M.R. No. 40/1995-96

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

Review Application No.3 of 1996-97

IN

M.R.No.40 of 1995-96

1.Suba Singh,

2.Darbara Singh,

3.Sardara Singh

sons of Virsa Singh,

4.Gurcharan Kaur daughter of Virsa Singh,

all residents of village Asman Khera, Tehsil and Distt. Ferozepur. 

……Petitioners

Versus

1.Krishan Baldev,

2.Madan Mohan

3.Surinder Mohan

sons of Hari Chand

all residents of Abohar, District Ferozepur. 

…..Respondents.

Present:            Sh. S.C.Khunger, Advocate, counsel for the petitioners.

                        Sh. Shiv Kumar, Advocate, counsel for the respondents.

                                                                                         ORDER 

1.The brief facts of this case are that land measuring 10 bighas 8 biswas (51 kanal 8 marla) comprising khasra No.532 situated in village Alamgarh, Tehsil Abohar, District Ferozepur belonging to Central Government was sold in open auction to one Lal Singh on 21.3.1959 and as per the claim of the petitioner the possession was also delivered vide Rapat Roznamcha No.422 dated 23.4.1960.  Thereafter one Hari Chand, Predecessor-in-interest of the respondents, claiming to be in possession of the land measuring 2 bighas 17 biswas (14 kanal 5 marlas) out of khasra No.532 as a lessee filed an application on 22.7.1961 for allotment of this land in terms of amended Displaced Persons (C & R) Rules,1960.  His application was rejected by the District Rent & Managing Officer, Ferozepur on 24.10.1961 on the ground that his lease was not renewed after 1957.  Hari Chand filed an appeal against this order which was dismissed by the Settlement Commissioner on 28.6.1962.  Thereafter he filed a revision petition before the Chief Settlement Commissioner, who held vide his order dated 20.10.1962, that since Hari Chand had got the lease renewed he was entitled to the transfer of the area claimed by him.  Pursuantly, Hari Chand applied for demarcation of his portion of khasra No.532.  It was at this stage that Virsa Singh (father of the petitioners and successor-in-interest of Lal Singh) made an application that as he had already purchased the entire khasra No.532 no agreement for sale with Hari Chand could be entered into.  His prayer was, however, rejected by the Settlement Commissioner on 14.1.1963.  The value of 2 bighas 17 biswas of land was assessed as 7,182/- rupees and Hari Chand deposited an initial amount of Rs.1,437/- (being 20% of the assessed value) in the Govt. Treasury on 15.4.1968.  Virsa Singh, thereafter, filed a revision petition which was dismissed on 30.3.1972 on the ground that the earlier order dated 20.10.1962 had not been challenged by him (Virsa Singh).  This was followed by an application under section 33 of the Displaced Persons (C & R) Act, 1954 before the Financial Commissioner (Taxation), Punjab who remanded the case on 8.1.1975.

2.Thereafter followed a series of orders at the level of the Managing Officer-cum-Tehsildar, the Settlement Commissioner and the Chief Settlement Commissioner expressing divergent views on the value of the land and the area Hari Chand was entitled to.  Ultimately in his report dated 12.12.1983 the Tehsildar is said to have assessed the reserve price of land measuring 2 bighas 17 biswas at Rs.69,100.  It was held that since according to chapter V-A of the Displaced Persons (Compensation & Rehabilitation) Rules, a lessee could purchase land upto the value of Rs.15,000/- Hari Chand could be allotted 6 kanals 7 marlas and not more.  However, the Settlement Commissioner on 7.10.1985 ordered transfer of 14 kanals 5 marlas (2 bighas 7 Biswas) land out of khasra No.532 to Hari Chand and the remaining to Virsa Singh. The matter remained under litigation between the parties and ultimately on 30.5.96 the Chief Settlement Commissioner, Ferozepore accepted the appeal of Hari Chand and allotted him 14 kanals 5 marlas of land instead of 6 kanals 7 marlas calculated by the Tehsildar and allowed by the Settlement Commissioner on 26.9.95 and further ordered that this be given to him after payment at the rate of current reserve price prevailing in May, 1996.  This price was required to be worked out by Tehsildar. 

  The matter went in revision before the Financial Commissioner, Revenue, Sh.C.D.Cheema who upheld the order of the Chief Settlement Commissioner on 23^rd July,1996.  The said order was challenged before the Punjab & Haryana High Court by the present petitioners where it was set aside with the following observations on 9.10.1996:-

“Contends that the Rules entitled the respondents to purchase land on the dint of their occupation alone, came into being on 26.11.1960 whereas auction of the land in question had taken place on 25.3.1959 and, therefore, the respondents did not have any right as the rules could not apply retrospectively.  Mr. Khunger further states that this point was taken and raised as well but the Financial Commissioner has not dealt with the same. 

 We dispose of this petition by permitting the petitioner to make an application for review and get decision on the point aforesaid if the same was actually raised before the Financial Commissioner.”

 The present Review application has been filed by the petitioners in pursuance of the orders of the Hon’ble High Court.

3.The main issue revolves around the provisions of Chapter V-A of the Displaced Persons (C & R) Rules, 1955 and Rule 34-C introduced thereunder by an amendment in 1960, and its applicability.The case of the petitioners is that the land comprising khasra No.532 and measuring 10 bighas 8 biswas situated in village Alamgarh, Tehsil Abohar, District Ferozepur owned by the Central Govt., was sold in open auction to Lal Singh father of Virsa Singh on 21.3.59 and the possession of the land was also delivered to him vide Rapat Roznamacha No.422, dated 23.4.1960.The jurisdiction of the Municipal Council, Abohar was extended and the said land fell in the jurisdiction of the Council and it was treated as Urban agricultural land.Thereafter the amended Rules 1960 came into force under which urban agricultural land could be transferred to lessees/sub-lessees if certain conditions were satisfied.In pursuance of this amendment Hari Chand, predecessor-in-interest of Respondents 1 to 3, made an application on 22.7.61 for transfer of the area measuring 2 bighas 17 biswas which was a part of khasra No.532.He claimed that he was a lessee w.e.f. January, 1956 and he was entitled to the allotment of the said land.This application was rejected by District Rent and Managing Officer, Ferozepur, vide order dated 24.10.61.

 The case of the petitioners is that rules 34-A to 34-H of the amended Rules which authorises the allotment of evacuee agricultural land situated in urban areas to lessees/sub-lessees came into being through notification published in the gazette of India dated 26.11.1960.  It was a consequence of the said notification that Hari Chand, predecessor-in-interest of  Respondents No.1 to 3 made an application for allotment of the said land.  It has been argued that it is well settled law that a statute is not to be construed to operate retrospectively so as to take away or impair a vested or substantive right, unless that intention is made manifest by language so plain and unmistakable that there is no possibility of any choice of meanings.  Under these circumstances Hari Chand could not be allotted the said land measuring 14 kanals 5 marlas which already stood auctioned according to Rule 67 of the Rules and the possession of which had already been delivered much before the date of the application filed by Hari Chand.  It is further argued that Rules 34-A to 34-H of the Displaced Persons (C & R) Rules, under which Hari Chand applied on 22.7.61, came into existence on 26.11.1960, whereas possession was delivered to the predecessor-in-interest of the petitioners, even prior to that.  Thus, they had acquired a vested interest in the land and the said rules could not be made applicable in the present case to the detriment of the petitioners.  Mention has also been made in this Review petition to the rulings cited as AIR 1975 S.C. 2275 and AIR 1980 S.C. 1306 where similar interpretation was given in respect of Rule 30 of the Rules (since deleted).  The counsel for the petitioners has also argued that although the land measuring 14 kanals 5 marlas out of the total land comprised in khasra No.532 had been shown as leased out to the said Hari Chand, the latter never remained in actual physical possession but had sub-leased it to one Khiali Ram and this fact is also borne out from a perusal of the khasra girdawari from Sauni 1953 to Sauni 1959.  Since the proviso to Rule 34-C clearly lays down that where any such land or part thereof has been sub-leased to a displaced person and the sub-lessee has been in occupation of such land or part thereof continuously from 1.1.56 then such land shall be allotted to such sub-lessee, even in this view of the matter Hari Chand had no right for allotment of the said land and Khiali Ram never applied for any allotment.  It is also argued before me that, admittedly, Hari Chand was not in possession as he repeatedly made requests for delivery of possession as evident from his various applications on record dated 6.7.65, 29.4.68 and 15.3.73.

4.On behalf of the Respondents it has been agitated that Chapter V-A was inserted after Chapter V of the Displaced Persons (Compensation & Rehabilitation) Rules through and amendment and Rule 34 of the said Chapter clearly states that a person who is lessee since 1.1.1956 can be allotted land upto the value of Rs.10,000/- (later revised to Rs.15,000/-).Since the predecessor-in-interest of the respondents i.e. Hari Chand was a lessee of the land in dispute he was allotted land measuring 2 bighas 17 biswas (14 kanals 5 marlas) whose value worked out to Rs.7,182/- in 1961 and he deposited the amount.The Tehsildar, Sales vide his order dated 12.12.1983 categorically stated in his report that Hari Chand was a lessee from 1.1.1956 to 23.4.69. Since the Rule, though inserted in 1960 provided for allotment to displaced persons who were lessees since 1.1.1956, the intention of the legislature was evidently to make this amendment applicable retrospectively.

 It has been argued that from a perusal of the Rule 34-C the intention of the legislature is very clear that the persons who were lessees since 1.1.1956 are entitled to get allotment upto the value of Rs.10,000/-.  The respondents maintain that the scope of the present review is limited in that the Hon’ble High Court has directed the Financial Commissioner Revenue to decide only whether the amended rules are applicable with retrospective effect or not and no other issue is to be taken up at this stage. 

It has been stated in the written reply to the review application that the predecessor-in-interest of the respondents made an application dated 22.7.1961 to the District rent and Managing Officer for the allotment of the land measuring 2 bighas 17 biswas as he was a lessee since 1.1.1956.  His application was rejected on 24.10.61.  Then he filed an appeal before the Settlement Officer which was also dismissed.  Then he filed a revision petition before the Chief Settlement Commissioner who accepted the same vide his order dated 20.10.1962.  The settlement Commissioner vide his order dated 14.1.1963 cancelled the sale of plot in favour of Virsa and allowed the transfer of 2 bighas 17 biswas (14 kanals 5 marlas) out of the total land measuring 10 bighas 8 biswas (50 kanals 8 marlas) the value of which was assessed at 7,182/- rupees 20% of the amount i.e. Rs.1437/- was deposited on 15.4.68.  At the time of demarcation of the land the predecessor-in-interest of the petitioners filed objections which were rejected by the Settlement Commissioner and thereafter a revision petition was also rejected by the Chief Settlement Commissioner on 30.7.72 on the ground that he had not challenged the earlier order dated 20.10.62.  Thus the order dated 20.10.62 had attained finality and the petitioners could not challenge the subsequent orders.  The Learned Financial Commissioner Revenue, Sh.C.D.Cheema had rightly held vide his order dated 23.7.96 that as per report of Tehsildar dated 12.12.1983 Hari Chand was a lessee from 1.1.1956 to 23.4.69 and the respondents are, therefore, entitled to land measuring 2 bighas 17 biswas.

5.I have heard the arguments of the parties and have also gone through the record.I do not agree with the view taken by the counsel for the respondents that the scope of the review is restricted to the legal point. Since law cannot be interpreted in a vacuum, a detailed scrutiny of the record to determine the facts in the light of the legal position is inevitable.I have before me the file in which land was auctioned to Virsa Singh on 21.3.1959, as also the file in which Hari Chand predecessor-in-interest of the respondents, applied for allotment of a part of Khasra No.532 min. The fact that Khasra No.532 measuring 10 bighas 8 biswas (51 kanal 8 marlas) was auctioned on 21.3.1959 has not been disputed.Similarly the fact that Hari Chand applied on 22.7.61 for allotment of a part of khasra No.532 (2 bighas 17 biswas) on 22.7.61 is also not disputed.It is also not disputed that the amended rules were published in the Gazette on 26.11.60.The record shows that the value of claim of Lal Singh father of Virsa Singh was assessed at Rs.1,09,425/-.Lal Singh is shown as having offered a bid of Rs.22500/- for Khasra No.532 and was adjudged the highest bidder.Lal Singh is shown to have purchased another plot No.78 for an amount of Rs.7100/-.As per record his claim was adjusted against these purchases and nothing was due from him on 31.3.59.The application of Hari Chand shows that he had applied for allotment of this land under the amended Rules, 1960.It is also admitted that the Rules came into operation only on 26.11.60 and the application of Hari Chand was dated 22.7.1961.Thus it is evident that full payment for auction had been received well before Hari Chand even became eligible.This auction had become final, and Lal Singh had become the owner of the entire area of the disputed Khasra No.532.Therefore, to hold that Hari Chand’s claim, if any, created through a notification dated 26.11.60, would get preference over Lal Singh’s right created in 1959 would be taking an erroneous view of the matter.The transaction in relation to auction to Lal Singh had been completed well before the rule came into force on 26.11.60, and the fait accompli cannot be disturbed not withstanding the subsequent amendment.

6. A reading of the application of Hari Chand shows that he did not mention the fact that auction had already taken place on 21.3.59 in favour of Lal Singh.  He ingeniously wrote in his application at Sr.No.4 of the proforma that he was a lessee, and Sh.Khiali Ram etc. were sub-lessees but they were non-Pakistanis and they had not applied for this land.  Again at Sr.No.5 of his application he wrote that sub-lessees are local and that they had not applied for land.  He applied for only 2 bighas 17 biswas out of khasra No.532.  While rejecting his application dated 22.7.61, it was recorded that the lessees had not got the lease renewed after 1957 and he had no interest in the transfer of any land as lessee.  On 25.5.1962 the Managing Officer went to the extent of recording that land, if available, should be included in the next auction programme. 

The order of the Settlement Officer dated 28.6.1962 with powers of Settlement Commissioner, Jalandhar makes an interesting reading.  It is placed at page 27 (red ink) of the allotment file of Hari Chand. It runs as under:-

“I have gone through the record of the District Rent & Managing Officer the perusal of which indicates that the applicant did not get his lease renewed after year 1957 and as such there is no impropriety in the order of the District Rent & Managing Officer.  Besides, the order appealed against is dated 24^th October, 1961, whereas the appellant filed the appeal on 25.5.62 and as such the appeal is hopelessly barred by time.  I, therefore, dismiss the appeal on the point of limitation as well as on merits.”

Thereafter the Chief Settlement Commissioner passed the following order in revision on 20.10.62 which is at page 25 (red ink) of same file:-

“It has been now decided by the Ministry that where a person continues to be in occupation of the land, as lessee or sub-lessee it may be transferred to him and the condition of renewal of lease may be waived vide letter No.26(3)/L&R/62, dated 2.3.1962.  The perusal of the khasra girdawari shows that the petitioner has been in continuous possession of the land since beginning of 1953, without a break.  As such despite the non-renewal of the lease, he is entitled to the transfer of the land.  Consequently the petition is accepted and the order of the Officer below is set aside and the case is sent back for reprocessing accordingly.”

The file dealing with application of Hari Chand and these orders shows that while taking decision on the application of Hari Chand the decision makers were oblivious of the vested rights of Lal Singh as owner had already been created at a much earlier date and the same could not be jeopardized.  It is further noted that Hari Chand deposited 20% of Rs.7,187/- as late as 1968 for reasons not apparent on the records, and the remaining amount much later.  In that view of the matter also there is no merit in the claim of the respondents.  As already stated law cannot be interpreted in a vacuum; the rule under which Hari Chand applied came into existence on 26.11.60 and much before that Lal Singh had already purchased the land in auction and the transaction stood completed.  Thus the interest of Lal Singh in the disputed land was absolute and complete before that. Hari Chand had no right to the allotment of a portion of Khasra No.532 as the entire khasra number already stood conclusively and finally transferred in favour of Lal Singh.  In that view of the matter there is no substance in the claim of the Respondents and this review petition is accordingly accepted.

                        Announced.

   (Shyama Mann)

Chandigarh, dated                                                                               Financial Commissioner Revenue,

The 25^th July, 2000                                                                                                   Punjab.