Jagdish Mittar Taneja vs Kaushalya Chawla

C.D. Cheema, F.C.

The present petition under Section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, is directed against the order dated 17.7.1985 of the Chief Settlement Commissioner, whereby he set aside the sale certificate issued in favour of the petitioner on 21.12.1972 in respect of property No. 51/2/13, Court Road, Amritsar.

Brief facts of this case are that property No. 51/2/13 Court Road, Amritsar, was purchased by Jagdish Mitter Taneja for a sum of Rs. 37,100/ in auction on 20th November, 1958. The entire price of the auction money was paid through claims relating to the petitioner and the claim of Sahib Singh. Sahib Singh was first cousin of the petitioner and had surrendered his right during his life time and thus the sale certificate was issued exclusively in favour of Jagdish Mitter Taneja on 21.12.1972 and later on even mutation was sanctioned in his name on 16.2.73. Kaushalya Devi Chawla, respondent No. 1 filed a petition before the Chief Settlement Commissioner, Punjab on the ground that Jagdish Mitter Taneja associated their predecessorininterest Sahib Singh Taneja, a claimant to the extent of Rs. 19429.50 on the understanding that the parties would be having share in the property. Sahib Singh Taneja died unmarried and issueless at Amritsar on 1st May, 1970 and was survived by Jamuna Bai and Kaushalya Chawla being real sisters (legal heirs). So both prayed before the Chief Settlement Commissioner that sale certificate be modified to the extent that share of Rs. 19429.50 in the property be shown owned by Jamuna Bai and Kaushalya Chawla. Remaining share of Rs. 17670.50 be shown as belonging to Jagdish Mitter Taneja as per payment made by the parties towards the purchase price. The Chief Settlement Commissioner rejected the revision petition vide his order dated 19.11.1976 on the short ground that revision petition was badly time barred. These ladies filed a petition under Section 33 before the Financial Commissioner Revenue (Misc. No. 34/197677) who gave direction vide his order dated 20.12.1983 that the delay in filing revision petition may be condoned and case be decided on merits. The case was remanded to Chief Settlement Commissioner. Sahib Singh had two brothers also namely Sunder Singh and Tej Bhan. Sunder Singh predeceased Sahib singh, had died on 8.3.1966 leaving behind widow and children who claimed their right in the property but later they completely withdrew in favour of Jagdish Mitter Taneja, petitioner. The compromise was reached in civil court which was upheld by the Hon''ble High Court also. Second brother Tej Bhan died on 29.1.1971 i.e. after the death of Sahib Singh and he never agitated for the share of property.

On remand the matter was considered by the Chief Settlement Commissioner, Amritsar and Smt. Kaushalya Chawla moved an application to get some documents examined from the handwriting expert as certain changes have been made by the petitioner. The said application was rejected by the Chief Settlement Commissioner on 28.5.1985 on the grounds that validity of the documents was never challenged though the case remained pending for many years. In the impugned order, the Chief Settlement Commissioner himself convinced that an association existed between Jagdish Mitter Taneja and Sahib Singh Taneja for purchase of property and Sahib Singh paid part payment for the said property. Jagdish Mitter did not file any document which may establish that association between two was discontinued. No reliance was placed on document which contained uncertified interpolation to the amendments. So the Chief Settlement Commissioner cancelled the sale certificate issued in favour of Jagdish Mitter Taneja directed to issue fresh sale certificate jointly indicated their shares. Hence this petition.

Sh. K. K. Mehta, Advocate, counsel for the petitioner argued that the facts and law involve in this case has not been properly and fully appreciated. The evidence in favour of the petitioner available in the file has either been ignored or wrongly interpreted. The counsel submitted that :

(i) The property was purchased by the petitioner in auction held on 20.11.1958 for Rs. 37100/ as is clear from the bidsheet. Thereafter, the District Rent and Managing Officer vide his communication dated 26.12.58 (page 13, file No. 4) intimated to Jagdish Mitter that his bid for Rs. 37100/ has been accepted. In order to make payment Jagdish Mitter Taneja used the claim of Sahib Singh Taneja and submitted an affidavit dated 20.7.59 (page 17) alongwith Bond of indemnity clearly indicated that ownership of the property had been transferred to the petitioner. The cutting was duly initialled and attested by the Magistrate 1st Class. Similarly Sahib Singh Taneja filed an affidavit duly attested on 20.7.1959 (page 43) and indemnity bond dated 21.7.59. A letter dated 26.12.1959 (page 83) was addressed to both Jagdish Mitter and Sahib Singh intimating that compensation applications were likely to consume some time so you are hereby given provisional possession of the property, a copy of letter was endorsed to Secretary, Municipal Corporation, Amritsar indicating clearly that liability to make payment of municipal taxes and other local taxes will be of auction purchaser. Similarly District Rent and Managing Officer, Amritsar vide letter dated 2.2.61 addressed to the Principal, Government College for Women, Amritsar, living in the building that property has been sold to Jagdish Mitter Taneja and from 26.12.59 rent of the building be paid to him.

(ii) The counsel averred that Jagdish Mitter gave a power of attorney in favour of Sahib Singh to appear on behalf of Jagdish Mitter and pursue case for issue of certificate of sale. Sahib Singh never agitated before any forum that certificate of sale be issued to him. The counsel further submitted that Sahib Singh Taneja addressed a letter on 18.6.65 (page97) to Regional Settlement Commissioner to Government of India, Jalandhar to the effect that one Smt. Balwant Kaur claimed to have purchased as urban agricultural land under Khasra No. 939 i.e. front portion of house No. 51/2/13 Court Road, Amritsar, measuring about 200 yards according to demarcation made by the staff on 23.12.1964 that case was being fought and ultimately decided in favour of Jagdish Mitter by the Chief Settlement Commissioner vide order dated 30.10.1972 (page 7172, File No. 1) and then by the Ld. Financial Commissioner Revenue vide order dated 20.12.1983, whereby only Jagdish Mitter was party (Goshwara No. 3626)

(iii) An application dated 23.11.1971 (page 159) was given by Jagdish Mitter for the issuance of sale certificate in his exclusive name and sale certificate was issued on 21.12.1972 after the date of death of Sahib Singh i.e. 1.5.1970 in his name.

(iv) The counsel further submitted that there was no mis representation or fraud involved in this case. The Chief Settlement Commissioner should not have commented upon himself without having any evidence recorded on this point when he himself refused to take any evidence in this behalf vide his order dated 28.5.1985. When the case was remanded by the Financial Commissioner vide his order dated 20.12.83 and Smt. Kaushalya Chawla moved an application before the Chief Settlement Commissioner at Mohali, pleading that they may be allowed to get the documents examined by handwriting expert :

(i) Affidavit of Jagdish Mitter Taneja

(ii) Affidavit of Sahib Singh Taneja

(iii) Letter dated 20.7.59.

(iv) Letter dated 18.6.65.

However, the Chief Settlement Commissioner vide his order dated 28.5.1985 rejected this application finding that the case between the parties has been going on since many years, at no stage any effort was made to challenge the validity of affidavit and other papers. Evidence of handwriting expert at such a late stage cannot be allowed. In this respect the counsel referred 1973PLJ778 whereby it was held ``Section 24 setting aside the conveyance deed only on the ground mentioned in SubSection (ii) possession for adjustment not made in chronological order no ground for setting aside conveyance deed. He further cited 1981PLJ18 and 1981PLJ81 in this respect.

(v) Towards payment of Rs. 37100/ Jagdish Mitter paid some amount in the shape of claim standing in his name and for the balance, arrangement was made with Sahib Singh his cousin to whom the money was paid in cash and his claim was adjusted in March, 1961. These claims were not adjusted on 21/22.7.1959 rather the deduction was made from the account of Sahib Singh on 21.3.1961. Moreover proviso of Rule 90(15) and 91(8) of Displaced Persons Rules, 1955 were added on 16.7.1959 and gazette notification was made on 25.7.1959. According to the amended proviso, a certificate of sale could be made on the name of auction purchaser provided the person whose claim was used gave in writing to this effect. Sahib Singh gave two affidavits one on 20/22.7.1959 when he was 45 years old and the other is at the age of 87, lower portion of which is torn one in age of 51 years i.e. in years 1965 according to which Sahib Singh received the amount from Jagdish Mitter and the certificate of sale was issued by the Rehabilitation Department on 30.12.1972 and declared him purchaser of property w.e.f. 21.3.1961.

(vi) As regards application dated 10.11.1970 made by Jagdish Mitter claiming 1/2 share of compensation is concerned firstly by that time sale certificate was not issued secondly this point has been elaborately decided by the Hon''ble High Court vide order dated 2.8.1984 through this order the position was made abundantly clear that Jagdish Mitter is sole owner of the property and the property was under possession of the petitioner. Earlier one more writ petition was filed by Smt. Kaushalya Chawla and Jamuna Bai, which was dismissed by the Hon''ble High Court vide order dated 3.5.1979 but this judgment has not been referred to any where in the order of Chief Settlement Commissioner.

The revision petition as such filed by Smt. Jamuna Bai etc. was not maintainable against the sale certificate which cannot be treated as an order under any stretch of imagination (AIR1979 Bombay143). The counsel urged that the petition be accepted and impugned order be set aside and sale certificate already issued in favour of the petitioner be restored.

Sh. P.N. Aggarwal, Advocate, counsel for the respondents rebutted these arguments and submitted that Sahib Singh was all along associated by Jagdish Mitter and the various documents, affidavits and orders on the case file at pages (1718, 4749, 74, 97, 45, file No. 4) conclusively established this fact of the association between the two. The counsel averred that the office record was tampered with at some stage and Jagdish Mitter managed to exclude the name of Sahib Singh by fraudulent means and got the sale certificate issued in his own favour. Attention was drawn to the affidavit of Jagdish Mitter dated 20.7.1959. In para 4 of this affidavit Jagdish Mitter had clearly sworn that he had associated with his friend Sahib Singh Taneja. However in later part of para 4 of this affidavit there is a cutting which is clearly in different ink and it is not attested. Likewise there is an affidavit dated 20.7.1959 (page47) sworn by Sahib Singh wherein he associated himself in the purchase of property No. 51/2/13 with Jagdish Mitter, in this affidavit also cutting is in para 4. The counsel further drawn my attention to a letter dated 20.7.1959 ( P77) addressed by Jagdish Mitter to District Rent and Managing Officer, Amritsar regarding provisional possession of the said property, in this application also there is inter polation to the effect that the property may be transferred ``to me'''' obviously has been made at a later stage. The counsel further pointed out that rehabilitation department in noting on 21.9.94 proposed to make a reference under Section 24 of the Act ibid to set aside the sale certificate on the ground that it was obtained by Jagdish Mitter by fraud in his favour. Sahib Singh and Jagdish Mitter jointly filed an application under Section 30 to the Land Acquisition Officer which also goes to prove factum of association between the two. The counsel referred the citations on the point of fraud played by the petitioner as 1970AIR (Delhi) P.171, 1972 AIR (Pb) P.291, 1978PLJ333. Rule 90 (15) of the Displaced Persons (C & R) Rules 1955 was amended on 16.7.1959. This amendment was published in the Gazette of Government of India on July 25, 1959 the amended Rule which came into force on 20.7.1959 provided that ``if auctioner is a Displaced Person and has associated with himself any other displaced persons having a verified claim whose net compensation is to be adjusted in whole or part against the purchase price, sale certificate shall be made out jointly in the names of such persons.'''' The Hon''ble High Court order dated 2.8.1984 was based on sale certificate and they did not take into account all the factual things and this matter related to the claim of acquisition. The counsel urged that the sale certificate dated 21.12.1972 is liable to be revoked and cancelled so a fresh sale certificate has to be issued. The grounds taken in the petition have no force, so this petition is deserved to be dismissed.

Shri O.K. Puri, Senior State Counsel, on behalf of the Rehabilitation Department, pointed out that the necessary amendment in Rule 90 in sub rule 15 and in Rule 91, in sub rule 8 was made by the Rehabilitation Ministry on 16.7.1959 which was published in the Gazette of India on 25.7.1959 these parties filed their affidavits on 20/22.7.1959. The property was to go to the highest bidder of such property. It depended upon the highest bidder how to pay the full price of the property. There is no doubt that association of two persons exists but this position comes after the date of auction. If any party is aggrieved proper forum is to go to civil court because this dispute exists between the parties not with State. No fraud has been played so far as State interests are involved.

I have considered the arguments of counsel for the parties and gone through the record of the lower courts. It is amply proved on the file that a sum of Rs. 1767050 was adjusted against the claim No. P/JG 4/3392C of Jagdish Mitter, whereas a sum of Rs. 1942950 was adjusted against claim No. P/JG4/3395C of Sahib Singh. Both the claims were adjusted towards the sale price of the property No. 51/2/13 Court Road, Amritsar. This fact stands proved on pages 17, 19, 21, 23, 47, 49, 51 and 53 of property File No. 51/2/13. The adjustment of the aforementioned amount of claim have also been mentioned in sale certificate issued on 21.12.1972 regarding property in dispute. No doubt that an association existed between Jagdish Mitter and Sahib Singh for purchase of suit property. The question which needed determination was whether at any subsequent stage Sahib Singh had withdrawn his association or not during his life time. No documentary proof is available regarding discontinuation of this association in the file.

So far as the point of fraud by the petitioner is concerned I am inclined to agree with the counsel for the petitioner that no fraud or mis representation is involved in this case. Moreover the respondent''s demand/an application to get the documents examined by handwriting expert has already been rejected by the Chief Settlement Commissioner vide his order dated 28.5.1985. The case files were all along in official custody and no presumption could be made that official record had been tampered with. I rely upon the citation 1981PLJpage 18.

After the auction said property was excluded from the compensation pool. As per citation 1970PLR719, Section 19(2)Rehabilitation authorities jurisdiction of property sold and sale certificate issuedceases to be an evacuee property and gone out of compensation poolrehabilitation authorities ceases to have any jurisdiction.

Towards payment of Rs. 37100/ Jagdish Mitter paid Rs. 17670.50 and Sahib Singh paid Rs. 19429.50 through their verified claims vide their affidavits and indemnity bonds on 20/22.7.59 but these amounts were cleared on 21.3.1961 after the issuance of Rehabilitation Department''s notification dated 16.7.1959, published in gazette on 25.7.59. The sale certificate dated 21.12.1972 was effective after the clearance/payment of price/adjustment of amounts in favour of Sh. Jagdish Mitter Teneja, petitioner. The association started w.e.f. date of clearance of payments. I am inclined to agree with the contention of Senior State Counsel that aggrieved should go to the civil court for relief as the State has sold this property in auction to the highest bidder and he is Jagdish Mitter Taneja. It was his responsibility to pay the amount or arrange through his other sources.

With these observations I accept the present petition and quash the order dated 17.7.1985 of the Chief Settlement Commissioner, Amritsar.

Announced.