Harbhajan Kaur Vs. State of Punjab and Others - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - as we have already pointed out, it is precisely because they were not made parlies to the previous proceedings, though their interestswere sought to be affected by the decision of the high court, that the second application was entertained by khosla, j.order1. this order disposes of r.a. no. 505 of 1993 in c.w.p. no. 9089 of 1993, r.a. no. 504 of 1993 in c.w.p. no. 9520 of 1993, r.a. no. 503 of 1993 in c.w.p. no. 9521 of 1993 and r.a. no. 506 of 1993 in c.w.p. no. 9522 of 1993.2. smt. harbhajan kaur w/o arjan singh, smt. kuldip kaur w/o sham singh, dial singh s/o gurdev singh and harminder singh s/o daljit singh, petitioners in c.w.p. no. 9089 of 1993, 9520 of 1993, 9521 of 1993 and 9522 of 1993, respectively (hereinafter referred to as the petitioners) soughl a mandate to the state of punjab through financial commissioner (revenue) and secretary to government, punjab, deputy commissioner-cum-chief sales commissioner, ludhiana, sub-divisional officer-cum-sales commissioner, ludhiana and tehsildar (sales), ludhiana, to transfer them the agricultural land allegedly in their possession in accordance with the press notes issued by the punjab government from time to time. the allegations in the writ petitions were almost identical. it was stated in the petitions that the kanungo made a report that they were entitled to the transfer of land. tehsildar (sales), ludhiana, on december 26, 1989 ordered that the 'lagan' be deposited and the file be put up before his successor for allotment of land/transfer under the rules. pursuant to the order of tehsildar (sales), the lagan was deposited, but the tehsildar (sales) did not pass the final orders in the matter.3. c.w.p. no. 9089 of 1993 came up for motion hearing on july 30, 1993. mr. j. s. virk, advocate, appearing on behalf of the petitioner stated thus:--'the petitioner has submitted an application for conferment of the proprietary rights. that application remains undecided.'in the light of this statement, notice of motion returnable for september 6, 1993 was ordered to be issued and it was directed that status quo regarding possession be maintained in the meanwhile.4. c.w.p. nos. 9520, 9521 and 9522 of 1993 came up for motion hearing on august 12, 1993, and on the representation of shri j.s. virk, advocate, appearing for the petitioners, the following order was passed :--'notice of motion for 6-9-1993. to come up with cwp no. 9089 of 1993. status quo regarding possession be maintained meanwhile.'mr. g. s. cheema, assistant advocate general, punjab, appeared for the respondents on september 6, 1993, and on his request the writ petitions were adjourned to september 28, 1993. on that date, these writ petitions were disposed of with the following observations:--'this judgment disposes of civil writ petitions nos. 9089, 9520, 9521 and 9522 of 1993. the petitioners have sought a mandate to the respondents to consider their claim for allotment of surplus rural evacuee agricultural land in accordance with the policy decision taken by the state government vide press note (i) dt. sept. 4, 1974 and subsequent press notes issued by the state government in this behalf. we have heard the learned counsel for the petitioners and the assistant advocate general (punjab) appearing for the respondents. we think it appropriate not to go on the merit of the contentions raised in the petition. it will meet the ends of justice if a direction is issued to respondent no. 3 to examine the claim of the petitioners for transfer of surplus rural evacuee agricultural land in terms of press note (1), dt. sept. 4, 1974 and the subsequent press notes issued by the state government in this behalf within three months from the date of receipt of copy of this order. till the final decision by respondent no. 3, if the petitioners are in possession of the land for which a claim has been made for transfer in terms of the press notes, they will not be dispossessed therefrom till their claim for transfer of surplus evacuee agricultural land is disposed of.' 5. the present applications seeking review of our orders dt- sept. 28, 1993 passed in the writ petitions were moved on nov. 23, 1993. these came up for motion hearing on nov. 26, 1993 and the following order was passed:--'mr. p. k. palli, sr. advocate, states at the bar that punjab wakf board is owner of the disputed property. it was not made party respondent to the writ petition. the directions have been obtained behind the back of the real owner. notice to mr. joginer singh virk, advocate, for 3-12-1993. operation of the order and the consequential proceedings taken pursuant thereto are suspended ad interim.' on dec. 3, 1993, mr. j. s. virk, advocate, appeared for the petitioners and the hearing was adjourned to dec. 17, 1993, at his request and thereafter to jan. 7, 1974, jan. 14. 1994, jan. 21, 1994 and jan. 28, 1994.6. on jan. 28, 1994, mr. arun jain. advocate put in appearance for the petitioners.7. a brief reference to the relevant facts staled in the review applications, which have not been controverted by mr. arun jain, advocate, are as under :--the government of india through gazette notification dt. sept. 19, 1970, published the list of sunni wakf properties situated in the composite state of punjab. the land comprised in khasra nos. 102, 103, 104 and 105, to which the petitioners had laid claim finds mention in the gazette notification. petitioners smt. kuldip kaur w/o sham singh and her husband sham singh filed a civil suit bearing no. 365/198 of 23-9-1986/ 6-3-1991 titled sham singh v. punjab wakf board, ambala cantt. through administrator and aukaf office, punjab wakf board, ludhi-ana, for issuance of permanent injunction restraining the defendants from illegally and forcibly dispossessing them from the land measuring 260 kanals out of land measuring 269 kanals 7 marlas comprising of khewat no. 387, 386, khatauni nos. 555, 551, khasra nos. 102, 104, 106, 103 and 105 as entered inthe jamabandi for the year 1984-85 situate in village beerami, tehsil and district ludhi-ana. the suit was dismissed by sub-judge 1st class, ludhiana on june 3, 1991. smt. harbhajan kaur wife of arjan singh, har-minder singh son of daljit singh and dayal singh son of gurdev singh, petitioners in cwp no. 9089, 9522 and 9521 of 1993, respectively, filed civil suit no. 255 dt. may 21, 1988 against smt. kuldip kaur wife of sham singh and her husband for declaration to the effect that they were in cultivating possession of land comprised in khasra nos. 102-104 and 106. smt. kuldip kaur and her husband conceded the claim of the plaintiffs and the suit was decreed by the subordinate judge 1st class, ludhiana, by judgment and decree dt. dec. 15. 1988.8. the writ petitioners moved an application for transfer of the land to tehsildar (sales), ludhiana and the same was rejected vide order dt. dec. 3, 1990, reading thus:--'this file has been put up today in the presence of the applicant shri sham singh son of dial singh. the report of the kanungo (sales) is in detail and 1 fully agree with it. in view of the report this land belongs to the punjab wakf board who is its owner and cannot be allotted to the applicant under the instructions of the government. the application of the petitioner is dismissed. in case he is aggrieved, he can file an appeal before the appropriate court.'the petitioners aggrieved against the orders of the tehsildar.(sales) challenged the same in appeals nos. 67, 68, 69 and 70 of 1991 before. the sales commissioner, ludhiana. the appeals were dismissed vide order dt. dec. 18, 1991, observing thus:--'the wakf board further contended that the order of tehsildar (sales) regarding deposit of rent is ultra vires his powers since he had no authority to transfer the wakf land. the arguments of the wakf board have knocked out the bottom of the arguments of the appellants. while sham singh and kuldip kaur had made judicial admissions regarding the title of disputed land that wakf board is owner of the land, dayal singh, harmindersingh and harbhajan kaur obtained a collusive decree from sham singh and kuldip kaur regarding the same land. hence one appellant out of the four has already admitted the tide of the wakf board regard ing disputed property, while the other three obtained a collusive decree from 'this appellant, hence they have indirectly admitted the title of the wakf board. hence the appellants cannot deny the title of the wakf board. even otherwise the disputed land has been shown as wakf property in a gazette notification of govt. of india. the tehsildar (sales) in his arguments has said that even if the allegation of the appellant is accepted that they had given an application earlier on 4-10-1974 even then it is time barred as 30-9-1974 was the last date for receipt of applications as per rules for transfer of land on the basis of possession from rabi 1972. the appellants had earlier applied for transfer of the disputed land on the basis of possses-sion from rabi 1984 but the applications were dismissed on the grounds that (he appellants have got the khasra girdawaris changed through civil court, which cannot be accepted after 23-11-1987 and that the disputed land is the wakf board property. according io the attestation of panchayat, the appellants do not live in village birmi and they do not have ration card of the village and do not pay chullah tax or chowjudara. except the voter list of 3-2-1988, the earlier voter lists of the village do not contain the name of the appellants. the appellants got the khasra girdawaris in respect of disputed land changed on 15-12-1988 through civil court. lastly, the tehsildar (sales) asserted that as the appellants were found unfit for transfer of disputed land on the basis of possession from rabi 1984 then how can the same land be transferred to them on the basis of the possession from rabi 1972. in view of the detailed arguments of the interested parties discussed above, 1 find that the appellants case is entirely devoid of any merit. all the arguments of the appellants have been successfully rebutted by the wakf board. tehsildar (sales) has added to the hopelessness of the case of the appellants byhis arguments. these appeals deserve to be dismissed and 1 uphold the order of the tehsildar (sales) and dismiss these appeals.' aggrieved against the order passed in the appeals by the sales commissioner, ludhiana, the petitioners challenged the same before the chief sales commissioner, ludhiana in appeals no. p.o. no. 1/91-92, 4/91-92, 5/91-92 and 6/91-92. during the pendency of the appeals before the chief sales commissioner, they moved this court through c.w.p. no. 9089, 9520, 9521 and 9522 of 1993 and obtained thejudgment dated sept. 28, 1993. the chief sales commissioner, ludhiana remitted the case vide order dated oct. 22, 1993 to the sales commissioner, ludhiana, in the light of the observations made by us in our judgment dated sept. 28, 1993. the relevant portion of the order of the chief sales commissioner reads thus:--'in the very start of the arguments the counsel s.r. wadhera for dayal singh and sh. krishan lal counsel for harminder singh, kuldip kaur and harbhajan kaur have drawn my contention (sic., attention) towards the decision of hon'ble punjab and haryana high court dated 28-9-1993 wherein the learned judges sh. s.r. majitha (wrongly written for g.r. majithia) and h.k. sandhu have held in c.w.p. no. 9098/1993 harbhajan kaur etc. v. the state of punjab etc. that it will meet the ends of justice if a direction is issued to respondents no. 3 to examine the claim of the petitioners for transfer of surplus rural evacuee agricultural land in terms to press note (1) dated sept. 4, 1974 and the subsequent press notes issued by the stale govt. in this behalf within three months from the date of receipt of copy of this order. till the final decision by respondent no. 3, if petitioners are in possession of the land for which a claim has been made for transfer in terms of the press notes, they will not be dispossessed therefrom till their claim for transfer of surplus evacuee agricultural land is disposed of. keeping in view of the above decision of the hon'ble punjab and haryana high court dated 28-9-1993, i am left with no option butto send the case to the s.d.o. (c), ldh-cum-sales commissioner, ludhiana to decide the claims of the parties keeping in view the above judgment dated 28-9-1993 and directions given in the case. the parties are directed to appear before the s.d.o. (c), ludhiana-cum-sales commissioner on 27-10-1993 and to put up their respective claims there. a copy of this order should be placed on each appeal case as mentioned in the very start of the case.' 9. the applicants appears to have come to know of the orders passed by this court when the same was produced before the chief sales commissioner. the orders disposing of the writ petitions were passed without hearing the punjab wakf board, which was vitally affected by the orders. the punjab wakf board can move for review of the orders dated sept. 28, 1993 to prevent miscarriage of justice. reliance can usefully be placed on the judgment of the apex court in shivdeo singh v. state of punjab, air 1963 sc 1909, and in para 8 of the same it was observed thus:--'the other content ion of mr. gopal singh pertains to the second order of khosla, j., which, in effect reviews his prior order. learned counsel contends that art. 226 of the constitution does not confer any power on the high court to review its own order and, therefore, the second order of khosla, j. was without jurisdiction. it is sufficient to say that there is nothing in art. 226 of the constitution to preclude a high court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpabale order of khosla, j., affected the interests of persons who were not made parties to the proceeding before him. it was at their instance and for giving them a hearing that khosla, j. entertained the second petition. in doing so, he merely did what the principles of natural justice required him to do. it is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. as we have already pointed out, it is precisely because they were not made parlies to the previous proceedings, though their interestswere sought to be affected by the decision of the high court, that the second application was entertained by khosla, j.'10. mr. arun jain, adovcate, who put in appearance on behalf of the writ petitioners does not dispute the correctness of the facts stated in the review applications. he submitted that in the record of rights the custodian general and the central government were recorded as owners and the writ petitioners were entitled to apply for transfer of the disputed land under the press notes issued by the state government from time to time. it is wholly irrelevant as to who is recorded as owner in the record of rights for the purpose of deciding these review applications. the writ petitioners have tried to overreach the court. they did not bring correct facts to the notice of the court and obtained an order from us by concealing material facts and without impleading the vitally affected party to the writ petitions. they have been fighting litigation against the punjab wakf board since 1986 as is revealed from a perusal of the order passed in petition no. 363 of 1986 (sham singh and another v. punajab wakf board). they did not disclose that their applications for transfer of land were dismissed by the tehsildar (sales) and, on appeal, the orders were affirmed by the sales commissioner and that the appeals against the orders of the sales commissioner were pending before the chief sales commissioner; that the punjab wakf board had been contesting their claim and in those proceedings it had been held that the punjab wakf board was the owner of the disputed land and that in judicial proceedings smt. kuldip kaur and her husband had made admission that the punjab wakf board was the owner of the disputed land.11.for the reasons stated above, the review applications are allowed with costs quantified at rs.5,000/- in each case and the orders dated sept. 28, 1993 passed in c.w.p. nos. 9089, 9520, 9521 and 9522 of 1993 are recalled and the writ petitions are dismissed.12. the petitioners obtained favourable orders in the writ petitions by concealing the material facts and making false representation. this court was influenced by thesuppressio veri, and suggestio falsi. the conduct of the petitioners prima facie amounts to gross contempt of the court. let show cause notices to issue to them. the counsel undertook to produce the petitioners in court as and when desired. the petitioners through their counsel are directed to appear in court on feb. 11, 1994, so that the show cause notices be served upon them.13. applications allowed.

Judgment:
ORDER

1. This order disposes of R.A. No. 505 of 1993 in C.W.P. No. 9089 of 1993, R.A. No. 504 of 1993 in C.W.P. No. 9520 of 1993, R.A. No. 503 of 1993 in C.W.P. No. 9521 of 1993 and R.A. No. 506 of 1993 in C.W.P. No. 9522 of 1993.

2. Smt. Harbhajan Kaur w/o Arjan Singh, Smt. Kuldip Kaur w/o Sham Singh, Dial Singh s/o Gurdev Singh and Harminder Singh s/o Daljit Singh, petitioners in C.W.P. No. 9089 of 1993, 9520 of 1993, 9521 of 1993 and 9522 of 1993, respectively (hereinafter referred to as the petitioners) soughl a mandate to the State of Punjab through Financial Commissioner (Revenue) and Secretary to Government, Punjab, Deputy Commissioner-cum-Chief Sales Commissioner, Ludhiana, Sub-Divisional Officer-cum-Sales Commissioner, Ludhiana and Tehsildar (Sales), Ludhiana, to transfer them the agricultural land allegedly in their possession in accordance with the press notes issued by the Punjab Government from time to time. The allegations in the writ petitions were almost identical. It was stated in the petitions that the Kanungo made a report that they were entitled to the transfer of land. Tehsildar (Sales), Ludhiana, on December 26, 1989 ordered that the 'Lagan' be deposited and the file be put up before his successor for allotment of land/transfer under the Rules. Pursuant to the order of Tehsildar (Sales), the Lagan was deposited, but the Tehsildar (Sales) did not pass the final orders in the matter.

3. C.W.P. No. 9089 of 1993 came up for motion hearing on July 30, 1993. Mr. J. S. Virk, Advocate, appearing on behalf of the petitioner stated thus:--

'The petitioner has submitted an application for conferment of the proprietary rights. That application remains undecided.'

In the light of this statement, notice of motion returnable for September 6, 1993 was ordered to be issued and it was directed that status quo regarding possession be maintained in the meanwhile.

4. C.W.P. Nos. 9520, 9521 and 9522 of 1993 came up for motion hearing on August 12, 1993, and on the representation of Shri J.S. Virk, Advocate, appearing for the petitioners, the following order was passed :--

'Notice of motion for 6-9-1993. To come up with CWP No. 9089 of 1993. Status quo regarding possession be maintained meanwhile.'

Mr. G. S. Cheema, Assistant Advocate General, Punjab, appeared for the respondents on September 6, 1993, and on his request the writ petitions were adjourned to September 28, 1993. On that date, these writ petitions were disposed of with the following observations:--

'This judgment disposes of Civil Writ Petitions Nos. 9089, 9520, 9521 and 9522 of 1993.

The petitioners have sought a mandate to the respondents to consider their claim for allotment of surplus rural evacuee agricultural land in accordance with the policy decision taken by the State Government vide Press Note (I) dt. Sept. 4, 1974 and subsequent Press Notes issued by the State Government in this behalf.

We have heard the learned counsel for the petitioners and the Assistant Advocate General (Punjab) appearing for the respondents.

We think it appropriate not to go on the merit of the contentions raised in the petition. It will meet the ends of justice if a direction is issued to respondent No. 3 to examine the claim of the petitioners for transfer of surplus rural evacuee agricultural land in terms of Press Note (1), dt. Sept. 4, 1974 and the subsequent Press Notes issued by the State Government in this behalf within three months from the date of receipt of copy of this order. Till the final decision by respondent No. 3, if the petitioners are in possession of the land for which a claim has been made for transfer in terms of the Press Notes, they will not be dispossessed therefrom till their claim for transfer of surplus evacuee agricultural land is disposed of.'

5. The present applications seeking review of our orders dt- Sept. 28, 1993 passed in the writ petitions were moved on Nov. 23, 1993. These came up for motion hearing on Nov. 26, 1993 and the following order was passed:--

'Mr. P. K. Palli, Sr. Advocate, states at the bar that Punjab Wakf Board is owner of the disputed property. It was not made party respondent to the writ petition. The directions have been obtained behind the back of the real owner. Notice to Mr. Joginer Singh Virk, Advocate, for 3-12-1993.

Operation of the order and the consequential proceedings taken pursuant thereto are suspended ad interim.'

On Dec. 3, 1993, Mr. J. S. Virk, Advocate, appeared for the petitioners and the hearing was adjourned to Dec. 17, 1993, at his request and thereafter to Jan. 7, 1974, Jan. 14. 1994, Jan. 21, 1994 and Jan. 28, 1994.

6. On Jan. 28, 1994, Mr. Arun Jain. Advocate put in appearance for the petitioners.

7. A brief reference to the relevant facts staled in the review applications, which have not been controverted by Mr. Arun Jain, Advocate, are as under :--

The Government of India through Gazette Notification dt. Sept. 19, 1970, published the list of Sunni Wakf properties situated in the composite State of Punjab. The land comprised in Khasra Nos. 102, 103, 104 and 105, to which the petitioners had laid claim finds mention in the Gazette Notification. Petitioners Smt. Kuldip Kaur w/o Sham Singh and her husband Sham Singh filed a civil suit bearing No. 365/198 of 23-9-1986/ 6-3-1991 titled Sham Singh v. Punjab Wakf Board, Ambala Cantt. through Administrator and Aukaf Office, Punjab Wakf Board, Ludhi-ana, for issuance of permanent injunction restraining the defendants from illegally and forcibly dispossessing them from the land measuring 260 kanals out of land measuring 269 kanals 7 marlas comprising of Khewat No. 387, 386, Khatauni Nos. 555, 551, Khasra Nos. 102, 104, 106, 103 and 105 as entered inthe Jamabandi for the year 1984-85 situate in village Beerami, Tehsil and District Ludhi-ana. The suit was dismissed by Sub-Judge 1st Class, Ludhiana on June 3, 1991. Smt. Harbhajan Kaur wife of Arjan Singh, Har-minder Singh son of Daljit Singh and Dayal Singh son of Gurdev Singh, petitioners in CWP No. 9089, 9522 and 9521 of 1993, respectively, filed Civil Suit No. 255 dt. May 21, 1988 against Smt. Kuldip Kaur wife of Sham Singh and her husband for declaration to the effect that they were in cultivating possession of land comprised in Khasra Nos. 102-104 and 106. Smt. Kuldip Kaur and her husband conceded the claim of the plaintiffs and the suit was decreed by the Subordinate Judge 1st Class, Ludhiana, by judgment and decree dt. Dec. 15. 1988.

8. The writ petitioners moved an application for transfer of the land to Tehsildar (Sales), Ludhiana and the same was rejected vide order dt. Dec. 3, 1990, reading thus:--

'This file has been put up today in the presence of the applicant Shri Sham Singh son of Dial Singh. The report of the Kanungo (Sales) is in detail and 1 fully agree with it. In view of the report this land belongs to the Punjab Wakf Board who is its owner and cannot be allotted to the applicant under the instructions of the Government. The application of the petitioner is dismissed. In case he is aggrieved, he can file an appeal before the appropriate Court.'

The petitioners aggrieved against the orders of the Tehsildar.(Sales) challenged the same in Appeals Nos. 67, 68, 69 and 70 of 1991 before. the Sales Commissioner, Ludhiana. The appeals were dismissed vide order dt. Dec. 18, 1991, observing thus:--

'The Wakf Board further contended that the order of Tehsildar (Sales) regarding deposit of rent is ultra vires his powers since he had no authority to transfer the Wakf land.

The arguments of the Wakf Board have knocked out the bottom of the arguments of the appellants. While Sham Singh and Kuldip Kaur had made judicial admissions regarding the title of disputed land that Wakf Board is owner of the land, Dayal Singh, HarminderSingh and Harbhajan Kaur obtained a collusive decree from Sham Singh and Kuldip Kaur regarding the same land. Hence one appellant out of the four has already admitted the tide of the Wakf Board regard ing disputed property, while the other three obtained a collusive decree from 'this appellant, hence they have indirectly admitted the title of the Wakf Board.

Hence the appellants cannot deny the title of the Wakf Board. Even otherwise the disputed land has been shown as Wakf property in a Gazette Notification of Govt. of India.

The Tehsildar (Sales) in his arguments has said that even if the allegation of the appellant is accepted that they had given an application earlier on 4-10-1974 even then it is time barred as 30-9-1974 was the last date for receipt of applications as per rules for transfer of land on the basis of possession from Rabi 1972. The appellants had earlier applied for transfer of the disputed land on the basis of possses-sion from Rabi 1984 but the applications were dismissed on the grounds that (he appellants have got the Khasra girdawaris changed through civil court, which cannot be accepted after 23-11-1987 and that the disputed land is the Wakf Board property. According io the attestation of panchayat, the appellants do not live in village Birmi and they do not have ration card of the Village and do not pay chullah tax or chowjudara. Except the voter list of 3-2-1988, the earlier voter lists of the village do not contain the name of the appellants. The appellants got the khasra girdawaris in respect of disputed land changed on 15-12-1988 through civil court. Lastly, the Tehsildar (Sales) asserted that as the appellants were found unfit for transfer of disputed land on the basis of possession from Rabi 1984 then how can the same land be transferred to them on the basis of the possession from Rabi 1972.

In view of the detailed arguments of the interested parties discussed above, 1 find that the appellants case is entirely devoid of any merit. All the arguments of the appellants have been successfully rebutted by the Wakf Board. Tehsildar (Sales) has added to the hopelessness of the case of the appellants byhis arguments. These appeals deserve to be dismissed and 1 uphold the order of the Tehsildar (Sales) and dismiss these appeals.'

Aggrieved against the order passed in the appeals by the Sales Commissioner, Ludhiana, the petitioners challenged the same before the Chief Sales Commissioner, Ludhiana in appeals No. P.O. No. 1/91-92, 4/91-92, 5/91-92 and 6/91-92. During the pendency of the appeals before the Chief Sales Commissioner, they moved this Court through C.W.P. No. 9089, 9520, 9521 and 9522 of 1993 and obtained thejudgment dated Sept. 28, 1993. The Chief Sales Commissioner, Ludhiana remitted the case vide order dated Oct. 22, 1993 to the Sales Commissioner, Ludhiana, in the light of the observations made by us in our judgment dated Sept. 28, 1993. The relevant portion of the order of the Chief Sales Commissioner reads thus:--

'In the very start of the arguments the counsel S.R. Wadhera for Dayal Singh and Sh. Krishan Lal counsel for Harminder Singh, Kuldip Kaur and Harbhajan Kaur have drawn my contention (sic., attention) towards the decision of Hon'ble Punjab and Haryana High Court dated 28-9-1993 wherein the learned Judges Sh. S.R. Majitha (wrongly written for G.R. Majithia) and H.K. Sandhu have held in C.W.P. No. 9098/1993 Harbhajan Kaur etc. v. The State of Punjab etc. that it will meet the ends of justice if a direction is issued to respondents No. 3 to examine the claim of the petitioners for transfer of surplus rural evacuee agricultural land in terms to press note (1) dated Sept. 4, 1974 and the subsequent press notes issued by the Stale Govt. in this behalf within three months from the date of receipt of copy of this order. Till the final decision by respondent No. 3, if petitioners are in possession of the land for which a claim has been made for transfer in terms of the Press Notes, they will not be dispossessed therefrom till their claim for transfer of surplus evacuee agricultural land is disposed of.

Keeping in view of the above decision of the Hon'ble Punjab and Haryana High Court dated 28-9-1993, I am left with no option butto send the case to the S.D.O. (C), LDH-cum-Sales Commissioner, Ludhiana to decide the claims of the parties keeping in view the above judgment dated 28-9-1993 and directions given in the case. The parties are directed to appear before the S.D.O. (C), Ludhiana-cum-Sales Commissioner on 27-10-1993 and to put up their respective claims there. A copy of this order should be placed on each appeal case as mentioned in the very start of the case.'

9. The applicants appears to have come to know of the orders passed by this Court when the same was produced before the Chief Sales Commissioner. The orders disposing of the writ petitions were passed without hearing the Punjab Wakf Board, which was vitally affected by the orders. The Punjab Wakf Board can move for review of the orders dated Sept. 28, 1993 to prevent miscarriage of justice. Reliance can usefully be placed on the judgment of the apex Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, and in para 8 of the same it was observed thus:--

'The other content ion of Mr. Gopal Singh pertains to the second order of Khosla, J., which, in effect reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J. was without jurisdiction. It is sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpabale order of Khosla, J., affected the interests of persons who were not made parties to the proceeding before him. It was at their instance and for giving them a hearing that Khosla, J. entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parlies to the previous proceedings, though their interestswere sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, J.'

10. Mr. Arun Jain, Adovcate, who put in appearance on behalf of the writ petitioners does not dispute the correctness of the facts stated in the review applications. He submitted that in the record of rights the Custodian General and the Central Government were recorded as owners and the writ petitioners were entitled to apply for transfer of the disputed land under the Press Notes issued by the State Government from time to time. It is wholly irrelevant as to who is recorded as owner in the record of rights for the purpose of deciding these review applications. The writ petitioners have tried to overreach the Court. They did not bring correct facts to the notice of the Court and obtained an order from us by concealing material facts and without impleading the vitally affected party to the writ petitions. They have been fighting litigation against the Punjab Wakf Board since 1986 as is revealed from a perusal of the order passed in Petition No. 363 of 1986 (Sham Singh and another v. Punajab Wakf Board). They did not disclose that their applications for transfer of land were dismissed by the Tehsildar (Sales) and, on appeal, the orders were affirmed by the Sales Commissioner and that the appeals against the orders of the Sales Commissioner were pending before the Chief Sales Commissioner; that the Punjab Wakf Board had been contesting their claim and in those proceedings it had been held that the Punjab Wakf Board was the owner of the disputed land and that in judicial proceedings Smt. Kuldip Kaur and her husband had made admission that the Punjab Wakf Board was the owner of the disputed land.

11.For the reasons stated above, the review applications are allowed with costs quantified at Rs.5,000/- in each case and the orders dated Sept. 28, 1993 passed in C.W.P. Nos. 9089, 9520, 9521 and 9522 of 1993 are recalled and the writ petitions are dismissed.

12. The petitioners obtained favourable orders in the writ petitions by concealing the material facts and making false representation. This Court was influenced by thesuppressio veri, and suggestio falsi. The conduct of the petitioners prima facie amounts to gross contempt of the Court. Let show cause notices to issue to them. The counsel undertook to produce the petitioners in Court as and when desired. The petitioners through their counsel are directed to appear in Court on Feb. 11, 1994, so that the show cause notices be served upon them.

13. Applications allowed.