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CASE NO.: Appeal (civil) 3756  of  1991

PETITIONER: LAKHPAT RAI JUNEJA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.  .

DATE OF JUDGMENT:       23/02/2000

BENCH: S.S.Ahamad, Y.K.Sabharwal

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T

     Sabharwal, J.

     The  dispute relates to a fairly big property  situate at  Palwal, District Faridabad.  It comprises of a big sarai and a dozen adjoining shops on the ground floor besides flat on the first floor and open land.  It is an evacuee property acquired  by  competent  authority under  Displaced  Persons (Compensation  and Rehabilitation) Act, 1954 (for short ‘the Act’).   Apart  from the appellant, there are other  persons also  who claim to be in possession of part of the property. In  April  1969, the Chief Settlement Commissioner  directed the  sale  and  transfer of the property in  favour  of  the appellant for a sale consideration of about Rs.17,000/-.  In May  1969,  the  sale deed was executed  and  registered  in favour  of the appellant.  Soon thereafter, a petition under Section  33  of  the  Act   was  filed  before  the  Central Government  by 11 persons challenging the transfer and  sale in  favour  of  the appellant pursuant to the order  of  the Chief   Settlement   Commissioner.    The  petition   though initially  filed  before  the Central Government  was  later transferred  for disposal to the Commissioner and  Secretary to the Government of Haryana, Rehabilitation Department, who was  exercising  powers  of  the  Central  Government  under Section  33  of  the Act.  The property was  transferred  in favour  of  the appellant treating it to be  an  indivisible single property.

     Section 34 of the Act, inter alia, stipulates that the Central  Government may direct that any of its power be also exercised  by such officer or authority as may be  specified in  the  notification.  By a notification dated 17th  April, 1970,  the  Government  of  India,  in  exercise  of  powers conferred by sub-section 1 of Section 34 of the Act directed that powers exercisable by it under sub-section 4 of Section 24,  28 and Section 33 of the Act shall be exercisable  also

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by   the   Secretary   to   the   Government   of   Haryana, Rehabilitation   Department,  in   respect  of   proceedings pertaining  to acquired evacuee properties and lands situate within the State of Haryana.

     By  an  Order dated 8th March, 1973, the Secretary  to the  Government  of  Haryana  in exercise  of  powers  under Section  33  of  the  Act   cancelled  the  order  of  Chief Settlement  Commissioner  of April, 1969 directing  transfer and  sale  of  the  property  to  the  appellant  at   about Rs.17,000/-  and  consequently,  sale  and  conveyance  deed issued  in favour of the appellant in May, 1969 was also set aside.   The  said  order  inter   alia  notices  that   the examination  of whatever record was made available throws  a good  deal  of light on the sordid affair of transfer.   The order   also  notices  that   despite  various  letters  and reminders,  attempts  were made to withhold the  record  and requisite  files.   It  further   notices  that  the  entire mischief  of  transfer  of property  for  about  Rs.17,000/- occurred  because  of  misleading  report  by  the  Regional Settlement  Commissioner.   The  record   showed  that   the property  had  been  valued  in   December  1967  at   about Rs.54,000/-  and earlier in October, 1967, the market  value had  been assessed at about Rs.75,000/-.  In this view,  the order  concludes that it was clear that despite existence of evaluation  assessment by competent officers of much  higher market  value  which  must been suppressed due  to  ulterior motives,  the  Regional Settlement Commissioner  obtained  a convenient  low  evaluation  report with a  view  to  favour someone  and misguide the Chief Settlement Commissioner  and thus  misled  him into passing of order approving  sale  for about Rs.17,000/-.  It has also been noticed that worse than the  suppression of the correct market value was the fact of suppression  of  the pendency of applications of others  who were  claiming  right of transfer of the property  and  were also protesting about the efforts being made to transfer the property  surreptitiously to the appellant.  A fear had been expressed  by others that without taking into  consideration their  rights  based  on occupation etc., the  property  was being  sought  to  be  transferred to one  person  in  utter disregard  of  their rights of occupation.   The  conclusion reached  was that property was ordered to be transferred  at gross  under valuation and also by overlooking the claim  of others.  Ever since the passing of this order, the appellant has  undertaken  in  last  about  three  decades  protracted litigation which we would presently notice.

     The  order dated 8th March, 1973 was first  challenged by the appellant by filing a writ petition in the High Court of  Punjab and Haryana.  That writ petition was dismissed on 10th August, 1973 by passing the following order :-

     "Dismissed,  as  Mr.   Basu wishes to  file  a  review application before the authority."

     The  review  petition  filed  by  the  appellant   was dismissed  by Shri D.D.  Sharma on 21st November, 1973 being untenable.

     A  second writ petition was filed in the High Court of Punjab  and Haryana challenging the orders dated 8th  March, 1973  and 21st November, 1973.  The said writ petition  (CWP No.881  of 1974) was dismissed by a learned single Judge  of the  said  court on 10th September, 1982 inter alia  holding

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that  the  appellant  did not seek permission nor  any  such permission  was  granted in terms of order 23 Rule 1 of  the Code of Civil Procedure to file another petition against the same  order  of the authority.  The appellant ought to  have obtained  permission  of  the Court when  the  earlier  writ petition  was dismissed on the statement of the counsel  for the  appellant  that  he wanted to file  a  review  petition before  the  authority.   Even on merits, it  was  found  by learned  single  judge  that the authority  had  given  good reasons  for setting aside the order of the Chief Settlement Commissioner dated 19th April, 1969 allowing the transfer of the  property  as one unit in favour of the  appellant.   In this view, the court held that even on merits, the appellant could not impugn the order dated 8th March, 1973.

     Now,  on  or  about  5th November, 1982,  a  suit  for declaration and permanent injunction was filed pleading that the  orders  dated 8th March, 1973 and 21st  November,  1973 passed  by  Shri  D.D.  Sharma are null,  void  and  without jurisdiction  and not binding on the plaintiff.  A decree of declaration  was sought that and the plaintiff is the  owner of the suit property besides seeking consequential relief of permanent injunction.  The suit was dismissed by the learned subordinate  Judge on 11th June, 1987.  The first appeal was dismissed  by Addl.  District Judge, Faridabad on 31st July, 1987 and second appeal by the High Court on 4th March, 1992. It was inter alia held that in view of the dismissal of Writ Petition  No.   881  of  1974, the  suit  had  been  rightly dismissed.   The  judgment of the High Court dismissing  the second appeal of the appellant is under challenge before us.

     The  first  contention urged by Shri  Sachar,  learned counsel  for  the  appellant  is  that  Shri  D.D.   Sharma, Secretary, Government of Haryana, had no jurisdiction to set aside the order of the Chief Settlement Commissioner and the consequential  conveyance  deed in favour of the  appellant. The  order  of cancellation passed by Shri Sharma was  on  a petition  filed  under Section 33 of the Act by 11  persons. The  said  petition had been initially filed before  Central Government  but was transferred to be dealt by the Secretary to  Government  of Haryana, Rehabilitation Department  after the powers had been delegated in terms of notification dated 17th  April, 1970.  The contention of Shri Sachar,  however, is  that  the  delegation was not in respect of  all  powers exercisable  under  Section 33 of the Act.  The  delegation, learned counsel contends, was only in respect of proceedings pertaining  to acquired evacuee properties and land  situate in  the  State  of Haryana.  It is not in dispute  that  the property  is  situate  in  the  State  of  Haryana  but  the contention of learned counsel is that the proceedings before Shri  Sharma  were  not  in   respect  of  acquired  evacuee property.   The  property in question ceased to be  acquired evacuee  property after the execution of the conveyance deed in  favour  of  the  appellant, is the  contention  of  Shri Sachar.   We are unable to accept the construction sought to be  placed by learned counsel on the notification dated 17th April,  1970.  Reference in the notification to  proceedings pertaining  to  acquired evacuee properties and land, it  is evident  from  a plain reading, includes the proceedings  to challenge  the orders directing the transfer of an  acquired property.   Shri Sharma was exercising powers of the Central Government under Section 33 of the Act while considering the petition  which  ultimately led to the passing of the  order dated  8th March, 1973.  Shri Sachar placed strong  reliance on  decision  of  this court in Gurbax Singh  V.   Financial

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Commissioner  and  Anr.   ([1991]  Suppl.  1  SCC  167),  in particular,  to  the observations made in paras 12 to 14  of the  judgment  that  the  sale in favour  of  the  appellant culminating  in issue of the sale certificate in his  favour has  the  effect  of taking away the land from the  pool  of evacuee properties.  The said observations cannot be seen in isolation.  In fact, the decision relied upon is against the view point sought to be stressed for the appellant.  Para 14 of  the  judgment says that the  rehabilitation  authorities could deal with the matter of cancellation of sale according to  law.   That is what has exactly happened in the  present case.   The  order of the Chief Settlement Commissioner  and consequential  conveyance  deed  have   been  cancelled   in proceedings  under Section 33 of the Act.  If the contention urged on behalf of the appellant is to be accepted, it would mean  that  once  the  sale deed is  executed,  the  Central Government  would  be divested of its statutory power  under Section  33  of  the Act despite illegality  of  the  order. Section  33 vests in Central Government wide residuary power to  call for the record of any proceedings under the Act and pass  such  order in relation thereto as in its opinion  the circumstances  and  the  case  may require  and  as  is  not inconsistent  with any of the provisions of the Act or rules made  thereunder.   The  acceptance  of  the  contention  of learned counsel would make the provision nugatory.

     We   are  also  unable  to  accept   the   alternative contention  that  directions  be  issued  to  rehabilitation authorities  to  transfer  the property jointly  with  other persons  who  may  be found entitled thereto at  the  market value  of  the year 1969 or at best of 1973 in view  of  the fact  that  the  appellant  has been in  possession  of  the property  for nearly half a century.  In view of the conduct of  the appellant in the manner in which he tried to get the property  transferred  in  his favour, we do  not  find  any equities  in his favour so as to issue the directions sought for.   We  find  no infirmity in the judgment  of  the  High Court.  The appeal is accordingly dismissed with costs.