CWP No. 4976 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- Date of decision: 01 September, 2011 1. CWP No. 4976 of 1994 Mohinder Kumar ........ Petitioner Versus State of Haryana and others .......Respondents 2. CWP No.7768 of 1994 Smt. Chander Kanta ........Petitioner Versus State of Haryana and others ........Respondents Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Som Nath Saini, Advocate for the petitioner (CWP No. 4976 of 1994) Mr. Tribhuvan Dahiya, Advocate for the petitioner (CWP No. 7768 of 1994) Mr. Deepak Jindal, DAG, Haryana for the respondent State -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. By this judgment, both the aforesaid writ petitions shall stand decided as the impugned orders dated 19.02.1990, 27.01.1992 and CWP No. 4976 of 1994 2 12.10.1993 are common. However, for facility of reference, the facts are being taken from Civil Writ Petition No. 4976 of 1994. Brief facts of the case are that the agricultural evacuee land measuring 55 kanals 15 marlas comprised in khasra No. 29//11, 18, 19, 20,21, 22 and 23, situated in village Khirki Manekpur, Tehsil Naraingarh, District Ambala was auctioned by respondent No. 3 under the 'State Rules' amongst harijans on 04.09.1984, in which, the petitioner emerged as the higher bidder for Rs.28,000/- and he deposited Rs.3500/-. As per the conditions, the balance amount of bid money was to be deposited in fifteen half yearly equal installments being the restricted auction amongst harijans and as per the instructions of the State Government issued vide memo No. 7984-94 dated 15.10.1970, the installments were to be started after two harvests from the date of delivery of actual physical possession. Respondent No. 3 passed an order dated 19.02.1990 forfeiting the amount and also resuming the land on the ground that the petitioner has not deposited the overdue installments. In the meantime, respondent No. 3 again put the land to auction on 26.10.1990 in which, one Smt. Chander Kanta was recorded as the highest bidder for Rs.80,000/- but the auction in her favour was not confirmed. Thereafter, the petitioner filed an appeal against the order dated 19.02.1990. The same was allowed vide order dated 29.03.1991. However, a condition was imposed that the petitioner will purchase the land for Rs.80,000/- instead of Rs.28,000/-. The petitioner filed a revision petition before respondent No. 1 against the order dated 29.03.1991, challenging only the part of the order dated 29.03.1991 whereby respondent No. 2 CWP No. 4976 of 1994 3 imposed a condition that the petitioner will purchase the land for Rs.80,000/- instead of Rs.28,000/-. The revision petition was disposed of and the case was remanded to respondent No. 2 vide order dated 27.01.1992 observing that there was no occasion to impose a condition upon the petitioner to pay the higher amount of Rs.80,000/- and that either the S.O (S) should have accepted the appeal of the petitioner or should have dismissed the same and should have confirmed the auction in favour of Smt. Chander Kanta if it was in order. After the remand order by respondent No. 1, respondent No. 2 decided the appeal vide order dated 21.12.1992 whereby he dismissed the appeal of the petitioner. The petitioner filed revision petition before respondent No. 1 challenging the order dated 19.02.1990, 21.12.1992, while Chander Kanta (successful bidder in re- auction on 26.10.1990) filed Revision Petition against the order dated 21.12.1992 passed by respondent No. 2 i.e. Additional Settlement Officer (Sales) Karnal before respondent No. 1 i.e. Joint Secretary (Rehabilitation) cum- Settlement Commissioner, Rehabilitation Department, Haryana. Respondent No. 1 i.e. Joint Secretary (Rehabilitation) cum Settlement Commissioner, Rehabilitation Department, Haryana upheld the order under challenge vide order dated 12.10.1993 (P6). As regards Chander Kanta also it was held that since it was discovered that this land has been frozen by the forest department for afforestation and is in their possession, the possession of it cannot be given to Smt. Chander Kanta during the subsistence of a lease of the Forest Department. Since possession cannot be given, conveyance deed cannot be given. While impugning the orders dated 19.02.1990, 27.01.1992 and CWP No. 4976 of 1994 4 12.10.1993, learned counsel for the petitioner contended that (a) although symbolic possession was given to the petitioner, he was to start paying installments only after actual physical possession was delivered to him and harvests two crops. However, the actual physical possession was never delivered so there was no installment due to be paid by the petitioner. As such, the order dated 19.02.1990 could not have been passed by respondent No. 3 forfeiting the amount and also resuming the land on the ground that the petitioner has not deposited the overdue installments. (b) no notice was served upon the petitioner before resuming the land purchased by the petitioner and reliance was placed on the Full Bench judgment rendered by this Court in the case of State of Haryana and others v. Vinod Kumar and others reported as 1986 P.L.J. 161 (c) it is mandatory requirement of the rules and instructions issued by the Department from time-to-time in case of restricted auction that before passing any resumption or forfeiture order and before re-auctioning the land, the auction purchaser has to be given registered A.D. Notice, so that if there is any overdue installments, he could deposit even at the time of re-auction but in the case in hand, no registered A.D. Notice was never issued to the petitioner before re-auctioning. (d) Reliance is also placed on the Division Bench judgment rendered by this Court in the case of Gram Panchayat of Village Kum Kalan v. The State of Punjab and others reported as 2010(3) RCR (Civil) 729 to say that since the amended provisions of Section 2(g) of the Punjab Village Common Lands (Regulation) Act, 1961 vide Amended Act of 1995 CWP No. 4976 of 1994 5 has been upheld and the allotment of the petitioner was prior to 1985, so land should revert to him. Section 2 (g)(5)(ii)(a) reads, thus: “(5) lands in any village described as banjar qadim and used for common purposes of the village, according to revenue records; but does not includes land which- (i)omitted (ii) has been allotted on quasi-permanent basis to a displaced persons; (ii-a) was shamilat deh, but has been allotted on quasi permanent basis to a displaced person, or , has been otherwise transferred to any person by sale or by any other manner whatsoever after the commencement of this Act, but on or before the 9th day of July, 1985.” (e) Another argument was raised by the learned counsel for the petitioners that on remand, the Joint Secretary (Rehabilitation)-cum- Settlement Commissioner, Rehabilitation Department, Haryana could only dismiss or allow the petition but not set aside the entire order dated 29.03.1991 passed by the Additional Settlement Officer (Sales), vide which, the petitioner was requested to pay Rs.80,000/-. Thus, if at all, the allotment should be restored after allowing him to pay the amount of Rs.80,000/-. Reply has been filed by the State, stating therein, that on the basis of the application dated 04.11.1985 filed by the petitioner, the conveyance deed was issued and the petitioner was required to deposit the amount of the installment. However, he failed to deposit the same and his earnest money already deposited was rightly forfeited. It is further stated that the petitioner took the delivery of the land in question on his own and illegally without paying the installments and even got the conveyance deed registered. He has admitted his possession as per R/2. Thus, it was CWP No. 4976 of 1994 6 incumbent upon him to make the payment and he cannot say that he was never asked to pay the installments or no notice was given to him. Secondly, the said land has already been frozen by the Forest department on 15.10.1985 for afforestation and it was in their possession till the subsistence of the lease of the Forest Department for 15 years. Annexures A-1 to A-13 have been placed on record by the respondents State showing the status of the land. The entries in Annexures A7 and A8 is read as under :- “v) That as per revenue record i.e. Jamabandi for the year 1982-83, the Central Government is recorded in the column of ownership and in the column of cultivation the name of Forest Department is recorded. The nature of the land is recorded as Gair Mumkin Jangal (Forest) and these entries are also recorded in the subsequent jamabandi for the year 1987-88. Thereafter, the entries for subsequent year is 'Central Government' in the ownership column and in the column of cultivation, the name of 'Forest Department' is recorded. However, vide mutation No. 533 dated 22.07.2008, the ownership of the land has been changed from the name of the “Central Government” to “Shamlat Deh Hasab Rasad Arazi Khewat”. As such, the land cannot revert back to the petitioner. Learned counsel for the parties were heard at length. The questions that arise before this Court is (i) whether the petitioner was served before passing the impugned order of forfeiting the earnest money (ii) whether the petitioner was delivered the actual physical possession of the land and (iii) whether the petitioner defaulted in making the installments in pursuance to the allotment. CWP No. 4976 of 1994 7 The amount of Rs.3500/- deposited by the petitioner at the time of auction was forfeited and the land was resumed in favour of the State Government vide order dated 19.02.1990 (P2) passed by the Tehsildar (Sales). It is evident from the said order that the Process Server, in his report dated 22.10.1989, reported that he had gone to the house of the petitioner and pasted one copy of the notice on his door as the auction purchaser was out of station. There is nothing on record to disbelieve the report of the Process Server dated 22.10.1989. Rather, as per the finding recorded in the order dated 09.04.1991 of Additional Settlement Officer (Sales)-cum-Assistant Settlement Commissioner, Reh. Department, Haryana Karnal, the petitioner lived with his parents and five brothers under one roof in Village Kherki Manekpur and therefore it was effective service. Even if, for the sake of argument, it is accepted that the said notice is not sufficient notice and does not amount to service, the same in itself is not sufficient to set side the impugned order dated 19.02.1990 of Tehsildar (Sales) as is evident from the discussion below. It is not disputed that as per the Government Instructions, the petitioner was required to make the installments towards the balance amount in 15 half yearly equal installments which were to start after two harvests from the date of the delivery of the physical possession. Admittedly, the petitioner never deposited the said installments. The argument of learned counsel for the petitioner that he had received only symbolic possession and physical possession was never given and therefore there was no occasion for him to make the payment, is not borne out from the facts of the case. It is evident from application dated 04.11.1985 (R1) which is a letter addressed CWP No. 4976 of 1994 8 by petitioner Mohinder Kumar to the Tehsildar (Sales) Ambala, admitting that he had taken over the possession of the land with a further request that since he has taken over the possession of the land, the deed of conveyance be issued to him. The contents of letter (R1) reads as under:- “With due respect, I beg to say that I have purchased land measuring 55K-15M in khasra Nos. 29//11,18,19,20,21,22,23, situated at Village Jangu Majra for a sum of Rs.28000/- in restricted auction on 04.09.1984 and the sale has since been confirmed in my favour. I have also taken over the possession of the land. It is, therefore, requested that the deed of conveyance be issued to me and oblige.” There is nothing to suggest that the said possession was symbolic and not actual physical possession. Rather, the petitioner while challenging the cancellation of the auction and subsequently sale of the land before the Joint Secretary (Rehabilitation)-cum-Settlement Commissioner, Rehabilitation Department, Haryana, specially took the plea that he had to clear the wild growth on the land and had to spend huge amount in levelling and cultivating it. He had also installed a tubewell on the said land and had carried out improvement on the land. His contentions have been duly noted in the order dated 12.10.1993 (P6). Therefore, the only conclusion that can be arrived at is that he was in actual physical possession. Once, he was in possession, it was incumbent upon the petitioner to have deposited the installments as per the instructions after two crops. However, he failed to do so. The argument that the execution of the conveyance deed in his favour shows that the petitioner had made the entire installments, also does CWP No. 4976 of 1994 9 not help as it was never the case of the petitioner before any authority that he had deposited the installments. Rather, his stand was that a condition of payment of Rs.80,000/- imposed upon him vide order dated 29.03.1991 passed by the Additional Settlement Officer (Sales) Karnal, should be set aside and he should be allowed to deposit the balance amount of his bid of Rs.28,000/- as per rules and instructions. Thus, this Court has no hesitation in holding that the petitioner took over the actual physical possession of the land, thereby requiring him to pay the installments as per the schedule. He did not make the said installments and therefore, the order of forfeiture dated 19.02.1990 was correct to that extent. The argument of the learned counsel for the petitioner that in case, he was aware of the order of forfeiture dated 19.02.1990, he would have made the payment and that in case, notice before re-auction had been served upon him as required under the instructions, he would have made the said payment, also has no merit inasmuch as that the Additional Settlement Officer (Sales) Karnal vide order dated 29.03.1991 (P3) had set aside the re- auction order dated 26.10.1990 and forfeiture order dated 19.02.1990 of respondent No. 3 with permission to the petitioner to purchase the same at the rate of Rs.80,000/- instead of Rs.28,000/-. The petitioner instead of making the said payment challenged the same by filing a revision petition before respondent No. 1. In case, the petitioner had the intention to make the payment, he would have deposited the said amount at that stage atleast under protest, if not otherwise. At this stage, learned counsel for the petitioner has raised yet CWP No. 4976 of 1994 10 another argument that the petitioner had challenged the order dated 29.03.1991 passed by respondent No. 2 only to the extent vide which a condition was imposed requiring him to deposit Rs.80,000/- instead of Rs.28,000/- and Respondent No. 1 could either accept the revision petition or dismiss it but he could not have remanded the matter back for afresh decision. Meaning thereby, that in case, the said revision had been simply dismissed without remanding the matter back, he would have if at all to make the payment at the rate of Rs.80,000/- instead of Rs.28,000/-. Whereas, on remand, his appeal was dismissed in toto. This argument also does not help the petitioner. The operative part of the order of remand dated 27.01.1992 reads thus:- “9. There are two aspects of the matter in this case which are to be reconsidered. First, whether the order dated 12.02.1990 forfeiting the amount paid by Shri Mohinder Kumar was in order and whether this order was passed after observing all the formalities required under the rules and instructions of the department and whether he was properly informed about the resumption of the land and further whether he was served with a notice regarding the subsequent auction in which Smt. Chander Kanta turned out to be a highest bidder for Rs.80,000/- and whether his service by pasting a notice at his door was sufficient. Secondly, if the forfeiture order was passed without proper service, CWP No. 4976 of 1994 11 as held by the ASO (S) in his order dated 29.03.1991 there was no occasion to impose a condition upon Mohinder Kumar to pay the higher amount i.e. Rs.80,000/-. Either the ASO(E) should have accepted the revision petition of Shri Mohinder Kumar or should have dismissed the same and should have confirmed the auction in favour of Smt. Chander Kanta if it was in order. Accordingly, I remand the case to the Settlement Officer (Sales) Amala with the direction that he should decide the case afresh after hearing the parties concerned. The contentions raised by the parties before this Tribunal be also kept in view while deciding the case. The relevant record be sent to the Settlement Officer (Sales) Ambala.” The petitioner accepted the said order and never challenged the same. He happily appeared before respondent No. 2. As such, the same had attained the finality. On remand, his appeal was dismissed. So was the auction order dated 26.10.1990 in favour of Chander Kanta set aside. Thus, there is no ground to set aside the orders dated 19.02.1990, 27.01.1992 and 12.10.1993 which have been rightly passed. Since, the present petition is being dismissed in view of the above discussion and on the ground that the petitioner failed to make the installments inspite of having taken over the actual physical possession of the land and being aware of the fact that the earnest money as well as the CWP No. 4976 of 1994 12 land was liable to be forfeited, the argument of the petitioner that the land was required to revert back to him as the same was allotted prior to 1985 in view of the amended Act of 1985, need not be gone into. With respect to writ petition filed by Chander Kanta, suffice it to say that the said auction dated 26.10.1990 was never confirmed. Learned counsel for the petitioner has not been able to show any provision of law or condition to show that the Government cannot withdraw from the auction before its confirmation. In the present case, the Government had a valid reason for not confirming the sale. The land had been frozen by the Forest Department for afforestation. The argument that the said notification was only for 15 years, does not help as at that point of time when the land was auctioned in the year 1984, the notification was in operation and valid. The land could not have been auctioned under any circumstance at that point of time. The very auction was bad. In view of the above discussion, both the writ petitions are dismissed. (Nirmaljit Kaur) Judge 01 September, 2011 mohan