Punjab-Haryana High Court
K.P.Singh vs State Of Haryana And Others on 23 July, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
C.W.P No.8526 of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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C.W.P No.8526 of 2002
Date of Decision: 23.07.2013
K.P.Singh ..... Petitioner
Versus
State of Haryana and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. Som Nath Saini, Advocate,
for the petitioner.
Mr. Rahul Sharma, Additional Advocate General, Haryana,
for respondents.
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MAHAVIR S. CHAUHAN, J.
The petitioner has filed this writ petition under Articles 226 and 227 of the Constitution of India, with a prayer that order dated 07.04.2002 (Annexure P-7) passed by the Commissioner and Secretary to Government of Haryana, Department of Rehabilitation, be quashed.
Facts and circumstances necessary for disposal of the writ petition may be noticed in the first instance.
Ministry of Rehabilitation (for short referred to as 'Ministry') came into being in the year 1947 with a view to work for resettlement of the persons who had migrated from Pakistan after unfortunate partition of the country. The Ministry acquired about 6000 acres of rugged land on the eastern periphery of Delhi (now falling in the territory of State of Haryana) and set up a resettlement colony named New Industrial Township (NIT), Faridabad. After substantial Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.8526 of 2002 -2- work of rehabilitation was completed by the Ministry by the year 1981, Government of India, under an Administrative and Financial Arrangement, contained in memorandum dated 31.03.1981, transferred the residuary lands and properties in NIT Faridabad to Government of Haryana, against payment, for disposal under The Displaced Persons (Compensation and Rehabilitation) Act (No. XLIV of 1954) (here-in-after referred to as 'the 1954 Act'). Government of Haryana managed/disposed of those lands/properties by issuing policy letters, called press notes, from time to time.
In response to one such press note dated 11.07.1988 (Annexure P1), petitioner, along with other persons, submitted his application dated 02.01.1989 before the Tehsildar (Sales), Faridabad for transfer of site No. 3- G/195-A, NIT Faridabad, measuring 400 sq. yds. (here-in-after referred to as 'the disputed site'), in his favour stating that he had been in possession of the disputed site for long and had been using it for residential purposes.
Tehsildar (Sales), Faridabad, vide letter dated 16.01.1989 offered the disputed site for transfer to the petitioner @ Rs.325 per Sq. Yards i.e. for a total consideration of Rs.1,30,000/- only. The offer, however, was tentative and was subject to approval of the competent authority. On a reference made for approval of the transfer, the Chief Settlement Commissioner declined approval and ordered refund of the amount deposited by the petitioner. A press note was published in the print media to say that 240 offers, including the one in favour of the petitioner, had been cancelled.
Petitioner and a few other offerees filed Civil Writ Petition No.1538 of 1988 wherein, by setting aside the order of rejection of transfer, the Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.8526 of 2002 -3- matter was remitted back to the Chief Settlement Commissioner with a direction to decide it afresh after giving an opportunity of hearing to the petitioners therein, including the present petitioner.
The Chief Settlement Commissioner, after hearing the parties concerned, vide order dated 14.03.1991 once again disapproved and set aside all the offers, including the one made in favour of the petitioner.
To challenge order dated 14.03.1991 (Annexure R4) some of the erstwhile offerees filed Civil Writ Petition No. 10131 of 1991 but the petitioner did not join them. He, rather, filed another application dated 17.05.1993 before Tehsildar (Sales), Faridabad and appended therewith a copy of judgment dated 28.09.1989 of the Court of Additional District Judge, Faridabad, wherein it was held that the petitioner was in possession of the disputed site since 1983. Upon this, a survey committee was constituted which, after inspecting the site, reported that the disputed site was lying vacant and only a boundary wall with mud and bricks and a temporary shed in the rear portion of the disputed site had been raised. Relying upon that report, the Chief Settlement Commissioner, vide his order dated 01.03.1994 (Annexure R5), once again declined approval of the transfer of the disputed site in favour of the petitioner, saying that approval had already been declined and he could not revise that order.
The petitioner then filed an application under Section 25 of the 1954 Act and Rule 13 of Order IX of the Code of Civil Procedure, 1908, whereupon the Chief Settlement Commissioner, vide his order dated 20.01.1995 (Annexure P3) reviewed his earlier order dated 01.03.1994 (Annexure R5) and remanded the case to Tehsildar (Sales), Faridabad for fresh Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.8526 of 2002 -4- disposal after affording the petitioner an opportunity "to give proof regarding possession and substantial construction before 1.1.1982". The case of the petitioner was ordered to be clubbed with the case of one Jagan Nath, who was ordered to be impleaded as party.
Tehsildar (Sales), Faridabad, vide his order dated 21.04.1995 (Annexure P4), held that the petitioner was entitled for transfer of the disputed site and on a reference, the Chief Settlement Commissioner, vide his order dated 19.04.1996 (Annexure P5), accorded approval to the transfer of the disputed site in favour of the petitioner.
However, on a suo motu reference under Section 33 of the 1954 Act, Commissioner and Secretary to the Government of Haryana, Department of Rehabilitation, vide his order dated 07.04.2002 (Annexure P7), declared order dated 20.01.1995 (Annexure P3) bad in law, set aside the transfer of disputed site in favour of the petitioner and directed the State Government to take possession of the disputed site latest by 30.04. 2002.
To seek quashing of order 07.04.2002 (Annexure P7) petitioner has invoked extra-ordinary jurisdiction of this Court by way of the instant writ petition filed under Articles 226 and 227 of the Constitution of India.
Respondents, in their joint written statement, have admitted the factual position as indicated here-in-above but have added that the instructions bearing No.11251-61/G.II dated 11.07.1988 (Annexure P-1) relied upon by the petitioner are not relevant as they do not relate to residuary assets transferred by Central Government vide Financial Agreement dated 31.01.1981, rather the policy issued vide Memo. No.67(30)G.III/11287 dated 11.07.1988 (Annexure Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.8526 of 2002 -5- R1), as supplemented by memoranda dated 11.08.1988 (Annexure R-2) and dated 19.07.1989 (Annexure R-3), is the relevant policy. In the policy, Annexure R1, while it has been ordained that the area in unauthorized occupation may be offered for transfer to the occupants at the rates mentioned therein, the subsequent memoranda, Annexures R2 and R3, have further clarified that vacant sites in possession of the Government should not be transferred and only sites which are in unauthorised occupation and on which substantial construction has been raised on or before 01.01.1982 may be offered for such transfer to the occupants.
According to the respondents, the petitioner had not raised substantial construction on the disputed site on or before 01.01.1982 as required under the policy, Annexure R3, and, thus, was not eligible for transfer of the disputed site in his favour and that the offer of transfer was not a concluded contract between the State and the petitioner.
We have heard Shri Som Nath Saini, Advocate, representing the petitioner and Shri Rahul Sharma, Additional Advocate General, for the respondents at considerable length and have also examined the records very carefully.
Facts are not much in dispute. The dispute, in fact, is in a very narrow compass, i.e., power of review/revision available under Section 25 of the 1954 Act. Another ancillary question that arises for consideration of this Court is whether the order dated 20.01.1995 (Annexure P-3) can be said to be an order to set aside ex parte proceedings/order or an order to review order dated 01.03.1994 (Annexure R5)?
Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.8526 of 2002 -6-
Learned counsel for the petitioner has argued that order dated 01.03.1994 was passed ex parte, i.e., in the absence of the petitioner and, as such, this order was liable to set aside and the matter deserved to be decided afresh, after affording an opportunity of hearing to the petitioner.
To find out truth of this assertion though perusal of the order is necessary but, for reasons best known only to the petitioner, a copy of the order dated 01.03.1994 has not been placed on record by the petitioner and only operative part of the order has been reproduced in para (7) of the writ petition. However, the respondents have placed on record a copy of the complete order (dated 01.03.1994) as Annexure R5 and a perusal thereof reveals that Shri Gauri Shankar Sharma, Advocate, was present on behalf of the petitioner (respondent before the Chief Settlement Commissioner) and arguments, advanced by him, have been noticed in the order dated 01.03.1994. Even operative part of the order commences with the words "I have given careful thought to the arguments advanced by the parties....". Therefore, order dated 01.03.1994 can not be said to be an ex parte order.
Now the question-whether or not the order dated 01.03.1994 could be reviewed/revised by the Chief Settlement Commissioner?
Learned counsel for the petitioner has argued that the petitioner fulfilled all the requirements for being eligible for transfer of the disputed site in his favour as he was in possession of the same since long and had raised substantial construction thereon and that the order dated 01.03.1994 was contrary to the policy and facts which necessitated its review. The submission, in our opinion, is too far stretched and lacks substance.
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It has come on record that vide order dated 14.03.1991(Annexure R4), all the offers of transfer, including the one in favour of the petitioner, were set aside because these were found to have been made illegally and inspite of specific directions to the Tehsildar (Sales) not to dispose of any land/property in NIT, Faridabad. The offer of transfer in favour of the petitioner, indisputably, was subject to approval of the competent authority and, as such, the Chief Settlement Commissioner was competent to grant or to refuse the approval. Even the petitioner does not challenge or question this power of the Chief Settlement Commissioner. It may be hastily added here that order dated 14.03.1991(Annexure R4) was challenged by way of CWP No.10131 of 1991 but the petitioner, in his wisdom, not only kept himself away from that writ petition but also did not avail the remedy of revision which was available to him under Section 33 of the 1954 Act and, thus, allowed that order to attain finality qua him.
After more than two years of passing of the order dated 14.03.1991 (Annexure R4), the petitioner made an application on 17.05.1993 by attaching therewith a copy of the order/judgment dated 28.08.1989 of the Court of Additional District Judge, Faridabad and that of an order dated 10.04.1992 passed by a former Chief Settlement Commissioner in a case titled as Bansi Lal versus Mainawati. Upon this a survey committee was constituted and, based on the report of that committee, order dated 01.03.1994 (Annexure R-5) came to be passed wherein the 2nd respondent clearly stated:
"I have given careful thought to the arguments advanced by the parties and have gone through the record carefully. Approval of Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.8526 of 2002 -8- transfer has already been declined by my predecessor. I am not supposed to revise the same. Tehsildar (Sales) should arrange to dispose of this land within 3 months if there is no stay from the Civil Court."
The authority, in fact, reiterated the intent of Section 25 of the 1954 Act, which reads as under:
"25.Review and amendment of orders.- (1) Any person aggrieved by an order of the Settlement Officer under Section 5, from which no appeal is allowed under Section 22, may, within thirty days from the date of the order, make an application in such form and manner as may be prescribed, to the Settlement Officer for review of his order and the decision of the Settlement Officer on such application shall, subject to the provisions of Section 24 and Section 33, be final.
(2). Clerical or arithmetical mistakes in any order passed by an officer or authority under this Act or errors arising thereto from any accidental slip or omission may, at any time, be corrected by such officer or authority or the successor-in-office of such officer or authority."
A perusal of Section 25 of the 1954 Act reveals that a very limited power of review has been conferred upon the Chief Settlement Commissioner who can review his orders under the circumscribed limits, i.e. for correction of only clerical or arithmetical mistakes or errors arising from any accidental slip or omission. Even otherwise, scope of power of review cannot extend beyond the circumstances enumerated under Rule 1 of Order XLVII of the Code of Civil Procedure.
Having understood the intent and scope of Section 25 of the 1954 Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.8526 of 2002 -9- Act and the fact that order dated 01.03.1994 (Annexure R-5) was not an ex parte order, it may now be seen if the order dated 20.01.1995 (Annexure P-3) was passed to correct clerical or arithmetical mistakes or errors arising from any accidental slip or omission in the order dated 01.03.1994 (Annexure R-5).
A perusal of order dated 20.01.1995 (Annexure P-3) reveals that it is a very elaborate order, has traced history of the case in great details, has taken note of all the previous orders and proceedings, reproduces the entire application of the petitioner, takes into consideration the matters which could not be taken note of in review proceedings, points out "legal frailties" in the order dated 01.03.1994, records a finding that under Section 25(2) of the 1954 Act only clerical or arithmetical mistakes could be corrected but there was no such clerical or arithmetical mistake in the order dated 01.03.1994, and turns down the prayer for review of that order, but still, Chief Settlement Commissioner revised the order and remanded the case to 3rd respondent. It may be hastily added that power of revision under Section 33 of the 1954 Act can be exercised not by the authority passing a particular order but by a higher authority, i.e., the Central Government. This section reads as under:-
"33. Certain residuary powers of Central Government--The Central Government may at any time call for the record of any proceeding under this Act and may pass such order in relation thereto as in its opinion the circumstances of the case require and as is not inconsistent with any of the provisions contained in this Act or the rules made thereunder."
Order dated 20.01.1995 is, thus, patently illegal and has been rightly set aside to the extent indicated hereinbefore, by the revisional authority vide order dated 07.04.2002 (Annexure P-7).
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It would stand repetition that under the policy (Annexures R1, R2 and R3) only those persons are eligible for transfer of residuary sites, who have raised substantial construction on the sites in their unauthorized occupation, on or before 01.01.1982. It has come on record that the petitioner has raised only a boundary wall with mud and bricks and a temporary shed on the rear of the site, that too after the year 1983 because it is found by the civil court that he has been in possession of the site in question only since 1983. That being so, the petitioner was not entitled to transfer of the site in his favour and, as such, his claim has rightly been rejected.
Shri Som Nath Saini, Advocate, learned counsel for the petitioner contends that the order dated 07.04.2002 (Annexure P-7) is bad in law as it has been passed without perusal of the relevant records. The contention, however, is inane because the order explicitly states that files of the case were gone into before passing the order. Even otherwise, the orders, passed by the authorities below, were before the revisional authority and no further records were required to be seen, more so, because a legal issue in the matter, i.e., whether the Chief Settlement Commissioner could review/revise his own order?, was involved and it could be decided even without reference to the records.
Ad finem, learned counsel for the petitioner refers to order, Annexure P8, and argues that in similar circumstances transfer of disputed site in favour of one Kanshi Ram and Smt. Krishna was upheld by the Commissioner and Secretary by way of this order.
The contention, it is found, is without merit. A perusal of order, Annexure P8, reveals that the aforesaid Kanshi Ram and Smt. Krishna were in Virender Singh Adhikari 2013.08.14 14:26 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P No.8526 of 2002 -11- possession of the plot under their occupation since 1979-80; they had obtained sales tax registration certificate, ground rent and user/occupation charges were charged from them from 1979 to 1989 by authorities of rehabilitation department; and they were running business on the site in their possession under in the name and style of "Bharat Steel Ltd.", which was not possible without there being any construction on the spot, rather municipal administration of Faridabad had issued notices to them for demolition of unauthorized construction and had, in fact, demolished such construction in the year 1989. The authority also observed that the Tehsildar and Chief Settlement Commissioner might have visited the site after demolition of the construction in the year 1989. As opposed to this, possession of the present petitioner on the disputed site, as found by Civil Court, was since the year 1983 and in the name of construction there was found to be only a boundary wall made of bricks and mud and a temporary shed on the rear of the disputed site. It cannot be said to be substantial construction by any stretch of imagination. Thus, the circumstances appearing in the order, Annexure P8, cannot be said to be similar to the facts and circumstances of the case of the petitioner.
Thus, examined from all possible angles, case of the petitioner is found to be far from being meritorious. As a consequence, the writ petition fails and is dismissed, however, leaving the parties to bear their own costs.
(SATISH KUMAR MITTAL) (MAHAVIR S. CHAUHAN)
JUDGE JUDGE
23.07.2013
adhikari
Virender Singh Adhikari
2013.08.14 14:26
I attest to the accuracy and
integrity of this document
High Court Chandigarh