Mohinder Pal vs Rajwant Singh and another

Tejendra Kahanna, F.C.

This petition under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, is directed against the order dated 10.4.1985 of the Deputy CommissionercumChief Settlement Commissioner, Amritsar, whereby he dismissed the revision of the petitioner.

Briefly, the facts are that property No. 215458/8 measuring 204 Sq. Yds. 1 Sq. Ft situated at Amritsar, was transferred to Rajwant Singh respondent No. 1 at the rate of Rs. 600/ per square yard, on the basis of possession, by the Tehsildar (Sales)cumManagign Officer, Amritsar, vide his order dated 31.5.1982. Against the assessmnt of price of the propertty in dispute respondent No. 1 preferred an appeal before the Settlement Commissioner, Punjab, contending that he being a displaced person, the price could not have been assessed at an exhorbitant rate and that too without associating him. The Settlement Commisioner accepted the appeal of respondent No. 1 and reduced the price from Rs. 600/ per square yard to Rs. 268/ per square yard, vide his order dated 31.1.1983. Mohinder Pal petitioner cnallenged the aforesaid order in revision before the Chief Settlement commissioner, Pujab who rejected the revison on 10.4.1985. The last mentioned order has now been impugned before me in the instant petition.

As arguments of the consel for the petitioner had been heard inthe absence of the counsel for respondent No. 1, the latter was asked to file written arguments. The written arguments filed by him have been noticed and brought on record.

On behalf of the petitioner, it was contended that the respondent No. 1 being a Government servant was not entitled to the transfer of the propety in dispute. In fact, the propery has been in possession of one Sham Dass. The respondent has never appeared before the Tehsildar Sales cumManaging Officer, Amritsar and it was on the statement of Sham Dass that the property had been transferred to respondent No. 1. Besides, being a commercial site the property could not have been transferred to respondent No. 1. Being a Government servant, respondent No. 1 was not competent to carry on any business. Neither had respondent No. 1 obtained sanction of the Government for acquiring the property in dispute. The case of respondent No. 1 was, therefore, not covered by the Instructions of the department inasmuch as he was neither in possession of the site in dispute nor had he raised any constructin thereon. The fire wood shop was actually being run by Sham Dass. The mere fact that the licence stood in the joint name of Sham Dass and respondent No. 1 would not entilte the latter to claim the transfer of the property in dispute. The value of property in dispute which is a commercial site had also not been assessed properly. Only the formula of enhancing the price at the rate of 10 per cent per year, taking the base year as 1959 has been taken into consideration, while the Rules clearly provide that the price has to be brought at par with the prevailing market price. The prevailing market price in the year 1982 was in no case less than Rs. 1000/ per sq. yard. As against it the price originally fixed had been reduced by the Settlement Commissioner from Rs 600/ to Rs. 268/ wihtout any basis. In this manner, the State exchequer had bene made to suffer. All these points had been specifically raised before the Chief Settlement Commissioner but he had not given any finding thereon. It was averred that in the impugned order the Chief Settlement Commissioner had wrongly concluded that that respondent No. 1 was an authorized occupant. It was urged that his order being patently erroneous was liable to be set aside and that the propety may be ordered to be sold by public auction in the larger publice interest.

In the written arguments submitted by the counsel for respondent No. 1, much stres has been laid on the identity of the propety already transfered to the petitioner. In the instant petition, the petitioner has not claimed transfer of any portion of the propety transferred to respondent No. 1. On the contrary, the petitioner had challenged the validity of the orders of the Courts below transferring the proerty in dispute to respondent No. 1, on the grounds that the later being a Government servant and having not appeared before the Tehsildar (S)cumManaging Officer, Amritsar, at any stage, could not have been deemed to be eligible for its transfer. This aspect of the matter has not touched by the counsel for respondent No. 1. Instead, he has simply stated that the impugned order of the Chief Settlemnt commisisoner being correct, no interference with it is called for.

I have heard the counsel for the parties and have gone through the record. The main ground on which the transfer of commercial plot measuring 204 sq. yards 1 sq. foot in favour of respondent No. 1 Rajwant Singh has been challenged is that no construction had been raised on the diputed site by the transferee nor was nay business actually being carried on by him inasmuch as that he is a Government serant and could not have been carrying out private business at the same time In his statement dated 20.4.1982 before the TehsildarcumMangaing Officer, Amritsar, Sham Dass, brotherinlaw of Rajwant Singh had stated that they had both been carrying on busincess of sale of firewood on the plot in question since 1927 but that as he was himself not a displaced perosn, the plot may be transferred in the name of Rajwant Singh. Rajwant Singh however never appeared before the Manging Officer personally to pursue his application for transfer of the plot dated 20.3.1974. The transfer was eventually approved in his favour on 31.5.1982 at the price of Rs. 600/ per sq. yard. Thereafter, Rajwant Singh challenctged the price alleging that it was very musch on the high side and sucdeeded in getting it reduced to Rs. 268/ per sq. yd. from the Settlement Commissioner vide latter''s order dated 31.1.1983.

While it is conceivable that a Government serant may also be carrying on some private business with or without Government permission, and the mere fact of a person being a Government servant does not, ipso facto, rule out the possiblity of his engaging in such business, the question which arises in this case is whether a Government servant should be allowed the benefit of transfer of Government land/property on the basis of unauthorised possession. In my view, Government is the Coustodian of public properties as a trustee for the larger community of citizens and no functionary of the Government, however high or low, can be allowed to encroach upon Government properties and thereafter seek transfer of proprietary rights thereon on the basis of such encroachment. If transfers were to be allowed, public properties held by the Government in trust for the larger good of the citizens would soon find their way into the hands of unscrupulous Government officials themselves. The least that the respondent Rajwant Singh should have done was to have obtained a regular lease of the site from the department so that his status became that of a regular occupant of the plot. He could then have sought the benefit of transfer of the property in his favour under the general instructions of on the subject. The crucial test has to be whether the Government servant had initially entered upon possession of the Government land/property in an authorised manner or not. Payment of damages/charges for unauthorised occupation in an expostfacto manner also cannot have the effect of regularising the occupation in such cases.

In the light of the above discussion, I have reached the conclusion that the transfer of the disputed site to the respondent No. 1 was unjustified and has to be set aside. The amount paid by him towards price of plot should be refunded to him and the property disposed of by auction.

Announced.