Malkiat Singh vs Shri S.R. Bungar

Gokal Chand Mital, J.—The Petitioner is a Harijan and is serving in Army as a soldier. He alleged that he has been in possession of 40 Kanals 3 Marlas of the property in dispute which is now package deal property since 1956-57. In support of his claim of possession, he has brought Annexure P-1, Khasra Girdawri, for the period from 1966-67 to 197.73 as also Jamabandi, Annexure P-2 for the year 1970-71. His case is that, under press note of 1971, annexure P-1, as he is in possession since Rabi, 1971(sic), he is entitled to transfer of all the land in his possession as a landless Harijan Under the Press note he applied for transfer, which application was rejected by order dated 4th of July, 1972, Annexure P-4, on the ground that under he Government Press note, he was not entitled to transfer as he was in Government service. Order, Annexure P-4 was challenged in appeal. While the appeal was pending the property in dispute was put to auction and was purchased by Respondents 4 and 5 on 7th of April, 1973. Against the auction objections were filed on behalf of the Petitioner which were rejected by order Annexure P-5 dated 17th of May, 1974, as it was not found that there was any irregularity in the conduct of the auction A revision was taken before the Deputy Secretary, Rehabilitation, against order Annexure P-5 which was rejected by order, Annexure P-6 dated 13th of February, 1973. The appeal/revision of the Petitioner against order of refusal to transfer was also dismissed by the Deputy Secretary, Rehabilitation by order dated l4th February, 1975. Annexure P-7 on the ground that the Petitioner was a member of the Armed Forces and as such was a Government servant and was not entitled to transfer under the Press note. Thereafter, the Petitioner has come to this Court in writ petition under Article 226 of the Constitution of India, to challenge the aforesaid orders.

The State of Punjab has not filed any written statement, but private Respondents 4 and 5 have filed written statement and have opposed the writ petition

The sole point which arises for consideration in this case is whether a Harijan occupant of package deal property can claim benefit of press note for transfer of the land to him while he is in Government service To defeat the claim of the petitiener, the counsel for the Respondents have invited my attention to press note, Annexure P-3 and particularly to Clause (II) (d) (iv), which is to the following effect,-

No Government servant and his dependents can take part in the auctions, Scheduled Caste M Ps, MLAs and Ex-M.L.Cs. and their dependents will, however, be eligible to participate in the auction.

A reading of the aforesaid provision of the press note thus suggests that a Government servant cannot take part in the auctions to be held except the persons named therein. But a reading of the entire press note would show that it is divided in three categories. The first category is as follows:

(1) The lands occupied by the members of Scheduled Castes and Rai Sikhs from ''Rabi 1970 or earlier shall be transferred to them on prescribed rates, subject to a ceiling of 5 standard acres or 10 ordinary acres each, inclusive of a transferee''s own holding, if any.

The first category is for transfer of land in occupation of members of Scheduled Castes and Rai Sikhs. The second category in which Clause (iv) reproduced above is contained is for the land in possession of unauthorised occupants which is not transferable on the basis of possession and such lands are to be auctioned subject to the conditions laid down under the second item. If still the land is left out after exhausting the methods of first and second category, then under the third category, the package deal property is to be disposed of through open auction, therefore, a reading of the Press note shows that if a case falls under the first category, the person Harijan or Rai Sikh, in possession of the land on the crucial date, would be entitled to transfer on the basis of possession and the land in occupation of unauthorised persons would be put to auction under second category for the satisfaction of the persons mentioned in Clauses (a) to (d), on the terms and conditions contained in Sub-clauses (I) to (x) out of which Clause (iv) has been enumerated above Therefore, Clause (iv) would be applicable only to auction sale when held under the second category, but not for transfer either under the first category or under the third category where no such restriction has made. Accordingly I am of the opinion hat the authorities were in error in depriving the Petitioner of the transfer of the land in his possession as a Harijan occupant as he is clearly shown that he is in possession of the land in dispute since 1966-67 to date including the crucial date ie. Rabi 1970. Accordingly I quash orders Annexures P-4 to P-7 as also the auction dated 17th of April, 1973 in favour of the Respondents 4 and 5 and direct that the property in dispute subject to the permissible limit be transferred to the Petitioner on the basis of his occupation since Rabi 1970 in accordance with the press note Annexure P-3. The writ petition is allowed with costs. (Counsel fee Rs. 200/-). Costs are to be paid by the State alone.