CWP No.14037 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.14037 of 1993 Date of Decision: 03.07.2014 Diwan Chand and another ..Petitioner(s) Versus State of Haryana and others ..Respondent(s) CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH1 Whether Reporters of the 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.Hitesh Ghai, Advocate for Mr.Dinesh Ghai, Advocate for the petitioneRs.Mr.Sandeep S.
Mann, Sr.DAG, Haryana.
Mr.Abhishek Dhull, Advocate for respondent no.4.
Paramjeet Singh, J.
(Oral) Instant writ petition has been filed under Articles 226/227 of the Constitution of India for quashing the orders dated 25.05.1993 (Annexure P/5) and 13.10.1993 (Annexure P/6) passed by respondent no.2.
Shorn of unnecessary details, the facts relevant for disposal of present writ petition are to the effect that land in dispute i.e.evacuee land was put to restricted auction by respondent no.3-Tehsildar (Sales).Karnal on 14.07.1981 in which respondent no.4 emerged as the highest Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 2 bidder.
The auction was confirmed on 22.08.1981.
Respondent no.4 had made the full payment as per schedule and thereafter sale certificate was issued on 04.02.1987 in his favour which completed the transaction and respondent no.4 became full-fledged owner of the land.
After the issuance of sale certificate, the Government had no right over the land in dispute.
Thereafter, respondent no.4 had sold the property in dispute to the petitioners vide sale deeds dated 20.05.1987 (Annexures P/1 and P/2).Respondent no.3 made a suo motu reference to respondent no.2 for setting aside the sale in favour of respondent no.4 on the ground that he had violated the instructions of the government by selling the land before the expiry of ten yeaRs.Respondent no.2 without issuing any notice to the petitioneRs.accepted the reference vide order dated 25.05.1993 (Annexure P/5).set aside the auction dated 14.07.1981 and sale certificate dated 04.02.1987.
When the petitioners came to know about the impugned order dated 25.05.1993 (Annexure P/5).the petitioners filed a petition with the averments that the land in dispute was in their possession and they had raised substantial residential construction and respondent no.4 had left no interest in the land.
The said petition was dismissed by respondent no.2 vide order dated 13.10.1993 (Annexure P/6) on the ground that as per the condition imposed upon respondent no.4, he was not competent to alienate the land in question before the expiry of ten years from the date of confirmation of the auction.
The petitioners are absolute owners of the property in dispute and impugned orders are not sustainable in the eyes of law.
Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 3 In pursuance to notice, respondents put in appearance.
Respondent no.2 filed reply and pleaded that land in dispute was auctioned by the Tehsildar (Sales).Karnal.
As a matter of policy, the State Government decided to sell the surplus evacuee agricultural land in restricted auction amongst Harijans to raise their standards of living.
However in order to avoid malpractice, the Government imposed a restriction on them for not selling/alienating the land for ten years from the date of confirmation of auction so that persons belonging to affluent sections of the society may not exploit the auction purchaseRs.As per the condition imposed upon respondent no.4, he was not competent to alienate the land in question before the expiry of ten years from the date of confirmation of the auction.
Respondent no.4 had fraudulently sold the disputed land to the petitioneRs.Since respondent no.4 had sold the disputed land before expiry of ten yeaRs.respondent no.2 on a reference from the Tehsildar (Sales).Karnal took action under Rule 11 of the State Rules and set aside the auction and sale certificate.
Other averments in petition were denied and dismissal of the petition was prayed for.
Respondent no.4 did not file any reply.
Rejoinder to reply of respondent no.2 was filed denying the averments of reply and re-asserting the same made in petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioners has contended that condition of 10 yeaRs.ban for executing the sale deed is not valid in law Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 4 and cannot override the statutory provisions.
Learned counsel has further contended that these are only instructions which have been issued by the government which cannot replace the statutory provisions.
Learned counsel has further contended that there was no condition imposed in the mutation sanctioned in favour of respondent no.4 that land in dispute could not be sold prior to expiry of ten yeaRs.Learned counsel has further contended that the petitioners are bona fide purchasers and land in dispute was purchased by the petitioners after verifying the record.
Otherwise also, such a condition is bad in law as has been held by this Court in Smt.
Sarbjit Kaur and LRs of Mohinder since deceased and others versus Mohinder Singh and another 2008 (4) R.C.R.(Civil) 458.
On the other hand, learned State counsel has contended that Government can issue instructions in the interest of a party, who has been given land in the restricted auction.
Since the sale in favour of the petitioners by respondent no.4 was in violation of terms of the allotment, such reference order is legal and valid.
I have considered the rival contentions made by learned counsel for the parties.
From the perusal of record and arguments of learned counsel for the parties, following question arises for consideration by this Court: (i) Whether condition of 10 yeaRs.ban with regard to sale is in direct conflict with Sections 10 and 11 of Transfer of Property Act?.
Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 5 Before proceeding further, it would be appropriate to reproduce Sections 10 and 11 of the Transfer of Property Act: “10.
Condition restraining alienation.--Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him; provided that the property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist).so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.
11.
Restriction repugnant to interest created.-- Where,on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.
Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof”.Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 6 Perusal of above sections reveals that such a ban as in the present case is in conflict with Sections 10 and 11 of the Transfer of Property Act.
In common parlance, when a property is purchased by a person, he becomes absolute owner and all rights and title vest in him.
Mere imposing such a condition without legislative support which the State Government has failed to show to this Court, cannot be said that condition put in the conveyance deed has any effect on the right of the purchaser for further sale.
It is the categorical averment of the petitioners that there was no such condition in the record, therefore, the petitioners are bona fide purchasers for valuable consideration.
Respondents no.1 to 3 have failed to show any statutory provisions with regard to imposition of ban of 10 yeaRs.In Smt.
Sarbjit Kaur's case (supra).a coordinate Bench of this Court has dealt with the similar issue and held as under: “19.
So far as the second question is concerned, counsel for the respondent has failed to show any statutory force in respect of the ban imposed for 10 yeaRs.In fact, under Rule 4 (1) of part II of the Punjab Package Deal Properties (Disposal) Rules, 1976 ( framed under Section 18 of the Punjab Package Deal Properties (Disposal) Act, 1976, the widows of disabled soldiers etc.killed in Chinese Aggression of 1962 were entitled for allotment of land up to limit of 10 ordinary acres of cultivable land @ to be fixed by the State Government.
The aforesaid rule is reproduced below:- 4.1)Allotment of land in rural area to permanently disabled soldiers widows etc.of the Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 7 soldiers killed in action- (i) permanently disabled soldieRs.widows or parents or children of the soldiers killed in the Chinese aggression of 1962 and Pakistan aggression 1965, shall be entitled to the allotment on payment of the cultivable land as far as possible up to the limit of 10 ordinary acres inclusive of their own holding, if any, at such rate per standard acre as may be fixed by the State Government from time to time; (ii) If any widow or a soldier killed inaction has remarried before the allotment of the land, she shall lose her right to get the allotment and in that case, allotment shall be made in the name of her children from the deceased soldier and in case, the widow is issueless, the allotment shall be made to the parents of the killed soldiers irrespective of the fact, whether or not, they have submitted separate applications by the prescribed date.
In such a case, the application submitted by a widow, by the prescribed date, shall be deemed to have been duly submitted in time by the children or the parents of the deceased soldier, as the case may be: Provided that in the case of the minor children of the deceased soldier, the allotment of land shall be made through their guardian.
(iii) If any allottee of land, who was a widow, remarries within a period of 10 years from the date of allotment, the land allotted to her shall be liable to be cancelled by the Tehsildar (Sales) or Naib Tehsildar (Sales) after due notice even if full Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 8 price thereof had been paid and the area thus received shall be allotted to the children of the deceased soldier, if any, through their guardian or to the parents of the deceased soldier, as the case may be.
(iv) The price of the land shall be recovered in 20 half yearly interest free instalments; the fiRs.instalment equivalent to 5 percent of the price, payable at the time of allotment of the land by the Tehsildar (Sales) or Naib Tehsildar (Sales).The next instalment shall be payable at the end of the fiRs.crop after the expiry of one year from the date of allotment.
(v) No allottee shall be permitted to sell or alienate in any manner, the land allotted to him or her before the expiry of a period of ten yeaRs.even if the full price had been paid.
(vi) In the event of default in the payment of any instalment by an allottee, he shall be liable to pay interest at the rate of 7percent per annum for the over due period and in the extent of default of two successive instalments, the Tehsildar (Sales) or Naib Tehsildar (Sales) shall be competent to cancel the allotment,resume the land and forfeit the money already paid: Provided that no order shall be made against any person until after the issue of a notice, in writing to the person calling upon him to show cause within such time, as may be specified in the notice, why such order should not be made.
Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 9 (2)Deed of conveyance to be executed:- Where any land is allotted to any person under this chapter and full price thereof has been realized, a Deed of Conveyance shall be executed in form specified in Appendix 'A' to these rules.
However, by notification dated 20.1.1979 published in the Punjab Gazettee Legislation, dated 16.2.1979, clause (v)of the above rules whereby ban imposed for sale up to 10 years was deleted and clause (vi) Supra was renumbered as clause (v) and was reframed.
The amended rule (4) is reproduced below:- 4.
In the said rules, in rule 4, in sub-rule (1),- (i) for clause (i).the following clause shall be substituted,namely “(i)Permanently disabled soldieRs.widows or parents or children of the soldiers killed n the Chinese Aggression of 1962 and Pakistan Aggression of 1965 and widows of the personnel of the Armed Forces, Border Security Force and Punjab Armed Police killed in the Indo-Pakistan Conflict of 1971, shall be entitled to the allotment on payment of the cultivable land as far as possible, upto the limit of ten ordinary acres inclusive of their own holdings, if any, at such rate, per standard acre as may be fixed by the State Government from time to time.
For the purpose of valuation of land, ordinary acres shall be converted into standard acres, in accordance with the prescribed scale.”
.; (ii) in clause (ii).for the words “ inaction, has Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 10 remarried”., the words and figures “ the Chinese aggression of 1962 or Pakistan aggression of 1965 remarries a person other than real brother of her deceased husband, shall be substituted; (iii) for clauses (v) and (vi).the following clause shall be substituted,namely:- “(v) in the event of default in the payment of any instalment by an allottee, he shall be liable to pay interest at the rate of seven per cent per annum for the over due period and in the event of default of two successive instalments, the Tehsildar (Sales) or Naib-Tehsildar (Sales) shall recover the amount of defaulted instalments with interest as arrears of land revenue”.20.
Since the Conveyance Deed mark A was issued by Tehsildar (Sales) on 09.12.1981 long after deletion of original clause (iv) of Rule 4 (1) of 1976 rules, vide amended rules of 1979, there is no statutory force of imposing the ban.
21.
In the case of B.Anjaneyulu (Supra).the Hon'ble Andhra Pradesh High Court while interpreting Section 10 of the Transfer of Property Act, held that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void.
It was further held that every citizen under the Constitution of India has a right under Article 300-A of the Constitution to property and such a right shall not be curtailed unless it is in accordance with law.
If there should be any restriction on such a right, the same could be only by appropriate Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 11 legislature i.e either by parliament or of the State Legislature.
It was further held that one of the most important rights of a owner is a right to alienate the property, which cannot be taken away without the statutory force of law.
Similarly, the decision rendered in the case of Puran Chand's Case (Supra).it was further held that stipulation in the sale deed regarding reversion of the land to the vendors in case of non-construction within a stipulated period was void and unenforceable.
In the case of Smt.Lilawati (Supra).it was held that the vendee is entitled to ignore a condition which cuts down his enjoyment of the absolute right of property and any direction in the sale deed which is contrary to the enjoyment of such absolute estate is void and unenforceable.
In the case of Manohar's Case (Supra).while interpreting Section 10 of the Transfer of Property Act, it was held that sale deed including clauses prohibiting sale to some one outside family was void.
Moreover, the plaintiff himself cannot take the plea that he had no right to sell the land once it is proved that the land has been sold on his behalf by his duly authorized power of attorney.
It was , in fact, for the State or the department concerned to have raised the objection who had allotted the land to the plaintiff.
Moreover, the conveyance deed Mark 'A' provides that even in case of such a sale, the penalty is of resumption, therefore, the power to sell is not curtailed.”
.
In view of Sections 10 and 11 of the Transfer of Property Act and in view of law laid in Smt.
Sarbjit Kaur's case (supra) which fully covers the matter in hand, the aforesaid question is answered in favour of the petitioner.
Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document CWP No.14037 of 1993 12 Resultantly, instant petition is allowed and impugned orders dated 25.05.1993 (Annexure P/5) and 13.10.1993 (Annexure P/6) are set aside.
No order as to costs.
03.07.2014 (Paramjeet Singh) parveen kumar Judge Kumar Parveen 2014.07.15 14:36 I attest to the accuracy and integrity of this document