Punjab-Haryana High Court
Assam vs Commissioner Gurgaon Division on 31 October, 2013
Bench: Jasbir Singh, G.S.Sandhawalia
LPA No.1881 of 2013 (O&M) -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.1881 of 2013(O&M)
Date of decision: 31.10.2013
Assam .Appellant
Vs.
Commissioner Gurgaon Division, Gurgaon and others
.Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE G.S.SANDHAWALIA
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Present: Mr. Lokesh Sinhal, Advocate for the appellant.
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G.S.SANDHAWALIA, J.
1. Challenge in the present intra-court appeal is to the order dated 21.9.2012 passed by the learned Single Judge in Civil Writ Petition No.20233 of 2006 Assam Vs. Commissioner Gurgaon Division and others and the order dated 6.8.2013 whereby the review application of the appellant was dismissed.
2. The present appeal is also barred by 342 days' delay and in the application for condonation of delay ground taken is that since the Review Application had been filed, therefore, the delay has occurred in filing the appeal.
3. Challenge in the writ petition filed by the appellant was to the order dated 28.5.1998 (Annexure P-4) passed by respondents no.2 who had set aside the auction in his favour conducted on 16.12.1993 for Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -2- ***** the land measuring 6 Kanals 4 Marlas situated in village Malab, Tehsil Nuh District Gurgaon for a sum of ` 12,000/-. The appeal filed by the appellant was dismissed by the Commissioner, Gurgaon Division, Gurgaon on 20.10.2005 (Annexure P-5) which led to the filing of the writ petition.
4. The private respondent no.4 Khalil was in possession of the land in question when it was allegedly put to auction and on his possession being disturbed he had initially filed a suit for permanent injunction against the present appellant on the ground that he being in possession from the time of his fore-fathers was entitled for protection. Since the possession of the land in question was delivered to the appellant the respondent no.4 approached the authorities and filed a complaint/revision petition on 26.2.1996 against the auction on the ground that he was neither informed about the auction proceedings nor any proclamation was made with regard to auction and he withdrew his suit on 30.7.1996. In his complaint/revision petition filed before the Settlement Commissioner, he pleaded that he was ready to purchase the land in question by giving a bid of ` 30,000/-. The Settlement Commissioner after going through the record came to the conclusion that the private respondent was occupant of the land and was never informed about the auction and it was not held in the village. The amount of ` 12000/- for 6 Kanals 4 Marlas of land was also held to be inadequate price and direction was issued that the land be re-auctioned. The said order was upheld in appeal as noticed earlier by the Commissioner.
Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -3- *****
5. The learned Single Judge by a detailed order came to the conclusion that the auction was held at undisclosed place and the counsel for the petitioner could not disclose the location of the auction even though his client had participated in the auction. It was further recorded that a sum of ` 12,000/- would be less than the lease money which could be got for the land in question. Accordingly, finding was recorded that it was a fraudulent act with the connivance of the revenue staff and even direction was issued to locate the Tehsildar, who had conducted this auction and to take appropriate proceedings against him in accordance with law. The relevant portion of the order reads as under:-
"From this, the counsel would contend that there was no requirement of serving a notice on respondent No. 4 even if he was concededly to be in unauthorised possession. The record would show that this auction was held at some undisclosed place. The petitioner being the auction purchaser, counsel representing him was asked to show, at which place this auction was held. The counsel clearly has shown his inability to disclose the place. Obviously, this is an effort to evade answer to conceal this fact as otherwise the petitioner cannot plead ignorance about this fact he being participated in this auction. The land measuring about 2 acres in the year 1994 has been auctioned for paltry sum of Rs. 12,000/-. This land even would fetch more lease money than for which it is sold in Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -4- ***** auction Further disturbing feature, in this case, is that the place of auction is not disclosed which is required to be specified as per Rule 5 (c) of the rules. If the petitioner till date is not able to disclose the place where this auction was held, obviously it was held at some hidden place in isolation without disclosing the location. That being the position, how anyone could have come to participate in this auction, where the place of auction is not notified in the notice. The notice was not displayed in the manner as is required by the rule. The place, where the auction was also held is not disclosed in the notice.
Perusal of the impugned order would further show that the submissions made by the petitioner as well as respondent No. 4 was discussed in detail by all the authorities concerned. The Sales Commissioner as well as Divisional Commissioner have found that occupant of the land under auction was not informed of auction. May be that, it was not required as per the rule but still the other requirement of displaying the notice etc. if was not complied with in a manner as is required by law, it would be in violation of law. A procedure which was followed was not fair. The person if not informed about the place of the auction to be held, how could he have participated in the auction. The Tehsildar before conducting the auction should Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -5- ***** have informed and well-advertised this fact so as to fetch the proper value of the land. A person even if he is unauthorised occupant would fail to represent himself at the time of auction, if no proper notice was issued. This auction is, apparently, actuated with fraud. It was a fraudulent act on the part of the petitioner, which he had done in connivance with revenue staff. It is a fraud which is quite apparent from the record and cannot be countenanced. This would call for interference. It is not only a case where the impugned orders are to be set aside but the writ petition would have to be dismissed with directions to the State to locate the Tehsildar, who had conducted this auction and to take appropriate proceedings against him in accordance with law, if he is found to have connived in conducting this auction.
The writ petition is dismissed, accordingly."
6. The appellant approached this Court by filing the Letters Patent Appeal No.1803 of 2012, which was dismissed as withdrawn on 16.11.2012 with liberty to approach the learned Single Judge to file a review application. The relevant portion of the order reads as under:-
"After addressing arguments for some time, counsel for the appellant prays that as certain relevant facts have not been taken into consideration, the appeal may be dismissed as withdrawn with liberty to the appellant to file a review application.
In view of the statement made by counsel for the Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -6- ***** appellant, the appeal is dismissed as withdrawn with liberty, as prayed."
7. Instead of pursuing the review application immediately, the appellant chose to delay the filing of the review application and only filed the same in the year 2013 which was listed after the learned Single Judge had retired in April, 2013. However, the matter was heard by another learned Single Judge who dismissed the review application on 6.8.2013 by passing the following order:-
"The aforesaid order was passed on 16.11.2012 and the present review application has been filed after a period of 8 months. In the application, nothing has been mentioned as to why the application for review cannot be filed before the same Court and why the application has been filed after a period of 8 months. No explanation has been given in the application as to why the application was not filed before the same Hon'ble Bench who was there upto April, 2013. There is no explanation also in the application for inordinate delay of 8 months in filing the application for review.
On this ground alone, I am not inclined to entertain the application for review.
Dismissed."
8. Counsel for the appellant has vehemently submitted that the sale certificate had been issued on 3.7.1995, therefore, the authorities below did not have any jurisdiction to set aside the sale.
Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -7- ***** Reliance has been placed upon Lila Krishan and others Vs. Union of India and others 1970 Vol.LXXII Punjab Law Reporter 719 and Mohinder Singh Vs. Deputy Commissioner-cum-Chief Sales Commissioner, Ludhiana 1996(2) RRR 246.
9. After hearing counsel for the appellant, we are of the opinion that no case is made out to interfere with the impugned order. Admittedly as per 1962 rules governing "Rural Evacuee Properties", the surplus land could be disposed of by public auction, by inviting tenders, by transferring to the occupants and at such price as the State Govt. may by general or special order specify and transfer at agreed prices to other Govt. Departments, Local Bodies etc. There is no dispute about the fact that the private respondent was occupying the property in question and he had also filed a suit to that effect since he was in possession since the time of his fore-fathers and as such he was a necessary person to whom the land could have been transferred being occupant before the land could be put to public auction or at least at a chance had to be given to him to purchase the property, if it was to be put to auction. The said Rule 3 reads as under:-
"3. Mode of Sale of property Any surplus evacuee property purchased by the State Government may be disposed of in any of the manners set out below:-
i) By public auction;
ii) by inviting tenders;
iii) By transfer to such class of occupants and at such Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -8- ***** price as the State Govt. may be general or special order specify;
iv) By transfer at agree prices to other Govt.
Departments, Local Bodies including Panchayats, Block Samities and Zila Parishads, Industrial concerns, companies and other private institutions for public, Industrial and any other common purpose."
10. The authorities below and the learned Single Judge have recorded a finding that auction was never conducted in the village, therefore, the private respondent never got chance to participate in the auction proceedings. Thus, he approached the authorities by filing a complaint/revision after possession of the land was taken from him. He offered to purchase the property for ` 30,000/- and as such the authorities rightly noticed inadequacy of the price to set aside the auction held in favour of the appellant. As per Rule 5(c) notice of the sale was to be given at least 15 days before the proposed sale and every such notice should state the date, time and place of the proposed sale and the same was to be affixed in a conspicuous place in the village. Rule 5
(c) reads as under:-
"Notice of the intended sale shall be given at least 15 days before the proposed sale and every such notice should state the date, time and place of the proposed sale, the description of the property to be sold, the location and boundaries, where possible, the terms and condition of the sale and any other particular which the Settlement Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -9- ***** Commissioner or other officer considers material. One copy of the notice shall be affixed in a conspicuous place in the village(s) where the property is situated e.g. the Panchayat Ghar, Gurudwara, Mandir, School etc. It shall be within the discretion of the Settlement Commissioner or other officer to advertise the sale in news paper and in such other manner as he may deem fit."
11. The Settlement Commissioner under Rule 11 has powers of revision to call for the record of any case and pass such order as may deem fit. Rule 11 reads as under:-
"11. POWERS OF REVISION The Settlement Commissioner may call for the record of any case pending before or decided by a Subordinate Officer and pass such order as may be deemed fit including the resumption of property provided that the party effected by the proposed order shall be given an opportunity of being heard."
12. Thus, when a material irregularity and fraud had been committed in publication of the sale as noticed by the authorities below they were correct in setting aside the auction proceedings and ordering the re-auction of the property in question. The submission of the counsel that private respondent had filed a civil suit is without any basis since the procedure was provided under the Rules pertaining to the sale of property and the Settlement Commissioner had the jurisdiction. A Division Bench of this Court in Dalip Singh Vs. Financial Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -10- ***** Commissioner-cum-Secretary to Govt. Haryana Rehabilitation Department and others 1995(3) PLR 301 repelled the submission that confirmed sale could not be set aside after issuance of the sale certificate by holding that the Chief Settlement Commissioner has vast powers under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It was observed as under:-
"13. In Jagir Singh and others V. The Chief Settlement Commissioner, Punjab and others, AIR 1970 Punjab and Haryana 507, the Court held that where on cancellation of allotment by an illegal order the land was sold in lots and sale certificates were issued but the Chief Settlement Commissioner set aside the cancellation of allotment in exercise of the plenary powers vested in him under Section 24 of the Act, the auction will be void ab initio. It has been further held that even after issuance of the sale certificate in pusuance of the auction the Chief Settlement Commissioner was entitled to set aside the sale under Section 24 of the Act and Rule 90 of the Rules was subject to plenary powers of the Chief Settlement Commissioner.
XXX XXX XXX
15. Argument of the learned counsel for the petitioners that the Chief Settlement Commissioner could not have set aside the cancellation of allotment because no appeal was preferred by respondent No. 3 within the period specified in Section 22(1) of the Act is, in our opinion, Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -11- ***** without merit. Section 22 of the Act provides for an appeal by any person aggrieved by an order of the Settlement Officer or a Managing Officer and such appeal is required to be filed within 30 days with a discretion to the Settlement Commissioner to condone the delay where the appellant satisfies the Appellate Authority that he was prevented from filing the appeal in time by a sufficient cause. Section 23 contains provisions for appeal before the Chief Settlement Commissioner against the orders of the Settlement Commissioner or the Additional Settlement Commissioner or an Assistant Settlement Commissioner or a Managing Corporation. Limitation for filing such an appeal is also 30 days with a discretion to the Chief Settlement Commissioner to condone the delay in appropriate cases. Section 24(1) of the Act confers power of revision on the Chief Settlement Commissioner. By virtue of this provision the Chief Settlement Commissioner has been empowered to call for the record of any proceedings under the Act in which an order has been passed by a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Managing Officer or a Managing Corporation. This power can be exercised by the Chief Settlement Commissioner at any time for the purpose of satisfying himself as to the propriety and legality of such order as he may think fit. It is in exercise of this Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -12- ***** power that the Chief Settlement Commissioner passed order dated 26.9.1968 and declared that in case the allottee pays the mortgage amount the land be restored to him. Thereafter, respondent No. 3 deposited the mortgage amount and on a reference made by the Tehsildar (Sales), the Settlement Commissioner set aside the sale effected in favour of the petitioner with a view to give effect to the order passed by the Chief Settlement Commissioner. The powers vesting in the Chief Settlement Commissioner are wide and pervasive and he is entitled to exercise this power in case where the appeal has been rejected by the competent authority under Section 22 or even where no appeal has been preferred. The use of the expression "may at any time call for the record" is clearly indicative of the legislative intendment to clothe the Chief Settlement Commissioner with the power to pass an appropriate order where he finds that the order passed by an subordinate authority suffers from an illegality or which is otherwise improper. The order dated 26.9.1968 will be deemed to have been passed by the Chief Settlement Commissioner in exercise of his power under Section 24 of the Act and we find ample justification for such exercise of power by the Chief Settlement Commissioner because the initial order passed by the Managing Officer on 27.9.1960 was nullity."
13. Judgment in Lila Krishan's case (supra) is not applicable Kumar Pardeep 2013.11.22 09:29 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh LPA No.1881 of 2013 (O&M) -13- ***** to facts and circumstances of the present case. The dispute in the said case was regarding the non delivery of possession to the auction purchaser and it was held that they could resort to their remedies for dispossessing the private respondents who were in unauthorised possession of the said property.
14. In Mohinder Singh's case (supra) the setting aside of the sale was quashed on the ground that the same had been held in the year 1964 and set aside on 25.11.1980 after 16 years. In the present case, auction proceedings took place on 16.12.1993 and initially the private respondent filed a Civil Suit and thereafter approached the authorities on 26.2.1996 on being dispossessed and was successful in getting set aside the sale on 28.11.1998 and thus, there was no such delay in setting aside of the sale. The said judgment is not applicable to the facts and circumstances of the present case.
15. Accordingly, there being no illegality or irregularity in the order passed by the authorities below and the order of the the learned Single Judge, the present appeal has no merit and consequently the same is dismissed. Civil Misc. Application No.4787 of 2013 for condonation of delay also stands dismissed.
(G.S.SANDHAWALIA)
JUDGE
31.10.2013 (JASBIR SINGH)
Pka JUDGE
Kumar Pardeep
2013.11.22 09:29
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh