Punjab-Haryana High Court
Prabhu Dayal vs State Of Haryana And Anr. on 17 February, 2004
Equivalent citations: AIR2004P&H324, (2004)137PLR593, AIR 2004 PUNJAB AND HARYANA 324, (2004) 2 PUN LR 593, (2004) 2 RECCIVR 587, 2004 HRR 1 534
JUDGMENT M.M. Kumar, J.
1. (17th February, 2004) - This petition filed under Article 226 of the Constitution prays for quashing order dated 29.4.1983 passed by the Joint Secretary, Rehabilitation-cum-Settlement Commissioner, Haryana-respondent-2. A further prayer for directing the respondents to refrain from dispossessing the petitioner from the land in dispute by way of re-auctioning the same has also been made.
2. Brief facts of the case necessary for disposal of the instant petition are that the petitioner purchased 32 kanals of agricultural land situated in Village Shahjahanpur, Tehsil Ballabgarh, District Gurgaon in an open restricted auction for Harijans held on 3.12.1971 being the highest bidder for Rs. 2,500/-. The land is claimed to be an evacuee property which belonged to compensation pool and vested in the State Government under the Package Deal of 1961. It is further claimed that the land is of inferior quality as the entry is Gair Mumkin Salabh and is situated at a distance of 2-1/2 Kilometers from the village in the catchment area of river Yamuna which remains under water. The petitioner deposited Rs. 625/- as earnest money and on 3.12.1971 the bid of the petitioner was accepted. Subsequently, the petitioner deposited the balance amount. On 18.12.1971 Tehsildar Sales, Gurgaon issued a sale certificate as contemplated by Rule 90(15) of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (for brevity, 'the Rules') which has been placed on record as Annexure P1.
3. However, on a suo motu reference, proceedings for cancelling of the sale were initiated by the Deputy Secretary, Rehabilitation exercising the powers of the Settlement Commissioner. On 8.11.1974, an order cancelling the sale was passed which was challenged before this Court in Civil Writ Petition No. 50 of 1975 and the same was quashed on the ground that no opportunity of hearing was given. The respondents were granted liberty to pass fresh orders after affording opportunity of hearing to the petitioner. After affording opportunity of hearing, respondent 2 again passed an order on 29.4.1983 cancelling the sale. The principal reason which persuaded respondent 2 to pass the impugned order is that in the year 1967 when this land was auctioned, it fetched Rs. 8,000/-and after a lapse of four years, it could not have fetched Rs. 2,500/-. Respondent 2 also noticed and rejected the contentions of the petitioner showing that similar land had fetched similar price and, therefore, it cannot be concluded that the land sold to the petitioner was purchased at a diminutive price. The view of respondent 2 is reflected in paragraph 3 of the impugned order dated 29.4.1983 which reads as under:-
"The learned counsel for the petitioner while arguing his case submitted that the land in the vicinity of the disputed land had been sold out at more or less the same price at which the land in question has been auctioned and therefore, there was no reason now not to accept the sale in favour of the petitioner. He pointed out that in sale file No. 379/V land measuring 42K-6M in village Shahajanpur Tehsil Ballabgarh was sold in favour of Shri Chiman s/o Sukhi for Rs. 2500/-. He also pointed out that this auction had been held on 19.3.68 and the sale had been confirmed on 8.4.68. Similarly in sale file No. 332/V land measuring 101 K 12 M was sold in favour of Shri Ithari s/o Mirrchu for a sum of Rs. 8000/-. This auction was held on 9.11.67 while the sale had been confirmed on 28.11.67. The learned counsel for the petitioner argued that averaged price of the land in sale file No. 379/V comes to Rs. 472/- per ordinary acre and in sale file No. 332/V it comes to Rs. 692.80 per ord. acre. The learned counsel for the petitioner contended that land in dispute was auctioned in favour of the present petitioner on 26.10.71 and auction was confirmed on 25.11.71. He argued that the auction having been duly confirmed, there was absolutely no justification for setting aside the sale, specifically when the amount fetched was almost the same as was fetched in the other 2 sale files mentioned above. However, I do not feel impressed with the argument of the learned counsel for the petitioner. Each case has to be decided on merits and the fact that the land in the same village was sold out at almost the same price would not mean that the sale in the present case should also be upheld. The sales in 2 sale files according to the petitioner were held in the year 1969 and 1967 while the present sale was conducted in the year 1971. It cannot be accepted that in these 2/3 years the prices of the land remained stationary when earlier this very piece of land had been auctioned for Rs. 8000/- in the year 1967 there is no reason why the price should have been gone down to Rs. 2500/- after a lapse of about 4 years. The learned counsel for the petitioner also submitted that the petitioner had made considerable improvement on the land is question and, therefore, he should not be deprived of this piece of land. The learned DDA argued that the sale in favour of the petitioner stood cancelled in the year 1974 and if at all he had made any improvement on this land that was all voluntarily and if at all this land was in the possession of the petitioner it was unauthorised and therefore, he cannot claim any benefit on account of this reason that he had made improvements over the disputed land."
4. When this petition came up for motion hearing on 2.8.1983, the Division Bench had stayed the dispossession. The petition was admitted on 14.12.1983 and the stay of dispossession was ordered to be continued.
5. Mr. Sarwan Singh, learned counsel for the petitioner has argued that insufficiency of the price cannot constitute a basis for cancellation of sale. In support of this proposition, the learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Bhajan Singh v. State of Haryana and Ors., 1980 P.L.J. 87. The learned counsel has condemned the approach adopted by respondent 2 in the impugned order dated 29.4.1983 Annexure P4 by arguing that when the land was to be auctioned in the year 1967 for Rs. 8,000/-, the highest bidder did not deposit the amount and the sale was cancelled. According to the learned counsel, the non-deposit of the price by the earlier sale purchaser was on account of higher price which this land could not have fetched. He has reiterated the arguments that in the vicinity of the disputed land situated in the same village, the rates at the relevant time were more or less the same. He has referred to the extracted paragraph 3 of the judgment to strengthen his argument.
6. Mr. Sukhraj Singh Brar, learned State counsel has argued that the petitioner had taken unfair advantage by purchasing 32 kanals of land for Rs. 2,500/-, whereas the land was sold in the year 1967 at a rate which was more than three times the price. According to the learned counsel, in such a case, the larger public interest has suffered and the petitioner has reaped an undue advantage. The learned counsel has argued that the cancellation proceedings were initiated strictly in accordance with law and the same does not suffer from any illegality.
7. After hearing learned counsel for the parties, I am of the considered view that this petition deserves to be allowed because no irregularity showing violation of any provision of Rule 92 of the Rules has been pointed out which may constitute the basis of cancellation of sale. A detailed procedure has been provided by Rule 90 of the Rules which contemplates wide proclaimants of the intended sale at least 15 days before the sale. The highest bidder is required to deposit immediately on the fall of hammer 20 per cent of the bid amount to the officer conducting the sale. Therefore, on deposit of the whole amount, the sale certificate is to be issued. In the impugned order dated 29.4.1983, Annexure P4, no particulars have been disclosed showing any commission of fraud in the conduct of sale as contemplated by Rule 92 of the Rules. Rule 92 of the Rules reads as under:-
"92. Procedure for setting aside a sale.- (1) Where a person desires that the sale of any property made under Rule 90 or 91 should be set aside because of any alleged irregularity or fraud in the conduct of the sale (including in the case of a sale by public auction in the notice of the sale,) he may make an application to that effect to the Settlement Commissioner or any officer, authorised by him in this behalf to approve the acceptance of the bid or tender, as the case may be.
(2) Every application for setting aside a sale under this rule shall be made -
(a) where the sale is made by public auction within seven days from the date of the acceptance of the bid;
(b) where the sale is made by inviting tenders, within seven days from the date when the tenders were opened.
(3) If after consideration of the facts alleged, the officer to whom the application is made under this rule is satisfied that any material irregularity or fraud has been committed in the publication or the conduct of the sale, he may make an order that the property be re-auctioned or be resold by inviting fresh tenders, as the case may be :
Provided that no sale be set aside under this rule unless upon the facts proved, such officer is satisfied that the applicant has sustained substantial injury by reason of the irregularity or fraud, as the case may be.
(4) Notwithstanding anything contained in this rule, the Settlement Commissioner may, of his own motion, set aside the sale under this Chapter if he is satisfied that any material irregularity or fraud which has resulted in a substantial injury to any person has been committed in the conduct of the sale."
8. The aforementioned rule contemplates cancellation of a sale on the basis of a fraud on the application of any person within a period of seven days from the date of acceptance of the bid on the satisfaction of the officer that there are material irregularities or fraud committed in the publication or conduct of the sale. The property could be put to re-auction. There is no violation of Rule 92 of the Rules. Therefore, it has to be concluded that the sale was conducted in accordance with the elaborate procedure provided by Rule 90 of the Rules and there is no ground available for setting aside the sale as provided by Rule 92 of the Rules.
9. Moreover, the inadequacy of the price alone may not constitute the basis of setting aside the sale. The Division Bench in Bhajan Singh's case (supra) after referring to the earlier precedents has observed as under:-
"Mr. P.C. Mehta appearing for the petitioner has strenuously urged that order (Annexure B) is wholly illegal and without jurisdiction as the sale could not be set aside on the conjectural finding given by the officer concerned. He has urged that the record of the Naib Tehsildar shows that there were 22 persons present at the time of auction whose signatures in token of their presence were obtained by the officer conducting the sale and the mere fact that only 4 persons participated in the auction bid was no ground in the eyes of law for setting aside the sale. He further urged that mere offer of a higher amount after the auction is no ground in the eyes of law for setting aside the sale. In support of this arguments he has relied upon Harkishan Singh v. State of Punjab and Ors., 1967 C.L.J. Punjab and Haryana 706, and Division Bench judgment of this Court in Chandgi Ram and Ors. v. Moonga and Ors., A.I.R. 1971 Punjab and Haryana 375."
After hearing the learned counsel for the parties, we are of the view that the writ petition deserves to be allowed and the order (Annexure B) dated November 6, 1972 setting aside the sale deserves to be quashed. In Harkishan Singh's case (supra) was ruled that mere offer of higher amount is no ground for setting aside the auction sale. As regards Chandgi Ram's case (supra) it was held that unless there has been material irregularity or fraud in publication or the conduct of the sale and that this has resulted into substantial injury by reason of the said irregularity or fraud, no sale can be set aside. In the present case no such thing has been found by the authority below and the mere fact that only 4 persons gave the bid at the time of auction, was no ground in the eyes of law for setting aside the sale, it is not disputed that as many as 22 persons were present at the time of auction out of whom only 4 participated. From this no inference can be drawn that there was any defect in publishing or conducting the sale."
10. Another reason which has persuaded me to accept this petition is that auction was held in the year 1971 and the proceedings for cancellation of the sale were initiated in the year 1974 and eventually the order of cancellation was passed on 29.4.1983. In the meanwhile, the petitioner has continued in possession and must have improved the lot of the land. It will not equitable to evict him from this land after cancelling the sale.
11. For the reasons stated above, this petition is allowed. Order dated 29.4.1983, Annexure P-4 is set aside. No costs.