Mangat Rai & Ors. v. State of Punjab & Ors.

Mr. M.L. Saini, Advocate, for the petitioners. Mr. Manohar Lall, Additional Advocate General, Punjab, for respondents 1 and 2. Mr. V.G.Dogra, Advocate, for respondents 3 and 4. -----

1. Whether reporters of local papers may be allowed to see the judgment? To be referred to the reporters or not?

2. 3. Whether the judgment should be reported in the digest? ----- K.Kannan, J (Oral)

1. The writ petition challenges the order passed by the Financial Commissioner and Secretary to Government under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act of

1954. The impugned order came to be passed in revision against the earlier order passed by the Deputy Commissioner-cum-Chief Settlement Commissioner, Jalandhar on 24.04.1986, whereby he accepted the petitions filed by one Gian Chand, Mangat Rai and Smt. Dhanti, who claimed that they were persons in possession of the property which had Civil Writ Petition No.1296 of 1989 - 2 - been wrongly put up for sale in auction and that the same, without reference to their possession, was illegal. These applications at the instance of Gian Chand, Mangat Ram and Smt. Dhanti, were reported to have been filed for setting aside the sales of the property held on

19.01.1983 claiming that they had been in possession and the sales were not valid. The Chief Settlement Commissioner found the property had been auctioned not at the spot where the property was situate but at a different place and he had also noted that there were actually only as many bidders as that there were plots put up for sales. There had been no adequate publicity for the same. It was also held by him that the properties were in the hands of petitioners, who had put up huts and the auction sales were therefore invalid.

2. The auction purchasers who had purchased the property on

19.01.1983 and who had also the respective sales confirmed on

20.10.1983 approached the Financial Commissioner on a plea that auction could not have been set aside otherwise through an application under Rule 92 of the Displaced Persons (Compensation and Rehabilitation) Rules of 1955 and that was required to be done within 7 days from the date of auction. The auction having been held on

19.01.1983 and the confirmation having been held on 20.10.1983, the petitions filed to set aside the auctions on 02.04.1984 was incompetent. The applications filed under Section 24 of the Act before the Chief Settlement Commissioner were also invalid and the Chief Settlement Commissioner had no power to set aside the auction sales. Civil Writ Petition No.1296 of 1989 - 3 -

3. The Financial Commissioner had called for a report from the Tehsildar who initially gave a report saying that the property was in the hands of the petitioners but later when a second report was called, he had noticed that there was merely a compound wall and there was no construction. It was also found that none of the petitioners was in actual possession and the voter list showed that they were living away at Mohalla Guru Nanak Puri, Nakodar, in house Nos.3312 and 3315. Based on the report and on a finding that the applications for setting aside auctions could not be done in the manner sought to be done, the decision of the Chief Settlement Commissioner was set aside and the revisions were allowed.

4. The learned counsel appearing on behalf of the petitioners who had claimed right to the property by their alleged possession before auction contends that there was no power for the Financial Commissioner to call for a second report when the first report itself had been adequately proved as the basis for cancellation of the auctions. It was his contention that the second report was secured by deceit and use of influence locally and the actual possession noticed by the Chief Settlement Commissioner ought not to have been rejected by the Financial Commissioner. The learned counsel also refers to a decision of this Court in Jagir Singh and others Versus The Chief Settlement Commissioner, Punjab and others-AIR 1970 Punjab and Haryana 507 to support his plea that the power which the Chief Settlement Commissioner had, were plenary and he could set aside even sales certificates which were issued subsequent to auction sales. The Court Civil Writ Petition No.1296 of 1989 - 4 - had held in that case that the auction sales had been ordered wrongly and that the auctions were void ab initio.

5. The learned counsel appearing on behalf of the respondents reiterates the position urged before the Financial Commissioner which found favour with him to pass an order in their favour. The learned counsel refers to the decision which has been cited before the Financial Commissioner namely, the decision in Chandgi Ram and another Versus Moonga and others-AIR 1971 Punjab & Haryana 375, that held that a sale of a land in public auction would not be set aside otherwise than through an application filed within 7 days from the date of sale under Rule 92 and 90 and if an application is not filed within the said period, the sale could not be set aside.

6. In as much as the writ petition challenges a quasi judicial order passed under the Displaced Persons (Compensation and Rehabilitation) Act of 1954, the petitioners could succeed only if there are able to establish that there is something amiss about the order that is against law or it contains a reasoning which is unacceptable. The whole case has been rested on the power of the Chief Settlement Commissioner to set aside an auction sale on a ground which was not available for the petitioners. No doubt, the plenary powers of the Commissioner in finding that the cancellation of allotment made to certain persons was wrong, could result in all subsequent transactions to be invalid. In this case, the petitioners had no favourable orders of allotment in their favour. On the other hand, they were staking a claim to the property for the first time as possession already held by them. It is not possible for Civil Writ Petition No.1296 of 1989 - 5 - this Court to appreciate the issue of possession which is essentially a question of fact and only the guidance that this Court can have is what is secured through documents before the Court. If there are two views possible on a given set of facts, the view that has been taken through an order which is impeached will have to be preferred. I am now considering the validity of the order passed by the Financial Commissioner and if he had obtained two reports both of which were inconsistent with each other, I have no reason to prefer the one against the other. The whole case is, therefore, to rest only on the legal reasoning which he has adopted. It has been held by him that the auction sale held could not be set aside otherwise through the application within 7 days under Rule 92 and there is a Division Bench ruling that supports the same view. I am afraid I cannot now consider that the petitioners would have a rightful claim in the property by the alleged possession which is still a matter of dispute and in respect of which, there is no definite material for this Court to affirm.

7. Under these circumstances, the order impugned is confirmed and the writ petition is dismissed. There shall be however no direction as to costs.

19.05.2010. sanjeev (K.KANNAN) JUDGE