupta v. Ashok Kumar Jain, 2012(1) L.A.R. 289
(P&H).
Suitability of accommodation
Rent Act -- Bonafide need – Tenant is no one to
dictate his terms to the landlord in the matter of bona fide requirement with
regard to suitability of the accommodation. Rakesh Kumar v. Darshan Singh, 2012(1)
L.A.R. 271 (P&H).
Surplus area
Haryana Ceiling on Land Holdings Act, 1972 --
Permissible area – Death of landowner – Effect of -- So long as the Collector's
determination is a subject of an appeal or a challenge before this Court under
Article 226 or in further proceedings before the Hon'ble Supreme Court, it must
only be taken that the determination has not been finally made and
consequently, a death of the landowner would certainly cause affectation of the
surplus area which would require to be redetermined in the hands of the heirs
of the deceased landowner -- So long as the proceedings are still pending, it
would inevitably mean that the holding of the deceased that has fallen to be
distributed amongst the heirs shall require a fresh reckoning for determination
of surplus – Case would require to be remitted to the competent authority under
the 1972 Act. Sardara Singh’s case 2008(2) RCR (Civil) 744, relied. Kehar Singh (deceased) through his LRs v.
Financial Commissioner, Haryana, Chandigarh
Permissible area -- Vesting of land in State --
Allotment of land – Held, issue that the assessment of surplus itself was wrong
is not an issue that is available at the stage of distribution of the property
– Landlords will not have a right to challenge the issue of allotment of the
land, after the vesting has taken place.
Dona Ram and others v. The State of Haryana
Punjab Land Reforms Act, 1972 – Declaration of –
Challenge to -- Jurisdiction of the Civil Court – Collector held that the land
measuring 1.66.62 hectares was surplus with the plaintiff – Collector,
accordingly, issued notice under section 9 of the Act for delivering possession
of the said land – Civil suit questioning the orders – Held, civil court has no
jurisdiction to try the suit. State of Punjab
Punjab Security of Land Tenures Act, 1953 -- Permissible area – Selection of –
Relevant date -- Status of possession of property in the year 1953
cannot be transported and applied in the same way while considering selection
under Section 5-B -- Landlord, who makes a selection after coming into force of
the Amending Act of 1957 by Act 46 of 1957 effective from 11th December, 1957
must exercise his option in such a way that the status of holding as on the
date when he makes a selection must be seen. Chand Singh (deceased) through his LRs, and others v. The State of Punjab
Transfer of land -- Permissible area – Disposition of
3/4th share in favour of the son and retention of 1/4th share only for
landowner – Prime facie it cannot be accepted that there had been any valid
disposition and it will be a matter for adjudication before the competent
authority at the enquiry. Kehar Singh
(deceased) through his LRs v. Financial Commissioner, Haryana, Chandigarh
Suspension
of Panch/Sarpanch
Revoking of suspension – Right of Complainant -- While
revoking the order of suspension passed at the behest of a complainant, the
complainant is not required to be heard – In case the complainant is aggrieved
by what is perceived to be an unjust order of revocation, the writ jurisdiction
under Articles 226/227 of the Constitution of India is always available to him. Dhup Singh v. Phulla Ram and others,
2012(1) L.A.R. 75 (P&H Full Bench).
Tenancy
Lease – Deposits made in Bank -- Occupants did not send any
communication informing the owner about the deposits nor did the challans
showed that the deposits were being made towards rent -- There were no rent
receipts from the appellants -- Respondents did not choose to send the rents by
postal money orders -- There is no explanation as to non-deposit of the alleged
rents for the earlier period – Held, deposits were not bonafide. Dnyaneshwar Ranganath Bhandare &
Another v. Sadhu Dadu Shettigar (Shetty) & Another, 2012(1) L.A.R. 120
(SC).
Lease – Electoral Roll will not show whether a person is
occupying a premises as a tenant or as a licencee -- It may at best show that
the person was residing in the premises -- Inference drawn by the court from
the electoral roll, that respondent was not a mere licencee, is totally
illogical and unsustainable. Dnyaneshwar
Ranganath Bhandare & Another v. Sadhu Dadu Shettigar (Shetty) &
Another, 2012(1) L.A.R. 120 (SC).
Lease – No lease deed or tenancy agreement to evidence the
tenancy; nor were there any receipts for payment of any rent – Owner had given
evidence on oath that respondents were gratuitous licensees and they had never
paid any rent or other charges and his evidence was corroborated by a neighbour
– Held, the burden was on the occupants to establish that they were tenants and
not licensees. Dnyaneshwar Ranganath
Bhandare & Another v. Sadhu Dadu Shettigar (Shetty) & Another, 2012(1)
L.A.R. 120 (SC).
Tenant
Punjab Security of Land Tenures Act, 1953 – Sale of land –
Right to Pre-empt -- Landlord is a small land owner, tenant had no right to
pre-empt the sale of land – Moreover the father of the plaintiffs was ordered
to be evicted from the suit land -- Tenancy between the landlord and the father
of the plaintiffs came to an end – Suit was rightly dismissed. Ran Singh and others v. Vijay and others,
2012(1) L.A.R. 176 (P&H).
Third party right
Warabandi – Change of – Original owner has not moved
any application -- Third party has no right to make a prayer for transfer of
area. Gurmeet Singh and others v. Chief
Canal Officer (BWSU) Irrigation Department, Sector 2, Panchkula and others,
2012(1) L.A.R. 379 (P&H).
Tibba/Banjar Kadim land
Shamilat deh – Exemption from -- Petitioner is not
deemed to be in cultivating possession of Tibba/Banjar Kadim land, which has
been recorded as such in the Jamabandi for the year 1947-48 -- A presumption of
truth attaches to a Jamabandi that the land being an old fallow, i.e.
uncultivated for 8 successive harvests, cannot be in the cultivating possession
of the petitioners, before 26.01.1950 so as to exclude it from Shamilat Deh --
Petitioner is not entitled to any exemption under Sections 2(g)(viii) and 4
(3)(ii) of the 1961 Act. Gurdev Singh
(deceased) through his LRs. v. The Additional Director, Panchayats, Punjab and another, 2012(1) L.A.R. 596 (P&H DB).
Title dispute
Punjab Village Common Lands (Regulation) Act, 1961 --
Ejectment petition – In reply to the application u/s 7 of the Act, vaguely it
has been stated that the land in dispute is not shamilat deh and does not vest
in the Gram Panchayat -- Since the petitioner could not make out a prima facie
case, the Collector have not directed him to raise the question of title by
filing the title suit u/s 11 of the Act -- Even the petitioner was at liberty
to file the title suit which he did not file – Contention that once he had
raised the question of title, the Collector was bound to decide the same after
framing the issues and recording a finding on the issue of question of title,
is not tenable. Tarsem Singh v. Director
Rural Development and Panchayat (Punjab )
Exercising the powers of Commissioner, and others, 2012(1) L.A.R. 298 (P&H DB).
Title suit
Dismissal of eviction petition – Resjudicata --
Dismissal of a petition u/s 7 of the 1961 Act does not operate as resjudicata
in a subsequent petition filed u/s 11 of the 1961 Act -- Proceedings u/s 7 of
the 1961 Act are summary in nature, whereas proceedings u/s 11 of the 1961 Act
are in the nature of a suit which requires the Collector to decide the question
of title. Maghi Ram (deceased) through
his LRs. and another v. Gram Panchayat, Chirwa and others, 2012(1) L.A.R. 519
(P&H DB).
Punjab Village Common Lands (Regulation) Act, 1961 –
Eviction petition – Res-judicata -- Held, if question of title was raised in
earlier proceeding u/s 7 of the 1961 Act and question of title has been decided
then no suit would lie under Section 13-A thereafter. Ram Saroop @ Ram Swarup v. Financial Commissioner and Principal
Secretary, Haryana, Development & Panchayat Department and others, 2012(1)
L.A.R. 468 (P&H).
Resjudicata -- Adjudication on a question of title,
pursuant to a petition filed u/s 11 of the 1961 Act operates as resjudicata in
a subsequent petition pertaining to the same land and between the same parties
-- Collector and the Appellate Authority, therefore, had no jurisdiction to
entertain the petition and pass orders. Maghi
Ram (deceased) through his LRs. and another v. Gram Panchayat, Chirwa and
others, 2012(1) L.A.R. 519 (P&H DB).
Tourist lodge
Capital of Punjab (Development and Regulation) Act,
1952 -- Shop cum flat – Misuse of premises – Conversion of use of building --
Sites allotted for use as (SCFs), whereas petitioner are using F.F. and S.F. as
guest houses/lodges, which is not permissible -- Stand of the administration
that until and unless the petitioners seek firstly conversion for use as for
the office purposes and secondly to seek permission to use the office portion
for commercial purpose i.e. for tourist lodges and guest houses, the
petitioners are violating the provisions of the Act and the building is liable
to be resumed – Writ petition challenging to notices served u/s 8A of the 1952
Act dismissed with liberty to the petitioners to seek conversion of the use of
buildings in terms of the scheme framed under the Act. Gurcharan Singh v. Union Territory Chandigarh & others, 2012(1) L.A.R. 330 (P&H DB).
Transfer
of land
Surplus area – Permissible area – Disposition of 3/4th
share in favour of the son and retention of 1/4th share only for landowner –
Prime facie it cannot be accepted that there had been any valid disposition and
it will be a matter for adjudication before the competent authority at the
enquiry. Kehar Singh (deceased) through
his LRs v. Financial Commissioner, Haryana, Chandigarh
Transfer of outlet
Northern India Canal and Drainage Act, 1873 --
Jurisdiction of High Court -- Contention that land of the appellants shown as
Mark A, B and D in the site plan and new outlet is situated at lower level,
therefore, land of the appellants situated in these blocks will not be properly
irrigated – Held, High Court cannot go into the question of level of land -- It
is for the canal authorities to examine this aspect and provide an outlet to
the land of the farmers, by keeping in view the interest of better irrigation
-- They are expert in such matters.
Jagtar Singh and others v. Superintending Canal Officer, Ferozepur Canal
Circle, Ferozepur and others, 2012(1) L.A.R. 702 (P&H DB).
Writ jurisdiction -- Matter of transfer of an area
from one outlet to another by the canal authorities should be seldom interfered
with in the writ jurisdiction, particularly when the canal authorities had
taken the decision after hearing the interested parties and in the interest of
better irrigation, and also considering that while making such transfer, the
maximum land will be properly irrigated.
Mohinder Singh and others v. The State of Punjab
Transfer of Property Act, 1882 (4 of 1882)
Section 107 – Lease – Tenancy – Deposits made in Bank --
Occupants did not send any communication informing the owner about the deposits
nor did the challans showed that the deposits were being made towards rent --
There were no rent receipts from the appellants -- Respondents did not choose
to send the rents by postal money orders -- There is no explanation as to
non-deposit of the alleged rents for the earlier period – Held, deposits were
not bonafide. Dnyaneshwar Ranganath
Bhandare & Another v. Sadhu Dadu Shettigar (Shetty) & Another, 2012(1)
L.A.R. 120 (SC).
Section 107 – Lease – Tenancy -- Electoral Roll will not
show whether a person is occupying a premises as a tenant or as a licencee --
It may at best show that the person was residing in the premises -- Inference
drawn by the court from the electoral roll, that respondent was not a mere
licencee, is totally illogical and unsustainable. Dnyaneshwar Ranganath Bhandare & Another v. Sadhu Dadu Shettigar
(Shetty) & Another, 2012(1) L.A.R. 120 (SC).
Section 107 – Lease – Tenancy -- No lease deed or tenancy
agreement to evidence the tenancy; nor were there any receipts for payment of
any rent – Owner had given evidence on oath that respondents were gratuitous
licensees and they had never paid any rent or other charges and his evidence
was corroborated by a neighbour – Held, the burden was on the occupants to
establish that they were tenants and not licensees. Dnyaneshwar Ranganath Bhandare & Another v. Sadhu Dadu Shettigar
(Shetty) & Another, 2012(1) L.A.R. 120 (SC).
Turn
of the water
In view of the consolidated land, the turn of water
first will be on the basis of the principle of “First Come, First Serve” basis.
Satnam Chand and another v.
Superintending Canal Officer, Ferozepur Canal Circle and others, 2012(1) L.A.R.
34 (P&H).
Unauthorized possession
Public premises – Allotment of plots to the homeless,
Scheduled Castes, weaker sections of the society etc. – Undisputedly, the plots
allotted to the petitioners under the Scheme were never cancelled by the
competent authority -- Mutation of the ownership was sanctioned and their names
appeared in the Jamabandi -- Thereafter the Gram Panchayat was not the owner of
the plots – Held, no application either by the Gram Panchayat or the
inhabitants of the village could have been filed under the Public Premises Act
because the plots allotted to the private respondents do not fall under the
definition of “public premises”. Wattan
Singh @ Sadhu Singh and another v. State of Punjab and others, 2012(1) L.A.R.
567 (P&H DB).
Vacant land
Abadi deh – Gorah deh – Vacant land in abadi deh or
gorah deh, as on 12.02.1981, is deemed to have vested in the Panchayat being
shamilat deh. Hans Raj v. The Assistant
Collector 1st Grade, Ambala and others, 2012(1) L.A.R. 698 (P&H DB).
Vacation of building
Rent Act -- Bonafide need – Sufficient cause --
Landlord closed his tractor business in the year 2001, whereas he started his
new business only in the year 2004 meaning thereby landlord has no idea in the
year 2001 that he will be starting his new business – Held, it cannot be said that
the landlord had vacated the premises in his occupation after commencement of
the Act without sufficient cause. Ramesh
Gupta v. Ashok Kumar Jain, 2012(1) L.A.R. 289
(P&H).
Vesting of land in State
Permissible area -- Surplus area – Allotment of land –
Held, issue that the assessment of surplus itself was wrong is not an issue
that is available at the stage of distribution of the property – Landlords will
not have a right to challenge the issue of allotment of the land, after the
vesting has taken place. Dona Ram and
others v. The State of Haryana
Void order
Limitation – Law of limitation does not take away a
right but only bars the remedy -- Principle is significant in a situation where
a person's right is sought to be defeated by citing an order alleged to have
been passed against his interest -- A person defending his right against such a
contention is at all times entitled to point out that he had not been himself a
party and that he is entitled to ignore the same -- There exists no period of
limitation for a person to ignore a void order, so long as a writ is not being
filed to declare about the alleged invalidity of the order. Chand Singh (deceased) through his LRs, and
others v. The State of Punjab
Warabandi
Branch water course – Main watercourse -- It is
settled principle of law that firstly from the main watercourse, the Branch
watercourse will run -- Thereafter, the water will again flow into the main
watercourse. Krishan Lal v.
Superintending Canal Officer and others, 2012(1) L.A.R. 377 (P&H).
Branch water course – Main watercourse -- Land of the
petitioner is on the branch watercourse and is to be irrigated first, whereas,
the land of private respondent is at the main watercourse in the end -- So,
private respondent is entitled to the jhara (residue) of the water. Krishan Lal v. Superintending Canal Officer
and others, 2012(1) L.A.R. 377 (P&H).
Change of – Third party right -- Original owner has
not moved any application -- Third party has no right to make a prayer for
transfer of area. Gurmeet Singh and
others v. Chief Canal Officer (BWSU) Irrigation Department, Sector 2, Panchkula
and others, 2012(1) L.A.R. 379 (P&H).
Northern India Canal and Drainage Act, 1873 --
Temporary in nature -- U/s 68 of the Act, the Deputy Collector decides only
about the use and distribution of water -- Order fixing the Warabandi does not
become final for all times to come -- If one Warabandi is suggested at one
time, then after some time, on the application of an aggrieved person, the same
can be changed -- Fixing of Warabandi u/s 68 of the Act, is a temporary
arrangement -- It may go on for some years or it may be changed earlier. Satnam Chand and another v. Superintending
Canal Officer, Ferozepur Canal Circle and others, 2012(1) L.A.R. 34 (P&H).
Warabandi (fixing of turn of water) is a temporary
arrangement -- It can never be considered as permanent -- Petitioner cannot
claim as a matter of right that turn once fixed must continue -- Aggrieved
shareholders can at any stage raise the issue of wrong fixation of turn --
Canal Authorities have specifically framed the rules for regulating the turns
of water. Krishan Lal v. Superintending
Canal Officer and others, 2012(1) L.A.R. 377 (P&H).
Wari
Nikal – Land of private respondents comes at the end
of the main watercourse, they are entitled to Nikal – Petitioners are having
only 5 acres of land, whereas the land of private respondents is more than 13
acres, as such, the petitioners cannot consume the entire Nikal, whereas the
private respondents can use the entire Nikal as per the provisions of the law
-- Nikal cannot be given in parts – Held, private respondents have a right to
Nikal. Satnam Chand and another v.
Superintending Canal Officer, Ferozepur Canal Circle and others, 2012(1) L.A.R.
34 (P&H).
Water Course
Demolition of – Restoration of -- Concurrently finding
by Canal authorities of the existence of water course, which was dismentalled
by the petitioners -- No other alternative water course for irrigation of land
of private respondent – Canal Authorities have rightly ordered the restoration
of the water course. Bharat Singh and
others v. Divisional Canal Officer and others, 2012(1) L.A.R. 372 (P&H).
Resjudicata -- Writ was dismissed by Ld. Single Judge
by holding that principle of res judicata is not applicable in the summary
proceedings – No reasons to interfere in the order of Ld. Single Judge. Bhagirath v. The Divisional Canal
Restoration of -- Matter was got investigated by the
DCO through the Zilledar, who, after spot inspection recommended for the
restoration of watercourse – Watercourse was running since long, private respondents
were irrigating their land, they have no other watercourse to irrigate their
land -- SDCO has rightly accepted the claim, which has been upheld by DCO -- No
patent illegality or legal infirmity pointed out, in the orders -- Orders
passed by Canal authorities maintained.
Baru Ram and others v. The Sub-Divisional Canal Officer, Hisar and others,
2012(1) L.A.R. 14 (P&H).
Watercourse sanctioned under this Act or in existence
under an agreement or by prescription will be deemed to be a watercourse. Ram Kumar v. State of Haryana and others,
2012(1) L.A.R. 589 (P&H).
Watercourse left in consolidation proceedings
Watercourses which had been carved out during
consolidation as per the scheme approved by the residents of the village, will
be deemed to be left out under the agreement and are sanctioned watercourses --
Authorities are bound to restore such watercourses under the provisions of
Section 24 of the Act -- Watercourse has been running for more than 20 years
will also come under prescription. Ram
Kumar v. State of Haryana and others, 2012(1) L.A.R. 589 (P&H).
Will
Minor discrepancies -- Minor discrepancies in the
depositions of attesting witnesses -- Depositions further find corroboration
from the deposition of fingerprint expert – Will was executed by deceased in
favour of defendants, who are her brothers and their sons -- Moreover, it has
come in evidence that after death of her husband, she had started residing with
her brother and their sons as she was being harassed by brothers of her husband
-- She had to contest various suits with brothers of her husband -- She
remained alive for four years after execution of Will -- Will is also
registered one – Ld. Lower courts upheld the Will, which is not illegal. Charan Singh and another v. Amar Singh and
others, 2012(1) L.A.R. 608 (P&H).
Proof of -- Mere registration of Will does not prove
the execution and validity of the Will -- Will whether registered or
unregistered needs to be proved as per law. Tarsem Singh and others v.
Ujjwal Deep Singh Soora and another, 2012(1)
L.A.R. 636 (FC Pb.).
Sound disposing mind – Proof of – Doctor, who had
issued a certificate Ex.DW2/A shows that deceased was treated by him as OPD
patient and that at that time she was suffering from major depressive order --
However DW2, Doctor deposed that at that time when this OPD slip was issued,
other Doctor was Psychiatrist in the hospital and he could not say as to since
how long she was suffering from the disease -- No other entry in the register
except the said entry -- Even the said OPD slip was not produced -- Even it was
not mentioned as to what medicine was prescribed -- Hence, it was rightly held
by both the courts below that appellants have failed to prove that deceased was
suffering from some major disease and that she was not in sound disposing mind
when Will was allegedly executed by her in favour of defendants. Charan Singh and another v. Amar Singh and
others, 2012(1) L.A.R. 608 (P&H).
Work place 20 KM away
Effect of -- Appointment of Lambardar – Appellant is
serving as Helper in Warehousing Corporation, which is 20 Kilometres away from
the village, and in that situation, he will not be available to the villagers. Kuldip Singh v. Financial Commissioner
(Appeals-II), Punjab, Chandigarh
Writ jurisdiction
Appointment of Lambardar – Choice of Collector – After
considering the respective merits and demerits of the candidates, the District
Collector appointed private respondent as Lambardar – Choice of the Collector
in the matter of appointment of village Lambardar should not normally be
interfered -- Orders, containing valid reasons, cannot possibly be interfered,
while exercising the limited jurisdiction of this Court under Articles 226/227
of the Constitution of India, unless and until, the same are illegal and
perverse. Siri Ram v. Financial
Commissioner, Punjab and others, 2012(1) L.A.R. 7 (P&H).
Punjab Municipal Act, 1911 -- House tax assessment –
Appeal -- Nature of property, whether it is rented out or in self occupation,
present market value and rental income, require the evidence -- Only the
appellate authority can determine such questions of fact based on the evidence
– Petitioner has right to appeal, it cannot legally be permitted to
ignore/bye-pass these statutory remedies under the garb of provisions of
Articles 226/227 of the Constitution of India. Punjab Alkalies & Chemicals Limited v. The Municipal Council,
2012(1) L.A.R. 1 (P&H).
Transfer/Shifting of outlet – Matter of transfer of an
area from one outlet to another by the canal authorities should be seldom
interfered with in the writ jurisdiction, particularly when the canal
authorities had taken the decision after hearing the interested parties and in
the interest of better irrigation, and also considering that while making such
transfer, the maximum land will be properly irrigated. Mohinder Singh and others v. The State of Punjab
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