Sarup Singh vs State of Haryana .

H.S. Brar, J.—Brief facts, stated in the petition, are that the Tehsildar (Sales), Gurgaon, respondent No. 3, advertised the auction of land measuring 8 kanals 11 marlas being half share of the land measuring 17 kanals 2 marlas comprised in Khasra No. 71/10(80), 11/1(79), 12/1(113), situated in village Dudoli, Distt. Gurgaon, amongst harijans, members of scheduled castes community as a restricted auction. Auction was scheduled to be held on 26.8.93. Public notice i.e. ishtihar nilaam as well as other requirement of rule 5 of the Package Deal Properties Rules (hereinafter referred to as the ''State Rules'') were duly complied with. The auction was held on the scheduled date in which the petitioner emerged as the highest bidder for a sum of Rs. 25,000/. A sum of Rs. 3,125/ being 1/8th as earnest money was deposited by the petitioner at the fall of hammer. The reserve price fixed by the Government for the auction of the land was Rs. 11,875/.

Some objections were filed but the same were dismissed by the Additional Settlement Officer (Sales), respondent No. 2, vide his order dated 24.1.1994. Thereafter, respondent No. 2, who is the competent authority to grant or not to grant the approval under the State Rules approved the auction after satisfying himself about the auction. Confirmation is reflected in the proforma annexed as Annexure P1 with the petition.

Respondent No. 1 agreed with the confirmation order passed by respondent No. 2 and then he sent the file to the Financial Commissioner, who also agreed with the confirmation order. Though there is no requirement under the State Rules to send the file to the Revenue Minister as under the Rules, respondent No. 2 is the only competent authority to confirm or not to confirm the auction sale under the provisions of the State Rules but still, for the reasons best known to the authorities, the papers were sent to the Revenue Minister.

The petitioner did not receive any communication from the respondents and he kept on visiting the office time and again but was told that the file had been sent to the Head office for onward transmission to the Government through the Financial Commissioner, Revenue and when the same was received in the office of respondent No. 3, a communication would be sent to the petitioner intimating him to deposit the balance amount but till the end of October, 1996, the petitioner did not receive any communication. In the first week of November, 1996 he came to know from the office of respondent No. 3 that respondent No. 1 had passed an order whereby the auction in his favour had been set aside. Thereafter, the petitioner filed an application for getting certified copies of the bid sheet, confirmation proforma and copy of the receipt depositing the earnest money a well as the copy of the order issued on 20.4.95. A copy of the order contained in letter dated 20.4.95 is annexed as AnnexureP2 with the petition.

Action of respondent No. 3 has been challenged in this petition as wholly illegal, erroneous, arbitrary, nonspeaking, without jurisdiction and against the provisions of the State Rules and also ex parte without sending any notice to the petitioner.

Written statement has been filed by Shri Samir Mathur, IAS, Joint Secretary to Government Haryana, on his behalf as well as on behalf of the other respondents.

Auction of the land in question had taken place on 26.8.93 and the other factual position stated by the petitioner in his petition that he was the highest bidder and auction was confirmed in his name has been admitted by the respondents. It has been so stated in para No. 4 of the written statement which reads as under :

"4. That the contents of para 4 of the petition is admitted being a matter of record. The objection against the auction was raised by one Shri Nahar Singh s/o Shri Harpal r/o Village Heengenpur, Tehsil Punhana, Distt. Gurgaon offering Rs. 30,000/ against the highest bid of Rs. 25,000/ being that of the petitioner offered in the auction dated 26.8.93. The objection petition aforesaid was rejected vide order dated 24.1.94 of Additional Settlement Officer (Sales) Karnal and the auction was ordered to be confirmed in favour of the petitioner vide order dated 30.5.94."

It has not been denied in the written statement that there is no rule for sending the confirmation file to the Revenue Minister after the sale is confirmed in favour of the highest bidder in the auction. However, it has been stated in the reply that the matter was reviewed by the Settlement Commissioner in exercise of his powers conferred under rule 11 of the State Rules, after hearing the petitioner, vide his order dated 13.4.95, which is annexed as AnnexureP2 with the petition.

It has also been stated in the reply that the auction is legal, valid, within jurisdiction and in accordance with the provisions of the State Rules.

After hearing the learned counsel for the parties, we are of the view that the impugned order dated 20.4.1995 is illegal, arbitrary and against the provisions of law.

It would be necessary to reproduce the order dated 20.4.95 in order to appreciate as to how it is illegal, erroneous, arbitrary and against the provisions of the State Rules :

"From

The Joint Secretary (Reh)cumSettlemenmt Commissioner,

Haryana, Chandigarh.

To

The Tehsildar (Sales),

Gurgaon.

No. 5540/TSG, dated 20.4.95.

Sub : Confirmation of sale files case No. 9/Conf/JSR/SC/95 to 13/Conf/JSR/SC/95.

Please refer to the subject cited above.

The following files/cases were fixed before Ld. JSR/SC/ for hearing on 13.4.95 :

Sr. No.

Sale file No.

R.P.

H.N.

Highest bidder.

1.

4774/V

16563/

30,000/

Sh. Dauji s/o Hardyal

2.

3568/V

18125

52,000/

Chander Bhan s/o Ram Sarup.

3.

3558/V

14375/

32,000/

Dalip Kumar s/o Sohan Lal.

4.

951/V

18125/

3,00,000/

Gopal Singh s/o Kehar Singh.

5.

4782/V

11875/

25,000/

Sarup Singh s/o Kallu Ram.

The following orders have been passed by ld. JSR/SC in abovecited files/cases on that date :

"Case came up today for hearing. The respondent was present on the last date of hearing. A.D.A. and Tehsildar (Sales) Faridabad are present today. Heard. In view of the observations of Hon''ble Chief Minister, Haryana, it is ordered that reauction be done in this case after getting the price reassessed. Notice be given to the auctionpurchaser before reauction. All formalities be done and auction be done within three months by all means."

The compliance of the above orders be made. Five files are returned.

Encl. : five files. Sd/ For Joint Secretary (Reh)cum

Settlement Commissioner,

Haryana, Chandigarh."

Admittedly, the auction of the land in question took place on 26.8.93 and the petitioner was the highest bidder. He had deposited the required sum of Rs. 3,125/ being 1/8th as earnest money at the fall of hammer. The petitioner being the highest bidder, the auction was approved in his name by respondent No. 2, Additional Settlement Officer (Sales), vide his order dated 24.1.94, who is the competent authority to grant the approval of the auction under the State Rules. So much so that some objections were also filed against the auction but after hearing the objections, the competent authority i.e. respondent No. 2 had dismissed the objections and after satisfying himself approved the auction in the name of the petitioner. It is again an admitted fact that respondent No. 1 also agreed with the confirmation order passed by respondent No. 2 and Financial Commissioner also agreed with the confirmation order. As has already been stated, this factual position has been admitted in the written statement also.

Strangely enough, after a long period of three years i.e. in April, 1995 the auction in favour of the petitioner was set aside without any cogent reasons; and the petitioner received a communication only in the first week of November, 1995 that the land will be reauctioned. All that has been ordered by respondent No. 1 reads as under :

"In view of the observations of Hon''ble Chief Minister, Haryana, it is ordered that reauction be done in this case after getting the price re assessed."

We feel that respondent No. 3, Joint Secretary Rehabilitationcum Settlement Officer, Haryana, Chandigarh has abdicated his duty responsibility in not observing the relevant law/rules before passing the quasijudicial order in accordance with law and State Rules. Auction confirmed in favour of the petitioner under the State Rules, cannot be set aside by the Financial Commissioner under Section 11 of the State Rules merely on the whims of a Chief Minister. Respondent No. 1 was required to form his own independent opinion before reauctioning the land in question. He was not required under any law to be influenced while passing a quasijudicial order by the observations of the Chief Minister. It has not even been stated in order dated 20.4.95 as to what were the observations of the Chief Minister which influenced him to reauction the land in question. He did not even set aside the order dated 20.4.95. He simply stated in the order that in view of the observations of Hon''ble Chief Minister, Haryana, it is ordered that reauction be done in this case after getting the price reassessed. Respondent No. 1 while ordering the reauction of the land in dispute, has not pointed out any material irregularity or fraud in the conduct of the auction. It has not even been indicated in his order that the auction was not conducted in accordance with the rules or any specific injury has been caused to the State or to any one else. Respondent No. 1 has even failed to mention that the auction in favour of the petitioner was confirmed by the competent authority which was approved upto the Financial Commissioner and later on it was sent to the Revenue Minister though there was no requirement under the rules to transmit the sale file to the Revenue Minister. Though, lately it has been mentioned in the written statement that the bid fetched in the auction was not found genuine and was far below the prevalent market price and the same was not found reasonable; but unfortunately, it has not been stated as to how the auction price was not reasonable. No figures have at all been supplied to show that the auction was on the lower side though admittedly the reserve price for the auction was fixed at Rs. 11,875/ by the Government itself, at the time of auction.

We find reasonable force in the argument of the learned counsel for the petitioner when he contends that the impugned order dated 20.4.95, passed by respondent No. 1, has been passed in the absence of the petitioner and without giving him an opportunity of hearing. The petitioner has filed an affidavit mentioning therein that he had received a notice directing him to appear before the Joint Secretary (Reh.)cumSettlement Commissioner on 16.3.1995 at Faridabad. However, with the notice there was no other document, intimating in what connection the notice was issued. Even then the petitioner in pursuance of the notice went to Faridabad but he was told that the Joint Secretary (Reh.)cumSettment Commissioner had not come on that day and the case was adjourned to 12.4.95. He has further averred in his affidavit that on 12.4.95, he again went to the office but he was informed that the Joint Secretary (Reh) cumSettlement Commissioner had not come on that day. However, no further date was given to the petitioner. He has further affirmed in his affidavit that the Joint Secretary (Reh)cumSettlement Commissioner had passed the impugned order in his absence and without giving him an opportunity of being heard. It is revealed from the impugned order, AnnexureP2, dated 20.4.95 that no proper opportunity of being heard was given to the petitioner. It has simply been stated in the order which reads as under :

"Case came up today for hearing. The respondent was present on the last date of hearing."

The order does not reveal that the petitioner was given any further date for hearing or he was either served or informed of the date when the case is alleged to have been finally heard and the order passed finally on 20.4.1995.

Thus, we are of the opinion that the impugned order dated 20.4.95, was passed by respondent No. 1 behind the back of the petitioner and without affording him any opportunity of being heard. In any case, as has been discussed above, we are of the view that order of the Joint Secretary (Reh) cumSettlement Commissioner, Haryana dated 20.4.95, is illegal, erroneous, arbitrary, nonspeaking and against the provisions of law. He has even abdicated his duty enjoined upon him by law and the State Rules to decide the case without any external approach or influence; but he has not even set aside the auction confirmed in favour of the petitioner and straightaway ordered reauction on the basis of some observations of the Chief Minister which have not been produced in the order at all. The order has, thus, been passed on extraneous considerations.

We, thus, set aside the order dated 20.4.95, AnexureP2, and restore the order passed by the Additional Settlement Officer, (Sales), respondent No. 2.

We are sorry to note that a poor harijan, who was the highest bidder and in whose name the sale was confirmed in the year 1993, was only told in the year 1996 that reauction will take place of the land in dispute and that also without any valid reasons.

Resultantly, this writ petition is allowed with costs which are quantified as Rs. 5,000/. The State Government is, however, at liberty to recover the costs from the erring officer, if so advised.

We are constrained to note down that the conduct of the officer who passed the impugned order is not appreciable. He was expected to do his duty in accordance with the rules and the law. He was not required to pass a quasi judicial order only on the whims and caprice of a chief Minister who was not any authority under the rules or under any other law to influence his order.

A copy of this order be sent to the Chief Secretary to Government of Haryana for circulation amongst the concerned officers that while deciding cases as quasijudicial authorities under the Act or the rules they should not exhibit such a naked influence of an outside authority.