Civil Writ Petition No. 4231 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 4231 of 1984 Date of decision:- 16.1.2009 Teja Singh and another ...petitioners Versus The State of Punjab and others ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Neeraj Sharma, Advocate for petitioner No.1. Mr. N.K. Verma, Advocate for petitioner No.2. Mr. Parveen Chander Goyal, Addl.A.G., Punjab for respondents No. 1 to 4. Mr. Deepak Thapar, Advocate for respondent No.5. RANJIT SINGH J. Challenge in the writ petition is to an order dated 26.11.1979 passed by Chief Sales Commissioner annexed with this petition as Annexure P-5 and order dated 23.1.1979 passed by Settlement Commissioner and so also order dated 29.8.1984 passed by Sales Commissioner, annexed with the petition as Annexure P-6. Noticing in brief, the facts are that the land measuring 76 kanals 2 marlas situated in village Aslana Tehsil Samrala District Ludhiana was an evacuee land,which came to be owned by the State Government, after purchase thereof from the Central government. Under the package deal, this land was put to restricted auction to the Civil Writ Petition No. 4231 of 1984 2 harijans and accordingly was purchased by Bhag Singh-respondent No.5 in the year 1967 for a sum of Rs. 7000/- Respondent No. 5 paid this amount in instalments and became the owner of the land. Bhag Singh appointed one Bishan Singh, respondent No.6, as his attorney through a registered deed dated 24.10.1968 to manage this land purchased by him. Respondent No.5 also gave full power to Bishan Singh-respondent No.6 to sell or mortgage the property in this power of attorney. Copy of the power of attorney is annexed with the petition as Annexure P-1. Bishan Singh-respondent No.6 sold the land in dispute to the petitioner being attorney of Bhag Singh (respondent No.5). Registered sale deed dated 31.1.1978 for an amount of Rs. 9000/- was executed. The mutation on the basis of sale deed was sanctioned in favour of the petitioners by the Revenue Officer. Petitioners were put in possession of the land and have continued to be in possession of the same till date. Names have also been entered in Jamabandi for the year 1982-83 and the petitioners are shown in cultivating possession of the land. Some time in the year 1978 Bhag Singh-respondent No.5, filed an application before the Settlement Commissioner for restoration of possession of the land in dispute to him. The said application is not on record. The Settlement Commissioner on 31.8.1978 dismissed the said application by observing that Bhag Singh has not been dispossessed by Tehsildar or department and as such he cannot be restored back the possession of a land. Settlement Commissioner further observed that respondent No.5 would have to seek a remedy in the civil Court under ordinary law. This order was passed on 31.8.1978. Civil Writ Petition No. 4231 of 1984 3 Another application was again moved before the Settlement Commissioner making identical prayer without referring to the order passed on the earlier application which stood declined on 31.8.1978. This time, Settlement Commissioner vide his order dated 23.1.1979 put Bhag Singh, respondent No.5 in possession of the land by dispossessing Bishan Singh and the petitioners. The petitioners remained unsuccessful before the Chief Settlement Commissioner in the revision which they filed. When the matter went to Tehsildar (Sales) Samrala for dispossessing the petitioner he referred the case back to Sales Commissioner by observing that order passed by the Settlement Commissioner cannot be implemented as Bhag Singh was in possession of the property for 10 years and there was no provision in law to put the land again to auction under the Package Deal Property Act. Ignoring this stand of Tehsildar (Sales), Commissioner, Samrala ordered the ejectment of the petitioner on 29.8.1984. That is when the petitioner filed the present writ petition pleading that he was a bona fide purchaser of the land from Bishan Singh-respondent No.6, by means of two registered sale deeds and was in peaceful possession of the same. While issuing notice of motion in this case, the dispossession of the petitioner was stayed on 18.9.1984. Writ petition was ultimately admitted on 1.2.1985 and the interim order was continued. The writ petition has now come up for hearing. Respondent No.5 has filed a written statement. He has raised few preliminary objections in regard to the maintainability of a writ petition. It is stated that the order passed by Chief Sale Civil Writ Petition No. 4231 of 1984 4 Commissioner has become final and as it was not challenged before any higher authority. It is also pointed out that the petitioner had filed a civil suit on 17.12.1979 in the Court of Sub Judge, Samrala for permanent injunction restraining the respondents from interfering in possession of the petitioners over the land in dispute. It is stated that the civil suit is for almost the same relief as sought in the writ petition. As per the reply, petitioner No.1 also filed an application under Order 39 Rules 1 and 2 for grant of ad-interim injunction till disposal of the suit and the parties were directed to maintain status quo vide order dated 18.2.1980. This exparte injunction order was statedly modified to the extent that respondent No.5 had every right to take possession of the land through proper court order. Respondent No.5 had also made a statement that he would dispossess the petitioner legally and not forcibly. The suit was accordingly decided on the basis of this compromise. Yet another suit was filed, which was also disposed of similarly. To explain this, the counsel for the petitioner would say that he had to file second suit when the order in revision was passed against the petitioner. It is claimed in the reply that the respondent has already taken possession and report in this regard is annexed with the petition as Annexure R-5/7. It is accordingly pleaded that the petitioners have concealed these facts and as such writ petition is liable to be dismissed. Controverting the allegation on merits, it is pleaded that respondent No. 6 is maternal uncle of the petitioner and he has managed the Power of Attorney from respondent No.5 though he was not appointed as Attorney. The submission that the petitioner Civil Writ Petition No. 4231 of 1984 5 could have filed a second application once the earlier was rejected is denied as incorrect to maintain that such an application was maintainable and could be filed. Otherwise the order impugned in the writ petitions are stated to be justified in law and otherwise, and accordingly it is prayed that the writ petition be dismissed. The petitioners have filed replication to the reply filed on behalf of respondent No.5. They have refuted the preliminary submission made in the reply. The filing of the civil suit is admitted but it is stated that no adverse inference can be drawn from this fact. The plea raised in the reply on merits are otherwise controverted. It is emphasized that respondent No. 5 have not filed any proceeding or a civil suit seeking declaration that the Power of Attorney which he gave in favour of respondent No.6 was false or fictitious. In fact, counsel for the petitioners points out that this Power of Attorney was never withdrawn by respondent No.5. It is reiterated that the second application was not maintainable. The right of the respondent to seek possession of the property in the manner it is sought to be done, is statedly illegal, pleads the counsel for the petitioner. Heard, learned counsel for the parties. Though there is no indication from the record in regard to the authority under which this application was filed by respondent No.5, but learned counsel appearing for the State-respondent states before me that such an application may be maintainable under Section 7 of The Punjab Package Deal Properties (Disposal) Act, 1976 (hereinafter referred to as the Act). Section 7 regulates the power to vary or cancel leases or to transfer any package deal property, which reads as under: Civil Writ Petition No. 4231 of 1984 6 “ 7. Power to vary or cancel leases or transfer or any package deal property:- (1) Notwithstanding anything contained in any other law for the time being in force but subject to any rules that may be made under this Act, the Tehsildar (Sales) or Naib-Tehsildar (Sales) may cancel any transfer or terminate any lease or amend the terms or any transfer or lease under which any package deal property is held or occupied by a person; Provided that no transfer shall be cancelled, lease terminated or the terms of any transfer or lease amended unless such an action is permissible under the terms and conditions of the instrument of transfer or lease, as the case may be, and unless an opportunity of showing cause has been given to the transferee or lessee, as the case my be. (2) Where any person -- (a) has ceased to be entitled to the possession of any package deal property by reason of any action taken under sub-section (1), or (b) is, in the opinion of the Tehsildar (Sales) or Naib Tehsildar (Sales) otherwise in unauthorized possession of any package deal property; he shall, after has been given a reasonable opportunity of showing cause against his eviction from such package deal property, surrender possession of the property on demand being made in this behalf by the Tehsildar (Sales) or Naib-Tehsildar (Sales) or by any other Civil Writ Petition No. 4231 of 1984 7 person duly authorised by the Tehsildar (Sales) or Naib- Tehsildar (Sales), as the case may be. (3) If any person fails to surrender possession of any package deal property on demand made under sub- section (2), the Tehsildar (Sales) or Naib-Tehsildar (Sales) may, notwithstanding any thing to the contrary contained in any other law for the time being in force, eject such person and take possession of such property and may, for such purpose, use or cause to be used such force as may be necessary.” Section 7(1) leaves the power with the Tehsildar (Sales) or Naib Tehsildar (Sales) to cancel any transfer or terminate any lease or amend the terms of transfer of lease under which any package deal property is held or occupied by a person. Mr. Thapar, would rely upon Section 7 (2) which provides that when a person has ceased to be entitled to the possession of any package deal property by reasons of any action taken under sub- Section (1) and is found to be otherwise in unauthorized possession of such property in the opinion of Tehsildar or Naib Tehsildar then he can be directed to surrender possession of the property on demand being made in this behalf by the Tehsildar (Sales) or Naib Tehsildar (Sales). I have not been able to appreciate how the provisions of this Section would apply to the situation at hand in this case. The direction to evict a person from package deal property or to surrender possession under Section 7 (2) can only be issued when under Section 7(1) his lease, auction etc. is either cancelled or terminated Civil Writ Petition No. 4231 of 1984 8 or the terms are amended. It is only when an order under Section 7 (1) is passed by Tehsildar (Sales) or other competent authority that an authority would have power to order dispossession or to take back the possession of any such property, which is standing on the name of the concerned person on account of sale under the Act. Apparently, the provision of Section 7 are not attracted to the facts and circumstances of the present case. The sale of the property was in favour of respondent No. 5. There is no reason or infirmity on his part for which this sale in his favour was required to be cancelled or would be cancelled or any terms were to be amended. Rather it is he who has filed this application for taking back the possession pleading that he has been wrongly dispossessed by respondent No.6. The plea of respondent No.6 and that of the petitioners is that there was registered Power of Attorney in favour of respondent No.6 which authorized him to sell this property. The petitioners are stated to be bona fide purchasers, for a consideration. There is a registered deed in favour of the petitioner. Respondent No.5 never took any action to either challenge the sale deed or the Power of Attorney on the basis of which respondent No.6 has executed the sale deed in favour of the petitioner on his behalf. I am clear in my mind that the provisions of Section 7 are not attracted to the facts and circumstances of this case. This may find support from the view taken by this Court in the case of Rattan Singh versus Banta Singh and others 1990 PLJ 332. It is clearly held in this case that the notice under Section 7(2) can be issued only in respect of property forming part of package deal property and that too after allotment of that property is cancelled by Tehsildar (Sales) or by Naib Tehsildar Civil Writ Petition No. 4231 of 1984 9 (Sales) as mentioned in sub Section (1) of Section 7. This was a case where passage was allowed as a result of compromise by Sales Commissioner. It was observed that such an order is not the one which is passed under the Act and which can be implemented under Section 7. It is further observed that since the order was not passed under any provision of the Act, jurisdiction of the civil Court challenging that part of the order would not be barred under Section 16. Similar appears to be the situation in the present case. The issue that will arise in the present case is whether the sale deed which has been executed by respondent No.6 in favour of the petitioner would be open to challenge by invoking provisions of Section 7 of the Act. The way the jurisdiction has been exercised would lead to setting aside of sale by the authority exercising jurisdiction under Section 7 of the Act. Only the allotment in favour of Respondent No. 5 could be challenged under Section 7. The bar created by Section 16 of the Act would also apply to those cases where any order is made under Section 7 (1) of the Act and is within the jurisdiction of the authority. To challenge the sale deed, respondent No.5 would be well within his right to file a civil suit on the ground that the Power of Attorney on the basis of which the sale deed was executed is a false or fake one. Sale executed by respondent No.6 on the basis of Power of attorney can not be challenged under Section 7 of the Act. It apparently would not be in the scope of the jurisdiction under Section 7 to say that the person who has sold this land under the Act has been dispossessed on the basis of the sale deed. The dispossession, if any, or passing of Civil Writ Petition No. 4231 of 1984 10 possession to a person who has purchased this property would be by virtue of sale deed not by any operation of provisions of the Act. The order impugned, therefore, apparently are without jurisdiction and could not be sustained. To be fair, Mr. Thapar, counsel for the respondent fairly conceded before me that it will not be within the powers of Tehsildar or Naib Tehsildar to give a finding that the Power of Attorney was forged or a sale deed was not genuine. That finding can only be recorded and made by civil court if approached in this regard. Leaving such a power to Tehsildar or Naib Tehsildar on the basis of provisions of Section 7 would, in my view, amount to doing violation to the said provisions of the Act. Section 7 apparently is meant for altogether a different situation and once the property sold under the Act has taken effect, the civil rights of the parties concerned would be regulated by a normal provisions of the civil law. It is only the rights on account of the package deal property that may be opened to be dealt with under the said Act and not the normal civil rights that may have to be adjudicated between the parties. I am thus of the view that the impugned order cannot be sustained and the same is set aside. Even if the possession of the property has been handed over to respondent No.5, that in my view would not make any difference. The possession which has been taken without any authority or law would needed to be restored back to the petitioners. If respondent No.5 has any grievance against the sale deed or against the Power of Attorney on the ground that they were forged documents, it would be opened for him to challenge the sale deed as well as the Power of Attorney by filing a civil suit. I am Civil Writ Petition No. 4231 of 1984 11 clear that bar created by Section 16 under the Act would not stand in way of the petitioners, in case they decide to challenge the sale deed as well as the Power of Attorney on any of the grounds that may be available to him. The writ petition is accordingly, allowed. The impugned order, Annexures P-4, P-5 and P-6, are hereby quashed and set aside. The petitioners would be entitled to all the consequential reliefs. There shall be no order as to costs. January 16, 2009 ( RANJIT SINGH ) rts JUDGE