Judgment:
CWP No.5161 of 198 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.5161 of 1985 (O&M) Date of decision: June 30, 2014 Teja Singh and others ...Petitioners Versus District Judge, Gurdaspur and others ...Respondents CORAM:- HON'BLE Mr.JUSTICE K.
KANNAN1 Whether Reporters of local papers may be allowed to see the judgment ?.
2.
To be referred to the Reporters or not ?.
3.
Whether the judgment should be reported in the Digest?.
Present:- Mr.Sanjay Majithia, Senior Advocate with Mr.Shailender Sharma, Advocate, for the petitioneRs.Mr.Anant Kataria, AAG, Punjab.K.KANNAN, J.
(Oral) The writ petition is a challenge to the order made by the 3rd respondent Deputy Secretary (Rehabilitation).rejecting a petition filed under Section 15 of the Evacuee Interest (Separation) Act, 1951.
The petitioners were claiming a right to the property which had been purported to be sold under the Act of 1951 in an auction held on 2.9.1960.
The auction was said to have followed by a publication effected for the purpose on 26.8.1960.
The confirmation letter of the sale was on 12.12.1960.
The proceedings under the Act came to be taken by the authorities treating the property as evacuee property which had been subject of mortgage under two Singh Prem 2014.07.01 13:39 I attest to the accuracy and integrity of this document Chandigarh CWP No.5161 of 198 2 documents both dated 28.3.1946, under two transactions one in respect of 28/30th share and another in respect of 2/30th share.
The mortgagee of the major share was said to be a Mohammedan who had migrated to a place now in Pakistan.
The petitioneRs.claim was that they had purchased the equity of redemption from the original mortgagor who had secured a pre-emption decree dated 1.3.1946.
In the matter of narration of the petitioners case, it divulges details of prior proceedings that an attempt had been made by the petitioners to state that the property did not involve any evacuee interest but was repulsed by the authorities and that became final.
The fact that this was a property that was declared evacuee property and that it required a separation of interest itself is not in challenge presently.
The case of the petitioners is built on an edifice that the property had been mortgaged to persons who had left India at the time of partition and it took the character of evacuee property for administration in the hands of custodian of evacuee property.
The challenge in the petition was that when the petitioners applied before the 3rd respondent to contend that the purported sale was not valid, they did so pointing out to the fact that the relevant rules providing for sale of composite property by public auction mandated under Rule 11 (B) sub clause (3) that notice of intended sale was to be given at least 15 days before to the proposed sale.
Rule 5 refers to when a sale could take place after the date of publication.
The verbatim re-production of the sub- rule would require to be done and therefore, the same is re-produced as Singh Prem 2014.07.01 13:39 I attest to the accuracy and integrity of this document Chandigarh CWP No.5161 of 198 3 under:- “11-B.
Mode of separation of interest of evacuee.—A competent officer having regard to the provisions of Sec.
10 of the Act shall adopt any of the following measures in the order of precedence set down below: xx xx xx xx xx xx (3) Notice of the intended sale be given at least 15 days before the proposed sale and every such notice shall state the date, time and place of the proposed sale, the description of the property to be sold, its location and boundaries where possible, the terms and conditions of the sale the date on which the competent officer will examine the report of the officer conducting the auction and any other particulars which competent officer or the officer authorized by him considers material.
One copy of the notice shall be affixed on a conspicuous part of the property to be sold.
It shall be within the discretion of the competent officer or the officer authorized by him to advertise the sale in the newspaper and in such other manner as he may deem fit.
[Explanation.—The date from which 15 days notice for auction shall be computed will be the date on which a copy of the notice is posted on the notice board of the competent officer].xx xx xx (5) No sale shall take place until after the expiry of a period of 10 days from the date of publication of the notice.”
.
Learned Senior counsel points out that if a publication had been made on 26.8.1960, the sale could not have been done of a period less than 15 days.
In this case sale had been done on 2.9.1960 which violates sub clause (3) referred to above.
Rule 5 also clear on the point that no sale shall take place until after the expiry of a period of 10 days from the date of Singh Prem 2014.07.01 13:39 I attest to the accuracy and integrity of this document Chandigarh CWP No.5161 of 198 4 publication of the notice.
In this case, the alleged sale had taken place in less than a week.
Sub-rule (3) referred to above also indicates that the property which was to be sold shall set out the description of the property to be sold, its location and boundaries.
The petitioneRs.grievance is also that the property sold did not contain any such details.
This property and the other property had been subject of consolidation proceedings when this was also included in hotchpot and even at that time no details of this property having been brought for sale was ever brought on record.
The petition at the instance of the petitioners challenging the sale proceedings resulted in dismissal on a single consideration that the power of revision that could be exercised under Section 18 cannot be made merely 25 years after the date of sale.
I will take this point as reasonable in situation where the petitioners had been served with orders passed and notices had been issued in the manner contemplated under the relevant rules.
If no notice at all had been issued, as the petitioners would contend, the time that could give a cause of action to the petitiones to approach the authorities for redressal could be only the time when they came to know about the sale.
A copy of the revision petition filed under Section 18 is annexed with the writ petition as Annexure P/1.
It is averred in the petition that when they went to make the payment of mortgage debt, they had been informed that the property had been already sold.
In a letter dated 6.5.1982 by the Assistant Custodian General, there is a reference to the fact that one Bua Singh and others were in unlawful possession.
It was in that context that the revision petition states that even the custodian in whose favour the Singh Prem 2014.07.01 13:39 I attest to the accuracy and integrity of this document Chandigarh CWP No.5161 of 198 5 sale certificate had been issued did not know about he same and he did not take any action against he mortgagORS.Consequently, the mortgagers and their representatives did not know about the sale.
I accept the contention made on behalf of the petitioners that there was no record to bear out that the petitioners had any notice of the action for sale.
There had been breach of sale proceedings in every form: fixing a date of sale providing for less number of days of notice period before actual sale, as mandated by Rule 11 —B (5) and Rule 5 and subsequent treatment of the property as belonging to the petitioners in consolidation proceedings.
The auction is declared as void ab initio for all the legal infirmities outlined above.
The respondents shall be entitled to, however, recover the mortgaged amount by serving notice on the petitioners setting out the amount due within eight weeks and in such averment, there shall be no plea of bar of limitation by the petitioneRs.The writ petition is allowed in the above terMs.June 30, 2014 (K.KANNAN) prem JUDGE Singh Prem 2014.07.01 13:39 I attest to the accuracy and integrity of this document Chandigarh