S. S. Harbhagwan High School, Samana v. Financial Commissioner, Revenue, Punjab & Ors.

Judgment

1. The present appeal has been filed challenging the judgment dated 31.3.2009 passed by the learned Single Judge

dismissing the writ petition bearing CWP No.11823 of 2006.

2. The brief facts of the present case are that petitioner/appellant (School) was allotted land measuring 4700 sq. yards on 1.2.1994. This land was just adjoining the LPA No.955 of 2009 (O&M) -2- petitioner-school. Immediately after allotment on 6.2.1994, the petitioner school decided to alienate the land, in question. The Chief Settlement Commissioner-cum-Deputy Commissioner cancelled the allotment of plot vide order dated 21.11.2002 on the ground that petitioner school has illegally sold the property in question in plots to different persons which is against the purpose and object of the allotment made in favour of school. The order of the Chief Settlement Commissioner-cum-Deputy Commissioner dated 21.11.2002 was challenged by way of the writ petition bearing CWP No.11823 of 2006 which was dismissed by the impugned order. Hence, this appeal.

3. We have heard learned Counsel for the parties and perused the record.

4. Learned Counsel appearing petitioner/appellant vehemently argued that conveyance deed does not contain any term and condition to cancel/rescind it, hence, cancellation order is bad. The second argument of learned Counsel for the petitioner is that neither learned Single Judge nor Commissioner has taken into consideration the pressing need of the school to alienate the property. The third argument of the learned Counsel for the petitioner is that before passing the impugned order notice is required under Section 10 (3) of the Punjab Package Deal Properties (Disposal) Act, 1976 which was never issued.

5. Undisputedly, on the request of the petitioner school, Rehabilitation Department, Government of Punjab vide LPA No.955 of 2009 (O&M) -3- memo dated 7.3.1976 decided to give urban evacuee property bearing no.34-A, Samana, measuring 6051 sq. yards, at the concessional price to the petitioner school for development and maintenance of playground for the students of the school. Undisputedly, conveyance deed was executed in favour of the petitioner/appellant on 1.2.1994 at the concessional rate. Undisputedly, within next six days, petitioner school resolved to alienate the property purchased from the Rehabilitation Department, Government of Punjab. Undisputedly, provisions of the Punjab Package Deal Properties (Disposal) Act, 1976 are applicable in the present case. Section 10 of the Act reads as under:- “10. Power of Revision – (1) The Chief Sales Commissioner may at any time call for the record of any proceedings under this Act in which a Tehsildar (Sales) or a Naib-Tehsildar (Sales) or a Sales Commissioner in his district has passed an order for the purpose of satisfying himself to the legality or propriety of any such order and may pass such order in relation thereto as he may deem fit. (2) Without prejudice to the generality of the foregoing power under sub-section (1), if the Chief Sales Commissioner is satisfied that any order whether passed before or after the commencement of this Act, for the transfer of package deal property to any person, has been obtained by him by means of fraud, false LPA No.955 of 2009 (O&M) -4- representation or concealment of any material facts, then, notwithstanding anything contained in this Act, the Chief Sales Commissioner may pass an order cancelling or modifying the order such transfer. (3) No order which prejudicially affects any person shall be passed under this section without giving him a reasonable opportunity of being heard. (4) Any person aggrieved by an order made under sub-section (2) may, within thirty days from the date of the order, make an application for the revision of the order, in such form and manner as may be prescribed, to the Commissioner and the Commissioner may pass such order thereon as it think fit.”

6. Sub-section (2) of Section 10 (supra) gives the jurisdiction and authority to the Chief Sales Commissioner to cancel or modify the order of such transfer which was obtained by the purchaser by means of fraud, false representation or concealment of any material fact. As per Sub-section(2) of Section 10, it can very well be said that even in the absence of specific terms and conditions in the conveyance deed to cancel/rescind or modify it, the same can be done if Commissioner finds that transfer was obtained by purchaser by means of fraud, fake representation or concealment of material fact. Hence, we find no force in the first argument advanced by the learned Counsel for the petitioner school. LPA No.955 of 2009 (O&M) -5-

7. The next argument advanced by the learned Counsel for the petitioner school is that neither the authorities nor the learned Single Judge has taken into consideration the object of alienation by the school in favour of the third person.

8. The petitioner school had obtained the property in question by playing fraud and misrepresenting the fact that property shall be used for the playground for students studying in the school and after getting the conveyance deed executed, petitioner school started alienating it with the purpose of making money. This is a case which falls within the four corners of misrepresentation and fraud. Hence, in our opinion purpose to alienate is not required to be seen once case of fraud and misrepresentation is made out. Otherwise also, resolving to alienate the property within next 6-7 days from the date of conveyance deed cannot be bona fide.

9. The last argument advanced by Mr. A. K. Chopra, Sr. Advocate assisted with Mr. Ravinder Singh, Advocate is that no notice or opportunity of being heard was given to the petitioner school as required by Sub-section (3) of Section 10. The enquiry was held by SDM, who has found that 17 different sale deeds have been executed by the petitioner school realising sum of Rs.18,21,500/-. One plot was purchased by son of the Secretary Rajat Verma for Rs.83,000/- which was later on sold to Smt. Maan Kaur for Rs.90,000/-. The show cause notice was duly issued to the petitioner school on

18.11.1996 (Annexure R-6) and the petitioner did not furnish LPA No.955 of 2009 (O&M) -6- any reply. After that, a letter dated 26.11.1999 was sent to the petitioner school. Undisputedly, the petitioner school had replied to this letter vide Annexure R-8. Another notice dated

21.11.2001 (Annexure R-9) was issued to the petitioner and reply thereof was furnished by the petitioner school vide Annexure R-10 dated 3.12.2001. Reply was duly considered and found unsatisfactory and thereafter recommendation was made for cancellation of allotment. This is not the case where no notice was issued rather this is a case where petitioner school was given ample opportunities and petitioner school submitted its reply which was duly considered.

10. For the reasons given herein above, we find no justification to interfere with the judgment passed by the learned Single Judge.

11. The appeal being devoid of merit, must fail, and the same is dismissed with no order as to costs. (ALOK SINGH) JUDGE

18.2.2010 ashish (ADARSH KUMAR GOEL) JUDGE