Sham Singh Harikay vs Ludhiana Improvement Trust and Others

M.L. Koul, J.—The petitioner Sham Singh who claims himself to be the owner of land measuring 118 Kanals comprised in Khasra Nos. 19/11, 19/12, 19/13, 19/14, 19/15, 19/16, 19/17, 19/18, 19/19, 19/20, 19/21, 19/22, 19/23, 19/24 , and 19/25, situate in village Haibowal Khurd, tehsil and district Ludhiana seeks the quashing of the land acquisition proceedings and the award passed by the Collector with regard to said land constituting a part of 256 Acres of land acquired by the respondents for a development scheme vide notification dated 24.11.1978.

According to the petitioner, the land was acquired by the Government by notification issued u/s 36 of the Punjab Town Improvement Act which is at par with Section 4 of the Land Acquisition Act and as the same was issued by respondent No. 1 without prior approval of the State Land Acquisition Board, all the proceedings with regard to the acquisition are illegal and the petitioner is entitled to get back his land.

Although the petition is quite lengthy and the petitioner has tried to make out a case as if the impugned acquisition is contrary to the provisions of law and the respondents have violated his legal/constitutional rights, after having carefully looked up into the entire record we are fully convinced that the petitioner is not entitled to any relief whatsoever.

At the out-set we may refer to the judgment dated 9.2.1994 (Annexure R-1) of the Additional District Judge, Ludhiana, whereby he upheld the judgment and decree dated 8.4.1985 passed by the Sub Judge 1st Class, Ludhiana, dismissing the suit of the petitioner in which the petitioner bad claimed that he is owner in possession of the property in dispute. The learned Sub Judge as well as learned Additional District Judge recorded a concurrent finding of fact that the appellant has no right over the property in dispute. Both the Courts further held that the petitioner was not in possession of the suit land in his own right when the scheme was notified or the land was acquired. The Courts further held that the petitioner was in unauthorised occupation of the suit land and not as a tenant and he had no locus standi to challenge the acquisition proceedings. The Appellant Court further held that the trial Court was justified in recording a finding that the petitioner was estopped by his act and conduct from filing the suit. The learned Appellate Court observed :-

" From the documentary evidence on record it is not only obvious that the compensation in respect of the suit land had been paid to Dial Singh with the consent of the appellant but it is also evident that the possession had been formally delivered to the Trust. Apparently, the plaintiff is thus in unauthorised occupation of the suit land and he cannot be held entitled to the grant of discretionary relief of permanent injunction when he has not approached the Court with clean hands and has suppressed the material facts."

Indeed, it is amazing that despite this specific observation made, in the judgment of the Appellate Court, the petitioner has filed this petition for issue of a writ to quash the acquisition proceedings. To us it is clear that the petitioner is playing a game of hide and seek either in connivance with his father or otherwise. From the record it is borne out that his father had issued a power of attorney in favour of his wife to receive the compensation and subsequently it was cancelled. The petitioner gave consent to the authorities for payment of compensation to his father and then filed a suit before the Civil Court and he has now filed this petition. The ulterior motive with which the petitioner has been acting throughout is evident from the fact that he forcibly managed to occupy the land after its possession had been taken over by the Trust, presumably under a mistaken impression that he is above law. This conduct of the petitioner is by itself sufficient to disentitle him from any relief under Article 226 of the Constitution of India. We are also of the opinion that the failure of the petitioner to disclose all the facts to the Court, with a view to mislead the Court in granting an order or injunction in his favour, is sufficient to dismiss the petition. The petitioner has thought it convenient to conceal the fact that he had given consent to the land acquisition authorities for payment of compensation to none else than his father and his father in fact received the amount of compensation in pursuance of the award passed by the Land Acquisition Collector sometime in the year 1981-82.

Even on the merits of the claim made by the petitioner, we are fully convinced that he is not entitled to any relief because in the Jamabandi of the year 1979-80 Dial Singh son of Chand Singh has been recorded as the owner and the petitioner has been merely shown as a person cultivating the land. No documentary evidence has been produced by the petitioner to show that he is owner of the property which has been acquired. He has neither pleaded nor has he proved that the property was purchased by him. Nor any other document has been produced by him to establish his ownership. Thus the petitioner can have no locus standi to question the legality or correctness of the acquisition proceedings.

Learned counsel for the petitioner argued that land of other persons have been de-notified from acquisition and, therefore, a Writ of Mandamus be issued for the de-acquisition of the land in question. This plea of the learned counsel deserves to be rejected on two counts. In the first instance, it is to be once again noted that the petitioner is not the owner of the land of which reference has been made in the earlier part of this judgment and, therefore, he cannot claim parity with others whose lands have been de-notified. Secondly, the affidavit filed by the respondent-Trust shows that land which belonged to the Rehabilitation Department, Government of India has been left out from acquisition and a suggestion has been made to acquire that land by the process of negotiations. The competent authority has issued a direction for exclusion of the land of the Rehabilitation Department from acquisition and in our opinion the petitioner is not entitled to plead discrimination on that score.

In addition to what we have held hereinabove, it appears to us that vide Annexure P-1 transfer of ownership with regard to Khasra No. 19 measuring 62 Kanals 4 Marlas was made by Dial Singh father of the petitioner in his favour. Accordingly some land has been shown transferred by his father Dial Singh in favour of Dial Singh Trust. Again some land has been shown transferred from Guru Gobind Singh Charitable Trust in favour of Dial Singh Charitable Trust. A careful scrutiny of this document further shows that the same appears to be concocted one. The petitioner seems to have manipulated this document with the help of some officials. This inference of ours is fortified from the fact that he secured a collusive decree from the Court of Sub Judge on 11.12.1979 in respect of 62 Kanals and 4 Marlas of land falling in Khasra No. 19. The material which has been placed before us shows that a suit was filed by the plaintiff of which notice was given to his father and thereafter the learned Sub Judge straight-away decreed the suit on 11.12.1979. The learned Sub Judge Shri S.S. Hundal, recorded :-

" Plaintiff has filed this suit for decree of declaration that he is exclusive owner in possession of the land measuring 62 K-4 M as detailed in the heading of the plaint and house No. B-1-803, Prem Nagar, Civil Lines, Ludhiana and as detailed in the heading of the plaint, on the ground that this property fell to the share of the plaintiff by way of family partition for the year 1971. Now the plaintiff has started asserting title or interest in the property in dispute hence the suit.

Notice of the suit was served on the defendant, who appeared through his General Attorney Smt. Kuldip Kaur defendant and filed the written statement admitting the claim of the plaintiff. Smt. Kuldip Kaur General Attorney for the defendant made a statement on oath admitting the claim of the plaintiff and also placed on file photostat copy of the Power of General Attorney Exh. P.I. Thus in view of the statement made by the defendant, the suit of the plaintiff is decreed as prayed for leaving the parties to bear their own costs. Let the decree sheet be prepared and file be consigned to record room."

The manner in which the learned Sub Judge has rendered the above mentioned judgment leaves much to be desired. Rather the judgment casts serious reflection on the competence and fairness of the learned Sub Judge who did not care to see even who are the parties to the suit and what was the subject matter of the suit. The Learned Sub Judge acted in a very casual and perfunctory manner while passing the decree in favour of the plaintiff. He did not bother to consider as to what was the evidence available on the record in support of the claim of ownership of the property. The learned Sub Judge disregarded the basic norms of judicial propriety and the provisions of law which govern adjudication of suits of this nature. In our view this collusive decree is of no help to the petitioner and deserves to be ignored.

In the result the writ petition is dismissed with costs of Rs. 10,000/- because the petitioner is guilty of contumacious conduct and he, has successfully prevented implementation of welfare scheme framed by the Trust for more than one decade. The costs shall be deposited by the petitioner with Legal Aid Board, Punjab.

We further direct the Registrar of the Court to place a copy of this order before the Hon''ble Chief Justice for taking appropriate action in the matter against the learned Sub Judge.

A copy of this order be also sent to the Secretary, Legal Aid Board, Punjab.