CWP No. 4719 of 1987 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 4719 of 1987 Date of decision:- 21.01.2011 Smt. Shanti Devi w/o Sh. Thakur Ram Nath ....Petitioner Vs. The Financial Commissioner and others ....Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA ****** Present:- Mr. Gaurav Chopra, Advocate, for the petitioner. Mr. P.S. Thaira, Addl. A.G. Punjab. Mr. Kasturi Lal, Advocate, for respondent No.4. **** Challenge in the present petition is to the order passed by the Learned Financial Commissioner, exercising the powers of the Central Government, on 26.05.1987 inter-alia holding that Sarwan Kumar i.e. Respondent No.4 is owner of the property measuring 2 Kanals having purchased in an open auction and that the petitioner has no claim over 5 Marlas of land said to be taken in possession by Sarwan Kumar. The brief facts, out of which present writ petition arises is that Khasra No.50, measuring 5 Kanals 17 Marlas, situated in village Sutehri, Tehsil and District Hoshiarpur, was recorded in the revenue record as ownership of the Central Government. The Punjab Wakf Board claimed to be owner of the same. The petitioner claimed to be tenant over 2 Kanals of land under the Punjab Wakf Board. The dispute, whether Khasra No.50 is an 1 CWP No. 4719 of 1987 evacuee property or vests in Wakf Board, came to be decided on 07.08.1979 vide order Annexure P4when it was held that Khasra No.50, measuring 5 Kanals 17 Marlas is under the ownership of the Central Government being an evecuee property. A perusal of the order shows that Wakf Board and Mahant Sewa Dass has filed revision petition before the Assistant Custodian General, with powers of Custodian General, disputing the vesting of land measuring 5 Kanals 17 Marlas in the Custodian. The Wakf Board has inter alia prayed that land comprising Khasra No.50 be released in its favour and sale made in favour of respondent Sarwan Kumar (now respondent No.4) be quashed being illegal. Learned Custodian General held that the Muslims remained owner of the land in dispute throughout and continued to enjoy their rights till partition of the country and on their migration, the land vested in the Custodian by operation of law. Wakf Board has not placed on record any material to prove that the land in question was dedicated by Muslim owners for use as public 'Takia' and therfore, the land involved cannot be treated as Wakf property. It was concluded as under:- "In this view of the matter, I am inclined to agree with the findings of the Assistant Custodian, referred to above, and hold that the land in question is an evacuee property for all intents and purposes and the petitioners have no right, title or interest in it. The land being an evacuee property was rightly acquired by the Central Government under Section 12 of the Displaced Persons (C&R) Act, 1950 and disposed of as such by the Managing Officer in favour of the respondent. It may be noticed that on 28.07.1977, the property measuring 2 Kanals out of the land measuring 5 Kanals 17 Marlas, 2 CWP No. 4719 of 1987 was put to auction by Managing Officer in which Sarwan Kumar (respondent No.4) was found to be the highest bidder. Against the said auction, the objections were filed by the Wakf Board and Sewa Dass. The objections filed against the auction were accepted by the Settlement Commissioner on 03.10.1977. Vide order Annexure P-4A, the appeal filed by respondent No. 4 was accepted on 24.04.1978 and the case was remanded to Settlement Commissioner to re-examine the case and interfere with the sale, only if there is some other material irregularity in respect of sale. It is not in dispute that thereafter, the Settlement Commissioner has confirmed auction sale on 16.05.1978. The sale certificate was issued in favour of Sarwan Kumar. Consequently, the possession of 2 Kanals of land was delivered to respondent No.4 by Tehsildar (Sales) on 16.10.1979. The report of delivery of possession, including removal of wall, has been placed on record as Annexure P-6 dated 26.11.1979 and Annexure P-7 dated 30.11.1979. The Settlement Commissioner vide order dated 04.03.1980, Annexure P-9, directed the Tehsildar-cum-Managing Officer to restore possession of 5 Marlas, possession of which was taken from the appellant after demolishing his wall in pursuance of confirmation of sale in favour of Sarwan Kumar. The said order dated 04.03.1980 was challenged by respondent No.4 before the Chief Settlement Commissioner. The learned Chief Settlement Commissioner, dismissed the revision filed by respondent No.4 on 12.06.1980. The said order was challenged by respondent No 4 before the Learned Financial Commisioner 3 CWP No. 4719 of 1987 exercising the powers of Central Government. The said revision stands allowed by the learned Financial Commisioner vide order dated 26th May, 1987, Annexure P-17, the order impunged in the writ petition. On the other hand, the petitioner filed an application for purchase of land measuring 2 Kanals in terms of the Government policy being unauthorized occupant. The said application was rejected by the Naib Tehsildar-cum- Managing Officer, Hoshiarpur, on 26.11.1979. It appears that Settlement Commissioner allowed application of the petitioner for purchase of land on 20.04.1979 @ Rs.80/- per square yard. The property measuring 644 square yard was ordered to be transferred @ Rs.36/- per square yard i.e. Rs.23,200/- by Naib Tehsildar-cum-Sales Officer vide order dated 02.07.1980. In a revision against the said order, the learned Chief Settlement Commissioner vide its order dated 05.03.1981 reduced the price @ Rs.20/- per square yard. The Petitioner filed a revision petition aggrieved against the order passed by the Chief Settlement Commissioner dated 05.03.1981. The said revision was also taken up for decsion alongwith revsion filed by Respondent No 4 and decided by the learned Financial Commissioner vide order dated 26.05.1987, Annexure P-17. The petitioner claimed that 5 Marlas of land, possession of which has been taken by respondent No.4, is out of the land in possession of the petitioiner and that the petitioner is entitled to allotment of such land being unauthorized occupant in terms of the Government policy. Therefore, the order passed by the learned Financial Commissioner is not sustainable. 4 CWP No. 4719 of 1987 Learned Financial Commissioner in the impugned order found that the land has been transferred in favour of the petitioner during the pendency of the stay granted by his learned predecssor Financial Commissioner on 31.07.1980. It was also held that the petitioner has participated in the auction conducted in favour of Sarwan Kumar and no objection had been filed by him against the sale. It is further held that Sarwan Kumar has purchased 2 Kanals of land, possession of which has been given to him under the rules, therefore, no area out of the land sold to him could have been subsequently withdrawn to facilitate its transfer to Ram Nath. Sarwan Kumar had become owner of the property purchased by him in open auction and the property having gone out of the compensation pool, no area out of it could have been withdrawn to accommodate Ram Nath. Learned Financial Commissioner, however, condoned delay of filing of application by the petitioner for allotment of land being in unauthorized possession. Having heard learned counsel for the parties, I do not find any patent illegality or irregularity in the order passed by the learned Financial Commissioner, which may warrant any interference by this Court in exercise of its writ jurisdiction. It is not disputed that the petitioner participated in auction conducted on 28.07.1977. It was the Punjab Wakf Board and Mahant Sewa Dass, who filed objections to such auction. After the objections were dismissed, respondent No.4 has been delivered possession of 2 Kanals of land. The petitioner claims to be unauthorized occupant on 2 Kanals of land out of total land measuring 5 Kanals 17 Marlas. 5 CWP No. 4719 of 1987 The respondent No.4 having purchased land measuring 2 Kanals out of 5 Kanals 17 Marlas, is entitled to possession of such land in preference to the unauthorized occupant, such as the petitioner. The argument of learned counsel for the petitioner that petitioner has not participated in auction in view of the representation of the Naib Tehsildar vide communication Annexure P-8 that the property auctioned in favour of Sarwan Kumar is outside the boundary wall of the petitioner, is again not tenable. The said argument has been considered by the learned Financial Commissioner as well. Communication relied upon by the petitioner is dated 04.07.1980 i.e. almost three years after the auction, in which respondent No.4 was the highest bidder. Any communication after the auction is of no consequence and has been rightly not taken into consideration by the learned Financial Commissioner. The issue regarding price to be charged from the petitioner in respect of land allotted to him is not an issue before this Court. In view of the above, the order passed by the learned Financial Commissioner, exercising the powers of Central Government, does not warrant any interference in writ jurisdiction of this Court. Dismissed. (HEMANT GUPTA) 21.01.2011 JUDGE ajp 6