RSA No.2173 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.6474-C of 2009 and RSA No.2173 of 2009 Date of Decision: 26.5.2009 Puran & Anr. ..Appellants Vs. Union of India & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Ajit Malik, Advocate, for the appellants. Vinod K.Sharma,J. This regular second appeal is directed against the judgment and decree dated 23.1.2009 passed by the learned courts below dismissing the suit filed by the plaintiff/appellants seeking mandatory injunction to direct the Union of India, Ministry of Rehabilitation and others to accept the balance amount, not paid by the original allottee, from the plaintiffs and transfer the land in dispute in their favour. Plaintiffs purchased agricultural land measuring 36 kanals 11 marlas through a registered sale deed dated 28.3.1979 and mutation of sale was sanctioned on 4.3.1983. However, the allotment made to Sodagar Mal RSA No.2173 of 2009 (O&M) 2 i.e. the vendor of the plaintiff/appellants was cancelled as he was allotted excess land than his entitlement. Prior to filing of the suit the plaintiff/appellants had earlier challenged the cancellation of allotment of Sodagar Mal, the vendor of the appellants, which was partly allowed with direction to the vendor to refund the amount of Rs.41,000/- to the plaintiff/appellants. However, in appeal learned lower appellate court was pleased to order as under:- “10. In the light of the above analysis and findings the appeal partial succeeds. The judgment and decree of the trial court is modified. It is held that the proceedings of respondents Nos. 5 & 6 in the form and from the stage of the offer of purchase of the suit conveyed vide notice Ex.DW 2/C in the year 1979 and other connected proceedings are unlawful asmuchas that the offer to purchase was issued and despatched in the name of deceased persons while, in fact, the same should have been offered and despatched in the names of living L.Rs of the original allottee. The Managing Officer having territorial jurisdiction shall initiate proceeding afresh from the stage of offer of purchase of the suit land as excess area of allotment to the allottee through L.Rs as per law and rules applicable to such properties. Respondents Nos. 5 & 6 are granted 60 days time from today for initiation of proper proceedings in the matter. The ownership and other rights of the parties in the suit property are subject to the final adjudication and decision of the RSA No.2173 of 2009 (O&M) 3 Managing Officer having jurisdiction over the suit property under Displaced Persons (Compensation and Rehabilitation) Act, 1954, as amended up to date and rules framed thereunder. The appeal and suit are hereby decided accordingly leaving the parties to bear their own costs of the proceeding.” After the decision by the court notice was issued to the plaintiff/appellants. However, they chose not to appear and their application for purchase was dismissed for want of prosecution. The plaintiffs were, however, given an opportunity again to apply for transfer afresh up to 31.1.2002 as per the new policy of the Government. The plaintiff/appellants refused to accept the offer. Consequently, application for purchase was dismissed. The plaintiff/appellants again challenged the order passed by the Teshildar (Sales)-cum-Managing Officer rejecting the application by filing the present suit in which plea was taken by the defendants that the jurisdiction of the civil court was barred under sections 36 and 46 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short the Act). On merit the suit was contested that as the plaintiff/appellants had failed to avail opportunity they were not entitled to any relief from the court and therefore, the order passed deserves to be upheld. Learned counsel appearing on behalf of the appellants contends that the following substantial questions of law arise for consideration by this court:- “1. Whether the plaintiff/appellants were entitled to purchase RSA No.2173 of 2009 (O&M) 4 the suit land on payment of balance amount which was not paid by original allottee and his legal representatives in terms of the judgment dated 31.1.1998 Ex.D.5 passed by the learned Additional District Judge, Rohtak? 2. Whether the offer made by the respondents for transfer of land to the appellants was illegal, arbitrary and against the spirit of judgment dated 31.7.1998? Though prima facie the suit filed was barred under sections 36 and 46 of the Act still the learned court non-suited the plaintiff/appellants for not availing the opportunity of purchase under the new policy. The original allottee could also purchase the excess land as per policy. Learned counsel for the appellants in support of the substantial questions of law vehemently contended that as per the order of learned Additional District Judge, Rohtak the Managing Officer was to initiate proceedings afresh from the stage of offer of purchase of suit land as excess area allotted to allottees through the legal representatives. The judgment on true interpretation would mean that allottee could purchase as per law/rules applicable to the sale which would only mean that he was to make an offer to make an offer to purchase at the old rate and not the rate now fixed under the new policy. It is thus contended that the order being contrary to the judgment of learned District Judge could not be sustained in law. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the appellants. Learned Additional District Judge held that the claim of the plaintiff/appellants was to be considered afresh by the Managing Officer/Tehsildar (Sales). In RSA No.2173 of 2009 (O&M) 5 pursuance thereto notice was issued for purchase but in spite of notice issued, the plaintiff/appellants chose not to appear to pursue their case for purchase. The application was accordingly dismissed for non-prosecution. The option was again given to the plaintiff/appellants to make a fresh application for purchase under the new policy, the said offer was also not availed as appellants refused to make the payment of price demanded. The claim of the plaintiff/appellants in pursuance to the order passed stood satisfied when their application was dismissed for non-prosecution. Subsequent offer given was also not availed of by the plaintiff/appellants. In this view of the matter, no fault could be found with the order passed by the Tehsildar-Managing Officer rejecting the application. Even otherwise, the order could not be challenged by way of civil suit because of the jurisdictional bar under the statute. The facts and circumstances show that there was no violation of the order passed, as fresh decision has been taken and the application rejected on account of conduct of the plaintiff/appellants. The substantial questions of law raised are answered against the plaintiff/appellants. Consequently the appeal is ordered to be dismissed in limine. 26.05.2009 (Vinod K.Sharma) rp Judge