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Judgment
K. Kannan, J.—The petitioner, who died pending appeal, claimed to be a purchaser at an auction held on 06.05.1988 of certain properties under the rules made under Displaced Persons (Compensation and Rehabilitation) Act of 1954 (for short, 1954 Act). He was declared to be the highest bidder at Rs. 56,000/- against the reserve price of Rs. 26,095/-. According to the petitioner, the only objection that was made was at the instance of one Naranjan Ram, who was son-in-law of 3rd respondent-Chamela Ram and although rules required deposit of 20% to entertain any objection, no such deposit had been made. The Tehsildar (Sales), therefore, recorded the fact that the objector himself did not press his objections later and he had also observed that the 3rd respondent-Chamela Ram, who claimed to be in an unlawful occupation even prior to auction, did not avail of an opportunity to pay the occupation charges, as called upon to do through a notice on 06.04.1988. Since he did not make the payment within the time stipulated, the property had been put up for auction. This was sought to be challenged by Chamela Ram before the Settlement Commissioner in revision under the State rules and the impugned order was passed directing a consideration of Chamela Ram''s claim in accordance with the new policy of the Government issued on 18.07.1988. The Settlement Commissioner ruled that the third respondent''s claim was bound to be examined in terms of the new policy and the mere fact that auction had been held after giving an opportunity on a previous occasion on 06.04.1988 will not conclude the rights of parties.
Independent of the proceedings before the authorities under the Act, the third respondent-Chamela Ram had sought for a declaration that the auction held on 06.05.1988 in favour of third respondent was not valid. The court had held that the auction was null and void on the ground that person in possession of evacuee property had a preferential right to secure a transfer in his favour and as per Section 19of the 1954 Act, a person in possession of the evacuee property should be given reasonable opportunity of showing cause against eviction and since opportunity was not given, the sale held by the Government was not justified. The civil court actually took notice of the Settlement Commissioner''s order for coming to the decision that he did, which is itself the subject of challenge in their writ petition. The decision of the appellate court also held the auction to be not valid and the State has come on second appeal in RSA No. 4507 of 2001. The case has been admitted on the substantial questions of law raised requiring a consideration of whether a State itself could be taken as an aggrieved party in a contest between two private individuals and whether the civil court had jurisdiction to entertain such a suit. The other points that arise are also whether in the absence of finding regarding violation of the procedure mentioned under the rules, a sale by way of auction could be held to be illegal. The further points are whether an unauthorized occupant had any superior rights compared to an auction purchaser and a direction for consideration of entitlement of unlawful occupier could be understood as implied order of setting aside the auction held.
The civil suit is indeed a duplication of an effort which was in challenge in the writ petition filed in the year 1992 itself. The civil court decree has literally followed the decision of the Commissioner in directing the third respondent''s claim under the new policy. Its finding that the auction held must be taken to be invalid on the ground that the preferential right of the petitioner was not examined allows for the same consideration which has prevailed on the Settlement Commissioner in directing the examination of the 3rd respondent''s claim. All the substantial questions which are raised in the second appeal stand subordinated to the principal consideration raised in the writ petition. In my view, there is no doubt that a person in unlawful occupation was entitled to be considered for preferential right of sale if policy considerations dictated such a course. That was precisely so considered on 06.04.1988 when an opportunity was reported to have been given to the third respondent to appear before the Tehsildar (Sales) on 18.04.1988 and deposit the rent for his unauthorized occupation on or before 18.04.1988. There is a specific averment made in the petition in paragraphs 5 and 6 that the third respondent did not avail of that opportunity and he did not deposit the rent. The property was reported to have been put up for auction on 06.05.1988 only on the failure of the third respondent to pay the rent and thwart the sale. This contention is met by the third respondent in his reply as follows:-
"That the contents of these paras are only partly admitted/correct. The replying respondent did go to the Tehsildar (Sales)''s office along with the lagan amount but the same was not accepted on the plea that general stay order was in operative (sic) since and the price fixation matter was under consideration of the Government/Rehabilitation Deptt."
When the property was put to auction on 06.05.1988, it is no doubt true that the third respondent himself did not seek to set it aside and he had allowed his son-in-law to oppose the sale but even when his objections were not pressed, the matter did not conclude there. The third respondent had sought to challenge the action of the Tehsildar directly by means of a revision petition on a plea that he was an inferior evacuee as a person to whom the property had been leased and that the sale had been effected without any notice to him. It is not as if the auction was not challenged under the provisions of the relevant rules, as contended by the learned senior counsel appearing on behalf of the petitioner. On the other hand, the matter was directed to be considered by the order of the Settlement Commissioner on 18.07.1988 only in the revision filed by the 3rd respondent. That order was not put in challenge by the petitioner. It can be noticed that when the Settlement Commissioner directed a fresh consideration by the Tehsildar, the third respondent had already approached the civil court also for a declaration that the sale effected was null and void, in that the sale had been effected without notice to him and in violation of Section 19 of the 1954 Act. When the Tehsildar was directed to consider the third respondent''s right, it was another way of saying that the auction that had taken place in favour of the petitioner was to be examined in the context of whether the third respondent had a preferential right and, therefore, the property itself could not have been put up in auction. That right was to be examined in terms of liberalization of the policy relating to the disposal of the rural and sub-urban evacuee lands.
The argument of the learned senior counsel appearing on behalf of the petitioners is that a consideration of new policy was possible only if the property had not been sold in auction. On the other hand, if the property had been sold, the matter could not be reopened for examination of the third respondent''s right under the said policy. This argument could be justified, if the third respondent had not challenged the auction and had again applied before the Tehsildar (Sales) for annulling the sale and recognizing his right under the new policy. As a matter of fact, the third respondent actually challenged the auction as invalid in two forms:-(i) a revision before the Settlement Commissioner and (ii) by means of a civil suit against the State. The breach of a statutory provision is so fundamental that an exclusion of a civil court''s jurisdiction cannot be easily inferred. A violation of statutory mandate strikes at the root of vires of action that allows for a civil court to declare that a particular administrative act was not valid in the eyes of law. If the civil court''s order therefore entered a finding that the sale was invalid for want of notice and want of adequate opportunity to the third respondent, it was holding that there had been a statutory violation that justified invoking the civil court''s jurisdiction. The third respondent''s objection in his written statement that he went to the Tehsildar on the date mentioned but he did not receive the rent and informed that he was putting up the sale since the price has been fixed by the government is consistent with his plea that before putting the property for auction, he had not been given adequate opportunity to fend off sale. The civil court''s finding that the auction was invalid was on the basis of statutory violation and, therefore, the contention of the petitioner that the 3rd respondent could not have challenged the action other than under the provisions of 1954 Act or the rules cannot be sustained. In any event, I have already observed that the petitioner had actually brought a revision to the Settlement Commissioner that the auction held was invalid for statutory violations and the Settlement Commissioner had actually upheld his objection and had directed the consideration of the third respondent''s rights in the light of the State policy.
The learned senior counsel for the petitioners would argue that mere direction by the Settlement Commissioner for examination of his rights cannot be understood as setting aside the sale by public auction. I would hold, it would amount to a direction for reconsideration of the validity of the auction. If the auction were to be taken as final and completed, there was no purpose in directing a reconsideration of the third respondent''s right in the light of the policy. The reconsideration had the effect of keeping the rights of auction purchaser at bay and examination of an issue of whether the third respondent was in possession of evacuee property before the auction. It entitled him to obtain consideration in the light of liberalization of the policy which clearly thwarted a prospect of annulling the auction sale in favour of the petitioner. I have seen the text of the policy which provides for a transfer of rural evacuee agricultural land in the unauthorized occupation of an occupant since kharif 1985 or earlier. If the petitioner''s own status as unauthorized occupant is not even challenged by the petitioner, then all that would be necessary to be seen is only the rate at which the property shall be transferred to the third respondent in terms of the policy. The Settlement Commissioner was, therefore, justified in passing the impugned order that the Tehsildar (Sales) will consider the application of the third respondent for sale of the property and if he was found eligible, transfer the property in accordance thereof.
I uphold the order passed by the Settlement Commissioner and dismiss the writ petition. The second appeal at the instance of the State is also dismissed holding that the exercise of civil court''s jurisdiction declaring the sale as void ab initio for statutory violation was perfectly maintainable and the irregularity and the invalidity of auction was justifiably assessed by the civil court. The direction to decide the application of the third respondent, who was the plaintiff in the suit resulted in a due consideration of whether the auction sale could be upheld or not and in the light of the impugned order passed by the Settlement Commissioner, the entitlement of the petitioner under the policy and the payment of the price shall ipso facto result in setting aside the auction. The order of the Settlement Commissioner is guarded in its expressions in that it states correctly that the Tahsildar should decide the application for transfer of the land after hearing the parties and if the 3rd respondent herein was found eligible, then he would make a reference for setting aside the sale.
In the light of what I have held and in the interest of justice to scuttle a long drawn process, I modify the directions of the Settlement Commissioner to the benefit of the third respondent that it shall not be further necessary to seek for any further reference for invalidating the grant in favour of the petitioner. If the price as determined in terms of the policy is paid within the time stipulated, the right of the petitioner must be taken as having come to an end. The State shall communicate the price payable as per the policy through the Tahsildar (Sales) within 4 weeks from the date of receipt of the copy of the order with usual conditions for effect of default. The 3rd respondent shall take a sale deed in terms thereof. The civil court has already held that the auction was invalid and, therefore, no special equities arise in favour of the petitioner. It could be noticed that the petitioner himself was not guilty of any suppression of fact or illegal act. He was merely a willing purchaser at an auction. The amount which he had paid shall be refunded to him with interest at 12%. I make no observations about the price which would require to be paid by the third respondent, for, it will abide by the relevant rules for offer of sale of property to an occupier. If the amount as determined is not paid, the property will again be put up in auction in the manner contemplated under rules and the petitioner will be at liberty to participate in such auction, but he will have no special privilege of any preemptive right by the fact that he had already been a successful purchaser at one time. The property shall not be put up for re-auction under any circumstances without refunding the amount directed to be payable to the legal representatives of the petitioner.
Both the cases i.e. CWP No. 15208 of 1992 and RSA No. 4507 of 2001 are dismissed. The parties shall bear the respective costs.