Punjab-Haryana High Court
Ram Saran And Others vs The Commissioner And Secretary To ... on 25 September, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.7766 OF 2004 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: SEPTEMBER 25, 2012
Ram Saran and others
.....Petitioners
VERSUS
The Commissioner and Secretary to Government Haryana,
Rehabilitation Department, Chandigarh and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Som Nath Saini, Advocate,
for the petitioners.
(in CWP Nos.7766, 7966, 8129, 8729 of 2004)
Mr. G. S. Nagra, Advocate,
for the petitioners.
(in CWP No.15543 of 2004)
Mr. S. S. Dinarpur, Advocate,
for the petitioners.
(in CWP No.18531 of 2004)
None for the petitioners.
(in CWP Nos.17990 and 20152 of 2004).
Ms. Kirti Singh, DAG, Haryana,
for the State.
*****
RANJIT SINGH, J.
Eight Civil Writ Petition Nos.7766 of 2004 (Ram Saran and others Vs. The Commissioner and Secretary to CIVIL WRIT PETITION NO.7766 OF 2004 :{ 2 }:
Government Haryana, Rehabilitation Department, Chandigarh and others), 7966 of 2004 (Narvida @ Narmada and another Vs. The Commissioner and Secretary to Government Haryana, Rehabilitation Department, Chandigarh and others), 8129 of 2004 (Sewa Singh and others Vs. The Commissioner and Secretary to Government Haryana, Rehabilitation Department, Chandigarh and others), 8729 of 2004 (Naranjan Singh and another Vs. State of Haryana and others),, 15343 of 2004 (Raghbir Singh Vs. State of Haryana and others), 17990 of 2004 (Gurnam Singh and another Vs. State of Haryana and others), 18531 of 2004 (Gurvinder Singh and another Vs. State of Haryana and others) and 20152 of 2004 (Jasbir Singh and another Vs. State of Haryana and others) are being disposed of through this common order as common question of law arises in these petitions. Different issues, if any, on facts are also being considered and dealt with in this common order.
The facts in four Civil Writ Petition Nos.7766, 7966, 8129 and 8729 of 2004 as well as the question of law being common are being dealt with separately in this common order whereas the remaining writ petitions can be disposed of as common question of law and facts arise in those petitions.
One legal issue arising in all the writ petitions is common and is regarding protection of subsequent purchaser under Section 41 of the Transfer of Property Act (for short, "the Act"). All these writ petitions were clubbed together as this question of law regarding the effect of Section 41 of the Act was referred for adjudication before CIVIL WRIT PETITION NO.7766 OF 2004 :{ 3 }:
the Full Bench in view of two conflicting views expressed by two different Division Benches. This issue has now been decided by Full Bench in Civil Writ Petition No.5662 of 1986 (Smt.Naranjan Kaur and others Vs. Financial Commissioner, Revenue, Secretary to the Government of Punjab and others) vide judgement dated 16.7.2010. The Full Bench has held that protection under Section 41 of the Act would not be available to the subsequent vendee but this would not bar the subsequent vendee being proper party to contest the order of cancellation by resorting to the provisions of Sections 24 and 33 of the Act. The bonafide purchasers have been held entitled to get back their money alongwith interest and costs from the vendors. Thus, Section 41 of the Act is held to have no application where transfer is held invalid under Sections 19 and 24 of the Act as no estoppel can be pleaded against the provisions of the statute and such subsequent vendee can only claim refund or damages from the vendors.
After deciding this question of law in Smt.Naranjan Kaur's case (supra), the case was referred back to Single Judge for decision on merits. Before the Single Judge, the petitioners had made a submission that since vendors had obtained a Sanad, they had a transferable interest in respect of a property in particular District as it was a case of dual allotment. This submission was held untenable. Learned Single Judge has observed that if the issue of purchase being bonafide is excluded, as being inapplicable, the fact that the purchaser has no part to play in the fraud, is of no significance. The issue of cancellation of allotment is to be CIVIL WRIT PETITION NO.7766 OF 2004 :{ 4 }:
considered without reference to the purchaser. On this basis, ultimately it is held that the remedy for such petitioners shall only be to claim the refund of the sale consideration or damages in the manner pronounced by the Full Bench in the order of reference and the cause of action for this would commence through the order passed by the Court when the rights of parties are fully determined. The Court finally held that it will be open to the petitioners, if so advised, to approach the Government for any consideration for allotment of the same very property if the rules so permit and if the discretion of the State makes possible for such consideration.
Mr.G.S.Nagra, counsel appearing in Civil Writ Petition No.15543 of 2004 and Mr.S.S.Dinarpur, appearing in Civil Writ Petition No.18531 of 2004 submits that the cases of the petitioners in these writ petitions are squarely covered by the ratio of law laid down by the Full Bench and shall also be covered by the decision of the Single Judge in the case of Smt.Naranjan Kaur' (supra).
The said writ petitions are accordingly disposed of in the same terms.
Mr.Som Nath Saini, Advocate, appearing in Civil Writ Petition Nos.7766, 7966, 8129 and 8729 of 2004, however, pleads that the issue of applicability of Section 41 of the Act raised in these petitions would be covered by the decision of Full Bench in Smt.Naranjan Kaur's case (supra) but there is one issue, which may still require some consideration. The counsel concedes that the petitioners in these writ petitions are the subsequent purchasers from the allottees of the land but these were not the cases of dual CIVIL WRIT PETITION NO.7766 OF 2004 :{ 5 }:
allotment. He has referred to the part of pleadings, where it is mentioned that earlier L.Rs of Bhawani Mal were entitled to 47 standard acres 83/4 units but they were given 44 standard acres 4 units and the balance land was given in 95/96. This was noticed as an ambiguity requiring detailed examination. Accordingly, Commissioner and Secretary Haryana, Rehabilitation Department, had remanded the case to the Chief Settlement Commissioner to ascertain the exact area left by Bhiwani Mal village-wise in Pakistan and to pass an appropriate order. An application was filed on behalf of Ram Saran, Jaswant Singh and Ramesh for setting-aside this remand order, as it was passed without impleading the said applicants as a party or without affording them an opportunity of hearing. This application, however, was declined on 27.4.2004, against which the present petitions were filed. Mr.Saini, therefore, pleads that the petitioners, being subsequent purchasers, are the proper and necessary parties and ought to have been impleaded as such and the order declining their prayer in this regard may be set- aside and the petitioners may be permitted to participate in the proceedings, which are pending before the Chief Settlement Commissioner after remand.
I have perused the copy of the application filed in Civil Writ Petition No.7766 of 2004. The only plea made in this application is for setting-aside the order dated 31.3.2002, which was statedly passed without impleading the petitioners as party and, thus, not providing an opportunity of hearing to them. There was no prayer made by the petitioners for being impleaded as a party in the CIVIL WRIT PETITION NO.7766 OF 2004 :{ 6 }:
proceedings. Thus, so far the prayer to recall the order passed by the Commissioner was considered and declined. Since the petitioners have not filed any application for being impleaded as a party either before the Secretary or Chief Settlement Commissioner, the prayer made in the petition or raised during the course of arguments for impleading the petitioners as party would not require consideration being beyond the scope of prayer made before the authorities. The plea which was never raised before the authorities concerned, can not be considered in the writ petition. Since the case is pending before the Chief Settlement Commissioner, it would be open for the petitioners to file an application for being impleaded as party respondents. In case of any adverse order, the petitioners would be at liberty to take any appropriate proceedings against such order.
These writ petitions are, thus, disposed of in the above terms.
September 25, 2012 (RANJIT SINGH ) khurmi JUDGE