FAQIR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Surplus evacuee land measuring 79 Kanals 13 marlas situated in various khasra numbers including khasra No. 23/21 situated in village Birmi, District Ludhiana, was sold in a restricted auction on June 9, 1970, and the highest bid given by the petitioner was accepted. The sale was also confirmed in favour of the petitioner and possession thereof was delivered to him on September 2, 1970 and this fact was recorded in the Khasra girdawari for the year 1973-74, which has been attached as Annexure P-1 with the petition. Respondent No. 3 Kesar Singh was allotted land measuring 211 kanals in village Birmi on November 30, 1970 and it has been urged in the petition that khasra No. 23/21 which had already been sold to the petitioner was by mistake, also allotted to him. It has further been averred by the petitioner that in the year 1976, he discovered that khasra No. 23/21 had infact been wrongly allotted to respondent No. 3 and he, accordingly, made an application before the Tehsildar (Sales) to have the allotment of that Khasra number set aside. The Tehsildar (Sales), vide his order Annexure P-2 moved the Chief Settlement Commissioner, Jullundur, by way of a reference suggesting that the allotment in favour of Kesar Singh qua khasra No. 23/21 be cancelled. The Chief Settlement Commissioner, Punjab, vide his order dated May 18, 1977, Annexure P-3 to the petition, declined the reference but suggested that the Tehsildar (Sales)-cum-Managing Officer, Ludhiana, should move the competent Court for the cancellation of the auction in respect of khasra No. 23/21 in favour of the petitioner and on proportion and on proportionate reduction in the sale price. The petitioner thereafter filed a petition under Section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, before the Financial Commissioner, Punjab and the same was dismissed on May 6, 1980 vide Annexure P.5. The Financial Commissioner was influenced by the fact that the petitioner had knowingly retained possession of other khasra numbers 18/2 and 29/3 (although not sold to him) which had better quality of land and it was only when respondent No. 3 Kesar Singh had improved khasra No. 23/21 that the petitioner sought to invoke his rights to it. The Financial Commissioner also found that the respondent Nos. 4 to 6 who had purchased the said khasra number from respondent No. 3 had also dug a tubewell on the land in question and thereby further improving its quality. It further appears that in accordance with the instructions of the Chief Settlement Commissioner given in Annexure P-3 a suo-moto reference was made for the cancellation of the sale in favour of the petitioner and the same was allowed vide Annexure P-7 dated December 10, 1979. The petitioner has impugned Annexure P-3, P-5 and P-7 by way of the present writ petition, primarily on the ground that as the sale had been made in his favour in June 1970 and was confirmed on September 3, 1970 the khasra No. 23/21 was not availabile for allotment to Kesar Singh on November 30, 1970. In furtherance of this argument, it has been asserted that the land in question could not, in any case be allotted to Kesar Singh prior to the cancellation of the sale in favour of the petitioner vide Annexure P-7 dated December 10, 1979, as till that date, the petitioner continued to be its owner. It has also been urged that the title in Khasra Number 23/21 had passed to the petitioner on September 3, 1970 when the sale was confirmed and reliance for this argument has been placed on Gurbax Singh v. The Financial Commission and another, 1991 PunLJ 192. The final argument of the learned counsel for the petitioner is that the cancellation of the sale could only have been made in terms of Section 10(2) of the Punjab Package Deal Properties (Disposal) Act, 1976 (hereinafter called 'the Act') if it was found that the sale had been occasioned by fraud or misrepresentation and this not being the situation, the order Annexure P-7, was not sustainable.

(2.) The answer to the arguments raised by learned counsel for the petitioner, Mr. P.C. Mehta, Senior Advocate appearing for the respondents has urged that the reason given by the Chief Settlement Commissioner as also by the Financial Commissioner were germane to the matter as the sale could have been set aside not only on the ground of fraud and mis-representation but the legality and propriety of the orders passed could also be examined and as the authorities under the Act had found that the conduct of the petitioner disentitled him to any relief, the Court would be slow to interfere and this Court could not ignore the equities in the case and decide the matter merely on legal technicalities. Reliance has been placed on Om Parkash and others v. Union of India and others, 1971 AIR(SC) 771. It has also been urged by Mr. Mehta, that as the sale certificate had not been issued no rights had accrued on the petitioner. he has also drawn my attention to Annexure R-4/2 in which the petitioner had, at one stage, almost forfeited his rights to the entire land in question and had sought the refund of his earnest money, which had been forfeited for non-payment of instalments. This prayer was declined by the officer concerned and on an appeal, copy of which has been appended as Annexure P-4, the order of forfeiture was set aside and the petitioner was allowed to make the payments of the arrears alongwith interest. The final arguments of Mr. Mehta, is that as the petitioner himself had not been keen in retaining ownership of the land and on subsequent venders had come in possession of the disputed khasra No. This court should not disturb the present arrangement.

(3.) After hearing learned counsel for the parties, I find though with extreme reluctance, that this petition deserves to succeed. It is undoubtedly true that the conduct of the petitioner does not inspire any sentiment or feeling in his favour as having retained possession of khasra Nos. 18/2 and 20/1 instead of khasra No. 23/21 which had been sold to him for six long years, he suddenly woke up to claim his rights in it. I, however, find that the reasoning given by the authorities while disposing of Annexure P-3 and P-5 are not legally sustainable. Khasra No. 23/21 had admittedly been sold to the petitioner, and as such it was not available for allotment to respondent No. 3 till that sale was cancelled. Mr. Sarwan Singh's reliance upon Gurbax Singh's case , in which it has been held that title in the property would pass on the date of confirmation of sale provided full payments had been made and the sale certificate issued is, however, misplaced as in the matter in hand, the price for the land had not been paid nor the sale certificate issued. However, it has been urged by the learned counsel that the ground for the cancellation of sale in favour of the petitioner is not in the ground of fraud and mis-representation.