Subhash Chander vs Financial Commissioner (Revenue)-Cum-Secretary (Rehabilitation) and Others

H.S. Bedi, J.—This matter has a chequered history. Property No. B-IV. 685 in Shahbad Markanda was initially owned by Muslims who migrated to Pakistan in 1947, Before partition, however this property than measuring 6 Bighas 12 Biswas of agricultural land in Khasra No. 960 had been leased out to one Goverdhan Dass and then to Beni Parshad the predecessor-in-interest of the petitioner. The case of the petitioner is that the entire area which on consolidation came to 6 Bighas 12 Biswas, was in his possession, and he was entitled to this property in terms of the policy of the State Government. The petitioner, thereafter, applied for transfer of this land on the ground of possession. His application was decided on 27th February, 1984 by the Chief Settlement Commissioner. This Officer directed that the petitioner should apply to the Tehsildar, Sales-cum-Managing Officer and such an application was made by the petitioner on 21st May, 1984 : Vide order dated 18th August, 1986, Annexure P-1 to the petition, this application was rejected. The petitioner, thereafter, took a revision before the Chief Settlement Commissioner u/s 24 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, (hereinafter called the ''Act'') and this officer vide his order dated 29.6;1988 Annexure P-2 to the petition, granted proprietary rights to the petitioner with respect to 1 Kanal 6 Marias only, whereas the claim with regard to 4 kanals 4 marlas was rejected. The petitioner thereafter, filed another revision petition u/s 33 of the Act and this too was rejected by the Financial Commissioner, Haryana, vide Annexure P-3 to the petition holding that as per the extant policy, the father of the petitioner could claim the benefit of only 1 Kanal 6 Marlas but as a new modified policy, that was to be notified, the father of the petitioner could approach the authorities once again. The matter, was, thereafter taken by up the petitioner in C.W.P. No. 9390 of 1988, which came up for hearing before a Division Bench of this Court on 14th September, 1988 and was disposed with the observation that the petitioner would be at liberty to apply to the authority concerned, under the new policy that was likely to be published. It is the admitted fact that subsequently a new policy for allotment of evacuee property was published and the same has been appended as Annexure PA The petitioner himself now moved on. application before the Tehsildar (Sales) on 14th October, 1988, praying that as lie was eligible for transfer of the balance area of 4 kanals 4 marlas, the same too should be transferred to him. In the meantime, the petitioner also moved an application before the Chief Settlement Commissioner, with a prayer that the Tehsildar (Sales)-cum-Managing Officer, before whom the application had been filed on 14th October, 1988, should Be directed to decide the application before putting the land in question to auction. The Chief Settlement Commissioner, accordingly, on 22.5.89 issued directions in the terms prayed for. It is the admitted case that the Tehsildar (Sales)-cum- Managing Officer, rejected the application filed by the petitioner vide Annexure P-5 dated 24.5.89 and on the same day, put the land in question to auction, which was duly purchased by respondents No. 4 and 5. The petitioner thereafter approached the Chief Settlement Commissioner u/s 24 of the Act and also the Central Government u/s 33 but these matters too were rejected vide Annexures P-6 and P-7 respectively inter alia, on the ground that he had not been able to show his possession over 4 kanals 4 marlas of land and as such, the same could not be transferred to him under the new policy Annexer P-4. The petitioner has, accordingly, assailed Annexures P-5, P-6 and P-7 and also the auction made in favour of respondent Nos. 4 and 5, in this writ petition.

At the very outset, Mr. S.N. Saint, the learned counsel for the petitioner has urged that it was difficult for this Court sitting on writ side to disturb the impugaed orders as they were based on a finding of fact. He has nevertheless argued that as per the order of the Chief Settlement Commissioner dated 22nd May, 1989, it was incumbent on the Tehsildar (Sales)-cum-Managing Officer to decide the application dated 14th Oct., 1988 before putting the land to auction and as he had decided the application without having the record filed and hurriedly put the land to auction on the same day, the petitioner, and others who might have been interested in its purchase had been precluded from taking part in the auction. He has also urged that as the order of the Chief Settlement Commissioner dated 22nd May, 1989, had been conveyed to the officer concerned on the same day (as this fact has not been denied), the auction was even otherwise bad.

Mr. C.B. Goel, however, has urged that the petitioner had taken the proceedings time and again for the last 30 years and had not succeeded in getting the 4 kanals 4 marlas of land which now he sought from respondents No. 4 and 5 (whom he represents) and the said respondents had purchased the land in question in a valid auction.

I have heard the learned counsel for the parties and with their assistance have gone through the record.

As already mentioned above, Mr. Saini has confined his prayer to the fact that the auction held on 24th May, 1989 was not validly held as it violated the terms of the orders of the Chief Settlement Commissioner dated 22.5.1989 to the effect that before the auction was conducted, the application filed by the petitioner on 14th October, 1988 had to be decided. For the reasons already mentioned above, I am of the opinion that the petitioner was effectively precluded from participating in the auction held on 24th May, 1989.

This petition is, thus, partly allowed, the auction held on 24th May, 1989 is quashed and a direction is issued to the respondents to re-auction the property in dispute giving liberty to the petitioner and to any one else, who may choose to compete for the said property. No costs.