Manjit Kaur vs Collector, Patiala

K.S. Janjua, FC.

This is a petition under Rule 14 of the Nazool Land (Transfer) Rules, 1956, against the order (1.12.95) passed by the Collector, Patiala.

The brief facts of this case are that State Govt. allotted Nazool land measuring 812 bighas 4 biswas comprised in Khatauni No. 51/88 to 96 khasra Nos. 369 to 385, 406, 423, 693 to 828, 1513 to 1536, 1564 to 1569/1, 1570 and 1571 situated in village Basoli Tehsil Rajpura on 15.5.58 to the Scheduled Castes Land Owning Cooperative Society Ltd., Basoli (hereinafter called the Society). Sale Certificate was issued to the Society on 23.2.82 on the condition that Society shall not alienate the land for the period of 10 years. Its alienation thereafter shall be restricted only to the members of Scheduled Castes.

The Society allegdly in the interest and welfare of its members leased out the part of this land bearing khasra Nos. 51/92106 130 131 132 khasra Nos. 703 713, 720 743, 794, 753, 765, 766, 769, 770, 771, 773 913, 792 795 822, 714 717 measuring 389 bighas 17 biswas (Resolution No. 3 dated 6.7.85) to the petitioner vide lease deed executed and registered on 10.12.85 before Sub Registrar, Dera Bassi for a period of 40 years through Labh Singh son of Punjab Singh, Sheo Ram son of Mansa Ram and Sharda Ram son of Kabul, duly authorised persons vide this resolution. After the petitioner took the possession of the land, she got the tree planted in the said land. The Collector cancelled the allotment on 1.2.1995 for the violation of conditions of allotment under the said Rules.

Sh. H.N. Mehtani, Advocate, counsel for the petitioner argued that the society leased out the part of this land measuring 389 bighas 17 biswas to the petitioner vide resolution No. 3 dated 6.7.85 vide lease deed (10.12.85) against valuable consideration for a period of 40 years through Labh Singh etc. The Collector has cancelled the allotment of land in favour of society on 1.2.95 finding the violation of Rule 7.1 of the Nazool Land (Transfer) Rules, 1956 without issuing any notice to the petitioner. By passing the impugned order without affording an opportunity of hearing to the petitioner, the Collector has grossly violated the principles of natural justice and the order was liable to be set aside, the counsel contended that the impugned order is totally contrary to law and provisions of the Rules. The impugned order is purported to have been passed on the basis of violation of Rule 7 of the Rules which read as under :

Bar of alienation

1) No Cooperative Society to which land has been transferred shall at any time before the last instalment of price has been paid except with the express permission in writing of the State Government alienate whether permanently or temporarily, the nazool land transferred to it.

Provided that in granting permission the State Government shall have regard to the general interests of the Cooperative Society.

2) Where State Government permits a Cooperative Society to permanently alienate the nazool land transferred to the society, the provisions of Rule 4 shall not apply in respect of such land."

This rule clearly holds that the permission of the State Govt. to alienate the nazool land is required only if the transfer is made before the last instalment of price has not been paid. In the present case the last instalment of the price of the land allotted to the respondent No. 2 was paid by 1.2.67. Therefore, the Society was not required to take permission of the State Govt. before granting the lease of the land in dispute to the petitioner. An absolute right and title in the land allotted to the Society had passed to it. The respondentSociety was full owner of the aforesaid nazool land and was free to deal with it in any manner. The impugned order, is, therefore, not sustainable in the eyes of law as the Society did not permanently sell/transferred the land to the petitioner and only leased out the land for 40 years which is not the violation of Rule 7.1 of the Rules. The powers of cancellation of allotment of Nazool Land has been given to the Collector under Rule 9(A)(i) of the Rules only in the event of failure to make the payment of two instalments of the price. In this way the Collector has exceeded his jurisdiction in cancelling the transfer of land on lease to the petitioner. The counsel averred that High Court has consistently laid down the law that no orders adverse to the interest of a person can be passed without affording him/her an opportunity of being heard. In any event the land in dispute has been validly and legally leased out to the petitioner in accordance with law the Collector could not cancel the said lease. If any breach of the condition of the lease is committed the Society can approach the civil court for cancelling the lease. The counsel urged that the Collector became functou officio when the Nazool Land had been allotted/transferred to the Society under the rules and last instalment towards the price of the land was paid by the Society. The revision petition be accepted and impugned order 1.2.95 also be set aside and lease of land for 40 years be affirmed.

Sh. Rai Singh Chauhan, Advocate, and Sh. R.K. Sharma, Advocate counsel for the Society filed an application on 11.8.97 for vacation of an exparte stay order 4.8.97 of this court. The counsel pleaded that Society had deposited the amount as assessed and possession of said land was delivered and thereafter the name of Society was incorporated in all the jamabandis right from the day when land was allotted and till date Society is in possession of land which is clear from the jamabandi for the year 199091. The Collector Patiala without issuing notice to the Society cancelled the allotment on 1.2.95. A Civil Writ Petition No. 5259/96 "Harijan Cooperative Society village Basoli etc. versus State" was filed in which status quo with regard to the possession was ordered to be maintained by High Court on 6.4.95 and same was confirmed on 14.8.95. Said writ petition is still pending in High Court. Once the High Court has already ceased over the matter, therefore, against the same order revision petition before this court not maintainable without exhausting the proper remedy. The petitioner has nowhere disclosed all these facts as such he is not coming with clean hands and as per settled law ex parte stay order is liable to be vacated. Though the land was given on lease to the petitioner but said lease deed was never acted upon by the petitioner. The petitioner neither deposited any lease money with Society nor possession was delivered. The claim of the petitioner regarding lease deed is not based upon any cogent reason as there is no revenue record entry which prove the factum of the possession of the petitioner.

Rebutting these arguments the counsel for the petitioner submitted that stay was granted after hearing the counsel for both sides. Application for vacation was filed by Magi Ram alongwith his affidavit concealing the material facts and making allegation which prima facie amount to the contempt of this court. The petitioner has been in physical possession of the land since the time of registration of the lease deed in her favour on 10.12.85. The petitioner filed a civil suit No. 796 dated 20.10.92 for permanent injunction to restrain the Society in the Court of Addl. Civil Judge, Rajpura which was decreed in her favour on 21.11.96. Society members made statements in the court supporting the fact of Society giving lease of land on 10.12.85. Thereafter Ram Singh and other members of Society filed a suit No. 208 of 3.5.97 in the Court of Civil Judge (Jr. Division), Rajpura which has already been dismissed on 31.5.97.

Through another application 25.9.97 Bhai Dial Singh Memorial Charitable Trust, Ambala and some others through their Special Power of Attorney requested for impleading them as respondents as the Society has transferred 274 bighas 8 biswas of land to Bhai Dial Singh Charitable Trust by means of four sale deeds bearing No. 457(9389), 460(9389), 462 (9389) and 459(9389) for valuable consideration and they became the owners. Some members of the Society also sold 194 Bighas 16 Biswas to other applicants through registered sale deeds bearing No. 458(9389), 688(10489), 695(10489), 697(10489). The impugned order 1.2.95 challenged by the petitioner being illegal, is most likely to be set aside in the revision petition. For proper adjudication of the revision petition filed by the petitioner the presence of applicants in this case is necessary.

I have considered the arguments advanced by counsel for the parties and have gone through the impugned order of the Collector as well as the attached documentary evidences of this case. Counsel for the petitioner has filed a revision petition for setting aside the order of Collector (1.2.95) as the Society to whom the land in dispute was allotted on 15.5.1958, is no more owner and petitioner has taken 389 Bighas 17 Biswas on lease for 40 years through registered lease dated 10.12.85. The Collector has cancelled the allotment considering lease and sale of Society Land as violation of terms and conditions of sale certificate issued in favour of the Society on 23.2.82 within 10 years (Rule 7.1 of Punjab Nazool Land (Transfer) Rules, 1956). On application of impugned order of the Court of Collector land has been resumed and necessary entries have been made in the jamabandi for the year 199091 in favour of State in column of remarks hence petitioner is aggrieved by the said order being a lessee and applicants as vendees of the land. In the instant case it is established that Managing Committee of the Society held its meeting on 6.7.85 and passed a resolution (No. 3 of 6.7.85) before giving the said land on lease as per "Bye Laws" of the Society. The land was given to non scheduled castes because other members of Scheduled Castes were not so rich or have sources of income to maintain the land. From some sale deeds, it is also clear that some members of the Society sold their shares to the applicants Bhai Dayal Singh Memorial Charitable Trust and others subject to the condition that ownership right is delivered to the vendee at the spot and the physical possession will be taken by the vendee from the patadar Smt. Manjit Kaur. Whether the sale deeds executed at Delhi are valid or not it is matter of civil court to decide.

I am inclined to agree with the plea of counsel for the petitioner that statute allows that land can be leased to any person after payment of last instalment and permission of the Government for transfer is required only if any instalment is due, not otherwise. The Collector has no powers to interfere with the functioning of the Society as its members became the owners of the land in dispute. The word "owner" in law is a person in whom title to the property vests if the landlord executed the rent note in favour of a vendee, he would become his tenant and such vendee could be the landlord qua that owner who has executed the rent note. In the present case there is no transfer or alienation.

Most important thing in this case is that impugned order has been challenged in the High Court in CWP No. 5259 of 1996 "Harijan Cooperative Society, village Basoli versus State" in which status quo with regard to the possession was ordered to be maintained, by the High Court on 6.4.95 and same was confirmed on 14.8.95. The State Government can surely examine the interpretation of any provisions of rules and remedy the difficulty arising under rules. The Collector could refer the matter to State Govt. whose powers are being exercised by the Secretary to Govt., Revenue Department. If the Collector observed that these were transactions of irregular nature then irregular transfer are not ipso facto invalid. Where an occupancy tenant has made unauthorised transfer of his holding and landlord is successful to have alienation declared void and enter into possession, the tenant is entitled to recover possession of his tenancy in civil suit. In this case the validity of evidence documents i.e. lease deed, power of attorney, sale deeds and change of entries in jamabandi are to be dealt and challenged in the civil court. Confining myself to the limited question whether the land can be leased after full payment has been made, I find that the answer is in the affirmative. Collector''s order suffers from this infirmity in that he has not interpreted the Nazool Rules correctly. These rules do not empower him to cancel the lease deed on the ground that permission of State Govt. is required. After full payment is made as stipulated in the allotment letter, the State (through Collector) perhaps loses jurisdiction over the land. Sh. C.D. Cheema, IAS, my learned predecessor has laid down the law in such cases in his order of 16.8.96 in Modi Ram Vs. Collector Mansa/The Scheduled Castes Land Owning Cooperative Society, Budhlada.

Announced.