Uttam Singh vs State of Punjab

Jawahar Lal Gupta, J.—This order will dispose of Civil Writ Petition Nos. 1354, 1407 and 1408 of 1987. The facts as stated in CWP No. 1354 of 1987 may be noticed.

An area measuring 10 standard acres (79.19 Kanals) of evacuee Banjar land was leased out to the petitioner from Kharif 1961 till Rabi 1971 at an annual rent of Rs. 2.50 per acre. In 1965, the Tehsildar (Sales), respondent No. 3, auctioned this land and it was purchased by respondent Nos. 4 and 5. It is averred that the auction purchasers did not deposit any amount towards the sale price of the land in dispute. When the Tehsildar called upon the petitioner to vacate the land he filed C.W.P. No. 1243 of 1965. This writ petition was heard and accepted by B.R. Tuli, J., vide judgment which has been placed on record as Annexure P.l. It is averred that thereafter no steps were taken by the Government to dispossess the petitioner from the land in dispute. The Punjab Government issued a pressnote calling upon members of the backward classes to purchase the evacuee lands in their possession. The petitioner avers that he moved applications for the purchase of the land in his possession in the years 1976 and 1978. An application is also stated to have been submitted in the year 1980. This application is stated to have been entered in the office record of respondent No. 3 at Sr. No. 225 on August 14, 1980. It is averred that this application has not been decided by the Tehsildar (Sales) on the ground that the land has already been soldby auction in 1965 to respondent Nos. 4 and 5. Averring that on March 6, 1987, the petitioner was called upon by respondent No.3 to his office and directed to vacate the land in dispute by March 17, 1987, the present petition has been filed. It has been prayed that a writ of mandamus be issued quashing the sale by auction held in 1965 and directing respondent Nos. I to 3 to decide the application of the petitioner for the purchase of the land. A copy of the judgment in CWP No. 1243 of 1965, which was decided on July 23, 1974 has been appended as Annexure PA with the writ petition. Another copy of the judgment in CWP No. 1409 of 1965 (Thakur Singh v. The State of Punjab etc.) decided by Shamsher Bahadur, J. on December 18, 1967 has been appended as Annexure P.2 with the writ petition.

Two separate written statements have been filed. One written statement has been filed on behalf of respondent Nos. I to 3 while another has been filed on behalf of respondent Nos. 4 and 5. In the written statement filed on behalf of respondent Nos. I to 3, it has been inter alia averred that the land in, dispute was leased out to the petitioner for a period of 10 years from Kharif 1961. This lease, it is averred, expired in Rabi 1971. During the currency of the lease, the land was soldin a restricted auction confined to the landless members of the scheduled castes on January 8, 1965. It has been averred that respondent Nos. 4 and 5 were the highest bidders and their bids having been accepted, the petitioner has no right to continue in possession of the land. It has been further averred that the petitioner had made an application dated April 14, 1980 for the transfer of the disputed land on the basis of his possession under the pressnote dated February 26, 1980. This application is stated to have been rejected "in his presence by the Tehsildar (Mahal)cumSales Jagraon, vide his order dated August 6, 1980." It has been pointed out that the orders of rejection of the application having been passed in the presence of the petitioner couldhave been challenged by way of an appeal and revision under Sections 8 and 10 of the Punjab Package Deal Properties (Disposal Act, 1976. It has been further averred that the land having been soldin an auction to respondent Nos. 4 and 5, the petitioner is estopped from challenging it. It has been further averred that "the petitioner has no legal right to retain possession of disputed land for an indefinite period. He will be dispossessed therefrom under due process of law, after observing the formalities prescribed under Section 7 (2&3) of Punjab Package Deal Properties (Disposal) Act, 1976. A replication has been filed. A copy of the order dated August 6, 1980 by which the petitioner''s claim for purchase of the land was rejected, has been produced as Annexure P.3. On behalf of the respondents, rejoinder to the application has also been filed.

I have heard Ms. S.K. Taunque, learned counsel for the petitioner and Mr. Tejinder Singh Dhindsa on behalf of the respondents. Relying on the judgment of Shamsher Bahadur, J. in CWP No. 1408 of 1965, it has been contended that the auction conducted by the respondents in the year 1965 was wholly void. The auction being void, the petitioner''s claim for allotment was wrongly rejected. Furthermore, it has also been contended that in accordance with the pressnote, the petitioner was entitled to the allotment of the land. Mr. Dhindsa, on the other hand, has contended that the lease in favour of the petitioner having expired in Rabi 1971, he is a rank trespasser and has no right to continue in possession of the land. He has further contended that in writ petition, the petitioner has not even disclosed full facts and has intentionally kept back the order rejecting the prayer for allotment of the land. A copy of the Order has been produced by the petitioner along with the replication as Annexure P. Even at this stage the writ petition has not been amended to challenge the order. In this situation, the learned counsel has contended that the petitioner cannot be permitted to challenge the order at such a belated stage.

Having heard learned counsel for the parties and on a perusal of record, I find that the petitioner was granted a lease of the land at nominal amount of Rs. 2.50 per acre. This lease was for a period of ten years. It expired in Rabi 1971. The petitioner has continued in possession of the land for 20 years thereafter without any authority of law. The respondents cannot be complimented for their inaction in not proceeding to dispossess the petitioner for a long time. Be that as it may, the fact remains that the petitioner has no title to the land either in law or in equity. In the circumstances of the case, I am not inclined to exercise my discretionary jurisdiction in favour of a ranktrespasser, like the petitioner. I am clearly of the view that it wouldbe an abuse of the process of law, if the equitable jurisdiction under Article 226 of the Constitution was used to help a person to stay in possession of the land inspite of the fact that he has noright or title thereto. This is all the more so in view of the statement made in the written statement that the petitioner shall be dispossessed in accordance with law.

Further a perusal of the judgment in CWP No. 1235 of 1965 shows that the petitioner couldnot be dispossessed from the land till the expiry of the lease. Even in accordance with this judgment the petitioner has no right to continue in possession of the land after Rabi 1971.

Ms. Tanuque submits that the petitioner''s application for purchase of land has been illegally rejected. I am unable to accept this contention. Firstly there is no challenge to this order in the petition. In fact, the petitioner has intentionally with held the relevant information from the Court. It has been wrongly averred that the application for purchase of land was still pending. Even a prayer for a writ of mandamus directing the respondents to decide the application has been made. It is thus apparent that the petitioner has not come to the Court with clean hands. Furthermore, the application had been rejected vide orders dated August 6, 1980. The petitioner has produced the copy of the order dated August 6, 1980 with the replication as Annexure P.3 in the year 1987. Even at this stage the petition was not amended to impugn this order. It is well settled that it is the case pleaded that has to be found. In the petition there is no challenge to this order. It is no doubt correct that in the replication it has been stated that the order is illegal and deserves to be set aside. Even then I am not inclined to go into the validity of this order as the challenge is highly belated. I am not prepared to entertain a challenge to the order passed on August 6, 1980, after the lapse of so many years. Consequently, I reject the contention raised on behalf of the petitioner against this order.

It has also been contended on behalf of the petitioner that the auction was in violation of the pressnote and that the auction purchasers had not deposited the requisite amount of money, as a result of which they had no right in the land. In the written statement filed on behalf of respondent Nos. 4 and 5 it has been averred that they were wanting to deposit the money, but it was not accepted by the authorities "as the land was under lease and possession thereof couldnot be delivered to them under the sale certificate issued to them. The sale was duly made and also confirmed by competent authority. "It has been further pointed out that the sale was in strictconformity with the auction notice wherein it was inter alia observed that the "purchaser will be issued a sale certificate on the basis of which he wouldbe entitled to take possession. If the property is already on the lease then the actual possession will be given on the expiry of the period of the lease." In the written statement filed on behalf of the official respondents it has been inter alia stated that "according to the information received from the Tehsildar, Jagraon, the auction purchasers were advanced loan to enable them to pay the auction money. The amount of auction money was paid to the Rehabilitation Department by, Book Transfer. The lands purchased by both the auction purchasers stood mortgaged with the State of Punjab against the loan advanced to each one of them. The amount of loan was to be recovered by the Revenue Department from them in 20 halfyearly instalments. It is, therefore, incorrect to say that the auction purchasers did not deposit or pay the auction money."

Whatever be the factual position, the State appears to have treated the amount of money as a loan to the auction purchasers. In any case, I find that the petitioners can have no grouse in this behalf. It is a matter strictly between the State and the aution purchasers.

In C.W.P. No. 1408 of 1987, which is one of the petitions being disposed of by this order, it has been suggested that the auction made in the year 1965 had been specifically set aside. Reliance for this claim has been placed on the order in CWP No. 1408 of 1965 (Thakur Singh v. State) which was decided on December 18, 1967. A copy of this judgment is at Annexure P.2 in CWP No. 1408 of 1987. The learned Judge had observed as under:

"The period of lease was ten years and the petitioner was entitled to cultivate the land in his occupation till Rabi 1971. In this situation, I feel bound to say that the sale is without authority and has to be set aside. The writ petition will be allowed but as there is no opposition either by the State or respondents 5 and 6, 1 wouldmake no order as to costs."

Relying on the above observations, Ms. Taunque contends that the sale having been set aside and the decision having become final, the State Government was bound by it. This contention is wholly misconceived. Firstly, the above observations only mean that the lease having been granted till Rabi 1971, the lessee (Thakur Singh, who was a petitioner in that case) was entitled to cultivate the land and till that date the sale couldnot be made effective. In any case, the judgment can be binding between the parties in that case. The present petitioner, viz. Kehar Singh, was not a party in that case. None of the persons, who have filed these three petitions were in any way concerned with that case. In this situation, the petitioner is not entitled to take any advantage of a decision in Thakur Singh''s rase.

Accordingly, I find no merit in these three petitions, which are hereby dismissed. However, in the circumstances of the case, the parties are left to bear their own costs.