SAIDANWALI COOPERATIVE JOINT FARMERS SOCIETY LIMITED, FATEHABAD, DISTRICT HISSAR Vs. THE STATE OF HARYANA AND OTHERS

JUDGEMENT

(1.) The petitioner is a Cooperative Society which claimed a property as a purchaser from an allottee under the Displaced Persons (Compensation and Rehabilitation) Act of 1954 (for short, 'the 1954 Act'). The purchase was in respect of 6 standard acres and 3 units from one Avtar Singh on 05.01.1963. The sale by Avtar Singh was in his capacity as an adopted son of Nihal Kaur, who had been displaced from the place now in Pakistan and migrated to India. An objection to the allotment to the vendor Avtar Singh was taken by respondents 4 and 5, namely, Bahal Singh and Chanan Singh respectively, who contended that they were the only sons of Nihal Kaur and their claim had been satisfied by an allotment in favour of their other mother of an extent of 19 standard acres and 14 units and that the allotment secured by Avtar Singh had been by deceit having suppressed the allotment already made in Punjab and falsely stating that he was the adopted son of Nihal Kaur. The allotment made to Avtar Singh was, under the circumstances, cancelled by the State upholding the objections given by the sons of Nihal Kaur. The authorities under the Act have affirmed the original order of cancellation and the writ petition challenges the order passed under P-2 by the Financial Commissioner and Secretary to the Government of Haryana.

(2.) The learned counsel for the petitioner contends that if the property were to be taken as an excessive allotment and it was liable for cancellation, the State shall only cancel such extent of allotment which was retained by the original allottee and protect the subsequent purchaser, who has parted with consideration under the bona fide belief that the vendor was lawfully entitled to the property through allotment from the State. The learned counsel would further contend as a second limb of argument that Sec. 41 of the Transfer of Property Act could protect a purchaser who had parted with consideration from the allottee and the property purchased shall be allowed to be retained without fear of being cancelled at the instance of the State. The learned counsel would contend as an alternative plea that in the event of the other contentions being rejected, the petitioner should be allowed to be retained in the property and sold by the State on a preferential basis at the rate of the property on the date when the cancellation of the sale had been made.

(3.) As regards the first contention that in the event of the allotment being found as excessive, the cancellation shall be in respect of the property which is retained by the owner, such a plea could arise in situations where there is some other property retained by the allottee. In this case, it would have made difference if the property had been purchased from Nihal Kaur herself. The property allotted to the vendor, Avtar Singh was on suppression of fact of allotment to Nihal Kaur and it could not be protected in the hands of a purchaser by directing any portion of property allotted to Nihal Kaur to be deducted, for, she had no role to play in the defective allotment made in favour of Avtar Singh. It shall not, therefore, be possible to subject the holding of Nihal Kaur to be deducted out the extent allotted in excess to Avtar Singh. As regards the applicability of Sec. 41 of the Transfer of Property Act the said Sec. shall apply only in cases where a transfer is made by an ostensible owner, with the consent express or implied by the person, who was interested in the immovable property. The ostensible owner, in this case, was the allottee and a purchaser to such an allottee would be protected only in a case where the Government being the owner, which had an interest in the property and which also had a right to cancel the allotment, had acceded to the sale by any express orders or by implied conduct. I cannot see any complicity of the State in the manner of sale executed by the allottee in favour of the Cooperative Society. I would, therefore, also reject the contention that Sec. 41 has any applicability to such a situation.