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2010 Supreme(P&H) 2047
PUNJAB & HARYANA HIGH COURT
Mukul Mudgal, Jasbir Singh and Vinod K.Sharma JJ.
Niranjan Kaur
Versus
Financial Commissioner, Revenue & Secretary To Government, Punjab
Civil Writ Petition No. 5662 of 1986,
Decided On : JULY 16, 2010
IMPORTANT POINT
Bonafide Transferee--Cancellation of Allotment--Section 41 of the Property Act, will have no application where transfer is held invalid under Sections 19 and 24 of the Displaced Persons Act, as no estoppel can be pleaded against the provisions of the statute
Displaced Person--Non-availability of protection under Section 41 of the T.PAct would not be a bar to the subsequent vendee also being a proper party to contest the order of cancellation by resorting to the provisions of Section 24 and 33 of the Displaced Persons Act.
Headnote:(A) Displaced Persons (Compensation & Rehabilitation) Act, 1954, S. 19, 24 & 33-Transfer of Property Act, S.41-Cancellation of Allotment-Bonafide Transferee-Section 41 of the Property Act, will have no application where transfer is held invalid under Sections 19 and 24 of the Displaced Persons Act, as no estoppel can be pleaded against the provisions of the statute--It would be within the right of the subsequent purchasers to challenge the order of cancellation on merits, but sale in their favour cannot be protected under Section 41 of the Property Act--The subsequent vendee can only claim refund or damages from his vendor.
(B) Transfer of Property Act, S.41-Bonafide Transferee-Ostensible owner-Meaning of-Ostensible owner would include even the transferee from the State Government or the Union Government, as in certain situations, the Union or the State Government can be held to be real owner and the allottee ostensible owner being recorded as such in the revenue record, though he is actually not the owner, by legal fiction, as cancellation is to relate back to date of allotment.
(C) Displaced Persons (Compensation & Rehabilitation) Act, 1954, S. 19 & 24-Transfer of Property Act S. 41-Applicability of- Displaced Persons (Compensation & Rehabilitation) Act is a special Act, whereas the Transfer of Property Act, is a general Act--Provisions of the Property Act, would have no application to orders passed under Sections 19 and 24 of the Act--Provisions of the special statute, would override the provisions of Section 41 of the Property Act.
(D) Transfer of Property Act, S.41-Word Person-Meaning of-Word person would include Union or the State Government, as the "person" has not been defined in the statute, therefore, would need liberal interpretation.
(E) Displaced Persons (Compensation & Rehabilitation) Act, 1954, S. 19 & 24-Transfer of Property Act, S.41-Bonafide Transferee--Sale of property by Ostensible owner--Express or implied consent has to be valid and free consent--In case, the transfer is procured by fraud and mis-representation in absence of bona fide, the plea of bona fide purchase is not available, as it is settled law that the fraud vitiates everything-- However, the fraud and mis-representation is to be on the part of the vendee, or with his consent, by his vendor--In absence thereof, it would be unfair to deny the right to contest to the subsequent vendee--It will be for the party alleging fraud to prove the fraud and misrepresentation, as no presumption can be drawn--Non-availability of protection under Section 41 of the Property Act would not be a bar to the subsequent vendee also being a proper party to contest the order of cancellation by resorting to the provisions of Section 24 and 33 of the Displaced Persons Act.
(F) Transfer of Property Act, S.41-Bonafide Transfer-Ingredients--In order to succeed in a plea of bona fide purchaser, under Section 41 of the Property Act, it is to be proved, that the transferor is ostensible owner--That he is so with the consent express or implied of the real owner--That the transfer is for consideration, and that the transferee has acted in good faith taking reasonable care to ascertain that the transferor had the power to transferee.
Vinod K.Sharma, J.
1. The petitioners have invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, praying for issuance of a writ of certiorary quashing the order dated 12.8.1986, passed by the Financial Commissioner, Revenue & Secretary To Government, Punjab, in exercise of powers conferred under Section 33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as the Act).
2. The facts leading to the filing of the writ petition are that Budha Singh son of Jaimal Singh, father of respondents Nos. 2 and 3, i.e. Malook Singh and Daljit Singh, was allotted 14 Std. acres 1 units of land in village Beri, Tehsil and District Gurdaspur, in lieu of the land abandoned by him in West Pakistan.
3. Sh. Budha Singh died on 10.1.1956 and respondents Nos. 2 and 3 came in possession of the allotted land, but did not acquire the proprietary rights, as the area allotted in village Beri, Tehsil and District Gurdaspur, was not of good quality, as required under Section 10 of the Act.
4. An application was moved by the legal heirs of Budha Singh, to the Rehabilitation Department at Jalandhar, seeking allotment in lieu of the land abandoned by their father in Pakistan. The application was allowed, and they were allotted 14 Std. acres 1 units in the following villages of Kapurthala District in the year 1962-63 :-
i) Village Budha Pindar/199: 7-12 S.As.
ii) Village Dhilwan/96: 1-7 S.As.
iii) Village Subhanpur/1: 2-5 S.As.
iv) Village Bhandal Bet/37: 2.8 S. S.As.
Total 14.1 S.As.
5. They were also conferred with the proprietary rights under Section 10 of the Act, in the form of grant of compensation in lieu of the land left by their father in Pakistan. After acquiring proprietary rights in the land, they sold the land for valuable consideration, without notice to the petitioners, vide registered deeds executed by them on 23.11.1962, 24.7.1963, 2.11.1963 and lastly on 29.8.1967. The possession of the land was handed over to the vendees i.e. the petitioners.
6. Subsequently, during the check of allotments, made to the various land allottees, the Rehabilitation Department found that respondents Nos. 2 and 3 had secured double allotment, whereupon the Managing Officer (Directory), found that the land allotment in village Beri, Tehsil and District Gurdaspur, was not followed by the grant of proprietary rights in favour of respondents Nos. 2 and 3. Whereas, with respect to the allotment made in the Kapurthala District, respondents Nos. 2 and 3, were granted proprietary rights, therefore, he cancelled the allotment made in the name of Budha Singh, father of respondents Nos. 2 and 3, in village Beri, Tehsil and District Gurdaspur, on 21.5.1976.
7. Respondents Nos. 4 and 5, who had purchased the land in village Beri, Tehsil and District Gurdaspur, from respondents Nos. 2 and 3 vide four registered sale deeds challenged the order of cancellation passed by the Managing Officer (Directory), by filing appeal before the appellate authority. The appellate authority set aside the order dated 21.5.1976, and remanded the case to Assistant Registrar-cum-Managing Officer with the direction, that the allotment made to respondents Nos. 2 and 3 in Kapurthala District, should be got cancelled. This order was passed on 24.2.1978.
8. In view of the order passed by the appellate authority, the Assistant Registrar-cum-Managing Officer, made a reference dated 16.6.1978 to the Chief Settlement Commissioner, for cancellation of Kapurthala District land allotment, made to respondents Nos. 2 and 3. The Chief Settlement Commissioner, accepted the reference and cancelled the allotment, vide order dated 5.2.1979, which is claimed by the petitioners to have been done in mechanical manner.
9. The petitioners claimed, that they were never associated by the Managing Officer, Settlement Commissioner or the Chief Settlement Commissioner, while passing orders affecting their rights. The case
