Darshanjit Kaur vs Financial Commissioner (Planning) and Others

R.S. Mongia, J.—This writ petition was admitted on August 31,1993. While ordering dispossession-of stay ad-interim notice regarding stay was also given. There was very serious dispute regarding the factum of possession. Both parties were claiming that they were in possession of the land in dispute. Even a Local Commissioner was appointed for that purpose. The arguments on stay matter were lengthy and I thought it appropriate to hear the parties in the main case/The parties counsel consented that the main case itself be decided. Consequently, I heard learned counsel for the parties in the main case.

The facts giving rise to the present petition may be noticed. Motu Ram and Naru Ram sons of Jodha Ram were the displaced persons from West Pakistan and in lieu of the laud left by them in Pakistan, they were held entitled to allotment of certain rural land under Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as ''Act''). Vide orders dated 29.9.1977, 25.10.1977 and 15.2.1978, agricultural land measuring 131 Kanals 8 Marlas in Village Malkana, Tehsil Samana, District Patiala was allotted to them by the Tehsildar (Sales)-cum-Managing Officer, Patiala. Some parts of the allotments were cancelled on the ground that the area allotted to them was within the municipal limits of Samana Town. Allotment in favour of the above two persons included the land comprised in Rect. No. 107 Killa Nos. 16/17 and Rect. No. 108 Killa Nos. 14/15/16/17 measuring 32 Kanals. Petitioner had purchased from the department certain land in open auction held on 3.2.1969 which included the above-mentioned Khasra Nos. measuring 32 Kanals. It may be observed here that the petitioner''s husband was also held entitled to the allotment of land upto allotability limit of Rs. 14769/-. under Chapter-V-A of the Displaced Persons (Cand R) Rules, 1955 (hereinafter referred to as the Rules). She Was allotted on this count 54 Kanals 14 marlas of land. This allotment became the subject-matter of litigation which ended in this Court when the petitioner filed C.W.P. No. 873 of 1973 decided on 3.3.1982 Revenue Law Reporter 190.

The petitioner challenged before the Settlement Commissioner Rehabilitation Department, Punjab the allotment made to Motu Ram and Naru Ram u/s 22 of the Act of the area measuring 32 Kanals to which reference has been made above. The grounds of challenge were that the area in question had already been purchased by the petitioner in open auction held on 3.2.1969. Further it was urban land whereas Motu Ram and Naru Ram were entitled to allotment, of rural land, consequently, the land in question could not be allotted to them. The appeal of the petitioner was rejected by the Settlement Commissioner u/s 24 of the Act by filing, a revision petition. In the meantime, suo moto reference was. made by the Tehsildar (Sales)-cum-Managing Officer to the Chief Settlement Commissioner for, cancellation of the allotment in favour of Motu Ram and Naru Ram on the ground that the land was situated within the municipal limits of Samana town. This reference was. accepted by the Chief Settlement Commissioner vide order dated 21.12.1981 (Copy Annexure P-6). As far as revision by the petitioner herself was concerned, the same was also disposed on the same day i.e. 21.12.1981, wherein it was noticed that the petitioner had challenged the allotment of urban land to the respondent and also claimed the urban evacuee land as lessee/sub-lessee. The claim of the petitioners for allotment of land as lessee/sub-lessee was held not to be tenable. As regards the other prayer, it was observed that on suo-moto reference, the allotment made in favour of Motu Ram and Naru Ram had been cancelled. The revision was dismissed.

It may be observed that after the allotment of land to Motu Ram and Naru Ram, the proprietary rights were conferred on them on 15.3.1978. Some part of the land was purchased by Smt. Bhagwanti, Mohinder Kumar and Suresh Kumar respondents on 30.1.1981 by way of registered sale deed. After the death of Naru Ram the land was mutated in the names of his sons Jagdish Karaal and Rajejev Kamal alongwith his daughter Vidya Devi. After the sale of some part of the land by Motu Ram and Naru Ram or their successors in interest, the mutations regarding the sale-deed sanctioned in the names of the vendees.

Against the order dated 21.12.1981 passed in the revision, petition filed -by the petitioner, a further revision, was filed by her before the Central Govt. u/s 33 of the Act which was accepted on 4.5.1982 by the Financial .Commissioner, Punjab, exercising the powers of the Central Government, The order dated 4.5.1982 was passed without notice to Motu Ram. The, legal heirs of Motu Ram filed a review petition before the Central Government u/s 33 of the Act to set aside the order dated 4.5.1982 as the same bad been passed without impleading the legal representatives of Motu Ram as respondents. Against the acceptance of reference by the Chief Settlement Commissioner on reference by the Chief Settlement Commissioner on 21.12.1981 (Annexure P-6) the allottees/their successors-in-interest also filed petition u/s 33 of the Act before the Financial Commissioner. In fact a few other allottees/their successors-in-interest had also filed separate petitions u/s 33 of the Act and the Financial Commissioner, Punjab vide order dated 28.6,,1990 (Annexure P-l) disposed of 7 petitions by one order, in which it was held (as far as the present parties are concerned) that the allottees have been in possession of the land in dispute for quite a long time (since 1981) and they have made improvements on the same, therefore, their allotment should not be cancelled and rather Darshanjit Kaur, petitioner be given 32 Kanals of urban land out of the land which is in her unauthorised possession. This order has been impugned by the petitioner in the present writ petition which was filed on 30.8.1993.

Learned counsel for the respondents raised a preliminary objection that the present writ petition is highly belated, inasmuch as, order dated 28.6.1990 had been challenged after more than 3 years. Learned counsel further submitted that another writ petition i.e. C,W.P. No. 2695 of 1990, infact has nothing to do with this case. Seven petitions were decided by the Financial Commissioner by one and the same order and only a decision in one of the petitions was made subject-matter of challenge in CWP No. 2695 of 1990. Simply because that writ petition had been admitted and is pending, is no ground to entertain the writ petition at such a belated stage. Otherwise, also the other writ petition was filed in the year 1990 and there is no explanation as to why the present writ petition was filed such a delay.

There is no explanation forthcoming as to why the present petition has been filed at such a belated stage. As observed above,'' seven petitions were decided by the Financial Commissioner by one order but there is nothing common between the subject-matter of C.W.P. No, 2695 of 199 and that of the present writ petition. Moreover that writ petition was filed in the year 1990 and I find no justification forthcoming as to why the writ petition should be entertained at such a belated stage. The writ petition is highly belated and is liable to be dismissed on this short score alone.

However, I heard learned counsel for the parties on merits as well, but I do not find any merit in the submissions of the learned counsel for the petitioner. He raised the same two points as had been raised earlier before the authorities below; (i) that since the land in dispute had been purchased by her in open auction on 3.2.1969, the same could not be allotted to Motu Rath and Naru Ram and (2) the land in question was urban land and it could not have been allotted to Motu Ram and Naru Ram as they were entitled only to allotment of rural land. Since the allotment, according to the learned counsel for the petitioner was void ab-initio and sale or mortgage by Motu Ram and Naru Ram or their successors-in-interest would also be void. In support of his contention, learned counsel submitted that the possession of the land in question had been delivered to the petitioner after she had purchased the land. The learned Financial Commissioner had gone wrong in holding that the land in question was not urban. According to the learned counsel, the report of the Executive Officer, Municipal Committee, Samana to the effect that land could not be treated as urban was total misreading of the report:

In reply, learned counsel for the respondents submitted that it is apparent from the order of the Settlement Commissioner dated 18.9.1978 that the petitioner had only paid a sum of Rs.2680/- for the purchase of land in dispute on 31.1969. She had admitted before the said Authority that the sale certificate had not been issued in her favour as certain amounts against her claim still remained to be adjusted. On the basis of this fact, leaned counsel for the respondents submitted that under Rule 90(14) of the Rules if the auction purchase does not deposit the full price as required by the Rules, he has no claim towards the property and that no order cancelling the sale is even .required. Under Rule 90(11) of the Rules, auction purchaser is required to deposit the balance of the purchase money within a period of 15 days and if that is not done, the auction purchaser has no claim to the property. Rule 90(14) is in the following terms:-

"90(14) If the auction purchaser does not deposit the balance of the purchase money within the period specified in Sub-rule (11) or does not furnish particulars of his compensation application as specified in Sub-rule (12), or if the net compensation admissible to the auction purchaser is found to be less than the balance of the purchase money arid the auction purchaser does not make up the deficiency as provided in Sub-rule (13) the initial deposit made by the auction purchaser in sub-rule (8) shall be liable to forfeiture and he shall not have any claim to the property."

Learned counsel in support of his contention relied upon a judgments rendered in K.N. Kapoor Vs. Union of India and Others, and in case of Tara Singh v. Smt. Charon Kaur (1968)70 P.L.R. 35 (S.N.). The learned counsel for the respondents further submitted that no right came to vest in the petitioner and she had no claim to the property having failed to deposit the balance amount of the price within the stipulated period The authorities were well within their rights to allot the property in dispute to the respondents or their predecessors-m-interest. It has been specifically stated in the written statement on behalf of respondents No. 2 to 9 that the sale in favour of the petitioner being incomplete was not incorporated in the records at all. Further it has also been averred in the written statement that the petitioner did not deposit the price in time and when the lend was purchased by the vendees from the allottees i.e Motu Ram and Naru Ram, the proprietary rights stood conferred on the original allottees who were incorporated in the revenue records as owners. Apart from the above, the Settlement Commissioner in his order has observed that the petitioner had stated before him that full price had not yet been paid by her and conveyance deed had not been issued in her favour. There is no reply by the petitioner to the averments made by the respondents in the written statement.

From the above submissions and the factual aspect of the case, I am of the view that Since the petitioner had not deposited the price within the stipulated period under the Rules alter she purchased the land in dispute in auction on 3.2.1969, she would have no right to the property in dispute as per Rule 90(14) of the Rules quoted above. This view finds support from the judgments cited by the learned counswel for the respondents. Consequently there was nothing wrong when the department allotted tile land in dispute to the respondent allotted the land in dispute to the respondents or their predecessors-in-interest. According to me if the petitioner had no right in the land, she was not even entitled to question the allotment pf the land to Motu Ram and Naru Ram.

As far as the other point that the land in dispute being urban land was not attotable to Motu Ram and Naru Ram as they were only entitled to allotment of rural land, it may be observed that the Financial Commissioner has relied on the report of the Executive Officer, Municipal. Committee, Samana and further, on the factum of transfer of land in Samana to one Karnail Singh in the year 1982 and its allotment Later to one Fauja Singh, in the year 1987 which go to show that the land in question was not treated as urban land The learned Financial Commissioner has also placed reliance on Smt. Mohinder Kaur v. Financial Commissioner (Taxation) Punjab. 1980 PLJ 463. which according to me is not well based as that judgment, does not touch the point in question The contention of the learned counsel for the petitioner that at the time when the land was sold to the petitioner, it was treated as urban land and sold as such, in my view, would not change the nature of the land., This being a pure finding of fact, no interference is called for under Article 226 of the Constitution of India, The Financial Commissioner''s findings on this aspect are well based.

It may be observed here that in the course of his judgment, the learned Financial Commissioner has observed that, he is inclined''to agree with the learned counsel for the petitioner (Darshanjit Kaur) that the land in. question which had been purchased by her from the authorities on 3.2.1969 for Rs, 13,400/-could not have been allotted to Motu Ram and Naru Ram,. This finding, according to me is not well based. As. observed above, the petitioner had not acquired any right in the land and further it has been held by the Financial Commissioner himself that the land in question was not to be treated as urban land That being so, the land was allotable to Motu Ram and Naru Ram.

There is another aspect of the case, which may be noticed here. It has . been noticed by the Financial Commissioner that the petitioner is in unauthorised possession of the land measuring 55 Kanals 19 marlas situated in Samana comprised in Khasra No. 140/10, 11(7-9) (10-o) J41/A5{0-12), 186//l/2(0-10), 1/1(0-l), 80//13 Min (0-8) 24(8-0), 26(1-8) 80//23(3-l5), 1067/12/1(8-0) 108//5/2(3-10), 25(2-14), 137//78( 12-10), learned Financial Commissioner observed as follows :

"The fact that the possession of the land previously purchased by Smt. Darshanjit Kaur and subsequently allotted to Motu Ram etc. has been with the letter for the last more than 10 years and as per averments that they have made lot of improvements in it, it would pot be proper to disturb them. Another factor which tilts in favour of the allottees is that Smt. Darshanjit Kaur could not succeed against them in the civil courts While her suit was dismissed by the Sub-Judge, 1st class on 21,10.1985 bee appeal was dismissed on 2.5.1988. Keeping in view all these factors am of the considered view that 32 Kanals of land purchased by Smt. Darshanjit Kaur may be given to her out of the land in her unauthorised possession. In this manner Bhagwanti, who is bonafide vendee of Sita Bai daughter of Barain Dass, and is even otherwise protected under, Section 41 of the Transfer of Property Act, would also be saved from being uprooted."

Though, I have already held that the allotment in favour of Motu Ram and Naru Ram and their successors-in-interest could not be cancelled, but even if it is held that the same could be cancelled on any, ground I agree with, the reasoning, given by the Financiai Commissioner noticed above. To cancel the allotment now will be wholly unjust, That will uproot the respondents who have been in possession themselves or through their representatives for the last more than 12 years and have made improvement on the land. Being displaced land claimants they have, superior right to claim the land as compared to the petitioner. The petitioner, who has been held to be in unauthorised possession of the land has no equity in her favour. At any rate she, if held to be entitled can easily be given 32 Kanals out of that land. The Financial Commissioner has tried to do substantial justice between the parties and that being so, I do not consider it a fit case to interfere under Article 226 of the Constitution of India.

Learned counsel for the petitioner, however, submitted that petitioner was not in unauthorised possession-of any land infact a part out of the land mentioned above stood allotted to her under Chapter V-A of the Rules (which allotment had became subject-matter of the writ petition the decision on which is reported as 1982 RLR 190. Even if a part of the land out of the unauthorised land in her possession is taken to have been allotted to her, even then she remains in possession of much more than 32 Kanals of land and she can be accommodated there.

The learned counsel for the petitioner disputed the possession of the respondents or their predecessors-in-interest on the land in dispute since 1981. However, few facts in this regard may be noticed here.

Darshanjit Kaur filed a civil suit in the Court of Sub-Judge 1st Class, Patiala against the private respondents for permanent injunction restraining them from interfering in the possession of the plaintiff over the land in dispute. It was averred by the respondents in the suit that after the land was allotted to Motu Ram and Naru Ram the private respondents had purchased the land vide sale deed dated 30.1.1981 and the possession of the suit land was transferred to them to 16.12.1981. The Sub-Judge in Para 7 of the judgment observed as under:-

"7. On these issues, I need not look to the oral evidence of the parties. Ex. Dl is a report to the effect that possession of the suit land has been given to Motu Ram and Naru Ram on 16.12.1981 on the strength of warrant of possession on the basis of allotment. This document has been proved by DW1 Krishan Lal Kanungo from original record and thereafter Ex. D2 is jamabandi 1981-82 where defendants are recorded as owners in possession of the suit land but for 2-3 Khasra numbers. These 2-3 Khasra numbers are not material when their possession is given in Ex. Dl. The Khasra girdawari from Hari 1982 till today is in the name of the defendant.''

Learned Sub-Judge found that defendants were in possession of the land which they had purchased in December, 1981 and therefore, the plaintiff was not found to be in possession, at the time of filing the suit in March, 1982. It may be observed here that the private respondents had mortgaged the land in dispute with Roshan Singh and Beant Singh vide mortgage deed dated 27.5.1986, which land they got redeemed on 12.10.1990. Jarnail Singh and some others filed a suit against the present respondents, they are the original tenants of Motu Ram and Naru Ram and they could not be dispossessed from the land in dispute. It was held that they were not tenants of Motu Ram and Naru Ram and they had no right over the land after the land had been redeemed by the mortgagers. It was observed that infact these persons had been introduced by Roshan Singh and Beant Singh to defy the delivery of possessions to the mortgagers (present respondents). These findings were upheld upto this Court. Even the order of redemption in favour of the present respondents was upheld by this Court in C.R. No. 349 of 1991 decided on 19.12.1992.

From the above, it is evident that atleast from 1981 the respondents themselves or through their mortgagers were in possession of the land and it has been brought on record that after the order of redemption was upheld by this Court, the possession was redelivered to them as per report Roznamcha dated 30.12.1993.

For the forgoing reasons, I find no merit in this petition, which is hereby dismissed, but without any orders as to costs.