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2016 DIGILAW 154 (HP)

RAJINDER SINGH v. STATE OF HIMACHAL PRADESH

2016-02-29

NARINDER CHAUHAN

body2016
ORDER : 1. This revision petition has been preferred under section 24(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (hereinafter referred to as the Act), against the order dated 17-12-2011 passed by Chief Settlement Commissioner, Rehabilitation. H.P., in Case no. 35/2001 CSC, whereby the order dated 22.7.1996, passed by the Naib-Tehsildar (Sales)-cum-Managing Officer, Kangra, was set aside and conveyance deed executed on 23-07-1996, in favour of the petitioner, was cancelled. 2. Brief facts of the case are that land comprised in Khasra nos. 228, 246, 247, 248, 257, 258, 260, 333, 334, 338, 339, 350, 352, 353, 354, 358, 249, 351, 1353, 1363, 1385, 1386, 1391, 1392, 1393, 2100, 2115, 2116, 2117, 2118, 2184, 2125, 2254, 2260, 2272,2273,2274,2275, 2276,2361/1, 2430,2432, 2449, 2440,2441, 2442, kita 46, area 23-95-62 hectares, situated in Mauza Bhadpur, Tehsil Fatehpur, District Kangra, H.P., was recorded in the ownership and possession of the Central Government. The Naib-Tehsildar (Sales)-cum-Managing Officer, Kangra transferred this land in favour of the proforma respondents no. 3 to 5, nemaly; Shri Nageshwar, half share, and Servjit Singh, Mohinder Singh both half share, vide sale certificate no. 312-314, dated 23-7-1996, for a consideration of Rs. 35000/-) The purchasers sold some part of this land in favour of present proforma respondent no.(sick) (Vijender Singh) and also to petitioners and consequently their names-have been reflected in the column of ownership in the subsequent jamabandi qua the land sold to them. 3. In the year 2001, the Id. Chief Settlement Commissioner, Rehabilitation (CSC) initiated suo-motu proceedings under section 24 of the Act, and issued show cause notice to Shri Nageshwar, Servjit Singh, Mohinder Singh, profrma respondent no. 3 to 5. After providing an opportunity to the parties and on perusal of the record, the Id. CSC, observed that the Naib-Tehsildar(Sales)-cum-Managing Officer, without caring for the law has ordered the transfer of the evacuee property and has misused his official position, causing a loss to the Government, and as such, has committed a fraud with the Government, for which separate criminal proceedings were initiated against him. Accordingly, vide order dated 17.12.2011, the CSC, set aside order dated 22.7.1996 of the N.T. Sales), and the subsequent sale certificate dated 23.7.1996, has also been cancelled. 4. Feeling aggrieved with the above order of the CSC, the present petitioners have filed this revision petition before this court on the ground that the Id. Accordingly, vide order dated 17.12.2011, the CSC, set aside order dated 22.7.1996 of the N.T. Sales), and the subsequent sale certificate dated 23.7.1996, has also been cancelled. 4. Feeling aggrieved with the above order of the CSC, the present petitioners have filed this revision petition before this court on the ground that the Id. CSC has committed an error while cancelling the conveyance deed dated 23.7.1996, as a matter of fact the proforma respondents no. 3 to 6, had sold the said land to the petitioners and the Id. CSC did not think it fit to issue notice to the petitioners, the actual owners of the property at present, that the Naib-Tehsildar (Sales) was empowered by the competent authority for transferring the aforesaid land, not only this, the land was in possession of the respondents, and for the purchase of aforesaid land, they had paid a sum of Rs. 35000/- as the market value assessed by the concerned Kanungo and the N.T. Sales, himself. Lastly, it has been contended that the suo moto action initiated by the court below was hit by delay and laches at the conveyance deed was executed in the year 1996 and the competent authority was aware of this fact, but the notice was issued to the proforma respondents in the year 2002 i.e. after lapse of almost 7 years for which the Id. court below is having no jurisdiction; as such, the order dated 17.12.2011, is liable to be set aside. 5. On considering the CMP No. 179/2015, filed under Order 1, Rule 10 of CPC, Shri Kamal Swaroop and Arvind Kuamr, have also been impleaded as petitioners no. 3, 4 being subsequent purchaser, but none appeared for them at the time of arguments. On the other hand, proforma respondents no. 3, 4 and 6 have also been proceeded against ex parte for none appearance. 6. I have heard the Id. counsel for the petitioners no. 1 to 2 and Id. Dy. D.A.(Rev) appearing on behalf of the respondents no.1,2 as well as Id. counsel for proforma respondent no. 5. Besides the grounds taken in the revision petition, Advocate Vandna Thakur, who appeared as vice Shri Surinder Saklani, counsel for petitioners no. 1 & 2, argued that they have become the owners of the land in question after purchasing the same from original purchasers of evacuee land. That the Id. counsel for proforma respondent no. 5. Besides the grounds taken in the revision petition, Advocate Vandna Thakur, who appeared as vice Shri Surinder Saklani, counsel for petitioners no. 1 & 2, argued that they have become the owners of the land in question after purchasing the same from original purchasers of evacuee land. That the Id. CSC has passed the impugned orders without affording any opportunity of being,heard to the petitioners. Ld. counsel further argued that the Id. CSC was/is not competent to pass such orders and as such the impugned order orders passed by him deserve to be set aside, being without jurisdiction. 7. Shri Sanjay Jaswal, Advocate counsel fro the proforma respondent no. 5, argued that they were bona fide pi chaser of the land in question as they have purchased the land from the competent Government authority and has paid the consideration amount duly assessed by the Government functionaries. Ld. counsel further argued that in case they were not legible/entitled to purchase the land in question, the Officer should have rejected their application. He further prayed that they are not at fault in any manner and as such the order of the CSC is liable to be set aside in the interest of justice. 8. On behalf of the respondent/State, Shri Umesh Mohan, Id. D.A.(Rev), argued that the Id. CSC is very much competent to review cases under section 24 of the Act and has rightly reviewed the orders because the Managing Officer has not followed the procedure prescribed under the law for the purchase of transfer of land in question. He further argued that the application of present respondents no. 3 to 5 has been processed in such a hasty manner that the connivance of the allottees with the revenue functionaries cannot be over ruled. Ld. D.A.(Rev)as supported the order dated 17.12.2011, passed by the Id. CSC in case no. 35/2001 CSC, and urged to dismiss the present revision petition. 9. After a careful consideration of the aforesaid arguments, it is clear that the main issue which is required to be determined is as to whether, the Managing Officer-cum-Naib- Tehsildar (Sales) was competent/authorised to transfer the land in question in the manner as has been done in the present case. 35/2001 CSC, and urged to dismiss the present revision petition. 9. After a careful consideration of the aforesaid arguments, it is clear that the main issue which is required to be determined is as to whether, the Managing Officer-cum-Naib- Tehsildar (Sales) was competent/authorised to transfer the land in question in the manner as has been done in the present case. For this purpose it would be appropriate to discuss the relevant provisions of the Act and the Displaced Persons (Compensation & Rehabilitation) Rules, 1955 (hereinafter referred to as 'the Rules). Section 17 the Act provides for functions and duties of the managing officers and managing corporations. Sub-Section (1) and (2) of said section are relevant and therefore reproduced, as follows,- "17. Functions and duties of managing officers and managing corporations: (1) All managing officers or managing corporations shall perform such functions as may be assigned to them by or under the general superintendence and control of the Chief Settlement Commissioner. (2) Subject to provisions of this Act and rules made thereunder, a managing officer or managing corporation may take such measures as he or it considers necessary or expedient for the purpose of securing, administering, preserving, managing or disposing of any property in the compensation pool entrusted to him or it and generally for the purpose of satisfactorily discharging any of the duties imposed on him or it by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto. 10. From bare perusal of aforesaid provisions it is clear that the Managing Officer is empowered to manage which of course include a power to allot or lease out property, but this power is to be exercised subject to the provisions of this Act. Section 20 of the Act, empowers the managing officer or managing corporation to transfer property out of the compensation pool, subject to rules framed under the Act. Sub-section (1)(a) of said section which is relevant for disposal of the case in hand, is reproduced as follows:- Section 20. Section 20 of the Act, empowers the managing officer or managing corporation to transfer property out of the compensation pool, subject to rules framed under the Act. Sub-section (1)(a) of said section which is relevant for disposal of the case in hand, is reproduced as follows:- Section 20. Power to transfer property out of the compensation pool:-(1) Subject to any rules that maybe made under this Act, the managing officer or managing corporation may transfer any property out of the compensation pool: (a) by sale of such property to a displaced person or any association of displaced persons, whether incorporated or not, or to any other person, whether the property is sold by public auction or otherwise." 11. Hence, it is clear that the power of the managing office to transfer property out of the compensation pool, to a displaced person or any association of displaced persons, whether incorporated or not, or to any ether person, whether the property is sold by public auction or otherwise, is subject to provisions of rules. 12. Further, rule 87 of the Rules, clearly provides that any property forming part of the compensation pool may be sold by public auction or by inviting tenders or in such other manner as the Chief Settlement Commissioner may, by general or special order direct. But no such general or special orders appear to have been issued by the Chief Settlement Commissioner. Furthermore, rule 88 of the Rules clearly states that the Chief Settlement Commissioner may from time to time, determine the class of persons who shall be entitled to bid or to offer tenders in respect of the various kinds of properties in the compensation pool proposed to be sold. Further Rules 90 and 91 prescribed detailed procedure for sale of property by public auction and sale of property by tender, respectively. Further, powers of managing officer under rule 101 to sell property, is also subject to general or special orders of the Chief Settlement commissioner. 13. Hence, from the above discussion, it is clear that the Managing Officer was not empowered to transfer the land in question. The powers conferred upon him under the Act and the Rules are subject to over all control of the Settlement Commissioner/Chief Settlement Commissioner. But, in the instant case the Managing Officer has not taken any such approval to transfer the land in question. The powers conferred upon him under the Act and the Rules are subject to over all control of the Settlement Commissioner/Chief Settlement Commissioner. But, in the instant case the Managing Officer has not taken any such approval to transfer the land in question. From the perusal of record of Managing Officer-cum-Naib-Tehsildar (Sales), Kangra, it is evident that in the instant case, the land in question has not been sold either by way of open auction or by inviting tender. Further, there is nothing on record to suggest that the land in question has been sold under some general or special orders/direction of the Chief Settlement Commissioner. Hence, it is clear that the land in question has been transferred by the Managing Officer-cum-Naib Tehsildar (Sales) without following the due process of law as envisaged under the Act and the Rules. 14. Further it is not beyond the doubt that as to how land measuring 23-95-62 hectares (approximately 319 bighas) has been transferred for a mere consideration of Rs.35,000/- that too in the year 1996 when the rates of land were considerably high. Even the provisions of HP. Ceiling on Land Holdings Act, 1972 did not appear to have been kept in mind while transferring the land in question. The record of the Naib-Tehsildar (Sales), Kangra clearly shows that application for transfer of the land in question, was made on 22.7.1996 when it was marked to Kanungo (Sales) for spot inspection. The spot inspection was made by the Kanungo concerned on the same day i.e. 22.7.1996. Thereafter, on the same day, the Naib-Tehsildar (Sales) also inspected the spot and passed the orders of sale. The sale certificate has been issued on very next day i.e. 23.7.1996. Further, perusal of the record shows that the classification of the land in question reflected in the relevant jamabandi has not been taken into consideration for calculation of the market value. Contrary to this, the land has been shown of lower category in the spot inspection reports just to reduce the market value of land to give undue benefit to the purchasers. All these facts clearly indicate that the land in question has been managed to be transferred by the purchasers in connivance with the Officials/Officers of the Department who committed a grave irregularity/illegality by not following the procedure envisaged under the law for the purpose. 15. All these facts clearly indicate that the land in question has been managed to be transferred by the purchasers in connivance with the Officials/Officers of the Department who committed a grave irregularity/illegality by not following the procedure envisaged under the law for the purpose. 15. So far as the contention of the present petitioners qua passing the order behind their back is concerned, the Chief Settlement Commissioner has rightly issued the notices only to those persons in whose favour the land in question was originally transferred by the Managing Officer-cum- Naib Tehsildar (Sales), Kangra, in the year 1996. Further, since the original transactions is void-ab-initio, being made in violation of the Act and the Rules framed thereunder, the subsequent transactions automatically become in-fructuous. 16. In view of the above discussions, it is clear that Managing Officer-cum-Naib-Tehsildar (Sales), was neither competent to transfer the land in question nor he has followed the provisions of law to do so. Since, the Managing Officer has committed serious irregularity and impropriety by regularising the encroachment of present proforma respondents no. 3 to 5 on the evacuee land, the Chief Settlement Commissioner has rightly invoked the powers vested under him under section 24 of the Act, ibid and has rightly cancelled the conveyance deed vide impugned order to protect the basic intention and spirit of the Act I find no reason what soever to interfere with the order dated 17.12.2011, so passed by the Id. Chief Settlement Commissioner, Rehabilitation, H.P. in case No. 35/2001 CSC, are hereby upheld and the present revision being devoid of any merit, is dismissed. 17. Order be communicated. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.