AMAR NATH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) By the present judgment, I propose to dispose of CWP No. 6923 of 1991 filed by Balwant Kaur and 7131 of 1991. The facts of the case have been taken from the latter case.

(2.) The petitioner, Amar Nath, was allotted land measuring 57 Kanals 18 Marlas by way of restricted auction held on 20th February, 1965. The sale aforesaid was confirmed on March 9, 1965 and a certificate thereof, Annexure P-5 to the petition, was issued in favour of the petitioner. Condition No. 2 of the certificate provided that the purchaser would not be entitled to resell, transfer or mortgage the purchased land till the final payment of the loan with interest or till the expiry of 10 years from the date of purchase, whichever was later, and in the event of a violation of this condition, the land would be liable to be resumed. The full payment was made by the petitioner on 15th September, 1971 and five days thereafter, 36 kanals out of the aforesaid land was sold to Balwant Kaur, respondent No. 4 vide two sale deeds dated 20th September, 1971 and 1st January, 1973. On coming to know of the sales, the Naib Tehsildar acting under Section 11 of the Punjab Package Deal Properties (Disposal) Act, 1976 made a reference to the Deputy Secretary, Rehabilitation that as the petitioner had violated the condition of the restricted auction by having sold a part of the land before the expiry of the period of ten years, the entire land auctioned in favour of the petitioner should be cancelled. The reference was duly accepted by the Deputy Secretary vide orders dated 11th August, 1975. Aggrieved by the order dated 11th August, 1975, petitioner Amar Nath and respondent No. 4 Balwant Kaur filed two separate writ petition Nos. 5921 and 5607 of 1975, respectively, in this Court. This Court vide its judgment dated 17th October, 1979, appended as Annexure A 3/1 with the reply in the connected case, dismissed the petition filed by the petitioner, whereas the petition filed by Balwant Kaur was allowed and the matter remanded to the Deputy Secretary, Rehabilitation, to re-decide the matter after affording an opportunity of a hearing to Balwant Kaur, the subsequent transferee. The matter was thereafter taken up by the various authorities and vide orders dated 20th April, 1981 Annexure P-1 to the petition, the order dated 11th August, 1975, was set aside by the Deputy Commissioner-cum-Chief Sales Commissioner, Kapurthala. A fresh reference was thereafter made under section 15 of the Act before the Commissioner, Jalandhar Division, Jalandhar, for taking suo motu action and vide Annexure P-2 dated 8.9.1987, the reference was accepted and the order Annexure P-1 set aside. The revision taken before the Financial Commissioner by Balwant Kaur was thereafter dismissed vide Annexure P-3 dated 7.2.1991. Annexures P-2 and P-3 have been impugned before me in both the writ petitions. It appears to me that after the dismissal of the revision petition by the Financial Commissioner on 7th February, 1991, the land in dispute had been allotted in favour of respondents 3 and 4 in CWP No. 6923 of 1991 who are said to have been put in possession of the land in question. No reply has been filed by the respondents in the main case, but respondent Nos. 3 and 4 have filed the reply in Balwant Kaur's case. In the reply, the stand taken is that the impugned orders were perfectly in accordance with law and in any case vide judgment in CWP No. 5921 of 1975 decided on 17th October, 1979, the challenge made to the order dated 11th August, 1975 Annexure P-1 to the second petition, had been negatived and the petition filed by Amar Nath, the original purchaser, had been dismissed. Faced with this situation, Mr. H.S. Mann, learned counsel for the petitioner, had virtually no argument to advance. In view of the fact that the order dated 11th August, 1975 Annexure P-1 to the second petition was challenged in the aforesaid case and the writ petition dismissed, I find no merit in CWP No. 7131 of 1991 and dismiss the same with costs which are assessed at Rs. 1000/-.

(3.) It has been urged by Mr. A.S. Cheema, learned Senior Advocate, appearing for the petitioner, in CWP No. 6923 of 1991 i.e. Balwant Kaur's case, that the High Court while remanding the case to the authorities below and rendering the judgment in CWP No. 5607 of 1975 had directed the Deputy Secretary Rehabilitation-cum-Settlement Commissioner to decide "whether the order of cancellation of the original transfer made in favour of Amar Nath would operate against her or not ?" and vide Annexure P-2 in the case the finding had been recorded in favour of the petitioner by the Chief Sales Commissioner, Kapurthala, who held the subsequent transfer in favour of Balwant Kaur to be protected under section 41 of the Transfer of Property Act (hereinafter called the Property Act). He has urged that once the reference had been made which culminated in the order Annexure P-2 no fresh reference to the Commissioner could be made under Section 15 of the Act and as such, the orders Annexures P-3 and P-4 of the Commissioner and Financial Commissioner in CWP No. 6923 of 1991 were without jurisdiction. It has also been urged that the aforesaid functionaries had not given categoric findings in terms of the directions of the High Court in CWP No. 5607 of 1975 which has already been quoted above. Attention has been drawn by the counsel for the petitioner to Kali Ram & others V. Union of India and others, 1976 78 PunLR 475; Rattan Singh & another V. Chief Settlement Commissioner, Haryana & others, 1978 PunLJ 47; Achhar Singh & others V. State of Punjab & others, 1979 PunLJ 278 and Ved Kumari V. Union of India & others, 1989 2 RRR 78 in order to show that the transfer made in favour of the petitioner Balwant Kaur was to be protected in terms of section 41 of the Property Act.