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2019 DIGILAW 1209 (HP)

Kartar Singh v. State Of Himachal Pradesh

2019-08-23

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, petitioners have inter alia prayed for the following substantive relief:- "(i) That order Annexure P-5 passed by the Chief Settlement Commissioner (Rehabilitation) Government of Himachal Pradesh and Annexure P-7 passed by the Financial Commissioner (Appeals) may kindly be quashed and set aside in the interest of justice and fair play. (ii) That the respondents may kindly be burdened with costs. (iii) That the entire record of the case may kindly be called for. Any such further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners, and against the respondents." 2. Brief facts necessary for adjudication of the present petition are as under:- Petitioners applied for sale of land measuring 6837.43 hectares, comprised in Khasra No. 973, 974 and 980 Kite-3, situated in Up Mohal Missan Mauza Ujjain, Tehsil and District Kangra, Himachal Pradesh to Naib Tehsildar (Sales)- cum-Managing Officer, Kangra, under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the 1954 Act'), on the ground that they were in settled and physical possession of the said evacuee property. Vide Annexure P-1, the Sale Certificate was issued in their favour on 5th February, 1996. The officer concerned transferred the said land by way of sale in favour of the petitioners for a total sale consideration of /-. Thereafter, mutation was attested in favour of the petitioners qua the suit land on 06.04.1996 and entries were duly recorded in the revenue record. 3. A Notice was received by the petitioners dated 01.01.2002 (Annexure P-3) issued by the Chief Settlement Commissioner, Rehabilitation, Himachal Pradesh at Shimla, in which it was mentioned that it had come to the notice of the said Officer that the land, subject matter of this petition, was transferred by Naib Tehsildar (Sales), Kangra/Shimla to the petitioners and the signatory to the Notice, i.e. Chief Settlement Commissioner, Rehabilitation, Himachal Pradesh, calls upon the petitioners as to why the transfer of the land mentioned in the Notice should not be cancelled in exercise of powers under Section 24 of the 1954 Act. 4. 4. Petitioners responded to said Notice and stated that they had purchased the evacuee property in a lawful manner after paying the lawful consideration and after the sale of the property in favour of the petitioners, they have become absolute owners of the same and were also in possession thereof and that Officer was having no jurisdiction to initiate proceedings under Section 24 of the 1954 Act. 5. Chief Settlement Commissioner, Rehabilitation, vide order dated 03.12.2011 (Annexure P-5), set aside the conveyance deed executed on 05.02.1996 and ordered the property to be restored to the Central Government on the ground that the transaction was a result of fraud and in violation of the Rules and the Officer concerned had indulged in gross negligence and misuse of official position and committed fraud with the Government. It was mentioned in the order that the Officer concerned, who had issued the Sale Certificate, was not competent to transfer the land and it was in the knowledge of the purchaser that no property could be obtained in such unlawful manner. It was also mentioned in the order that purchaser should have inquired about the evacuee property and therefore, role of the purchaser in obtaining the Sale Certificate also could not be ruled out. 6. A revision petition preferred against the said order under Section 24 of the 1954 Act was also dismissed by the learned Financial Commissioner (Appeals) vide order dated 18.5.2015 (Annexure P-7), by holding that procedure as prescribed in Chief Settlement Commissioners' letter No. Rev (RR)(F)10-2/87-II, dated 8.7.1994, which provided that no evacuee property should be transferred by Naib Tehsildar-cum-Managing Director was violated and Central Government property was fraudulently transferred and encroachment of the petitioners on Central Government property were sought to be regularized in the garb of sale under the provisions of 1954 Act. 7. Feeling aggrieved, the petitioners have filed the present petition. 8. 7. Feeling aggrieved, the petitioners have filed the present petition. 8. When this case was taken up for arguments, learned Counsel for the petitioners at the outset submitted that he was restricting his arguments to the legality of initial Notice that was issued by Chief Settlement Commissioner under Section 24 of the 1954 Act same being bad in law as it was cryptic and vague and did not contain any reason as to why the same was being issued or on what grounds the sale of the property in favour of petitioners vide Sale Certificate in issue was bad in law. 9. I have heard learned Counsel for the petitioners on the said point as also learned Additional Advocate General. Relevant record produced by learned Additional Advocate General were also taken into consideration. 10. Section 24 of the 1954 Act confers upon the Chief Settlement Commissioner the power of Revision. This Section provides that Chief Settlement Commissioner may, at any time, call for record of any proceeding under the Act, in which a Settlement Officer or any other Officer mentioned therein, including the Managing Officer or an Managing Corporation, has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order. It is mentioned in this Section that Chief Settlement Commissioner may pass any such order in relation thereto as he thinks fit. Sub Section 2 of the same further provides that if Chief Settlement Commissioner is satisfied that any lease or allotment granted to a person was obtained by means of fraud, false representation or concealment of any material facts, then, notwithstanding anything contained in the Act, the Chief Settlement Commissioner may pass an order cancelling the lease or allotment granted to such persons. Sub Section 3 further provides no order which prejudicially affects any person shall be passed under this Section without giving him a reasonable opportunity of being heard. 11. Coming to the facts of the present case. After the Sale Certificate stood issued to the petitioners vide Annexure P-1, in exercise of powers so conferred upon the Authority under Section 24 of the 1954 Act, the Chief Settlement Commissioner concerned issued a Notice to the petitioners in exercise of the said authority of his. The Notice which was so issued to the petitioners is on record as Annexure P-3. The Notice which was so issued to the petitioners is on record as Annexure P-3. For ready reference, the same is being quoted in extensio hereinbelow. "IN THE COURT OF CHIEF SETTLEMENT COMMISSIONER, REHABILITATION, H.P.SECTT. SHIMLA-171002. File No. Rev (R&R) (C) (E) 2-10/2001 Case No. 52/2001-CSC Notice Whereas it has come to the notice that the land comprising in Kh 973, 974 and 980, kita 3 area measuring 6837.43 Hec. situated in Up Mohal Mission Kangra Tehsil and District Kangra, H.P. has been transferred by the Naib Tehsildar (Sales) Kangra/Shimla to Shri Kartar Singh s/o Prittam Singh (2) Jasbir Singh s/o Amar Singh r/o Village and P.O. Kangra, Tehsil and Distt. Kangra H.P. Now, therefore, I, P.S. Kultheria, Chief Settlement Commissioner, Rehabilitation, Himachal Pradesh do hereby call upon S/Shri Kartar Singh and Jasbir Singh to explain as to why the transfer of the land mentioned above should not be cancelled by exercising the powers under section 24 of the DP (C&R)Act, 1954. Shri Kartar Singh and Jasbir Singh is further directed to appear before the under signed on 6-4- 2002 at 10.30 A.M. at H.P. Sectt. Room No. 108. Issued under my hand and seal of the Court this day of 1-1-2002. Sd/- seal of Chief Settlement Commissioner, Himachal Pradesh, Shimla." 12. I have already mentioned hereinabove the grounds on which Chief Settlement Commissioner may cancel the lease or allotment of a person under the 1954 Act. The reasons primarily are fraud, false representation or concealment of any material facts. A perusal of the subsequent orders which were passed by the Authorities demonstrated that the allotment made to the petitioners was primarily set aside on the ground that the same was a result of fraud and the instructions issued by the Chief Settlement Commissioner vide letter dated 8.7.1994 (supra) that no evacuee property should be transferred by Naib Tehsildar-cum-Managing Officer were not followed. However, a perusal of Annexure P-3, i.e. Notice which was issued by Chief Settlement Commissioner, which led to passing of impugned order demonstrates that this Notice was completely silent as to on what grounds the Chief Settlement Commissioner was intending to set aside Sale Certificate issued to the petitioners. 13. It is settled law that a show cause notice has to be express and it should contain the reasons as to why the same was being issued. 13. It is settled law that a show cause notice has to be express and it should contain the reasons as to why the same was being issued. In other words, whenever any show cause notice is issued to any party, then, the reasons leading to issuance of the same and the points on which the response of the party, to whom the notice is being issued, is being sought, are to be explicitly reflected in the notice, as in the absence of there being any reasons mentioned in the notice, one cannot understand as to how the party, to whom a notice is issued, can respond to the same. In the Notice which was issued in the present case, there was no whisper as to why it was being issued under Section 24 of the 1954 Act for cancelling the Sale Certificate. Meaning thereby that this Notice was cryptic, vague and not as per the spirit of Section 24 of the 1954 Act. As the action on the Notice was to have punitive effect upon the party to whom the Notice was served, it was incumbent upon the Authority to meet with the conditions of issuance of a valid Notice. Meaning thereby that, as mentioned above, the same ought to have been self speaking with regard to the reasons as to why the same was being issued and also with regard to the issues on which the reply was being sought from the other party as the impugned Notice lacked this, but obvious, the same cannot be said to be a valid Notice. 14. As the genesis of the subsequent orders, which have been passed by the Authorities concerned under Section 24 of the Act as also Section 24(4) of the 1954 Act, is Notice Ext. Annexure P-3, which in my considered view, is a bad Notice, the subsequent orders which have been passed on the basis of said Notice are also not sustainable in law. 15. Annexure P-3, which in my considered view, is a bad Notice, the subsequent orders which have been passed on the basis of said Notice are also not sustainable in law. 15. Therefore, as this Court has come to the conclusion that Notice Annexure P-3 issued by Chief Settlement Commissioner, dated 01.01.2002, under Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, was bad in law, the same is accordingly ordered to be quashed and set aside and the subsequent orders which have been passed by the Chief Settlement Commissioner, Rehabilitation, dated 03.12.2011, in Case No. 52/2001 (Annexure P-5) and Financial Commissioner (Appeals), dated 18.05.2015, in Revision Petition No. 23/2012 (Annexure P-7), are also quashed and set aside being not sustainable in law. Further, as the present petition is allowed only on technicalities, accordingly as prayed for, liberty is reserved to the respondent-State to initiate fresh action against the petitioners, in accordance with law, by complying with the provisions of Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, in letter and spirit. In case, any such proceedings are initiated against the petitioners, then, but obvious, the petitioners have right to defend this, in accordance with law and the Authorities concerned shall pass a reasoned and speaking orders on the same, on the basis of material on record. With these observations, this petition is disposed of. Pending miscellaneous application(s), if any, stand disposed of.