Punjab-Haryana High Court
Budh Ram And Ors vs Financial Comm. And Ors on 27 February, 2025
Neutral Citation No:=2025:PHHC:027592
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-7117-19951995 (O&M)
Date of decision :27.02.2025
BUDH RAM AND OTHERS
...Petitioners
Versus
THE FINANCIAL COMMISSIONER (APPEALS), PUNJAB
AND OTHERS
...Respondents
CORAM: HON'BLE MR. JUSTICE HARSH BUNGER
Present : Mr. Vikas Singh, Advocate
for the petitioners.
Mr. Nirmaljit Singh Diwana, Sr. D.A.G., Punjab.
Mr. G.S. Punia, Sr. Advocate assisted by
Ms. Manleen Kaur, Advocate
for respondents No.4(i),
), 4(iii), 4(v), 5 and 6.
HARSH BUNGER, J.
Prayer in the present writ petition filed under Articles 226/227
of the Constitution of India, is, inter alia, for issuance of a writ in the nature
of certiorari for setting aside the order dated 19.01.1990 (Annexure P
P-13)
13)
passed by the learned Chief Settlement Commissioner, Patiala and order
dated 16.03.1994 (Annexure P-14)
P 14) passed by the learned Financial
Commissioner (Appeals), Punjab.
2. Briefly, the case set up by the petitioners is that petitioner
No.1-Budh
Budh Ram came to India from Bhawalpur State (now forming part of
Pakistan) upon partition of our country in the year 1947 and accordingly,
the arrangements were made for obtaining the revenue records in respect of
the land left by persons migrating from Bhawalpur State. It is stated that
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the non-punjabi/non-claimants were to be settled in seventeen villages of
Rajpura Tehsil and two villages of Sub Tehsil Samana at District Patiala
and as per the then policy decision of the Government, agricultural lands
were allotted to non-punjabi/non-claimants on “temporary basis”. It is
claimed that petitioner No.1-Budh Ram was allotted three shares out of
twenty four shares of agricultural land and possession was also delivered of
the old khasra numbers.
2.1 According to the petitioners, the Government of India, vide its
letter dated 13.01.1957 (Annexure P-2), issued directions to the learned
Chief Settlement Commissioner, New Delhi for the transfer of acquired
evacuee agricultural land to non-punjabi/non-claimant allottees. It is further
stated that vide letter dated 22.07.1960 (Annexure P-3), the Punjab
Government (Department of Rehabilitation) issued instructions that
non-punjabi/non-claimant settled in 17 villages of Rajpura Tehsil, will be
allowed to purchase evacuee agricultural land in their occupation under
Rule 63 of the Displaced Persons (Compensation and Rehabilitation) Rules,
1955 (for short `the 1955 Rules’).
2.2 It is stated that the Deputy Secretary to the Government of
Punjab, Rehabilitation Department, issued letter dated 21.02.1964
(Annexure P-4)to the Tehsildar, Rajpura stating that in accordance with the
instructions of Government of India, the Pepsu Development Board,
Rajpura had allotted the evacuee lands on temporary basis, to non-claimants
in 21 villages of Tehsil Rajpura and two villages of Sub Tehsil Samana and
the said lands were now to be sold to the occupants under Rule 63 of the
1954 Rules, in accordance with the instructions dated 13.01.1957.
2.3 According to the petitioners, the price of the land allotted and
transferred to petitioner No.1-Budh Ram, amounting to Rs.875.93/-
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(including principal and penal interest), as fixed by the department, was
duly deposited on 30.11.1970, as per the directions of the Managing
Officer, issued vide letter dated 19.11.1970.
2.4 It appears that on 08.12.1970, a conveyance deed (Annexure
P-6) was executed in favour of petitioner No.1-Budh Ram, in respect of
land measuring 18 bighas-10 biswas comprised in khasra No.515(1-0),
823 min(1-7), 829(2-11), 830(6-5), 1035/856(3-1), 984/861(8-4) situated in
Village Dhakansu Kalan, Tehsil Rajpura.
2.5 The afore-said conveyance deed is stated to have been
registered on 17.12.1970 and mutation No.2014 was also recorded on
26.05.1971 (Annexure P-8).
2.6 It is stated that petitioner No.1-Budh Ram sold a part of the
afore-said land in favour of Man Singh (petitioner No.10) vide sale deed
No.2575 dated 01.03.1971 and mutation No.2019 was sanctioned in that
regard. Similarly, Budh Ram (petitioner No.1) sold another part of the
afore-said land in favour of one Ram Chand vide sale deed dated
24.03.1971 and mutation No.2027 was recorded. Thereafter, Budh Ram
sold some more part of the afore-said land in favour of Mohan Lal and
others i.e. petitioner No.2 etc., vide sale deed dated 24.02.1971 and
mutation No.2048 was recorded. Budh Ram is stated to have sold more
land vide two sale deeds dated 16.07.1973 in favour of Subhash Chand
(petitioner No.13) and mutation Nos.2130 and 3137 were recorded. It is
also stated that Subhash Chand (petitioner No.13) further sold the land to
petitioners No.11 and 12 and in this manner, they became the full-fledged
owners with possession of the land, in question.
2.7 Petitioners state that respondent No.4-Tara Chand was also
allotted some land in Village Dhakansu Kalan as a non-claimant and a sale
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deed was registered in his favour on 19.11.1984, wherein, two khasra Nos.
i.e. khasra No.823 and 829 were included in his sale deed, although, the
said khasra nos. were also mentioned in the sale deed executed in favour of
petitioner No.1-Budh Ram.
2.8 It transpires that vide an ex-parte order dated 02.01.1984
passed by the Tehsildar (Sales)-cum-Managing Officer, Rajpura, the
allotment of the entire area made in favour of petitioner No.1-Budh Ram
was cancelled and upon learning about the said order dated 02.01.1984,
petitioner No.1-Budh Ram preferred an appeal before the learned
Settlement Commissioner, which was allowed vide order dated 06.05.1986
(Annexure P-9); whereby, the order dated 02.01.1984 was set aside and the
matter was remanded to the Tehsildar (Sales)-cum-Managing Officer,
Punjab for denovo decision.
2.9 The order dated 06.05.1986 (Annexure P-9) was challenged by
respondent No.4-Tara Chand by filing a revision petition before the learned
Chief Settlement Commissioner, Punjab, which was also dismissed vide
order dated 01.12.1986 (Annexure P-10).
2.10 Upon remand, the then Tehsildar-cum-Managing Officer,
Rehabilitation Department, vide order dated 18.05.1987 (Annexure P-11)
held that Budh Ram, had obtained the conveyance deed of the land allotted
to him and the revision petition filed by Tara Chand against order dated
06.05.1986 (Annexure P-9) stand dismissed, therefore, no action can be
taken in the matter and the case was filed.
2.11 It appears that on 08.03.1988, the then Tehsildar-cum-
Managing Officer, Rajpura made a reference to the learned Chief
Settlement Commissioner, Patiala, stating that the allotment of land in
favour of Budh Ram (petitioner No.1) should be cancelled as the said
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allotment was not supported by any record and also that the Civil Court has
declared Tara Chand, to be the owner of the property and the appeal filed
against the afore-said judgment of the trial Court was also dismissed by the
learned Additional District Judge, Patiala on 07.08.1987.
2.12 The afore-said reference dated 08.03.1988 came to be accepted
by the learned Chief Settlement Commissioner, Patiala vide order dated
19.01.1990 (Annexure P-13) directing cancellation of the Conveyance
Deed dated 08.12.1970, executed in favour of petitioner No.1-Budh Ram
and further holding that the sale in favour of Tara Chand (respondent No.4)
was valid.
2.13 Feeling aggrieved against the order dated 19.01.1990
(Annexure P-13), the petitioners i.e. Budh Ram and his vendees, preferred a
petition under Section 33 of the 1954 Act, which was also dismissed vide
order dated 16.03.1994 (Annexure P-14). Hence, the present writ petition.
3. Learned counsel for the petitioners submits that the learned
Chief Settlement Commissioner as well as the learned Financial
Commissioner, have erred in law and fact in passing the impugned order. It
is submitted that the land in question, was rightly transferred in the name of
petitioner No.1-Budh Ram, who had further executed the Sale Deeds in
favour of other petitioners. It is submitted that the learned Chief Settlement
Commissioner should not have set aside the allotment of land/conveyance
deed in favour of petitioner No.1 after a delay of over twenty years as the
power under Section 24 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 (for short `the 1954 Act’), was required to be
exercised within a reasonable time. It is submitted that the authorities below
have failed to consider and appreciate the documents available on the
record, which duly proves that the land was validly allotted in favour of
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petitioner No.1-Budh Ram, who had deposited the necessary price thereof,
and thereafter, even the conveyance deed was executed in his favour. It is
stated that the reliance upon the Civil Court judgment is mis-placed as the
petitioner No.1-Budh Ram was not a party to that case and even otherwise,
the Civil Court judgment had been challenged before this Court in
RSA No.3579 of 1987. It is further submitted that petitioners No.2 to 13
had purchased the land from petitioner No.1-Budh Ram; therefore, their
rights are protected under Section 41 of the Transfer of Property Act, 1882
(in short `the 1882 Act’).
3.1 With the afore-said submissions, prayer has been made for
setting aside the impugned orders.
4. Per contra, learned counsel appearing for the State as well as
learned counsel appearing on behalf of private respondents No.4 to 6, have
opposed the submissions made on behalf of learned counsel for the
petitioners, by submitting that the impugned orders are legal and valid, in
the peculiar facts and circumstances of this case. It is submitted that
petitioner No.1-Budh Ram was not in possession of the land before the
allotment; therefore, the conveyance deed was wrongly executed in his
favour. It is submitted that when the initial allotment in favour of petitioner
No.1-Budh Ram was illegal, therefore, the subsequent sale deeds, executed
by petitioner No.1 in favour of petitioners No.2 to 13, have no value in the
eyes of law. It is submitted that the allotment in favour of petitioner No.1-
Budh Ram has been rightly cancelled as the said allotment was not
supported by any record and moreover, the issue has already been decided
by the learned Civil Court and Tara Chand has been declared as the owner
of the property. It is next submitted that even RSA No.3579 of 1987 stands
dismissed by this Court vide judgment dated 11.09.2013, a copy of which is
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available on the file. It is categorically submitted that petitioner No.1 was
not in cultivating possession of the land in question in Rabi 1959 and
Kharif 1959 nor his name was mentioned in the list of non-claimants
(Annexure R-1). It is also submitted that the petitioner had not deposited
any amount. It is stated that only those non-claimants, who were already in
possession of land, could have purchased their share(s) according to Rule
63 of the 1954 Rules; however, since petitioner No.1 was not in possession
of the land, accordingly, no land could have been allotted to him and there
is no illegality in the impugned orders; accordingly, prayer for dismissal of
the writ petition has been made.
5. Heard.
6. In the present case, the petitioners’ claim that the land in
question, was to be sold to the non-punjabi/non-claimants in accordance
with the instructions dated 13.01.1957 (Annexure P-2) issued by the
Government of India, Ministry of Rehabilitation and also the letter dated
22.07.1960 (Annexure P-3) issued by the Department of Rehabilitation,
Punjab.
7. Here, it would be apposite to refer to Clause 2 of the
Instructions dated 13.01.1957 (Annexure P-2) and also the letter dated
22.07.1960 (Annexure P-3), which read as under :-
Clause 2 of the Instructions dated 13.01.1957
“2. It will be necessary to ascertain the correct
particulars of the land in the occupation of the displaced
person and also whether he is in authorised occupation
thereof. For this purpose, it has been decided that every
allottee of evacuee agricultural lands should file a
declaration in the office of the Settlement Officer
concerned giving full particulars of the land in his
possession together with an extract from the JamabandiPage 7 of 21
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Neutral Citation No:=2025:PHHC:027592and Khasra Girdawari record duly attested by the Naib
Tehsildar. A specimen form of the declaration is
enclosed herewith (Annexure 1). The date and place for
filing the declarations should be notified by Publication
of a notice in the village concerned. The notice should
clearly say that if the declaration is not filed within the
stipulated time, the allottee will not be permitted to
purchase the land on the basis mentioned in rule 63 of
the Displaced Persons (C&R) Rules, 1955.”
Letter dated 22.07.60 (Annexure P-3) :
“Government of Punjab
Department of Rehabilitation
To
The Tehsildar-cum-M.O.,
RajpuraNo.180-RII/30605/Reh(R) Dated Jalandhar, the 22.7.60.
Subject : Transfer of evacuee agricultural land to Non-Punjabi
non-claimants settled in 17 villages of Rajpura.
…
Memorandum
Under the existing policy of the Govt. of India the non-
Punjabi non claimants settled in 17 villages of Rajpura tehsil will
be allowed to purchase the evacuee agricultural land in their
occupation under Rules 63 of the Displaced Persons (C&R)
Rules, 1955 determining the factum of self cultivation on the
basis of girdawaris of two harvests Rabi 1959 and Kharif 1959.
The cases of non-claimants whose allotments were cancelled
under the old instructions will be reviewed by the Land Claims
Organisation. Therefore, with a view to avoiding any dislocation
of hardship to these persons the land cancelled from their
allotments should not be leased out and they may be allowed to
remain possession of the same on payment of 6 times of the land
revenue till orders passed in their cases are reviewed by the Land
Claims Organisation.
Please acknowledge receipt of this letter.
Sd/-
Deputy Secretary to Govt. of Punjab
Reh. Department, Jalandhar.”
8. A perusal of the above extracted provisions made in
Annexure P-2 shows that the correct particulars of the land in occupation of
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the displaced persons was to be ascertained by the authorities and every
allottee was required to file a declaration in the Office of the Settlement
Officer concerned, giving full particulars of the land in his possession,
together with an extract from the jambandi and khasragirdawari record,
duly attested by the Naib Tehsildar.
8.1 Further, as per Annexure P-3, the non-punjabi/non-claimants
were entitled to purchase the evacuee agricultural land, which was in their
possession, in terms of Rule 63 of the 1955 Rules, after determining the
factum of self cultivation on the basis of girdawaris of two harvests i.e.
Rabi 1959 and Kharif 1959.
9. During the course of hearing of this petition, learned counsel
for the petitioners was asked to point out to any material/document,
indicating that Budh Ram was in cultivating possession of the land in
question, since Rabi 1959/Kharif 1959 onwards, as envisaged vide
Annexures P-2 and P-3. Learned counsel for the petitioners was also asked
to refer to the list of non-claimant allottees, indicating the name of
petitioner No.1, to be recorded therein.
10. Learned counsel for the petitioners has failed to refer to any
such document, which could show that Budh Ram was in cultivating
possession of the land in question, since Rabi 1959/Kharif 1959 onwards,
as envisaged vide Annexures P-2 and P-3 nor the name of petitioner No.1-
Budh Ram is shown to have been reflected in the list of non-claimant
allottees.
11. It is noticeable that the Tehsildar (Sales)-cum-Managing
Officer, Rajpura had made a reference dated 08.03.1988 to the Chief
Settlement Commissioner, Patiala, indicating that the allotment of land in
favour of petitioner No.1-Budh Ram, should be cancelled as the said
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allotment was not supported by any record and that the Civil Court has
already declared said Tara Chand (respondent No.4) to be the owner of the
property.
11.1 Upon receipt of the said reference, the matter was got enquired
into and vide order dated 19.01.1990 (Annexure P-13), the Chief Settlement
Commissioner ordered the cancellation of allotment/conveyance deed in
favour of petitioner No.1-Budh Ram by holding as under :-
“I have examined the entire material on record and
given a thoughtful consideration to the arguments advanced
before me. The facts of the case were also discussed
thoroughly in my order dated 24.2.1989 vide which the case
was sent to the Settlement Commissioner (SDO Civil) Rajpura
with the direction that he should scrutinize the available
evidence and then arrive at a final conclusion. The Settlement
Commissioner (SDO Civil) Rajpura was required to report if
the allotment of land made in favour of Budh Ram was valid or
not. It is clearly made out in the report dated 19.6.1989 sent by
the Sub Divisional Officer(C) Rajpura that Tara Chand was
allotted the land in village Dhakansu as a non-claimant
because he fulfilled the requisite conditions and he became
permanent owner of the land after depositing the price of the
land and conveyance deed was also issued in his favour. On
the other hand, regarding the allotment of land to Budh Ram,
an enquiry was referred to the Deputy Secretary,
Rehabilitation Punjab who heard Budh Ram but Budh Ram
failed to produce any evidence in support of his claim. It is
reported by the Assistant Registrar Land-al imas, Punjab,
Rehabilitation Department to the Chief Settlement
Commissioner that no land was ever allotted to Budh Ram.
The Chief Settlement Commissioner, Jalandhar, referred the
case to the Tehsildar (Sales) Rajpura who cancelled the land
from the name of Budh Ram and restored in the name of the
Government. Budh Ram went in appeal and the case wasPage 10 of 21
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Neutral Citation No:=2025:PHHC:027592remanded to the Tehsildar (Sales) for a fresh decision. The
report of the Tehsildar (Sales) dated 8.3.1988 is very much in
detail. It has been clearly held there that Budh Ram was never
in possession of the land during the period in question.
Moreover, the statement of Budh Ram was recorded before the
Tehsildar in which he stated that he never cultivated the land
nor deposited any amount as price of the land.
It is very clear from the above fact that the sale deed in
favour of Budh Ram is not a valid document. I agree with the
Tehsildar (Sales)-cum-M.O. Rajpura as well as the Settlement
Commissioner (SDO Civil) Rajpura that the said deed needs to
be cancelled. Even the Chief Settlement Commissioner,
Punjab, Jalandhar held that no allotment was made in favour
of Budh Ram. The Additional Sessions Judge, Patiala, vide
order dated 7.8.1987 has also dismissed his appeal. In the
light of these facts it is very clear that the sale in favour of
Budh Ram should be cancelled and I order accordingly. The
conveyance deed dated 8.12.1970 is ordered to be cancelled. It
is further held that the sale in favour of Tara Chand is
perfectly valid and the allotment of further land measuring 3B
13B in khasra No.823(1-7) and 829(2-6) made on 7.2.1984 is
also valid. The rest of the land should be disposed of as per the
regular procedure by the Tehsildar (Sales)-cum-M.O. Rajpura.
The case is, therefore, sent to the Tehsildar, Rajpura for
further action in the matter. He is directed to furnish the case
as early as possible so that the litigation between the parties
could became to an end. Parties to appear before him on
19.2.1990.”
11.2 The afore-said order dated 19.01.1990 has been further upheld
by the learned Financial Commissioner (Appeals), Punjab, vide order dated
16.03.1994 (Annexure P-14), by observing as under :-
“7. I have considered the averments of the learned
counsel and have gone through the record of the case. I have
also minutely studied the impugned order. The learned Chief
Settlement Commissioner has gone into great detail while
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Neutral Citation No:=2025:PHHC:027592considering the reference dated 8.3.1988 from the Tehsildar
(Sales)-cum-Managing Officer, Rajpura recommending the
cancellation of the allotment. It has been clearly stated that an
earlier report dated 21.7.1983 said that no land had been
allotted to Budh Ram and accordingly the allotment made in
his favour was cancelled vide an order dated 2.1.1984, prior
to which reference was made to Budh Ram’s own statement
before the Tehsildar to the tune that he had not deposited any
price nor ever cultivated the suit land. Since some other
evidence given by Budh Ram’s counsel went counter to this,
the learned Chief Settlement Commissioner felt that “there
was a lot of confusion in the case and a thorough probe into
the record was necessary.” He, therefore, sent the case, very
correctly, to the Settlement Commissioner (SDO Civil), as the
Managing Officer (Tehsildar) had already given his opinion
and another report from him ran the risk of being biased. After
perusing the fresh report and giving adequate opportunity to
both the counsel, he came to a categorical finding that the sale
pro-Budh Ram deserved to be cancelled, and he ordered
accordingly. At this stage of the proceedings, I can scarcely
place any reliance on the version of the counsel for the
petitioner to the effect that his client was aged and deaf and
therefore his own statement should not be held to operate
against him. This is a rather facile argument, since it was open
to Budh Ram to be represent before the Chief Settlement
Commissioner by a counsel. In my case, in the light of the
concurrent finding of the Tehsildar (Sales)-cum-Managing
Officer, Rajpura, the Settlement Commissioner as well as the
conclusions of the Chief Settlement Commissioner, Punjab,
Jalandhar, that no allotment was made in favour of Budh Ram,
bolstered by the fact that the Additional Session Judge also
dismissed his appeal, I see no reason to differ with the
conclusions amount at by the learned Chief Settlement
Commissioner. The present petition is accordingly declined.”
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12. It is borne out from the findings returned by the learned Chief
Settlement Commissioner as well as learned Financial Commissioner that
no land had been allotted to Budh Ram (petitioner No.1) and that as per the
own statement of Budh Ram, he had not deposited any price nor even
cultivated the suit land.
12.1 Furthermore, it is not disputed before this Court that even the
appeal (RSA No.3579 of 1987) preferred by the vendees of petitioner No.1-
Budh Ram namely, Hardayal Singh and others, has been dismissed by this
Court vide judgment dated 11.09.2013, by observing as under :-
“A perusal of the record shows that the plaintiff,
himself, had entered into the witness box as PW-1 and had
testified that he was in possession of the suit land.
Subhash Chand, while appearing as DW-1, though stated that
possession of the suit land was delivered to the defendants and
his testimony was corroborated by DW-2, Hardayal Singh and
in cross-examination, said Subhash Chand had stated that he
had been in possession of the suit land for 2-1/2 years but this
oral evidence has to give way to documentary evidence
available on record in the form of jamabandies for the years
1978-79, Exhibit P/2, and 1983-84, Exhibit P/5, wherein the
plaintiff is recorded to be in cultivating possession of the suit
land. Khasra girdawaris, Exhibits P/3, P/4 and P/6, for the
period from kharif 1979 to Rabi 1998 also support the plea of
the plaintiff that he has been in cultivating possession of the
suit land. A presumption of truth attaches to the entries in
these jamabandis and as per Section 114 of the Indian
Evidence Act, there is presumption of continuity of possession.
Though, the presumption attached to the jamabandis is
rebuttable but the defendants have not been able to bring any
evidence to rebut the same or to show that possession of the
suit land was entered into by them. It is also noticed by the
learned trial Court that a conveyance deed, Ex.P/1, was
executed in favour of the plaintiff on 24.8.84 in respect of the
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land allotted to him by the Rehabilitation Department and the
land in dispute forms part of that land. In view of the
overwhelming evidence to show possession of the plaintiff over
the suit land, coupled with the fact that both the courts below,
on appreciation of evidence available on record, have
recorded concurrent findings to hold the plaintiff to be entitled
to a decree of injunction and there being no question of law,
much less a substantial question of law involved in the matter,
I am not inclined to interfere with the findings of fact recorded
by the courts below and, therefore, dismiss the appeal leaving
the parties to bear their own costs.”
12.2 It would be evident from the above extracted findings returned
in RSA No.3579 of 1987 that the possession of respondent No.4-
Tara Chand over a part of land in question was proved on record.
13. Considering the totality of circumstances, since the petitioners
have failed to show that petitioner No.1-Budh Ram was in possession of the
land in question at the relevant time, as envisaged in Annexures P-2 and
P-3 and he had further admitted that he had not deposited any amount,
coupled with the fact that a part of the land stood allotted to Tara Chand
(respondent No.4) and his possession on a part of the land in question (in
the present writ petition) has been proved and upheld upto this Court in
RSA No.3579 of 1987, I find no merit in the claim of the petitioners.
14. Coming to the plea of petitioners No.2 to 13 that they are the
bona fide purchasers and that they are entitled for protection under Section
41 of the 1882 Act, it is observed that the said issue is no more res-integra
as the same stands answered by a Full Bench of this Court in Niranjan
Kaur v. Financial Commissioner, Revenue & Secretary
to Government, Punjab, 2010(4) RCR(Civil) 610, wherein the doubt raised
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by the Division Bench of this Court, was noticed as under:-
“14. The Hon’ble Division Bench doubted, the observations
made by this Court, holding the vendees to be protected under
Section 41 of the Property Act, and accordingly made
reference to the Larger Bench for the following reasons :-
(1) The provisions of Section 41 of the Property Act are
attracted only when with the consent, express or
implied, of the persons interested in immovable
property, a person is the ostensible owner of such
property and transfers the same for consideration. It is,
therefore, obvious that before this provision can be
attracted, there has to be a real owner and an ostensible
owner who transfers the property with express or
implied consent of the former. In the case before the
Division Bench and the other cases noticed above, the
allottee upon whom the rights had been conferred was
the real owner and there was no question of anybody
being the ostensible owner.
(2) The principle involved in section 41 of the Property
Act is basically one of estoppel. It is well-established
that the principle of estoppel cannot override the
provisions of a Statute. Obviously, therefore, the
provisions of section 41 of the Property Act would not
be able to override the provisions of section 24 of the
Act which authorises the Chief Settlement Commissioner
to cancel any allotment.
(3) It is again highly doubtful if the word “persons”
would include the Union or the State Government.
Reference in this context may profitably be made to
Sarkar-E-Aali Zaria Nazim v. Athar, AIR 1957 Andhra
Pradesh 714 and M/s Jaswant Sugar Mills Ltd. v. Union
of India and another, AIR 1966 Punjab 229.
(4) Express or implied consent under section 41 of the
Property Act has to be a valid and free consent. If the
allotment has been secured by fraud or
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Neutral Citation No:=2025:PHHC:027592
misrepresentation and is sought to be cancelled on such
ground under Section 24 of the Act, it cannot be said
that the allottee on whom the permanent rights were
conferred was the ostensible owner with express or
implied consent, the alleged consent having been
procured by misrepresentation or fraud.
14.1 The Hon’ble Full Bench upon consideration of the matter,
observed as under:-
“39. Though in reply to the first question raised, it has to be
answered that the allottee can be treated to be an ostensible
owner and the Government as real, but, whether the benefit of
Section 41 of the Property Act would be permissible to
subsequent vendee, is required to be considered under
question No. 2.
40. In order to answer question No. 2, referred to the Full
Bench, it will be necessary to go through Sections 19 and 24 of
the Act, which read as under :-
“19. Power to vary or cancel leases or allotment of any
property acquired under this Act. (1) Notwithstanding
anything contained in any contract or any other law for
the time being in force but subject to any rules that may
be made under this Act, the managing officer or
managing corporation may cancel any allotment or
terminate any lease or amend the terms of any lease or
allotment under which any evacuee property acquired
under this Act is held or occupied by a person, 123
Whether such allotment or lease was granted before or
after the commencement of this Act.
(2) Where any person, –
(a) has ceased to be entitled to the possession of any
evacuee property by reason of any action taken under
sub-section (1), or
(b) is otherwise in unauthorized possession of any
evacuee property or any other immovable property
forming part of the compensation pool; he shall, after hePage 16 of 21
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Neutral Citation No:=2025:PHHC:027592has been given a reasonable opportunity of showing
cause against his eviction from such property, surrender
possession of the property on demand being made in this
behalf by the managing officer or managing corporation
or by any other person duly authorised by such officer
or corporation.
(3) If any person fails to surrender possession of any
property on demand made under sub-section (2), the
managing officer or managing corporation may,
notwithstanding anything to the contrary contained in
any other law for the time being in force, eject such
person and take possession of such property and may,
for such purpose, use or cause to be used such force as
may be necessary.
(4) Where a managing officer or a managing
corporation is satisfied that any person, whether by way
of allotment or lease, is, or has at any time been, in
possession of any evacuee property acquired under this
Act to which he was not entitled, or which was in excess
of that to which he was entitled, under the law under
which such allotment or lease was made or granted,
then, without prejudice to any other action which may
be taken against that person, the managing officer or
the managing corporation may, having regard to such
principles of assessment of rent as may be specified in
this behalf by the Central Government, by order, assess
the rent payable in respect of such property and that
person shall be liable to pay the rent so assessed for the
period for which the property remains or has remained
in his possession: Provided that no such order shall be
made without giving to the person concerned a
reasonable opportunity of being heard.
(5) Where any person is, or has at any time been, in
unauthorised possession of any evacuee property
acquired under this Act the managing officer or the
managing corporation may, having regard to such
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Neutral Citation No:=2025:PHHC:027592principles of assessment of damages as may be specified
in this behalf by the Central Government, assess the
damages on account of the use and occupation of such
property and may, by order, require that person to pay
the damages within such time and in such instalments as
may be specified in the order: Provided that no such
order shall be made without giving to the person
concerned a reasonable opportunity of being heard.”
“24. Power of revision of the Chief Settlement
Commissioner. (1) The Chief Settlement Commissioner
may at any time call for the record of any proceeding
under this Act in which a Settlement Officer, an
Assistant Settlement Officer an Assistant Settlement
Commissioner, a managing officer or a managing
corporation has passed an order for the purpose of
satisfying himself as to the legality or propriety of any
such order and may pass such order in relation thereto
as he thinks fit.
(2) Without prejudice to the generality of the foregoing
power under sub-section (1), if the Chief Settlement
Commissioner is satisfied that any order for payment of
compensation to a displaced person or any lease or
allotment granted to such a person has been obtained by
him by means of fraud, false representation or
concealment of any material fact, then notwithstanding
anything contained in this Act, 129 the Chief Settlement
Commissioner may pass an order directing that no
compensation shall be paid to such a person or reducing
the amount of compensation to be paid to him, or as the
case may be, cancelling the lease or allotment granted
to him; and if it is found that a displaced person has
been paid compensation which is not payable to him, or
which is in excess of the amount payable to him, such
amount or excess, as the case may be, may, on a
certificate issued by the Chief Settlement Commissioner,Page 18 of 21
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Neutral Citation No:=2025:PHHC:027592be recovered in the same manner as an arrear of land
revenue.
(3) No order which prejudicially affects any person
shall be passed under this section without giving him a
reasonable opportunity of being heard.
(4) Any person aggrieved by any order made under Sub-
section (2), may, within thirty days of the date of the
order, make an application for the revision of the order
in such form and manner as may be prescribed to the
Central Government and the Central Government may
pass such order thereon as it thinks fit.”
The reading of Section 19 of the Act would show that it
contains an non obstante clause, therefore, the provisions
would apply notwithstanding anything contained in any
agreement or any other Act for the time being in force.
41. It cannot be disputed that the Act is a special Act, whereas
the Transfer of Property Act, is a general Act. Therefore, the
provisions of the Property Act, would have no application to
orders passed under Sections 19 and 24 of the Act.
42. In support of this conclusion, reference can be made to the
judgment of the Hon’ble Supreme Court in Harishchandra
Hegde v. State of Karnataka and others, (2004)9 SCC 780,
wherein the Hon’ble Supreme Court while interpreting the
provisions of the Karnataka Scheduled Castes and Scheduled
Tribes (Prohibition of Transfer of Certain Lands) Act, 1978
vis-a- vis Section 51 of the Property Act, has laid down as
under :-
“13. By reason of an order passed under Section 4 of the
Act, the lands are directed to be restored in the event the
illegalities specified therein are discovered. The
consequences contained in Section 5 of the Act apply
automatically in the event an order under Section 4 of
the Act is passed. Section 4 of the Act contains a non
obstante clause. The said provision would, thus, apply
notwithstanding anything contained in any agreement or
any other Act for the time being in force. The Act is a
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Neutral Citation No:=2025:PHHC:027592special Act whereas the Transfer of Property Act is a
general Act and in that view of the matter also Section
51 of the Transfer of Property Act will have no
application and the consequences contained in Section 5
would prevail.”
43. The Hon’ble Supreme Court in Hardev Singh v. Gurmail
Singh (dead) by LRs., (2007)2 SCC 404, while interpreting
the scope of provisions of Sections 41 and 42 of the Property
Act, has laid down as under :-
“9. Application of Section 41 of the Act is based on the
law of estoppel to the effect that if a man has
represented that the transferor consents to an act which
has been done and that he would not offer any
opposition thereto, although the same could not have
been lawfully done without his consent and he thereby
induces others to do that from which they might have
abstained, he could not question the legality of the act
he had so sanctioned, to the prejudice of those who have
so given faith to his words or to the fair inference to be
drawn from his conduct.
10. The ingredients of Section 41 of the Act are :
(1) the transferor is the ostensible owner;
(2) he is so by the consent, express or implied, of the
real owner;
(3) the transfer is for consideration;
(4) the transferee has acted in good faith, taking
reasonable care to ascertain that the transferor had
power to transfer.
11. Section 43, on the other hand, embodies a “rule of
feeding the estoppel” and enacts that a person who
makes a representation shall not be heard to allege the
contrary as against a person who acts thereupon and it
is immaterial whether the transferor acts bona fide or
fraudulently in making the representation.
12. In order to get the benefit of the said provision, the
conditions which must be satisfied are :
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Neutral Citation No:=2025:PHHC:027592(1) the contract of transfer was made by a person who
was competent to contract; and
(2) the contract would be subsisting at the time when a
claim for recovery of the property is made.
13. However, the provisions would have no application
if the transfer was invalid as being forbidden by law or
contrary to public policy, as envisaged under Section 23
of the Contract Act. Thus, no estoppel can be pleaded
contrary to the provisions of a statute. The “rule of
feeding the estoppel” shall apply in absence thereof.”
44. In view of the authoritative pronouncements of the Hon’ble
Supreme Court, question No. 2 is answered against the
petitioners, by holding, that the provisions of the special
statute, would override the provisions of Section 41 of the
Property Act.
14.2 In view of the above, it is held that petitioners No.2 to 13 are
not entitled for protection under Section 41 of the 1882 Act.
15. In the light of above discussion, I find no merit in the present
writ petition. Resultantly, the instant writ petition fails and the same is,
accordingly, dismissed.
16. All pending application/s, if any, shall also stand closed.
February 27, 2025 (HARSH BUNGER)
gurpreet JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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