Back
2018 Supreme(HP) 593
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CHANDER BHUSAN BAROWALIA, J.
Punjab State Power Corporation Ltd. – Appellant
Versus
Smt. Sundari Devi and others. - Defendants.
Civil Suit No. 55 of 2005
Decided on : 08-08-2018
For the Appellant :Mr. Anand Sharma, Advocate.
For the defendants :Mr. Anil Kumar God, Mr. Ashwani Sharma and Mr. P.K. Bhatti, Additional Advocates General.
Headnote:
The plaintiff-Board, through its Resident Engineer (hereinafter referred to as “the plaintiff- Board”), preferred the present suit against original defendant No. 1, Shri Suraj Singh Pathania (since dead, now represented by his legal heirs, i.e., defendant No. 1(a) to 1(e)) and defendant No. 2/Union of India through Secretary (Relief and Rehabilitation) to the Government of H.P. (hereinafter after referred to as “the defendants”) for declaration and possession and also for permanent injunction restraining the defendants from changing the nature of the property in question.
Fact of the Case:
The plaintiff-Board has further averred that on and w.e.f. 01.05.1967 the New Punjab State Electricity Board was created and former State Electricity Board was taken over by it. Resultantly, Hydel Power House, Joginder Nagar (Shanan Power House) was taken over by the New Punjab State Electricity Board, which was constituted by the Government of Punjab. Feeling aggrieved, the State of Himachal Pradesh represented before the Central Government qua grant of Shanan Power House to the Punjab State Electricity Board. On 24th February, 1972, an exhaustive discussion held in the Ministry of Irrigation and Power, which resulted in issuing a clarification dated 2nd March, 1972, whereby allotment of assets of Shanan Power House in favour of the plaintiff-Board was reaffirmed and the clarification specifically provided that “it has been decided that the allocation of Power Station conferred under this Ministry Order No. EL-II-3(17)/66 (2), dated 01.05.1967, will not be modified.”
Finding of the Court:
The plaintiff-Board has also examined four witnesses in rebuttal. PW-1/R, Shri Manjit Singh, Civil Ahlmad, in the office of Civil Judge (Junior Division), Jogindernagar, District Mandi, brought copy of judgment and decree passed in Civil Suit No. 192 of 2005, which are Ex. PW-1/R-A and Ex. PW-1/R-B. He has also brought copy of judgment and decree passed in Civil Suit No. 193 of 2005, which are Ex. PW-1/R-C and Ex. PW-1/R-D. Copy of judgment and decree passed in Civil Suit No. 194 of 2005 are Ex. PW-1/R-E and Ex. PW-1/R-F. PW-2/R, Shri Om Parkash, Patwari, brought the summoned record, i.e., mutations No. 248, dated 13.11.2007, 269 dated 29.03.2001 and 273, dated 11.01.2001, which are Ex. PW-2/R-A, Ex. PW-2/R-B and Ex. PW-2/R-C. PW-3/R, Shri Jiwan Kumar, brought the records from the office of Sub Divisional Officer-cum-Settlement Officer (Sales), Kangra, District Kangra, H.P. He has brought on record two letters, which are Ex. PW-3/R-A and Ex.PW-3/R-B. PW-4, Shri Mani Ram, Kanungo (Records) in the office of S.D.O. (Civil) Jogindernagar, has produced the copy of order, which is Ex. PW-2/R-B. As per his version, the plaintiff-Board appealed against the said order before the Sub Divisional Collector, Jogindernagar. He has also testified the copy of order dated 05.02.2007, which is Ex. PW-4/A-R.
Issues: 1. Whether the plaintiff is owner of the suit land and entitled to declaration to this effect and also for possession of the suit land? OPP 2. Whether the mutation of the suit land in favour of defendant No. 2 is illegal, null and void and has no effect upon the right, title and interest of the plaintiff? OPP 3. Whether this Court does not have pecuniary jurisdiction to try the suit, as alleged? OPD 4. Whether the plaintiff has filed a suit in the Court of Civil Judge, Jogindernagar, which includes a part of the subject matter of this suit, against another person? If so its effect? OPD-1 5. Whether the suit is barred by time? OPD-1 6. Relief.
Ratio Decidendi: The plaintiff-Board has also examined four witnesses in rebuttal. PW-1/R, Shri Manjit Singh, Civil Ahlmad, in the office of Civil Judge (Junior Division), Jogindernagar, District Mandi, brought copy of judgment and decree passed in Civil Suit No. 192 of 2005, which are Ex. PW-1/R-A and Ex. PW-1/R-B. He has also brought copy of judgment and decree passed in Civil Suit No. 193 of 2005, which are Ex. PW-1/R-C and Ex. PW-1/R-D. Copy of judgment and decree passed in Civil Suit No. 194 of 2005 are Ex. PW-1/R-E and Ex. PW-1/R-F. PW-2/R, Shri Om Parkash, Patwari, brought the summoned record, i.e., mutations No. 248, dated 13.11.2007, 269 dated 29.03.2001 and 273, dated 11.01.2001, which are Ex. PW-2/R-A, Ex. PW-2/R-B and Ex. PW-2/R-C. PW-3/R, Shri Jiwan Kumar, brought the records from the office of Sub Divisional Officer-cum-Settlement Officer (Sales), Kangra, District Kangra, H.P. He has brought on record two letters, which are Ex. PW-3/R-A and Ex.PW-3/R-B. PW-4, Shri Mani Ram, Kanungo (Records) in the office of S.D.O. (Civil) Jogindernagar, has produced the copy of order, which is Ex. PW-2/R-B. As per his version, the plaintiff-Board appealed against the said order before the Sub Divisional Collector, Jogindernagar. He has also testified the copy of order dated 05.02.2007, which is Ex. PW-4/A-R.
Final Decision: The suit of the plaintiff-Board is decreed.
Chander Bhusan Barowalia, J.
The plaintiff/Punjab State Electricity Board, through its Resident Engineer (hereinafter referred to as “the plaintiff- Board”), preferred the present suit against original defendant No. 1, Shri Suraj Singh Pathania (since dead, now represented by his legal heirs, i.e., defendant No. 1(a) to 1(e)) and defendant No. 2/Union of India through Secretary (Relief and Rehabilitation) to the Government of H.P. (hereinafter after referred to as “the defendants”) for declaration and possession and also for permanent injunction restraining the defendants from changing the nature of the property in question.
2. It is contended in the plaint by the plaintiff-Board that prior to independence the Mandi State was under the sovereign rule of Raja of Mandi and all properties within the Mandi State were under the ownership of Raja of Mandi. It is further contended that on 03.03.1925 an agreement was entered into for 99 years, at Mandi into between the Raja Darbar Mandi and State of India in council of the one part and the Lt. His Highness Raja Joginder Sen Bahadur Raja. The agreement was signed at Lahore by A.R. Astbury Asquire, Officiating Secretary to the Government of Punjab, Public Works Department, Building & Road Branch for and on behalf of Secretary of State for India in Council and by order of the Governor of Punjab. Through this agreement land comprised in Khasra No. 566, 567 and 568, kittas 3, measuring 2-2-3 bighas, situate in Mauza Shanan/393, Tehsil Joginder Nagar, District Mandi, H.P. (hereinafter referred to as “the suit land”) alongwith other lands was permanently transferred, through lease to Government free of charge, for establishment of Hydel Project and the consideration was fixed that free electricity will be supplied to the Darbar. One of the stipulation in the agreement was that Government shall bear all the expenses incurred by the Darbar for rehabilitation of inhabitants, who have to be removed from their lands or houses and also for the inhabitants, have suffer damage to their lands or properties, by reason of the scheme. In lieu of the grant of land, water and minerals, the Darbar was to be given electricity for free for the use and sale within the Mandi State and the maximum ceiling was fixed, according to the development of the project, half of one percent of the peak load capacity of the power station located in Mandi State and the minimum of 250 KWs, which was to be supplied if required during the first year of operation delivered at Mandi.
3. The plaintiff-Board has further averred that the project took seven years for its completion and it provided electricity to his Highness, Raja Joginder Sen Bahadur, till he remained alive and especially till 1947, when the partition took place. In 1947 the property in dispute was allotted to the State of Punjab. Subsequently, the Government of India declared the Shanan Power House, its headwork’s at barot and Haulgeway as “Prohibited Place” and the total area transferred to the Shanan Power House was distinctly described by area as also by boundaries.
4. In 1966, re-organization of State of Punjab, Haryana and Himachal Pradesh took place. Section 48(1) of the Punjab Re- Organization Act, 1966, provides as under:
“48. Land and Goods.- (1) Subject to the other provisions of this part, all land and all stores, articles and other goods belonging to the existing State of Punjab shall:-
(a) If within the Sate, pass to the Successor State in whose territories they are situated; or
(b) If outside that State, pass to the State of Punjab:
Provided that where the Central Government is of the Opinion that any goods or class of goods should be distributed among successor States otherwise than according to the situation of the goods, the Central Government may issue such directions as it thinks fit for a just and equitable distribution of the goods and t
