Saudagar Ram vs The Chief Sales Commissioner, Punjab, Jullundur and others

D.S. Tewatia, J.—The Petitioner who purchased the package deal property in question in a restricted auction sale on 15.7.1975 for a sum of Rs. 30,200/- has impugned the order of the Chief Sales Commissioner dated 5.12.1978 whereby he accepted the second appeal of Respondent No. 2, and set aside the order dated 17.5.1976. Annexure P. 3 of Settlement Commissioner who had dismissed the first appeal of Respondent No 2 against the order dated 16.7.1973 of the Tehsildar (Sales) who cancelled transfer of the package deal property in question sold to him in a restricted sale thereof on 21.1.1967 for a sum of Rs. 10,300/- on the ground that Respondent No. 2 had failed to comply with the terms of payment of the sale amount and became defaulter.

The Petitioner has impugned the order of the Chief Sales Commissioner inter alia on the grounds: -

(i) that no second appeal was competent against the order of Settlement Commissioner dated 17-5-1976;

(ii) that he had not been designated Chief Sales Commissioner in terms of Section 3 of the Punjab Package Deal Properties (Disposal) Act, 1976 (hereinafter referred to as the Act) and therefore, he had no jurisdiction even to entertain the appeal, and

(iii) that the reason given by him for allowing the appeal and setting aside the order of the Settlement Commissioner and that of the Tehsildar (Sales) dated 16.7.1973, was perverse.

While dismissing the first appeal of Respondent No. 2, the Settlement Commissioner held that Respondent No. 2, herein had deliberately delayed in filing the appeal on August 7, 1975 against the order of the Tehsildar (Sales) Dated 16.7.1973. The appeal was, therefore,-

(i) highly belated;

(ii) that Respondent No. 2 was habitual defaulter; and (iii) that he was not residing in the village and was getting the land cultivated through some other person.

The Chief Sales Commissioner without disturbing any of the finding above said latched himself only to the factum of the provisional deposit by Respondent No. 2 of the balance amount with interest as ordered by the Settlement Commissioner while entertaining the appeal, and held that in view of Respondent No 2 having deposited the balance amount he was entitled to the transfer of the package deal property in question.

This reason is utterly flimsy for allowing the appeal. The Settlement Commissioner in asking Respondent No. 2 to deposit the balance amount with interest acted to ensure that in the event of allowing of the appeal, the Respondent No. 2 does not incur a further default and thus he tried to ensure to the department the entire auction amount. By that fact he did not disentitle himself to decide that appeal on merits one way or the other. One of the condititions of the restricted auction sale of the package deal property inter alia is that the bidder must be residing in the village where the propety is located as envisaged in Rule 6 of the Punjab Package Deal Properties (Disposal) Rules, 1976 which is in the following terms:-

6 (1) xx xx

(2) xx xx

(3) xx xx

(4) Persons who can participate in restricted auction-Where any land is to be sold by restricted auction, only a land less Agriculturalist who is a member of the Scheduled Castes and resides in the village in which the land offered for sale is situate shall be permitted to participate in the auction; provided that if after the proceedings of the restricted sale as above, more land and is available for sale in the village, a landless agriculturist who is member of the Scheduled Caste, and resides in other villages of the same Patwar Circle shall be permitted to participate in the auction; provided further that if after the auction of the land, as hereinbefore laid down, still more land is available for sale a landless agriculturist trust who is a member of the scheduled caste and resides in other villages of the same Kanungo Circle shall be per-mitted to participate in the auction.

(5) xx xx

(6) xx xx

(7) xx xx

(8) xx xx.

In view of the clear findings of the Settlement Commissioner that he resided in village Ratipur and not in village Sukhewal where the property is located Respondent No. 2 was not competent even to participate in the auction and was not entitled to the transfer of the package deal property in question in the said restricted sale and yet without setting aside that finding the Chief Sales Commissioner sought to allow the second appeal of Respondent No. 2 and set aside the order of the Settlement Commissioner as also that of the Tehsildar (Sales). Not only this be also did not reverse the other findings of the Settlement Commissioner regarding the delay in filing the appeal and the fact that he was a habitual defaulter.

As to his competency to entertain and decide the appeal it may be observed that the notification u/s 3 of the Act designating him as Chief Sales Commissioner was issued in Gazzette dated 11.5.1979.

It means the he came to be so designated with effect from 11.5.1979 whereas he had heard and decided the appeal in question on 5.12.1978 the date on which he had no jurisdiction. An identical point of jurisdiction of Chief Sales Commissioner came up for consideration before the learned Single Judge of this Court in Daljit Singh etc. v. Chief Sales Commissioner Punjab (1980) 82 P. L. R. 256, wherein it was held that it is the date of publication of the notification u/s 3 of the Act that the officer concerned shall be considered to be duly appointed as Chief Sales Commissioner. In this regard following observation of G. C. Mital, with which with respect I entirely concur, can be noticed with advantage:-

After hearing the counsel for the parties, I am of the view that the appointment u/s 3 of the Act will take effect from the date of publication of the notification and not when the notification is prepared in the office of the Rehabilitation Department. Admittedly, the Publication was made on 11th of May, 1979, in the Official Gazzette whereas the impugned orders were passed in 1977, long before the publication of the notification and as such, the impugned orders are without jurisdiction. Consequently, I quash the orders setting aside the auction sales and direct that the Deputy Secretary, Rehabilitation-Punjab, Jullundur, to whom the powers of the Chief Sales Commission or have been conferred, shall redecide the matter in accordance with law. The parties, through their counsel, have been directed to appear before him on 27th December, 1979.

In view of the above, the Chief Sales Commissioner had no jurisdiction to entertain and deal with the appeal and the order passed by him is a total nullity. Even on merits, as already observed, the order in question is utterly illegal and erroneous.

In view of the above, it is unnecessary to consider the other contentions raised in the petition. The result is that the petition is allowed and the impugned order Annexure P-4 dated 5.12.1978 is set aside. No order as to costs.