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2001 DIGILAW 622 (PNJ)

Harjit Kaur v. State of Punjab

2001-05-29

SHYAMA MANN

body2001
ORDER Shyama Mann, FC. - This petition under Section 33 read with Section 24(4) of Displaced Persons (Compensation and Rehabilitation) Act, 1954 is directed against the order dated 8.1.1992 passed by the Commissioner, throughout same Division, Ferozepore and the order dated 9.6.1988 passed by the Chief Settlement Commissioner, Ferozepore, whereby suo-moto reference made by the Tehsildar (Mahal)-cum-Sales, Ferozepore was accepted by him and the transfer of plot No. 38(P) in favour of Avtar Singh vendor-cum-respondent No. 2 was cancelled. 2. Briefly stated, the facts of the case are that Avtar Singh son of Roor Singh had submitted an application to the Assistant Settlement Officer (Sales) Rehabilitation Department, Jalandhar for the transfer of plot measuring 18x 35 situated in Ferozepur City. On 30.1.1981 the Patwari reported the total area of the plot in dispute as 528 Sq. Feet equivalent to 58 Sq yards 6 Sq. feet. The value of the plot was assessed as Rs. 4107/- at the rate of Rs. 70/- per square yard as per report dated 13.8.1981 of Settlement Officer (S). By treating the plot as evacuee property it was transferred to him by Tehsildar Sales-cum-Managing Officer, Ferozepore at concessional price of Rs. 1027/- on account of the fact that Avtar Singh belonged to Backward Class. The transfer was confirmed by the Settlement Commissioner vide his order dated 12.11.1981. Eventually a conveyance deed was issued on 4.2.1982 in favour of Avtar Singh. 3. Later on, Tehsildar Sales, Ferozepore noticed that the plot was not evacuee property and he submitted a suo-moto reference dated 19.2.1998 to the Chief Settlement Commissioner, Ferozepore, wherein he pointed out that a part of the property bearing No. B-IV-I.R.26(P) belonging to Civil Hospital. Ferozepore had been erroneously transferred to Avtar Singh by treating it as evacuee property No. 38(P) (a fictitious number) belonging to the Custodian. In support of this reference it was submitted that this position was confirmed from the site plan prepared by the P.W.D. (B&R). 4. A notice of this reference was given by the Chief Settlement Commissioner (Deputy Commissioner), Ferozepore to Avtar Singh which was received back with the report of the Process-Server to the effect that he had shifted to America by disposing of the plot in dispute. A report was received from the Tehsildar saying that Avtar Singh had sold the plot in dispute to Harjit Kaur and her two minor sons, Jasnik Singh and Jaspreet Singh. A report was received from the Tehsildar saying that Avtar Singh had sold the plot in dispute to Harjit Kaur and her two minor sons, Jasnik Singh and Jaspreet Singh. Harjit Kaur being the mother of Jasnik Singh and Jaspreet Singh who were minor appeared for them through a Counsel and filed a reply to the reference before the Chief Settlement Commissioner. 5. Sh. Sardara Singh, Tehsildar Ferozepore who appeared on behalf of State before Chief Settlement Commissioner reiterated that the property No. B-IV-I.R-26(P) was in the ownership of Civil Hospital Ferozepore and a part of the property, which was assigned fictitious number and was located inside the boundary of Civil Hospital, had been transferred with mala-fide intention to Avtar Singh who was an employee (radiographer) of Civil Hospital. This transfer was made in connivance with the officials of Rehabilitation Department in order to play fraud with the State Government as the property was in the ownership of Health Department and not evacuee property. 6. In reply before the Chief Settlement Commissioner, Ferozepore, the Counsel for the respondents, while controverting the assertions made by the Tehsildar, submitted that Avtar Singh respondent was a tenant of property No. 38(P) from 1969 to 1982 and he being an employee of Health Department while continuing in possession as tenant had purchased the same in 1982. He had further sold the property to Harjit Kaur w/o Tejinder Singh and her sons for a sale consideration of Rs. 28,000/- vide registered sale deed dated 19.10.1983. 7. While accepting the suo-moto reference vide his order dated 9.6.1988 the Ld. Chief Settlement Commissioner (Deputy Commissioner, Ferozepur) made the following observations :- "From the available record, it is clear that the property bearing No. B-IV-IR-26(P) is within the bounds of Civil Hospital, Ferozepur. No other property, namely, bearing No. 38(P) exists there. As such, it is amply clear that this property was fictitiously created with mala fide intention in order to favour Avtar Singh respondent. Since Avtar Singh was an employee of the Health department, the mala-fide intention and connivance becomes all the more evident. As such, I am of the view that this auction has been made with malafide intention and is a clear case of fraud with the Government. Accordingly, I accept the suo-motu reference made by the Tehsildar (Sales). Since Avtar Singh was an employee of the Health department, the mala-fide intention and connivance becomes all the more evident. As such, I am of the view that this auction has been made with malafide intention and is a clear case of fraud with the Government. Accordingly, I accept the suo-motu reference made by the Tehsildar (Sales). Ferozepur and set aside the transfer of property No. 38(P) from the name of Avtar Singh respondent. The amount deposited by him as price of the property may be refunded to him. It is further ordered that an enquiry be held by the Settlement Commissioner. Ferozepore (Sub-Divisional Officer (Civil), Ferozepur) into the auction and responsibility for this act of commission be fixed." 8. The aforesaid order dated 9.6.1988 of C.S.C., Ferozepur was assailed before Sh. B.C. Gupta. Commissioner, Ferozepur Division. Ferozepur by filing a revision petition. In fact no appeal/revision lies before the Commissioner under the provisions of D.P. (C&R) Act, 1954. However, the Ld. Commissioner erroneously entertained and decided the revision. While concurring in the findings of the learned C.S.C. that property No. 38(P) was fictitiously created and transferred in the name of Avtar Singh he observed that in the process a fraud had been committed with Govt. He further declined the plea of the petitioners that they were entitled to the protection of Section 41 of Transfer of Property Act, 1882 being bona fide purchasers for consideration. Accordingly he dismissed the revision petition vide his order dated 8.1.1992. 9. Aggrieved against the aforesaid order dated 8.1.1992 of the Commissioner, Ferozepur Division, Harjit Kaur, Jasnik Singh and Jaspreet Singh filed a revision petition before Sh. Karl Reddy, the then Financial Commissioner (Appeals-I) by wrongly invoking the provisions of 15(1) of the Punjab Package Deal Properties (Disposal) Act, 1976, when originally the matter was dealt with under the D.P. (C&R) Act, 1954. The revision petition was dismissed vide order dated 11.9.1998 of F.C.A-I with the observations that a revision petition against the order passed by the Deputy Commissioner. Ferozepur in the capacity of Chief Sales Commissioner (in fact it is Chief Settlement Commissioner and not Chief Sales Commissioner), lies under section 24(4) of the D.P. (C&R) Act and therefore the proceedings before the Commissioner and subsequent proceedings in his Court were not in the proper forum, since the powers of Central Govt. were exercised only by the Financial Commissioner Revenue. 10. were exercised only by the Financial Commissioner Revenue. 10. In the wake of the order dated 11.9.1999 of the F.C.A.-I, the petitioners were relegated to the position they were at the time of passing of the order dated 9.6.1988 of the Chief Settlement Commissioner (D.C. Ferozepur), whereby the transfer of disputed land in favour of Avtar Singh was set aside. It is in the aforesaid circumstances that the petitioners have filed the present petition before me by recourse to the provisions of Section 33 read with Section 24(4) of the D.P. (C&R) Act, 1954 for setting aside the order dated 9.6.1988 passed by the Chief Settlement Commissioner. Ferozepur. 11. Keeping in view the fact that the property in dispute had been held to be in the ownership of Civil Hospital, Ferozepur, a notice was sent to the Health Deptt. for joining the proceedings to project their viewpoint. Responsively, some representatives from the said department had thereafter been appearing in the proceedings. Respondent No. 2 was not served due to incorrect address. The Counsel for the petitioners was directed to furnish the correct address of respondent No. 2 along with registered A.D. envelope but the petitioner did not take any interest to get the service of respondent No. 2 effected. Since Sh. Avtar Singh (Respondent No. 2) had reportedly shifted to America after selling the property to the petitioner, as is clear from the records of the court of C.S.C. he had evidently lost interest in contesting any further proceedings concerning the property. 12. Thereafter, with a view to ascertain the correct position regarding the ownership of the property, the Deputy Commissioner-cum-Collector, Ferozepur was directed to send his report regarding the location of the property alongwith its dimensions duly supported by relevant documents. The Deputy Commissioner reported that the area of the property No. 38(P) is 528 Sq. feet which had been sold by Avtar Singh in favour of Harjit Kaur, Jasnik Singh and Jaspreet Singh. Now three shops stood constructed on the said land which have been given on rent. According to the records of Nagar Council, as per entry in the House Tax Register, S-1 property No. ES/1-30 (which is the property in dispute herein) there is entry of the ownership of Civil Hospital in the relevant column. Now three shops stood constructed on the said land which have been given on rent. According to the records of Nagar Council, as per entry in the House Tax Register, S-1 property No. ES/1-30 (which is the property in dispute herein) there is entry of the ownership of Civil Hospital in the relevant column. The property was inspected by Revenue Officer in the presence of Jaspreet Singh S/o Tejinder Singh, who is one of the petitioners, for satisfying regarding the identity, location and measurements of the property. The Deputy Commissioner concluded that the property in dispute is a part of property No. B-IV-I.R-26(P), which is entered in the ownership of the Hospital. 13. I have carefully gone through the records of the case and have heard the arguments of Ld. Counsel for the petitioners. The Ld. Counsel for the petitioners vehemently argued that the property in dispute was transferred in favour of Avtar Singh (respondent No. 2) vide order dated 12.11.1981 which was followed by conveyance deed dated 4.2.1982. He had, in turn, sold the property in favour of petitioners vide sale deed dated 19.10.1983 for valuable consideration. After the sale the petitioners have been in continuing in possession of said property and have spent an amount of Rs. 50,000/- for its improvement. According to the Ld. Counsel the Chief Settlement Commissioner had erred in accepting the suo-motu reference for cancellation of the transfer of property in favour of Avtar Singh. He further argued that the petitioners are entitled to the protection available under section 41 of the Transfer of Property Act being bona fide purchasers for consideration and without notice. The Ld. Counsel had also relied upon judgment of Civil Court whereby Harjit Kaur was granted permanent injunction against her dispossession from the disputed property except in due course of law. 14. On the other hand Sh. Balbir Singh, Senior State Counsel argued with matching vehemence that since the ownership of the property was vested in the Health Department the Tehsildar (Mahal)-cum-Sales. Ferozepur had transgressed his jurisdiction under the D.P. (C&R) Act, 1954 by assigning fictitious No. 38(P) to the property in dispute and illegally transferring the same to Avtar Singh by treating the property as evacuee property. Ferozepur had transgressed his jurisdiction under the D.P. (C&R) Act, 1954 by assigning fictitious No. 38(P) to the property in dispute and illegally transferring the same to Avtar Singh by treating the property as evacuee property. According to him the entire proceedings taken under the provisions of The D.P. (C&R) Act by different functionaries of the Rehabilitation Department are void ab initio and can be treated to be non-est in the eyes of law and thus, the claim of the petitioners is without any foundation as it emanates from transfer by Tehsildar-cum-Managing Officer who had no statutory authority to deal with the property in dispute. He further argued that the original transaction being fraudulent, the question of extending protection of the provisions of Section 41 of the Transfer of Property Act does not arise. 15. The representatives of the Civil Hospital, Ferozepur appearing in the proceedings also affirmed that the property in dispute was the ownership of Health Department as it was a part of the property which had been transferred way back in 1961 to the Hospital. 16. After applying my thoughtful consideration to the arguments addressed before me and indepth scrutiny of the records available I have no hesitation to conclude that this case epitomizes comedy of errors and the Settlement Commissioner was amply justified in setting aside the sale which had the effect of extending illegal benefit to Avtar Singh, who manipulated the transfer of the disputed property by virtue of a fraudulent transaction. 17. Undoubtedly, the property in dispute was in the ownership of the Health Department being a part of property No. B-IV-1.R.26(R) and it was not an evacuee property. The old map of the Govt. Hospital placed at Page 57 of the file containing the suo motu reference addressed to the Deputy Commissioner, Ferozepur and bearing a scale of 1" : 4 clearly defines the Hospital boundaries and the total area of the Hospital premises. The latest site plan now sent by Deputy Commissioner Ferozepur vide his letter dated 15.9.2000 clearly brings out the property "allotted" to Avtar Singh as an aberration and as a dent in the original boundary. It becomes all the more evident that the Tehsildar-cum-Managing Officer went out of his way to show favour to Avtar Singh by fictitiously carving out property No. 38(P) and selling it to him for a song. It becomes all the more evident that the Tehsildar-cum-Managing Officer went out of his way to show favour to Avtar Singh by fictitiously carving out property No. 38(P) and selling it to him for a song. It follows that Tehsildar (Sales)-cum-M.O. was not legally competent to transfer this area measuring 58 Sq. yards. 6 ft. in favour of Avtar Singh by assigning a fictitious No. 38(P). Significantly, the application dated 25.1.74 of Avtar Singh does not mention any number against the property. Similarly the affidavit dated 1.7.74 described the property as "house No. nil situated near Civil Hospital" (Page 4-5 and 15 of the file of Managing Officer, Ferozepur may be referred to). Two later application (both dated 15.2.74) and an affidavit dated 28.8.81 (Pp 17-19 and 21 of the same file) also do not mention the house number. The fictitious number appeared for the first time in Managing Officers letter dated 8.8.81 (Page 25 of the same file). It becomes abundantly clear that the said Tehsildar acted fraudulently and arbitrarily in assuming jurisdiction which was not legally vested in him to transfer the property belonging to the Hospital by treating it as evacuee property. Therefore, the transfer being illegal and void ab initio, it did not have the effect of clothing Avtar Singh with any title. It appears that Avtar Singh being a Radiographer in the Civil Hospital and being in possession of the property as an employee conspired with the Rehabilitation authorities in getting the same transferred as evacuee property by assigning a fictitious number. It is interesting to note that having purchased the property for a paltry amount of Rs. 1027 vide conveyance deed dated 4.2.1982 he disposed of the same vide registered Sale deed dated 19.10.1983 for a hefty amount of Rs. 28,000. It is notoriously manifest that he manipulated the transaction of sale of the property belonging to Health Department in collusion with the M.O. Rehabilitation Department by abusing his occupancy as an employee (Radiographer) of the Civil Hospital. Since Avtar Singh did not have any right, title or interest in the property, having purchased the same as a result of fraudulent transaction, he could not pass any valid title as against the Health Department in favour of Harjit Kaur and her minor sons by executing registered sale deeds which were also void. Since Avtar Singh did not have any right, title or interest in the property, having purchased the same as a result of fraudulent transaction, he could not pass any valid title as against the Health Department in favour of Harjit Kaur and her minor sons by executing registered sale deeds which were also void. The suo-motu reference for the cancellation of transfer in favour of Avtar Singh which culminated in the order dated 9.6.1988 of the Chief Settlement Commissioner, Ferozepur thereby accepting the reference, was inevitably designed to obliterate the mischief which would have been perpetuated if the illegal transfer in favour of Avtar Singh purporting to have been made in exercise of the powers conferred under the D.P. (C&R) Act, 1954 had been allowed to stand. 18. It is also intriguing to notice that though the matter was dealt with under the provisions of D.P. (C&R) Act, 1954, with assumed jurisdiction, the petitioners compounded the mischief by filing a revision petition before the Commissioner, Ferozepur Division, when there was no provision under the D.P. (C&R) Act enabling filing of a revision petition before the Commissioner of a Division. As order passed by the Chief Settlement Commissioner can be challenged under Section 24(4) of the D.P. (C&R) Act in a revision petition within 30 days of the order before the Central Govt. whose powers stand delegated to the Financial Commissioner Revenue. An aggrieved party can avail itself of an alternative or concurrent remedy by involving the residuary powers of Central Govt. under section 33 of the D.P. (C&R) Act, 1954, which too are being exercised by Financial Commissioner, Revenue. Therefore, the proceedings before Sh. B.C. Gupta, Commissioner Ferozepur Division were without any jurisdiction as was later on discovered by the Financial Commissioner Appeals-I, in his order dated 11.9.1998. 19. The present petition under section 33 read with section 24(4) of the D.P. (C&R) Act, 1954 seeks to challenge the order dated 9.6.1988 passed by the Chief Settlement Commissioner, Ferozepur thereby setting aside the transfer of the property in dispute in favour of Avtar Singh. As already stated since the property in dispute was not evacuee property the Tehsildar-cum-M.O. could not competently deal with the same. He travelled beyond his jurisdiction to transfer the property in favour of Avtar Singh. As already stated since the property in dispute was not evacuee property the Tehsildar-cum-M.O. could not competently deal with the same. He travelled beyond his jurisdiction to transfer the property in favour of Avtar Singh. Since he did not enjoy any statutory power to transfer the property belonging to the Health Deptt., the transfer did not confer any valid title on Avtar Singh. Again the transfer in favour of Avtar Singh being void, he could not pass on any better title in favour of Harjit Kaur and her two sons despite the execution of sale deed in their favour. That sale deed is again null and void having been executed by a person who was not the owner of the property. The protection of the provisions of Section 41 of the T.P. Act is also not available in such like cases as a person having no title in the property cannot pass on a better title, and the transferee cannot be permitted to take the plea of bona fide purchaser. The net result of these transactions is that the property continues to be in the ownership of Health Department. On going through a copy of the judgement dated 17.9.1986 of the Court of Sh. Bhupinder Singh, Sub Judge, IInd Class, Ferozepur it is noticed that Harjit Kaur who is one of the vendees had filed a suit for injunction simpliciter for restraining the Punjab State from taking forcible possession of land in dispute. She never asked for declaration of her title to property in suit (which is the property in present petition). The said suit was decreed for injunction. 20. In view of the aforesaid peculiar facts and circumstances of this case, all the orders passed by the lower functionaries are patently innocuous and may not have any legally adverse effect on the rights of the parties. But at the same time the order of transfer of property passed by Tehisildar-cum-Managing Officer followed by sale deed in favour of Avtar Singh though void and ultra vires nonetheless has at least de facto operation unless and until it was declared to be void and nullity by a competent body or Court. In this situation the Ld. Chief Settlement Commissioner was absolutely justified in accepting the suo-motu reference and quashing the transfer of the property in favour of Avtar Singh. In this situation the Ld. Chief Settlement Commissioner was absolutely justified in accepting the suo-motu reference and quashing the transfer of the property in favour of Avtar Singh. The said impugned order had the effect of straightening the records by removing the confusion which had been generated by the Tehsildar-cum-M.O. in transferring the property in dispute by assigning it a fictitious number 38(P) and treating it as an evacuee property thereby eclipsing the rightful ownership of the Health Department. As the impugned order was aimed at setting aside the illegal order of a hierarchically lower functionary, I am of the considered opinion that there is no justification for interference therein in exercise of the powers under section 33 or for the matter under Section 24(4) of D.P. (C&R) Act. In the result I find no merit in the revision petition and the same it dismissed. One minor deviation is, however, ordered in the orders of the Deputy Commissioner-cum-Chief Settlement Commissioner, Ferozepur, viz, that neither Avtar Singh nor his successor-in-interest shall be entitled to any amount of refund of the sale price of the land. Avtar Singh had illegally and fraudulently obtained the benefit of transfer of the disputed land and the present petitioner is also reported to have put it to commercial use converting it into shops. The occupants are rather liable for eviction under the Punjab Public Premises Act and for payment of rent for the period of use and occupation of the property. A copy of this order to be sent to the Deputy Commissioner, Ferozepur for further action at his end. 21. It is only appropriate to place on record the fact that the Officers of the Health Deptt. have displayed appalling nonchalance in safeguarding the interest of their Department. It was at the instance of the officers of the Revenue Department and not the Health Department that a suo moto reference was made to the Chief Settlement Commissioner-cum-Deputy Commissioner, Ferozepur. The petitioners even alleged before me that some other transactions have also taken place in repsect of other parts of the property, situated inside the Hospital boundary wall and no effort is being made to evict other occupants, while they, the petitioners are being singled out. The respresentatives of the Hospital could not explain the position satisfacotrily. The matter deserves separate probe and necessary action on the part of Health Deptt. The respresentatives of the Hospital could not explain the position satisfacotrily. The matter deserves separate probe and necessary action on the part of Health Deptt. Therefore, a copy of the judgment be also sent to the Department for appropriate action. Revision dismissed.