CWP No.1414 of 1984 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.1414 of 1984 (O&M) Date of Decision: 07.11.2011 Punnu Singh, resident of village Majra, Tehsil Fatehabad, District Hissar and others. ... Petitioners Versus The State of Haryana through Secretary to the Government of Haryana, Department of Rehabilitation, Civil Secretariat, Chandigarh and others. ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:Mr. Adarsh Jain, Advocate, for the petitioners. Mr. O.P. Sharma, Addl. AG, Haryana, for respondents No.1 to 3. Mr. Sunil Garg, Advocate and Mr. Jai Bhagwan, Advocate for Mr. Arun Palli, Senior Advocate, for respondents No.4 to 8. ***** 1.Whether reporters of local papers may be allowed to see the judgment? NO 2.To be referred to the reporters or not? YES 3.Whether the judgment should be reported in the digest? YES K. KANNAN, J. (Oral) 1. The petitioners challenge the decision of the authorities passed under the Haryana Sale of Surplus Properties Rules. These rules have been framed for surplus evacuee property, which were not required for allotment to unsatisfied claimants and which had been purchased by the State Government from the Central Government under package deal. CWP No.1414 of 1984 (O&M) [2] 2. The challenge by the petitioners was in respect of claim in relation to 94 kanals 3 marlas of evacuee property, which had been originally allotted to one Gian Kaur and when she did not take possession, the same was resumed and granted originally on lease for a period of five years commencing from 12.05.1957. After the completion of the said period, the property was again leased for a period of 20 years on 02.03.1962. It appears that even this lease was purported to be cancelled by two orders on 03.08.0962 and 27.09.1962. After the cancellation, Government is purported to have allotted the property to one Bishan Singh in the year 1963. Bishan Singh in turn purported to have sold the property to respondents No.4 to 8 herein. The petitioners, aggrieved at the cancellation even before the expiry of the tenure of lease, filed CWP No.383 of 1964 against the State and respondents No.4 to 8, who attempted to stake a claim by the purchase from Bishan Singh. It appears during the pendency of the writ petition itself, the allotment made to Bishan Singh was cancelled on 26.11.1966. The writ petition filed by the petitioners was allowed on 25.03.1968 finding that the petitioners’ lease could not have been cancelled during the tenure of lease. An appeal filed by the State as well as by respondents No.4 to 8 was dismissed, affirming the decision taken in the writ petition. 3. The fresh problems arose for the petitioners when the State effected a sale of the property to respondents No.4 to 8, who based their claims as bona fide purchasers on certain press releases made by the Punjab Rehabilitation Department to protect the bona fide transferees from “unscrupulous persons, who after obtaining allotment had sold to third parties”. This sale to the vendees is the subject of challenge in this writ petition at the instance of the petitioners, who claimed that as CWP No.1414 of 1984 (O&M) [3] occupants of the property had a superior claim to the property. The learned counsel appearing for the petitioners refers to Rule 3 of the Rules for Sale of Surplus Rural Properties as the basis for his claim: “Mode of sale of property. Any surplus evacuee property purchased by the State Government may be disposed of in any of the manners, set out below: - i) By public auction; ii) By inviting tenders; iii) By transfer to such class of occupants and at such price as the State Government may by general or special order specify; iv) By transfer at agreed price to other Government Departments, Local Bodies including Panchayats, Block Samities and Zila Parishads, Industrial concerns, Companies and other private institutions for public, industrial and any other common purpose.” The learned counsel also points out to me the procedure for the transfer of surplus evacuee property as contained in Rule 7 and makes particular reference to Rule 7(b): “7. Procedure for the transfer of surplus evacuee property at fixed rates. (a) x x x x x (b) The eligibility of every applicant shall be determined by the Tehsildar/Naib Tehsildar(s) strictly in accordance with the entries in the Revenue record and no oral evidence with regard CWP No.1414 of 1984 (O&M) [4] to possession of the applicant shall be allowed to be adduced.” According to him, the sale could have been made only to persons in possession and as original lessees, whose possession was an admitted fact, the property could not have been sold to respondents No.4 to 8. 4. The counsel appearing for respondents No.4 to 8 contends that he had already parted with sale consideration to Bishan Singh and again had parted with sale consideration to the State while the petitioners continue to be in possession without paying any consideration for the property in their possession. The learned counsel would also argue that the petitioners had not even filed any application for transfer of the property and, therefore, they cannot object to a transfer made in favour of respondents No.4 to 8, who had made the application for transfer. 5. The case has to be considered from the point of view of how the rules themselves provided for sale of the property and the procedure for such sale. The mode of sale also sets out the persons, who are entitled to such benefit. The procedure for sale gives the detail of how the occupation must be with reference to the revenue entry and not through any oral evidence. If the petitioners were in possession of the property as occupants, they were surely required to be considered. I have not been shown any rule that requires any application to be filed within any specified period. The cause of action for the petitioners was the transfer made in favour of the private respondents No.4 to 8. It also is borne out through the records that the petitioners themselves had filed a petition for transfer in the year 1967. The State allowed itself to be swayed by the fact that respondents No.4 to 8 claimed to be transferees. The CWP No.1414 of 1984 (O&M) [5] State relies on the press note issued on 15.04.1964 protecting the transferees from unscrupulous persons for their action for transferring the property. It must be noticed that press note itself is intended to protect only the transferees from persons, who had purchased the land in good faith and had made substantial improvements in it and if they were to be dispossessed, the same would be fraught with great hardship. Except the fact that respondents No.4 to 8 were transferees none of the other conditions applied to them, the State ought to have rectified their own error the moment when the petitioners had applied for a transfer on the basis of the occupation over the property. The order rejecting the petitioners’ claim and affirming the sale in favour of the respondents No.4 to 8 was clearly erroneous. 6. The counsel appearing for respondents No.4 to 8 claims that they have actually parted with the sale consideration. The State shall be liable to refund the same with interest @ 12% per annum. The same amount of what was deposited as the sale consideration for respondents No.4 to 8 will also be the price that will become payable by the petitioners and they shall be also liable to pay interest @ 12% per annum from the date of the application till the date of sale in favour of the petitioners. The decision shall be taken and communicated to the petitioners so that appropriate sale deed shall be made within 8 weeks from the date of receipt of copy of the order. The petitioners have had the benefit of staying on in the property without paying any consideration but the State itself has to take some part of the blame in making a transfer in favour of respondents No.4 to 8 instead of intending the offer to the better claims to the petitioners. If the amount is not paid as directed above by the petitioners on the expiration of the period stipulated above, the CWP No.1414 of 1984 (O&M) [6] transfer in favour of respondents No.4 to 8 shall be allowed to subsist and the State will be at liberty to resume the property and hand over the same to respondents No.4 to 8. 7. The writ petition is allowed with the directions as mentioned above. NOVEMBER 07, 2011 ( K. KANNAN ) Rajan JUDGE