Civil Writ Petition No. 8620 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 8620 of 2010 Date of decision : 29.08.2011 Davinder Singh .....Petitioner VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH Present: Mr. Vikas Behl, Advocate for the petitioner. Mr. A.S. Jattana, Addl. AG, Punjab for the State. Mr. Harsh Aggarwal, Advocate for respondent No. 5. **** RANJIT SINGH, J. This order shall dispose of Civil Writ Petition Nos. 9908 and 8620 of 2010. The petitioner seeks writ of certiorari for quashing order dated 18.12.2009 (Annexure P-10), 08.08.2003 (Annexure P-9) and 21.03.2005 (Annexure P-9A), whereby official respondents have ordered that the land, which was in ownership of the petitioner having got the same in open auction by the predecessor-in-interest of the petitioner be given to Sh. Swaran Singh, father of respondent No. 5. The grievance of the petitioner is that the land, which was purchased by his predecessor-in-interest in an open auction for Civil Writ Petition No. 8620 of 2010 2 which sale certificates dated 08.07.1986 and 19.10.1984 was ordered to be given to Sh. Swaran Singh, father of respondent No. 5 without affording any opportunity of hearing to the petitioner. The petitioner would further plead that this is done despite the specific direction issued by this Court vide order dated 10.10.1985 (Annexure P-8) passed in Civil Writ Petition No. 16467 of 1993. This order was passed even though allotment in favour of Sh. Amrik Singh has never been cancelled, as per the provisions of provisions of The Punjab Package Deal Properties (Disposal) Act, 1976 (for short the 'Act'). The petitioner has also placed on record the photographs to show that they have built a palatial residential house in the land in question after having legally acquired the ownership of the land. 5 kanals 17 marlas of land, which was purchased by Sh. Amrik Singh in open auction for which a sale certificate was issued on 08.07.1986. Another sale certificate was issued in favour of Sh. Amrik Singh with respect to ½ share of land measuring 8 kanals 5 marlas in open auction held on 19.08.1984. The said open auction was conducted by the Government under Section 4 (1) of the Act. The Jamabandi for the year 1982-83 duly incorporated the change in favour of Sh. Amrik Singh. The petitioner after duly verification from the revenue record exchanged his land with the above said land of Sh. Amrik Singh measuring 5 kanals 17 marlas, which fact was duly incorporated in jamabandi for the year 1992- 1993. 1 kanal 9 marlas of land was purchased by father of the petitioner from Janak Raj, which fact has also been duly incorporated in the jamabandi 1978-1979. The petitioner, thus, had become owner of 7 kanals 2 marlas of the suit land where he has built his residential Civil Writ Petition No. 8620 of 2010 3 house by spending a sum of ` 3 lacs approximately. The petitioner alongwith his family is residing in the said house. Sometime during March 2010, the Tehsildar came to the house of the petitioner and informed that residential house of the petitioner was required to be handed over to respondent No. 5. On inquiry, the petitioner learnt that no order under Section 7 or 10 of the Act for cancellation of the above allotment was made. Sarwan Singh, father of respondent No. 5, had earlier filed Civil Writ Petition No. 16467 of 1993 in which order was passed vide which excess land measuring 7.2 standard acres was being reclaimed by the authorities. Notice of motion was issued in the said writ petition but no interim order was passed. Neither the petitioner nor Sh. Amrik Singh was impleaded as party although their names were duly reflected in the revenue record. On 10.10.1995, the order was passed in this writ petition to direct the Managing Officer to maintain fresh proceedings and to give notice to all the affected persons and pass an order afresh. In violation of the above said specific directions, the Managing Officer has ordered that the land in question be given back to Sh. Swaran Singh and Sh. Baldev Singh without considering that the said land has already been sold in open auction to the predecessor-in-interest of the petitioner. The Chief Sales Commissioner vide cryptic and non-speaking order and without affording any opportunity of hearing to the petitioner or his predecessor-in-interest directed Managing Officer to proceed further before making reference to the Court. This was also in violation of direction issued by this Court. Respondent No. 1 had directed the Officer-cum-Tehsildar to implement the order dated 08.08.2003 Civil Writ Petition No. 8620 of 2010 4 where neither the petitioner nor his predecessor-in-interest were ever heard. The authorities failed to consider that the rights of the respondents stood already abrogated as Act had been abrogated. The property, thus, was no longer a evacuee property. Even in the proceedings, which were the subject matter of the writ petition, the reference was required to be made to the allottee for holding any excess allotment. As per the petitioner, it was the grandfather of respondent No. 5, who was allotted excess land and, thus, it was incumbent upon the authorities to retrieve unsold unauctioned land of the Legal Representatives of Mela Ram (grandfather of respondent No. 5) instead of claiming of the land, which had subsequently been sold in open auction. With this grievance, the petitioner has filed the present writ petition for setting aside the order whereby the direction was issued to transfer this land in favour of respondent No. 5. Replies have been filed on behalf of respondent Nos.1 to 4 as well as by respondent No.5. Giving background of the case, it is submitted that Mela Ram, predecessor in interest of respondent No.5, migrated from Pakistan. Land was allotted to him at Village Dhagaam, Tehsil Garhshankar, District Hoshiarpur. Mela Ram died in the year 1948/1950. His property was inherited by his five sons, namely, Swaran Singh, Janak Raj, Balwant Singh, Baldev Singh and Kharaiti Lal. Mutation was also sanctioned in their favour. Five sons of Mela Ram had a holding of 250 kanals 10 marlas and, thus, 50 kanals 2 marlas land came to the share of each son. Kharaiti Lal sold his entire share to one Darshan Singh on 14.3.1972, who further sold it to Tara Singh and Naranjan Singh on 6.10.1977. Two other sons Civil Writ Petition No. 8620 of 2010 5 had also sold part of their shares to different persons. During reconsideration of the allotment proceedings, it was found by the Managing Officer that Mela Ram was allotted 7- 6/14 standard acres land in excess of his actual entitlement, which was liable to be retrieved. A reference dated 30.6.1976 was made to the Chief Settlement Commissioner to pass an appropriate order in this regard. Chief Settlement Commissioner returned the file to the Managing Officer on 13.6.1977 for re-considering the matter by taking into account that the land measuring 7 kanals 7 marlas, which had earlier been cancelled. On reconsideration, Managing Officer made a reference that 7-2 standard acres of land in excess was liable to be retrieved. Chief Settlement Commissioner then accepted the reference and set-aside the part of allotment, which was found to have been allotted in excess vide his order dated 18.4.1978. The said order was implemented by Tehsildar, who retrieved excess area from all the co-sharers but did not do so equally. As per this, 22 kanals 6 marlas land was ordered to be retrieved from Swaran Singh, Janak Singh and Kharaiti Lal and 22 kanals 17 marlas and 10 kanals 7 marlas from Baldev Singh and Balwant Singh. Kharaiti Lal in fact had sold 51 kanals 13 marlas. Thus, he had sold 22 kanals 6 marlas land in excess of his share. Tara Singh and Naranjan Singh, thus, challenged this order before the Chief Settlement Commissioner, who remanded the case to the Managing Director to decide it de novo after giving fresh opportunity of hearing to the effected parties. As already noticed, the Managing Officer had found 7-2 standard acres of land having been allotted in excess and cancelled the unsold area of original allottees, Baldev Singh and Swaran Singh Civil Writ Petition No. 8620 of 2010 6 and remaining area to be retrieved from land of the last purchaser vide his order dated 29.9.1980. The Tehsildar has accordingly retrieved the entire excess land from the unsold share of Baldev Singh and Swaran Singh leaving out all other co-sharers/L.Rs. This order was passed on 20.1.1982. Thus, land measuring 22 kanals 6 marlas retrieved from the share of Tara Singh and Naranjan Singh was restored to them. This order was challenged by Baldev Singh and Swaran Singh before the Settlement Commissioner but the appeal was dismissed. The revision was also dismissed on 8.8.1985. Even the revision filed before the Financial Commissioner was dismissed on 19.5.1993. They then had challenged the order before this Court through Civil Writ Petition No.14667 of 1993 and all the impugned orders were set-aside on 10.10.1995 with a direction to the Managing Officer to comply with the order dated 20.8.1979 and to retrieve the excess land out of the share of each legal heir. This order attained finality. After remand, the Managing Officer issued notice to the effected parties but Tara Singh and Naranjan Singh made an attempt to delay the matter as they were likely to loose the land purchased from Kharaiti Lal. The Managing Officer, after hearing the parties, ordered that the land measuring 7-2 standard acres, being in excess of entitlement of Mela Ram, be retrieved from every L.R., who would surrender the same proportionately. Reference was made to Chief Settlement Commissioner, who directed that the order of the High Court be complied with. It is thereafter that Tehsildar, on 26.3.2010, ordered to restore 22 kanals 13 marlas of land of respondent No.5 taken out as per order dated 20.1.1982. Civil Writ Petition No. 8620 of 2010 7 The petitioner accordingly has impugned this action, claiming that some khasra numbers out of these land were put to auction in the years 1984 and 1986 and one Amrik Singh had purchased ½ share out of land measuring 8 kanals 5 marlas on 19.10.1984 and 5 kanals 17 marlas on 8.7.1986. Amrik Singh had exchanged this land with the petitioner, who has constructed a house. The petitioner has accordingly claimed that this land purchased by them, which is given to respondent No.5, is illegal. Respondent No.5 submits that the writ petition is liable to be dismissed as the petitioner has not challenged order dated 26.3.2010 whereby khasra number purchased by the petitioner has been restored to respondent No.5. It was primarily on account of equitable consideration that this Court had directed the parties to see the feasibility of amicable settlement of the issue. While issuing notice of motion, the dispossession of the petitioner was stayed. On 4.7.2011, the counsel for the respondents was given time to have instructions, if the issue could be settled on some equitable terms. The State counsel was also directed to have instructions if respondent No.5 could be adjusted on some alternative place. Once the efforts and settlement failed, the counsel have been heard on merits. The petitioner, who is a bonafide purchase of a land, which he exchanged with another bonafide auction purchaser and has constructed a palatial and a reasonably good house over the land could not now be made to suffer because the predecessor of respondent No.5 have found to have sold land in excess of their share and entitlement. The petitioner exchanged this land with Amrik Civil Writ Petition No. 8620 of 2010 8 Singh, whose ownership was duly reflected in the revenue record. He can not be faulted for something which would happen after passage of so many years. The land sold in excess by one of the co-sharer has to be compensated by that co-sharer who had sold this land in excess and for this, subsequent bonafide purchaser can not be made to suffer. Initially, land sold by one co-sharer was cancelled. The purchaser of this land had rightly made approach against this action, which led to correction of the earlier order with a specific direction that land was required to be retrieved from each of the co- sharer/L.R. Ultimately, the land, which has been restored to respondent No.5, is the one which is the subject matter of issue having been with the bonafide purchaser. If respondent No.5 is to be compensated, then it has to be by his co-sharer, who has sold this land in excess and action of the Tehsildar in retrieving this land from subsequent bonafide purchaser would appear unjustified and unreasonable. Counsel appearing for respondent No.5 had not joined any serious issue in this regard that actually the land ought to be retrieved from the co-sharer, who had sold in excess of his share. For an act committed by co-sharer of respondent No.5, the petitioner can not be made to suffer. Counsel for respondent No.5 had agreed to consider the feasibility of separately agitating the issue but ultimately changed his stand on more than one occasion after having agreed to the same. This conduct is not appreciated. The fair approach is that respondent No.5 has to seek either land from his co-sharer or a compensation. The house constructed by the petitioner can not now be handed over to him, as Civil Writ Petition No. 8620 of 2010 9 would be the consequence of the order passed by Tehsildar. The petitioner can not be faulted in any manner for spending this huge amount as he was under a bonafide belief to be a legal and valid owner of the property, when he spent this huge amount. The standard of construction is quiet good as can be seen from the photographs annexed with the petition as Annexure P-6. The impugned order, thus, can not be sustained and is accordingly set-aside. The plea raised on behalf of respondent No.5 to allow him relief in the present writ petition can not be considered, he being respondent and there being no valid averment in support of this plea on record. He was accordingly asked to explore the feasibility of making separate approach, which he opted for but again changed track to repeat the prayer once over again. That is what caused interruption of the proceedings. The petitioner, if otherwise legally permissible, may have to have his remedies separately. The writ petition is accordingly allowed and the impugned order is set-aside. The writ petition is allowed. August 29, 2011 ( RANJIT SINGH ) rts JUDGE