Civil Writ Petition No.2354 of 1982 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: February 20 , 2009 Sukh Ram Dass & others .....Petitioners VERSUS The District & Sessions Judge, Hoshiarpur & others. ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.M.L.Sarin, Senior Advocate with Mr.Kabir Sarin, Advocate, for the petitioners. Mr.Yatinder Sharma, DAG, Punjab, for respondent Nos.1,3,4 and 5. Ms.Tanisha Peshawaria, Advocate, for respondent No.2. **** RANJIT SINGH, J. Issue of significant importance concerning the Doctrine of Merger and that of Res judicata would arise for consideration in the present writ petition. At stake is the right of the petitioners and that of respondent No.2 concerning the property, which was mortgaged before partition by respondent No.2 to a person, who migrated to Pakistan after partition. Whether such a mortgaged property become Civil Writ Petition No.2354 of 1982 : 2 : evacuee property to be dealt with by custodian would be another important question requiring determination?. The petitioners while challenging order, Annexure P6, passed by District and Sessions Judge, Hoshiarpur (respondent No.1) exercising revisional powers under the Evacuee Interest (Separation) Act, 1951 (for short “the Act”) would urge that respondent NO.1 could not have set at naught the proceedings finally determined by competent officer after 16 years, that too without sufficient cause shown, when the sale in favour of the petitioners had been confirmed and finalised much earlier. The facts, as pleaded, are that respondent No.2 mortgaged his land measuring 64 kanals 17marlas with Shri Tuffail Mohmad alias Abdul Hamid of village Mohydinpur Gazi for a sum of Rs.8,000/- vide a registered deed dated 10.3.1947. Mutation No.539 was sanctioned on the basis of this mortgaged deed on March 7, 1949. Respondent No.2 also mortgaged another land measuring 11 kanals 16 marlas with Naseerudin son of Mehtab and Fazaludin son of Peer Ditta for sum of Rs.1,000/- through a mortgage deed dated January 5, 1946 and December 28, 1946. Mortgagees migrated to Pakistan and the land statedly became a composite property. On December 29, 1958, competent officer declared that both these properties had vested in the custodian. On an appeal, this order passed by the competent officer, however, was set-aside and he was directed to decide the case afresh. Competent Officer again took up the case after remand and entered the cases as Claim No.4484/4498 with respect to land measuring 11 kanals 16 marlas mortgaged vide deed dated January 5, 1946 and December 28, 1946. The Civil Writ Petition No.2354 of 1982 : 3 : competent officer entered the another case as Claim No.4497-4485 in respect of the land 64 Kanals 17 Marlas mortgaged through deed dated March 10, 1947. Thereafter, Competent Officer directed respondent no.2 to deposit mortgage money with respect to Claim No.4484/4498. Respondent No.2, however, did not comply with the orders despite grant of extension of time for depositing the amount. Rather, it is averred that respondent No.2 made a categorical statement on November 19, 1962 before the competent officer that he did not want to redeem this land as the same had been allotted to displaced persons in consolidation and the land had been included in the Tucks of allottees. The competent officer accordingly declared that this land had vested in the custodian free from all incumbrances as the mortgagee had expressed his unwillingness to redeem the land. It is stated that the claim in respect of mortgage deed dated March 10, 1947 though was not submitted in time, but still the competent officer entertained the claim on October 12, 1962. He accordingly ordered that mortgagee can redeem the land on payment of Rs.8002/- (Rs.2/- being notice charges). The money was required to be deposited in the treasury and the challan was to be presented before the competent officer on November 17, 1962. The mortgage amount, however, was not deposited. The competent officer extended the time upto January 1, 1963. Neither the amount was deposited on the date fixed nor the mortgagee appeared before the competent officer. The competent officer accordingly ordered the sale of composite property, which was conducted on February 11, 1963 after Civil Writ Petition No.2354 of 1982 : 4 : notice to respondent No.2. Respondent No.2, challenged the auction sale by filing application dated February 13, 1963. While entertaining the application, the competent officer adjourned the proceedings to March 18, 1963, while affording one more opportunity to respondent No.2 to deposit the mortgage money. Mortgage amount still was not deposited by respondent No.2. It is urged that there is no provision under the Act for extending the time for deposit of mortgage money after the property had been put to sale and despite concession shown by competent officer, the same was not availed. The petitioners otherwise were the highest bidders at the auction sale. The sale was confirmed in their favour by the competent officer vide order dated April 30, 1963 and the sale certificate was duly issued to them. It is stated that the order confirming the sale was an appealable under Section 14 of the Act, but still no appeal was filed against the same. The petitioners would urge that this order, thus, became final. Respondent No.2 subsequently filed a civil suit for redemption of land covered by mortgage deed dated March 10, 1947. This suit was contested by the petitioners. The civil court dismissed the suit on March 25, 1975. It is to be noted that the suit was not dismissed on merits as the court found that it did not have any jurisdiction to entertain the same. Respondent No.2 thereafter filed a writ petition No.3735 of 1975 before this court to challenge order dated April 30, 1963. After notice of motion, the writ petition was dismissed in limine on July 15, 1975, order reading “Dismissed”. From the foregoing facts/pleadings, the petitioners would plead that the order of sale and confirmed by the competent officer Civil Writ Petition No.2354 of 1982 : 5 : would merge into the order passed by the High Court and, thus, would become final. Still, respondent No.2 succeeded in getting suo- motu reference made under Section 15 of the Act from the department. Respondent No.2 also filed a revision petition on December 7, 1979 purporting to be under Section 15 of the Act before respondent No.1. The petitioners submitted written reply to this revision petition. Respondent No.1 through his order dated April 30, 1982 set-aside the order dated November 19, 1962 passed in Claim No.4484/4498 and the order confirming the sale of the auction sale dated April 30, 1963. This order passed by respondent No.1 is under challenge in the present writ petition. While issuing notice of motion, the further proceedings before the competent officer were stayed on 28.5.1982. The writ petition was admitted on 29.11.1982 and the stay was ordered to be continued. In a written statement filed on behalf of respondent No.2, the pleas raised in the writ petition are controverted. While explaining the statement made by respondent No.2, that he declined to redeem the land, it is stated that this statement has been misconstrued as it was only concerning that part of the land of the respondent, which was subject matter of one mortgage, leading to Claim No.4484/4498. It is stated that in fact after consolidation, the total land of the petitioners was formed into one Tuck and was allotted. Prior to this, the respondent had two tucks of land, which were separately mortgaged by separate deeds but subsequently, after consolidation, the total holding of the land was reduced to 58 kanals only. This reduction, as per the respondent, was due to the reason that total Civil Writ Petition No.2354 of 1982 : 6 : holding had to be reduced because of reservation made for common purposes under Section 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (for short “the Consolidation Act”) and that the kanals prior to consolidation were smaller and not standard kanals and further that some of the land of the respondent was Barani and after consolidation he got whole of the land as A class. It is also disclosed that the total allotment being 58 kanals, respondent No.2 thought that his block of 11 kanals 16 marlas had been allotted to the allottees and under this misconception, he made a statement that since part of his land has been allotted to the allottees, he did not want to redeem it. Respondent No.2 accordingly pleads that the statement made under misconception of facts would not bind him. Respondent No.2 has otherwise denied if he was aware of the sale proceedings as stated in para 8 of the petition. It is further pleaded that the competent officer has no jurisdiction to sell the non- evacuee interest. Plea is that it was incumbent upon the competent officer to first separate the evacuee interest from non-evacuee interest under the provisions of the Act and only then the competent officer could have sold the evacuee interest only. It is in this background pleaded that the sale ab-initio was without jurisdiction and the exercise of revisional power was not to show any concession to respondent No.2 as is being made out by the petitioners. Respondent No.2 would further find fault with the manner of auction where petitioners claimed to be highest bidder. By disclosing that there were hardly any people, who had come to bid for the land and those few who had come on the spot had connived with Civil Writ Petition No.2354 of 1982 : 7 : each other as would be apparent from the facts that only one bid of Rs.100/- more than the reserved price was given and the land was sold to the first bidder. It is claimed that the market value of the land at that time was Rs.50,000/-. The fact that answering respondent had filed a civil suit and the same was dismissed is conceded by highlighting that the same was dismissed for want of jurisdiction. It is accordingly stated that the civil court did not discuss the merits of the controversy. While conceding the dismissal of civil writ petition in limine, it is pointed out that the High Court also did not adjudicate in regard to the rights of the parties and as such it is stated that the dismissal of the writ petition would not bar the statutory remedies. Respondent No.2, in this background, would further plead that his rights did not vest in the custodian and, thus, the competent officer would not be competent to sell these rights in auction. Thus, respondent No.2 would justify the action of the State in taking up the matter suo-motu, which, according to him, was to do justice. In addition, respondent No.2 had also filed a revision petition. He (respondent No.2), thus, would plead for dismissal of the writ petition. Mr.M.L.Sarin, Senior Advocate has primarily made two- fold submission before me to challenge the impugned order, Annexure P-6. He would strongly advocate that the order of competent officer dated 30.3.1963 confirming the sale had merged into the High Court order dated 15.7.1975, through which the writ petition filed by respondent No.2 was dismissed. He would accordingly plead that once the decision of the inferior court merges with the decision of the superior court, challenge can only be directed against the decision of the superior court. The counsel would further Civil Writ Petition No.2354 of 1982 : 8 : contend that the doctrine of merger would apply in this case. Whether statutory appeal or revision is available or not is wholly irrelevant, says the counsel. He further says that respondent No.1 was not justified in observing that the decision of the High Court dismissing the petition with one word “dismissed” would not be such which can attain the character of merger or finality. As per the counsel, the decision of the High Court, dismissing the writ petition filed by respondent No.2, would operate as res judicata in subsequent proceedings before any court or before any authority constituted under the Act. The counsel would also submit that the revisional power had been exercised to set at naught the proceedings, which finally determined the right of parties on 30.4.1963 after a lapse of 16 years. As per the counsel, the phrase “any time” used in Section 15 of the Act could not have been assumed to mean that the authority can entertain the petition after lapse of 16 years when respondent No.2 had the knowledge of the order passed on 30.4.1963. In addition, he pleads that the impugned order is nullity because Sher Singh, one of the auction purchaser (arrayed as respondent No.6 in the revision petition) had died on 23.12.1980. His L.Rs. were not brought on record before the pronouncement of the judgment. Objection in this regard was raised but was not considered. The counsel appearing for respondents would, however, seriously join issue with the counsel for the petitioners and would urge that the order passed in the civil writ petition dismissing the same with one word “dismissed” cannot operate as res judicata. They would also point out that respondent No.1 had exercised his Civil Writ Petition No.2354 of 1982 : 9 : revisional jurisdiction. It was before respondent No.2 filed a revision under Section 15 of the Act. They would submit that there is no bar for the State to challenge an auction sale which was patently without jurisdiction. Contesting the ground that the order is nullity as having been passed against one of the respondent, who was no more, it is pleaded that it was the responsibility of the respondents, who were equally interested in the property and were present before the court to implead the L.R of the dead respondent. It is stated that no such objection was ever raised before the revisional court and, thus, the order would not be rendered as nullity on this ground as pleaded by the counsel for the petitioners. Before proceeding ahead to consider the legal submissions made by respective parties regarding doctrine of merger and res judicata, some undisputed facts, which have resulted in passing of the impugned order, may need to be noticed. Respondent No.2 had mortgaged two sets of land separately. The person to whom the land was mortgaged had migrated to Pakistan. Both the pieces of land, thus, became composite property. The competent officer vested this land in the custodian through his order dated 29.12.1958. Against this order, Joginder Singh, respondent No.2, filed an appeal which was accepted by Appellate Officer through order dated 24.3.1962 and the relevant observations in this regard are as under:- “I, therefore, am of the opinion that he was not served and the order made under section 11 of the Evacuee Interest (Separation) Act without the publication of General notice and personal service, was without Civil Writ Petition No.2354 of 1982 : 10 : jurisdiction and nullity. Even otherwise, no non-evacuee interest can vest in the Custodian under the Evacuee Interest (Separation) Act. The Act has been enacted for the separation of the Evacuee interest from those of non- evacuees. Moreover, his interest in the land could not vest in the custodian in view of the recent Supreme Court ruling A.I.R. 1961 (page 1391). I, therefore, accept the appeal, set aside the order impugned, after condoning the delay and direct that the claim may be decided now on merits”. Respondent No.2 had submitted his statement of claim under sub-section (1) of Section 7 of the Act on 12.10.1962. However, before his this statement could be filed, the consolidation proceedings took place and the land measuring 58 kanals was allotted in lieu of these two pieces of land mortgaged by respondent No.2, Joginder Singh. The statement of claim dated 12.10.1962 primarily was in respect of a land mortgaged by respondent No.2 for Rs.8000/- with Tufail Mohd., but he mentioned in the claim that he had mortgaged the land in lieu of which 58 kanals has been allotted through two different mutations for Rs.8,000/- and Rs.1,000/-. It is in this background, respondent No.2 made a statement on 19.11.1962 that the land mortgaged and covered by cases No.4484 and 4498, measuring 11 kanals 16 marlas had been allotted to the displaced persons during consolidation proceedings, along with the other mortgaged land covered by cases No.4497 and 4485/1210. He did not wish to redeem the land. Obviously, this statement was only concerning land measuring 11 kanals 16 marlas covered by claim Civil Writ Petition No.2354 of 1982 : 11 : cases No4484 and 4498. Competent officer had already passed an order on 12.10.1962 directing respondent No.2 to get the land redeemed on deposit of Rs.8,000/- along with the other pieces of land, mortgaged for Rs.1,000/- as both the lands had merged during the consolidation proceedings. Respondent No.2 was required to produce the treasury receipt showing deposit of Rs.8,000/- on 17.11.1962. He, however, did not deposit the amount till 1.1.1963 and so the competent officer directed the sale of property through his order dated 1.1.1963. As to what were the directions regarding first bid would be important to notice. Direction was that first bid would be for Rs.8,000/-. It is, thus, obvious that the competent officer did not take into account the second mortgage effected by respondent No.2 for Rs.1,000/-. The highest bid for the land was for Rs.8100/- on 11.2.1963. This bid was accepted and the sale in favour of the highest bidder was confirmed on 30.4.1963. Thus, this sale has been done completely ignoring the other mortgage of land made by respondent No.2 (Joginder Singh) for Rs.1,000/-. The competent officer had passed an order on 19.11.1962 vesting the land in Custodian free from all incumbrances and liabilities through an order which reads as under:- In view of the statement of the claimant, the land involved in cases No.4484 and 4498 is hereby vested in Custodian free from all incumbrances and liabilities.” The statement of respondent No.2 (Joginder Singh) which was made on 19.11.1962, reads as under:- “The land involved in cases no.4484 and 4498 has been Civil Writ Petition No.2354 of 1982 : 12 : allotted to displaced persons and in consolidation that has been included in taks of the allottees. Hence I do not want to redeem. The land be vested in the custodian free from all encumbrances and liabilities.” Respondent No.2 had first filed a civil suit and when the same was dismissed for want of jurisdiction, then a writ petition, which was dismissed on 15.7.1975. His (Respondent No.2) grievance in the revision petition is that the competent officer had illegally vested the land covered by claim cases No.4484 and 4498 in the Custodian, free from all encumbrance through his order dated 19.11.1962 simply because he did not make the payment without following procedure prescribed under Section 10 of the Act. Regarding claim case No.4497 and 4485, it was pleaded that the competent officer could not order the sale of entire land including the land covered by cases No.4484 and 4498 for recovery of amount of Rs.8000/- (only). The petitioners resisted the said revision petition on the ground that it was not maintainable and that it was hopelessly barred by time and also barred by principles of res judicata. As already noticed, the State had also filed a revision by pleading that competent officer had ordered the vesting of property covered by claim cases No.4484 and 4498 in custodian through his order dated 19.11.1962, although the equity of redemption was still available to the mortgagor and competent officer could not vest the non-evacuee interest in the mortgaged property in the Custodian. Regarding the other property covered by cases No.4497 and 4485, it is pleaded that simply because the mortgagor failed to pay the mortgage amount, the mortgaged property could not be ordered to be sold for the recovery of mortgage amount of Rs.8,000/- only, particularly when the property, ordered to be sold, included both sets of mortgaged Civil Writ Petition No.2354 of 1982 : 13 : property merged together in 58 kanals of land allotted after consolidation proceedings. The objection is that the competent officer did not take any steps to segregate the land covered by the two mortgages and the entire land was sold for recovery of mortgage amount of Rs.8,000/- only. Thus, a mortgage amount of Rs.1,000/- was altogether ignored at the time of ordering the sale. It is even the case of the State that the price of the land was about Rs.50,000/-, but was auctioned at a ridiculous low price of Rs.8100/-. It was, thus, put under challenge. While allowing the revision petition, all the pleas raised by the petitioners were considered. The petitioners had raised the plea of limitation, estoppel, res judicata etc. The plea of estoppel, as raised by the petitioners, was declined on the ground that the statement made by respondent No.2 was qualified statement and he stated therein concerning the land involved in cases No.4484 and 4498. In view of this statement, the competent officer was required to separate the two pieces of land before putting them on sale and could not have done so by making them a single block. As rightly observed, the equity redemption was still available to respondent No.2 when the impugned order dated 19.11.1962 was passed. If the object of the Act is noticed, then it is not to vest in the Custodian property which was not an evacuee property, but only to vest in him the evacuee interest in the property. Section 11 of the Act clearly provides that any property cannot vest in custodian which is not an evacuee property, particularly in cases where the competent officer is aware of the fact that the evacuee had only the right to recover the mortgage amount from the non-evacuee Civil Writ Petition No.2354 of 1982 : 14 : mortgagor. Thus, the order vesting the disputed land in the custodian free from all encumbrances and liabilities was held absolutely illegal. The plea of res judicata, as raised and which was termed as half hearted by the revisional authority, was also dismissed on the ground that this cannot operate as res judicata to debar him to initiate present proceedings, which were intended to rectify the illegalities committed by the competent officer. Learned counsel for the petitioners has referred to number of precedents. Reference is first made to Amarjit Singh and others Vs. Financial Commissioner, Taxation, Punjab, Chandigarh and others, AIR 1978 Punjab & Haryana 329 in support of plea of res judicata and doctrine of merger. It is observed that where writ petition against the revisional order of Financial Commissioner is dismissed, then the Financial Commissioner has no jurisdiction to review his previous order. In this case, the court has observed that doctrine of merger has a direct bearing on the principle of res judicata as the objects to be achieved by the application of this doctrine are twofold, i.e., (a) to avoid multiplicity of proceedings, and (b) to achieve the finality in decision. In The Kiranj Cooperative Credit and Service Society Ltd. Vs. State of Haryana , 2000(2) PLJ 36, this court has held that dismissal in limine of writ petition against an order, such order will stand merged in that of the High Court and the decision of the High Court even in limine cannot be set-aside by the inferior court even though it may be exercising statutory remedy by way of review or revision. While taking this view, the Division Bench followed the Full Bench decision in the case of Civil Writ Petition No.2354 of 1982 : 15 : Daya Wanti Vs. Yadvindra Public School, Patiala and others, 1996 (1) PLR 208, which, in fact had affirmed the decision in Amarjit Singh's case (supra). The Full Bench in the case of Daya Wanti (supra) has held that dismissal of an appeal or revision by a superior