Punjab-Haryana High Court
Lahori Ram @ Lahori Lal Mehta vs The Commissioner And Secretary To ... on 8 August, 2013
Bench: Jasbir Singh, G.S. Sandhawalia
CWP No. 6850 of 2004 and
connected matters -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
Date of decision : 8.8.2013
CWP No. 6850 of 2004 (O & M)
Lahori Ram @ Lahori Lal Mehta ........Petitioner
Vs.
The Commissioner and Secretary to Government of Haryana and others
........Respondents
CWP No. 6891 of 2004 (O & M)
Vidya Wanti ........Petitioner
Vs.
The Commissioner and Secretary to Government of Haryana and others
......Respondents
CWP No. 6892 of 2004 (O & M)
Bansari Lal ........Petitioner
Vs.
The Commissioner and Secretary to Government of Haryana and others
......Respondents
CWP No. 8480 of 2004 (O & M)
Krishan Gopal and another ........Petitioners
Vs.
The Commissioner and Secretary to Government of Haryana and others
......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice G.S. Sandhawalia
Present:- Mr. Amarjit Markan, Advocate, for the petitioners
Mr. D. Khanna, Addl. AG, Haryana
Kumar Ashwani
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2013.08.29 15:22
I attest to the accuracy and
integrity of this document
CWP No. 6850 of 2004 and
connected matters -2-
Jasbir Singh, J. (Oral)
This order shall dispose of four writ petitions bearing No. CWPs No. 6850, 6891, 6892 and 8480 all of 2004 involving similar questions of facts and laws. The facts are being taken from CWP No. 6850 of 2004 for dictating this order.
Petitioner Lahori Ram, who migrated to this part of the country at the time of partition of India in the year 1947, after lapse of about 66 years, is still in litigation to claim land left by him in that part of our country which now falls in Pakistan.
As per admitted facts on record, all the petitioners in above mentioned four writ petitions, migrated from Pakistan, at the time of partition. As per provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (in short 'the Act'), the petitioner was allotted land in Village Umrala, Tehsil Naraingarh, District Ambala, vide Sanad allotment dated 29.10.1955, as per claim submitted by him, in lieu of the land left in Pakistan.
Thereafter, it appears that when Revenue record was received from Pakistan whereupon, it transpired that some land owned by the petitioner, was mortgaged with a Mohammedan. Detail whereof qua the petitioners is given in order passed on 24.3.2003 :-
Sr. Name of Allottee Total Area Area Date of
No. left SA Mortgaged cancellation
1 Lahori Ram 2-3 1/4 0-12 02/09/60
2 Chuni Lal 2-3 1/4 0-7 1/2 02/09/60
3 Kasturi Lal 2-3 1/2 0-7 1/2 20.6.61
4 Bansari Lal 2-3 1/2 0-12 07/09/60
Kumar Ashwani
2013.08.29 15:22
I attest to the accuracy and
integrity of this document
CWP No. 6850 of 2004 and
connected matters -3-
Petitioner's land to the extent of seven and a half units was under mortgage. Taking note of the same, notice was issued to him to deposit the mortgage amount to the extent of ` 210.94 or to surrender land equal to seven and a half units. The petitioner was directed to deposit that amount with the Government Treasury by 3.8.1960 and to report before the Section Officer on 8.8.1960. The petitioner did not appear before the said officer. Ex-parte proceedings were ordered and land to the extent of seven and a half units, allotted to the petitioner, was cancelled on 8.8.1960.
It is on record that thereafter, as per cancellation order passed, mutation was also sanctioned in favour of the Government. The petitioner continued to approach the authorities stating that he had already deposited an amount of ` 210.94 with the Reserve Bank of India on 5.8.1960 and on account of that cancellation order be not to be passed.
When nothing was done, the petitioner filed a revision petition before the Chief Settlement Commissioner under Section 24 of the Act, claiming restoration of the land i.e. seven and a half units. That application was allowed by the Chief Settlement Commissioner vide order dated 14.5.1992. Relevant portion of the order reads thus :-
"4. This case was fixed for orders today. I have given a careful thought to the submissions of the parties and have gone through the record. I have read Section 8-A(2) of the Displaced Persons (C & R) Act which is quite clear that in case the allottee fails to deposit the mortgage money, the amount of mortgage money can be recovered from him as arrears of land revenue but the Managing Officer has not done so and has cancelled the allotment of land to the extent of 7½ units. In this regard, I am fully convinced with the Ruling Kumar Ashwani 2013.08.29 15:22 I attest to the accuracy and integrity of this document CWP No. 6850 of 2004 and connected matters -4- AIR 1984 Pb & Hr. page and AIR 1981 Pb. 125' in which it was held that no allotment can be cancelled in case the allottee fails to pay the mortgage money. The only remedy available is that the mortgage money can be recovered as arrears of land revenue. Since the Section Officer cum M.O. exceeded his power, I agree with the contention of the learned counsel for the petitioner that no limitation applies while filing revision petition against such orders.
5. In view of the circumstances explained above, I set aside the order dated 8.8.1960 of the Section Officer cum M.O. (Redemption), Jullundur. The land to the extent of 7½ units is hereby restored to the petitioner and he is directed to deposit the mortgage money along with interest at the rate of one percent above the bank rate with effect from the date of cancellation of allotment to the date of deposit. The Assistant Registrar cum M.O. Rehabilitation Deptt. is directed to calculate the amount of interest and the same be intimated to the petitioner who will appear before him on 8.6.1992. This revision petition is disposed of accordingly."
Taking note of provision of Section 8-A(2) of the Act, it was observed that it was not open to the Managing Officer to cancel allotment of land, rather only amount could have been recovered as per the above said provision.
In response to order dated 14.5.1992, the petitioner again deposited the requisite amount and the property was ordered to be redeemed by the Naib Tehsildar (Sales)-cum-Managing Officer Hqrs., Chandigarh vide order dated 18.2.1994 (P-9). The process to allot land to the petitioner was started.
Thereafter, it appears that during scrutiny, case of the Kumar Ashwani 2013.08.29 15:22 I attest to the accuracy and integrity of this document CWP No. 6850 of 2004 and connected matters -5- petitioner was taken up for verification in the year 2002 i.e. after about 10 years from the date of passing an order, restoring allotment to the petitioner. By taking note of technicalities and delay in filing the revision petition for restoration of the cancelled allotment of land, order was passed on 24.3.2003 by the Commissioner & Secretary to Government of Haryana, Rehabilitation Department, vide which orders of the Chief Settlement Commissioner dated 14.5.1992 and that of Naib Tehsildar-cum- Managing Officer dated 20.1.1994 were set aside.
Reading of order dated 24.3.2003 indicates that relief was declined to the petitioner simply on the basis of delay in agitating his right against order of cancellation dated 8.8.1960 and also on a ground that the deposit of amount made was not brought to the notice of Managing Officer when cancellation order was passed.
After hearing counsel for the parties, we feel that order under challenge (dated 24.3.2003) (P-1) cannot be sustained. As per provisions of Section 8-A of the Act, if mortgaged amount by a claimant is not deposited despite directions, the allotment of land cannot be cancelled. The only option available with the Government is to recover that amount as arrears of land revenue.
The provisions of Section 8 A of the Act is reproduced as under :-
"8A. Payment of Compensation in cases of Mortgage Properties. - (1) where any compensation is payable to any displaced person in lieu of property abandoned by him in West Pakistan which on date of his migration from West Pakistan was subject to a mortgage in favour of a person who Kumar Ashwani 2013.08.29 15:22 I attest to the accuracy and integrity of this document CWP No. 6850 of 2004 and connected matters -6- is not resident in India, the Settlement Commissioner, shall, after giving a reasonable notice to the displaced person, determine the principal sum for which the property was so mortgaged and such portion of the principal sum so determined as bears the same proportion as the compensation payable to the displaced person bears to the value of the verified claim of the displaced person in respect of that mortgaged property shall be deductible from the compensation payable in respect of the mortgaged property.
Provided that where compensation has been paid to any displaced person without such deduction having been made, the displaced person shall pay to the Central Government the amount of such deduction within three months of the determination thereof or such longer period as may be prescribed.
Provided further that where compensation has been paid to any displaced person by sale or any other mode of transfer to him of any property from the compensation pool, the displaced person may, within the aforesaid period of three months or, as the case may be, within the aforesaid prescribed period -
(a) either retain the property on his paying in cash the aforesaid amount, or
(b) surrender a portion of that property of a value equivalent to the amount of such deduction, such value being determined by the Settlement Commissioner in the prescribed manner. (2) If any displaced person fails to pay any amount which is liable to be deducted from his compensation under sub-section (1), or fails to surrender the property of the value equivalent to such amount, such amount may be recovered in the same manner as an arrears of land revenue".
Kumar Ashwani When interpreting the provisions of Section 8 A of the Act in 2013.08.29 15:22 I attest to the accuracy and integrity of this document CWP No. 6850 of 2004 and connected matters -7- case where allotment of land was cancelled for non-payment, a Division Bench of this Court in "Dalip Singh v. Financial Commissioner-cum- Secretary to Government Haryana, Rehabilitation Department and others, 1995(3) PLR 301" has observed that as per the provisions of Section 8A of the Act, option was available to a displaced person either to retain the property on making the payment of mortgaged amount or to surrender land of equal amount in lieu of mortgaged amount. If he failed to do so, then only option with the Government is to recover the mortgaged amount by way of arrears of land revenue.
It was further observed that if mortgaged amount is not paid, there is no provision under the Act to cancel the allotment made. In that regard, it was observed as under :-
"10. A plain reading of Section 8A and in particular sub- section (2) thereof shows that the Parliament intended to make a provision for recovery of the mortgage amount in respect of the properties abandoned by the displaced persons in the West Pakistan which on the date of their migration to India were subject to mortgage in favour of a person who is not resident of India. This provision nowhere speaks of automatic cancellation of allotment made in favour of a displaced person on account of non payment of the mortgage amount."
After making reference to many judgments on the subject, it was opined that an allotment made in favour of a displaced person, cannot be cancelled due to non-payment of money and order of cancellation of allotment made in that case was set aside being without jurisdiction, terming it as void-ab-initio.
Same is the situation in the present case. The Managing Kumar Ashwani 2013.08.29 15:22 I attest to the accuracy and integrity of this document CWP No. 6850 of 2004 and connected matters -8- Officer without any jurisdiction, cancelled allotment made to the petitioner on 8.8.1960.
In the present case, the petitioner is on better footing. In order dated 8.8.1960, it is stated that a treasury challan was given to the petitioner to deposit the amount, when no report was received regarding deposit of amount in the Treasury, the cancellation order was passed.
Document Annexure P-4 dated 17.12.1963 i.e. a letter written to the petitioner by the Bank Manager, indicates that mortgage amount of ` 210.94 was deposited in the Reserve Bank of India by the petitioner on 5.8.1960. It was further stated that the relevant report was sent to the Treasury Officer on the next date. This fact shows that the petitioner was not at fault. As per directions, he had deposited the amount in dispute.
After depositing the amount, the petitioner presumably may have remained satisfied that he has performed his duty and he will be allowed to retain the land. This letter was shown to the authorities at every stage but it was not noticed.
So far as filing of a revision petition at a belated stage is concerned, it may be on account of poverty, having migrated from Pakistan or under an impression that since he had already deposited the requisite amount, his rights are protected the petitioner did not file revision petition.
Otherwise, as per the ratio of Division Bench of this Court in Dalip Singh's case (supra), the Chief Settlement Commissioner enjoys power to entertain a revision petition, to do justice with the parties, at any time. In that regard, it was observed as under :-
"15. Argument of the learned counsel for the petitioners that Kumar Ashwani 2013.08.29 15:22 I attest to the accuracy and integrity of this document CWP No. 6850 of 2004 and connected matters -9- 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, 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 satisfied 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 powers 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 and he is entitled to pass an appropriate order as he may thing fit. It is in exercise of this 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 Kumar Ashwani 2013.08.29 15:22 I attest to the accuracy and integrity of this document CWP No. 6850 of 2004 and connected matters -10- amount and on a reference made by the Tehsildar (Sales), the Settlement Commissioners 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 a subordinate authority suffers from 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."
In that case also, the Chief Settlement Commissioner passed an order when exercising powers under Section 24 of the Act.
Unmindful of the above said fact, the Commissioner and Secretary to Government of Haryana, after about 10 years of passing of an order by the Chief Settlement Commissioner, took up the matter and set aside order dated 14.5.1992, on 24.3.2003 merely on the basis of technicalities. Compassion needs to be shown to those who have migrated from Pakistan on account of political compulsions. They were compelled by the circumstances to desert their place of residence and shift to this part Kumar Ashwani of the country.
2013.08.29 15:22 I attest to the accuracy and integrity of this document CWP No. 6850 of 2004 and connected matters -11-
The petitioner's case has been dealt with in a bureaucratic manner. Once the amount stood deposited by the petitioner on 5.8.1960 in the Reserve Bank of India and intimation was also sent to the Treasury Officer, there was no justification with the Managing Officer to cancel allotment on 8.8.1960.
In view of the facts mentioned above, these writ petitions are allowed. Order dated 24.3.2003 is set aside. Authorities are directed to allot land to the petitioners in terms of order passed by the Chief Settlement Commissioner on 14.5.1992, as per their verified claims, on the basis of which land was originally allotted to the petitioner.
The Secretary, Revenue Department, Haryana is directed to do the needful in a shortest possible period.
(Jasbir Singh) Judge (G.S. Sandhawalia) Judge 8.8.2013 Ashwani Kumar Ashwani 2013.08.29 15:22 I attest to the accuracy and integrity of this document