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2003 DIGILAW 870 (PNJ)

Onkar Singh v. Union Of India

2003-07-02

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. In the instant writ petition, Onkar Singh son of Mela Singh has impugned the order dated 18.5.1999 passed by the Financial Commissioner, Revenue, Punjab vide which he has set aside the orders dated 14.5.1993 (Annexure P-9) and 21.8.1996 (Annexure P-10), passed by the Chief Settlement Commissioner, Hoshiarpur, in which the auction sale held on 25.3.1968 in favour of Amrik Singh (predecessor of respondents No. 7 to 10) was held to be void ab initio and nullity; and the land in question was ordered to be transferred to the petitioner under the policy of the Government on the basis of his possession. 2. The case has got very old and chequered history dating back to prepartition days. The total land in question measuring 1409 sq. yards situated in Hoshiarpur was the ownership of the Muslims, namely, Sher Jumma Khan and Mohammad Jusif Khan. This property was given on rent to M/s Jagan Nath Ram t,al at the monthly rent of Rs.35/- in the year 1944. M/s Jagan Nath Ram Lal inducted Mela Singh (father of the petitioner) and Jagat Ram as sub-tenants on this property. But, subsequently, the aforesaid two persons became direct tenants of the aforesaid Muslim owners by executing a Rent Note dated 16.7.1946 on payment of Rs.90/- per month as rent. Thereafter, Jagat Ram surrendered his tenancy and the aforesaid Mela Singh became the sole tenant under the afore-said Muslim owners. Mela Singh also inducted sub-tenants on some portion of the property and started receiving rent from them. During partition in the year 1947, the afore-said Muslim owners migrated to Pakistan and Mela Singh remained in possession of the aforesaid land as tenant of the Muslims along with the sub-tenants from whom he used to receive rent. After partition, the property became evacuee property and the same vested in the Central Government. The custodian of the Evacuee property started receiving rent from Mela Singh on the basis of the receipts issued by the evacuee owners. 3. Respondents No. 11 to 20 in this petition are the sub-tenants of Mela Singh. In the year 1960, the District Rent and Managing Officer, Hoshiarpur issued demand notice for rent from the sub-tenants. In response to that, the sub-tenants disclosed that they were paying rent to Mela Singh from the very beginning and showed the receipts of payment of rent. Respondents No. 11 to 20 in this petition are the sub-tenants of Mela Singh. In the year 1960, the District Rent and Managing Officer, Hoshiarpur issued demand notice for rent from the sub-tenants. In response to that, the sub-tenants disclosed that they were paying rent to Mela Singh from the very beginning and showed the receipts of payment of rent. Thereafter, the entire rent was claimed from Mela Singh, who was regularly paying rent to the Custodian Department. In the year 1964, sub-tenants made an application to the District Rent and Managing Officer that allotment of the land in question in favour of Mela Singh be cancelled as they were in possession on some portion of the land as sub-tenants. Upon that complaint, the District Rent and Managing Officer vide his order dated 17.12.1964 cancelled the allotment/lease of Mela Singh. On appeal, the said order was set aside by the Settlement Commissioner, Jalandhar vide order dated 26.2.1965 while holding that the property in question has since been given to the Punjab Government in package deal on 5.9.1964, therefore, the District Rent and Managing Officer was having no jurisdiction to cancel the lease/allotment and to initiate eviction proceedings. The revision petition filed by the sub-tenants against the aforesaid order was dismissed by the Chief Settlement Commissioner, New Delhi on 4.6.1965. After some time, the property in question was withdrawn from the package deal and again restored to the compensation pool. 4. On 29.8.1966, the Regional Settlement Commissioner asked the District Rent and Managing Officer, Jalandhar to schedule the property for auction. Thereupon, the District Rent and Managing Officer reported that the property was scheduled for auction but the occupation of the sub-tenants could not be regularised as Mela Singh was still lessee of the property and the rent was being recovered from him. Mela Singh also filed an application for stopping the aforesaid auction. Subsequently, vide his order dated 29.4.1967, the District Rent and Managing Officer, Jalandhar cancelled the lease of the land in question in favour of Mela Singh and it was held that he was liable to pay rent at the rate of Rs.90/- per month. As regards the rent recovered by Mela Singh from sub-tenants, he was directed to deposit the same with the Department. 5. Mela Singh challenged the aforesaid order before the Settlement Commissioner, Jalandhar by filing an appeal. As regards the rent recovered by Mela Singh from sub-tenants, he was directed to deposit the same with the Department. 5. Mela Singh challenged the aforesaid order before the Settlement Commissioner, Jalandhar by filing an appeal. The said appeal was accepted and vide order dated 30.10.1967, the Settlement Commissioner, Jalandhar remanded the matter to the District Rent and Managing Officer with the direction to reexamine the matter as no reason for terminating the lease was given in the order dated 29.4.1967. When the matter was pending before the District Rent and Managing Officer Jalandhar after the remand, the sub-tenants filed an application for becoming party in the proceedings. Their contention was that in the event of failure on the part of Mela Singh to make payment of the rent, which was to be treated as compensation for use and occupation of the property in question, the sub-tenants were to be called upon to make payment directly to the Department, therefore, they were the necessary party. The District Rent and Managing Officer dismissed their application vide order dated 2.2.1968. Against that order, the sub-tenants filed an appeal before the Regional Settlement Commissioner. The said appeal was accepted on 23.3.1968 and the sub-tenants were held to be necessary party; and were allowed to become party. 6. During the pendency of the aforesaid proceedings before the District Rent and Managing Officer, the property in question was auctioned on 25.3.1968 in favour of Amrik Singh. Mela Singh also participated in that auction, but he could not give highest bid. Mela Singh also filed objections to the aforesaid auction and his objections were dismissed by the Regional Settlement Commissioner vide order dated 15.5.1968. Subsequently, out of the total area measuring 1119 sq. yards, which was sold by above auction, an area of 290 sq. yards was allotted to sub-tenants on the basis of their possession for a consideration of Rs. 1,07,967/- and the auction sale price was proportionally reduced and auction sale was confirmed. Ultimately, the Assistant Settlement Officer(S)-cum-M.O. vide his order dated 24.10.1973 held mat Mela Singh was not able to establish his claim as lessee at any stage of the property in question. He was held to be in an unauthorised occupation of a portion of the property in dispute under his possession. Ultimately, the Assistant Settlement Officer(S)-cum-M.O. vide his order dated 24.10.1973 held mat Mela Singh was not able to establish his claim as lessee at any stage of the property in question. He was held to be in an unauthorised occupation of a portion of the property in dispute under his possession. The occupant of the remaining portion of the property in question i.e. the sub-tenants were also to be treated as unauthorised occupants of the Department. As such, it was directed that the necessary action for charging rent/damages for use and occupation of the property in question should be initiated. It was further held that the amount of rent which was charged by Mela Singh from the sub-tenants should also be recovered from him. 7. Against the aforesaid order dated 24.10.1973, Mela Singh filed an appeal before the Settlement Commissioner. During the pendency of the said appeal, Mela Singh also applied on 23.3.1974 for transfer of the property in question to him on the basis of his possession under the Press Note issued by the Government. Meanwhile, Mela Singh expired and his sole son-Onkar Singh (petitioner herein) was impleaded as party. The said appeal was dismissed on 27.10.1975. Against that order, the petitioner filed revision petition under Section 24 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as the Act) before the Chief Settlement Commissioner, Hoshiarpur. The said revision was allowed on 14.5.1993 by the Chief Settlement Commissioner, Hoshiarpur while mentioning his designation as Chief Sales Commissioner. Vide this order, the Chief Settlement Commissioner set aside the auction sale dated 25.3.1968 in favour of Amrik Singh and declared the same as null and void on the ground that a fraud was played on the Department itself. It was held that the sale was conducted in an irregular manner and the property was sold below the reserve price. The auction purchaser was not a party before the Chief Settlement Commissioner. This fact was noticed by him in his order dated 14.5.1993. Inspite of this fact that the auction purchaser was not a party, the auction sale was set aside by the Chief Settlement Commissioner while recording the following reasons:- "I have given the above arguments of the parties my most thoughtful consideration. This fact was noticed by him in his order dated 14.5.1993. Inspite of this fact that the auction purchaser was not a party, the auction sale was set aside by the Chief Settlement Commissioner while recording the following reasons:- "I have given the above arguments of the parties my most thoughtful consideration. It has rightly been argued by the learned counsel for the petitioner that from the admitted fact of the case, status of Mela Singh and after his death that of Onkar Singh is that of a tenant/lessee. Accordingly he can not be asked to pay damages for use and occupation of the property under his possession, particularly for the period earlier to 1.6.73 because that would amount to double payment. To that extent the revision petition must succeed. The allotment made in favour of Amrik Singh is no directly in issue before me, but it does have a bearing on the status and rights of the petitioner and the respondents. Of course, Amrik Singh has not been made a party to the present revision petition. For that reason at first though I was inclined to make Amrik Singh as party and give him a hearing before declaring the allotment in his favour as void, however, I find that the property was auctioned in favour of Amrik Singh during the year 1968 and thereafter he never tried to pursue it at any stage even when part of the property was transferred to nine occupants i.e. the respondents, Amrik Singh never came forward to object to it. Even otherwise for arguments advanced by the learned counsel for both the parties which I need not repeat here, the auction held in favour of Amrik Singh is abinitio void and is to be taken as non-existence. Once the transfers in favour of nine occupants, i.e. the respondents are recognised, Onkar Singh occupant of the remaining portion of property on which he is admittedly running a coal depot should also be entitled to its transfer under the policy of the Government and under the press note issued from time to time. The application already made by Mela Singh deceased and Onkar Singh petition are to be disposed of accordingly." 8. The application already made by Mela Singh deceased and Onkar Singh petition are to be disposed of accordingly." 8. The auction purchasers (legal representatives of Amrik Sigh) field revision petition against the said order as well as the order dated 21.8.1996 vide which the Chief Settlement Commissioner, Hoshiarpur corrected his designation in the impugned order in which he had written his designation as Chief Sales Commissioner. The Financial Commissioner, Revenue, Punjab vide his order dated 18.5.1999 set aside the order of the Chief Settlement Commissioner while holding that the auction sale in favour of the auction purchaser was illegally and wrongly set aside as to the aforesaid auction sale, objections were filed by Mela Singh and the same were dismissed and thereafter the auction sale was confirmed long back. Mela Singh did not take any plea of any misrepresentation or fraud by the auction purchaser or anybody else at that time. No irregularity was alleged in the conduct of auction sale. The only objection of Mela Singh was that the property might not be auctioned as he was the lessee of the same and thus was entitled for its allotment, but he did not ever challenge the auction sale as well as its confirmation. In this order, it was also held that since the property in question was already sold in open auction, therefore, the same was not available for allotment to Mela Singh. This order has been challenged in the instant writ petition by Onkar Singh son of Mela Singh. 9. The contention of the learned counsel for the petitioner is that the respondent-department had allotted 290 sq. yards land out of the disputed property to the sub-tenants on the basis of their illegal occupation and the said area was reduced from the auction sale and secondly the price of the auction was also reduced. It was submitted that on 25.3.1968, the entire property was sold for a consideration of Rs,53,100/- and the said price was reduced to Rs.43,000/- as the area measuring 290 sq. yards allotted to the sub-tenants was also reduced. Learned counsel for the petitioner submitted that there was no difference between the nature of possession of Mela Singh and the sub-tenants. The possession of both were found to be unauthorised, but the allotment was made in favour of only sub-tenants and the auction sale qua the remaining portion was confirmed and upheld. 10. Learned counsel for the petitioner submitted that there was no difference between the nature of possession of Mela Singh and the sub-tenants. The possession of both were found to be unauthorised, but the allotment was made in favour of only sub-tenants and the auction sale qua the remaining portion was confirmed and upheld. 10. In the instant writ petition, the main thrust of the arguments of the learned counsel for the petitioner is that the auction sale conducted by the Department on 25.3.1968 was wholly illegal and void and it was rightly so declared by the Chief Settlement Commissioner vide order dated 14.5.1993 (Annexure P-9) but the learned Financial Commissioner has wrongly set aside the said order. The learned counsel for the petitioner submitted that after declaring the aforesaid auction sale as illegal and void, the claim of the petitioner for allotment of the remaining land measuring 1119 sq. yards on the basis of long possessions of Mela Singh should have been considered and the petimitted that the reserve price of the land was fixed as Rs.68,000/- whereas the property was sold for a consideration of Rs.53,100/- which was subsequently reduced to Rs.43,000/- as an area of 290 sq. yards was also reduced from the auction sale, as the said area was allotted by the Department to the sub-tenants. The learned counsel for the petitioner further submitted that the Department allotted 290 sq, yards are to the sub-tenants for a consideration of Rs. 1,07,967/- whereas the remaining area, which was measuring 1119 sq. yards was transferred to the auction purchaser only for a consideration of Rs.43,000/-. The learned counsel for the petitioner submitted that once the auction sale was bifurcated in two portions, then the integrity of the auction sale was broken and the auction sale held on 25.3.1968 lost its sanctity, therefore, the same should be set aside. The learned counsel for the petitioner further submitted that when the auction safe took place, the matter regarding cancellation of lease of Mela Singh was pending before the authorities, therefore, the auction sale took place during the pendency of the said dispute. As such, the auction sale conducted by the respondent-department on 25.3.1968 was hit by the principle of lis pendens and the same is not binding on the petitioner. As such, the auction sale conducted by the respondent-department on 25.3.1968 was hit by the principle of lis pendens and the same is not binding on the petitioner. Therefore, the claim of the petitioner for allotment of the land in question on the basis of long possession of Mela Singh should have been allowed. 11. On the other hand, learned counsel for the auction purchaser submitted that to the auction held on 25.3.1968, Mela Singh filed objections on the ground that he was in possession of the land in question and thus was entitled for allotment of the name. His objections were dismissed. He did not challenge that order. The sale in favour of the auction purchaser was confirmed. Inspite of the fact that the land in question was auctioned in favour of Amrik Singh, Mela Singh never impleaded him as a party before any proceedings initiated by him in the Department. He did not at all pursue the matter pertaining to the auction of the land in favour of Amrik Singh. When the Chief Settlement Commissioner set aside the auction sale in favour of the auction purchaser, neither the auction purchaser was impleaded as a party nor he had been heard at that time. The learned counsel submitted that there is no infirmity or illegality in the impugned order passed by the learned Financial Commissioner, as the claim of the petitioner for allotment of land in question on the basis of long possession has been rightly declined; as when Mela Singh filed an application for allotment of the land in question on the basis of his long possession, the property in question was not available for allotment, as the same was already sold in public auction. 12. After hearing learned counsel for the parties and perusing the record of the case, I am of the opinion that there is no merit in the instant writ petition. In this writ petition, the sole prayer of the petitioner is to set aside the auction sale held on 25.3.1968 and to declare the same to be void on the grounds that grave irregularities were conducted at the time of conduct of auction. In this writ petition, the sole prayer of the petitioner is to set aside the auction sale held on 25.3.1968 and to declare the same to be void on the grounds that grave irregularities were conducted at the time of conduct of auction. The second prayer of the petitioner in this petition is that he is legally entitled for allotment of the property in dispute on the basis of long possession of his predecessor Mela Singh, as per pressnotes issued by the State Government from time to time. The petitioner alleges that he has been discriminated against the sub-tenants of Mela Singh, who were also in illegal possession of the land in question, and were allotted the land measuring 290 sq. yards. But the petitioner was not allotted the land, which was in possession of his predecessor Mela Singh. As per the material available on the record, the auction sale of the property in question took place on 25.3.1968. According to the averments made in the written statement filed on behalf of respondents No. 2 to 6, Mela Singh also participated in the aforesaid auction conducted by the Managing Officer (Sales), Jalandhar, but he could not give highest bid. It has also come on record that against the aforesaid auction sale, Mela Singh filed objections, which were also dismissed and the sale in favour of auction purchaser was confirmed, though an area, which was allotted to the sub-tenants, was reduced from the area to be sold by the said action. Against the dismissal of his objections or the confirmation of auction sale, Mela Singh did not file any further appeal or revision as permis sible to him under the law. He never challenged the auction sale or confirmation of auction in any proceeding by impleading the auction purchaser as a party. He was only agitating the matter regarding cancellation of his lease by the Managing Officer (Sales). In those proceedings, he never impleaded the auction purchaser as a party. The Chief Settlement Commissioner in his order dated 14.5.1993 though had noticed that, "the allotment made in favour of Amrik Singh is not directly in issue before me, but it does have a bearing on the status and rights of the petitioner and the respondent". In those proceedings, he never impleaded the auction purchaser as a party. The Chief Settlement Commissioner in his order dated 14.5.1993 though had noticed that, "the allotment made in favour of Amrik Singh is not directly in issue before me, but it does have a bearing on the status and rights of the petitioner and the respondent". Of course, the auction purchaser was not made a party to the revision petition but in spite of that he set aside the auction sale in favour of Amrik Singh (auction purchaser) without providing any opportunity of hearing to him. In my opinion, the learned Financial Commissioner has rightly set aside that order. There was no justification for the Chief Settlement Commissioner to set aside the auction after 25 years on the ground of irregularity conducted in the auction sale, and that too, without providing any opportunity of hearing to the auction purchaser. Providing of hearing to the auction purchaser before setting aside the same by the Chief Settlement Commissioner, in his inherent power, is mandatory, as required under Section 25 of the Act. Keeping in view the conduct of Mela Singh having participated in the auction sale and having his objections dismissed to the aforesaid auction sale, the same cannot be set aside or declared null and void on the ground that when the auction sale took place, the matter regarding cancellation of his lease was pending before the authorities. The question of the doctrine of lis pendens does not apply here. If the auction sale was conducted in the year 1968, Mela Singh was at liberty to challenge that auction sale, if the same had violated his rights at that time. If he chose not to challenge the said auction at a relevant time, now, after the expiry of 25-30 years, he cannot be allowed to challenge the auction sale in favour of the auction purchaser. All the points raised by the petitioner to challenge the aforesaid auction sale on the basis of doctrine of lis pendens, discrimination and fraud in the conduct of auction sale, are now not available to the petitioner after the expiry of long period and particularly when Mela Singh himself participated in the auction and his objections to the auction sale was dismissed in the year 1968-69. 13. 13. In view of the aforesaid discussion, I do not find any merit in the writ petition and the same is hereby dismissed, with no order as to costs.