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DOABA NIRMAL MANDAL (REGD.) & ANR versus FINANCIAL COMMISSIONER REVENUE AND ANOTH

High Court of Punjab and Haryana, Chandigarh

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Doaba Nirmal Mandal (Regd.) & Anr v. Financial Commissioner Revenue and anoth - CWP-5120-1983 [2006] RD-P&H 1029 (21 February 2006)

In the High Court of Punjab and Haryana at Chandigarh.

CWP NO. 5120 of 1983.

Date of Decision:March 1,2006.

Doaba Nirmal Mandal (Regd.) and another

vs.

Financial Commissioner Revenue and another.

CORAM:- HON'BLE MR.JUSTICE J.S.NARANG.
PRESENT:- Mr.PK Palli,Senior Advocate with Ms.Monica Paul,Advocate for the petitioners.

Mr.CM Munjal, Sr.Addl.Advocate General,Punjab.

J.S.NARANG,J.

The facts which need be noticed are that a property had been described as evacuee urban area comprised in khola no.161/359, khasra no.

7//26,measuring 24 kanals 9 marlas situated in Village Attalgarh, Mukerian. On a part thereof i.e. 7 kanals 10 marlas a dera had been constructed by Sant Hari Singh, also known as "Loh Langar Gurudwara Sant Baba Hari Singh". On the remaining land a sarovar (holy tank) had been constructed. This entire area was under the management of Sant Hari Singh during his lifetime for many years as is evident from the description made in the jamabandi for the year 1971-72 whereby the ownership has been described that of Central Government and under the column of cultivation it has been described as " for public benefit in possession of Sant Baba Hari Singh Chela Baba Jawala Singh Chela Sant Aya Singh", copy Annexure P-2. It has been averred that after the death of Sant Hari Singh, petitioner no.2 was appointed as Manager and Mohatmim of the Dera Ramsar Sarowar, being the Cheli of Sant Hari Singh. She was declared and recognised being in possession of the dera vide judgment and decree dated September 22,1979 passed by the Civil court in civil suit no. 259 of 1977.

Respondent no.2 i.e. Pritam Singh was a party to the suit as defendant no.5.

Copy of the judgment has been appended as Annexure P3. It may be noticed that name of Pritam Singh had been deleted vide order dated February 28,1994 passed in CM No. 1284 of 1993 and Sant Baba Hansa Singh through General Power of Attorney of Sh.Karnail Singh was impleaded as respondent no.2. Likewise petitioner no.2 Smt.Parkash Kaur had also died and Bibi Narinder Kaur cheli of Smt.Parkash Kaur had been impleaded as petitioner no.2 vide order dated 28.2.1994 passed in CM No.11648 of 1993.

Pritam Singh had earlier filed civil litigation for claiming himself to be in possession of the Gurudwara and the tank etc. but did not succeed as is evident from the order dated January 9,1981 passed by the Tehsildar vide which the claim of respondent no.2 stood rejected.

Petitioner no.2, being in actual physical possession of the dera as well as Gurudwara etc., submitted an application dated September 27,1976 to the Deputy Secretary, Rehabilitation Department, Punjab for transferring the evacuee property measuring 24 kanals 9 marlas in the name of the institution on negotiation basis. Copy thereof has been appended as Annexure P5. Since the application had been filed in her name, she had been advised that the application be filed in the name of parent body "M/s Doaba Nirmal Mandal (Regd.), H.O. Village Allawalpur, Tehsil and District Jalandhar". Pursuant thereto, petitioner no.1 passed a resolution dated October 20,1977 authorising its General Secretary for submitting the application accordingly. The Chief Settlement Commissioner, after necessary enquiry, agreed to transfer an area of 2 kanals 2 marlas alongwith twenty standing trees, for a sum of Rs.2315/-. Pursuant thereto, a conveyance deed was executed on August 2,1979 and was subsequently registered in favour of petitioner no.1. The deed was signed by petitioner no.2 as vendee. However, another application dated June 9,1989 had been submitted for seeking the transfer of balance of the area on negotiation basis. Copy of the application has been appended as Annexure P-8. The matter was enquired into by the concerned quarters about the genuineness of the demand and pursuant thereto agreed to transfer the remaining area of 22 kanals 7 marlas alongwith standing trees for a sum of Rs.17,651/- i.e.

Rs.14,593/- as price of land measuring 22 kanals 7 marlas and Rs.3058/- as price of the trees. This amount was duly deposited and a conveyance deed dated March 9,1981 was duly executed in favour of petitioner no.1. The deed was registered on June 8,1981, translation of which has been appended as Annexure P-9.

Respondent no.2 questioned the transfer of an area measuring 2 kanals 2 marlas in the first instance by way of an appeal before the Commissioner Jalandhar Division, Jalandhar, which was dismissed vide order dated October 22,1980 by categorically holding that the property in question being evacuee property and not a package deal, he had no jurisdiction to entertain and decide any such appeal. This order was not challenged any further by respondent no.2. The aforesaid respondent filed an application dated November 17,1980 under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954. As regards the transfer of the balance of the area measuring 22 kanals 7 marlas, no mention was made. It may be noticed that the transfer in regard to area measuring 22 kanals 7 marlas took place much after the filing of the aforesaid application i.e. June 8,1981. The conveyance deed was registered which was executed on March 9,1981.

It may be noticed that the challenge was made only to the transfer of land measuring 2 kanals 2 marlas, as is evident from the prayer made in the petition filed under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954. It may be noticed that respondent no.2 had earlier challenged the transfer of the land measuring 2 kanals 2 marlas by way of a petition under Section 15 of the Punjab Package Deal Properties (Disposal) Act, 1976 read with Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954, which was dismissed by an order dated July 19,1979 on the ground that the land in dispute being a "Package Deal Property", petition under Section 15 of the Punjab Act no.21 of 1976 was not competent before him. In view of the amendment made in the said Act in 1979, the powers of the State Government had been delegated to the Commissioners of the Divisions. Resultantly, the petition was filed before the learned Commissioner, which was dismissed vide order dated October 22,1980 being not maintainable on the ground that the land in dispute was not "Package Deal Property" but having been acquired as urban evacuee agricultural land, it was subject to governance of the provisions of Displaced Persons (Compensation and Rehabilitation) Act,1954. Thus, the petition was filed under Section 33 of the aforesaid Act. Learned Financial Commissioner, exercising the powers under the aforestated provisions of the Act, permitted the counsel for the respondent no.2 (the petitioner in the said petition) to address arguments relating to the land measuring 22 kanals 7 marlas as well, even though the relief in regard thereto had not been claimed nor any fact had been averred in the petition. It has been opined that the land in dispute had been in occupation of Sant Hari Singh and respondent no.2 (Smt.Parkash Kaur) who had posed herself to be cheli of the deceased Sant had secured its transfer. It has also been averred that no effort had been made by the Rehabilitation Department to verify the genuineness of the demand made by Smt.Parkash Kaur. The financial position of the institution was also not verified through the district authorities. Respondent no.2 ( petitioner in the petition before the Financial Commissioner) had claimed that the fact of its possession had been brought to the notice of the authorities in 1978 and that the said fact is also corroborative from the revenue record, however, a part of it had been occupied by Smt.Parkash Kaur unauthorisedly. This fact should have been verified vis a vis antecedents of "the dera" before making an offer for the sale of the land by negotiation. It has been further observed that market price of the land had also not been properly evaluated. It has been held that the benefit of concession given to the so called religious institution, has in fact gone to an unauthorised person. He has also noticed that the General Secretary of the Dera has executed a registered sale deed in respect of the land in dispute, in favour of Smt.Parkash Kaur on June 8,1981 for Rs.17000/- only, when the land in question was negotiated by the dera for a consideration of Rs.20,001/-. Thus, it is a clear case of under-valuing the sale deed by virtue of which the loss to the State exchequer has been caused. Since the land in question had been offered for a religious institution for religious purposes, its General Secretary had no authority to sell the same to respondent no.2 (Smt. Parkash Kaur), an embargo should have been put that the benefit of concession given to the religious and charitable institution could not and would not be misutilised by way of offering the same to another person and that in that eventuality the sale would stand annulled. Thus, a finding has been returned that the concession granted by the government had been misutilised. Resultantly, all orders offering and transferring the land in favour of the religious institution have been set aside. It has been further directed that immediate steps should be taken to retrieve the land from Smt.Parkash Kaur respondent no.2 in the said petition. Further, action should be initiated against the revenue officer who had ordered registration of the sale deed dated June 8,1981. This order dated June 22,1983 has been made the subject matter of challenge in the present petition.

The State has submitted a detailed reply and that respondent no.2 has also submitted reply by way of an affidavit. The stand of respondent no.2 is that the petitioner no.1 and petitioner no.2 connived to play a fraud upon the revenue authorities by way of obtaining the order dated May 3,1979 vide which the area measuring 2 kanals 2 marlas and twenty trees situated at village Attalgarh,Mukerian, District Hoshiarpur had been negotiated for a paltry sum of Rs.2315/-. It has also been averred that petitioner no.2, being a lady of not good moral character, was thrown out of the institution by Sant Hari Singh during his lifetime. She with petitioner no.1 joined hands and in connivance with revenue authorities made an effort to grab the land of the dera as well as the dera itself, with ulterior motive. It is also the claim that as per the revenue documents the possession was that of respondent no.2 and not that of petitioner no.1. It has also been averred that the judgment and decree dated September 22,1979 is under challenge before the civil court. However, the corrections made in the revenue record had been re-corrected on October 10,1977. It has been further averred that the answering respondent is in actual physical possession of the land. It is also the plea of the respondents that the land in question was never allotted to the dera but was addressed to the General Secretary, M/s Doaba Nirmal Mandal (Regd.), Allawalpur, Tehsil and District Jalandhar. It is also the plea that as if application had been submitted by petitioner no.2, as cheli of Sant Hari Singh, Dera Attalgarh this allotment should have been made in her name. Admittedly, she was not General Secretary of petitioner no.1 and that the application had been submitted by her, therefore, the allotment should have been made in her name. Further, there was no question of the land being sold to Smt.Parkash Kaur for a consideration of Rs.17,000/- on June 28,1981. In fact, the conveyance deed seems to have been executed mischievously by petitioner no. 1 in her name i.e. Smt.Parkash Kaur. The allegation of fraud has been alleged. It is on these basis the learned Financial Commissioner has correctly passed the order by cancelling all the allotments in favour of Smt.Parkash Kaur.

Similarly, the petition has been contested by the State on the ground submitted in the written statement. The pleas taken are only to support the order passed by the learned Financial Commissioner dated June 22,1983 and that the factual position has not been correctly spelt out nor admitted accordingly.

Learned counsel for the petitioner has argued that the learned Financial Commissioner, while exercising the powers under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954, has erred in law and facts. He has exceeded his jurisdiction while setting aside the negotiated sale of the area measuring 22 kanals 7 marlas vide conveyance deed dated May 19,1981despite the admitted fact that no plea or prayer in this regard had been taken by respondent no.2. It is also the plea that the petitioners had been called upon to meet the averments of respondent no.2 contained in the petition, in fact, they had never ever been given any opportunity to meet the case regarding the second negotiated sale as aforestated. No proceedings, in fact, had ever been initiated against the petitioners for cancellation of the negotiated sale of 22 kanals 7 marlas. It is the settled law that a relief cannot be granted beyond what has been asked for, especially when the relief negative in character and nature is to be granted against the respondents i.e. the petitioners in the instant petition.

Such order suffers from rigor of audi alteram partem.

It is also the case that the sale had been effected by the State Government under the provisions of Punjab Package Deal Properties (Disposal) Act, 1976 and Rules, therefore, no application under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954 was competent and that the petition deserves to be dismissed on this ground alone. It is also the plea that the application under Section 33 of the Act deserves to be dismissed on the ground of delay and laches as the same is said to have been filed after a long delay in regard to the area measuring 2 kanals 2 marlas. So far as area measuring 22 kanals 7 marlas is concerned the conveyance deed effected pursuant thereto has never ever been challenged. It is further the submission that the sale had been negotiated by petitioner no.2 as Mohatmim of the institution and for the benefit of the institution. Petitioner no.1 had no interest of its own in the area which it had in fact purchased for the institution of petitioner no.2. Under these circumstances, the transfer of the area made by petitioner no.1 in favour of petitioner no.2 was a mere formality to regularise utilisation of area by petitioner no.2 on behalf of her institution for whose benefit it had been originally purchased. Thus, there is no breach of any of the conditions imposed as none is contained against its re-transfer. It is also the case of the petitioner that no breach of any condition has been committed, as no such condition had been provided in the conveyance deed, as has been observed by the learned Financial Commissioner. Thus, the sale so made could not have been legally cancelled by the learned Financial Commissioner. It is obvious that the learned Financial Commissioner exceeded his jurisdiction while granting such relief. It is also the case that the transfer of the area at best can be taken to be from one religious institution to another religious institution. The question of committing any fraud or any act of enrichment did not arise. It is further the plea that the genuineness of demand had been duly examined by the concerned quarters as is evident from the fact that the department took sufficient time to satisfy itself vis a vis the genuineness of the demand made by the institution. The allegation that the genuineness of the demand was not examined is absolutely incorrect. It is also incorrect that the concession granted by the government had been misutilised in any manner whatsoever. Learned Financial Commissioner himself observed that an embargo should have been imposed in the memorandum of offer that in the eventuality of land being put to any other use, the sale would stand annulled. It is obvious that there was no such condition in the conveyance deed executed, therefore, any misutilisation or fraud having been committed did not arise. It is further the contention that the learned Financial Commissioner acted in a post haste manner in exercising the power without noticing as to what was the subject matter of the challenge in the petition and what was the relief claimed. Further, it is incorrect that the land purchased from the government against the consideration of Rs.20,001/-, had been sold by petitioner no.1 to petitioner no.2 for Rs.17,000/- only. In fact, the price of the land in the conveyance deed dated March 9,1991 has been indicated as Rs.14,593/- and that Rs.3058/- has been indicated as price of the trees, which fact has been completely overlooked by the learned Financial Commissioner. Thus, there is no question of any loss caused to the state exchequer. Learned counsel for the petitioners has argued that the order under challenge suffers from the inherent jurisdiction. The property in fact is the subject matter under the Punjab Package Deal Properties (Disposal) Act, 1976 and that the exercise of jurisdiction by the learned Financial Commissioner under the Displaced Persons (Compensation and Rehabilitation) Act,1954 is not sustainable. In fact, the petition under Section 33 of the Act deserved to be dismissed on this ground alone.

Learned counsel for the petitioner has drawn my attention to the terms of the allotment relating to area measuring 2 kanals 2 marlas i.e. order dated May 3,1979, copy Annexure R-1 and specifically pointed out clause (iii) of the aforesaid document, which reads as under:- "(iii)The purchaser shall deposit the price of the land into the nearest Treasury under the following head of account, after authenticating the treasury challan from the Assistant Settlement Officer (Accounts)-cum-Managing Officer, Jullundur. 088 social Security & Welfare (b) Relief and Rehabilitation (d) on account of Urban Evacuee Agricultural land purchased from Government of India in Package deal." On the other hand the learned Senior Additional Advocate General has argued that the statue i.e. Displaced Persons (Compensation and Rehabilitation) Act,1954, has been repealed by virtue of the notification dated 6.9.2005, therefore, the petition cannot be decided as no saving clause has been provide in regard to the litigation pending under the aforestated provision. Thus, the petition deserves to be dismissed on this ground alone.

He has further contended that the plea that the land in question is subject to the governance under the Punjab Package Deal Properties (Disposal) Act, 1976 is not at all sustainable as the portion of the land i.e. measuring 2 kanals 2 marlas has been accepted as sale under the Displaced Persons (Compensation and Rehabilitation) Act,1954, how the second sale can be taken under the Punjab Package Deal Properties (Disposal) Act, 1976.

Thus, the question of raising any plea against the jurisdiction of the learned Financial Commissioner is not sustainable.

I have heard learned counsel for the parties and have perused the paper book containing the respective pleas of the parties, as also the documents appended therewith and have also gone through the order dated June 22,1983 passed by the learned Financial Commissioner exercising the powers under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954. The admitted fact is that the petition under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954 had been filed challenging the order dated May 3,1979 vide which the sale had been negotiated in favour of the petitioners in regard to the land measuring 2 kanals 2 marlas. The sale negotiated in regard to area measuring 22 kanals 7 marlas had never been made subject matter in the aforestated petition, as nothing had been shown on the record that any additional pleas in addition to the pleas already taken, had been taken by the petitioners. Obviously, any order cancelling the sale deed in regard to the area measuring 22 kanals 7 marlas has been ordered without granting any opportunity to defend to the petitioners. It is evident from the fact that the conveyance deed executed in regard to the land measuring 22 kanals 7 marlas, copy Annexure P-9 shows that the price of the land has been indicated as Rs.14593/- and that Rs.3058/- as the price of the trees. From where learned Financial Commissioner has taken the price of the land as Rs.20,000/- is not discernible nor the respondents have been able to point out any document in this regard. Surprisingly, it is the stand of respondent no.2 that the land should have been shown in the name of petitioner no.2 instead of petitioner no.1. However, the authority to execute the sale deed was given in favour of petitioner no.2 for and on behalf of petitioner no.1.

The perusal of the conveyance deed shows that sale deed has been executed in favour of the General Secretary, M/s Doaba Nirmal Mandal (Regd.), Allawalpur, called the purchaser. There is no document on record to indicate that the land was sold to petitioner no.2 Smt.Parkash Kaur for a sum of Rs.17,000/-. It is not understandable from where this fact has been ascertained by the learned Financial Commissioner even when no averment is forthcoming from the grounds of the petition submitted under Section 33 because the sale of land measuring 22 kanals 7 marlas had never ever been made subject matter of challenge. The conveyance deed which is shown to have been registered by the Tehsildar, does not indicate any such fact as noticed in the order under challenge.

It may also be noticed that the deed of conveyance executed in regard to the land measuring 2 kanals and 2 marlas, copy Annexure P-7 is also shown to have been executed in favour of General Secretary, M/s Doaba Nirmal Mandal (Regd.), Allawalpur, Tehsil and District Jallandhar.

It is not understandable from which document the sale is shown to have been made in favour of petitioner no.2 i.e. Smt.Parkash Kaur as no sale deed indicative of such fact has been placed on record either by the petitioner or by the respondents. The only document which has been placed on record by the respondents is a copy of the order dated May 3,1979, which was made the subject matter of challenge in the petition under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954 which of course is indicative of the fact which has been pointed out by the learned counsel for the petitioner but this would not mean that the property fell within the purview of Punjab Package Deal Properties (Disposal) Act, 1976 by merely giving the head of the account would not be indicative of the said fact which has been averred by the petitioner. It is the admitted fact that the petition had been earlier filed under Section 15 of the Punjab Package Deal Properties (Disposal) Act, 1976 which was dismissed by the authority on the premises that the property in question is a package deal property and the petitioner (respondent no.2) filed a petition under the aforesaid Act before the learned Commissioner, who in turn held vide order dated October 22,1980 that the property was not package deal property. But having been acquired as urban evacuee agricultural land, was covered by the provisions of Displaced Persons (Compensation and Rehabilitation) Act,1954. This finding was never ever challenged by the petitioners. Resultantly, the petitioners cannot turn about and say that the property is covered by the Punjab Package Deal Properties (Disposal) Act, 1976, and therefore, the learned Financial Commissioner did not have the jurisdiction to proceed under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954. Thus, this argument is wholly misconceived and the same is rejected.

Learned Additional Advocate General has submitted that the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as "the Act"), has been repealed and that no saving clause has been provided in regard to the pending litigation, therefore, the petition deserves to be dismissed.

On the other hand, learned counsel for the petitioner has submitted in the alternative that if the land cannot be treated as subject matter under Punjab Package Deal Properties (Disposal) Act, 1976, the pending litigation would stand protected under Section 6 of the General Clauses Act,1897, which reads as under:

6. Effect of repeal: Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the real takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder:or

(c ) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed or;

(d) after any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment or repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

Section 6A of the General Clauses Act., 1897, reads as under:- "6A. Repeal of Act making textual amendment in Act or Regulation: Where any Central Act or Regulation made after the commencement of this Act repeals act enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then,unless a different intention appears, the appeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such appeal".

I have given my careful consideration to the aforestated pleas.

It is the admitted case that the property has been allotted under the provisions of the Act and that the petition was entertained by the Competent Authority under Section 33 of the Act. The question posed before this Court is as to whether the procedure has been followed correctly at the time of allotment. So far as the applicability of the Act is concerned that was never ever questioned. Learned Financial Commissioner exercising the powers under the Act has observed that the genuiness of the demand, financial position and antecedents of the institutiuon had not been verified.

Further, the market price of the land has not been properly calculated.

Dehors this, the affect of repeal has been dealt with under the General Clauses Act, 1897 and the specific reference may be made to Section 6 of the aforestated Act. Sub section (e) specifically protects investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. Thus, all the acts which have already been committed and the rights which have accrued and or penalty or forfeiture have been ordered and if legal proceedings are pending pursuant thereto, are not to be affected by the repeal of the Act. The Act in question is a Central Act, therefore, the aforestated provisions i.e. Section 6 would come to the rescue of the pending legal proceedings. The Hon'ble Supreme Court has categorically observed in re: Kolhapur Canesugar Works Ltd and another v. Union of India and others, AIR 2000 Supreme Court 811. The relevant portion of Para 35 of the said judgment reads as under:

" XXX XXX xxx

...................If the case is covered by Section 6 of the General Clauses Act or there is a pari materia provision in the statute under which the rule has been framed in that case also the pending proceedings will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceeding was initiated being deleted/omitted. It is relevant to note here that in th present case the question of divesting the Revenue of a vested right does not arise since no order directing refund of the amount had been passed on the date when Rule 10 was omitted." In the instant case, the present petition would not be affected by the repeal of the Act as the extraordinary jurisdiction of this Court has been invoked under Article 226/227 of the Constitution of India.

The cumulative perusal of the factual status of the documents, specifically the conveyance deed, relating to the area measuring 2 kanals 2 marlas and 22 kanals 7 marlas, copy Annexure P-7 and P-9 respectively as also the resolutions passed in favour of the General Secretary for executing the deed of conveyance, I am satisfied that the conveyance deed had been duly executed in favour of petitioner no.1, the General Secretary was duly authorised by virtue of the resolution copy Annexure P-6 to execute the deed. The conveyance deeds did not show anywhere that the land in question became the exclusive property of petitioner no.2. Though, the averment has been made in the petition that the property stood transferred to petitioner no.2, but in fact there is no document placed on record to this effect. It may be mentioned that learned Financial Commissioner has also mentioned that the property in question had been registered in favour of respondent no.2 i.e. Smt.Parkash Kaur on June 8,1981 but this fact does not stand corroborated as no such document has been placed on record by anyone. De hors this, if there is no condition imposed upon petitioner no.1, if any such sale has been made and the same has not been challenged, it shall be incorrect to opine in regard thereto, which mistake has been committed by the learned Financial Commissioner.

Thus, the petition deserves to be allowed on the ground that the learned Financial Commissioner exceeded his jurisdiction in cancelling all the orders passed in favour of the petitioners without adhering to the principle of audi alteram partem. The challenge to the sale deed relating to the land measuring 22 kanals 7 marlas had never ever been made and resultantly no opportunity to contest the said view had ever been granted to the petitioners effectively. The consideration price for the land has been incorrectly taken as Rs.20,001/- and thereafter its sale price as Rs.17,000/-.

In the absence of the documents, I fail to understand, how this conclusion could be arrived at by the learned Financial Commissioner. Nothing is indicative as to how the Sub Registrar and/or Tehsildar (Sales)-cum- Managing Officer, Hoshiarpur had committed any kind of irregularity and in what manner incorrect valuation has been arrived at. Unless an opportunity to contest the observation had been granted, it was not right on the part of the learned Financial Commissioner to have arrived at the conclusion that the allotment made in favour of the religious institution had been misutilised. He himself says that an embargo should have been imposed in the memorandum of offer that in case the land is put to any other use or is sold to a third person, the sale would stand annulled. In the absence of any such embargo, holding that there has been misutilisation is too far fetched.

So far as the registered sale deed dated June 8,1981 is concerned, it has not been placed on record, therefore, I refrain myself to opine in this regard. It also cannot be inferred that at the time of negotiating the sale the Rehabilitation authorities did not make any effort to verify the genuineness of the demand made by the concerned persons. It is also not ascertainable from where the learned Financial Commissioner has inferred that the financial position of the institution was not verified through the district authorities. The negotiated price was deposited by the petitioner no.1, the question of doubting the financial position of petitioner no.1 did not arise.

So far as the recording of possession in the revenue record is concerned that was not the subject matter. It was acquisition of the ownership which was in dispute, as is evident from the prayer in the petition made under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act,1954.

Acquisition of possession or losing the possession is a matter which falls within the domain of other authorities under the provisions of law, which should not have been opined by the learned Financial Commissioner.

However, in this regard the learned Financial Commissioner has not made any reference to any revenue record though it has been observed that the factum of possession is supported by the revenue record. It was incumbent upon the learned Financial Commissioner to have referred to the particular documents, no documents had been put to the petitioners. Obviously, no opportunity to controvert or challenge the correctness of those documents had been granted. Resultantly, the petition is allowed and the order dated October 22,1983 is quashed. No order as to costs.

March 1,2006. (J.S.Narang)

rpj Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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