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Himachal Pradesh High Court · body

2016 DIGILAW 376 (HP)

GRAM PANCHAYAT/GRAM SABHA, BASOLI v. NAGAHLA RAM

2016-03-31

NARINDER CHAUHAN

body2016
ORDER : 1. This revision petition under Section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as 'the Act') has been a preferred against the orders dated 17.3.1994 passed by the Chief Settlement Commissioner (Relief and Rehabilitation) H.P in case No.3/93-CSC. with the prayer to call for the record of the case, so as to examine the legality and proprietary of the proceedings as well as the order of the authority below and set aside the same. 2. Briefly stated, the facts of the case as derived from the revision petition, are that the Naib Tehsildar (Sales)-cum-Managing Officer, Shimla vide his order dated 5.8.1992 transferred land comprising khasra No. 918 and 923 measuring 0-02-21 hectares, situated in village Basoli Upperli, Tehsil and Distt. Una, for a consideration amounting to Rs.221/- to Shri Nagahia Ram (present respondent No. 1) son of Wazira Ram, resident of village Mawa Sindhian District Una. In pursuance of this order a sale certificate No. 320-322/TSS, was issued in favour of Shri Nagahia Ram on 12.8.1992 and mutation was attested under No. 113 on 26.8.1992 The present respondent No.1 further sold 0-00-50 hectares of land out of khasra No. 918 to Sh. Narinder Singh and Shri Rajinder Singh both sons of Sh. Mela Ram residents of village Basoli, Tehsil and District Una, vide registered sale deed dated 16.10.1992. 3. The present petitioners objected to the transfer of land in question by filing a revision petition before the Chief Settlement Commissioner, Relief & Rehabilitation, H.P Registered as case No. 3/93-CSC on 18.3.1993, mainly on the grounds that the land measuring 0-03-31 hectares comprised in khewat No. 129/32 Khatauni No.216 and 217 khasra Nos.978, 979 and 980 as entered in the Missal Hakiat Bandobast, Badid Sani for the year 1983-84, situated in village up Mohal Basoli Upperli, Tehsil and District Una was previously owned and possessed by one Shri Mangloo son of Ladoo who had mortgaged this land with possession in favour of Durga and Dev Raj, sons of Tulsi and Smt. Bhagwanti widow of Telu Mai, the predecessors in interest of proforma respondent No.5, Madan Lal. That the land is situated in the vicinity of holy temple of Pir-Nigaha situated in village Basoli The management and control of this temple is said to be with the petitioner No. 1 who has constructed a Sarai and Langar building just adjacent to this land for the pilgrims and thus acquired easementary rights over the land. That from 1940-45 onwards till 1986 the land in question was never redeemed by the original owner Mangloo within the stipulated period of limitation and thus Sh. Durga and Sh. Dev Raj become the owner of this land by efflus of time. During the year 1986-87 when consolidation operations were going on in the village the Consolidation authorities in connivance with some mischievous persons of the locality, without paying any compensation to proforma respondent No.5, Shri Madan Lal, got changed the revenue entries in the column of ownership in the name of Central Government. Further that son of respondent No. 1 was posted as Halqua Patwari Mandanpur, whose brother in law is stated to be posted in the office of respondent No. 4 and they in conspiracy with other officials of respondent No. 4 got their above said land declared as evacuee property and got it auctioned for Rs. 221/- without any proclamation/intimation to petitioner. Lastly, it was urged to set aside the sale in favour of respondent No.1 along with subsequent sale to respondents No.2 & 3 Ld. Chief Settlement Commissioner, Relief and Rehabilitation, H.P. dismissed the revision petition vide his order dated 17 March, 1994, observing as follows:- "In view of these facts and provisions of law, I find no force in the contention of petitioners and their prayer that the order of Respondent No.4 transferring the land in dispute to respondent No.1 be set aside. Consequently, there is also no force in the related contention of the petitioners that the same made by Respondent No. 1 in favour of Respondents No. 2 and 3 is required to be cancelled. The order passed by the Naib Tehsildar (Sales)-cum-Managing Officer dated 5.8.1992 and issuing of sale letter No.320-322/TSS dated 12.8.1992 are correct and in accordance with the provision of Displaced Persons (Compensation & Rehabilitation) Act 1954. As such the petition is dismissed." 4. Feeling aggrieved by the aforesaid order of the Ld. The order passed by the Naib Tehsildar (Sales)-cum-Managing Officer dated 5.8.1992 and issuing of sale letter No.320-322/TSS dated 12.8.1992 are correct and in accordance with the provision of Displaced Persons (Compensation & Rehabilitation) Act 1954. As such the petition is dismissed." 4. Feeling aggrieved by the aforesaid order of the Ld. Chief Settlement Commissioner, the present petitioner had preferred a present revision petition No. 70/94 in this court which was disposed of vide order dated 4.4.2006 observing that the Displaced Persons (Compensation and Rehabilitation) Act, 1954 has been repealed vide the Displaced Persons Claims and Other Laws Repealed Act, 2005 without saving clause. But in view of the directions of Honble High Court of H.P. in the judgment dated 17.11.2006 delivered CWP No. 148/2006 Jagtar Singh v. Chief Settlement Commissioner & Ors. The revision petition has been are stored and re-registered as Rev. Pet. No.60 of 2007 (74 of 94). 5. I have heard the arguments advanced by Ld. DA (Revenue) appearing on behalf of respondent No.4 Shri Sanjay Jaswal vice Ramesh Sharma counsel for petitioner and Smt. Vandana Thakur vice Shri Subhash Sharma, counsel for respondent No.1 to 3 could not argue the matter and stand that the senior counsels are busy The matter is lying pending since long and adjournment are being sought on one pretext or other, but in the interest of justice, vice counsels appearing for the petitioners as well for respondents No. 1-3 were told to intimate the original counsel to file written arguments by 15th March, 2016 positively, failing which the case would be decided on the basis of record and pleadings in the revision petition. Written submissions have been filed on behalf of the petitioner as well as respondent No. 1 and taken on record. 6. While reiterating the grounds taken in revision, the Ld. Counsel for the petitioner has submitted that the petitioner being the authority under the H.P. Panchayati Raj Act, challenged the sale order of transfer of land comprised in khasra 918 and 923 measuring, 0-02-21 hectares, situated in village Basoli Uperli, Tehsil and District Una, H.P. for a sum of Rs.221/- to Shri Nagahia Ram, respondent No.1.That earlier Shri Madan Lal, proforma respondent, has also challenged the said sale. That the land in dispute was in the ownership and possession of one Shri Mangloo son of Ladoo who had mortgaged it with possession, in favour of predecessor in interest of proforma respondent No.5, S/Shri Durga, Dev Raj son of Tulsi and Smt. Bhagwanti widow of Sh. Telu Mai, in the year 1939-40. That during partition of India, the original owner migrated to Pakistan and land remained with the mortgagee i.e. predecessor-in-interest of proforma respondent No.5. The revenue record for the year 1961-62, 1976-77 and 1983-84 shows the entries in favour of Durga and others but the entry of mortgagee was redeemed and transferred in the name of Central Government being evacuee property, without prior notice to the mortgagees and general, public. 7. That the respondent No.4 has further transferred the land in question in favour of respondent No.1 without following the process prescribed in the Act. That son of respondent No.1 was serving as a Patwari in village Basoli and one of his relative was serving in R&R Department, Shimla and they both managed to get the aforesaid land transferred in favour of respondent No.1, who was neither resident nor has any immovable or movable property at Basoli. Lastly it has been submitted that the Chief Settlement Commissioner has not correctly appreciates the facts and law properly while passing the impugned order dated 17.3.1994 and as such the same may be set aside and the sale/auction of the land in question in favour of respondent No. 1 and sub subsequent transfer in favour of respondents No.2 & 3 may also be declared null and void. 8. On the other hand in his written arguments, the Ld. Counsel for respondent No.1 has submitted that land in dispute was declared as an evacuees property under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the mortgage was redeemed as per mutation No. 27 dated 17.1.1988 and consequently the land in dispute came to be vested in the Central Government. That as per provisions of 12 (2) of the Act, the land in question was vested in the Central Government free from all encumbrances and there was a period of 90 days to challenge any order and therefore, the Chief Settlement Commissioner has rightly observed that mutation order has become absolute. That as per provisions of 12 (2) of the Act, the land in question was vested in the Central Government free from all encumbrances and there was a period of 90 days to challenge any order and therefore, the Chief Settlement Commissioner has rightly observed that mutation order has become absolute. That the plea of the Gram Panchayat qua easementary rights over the land in question is wholly wrong which has also been falsified in the report of the Naib Tehsildar (Sales). That further allegation of the petitioner that the land has been transferred arbitrarily on a low price is also wrong as the market value of the land adjacent to the land in question was Rs. 399/- per kanal, and the one year average sale rate of that village is also the same. It has further been submitted that the Naib Tehsildar (Sales) before transferring the said evacuee land ensured that the respondent No.1 was the sitting occupant on the land in dispute who had also constructed a kuchha house thereupon. Lastly, that the allegations of the petitioner are wrong and the Chief Settlement Commissioner has rightly dismissed the revision of the petitioner and the impugned order are both factually and legally correct and interference is called for therein as is being sought by the petitioner, hence, the present petition may be dismissed. 9. Per contra, the Ld. District Attorney appearing on behalf of respondent State argued that the properly in question belongs to the Central Government recorded under the possession of Custodian Department and petitioners has no right, title and interest in the same and as such the present revision petition deserves to the dismissed. 10. Form the above pleadings following two issues arise: (1) Whether the land on question has wrongly been declared as Evacuee property or not? (ii) Whether the land in dispute has been wrongly and/transferred by the Naib Tehsildar (Sales) in favour of the present respondent No.1. 11. So far as first issue is concerned, it is not disputed the land in question was earlier owned by Shri Manglu son of Ladoo who migrated to Pakistan at the time of partition of India. (ii) Whether the land in dispute has been wrongly and/transferred by the Naib Tehsildar (Sales) in favour of the present respondent No.1. 11. So far as first issue is concerned, it is not disputed the land in question was earlier owned by Shri Manglu son of Ladoo who migrated to Pakistan at the time of partition of India. The predecessors-in-interest of the present proforma respondent no.5 were mortgagees on the land in question, but they cannot claim ownership rights on the basis such mortgage, in view of the provisions of clause (j) of Section 2 read with section 7 and 12 of the Administration of Evacuee Property Act, 1950 Clause (i) of section 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 with the approval of Custodian, as an-authorised 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 14 day of August 1947, has been occupying, supervising or managing the property of an evacuee without the approval of Custodian: Further, 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. [(1A)] 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 even 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 contented in any other law for the time being in force, the Custodian may cannot 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; (b) Has used or is using such property for a purpose other than: That for which it was leased to him; (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] (1) Where by reason of any action taken under sub-section (1), only 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 for to any person duly authorised by him in this behalf. (2) 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, I agree with the arguments advanced on behalf of the respondent No.1 that the land in question has rightly been vested in the Central Government free from all encumbrances under the provisions of aforesaid Act. Had the petitioner has aggrieved with the notification of vestment or the petitioner been aggrieved with the notification of vestment or mutation No.27 attested on 17.1.1988 by the concerned Revenue Officer they would have challenged the same under the appropriate provisions of law and before the court of competent jurisdiction. In view of above discussion, it can be safely concluded that the land in question has rightly been vested in the Central Government. 12. In order to adjudicate the second issue, it would be appropriate to discuss relevant provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 which provide for the payment of compensation and rehabilitation grant to displaced persons and other matters connected therewith, 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." 13. Form a 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 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. 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, form the opening lines of section 20 reproduced above, it is clear that the powers under this section are subject to rule made under the Act. 14. 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. 14. 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 Chef Settlement Commissioner may from time to time, determine the class of person 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 90-91 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 Officer, was not empowered to transfer evacuee land in the manner as has been done in the case at hand. 15. 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 Officer, was not empowered to transfer evacuee land in the manner as has been done in the case at hand. 15. A bare perusal of copy of jamabandi for the year 1989-90, available on page 5/6 of the case file of the Naib-Tehsildar (Sales) reveals that the land in questions an evacuee property recorded under the ownership and possession of "Central Government" In his application available at page 3/4 of the said file, the present respondent No. 1 has clearly stated that he has constructed a residential house/cow shed over the land in dispute, which shows that he was an encroacher upon the evacuee property and was required to be dealt with in accordance with the provisions of Section 19(2)(b) of the Act, which clearly provides 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 of the Act are reproduced, below:- S.19 Power to vary or cancel lease or allotment of any property acquired under this Act:- (1) XXX (2) Where any person (3) XXX (h) 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. 16. 16. The perusal of the record of the N.T. (Sales)-cum-Managing Officer, clearly shows that the Managing Officer (N.T.) 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. The chief Settlement Commissioner has not taken into consideration these facts and a provisions of law, while deciding the revision petition No. 3/93-CSC vide impugned order dated 17.3.1994. 17. So far as the issue qua easementary rights raised by the petitioner is concerned, such issues cannot be raised before and tried by the Revenue Court in summary proceedings Such issue can only be determined by the Civil Courts of Competent jurisdiction. 18. In view of the above observations, the present revision petition is partly allowed and the orders passed by the Id. Chief Settlement Commissioner, Rehabilitation, H.P. dated 17.3.1994, are set aside to the extent of allotment of land to respondent No.1. Hence, the sale certificate No.320-22/TSS dated 12.8.92, issued by the Naib-Tehsildar, is hereby cancelled being issued without jurisdiction. The land in question is hereby ordered to be restored to Central Government. Since, the original transfer is illegal, the subsequent transfer of land in question in favour of respondent No.2 and 3 has no force under the law and therefore declared as void-ab-initio. 19. Orders be communicated to parties. The records of the courts below be returned immediately and file of this court be consigned to the record room after due completion.