CHANDUBHAI NATVARLAL PARMAR Vs. COLLECTOR AND SETTEMENT COMMISSIONER

JUDGEMENT

(1.) The petitioner, by way of this petition under Art. 226 of the Constitution, challenges the legality and validity of the action on the part of respondent No. 1 in cancelling the sale of land bearing survey No. 579, admeasuring 1 acre and 38 Gunthas situated at village Rasulpur, taluka Godhra, district Panchmahals, as per the public auction held on 5.1.1995 and also challenges the legality of the order dated 17.1.1995 passed by respondent No. 1 on the ground that the same is illegal, unlawful, arbitrary and contrary to the provisions of Administration of Evacuee Properties Act and violative of principles of natural justice.

(2.) The facts giving rise to the present petition are that, land bearing survey No. 579 in village Rasulpur, taluka Godhra, district Panchmahals, admeasuring 1 acre and 38 Gunthas, was declared to be an evacuee property under the provisions of the Administration of Evacuee Properties Act, 1950 (hereinafter to be referred to as "the Act") by an order passed in this behalf by the Competant Authority. It appears that respondents No. 4, 5 and 6 were in unauthorised occupation of the said land in question. However, on 11.6.1993, they handed over the vacant possession of the land in question to Talati-cum-Mantri of Rasulpur village by issuing Kabja Receipt. Respondent No. 2, the Managing Officer and Assistant Custodian of Evacuee Property issued a public notice dated 8/12-12-1994 notifying that a public auction of the property in question will be held on 5.1.1995. As per the said notice, the public auction was, in fact, held on 5.1.1995, wherein seven intending buyears, including the petitioners and respondent No. 4, remained present. As per the terms of the auction, the last highest bidder was required to deposit 20% of the amount of bid at that time with the authorities and the remaining 80% were to be deposited within a period of 15 days, on the auction being approved by the Competent Authority. There is no dispute to the fact that the second respondent fixed the 24 upset price of the property in question at Rs. 12,000/-. It is also not in dispute that, in the auction, amongst all the seven tenderers, the petitioner's last bid of Rs. 15,000/- was the highest. On the conclusion of the auction, a Panchnama was also drawn by the second respondent, wherein all the tenderers, including the petitioner had signed. As the petitioner's bid of Rs. 15,000/- was the highest, he was made to deposite 20% of the amount of Rs. 15,000/- and, accordingly, the petitioner deposited a sum of Rs. 3,000/- before the second respondent. It appears that, the Collector and Settlement Commissioner, Godhra, respondent No. 1, by his order dated 17.1.1995 cancelled the aforesaid auction on the following reasons :

(3.) Mr. H.P. Raval, learned Advocate appearing for the petitioner has challenged the impugned order by contending that the same is illegal, erroneous and against the principles of natural justice, inasmuch as, the petitioner has not been heard before the order was passed. Mr. Raval contended that the reasons given in the said order are totally irrelevant and not germane to the issue involved in the matter. On the other hand, Mr. B.D. Desai, learned Assistant Government Pleader, appearing for the respondents, while supporting the order passed by the first respondent, has raised a preliminary contention regarding the maintainability of the petition. In the submission of Mr. Desai, the petitioner has not exhausted a remedy available to him by filing an appeal to the Chief Settlement Commissioner, under Sec. 23 of the Displaced Person (Compensation and Rehabilitation) Act, 1954. Ordinarily, this Court will not exercise its powers under Art. 226 of the Constitution of India when the remedy by way of an appeal or a revision is available to the petitioner. I could have accepted the submission of Mr. Desai by relegating the petitioner to prefer an appeal against the impugned order. However, considering the fact that this Court on 14.2.1997, after hearing the learned Advocate for the petitioner, has issued the Rule and has granted ad-interim relief as prayed for, it would be meaningless now, at this stage, to relegate the petitioner to approach the Appellate Authority. It is also to be noted that on the facts of the case, the impugned order does not, therefore, stand any further. It is too much to accept this technical contention asking the petitioner to go before the Appellate Authority. In view of this, I see no reason to accept the submission of Mr. Desai that the petition is not maintainable.