M/s Mohan Singh & Co. Vs State of Punjab & others.

IN THE COURT OF MRS. SHYAMA MANN, IAS, FINANCIAL COMMISSIONER REVENUE, PUNJAB, CHANDIGARH.

M.R.No.47 of 2000

M/s Mohan Singh & Company through Sh. Mohan Singh son of Sh. Arjan Singh of village Surakhpur, Tehsil & District Kapurthala.

…..Petitioner.

Versus

1. State of Punjab through F.C. & Secretary to the Govt. of Punjab, Department of Revenue & Rehabilitation, Punjab Civil Sectt.
2. Sh. Narinder Singh Bath, PCS, Sub Divisional Magistrate, Kapurthala.
3. Tehsildar (Mahal & Sales), Kapurthala.

Respondents.

Present during:  Sh. A.B.S.Basu, Advocate, counsel for the petitioners.

Arguments on

5.3.2001

ORDER

One Sh. Balwant Singh s/o Kushal Singh resident of 160 Green Park, Jalandhar made a complaint on 7.7.1998 regarding the sale of Govt. land measuring 27 kanals bearing Khasra No.5848/4914 situated in Revenue estate of Kapurthala to M/s Mohan Singh & Company. It was alleged in said complaint that 27 kanals of land adjoining the land in possession of complainant had been auctioned on 28.1.1982 illegally, without proper publicity, in connivance with the officers of Revenue Department. The complainant expressed his desire to purchase this land as he was in possession of land measuring 3 kanals whereas the remaining land (24 kanals) was in possession of Military Authorities. This complaint was entrusted by the then Financial Commissioner Revenue, Shri N.K.Arora to the Commissioner, Jalandhar Division who submitted his report vide a demi-official letter dated 22.1.1999. He expressed his doubts regarding the validity of the orders passed by the Deputy Commissioner regarding confirmation of sale and deposit of the balance amount of the auction price as the auction was deemed to be cancelled in terms of the conditions of the bid for non-payment of the remaining amount and the auction-purchaser having not availed of the extension in time for payment of the balance amount.

2. A perusal of the record shows that the aforesaid land measuring 27 kanals was shown as put to auction on 28.1.1982 and the highest bid of Rs.2,00,000 was shown in favour of Mohan Singh and Company of village Surakhpur, Tehsil Kapurthala out of which an amount of Rs.50,000/- was deposited on the spot as earnest money. The sale was confirmed on 20.9.1982 and a notice requiring deposit of the balance amount within 15 days was issued on 13.3.1984. In response to this notice to Mohan Singh & Company, one Wazir Singh filed an application for extension of time for depositing the balance amount. The Settlement Commissioner allowed the deposit of balance amount by 30.4.1984 vide his order dated 26.3.1984. Instead of depositing the amount by the said date Wazir Singh made another application dated 30.4.1984 to Tehsildar Sales, Kapurthala requesting for getting the poles of the Military around the land removed. He asked for extension of 15 days for deposit of the balance amount. No further steps were taken to get the balance amount deposited. After this nobody bothered to deposit the balance amount nor did anybody seek extension there for.

3. Thereafter, it was only on 11.2.1992 that an application was made by Mohan Singh stating that an amount of Rs.50,000/- had been deposited at the time of auction; and he sought permission to deposit the balance amount and further submitted that the possession of the land would be taken “through legal process”. He did not say anything for the delay of 10 years. No further steps were taken even after this application to deposit the balance amount. However, he made another applicatioin on 14.11.1995 seeking permission to deposit the balance amount.

Eventually, the Tehsildar Mahal-cum-Sales, Kapurthala submitted a note dated 29.1.1998 to the Chief Sales Commissioner (Deputy Commissioner) seeking approval of the C.S.C. for receipt of the balance amount of Rs.1,50,500/- with interest in terms of Rule 8(K) of the Punjab Package Deal Properties (Disposal) Rules, 1976. The District Revenue Officer expressed his concurrence in the recommendations of the Tehsildar vide his note dated 26.2.1998 and submitted the case to Deputy Commissioner-cum-Chief Sales Commissioner who passed the following orders dated 28.2.1998:-

“Auction purchaser be asked to deposit the balance amount alongwith interest under Rules within 15 days.”

In compliance with this order Mohan Singh & Company was directed to deposit an amount of Rs.1,50,000/- alongwith interest amounting to Rs.2,32,000/- within 15 days vide letter dated 17.3.1998 issued by Tehsildar Mahal-cum-Sales, Kapurthala. In response to this an amount of Rs.3,82,500/- was deposited on 24.3.1998 through Mohan Singh s/o Arjan Singh. Thereafter, symbolic possession was delivered on 16.6.1998 but this order regarding symbolic possession was cancelled by Sub Divisional Magistrate vide his order dated 10.8.1998. A Civil Writ Petition No.16666 of 1998 was filed by the auction purchaser against the order dated 10.8.1998 of the Sub Divisional Magistrate, Kapurthala. Separately, the matter also came to the notice of the Govt. as brought out in para 1 above and the Hon’ble High Court was informed that on the basis of report of the Commissioner sent vide his D.O.letter dated 22.1.1999 the matter was being probed at the level of the Govt. and final decision would be taken after giving opportunity of being heard to the petitioner. The said Writ Petition was dismissed as withdrawn vide order dated 18.10.2000.

4. I have heard Sh. Wasu, Advocate, counsel for the auction purchaser “Mohan Singh & Co.” and have carefully gone through the record. Shri Wasu argued that since the entire amount of the auction price alongwith interest stood deposited in pursuance of the orders of Chief Sales Commissioner, the Sub Divisional Magistrate was not justified in cancelling the symbolic possession of the auction purchaser over the land measuring 24 kanals out of the land in dispute measuring 27 kanals. He asserted that Mohan Singh & Company was entitled to delivery of possession of the entire land.

5. I am not inclined to find myself in agreement with the submissions made by the learned counsel. The auction had taken place way back on 28.1.1982. Thereafter, extensions were given to the “auction purchaser” from time to time in violation of the terms and conditions of auction which enjoined the auction purchaser to deposit the balance amount within 15 days of the approval of sale. In this case delaying tactics were utilised by the concerned functionaries with the evident object of helping the “auction purchaser” illegally. The Settlement Commissioner allowed the deposit of the balance amount by 30.4.1984 by his order dated 26.3.1984. But instead of depositing the amount one Wazir Singh, whose relationship with the auction purchaser does not stand identified, made another application dated 30.4.1984 seeking extension for depositing the balance amount. Even thereafter the auction purchaser remained lulled into deep slumber and did not take any steps to deposit the balance amount. In this situation it passes ones comprehension as to what prevailed with the Chief Sales Commissioner, Kapurthala to permit the deposit of balance amount with interest vide her order dated 28.2.1998. There was no occasion for condoning the unconscionable default on the part of auction purchaser in wasting more than 14 years in depositing the balance amount without any visible justification. She passed a cryptic order without asking for justification and without saying anything for condoning the time lag of 14 years. This order cannot stand at the touchstone of judicious scrutiny and deserves to be set aside.

6. There is another legal infirmity to afflict the case of the auction purchaser. The legal existence of “Mohan Singh and Company” does not stand established on the record. One faded copy of “Sharakatnama” of doubtful legal value has belatedly been placed on record at pages 117-119 of the auction file which does not in any manner assist in establishing the legal status of “Mohan Singh and Company”. A perusal of the bid-sheet reveals that the winning bidder, namely “Mohan Singh and Company” was not present at the time of auction. The entry at the end of the bid sheet mentions the successful bidder as “Mohan Singh and Company” c/o Mohan Singh son of Arjan Singh. On the right hand side against this entry a faint thumb impression purporting to be of one Mohan Singh has been shown to mark the presence. This glaring irregularity was highlighted even by the Chief Sales Commissioner –cum-Deputy Commissioner, Kapurthala in his note dated 20.5.1997 but did not find any clear explanation. Interestingly in a separate list of persons shown to be present during auction there is no thumb impression of any person by the name of Mohan Singh but there are signatures of one Mohan Singh in Gurmukhi script. The Memorandum of offer was in favour of Mohan Singh son of Arjan Singh. When it came to seeking extension in time for depositing the money it was one Wazir Singh who filed an application on 26.3.84 as also on 30.4.1984 and not Mohan Singh. Eight years later on 11.2.92 it was Mohan Singh who wrote to Tehsildar Kapurthala seeking permission to deposit the balance amount.

7. Another interesting feature of this case is that the provisions of Displaced Persons (C & R) Act and the Punjab Package Deal Properties (Disposal) Act, 1976 are being used inter changeably to suit the convenience of the party. Originally auction of this property was ordered from Jalandhar, if it was package deal property the auction should have been ordered locally at Kapurthala. The various requests for extension in time were also addressed to Settlement Commissioner, Punjab at Jalandhar whereas the S.D.M. Kapurthala in his capacity as Settlement Commissioner was the competent authority. As late as 20.9.96 the Tehsildar addressed a letter to Joint Secretary Rehabilitation at his own level (without routing it through the Deputy Commissioner) recommending a certain sale amount to be paid by the Defence Estate Officer Jalandhar. Suddenly on 29.1.98 and 26.2.98 the very same Tehsildar sought orders from the Deputy Commissioner Kapurthala invoking the provisions of Rule 8(1)(k) of the Punjab Package Deal Properties (Disposal) Rules, 1976.

In terms of rule 90(11) of the Displaced Persons (Compensation and Rehabilitation) Rules the auction purchaser was under statutory obligation to deposit the balance amount within 15 days on receipt of the notice issued on 13.3.1984. But instead one Wazir Singh sought extension in time on 26.3.1984. Even thereafter the auction purchaser failed to deposit the amount and eventually another extension of 15 days was sought vide application dated 30.4.84. But the auction purchaser did not bother to adhere to the extended date also. In such a situation no order of cancellation would be necessary under the Displaced Persons (C & R) Act. In this connection reliance can be placed on a judgement of Delhi High Court in K.N.Kapoor Vs. U.O.I., A.I.R. 1976 Delhi 31. Perhaps the Tehsildar was aware of this provision when he recommended extension of time vide office notes dated 29.1.98 and 26.2.98 for depositing the balance amount by invoking provision of Rule 8(1)(k) of the Punjab Package Deal Properties(Disposal) Rules, 1976. The learned counsel for Mohan Singh and Company has also agitated its claim before the Hon’ble High Court as well as before the undersigned under the provisions of Package Deal Properties (Disposal) Act.

In this context the relevant provisions of the rules framed under the said Act need to be reproduced for a proper appreciation of the case:-

“8(1) Procedure for sale by public auction.-

x x x x

(j ) When a bid has been approved by the Sales Commissioner, the bidder shall produce before the Tehsildar (Sales) or Naib-Tehsildar (Sales), within fifteen days of the receipt of intimation by him of the acceptance of the bid, a challan showing deposit in the Treasury of the balance of the purchase money.

(k) (i) The Sales Commissioner, may, in deserving cases, extend the period of fifteen days specified in clause (j) by such period as he deems fit, but not in any case beyond sixty days. The Chief Sales Commissioner may, in cases of exceptional hardship grant such further extension for the payment of balance price as he may deem proper.

(ii) Where payment of the balance of the purchase money is made after the period of the first extension granted by the Sales Commissioner, an auction purchaser shall deposit alongwith the balance of the purchase money to be deposited under clause (j), interest on such balance from the date of the expiry of the period of extension till the date of deposit at such rate as may be fixed by the Government.

(1) If the balance of the purchase money is not deposited within the period specified in clause (j) or the extended period, as specified in clause (k)(i) the earnest money shall be liable to forfeiture.”

Even after making allowance for the fact that in 1998 the powers of Chief Settlement Commissioner under the Displaced Persons (C&R) Act and Chief Sales Commissioner under the Punjab Package Deal Properties (Disposal) Act and Rules framed thereunder were enjoyed by the same officer namely the Deputy Commissioner; Rule 8(1)(k) does not help the case of the petitioner. No exceptional hardship was stated nor proved. The rate of interest was also not got approved from the Govt. The Deputy Commissioner acted beyond competence.

8. Before parting with this order it may not be out of contest to point out certain irregularities noticed in the conduct of the auction. No-doubt the auction was objected to by one Sh. Naresh Prabhakar Advocate who ultimately chose not to pursue the matter but there are certain matters which elude explanation even on a casual reading of the auction file. Original Munadi was supposed to be conducted by one Nanak Chand ‘Dhoalwala’ stationed at Jalandhar who is shown to have accepted the orders of the Tehsildar, Jalandhar under his signatures on 12.1.1982. How the munadi came to be conducted at Kapurthala by one Kishan Chand Munadiwala on the very same date as made out from a copy of the Rapat Roznamacha is not explained. Secondly, the property was bid for 39 times; “Mohan Singh and Company” did not offer any bid during the earlier 38 bids and even for the 39^th bid the word “Mohan Singh and Company” appears interpolated before the word “Mohan Singh son of Arjan Singh and Company, village Surakhpur Tehsil Kapurthala”. The disputed khasra number is shown at the very end on the Bill of Munadi and the Jamabandi copy also carries the entry relating to this khasra number at the very end after the area for some other khasra numbers has been added and totalled. Again, of the total 39 bids, signatures/thumb impression is available only against seven places. These irregularities are in addition to the legal inirmities in the status of Mohan Singh & Company as already discussed in para 6 above. No doubt the money has been shown to have been deposited the same day but it does not dispel the suspicion that the auction took place only on paper. This could, perhaps explain why the party did not press its claim aggressively in the very beginning and allowed the matter to lie dormant for such a long time. It is also evident that the belated handing over of possession through “Rapat No.712” in the Roznamcha dated 16.6.98 was a sham exercise as land was in possession of the Army authorities.

9. In view of my above discussion and, in exercise of the powers conferred on me by virtue of the provisions of Section 15(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 the order dated 22.2.1998 is set aside as illegal. In the sequeal the auction stands cancelled. In the normal course the amount of Rs.50,000/- should have stood forfeited but considering that the land stood offered by the Govt. to the Defence authorities in the first instance and was never intended for open sale and has been in their occupation the amount of auction money of Rs.50,000/- deposited by the auction purchaser be refunded alongwith interest @ 6% P.A. whereas the balance amount which has been now deposited by the auction purchaser in connivance with the Revenue authorities (officers), be refunded without interest. Immediate steps be taken by the Deputy Commissioner for finalisation of the negotiations with the Defence Authorities regarding the purchase of land by them so that the matter can be clinched at Govt. level. The land in possession of Balwant Singh be got vacated and be disposed of under the prevailing policy of Govt.

  Announced.

( SHYAMA MANN )

Chandigarh, dated                                                                                  Financial Commissioner Revenue,

The 17^th April, 2001.                                                                               Punjab.