Civil Writ Petition No. 3493 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 3493 of 1985 Date of decision: 8.5.2009 Sarupa ...petitioner Versus The State of Haryana and others ...respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Ashish Bansal, Advocate and Mr. S.D. Bansal, Advocate for the petitioner. Mr. Yashwinder Singh, AAG, Haryana for respondents No. 1 to 3. Mr. G.K. Khanna, Advocate for Mr. Puneet Bali, Advocate for respondent No.4. RANJIT SINGH J. The petitioner was allotted land measuring 38 kanals 4 marlas in village Balhera, Tehsil and District Karnal in an auction held on 4.4.1968 and has filed this petition to impugn order dated 3.5.1985 whereby his prayer for depositing the remaining instalment of auction amount has been declined by Joint Secretary, Rehabilitation-cum-Settlement Commissioner, Haryana. The petitioner being a highest bidder was allotted this land for consideration of Rs. 9,800/-. He deposited the first instalment of Rs. 490/- on the spot. The petitioner claims that thereafter he was given possession of this land and he started cultivating the same. The petitioner has placed on record, Annexure P-1, and has termed this to be a sale deed. It is a Memorandum of Offer containing conditions, which were still required to be fulfilled, before this offer could be Civil Writ Petition No. 3493 of 1985 2 converted to sale in favour of the petitioner. So it may not be possible to term it a sale deed as pleaded by the petitioner. It is averred in the petition that in the year 1969 the land came under river bed as river Yamuna changed its course. This as such could not be cultivated for few years. The petitioner thus pleads that he could not deposit the instalment in time. In the year 1974-75 the petitioner received a notice for depositing the instalment but was in respect of a land situated in village Garhi Bhalal, Tehsil and District Karnal. The petitioner replied to the notice that he had not been allotted any land in village Garhi Bhalal and as such did not deposit any amount of instalment. He, however, stated that he was ready to deposit the instalment qua the land situated in village Balhera. 47 families were allotted land as per policy decision of the Government in lieu of land left by them in village Devigarh. Manga son of Khazana was one of them who was allotted land measuring 24 kanals in this manner. The petitioner claims that Manga had no connection with the land of village Balhera, which had been allotted to the petitioner through restricted auction. Manga (respondent No. 4) had made an application that his name be included in the list of 47 families proposed to be settled in village Devipur, but he could not be allotted land in the said village. Respondent No. 4 was thus allotted land in village Balhera. This was the land earlier allotted to the petitioner by way of restricted auction. Allotment to Manga followed without any notice to the petitioner or cancellation of the allotment made in his favour. On 12.3.1982, the petitioner filed an application before Civil Writ Petition No. 3493 of 1985 3 respondent No.2, Joint Secretary-cum-Settlement Commissioner, Haryana seeking permission to deposit the instalment due in regard to the land allotted to him. Copy of this application is annexed with the petition as Annexure P-3. When the petitioner approached the respondent to deposit of this installment, he learnt that the said land had been allotted to Manga (respondent No.4). The Tehsildar accordingly refused to accept the instalment. The petitioner thereafter made a representation to Revenue Minister, Haryana complaining that the Department had wrongly allotted the land to Manga which in fact had been purchased by the petitioner in the restricted auction. The petitioner also pointed out that Manga had been allotted 24 kanals land in village Garhi Bahlal and 38 kanal 4 marlas in Balhera, which amounted to double allotment. The petitioner would also point out that as per the policy maximum 5 acres of land could be allotted to one family and this norm had also been violated, while allotting the land to said Manga. The petitioner refers to a letter dated 28.5.1984 written by Tehsildar Sales, pointing out that the land which was allotted to Manga was wrong as this had already been allotted to the petitioner by way of a restricted auction. Tehsildar accordingly observed that the action may be taken to cancel the allotment of a said land in the name of Manga. The petitioner would also refer to Annexure P-5 to point out that respondent No. 2 had made reference for cancellation of the above said allotment in the name of Manga. This reference was rejected on 3.5.1985. While doing so, respondent No. 2 also declined permission to the petitioner to deposit the remaining instalments. This order dated 3.5.1985 passed by respondent No.2 thus is challenged by the Civil Writ Petition No. 3493 of 1985 4 petitioner in the present writ petition. Notice of motion was issued and written statement on behalf of respondent No. 4 has been filed. By way of preliminary objection respondent No. 4 would point out that the land was auctioned in favour of the petitioner on 4.4.1968. As per conditions of allotment the petitioner was to deposit half yearly instalments. Concededly the petitioner did not deposit any instalment after 4.4.1968. Thereafter the petitioner had approached respondent No. 2 only on 12.3.1982 seeking permission to deposit the remaining instalment. It is thus submitted that the prayer of the petitioner has been rightly declined on the ground that it is made belatedly. Reference is made to Clause 4 of the condition of allotment which provides that in case of consecutive defaults in payment of instalment, the Government had absolute right to take back the land and forfeit the amount deposited. It is pleaded that there is no legal or equitable right in favour of the petitioner to invoke the extra ordinary jurisdiction of this Court. It is also pointed out that the petitioner had an alternative remedy to seek reference for arbitration by Secretary to the Government of Haryana. Instead of availing that remedy, the petitioner had directly filed this writ petition, which would not be maintainable as he had not exhausted the alternative remedy available to him. No reply on behalf of the official respondents has been filed. The contentions raised by the petitioner on merits have also been refuted and accordingly it is prayed that the writ petition be dismissed. Counsel for the petitioner would submit that the allotment in favour of the petitioner was never cancelled. Counsel further Civil Writ Petition No. 3493 of 1985 5 submits that after payment of the first instalment, a right had accrued in favour of the petitioner, which could not be defeated subsequently. The counsel refers to Annexure P-1 as a document of his title to say that this land which was allotted in favour of the petitioner could not have been taken away in any manner as is sought to be done. Counsel for the respondent, however, would submit that there is no allotment in favour of the petitioner. It was only an offer made to him through Annexure P-1 as is clear from the document itself which is referred to as a Memorandum of Offer. The petitioner failed to fulfil the conditions contained therein and thus the title of the property has not matured in his favour. Since the petitioner was not able to perfect his title, he would not have any right to deposit the instalment or to say that the auction held in his favour be not cancelled. On the basis of contentions raised before me, it is required to be seen if Annexure P-1 can be considered document of title of the petitioner for this land in question. This document contains a heading reading 'Memoranda of Offer'. The opening part clearly provides that the petitioner had offered to purchase the land for Rs. 9800/- as per the schedule attached and thereby he agreed to complete the purchase if his offer was accepted by the Government. Thereafter mention is made to the conditions, which were required to be fulfilled for completing the formalities to confirm the sale in favour of the petitioner. Para 8 of this memorandum would be relevant which recites that the petitioner agrees that he will not be entitled to sale, mortgage or transfer this land in any manner till final payment Civil Writ Petition No. 3493 of 1985 6 of the price of the land. Paragraph 6 of the Memorandum also clearly recites that the sale will be subject to confirmation by the Commissioner of Bandobast or any Officer nominated by him in this respect. It is further mentioned that the sale will not be completed till the sale is accepted and the petitioner would be informed in this regard. Significantly, it is further mentioned that the Settlement Commissioner or any other Officer are not bound to accept the highest bid nor he will be bound to disclose the reasons thereof. Clause 4 of this memoranda is also relevant and may need a notice. This Clause says that in case of two consecutive defaults in payment of instalments, the Government will have the right to take back the land and forfeit the amount deposited by the petitioner. The petitioner had thumb marked on these conditions and thus was aware of the conditions required to be fulfilled before he could perfect his title of this property. Concededly, the petitioner had not paid any amount after depositing first instalment. Subsequently after much delay in the year 1982, the petitioner made first move to seek permission to deposit the remaining amount which has been declined and which is under challenge in the present writ petition. Apart from Annexure P-1, the petitioner has not been able to point out any document, which would show his title to the property in question. The Memoranda of Agreement (Annexure P-1) in my considered opinion cannot be considered a document which would confer title of the petitioner. Concededly the petitioner had not paid any instalment after 4.4.1968. He has just paid sum of Rs. 490/- which was the first instalment. The possession of the land as claimed by the petitioner, is also not made out from the record. The Civil Writ Petition No. 3493 of 1985 7 petitioner himself has stated that this land came under the river action after one year `of the allotment and thereafter there is nothing on the record to indicate that he took the possession of the land. Rather the record shows that this land earlier allotted to the petitioner in auction though not sold, was subsequently allotted to respondent No. 4. The submission by the petitioner that Manga (respondent No. 4) was allotted land in village Garhi Bahlal, with which the petitioner had no concern, is also not correct appreciation of the fact. It is noticed in the order that Manga was allotted 38 kanal 4 marlas of land in village Bhalera in lieu of the land in village Garhi Bahlal. He was having 16 kanal land in Garhi Bahlal in the capacity as Ghair Maroosi in addition to the land allotted to him in village Balhera. The objection raised by the petitioner that he could not have been allotted the land more than 5 acres is taken care of in the impugned order wherein it is directed that the land more than 5 acres be retrieved and disposed of in accordance with law. The submission by the petitioner that without cancellation of allotment in his favour, the land could not have been allotted to respondent No.4, can also not be accepted. Certainly the petitioner has not been able to show that this land indeed was allotted in his name. It was also only an agreement which is pressed in to service by the petitioner. The petitioner failed to comply with the conditions which could have matured the sale in his favour. There being no sale or a title standing in favour of the petitioner, nothing was required to be cancelled. The petitioner having not complied with the conditions contained in Memoranda of Agreement, and his failure to Civil Writ Petition No. 3493 of 1985 8 deposit the instalment would not give rise to any right in his favour either in equity or law. The view taken by respondent No. 2 that the petitioner could not be permitted to deposit the instalment after such a prolonged delay cannot thus be faulted. The fact that the possession of the land had been given to Manga is also apparent from the stand taken by the petitioner in the present writ petition. No stay was granted in favour of the petitioner. The petitioner moved a miscellaneous application No. 1830 of 1988 on 8.2.1988 pleading that respondent No. 4 was in possession of the disputed land and was wanting to alienate the same. Reference was made to Agreement No. 1154/1 dated 29.1.1998 in favour of Bur Singh in this regard. Accordingly, the petitioner prayed for restraining respondent No. 4 from alienating this land during the pendency of this writ petition. This prayer of the petitioner was declined with the observation that the alienation, if any, shall be subject to final outcome of the petition. It is thus seen that the possession of this land after having been allotted to Manga was handed over to him. The present status of the land is also not being disclosed from the record. The counsel appearing for the parties could not tell anything in this regard being not aware about it. There is no infirmity in the view taken by respondent No.2 in declining the prayer of the petitioner to deposit the instalment since the petitioner himself had failed to take timely action in this regard. He also failed to comply with other conditions to perfect his title by way of sale of this land. The fault or responsibility would squarely lie with him. The view taken by respondent No. 2 that petitioner cannot be permitted to Civil Writ Petition No. 3493 of 1985 9 deposit this instalment at this belated stage is justified, fair and proper and would not call for any interference. The writ petition is accordingly dismissed. May 08, 2009 ( RANJIT SINGH ) rts JUDGE