Inder Singh vs Financial Commissioner and others

J.M. Tandon, J.

Inder Singh petitioner approached the Rehabilitation Department for the transfer of urban evacuee land bearing Khasra Nos. 17/8/1/2, 8/2 and 8/4 situate in the revenue estate at Shahzada Nangal, Tehsil and District Gurdaspur, as a sublessee under rule 34C of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (hereafter the Rules). The Managing Officer declined the transfer vide order dated February 23, 1973. The petitioner filed an appeal which was rejected vide order dated May 17, 1973. The revision filed by the petitioner was, however, accepted and the case was remanded for fresh decision. The Managing Officer thereafter held that the petitioner was in continuous occupation of the land in dispute since 1956 and was further entitled to the transfer thereof at the assessed price. The Settlement Commissioner agreed with the report of the Managing Officer and allowed the transfer of the land in dispute to the petitioner at the assessed price. Gurbax Singh respondent who had in the meantime purchased the land in open auction held on August 21, 1967, filed a revision against the order of the Settlement Commissioner and the Chief Settlement Commissioner vide order dated January 11, 1979 (P.2) set aside the order of the Settlement Commissioner holding that the petitioner had not been in continuous possession of the land since January 1, 1956. The sale by auction in favour of Gurbux Singh respondent was upheld. The petitioner filed a petition under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act (hereafter the Act) which was dismissed by order dated October 23, 1979 (P.3). The petitioner has assailed the orders P.2 and P.3 in the present writ petition.

The petitioner had filed a suit for a declaration against Budha Singh on August 22, 1978, that he had remained in possession of the land in dispute from Kharif 1961 to Rabi 1963. Budha Singh admitted the claim of the petitioner and the later''s suit was decreed by Subordinate Judge, Gurdaspur, vide order dated December 17, 1973 (P.1). The Financial Commissioner while disposing of the petition under Section 33 of the Act held that the order of the civil Court was without jurisdiction inasmuch as the civil court could not adjudicate upon the question of correction of Khasra Girdawari entries under section 158 of the Land Revenue Act.

The learned counsel for the petitioner has conceded that the civil court has no jurisdiction to direct the correction of the entries in the revenue records, including the Khasra Girdawari under section 158 of the Land Revenue Act. He has, however, argued that the civil Court vide order dated December 17, 1973, did not direct the correction of the Khasra Girdawari entries. The Civil Court granted a declaration to the petitioner against Budha Singh that the petitioner had cultivated the land in dispute from Kharif 1961 to Rabi 1963. The argument proceeds that the order or decree of the civil court as it stands cannot be held to be ultra vires. The contention of the learned counsel for the petitioner must prevail.

It has been held in Mangal Singh and another v. Nihal Singh, 1977 P.L.J. 1, that it is provided in section 45 of the Punjab Land Revenue Act, 1887, that if any person considers himself aggrieved as to any right of which he is in possession by any entry in a recordofrights or in an annual record, he may institute a suit for a declaration of his right under section 42 of the Specific Relief Act, 1963. The ratio of this authority is applicable to the instant case. The petitioner being aggrieved by certain entries in Khasra Girdawari pertaining to Kharif 1961 to Rabi 1963 could file a suit for a declaration and this is what he did. The decree passed by the trial Court is, however, binding inter se between the parties. Gurbax Singh who had purchased the land in 1967 in an auction was not impleaded as a party. The Rehabilitation Department was also not made a party in that suit. Technically speaking, the declaratory decree obtained by the petitioner against Budha Singh is neither binding on the Rehabilitation Department nor on Gurbux Singh respondent. It may also be added that Budha Singh himself consented to suffer the declaratory decree against him. The collusive declaratory decree obtained by the petitioner against Budha Singh is at best a statement by the latter in favour of the former.

The learned counsel for the petitioner has argued that whatever the evidentiary value of the decree obtained by the petitioner against Budha Singh may be it has not been taken into consideration by the Financial Commissioner in order P. 3. The argument proceeds that the order of the Financial Commissioner P.3 may be set aside and the case may be remanded for a fresh decision. I am impressed by this contention. The Financial Commissioner has not taken into consideration the order or declaratory decree obtained by the petitioner against Budha Singh by holding that it is ultra vires. It has already been held above that the order (P.1) of the Civil Court is ultra vires. Under these circumstances, the order of the Financial Commissioner P.3 cannot be sustained.

In the result, the writ petition is accepted and the order of the Financial Commissioner P.3 is set aside. The case is remanded to the Financial Commissioner for deciding the application of the petitioner under Section 33 of the Act afresh in the light of the above observations. It will be open for the parties to raise all objections before the Financial Commissioner.

The parties through their counsel are directed to appear before the Financial Commissioner on February 21, 1983.