Punjab-Haryana High Court
Kala Singh And Others vs State Of Haryana And Others on 16 May, 2011
Author: K.Kannan
Bench: K.Kannan
CWP No.9961-A of 1990 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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CWP No.9961-A of 1990 Date of decision : 16.5.2011 Kala Singh and others .........Petitioners Vs. State of Haryana and others .......Respondents CORAM : HON'BLE MR. JUSTICE K.KANNAN Present:- Mr.B.R.Mahajan, Advocate, and Mr.V.K.Kaushal, Advocate, for the petitioners Mr.S.S.Gorakhpuria, DAG, Haryana
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1. Whether reporters of local papers may be allowed to see the judgment? No
2. To be referred to the reporters or not? Yes
3. Whether the judgment should be reported in the digest?
Yes
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K.KANNAN, J (ORAL) :-
1. The writ petition is at the instance of several persons who had purchased the property from the original allottee under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.
The original allottee Virsa Singh claimed the allotment on the basis that he had migrated from Pakistan leaving behind some lands and therefore, entitled to be allotted some property, from the pool of evacuee property, under the provisions of the Act of 1954. It appears that at the time of allotment, the entire property was classified as Banjar Quadim and the allottee had not ventured to bring the land under cultivation. However, it was claimed that the petitioners had been engaged as tenants, who made the property cultivable through their hard labour. They also subsequently CWP No.9961-A of 1990 -2- purported to purchase the property from Virsa Singh in May 1963.
2. The allotment in favour of Virsa Singh was reopened by the Managing Officer, Rehabilitation Department and vide his order dated 25.3.1964, he cancelled the allotment on the ground of his case being undeserved to secure the benefit under the Act. It appears that the petitioners challenged the cancellation under Section 22 of the Act but it was dismissed. They preferred a revision to the Secretary, Government Haryana, who accepted the same and remanded the matter vide his order dated 7.8.1965 to the Managing Officer for fresh consideration. After the remand, the petitioners moved an application to purchase property covered under the cancelled allotment of Virsa Singh on the basis of Instructions, issued by the Government allowing even unauthorised persons in possession of evacuee land to be purchased at a reserve price on the strength of their possession. This plea was made by the petitioners on 7.5.1965. The Managing Officer passed an order to the effect that the order for sale would be passed only after payment was made as land revenue and duly certified by the Tehsildar. Some more information was sought at the instance of the Managing Officer from the Tehsildar, Karnal for effective consideration of the pleas of the petitioners. The Officer wanted to ensure that there are no other claims in relation to the same property. The claim was ultimately rejected vide order dated 5.9.1966. This was challenged in appeal to the Settlement Commissioner but during the pendency CWP No.9961-A of 1990 -3- of the proceedings, it appears that the Tehsildar (Sales) had put up a portion of the property for auction again on 29.11.1967. A writ petition had been filed in CWP No.2811 of 1967 against the proposed auction. The writ petition was admitted and dispossession of the petitioners had been stayed by order dated 12.12.1967.
3. The petitioners contending that at that time they were all bonafide purchasers and their interests shall be protected and that public auction shall not be directed to be made. The writ petition was dismissed and a writ appeal filed, which was also dismissed. In the SLP No.1656 of 1981 filed in the Supreme Court, the Court directed that if under the rules it was permissible for the petitioners to have the land sold at a reserve price, it should be undertaken and that re-auction would in such eventuality become unnecessory. The petitioners again moved a formal application for transfer. Their case was not being taken up in accordance with the directions of the Supreme Court and when no steps were taken, they had approached this Court again in CWP No.3452 of 1987 for appropriate directions. On representation made, on behalf of the Government that it would consider the matter afresh, the case was sent back for consideration, in accordance with law. When the matter came up before Managing Officer, he dismissed it on 9.11.1987 (Annexure P-
8). Further revisions were also dismissed which are the subject of challenge before this Court.
4. The favourable consideration for the petitioners did not CWP No.9961-A of 1990 -4- obtain in view of the position taken by the Government that the allotment to Virsa Singh had been secured fraudulently and even the mutations had been rejected by the Revenue Officers. Referring to the claim of the petitioners that they were staking rights on the basis of press releases and Government Policies for sale of property in the capacity as unauthorised occupants, the Government held that the petitioners themselves had never applied for transfer of land under the instructions issued on 18.1.1968 or the instructions dated 25.8.1981 but they had claimed as purchaser from Virsa Singh and hence, they were not entitled for favourable consideration.
5. Learned counsel appearing for the petitioners points out that all that was required to be done by the officers, was to consider the rights of the petitioners for sale before re-auctioning the property in the status of unauthorised occupants. If rules or instructions permitted such sales, it was irrelevant that they had purchased the property from a bogus allottee. The law consigned even a right to purchase to an unauthorised occupant through the instructions and therefore, the rejection of the petitions by the State functionaries was erroneous. The learned counsel appearing for the State reiterated the position of what has contained in the orders and set forth in the reply that petitioners had never applied for transfer under the Government Instructions and since the claim was in pursuance to purchases from Virsa Singh, they were not entitled to any favourable consideration.
CWP No.9961-A of 1990 -5-
6. The learned counsel appearing for the petitioners points out that the Instructions and the Press Notes issued by the Government, had the force of law as an Executive Instruction under Article 162 of the Constitution. The Instructions that provide for sale of property at particular prices, mentioned in the instructions, were to be applied to any person even in unlawful occupation. A person who holds possession, from even a bogus allottee, will qualify the status of an unauthorised occupant and consequently, such persons are entitled to the purchase rights at the price, mentioned in the Notification issued on 18.1.1968 and subsequently, revised on 25.8.1981. The latter Press Release was indeed a liberlisation of policy, relating to disposal of surplus rural/sub urban evacuee land. For transfrees, other than members of Scheduled Casts, the first two standard acres was to be sold @ ` 15000/-per S.A. and for the next three standard acres it was @ ` 20,000/-per S.A. In 'Bhagat Singh v. Financial Commissioner, Revenue, Haryana and others, 1987 RLR 100' this Court had held that the prices which had to be determined shall be on the rate prevalent on the date of application and the right to purchase has to be determined on the date when the application has been filed to purchase.
7. The stand taken by the State for rejecting the petitioner's claim takes a myopic view that unless the applications are filed with specific reference to the policy statement itself, the petitioners cannot have the benefit of the Notifications. I see this objection to CWP No.9961-A of 1990 -6- be more a matter of procedure than of substance. The application dated 7.5.1965 makes a specific plea regarding the fact that they are in possession of the land though they claimed in that letter that they had purchased it from Virsa Singh, which was subsequently cancelled on 24.3.1964. When the Government made a statement before the Supreme Court that they were willing to consider the petitioners' claim, if the rules permitted and again when writ petition had been filed subsequent to the disposal of the case in Supreme Court in CWP No.3542 of 1987, disposed of on 20.12.1987, all that was necessary to be seen was whether the rules permitted such a course and the enquiry must have been directed to see whether they were actually in possession of the property. The instructions truly favoured possession, even to unauthorised occupants. The purchaser from original allottee whose allotment was held liable for cancellation will a fortiorari qualify for being treated as an unauthorised occupant. If the sale was valid, there was nothing for the purchasers to make their claims for allotment or purchases of the property. The issue of purchase of the property at a fresh price determined over and above the amounts they claimed that they had paid to the original allottee itself arose only because the sales were invalid and the possession must have been unauthorised. That unauthorised occupation by the statement of Government Policy was required to be legitimised by payment of price. So long as the request for purchase was already pending before them and when CWP No.9961-A of 1990 -7- they were renewing the plea after the decision of the Supreme Court, the authorities ought to have granted the sales of the property on the basis of the Press Notes issued already in terms of the instructions issued in the year 1968 and 1981. The rejection of the request, in my view, was erroneous and the impugned orders rejecting the claim was unjustified.
8. On 11.5.2011, at the time when a third party application for impleadment was rejected, I had directed the counsel for the State to seek appropriate instructions for disposal of the property at a reserved price in terms of any policy that may have been issued. The learned counsel appearing for the State Sh.S.S.Gorakhpuria would state that the property, which was stipulated at the price mentioned in the year 1981, is grossly low and the appropriate price would be the Collectors' office valuation, which is prevalent now. According to him, the present valuation is in the range of 4.75 lakhs per acre. If this case were to be treated as a fresh consideration of the petitioners' request on the ground that the petitioners did not avail to themselves the opportunities of purchases earlier, directions for payment of the prevalent price. If only they were making claims before this Court for the first time, then it would have been fair and appropriate for the State to collect the price prevalent at the present market conditions. I cannot allow for such a consideration in a case where the Government had been unrealistic to deny to the petitioners what they were entitled to. Still it would seem CWP No.9961-A of 1990 -8- inappropriate to allow for the sales of the property at the rate prevalent in 1981. The only additional benefit that the State could obtain and which the petitioners ought to, in all fairness be applied to the petitioners is to pay the price mentioned in the policy dated 25.8.1981 but also pay interest @ 12% P.A. from the said date till the date when the sales are affected or completed. The respondents shall be at liberty to stipulate prices, work out on the above basis, within 6 weeks of the receipt of the order and the petitioners shall make the payments and claim the right of purchase of the lands. If they fail to avail such an opportunity and commit any default, the right protected through this order shall be taken as forfeited and the State shall be at liberty to obtain resumption of the property in accordance with law.
9. The impugned orders are quashed and the writ petition is allowed subject to the directions referred to above.
(K.KANNAN) JUDGE 16.5.2011 akm