Bhai Nandbir Singh vs Financial Commissioner - Pespondent

J.S. Sekhon, J.

Sarv Shri Anup Singh and Prem Singh sons of Gian Singh had some agricultural land in village Mial, tehsil Chakewal, district Atak, also called as Kaimalpur now in Pakistan and they used to reside in that village. Both these persons were killed during the holocaust following partition of the country in 1947 in the above said village. The wife and son of aforesaid Prem Singh were also killed. However, Smt. Damodri Devi widow of Anup Singh and Smt. Hira Devi sister of said Anup Singh and Prem Singh managed to cross over to India. They settled in village Nangal Patti, tehsil Jagadhari, district Ambala. Smt. Damodri Devi filed a Mutalba claim in the Rehabilitation Department for the allotment of land left by her husband and Prem Singh in Pakistan. 115 1/2 standard acres land was allotted in village Baliwal, tehsil and district Ludhiana each in the name of Prem Singh and Anup Singh deceased on quasipermanent basis. The possession of this land was also taken in the names of the above referred two deceased persons by Smt. Damodri Devi on 6th May, 1954, vide Rapat Roznamcha Nos. 281 and 282. Smt. Damodri Devi then gave this land to her tenant Jagdish Singh son of Harnam Singh for cultivation. A few years thereafter she went to Africa for residing with her brothers where she expired. Subsequently, on the complaint of some persons that the legal heirs of the allottees were not residing in the village and had abandoned possession of the land in dispute, the Managing Officer vide ex parte order dated 15th July, 1966, cancelled its allotment after issuing notice to Anup Singh and Prem Singh on 2.7.1965, although the aforesaid persons were already dead. This land was then put to open auction, wherein Maluk Singh, present respondent No. 5, and Swaran Kaur, present respondent No. 6, purchased this land. Jagdish Singh, tenant of the heirs of the allottees, taking undue advantage of the absence of the legal heirs of the allottees then filed objections before the Settlement Officer (Sales) against the above referred auction, inter alia, on various grounds including that he being in possession of the land in dispute was entitled to transfer of the land in his name on the reserve price on the basis of press note issued by the erstwhile State Government of Punjab in the year 1962. The Settlement Officer (Sales) dismissed that petition on 12.11.1965. Jagdish Singh then went in revision before the Settlement Commissioner (Sales) against the above referred order, which was also dismissed by the latter on 16th May, 1969. Jagdish Singh preferred a writ petition in the High Court which was also dismissed on 13th November, 1972, and the sale of the auctioned area was confirmed by the Settlement Officer (Sales) vide order dated 3.7.1975 in favour of Maluk Singh and Swaran Kaur.

Mst. Hira Devi sister of the above referred original owners of the land on having learnt about the illegal order of cancellation of allotment of the land in dispute filed an application on 20.10.1973 through Harnam Singh father of the tenant as her general attorney for setting aside the above referred order of cancellation of allotment of land. The Assistant RegistrarcumManaging Officer, Jalandhar, after making a detailed enquiry held Smt. Hira Devi to be the sole legal heir of the deceased allottees being their sister and restored the allotment of the land in dispute in the name of the deceased allottees under the order dated 18.4.1975 Annexure P.1. The auction purchasers then went in appeal before the Assistant Settlement Commissioner which was accepted on 17th November, 1975, vide order copy Annexure P.2. Thereafter Mst. Hira Devi legal heir of the deceased allottees preferred a revision petition before the Chief Settlement Commissioner under Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act No. 44 of 1954 (hereinafter referred to as ''the Act'') who accepted the revision petition vide order copy Annexure P.3 and restored the orders of the Managing Officer. The auction purchasers then filed an application under Section 33 of the Act before Financial Commissioner, Punjab, having delegated powers of the Central Government, who vide his order Annexure P.4 accepted the petition and set aside the order Annexure P.3 of the Chief Settlement Commissioner by holding that Mst. Hira Devi having failed to prove herself to be the legal heir of the deceased allottees could not file the application for review of the order of the Managing Officer and that the Managing Officer could not review his own order after confirmation of the sale in favour of the auction purchasers.

During the pendency of the above referred litigation between the parties, Smt. Mohinder Kaur, petitioner No. 2 allegedly purchased the land in dispute from Mst. Hira Devi on 17.2.1977 through a registered sale deed. Smt. Mohinder Kaur filed a civil suit for permanent injunction to restrain the auction purchased from dispossessing her from the land in dispute. She got an ex parte interim injunction in her favour.

Being aggrieved against the above referred orders of the Financial Commissioner, Annexure P.4 and of the Chief Settlement Commissioner, Annexure P.2, the petitioners have filed this writ petition, inter alia, on the grounds that the notice to dead persons Anup Singh and Prem Singh was no notice in the eye of law and that no notice was given to the legal heirs of the deceased allotees under Rule 117 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (hereinafter referred to as the Rules) before cancellation of allottment of the land in dispute.

The auction purchasers resisted this petition on the ground that Nandbir Singh son of aforesaid Hira Devi had on locus standi to file the present writ petition as he had sold the entire land on 17.2.1977 to Mohinder Kaur, petitioner No. 2. It was also maintained that Mohinder Kaur, petitioner No. 3, having already resorted to civil remedy by filing a suit for permanent injunction against the auction purchasers regarding the land in dispute, the present writ petition was not maintainable. It was further contended that Mohinder Kaur, petitioner No. 2, had no locus standi to file the writ petition as the title in the land in dispute had not passed over to her as the land was sold after confirmation of its sale in favour of the answering respondent. On merits, the order of cancellation of allotment in favour of the deceased allottees after complying the mandatory provisions of Rule 117 of the Rules was contended to be perfectly legal and so also the order of the Financial Commissioner as well as Assistant Settlement Commissioner.

I have heard the learned counsel for the parties besides perusing the record.

Regarding the preliminary objection of the respondents about the nonmaintainability of this writ petition in view of the pendency of the civil suit filed by Mohinder Kaur, being a bona fide purchaser of the land in dispute for consideration is entitled to resist its possession. Her suit can be decreed only if the order of restoration of allotment of the disputed land in favour of the legal heirs of the above referred displaced persons, namely, Prem Singh and Anup Singh is upheld. Chief Settlement Commissioner is the final authority regarding the allotment of the property and its cancellation as according to the provisions of Section 27 of the Act, the jurisdiction of the Civil Court is specifically barred for challenging the orders passed by the concerned authorities under the provisions of the Act figuring in Chapter III. Sections 22, 23, 24 and 25 of Chapter IV deal with the appellate and revisional powers of the Settlement Commissioner, Chief Settlement Commissioner etc. The Civil Court thus cannot go into the controversy whether the allotment of the land was rightly cancelled by the Managing Officer under the provisions of the Act. Admittedly, the above referred suit has been got dismissed in default. Thus the filing of the suit is of no consequence regarding the maintainability of this writ petition.

Merely because Jagdish Singh tenant on the land in dispute under the allottees had filed Civil Writ Petition No. 1335 of 1969, which was dismissed by the Division Bench of this High Court on November 13, 1972, is also of no consequence. The perusal of the order of the High Court in that writ petition reveals that Jagdish Singh has set up a case being entitled to purchase the property under press note of 1962 issued by the State Government being in cultivation possession of the property in his own right. The High Court while dismissing the writ petition had upheld the order of the Tehsildar (Sales) cum Managing Officer dated 15.11.1966 as well as of the Chief Settlement Commissioner regarding the nonapplication of the provisions of press note 1962 issued by the State Government as well as of the Chief Settlement Commissioner. Thus dismissal of objections filed by Jugdish Singh by the above referred authority under the Act has no material bearing on the face of this writ petition or its maintainability.

There is considerable force in the contention of the learned counsel for the petitioner that any order or decree against a dead person is a nullity. The decision of the Division Bench of this Court in Virsa Singh and others v. The State of Punjab and others, 1970 Current Law Journal 370, can be safely referred in this regard. In that case, the cancellation of the allotment of land without giving notice to the legal heirs of the original allottee, who had died was held to be nullity. It was further held that the mandatory requirement of provisions of Rule 102 of the above Rules have to be specified while hearing appeals or revisions and that the Managing Officer having passed the order of cancellation of allotment of land against a dead person being in the nature of things a nullity and the upholding of the nullity order at the appellate or revisional stage is of no consequence. Thus the original order of cancellation of allotment of land by the Managing Officer being against a dead person was a nullity and it was rightly set aside by the Managing Officer vide order copy Annexure P.1.

There is no dispute about Anup Singh and Prem Singh original allottees of the land in dispute having been killed in Pakistan in the year 1947 during the partition of the country. It is not disputed that as per the Instructions, initially the land has to be allotted on a quasipermanent basis in the name of its owner as per last entry in the Jamabandi preceding the partition of the country. Thus the original allotment of the land in the name of Anup Singh and Prem Singh seems to be perfectly legal. Simply because the revenue Patwari in the Rapat Roznamcha Nos. 281 and 282 while delivering the actual possession of the land in dispute to the allottees had not mentioned the name of Mst. Damodri Devi widow of Prem Singh, it cannot be said that the allottees had not taken actual possession of the allotted land.

The matter does not rest here as the mandatory provisions of Section 19 of the Act as well as of Rule 102 of the Rules were not at all complied with. No notice was issued under registered cover with acknowledgement due to the deceased allottees or their heirs as provided under Rule 117 of the rules. This rule lays down the procedure for service and notice and reads as under:

"117. Service of orders and notices. (1) Every order or notice made or issued under the Act or these rules shall be served by registered post acknowledgement due.

(2) Ordinarily a notice of at least fifteen days shall be given.

(3) The service of an order or notice under subrule (1) shall be deemed to have been effected if the order or notice has been properly addressed and dispatched by registered post.

(4) The service of an order or notice shall, unless the contrary is proved, be deemed to have been effected on the date on which the order or notice, as the case may be, would ordinarily have been delivered through the registered post.

(5) When an order or notice has to be served on a person who had made an application for payment of compensation, it shall be dispatched to him at the address supplied by him in the application for compensation unless an intimation of a change of address has been given.

(6) When by due diligence the address of the person concerned cannot be known, the order or notice may be despatched to him at his last known address.

(7) When an order or notice sent by post is returned undelivered, or where the Settlement Officer or other authority is satisfied that there are reasons to believe that the order or notice cannot be delivered in the ordinary course, the Settlement Officer or other authority may direct that the order or notice may be served either; (a) by publication in one issue of a newspaper having circulation in the area in which the person concerned is known to have last resided or to have carried on business; or (b) (i) by affixture of a copy of the same on a conspicuous part of the property in relation to which the order or notice has been made or issued; and (ii) by beat of drum at some place on or adjacent to such property.

(8) When an order or notice is served as specified in clause (a) or clause (b) of subrule (7), a copy of such order or notice shall also be affixed in the office of the Officer or authority who made or issued the order or notice, as the case may be.

(9) Where an order or notice is directed to be served as in the manner specified in clause (a) of subrule (7), the date fixed for hearing shall not be earlier than the date on which the order or notice is published in the newspaper.

(10) Where an order or notice is directed to be served in the manner specified in clause (b) of subrule (7) the date fixed for hearing shall not be earlier than the dates on which the requirements laid down in that clause have been complied with."

A bare perusal of subrule (7) reproduced above leaves no doubt that if a notice sent by post is returned undelivered or where the settlement or other authority is satisfied that there are reasons to believe that the order or notice cannot be delivered in the ordinary course, only then the authority is empowered to resort to substituted service by way of publication of notice in one issue of a newspaper having circulation in the area in which the person concerned is known to have last resided or to have carried on business or by affixture of copy of the same on the conspicuous part of the property in relation to which notice has been issued and by beat of drum at some place on or adjacent to such property. In the case in hand, substituted service was presumed on the report of the revenue officials that the legal heirs of the deceased are not residing in the village. Under these circumstances, it is a case of that type whereunder legal notice was issued to the heirs of the deceased before passing the order of cancellation of allotment of the land to the predecessors of the petitioner. The decision of a Single Bench of this Court in Behari Lal v. The Managing Officer (Sales) Jullundur and others, 1977 PLJ 35, can be referred with advantage in this regard. In this case also, while interpreting the provisions of Rule 117 [Subrule (7) of the Rules] it was held that the issuing of notice under registered cover is necessary by the authorities before proceeding for substituted service by way of publication of notice in the newspaper or by affixation of notice at the conspicuous part of the property.

A Full Bench of this Court in State of Haryana and others v. Vinod Kumar and others, 1987 RRR 81 (P&H) : 1986 PLJ 161, while deciding a similar controversy regarding the service of notice under Rule 6 of the Punjab Security of Land Tenures Rules, 1956, had held that the order of Collector declaring land as surplus without affording concerned landowner an opportunity of being heard is a nullity. Thus under these circumstances, there is no escape but to conclude that cancellation of allotment order dated 15.7.1966 of the Managing Officer is certainly a nullity in the eye of law and not binding upon the present petitioners.

The question then arises whether the order of the Assistant Registrar, LandscumManaging Officer Annexure P.1 dated 18.4.1975 restoring the original allotment of the land to Hira Devi legal heir of the deceased falls under Section 25 of the Act or is a simple order for restoration by setting aside the earlier ex parte order dated 15.7.1966 cancelling the allotment of the land in dispute. In this regard, there is no doubt that this order will not fall under the provisions of Section 25 of the Act as by no stretch of imagination it can be said to be reviewing the earlier order passed by the Managing Officer. The provisions of Section 25 of the Act read as under :

"Review and amendment of orders. (1) Any person aggrieved by an order of the Settlement Officer under Section 5, from which no appeal is allowed under Section 22, may, within thirty days from the date of the order, make an application in such form and manner as may be prescribed, to the Settlement Officer for review of this order and the decision of the Settlement Officer on such application shall, subject to the provisions of Section 24 and Section 33, be final.

(3) Clerical or arithmetical mistake in any order passed by an officer or authority under this Act or errors arising thereto from any accidental slip or omission may, at any time, be corrected by such officer or authority or the successorinoffice of such officer or authority."

A bare persual of the above section leaves no doubt that the power of review relates to correction of clerical, arithmetical mistake or accidental slips or omissions. Similar controversy came under the observations of a Single Bench of this Court in Tarlok Nath v. Chief Settlement Commissioner and others, 1968 Punjab Law Reporter 657. In that case vendee applied for setting aside the ex parte order on the ground of nonservice of notice upon him. After elaborate discussion it was held by Justice R.S. Narula, as he then was, that the impugned order would amount to setting aside the ex parte order of a predecessor and not reviewing the order of the predecessor.

The decision of the apex Court in Sadhu Singh (dead) by L.Rs. v. Union of India and others, AIR 1979 Supreme Court 1609, also reveals that cancellation of allotment of land by the Managing Officer under the Act without giving notice to the original allottee in flagrant violation of the provisions of Section 19 and Rule 102 is not sustainable.

In view of the above legal position, the impugned order Annexue P.4 of the Financial Commissioner, Revenue, exercising the powers of the Central Government under Section 33 of the Act to the effect that the Managing Officer has no power to review his predecessor''s order dated 15.7.1966 vide order Annexure P.1 is of no consequence as the latter had simply set aside the ex parte order.

As regards the order Annexure P.4 of the Financial Commissioner regarding Mst. Hira Devi having failed to prove being the sole heir of Anup Singh and Prem Singh deceased, it transpires that the perusal of order Annexure P.1 of the Assistant Registrar, LandscumManaging Officer reveals that after recording the evidence of Gobind Singh son of Sujan Singh belonging to the native village of aforesaid Prem Singh and Anup Singh now in Pakistan as well as Natha son of Ram Chand that Hira Devi is the sole heir of aforesaid Anup Singh and Prem Singh and that due to lack of any rebuttal on behalf of the respondents in this regard, there is no option but to hold that Mst. Hira Devi is certainly legal heir of the deceased. No doubt before the Financial Commissioner, Punjab, the respondents had set up a case that Smt. Soma Wati added respondent No. 7 is also one of the legal heirs of the deceased allegedly being the daughter of Anup Singh deceased, yet all the same there being no evidence on the file in this regard, there is no option but to hold that Soma Wati added respondent No. 7 to this writ petition shall have the right to share the inheritance of the deceased after proving herself to be legal heir of Anup Singh deceased in the Civil Court.

For the foregoing reasons, this petition is accepted and the impugned orders Annexure P.2 of the Financial Commissioner, Punjab, are hereby set aside while the orders Annexures P. 1 and P. 3 of the Assistant Registrar, LandscumManaging Officer and Chief Settlement Commissioner respectively are restored with the modification that Soma Wati, respondent, shall be at liberty to establish her alleged claim to the inheritance of her father in a proper forum. The State Government shall, however, compensate the auction purchasers by refunding the amount etc. with interest at the rate of eight per cent per annum or by allotting another area of land at the value prevalent at the time of auction. In view of the peculiar circumstances, there will be no order as to costs.