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2016 DIGILAW 179 (HP)

BAGGA RAM (DECEASED) v. STATE OF HIMACHAL PRADESH

2016-03-02

NARINDER CHAUHAN

body2016
ORDER : 1. Narinder Chauhan, J. - 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 14.9.2011, passed by the Chief Settlement Commissioner, Rehabilitation, H.P., in Case no. 6/2000, whereby the order of the Naib-Tehsildar (Sales)-cum-Managing Officer, Shimla, qua allotment/transfer of land in question in favour of the petitioner, has been set aside and the conveyance deed executed in pursuance to that order, executed in favour of present petitioner has been cancelled. 2. Briefly stated the facts of the case are that on an application dated 26.12.1992, filed by the present petitioner Shri Bagga Ram, the Naib Tehsildar(Sales)-cum-Managing Officer, Shimla vide order dated 'nil' transferred the land comprised in khasra no. 552, 555, 560, 570, 572, 573, 575, 576, 894, 895, kita 10, area measuring 15-18 bighas and out of khasra no. 893, measuring 16-1 bighas to the extent of 146/321 share, measuring 7-6 bighas, total area measuring 23-4 bighas, situated in village Adowal Jandori, Tehsil Nalagarh, as per jamabandi for the year 1988-89, which was recorded in the ownership of Central Government and under the possession of Shri Bagga Ram and his father Shri Vishnoo as 'chakotadar', for a consideration of Rs. 16900/-. In pursuance to that order, he {N.T.(Sales)}, issued a sale certificate vide 548-550/TSS, dated 5 10.1993. 3. In the year 2000, the Id. Chief Settlement Commissioner, Rehabilitation, (CSC) H.P. initiated suo-motu proceedings under section 24 of the Act, and issued a show cause notice to the present petitioner. After affording due opportunity of being heard to the parties and on perusal of the record and reply filed by the present petitioners, the Id. CSC, observed that the Naib-Tehsildar (Sales)-cum-Managing Officer, without caring for the law devised his own method of transfer of the said land, in utter violation of law. Accordingly, the Id. CSC, vide order dated 24.9.2011, set aside the order of the N.T.(Sales)-cum-Managing Office, and cancelled the conveyance deed executed in pursuance to that order. Feeling aggrieved with the above order of the CSC, the present petitioners have filed this revision petition. 4. During the course of pendency, the petitioner(Bagga Ram) expired, therefore, his LRs have been impleaded as petitioners as per M.A. No. 105/2014. Thereafter, the Id. Feeling aggrieved with the above order of the CSC, the present petitioners have filed this revision petition. 4. During the course of pendency, the petitioner(Bagga Ram) expired, therefore, his LRs have been impleaded as petitioners as per M.A. No. 105/2014. Thereafter, the Id. counsel for the petitioners has failed to argue the case despite several opportunities having been provided to him since 19.8.2014. Since, he failed to put his appearance before this court after 22.9.2015, notices were issued to the petitioners, but they also failed to appear despite service. Hence, the grounds of the revision petition have been taken into consideration on behalf of the petitioners to substantiate their claim. 5. The petitioner has filed this revision petition mainly on the grounds that the sale certificate dated 5.10.1993 has been issued to the petitioner in public auction by the N.T.(Sales) after following due process of law. It has been submitted that the land was in their possession since the time of predecessors of the petitioner, and for this reason the N.T.(Sales) has issued sale certificate in public auction on 5.10.1993, and the Id. CSC has issued notice to the petitioners after a long period of nine years which shows malafides and has cancelled sale certificate issued by the N.T.(sales) only on the ground the he had no powers to issue the sale certificate. It has been averred that the CSC has passed the impugned order without jurisdiction, a legal and valid title cannot be cancelled in summary proceedings, and where the entries are reflected in subsequent jamabandis, it is within the ambit of Civil Court only. It has been further submitted that Id. court below has wrongly misconstrued Rules 87 and 88 of the Rules 1955, as the rules cannot override the Act of 1954 and the power is from the Act and not from the rules, it has been averred that, as such the misconstruction of the Rules 87 & 88 in support of the conclusions are erroneous. It has also been averred that the suo moto powers are required to be exercised in a reasonable time and the exercise of such power after 19 years renders the impugned order illegal and vitiated. Therefore, it has been urged that he present revision petition may be allowed and the impugned order dated 24.9.2011, passed by the CSC, may be quashed and set aside. 6. I have heard the. Distt. Therefore, it has been urged that he present revision petition may be allowed and the impugned order dated 24.9.2011, passed by the CSC, may be quashed and set aside. 6. I have heard the. Distt. Attorney(Rev) appearing on behalf of the State/respondent, who argued that a fraud has been committed is clearly manifest in the said transaction, and the orders of sale have been passed by the N.T. (Sales), without following the prescribed procedure. No valuation of the property has been done and connivance of the petitioner cannot be ruled out. Ld. D.A.(Rev) further argued that the petitioner cannot claim any benefit on the basis of any judgment because an illegal transaction does not create any enforceable right, title and interest and further contended that the Hon'ble High Court has taken cognizance of several encroachments on Government and Forest land and Evacuee property fails in a similar category. Lastly, the Id. Distt. Attorney argued that encroachment over the Central Government land cannot be regularised in the garb of sale under the Act, and vehemently opposed the present revision petition and urged to dismiss the same. 7. I have considered the arguments advanced on behalf of respondent/State and considered the plea of the petitioners in the revision petition, and have also carefully gone through the record of the court below. From the above averments advanced on behalf of both the parties, 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. 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 the 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. 8. From bare perusal of aforesaid provisions it is clear that the Managing Officer is empowered to manage, which of course includes the power to allot or lease out property. However, 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. Section 20(1)(a) of the Act provides as follows:- Section 20. Power to transfer property out of the compensation pool:- (1) Subject to any rules that may be 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; "Hence, from the opening lines of section 20 reproduced above, it is clear that the powers under this section are subject to rules made under the Act. As such, the plea of the petitioners that the powers to transfer evacuee land are conferred upon the Naib-Tehsildar (Sales) under the Act, are absolute powers and not subject to any restrictions is not an acceptable proposition of law. 9. As such, the plea of the petitioners that the powers to transfer evacuee land are conferred upon the Naib-Tehsildar (Sales) under the Act, are absolute powers and not subject to any restrictions is not an acceptable proposition of law. 9. Further, Rule 87, 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 also 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. Hence, it is clear from the above provisions that the N.T.(Sales)-cum-Managing Officers, are not empowered to transfer evacuee land in the manner as has been done in the case at hand. 10. A bare perusal of copy of jamabandi for the year 1988-89 available on page 13 of the case file of the Naib-Tehsildar (Sales) reveals that the land in question is an evacuee property recorded under the ownership of "Central Government" and under the possession of Shri Bagga Ram and his father Shri Vishnoo as "Chakotadar". The land in question being evacuee land, in that situation the perusal of order dated 24.9.2011, passed by the Chief Settlement Commissioner, Rehabilitation, reveals that the N.T.(Sales) has transferred the land mentioned in para 2 supra, measuring 23-4 bighas, without following the prescribed procedure. Section 19(2)(b) of the Act, clearly states that where any person is in unauthorized possession of any evacuee property or any other immovable property forming part of the compensation pool, he shall after giving reasonable opportunity, be evicted from such land, relevant sub-section (2)(b) and (3) of said section are reproduced, as follows: S. 19. Section 19(2)(b) of the Act, clearly states that where any person is in unauthorized possession of any evacuee property or any other immovable property forming part of the compensation pool, he shall after giving reasonable opportunity, be evicted from such land, relevant sub-section (2)(b) and (3) of said section are reproduced, as follows: S. 19. Power to vary or cancel lease or allotment of any property acquired under this Act:- (1) XXX (2) Where any person (a) XXX (b) is otherwise in unauthorized possession of any evacuee property or any other immovable property forming part of the compensation pool, he shall, after he has been given a reasonable opportunity of showing cause against his eviction from such property, surrender possession of the property on demand being made in this behalf by the managing officer or managing corporation or by any other person duly authorised by such officer or corporation. (3) If any person fails to surrender possession of any property on demand made under sub-section (2), the managing officer or managing corporation mat, notwithstanding anything to the contrary contained in any other law of the time being in force, eject such person and take possession of such property and may, for such propose, use or cause to be used such forces as may be necessary. 11. The perusal of the record of the N.T.(Sales)-cum-Managing Officer, clearly shows that the Managing Officer (N.T Sales) has not even bothered to ascertain the eligibility/ entitlement of present petitioner for allotment of land under the Act. Even if this is considered as a case of allotment, the procedure prescribed under the law has not been followed by the Managing Officer (N.T Sales) before making such allotment. In the instant case, the Naib-Tehsildar (Sales), without caring for the law, devised his own mode of transfer of the land, and as has also been observed by the CSC, the possibility of connivance of the petitioner with the Government functionaries cannot be ruled out. The Chief Settlement Commissioner vide his impugned order has rightly observed that the procedure laid down in the Act/Rules has not been followed by the Managing Office -cum-(N.T. Sales). The Chief Settlement Commissioner vide his impugned order has rightly observed that the procedure laid down in the Act/Rules has not been followed by the Managing Office -cum-(N.T. Sales). Moreover as per rule 92(4), which is reproduced below even the Settlement Commissioner may of his own motion set aside any sale made under Chapter XIV of the Rules, if he is satisfied that any material irregularity or fraud has been committed in the conduct of the rules:- 92. Procedure for setting aside a sale.- (1) to (3) XXX XXX XXX (4) Notwithstanding anything contained in this rule, the Settlement Commissioner may, of his own motion, set aside any sale under this chapter if he is satisfied that any material irregularity or fraud which has resulted in a substantial injury to any person has been committed in the conduct of the sale. 12. So far as the claim of the petitioner as 'Chakodar is concerned, there is no such provision in the Act which entitles 'Chakotadar' for allotment of 'evacuee property/land'. Moreover, clause (j) section of 2 of the Administration of Evacuee Property Act, 1950 reproduced below, recognises a person who after the 14th day of August, 1947, has been occupying, supervising or managing the property of an evacuee without the approval of Custodian, as an 'unauthorized person' even if such person was duly empowered, in this behalf by the evacuee:- Section 2(j):- "Unauthorized person" means any person (whether duly empowered in this behalf by the evacuee or otherwise) who, after the 14th day of August 1947, has been occupying, supervising or managing the property of an evacuee without the approval of Custodian. Moreover Section 7 of the Administration of Evacuee Property Act, 1950 provides for declaration/notification of the evacuee property as such after issuance of a notice. After issuance of such notice, property becomes subject to control of Custodian. Provisions of section 7 are reproduced below:- Section 7. Notifications of evacuee property:- (1) Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given in such manner as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. Notifications of evacuee property:- (1) Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given in such manner as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. [(1 A) Where during the pendency of any proceeding under sub-section (1) for declaring any property to be evacuee property any person interested in the property dies, the proceeding shall, unless the Custodian otherwise directs, be continued and disposed of as if such person were alive] (2) Where as notice has been issued under sub-section (1)in respect of any property, such property shall, pending the determination of the question whether it is evacuee property or otherwise be incapable of being transferred or charged in any way, except with the leave of the Custodian and no person shall be capable of taking any benefit from such transfer or charge except with such leave. (3) The Custodian shall, from time to time, notify, either by publication in the Official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under sub-section(1). Besides, section 12, empowers the Custodian to vary or cancel lease or allotment of evacuee property, reproduced as follow:- Section 12. Power regarding vary or cancel leases or allotment of evacuee property:- (1) Notwithstanding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate any lease or amend the terms of any lease or agreement under which any evacuee property is held or occupied by a person, [whether such allotment, lease or agreement was granted or entered into before or after the commencement of this Act.] [Provided that in the case of any lease granted before the 14th day of August 1947, the Custodian shall not exercise any of the powers conferred upon him under this sub-section unless he is satisfied that the lease- (a) has sublet, assigned or otherwise parted with the possession of the whole or any part of the property' leased to him; [or] (b) has used or is using such property for a purpose other than that for which it was leased to him; [or] (c) has failed to pay rent in accordance with the terms of the lease. Explanation.-In this sub-section, 'lease' includes a lease granted by the Custodian and 'agreement' includes an agreement entered into by the Custodian.] (2)Where by reason of action taken under sub-section (1), any person has ceased to be entitled to possession of any evacuee property, he shall on demand by the Custodian surrender possession of such property to the Custodian or to any person duly authorised by him in this behalf. (3) If any person fails to surrender possession of any property on demand under sub-section(2), the Custodian may, notwithstanding anything to the contrary contained in any other law for the time being in force, eject such person and take possession of such property in the manner provided in Section 9. Keeping in view the above provisions of the Act, the claim of the petitioner qua "Chakautadar" is not tenable in the eyes of law. 13. In view of the above observations, the present revision petition deserves to be dismissed and the orders passed by the Id. Chief Settlement Commissioner, Rehabilitation, H.P. dated 24.9.2011, being within the ambit of provisions of law, are upheld, and the revision petition is dismissed. 14. However, since, the petitioners have stated in their application that they have constructed residential house over the part of land in dispute, and such claims have been made in other similar cases before this court, it would be appropriate for ACS-cum-Financial Commissioner(Revenue) to the Govt, of H.P to formulate a policy to settle such genuine cases, at least to regularise the constructed area, in the interest of justice, so that they may not become houseless. A copy of this order be sent to the ACS-cum-F.C.(Rev) to the Government of H.P for consideration. 15. Order be communicated to the parties. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.