Karam Chand and Others vs The State of Punjab and Others

K. Kannan, J.—The writ petition was taken up along with C.W.P. No. 7708 of 1989. The case was decided by this Court on 03.07.2013 upholding the order passed already and dismissing the writ petition. Learned counsel Mr. C.B. Goel sought for permission of the Court to detach the case from the above case on a consideration that there are other documents which are available to prove the bona fides of the purchase and the case must obtain a different consideration. He also sought time to produce appropriate documents to show that as purchasers, their possession had been entered in the records even in the year 1967 and the cancellation of allotment made more than 16 years after the purchase was grossly inequitable. The petitioners'' claim that they were bona fide purchasers for value without notice of any defect and the cancellation of sales made by the authorities under the Act namely The Displaced Persons (Compensation and Rehabilitation) Act, 1954 was not justified at all.

It must be noticed that the above Act of 1954 specifies distinct categories of persons, who are entitled to allotment. The allotment obtains only to persons, who had been evacuees and who had lost their properties in Pakistan and who were required to be rehabilitated. The Act served a large social purpose to accommodate persons, who had lost everything in the partition and who were required to be appropriately compensated for value of the property in some measure to the extent of value which is lost in the place now in Pakistan. The plaintiffs'' claimed that they are purchasers from Arur Singh and Bhan Singh. The cancellation was made by the State on a finding that the petitioners had obtained a mutation in the year 1977 on the basis of their alleged purchase and only at the time of verification of the records, it seemed that the property belonging to the Government had been wrongly mutated in favour of the petitioners by taking an advantage of revenue entries in jamabandi for the year 1966-67. The Government claimed that there had been no allotment of property at any point of time to Arur Singh and Bhan Singh and they were also not persons, who were entitled to such allotments under the Act.

Learned counsel appearing on behalf of the petitioners would contend that they were all bona fide purchasers and the Government could not have acted to cancel the sale after more than a decade. The cause of action, it must be remembered for a State to act could not have been the date of alleged purchase by the petitioners for they were not themselves parties to the transaction. The Government could have taken notice only when their official records got to be mutated in favour of the petitioners as owners of the property. This ownership could have been entered in the name of the petitioners if only the Government had at some point of time transferred the properties by an allotment and conferred such ownership on the persons who were entitled under the 1954 Act. If the basic link to an allotment is cut off, the whole edifice of the petitioners'' case would crumble, as in this case, the petitioners have no more case than to plead that their names were entered as cultivators in the year 1967 onwards. Learned counsel gives to me the jamabandi for the year 1966-67 where the petitioners'' predecessor''s name finds place as a cultivator. I have seen the nature and area of the land which is said to have been brought under cultivation and it does not show the property was actually brought under tillage but the character of property had still shown as salab and for subsequent years it has been shown as gair mumkin. If the property has not actually been shown to be cultivated and if they were merely making reliance on jamabandi entries, the petitioners cannot advance the case any better.

A protection to bona fide purchaser for value will have to be come within the four corners of Section 41 of the Transfer of property Act, where the purchaser from an ostensible owner can claim to obtain some equities if the real owner had acquiesced in the transaction or had actively allowed for the transaction to take place without any objection. In this case, the Central Government was the real owner and if there had been no participation in the sale by the State by allowing any right to the vendors then the question of application of Section 41 does not arise at all. The issue of whether the bona fides of purchase could be applied to transaction of sale of properties covered under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 came for consideration before a Full Bench of this Court in Niranjan Kaur and Others Vs. The Financial Commissioner, Revenue and Secretary to Government and Others, dated 16.07.2010 where the Court has held that Section 41 of the Transfer of Property Act cannot be invoked for a transaction that involved interest in property under the 1954 Act. The same principle has to be applied and the petitioners cannot obtain any favourable consideration for rejection of the sales.

Learned counsel argues that the petitioners have parted with a consideration of more than Rs. 1 lac in the year 1967 and large number of persons are actually cultivating the properties all these years and their claims must be considered at least for their retention of payment on appropriate market value. I am afraid I cannot accede to this request as well, for the question of consideration for regularizing their possession and approving sale would arise only if there was any semblance of bona fides. If benefit of Section 41 of the Transfer of Property Act cannot be applied then it is not possible to secure to them the right to retain possession of property for any value.

Without a proof of any form of allotment in favour of the vendors from the State, the question of bona fide or sympathetic consideration does not arise. I should hold that petitioners and their predecessors were themselves privies to the fraud which was committed by their vendors and that would totally explain also the reason why immediately after the sale they had not even obtained a mutation of the alleged ownership in the year 1967. They had some to hide and therefore, they took nearly 10 years before they took action for obtaining mutation. The State had acted within a reasonable time after such a false mutation had been brought about in the name of the petitioners. The petitioners'' consideration of allotment or consideration for assignment by the State in respect of any other property if the law allows for such consideration could be obtained independently but in this writ petition, they could have no relief. 9. The writ petition is dismissed.