Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 434 (HP)

Des Raj v. Chief Settlement Commissioner

2021-07-19

SURESHWAR THAKUR

body2021
JUDGMENT : Sureshwar Thakur, J. 1. Through the instant writ petition, the writ petitioner, claims, the, setting aside of the order made on 5.12.2009. The afore order was made by the Chief Settlement Commissioner, Rehabilitation, Shimla-2, in Case No. 1/2005-CSC, titled as, "State of H.P. versus Des Raj". Through the afore order, conveyance deed, No. 8-10-NTK, dated 9.1.2001, regarding Evacuee Land property comprised in Khata No. 231, Khatauni No. 329/33, Khasra No. 174/1, presently khasra No. 174/2/7/1 and Khasra No. 170/1, measuring 752.33 Square Meters, as issued to Des Raj, S/o Chandu Ram, R/o Ward No. 3-Nurpur, District Kangra, was declared to be fake. Moreover, it was also declared, that the afore fakeness, rather became acquired by the alluded sale deed, as the sale consideration, was not deposited, in the treasury concerned, and also arose, from the factum of there being no office record, with respect to the making of the afore sale. 2. The learned counsel for the writ petitioner contends, with much vigor, before this Court, that issuance of sale certificate, borne in Annexure P-1, is supported by statutory provisions, borne in Section 20-(a), of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, hereinafter referred to as "the Act". Provisions (supra), as carried in the Act, are extracted hereinafter: "20 (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." On the basis of the afore statutory provision, as, apposite to the extant lis, the learned counsel for the writ petitioner, contends with much vigor, before this Court, (i) that since the writ petitioner was a displaced person, hence there was no necessity of his applying, to the competent authority, for allotment or sale of evacuee land, to him. He also submits that sale to him, through public auction of evacuee/custodian property, as is the writ property, hence reflected in the revenue records, and, also when it is echoed in the revenue records, to be owned by the Central Government, rather comes to be elothed with statutory protection, since he became declared, the, highest bidder, in a sale auction, held by the Officer concerned, and, on conclusion of public auction, issued sale certificate, borne in Annexure P-1, became issued, vis-à-vis, him. 3. 3. However, the respondents in their reply on affidavit, contend with much vigor, before this Court, that sale certificate, borne in Annexure P-1, and, as issued with respect to the writ property, is ingrained with the deepest vice of voidness, as it is not supported by any existing records, rather supporting the conduct of public auction, by the officer, who drew Annexure P-1. Moreover, it is also contended in the reply, furnished to the writ petition, by the respondent, that even the sale consideration, mentioned in the sale certificate, became not deposited by the Officer, who purportedly conducted the sale through public auction of the writ property, and, that criminal proceedings are drawn against the officer concerned. 4. Now, for construing the vigor of the afore made submission, addressed before this Court, by the learned counsel for the writ petitioner, and, as becomes anchored upon the mandate (supra) of Section 20 (a) of the Act, this Court, is, of the opinion, that sale, through execution of a sale deed, of custodian property to displaced persons, as the writ petitioner claims is, hence to be made only, when an application in respect thereto, is prior thereto rather hence moved by a displaced person, before the competent statutory authority. However, the respondents in their reply on affidavit, meted to paragraph-4, of the writ petition, contend with utmost formidability, that the writ petitioner, did not move any application, before the competent authority, for seeking execution of a sale deed, in his favour, by the authorities concerned. The afore factum remains un-rebutted. Consequently, the learned counsel for the petitioner, cannot argue, that he had moved any application, before the competent authority, seeking hence execution of a registered deed of conveyance, in his favour, qua the writ property, rather by the authority concerned. 5. Dehors the above, the learned counsel for the petitioner has contended, that even if, he had not moved any application, before the authorities concerned, for, hence seeking execution in his favour, of a registered deed of conveyance, with respect to the writ property, yet, the sale through public auction, of the writ property, and whereafter, it sequelled the making of Annexure P-1, in his favour, brings hence the afore within the ambit of the coinage" or to any other person", occurring in the provisions (supra) of the Act, and, concomitantly Annexure P-1 is clothed with statutory sanctity. However, the afore made submission by the learned counsel for the petitioner, cannot be accepted, as preceding the afore extracted coinage, occurs a comma, and also after the word, "person", carried in the afore extracted mandate, a comma occurs. The effect of the afore occurrence(s) of commas, within the afore alluded statutory coinage, does, carry an inference, that the first part of clause (a) of Section 20 of the Act, is segregated from the second part, of the statutory coinages occurring therein. The first part of the statutory coinage, appertains to displaced person(s), who seek execution(s) of registered deed(s) of conveyance, in his/their favour, by the authority concerned, and necessarily preceding thereto, an application, in respect thereof, is necessarily required to be filed by displaced person(s). However, the afore application is, for reasons (supra), rather evidently not moved by the writ petitioner, who admittedly is a displaced person. Therefore, the writ petitioner cannot make any dependence, upon, the first part of the statutory coinage(s), occurring in clause(a) of Section 20 of the Act. Moreover, since there are commas, prefixed to the statutory coinage, or, "to any other person, occurring in the latter part of Section 20 of the Act, and, besides also, when a comma is suffixed, after "other person". Consequently, this Court concludes that the supra respectively prefixed, and suffixed, commas, in all the afore mentioned places, makes them readable as thoughtful punctuation(s), and, hence theirs making apposite segregation(s), from the earlier thereto coinages. In other words, the, occurrences of prefixed and suffixed, commas therein(s), inasmuch as to the coinage "or to any other person," carries immense significance and import, inasmuch as there through, the, legislature has intended to segregate, the initially mentioned statutory coinage(s), occurring in clause (a) of Section 20 of the Act, from, the second portion or the latter portion, of the statutory coinage(s), hence occurring in clause (a) of Section 20 of the Act. The latter statutory coinage whereof carries, the, phraseology, "or to any other person". The effect of this Court, making the afore conclusion is that, hence with respect to any displaced person, the only available mechanism, for his seeking conveyance, vis-à-vis, him of, custodian property, by the authorities concerned, was through his prior thereto making an application, in respect thereof, before the authorities concerned. The effect of this Court, making the afore conclusion is that, hence with respect to any displaced person, the only available mechanism, for his seeking conveyance, vis-à-vis, him of, custodian property, by the authorities concerned, was through his prior thereto making an application, in respect thereof, before the authorities concerned. Now the effect of the above drawn inference qua segregation, being caused, to the two afore statutory coinage(s), through the afore made prefixed and suffixed commas, wherein(s), words "or to any other person", become carried, rather from the earlier part thereof, is that, but naturally the latter or subsequent part, being disjuncted from the initial part, and, both carrying contra distinct remedies. Further it strikes an inference that the earlier/initial part, is, solitarily available to a displaced person, whereas, the remedy encapsulated in the second portion, is available, only to any other person, than a displaced person. Therefore, for elaboration, the mechanism for alienation, as available in the second part, is sale through public auction of custodian property, and, is only vis-à-vis, any person than a displaced person, or through a registered deed of conveyance executed in his favour, by the competent authority. Consequently, the acquisition of custodian property by a displaced person, through public auction, is, invalid. 6. In aftermath, for, reiteration, the sale, through public auction, as made in favour of the writ petitioner, hence sequelling the making of Annexure P-1, becomes, for the afore reasons a mechanism, available not to a displaced person, whereas, with the writ petitioner, claiming himself to be a disabled person. Therefore, the sale to him, through public auction, of writ property, becomes a misconceived manner of alienation of custodian property. In sequel, Annexure P-1 is liable to be quashed and set aside, as aptly done through the impugned order, Annexure P-8. 7. Therefore, the sale to him, through public auction, of writ property, becomes a misconceived manner of alienation of custodian property. In sequel, Annexure P-1 is liable to be quashed and set aside, as aptly done through the impugned order, Annexure P-8. 7. The reasons, for making the afore conclusion, appertaining to the effect of prefixed and suffixed commas, within the statutory coinage "or to any other person", occurring in clause (a) of Section 20 of the Act, and, also the afore apposite prefixed and suffixed comma(s), within, the afore alluded statutory coinage, making them hence disjuncted, from the earlier thereto statutory coinage, and, thereupon, the first part, appertaining to displaced person(s), as the writ petitioner, is, and hence it being applicable to him, whereas, the second segregated part, being inapplicable to him, ensues from this Court, drawing support, from the relevance of punctuation(s), as, expressed in a judgment of Hon'ble Apex Court, in case titled as, "Aswini Kumar Ghose v. Arabinda Bose," reported in AIR 1952 SC 369 , the relevant part whereof is extracted hereinafter: "Punctuation is after all a minor element in the construction of a statute, and very little attention is paid to it by English Courts-It seems, however, that in the vellum copies printed since 1850, there are some cases of punctuation, and when they occur they can be looked upon as a sort of contemporanea exposition-When a statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given to punctuation-I need not deny that punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text." Readings of the hereinabove extracted apposite part, of the judgment(supra), makes clear unfoldments, that if commas occur, in statutes, as punctuation(s), thereupon, they are to be revered, and, whereupon the making(s) of punctuation marks, comprise controlling elements, rather for controlling the plain meaning of a text. Therefore, the afore-referred prefixed and suffixed commas, within, the coinage, "or to any other person", do control, the import of, and applicability of the initial portion of clause (a) of Section 20 of the Act (supra), only to a displaced person, and, hence in their makings the latter part, becomes disjuncted from the earlier part. Therefore, the afore-referred prefixed and suffixed commas, within, the coinage, "or to any other person", do control, the import of, and applicability of the initial portion of clause (a) of Section 20 of the Act (supra), only to a displaced person, and, hence in their makings the latter part, becomes disjuncted from the earlier part. Consequently, only the earlier part, and, is applicable to a displaced person, as is the writ petitioner, and, the latter part is not applicable to him, nor sale through public auction of the writ property is a valid mode of his acquiring title thereto. 8. Moreover, the respondents in their reply meted to the writ petition, contend that the sale certificate, which became cancelled through an order, comprised in Annexure P-8, was, apart from it being void and fake, as aroused from the sale consideration, being not deposited in the treasury concerned, by the Officer, who conducted public auction, and/or for no records, in support thereof, existing on record(s), it is also breaching the mandate enclosed in Annexure A, (i) inasmuch as the requirement therein of a prior acquired permission thereto, by the auctioning officer, from the Government of H.P., becoming breached. Even the afore Annexure is not applicable to sale(s), as made of custodian property(s) through the powers, carried in Section 20 of the Act, as neither in the Act (supra), nor in the provisions carried in the H.P. Tenancy and Land Reforms Act, there is respectively no requirement of any earlier or prior permission, being granted by the Government of H.P., nor any non-obstante clause, becomes cast in the H.P. Tenancy and Land Reforms Act, hence declaring void any sale, or allotment through public auction of custodian property, as made, by any competent officer, through his recoursing the mandate of Section 20 of the Act. 9. Consequently, Annexure P-4 is quashed and set aside, as it has no relevance for determining the validity of Annexure P-1 or of Annexure P-4. 10. The learned counsel for the writ petitioner has contended with much vigor, before this court, that the mandate of Section 41 of the Transfer of Property Act, provision whereof are extracted hereinafter: "41. 9. Consequently, Annexure P-4 is quashed and set aside, as it has no relevance for determining the validity of Annexure P-1 or of Annexure P-4. 10. The learned counsel for the writ petitioner has contended with much vigor, before this court, that the mandate of Section 41 of the Transfer of Property Act, provision whereof are extracted hereinafter: "41. Transfer by ostensible owner-Where, with the consent, express of implied, of the persons interest in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it." are applicable to him, as he was a bonafide purchaser for value of writ property. However, the afore made reliance by him, is, grossly inapt, as the afore provisions, are not applicable to statutorily envisaged or contemplated mechanism(s), for allotment of custodian property, either through public auction, or through execution of registered deeds of conveyance, respectively in favour of persons, other than disabled person, or vis-à-vis, disabled persons. The afore statutory provision completely, covers the mode of alienations of custodian property to person(s) concerned, and, when there is any noticeable breach(es) or departures, from the afore mandate, hence, any issuance of sale certificate(s) or of execution of registered deed(s) of conveyance, vis-à-vis, any alienee concerned, in respect of evacuee/custodian property, would suffer, the ill-fate of annulment. Significantly, the mandate of Section 41 of the Transfer of Property Act, is, squarely applicable, only to transferees from initial allottees concerned or to transferees from initial alienees of custodian property. Significantly, when for the reasons aforesaid, there are open and blatant breaches of the mandate, carried in Section 20 of the Act, in the making of Annexure P-1, vis-à-vis him, and, when he is rather the initial tained alienee. Therefore, the protection of Section 41 of the Transfer of Property Act, is not available to the writ petitioner. Moreso, reiteratedly when he is not a transferee from an initial alienee of custodian property, rather is a tainted purchaser through public auction of custodian property, purchase whereof through public auction, is also rather for the aforestated reasons, stained with the vice of voidness. Therefore, he cannot at all make dependence upon protection (supra). 11. Moreso, reiteratedly when he is not a transferee from an initial alienee of custodian property, rather is a tainted purchaser through public auction of custodian property, purchase whereof through public auction, is also rather for the aforestated reasons, stained with the vice of voidness. Therefore, he cannot at all make dependence upon protection (supra). 11. Be that as it may, since impugned Annexure P-8, is, rendered by the Chief Settlement Commissioner, through his exercising jurisdiction conferred upon him, under Section 24 of the Act, provisions whereof stand extracted hereinafter: "24. Power of revision of the Chief Settlement Commissioner-(1) The Chief Settlement Commissioner may at any time call for the record of any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Settlement Commissioner, a managing officer or a managing corporation has passed an order for the purpose of satisfying himself as to the legality of propriety of any such order and may pass such order in relation thereto as he thinks fit." Furthermore, when the mandate carried in Section 24 of the Act, invests in the Chief Settlement Commissioner, the power of revision, which hence became exercised in his making Annexure P-8. In addition, Section 22 of the Act, envisages, the, making of appeals to the Settlement Commissioner, who is, an officer lesser in rank, to the Chief Settlement Commissioner. Moreover, when the power of revision, vested under Section 24 of the Act in the Chief Settlement Commissioner, can be suo motu exercised, as has been done by him, dehors the recoursings of Section 22 of the Act. Therefore, the exercise of revisional jurisdiction by the Chief Settlement Commissioner, makes mergers thereins of the power of appeal, vested in the Settlement Commissioner, and also, hence renders blunted, the argument made by the respondent, that the writ petition is pre-mature, as the, appropriate remedy to the writ petitioner, for his ventilating his grievances, is the one, as embodied in Section 22 of the Act, inasmuch as his filing an appeal before the Settlement Commissioner, who, is an officer lesser in rank, than the Chief Settlement Commissioner, and, who has proceeded to suo-motu rather exercise the revisional powers, as vested in him, under Section 24 of the Act. 12. 12. The learned counsel for the petitioner contends that since the Officer, who conducted the sale, through public auction of the writ property, did not, deposit the sale consideration, despite his being the highest bidder, and also when the apposite criminal proceedings became drawn against the Officer concerned, only upon the writ petitioner, filing a complaint against him. Consequently, he submits that for any dereliction(s) and misdemeanor(s), on the part of the Officer, who drew Annexure A-1, and, also any further dereliction on his part, to maintain the records, with respect to the apposite sale, through public auction, cannot work against him. He further submits that even if he has not filed an application for execution of the registered deed of conveyance, in his favour, by the authorities concerned, the afore procedural irregularity can still be cured, through the writ petitioner, being permitted to, on his depositing the current market value of the writ property, hence execute a registered deed of conveyance, in respect thereto, with the authority concerned. However, for all the reasons aforestated, the afore made submission is rejected,. Moreover, even if assumingly, it has strength, the strength of the afore argument, becomes weak, in the light of the admitted fact that the Act, has now been repealed and hence, the afore made address(es), before this Court, cannot be at all be accepted. 13. There is no merit in the writ petition and the same is dismissed. Impugned Annexure P-8 is affirmed and maintained. Also, the pending application(s), if any, are also disposed of. No costs.