Jyoti Ram vs Joint Secretary, Rehabilitation, etc

J.M. Tandon and S.C. Mital, JJ.

The petitioner claims to be in possession of 56 Kanals 14 Marlas of evacuee acquired land detailed in Para No. 2 of the writ petition and situated in village Tarori, Tehsil and District Karnal. He applied for the transfer of this land on 30th August, 1962, in pursuance of the instructions issued in 196162. He was transferred 5 Standard Acres of land on prescribed rates. The Chief Settlement Commissioner set aside the transfer of land in his favour on the ground that he was already holding 5 Standard Acres of land and as such, was not eligible for the transfer of the acquired area. The petitioner assailed the order of the Chief Settlement Commissioner in Civil Writ Petition No. 2402 of 1971, which was dismissed on 8th May, 1980.

On 9th September, 1981, the land detailed above was auctioned. Respondents No. 4 to 6, offered the highest bid which was confirmed on 21st September, 1981, and 22nd October, 1981. The petitioner again applied for the transfer of the same land on 10th November, 1981, in pursuance of another Press Note issued on 25th August, 1981, stating therein that he was not holding more than 2 or 3 Standard Acres of land that he was entitled to the transfer of the land to the extent his holding was short of 5 Standard Acres.

The petitioner moved a petition before the Deputy Secretary, RehabilitationcumSettlement Commissioner praying that the auction of the land in favour of respondents as also the confirmation of their bid be set aside and the land be transferred in his favour on prescribed rates. The Settlement Commissioner dismissed the petition vide order dated 26th August, 1982 (P.4) which has been assailed in the present writ petition. The petitioner had also filed a petition seeking review of the order of the Settlement Commissioner (P.4) which has dismissed vide order dated 15th September, 1982 (P.6). The petitioner has assailed P.6 as well.

The petitioner was found holding more than 5 Standard Acres and not entitled to the transfer of land on that ground by the Chief Settlement Commissioner which order was upheld in C.W.P. No. 2402 of 1971. The Chief Settlement Commissioner as also the High Court did take notice of the plea of the petitioner that he had transferred his land measuring 6 Standard Acres and 91/2 Units to his sons on 22nd February, 1969. It is obvious that the petitioner transferred the land in favour of his sons on 22nd February, 1969, with the sole object of making himself eligible for the transfer of the land in dispute and thereby defeat the spirit of the instructions relating to the transfer of land to persons holding less than 5 Standard Acres. It is doubtful if the petitioner having lost in his earlier attempt to seek the transfer of the land in dispute, could file an application afresh on 10th September, 1981, for the same purpose in pursuance of the Press Note dated 25th August, 1981.

The land in dispute was auctioned on 9th September, 1981. The highest bid of the respondent was confirmed on 24th September, 1981, and 22nd October, 1981. The petitioner applied for the transfer of the land on 10th November, 1981. The sale by auction of land already made and confirmed cannot be set aside to facilitate when he had not applied for its transfer on the date the land was auctioned.

The learned counsel for the petitioner has urged that the sale by auction of the land in favour of the respondents is liable to be quashed for want of Notification by the Government under the Rules governing the disposal of surplus package deal properties regarding the appointment of Tehsildar (Sales) who conducted the auction and Additional Settlement Officer (Sales) who confirmed the highest bid offered by the respondents. We are not impressed by this contention. It has been held in Gokaraju Rangaraju v. State of Andhra Pradesh, AIR 1981 S.C. 1473, that the acts of the Officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts of the Officers de jure. It has further been held :

"A Judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine born of necessity and public policy to prevent needless confusion and endless mischief.

We are concerned with the office that the Judges purported to hold. We are not concerned with the particular incumbents of the office. So long as the office was validly created, it matters not that the incumbent was not validly appointed."

The observations of their Lordships of the Supreme Court reproduced above are applicable in this case. A similar view has been taken by a Full Bench of this Court in Tulpar Machine and Tool Company v Shri Joginder Pal and others, C.W.P. No 4411 of 1982, decided on April 18, 1983. The sale by auction in favour of the respondents, therefore, cannot be set aside for want of proper notification regarding the appointment of Tehsildar (Sales) who conducted the sale and Additional Settlement Officer (Sales) who confirmed highest bid of the respondents.

Dismissed in limine.