Kanshi Ram vs Financial Commissioner & Secretary To ... on 25 October, 2013

[Cites 10, Cited by 1]

Punjab-Haryana High Court

Kanshi Ram vs Financial Commissioner & Secretary To ... on 25 October, 2013

1. Challenge in the present writ petition is to the order dated 01.06.1992 (Annexure P5), passed by the Chief Settlement Commissioner, Haryana-respondent No.2 wherein revision petition of respondent No.4, Ramji Dass (deceased, now represented through his son, Ved Parkash) was allowed by setting aside the order dated 14.01.1991 (Annexure P3) of the Tehsildar (Sales)- cum-Managing Officer, Rohtak. The auction in favour of the petitioner pertaining to 57 square yards was set aside. The property was further transferred to respondent No.4 on deposit of `13,500/- and the necessary formalities regarding issuing of the conveyance deed were to be completed. The transfer of the remaining 38 square yards, in favour of the petitioner, was, however, to remain intact. Challenge is also laid to the order dated 12.04.1994 (Annexure P7), passed by the Financial Commissioner and Secretary to Government, Haryana, Rehabilitation Department whereby the said order was upheld giving Sailesh Ranjan 2013.10.28 12:45 I attest to the accuracy and integrity of this document CWP No.15179 of 1994 -2- both the parties their due share.

2. The pleaded case of the petitioner (deceased, now represented through his son, Sat Pal) is that the dispute pertains to the property bearing house No.215 situated in Jind Town, measuring 95 square yards. Both the petitioner and respondent No.4 were displaced persons and they were in possession of 38 square yards and 57 square yards respectively. An application was filed by respondent No.4 that the property be transferred to him on payment of the price fixed by the State Government, which was dismissed by respondent No.2, on the ground that it was occupied by more than one person and could not be transferred in his name. In the petition filed under Section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1952 (hereinafter referred to as 'Rehabilitation Act'), the matter was compromised and it was agreed that property be transferred to both the occupants jointly on payment of price fixed by the State Government vide order dated 09.12.1982 (Annexure P1). However, respondent No.4 did not deposit the reserve price @ `20 per square yards and therefore, the whole property was auctioned as per the order of the Tehsildar (Sales)-cum- Managing Officer, Rohtak dated 03.03.1986. An appeal was filed by the petitioner against the said order which was accepted and the case was remanded back to the Tehsildar by respondent No.1 on 25.08.1988 (Annexure P2). The parties were asked to deposit the fixed reserve price of their respective shares again and accordingly, the petitioner deposited the price of his share of 57 square yards but respondent No.4 did not deposit the amount, as per his share. Petitioner then requested that the share of 38 square yards be transferred to him and vide order dated 14.01.1991, respondent No.1 directed that the 57 square yards be sold in open auction. The said order was not challenged and the property was put to auction on 27.03.1991 and the petitioner was the highest bidder of `13,500/- and Sailesh Ranjan he also deposited `3400/- on the same date as earnest money whereas respondent 2013.10.28 12:45 I attest to the accuracy and integrity of this document CWP No.15179 of 1994 -3- No.4 was present at the time of auction but did not participate in the same.

3. Thereafter, representation was filed before respondent No.2 challenging the auction, without challenging the order dated 14.01.1991 and respondent No.2 illegally accepted the revision petition and set aside the auction in favour of the petitioner and vide the impugned order dated 01.06.1992, the petitioner's revision petition, filed under Section 33 of the Rehabilitation Act was also dismissed. There was no illegality or irregularity or fraud in the conduct of the sale and as per Rule 92 of the Displaced Persons (Compensation & Rehabilitation) Rules, 1955 and the sale was not liable to be set aside in the absence of the same.

4. In the written statement filed by the State, it was submitted that the auction was subject to the approval of the competent authority and that vide order dated 01.06.1992, respondent No.2 had accepted the revision petition and set aside the auction and ordered the transfer in favour of respondent No.4 which was legal, judicious and based on principle of natural justice and had been passed to put an end to 20 years old litigation. Accordingly, it was averred that the auction bid, having not been approved, no right accrued to the petitioner. Respondent No.4 was a displaced person and was in continuous possession of the property for many years and merely because he failed to deposit the transfer price in time, the orders have been passed. The amount of earnest money deposited by the petitioner had already been ordered to be refunded with interest @ 1% above the bank rate, payable from 27.03.1991, i.e., the date of auction to the date of decision, i.e., 01.06.1992.

5. Counsel for the petitioner has vehemently argued that there was never any violation of the rules and in the absence of any fraud or illegality or irregularity, the impugned orders were not justifiable, having been passed on the Sailesh Ranjan ground of equity. Respondent No.4 had never deposited the amount, as per 2013.10.28 12:45 I attest to the accuracy and integrity of this document CWP No.15179 of 1994 -4- directions and despite giving him several opportunities and therefore, the relief granted to him was not sustainable.

6. A perusal of the order would go on to show that the parties had been at loggerheads since 1971, being in possession of house No.215, situated in Jind Town and are both in occupation of 38 and 57 square yards each. A compromise was arrived at on 09.12.1982 by respondent No.1 wherein, the order dated 10.11.1980, passed by the Chief Settlement Commissioner was set aside by the Financial Commissioner and direction was issued for transfer of the property to the occupants, jointly, as per rules and instructions. Relevant portion of the order reads as under:

"The petitioner and respondent No.3 have now compromised and their counsel request for the transfer of the property in dispute in their favour jointly. In view of this, I set aside the order of Chief Settlement Commissioner dated 10.11.1980 and remand the case to the Tehsildar (Sales)-cum-Managing Officer to further consider the matter for transfer of the property to the occupants, as per rules and instructions."

7. Respondent No.4, obviously, did not comply with his part and never deposited the amount for the 57 square yards which led to an order being passed on 08.10.1984 wherein the whole property was auctioned. The said order was set aside on 26.09.1985, for fresh decision and vide order dated 03.03.1986, property was sold through public auction on account of unwillingness of respondent No.4 to purchase the property. However, the appeal of the petitioner was rejected on 25.08.1988 and a direction was issued that the order dated 09.12.1982 be complied with. Relevant portion of the order reads as under:

"In view of the above discussion I set aside the order dated 3.3.1986 of the Tehsilsar(Sales) cum-Managing Officer, Rohtak and remand the case to him with the direction that orders of the Financial Commissioner, Revenue dated 9.12.1982 be complied with."

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8. Thereafter, when the matter came before the Tehsildar, he noticed that there was old possession by both the parties but respondent No.4 was not cooperating to deposit the amount and since separate gates existed on the spot, the property was divisible, he allowed the transfer of 38 square yards to the petitioner for `8400/-, being proportionate price, subject to approval of the competent authority, which was further subject to certain conditions and directed that the remaining portion, measuring 57 square yards, would be auctioned. The grouse of respondent No.4, in revision against the auction, was that the sale price was fixed at `12,000/- @ `200 per square yard whereas it should be `9000/-. Respondent No.2 had directed Ramji Dass to deposit `13,500/- plus interest @ 1% above the bank rate w.e.f. 27.03.1991 till the date of deposit and upto date rent of the property in dispute and `500/- as proclamation charges by 30.04.1992. It was noticed that as per the report, respondent No.4 had deposited `1400/- as rent, `13,500/- plus `2048/- as interest alongwith proclamation charges of `500/-, in pursuance of the said orders. Accordingly, keeping in view the fact that respondent No.4 was in occupation for more than 30 years and in view of the order of the Financial Commissioner dated 09.12.1982, while accepting the submission that it was his only house and the parties were inter se related, the litigation was put to an end by accepting the said amount and setting aside the order dated 14.01.1991 whereby the 57 square yards had been put to auction. Approval was also granted for the transfer of 38 square yards in the name of the present petitioner.

9. However, the present petitioner was not satisfied and challenged the issue before the Financial Commissioner who rejected his plea by passing the following order on 12.04.1994:

"It is an undisputed fact that the respondent Ramji Dass is a Sailesh Ranjan displaced person, who has been in continuous possession of part 2013.10.28 12:45 I attest to the accuracy and integrity of this document CWP No.15179 of 1994 -6- of the property in dispute for many years. I agree with the Chief Settlement Commissioner that it would not be proper if he was ejected from the house simply because he had failed to deposit the transfer price in time. Any attempt to eject him would also mean continued litigation between the parties and the Department. It is necessary in the interest of justice that the dispute should be settled keeping the interest of both the parties in view. It is undisputed that the petitioner was in possession of 38 sq.yds. and that respondent Ramji Dass was in possession of 57 sq.yds. in which a house was also located. The area of 38 sq.yds. had earlier been transferred to the present petitioner as it was in his occupation. The Chief Settlement Commissioner has only transferred the balance area in possession of Ramji Dass to him. It is true that auction should normally be set aside only when grave violation of procedure is proved. But in this case, the auction had been held in violation of the order dated 9.12.1982 of the Financial Commissioner Revenue-cum-Delegate Authority. I, therefore, would not like to interfere with the order of the Chief Settlement Commissioner as his order would help to settle the long standing dispute between the parties; giving each party his due share in the property in dispute. The revision petition is, therefore, rejected. To be communicated."

9. Thus, from the sequence of events, it would be clear that the authorities directed respondent No.4 to deposit `13,500/- plus interest @ 1% above the bank rate w.e.f. 27.03.1991 till the date of deposit and upto date rent of the property in dispute and `500/- as proclamation charges. The said amount was deposited in pursuance of the interim order dated 30.04.1992. The submission of the counsel for the petitioner that the sale could only have been set aside on the ground of irregularity or illegality or fraud under Rule 92 would not be applicable keeping in view the background of the case whereby a direction had been issued on 09.12.1982, keeping in view the rules which provided that property in joint occupation would be sold in proportion, on the price paid by the parties. The grouse of respondent No.4 was that the amount was wrongly calculated and he was always willing to pay. Section 21 of the Rehabilitation Act provides that any Sailesh Ranjan 2013.10.28 12:45 I attest to the accuracy and integrity of this document CWP No.15179 of 1994 -7- sum which is payable to the Government can be recovered in the manner as arrears of land revenue. Section 21 reads as under:

"21. Recovery of certain sums as arrears of land revenue -

(1) Any sum payable to the Government or to the Custodian in respect of any evacuee property, under any agreement, express or implied, lease or other document or otherwise howsoever, for any period prior to the date of acquisition of such property under this Act, which has not been recovered under Section 48 of the Administration of Evacuee Property Act, 1950, and any sum payable to the Government in respect of any property in the compensation pool may be recovered in the same manner as an arrear of land revenue.

(2) If any question arises whether a sum is payable to the Government or to the Custodian within the meaning of sub-section (1) in respect of any property referred to herein, it shall be referred to the Settlement Commissioner within whose jurisdiction the property is situated and the Settlement Commissioner shall after making such inquiry as he may deem fit and giving to the person by whom the sum is alleged to be payable an opportunity of being heard decide the question; and the decision of the Settlement Commissioner shall subject to any appeal or revision under this Act, be final, and shall not be called in question by any Court or other authority.

(3) For the purpose of this section, a sum shall be deemed to be payable to the Custodian, notwithstanding that its recovery is barred by the India Limitation Act, 1908, (9 of 1908), or any other law for the time being in force relating to limitation of actions."

10. A Division Bench of this Court in Dalip Singh Vs. The Financial Commissioner-cum-Secretary to Govt. Haryana 1995 (3) PLR 301, while examining the provisions of Section 8A(2) of the Act wherein also, it is provided that if a displaced person fails to pay any amount, which he was liable, on the ground of mortgage and fails to surrender his property, the said amount could be recovered as arrears of land revenue. The plea of the auction purchasers, challenging the decision of the authorities to cancel the auction of sale and the Sailesh Ranjan 2013.10.28 12:45 I attest to the accuracy and integrity of this document CWP No.15179 of 1994 -8- reliance on Rule 90 was rejected keeping in view the fact that the Chief Settlement Commissioner has wide powers and he was entitled to exercise his powers while calling for the records and it was noticed that their was no provision for automatic cancellation of the allotment made in favour of a displaced person on account of non-payment of the mortgage amount and the intention of the Parliament was to make a provision for the recovery of the amount from the displaced persons. The said observations would, thus, be also applicable to the facts and circumstances of the present case. Relevant observations of the said judgment read 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.

xxxx xxxx xxxx xxxx

14. From the above authorities it is evident that this Court has consistently taken the view that an allotment made in favour of a displaced person cannot be cancelled due to the non-payment of mortgage money. We are in respectful agreement with the views expressed in the above referred judgments and we hold that action of the Managing Officer in ordering cancellation of the allotment made in favour of Sunder Singh (father of respondent No. 3) was without jurisdiction and void ab initio.

15. Argument of the learned counsel for the petitioners that 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 Sailesh Ranjan 2013.10.28 12:45 required to be filed within 30 days with a discretion to the I attest to the accuracy and integrity of this document CWP No.15179 of 1994 -9- Settlement Commissioner to condone the delay where the appellant satisfies 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 power 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 as he may think 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 amount and on a reference made by the Tehsildar (Sales), the Settlement Commissioner 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 an subordinate authority suffers from an 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 Sailesh Ranjan 2013.10.28 12:45 the Managing Officer on 27.9.1960 was nullity."

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11. The said view was followed by a Division Bench of this Court in CWP No.6850 of 2004 titled Lahori Ram @ Lahori Lal Mehta Vs. The Commissioner and Secretary to Government of Haryana & others and other connected matters, decided on 08.08.2013, of which, the undersigned was also a Member. Accordingly, keeping in mind the fact that jurisdiction of this Court under Article 226/227 of the Constitution of India is of equitable jurisdiction and as the parties are in possession of their respective shares since the year 1971, it would be proper to put a hiatus to the litigation and bring the curtain down on the old dispute, since the amount now already stands deposited in pursuance of the orders passed by the authorities below.

11. No ground is made out for interference in the impugned orders dated 01.06.1992 and 12.04.1994. Accordingly, the present writ petition is dismissed.




            25.10.2013                                                (G.S.SANDHAWALIA)
            sailesh                                                         JUDGE




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