IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3696 of 1988 Date of decision : 15.10.2010 Daya Singh and another … Petitioners Versus State of Haryana and others …Respondents Coram: Hon’ble Ms.Justice Ritu Bahri Present: Mr.H.N.Mehtani, Advocate for the petitioners. Mr.S.S.Goripuria, Deputy Advocate General, Haryana. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Ritu Bahri, J. Petitioners have sought a writ of mandamus, quashing the impugned order dated 16.3.1988 (Annexure P-3). The petitioners along with their father Sheo Ram son of Data Ram were in cultivating possession of evacuee agricultural land, measuring 351 Kanals and 12 Marlas including the land in dispute situate in village Nigana Kalan, Tehsil and District Bhiwani as tenants since the year 1949. The said land was previously owned by some Muslims who migrated to Pakistan consequent upon the partition of the country in the year 1947. After the partition, the land measuring 351 Kanals 12 marlas including the land in dispute became evacuee agricultural property and vested in the Custodian of Evacuee Property under the laws framed by the erstwhile State of Punjab and then under the Central Act known as the Administration of Evacuee Property Act, 1950 ( in short the ‘Act’). On the enforcement of the Displaced Persons (Compensation and Rehabilitation) Central Act 1954, the Evacuee Properties including the CWP No.3696 of 1988 land in dispute were acquired by the Central Government under Section 12 of the Act and thus, became a part of the compensation pool. As per package deal between the State of Punjab and the Central Government, the Govt. of Punjab purchased all the surplus un- allotted rural and evacuee properties including the land in dispute from the Central Government in April, 1961. On the re-organisation of the Punjab State into two States of Punjab and Haryana on 1.11.1966, the land in dispute became the exclusive property of the State of Haryana. In the year 1962, State of Punjab announced a policy through press note to enable the occupants of un-allotted rural agricultural land, to apply to the respective Tehsildar (Revenue) for the transfer of the land in their possession from Kharif 1960 or earlier by certain date for the purchase of the land at reserved price. The State of Punjab framed certain rules for the disposal of the surplus rural evacuee properties acquired by it through the ‘Package Deal’. These rules were followed by the State of Haryana also. The validity of the ‘Package Deal’ has been upheld by a Division Bench of this Court in the judgment of Bishan Singh and others Vs. Chief Settlement Commissioner and others, 1973, P.L.J. 183. The petitioners’ father died in the year 1955 and the revenue authority entered the name of Shri Subh Ram being the head of the family in cultivation possession of the said land in the khasra girdawari. The petitioners’ brother Subh Ram was allotted land measuring 118 Kanals 0 Marla on his application maintainable under the 1962 Press Note. The petitioners also made an application for allotment of land in their names but the same was rejected by the Tehsildar being time barred. 2 CWP No.3696 of 1988 Aggrieved by the order of Niab Tehsildar (Sales), the petitioners preferred an appeal before the Authority Chief Settlement Commissioner, which was dismissed vide his ex parte order dated 1.3.1967. Vide order dated 5.4.1967, the authority Settlement Commissioner rejected the appeal on the grounds that it was not made in time. The petitioners filed an appeal before the Board and the Board vide its order dated 30.10.1967 (Annexure P-1) allowed the claim of the petitioners and the sale made to Ram Sarup and Ghisa was set aside with a direction that the land be transferred to the petitioners on payment of its reserved price. The petitioners were directed to appear before the Tehsildar (Sales), Hissar on 20.11.1967. In compliance of the said order, the Tehsildar accepted the reserved price and the land was transferred to the petitioners-Daya Singh and Dhana Singh vide order dated 29.4.1968 and conveyance deed was issued in their favour on 23.12.1968. Thereafter, one Shri Inder Singh filed a revision petition against the order of Tehsildar dated 29.4.1968 allowing transfer of the land in dispute. This revision petition was dismissed vide order dated 10.11.1972 holding that the Tehsildar had only implemented the orders of Chief Settlement Commissioner. Aggrieved by the said order, Shri Inder Singh filed a petition under Section 33 of the Act. The Deputy Secretary (Rehabilitation) set aside the order of transfer of the land in dispute in favour of the petitioners vide order dated 24.1.1974. This order was challenged by the petitioners by filing CWP No.1876 of 1975. The said writ petition was dismissed as withdrawn on 2.6.1975 by giving opportunity to the petitioners to be heard by the competent authority. After a gap of 12 years, respondent No.2 summoned 3 CWP No.3696 of 1988 the petitioners for 29.1.1988 and vide its order dated 16.3.1988 (Annexure P-3) held that the petitioners were not entitled to the benefit of transfer of the land in dispute and this land be retrieved and disposed of in accordance with the Govt. rules/instructions. Mr.H.S.Mehtani appearing for the petitioners has argued that order dated 30.10.1967 (Annexure P-1) whereby the Chief Settlement Commissioner had directed that the land be transferred to the petitioners on payment of reserved price, had attained finality. No appeal has been filed against this order. In compliance of this order, the Tehsildar (Sales) after accepting the reserved price of Rs.5482/- transferred the land vide order dated 29.4.1968. The conveyance deed was also issued in favour of the petitioners on 23.12.1968. Mr.Mehtani counsel for the petitioners has referred to page 38 of the paper book where the Joint Secretary (Rehabilitation) has observed that Shubh Ram, brother of the petitioner was in cultivating possession of the land measuring 133 kanals and 7 marlas. The name of the petitioners were corrected in Kharif 1966 and their brother was separately transferred other land on account of his cultivating possession. Hence, this correction in khairf 1966, to prove that petitioners inherited this possession from their father who died in the year 1955 and the khasra-girdawari was corrected in the year 1966. The fact that the Niab Tehsildar (Sales) vide order dated 30.12.1965 had rejected the application of the petitioners for purchase of land being time barred, proves that petitioners had exercised their right by filing the appropriate application. As per policy of the Govt., total holding of the petitioners could not be 5 standard acres of land. 4 CWP No.3696 of 1988 Mr.Mehtani has argued that since the petitioners along with his brother, Shubh Ram were in cultivating possession of 350 kanals which came from their father, the total land transferred to them as per Tehsildar, is still does not exceed 5 standard acres. Therefore, they fulfill the condition according to the Govt. Policy. He has referred to para 11 at page 44 of the order (Annexure P-3) and has contended that the appeal has been allowed on two grounds that application was not filed within time and the petitioners were not in cultivating possession as required by the Press note 1962. He has further referred to order dated 16.1.1967 (Annexure P-4) which is reproduced as under:- “During my visit to Hissar. It was brought to my notice that some old tenants of Siwani and adjoining villages had been cultivating evacuee land for ten years or so, but some of them had failed to apply for the transfer of their lands to them. On compassionate grounds I had decided after consulting Revenue Minister that the cases of such tenants should be examined on merits and when it has been established that they had, in fact, been cultivating evacuee land before 1960 then they should be allowed to purchase them at reserve price. On assessing their claims, cultivation by a brother may be treated as the cultivation of the tenants. The above press note makes it very clear that the department was keen on compassionate ground to make available land for sale to the tenants on merit. The only condition to be established was that they were in possession before 1960. Cultivation by the brother of the petitioners was to be treated as cultivation of the tenants. This press note was specifically in relation to old tenants of Siwani and adjoining villages of Hisssar. Learned counsel argued that intention of the press note was to rehabilitate the old 5 CWP No.3696 of 1988 tenants who were in cultivating possession before 1960 and the benefit was to be given if they have failed to apply for the transfer of the land in time. Learned counsel further argued that all the conditions for purchase of the land on reserved price have been fulfilled by the petitioners. It has also been observed in the impugned order at page 38 of the paper book that the khasra-girdawari was corrected in favour of the petitioners in Kharif 1966. He prays that as per press note (Annexure P-4), application could be made late and once the cultivating possession has been observed in the order at page 38, there was no reason with the authority to pass the order dated 16.3.1988 (Annexure P-3) and retrieve the land from the petitioners and giving direction for disposal in accordance with Govt. rules/ instructions. Mr.Mehtani learned counsel appearing on behalf of the petitioners has placed reliance on Section 9 of the Rules relating to the sale of surplus evacuee property. This rule lays down the procedure for entertaining the complaints on sales/auction of rural surplus property. Section 9 of the Rules for the sale of Surplus Rural Properties is reproduced as under:- “9. Complaints. Where a person desires that the slae of any property should not be approved under Rule 5(i)(2) or Rule 6(c)(2) or Rule 7(h) because of any alleged irregularity or fraud in the conduct of the sale (including the case of a sale by public auction in the notice of the sale) or on the ground of any transferee not being eligible to purchase the land in his occupation at fixed price, he may make an application to that effect to the High Court or any other officer authorized by him in this behalf to approve the acceptance or the bid or tender, as the case may be: Provided that every such application for setting aside a sale shall be made: (a) Within 10 days of the said auction or order of the Tehsildar/Naib Tehsildar (Sales) under Rule 7(a). 6 CWP No.3696 of 1988 (b) If the objection relates to a sale by auction, the applicant shall deposit a sum equivalent to the highest bid plus 20% as earnest money and undertake to buy the property at this enhanced value, if as a result of re-auction the property does not fetch a price higher than the enhanced value referred to above. (c) Objections against auctions, restricted to the members of scheduled casts, should be entertained from Harijans without insisting on deposit of challenge money. (d) On the receipt of such an application accompanied by the deposit, the sale shall not be approved till after a decision has been made in the application. (e) If after consideration of the facts alleged; the Officer to whom the application is made, is satisfied that any material irregularity or fraud has been committed in the publication or the conduct of the sale, or the transfer, he may withhold approval and make an order that the property be re-auctioned or re-sold that the property be re-auctioned or re-sold by inviting fresh tenders or pass such other order as may be appropriate.” This rule came up for consideration before this Hon’ble Court in case of Roshan Lal Vs. The State of Haryana and others (CWP No.832 of 1975, decided on 4.11.1982). The learned Single Judge while confirming the auction made by the competent authority held that the sale had been confirmed could only be set aside on the ground of material irregularity or a fraud in the publication or the conduct of the sale. The writ petition was allowed and the order setting aside the sale by auction was quashed. Mr.Mehtani learned counsel for the petitioners has argued that ratio of above judgment fully applies in the facts of the present case. Mr.Mehtani learned counsel for the petitioners has placed reliance on a Division Bench judgment of this Court in case of Mukhtiar Singh and others Vs. Hardit Singh and others 2005(4) RCR (Civil), 556 wherein it has been held that once the sale was made in the year 1972 and the conveyance deed has been executed in the year 1980 where the 7 CWP No.3696 of 1988 petitioners were shown in the cultivation possession of the land in dispute, a subsequent sale made in the year 1982 after a gap of 8 years of allotment could not be upheld. Even if the land had earlier been allotted under some mistake on the part of revenue authority, the conveyance deed issued after sale consideration was deposited, this land could not be made available for a subsequent sale, was declined. Reliance has been placed on a Single Bench judgments in case of Jaswant Kaur Vs. Deputy Commissioner-cum-Chief Sales Commissioner, Ludhiana, 1996(2) RRR, 392 and Mohinder Singh Vs. Deputy Commissioner-cum-Chief Sales Commissioner, Ludhiana 1996 (2) RRR, 246 wherein challenge was to the sale which took place in public auction about 16 years back. The Chief Settlement Commissioner set aside that auction on the ground of fraud. Challenging order of Chief Settlement Commissioner was allowed by the Hon’ble High Court on the ground that after a gap of 16 years, they had no strong ground to set aside the sale. No written statement has been filed by the department. Mr.S.S.Goripuria, DAG, Haryana appearing on behalf of the State has placed reliance on a Division Bench judgment of this Court in case of Bishan Singh and others Vs.Chief Settlement Commissioner and others, 1973 PLJ, 183. As per this judgment in paragraph No. 24, upholding the validity of 1962 Press Note, it has been held that appropriate government by notification can appoint officer as it may deem necessary for the disposal of surplus rural evacuee property provided that the officer for the time being holding the post under the Rehabilitation Department, will be ex-officio Settlement Commissioner and no separate notification appointing him as such would be necessary. 8 CWP No.3696 of 1988 After hearing learned counsel for the parties, I am of the view that the impugned order dated 16.3.1988 (Annexure P-3) is liable to be set aside. The ratio of the judgments cited by the learned counsel for the petitioners, are applicable to the facts of the present case. There is no element of fraud or illegality in the sale of land to the petitioners. Therefore, the sale made vide order dated 29.4.1968, has attained finality. Two grounds on which the sale has been set aside are not factually sustainable. The writ petition is allowed and the order dated 16.3.1988 (Annexure P-3) is set aside. (Ritu Bahri) Judge 15.10.2010 sd 9