Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 180 (HP)

MOHAMMAD ASLAM v. STATE OF HIMACHAL PRADESH

2016-03-02

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 14.9.2011, passed by Chief Settlement Commissioner, Rehabilitation, H.P, in Case no. 87/2002CSC, whereby the order dated 11.11.1992 passed by the Naib-Tehsildar (Sales)-cum-Managing Officer, Shimla, has been set aside and the conveyance deed No. 537-539/TSS, dated 25.11.1992 executed in favour of present petitioners has been cancelled. 2. Briefly stated the facts of the case are that as per jamabandi for the year 1954-55, of Mauza Nalagarh, Tehsil Nalagarh, Distt. Solan, H.P, the land comprised in old khasra nos. 288/83 and 290/87, kita 4, area measuring 1-0 bigha, was recorded in the ownership of "Abdul Gaffer" (predecessor-in-interest of the present petitioners) and in the column of possession in the name of "Custodian Department". An application was filed by the present petitioners on 19.6.1991, stating therein that khasra no. 1275(new) measuring 809.90sq. meter was in the ownership of their grandfather Shri Abdul Gaffer, but after his death the land has been recorded in the ownership of Central Government, therefore, it was requested that this land may be allotted to them on the market price. Therefore, on the basis of this application, Naib-Tehsildar(Sales)-cum-Managing Officer, Shimla sold and transferred this land in their favour vide order dated 11.11.1992 for a consideration of Rs. 28350/-, and issued a sale certificate vide no. 537-39/TSS, dated 25.11.1992. 3. In the year 2002, 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 petitioners. 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, was not competent to transfer the said evacuee property in such a manner, without following proper procedure as required under Rule 87 of the DP(C&R), Rules, 1955, which provides that evacuee property can be transferred/sold through public auction or inviting tenders or by general or special order to be issued by the CSC. It has been further observed that the N.T. (Sales)-cum-Managing Office, in blatant violation of the provisions of the Act and the instructions of the CSC, transferred the said land which is illegal and needs to be cancelled. Accordingly, the Id. It has been further observed that the N.T. (Sales)-cum-Managing Office, in blatant violation of the provisions of the Act and the instructions of the CSC, transferred the said land which is illegal and needs to be cancelled. Accordingly, the Id. CSC, vide order dated 24.9.2011, set aside the order of the N.T. (Sales)-cum-Managing Officer dated 11.11.1992, cancelled the conveyance deed dated 25.11.1992. 4. Feeling aggrieved with the above order of the CSC, the present petitioners have filed this revision petition. The Id. counsel for the petitioners has failed to argue the case despite several opportunities provided to him since 16.11.2013, and even he failed to appear consequently after 22.9.2015, therefore, notices were issued to the parties but they also failed to appear despite knowledge. Hence, the grounds of the revision petition have been taken into consideration as claim of the petitioners. 5. The petitioners have filed this revision petition mainly on the grounds that the sale certificate dated 25.11.1992, issued to the petitioners in public auction by the N.T. (Sales), has been issued in due process of law and no illegality committed It has been submitted that the land was in their possession since the time of their predecessors, that's why the N.T. (Sales) issued sale certificate in public auction on 25.11.1992, and the Id. CSC has issued notice to the petitioners after a long period of nine years, and cancelled the order and 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, as the legal and valid title cannot be cancelled in summary proceedings, in such like cases, only the Civil Court is competent. It has been further submitted that Id. Court below has wrongly misconstrued Rules 87 and 88 as the Rules - cannot override the Act and the power is derived from the Act and not from the rules, as such the misconstruction of Rules 87 & 88 in support of the conclusions are erroneous. It has also been averred that suo moto powers are required to be exercised with a reasonable time and the exercise of such power after 20 years renders the impugned order illegal and vitiated. It has also been averred that suo moto powers are required to be exercised with a reasonable time and the exercise of such power after 20 years renders the impugned order illegal and vitiated. Therefore, it has been urged that the 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, 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 that the Hon'ble High Court has taken cognizance of several encroachments on Government and Forest land and encroachment or fraudulent transaction relating to Evacuee property falls in the same 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. 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 Rules' framed thereunder. 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 the 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. However, this power is to be exercised subject to the provisions of the 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 Section 20, mentions 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;" It is clear from the perusal of provisions of the opening lines of section 20 reproduced above 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 of evacuee land are conferred upon the Naib-Tehsildar (Sales) under the Act are not subject to any procedural limitations or circumscribed by any Section or Rules, is not acceptable and neither it is in conformity with the Scheme of the Act. 9. As such, the plea of the petitioners that the powers to transfer of evacuee land are conferred upon the Naib-Tehsildar (Sales) under the Act are not subject to any procedural limitations or circumscribed by any Section or Rules, is not acceptable and neither it is in conformity with the Scheme of the Act. 9. Further, Rule 37 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 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, the plea of the petitioners that the powers to transfer land has been conferred by the Act and not by the Rules are not acceptable since the powers under section 20 are subject to the provisions of Rules, and Section 17 stipulates that Managing Officer are to function under Superintendence and control of CSC. 10. A bare perusal of the record of the N.T. (Sales) reveals that no such procedure as prescribed under law has been adhered to by the N.T. (Sales) while making the allotment of the land in question to the petitioners. In fact, through this modus operandi, he has legalised the unauthorized possession of the petitioners over the land in question, whereas there is no provision in the Act as well as in the Rules for regularisation of encroachments. Contrary to 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. Contrary to 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 un-authorised 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. However, further perusal of copy of jamabandi for the year 1954-55 available at page 11 of the case file of the Naib-Tehsildar (Sales) shows that the land in question is an evacuee property recorded under the ownership of "Shri Abdul Gaffer as Evacuee" and under the possession of Custodian Department. Further perusal of the said file reveals that the present petitioners are successors of Shri Abdul Gaffur, the original owner of the land in question. In early eighties, Smt. Surya Begum mother of the present petitioners had also applied for allotment of the same land, which seems to have been rejected by the then N.T. (Sales) on the ground that there is no evidence of any persons residence over the land in question. But it has no where been denied or a finding recorded that the applicant (Smt. Surya Begum) was successor of the original land owner. But it has no where been denied or a finding recorded that the applicant (Smt. Surya Begum) was successor of the original land owner. Record further discloses that thereafter the N.T. (Sales) also started proceeding for auction of the land in question but same could not be finalised and in the mean time the present applicants also applied for allotment of the land in question. Further the petitioners have claimed themselves to be the successors of Shri Abdul Gaffer the original owner of the land in question. The perusal of Parcha Jamadari available at page 55 of the said file of N.T. (Sales) suggests that the present petitioners are successors-in-interest of Shri Abdul Gaffer (the Evacuee). However, this issue does not seem to have been raised before the Chief Settlement Commissioner, but in the interest of justice it would be appropriate to examine this issue in detail. Further it is also not clear as to whether the land in question is the same land which was declared as evacuee property and whether the land is in the possession of the 'Custodian Department' or not. Though from the perusal of Section 16 of the Administration of Evacuee Property Act, 1950 and rules framed thereunder, it appears that a particular time limit was fixed for making application for restoration of evacuee property, but it appears that such limitation period was fixed as the evacuee land was required to be further allotted. In the instant case, the land in question has been transferred to the petitioners who are claiming themselves to be successors of the Evacuee and were entitled to succeed the land in question in accordance with law of inheritance. No doubt, the proper procedure as has been prescribed under the law, has not been followed by the N.T. (Sales) to transfer the land in question, and the issue raised by the petitioners claiming themselves as successors of the Evacuee, has neither been raised nor taken into consideration by the Chief Settlement Commissioner. But, since the petitioners are claiming themselves as successors of the Evacuee, it would be proper in the interest of justice to remand the case to the Chief Settlement Commissioner to examine the matter afresh on the above issues and decide the same in accordance with law. But, since the petitioners are claiming themselves as successors of the Evacuee, it would be proper in the interest of justice to remand the case to the Chief Settlement Commissioner to examine the matter afresh on the above issues and decide the same in accordance with law. Accordingly the revision petition is disposed off and the matter is remanded to the Chief Settlement Commissioner, Rehabilitation, H.P. The petitioners are directed to produce all relevant documents in support of their claim before the Chief Settlement Commissioner. 12. 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.