Disposed

Vijay Kumari and Ors. v. Usha Devi and Ors.

Punjab & Haryana HC20 Sept 2013CR/4919/2009

Case brief

AI extract

What is this about?

This suo motu case addressed the plight of minor girls whose father was convicted of murder and whose remaining property was misappropriated. The Court ensured maintenance, restored land possession, secured government welfare scheme benefits, protected them from the fraudulently convicted revenue officer, and eventually allowed funds for marriage expenses for adult daughters.

What did the court decide?

Liberty granted to major daughters and guardian to withdraw FDR amounts for marriage expenses; state directed to continue welfare benefits; land possession restored.

Vijay Kumari and Ors. Vs Usha Devi… — Pension and Retirement Benefits | Punjab & Haryana HC (2013)

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HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CR No.4919 of 2009 (O&M) Date of Decision: 20.09.2013

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Vijay Kumari & Ors. . . . . Petitioners

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VS.

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Usha Devi & Ors. . . . . Respondents

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1. Whether Reporters of local papers may be allowed to see the judgment?

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2. To be referred to the Reporters or not?

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3. Whether the judgment should be reported in the Digest?

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Present: Mr. Naresh Kumar Joshi, Advocate – Amicus Curiae

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Mr. SS Dinarpur, Advocate for the petitioners

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Mr. SS Pattar, Sr.DAG Haryana

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Mr. Arjun Lakhanpal, Advocate for respondent No.6

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Mr. Siddharth Batra, Advocate for respondent No.7

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SURYA KANT, J. (Oral)

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(1) An interlocutory order dated 17.4.2009 passed by the Civil Court, Pehowa impugned in the revisional jurisdiction led to initiation of suo motu exercise of powers by this Court under Articles 226/227 of the Constitution of India on 31.08.2009 when the selectively-disclosed facts in that revision petition revealed the miseries and plight of four minor sisters (respondents No.1 to 4), daughters of respondent No.5 and who were aged about 14, 11, 8 & 2 years at that time (the youngest of them unfortunately expired before this Court took notice). Their mother was murdered by their

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father Joginder Singh (respondent No.5) who was convicted under Section 302 IPC and sentenced to undergo life imprisonment. The agricultural land owned by respondent No.5 was of substantial value and the girls had their first charge on that land to seek maintenance but the 5^th respondent sold the same to Manjit Singh s/o Gurjung Singh from whom the revision-petitioners purchased it by way of registered sale deed dated 30.03.2007.

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(2) The core-question that arose for consideration was how to protect the interest of the minor girls? This Court thus passed the following order on 31.08.2009:-

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“Since the rights and very survival of four hapless minor sisters are involved and the suit land is likely to exchange more hands to strengthen the conspirated plea of `bonafide purchasers', the petitioners are hereby restrained from alienating and/or creating any type of encumbrance on the suit land. The Deputy Commissioner, Kurukshetra and Naib Tehsildar, Ismailabad are directed to make necessary entries in the revenue record forthwith, if already not made, and not to entertain any transaction whatsoever in respect of the suit land till further orders. Similarly, there shall be complete restrain order against sell/transfer and/or creation of any encumbrance on the remaining land of respondent No.5-Joginder Singh son of Shri Sadhu Ram, r/o village Tabra, Tehsil Pehowa, District Kurukshetra.

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The Deputy Commissioner, Kurukshetra and the Naib- Tehsildar, Ismailabad shall fill their affidavits in compliance.

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The Naib-Teshildar, Ismailabad shall remain present in Court on the next date of hearing to explain why penal action be not taken for his prima-facie collusion with respondent No.5 and the subsequent vendees when the sale deeds were registered without any recital regarding `change for maintenance'.

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A prima-facie case of playing fraud by respondent No.5 with the Court, in connivance and collusion of his family members having been made out, the Deputy Commissioner, Kurukshetra and the Naib Tehsildar, Ismailabad are further directed to ensure that Sultan Singh, Ram Singh and/or other brothers of respondent No.5 and sons of Sadhu Ram, resident of Village Tabra, Tehsil Pehowa, District Kurukshetra, are not permitted to sell, transfer or alienate their agricultural lands and/or create any type of encumbrance upon such lands.

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In the interest of justice and for the purpose of further probe, Manjit Singh son of Gurjung Singh, s/o Village Daska Miraji, Sub Tehsil Ismailabad, District Kurukshetra is ordered to be impleaded as respondent No.6 in this revision petition, the scope of which is required to be expanded in order to protect the rights and interest of respondent Nos.1 to 4 i.e. four hapless

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minor daughters of respondent No.5. The petitioners are directed to effect service upon the newly added respondent No.6 for the date fixed, through dasti notice.”

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(3) Since culpability and collusion of Revenue Officers could not possibly be ruled out, directions were issued to the Deputy Commissioner on 25.09.2009 to hold a fact-finding enquiry.

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(4) The enquiry report(s) were submitted and as per the same, the then Tehsildar was found involved. The Financial Commissioner (Revenue), Haryana was thus directed to take disciplinary action against the delinquent officials.

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(5) The report submitted by the Deputy Commissioner, Kurukshetra was considered on 20.11.2009 and the following directions were issued:-

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“The facts in respect of Manjit Singhrespondent No.6 and Rakesh Garg, the then Naib Tehsildar, Ismailabad, are, however, entirely different. The fact finding enquiry report of the Deputy Commissioner, Kurukshetra, dated 24.9.2009 clearly establishes that it was in the knowledge of the then Naib Tehsildar, Ismailabad, namely Rakesh Garg that there is an order of attachment passed by the Civil Court, Pehowa in respect of the land in dispute, yet he, in connivance with Joginder Singhfather of the minor girls, did not make any entry of that Civil Court order in the revenue record

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and actively facilitated Joginder Singh to sell the land in favour of Manjit Singh, respondent No.6.

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Similarly, the record reveals that Manjit Singh, respondent No.6, had apparently no means to pay nor any sale consideration appears to have passed on to Joginder Singh-respondent No.5, at his instance. Suffice it to say that the entries in the bank account of Joginder Singh do not support the false claim made by Manjit Singh. Thus, a, prima-facie, case is clearly made out against both of them.

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For the reasons afore-stated, the order dated 25.9.2009 is modified to the extent that the Superintendent of Police, Kurukshetra is directed to act upon the report of the Deputy Commissioner, Kurukshetra dated 24.9.2009 and register an appropriate case against the suspects (except the three lady petitioners) and appoint a fairly senior police officer as Investigating Officer who will take immediate action against all the suspects. The status report shall be placed before this Court on the next date of hearing.”

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(6) Meanwhile, some of the persons involved in

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misappropriation of the immovable property which actually belonged to the minor girls, voluntarily agreed to compensate them by depositing the amounts which were otherwise recoverable from

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them. The amount so deposited by them was directed to be kept in the FDRs in the Punjab National Bank, Main Branch, Kaithal.

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(7) The parens patriae jurisdiction was also invoked by this Court as the maternal uncle of the girls despite his best efforts was unable to ensure admission and/or basic amenities for the girls for their education. The following order was thus passed on

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22.01.2010:-

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“The peculiar and painful facts of this case, to some extent, also expose the lack of sensitivity of the State apparatus who, despite making tall claims through media and otherwise, regarding launching of several ‘social-welfare schemes’ for the female children, has not come forward with any assistance like provision of scholarship, free education, monetary aid to the three girls, who, but for the commendable social responsibility being discharged by their maternal uncle, would have been in no better condition than the unprotected orphans.

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The Principal Secretaries of the Education Department and the Social Welfare Department, Government of Haryana are, therefore, directed to convene an urgent meeting before the next date of hearing to be attended by all the Authorities, directly or indirectly concerned with the implementation of the various ‘welfare schemes’ and examine as to what kinds of grant-in-aid, scholarships or monetary assistance including bearing the entire expenditure on their education, can be provided to the girls out of

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whom, two are admittedly minors. The favourable decision, if any, may be implemented forthwith. However, in the event of any reluctance, let an affidavit of the officer in the rank of Joint Secretary or above, along with copies of all such ‘Schemes’ launched from time to time, be placed on record.”

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(8) The State authorities were reminded of their duties under various ‘social welfare schemes’, as the benefits of those schemes were being unfortunately denied to the girls. The State was asked to explain “ as to why the benefit of one or the other ‘Schemes’ cannot be extended to the three girls… ”, to which the Financial Commissioner and Principal Secretary to Government of Haryana responded by way of his affidavit saying :-

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“That after reviewing the provisions in different schemes of the three departments namely, Women and Child Development, School Education and Social Justice and Empowerment, it has been decided that the girls in the present case can be given the following financial and other assistance for their education and upbringing:-

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(i) Under the ' Financial Assistance to Destitute Children Scheme' , Rs.200/- per month to each girl till they attain the age of 21 years.

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(ii) Under ' Ladli Social Security Allowance Scheme', Rs.500/- per month will be given to the family having only girl child/children.

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(iii) School/College Education:

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(a) Tuition fee upto BA/B.Sc/B.Com will be exempt if they study in Government/ Government aided Schools/Colleges.

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(b) Free text books, stationery and uniform to the youngest girl till class 8^th if she is studying in a Government School.

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(c) Monthly stipend of Rs.200/- from 6^th to 8^th class, Rs.300/- from 9^th to 12^th class (Rs.400/if they study in science stream in 10+1 and 10+2 class).

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The above financial assistance will be given to these girls keeping in view the tragic circumstances and considering that they have no source of income and are destitute.”

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The action of the State authorities in reviewing their previous decision in providing assistance to the needy three girls as per the Government Policies, is appreciated.”

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(9) On 23.04.2010, this Court passed the following order:-

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“Learned Amicus Curiae informs that the application moved by the girls for restoration of the possession of the land measuring 4 kanals 0 marla owned by their father, is yet to be decided. Learned Civil Court, Pehowa is accordingly directed to decide the said application as early as possible in accordance with law.

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It is informed that the eldest of the three girls has got admission in a private college and younger to her is pursuing her studies in 10^th standard in the Jaat High School, Kaithal. As regards the youngest girl, learned Amicus Curiae, on instructions from her maternal uncle,

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states that she will be got admitted in DAV Public School at Kaithal. This Court is quite sanguine that the Management and the Principal of DAV Public School, Kaithal shall, in the facts and circumstances of this case, grant admission to the 3^rd girl in their school.

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It is also pointed out by the learned Amicus Curiae and rightly so that in order to secure a better future, the girls may be permitted to apply for allotment of the plots to be floated by the Haryana Urban Development Authority in the urban estates of Kaithal and/or any other better place. The Branch Manager, Punjab National Bank, Katihal is, accordingly, directed to permit the eldest girl, who is major, to apply for herself and on behalf of her younger sisters and issue the requisite demand drafts in the name of the HUDA authorities. In the event of any such allotment(s), the Bank authorities shall ensure that the instalments are paid directly from the Bank accounts of the girls. In the event of any difficulty, the Amicus Curiae as well as the Bank authorities may seek further clarification/direction(s).”

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(10) Since the State of Haryana at a later stage was reluctant to extend the benefit of its welfare policies on the plea that one of the girls, namely, Karamjeet, had attained the age of 18 years and the benefit was admissible only upto that age, this Court in the peculiar facts and circumstances, passed the following order

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on 15.10.2010:-

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“At this stage, learned Amicus Curiae points out that Ms.Karamjeet is near to attain the age of 18 years and the authorities have orally informed that henceforth she would not be entitled to the educational allowance.

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In my considered view, at the age of 18 years, Ms.Karamjeet, who is admittedly studying in Class 10+1, is fully entitle to receive the educational allowance as she has no independent source of income except the amount deposited by different quarters under the orders of this Court.

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It is accordingly directed that Ms.Karamjeet and Ms.Rajni both shall be paid the educational allowance till they complete their higher education/get married and/or get a permanent source of income like Government employment.”

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(11) It was informed on 03.12.2010 that the eldest girl was in

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the final year of her graduation in the Indira Gandhi Mahila Mahavidyalaya at Kaithal and younger to her was studying in a Convent School while the youngest one was studying in Govt. School at Siwan.

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(12) Several orders have been passed thereafter to ensure that the benefits flowing from the Government Schemes must percolate to the needy girls for their quality education and social security. The possession of the land measuring 4 kanal, still owned by their father, was also restored in favour of the girls vide orders dated 28.02.2012 and 17.08.2012. The latter order reads as

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follows:-

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“The affidavit filed by the maternal uncle of the girls further discloses the sorry state of affairs prevailing in the Civil Court at Pehowa, who has not decided the application moved by the girls despite time-bound directions issued by this Court on 22.01.2010. It is directed that if no maintenance has been paid by their father or his family for the girls, the Civil Court and the District Administration shall ensure that possession of land measuring 4 kanals owned by their father [who is presently lodged in jail] shall be forthwith restored and handed-over to the girls. The Superintendent of Police, Kurukshetra shall submit a compliance affidavit in this regard on the next date of hearing.”

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(13) On 21.09.2012, this Court passed the following order:-

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“As regard to restoration of financial assistance of � 1000/- per month to Usha Rani and Karamjit, Mr. R.D.Sharma, learned DAG, Haryana states that the due amount has been paid to them up to August, 2012. Let an affidavit of the Head or Secretary of the Department concerned undertaking that the said financial assistance shall be regularly released to the three girls uninterruptedly until they get public employment and/or are married, be filed.

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Keeping in view the small size of land, which may not be properly utilized for agricultural purposes, it appears expedient to summon the Divisional Forest Officer concerned, Kurukshetra, who shall remain present in Court to advise as to

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how the land measuring 4 kanals can be appropriately utilized for non-forestry purposes.”

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(14) On 14.12.2012, the Divisional Forest Officer, Kurukshetra agreed to plant poplar trees on the 4-kanal land and Teak trees on its boundaries for the optimum utilisation of the land. The officials of the Forest Department indeed have done a commendable job.

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(15) Equally relevant would be to point out the dubious methods adopted by one of the suspects who was instrumental in the fraudulent transfer of the land belonging to the father of the minor girls, namely, the then Tehsildar against whom on the recommendations by the Deputy Commissioner, Kurukshetera, a criminal case i.e. FIR No.142 dated 12.12.2009 u/S 406, 420, 467, 468, 471 & 120-B IPC at PS Ismailabad, District Kurukshetra was also registered. He approached this Court in CRM-M-37127 of 2009 (Rakesh Garg vs. State of Haryana) seeking quashing of the above-stated FIR. He concealed the material facts and got stay of proceedings. The said petition was when listed before this Court for final hearing was dismissed vide a detailed order dated 26.02.2010, observing as follows:-

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[39] Otherwise also, the petitioner is not entitled to seek any discretionary relief as he has not approached this Court with clean hands and has filed this petition apparently for extraneous and malafide reasons. It is quite unfortunate that the petitioner’s counsel though with a fairly

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long standing, has also played in the hands of the petitioner. It is strange that: (i) the only document appended by the petitioner with this quashing petition is a copy of the impugned FIR and the Civil Court order; the revenue record and the application moved by the guardian of the minor girls and most importantly, several speaking orders passed by this Court in the suomoto proceedings, each one in the presence of the petitioner and his counsel, were conveniently concealed and not brought on record; (ii) only a passing reference to one or two orders passed by this Court in suo-moto proceedings has been given and that too selectively with an intent to mislead the Court; (iii) despite sufficient time available to institute this petition before or after winter-break, the petitioner chose to present the same during vacations and got it admitted on the same day by concealing all material facts.

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[40] For the reasons afore-stated, I do not find any merit in this petition which is dismissed with a cost of Rs.15000/-. The cost amount shall be deposited by the petitioner with the Civil Court at Pehowa within a period of one month from the date of receipt of a certified copy of this order and the same shall be disbursed to the minor girls within one week of its deposit.

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[41] The observations made herein-above, shall have no bearing on the merits of the ‘Corruption Case’ in which the petitioner is facing trial before the Special Judge, Kaithal or the subject FIR which is still under

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investigation. Suffice it to observe that both the matters shall be dealt with as per their own merits and the petitioner shall be entitled to raise all his pleas before the Court concerned or the investigating agency, as the case may be, in accordance with law. Similarly, the observations made hereinabove shall have no bearing on the bail application, if any, moved by the petitioner.”

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(16) This order was upheld by the Apex Court also.

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(17) Time runs very fast. During the pendency of these suo motu proceedings, maternal uncle of the girls has, today, filed an affidavit stating that the eldest of them Usha Rani, after doing her Graduation and B.Ed., is now pursuing her Masters degree in History and younger to her, Karamjit is now pursuing Bachelor of Commerce (2^nd year) from a College at Kaithal. The youngest, Rajni, is studying in 10+1 standard in a private school at Kathwar, District Kaithal. While Usha Rani (eldest) is getting Rs.500/- per month under the ‘LADLI’ scheme of the State Government, Karamjit and Rajni are getting Rs.1200/- each under different schemes. A sum of Rs.40 lacs has been deposited under the orders of this Court in shape of FDRs in the names of the girls and the interest accruing thereupon is regulated in terms of the order dated 15.10.2009 which reads as follows:-

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“The Branch Manager of Punjab National Bank, Main Branch, Kaithal, shall not allow the encashment of the FDRs at any point of time

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without prior approval of this Court and keep the FDRs/deposits, made by the petitioners and respondent No.6, in the accounts of the girls in such a manner that the monthly interest to be accrued at the maximum rate is paid to Ms.Usha Devi, the first daughter of Joginder Singh (who is stated to be major) and to Mr.Balwant Singh (guardian of the two other minor girls).”

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(18) The Director, Women & Child Development Department, Haryana has filed an affidavit dated 19.09.2013 and in its paragraphs 2 to 4, it is stated :-

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“2. That the Women & Child Development Department, Haryana is providing the financial assistance of Rs.1000/- per month to Ms. Karamjit and Ms. Rajni as educational allowance regularly in compliance with the orders of this Hon’ble Court dated 15.10.2010 in CR No.4919 of 2009.

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3. That the payment upto August-2013 has been paid to both Ms. Rajni and Ms. Karamjit and the same will also be provided to the both girls in future also. The copies of receipts of payment August-2013 are annexed herewith as Annexure-1 and Annexure-2 respectively. 4. That Women & Child Development Department, Haryana will sincerely comply with if any further orders may be issued by this Hon’ble Court.”

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(Emphasis applied)

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(19) Learned Amicus Curiae submits that in view of the fact that the girls are regularly receiving Government aid under one or the other Schemes as per their entitlement under the orders of this Court and there is an undertaking by the Department to continue to provide such benefits to the girls without any interruption, that no further direction need to be issued and the matter can be closed though with certain clarificatory directions.

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(20) I have heard learned Amicus Curiae and the State counsel. Needless to say that in due course of time, the girls would reach the marriageable age one-by-one and a part of the amount lying in the FDRs would be needed to meet with the basic expenses of their marriages. Liberty is thus granted to two of the three girls i.e. Usha Rani and Karamjit (who have already attained majority) and their maternal uncle, namely, Balwant Singh s/o Sh. Barthu Ram to withdraw a part of the amount to the extent it is needed for actual marriage expenses. They are also granted liberty to invest the amount in some immovable property which shall have to be jointly purchased in the name of all the three girls. State of Haryana shall continue to provide financial assistance to the girls as per the Schemes mentioned in the affidavit.

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(21) In future, if there is any genuine apprehension to the lives and liberty of the girls or their maternal uncle and his family, District Administration is directed to take immediate remedial steps to ensure full protection to them.

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(22) The assistance provided by Mr. Naresh Kumar Joshi, Amicus Curiae is appreciated.

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(23) With these observations and directions, these

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proceedings stand disposed of.

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Vijay Kumari and Ors. v. Usha Devi and Ors.

Case brief

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Vijay Kumari and Ors. v. Usha Devi and Ors.

Case brief

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