Union of India vs Bhagirath and another

J.M. Tandon, J.

The Tehsildar (Sales) auctioned evacuee agricultural land measuring 30 bighas 15 biswas in village Dhulkot, District Hissar, which was a Package Deal Property, on 15th July, 1989, and the highest bid offered was that of Bhagirath respondent for Rs. 3,600/. The Settlement Commissioner confirmed the highest bid on 13th August, 1969. Khanshi Ram respondent filed appeal against the order of the Settlement Commissioner claiming that he was in actual possession of the land for the last many years and as such was entitled to purchase it at the reserve price and further there was no proper publication of the auction which had also not been held in village Dhulkot. The Chief Settlement Commissioner dismissed the appeal vide order dated 22nd October, 1969 holding that it had not been filed within limitation and further no irregularity had been committed in the publication of the sale. Kanshi Ram assailed the order of the Chief Settlement Commissioner under section 24(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter the Act) which came up before the Commissioner for Revenue and Secretary to Government Haryana, on 4th February, 1971. Kanshi Ram respondent appeared before the Secretary and withdrew his claim for the purchase of the land at the reserve price being and old occupant. He offered to pay Rs. 5,000/ for the land. The Secretary vide order dated 4th February, 1971. passed a conditional order. Kanshi Ram was directed to deposit Rs. 5,000/ within one month. The appeal filed by him was to be treated as dismissed in case he failed to make the deposit. In the event he deposited Rs. 5,000/ the appeal was to be treated as accepted and the land was to be reauctioned with an initial bid of Kanshi Ram for Rs. 5,000/. The Secretary also found that the land had been auctioned in village Siwani at a distance of 5 miles from village Dhulkot where the land is situated and it had resulted in material irregularity. Bhagirath respondent assailed the order of the Secretary dated 4th February, 1971 in Civil Writ Petition No. 2059 of 1971 which was accepted on 9th May, 1980 on the ground that the Secretary exercising the powers under section 33 of the Act had no jurisdiction to decide cases relating to Package Deal Property which had vested in the State Government. The learned Judge made the following relevant observations :

"Shri C.L. Ghai, Advocate, appearing on behalf of Respondent No. 5, raised objection that the Chief Settlement Commissioner had no power under the Package Deal Property Rules to hear the appeal of the petitioner against the confirmation of the sale. He raised a similar objection about the Secretary to Government for hearing his revision under section 33 of the Act. To support his argument he has cited Bishan Singh and others v. Chief Settlement Commissioner and others, 1973 PLJ 183. It was respondent No. 5, who after the expiry of the period of limitation in contesting the question of sale had approached the Chief Settlement Commissioner and on his failure before him he took the matter to the Central Government, where the matter was decided in his favour. Respondent No. 5 now himself states that he took the case to a wrong forum and questioned the jurisdiction of that very Tribunal, which decided the case in his favour and does not support the order in his favour. The result of this is that the petition has to be accepted. Accepting the position of Respondent No. 5 without going into the merits of the case, which are not necessary in view of the stand taken by Respondent No. 5 the petition is accepted and the orders of the Central Government Annexure ''B'' are set aside. No order as to costs."

The Union of India and others assailed the order of the learned Single Judge in L.P.A. No. 713 of 1980 which was dismissed in limine on 7th October, 1980. The Union of India and others filed Civil Appeal No. 737 of 1984 in the Supreme Court which was disposed of by their Lordships vide order dated 20th January, 1984. This order reads :

"After hearing counsel for the parties we set aside the order of the High Court because the order impugned was passed by the Secretary, who according to Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act was competent to pass such order and the High Court erred in law in holding that the Secretary was not competent to pass the order. The appeal is allowed and the case is remanded to the High Court to decide the case on merits."

L.P.A. No. 713 of 1980 has again come up before us for decision on merits.

The learned counsel for the appellant has argued that the Commissioner for Revenue and Secretary to Government Haryana, who passed the order dated 4th February, 1971, exercised the powers of the Central Government under section 33 of the Act and thus could validly set aside the auction already made in favour of Bhagirath on 15th July, 1969 and confirmed on 13th August, 1969. The argument proceeds that the Central Government is competent to set aside sale by auction already made even if no material irregularity or fraud which has resulted in substantial injury to any person has been committed in the conduct of the sale.

Section 33 of the Act reads : "The Central Government may at any time call for the record of any proceeding under this Act and may pass such order in relation thereto as in its opinion the circumstances of the case require and as is not inconsistent with any of the provisions contained in this Act or the rules made thereunder."

Rule 92 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 prescribes procedure for setting aside the sale. Rule 92 (4) reads : "Notwithstanding anything contained in this rule, the Settlement Commissioner may, of his own motion, set aside any sale under this Chapter if he is satisfied that any material irregularity or fraud which has resulted in a substantial injury to any person has been committed in the conduct of the sale."

Keeping in view the text and tenor of section 33 of the Act the power exercisable by Settlement Commissioner under Rule 92(4) of the Rules can be exercised by the Central Government as well. It is, however, difficult to hold that the Central Government is competent to set aside the sale by auction already made under section 33 of the Act irrespective that no material irregularity or fraud which has resulted in substantial injury to any person has been committed in the conduct of the sale. The order setting aside the sale in a case where material irregularity or fraud resulting in substantial injury to any person has not been committed in the conduct thereof, would be violative of Rule 92(4) and thus beyond the jurisdiction of Central Government in exercise of power under section 33 of the Act.

In the instant case, the Secretary to Government passed the conditional order on 4th February, 1971. The sale by auction already made in favour of Bhagirath was to be treated as set aside if Kanshi Ram respondent deposited Rs. 5,000/ within a month and in case it was not done the auction already made in favour of Bhagirath was to stand. The Secretary to Government was impressed by the offer of Rs. 5,000/ made by Kanshi Ram. No averment has been made by the appellants that Kanshi Ram deposited Rs. 5,000/ within one month of 4th February, 1971. It is evident from the stand of Kanshi Ram before the learned Single Judge that he backed out from his offer. The effect of the omission on the part of Kanshi Ram to deposit Rs. 5,000/ within the stipulated period is that the auction of the land in favour of Bhagirath stood. The impugned order of the Secretary to Government passed in exercising of power under section 33 of the Act thus operated in favour of Bhagirath. The Civil Writ No. 2059 of 1971 filed by him assailing the order of Secretary to Government dated 4th February, 1971 stands rendered infructuous.

In the result, the impugned order of Secretary to Government dated 4th February, 1971 having operated in favour of Bhagirath respondent, Civil Writ Petition No. 2059 of 1971 filed by him shall be treated to have been dismissed as infructuous. The Letters Patent Appeal is disposed of accordingly.