CWP No.899 of 1992 (O&M)) and connected case [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (I) CWP No.899 of 1992 (O&M) Date of Decision: 17.08.2011 Romesh Chand Jain son of Shri Arey Dass Jain, resident of Civil Lines, Rohtak and others ... Petitioners Versus The Union of India, through the Secretary to the Government of India, Rehabilitation Department, New Delhi and others ... Respondents (II) CWP No.5960 of 1991 (O&M) Ramu Hooda son of Shri Ram Rattan, resident of near Subhash Talkies, Rohtak ... Petitioner Versus State of Haryana and others ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Mr. Sudhir Mittal, Advocate, for the petitioner. Mr. S.S. Goripuria, Addl. AG, Haryana, for the respondents. ***** 1. Whether reporters of local papers may be allowed to see the judgment? NO 2. To be referred to the reporters or not? YES 3. Whether the judgment should be reported in the digest? YES K. KANNAN, J. (Oral) 1. Both the writ petitions challenge the orders passed by the Financial Commissioner (Revenue)-cum-Secretary to Government of Haryana arrayed as respondent No.3 annulling the sale made already in favour of the respective vendors by the Custodian under the Administration of Evacuee Property Act, CWP No.899 of 1992 (O&M)) and connected case [2] 1950 (for short, 'the 1950 Act'). The petitioners in both the cases are the respective purchasers of the rights of three persons namely Hari Gopal, Ram Chand and Chuni Lal, who were the original transferees from the Custodian under the 1950 Act. 2. The admitted case is that the properties represented 2/3rd share that was held by the aforesaid three persons as permanent lessees. The ownership in the property was claimed by one Capt. Nuru-ul-din and after the partition, the proprietary right of 2/3rd share become vested in the custodian under the 1950 Act. The Assistant Custodian, Jullundur vide his order dated 26.05.1961 (Annexure P-3) held that the aforesaid three persons were entitled to get 2/3rd share of the proprietary right in recognition of the right under the perpetual lease. The Assistant Settlement Officer conveyed to the Regional Settlement Commissioner the approval of the Custodian General for sale of the proprietary rights in 2/3rd share to the aforesaid three persons under Section 10(2) of the 1950 Act at a price of `3373.33. It must be noticed that the possessory rights were already with the aforesaid three persons. In pursuance of the sale by an indentures dated 03.02.1969, the property had been sold to the aforesaid three persons at the price mentioned already in the letter of the Assistant Settlement Officer. This property came to be subsequently sold in favour of the present petitioners. 3. The Administration of Evacuee Property Act, 1950, which contained definition of 'evacuee property' also made provisions for vesting of rights of an evacuee in respect of such evacuee property. The 1950 Act gave place to the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short, 'the 1954 Act'). The provisions for acquisition in favour of the CWP No.899 of 1992 (O&M)) and connected case [3] Central Government was in respect of evacuee property for the public purpose of rehabilitation. The 1954 Act retained the definition of 'evacuee property' as contained under the 1950 Act through Section 2(c) and created a compensation pool under Section 14, which could be in terms of cash or property and could be used for the benefit of displaced persons. The 1954 Act also contains elaborate provisions with rules supplementing them, identifying the class of persons to whom such property could be transferred if a property was acquired through a notification contained under Section 12 of the 1954 Act. The 1950 Act vested in the Custodian only such rights as the evacuee had, while the 1954 Act made possible the acquisition of all the rights in the evacuee property with the Central Government. By reading both the enactments together the Custodian, by the vesting that had taken place under Section 8 of the 1950 Act, after notification had a power to sell such right as he had, under Section 10(2)(o) of the 1950 Act. The said section insofar as relevant is reproduced: “10. Powers and duties of the Custodian generally. - (1) Subject to the provisions of any rules that may be made in this behalf the Custodian may taken such measures as he considers necessary or expedient for the purpose of securing, administering, preserving and managing any property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do al acts and incur all expenses necessary or incidental thereto. (2) Without prejudice to the generality of the provisions contained in sub-section (1), the Custodian may, for any of the purposes aforesaid, - CWP No.899 of 1992 (O&M)) and connected case [4] (a) to (n) x x x x x (o) transfer in any manner whatsoever any evacuee property, notwithstanding anything to the contrary contained in any law or agreement relating thereto;” It could be seen that a property that was sold by the Custodian was not in any way inconsistent with the scheme of the 1954 Act. The acquisition that could take place under Section 12 of the 1954 Act could be only in respect of evacuee property that remained as such and which had not been transferred under Section 10 by the Custodian. In this case, when the Assistant Custodian had sold the property after the concurrence of the Custodian General, there was nothing that remained under the 1954 Act for an acquisition by the Central Government. Indeed, there was no notification under Section 12 acquiring the property, which had been sold to the three persons referred to above. 4. The impugned order came to be passed only when the Financial Commissioner held under the 1954 Act that the price that had been fixed and sold by the Custodian was inadequate and brought out in his order by reference to several sales of property in the village showing the average sale price at the auctions fetched `54.37 per sq. yard and the price at which the property was sold to the petitioners/vendors had been @ `10/- per sq. yard only. He, therefore, redetermined the price and held that the minimum price should have been `40/- per sq. yard and the amount be paid within three months, failing which the steps must be taken to resume the property and action be taken according to the rules. 5. This order was challenged in two writ petition one at the instance of aforesaid three persons being vendors and another at the instance of Ramu CWP No.899 of 1992 (O&M)) and connected case [5] Hooda, who is petition in CWP No.5960 of 1991. The writ petitions were allowed and the matter was remitted to the Financial Commissioner again for redetermination of the price. Strangely for the petitioners, the Financial Commissioner chose to set aside the sales finding that the Custodian did not have a power to sell the property under Section 10 of 1950 Act. After coming into force the 1954 Act and still later by the Punjab Package Deal Properties (Disposal) Rules, 1976 the rights have been transferred from the Central Government to the State Government. As regards the orders passed by the Financial Commissioner on remand, which are the subject of challenge before this Court in both the writ petitions, I have already explained in the above paragraphs that the Custodian held the right under Section 10 to transfer the property which stood vested in him as such Custodian in respect of the evacuee property and that right was not lost by coming into force the 1954 Act. This is all the more so, when there there was no notification made under Section 12 of the 1954 Act before the date when the sale was effected by the Custodian. The impugned order suffers also from another vice of going beyond the directions contained in the remand passed by the High Court in the writ petitions. There was no scope for Financial Commissioner to go into the question of whether the Custodian had a right to sell the property or not. The order canceling the same was, therefore, clearly untenable. 6. The grievance of the petitioners as expressed in the writ petitions are that what was sold was not a freehold in the hands of the Custodian but only the 2/3rd share in the proprietary rights of an evacuee with the lease holders' right in respect of same share having already stood with possession in favour of the aforesaid three persons. The price could not have been, CWP No.899 of 1992 (O&M)) and connected case [6] therefore, at par with price offered for freehold land to be comparable for its application against the vendors. However, at the time of arguments, the learned counsel appearing for the petitioners states that he will not make issue of the same and would be ready to pay the same price as determined already by the Financial Commissioner originally on 05.05.1977 and they would be willing to pay the said amount. The petitioners shall be liable to pay the additional amount of `30/- per sq. yard being the additional amount over the price that was fixed for the property at the time of sale in the year 1968 and the same shall be paid with interest @ 9% per annum from 05.05.1977 till the date of payment. 7. The impugned order is set aside and the rights of the petitioners are affirmed subject to the payment of sum referred to above within a period of 12 weeks from the date of receipt of certified copy of the order. If there is default in making such payment, the authorities will be competent to resume the property for disposal in accordance with law. The counsel for the State Mr. S.S. Goripuria, states that the authority competent to receive the sum shall be the Financial Commissioner (Revenue), Government of Haryana. 8. The writ petition is disposed of on the above terms. AUGUST 17, 2011 ( K. KANNAN ) Rajan JUDGE