HIMPRASTHA FINANCIERS (P) LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) By way of this appeal, the appellants have prayed for the following relief: "That in the facts and circumstances set out hereinabove, the appellants/plaintiffs humbly pray that this appeal may very kindly be allowed and the judgment and decree of the learned Appellate Court affirming the judgment and decree of the Trial Court may very kindly be set aside throughout with costs. In the alternative, the appellants/plaintiffs humbly pray that since the judgment and decree of both the Courts below are against law and facts on record, the case may be sent for re-trial under the provisions of Order 41 Rule 23 A CPC."

(2.) Brief facts necessary for the adjudication of the appeal are as under: Appellants/plaintiffs (hereinafter referred to as 'the plaintiffs) filed a suit for injunction restraining the respondents/defendants (hereinafter referred to as 'the defendants') from interfering over the possession of the plaintiffs upon property known as 'Him Prastha Bhawan and Central Hotel Annexe' comprised in Khasra Nos. 62/2 and 490/62/A, measuring 1016 square yards 3 square feet. Pursuant to order dated 02.06.1984 purportedly passed by defendant No. 3 and for restraining the defendants from realizing the rent of the property from its tenants etc. As per the plaintiffs, plaintiff No. 1 was a Private Limited Company and property known as Central Hotel Estate situated in Shimla was an evacuee property and same formed part of compensation pool, which was put to auction under the orders of Regional Settlement Commissioner, Jullundur in four different lots, namely, (i) Lot No. 119 comprising Central Hotel Main Bldg. And land attached thereto; (ii) Lot No. 119(a) comprising of Central Hotel Annexe; (iii) Lot No. 119(b) comprising of stable and servant Qrs.; and (iv) Lot No. 119(c) comprising of Central Hotel and additional house above the stables. Out of these four lots, Central Hotel Main building, i.e., lot No. 119 was purchased by one Shri Kala Ram Khanna, Benamidar of Smt. Shakuntla Kochhar for a sum of Rs.67,225/-. Said Kala Ram Khanna was issued sale certificate on 29.03.1963 with regard to the property purchased by him on behalf of Shakuntala Kochhar as per the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'the 1954 Act') as also Rules made thereunder, wherein the boundaries and details of the property sold to Kala Ram Khanna were also mentioned. Said Kala Ram Khanna, sometime in July 1963 relinquished all his rights, titled and interest in the property in favour of Smt. Shakuntla Kochhar, who was the real and actual owner of the property in issue and on whose behalf, Sh. Kala Ram Khanna was the Benamidar of the property. As per the plaintiffs, Shakuntla Kochhar was the actual owner of the property known Central Hotel Main Building bearing lot No. 119 and land attached thereto right from the beginning. Out of lot No. 119, Central Hotel Main Building and the land attached thereto, Smt. Shakuntla Kochhar sold an area of 1016 sq. yards and 3 sq. feet comprising of building known as Central Hotel Annexe bearing Khasra No. 61/2 and land appurtenant thereto comprised in Khasra No. 490/62/A, measuring 864 sq. yards and 2 sq. feet vide sale deed dated 06.10.1967 for a consideration of Rs.27,000/- to the plaintiffs. Pursuant to the said sale deed, the plaintiffs were put in possession of the property, which was so purchased by them from Shakuntla Kochhar. Thereafter, plaintiff No. 1 started development work on the property so purchased and constructed partly a single storeyed and partly a double storeyed building known as Him Prastha Bhawan, consisting of a basement and one storey above it on the portion of vacant land purchased from Shakuntla Kochhar. Out of the aforesaid newly constructed building, plaintiff No. 1 sold portions thereof to plaintiffs No. 2 to 5 as mentioned in the plaint. Plaintiffs No. 2 to 5 were also put in legal possession of their respective portions of the property purchased by them. The Central Hotel Stables and servant Qtrs. bearing lot No. 119(b) were purchased by one Shri Dina Nath Malhotra vide sale certificate dated 28.06.1961. Subsequently, vide a deed of sale dated 17.01.1962, he sold the servant quarters and stable to one Shri Kundan Lal Ahuja. Some time in June 1971, Shri Kundan Lal Ahuja filed a complaint with the Chief Settlement Commissioner, Relief and Rehabilitation, Himachal Pradesh against Shakuntla Kochhar alleging that she had wrongly and illegally usurped the Central Hotel Annexe, being lot No. 119(a) and included the same in the sale certificate by extending the boundaries of her estate. It was mentioned in the complaint that land sold by Shakuntla Kochhar to one Shri H.D. Sardana belonged to him (Kundan Lal Ahuja) and she had wrongly usurped the same and sold it to Shri H.D.Sardana.

(3.) On receipt of the said complaint, the Chief Settlement Commissioner, H.P. Shimla initiated proceedings against Smt. Shakuntla Kochhar under Section 24 of the Act. He passed an order against her of ejection from the property, i.e., lot No. 119 (a) Central Hotel Annexe, measuring 531 sq. yards, on the ground that said property was never sold to her and she had wrongly included the same in her sale certificate by extending boundaries in her sale certificate. However, Chief Settlement Commissioner did not return any findings qua area purchased by Shri H.D. Sardana, which was claimed by Kundan Lal Ahuja to be his own. Shakuntla Kochhar filed a revision petition under the provisions of the 1954 Act before the Secretary to the Government of H.P. Vide order dated 16.06.1972, the findings of the Chief Settlement Commissioner were set aside on the ground that he had no jurisdiction in the matter. Vide same order, the Secretary, taking cognizance of the complaint of Kundan Lal under Section 33 of the Act suo moto recast the boundaries of Smt. Shakuntla Kochhar and amended her sale certificate to the extent excluding therefrom he property known as Central Hotel Annexe, i.e., lot No. 119(a), on the ground that the said property was never sold to her. Vide said order, the Officer also ordered the eviction of the plaintiff from Central Hotel Annexe lot No. 119(a), measuring 531 sq. yards. Feeling aggrieved, plaintiff No. 1 and other aggrieved parties preferred a writ petition in the High Court of Himachal Pradesh. Same was dismissed by the High Court vide judgment dated 14.04.1975. High Court upheld the findings of the Secretary that the sale certificate of Smt. Shakuntla Devi was void to the extent that it included the boundaries of Central Hotel Annexe. Thereafter, the defendants wrote a letter No. 543 dated 24.05.1982 to plaintiff No. 1, calling upon said plaintiff to surrender the vacant possession of Central Hotel Annexe, measuring 531 sq. yards. On receipt of the said communication, plaintiff No. 1 approached the Settlement Officer, Evacuee Properties, Department of Rehabilitation, Government of H.P., Una for settlement of the dispute regarding the said area measuring 531 sq. yards. The Settlement Officer agreed to settle the matter on the condition that plaintiff No. 1 withdraws its Special Leave Petition preferred by it, which was subsequently withdrawn by plaintiff No. 1. Thereafter, Settlement Officer, Una settled the entire matter with respect to the aforesaid disputed property for an amount of Rs.1,85,000/- as cost of the said property as also damages for its occupation, which plaintiff No. 1 agreed to honour. However, said order was never communicated to plaintiff No. 1, for the reasons best known to the defendants. Despite above mentioned settlement, defendant No. 3 vide letter No. 443, dated 09.09.1983 served a show cause notice under Section 19(2) of the 1954 Act, calling upon the plaintiff No. 1 as to why it should not be ejected from the area of 1016 sq. yards of Central Hotel Annexe purchased by it from Shakuntla Kochhar. Plaintiff No. 1 filed its reply dated 03.10.1983 pointing out that eviction order passed by the Secretary only pertained to an area of 531 sq. yards and therefore, show cause notice was wholly illegal, void and without any jurisdiction beyond that. It was also mentioned in the reply that in view of settlement of the entire matter, the defendants were not entitled to re-open the said matter again. Thereafter, vide order dated 02.06.1984, defendant No. 3 ordered the ejection of plaintiff from the property, i.e., Central Hotel Annexe and land measuring 1016 sq. yards by rejecting the contention of plaintiff No. 1. Plaintiff No. 1 was also directed not to take any rent from the tenants occupying the property. As per the plaintiff, said order dated 02.06.1984 passed by defendant No. 3 under Section 19(2) of the 1954 Act was illegal, null and void, ultra vires and without jurisdiction for the following reasons: