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2000 DIGILAW 28 (PNJ)

Kuldip Singh v. State of Punjab

2000-01-11

SHYAMA MANN

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ORDER Shyama Mann, F.C. - This revision petition under section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 seeks to challenge the order dated 6.3.1997 of the Chief Settlement Commissioner, Jalandhar whereby he accepted the petition under section 24 of the said Act against the order dated 28.10.1993 passed by the Settlement Commissioner and dismissing an appeal against the order dated 13.3.92 of Tehsildar-cum-Managing Officer, Jalandhar. 2. The case of the petitioner is that the property in dispute measuring 2K-1M comprising of Khasra Nos. 204, 205, 209 and 213 situated in village Chauharwali originally belonged to Muslims who migrated to Pakistan after the partition of the country. Shri Diwan Singh had purchased the said property under court sale on 8.6.1948, conducted in execution of a decree passed by the Sub-Judge, Ist Class Jalandhar. A sale deed was issued by the court and the physical possession was delivered to Shri Diwan Singh. Later on he sold a part of the land measuring 21 marlas to S/Shri Joginder Singh and Kartar Singh through a Registered Deed dated 7.6.63 for consideration of Rs. 787/-. After his death his son Shri Rai Singh became his successor-in-interest and after the death of Rai Singh, Shri Kuldip Singh petitioner became his legal representative on the basis of a registered Will. 3. S/Shri Joginder Singh and Kartar Singh filed a revision petition before the Deputy Custodian General, New Delhi, under Section 27 of the Administrative of Evacuee Property Act, 1950, for the release of the portion measuring 21 marlas which they had purchased from Diwan Singh against its automatic vesting in the Custodian under section 17 of the said Act. The Deputy Custodian General remanded the case to the Assistant Custodian, Punjab vide his order dated 23.3.1965 with the directions for recording evidence of the petitioners and inspecting the spot with a view to identifying the property purchased by Shri Diwan Singh by Court Sale. 4. Pursuantly, Shri J.R. Bhanot, the then Assistant Custodian, Jalandhar recorded the evidence adduced by the petitioners (therein). He also took into evidence a copy of the Sale Certificate dated 8.6.1948 issued by the Subordinate Judge, Ist Class, Jalandhar regarding sale of land measuring 41 marlas to Shri Diwan Singh. Shri Bhanot also inspected the spot and found that the boundary of the plot given in the Sale Certificate dated 8.6.88 tallied with that existing at the site. He also took into evidence a copy of the Sale Certificate dated 8.6.1948 issued by the Subordinate Judge, Ist Class, Jalandhar regarding sale of land measuring 41 marlas to Shri Diwan Singh. Shri Bhanot also inspected the spot and found that the boundary of the plot given in the Sale Certificate dated 8.6.88 tallied with that existing at the site. He further found that Khasra Nos. 204, 205, 209 and 213 of Khewat No. 77, Khatuni No. 93 measuring 2K-1M described as "Gair Mumkin Taur" shown in the ownership of Central Govt. in the Jamabandi for the year 1960-61 were not included in the two distinct quarrahs which were found to be in existence at the time of inspection, from which he inferred that the said Khasra numbers were not reckoned as Evacuee property by the competent authorities. He also found that the area of those Khasra Numbers was exactly the same as was originally purchased in Court auction by Shri Diwan Singh. He viewed that there was no subsistence in the complaint of one Shri Girdhara Singh complainer who challenged the ownership of Shri Diwan Singh. He also noticed that the property in dispute had not been allotted to any displaced person which showed that the same was not considered to be available for that purpose. He concluded that Shri Diwan Singh had purchased the property including the 21 marlas purchased by S/Shri Kartar Singh and Joginder Singh and it was not evacuee property. Shri Bhanot passed an order dated 20.6.66 thereby accepting the revision petition and released the plot measuring 21 marlas as non-evacuee property in favour of Shri Kartar Singh and Shri Joginder Singh. 5. Later on, vide his order 18.12.86, the Tehsildar Sales, ordered the review of mutation of Khasra No. 209 on the ground that it was a part of the green belt. Shri Rai Singh son of Shri Diwan Singh filed an appeal before the Sales Commissioner against this order of Tehsildar Sales, who remanded the case vide order dated 16.8.88. The Tehsildar Sales-cum-Managing Officer passed an order dated 13.3.1992 holding that the legal heirs of Sh. Diwan Singh had taken 1 kanal of land in excess as the Mutation No. 2041 had been wrongly sanctioned for an area measuring 2K-1M in favour of Shri Diwan Singh and referred the matter to Collector for rectification of the error. The Tehsildar Sales-cum-Managing Officer passed an order dated 13.3.1992 holding that the legal heirs of Sh. Diwan Singh had taken 1 kanal of land in excess as the Mutation No. 2041 had been wrongly sanctioned for an area measuring 2K-1M in favour of Shri Diwan Singh and referred the matter to Collector for rectification of the error. This order dated 13.3.92 was challenged by Shri Kuldip Singh son of Shri Rai Singh son of Shri Diwan Singh in appeal under Section 22 of the Displaced Persons (C & R) Act, 1954 before Shri K.K. Sharma, the then Settlement Commissioner, Jalandhar, who dismissed the same vide his order dated 28.10.1993. 6. Dissatisfied with the aforesaid order of the Settlement Commissioner dated 13.3.1992, Shri Kuldip Singh son of Rai Singh fled a revision petition under Section 24 of the 1954 Act, before the Deputy Commissioner-cum-Chief Settlement Commissioner, Jalandhar. He accepted the revision petition vide his order dated 6.3.97 thereby setting aside the order dated 13.3.92 of the Managing Officer dated 28.10.93 of the Settlement Commissioner, Jalandhar. The present petition under section 33 seeks to impugn the said order dated 6.3.97 of the Chief Settlement Commissioner, Jalandhar. 7. I have carefully examined the records of the case and have heard the counsels for the parties. Shri C.S. Jammu, counsel for the petitioners vehemently argued that the Chief Settlement Commissioner had committed grave irregularity in relying upon the order dated 20.6.66 of shri J.R. Bhanot, Assistant Custodian, Punjab, Jalandhar whereby he had released the plot measuring 21 marlas only, thereby leaving the land measuring 20 marlas to continue to be non-Evacuee Property. On the other hand Sh. K.S. Chhabra, counsel for the respondents argued with matching vehemence that since in the petition before the Assistant Custodian, Punjab, S/Shri Joginder Sigh and Kartar Singh, the petitioners were concerned with the release of a limited area of land measuring 21 marlas only, Shri Bhanot passed his order dated 20.6.66 in respect of the land measuring 21 marlas only and did not travel beyond the claim while giving relief. According to him Shri Bhanot had extensively dealt with the entire land measuring 2K-1M which had been purchased by Shri Diwan Singh as a result of Court Sale, way back in 1948 and the same stood exempted from the provision of Administrative Evacuee Property Act, 1950 by virtue of the provision of Section 17 of the Act, and thus there is no scope for dispute regarding the character of the entire land measuring 2K-1M. 8. A perusal of the order dated 20.6.66 of Assistant Custodian, Punjab, Jalandhar, which forms the sheet-anchor for the claim of the petitioners reveals in no uncertain terms that he had received oral and documentary evidences regarding the entire land measuring 2K-1M and had concluded that the boundaries of the said land were identical to the boundaries of the land measuring 2K-1M which had been purchased by Shri Diwan Singh in a Court Sale culminating in the issuance of the Sale Certificate dated 8.6.48 by the Subordinate Judge, Ist Class Jalandhar. Shri Bhanot further held that the petitioners S/Shri Joginder Singh and Kartar Singh had purchased land measuring 1K-1M out of the said land measuring 2K-1M forming the subject- matter of the Sale Certificate dated 8.6.1948. However, since Shri Joginder Singh and Shri Kartar Singh had claimed the release of only 21 marlas of land which they had purchased from Shri Diwan Singh, the Assistant Custodian has no option but to release only the area measuring 21 marlas in their favour. But from this it is not possible to infer that the remaining area measuring 20 marlas was not released. 9. In order to properly appreciate the legal position, it is necessary to refer to the provision of Section 17 of the Administration of Evacuee Property Act, 1950 which relates to exempting of evacuee property from the processes of Court :- "17. 9. In order to properly appreciate the legal position, it is necessary to refer to the provision of Section 17 of the Administration of Evacuee Property Act, 1950 which relates to exempting of evacuee property from the processes of Court :- "17. Exemption of evacuee property from processes of Court etc :- "Save as otherwise expressly provided in this Act no evacuee property which has vested or has deemed to have vested in the Custodian under the provisions of this Act shall so long as it remains so vested, be liable to be proceeded against in any manner whatsoever in execution of any decree or order of any Court or other authority and any attachment or injunction or order for the appointment of a receiver in respect of any such property subsisting on the commencemnt of the Administration of Evacuee Property (Amendment) Act, 1951 (22 of 1951), shall cease to have effect on such commencement and shall be deemed to be void. (2) Where, after the Ist day of March, 1947, any evacuee property which has vested in the Custodian or is deemed to have vested in the Custodian under the provisions of this Act has been sold in execution of any decree or order of any Court or other authority, the sale shall be set aside if an application in that behalf has been made by the Custodian to such Court or authority on or before the 17th day of October, 1950." The Administration of Evacuee Property Act, 1950 came into force in 1950 but it is noticed from the provision of sub-section (2) of Section 17 of this Act that it had retrospective application regarding the vesting of the evacuee property in the Custodian. However, a plain reading of Sub-Section (2) of Section 17 clearly shows that if an evacuee property had been sold in execution of a decree or order of any Court, the Sale could be set aside if an application in this behalf had been made by the Custodian to such Court or authority on or before the 17th day of October, 1950. It follows the onus to make application was on the Custodian and in the absence of such application the sale made by the court would ipso-facto remain binding on the Custodian. It follows the onus to make application was on the Custodian and in the absence of such application the sale made by the court would ipso-facto remain binding on the Custodian. In the present case, it appears that no such application was made by the Custodian and therefore, to get the Court Sale set aside, and thus the sale became a fait accompli in favour of Shri Diwan Singh. In this situation it was not even necessary to seek release of this property. However, apparently as a matter of abundant caution to formalise their sale, S/Shri Joginder Singh and Kartar Singh who had purchased 21 marlas of land from Shri Diwan Singh made an application to the Custodian General for release of the property. This prayer was only a surplusage designed to obliterate any possible eclipse on the title of the transferees. Since the remaining 20 marlas of land continued to be owned by Shri Diwan Singh, and no application having been made by the Custodian for setting aside the court sale in respect of this property, it could with no stretch of imagination be taken to have transformed itself into evacuee property. In my view, the Ld. Chief Settlement Commissioner had exercised his discretion judiciously and it is not possible to discern any illegality or arbitrariness in the impugned order dated 6.3.97. Accordingly I do not find any merit in this petition and the same is dismissed. Petition dismissed.