Punjab-Haryana High Court
Mehar Singh And Others vs The State Of Punjab And Others on 20 March, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
LPA No. 1743 of 2013 (O&M) [1]
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Date of Decision: 20.3.2014
(i) LPA No. 1743 of 2013 (O&M)
Mehar Singh and others ......Appellants
Versus
The State of Punjab and others .....Respondents
Present: Shri M.L. Saggar, Senior Advocate, with
Shri Sunny Saggar, Advocate, for the appellants.
Shri Rajinder Goel, Additional AG, Punjab.
(ii) LPA No. 1763 of 2013 (O&M)
Parampreet Singh Others ......Appellants
Versus
State of Punjab and others .....Respondents
Present: Shri Arun Jain, Senior Advocate, with
Shri Amit Jain, Advocate, for the appellants.
Shri Rajinder Goel, Additional AG, Punjab.
(iii) LPA No. 1892 of 2013 (O&M)
Kuldip Singh ......Appellant
Versus
The State of Punjab and others .....Respondents
Present: Shri A.K. Kalsy, Advocate, for the appellants.
Shri Rajinder Goel, Additional AG, Punjab.
(iv) LPA No. 1967 of 2013 (O&M)
Davinder Singh ......Appellant
Versus
The State of Punjab and others .....Respondents
Singh Dalbir
2014.03.28 17:23
I attest to the accuracy of this
document
High Court Chandigarh
LPA No. 1743 of 2013 (O&M) [2]
Present: Shri J.S. Chahal, Advocate, for the appellant.
Shri Rajinder Goel, Additional AG, Punjab.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MS. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
This order shall dispose of LPA Nos. 1743 of 2013, 1763 of 2013, LPA No. 1892 of 2013 and 1967 of 2013. However, for the facility, the facts are taken from LPA No. 1743 of 2013.
The aforesaid LPAs are directed against an order passed by the learned Single Bench of this Court on 3.5.2013, whereby the Writ Petition Nos. 6476 of 1987; 6960 of 1987 and 8018 of 1987 filed by the appellants challenging the order dated 9.7.1984 (Annexure P.10) passed by the Collector, exercising the powers under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (for short `the Act') and the order in appeal dated 12.8.1987 (Annexure P.11) passed by the Commissioner, affirming the order of Collector, remained unsuccessful.
The brief facts leading to the present appeals may be stated. The Faridkot House Chaura Bazaar, Ludhiana belonging to the erstwhile State of Faridkot and vesting with the Pepsu on formation of Pepsu, was leased out to late Shri Jhanda Singh, father of respondent No.1 before the Collector, vide Lease Deed Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [3] dated 30.2.1949. The lease period expired on 31.3.1950, but the lessee continued to be in possession. The tenancy was terminated with effect from 31.3.1964 after serving a notice dated 16.3.1964. An Application under Sections 4 and 7 of the Act was filed on 17.10.1975 against Daljit Singh, legal heir of the deceased Jhanda Singh and 34 occupants (Some of them are in appeal before this Court), the sub tenants inducted by Jhanda Singh. Initially an order of eviction was passed by the Collector, Ludhiana on 17.2.1981, but the said order was set aside by the Commissioner on 15.2.1982 and the matter remanded to the learned Collector to decide the matter afresh keeping in view the observations made therein. It is thereafter, the Collector passed an order of eviction on 9.7.1984, which was affirmed vide order passed by the Commissioner on 12.8.1987. Both the orders were not interfered with by the learned Single Judge. Still aggrieved, the present appeals have been preferred by some of the occupants.
The appellants are resisting the eviction proceedings on the plea that they are in possession of the premises in dispute in pursuance of the agreement to sell arrived at before the State Disposal Committee, constituted in exercise of the executive power of the State, in the sum of Rs.3,50,000/-. The appellants have deposited 25% of the sale consideration as agreed and that the appellants are ready and willing to perform their part of the contract. Therefore, they cannot be said to be unauthorized occupants liable to be evicted in terms of the provisions of the Act.
The State Government constituted a Committee known as Disposal Committee "for disposal of the uneconomic and surplus properties of the erstwhile Pepsu State outside the Punjab" and Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [4] any matter incidental thereto vide notification dated 29/31.3.1957 (Annexure P.1). The Committee consisted of the Secretary to Government of Punjab, Finance Department as Chairman; a representative of the Finance Department not below the rank of Deputy Secretary to be nominated by the Department; one representative of the PWD (B&R) not below the rank of Executive Engineer to be nominated by the Buildings and Road Branch and one representative from the Law Department not below the rank of Legal Remembrancer, to be nominated by the Law Department. On 8.8.1958, the Disposal Committee was renamed as State Disposal Committee and it was also empowered to deal with the "disposal of the uneconomic or surplus Government properties of the erstwhile Pepsu State outside Punjab, to deal with all surplus Government property in the custody of the PWD situated at Delhi or other places within or outside the Punjab State." The Committee was further to supervise and coordinate the work of the District Disposal Committee of which the Deputy Commissioners in their respective districts were to be the Chairman.
The appellants have attached minutes of 37th of the State Disposal Committee meeting held on 10.8.1964, whereby some part of the minutes of meeting of the earlier meeting held on 22.2.1964 were resolved to be omitted. The part resolved to be omitted read as under:-
"Thereafter the matter of sale of the building to the Present Sub tenants be taken up in the Ist/2nd week of April, 1964, and they may be asked to deposit 1/4th amount of the assessed price of the portion of the building under their occupation as Ist instalment. The remaining 3/4th amount be paid by them in three equated annual instalments with interest Rs.6-1/2%."
Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [5] The minutes of 22.2.1964 are not available on record, therefore, the nature and extent of the earlier proceedings cannot be known. But the omitted part gives us an indication that the action of sale of building to the appellants and to deposit 1/4th amount of the assessed portion was omitted meaning thereby that there was no such decision to this effect.
The entire claim of the appellants is based upon the 40th meeting held on 6.3.1965 (Exhibit P.8) held in the office of Chief Engineer, Punjab, PWD (B&R). The members present were Shri G.C. Khanna, Chief Engineer, PWD (B&R); Deputy Secretary, Finance, Government of Punjab; Deputy Legal Remembrancer; Superintending Engineer (B&R) and Executive Engineer, Patiala Provincial Division, Patiala. The Secretary Department of Finance was not present in such meeting. The decision relied upon is against Item No.12, which reads as under:-
"Item No.12. Faridkot House, Ludhiana.
The assessment of the building made by the Superintending Engineer, Patiala, according to the decision of the Committee taken in its meeting held on 10.8.1964 was considered at length and it was decided by the Committee to fix the sale reserve price of building as Rs.3.50 lacs.
A deputation of the sub tenants of the building was heard by the committee. An offer to sell the building to the sub-tenants for a sum of Rs.3.50 lacs was given to the deputation, who accepted the purchase thereof at the said price. They also gave in writing their acceptance. The deputation was asked to deposit 10% to deposit 10% earnest money of the sale price plus the arrears of rent upto 31.3.65 (from 1.4.64 to 31.3.65) within a week. At this, the deputation requested to give them the break up of Rs.3.50 lacs tenants wise so that they may deposit the earnest money. They also agreed to pay the first instalments i.e. 25% of the sale price plus arrears rent upto 1.4.65 also Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [6] gave this in writing. The rent from 1.4.64 to 31.3.65 is to be charged at the same rate which the sub tenants were paying to the old lessee. It was further decided to recover the sale amount within 4 equated annual instalments and 6% interest will be charged thereon. The 1st instalment is to be deposited by the sub-tenants upto 1.4.65 which is fixed the sale date and from that no rent will be charged from sub-tenants and they will be treated as owners of the premises and under their possession. The Executive Engineer, Patiala accompanied by the O.S.D. outside property should visit Ludhiana and assist the tenant in determining the proportion of cost which each tenant has to pay to the Government. The Executive Engineer, Patiala, to give areas occupied by each tenant to the Association and the Association will determine the price to be paid by each tenant depending on the location of the tenants. It should be seen that the total cost is Rs.3.50 lacs. As regards the recovery of arrears rent from the old lessee Sh. Daljit Singh the department concerned may take action for the recovery thereof according to rules."
On 22.12.1965 (Annexure P.5), in the meeting presided over by the Finance Minister and in the presence of the PWD Minister; Chief Engineer, Punjab (PWD); Shri G.C. Khanna, the Ex-Chief Engineer, who was the chairman of the meeting of 6.3.1965; Shri Kesho Ram, Deputy Secretary and Shri Puran Chand, Deputy Legal Remembrancer, the following minutes were recorded:-
"Item No.1 Faridkot House.
The proposal of the rate of the building to be present sub-tenant, the total price is Rs.3,50,000/- submitted by the State Disposal Committee to the Government was considered at length. Finance Minister brought to the notice of all the present that the price of Rs.3,50,000/- is too low for the building which had already been inspected by him and that a good amount can be fetched by selling the building in open auction after getting it vacated from the Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [7] present sub-tenants. This aspect was thoroughly considered and it was decided that the building may be got vacated at the earliest and the sale should be made in the open auction. Action to be taken by the Chief Minister."
In reply to the petition for eviction, the stand of the appellants is that they are in legal and authorized possession of the property in terms of the agreement to sell dated 6.3.1965 with effect from 1.4.1965 and in the part performance of the agreement. It was asserted that having been paid 25% of the sale price of Rs.3,50,000/- as part payment, the respondents were estopped from initiating the eviction proceedings. It was also stated that the appellants made several attempts to get the sale deeds executed, but the same was not executed. The relevant averments made in the reply read as under:-
"E. That the answering respondents attempted several times to get the sale deed executed in their favour on payment of the balance instalments of sale price. The balance sale price was always ready with the answering respondents. The answering respondents are still ready and willing to deposit the remaining sale price and to get the sale deed executed in their favour. The answering respondents also made written representations to the Chairman, Disposal Committee of Government Property- cum-Chief Engineer, B&R, Patiala to the Minister Incharge, PWD, B&R, Punjab, Chandigarh to the Hon'ble Governor, Punjab, Chandigarh with copy to the Secretary, PWD, Punjab and Advisor to the Punjab Governor, Chandigarh and to the Chief Minister, Punjab. The aforesaid written representations were also followed by the deputations led by the answering respondents to get the compliance of the agreement to sell, but were without effect."
The order of the Collector dated 17.2.1981 (Annexure P.8), is a short order, but in the order dated 15.2.1982 passed by the Commissioner in appeal (Annexure P.9), the learned Commissioner Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [8] returned a finding that there was a decision taken by the State Disposal Committee to sell the property in question to the present appellants, but there is no record of the communication of the decision dated 22.12.1965 (Exhibit P.12). The learned Commissioner observed that this case needs to be decided de-novo, however, after recording a finding that certain persons have failed to deposit the earnest money as was desired by the State Disposal Committee.
After remand, the learned Collector held that the decision of the State Disposal Committee has been duly revoked on 22.12.1965 (Exhibit P.12) and the alleged amount deposited by the appellants (respondents therein) has been duly adjusted towards the damages caused to the premises occupied by them. It was further held that the appellants were well informed about the said decision, and thus the title of the said property was not vested with the appellants (respondents therein). It was concluded as under:-
"9. I have considered the arguments of both the parties oral as well as written. The arguments of learned A.D.A. are quite convincing and carry much weight in the light of evidence adduced. I am satisfied that after the revocation of the sale agreement the respondents have no right or reason to remain in occupation of the premises. The respondents are not entitled to seek the claim of part performance as alleged by them in their objections. The only remedy was open to them to file a suit for specific performance at the time of revocation of the said sale agreement. I have no hesitation in holding that the respondents are in unauthorized occupation of this public premises. Now, therefore, in exercise of the powers conferred by sub section (2) of Section 5 of the Punjab Public Premises and Land (Eviction & Rent Recovery) Act, 1973, I hereby order the said respondent to vacate the said premises within 30 days of the publication of this order. The learned A.D.A. has not Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [9] pressed his claim for the recovery of arrears of rent and has pleaded that separate petition would be filed for its recovery later on."
In appeal, the learned Commissioner held that the minutes recorded on 6.3.1965 (Exhibit P.8) do not constitute an agreement to sell. It is merely a record of minutes of the meeting of the State Disposal Committee. It held that there cannot be any oral or implied agreement and that only the formal documents signed by the parties conforming to the mandatory requirements contained in Article 299(1) of the Constitution of India, may amount to an agreement. It was held that Exhibit P.8 does not fulfill the essential requirements of an agreement and even if it is constituted to be an agreement, it was revoked on 22.12.1965. It was for the appellants to seek specific performance of the agreement otherwise liability of eviction from the premises is upon them.
The learned Single Judge found that the minutes of meeting recorded on 6.3.1965 do not lead to a concluded contract and will not stop the Government from revoking the proposal. The learned Single Bench held to the following effect:-
"Thus, from the position of law which has been settled by the Hon'ble Apex Court, the triple test had to be satisfied for the petitioners to contend that there was a contract which had been concluded between them and the State which could stop it from denying the petitioners to hold out that the contract had been finalized on 06.03.1965. It is clear from the record that no contract was executed by the Governor or in the name of the Governor regarding the minutes of meeting recorded on 06.03.1965 though the said minutes were in pursuance of the power given to the Committee to sell the uneconomical and surplus properties. However, mere minutes of the meeting would not give any indefensible right to the petitioners and stop the Government from revoking the said proposal. Merely Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [10] because the petitioners who are sub-tenants had been asked to deposit the first installment and most of them had acted on the same, it could not be held that a concluded contract had come into picture. The said minutes of the meeting were never confirmed and put into writing in the name of the Governor or on his account as provided under Article 229(1) of the Constitution of India and, therefore, the subsequent decision taken on 22.12.1965 whereby, the said proposal was revoked gave the Government the right to proceed ahead against the petitioners."
The learned Single Bench further held that individual interest must give way to public interest and if the Government finds that the earlier policy or decision is not in larger public interest, the Courts could not debar it from reviewing its policy except in cases where the subsequent act of the Government could be shown not to be in the public interest. In respect of the decision dated 22.12.1965, the Court held to the following effect:-
"21. That this Court only has to examine whether the decision of the Minister dated 22.12.1965 was arbitrary in any manner and as pointed out by counsel for the State, the said decision is not a subject matter of challenge since only the proceedings under the P.P. Act are subject matter of writ petition. The decision not to sell the property to the tenants who are in occupation was a decision taken by the then Ministers on the ground that the price of Rs. 3,50,000/- at that point of time was also very low and a higher amount could be fetched by ejecting the tenants and there is no mala fide against the then Minister who was acting in interest of the Government and did not approve the minutes of the meeting. That in Bannari Amaan Sugars Ltd. vs. Commercial Officers and others, (2005) 1 SCC 625, it has been held that while taking a policy decision, the Government is not required to hear the parties concerned, which was the case in hand also.
22. Thus, keeping in view the said observations and from the facts of the present case, it can be safely held that there was never any concluded contract between the petitioners Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [11] and the State and the proceedings dated 06.03.1965 were only mere minutes of the meeting, which had been recorded. The petitioners themselves being aware of the fact that no legal and valid contract had been executed thus had never approached the civil Court for the enforcement of the same."
Before this Court, the learned counsel for the appellants have also referred to the report of the Chairman of the Committee dated 13.10.1978 (Annexure P.13). Such report was not before the authorities under the Act or before the learned Single Bench. Therefore, the respondents have no opportunity to rebut the same. In the report, the Chairman of the Committee has recommended the transfer of the ownership rights to the occupants. It is not even asserted that such report has been accepted by the State Government. Therefore, the report of the Committee by itself will not confer any enforceable right in favour of the appellants.
We do not find that the findings recorded by the learned Single Bench or by the Collector or the Commissioner suffers from any illegality. Our reasons in support of the said conclusions are as under:-
1. The State Government is the owner of the property. The same can be sold or even agreed to be only by a person authorized in law. In terms of the Rules of Business of the Punjab Government (Part I) notified on 22nd December, 1953 and as corrected up to 31st August 1955, the Secretary Revenue Department is the person competent to grant leases and sales of the Government lands and Government Estates. The minutes of the Disposal Committee constituted vide notification dated 29/31.3.1957 could Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [12] not create a binding contract, unless an agreement was signed and communicated by the Secretary Revenue of the State Government. In the absence of any communication by the person competent to represent the State Government, no enforceable and binding agreement comes into existence.
2. The Committee was constituted to dispose of surplus government property in the custody of the PWD situated within or outside Punjab. There is no assertion by the Appellants that the building let out to Jhanda Singh was surplus. Therefore, the shops could not be resolved to be sold to the appellants through the State Disposal Committee.
3. The meeting of 6th March 1965 was not by the Committee constituted by the State Government. The Secretary of the Finance Department was not a participating member of such meeting. Therefore, even in exercise of the executive powers of the State, the power for sale could be exercised in terms of the delegation to the Committee so constituted. Since the minutes are recorded by a Committee of which the Secretary, Finance was not a member, the minutes would not be in terms of the delegation of the power of the State to dispose of land. Such decision does not conform to the law.
4. The minutes show that the Committee has fixed the reserve price of the building as Rs.3,50,000/-. The offer to sell the building was by a deputation of the Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [13] subtenants. The acceptance conveyed by the deputation was only a proposal to the State Government to purchase the property. No communication was ever addressed to the appellants conveying the sale of the property by an officer competent to represent the State. The decision in the files without communication to the appellants does not create any contract creating enforceable right.
Supreme Court in Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 observed as under:-
"9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.
10. The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [14] Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the "order" of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned.
xxx xxx xxx Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character."
Thus, the minutes recorded without any approval from the Secretary Revenue, Government of Punjab, would not create a binding or enforceable agreement against the state. The deposit of 25% of the reserve price by the occupants is by their own calculations without any communication from the State Government. Therefore, it is a unilateral act incapable of being enforceable in law.
5. Since there was no communication to the appellants offering the sale of the property, therefore, Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [15] no right accrues in favour of them in view of the judgment reported as Greater Mohali Area Development Authority v. Manju Jain, (2010) 9 SCC 157, wherein the Hon'ble Supreme Court held that mere draw of lots does not confer any right of allotment. Draw of lots is not being resorted to with a view to identify the prospective allottees. It was held that the order of the authority must be communicated for conferring an enforceable right and in case an order has been passed and not communicate, it does not confer any right. It was held to the following effect:-
"21. Mere draw of lots/allocation letter does not confer any right to allotment. The system of draw of lots is being resorted to with a view to identify the prospective allottee. It is only a mode, a method, a process to identify the allottee i.e. the process of selection. It is not an allotment by itself. Mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment. (See DDA v. Pushpendra Kumar Jain, AIR 1995 SC page 1)"
In U.P. Avas Evam Vikas Parishad v. Om Prakash Sharma, (2013) 5 SCC 182, the Court reiterated the same principles in the following words:-
"31. In view of the law laid down by this Court in the aforesaid decisions, the learned Senior Counsel Mr Rakesh Dwivedi has rightly placed reliance upon the same in support of the case of the first defendant, which would clearly go to show that the plaintiff had not acquired any right and no vested right has been accrued in his favour in respect of the plot in question merely because his bid amount is highest and he had deposited 20% of the highest bid amount Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [16] along with the earnest money with the Board. In the absence of acceptance of bid offered by the plaintiff to the competent authority of the first defendant, there is no concluded contract in respect of the plot in question, which is evident from letters dated 26-5- 1977 and 8-7-1977 wherein the third defendant had rejected the bid amount deposited by the plaintiff and the same was refunded to him by way of demand draft, which is an undisputed fact and it is also not his case that the then Assistant Housing Commissioner who has conducted the public auction had accepted the bid of the plaintiff."
6. The minutes recorded further shows that it is not a complete agreement as the total reserve price of all the shops was Rs.3,50,000/-, but price was to be determined to be paid by each of the sub-tenants depending upon the location. Since no decision was taken as to how much amount is paid by each of the occupants, the minutes are incomplete, vague and uncertain not capable of enforcement in law.
7. The minutes dated 6.3.1965 were not approved by the Committee on 22.12.1965, Chaired by the Finance Minister and attended by the PWD Minister; Shri G.C. Khanna, Since Retired as the Chief Engineer, PWD (B&R) who chaired the meeting of the State Disposal Committee held on 6.3.1965; the Chief Engineer PWD (B&R), as well representative of the finance and legal departments. The finding recorded is that the minutes recorded on 22.12.1965 were communicated, but even if for the sake of arguments, it is assumed that it was not communicated as vehemently argued by before this Court, still the fact Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [17] remains that it is the positive assertions of the appellants that they approached the Department number of times for execution of the agreement, but none was executed (see para E of the reply) reproduced above. Therefore, the cause of action arose to the appellants, when the agreements/sale deeds were not executed, to seek specific performance of the so called agreement. But no such action was taken.
8. The plea of protection of possession in terms of Section 53-A of the Transfer of Property Act is permissible if the agreement is in writing signed by the transferor and that the transferee is ready and willing to perform his part of the contract. Firstly, the agreement is not signed by the transferor i.e., a person authorized in law to sign for and on behalf of the State of Punjab, nor it is with any specific transferee. The minutes are of a meeting with a deputation of the sub tenants, and not with the individual occupants. Therefore, prerequisites for raising a plea of Section 53-A of the Transfer of Property Act, are not satisfied.
In Bishandayal and Sons v. State of Orissa, (2001) 1 SCC 555, an agreement was sought to be enforced on the basis of minutes recorded. It was found that the minutes are not signed by the parties. In the present case, the minutes are not signed by any of the individual sub-tenants, though there is nothing on record to show that even the deputationists signed the same or not. Apart from the minutes, there is no Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [18] written agreement between the parties. Therefore, in terms of the aforesaid judgment, it is not an agreement meeting the constitutional requirement under Article 299 of the Constitution. It was held as under:-
"14. ....... The minutes were then produced in the court. It was found that the original minutes did not contain the signatures of either of the parties. The original minutes were shown to the counsel for the appellants and they were satisfied that the minutes had not been signed by the parties. Thus the appellants themselves, on such a plea being raised, called for the additional evidence and the appellate court permitted it. The original minutes clearly indicated that the provisions of Article 299 had not been complied with. Further the witness of the appellants had, during his cross-examination, admitted that apart from the minutes there was no other written agreement between the parties. It is not the case of the appellants that the agreement arrived at in the meeting of 29-12-1978 had thereafter been approved or sanctioned either by the President or the Governor. It is, therefore, clear that even though there may have been some agreement the same was not in compliance with the constitutional requirement under Article 299 of the Constitution of India and is therefore unenforceable in law. ...."
9. The protection of Section 53-A of the Transfer of Property Act, would be available if the possession is delivered to the appellants in pursuance of an agreement to sell. The appellants were already in possession as sub tenants, therefore, the possession of the appellants was not in part performance of the agreement. The sub tenants have not surrendered their possession as sub-tenants and were not delivered Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [19] possession in pursuance of the minutes so recorded. The appellants continued to be in possession as before the recording of the minutes. Therefore, the possession of the appellants is not in pursuance of the minutes so recorded. Similar question was examined by the Supreme Court in D.S. Parvathamma v. A. Srinivasan, (2003) 4 SCC 705. The Court held that:-
"9. Secondly, the appellant has failed to allege and prove that he was delivered possession in part- performance of the contract or he, being already in possession as lessee, continued in possession in part-performance of the agreement to purchase i.e. by mutual agreement between the parties his possession as lessee ceased and commenced as that of a transferee under the contract. On the contrary, there is a finding recorded in the earlier suit that in spite of his having entered into a contract to purchase the property he had not disowned his character as lessee and he was treated as such by the parties. The judgment dated 1-9-1999 in the civil suit notes the conduct of the plaintiff inconsistent with his conduct as a vendee-in-possession. When a person already in possession of the property in some other capacity enters into a contract to purchase the property, to confer the benefit of protecting possession under the plea of part-performance, his act effective from that day must be consistent with the contract alleged and also such as cannot be referred to the preceding title. The High Court of Madhya Pradesh had occasion to deal with the facts very near to the facts before us in Bhagwandas Parsadilal v. Surajmal, AIR 1961 MP 237. A tenant- in-possession entered into an agreement to purchase the house forming the subject-matter of tenancy. However, he failed to show his nature of possession having altered from that of a tenant into that of a transferee. In a suit of ejectment based on landlord- tenant relationship, the tenant sought to protect his Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [20] possession by raising the plea of part-performance as against the subsequent purchaser of the property. Referring to Section 91 of the Indian Trusts Act, the High Court held that a subsequent purchaser of the property with notice of an existing contract affecting that property must hold the property for the benefit of the person in whose favour the prior agreement to sell has been executed to the extent it is necessary to give effect to that contract. But that does not mean that till a final decision has been reached the contract creates a right in the person-in-possession i.e. the tenant, to refuse to surrender possession of the premises even if such possession was obtained by him not in part- performance of the contract but in his capacity as a tenant. Having entered into possession as a tenant and having continued to remain in possession in that capacity he cannot be heard to say that by reason of the agreement to sell his possession was no longer that of a tenant. (Also see Dakshinamurthi Mudaliar v. Dhanakoti Ammal, AIR 1925 Mad 965 and A.M.A. Sultan v. Seydu Zohra Beevi, AIR 1990 Ker 186) In our opinion the law has been correctly stated by the High Court of Madhya Pradesh in the abovesaid decision."
10. Another argument of the learned counsel for the appellants is that since the property was agreed to be disposed of after negotiations in terms of the Policy of the State Government notified on 29/31.3.1957, therefore, the requirement of the execution of the contract is not necessary. Such policy is in exercise of the executive power of the State under Article 162 of the Constitution.
The Hon'ble Supreme Court in G.J. Fernandez v. State of Mysore, AIR 1967 SC 1753 held that Article 162 does not confer any power on the State to frame Rules. It only indicates the scope of the executive power of the State. Under such executive power, the Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [21] State Government gives administrative instructions as to how to act in certain circumstances but that will not make such instructions, statutory rules, which are justiciable. It was held to the following effect:-
"We are therefore of opinion that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course, under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefore. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and scope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the legislature of the State can pass laws. But Article 162 itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [22] the court for quashing orders in breach of such instructions."
11. In the present case, the requirements of the policy notified by the State Government have not been complied with. The provisions as contained in Article 162 nor the provisions of Article 299(1) in respect of the execution of the contract with a State, have been complied with. The State Disposal Committee was to identify the surplus property of the Pepsu State situated inside or outside the Punjab, but the sale of such properties could be effected only by the Secretary Revenue Department, in terms of the Rules of Business notified. Therefore, the notification of the year 1957 or 1958 was to constitute a Committee for the aid and advice of the Secretary, Revenue.
12. The power under the Notifications Annexures P.1 and P.2, could be exercised only in the manner prescribed. There was no quorum for the Committee. Therefore, all the Committee members were required to be present before disposing of any surplus property. The property was let out to Jhanda Singh at an yearly lease amount of Rs.5750/- in the year 1949. The property consisting of more than 30 shops in Chuara Bazaar, Ludhiana, cannot be said to be surplus in the year 1965. The State Disposal Committee could not enter into negotiations to sell the property in an arbitrary and whimical manner. The Committee was Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [23] expedted to sell the public property in the manner known to law i.e. by public auction.
13. The reliance of the appellants on the Division Bench judgment of this Court reported as Bishan Singh and others v. Chief Settlement Commissioner and others, 1973 PLJ 183, is of no help to the arguments raised. That was a case of unauthorized occupants of a package deal property, wherein it was decided to confer ownership rights upon the unauthorized occupants of the package deal property. It was held that the decision to dispose of the package deal property to the occupants is fair and reasonable exercise in terms of Article 162 of the Constitution. A complete procedure was provided in the Rules for sale of the property but the notification in question is silent. It only constitutes a Committee. In the present case, the policy is for disposal of uneconomic and surplus properties. There is no right to dispose of the property in an arbitrary and whimsical manner. The learned Single judge has examined the said issue in great details. We agree with the findings recorded in respect of sale of public property. Such disposal is contrary to the established principles of law relating to sale of public property.
In view of the above, we do not find any ground to interfere in the order passed by the learned Single Bench. The present appeals are dismissed. However, the appellants are granted six weeks' time to vacate the premises. It shall be open to the State to Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh LPA No. 1743 of 2013 (O&M) [24] take recourse to recover the damages for unauthorized occupation of the premises till the date of vacation, in accordance with law, in terms of the liberty granted by the Collector.
[ HEMANT GUPTA ] JUDGE [ FATEH DEEP SINGH ] JUDGE 20.3.2014 ds Singh Dalbir 2014.03.28 17:23 I attest to the accuracy of this document High Court Chandigarh