Allotment of flat -- Rs.13,55,000/- (95%), paid -- Possession delayed -- Complainant held entitled for compensation of Rs.one lac -- Builder directed to hand over possession of the allotted flat to the complainant, within 6 months, on payment of the remaining amount of price by him (complainant) -- Interest @ 12% p.a. on the amount of Rs.13,55,000/- from 1.8.2007, till the delivery of possession of the flat (excluding the period from 30.01.2007 to 01.05.2008) allowed with cost of litigation to the tune of Rs.10,000/- to the complainant.

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                   UNION TERRITORY, CHANDIGARH.

                                                          Complaint Case No.   58 of 2011      

                                                    Date of institution:         5.08.2011

                                                    Date of decision  :       16.01.2012

Sumit Kumar S/o Sh.Bishamber Das, R/o H.No.286, Anand Vihar, Baltana, Zirakpur.     

                                                                                    …Complainant

                                       Versus

1.              M/s Silver City Housing and Infrastructure Ltd. Regd. Office, # 89, Sector 8-A, Chandigarh through its Managing Marketing.

2.             M/s Silver City Housing and Infrastructure Ltd., NAC, Zirakpur, Chandigarh-Ambala  Highway (N.H.22) District Mohali, Punjab. 

                                                                                     … Opposite Parties. 

 

                      Complaint U/s 17 of Consumer Protection Act,1986.

                             

Present:      Sh.Arun K. Kaundal, Advocate, for the complainant.

                   Sh.Surinder Gera, Advocate for the opposite parties. 

                     

         

           CORAM:     Justice Sham Sunder, President

                                 Mrs. Neena Sandhu, Member

                               Sh. Jagroop Singh Mahal, Member

                     

                         

Per Justice Sham Sunder , President

             The facts, in brief, are  that the opposite parties advertised the launch of residential apartments project, in the name of “Silver City Themes” at Village Bhankarpur, M.C.Derra Bassi,  as an exquisitely designed luxurious township endowed with leisure, bliss, amusement and satisfaction, on the outskirts of  Chandigarh, away from the noise of the city, and as a value living for its residents.  The complainant applied for the residential apartment, in the said project of the opposite parties, and submitted an application form for the same on 10.1.06, vide receipt No.06999 after making payment of Rs.1,45,000/- in cash.  The booking of the complainant was confirmed, by the opposite parties, vide letter dated 8.2.2006.  The complainant was allotted flat No.149-A, Ist floor, Block-V, Category B-2, measuring 1145.04 sq. feet of super covered area, with car parking of 112 sq. feet at a total  price of Rs.14.50 lacs, after giving a special discount of Rs.50,000/- in ‘Silver City Themes’. The payment of Rs.1,45,000/- was duly acknowledged, by the opposite parties, in the said confirmation letter dated 8.2.2006 annexure C3.  An agreement dated 8.2.2006,  was entered into between the parties.  The possession was to be delivered, as per the terms and conditions of the agreement dated 8.2.2006, on or before 31.7.2007.  The complainant deposited a total sum of Rs.13,55,000/- i.e. to the extent of 95% of the amount of price, but the opposite parties, did not deliver the possession.  In the letter dated 4.10.2008, the opposite parties assured that possession of the flat shall be handed over, to the complainant on 30.11.2009. Another letter dated 15.5.2009,  was sent by the opposite parties, whereby it was assured that  possession of the flat shall be handed over in 12 to 15 months.  It was stated that the opposite parties, however, did not adhere to the commitment, made by them, as per the terms and conditions of the agreement and the letters, referred to above.  It was further stated that the complainant had to take accommodation, on rent, for which he was paying Rs.8,000/-  per month.  The complainant sent a number of letters, and reminders, to the opposite parties, for  delivery of possession, but to no avail.  It was further stated that non-delivery of possession on 31.07.2007, as per the commitment, made in the agreement dated 08.02.2006, by the opposite parties, amounted to unfair trade practice, as also deficiency, in rendering service.  When the grievance of the complainant, was not redressed, left with no alternative, a complaint  under Section 17 of the Consumer Protection Act,1986(hereinafter to be called as the Act only),  for  directing the opposite parties to hand over the possession, to the complainant, of the flat; to pay interest @ 12% on the amount of Rs.13,55,000/- ,  till the delivery of possession;, to pay rent @ Rs.8,000/- per month from 31..7.2007, being paid by him (complainant) to his landlord; to pay compensation in the sum of Rs.5 lacs, to pay damages in the sum of Rs.5 lacs; and to pay litigation costs to the tune of Rs.35,000/-.  

2.           In the written reply, filed by the opposite parties, it was pleaded that the complainant did not fall within the definition of a consumer, as the property sought to be purchased, was for commercial purpose. It was further pleaded that the complainant had no locus standi, to file the complaint. It was admitted that the complainant booked a flat. It was also admitted that he deposited a total sum of Rs.13,55,000/- being 95% of the amount of the price of the flat.  The execution of the agreement, and allotment of flat,  were also admitted. It was stated that the construction could not be completed on account of the stay of operation of Annexure R7 dated 17.1.2006, containing the guidelines for setting up of residential colonies by the promoters, in the State of Punjab, granted by the Hon’ble High Court of Punjab and Haryana in C.W.P No.18632 of 2005 Dharam Chand & another Vs the State of Punjab & Ors. It was further stated that the stay was vacated on 1.5.2008.  It was, thereafter, that the Punjab Pollution Control Board vide letter dated 19.9.2008  issued ‘No Objection Certificate’.  It was further stated that, thereafter, the construction of the project was re-started.   It was further stated that, thus, the delay in construction, was beyond the control of the opposite parties and, as such, they were entitled to extension of time according to clause 23 of the agreement dated 8.2.2006.  It was further stated that since the complainant did not make payment of the last and final instalment of 5%, he was not entitled to possession of the flat and interest on the amount deposited  It was denied that the opposite parties indulged into unfair trade practice and were deficient, in rendering service. The remaining averments, were denied, being wrong.

3.      The parties led evidence,  in support of their case.

4.         We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

5.           An objection was taken by the opposite parties, in the written reply, that the flat was booked and sought to be purchased, by the complainant for commercial purpose, and, as such, he did not fall within the definition of ‘consumer’.  The said objection appears to be misconceived.  In the complaint, the complainant, in clear-cut terms, stated that the opposite parties, advertised  the launch of residential apartments project. It was, in pursuance of this advertisement, that the complainant applied for the allotment of a residential apartment, vide annexure C2.  No evidence was produced, on record, by the Opposite Parties, that the apartment agreed to be purchased, by the complainant, was for running any commercial activity, with a view to generate profit. Once a residential apartment was booked, by the complainant and he paid 95% of the price thereof, the only presumption that could  be drawn, was that it was for residence and not for running any commercial activity. Under these circumstances, the objection referred to above, at outset of this para, being devoid of merit, must fail, and the same stands rejected.

6.             The last instalment of 5%,  was to be paid, by the complainant on or before 31.7.2007, as per the agreement annexure C4, when the possession of the flat was to be delivered.  Admittedly, the possession was not delivered to the complainant on 31.7.2007, the date committed by the opposite parties. By that time, no progress in construction had taken place. It is evident from annexure C12, letter dated 4.10.2008, that after the vacation of stay, and grant of ‘no objection certificate’  on 19.9.2008 by the Punjab Pollution  Control Board, the opposite parties had allegedly restarted the construction of their project.  It was, intimated vide this letter that the last  instalment of 5% instalment be deposited.  There is another letter C13,  dated 15.5.2009, whereby the complainant was intimated, by the opposite parties, that their endeavour was to hand over the possession in 12 to 15 months. The opposite parties neither adhered to the original date of delivery of possession i.e. 31.7.2007, nor to the time schedule mentioned in letters C12 & C13.  The opposite parties, collected money from the prospective vendees, including the complainant, knowing fully well  that, at the time of booking of the flat,  they did not have got requisite  permissions/approvals for raising construction. By making false promise to the complainant to hand over  possession by 31.7.2007, or even by the extended time, intimated vide letters C12 & C13, the opposite parties, fleeced him of his hard earned money.  The opposite parties have not delivered possession of the flat till date. The complainant is, thus, entitled possession of the flat. The opposite parties were, thus,  not only deficient, in rendering service, but also indulged into unfair trade practice.

7.         It was submitted by the Counsel for the opposite parties, that the last instalment of 5%, towards the price of flat, which was due to the opposite parties, from the complainant on 31.07.2007, was not paid by him and, as such, he committed default.  He further submitted that he was, thus,  not entitled to possession. The submission of the Counsel for the opposite parties, in this regard, does not appear to be correct. As stated above, till the filing of the complaint , and even till date,  possession of the flat, has not been delivered to the complainant.  When there was no progress in  construction of the project, nor there was any hope of delivery of possession of the flat to the complainant, by the opposite parties, the former could stop making payment of the last instalment. He, therefore, could not be said to have committed  any default.   In Prasad Homes Pvt. Ltd. Vs E.Mahender Reddy & Ors. 1(2009)CPJ 136 (NC),  no development work had been  carried out, at the site. Thus, the   payment of further  installments, was stopped, by the complainant. It was, in these circumstances,  held by the Hon’ble National Commission, that the builder could  not be allowed to take shelter, under any clause of the agreement, to usurp money, deposited by the complainant. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. The submission of the Counsel for the opposite parties, in this regard, being without merit, must fail, and the same stands rejected.

8.             It was next  submitted by the Counsel for the opposite parties, that the construction could not be undertaken, due the circumstances, beyond the control of the opposite parties. He took shelter under Clause 23 of the agreement C-4,    in support of his contention,  which reads as under:-

“The allottees agree that sale of Apartment/dwelling unit is subject of force majeure clause which interalia include delays on account of non availability of steel and/or other building materials, or water supply or electric power or slow down strike or due to a dispute with construction agency employed by the company/promoter civil commotion, militant action or by reasons beyond the control of the company/promoter and in any of the aforesaid events the company/promoter shall be entitled to a reasonable corresponding extension of the time of the delivery of possession of the said Apartment/dwelling unit on account of force majeure circumstances. The company/promoter as a result of such contingency arising reserves the right to alter or vary the term and conditions of allotment or if the circumstances beyond the control of the company/promoter so warrant the company/promoter may suspend the scheme for such period as it may consider expedient and no compensation of any nature whatever can be claimed by the allottee for the period of delay/suspension of scheme. Inconsequence of the company/promoter abandoning the scheme the company/promoter liability shall be limited to the refund of the amount paid by the allottee without any interest or compensation whatsoever.”

9.           The High Court of Punjab & Haryana in Civil Writ Petition No.18632 of 2005 titled as ‘Dharam Chand and another Vs. State of Punjab and others’,  vide order dated 30.01.2007, stayed the operation of letter dated 17.01.2006  (Annexure R-7), vide which the Punjab Pollution Control Board laid down the guidelines for setting up, colonies by the Promoters. Vide order dated 01.05.2008 Annexure R-11, the order dated 30.01.2007, was vacated. There is nothing, on record, that from 8.02.2006, when C-4 agreement, was executed, between the parties, upto 29.01.2007( stay having been granted on 301.2007), no objection was obtained from the Punjab Pollution Control Board and the construction activity, was undertaken, by the opposite parties, though there was no stay, during this period. The stay, as stated above, was vacated on 01.05.2008. There is also, no document, on record, to establish that from 02.05.2008, until the filing of the complaint, any construction was carried out, by the opposite parties, at the site. Even if, the period of stay aforesaid, is excluded, the opposite parties, were required to undertake the construction of the project, before the stay was granted and after the same was vacated.  When there was no progress, in construction, even after the vacation of stay, left with no alternative, the complainant had to file the instant complainant, seeking possession, interest on the amount deposited, rent paid by him and compensation.   Even according to clause 11 of annexure R-5, dated 03.01.2006, vide which permission for raising construction, was granted to the opposite parties, by Nagar Council Dera Bassi, Patiala, it was made clear that  construction could be started only after obtaining ‘No Objection Certificate’ from the Ministry of Environments & Forests.   There is nothing on  record, that this condition was fulfilled by the opposite parties. Vide annexure R9 ‘No Objection Certificate’ from pollution angle, was refused by the Punjab Pollution Control Board.  It was, vide letter annexure  R12 dated 19.9.2008 that ‘No Objection Certificate’  was granted to the opposite parties.  This proves that, at the time of execution of  agreement C4 ‘No Objection Certificate’, from the Punjab Pollution Control Board had  not been obtained by the opposite parties.  In the absence of ‘No Objection Certificate’ from the Punjab Pollution Control Board, no construction could be raised.  In  Kamal Sood Vs. DLF Universal Ltd., III(2007) CPJ-7 (NC),   it  was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, and schematic building plan. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction for construction etc., in the first instance, and, thereafter, recover the consideration money, from the purchasers of the flats/building. The ratio of law, laid down, in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. As stated above, from 8.2.2006, when the agreement annexure C-4, was executed, between the parties, upto 29.01.2007, and from 02.05.2008 onwards, there was no legal hitch, in the way of the opposite parties, to raise construction, but they did not do so. Under these circumstances, the opposite parties could not   take shelter under the force majeure Clause 23 of the agreement C-4. It could not be said, that the construction activity, could not be undertaken, wholly on account of the circumstances, beyond the control of the opposite parties .These acts also amounted to deficiency in rendering service and indulgence into unfair trade practice on the part of the opposite parties.  

10.                   The next question, that arises for consideration, is, as to whether, the complainant is entitled to interest, if so, at what rate and from which date.  The hard earned money to the tune of Rs.13,55,000/- being 95% (towards the price of the flat, deposited by the complainant) was illegally and improperly withheld by the opposite parties atleast from 1.8.2007 onwards(excluding the period from 30.1.2007 to 1.5.2008, when there was stay granted by the Hon’ble High Court).  Had this amount been invested, by the complainant, in some business or deposited, in the bank, he would have certainly earned handsome returns thereon. He was, thus, caused financial loss. The complainant, is, therefore, entitled to interest @ 12% p.a. on Rs.13,55,000/- from 1.8.2007 till possession of the flat is delivered (excluding the period from 30.1.2007 to 1.5.2008).

11.        The next question, that arises for consideration, is, as to whether, the complainant is entitled to rent claimed by him.  In the complaint, no doubt, the complainant stated that he took, on rent, some property and started paying rent @ Rs.8000/- per month. He, however, did not produce the receipts of rent showing payment thereof alongwith the complaint, or during the course of evidence, adduced by him.  However, alongwith the replication he submitted the photocopies of receipts allegedly issued by Sh.P.C.Goel. Photocopies of some receipts show payment of  rent @ Rs.6000/- per month and the  photocopies of other receipts showing the payment of rent @ Rs.8000/-. The number and location of the premises for which the rent was allegedly paid, are not written in the receipts. In case, these receipts were available with the complainant, at the time of filing the complaint, he should have produced the same at that time. No sanctity is attached to these rent receipts, especially when the  affidavit of the person, who allegedly issued the same was not produced, nor signatures, on the same, were identified by the complainant. The complainant is, thus, not entitled to rent claimed by him.  

12.       The next question, that arises for consideration, is, as to whether, the complainant is entitled to compensation, if so, to what extent.  The possession of the flat was to be delivered to the complainant on or before 31.7.2007. As stated above, he has already made payment of a sum of Rs.13,55,000/- towards the price of flat which comes to 95% , on the assurance of the opposite parties,  that he would be delivered possession of the flat within the stipulated  time, but the same has not been delivered till date.  For all these years, the complainant, underwent tremendous physical harassment and mental agony.  In these circumstances, it would be just and fair, if the complainant, is awarded compensation of Rs.one lac. It is, therefore, held that the complainant is entitled to compensation of Rs.one lac. 

13.       For the reasons, recorded above,  the  complaint is partly accepted  with costs,  in the following manner ;

(i)                 The opposite parties are directed to hand over possession of the allotted flat to the complainant, within 6 months,  from the date of receipt of a copy of the order, on payment of the remaining amount of price by him (complainant). .

(ii)               The opposite parties are further directed to pay interest @ 12% p.a. on the amount of Rs.13,55,000/- from 1.8.2007, till the delivery of possession of the flat by them to the complainant (excluding the period from 30.01.2007 to 01.05.2008)..

(iii)             The opposite parties are further directed to pay compensation to the complainant in the sum of Rs.one lac.  

(iv)             The opposite parties shall also pay cost of litigation to the tune of Rs.10,000/- to the complainant.   

(v)               The amount of compensation, shall be paid within 30 days, from the date of receipt of a copy of the order, failing which, the opposite parties shall be liable to pay interest @12% p.a. on this amount from today, till realization, besides costs. 

14.        Certified Copies of this order be sent to the parties, free of charge.

15.        The file be consigned to the Record Room.

                                             

                                                                                                Sd/-

Announced                                                   (JUSTICE SHAM SUNDER)

January 16,    2012                                                                   President

                                                                                                              Sd/-

                                                                                (NEENA SANDHU)

                                                                                                          Member

                                                                                       

                                                                                                              Sd/-

                                                                            ( JAGROOP SINGH MAHAL)

js                                                                                             Member

Plot allotted by HUDA was in litigation, alternative plot allotted, extra amount was demanded, demand not tenable :

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 REVISION PETITION NO. 4593 OF 2009

 (Against the order dated 11.09.2009 in Appeal No. 1172 of 2003 of the

Haryana State Consumer Disputes Redressal Commission, Panchkula)

                                     

1.Haryana Urban Development Authority

   Panchkula through its Chief Administrator,

   Sector-6, Panchkula, Haryana

2.The Estate Officer, Haryana Urban Development

   Authority, Sector 12, Faridabad, Haryana                ........ Petitioner (s)      

        

 Vs.

Shyam Sunder

S/o Shri Mahabir Prasad,

R/o House No. 1051, Sector 28,

Faridabad at present residing at

Halu Bazar, Gali Thagian, Bhiwani,

District Bhiwani, Haryana

                                                                                …….Respondent (s)

BEFORE:

      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

      HON’BLE MR. VINAY KUMAR, MEMBER

       

For the Petitioner                  :     Mr. R.S. Badhran, Advocate 

 

For the Respondent             :     Mr. Gagan Deep Sharma, Advocate

                                                                                                       

                                                      

Pronounced on_20^th July, 2012

ORDER

1.      The long and short of the above detailed revision petition is this.  Shyam Sunder, respondent/complainant was allotted plot No. 732, Sector 46, Faridabad.  Since that plot was under litigation, the same could not be delivered to the complainant.  Consequently, the petitioner was allotted alternative plot bearing No. 850, Sector 45, Faridabad.  Thereafter, the petitioner demanded an extra amount of Rs.66,725/- on 5.5.2000.  Both the courts gave concurrent findings by allowing the complaint and quashing the above said demand notice.

2.      We have heard the learned counsel for the parties.  Learned counsel for the petitioner vehemently argued that this was a condition specified in the document regarding alternative plot itself that the complainant would have to pay additional charges.  He opined that under the circumstances, the order passed by HUDA is correct.  He explained that it was beyond the control of HUDA to give the same plot to Shri Shyam Sunder.

3.      We find it extremely difficult to countenance these contentions.  It stands proved that the petitioner-HUDA was unable to give the first plot to the petitioner.  It is difficult to hold that the inability of the petitioner would cost the complainant a sum of Rs.66,725/-.  It is the bounden duty of the petitioner to give the alternative plot.  There is no inkling that the alternative plot measured more than the previous plot.  The complainant is suffering from this problem for the last 22 years.  He had applied for a plot on 10.5.1990.

4.      Learned counsel for the respondent also brought to our notice that new plot which has now been shown to the complainant is also not acceptable to him because a high powered wire connection runs over the plot itself.  However, we have no concern with that. That matter is between the parties.  So far as this case is concerned, the petitioner is not supposed to pay the above said amount for the alternative plot.  The plot should have been given within two years from 1990.  The petitioner is also guilty for the above said delay instead of helping the complainant, he is being harassed. ‘The law hath not been dead though it has slept.  It is also well said that the ‘law is the backbone which keeps man erect’.  The petitioner cannot charge more amount for which the original plot was allotted.  The order passed by the fora below are flawless.

The revision petition is dismissed with cost assessed in the sum of Rs.25,000/- to which the respondent is entitled.

..………………Sd/-…..………

     (J.M. MALIK, J.)

      PRESIDING MEMBER

                                                               

  ……………Sd/-….……………

                                                        (VINAY KUMAR)

                                                                            MEMBER

Naresh/1

Local Acts Reporter 2011(3) L.A.R. ............ Latest Laws

January Part

LAR

SUBJECT  INDEX

Acquisition of land

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

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).

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).

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).

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 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 – 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).

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).

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).

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).

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).

Choice of Collector

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 – 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 – 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 – 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).

Constitution of India

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).

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).

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, and another, 2012(1) L.A.R. 16 (P&H).

Delivery of possession

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 and others, 2012(1) L.A.R. 24 (P&H).

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 and others, 2012(1) L.A.R. 4 (P&H).

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).

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948)

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 and others, 2012(1) L.A.R. 4 (P&H).

East Punjab Urban Rent Restriction Act, 1949 (III of 1949)

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).

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).

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).

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).

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).

Haryana Canal and Drainage Act, 1974 (29 of 1974)

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).

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, and another, 2012(1) L.A.R. 16 (P&H).

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, and another, 2012(1) L.A.R. 16 (P&H).

Haryana Public Premises and Land (Eviction and Rent Recovery) Act, 1972 (24 of 1972)

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 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).

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).

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).

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).

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).

Land Acquisition Act, 1894 (1 of 1894)

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

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).

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 and others, 2012(1) L.A.R. 24 (P&H).

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 and others, 2012(1) L.A.R. 24 (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 and others, 2012(1) L.A.R. 24 (P&H).

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).

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 and others, 2012(1) L.A.R. 24 (P&H).

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).

Northern India Canal and Drainage Act, 1873 (8 of 1973)

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).

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 – 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).

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).

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

Opportunity of hearing

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 & Others, 2012(1) L.A.R. 106 (SC).

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).

Partition of land

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).

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).

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, and another, 2012(1) L.A.R. 16 (P&H).

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, and another, 2012(1) L.A.R. 16 (P&H).

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).

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 and others, 2012(1) L.A.R. 4 (P&H).

Presumption of truth

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).

Punjab Co-operative Societies Act, 1961 (25 of 1961)

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).

Punjab Entertainment Duty Act, 1955 (16 of 1955)

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).

Punjab Land Revenue Act, 1887 (XVII of 1887)

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, 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 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 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 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, 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 34,35 – 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 and others, 2012(1) L.A.R. 24 (P&H).

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 and others, 2012(1) L.A.R. 24 (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 and others, 2012(1) L.A.R. 24 (P&H).

Punjab Land Revenue Rules

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 – 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, 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).

Punjab Municipal Act, 1911 (3 of 1911)

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).

Punjab Panchayati Raj Act, 1994 (9 of 1994)

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 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).

Punjab Security of Land Tenures Act, 1953 (10 of 1953)

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, and another, 2012(1) L.A.R. 16 (P&H).

Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961)

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 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).

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).

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).

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).

Report of Collector

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 & Others, 2012(1) L.A.R. 106 (SC).

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 & Others, 2012(1) L.A.R. 106 (SC).

Restoration of Water course

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).

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).

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

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).

Shamilat deh

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).

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).

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, and another, 2012(1) L.A.R. 16 (P&H).

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, and another, 2012(1) L.A.R. 16 (P&H).

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).

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, and another, 2012(1) L.A.R. 16 (P&H).

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).

Warabandi

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).

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

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).

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).