Criminal case – It is not for the authorities under the Punjab Panchayati Raj Act, to give an opinion on the merit of the criminal case, registered against the person –Registration of case involving serious offences, itself is a ground for suspension of Panch/Sarpanch -- Once it is not disputed that the petitioner was facing trial under Sections 307, 324, 341 and 348 IPC, no error has been committed by the authorities in suspending the petitioner in exercise of jurisdiction under Section 20(3) of the Act. Tejbalkar Singh v. State of Punjab and others, 2011(1) L.A.R. 181 (P&H).
Thursday, 29 September 2011
Lease deed for a period of nine years was unregistered is not admissible in evidence.
Transfer of Property Act, 1882 (4 of 1882)
Section 107 -- Registration Act, 1908 (16 of 1908), Section 49(c) – Immovable property -- Lease – Lease deed – Registration of – Requirement of -- Lease of immoveable property from year to year can only be created by way of a registered lease deed -- Lease deed for a period of nine years was unregistered is not admissible in evidence. Shyam Lal v. Deepa Dass Chela Ram Chela Garib Dass, 2011(1) L.A.R. 266 (P&H).
Withdrawal from Partition proceedings
Mode of partition -- Mode of partition was sanctioned after hearing both the parties – After confirmation of the mode of partition, the appellants cannot be permitted to withdraw from the partition. Jeet Singh and others v. Financial Commissioner, Appeals – II, Punjab and others, 2011(1) L.A.R. 80 (P&H DB).
Waiver of Pre-emption right
Plaintiff attesting the sale deed, receiving part of sale consideration, on behalf of the vendor -- Plaintiff had actively participated in the sale, and thereby waived his right to pre-empt the sale. Bohru v. Khubi and others, 2011(1) L.A.R. 105 (P&H).
Witness through husband
Rent Act -- Bonafide need – Even an attorney in the case of husband and wife can depose on behalf of the other – In case of non-appearance of landlady, her husband who had knowledge of the facts can depose in the Court and the non-appearance of his wife cannot be faulted with – Eviction order upheld. M/s Metro Tyres Limited v. Sushil Kumar and another, 2011(1) L.A.R. 626 (P&H).
Wednesday, 28 September 2011
Zimni orders
Rent Act -- Zimni orders have been recorded by the learned Rent Controller in a casual manner, it is not clear on whose request the case was adjourned by the Court -- Courts below are not sensitive towards the recording of zimni orders which has a great sanctity in the judicial proceedings -- From the zimni orders, it can be ascertained as to what has transpired before the Court on a particular date -- Litigation is increasing day by day and the higher Courts are being unnecessarily burdened only because of the petty errors committed by the subordinate Courts -- All the subordinate Courts in the States of Punjab, Haryana and U.T. Chandigarh are directed to record correct zimni orders -- Correct recording of the zimni orders lends transparency in the judicial process and are very material. Ram Pal v. Deepak Sharma, 2011(1) L.A.R. 614 (P&H).
East Punjab Urban Rent Restriction Act, 1949 (III of 1949)
Section 2(d), 2(h) – Non-residential building – Scheduled building -- Building would be scheduled building, if the building is being used by one or more of the professions specified in Schedule I, partly for his business and partly for his residence -- Demised premises was never used partly for residential and from the very reception is being used for medical practice (clinic), hence, building is covered by the definition of non-residential and is not a scheduled building under Section 2 (h) of the Act. Anima Biswas v. Gurbachan Singh, 2011(1) L.A.R. 209 (P&H).
East Punjab Urban Rent Restriction Act, 1949 (III of 1949)
Section 2(d), 2(g) – Residential building – Non-residential building -- Demised shops (rooms) were let out and are being used from the very inception for medical practice (clinic) and because shops are having no opening towards the main building and have opening towards the market only are non-residential building -- It is not a residential building since it falls within the definition of non-residential building. Anima Biswas v. Gurbachan Singh, 2011(1) L.A.R. 209 (P&H).
East Punjab Urban Rent Restriction Act, 1949 (III of 1949)
Section 2(a) – Building -- Building means, any building or part thereof let out for any purpose whether being actually used for that purpose or not – Any part of the building let out shall be construed as separate building, hence two shops (called as rooms by the landlord) let out separately fall within the definition of building under Section 2(a) of the Act. Anima Biswas v. Gurbachan Singh, 2011(1) L.A.R. 209 (P&H).
Code of Civil Procedure, 1908 (V of 1908)
Section 107, Order 41 Rule 27(1)(b) -- Additional evidence – Rule 27(1)(b) empowers the Appellate Court to give permission for additional evidence if the Court itself requires any document to be produced or any witness to be examined for the purpose of its assistance for coming to a just conclusion and for any other substantial cause -- Substantial cause though has not been defined, therefore, it depends upon facts and circumstances of each case -- Even if the documents, namely, jamabandis were within knowledge of the appellants, the Court can always allow it in terms of Order 41 Rule 27(1) (b) of the CPC – Documentary evidence which cannot be created or manufactured for the first time after the decision of the suit i.e. any official document whose authenticity is not in dispute and is capable of assisting the Court to take final decision in respect of the dispute between the parties, such evidence should not normally be disallowed to be taken on record. Gurdial Singh and others v. Mam Chand and others, 2011(1) L.A.R. 579 (P&H).
Code of Civil Procedure, 1908 (V of 1908)
Section 100 – Second Appeal – Power of -- High Court cannot interfere with the findings of learned lower first appellate court on facts but when the findings are the outcome of misreading of document, and perverse, being contrary to the settled law then the High Court under section 100 of the Code can always interfere, as interpretation of a document is a question of law. Smt.Gejo (dead) through LRs. v. Kanwar Raj Singh (dead) through LRs. & Others, 2011(1) L.A.R. 257 (P&H).
Code of Civil Procedure, 1908 (V of 1908)
Order 22 Rule 2 and 9 -- Haryana Urban (Control of Rent & Eviction) Act, 1973 (11 of 1973), Section 13 -- Limitation Act, 1963 (36 of 1963), Section 5 – Appeal by landlord before Supreme Court – Sole Proprietor died during the pendency of the appeal -- Application for bringing on record the Legal representative of the appellant after delay of 778 days -- Condonation of delay -- Except for a vague averment that the legal representatives were not aware of the pendency of the appeal before the Court, there is no other justifiable reason stated in the one page application -- No reason or sufficient cause shown as to what steps were taken during this period and why immediate steps were not taken by the applicant, even after they admittedly came to know of the pendency of the appeal before the Court -- It is the abnormal conduct on the part of the applicants, particularly son who had appeared in the trial and was fully aware of the proceedings, but still did not inform the counsel of the death of his father – No ‘sufficient cause’ for condonation of delay of 778 days in filing the application. Balwant Singh v. Jagdish Singh & Others, 2011(1) L.A.R. 325 (SC).
Code of Civil Procedure, 1908 (V of 1908)
Order 22 Rule 2 and 9 -- Haryana Urban (Control of Rent & Eviction) Act, 1973 (11 of 1973), Section 13 -- Limitation Act, 1963 (36 of 1963), Section 5 – Application for bringing on record the Legal representative of the appellant – Condonation of delay -- Explained delay should be clearly understood in contradistinction to inordinate unexplained delay -- Delay is just one of the ingredients which has to be considered by the Court -- In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution -- Statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay -- Applications cannot be allowed as a matter of right and even in a routine manner -- An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications. Balwant Singh v. Jagdish Singh & Others, 2011(1) L.A.R. 325 (SC).
Code of Civil Procedure, 1908 (V of 1908)
Order 9 Rule 3,4 – Punjab State Election Commission Act, 1994 (19 of 1994), Section 81 – Punjab Nagar Palika Election Rules, 1994 -- Election petition – Dismissed in default – Restoration of – Application signed by Advocate – Maintainability of -- If the application for restoration is not signed by the appellant but it is signed by his Advocate, then that will be sufficient because an Advocate is an authorized agent of the party and is also authorized under the power of attorney in his favour to sign the applications. Sukhpreet Singh v. Jatinder Kumar and others, 2011(1) L.A.R. 662 (P&H).
Code of Civil Procedure, 1908 (V of 1908)
Code of Civil Procedure, 1908 (V of 1908)Order 1 Rule 10 – Necessary party -- For seeking impleadment in any pending litigation, applicant has to prove that he has interest in the lis and his valuable rights are involved in the lis or without his presence lis can not be decided effectively. Kartar Chand v. Financial Commissioner, Appeal, Punjab and others, 2011(1) L.A.R. 127 (P&H).
Code of Civil Procedure, 1908 (V of 1908)
Order 1 Rule 10 – Necessary party -- For seeking impleadment in any pending litigation, applicant has to prove that he has interest in the lis and his valuable rights are involved in the lis or without his presence lis can not be decided effectively. Kartar Chand v. Financial Commissioner, Appeal, Punjab and others, 2011(1) L.A.R. 127 (P&H).
Appointment of Lambardar
Character of the candidate -- Petitioner, being son of former-deceased Lambardar did not, for more than 30 years, inform the authorities about the death of his father, rather, he undertook to collect the land revenue, etc., without any authority from the competent authority – Petitioner is 70 years old – A person like the petitioner, if allowed to be appointed as Lambardar, would not make a good choice. Bhajan Singh v. State of Punjab
Choice of Collector – Appellate Court’s Jurisdiction -- After considering the merits of the candidates, the Collector appointed the Lambardar -- Commissioner accepted the appeal in abject disregard to the limits of his jurisdiction as an appellate court and proceeded to reverse the order passed by the Collector by imposing his perception of the better candidate – Commissioner lost sight of a fundamental principle that governs selection of a Lambardar namely; that the choice of the Collector is final, except where it is palpably perverse, arbitrary, preposterous or contrary to the rules -- Financial Commissioner rightly restored the order passed by the Collector Kulwinder Singh v. Financial Commissioner (Appeals-II), Punjab and others, 2011(1) L.A.R. 201 (P&H).
Choice of Collector -- It is an accepted practice in lambardari cases that other things being equal, the choice of the District Collector has to be respected unless and until there was something patently wrong with the order. Rajinder Singh v. Pipal Singh, 2011(1) L.A.R. 88 (FC Pb.).
Comparative merits -- Appellate Authority’s Jurisdiction -- Collector appointed candidate who is substantially younger in age, being 40 years of age, whereas the petitioner is 52 years of age – Land holding is also 39 kanals 9 marlas in the village as against the 25 kanals of the petitioner – Appointed candidate also has experience as Sarbrah Lambardar, being nephew of the deceased Lambardar – The other criteria’s are by and large comparable -- Discretion exercised by the District Collector in the matter of appointment of Lambardar has to be accepted, in case it does not suffer from arbitrariness or perverse exercise of power – Held, the District Collector has taken into account the relevant merit factors, the Commissioner, while exercising appellate jurisdiction, committed an illegality in interfering with the same. Ranjit Singh v. Financial Commissioner, Animal Husbandary, Punjab & Ors., 2011(1) L.A.R. 309 (P&H).
Conduct of candidate -- Petitioner is residing in other village -- Petitioner has got prepared his ration card and voter list in both villages which puts question mark on his trustworthiness – District Collector rightly ignored the petitioner – Collector’s order confirmed by Commissioner -- No illegality/irregularity or any perversity in the order of lower revenue Courts. Sukhdev Raj v. Ranjit Singh, 2011(1) L.A.R. 84 (FC Pb.).
Defaulter of loan -- Collector appointed the candidate, who had mortgaged his property and is defaulter of loan -- Commissioner has rightly set aside the order of District Collector and appointed respondent as Lambardar. Gurnam Singh v. Ajaib Singh, 2011(1) L.A.R. 665 (FC Pb.).
Educational Qualification – Consideration of -- Collector, being the appointing authority, was required to consider the relative merits, in the context of educational qualification, for discharge of duties by the incumbent Lambardar, as provided under Rule 20 of the Punjab Land Revenue Rules. Bhajan Singh v. State of Punjab
Exercise of discretion by the Collector is always preferred – High Court cannot sit as a Court of appeal over the view expressed by the departmental authorities. Ruldu Singh v. Financial Commissioner (Revenue), Punjab and others, 2011(1) L.A.R. 82 (P&H DB).
Financial Commissioner and the Commissioner have taken into account the comparative merit of both the persons -- Petitioner is 49 years of age, appointed candidate is 28 years of age -- Both the candidates are matriculates -- In addition, appointed candidate has donated blood and is President of Guru Ravidas Mandir of the village and therefore, has been found to be serving the society – No reason to judicially review the well founded orders passed by the authorities. Raj Kumar v. Financial Commissioner, Haryana & others, 2011(1) L.A.R. 159 (P&H).
Heart Patient – Merely that a person is a heart patient is not sufficient to deprive him of the appointment unless the ailment is to such an extent that he is unable to perform duty. Jagjit Singh v. State of Punjab and others, 2011(1) L.A.R. 432 (P&H).
Hereditary claim -- As the Collector granted the benefit of hereditary claim to the petitioner and ignored the better qualifications of respondent, the Commissioner rightly set aside the appointment of the petitioner and appointed respondent as the Lambardar. Satish Kumar v. State of Haryana
Hereditary claim – In Karnail Singh’s case, 1973 PLJ 676 it was held by Division Bench that preferential right to appointment on the basis of his hereditary claim is violative of Article 14 of the Constitution – Findings in Harsharan Singh's case, 2009(1) RCR (Civil) 909 that precedence is to be accorded to hereditary claims being contrary to the Division Bench judgment cannot be cited as a binding precedent. Satish Kumar v. State of Haryana
Hereditary claim -- Petitioner’s father was sarbrah lambardar and his grand-father was a lambardar, but he had no experience of working as a lambardar – Accordingly, petitioner’s inheridatory claim for lambardari was not required to be taken into consideration. Rajinder Singh v. Pipal Singh, 2011(1) L.A.R. 88 (FC Pb.).
Jurisdiction of Appellate/ Revisional Authority -- Collector being a revenue officer at the district level is best aware of requirement of appointment of Lambardar for a particular village considering the comparative merit of the candidates who appear before him -- Unless discretion has been exercised perversely, arbitrarily or for malafide reasons, the order is not required to be interfered with. Krishan Lal v. Financial Commissioner, Animal Husbandry, Punjab & others, 2011(1) L.A.R. 243 (P&H).
Land ownership – Requirement of -- Petitioner failed to show that he owned land in his name on the day when the applications for the post of Lambardar were called -- His father may have owned land in that revenue estate, but rules demand that the interested candidate must own land in that revenue to which the post of Lambardar pertains -- Petitioner fails this basic test -- Appointment of respondent as Lambardar upheld. Jasbir Singh v. Joginder Pal, 2011(1) L.A.R. 377 (FC Pb.).
Panch of Village – Member Panchayat -- Rule 15 or any other provision in the Act or the Rules does not provide for any disability to be appointed as Lambardar, in case such a person is a Member Panchayat -- Rather, it would be a qualification if the person has personal influence, character and ability -- Panch of the village indicates better qualification, in terms of Rule 15 (d) and (e). Bhajan Singh v. State of Punjab
Qualification -- Land holdings -- Basic qualification equal, respondent has substantially more land as compared to the petitioner viz. 54 kanal more than the petitioner -- It is a relevant criteria to be considered in exercise of discretion and calls for no interference. Krishan Lal v. Financial Commissioner, Animal Husbandry, Punjab & others, 2011(1) L.A.R. 243 (P&H).
Review – Power to review can only be exercised if conferred by statute or by rule -- In the absence of any provision in the Chowkidara Rules, conferring the power of review upon the S.D.M. or upon the D.C. to grant a permission to review an order, they cannot pass such orders – SDM and the D.C passed the orders under a mistaken belief that they are exercising powers under the Punjab Land Revenue Act, 1887, which confers such a power -- Review orders are a nullity and must, therefore, be set aside. Gurjant Singh v. Deputy Commissioner, Sangrur and others, 2011(1) L.A.R. 199 (P&H).
Sarbrah Lambardar – Merely because the appellant has been working as a Sarbrah Lambardar would not be a sole factor to nullify the other relevant consideration. Ruldu Singh v. Financial Commissioner (Revenue), Punjab and others, 2011(1) L.A.R. 82 (P&H DB).
Serving employee – Suitability of -- District Collector held that petitioner is working in P.S.E.B. cannot remain available to the villagers on Lambardari job, and therefore, is not a suitable candidate for the post – Finding upheld by Commissioner and Financial Commissioner -- Petitioner is serving on a transferable post, no reason to differ with the findings. Tek Singh v. State of Punjab & others, 2011(1) L.A.R. 165 (P&H).
Speaking order – Collector passed the order for appointment of Lambardar, however particulars of the other candidate not taken into consideration while making appointment – Comparative merits of both the candidates not considered – Financial Commissioner remanded the case back to Collector – No legal flaw in the order of Financial Commissioner. Het Ram v. Financial Commissioner, Haryana & others, 2011(1) L.A.R. 308 (P&H).
Summoning in a criminal complaint for a cognizable offence in which the police did not take any action cannot be considered to be an incident serious enough to ignore the claim -- If conviction is recorded, the revenue authorities would surely take into account the said fact. Ran Singh v. State of Punjab & others, 2011(1) L.A.R. 157 (P&H).
Teacher – Candidature of -- Lambardar is required to remain present, by and large at all hours, in the village for discharge of his duties -- In case the petitioner is appointed as Lambardar, other than the fact that he is required to serve as teacher for fixed hours during the day and is serving on transferable post, he might not be available so as to effectively discharge the duties, as given out in Rule 20, which require day to day presence in the area -- Petitioner might be eligible, however, he is not suitable for being appointed as Lambardar. Bhag Singh v. Financial Commissioner, Appeals-II, Punjab & others, 2011(1) L.A.R. 413 (P&H).
Where the choice of the Collector is perverse, arbitrary or violative of any rule, it cannot be final and may, circumstances so permitting be rectified by appellate or revisional authorities. Satish Kumar v. State of Haryana
Allocation letter
Allotment of flat – Mere draw of lots/allocation letter does not confer any right to allotment. Greater Mohali Area Development Authority & Anr. v. Manju Jain & Others, 2011(1) L.A.R. 147 (SC).
Affidavit
Requirement of -- Dismissed in default – Restoration of – Neither the CPC nor the Rules and Orders of Punjab and Haryana High Court provides for filing of affidavit in support of an application for restoration of the suit/election petition which has been dismissed in default, yet under Order 19 Rule 1 of the CPC, the Court can always demand an affidavit and if despite the order of the Court the affidavit is not filed, then the said application deserves rejection. Sukhpreet Singh v. Jatinder Kumar and others, 2011(1) L.A.R. 662 (P&H).
Adverse possession
Co-owner -- Defendant being co-sharer, could not become owner of the disputed shop by adverse possession unless ouster of the plaintiff was proved. Chander Bhan and others v. Gobind Lal and another, 2011(1) L.A.R. 232 (P&H).
Additional evidence
C.P.C. -- Rule 27(1)(b) empowers the Appellate Court to give permission for additional evidence if the Court itself requires any document to be produced or any witness to be examined for the purpose of its assistance for coming to a just conclusion and for any other substantial cause -- Even if the documents, namely, jamabandis were within knowledge of the appellants, the Court can always allow it in terms of Order 41 Rule 27(1) (b) of the CPC – Documentary evidence which cannot be created or manufactured for the first time after the decision of the suit i.e. any official document whose authenticity is not in dispute and is capable of assisting the Court to take final decision in respect of the dispute between the parties, such evidence should not normally be disallowed to be taken on record. Gurdial Singh and others v. Mam Chand and others, 2011(1) L.A.R. 579 (P&H).
Acquittal in Criminal appeal
Dismissal of Lambardar – Criminal case u/s 302/34 IPC – A person involved in a case u/s 302 IPC cannot command any respect from public as, surely, the public cannot have confidence and rely on him -- Surely, a person who has been tried for an offence as serious as u/s 302 IPC, cannot serve the purpose of the post held by him as he would be looked upon with suspicion -- Order, dismissing the Lambardar, was not required to be reviewed, even though he has been acquitted. Dharam Pal v. Financial Commissioner, Haryana & others, 2011(1) L.A.R. 418 (P&H).
Indian Succession Act, 1925 (39 of 1925)
Section 59 – Will – Execution of – Suspicious circumstances -- Execution of the Will in favour of a total stranger to the exclusion of testator's own sons and daughters is a grave suspicious circumstance surrounding the impugned Will – It is also significant to notice that the alleged Will is dated 31.12.1997 and testator died on 24.03.1998, but the will w...as got registered on 18.09.2000 i.e 2 ½ years after the death of the deceased -- Will was scribed by layman and not by professional Deed Writer -- One cousin of testator is a practicing advocate -- It has also come in evidence that the deceased had cordial relationship with the plaintiffs -- Will is, held to be, shrouded with so many suspicious circumstances.
Jagtar Singh v. Mangat Saini and others, 2011(2) L.A.R. 205 (P&H).
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