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Gopal Chand and ors. Vs. the Financial Commissioner, Revenue and - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 4704 of 1974
Judge
Reported inAIR1981P& H125
ActsConstitution of India - Articles 226 and 227; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 3A, 8A, 24 and 33; Displaced Persons (Compensation and Rehabilitation) Rule
AppellantGopal Chand and ors.
RespondentThe Financial Commissioner, Revenue and ;secretary to Government, Haryana, and ors.
Cases ReferredSada Singh v. Union of India
Excerpt:
.....to sub-section (2), if he failed to pay the amount and also did not surrender a part of the property, the authorities were entitled to recover the mortgage amount as arrears of land revenue but had no jurisdiction to cancel a part of the allotment......nos. 2 and 3 as sons and legal representative of the allottee, in appeal, before the assistant settlement commissioner who set aside the order, annexrue p. 1, by his order dated june 21, 1961 and remanded the case with the direction that the allottees will deposit the mortgage amount and will put in appearance before the managing officer on july 5, 1961.as the legal representatives of the original allottee did not comply with the order nor did they put in appearance in spite of the issuance of a number of notices, the managing officer, by his order dated aug, 26, 1961 upheld his previous order annexure p. 1 no appeal was filed against the same for a considerable time. appeal was, however, filed after about seven years which was dismissed by the assistant settlement commissioner by.....
Judgment:
ORDER

1. This is a writ petition under Arts. 226 and 227 of the Constitution for the issuance of the writ of certiorari quashing the order of the Financial Commissioner, Revenue, respondent No. 1, dated Aug. 5, 1974, Annexure P.5.

2. Shiv Gir, deceased, father of respondents Nos. 2 and 3, owned land in West Pakistan in lieu of which, he was allotted 10.10 standard acres of land I village Ferozepore Araian, Tahsil Naraingarh, District Ambala, some time, in 1954 as a displaced person by the Rehabilitation authorities Subsequent thereto, the Section Officer-cum-Managing Officer Rehabilitation Jullundur, by his order dated Apr. 10, 1961, Annexure P. 1, cancelled the allotment to the extent of 7.12 1/2 standard acres on the ground that the land of the allottee in West Pakistan was under Mortgage with a Muslim and he did not deposit the mortgage amount in spite of notice. That order was challenged by respondents Nos. 2 and 3 as sons and legal representative of the allottee, in appeal, before the Assistant Settlement Commissioner who set aside the order, Annexrue P. 1, by his order dated June 21, 1961 and remanded the case with the direction that the allottees will deposit the mortgage amount and will put in appearance before the Managing Officer on July 5, 1961.

As the legal representatives of the original allottee did not comply with the order nor did they put in appearance in spite of the issuance of a number of notices, the Managing Officer, by his order dated Aug, 26, 1961 upheld his previous order Annexure P. 1 No appeal was filed against the same for a considerable time. Appeal was, however, filed after about seven years which was dismissed by the Assistant Settlement Commissioner by his order, dated July, 10, 1968(Annexure P. 3), holding the appeal to be hopeless time-barred Revision against the same was also dismissed by the Deputy Secretary, Rehabilitation-cum-chief Settlement Commissioner, Harayana, vide order dated December 5, 1969, (AnnexureP3).

The matter was still further agitated under S. 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954(hereinafter called the Act). The Commissioner Revenue, and Secretary Rehabilitation, Haryana, exercising the powers of the Central Government under Section 33 of the Act, allowed the petition by his order dated July 30, 1971(Annexure P-4) and the original allotment regarding 10.10 standard acres of land was restored, and the order regarding cancellation of the part of the allotment was set aside. It was also held that under S. 8A of the Act, non-payment of mortgage money could not be made the basis for cancellation of the allotment and the mortgage amount could be realised as arrears of land revenue.

3. The petitioners (except petitioner No. 1) challenged this order in a writ petition, vide Civil Writ Petitioner No. 3036 of 1971, which was admitted. Simultaneously, an application was also filed for setting aside the order, Annexure P. 4 on the ground of its being an ex parte order. As the application was allowed, on May 24, 1973, and the ex parte order (annexure P/ 4), was set aside, the writ petition was also dismissed as infractuous. Meanwhile, after cancellation f a part of the allotted area, auction had been held of the area so retrieved from the original allottee, by the Rehabilitation Department on June 19, 1963, which was purchased by Bishan Dass and Charanjeet Lal, petitioners.

Thereafter, this auction was confirmed ad possession of the land in dispute, was given to them. Even, the entire sale price had been paid by them. The Financial Commissioner. Revenue, respondent No. 1, in exercise of the powers of the Central Government, under S. 33 of the Act, by his order dated Aug 5, 1974(Annexure P. 5), set aside the order of the Managing Officer Canceling partly the allotment in favour of Shiv Gir vide order Annexure P.1 and also the order dated Dec 5, 1969, (Annexure P. 3) of the Deputy Secretary, Rehabilitation-cum-Chief Settlement Commissioner, Haryana, and restored the entire allotment in favou of respondents Nos. 2 and 3. The legality and correctness of this order has been challenged in the present writ petition.

4. The case of the petitioners, as contended by the learned counsel, is that in pursuance of the order of the Managing Officer (annexure P.1), some seven standard acres of land was taken out from the allotment made to Shiv Gir, deceased which was, during the continuance of this order, sold in an open auction and was purchased by Bishan Dass and Charanjet Lal, Petitioners Nos. 7 and 8. After confirmation of sale and the issuance of the sale certificate, the land could not be treated as part of the compensation pool, nor could it be treated as a package deal property which was transferred to the Government of Haryana. Consequently, respondent No. 1 had no jurisdiction to quash the order, Annexure P. 1, and the subsequent orders upholding the same which had resulted in cancellation of a part of the original allotment. It was also emphasised that the auction-purchaser, petitioners Nos. 7 and 8, had transferred the land by registered sale deed to the other petitioner. Out of these transferees, Gopal Chand and Roshan Lal, petitioner Nos. 1 and 2, were not impleaded even as parties at the time when the impugned order, Annexure P. 5, was passed.

It was also urged that the petitioners Nos. 1 to 6 were bona fide transferees for valuable consideration. In no case such an order could be passed which resulted in setting aside of these transfers also. According to the learned counsel, respondent Nos. 1 and 3 could be allotted alternative land and they could not claim, as a matter of right, the same land which had been once take away as a result of the cancellation of the allotment. It was lastly urged that after the issuance of the sale certificate, under no provision of the Act, auction could be cancelled when no proceedings were initiated to get the auction set aside in accordance with law on the ground of any irregularity or infirmity in the auction proceedings.

5. According to the learned counsel for respondents Nos. 2 and 3, the vital question to be decided is; whether the order, Annexure P. 1, by the Managing Officer canceling a major part of the allotment in favour of Shiv Gir could be sustained in law? It was emphasised that the said order was patently without jurisdiction as under Section 3A of the Act, allotment once made could not be cancelled on the ground that the mortgage amount which was payable by the allotee had not been paid and the only course open to the authorities was to recover the mortgage amount as arrears of land revenue. As a consequence, auction of the land, excluded from allotment, and other proceeding regarding confirmation of sale etc. were also without jurisdiction and absolutely illegal. Neither the auction-purchasers nor their transferees could get any right of ownership on the basis of the illegal proceedings.

6. After considering the contention on both sides, and the decisions relied upon. I find that there is no merit in the petition. The father of respondents Nos. 2 and 3 was entitled to the allotment of the land as a displaced person in lieu of the property left by him in West Pakistan. AS the property in West Pakistan was subject to mortgage in favour of a person who was not a resident of India, the allottee, after allotment of land in his favour, was liable to pay the mortgage amount to the Government. Under Section 8A, he could adopt any of the two courses as embodied in Sub-cls. (a) and (b) to the Second proviso. He could either retain the property and pay the mortgage amount or, in the alternative, he cold surrender a portion of the property allotted equivalent to the mortgage amount. According to sub-section (2), if he failed to pay the amount and also did not surrender a part of the property, the authorities were entitled to recover the mortgage amount as arrears of land revenue but had no jurisdiction to cancel a part of the allotment.

Section 8A does no bear any other interpretation. It was so held in a number of decisions of this Court. Reference may be made to Shiv Dayal v. Union of India, (1964) 66 Punj LR 770; Budha Ram v. Behari Lal, (1969) 71 Pun LR 93, and Letters Patent Appeal No. 504 of 1972(Dewan Chand Khazanchi Ram v. Chief Settlement Commr.) decided on Mar., 20, 1974. The learned counsel for the petitioners, did not make any serious effort to challenge the correctness of this proposition of law. Thus, the order of the Managing Officer dated Apr., 10, 1961(Annexure P. 1) whereby the allotment in favour of Shiv Gir was cancelled partly only on the ground of non-payment of the mortgage amount, the order of the Assistant Settlement Commissioner, dated July 10, 1968(Annexure P. 2), by which the order, Annexure P. 1, was restored and the order dated December, 5, 1969(annexure P. 3), by the Deputy Secretary, Rehabilitation, vide, which the revision petition filed by respondents Nos. 2 and 3 was dismissed and the order relating to cancellation f allotment was upheld, have to be illegal and without jurisdiction and were rightly and quashed by respondent No. 1 by his order, Annexure P. 5.

7. The order, Annexure P. 1 cannot be sustained even on two other grounds, According to the findings of the Chief Settlement Commissioner, (Annexure P. 3) the original allottee Shiv Gir died in 1964 and thereafter, permanent rights with regard to the entire land allotted in his favour, had been conferred on his sons, respondents Nos. 2 and 3 on Mar, 27, 1956. According to the Full Bench of this Court in Smt. Balwant Jaur v. Chief Settlement Commr. (Land) Jullundur, AIR 1964 Punj 33, once the proprietary rights are conferred on an allottee with respect to any land the same goes out of the compensation pool and the Chief Settlement Commissioner becomes functus officio and cannot interfere with the property in any manner and the allotment can be resumed only by the Central government in accordance with the terms of the Sanad. It was also held therein that after the allotment, the Managing Officer has no jurisdiction to cancel the same and only the Chief Settlement Commissioner, in the exercise of his revisional jurisdiction can reverse the order of the Managing officer.

It is clear that the order regarding cancellation of the allotment (Annexure P. 1) in the present case, was passed by the Managing Officer who had no jurisdiction to cancel any allotment once made even if the same was liable to be cancelled on any legal ground. Besides, the order Annexure P.1 was passed on Apr. 10, 1961, whereas according to order, Annexure P. 3, the original allottee Shiv Gir, had died in 1954. Thus, the allotment was cancelled by the Managing Officer at the time when the allottee was already dead and no notice was issued to his legal representatives. It is clear from the order, Annexure P. 1, that only proclamation had been issued to the original allottee Shiv Gir and the order was passed in his absense. A valuable right having accrued to the allottee, as a result of allotment, could not be taken away after his death without notice to the legal representatives.

8. In almost similar circumstances, it was held by a Division Bench of this Court in Virsa Singh v. State of Punjab, AIR 1970 Punj and Har 525, that the order of cancellation of excess land by assistant Registrar-cum-Managing Officer, Rehabilitation Department, after issuing show cause notice tot he allottee who was already dead, and without notice to his legal representatives, was a nullity. It was further held that the appearance by the legal representatives before the appellate and revisional authorities was not sufficient to validate the order of cancellation.

9. Faced with this situation, the contention of the learned counsel for the petitioners, is that at the time the auction of the land, in dispute, was held and the same was purchased by petitioner Nos. 7 and 8 the order of cancellation relating thereto was intact and had not been set aside. Even no steps were taken by the allottee or his legal representative to get the said auction annulled in accordance with law. After the issuance of the sale certificate, the property auctioned wet out of the compensation pool and if was not with in the jurisdiction of the authorities to set aside the same. In view of the above discussion, this contention is devoid of all merit. If the order, Annexure P. 1, was without jurisdiction and hence a nullity, the property which was put to auction had already gone out of the compensation pool and the authorities under the Act had no jurisdiction to put the same to auction and the auction proceedings and the issuance of the sale certificate have also to be held as proceedings without jurisdiction.

10. It was held in Jagir Singh, v. Chief Settlement Commr. Punjab, AIR 1970 Punj and Har 507, that where on cancellation of allotment by an illegal order, the land was sold in lots and sale certificates were issued but the Chief Settlement Commissioner set aside the cancellation of allotment in exercise of the plenary powers vested in him under Section 24 of the Act, the auction proceedings will be void ab initio. It was also held that even after the issuance of the sale certificate in pursuance of the said auction, the Chief Settlement Commissioner was entitled to se aside the sale under S. 24 of the Act and Rule 90 was subject to the plenary power of the Chief Settlement Commissioner. In the present case also, the Financial Commissioner exercising the powers of the Central Government under S. 33 of the Act, had the jurisdiction to set aside the auction proceeding in favour of petitioner Nos. 7 and 8 including the issuance of the sale certificate in their favour as the allotment of the land in favour as the allotment of the land in favour of Shiv Gir had been illegally cancelled by order Annexure P. 1.

11. Lastly, it was argued on behalf the petitioners, that after the purchase of the land, in dispute, in auction by petitioner Nos. 7 and 8, a part of it had been sold by the purchaser to petitioners nos. 1 to 6 out of them Gopal Chand and Roshan Lal, petitioner Nos. 1 and 2 were not parties before the Financial Commissioner and the order, Annexure P. 5 was passed behind their back without any notice to them. As such, this order cannot be sustained. This contention, though clothed with plausibility ex facts, is not sustainable in view of the facts of the case Gopal Chand, petitioner No. 1, is no other than the son of Bishan Dass, Petitioner No. 7, who had originally purchased, the, in dispute in auction, similarly, Roshan Lal, Petitioner No. 2, is son of Kura Ram, petitioner No. 3, who was a party before the Financial Commissioner.

The possession of petitioners nos. 1 and 2 was that of co-sharers along with other petitioners. As most of the co-sharers were present as parties before the Financial Commissioner, the other co-sharers were fully represented by them and heard before the impugned order, Annexrue P. 5 was passed. It was held by a Division Bench of this Court in Mohinder Singh v. state of Haryana, 1970 Rev LR 601 that where an uncle and a nephew were co-sharers and the uncle was present before the Asstt. Director, Consolidation, the representation by the uncle was sufficient and the order passed in the absence of the nephew could not be set aside. Reliance by the learned counsel for the petitioner on Sada Singh v. Union of India, 1975 Cur LJ 520, is misconceived therein, the allotment made in favour of a displaced person by the Rehabilitation authorities was subsequently cancelled by an order without service of notice to he allottee. It was not a case of some of the allottees having been present and heard by the authority canceling the allotment. Impugned order P5 does no suffer from any infirmity.

12. For the reasons mentioned above, there is no merit in he writ petition which is dismissed with costs. Counsel's fee is fixed at Rs. 200/-.

Petition dismissed.


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