IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.4573 of 2008 Date of decision : 09.10.2009 Kewal Krishan … Petitioner Versus State of Haryana and others …Respondents Present: Mr.P.S.Jammu, Advocate for the petitioner. Mr.Vivek Lamba, AAG, Haryana for respondents No.1 and 2. Mr.Ashok Kumar Verma, Advocate for respondent No.3. S.S.Saron, J. Mr.Ashok Kumar Verma, Advocate for respondent No.3 submits that he may be allowed to withdraw from the case as his client has now not approached him after engaging him as counsel. He is permitted to withdraw. No one appears on behalf of respondent No.3 – the Sirsa District Co-operative House Building Society Ltd., Sirsa through its President. Therefore, respondent No.3 is proceeded against ex parte. Heard learned counsel for the petitioner and the State. This petition under Articles 226/227 of the Constitution of India has been filed seeking setting aside of the impugned order dated 6.2.2008 (Annexure P-3) passed by AMIT KAUNDAL 2014.12.17 12:45 I attest to the accuracy and authenticity of this document chandigarh CWP No.4573 of 2008 respondent No.1- Deputy Commissioner -cum-Collector, Sirsa in terms of which mutation No.11345, Village Khairpur sanctioned in favour of the petitioner has been reviewed. The petitioner in an open auction held on 7.11.1990 purchased a plot measuring 15 marlas comprised in khasra No.515 min situated in the urban area of Village Khairpur within the municipal limits of Sirsa Town for a sum of Rs.1,60,000/- from the Custodian of the Rehabilitation Department. At the time of auction, the petitioner deposited Rs.40,000/-. Thereafter, the auction was confirmed by the Chief Settlement Commissioner, Haryana. The balance amount of Rs.1,20,000/- was deposited by the petitioner on 6.5.1992. In this manner the petitioner deposited the entire amount of Rs.1,60,000/-. When conveyance deed in respect of the plot was not executed in favour of the petitioner, he made efforts for its execution. He then came to know that the Municipal Council, Sirsa had assailed an order dated 3.10.1994 passed by Assistant Collector, 1st Grade, Sirsa, whereby mutation had been sanctioned in favour of the Custodian of the Rehabilitation Department. The Municipal Council, Sirsa claimed that the property in question belonged to it in view of the Supreme Court judgment passed in the year 1985 according to which the land which had vested in the Custodian came to vest in the Gram Panchayat. Village Khairpur in which the plot in question was situated was under the Municipal limits. Therefore, it was prayed that the mutation be sanctioned in favour of the Municipal Council, Sirsa. 2 AMIT KAUNDAL 2014.12.17 12:45 I attest to the accuracy and authenticity of this document chandigarh CWP No.4573 of 2008 The petitioner on coming to know about the pendency of the appeal before the learned Collector, Sirsa against the order of mutation in favour of the Custodian filed an application for being impleaded as a party. The Sirsa District Employees Cooperative House Building Society Ltd., Sirsa through its President (respondent No.3) also filed an application for being impleaded as a party. It claimed that the plot in question was earlier allotted to it as negotiations were under progress to allot the plot to it. The Collector, Sirsa, vide order dated 22.1.1997 set aside the order dated 3.10.1994 passed by Assistant Collector 1st Grade, Sirsa and it was directed that the mutation regarding plot in question be sanctioned in favour of the Municipal Council, Sirsa. Aggrieved against the order dated 22.1.1997, passed by the learned Collector, Sirsa, the petitioner as well as Custodian of the Rehabilitation Department filed two separate appeals before the Commissioner, Hisar Division, Hisar, which were allowed vide order dated 15.10.1998. The order dated 22.1.1997 passed by the Collector, Sisra was set aside. The effect of the same was that the Commissioner, Hisar Division, Hisar had upheld the order passed by the Assistant Collector Ist Grade, Sirsa in terms of which mutation of the plot in question was in the name of the Custodian of the Rehabilitation Department. Against the order dated 15.10.1998 passed by learned Commissioner, Hisar Division Hisar, no revision was filed 3 AMIT KAUNDAL 2014.12.17 12:45 I attest to the accuracy and authenticity of this document chandigarh CWP No.4573 of 2008 by the Municipal Council, Sirsa and the order passed by learned Commissioner, Hisar Division Hisar. However, the application of respondent No.3 - Sirsa District Employees Cooperative House Building Society Ltd., for its impleadment as a party in the appeal was pending and no order for impleading it as a party during the appeal before the Commissioner, Hisar Division Hisar was passed. The Sirsa District Employees Cooperative House Building Society Ltd. (respondent No.3), therefore, filed a revision petition before the Financial Commissioner, Haryana. During pendency of the revision petition, the Municipal Council, Sirsa reached at a settlement with the Naib Tehsildar (Sales)-cum-Managing Officer, Sirsa of the Rehabilitation Department and agreed to partition the total land measuring 106 kanals 18 marlas. In terms of the settlement, which was reached at one-fourth share of the aforesaid total land fell to the share of Municipal Council, Sirsa and three- fourth share fell to the share of Rehabilitation Department. A dairy report ('roznamcha') dated 14.05.1999 (Annexure P-1) was recorded, which depicts the land measuring 10 marlas comprised in khasra No.515 fell to the share of the Rehabilitation Department. Keeping in view the settlement that was reached at, mutation regarding the total land under the settlement was sanctioned in the name of the respective parties i.e. the Municipal Council, Sirsa and the Rehabilitation Department. The Naib Tehsildar (Sales), Sirsa, accordingly executed a conveyance deed regarding the said plot in favour of 4 AMIT KAUNDAL 2014.12.17 12:45 I attest to the accuracy and authenticity of this document chandigarh CWP No.4573 of 2008 the petitioner on 24.9.1999. Since then the petitioner is in possession of the plot in question. The learned Financial Commissioner, however, entertained the revision petition filed by respondent No.3 - Sirsa District Employees Cooperative House Building Society Ltd. and vide order dated 7.1.2002 set aside the order dated 15.10.1998 passed by the learned Commissioner, Hisar Division, Hisar. In terms of the order dated 15.10.1998, the learned Commissioner, Hisar Division, Hisar, as already noticed, had set aside the order dated 22.1.1997 passed by the Collector, Sisra. The effect of the same was that the Commissioner, Hisar Division, Hisar had upheld the order passed by the Assistant Collector Ist Grade, Sirsa in terms of which mutation of the plot in question was in the name of the Custodian of the Rehabilitation Department. This had again been upset by the learned Financial Commissioner, Haryana. Aggrieved against the order dated 7.1.2002 passed by learned Financial Commissioner, the petitioner filed a writ petition i.e. CWP No.8910 of 2002 titled as Kewal Krishan v. State of Haryana and others in this Court. The petitioner during the pendency of the said writ petition, approached the revenue authorities to sanction mutation of the plot in his favour but since there was a stay passed by this Court in the aforesaid writ petition, the revenue authorities did not enter mutation in favour of the petitioner. The petitioner, then filed an application to vacate the stay order dated 31.5.2002 passed by this Court, 5 AMIT KAUNDAL 2014.12.17 12:45 I attest to the accuracy and authenticity of this document chandigarh CWP No.4573 of 2008 which was vacated on 6.11.2007. It is admitted case between the parties that CWP No.8910 of 2002 filed by the petitioner has since been allowed by this Court vide order dated 11.11.2008 and the order dated 7.1.2002 passed by learned Financial Commissioner, Haryana has been quashed. Besides, the order dated 22.1.1997 whereby learned the Collector Sirsa had allotted the land to respondent No.3 - Sirsa District Employees Cooperative House Building Society Ltd., has also been quashed and set aside. A perusal of the impugned order dated 6.2.2008 (Annexure P-3) would show that the mutation was not sanctioned in favour of the petitioner. According to the Collector Sirsa, in terms of the order dated 7.1.2002 passed by learned Financial Commissioner, Haryana, the land would be deemed to be the property of the Municipal Council, Sirsa. However, now the order dated 7.1.2002 passed by learned Financial Commissioner has admittedly been set aside. Therefore, mutation in respect of the plot in question measuring 15 marlas comprised in khasra in khasra No.515 min situated in the urban area of Village Khairpur, in respect of which conveyance deed has also been executed in favour of the petitioner on 24.9.1999 is liable to be sanctioned in favour of the petitioner. It may also be noticed that in terms of order dated 11.11.2008 passed by this Court in CWP No.8910 of 2002, it was held that manner in which the Deputy Commissioner Sirsa made the allotment in favour of respondent No.3 - Sirsa District 6 AMIT KAUNDAL 2014.12.17 12:45 I attest to the accuracy and authenticity of this document chandigarh CWP No.4573 of 2008 Employees Cooperative House Building Society Ltd., could not be overlooked for the reason that the Deputy Commissioner proceeded to allot the land in favour of the Society despite disapproval conveyed by the State Government vide order dated 1.8.1990. It was observed that but for some vested interest, the Deputy Commissioner could not take any step due to public interest and meant to cause loss of the State exchequer. The following observations in the order dated 11.08.2008 passed by this Court in CWP No.8910 of 2002 titled 'Kewal Krishan v. State of Haryana' are apposite:- “There is indeed no dispute that right from the very inception the subject property was shown as an 'evacuee property' which stood vested in the Custodian Department. No challenge to the ownership rights of the said Department was ever made either by the Gram Panchayat or its successor-in-interest, namely, the Municipal Council, Sirsa. The aforesaid land was sold by the Rehabilitation Department through a public auction. No steps were taken by the Municipal Council or the Gram Panchayat against the said auction also. Based upon the consistent entries in the revenue record and the fact that there was not even whisper against the title of the Rehabilitation Department that the petitioner participated in the auction and turned out to be 7 AMIT KAUNDAL 2014.12.17 12:45 I attest to the accuracy and authenticity of this document chandigarh CWP No.4573 of 2008 the highest bidder who paid the entire bid amount within the stipulated period. The auction was then confirmed and the sale certificate which is a Title-Deed, has also been issued in his favour. The petitioner would, undoubtedly, fall well within the expression of 'bona-fide purchaser'. The petitioner's title is, however, sought to be jeoparsided on the pretext of change of mutation even though mutation does not confer any title. The order passed by the Collector in this regard was nothing but a self-serving device to legitimize his own action of allotment of the subject land to the 9th respondent without any authority of law. In the absence of any challenge to the title of the Rehabilitation Department, the Municipal Council or for that matter the 9th respondent, could not claim any right or interest in the subject property merely by getting the same mutated in favour of the Municipal Council.” Therefore, it is quite evident that the rights of the petitioner stand settled by the aforesaid order and the mutation of the land/plot in question is to be sanctioned in his favour which in any case does not confer title and it is the conveyance deed that confers title on him. 8 AMIT KAUNDAL 2014.12.17 12:45 I attest to the accuracy and authenticity of this document chandigarh CWP No.4573 of 2008 In view of the aforesaid facts and circumstances, the writ petition is allowed and the order dated 6.2.2008 (Annexure P-3) passed by the Collector, Sirsa is set aside and quashed and a direction is issued to sanction mutation of land measuring 15 marlas comprised in khasra No.515 min situated in the urban area of Village Khairpur within the municipal limits of Sirsa Town in favour of the petitioner. [ S.S.Saron ] Judge 09.10.2009 sd/Amit/A.Kaundal 9 AMIT KAUNDAL 2014.12.17 12:45 I attest to the accuracy and authenticity of this document chandigarh