Sital Mal And Anr. vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 218 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The subject matter of this long-drawn due dispute is the property bearing No. 105-E, Moghulpura, Faizabad, U.P., which is in occupation of the appellants. The appellants claimed to be in possession of the aforesaid property since 01.06.1952. The property was auctioned on 29.11.1958 and respondents No. 5 and 6 were the highest bidders at Rs.16,600/-. Ten per cent of the amount was paid at the fall of the hammer as earnest money and the balance amount had to be paid within the stipulated time. Respondents No. 5 and 6 sought adjustment of a part of the price against the compensation claim of their father and some disputes arose in respect of the same between the said private respondents and the auctioning authorities.

2. In the year 1961, the case of the private respondents was referred for cancellation of the sale of auction for non-payment of the balance sale price and the Assistant Settlement Commissioner cancelled the same on 19.05.1961. It may be noticed that the appellants claim that this fact was not to their knowledge till 29.06.1966.

3. The appellants wanted allotment of the said property in their names specifically in view of the fact that rule 22 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1954 (hereinafter to be referred to as, 'the said Rules') was amended. Rule 22 of the said Rules deals with the classes of acquired evacuee property, which may be allotted and any residential property in the occupation of a displaced person could be so allotted where the value did not exceed Rs.5,000/-. This limit of Rs.5000/- was increased to Rs.10,000/- in the year 1955 and thereafter during the relevant period of time, the same was increased to Rs.15,000/- In 1963, an explanation was also added to the rule providing that the property must be in the sole occupation of the person for being allot table under rule 22 of the said Rules.

4. Respondents No. 5 and 6, however, continued to pursue the matter in respect of the original bid and made an application before the Assistant Settlement Commissioner on 09.01.1964 against the cancellation of sale on the ground of adjustment of the compensation claim. The claim of respondents No. 5 and 6 was ultimately allowed by the Deputy Chief Settlement Commissioner on 06.02.1964. Thus, the claim of respondents No. 5 and 6 was found to be adjustable against the auction price.

5. In so far as the appellants are concerned, on 20.11.1965 the Assistant Settlement Commissioner rejected the claim of the appellants for the allotment on the ground that the balance amount had been paid by respondents No. 5 and 6 in the form of adjustment of the claim and this order was confirmed by the Chief Settlement Commissioner on 30.11.1965. The appellants filed a writ petition in April, 1966 against the said order before the High Court of Allahabad at Lucknow Bench. It is claimed that the order of 19.05.1961 canceling the original allotment in favor of respondents No. 5 and 6 came to their knowledge only thereafter in June, 1966. The matter was in the meantime processed departmentally in so far as the claim of the appellants was concerned and the appellants deposited a sum of Rs.12,700/- and the allotment certificate was executed and registered in July / August, 1966. Respondents No. 5 and 6 preferred a revision petition, which was allowed by the Chief Settlement Commissioner on 30.12.1967 and this order was confirmed by the Joint Secretary, Ministry of Rehabilitation on 11.06.1968.

6. The appellants thereafter filed the writ petition, which was decided by the impugned order.

7. Learned Single Judge has noted that the petitioners were being evicted from the premises when they filed an appeal against the sale, which was dismissed by the Assistant Settlement Commissioner on 20.11.1965. The revision petition was dismissed on 30.1.1965 and thereafter the writ petition was filed before the Allahabad High Court. This petition was also dismissed in default on 29.07.1966. The result of the same was that those orders became final and binding in so far as the appellants are concerned

8. In order to frustrate the effect of the said orders, the present proceedings were filed seeking to challenge the confirmation of auction in favor of respondents No. 5 and 6 on the ground that a cancellation had occurred on 19.05.1961.

9. A relevant fact, which is also noticed by learned Single Judge, is that during the proceedings between respondents No. 5 and 6 and the Department, the appellants filed no objections under rule 92 of the said Rules. On consideration of the facts, learned Single Judge came to the conclusion that due to de-linking of files, the order of 19.05.1961 did not even come to the notice of various authorities till the plea was taken up by the appellants herein. The question of any rights having arisen in favor of the appellants would, thus, be dependent on the validity of the rights, which respondents No. 5 and 6 acquired in pursuance to the auction.

10. Learned counsel for the appellants fairly stated that it is only the aforesaid issue, which is really required to be considered in the present proceedings. In order to appreciate this controversy, it has to be noted that the father of respondents No. 5 and 6 has applied for agricultural land and wanted the compensation claimed to be adjusted against the same. It is not in dispute that no allotment took place during the lifetime of their father. After the demise of the father, the said respondents participated in the auction and sought adjustment of the claim. The question, which would thus arise, would be whether the claim was available for such an adjustment.

11. It has to be noticed that allotment of the agricultural land took place after the demise of the father of respondents No. 5 and 6 and the claim was sought to be adjusted against the same.

12. In our considered view, the allotment could not have been made in the name of a dead person and could have been made only if the legal heirs sought that allotment. It is nobody's case that respondents No. 5 and 6 wanted allotment of the agricultural and. The result was that since the allotment itself could not be made, the question of any adjustment of the claim would not arise. The claim was, thus, available for adjustment against the payment to be made in respect of the auction price.

13. The aforesaid being the position, a valid tender was made by respondents No. 5 and 6 of the balance amount by seeking adjustment against the claim for satisfaction of the balance price. The subsequent delay is immaterial as the same would relate back to that date. It is not a case where there is delay in payment of the auction price or any equities arising there from. The auction price had to be paid within the stipulated time and respondents No. 5 and 6 offered a part of the price and sought adjustment of the claim within the same period of time. Thus, once the claim was available for adjustment and could not have been adjusted against the allotment made in respect of the agricultural land to the father of respondents No. 5 and 6 after the demise of the father, the complete tender of the amount was made within the stipulated time.

14. The matter was live as it was being considered by one Department or the other and it cannot be said that there is any delay on the part of respondents No. 5 and 6. Learned counsel for the appellants, of course, sought to contend that there was delay room 1961 to 1964 till respondents No. 5 and 6 filed the proceedings. However, once the tender was made by respondents No. 5 and 6 legally within the time stipulated, the said respondents cannot be prejudiced by any delay since the matter was being considered by one authority or the other. The cancellation itself took place in a detached file and till 1963 respondents No. 5 and 6 were being asked to deposit the balance amount while they were claiming adjustment against the claims submitted.

15. The aforesaid facts have been considered by the competent authorities and it would be useful to refer to the order passed by the Settlement Commissioner (delegated powers of the Chief Settlement Commissioner) on consideration of the revision petition f respondents No. 5 and 6 decided on 30.12.1967 where it has been noted that during finalisation of the claim of respondents No. 5 and 6 it was found that in respect of adjusting the cost of the property against their claims, the Land Allotment Section of the Office of the Regional Settlement Commissioner allotted certain lands in the name of the petitioners' father. The petitioners filed an appeal for cancellation of the land allotment and recovery of the balance cost of the property, which was taking lace in pursuance thereof and it was by the order of the Deputy Chief Settlement Commissioner dated 06.02.1964 that allotment of the land was cancelled. This itself shows the follow up action taken by respondents No. 5 and 6 to see to the adjustment of the claim which ought to have been so adjusted at the relevant stage of time. On the other hand, the appellants managed to obtain an allotment certificate over which there was doubt in respect of the manner it was obtained as there was no direction by the competent authority and the appellants are non-claimant displaced persons. The concerned authorities, thus, rightly held that the question of any allotment in favor of the appellants, apart from any other reason, could not be made when respondents No.5 and 6 had paid the full balance price through the process of adjustment of the claims and since the claims were available for adjustment in view of the fact that the allotment of land in favor of the father of respondents No. 5 and 6 could not be made the question of the property being available for allotment to the appellants did not arise. The right of the appellants to the claim of the property stood concluded against them on their failure to prosecute their petition in the Allahabad High Court and even a successful claim of wrongful allotment to respondents No. 5 and 6 could not have ipso facto entitled the appellants to any rights in the property. The order of the Settlement Commissioner dated 30.12.1967 also attained finality.

16. In view of the aforesaid, we see no reason to interfere with the impugned order of learned Single Judge. The appeal is accordingly dismissed leaving the parties to bear their own costs.