Amar Nath vs State of Punjab

H.S. Bedi, J.

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.

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 P5 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 redecide 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 P1 to the petition, the order dated 11th August, 1975, was set aside by the Deputy CommissionercumChief 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 P2 dated 8.9.1987, the reference was accepted and the order Annexure P1 set aside. The revision taken before the Financial Commissioner by Balwant Kaur was thereafter dismissed vide Annexure P3 dated 7.2.1991. Annexures P2 and P3 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 P1 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 P1 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/.

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 RehabilitationcumSettlement 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 P2 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 P2 no fresh reference to the Commissioner could be made under Section 15 of the Act and as such, the orders Annexures P3 and P4 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 PLR 475; Rattan Singh & another v. Chief Settlement Commissioner, Haryana & others, 1978 PLJ 47; Achhar Singh & others v. State of Punjab & others, 1979 PLJ 278 and Ved Kumari v. Union of India & others, 1989(2) RRR 78 : 1989 PLJ 254 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.

On behalf of the respondents, it has been urged that there was no bar in any provision of the Act to the making of a second reference and in any case, once the Commissioner and the Financial Commissioner had exercised powers conferred upon them vide sections 15(1) and 15(2) of the Act, respectively, there was absolutely no impediment in making the orders Annexures P3 and P4. It has also been urged that the question of jurisdiction now raised was never urged before any of the authorities below. It has been argued by the counsel for the respondents that there was full compliance with the orders of remand made by the High Court and vide Annexure P4 the Financial Commissioner had given categoric finding that Balwant Kaur stepped into the shoes of Amar Nath and, as such, was not entitled to maintain the sale in her favour. It has been argued by the counsel for the respondents that the embargo on sale in the case of a restricted auction for a period of ten years has been held to be valid by this Court in Joga Singh v. The Deputy Secretary RehabilitationcumSettlement Commissioner, Rehabilitation Department, Jalandhar and others, 1980 PLJ 404. It has also been urged on the strength of Jagir Singh v. The State of Punjab and others, 1986 PLJ 68 : 1985 R.R.R. 135 that the subsequent transferee is not absolved of the responsibility from seeing the sale certificate (which expressly carried a prohibition against alienation for ten years) and, as such, the subsequent transferee could not be considered to be a bona fide purchaser.

I have heard the counsel for the parties at length and also perused the record. The argument made by the counsel for the petitioner that the second reference was not visualised by the Property Act and therefore the order of the Commissioner Annexure P3 and that of the Financial Commissioner Annexure P4 were without jurisdiction, cannot be sustained. The counsel for the petitioner could not point out any provision in the Property Act which specifically barred a second reference. As a matte of fact, once the matter had been referred to the Commissioner and the Financial Commissioner under section 15(1) and 15(2) of the Act (who are under the Act itself authorised to take even suo motu action) no grievance could be made by Balwant Kaur that the reference made was bad. It will be apparent from a reading of the aforesaid sections that almost similar powers have been conferred on the Commissioner and also the State Government acting through the Financial Commissioner and these officers are entitled to pass such orders in relation to the dispute as the circumstances require. I am, therefore, of the view that the circumstances of the case did require, without any manner of doubt, that the sale made to Balwant Kaur, being in contravention of the stipulation contained in the sale letter, required to be struck down in accordance with the settled law. It is also pertinent to point out that this Court has held in Joga Singh''s case and Jagir Singh''s case (supra) that the subsequent transferee is not absolved of the responsibility from going through the sale certificate which expressly prohibits the sale certificate within a period of ten years. It has also been held in the former case that the condition prohibiting the sale for a period of ten years is a valid and enforceable one and cannot be the subjectmatter of a successful challenge. In Jagir Singh''s case (supra), the subsequent transfer was held to be not bona fide as the purchaser had not, in fact, looked at the sale certificate and the Court found that this was not one of the matters which was required to be seen in order to determine the bona fide of the subsequent transfer. It is also noteworthy that in the reply filed by respondents 3 and 4 as far back as in August, 1991 it has stated that the embargo on resale for a period of ten years had been incorporated in the Jamabandi for the year 196566 and 197071. This assertion has not been controverted by the petitioner in the pleadings but at the stage of arguments a copy of the Jamabandi purporting to be of this very property for the year 197273 has been produced before me in which no such ban is mentioned. The judgments cited by the counsel for the petitioner and referred to above do not apply to the facts of the case. In Kali Ram''s, Rattan Singh''s and Achhar Singh''s cases (supra) the subsequent transfers were held to be bona fide and entitled to the protection of section 41 of the Transfer of Property Act as on the date of sale the vendors had a complete title which was reflected in the record on the basis of which the subsequent vendee accepted the transfer. In none of the cases cited above was there a sale certificate issued to the first purchaser in which the embargo of resale had been specifically set out.

In view of what has been stated above, I find no merit in the writ petition and the same is dismissed with no order as to costs.