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GURSHARAN SINGH & ORS. versus FINANCIAL COMMISSIONER & ANR.

High Court of Punjab and Haryana, Chandigarh

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Gursharan Singh & Ors. v. Financial Commissioner & Anr. - CWP-1382-1990 [2006] RD-P&H 11953 (5 December 2006)

Civil Writ Petition No.1382 of 1990.

In the High Court of Punjab and Haryana at Chandigarh.

Civil Writ Petition No.1382 of 1990.

Date of decision:12.12.2006.

Gursharan Singh and others.

...Petitioners.

Versus

Financial Commissioner and another.

...Respondent.

...

Coram: Hon'ble Mr. Justice S. N. Aggarwal.

...

Present Mrs.Manjeet Kaur and Shri Onkar Rai, Advocates for the petitioners.

T.S.Chauhan, Additional Advocate General, Punjab for respondent No.1.

Mr.R.S.Mittal, Senior Advbocate with Mr.Suveer Sehgal, Advocate for respondent No.2.

...

Judgment.

S. N. Aggarwal, J.

Santokh Singh (now deceased), predecessor in interest of the present petitioners was a displaced person. He was allotted house No.253/9, Bhagtanwala Mohalla, Amritsar in the year 1948. The rent was being paid by him regularly to the custodian. Its reserve price was Rs.11,736/-. One room of this house was in possession of Mit Singh Civil Writ Petition No.1382 of 1990.

on temporary basis. The respondents auctioned the suit property in the year 1959. This house was purchased by Hazara Singh in public auction for a sum of Rs.15,050/-. However, the auction money was not deposited and the auction was accordingly cancelled.Santokh Singh filed an application on 17.11.1968 for the allotment of this house to him. During the pendency of this application, this house was put to auction once again on 19.12.1968 and it was purchased by Hari Singh, respondent No.2 for a sum of Rs.21,000/-. Santokh Singh petitioner filed an appeal against this auction under Section 22 of the Displaced Persons (Compensation & Rehabilitation) Act,1954 (in short the Act, 1954). It was accepted by the Settlement Commissioner vide order dated 21.1.1969 (Annexure P-1) and the matter was remanded by him to the Managing Officer with the direction that the application of Santokh Singh petitioner for the transfer of the house in dispute may be decided on merits and till then further proceedings on the auction which had taken place on 19.12.1968 were stayed.

The Settlement Commissioner-cum-Managing Officer vide his order dated 6.1.1978 held Santokh Singh to be eligible for the transfer of property No.253/9, Bhagatanwala Mohalla, Nai Abadi, Amritsar (Annexure P-2). The value of this property was assessed to be Rs.24,426/- by the Settlement Commissioner vide order dated 1.3.1978.

However, earlier to that the value of this house was assessed to be Rs.18,482/-. Accordingly, the said valuation at Rs.24,426/- was Civil Writ Petition No.1382 of 1990.

challenged by Santokh Singh before the Chief Settlement Commissioner who held the price at Rs.24,426/- to be unwarranted and directed that the value of the property be calculated at the rate of Rs.60/- per square yard and further direction was given by him vide order dated 21.7.1978 (Annexure P-3) that the transfer of property in favour of Santokh Singh petitioner be finalised accordingly.

It appears that the valuation was properly calculated and the said amount came to Rs.19,026/- which was deposited by Santokh Singh petitioner and conveyance deed was executed in his favour on 30.3.1979 for property No.253/9, Bhagatanwala Mohalla, Nai Abadi, Amritsar.

The matter was re-agitated by Hari Singh,respondent No.2 auction purchaser before the Tehsildar (S)-cum- Managing Officer, Rehabilitation. The Tehsildar (S) vide his order dated 12.11.1982 (Annexure P-4) set aside the transfer of property in favour of Santokh Singh Accordingly, Hari Singh,respondent No.2 was directed to deposit the balance money after the sale in his favour was confirmed by the Settlement Commissioner. Santokh Singh petitioner was granted liberty to withdraw the amount of Rs.19,026/- deposited by him in the Treasury. The case was forwarded to the Settlement Commissioner for confirmation of sale in favour of Hari Singh, respondent No.2.

Santokh Singh petitioner filed an appeal against the order dated 12.11.1982 but the said appeal was dismissed by the Settlement Civil Writ Petition No.1382 of 1990.

Commissioner, Punjab, Mohali vide order dated 8.12.1983 (Annexure P-5).

The petitioner filed a revision petition under Section 24 of the Act before the Chief Settlement Commissioner. It was also dismissed vide order dated 23.4.1986 (Annexure P-6). The said order was challenged before the Financial Commissioner (Respondent No.1).

The petition was also dismissed vide order dated 27.11.1989 (Annexure P-7).

Hence, Santokh Singh filed the petition challenging the orders passed by the officers under the Act,1954 and by the Financial Commissioner,respondent No.1 cancelling the transfer order of the property under reference in his favour.

Respondent No.1 did not file written statement to contest the case.

However, Hari Singh,respondent No.2 filed written statement and contested the case. He pleaded preliminary objections that Santokh Singh had filed a civil suit before the passing of order dated 12.11.1982 (Annexure P-4) but the said civil suit was dismissed by the learned trial Court vide impugned order dated 24.9.1983 (Annexure R-2/1). Therefore, this petition was barred by law. The petitioner secured order dated 6.1.1978 by submitting a false affidavit of Mit Singh, who was co-occupant of the property in dispute. Mit Singh had filed an application dated 30.12.1977 (Annexure R2/2) to Civil Writ Petition No.1382 of 1990.

the Regional Settlement Commissioner that he was in occupation of a larger area of the house in dispute and requested for the transfer of the house to him. That application was received by the Tehsildar (Sales)- cum-Managing Officer, Amritsar on 2.1.1978 but it was not taken into consideration while passing order dated 6.1.1978 (Annexure P-2).

Later, this application was dismissed on 11.1.1978. After the death of Mit Singh, his son Kartar Singh had filed an affidavit dated 24.6.1981 (Annexure R2/3) claiming ownership of the house in dispute on the basis of occupation.

On merits also, it was denied by Hari Singh if Santokh Singh was resident of house No.253/9, Bhagatanwala Mohalla, Nai Abadi, Amritsar since 1947. Some other persons were in occupation of this house as per record of the department. Reference was made to Rule 22(a) of the Displaced Persons (Compensation and Rehabilitation) Rules according to which that evacuee property could not be allotted to the displaced persons in its occupation since the value of the property was more than Rs.10,000/-. Moreover, the allotment order dated 6.1.1978 (Annexure P-2) was passed by the Managing Officer without issuing any notice to him (Hari Singh) as he was the highest bidder in public auction held on 19.12.1968. The conveyance deed was issued by the Rehabilitation Department without jurisdiction. The replying respondent (Hari Singh) came to know of the order dated 21.1.1969 only on 30.9.1980 when he visited the office of the Managing Officer, Civil Writ Petition No.1382 of 1990.

Jalandhar. Immediately,thereafter he filed revision petition under Section 24 of the Act before the Chief Settlement Commissioner on 6.10.1980 and by the order passed by the Chief Settlement Commissioner dated 30.4.1981 (Annexure R2/4) order dated 6.1.1978 (Annexure P-2) and all other proceedings which took place thereafter were set aside. Hence, it was prayed that the impugned orders were passed by the Rehabilitation Department/respondent No.1 in accordance with law. The replying respondent (Hari Singh) has become the owner and it was prayed that the petition filed by Santokh Singh be dismissed.

The learned counsel for the parties made their submissions.

The first submission of learned counsel for the respondents was that the petition was liable to be dismissed for the simple reason that the petitioner had filed a civil suit which was dismissed by the learned trial Court and, therefore, the writ petition was not maintainable. A copy of that order dated 24.9.1983 has been produced on the file as Annexure R-2/1. The perusal of this judgment reveals that the said suit was dismissed by the Sub Judge Ist Class, Amritsar on 24.9.1983 on the plea that Civil Court has no jurisdiction to entertain the civil suit. Therefore, this judgment was not rendered by the Civil Court on merits and,thus, does not debar the filing of the present writ petition by Santokh Singh,petitioner. Moreover, this civil suit was filed by him much before the passing of the impugned orders by the Civil Writ Petition No.1382 of 1990.

authorities under the Act, 1954 and by respondent No.1 by which the transfer of land in favour of the petitioner was cancelled. Accordingly, the judgment dated 24.9.1983, Annexure R-2/1 is of no consequence.

The version of Santokh Singh petitioner was he came in possession of house No.253/9, Bhagatanwala Mohalla, Nai Abadi, Amritsar immediately after his migration from Pakistan in 1947-48.

Since then, he was making the payment of rent. These facts have been denied by respondent No.2 but it is admitted to be true by the Rehabilitation authorities. Even in the impugned order dated 23.4.1986 (Annexure P-6), it has been recorded by the Chief Settlement Commissioner, Amritsar in para No.5 of the order that Santokh Singh was in continuous possession of the property. This fact was acknowledged by the Settlement Officer-cum-Managing Officer in his order dated 6.1.1978 that Santokh Singh has been making the payment of rent regularly. This, therefore, shows that Santokh Singh was a displaced person. He was in occupation of the house in dispute and he was making the payment of rent regularly to the department.

It is also clearly proved, rather not disputed even by respondent No.2 that the property was put to auction in the year 1959.

It was purchased by one Hazara Singh for a sum of Rs.15,050/- but he failed to make the payment of auction money and the same was cancelled vide order dated 29.6.1968. It was also noticed in the order dated 21.1.1969 (Annexure P-1) that this property was re-auctioned on Civil Writ Petition No.1382 of 1990.

7.9.1968 but no bid was received and thereafter it was put to auction on 19.12.1968 when Hari Singh was the highest bidder.

It is also acknowledged in the order dated 21.1.1969 (Annexure P-1) that Santokh Singh had filed an application for the transfer of this property on 17.11.1968 i.e. before it was put to auction on 19.12.1968. It has been specifically noticed by the Settlement Commissioner that the property could not have been put to auction without taking any decision on the application of Santokh Singh for transfer. It was also observed that as per the latest instructions issued by the department,all those auctioned properties where the sale had not materialised were liable to be transferred to the displaced persons who were in occupation of the same. It is, therefore, clearly proved that Santokh Singh had filed an application for the transfer of this house to him and under the latest instructions, he was entitled to its transfer in his favour.

The value of this house was fixed by the Settlement Officer at Rs.24,426/- which was challenged by the petitioner before the Chief Settlement Commissioner who examined the whole matter and held that the value so assessed was unwarranted. It was further held that the property was liable to be transferred to the occupants at the rate of Rs.60/- per square yard and the departmental authorities were directed to finalise the transfer of the property in favour of Santokh Singh vide order dated 21.7.1978 (Annexure P-3). Therefore, even the Chief Civil Writ Petition No.1382 of 1990.

Settlement Commissioner not only had up-held the transfer of the property in dispute in favour of Santokh Singh but also laid down the parameters for assessing its price to be charged from the petitioner for this house.

Accordingly, the price was re-calculated. It was deposited by Santokh Singh and the conveyance deed was issued on 30.3.1979 in his favour.

So far as auction in favour of Hari Singh respondent No.2 is concerned it has just become void. The auction had taken on 19.12.1968. Hari Singh had deposited a sum of Rs.4,220/-at the time of auction. For depositing the balance amount, he slept over the matter and failed to deposit the remaining amount in pursuance of auction in his favour. Even the sale was not confirmed. He did not seek possession of the suit property and the matter remained dormant for about 12 years. He woke up only when he filed petition on 6.10.1980 for the first time even according to his own case. Admittedly, no other step was taken by Hari Singh,respondent No.2 between 19.12.1968 till 6.10.1980. Therefore, this delay on the part of Hari Singh,respondent No.2 in depositing the remaining auction price and in not taking any other step to seek the sale confirmation or to seek the possession of the suit property made the auction in his favour void and it became a dead matter.

It may also be noticed that Hazara Singh has purchased the Civil Writ Petition No.1382 of 1990.

property in public auction on 22.12.1959 and on his failure to deposit the auction price, it was cancelled on 09.06.1968 i.e. after 8/9 years. In the case of Hari Singh, respondent No.2, he was the highest bidder in open public auction held on 19.12.1968 and did not deposit the balance sale price till 1982 i.e. for 14 years. An application was filed by him on 6.10.1980. Even upto that date,more than 11 years had passed. This also shows that the bid in his favour had automatically elapsed and stood cancelled.

The submission of learned counsel for Hari Singh, respondent No.2 that no notice was given to him before passing order dated 6.1.1978 has no legs to stand. He allegedly purchased the property on 19.12.1968. Letter of transfer was issued by the Settlement Officer (S)-cum-Managing Officer in favour of Santokh Singh on 6.1.1978 i.e. after about nine years from the date the auction was held.

Therefore,the said auction itself had become a dead matter and there was no need of issuance of any notice to respondent No.2 who failed to deposit the balance sale consideration within a reasonable time.

Auction proceedings automatically elapsed having not been complied with by Hari Singh respondent. Therefore, non issuance of any notice to Hari Singh,respondent No.2 by the Settlement Officer while passing order dated 6.1.1978 is of no consequence.

The transfer of this house in favour of Santokh Singh was cancelled by the authorities for two reasons. Firstly,the house was in Civil Writ Petition No.1382 of 1990.

possession of two persons. Even Hari Singh has filed with the written statement letter (Annexure R-2/2) allegedly sent by Mit Singh claiming its ownership on the basis of possession of larger area of this house. Similarly, after the death of Mit Singh,another application was stated to have been sent by his son (Annexure R2/3). Neither Mit Singh pursued his application nor his son Kartar Singh pursued his application and the impugned order has been passed by the Tehsildar (S)-cum-Managing Officer on 12.11.1982 on the plea that the property was under occupation of more than one person and the same plea was accepted by the Chief Settlement Commissioner,Amritsar while passing the order dated 23.4.1986 and by the Financial Commissioner, Amritsar while passing the impugned order date 27.11.1989 (Annexure P-7).

However, their version is not at all acceptable, keeping in view the specific assertions made by the Assistant Settlement Officer (S)-cum- Managing Officer while passing the order dated 6.1.1978. He has stated that he inspected the spot on 21.12.1977 himself in the presence of Santokh Singh and his counsel and he found the entire property in occupation of Santokh Singh except one room on the first floor. It was further observed by him in the said order that it was Santokh Singh who had sublet that room to Mit Singh and further it was observed that Mit Singh had expressed no objection if the entire property was transferred to Santokh Singh. All these observations made Civil Writ Petition No.1382 of 1990.

by the Assistant Settlement Officer-cum-Managing Offier while passing order dated 6.1.1978 clearly reveal that the application filed by Mit Singh, later on produced by Hari Singh respondent as Annexure RW2/2 and by his son Kartar Singh, Annexure R2/3 are fictitious documents and are of no consequence. Rather, Santokh Singh petitioner had placed on the file a copy of letter dated 25.6.1981 sent by Roop Kaur widow of Mit Singh to the Assistant Settlement Officer- cum-Managing Officer, Punjab to the effect that after the death of her husband Mit Singh, she was living in house No.253/9, Bhagatanwala Mohalla, Nai Abadi, Amritsar . Thereafter, she had abandoned this house and started living with her daughter Rajinder Kaur in Delhi. This letter is in consonance with the observations made by the Assistant Settlement Commissioner in his order dated 6.1.1978. It is, therefore, held that the impugned orders have been passed illegally by the authorities under the Act,1954 including by respondent No.1 by observing that the said house was in possession of two persons and that was taken as a ground for cancelling the order transferring the suit property in favour of Santokh Singh.

The other ground taken by the departmental authorities for cancelling the order of transfer of suit property in favour of Santokh Singh was that it was of the value of more than Rs.15,000/- and could not have been transferred. No doubt the value was of more than Rs.15,000/- but the transfer order was passed in his favour after Civil Writ Petition No.1382 of 1990.

considering the latest departmental instructions on the subject. It was observed by the Assistant Settlement Commissioner in his order dated 21.1.1969 (Annexure P-1) that according to the latest instructions issued by the department,all those auctioned properties where the sale has not materialised were transferable to the occupants. In the present case, the highest bidder at the auction held on 22.12.1959 had failed to deposit the price and the auction in his favour was cancelled in June,1968. Similarly, the auction held in September,1968 had not attracted any bidder and thereafter Santokh Singh filed an application seeking the transfer of this property and without disposing of his application, auction was held on 19.12.1968. Those instructions dated 12.5.1969 issued by the Government of India have been placed on the file as Annexure P-8 according to which the displaced persons in occupation of evacuee property were entitled to have the same by negotiated sale at the current sale price.

In the present case, the value of the property was assessed by the Settlement Commissioner to be Rs.24,426/- but the same was reduced by the Chief Settlement Commissioner vide his order dated 21.7.1978 (Annexure P-3) and it was to be transferred in favour of Santokh Singh at the rate of Rs.60/- per square yard and the value of the property came to be Rs.19,026/-. Therefore, the authorities were fully aware that the value of the property was more than Rs.15,000/- and it was being transferred to the displaced person in occupation of Civil Writ Petition No.1382 of 1990.

same and this transfer was approved by none else than by the Chief Settlement Commissioner himself.

Therefore, it was unwarranted for the authorities ending unto Financial Commissioner,respondent No.1 to cancel the allotment in favour of Santokh Singh for the reason that the value of the property was more than Rs.15,000/- particularly when the application of Santokh Singh was accepted keeping in view the latest instructions issued by the department. Those instructions were not considered in the impugned orders passed by the departmental authorities. Therefore, these grounds taken by the authorities including by respondent No.1 while passing the impugned orders cancelling the order of allotment in favour of Santokh Singh were illegal and unjust.

It was submitted by the learned counsel for the respondent No.2 that the Chief Settlement Commissioner was at liberty to cancel the transfer of property and even the conveyance deed could be cancelled under Section 24(2) of the Act. However, the transfer or the conveyance deed could be cancelled by the Chief Settlement Commissioner only when these transfer orders are secured by fraud or mis-representation. In the present case, no mis-representation or fraud is alleged by the authorities nor it is proved. Therefore, no case was made out for the Chief Settlement Commissioner to cancel the allotment. Therefore, the use of power by the Chief Settlement Commissioner is totally mis-conceived and mis-placed.

Civil Writ Petition No.1382 of 1990.

In view of the discussion held above,the impugned orders dated 12.11.1982 passed by the Tehsildar (Sales)-cum-Managing Officer (Annexure P-4), order dated 8.12.1983 passed by the Settlement Commissioner (Annexure P-5), order dated 23.4.1986 passed by the Chief Settlement Commissioner (P-6) and the order dated 27.11.1989 passed by the Financial Commissioner (Appeals), Punjab, respondent No.1 (Annexure P-7) are held to be unwarranted in law and are set aside. Santokh Singh and now the petitioners are held to be owners of the suit property on the basis of conveyance deed dated 30.3.1979.

This petition is accordingly accepted in the above terms.

December 12 ,2006. ( S. N. Aggarwal )

Jaggi 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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