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PETITIONER: PIARA SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB & OTHERS

DATE OF JUDGMENT:       10/07/2000

BENCH: A.P.  MISRA, J.  & M.B.  SHAH.  J.

JUDGMENT:

Shah, J.

       This  appeal  is  filed against the judgment  and  order dated  21st August, 1989 passed by the High Court of Punjab  and Haryana  in  C.W.P.No.   4692  of 1989 whereby  the  High  Court dismissed  the  same  summarily  by upholding  the  order  dated 6.9.1988   passed   by  the   Financial   Commissioner   Revenue (Respondent  No.1),  who  rejected  the Misc.   Reh.   No.42  of 1987-88 filed by the appellant under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the Act).

       The  dispute  in  the present appeal  pertains  to  land admeasuring  2  Kanals 12 Marlas out of Khasra  No.28//23,  24/2 which admeasures 5 Kanals 12 Marlas situated in village Khokhar, tehsil  Dasuya,  district  Hoshiarpur,   Punjab.   It  has  been contended  that  the  said  land  was  low-lying  land  and  was classified  as gair mumkin toba i.e.  pond or tank land, which was  not  cultivated  for  more than 10 years.   That  land  was evacuee property within the meaning of Section 2 (c) of the Act. It  is  the contention of respondent No.2 that on 8.12.1959  the Tehsildar  (Sales) put up for auction a parcel of land stated to be  brick  kiln property No.25, total admeasuring 13  Kanals  10 Marlas,  which  was  gair  mumkin bhatta.   According  to  the appellant,  what  was auctioned was gair mumkin bhatta land  and not the land in dispute which was known as gair mumkin toba.  In the  said  auction, land was purchased by respondent  No.2.   On 21st  March,  1964  a sale certificate was issued  by  the  H.O. (Sales),  Jalandhar of the Rehabilitation Department, Government of  India.   By  some  error  the   name  of  the  village   was inaccurately  mentioned and the schedule in the sale certificate read  property  No.25 brick kiln situated in  village  Cholong, district  Hoshiarpur.   No  khasra numbers were  given  in  the original  sale certificate to identify the property.  It is also admitted position that because of acquisition of the land by the Railways  out  of  the auctioned property, respondent  no.2  was entitled to only a total area admeasuring 7 Kanals and 6 Marlas. On  17.4.1964  part  of this property  being  Khasra  No.28/17/1 admeasuring  7  Kanals  18  Marlas was mutated in  the  name  of respondent  No.2  for  a period of 14  years.   Respondent  No.2 remained  satisfied  with  the  mutation   and  took  no  steps. However,  on 22.5.1978 he filed an application for issuance of a corrigendum   and   the  concerned   Managing   Officer   issued corrigendum  to  the effect that auction land comprised  Khasra No.R/28/17  total admeasuring 4 Kanals and 14 Marlas in  village

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Khokhar.  This corrigendum was issued after a site report  from the Tehsildar (Sales), Hoshiarpur.

       It  is the contention of the appellant that the land  in dispute Khasra

       No.R-28//23,  24/2 was also evacuee land and in  1978-79 the appellant was inducted as a tenant.  At the time of grant of such  land  to the appellant, it has been recorded as  low-lying waste  land (pond land) which appellant levelled, fertilised and irrigated to make it fit for growing green fodder and thereafter in 1985 onwards the appellant was growing sugarcane thereon.

       After  grant  of  land  to   the  appellant  as   tenant respondent  No.2 filed an application on 25.8.1982 for issue  of further  corrigendum for including the land which was granted to the  appellant  by stating that it was also sold to him  by  the auction  held  in  1959.  That application was rejected  by  the Tehsildar  (Sales)  by  order dated 9.2.1983 (Annexure  H)  by holding  that  the  Assistant Settlement Officer  (Sales)  after having examined the case papers of the Tehsildar, Hoshiarpur had issued  corrigendum  on  22.5.1978  and had  issued  fresh  sale certificate  mentioning Khasra No.28//17/2 and 18, admeasuring 4 Kanals  14 Marlas of village Khokhar, district Hoshiarpur.   The request  of  respondent No.2 for further correction in the  sale certificate  was  not acceded to as the corrigendum  was  issued after  proper  verification  and  after  obtaining  report  from Tehsildar.

       Meanwhile,  the land held by appellant-tenant was put to auction  on 30.12.1982 and the appellant was the highest  bidder for  purchase of the said land.  However, the Tehsildar  (Sales) by  order  dated 30.1.1985 rejected the said auction by  holding that there was defective proclamation (Annexure- I).

       Against   the  order  dated   9.2.1983  passed  by   the Tehsildar,  respondent No.2 preferred appeal under Section 22 of the  Act  before  the Settlement  Commissioner,  Mohali,  Punjab without joining the appellant as party- respondent.  That appeal was  allowed  by order dated 01.12.1983 with a direction to  the Tehsildar  (Sales)  to examine the relevant revenue  record  and issue  a fresh corrigendum after hearing the respondent.  In the said  order, it was observed that the land purchased at the time of  auction was described as gair mumkin bhatta and because of the  clerical  omission  lesser  area   was  mentioned  in   the corrigendum  issued  without  comparing the  pre-  consolidation khasra  numbers  with the post consolidation killa numbers.   He observed  that  the  clerical mistakes can be rectified  at  any time.   On  the basis of the said order without considering  any thing  a corrigendum for sale certificate was issued on 6.2.1985 including the land which was in possession of the appellant.

       Against  that order, appellant preferred appeal/revision before the Deputy Commissioner, Hoshiarpur (The Chief Settlement Commissioner  under  the  Act) wherein it was pointed  out  that corrigendum  was issued without hearing the appellant and it can only  be  issued if there is any clerical or authentic  omission but it cannot be issued for giving alternative area.

       Meanwhile, the appellant filed Civil Suit No.168 of 1986

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before  Sub  Judge, Dasuya for permanent injunction  restraining respondent  No.2 not to interfere in any manner in the  peaceful possession  of the land measuring 2 Kanals 12 Marlas situated in village   Khokhar,  tehsil  Dasuya.    That  suit  was   decreed restraining  respondent  No.2 from interfering in any manner  in peaceful  possession of the land in dispute except by  following due  course  of  law.  Against that Civil Appeal No.64  of  1986 filed  before  the District Court was dismissed on 6.10.1986  by the Addl.  District Judge, Hoshiarpur.

       Thereafter,  appeal/revision  filed  against  the  order dated  1.12.1983 was heard by the Chief Settlement Commissioner, Hoshiarpur, which was dismissed on the ground that the appellant did  not  have  any  locus standi to file  the  said  appeal  or revision  as  auction  in his favour had been cancelled  by  the Settlement  Commissioner.  He also observed that under the rules there is no bar on issuing of second or more corrigendum if only arithmetic error is sought to be corrected.

       That   order  was  challenged   before   the   Financial Commissioner  (Revenue)  under  Section 33 of  the  Act.   After hearing the parties and recording the contentions raised by them in  detail,  the Financial Commissioner held that the  appellant was not entitled to any prior notice of hearing before rejection of   his   bid  because  Rule  90  of  the   Displaced   Persons (Compensation  & Rehabilitation) Rules, 1955 gives discretion to the  Settlement Commissioner to accept or reject appeals without assigning any reasons.  He also held that transfer of additional land  in  favour  of  respondent no.2 was  well  considered  and justified  and, therefore, the revision was dismissed.   Against that  order  writ  petition  was   filed  which  was   summarily dismissed.  That order is challenged in this appeal.

       Dr.   Roxna  Swami,  learned counsel appearing  for  the appellant   vehemently  submitted  that   order  passed  by  the authorities below issuing so- called corrigendum is, on the face of  it,  arbitrary, illegal and is passed to  favour  respondent no.2.   It has been pointed out that auction sale took place  in 1959.   Respondent  no.2 remained in possession of the  property purchased  by  him since then and he never raised any  objection that  the  possession of the auctioned property was  not  handed over  to  him or lesser area was given to him, for more than  23 years.   It is also submitted that even in 1978 when  respondent no.2 requested for mentioning of correct name of the village, at that  time also he had not submitted that the area of land which was  given to him was less than what was auctioned.  She further pointed  out  that  Tehsildar rightly first  rejected  the  said application  by  order  dated  9.2.1983 yet  in  appeal  without verification  of  any record and without issuing notice  to  the appellant  who was in possession of the property as a tenant the order was set aside and matter was remanded to the Tehsildar for fresh  decision  by the Settlement Commissioner.   Surprisingly, without  holding  any enquiry, on the basis of the said order  a corrigendum  was  issued on 6.2.1985.  This indicates  that  the corrigendum  dated  6.2.1985  is without any basis  and  totally arbitrary.   She also submitted that the authorities below erred in  holding  that the appellant was not having any locus  standi without considering the fact that the possession of the land was handed  over  to  the  appellant in 1978-79;  that  he  made  it cultivable and thereafter purchased the same in an auction which took   place  on  30.12.1982.   That   auction  was  set   aside arbitrarily without issuing any notice to the appellant by order

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dated  30.1.1985  on  the  ground   that  there  was   defective proclamation   for  sale.   On  the   basis  of  the   aforesaid submission,  learned  counsel  submitted  that  the  High  Court materially  erred  in  not exercising its  jurisdiction  and  in rejecting the writ petition summarily.  As against this, learned counsel  for respondent no.2 submitted that the order passed  by the authorities was based on record of auction held in 1959 and, therefore,  authorities  were  having   jurisdiction  to   issue corrigendum  in the year 1982.  He further vehemently  submitted that  the order passed by the authorities is based upon  finding of  fact  and,  therefore,  the High Court  rightly  refused  to entertain  the  writ  petition and hence this appeal  should  be dismissed.

       From  the facts stated above and from the record, it  is apparent  that  order issuing so called corrigendum  for  giving possession of additional land is grossly arbitrary because:

       (a)  Auction of the land stated to be the property No.25 was  sold  in the year 1959 and the possession of the said  land was   handed  over  to  respondent   no.2  on  8.12.1959.    The authorities  issued  the sale certificate on 21.3.1964  for  the land purchased at the time of auction.  At that time, respondent no.2  never raised an objection that he was not given possession of the entire area of the land auctioned and sold in his favour.

       (b)  In the year 1978, possession of the land in dispute was  given  to  the appellant as a tenant.  At  that  time  also respondent  no.2  had  not raised any objection  that  the  said property was sold to him in the auction.

       (c)  On  22.5.1978 respondent no.2 filed an  application for  issuance of corrigendum and the concerned Managing  Officer issued  corrigendum  to  the  effect  that  the  auctioned  land comprised in Khasra No.R/28/17 admeasuring 4 Kanals 14 Marlas in village  Khokhar.   This  corrigendum was issued  after  a  site report  from  Tehsildar (Sales), Hoshiarpur.  At that time  also respondent no.2 had not raised any objection that site report or the  corrigendum  issued by the concerned Managing  Officer  was incorrect.

       (d)  Respondent  no.2  applied  only  on  25.9.1982  for issuing  of  fresh corrigendum correcting the  sale  certificate issued  in his favour with the request to include the portion of the  land  which was in possession of the appellant since  1978. The  said  application  was rightly rejected  by  the  Tehsildar (Sales)  by order dated 9.2.1983.  The said order was set  aside in  appeal and the matter was remanded to the Tehsildar  (Sales) to  examine the relevant record and to issue a fresh corrigendum after   hearing  respondent  no.2.   It  appears  that   without recording  any  reason  and  without  considering  anything  the Tehsildar  issued  the  corrigendum (Annexure K)  on  6.2.1985 including the land which was in possession of the appellant.

       (e)  It is mentioned in the orders that what was sold to respondent  no.2  in a public auction held in 1959 was a  brick kiln  property no.25, which was known as gair mumkin  bhatta. As against that, the land on which the appellant was inducted as a tenant was classified as gair mumkin toba i.e.  pond or tank land.

       Further,  it appears on the record that some portion  of the  land  which  was  sold by auction to  respondent  no.2  was

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acquired  by  railways and without considering this  aspect  the impugned  order is passed.  Authorities have also not considered the effect of consolidation proceedings.

       In  any case, in the present case it cannot be said that there  is  clerical or arithmetical error in  mentioning  khasra number  or  its area in the sale certificate.  As such, what  is contended  by  respondent no.2 is  the possession of  the  land which  was  sold by auction in his favour in 1959 is not  handed over and only a part of the land was handed over to him in 1959. This  dispute  he raised in 1982, that means, after lapse of  23 years.   Considering  the long lapse of time and the  fact  that there  is  no  question  of clerical or  arithmetic  error,  the authorities  ought  not  to have  exercised  jurisdiction  under Section  25(2)  of the Act which only empowers the authority  to correct clerical or arithmetical mistakes in any order or errors arising therein from any accidental slip or omission.  Under the guise  of  corrigendum authorities have passed an order  handing over possession of additional land in favour of Respondent No.2. It  is also apparent that the Chief Settlement Commissioner  has not  applied  his  mind to the facts of the case  and  has  only observed  that there is no bar on issuing the second corrigendum or more corrigendum in correcting the arithmetical error.

       Further, the Chief Settlement Commissioner ought to have considered  the fact that the appellant was in possession of the land  as he was inducted as a tenant since 1978.  Therefore,  he was  having locus standi to file an appeal against the so-called corrigendum   granting   additional  land   which  was  in   his possession, to respondent no.2.

       Lastly,  we find much force in the contention raised  by the  learned  counsel for the appellant that  Tehsildar  (Sales) erred  in  passing  the  order dated  30.1.1985  (Annexure  ’I) setting aside the auction sale dated 30.12.1982 on the ground of defective  proclamation  without  issuing   any  notice  to  the appellant.  Tehsildar (Sales) ought to have heard the appellant, whose  bid  was  highest and was accepted on  30.12.1982  before passing  the  impugned order after three years.  In the  present case,  the appellant was in possession of the land as a  tenant. His  bid  was accepted and if that bid was to be set aside,  his (appellants)  rights  would  be certainly  adversely  affected, therefore,  he  was  required  to  be  heard.   Since  no   such opportunity  was  afforded to the appellant before passing  such order,  it  requires  to be quashed.  [Re:   Surinder  Singh  v. Central Government and others, (1986) 4 SCC 667].

       In  view of the aforesaid discussion, the impugned order passed  by the High Court dismissing the writ petition, filed by the  appellant,  in limine is set aside.  The corrigendum  dated 6.2.1985 (Annexure K) issued by the Tehsildar-cum-M.O., Dasuya correcting  the  sale certificate by including the land held  by the appellant as a tenant issued in favour of respondent no.2 is quashed and set aside.  Consequently, the impugned orders passed by the Financial Commissioner Revenue and Secretary to Govt.  of Punjab,  Rehabilitation  Department and the order passed by  the Chief  Settlement  Commissioner, Hoshiarpur are set aside.   The order  (Annexure  I) dated 30.1.1985 passed by  the  Tehsildar (Sales)  setting  aside  the auction dated  30.12.1982  is  also quashed.   The  appeal  stands disposed of accordingly  with  no order as to costs.

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