K.C. Sood, J.
1. This judgment shall dispose of these two petitions under Articles 226/227 of the Constitution of India as both the petitions arise out of a common order of the Financial Commissioner-cum-Secretary (Relief and Rehabilitation) also exercising the revisional jurisdiction under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, hereinafter referred to as the 'Act'.
Relevant facts.
2. Late Sardar Santokh Singh, father and predecessor-in-interest of the petitioner Surinder Singh, being displaced person, purchased the property known as '31 Cosy Nook Estate', Shimla in an auction held on September 11, 1954 by the District Rent and Managing Officer, Ambala. This property was an Evacuee Property and was placed in the Evacuee Property Pool having been vested in the Central Government under Sub-section (2) of Section 12 of the Act. The property was purchased by Sardar Santokh Singh for a sum of rupees 52,000/-. The boundaries of the property sold in auction were described as follows:
East : East Municipal Road
West : West Fountain Blue Villa.
North : Fountain Bleau Hotel.
South : Municipal Road.
3. The description of the property in the Sale Certificate (Annexure-P1) is '31 COSY NOOK ESTATE', SHIMLA, including 3 tankies, latrine, verandah, common in between Fountain Blue and two stairs, common Khasra Nos. 602, 602/1 and 602/2 (856.5 Sq. yds. & Sq. ft) Cosy Nook Estate, Shimla'. The sale price was adjusted from the claims assessed in favour of Sardar Santokh Singh and. sum amount was paid in cash.
A formal sale certificate (Annexure-P1) was issued to the purchaser on October 31, 1961 with a copy to Regional Settlement Commissioner, Patiala, Sub Registrar, Shimla, Municipal Committee, Shimla.
Adjoining property No. 219/4 known as 'Fountain Bleaue Villa' Shimla was sold to Shri Kishore Chand Bhandari on September 30, 1958 with the following boundaries:
North : Fountain Bleaue Cottage.
South : Local Property.
East : Fountain Bleaue Hotel.
West : Other house.
This property was inherited by his sons S/Shri Lt. Col. V.K. Bhandari, Davinder Kumar Bhandari, Bhupinder Kumar Bhandari and Narinder Kumar Bhandari. They sold this property to respondent No. 5 in the year 1978 by two sale deeds (Annexures P7 and P8).
On July 16, 1966, Cosy Nook Estate was inspected, at the instance of Sardar Santokh Singh, purchaser of Cosy Nook Estate by the Managing Officer (Sales). On the basis of some report of the Patwari and the Municipal Engineer the Managing Officer found that Khasra Number 600-B, on which the water tanks were located at that time was also part of Cosy Nook Estate even though the sale certificate did not mention this Khasra number to be part of Cosy Nook Estate. Based on this report, a corrigendum was issued in the Sale Certificate in favour of Sardar Santokh Singh which included Khasra Number 600-B in addition to other Khasra Numbers purchased by Sardar Santokh Singh.
4. It appears a dispute regarding Khasra Number 600-B arose between Shanti Devi, successor-in-interest of Santokh Singh and owners of 'Fountain Bleaue', namely, Gopal Mohan and others. The dispute ultimately landed up in this Court in Regular Second Appeal No. 418 of 1990 and this Court by a Judgment dated October 7 , 1994 held that Khasra Number 600-B comprising veranda and stairs-case is no part of Cosy Nook Estate. This Court took a view that after the issuance of the sale certificate of the property sold in public auction, the Officer/Authority under the Act became functus officio as the property ceases to be evacuee property and therefore no corrigendum could have been issued in the sale certificate issued to Sardar Santokh Singh including therein Khasra Number 600-B. As a result, ownership of Sardar Santokh Singh, predecessor-in-interest of the petitioner, was confined to the property as included in the sale certificate Annexure-Pl.
Grievance of the petitioner.
5. The grievance of the petitioner is that respondent No. 5 Enakshi Mahajan, after having purchased Fountain Bleaue Villa which comprised in Khasra Number 598/B measuring 145.7 Sq. Yards and half share in Khasra Number 598/C, i.e., common passage, started causing interference in the property of the petitioner and would not permit the petitioner to use common passage in Khasra Number 598/C. The husband of respondent No. 5, a retired Director General of Police, Himachal Pradesh, exercised his influence on the various authorities and got certain documents removed from the files of the Managing Officer Sales relating to the property of the petitioner. The respondent No. 5 started interfering in the common passage even though the mutation in respect of Khasra Number 598/C to the extent of half share was attested in favour of the predecessor-in-interest of the petitioner on November 8, 1990 after the respondent No. 5, through her husband who was acting as General Power of Attorney, was heard and officials inspected the spot. Copy of the order of Tehsildar (Settlement) is placed on the record as Annexure-P5. However, this order of the Tehsildar is not available on the files of Tehsildar (Settlement).
6. The respondent No. 5 dissatisfied with the mutation in the joint name of the petitioner and herself, sent an application to the Settlement Officer, by post, for canceling the mutation dated November 8, 1990. The Assistant Settlement Officer disposed of this petition on February 8, 1991 with the following order:
Received by Dak. This case be heard and dispose of as per law by the Assistant Settlement Officer Town.
7. The Assistant Settlement Officer, exercising the powers of Settlement Collector, treated the application as an appeal. Respondent No. 5, represented by her General Power of Attorney, (her husband), was directed to file an application for condonation of delay in filing the application treated as appeal. The Assistant Settlement Commissioner without deciding the question of limitation, allowed the appeal and cancelled the mutation dated November 8, 1990. The case was remanded to the Assistant Collector for decision afresh. The Assistant Settlement Collector, while setting aside the mutation held that proper opportunity was not given to the respondent No. 5 before attestation of mutation (Annexure-P6).
8. Aggrieved, the petitioner filed an appeal under Section 14 of the H.P. Land Revenue Act before the Divisional Commissioner, Shimla (Respondent No. 6). The Divisional Commissioner, by his order dated June 29, 1995 dismissed the appeal upholding, the orders of the Assistant Settlement Officer.
Not contended the respondent No. 5 through her husband and attorney filed a petition before the Chief Settlement Commissioner (respondent No. 7). under Section 24 of the Act praying for giving ownership of 169 sq. yds to her treating the sale certificate (Annexure-P1) issued to the predecessor-in-interest of the petitioner to be 'null and void'.
9. This petition was treated as suo moto revision petition by the Chief Settlement Commissioner. When the case came up for final hearing before the Chief Settlement Commissioner, the predecessor-in-interest of the petitioner prayed for an adjournment by moving an application by registered post with ,medical certificate. However, the petition of the respondent No. 5 was decided in the absence of the petitioner on January 18, 1995 holding that sale certificate issued to Sardar Santokh Singh (Annexure-P1) was tampered with as there are interpolations in the original sales certificate. In result, the area of the property sold to Sardar Santokh Singh by sale certificate Annexure-P1, was reduced to 576 sq. yds. from 856.5 sq. yds. The respondent No. 7 further directed the concerned authority to issue a corrigendum to the Sales Certificate accordingly.
10. It is the case of the petitioner that the predecessor-in-interest of the petitioner was issued a typed copy of the sale certificate and there were no hand written entries in the certificate issued to Sardar Santokh Singh, father of the petitioner.
11. Dissatisfied, the predecessor-in-interest of the petitioner filed a revision petition before the Secretary (Rehabilitation)-cum-Financial Commissioner to the Government of Himachal Pradesh, respondent No. 2. This petition was dismissed on March 13, 2000 (Annexure-P22).
12. According to the petitioner, he had moved an application before the Secretary Revenue-cum- Secretary Relief and Rehabilitation exercising revisional powers under the Displaced Persons Act for tracing missing documents from the two files and also the objection against the report of the A.D.M. Shimla, who had held that certain documents were missing from the file but did not fix responsibility.
13. Aggrieved, the petitioner is in this petition under Articles 226 and 227 of the Constitution of India.
In the common return filed on behalf of respondents No. 1 to 4 and 6 to 7, it is admitted that the property in question, i.e, Cosy Nook Estate was a Evacuee Property and auctioned on September 11, 1954 for rupees 52,000/- in favour of father of the present petitioner. However, it is maintained that the property 31, Cosy Nook Estate sold to the predecessor-in-interest of the petitioner measures 576 sq. yds as per valuation register and also in terms of the impugned order dated January 18, 1995. It is the further case of these respondents that there are interpolations with ink in the sale certificate dated October 31, 1961 issued to the father of the petitioner and therefore, the sale certificate has rightly been rejected by the Chief Settlement Commissioner. The order passed by the Divisional Commissioner as well as Financial Commissioner, it is pleaded are valid.
14. It is the respondent No. 5 who, in her reply, contests the petition with vengeance.
The case of the respondent No. 5 is that the present petition is not maintainable as it involves disputed questions of fact which are under consideration with the civil Courts.
It is the case of the respondent No. 5 that '31 Cosy Nook Estate' sold to the father of the petitioner measures 576 yards only. The petitioner, according to respondent No. 5, is trying to mis-interpret the contents of the sale certificate and wants to include property more than what was actually sold to him. The sale certificate issued to the petitioner contains some unauthorized handwritten entries which were found to be interpolated and the concerned authorities, i.e., Chief Settlement Commissioner, Divisional Commissioner and Financial Commissioner by their respective impugned orders rejected the same. It is denied that the petitioner was issued any typed sale certificate. It is denied that in Regular Second Appeal No. 418 of 1990, the sale certificate issued in favour of the petitioner dated October 31, 1961 (Annexure-P1) was held to be valid and proper. So far the property which was purchased by the respondent No. 5 is concerned, the respondent No. 5 pleads that the report of the Naib Tehsildar as well as the corrigendum showing verandah and two stairs to be common has been set aside by the Chief Settlement Commissioner by his impugned folding the corrigendum issued by the Managing Officer Sales Jullundur as illegal. The respondent No. 5 denies that her husband had exercised any influence being a Senior Police Officer. It is denied that her husband was instrumental in getting certain documents removed from the files of Managing Officer (Sales) relating to the property of the petitioner. It is the case of the respondent No. 5 that the Settlement Collector after due consideration, set aside the mutation No. 1884 dated November 8, 1990 and remanded the matter to the Assistant Collector for decision afresh.
15. Respondent No. 5 admits having filed a petition before the Chief 'Settlement Commissioner for exercising suo moto powers for correcting the 'illegalities' and fraud. The petitioner, it is pleaded, was merely trying to delay the proceedings and therefore, the order as passed by the Chief Settlement Commissioner cannot be said to be bad. Respondent No. 5 contends that the sale certificate has to be restricted to the area of 576 sq. yards which was actually sold to Sardar Santokh Singh in auction. According to the respondent No. 5, the sale certificate Annexure-P1 was obtained by fraud as there are numerous interpolations in this certificate and therefore, it was within the jurisdiction of the concerned authorities to have re-opened the matter and issue corrigendum to do complete justice. It is denied that the respondent No. 5 has no locus standi to challenge the sale certificate issued in favour of the predecessor of the petitioner. The parties are litigating, pleads the respondent No. 5, for their respective title to the properties and therefore, the replying respondent has locus standi to dispute the title of the petitioner even though the respondent No. 5 had nothing to do with the property in question. According to her, passage through her property is being claimed unauthorizedly and illegally by the petitioner under the garb of the sale certificate which is illegal, null and void.
16. In the. rejoinder filed by the petitioner, the averments made in the petition are reiterated.
17. The following questions arise for consideration:
(a) Whether the petition under Section 24 of the Act filed by the respondent No. 5 could have been entertained by the Chief Settlement Commissioner after more than 35 years of the issuance of the sale certificate under suo moto powers of revision.
(b) Whether the findings recorded by the Chief Settlement Commissioner that there are interpolations in the sale certificate are without any foundation in the record.
(c) Whether it was open to the Chief Settlement Commissioner to have set aside the sale certificate directing issuance of corrigendum under revisional jurisdiction in the absence of any finding of fraud, false representation of concealment of any material facts.
Heard Mr. G.C. Gupta, learned Senior Advocate for the petitioner, Mr. Ashok Chaudhary learned Additional Advocate General for respondents No. 1 to 4, 6 to 7 and Mr. Bhupinder Gupta learned Senior Counsel for the respondent No. 5.
Whether the petition under Section 24 of the Act filed by the respondent No. 5 could have been entertained by the Chief Settlement Commissioner after more than 35 years of the issuance of the sale certificate under suo moto powers of revision.
18. It is true that Section 24 of the Act empowers the Chief Settlement Commissioner to exercise revisional power 'at any time', to satisfy himself as to the legality or propriety of any order which may have been passed by a Settlement Officer, an Assistant Settlement Officer, Assistant Settlement Commissioner, Additional Settlement Commissioner, and Settlement Commissioner or a Managing Officer or a managing Corporation 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 facts, then 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, canceling the lease or allotment granted to him.
19. Mr. Gupta, learned Senior Counsel for the petitioner contends that there is no limit prescribed for exercising the revisional power by the Chief Settlement Commissioner but such powers are circumscribed by the rules. He refers to Rule 92 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, hereinafter referred to as the 'rules'. Rule 92 provides that an application for setting aside of sale should be made:
(a) Where the sale is made by public auction within seven days from the date of the acceptance of the bid;
(b) where the sale is made by inviting tenders, within seven days from the date when the tenders were opened.
20. However, Sub-rule (4) to Rule 92 says that the Chief Settlement Commissioner may, of his own motion, set aside any sale under this Chapter if he is satisfied that any material irregularity or fraud which has resulted in a substantial injury to any person has been committed in the conduct of the sale.
Section 24 of the Act reads:
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, an Additional Settlement Commissioner, a 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 subsection (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 facts, then, notwithstanding anything contained in this Act, 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, canceling 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, be 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 f or 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.
There is no scope for dispute that the Chief Settlement Commissioner can Suo moto, interfere with the order of his subordinate and can also exercise the powers to set aside the sale. The power of the Chief Settlement Commissioner under Section 24 of the Act are unfettered to satisfy himself as to the legality or propriety of an order passed by the Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Managing officer or managing Corporation and he, after satisfying himself, can even set aside the allotment or sale certificate (See: Jagir Singh and Ors. v. The Chief Settlement Commissioner ).
21. However, the Chief Settlement Commissioner cannot exercise revisional powers under Section 24 'in finitely' in time under Rule 104 read with Rule 103, as aggrieved party has to file a revision under Section 24 of the Act within thirty days unless, of course, there are special circumstances which prevented such person from filing the revision as pointed out by the Full Bench of the Punjab & Haryana High Court in Smt. Balwant Kaur v. Chief Settlement Commissioner AIR 1964 Punjab 33. Invariable rule is that in such cases aggrieved party must approach the Chief Settlement Commissioner at the earliest possible moment. If there is a great unexplained delay or latches in filing the revision, the Chief Settlement Commissioner will refuse to entertain such person petition. However, the Chief Settlement Commissioner suo moto can interfere with the orders of his subordinates 'at any time' though within reasonable time depending upon the circumstances of the case. Such a discretion has to be exercised in a reasonable manner and not arbitrarily.
22. In the present case, the respondent No. 5 admittedly has nothing to do with the sale of the property '31 Cosy Nook Estate' which was sold to Sardar Santokh Singh more than fifty years back. It is not given to the respondent 1 No. 5 to invoke the 'suo moto' jurisdiction of the Chief Settlement Commissioner without approaching the Managing Officer or the other Officers directly approached the Chief Settlement Commissioner after thirty five years of the issuance of Sale Certificate without any explanation of the delay. There is not whisper, not a word in the order of the Chief Settlement Commissioner for exercising its revisional jurisdiction after thirty five years of the issuance of sale certificate.
23. The Full Bench in Balwant Kaur held that ordinarily, a petitioner will have to file his revision within thirty days in term of Rule 104 read with Rule 103 of the rules unless there are special circumstances which prevent a party from doing so. The Full Bench ruled:. The invariable rule in such cases is that the aggrieved party must approach the Chief Settlement Commissioner at the earliest possible moment. Where there has been a great unexplained delay or laches in filing the revision, the Chief Settlement Commissioner will naturally refuse to interfere....
24. A Division Bench of Punjab & Haryana High Court in Karam Chand Thakar Dass v. Union of India and Anr. held that it could not possibly be the intention of the Parliament that title of a transferee of an Evacuee Property should be 'constantly' in jeopardy for an indefinite time, particularly when no fault of any kind is ascribed to him in obtaining the property in question. The Division Bench speaking through R.S. Narula J., as His Lordship then was observed:.Coming back, however, to the question of the meaning of the expression 'at any time' in Section 24(1) of the. Act, 1 am firmly of the view that the phrase does not authorize the Chief Settlement Commissioner to interfere with a completed deal after any length of time implying absolute indefiniteness' at any time.
The Division Bench proceeded to observe:.If the Chief Settlement Commissioner exercises his jurisdiction under Section 24(1) of the Act after a long time or after undue delay he must deal in his order with the question of delay so as to make it obvious that the delay is not undue and could not be avoided in the circumstances of the case and also to show that it is necessary in the interest of justice that interference should be made in the previous order even after lapse of so much time. Any order under Section 24(1) of the Act passed after undue delay or after the lapse of several years of the passing of the property (in respect of which the order is passed) out of the compensation pool may possibly be liable to be struck down on the ground that it is opposed to the rule of law to the effect that a quasi-judicial orders should not be lightly interfered with after they have once achieved finality merely because the Chief Settlement Commissioner thinks that the original order was not as good as it should have been....
25. There is nothing in the impugned order of the Chief Settlement Commissioner (Annexure P-14) which may suggest, even remotely, that the Chief Settlement Commissioner considered the aspect of delay and latches in spite of a specific plea to this effect. Even the Secretary (Relief and Rehabilitation) in the revision petition of the petitioner has not said a word about it.
26. The Apex Court in Karam Chand v. Union of India and Ors. : [2002]2SCR545 , took note of the fact that the Chief Settlement Commissioner entertained the revision petition after five and half years and held that it was barred by delay and latches. Their Lordships observed:.We further agree with the finding of the Financial Commissioner that the revision petition filed by the appellant before the Chief Settlement Commissioner was hopelessly barred by time. The revision petition was not accompanied by an application under Section 5 of the Limitation Act for condonation of delay. No explanation was offered for the delay in filing the revision petition. It may be noticed that the appellant was all through aware of the fact that a conveyance deed had been executed in favour of Rameshwari Dass in the year 1977. No cause much less sufficient cause has been shown by the appellant to condone the inordinate delay of five and half years in filing the revision petition before the Chief Settlement Commissioner under Section 24 of the Act.
27. The Apex Court in Ram Chand and Ors. v. Union of India and Ors. : (1994)1SCC44 , held that where no limit for exercise of power is prescribed, it should be exercised within a reasonable time.
28. This Court in connection with other statutory provisions, in case of State of Gujarat v. Patel Raghav Natha : [1970]1SCR335 and in case of Ram Chand v. Union of India 1994 (1) SCC has held that where no time for exercise of a power under a Statute is provided, it does not mean that it can be exercised at any time. Such power has to be exercised within reasonable time. In that case, the delay was less than two years.
29. In Sucha Singh and Ors. v. Gurdial Singh and Ors. 1977 P.L.J. page- 6, the Division Bench of Punjab & Haryana High Court held that the revisional jurisdiction of the Chief Settlement Commissioner under Section 24 cannot be exercised after lapse of several years. In that case, the Appellate Authority rejected the appeal in June, 1966. No further steps were taken till 1968 and it was held that in these circumstances, the revisional jurisdiction by the Chief Settlement Commissioner under Section 24 could not be exercised.
30. A similar view was taken by the Punjab & Haryana High Court in Raizada Luxmi Narain v. The Financial Commissioner and Ors. 1986 P.L.J. page 437. In this case it was held that if there is a delay in invoking the suo moto powers of the Chief Settlement Commissioner; under Section 24 of the Act then such delay is, required to be explained.
31. In the present case, the delay, as observed earlier, has neither been explained by the respondent No. 5 in her revision petition nor the Chief Settlement Commissioner has said a word about it.
Mr. Bhupinder Gupta, learned senior Counsel for respondent No. 5, relying upon a Division Bench judgment of this Court in Amar Nath v. State of H.P. and Ors. 2002 (1) Shimla Law Cases 236 would contend that where there is no period of limitation prescribed for the exercise of suo moto powers then such powers can be exercised at any time and cannot be circumscribed by any period. The ratio of this case is of no assistance to the learned Senior Counsel. What, the Division Bench said was that though the power can be exercised suo moto at any time at the instance of the aggrieved party but such power should be exercised within a reasonable time and the concept of reasonable time is flexible.
32. In the present case, the property 'Fountain Bleaue Villa' was transferred to the predecessor-in-interest of the respondent No. 5 in the year 1966 and this property was subsequently sold to respondent No. 5 in July 1978. Therefore, the respondent No. 5 was well aware of the area in occupation of the petitioner. No steps were taken by the respondent No. 5 for thirteen years till she filed petition before the Chief Settlement Commissioner in the year 1993. In these circumstances, it was not open to the Chief Settlement Commissioner to have exercised his suo moto powers of revision under Section 4 of the Act. The question is accordingly answered.
(b) Whether the findings recorded by the Chief Settlement Commissioner that there are interpolations in the sale certificate are without any foundation in the record.
33. A reading of the order of the Chief Settlement Commissioner (Annexure-P14) shows that the revision petition was filed by Enakshi Mahajan, respondent No. 5, for the review of the corrigendum issued in respect of Khasra number 600/B dated July 22, 1966 which had the effect of increase in the area of the property of the petitioner which was sold to his father Sardar Santokh Singh in the year 1961 from 856.5 sq. yds. to 894.3 sq yards. She also took a plea that the area allotted to Sardar Santokh Singh was only 576 sq. yards and the sale certificate issued to Sardar Santokh Singh in the year 1961 showing the area transferred as 856.5 sq. yards was result of interpolations. The Chief Settlement Commissioner set aside the sale certificate (Annexure P-1) and restricted the area to 576 sq. yards and directed the issuance of the corrigendum. The reason to do so, as given in the order, is that the sale certificate was issued on 31st October, 1961 and the schedule for this sale certificate showed that this property was sold for Rs. 52,000/- with its boundaries as:
East : Municipal Road.
West : Fountain Blue Villa.
North : Fountain Blue Hotel.
South : Municipal Road.
34. I have seen the record. There is nothing in the original record which may suggest even remotely, that the area of 'Cosy Nook Estate' was 576 sq. yards or that the property 'Cosy Nook Estate' sold to the father of the petitioner was 576 sq. yards. There are two copies of the sale certificate in Part-I of the files of the Managing Officer (Sales). This certificate was signed and issued on October 31, 1961 Some of the columns are typed. Other columns are filled in ink including the date of the sale of the property. It is true that the property is described as '31 Cosy Nook Estate, Shimla', in type. Purchase price is also mentioned in type. However, the Khasra numbers have been detailed in ink as also the expression 'including 3 tankies, latrine, verandah, common in between Fountain Blue and two stairs common Khasra Nos. 602, 602/1 and 602/2 (856.5 Sq. Yards and Sq. ft.)'. The record shows that though the sale certificate was issued on October 31, 1961. However, a copy thereof was not sent either to Sardar Santokh Singh or to the Sub Registrar. It was only after several requests of Sardar Santokh Singh that copy was given to Sardar Santokh Singh in the year 1963 and copy thereof was also sent to the Sub Registrar for the registration as per rules. At that point of time, there was no dispute about the area of Cosy Nook Estate as reflected in the certificate (Annexure P1). No person including the predecessor-in-interest of respondent No. 5 made any grievance. It was only after demarcation in July 1966 that Khasra number 600/B was directed to be included in the sale certificate by issuance of the corrigendum. This lead to a dispute, as already observed, between Shanti Devi, successor-in-interest of Sardar Santokh Singh and owners of 'Fountain Bleau' namely Gopal Mohan and others. The dispute ultimately landed up in Regular Second Appeal in this Court and this Court held that Khasra Number 600/B comprising verandah and stairs case was not part of Cosy Nook Estate. The Court took a view that after issuance of the sale certificate of the property sold in public auction, the Officer/Authority under the Act became functus officio as the property ceases to be evacuee property and therefore, no corrigendum could have been issued in the sale certificate issued to Sardar Santokh Singh including therein Khasra Number 600/B. The special leave petition filed by the petitioner before the Apex Court was dismissed and the finding was upheld. The same ratio would be good for the sale certificate 'Annexure-P1'. Thus, indisputably, the ownership of Sardar Santokh Singh, predecessor-in-interest of the petitioner was confined to the property as included in the sale certificate (Annexure-P1).
35. However, there is another copy of the sale certificate in Part-II of the file. Khasra Numbers mentioned may look as if they have been inserted later but these are not the interpolations as all the ink entries are signed and dated. The two certificates in Part-I of the file are similar. One of them is office copy. This apart, endorsement of this sale certificate shows that a copy of the certificate was also forwarded to the Sub Registrar, Shimla. Now a copy of the same certificate was received in the office of the Sub Registrar, Shimla before November 23, 1963 and was pasted on the register of registration on November 23, 2004. This copy was attested by the Sub Registrar, Shimla on December 2, 1963. This certified copy placed on the file as 'Annexure-P-36' in CWP No. 206 of 2000, clearly mentions not only the area of the property Cosy Nook Estate sold to the father of the petitioner but also Khasra numbers. The relevant entry reads:
SCHEDULEProperty No. Town Purchased price. Boundaries.31, Cosy Nook Estate 52,000/- (Rs. Fifty East Municipal Road,Shimla including 3 two thousands West Fountain Bluetankies Latrine, only) Villa.verandah, common in between Fountain blue and two stairs common.Khasra Nos. 602, 602/1 & 602/2 (856.5.Sq. Yds. and Sq. Ft.)Cosy Nook Estate, Shimla South: Municipal Shimla.Attested: Sd/- Surjinder Singh SahneySd/- DR & MO Ambala13.11.1963. Dated: 31.10.1961.Managing Officer (Sales) Jullundur.
36. Now the certificate was issued on October 31, 1961 and copy thereof was pasted on November 23, 1963. Therefore, it is not possible to say that any interpolations were made by or at the instance of the father of the petitioner at that point of time. Even the demarcation which resulted the inclusion of Khasra number 600/B was undertaken only on July 16, 1966 much after the issuance of the sale certificate and its pasting on the books of the Sub Registrar, Shimla.
37. So far entries in the ink in the office copy of the sale certificate are concerned, they are signed and initialed. The entries appears to have worn out with the passage of time and a paper had been pasted on the back of it to strengthen the worn out portion and it may therefore, look as if some interpolations have been made but a careful look shows that all the entries in ink, including the date of sale, the date on which the certificate was issued and the signatures of the District and Rent Managing Officer, were made on the same date. All these entries are in the same ink. As earlier observed, copy of this certificate was also sent to the Sub Registrar, Shimla for registration of the sale which was received by the Sub Registrar on November 23, 1963. At that time, admittedly, there was no dispute about the area of Cosy Nook Estate which consists of Cosy Nook Main, Cosy Nook Annexe and Cosy Nook View as is clear from the letter from the Government of India In the Ministry of Rehabilitation dated March 5, 1955 under the signatures of the Regional Settlement Commissioner Jullundur saying that the Government has decided to transfer, provisionally, with effect from May 1, 1955, the ownership of the marginally noted property for which the bid of Sardar Santokh Singh was accepted. In the margin, the property is detailed as '31, Cosy Nook, including view and annexe (sic), 219/4, G.H.Q. Shimla'.
38. The Sub Registrar in his endorsement, at the time of registration on December 2, 1963, has made an endorsement to the effect that on the receipt of this certificate of sale, the same has been pasted in the Books of Registration in Book No. 1, Vol. 16, at page 39 on November 23, 1963. Now in the year 1963, there was no doubt or dispute about the Cosy Nook Estate. It is also to be noticed that the entire property in that area has been sold and it is no body's claim that any area of any other estate has been included in the Cosy Nook Estate as sold to Sardar Santokh Singh, father of the petitioner. The respondent No. 5 claimed 169 sq. yards of the area of Cosy Nook Estate as reflected in the sale certificate (Annexure-P1) as part of Fountain Bleaue Villa. There is no pleading at all in the revision petition that how area of 169 sq. yard of Fountain Bleaue Villa has fraudulently been included at the instance of Sardar Santokh Singh in the area of Cosy Nook Estate as given in the sale certificate (Annexure-P1). It is only in the prayer clause that respondent No. 5 prays:
The applicant/petitioner may be given the ownership of 169 sq. yds. Area as per map enclosed with valuation report and for which adequate and agreed price had already been taken. This area falls in Khasra No. 598/2,598/B, 598/C, 602 and 597. The access to the house be specifically defined.
39. There is nothing on the record to show that Khasra number 602 is part of 'Fountain Bleaue Villa'.'
40. The Chief Settlement Commissioner in his impugned judgment dated order dated January 18, 1995 has taken it as a fact that Cosy Nook or Cosy Nook Estate which comprises of Cosy Nook Main, Cosy Nook. View and Cosy Nook Annexe is 576. sq. yards. He has given two reasons in reaching this conclusion. First reason is that there are interpolations made in the ink which are initialed and dated October 31, 1961. As already pointed out by me, the ink entries made in the sale certificate cannot be said to be interpolations by any stretch. He has also noticed that there is a typed certified copy which is attested by Shri Radha Krishan Punshi, Advocate and Oath Commissioner which also shows this addition and interpolation making a total area of 856 Sq. Yds. And 5 Sq. ft. However, the Chief Settlement Commissioner lost, sight of the fact this attested copy of the sale certificate was furnished by Sardar Santokh Singh at the asking of the Department. The Chief Settlement Commissioner also refers to the explanation called from Avtar Singh L.D.C. Rehabilitation Department, Karnal who stated that he never worked as Sales Clerk at Jullandur and therefore, question of making any additions or alterations by him does not arise. Merely because those additions or entries in the columns were not made by Avtar Singh would not mean that Sardar Santokh Singh, predecessor-in-interest of the petitioner was in anyway instrumental or responsible for these entries having been made in ink. Be it noticed that if these entries are excluded from the sale certificate, then the sale certificate remains incomplete inasmuch as even the date of issuance of the sale certificate and the date of the sale would be missing from the sale certificate.
41. So far the cutting in the valuation form in Cosy Nook Estate are concerned, there are indeed cuttings which are initialed but such cuttings are also found in the valuation, forms of Fountain Bleau Villa and other such forms. It may also be noticed that in the valuation Form-A the area of fountain Blue Villa is given 147 sq. yds. In the deed of conveyance executed on September 30, 1955, Shri Kishore Chand Bhandari, original allottee of Fountain Blueau Villa was sold an area of 169 sq. yards or there about as is apparent from the deed of conveyance in Appendix XXIV. The relevant portion of the Schedule reads that the property Fountain Bleaue Villa was sold to Shri Kishore Chand for rupees 14,500/- which measured 169 sq. yards or there about. Schedule-I reads:
SCHEDULE-I.
All that piece or parcel of land and/or building(s) situated in Shimla containing by admeasurement 169 Sq. yds. or thereabouts and bounded:
On the North by : Fountain Bleaue Cottage.
On the South by : Local property.
On the East by : Fountain Bleaue Hotel.
On the West by : Other House.
42. Even two sale deeds Annexures P7 and P8, by which Fountain Bleaue Villa was sold by the successor-in-interest of Shri Kishore Chand Bhandari to the respondent No. 5 very clearly says that Fountain Bleaue Villa three storey pucca comprised in Khasra number, 598/B and 598/2 measuring 145 sq. yards and 7 sq. ft. besides Khasra number 598/C measuring 17 sq. yards and 8 sq. ft. comprising common passage as mentioned in copy of Aks tatima was sold. This makes the total area sold to respondent No. 5 as about 169 sq. yards. Respondent No. 5 legally cannot claim more than what she purchased. Thus, the impugned order of the Chief Settlement Commissioner as affirmed by the Financial Commissioner-cum-Secretary Relief and Rehabilitation is without ,any foundation and the claim of the respondent No. 5 to 169 sq. yards from Cosy Nook Estate comprised in Khasra number 602 is without any foundation in the record except a bare averment made in the petition.
I have already said that so far Khasra number 600/B is concerned, this Court in Regular Second Appeal No. 418 of 1990 held that after issuance of the sale certificate which indeed is the sale certificate (Annexure P-1) as issued to Sardar Santokh Singh and registered with the Sub Registrar could not be corrected or altered by the authorities and authorities become functus officio after the issuance of the sale certificate.
43. The Chief Settlement Commissioner in his order concluded: 'The sale certificate is highly suspicious under the circumstances mentioned above' set aside the same. He directed the rectification of the sale certificate by issuance of a corrigendum and recording the original typed entries as given in the original certificate dated October 31, 1961. It is interesting to note that there is no original certificate on the records.
44. The Financial Commissioner-cum-Secretary Revenue and Secretary Relief and Rehabilitation, exercising the revisional powers upheld the orders of the Chief Settlement Commissioner observing that the original sale certificate is available on the record its typed portion indicates that the total area of the property is 576 Sq. Yds. And it was sold for Rs. 52,000/-. To say the least, the Financial Commissioner has only been presumptuous. There is nothing in the sale certificate, even if the typed portion is read, to show that area of the property is 576 sq. yds. If the hand written portion is excluded, then it only details the boundaries; of the Cosy Nook Estate and not either Khasra numbers or areas.
45. It may be noticed that the petitioner made a grievance and filed an application before the Chief Settlement Commissioner that certain documents have been removed from the files at the instance of husband of respondent No. 5 who was a Senior Police Officer at the relevant time. In fact, the revision petition filed by the respondent No. 5 before the Chief Settlement Commissioner has been signed by Mr. T.R. Mahajan designating himself as Director General of police and general power of attorney. Even the report which was called for by the Financial Commissioner-cum-Secretary Relief and Rehabilitation shows that certain documents have been removed or are missing but the Additional District Magistrate, Shimla who enquired into the matter took a view that there was no evidence to show that the husband of the respondent No. 5 was instrumental in getting those papers removed. The fact remains that certain relevant papers had been removed from the files which would also indicate that there was no sufficient material on record for the Chief Settlement Commissioner to have concluded that the sale certificate was tampered with or the area of Cosy Nook Estate was not 856.5 sq. yds. or was 576 sq. yds.
46. The observations of the Financial Commissioner-cum-Secretary Relief and Rehabilitation that entries made in ink in the certificate were fraudulent is without any foundation. The conclusion of the Financial Commissioner in his impugned order reads:
I have heard the arguments of all the parties and after gone through the record in detail. The factual position as brought out by the record is that the typed entry in the original sales certificate mentioned certain facts about the property which were changed completely by the entries in ink made on it. It is also clear from the record that these entries were not made by anybody who was authorized to do so. I also find that these aspects of the case have been examined thoroughly by the officers by the officers who have examined this case including the Chief Settlement Commissioner (Rehabilitation) and the Divisional Commissioner, Shimla against whose order these revised petitions have been filed. Accordingly I do not find any merit in the present revision petitions and the same are accordingly dismissed.
47. A reading of the order of the Financial Commissioner exhibits total non-application of mind. He has not referred to any record. What he says is that the typed entries in the original sales certificate mentioned certain facts about the property which were changed completely by the entries in ink. I am afraid, no such change has been brought about by entries made in ink. It only mentions the Khasra numbers which are not in dispute and area. He concluded that all these aspects have been examined by the Officer who examined the case including the Chief Settlement Commissioner and therefore, he finds no reason to interfere with the orders of the Chief Settlement Commissioner.
48. It is admitted position that the original sale certificate is missing and is not available on record. A serious allegation was made by the petitioner that certain documents have been removed firom the records for which husband of the petitioner Mr. T.R. Mahajan, a retired Director General of Police, who then was a very Senior serving Police Officer is responsible for the same. An inquiry was made by the Additional District Magistrate, Shimla who found that the documents indeed were missing from the file but could not pin point how and when these documents were removed. This position give credence to the allegation or insinuation made by the petitioner.
49. Another question which stares at us is that when this was alleged interpolation discovered. Who discovered it? Under what circumstances? Why it was not reported by that person to the concerned authorities? The allegation was made for the first time in the revision petition filed by the respondent No. 5 under Section 24 of the Act requesting that the same be treated as suo moto revision petition. In the entire petition there is not a word, not a whisper how the respondent No. 5 came to know that these interpolations have been made unless the records were inspected by the respondent No. 5. There is no application for inspection on the records which may have been filed by the respondent No. 5. Were these records given to the respondent No. 5 unauthorizedly by some persons? On the other hand, it is the petitioner who was allowed to inspect the record by his applications dated August 22, 1997, June 6, 1998 and August 16, 1999.
50. To conclude the findings of the Chief Settlement Commissioner as affirmed by the Financial Commissioner-cum-Secretary Relief and Rehabilitation that the Cosy Nook Estate comprised only 576 sq. yards has no basis or foundation whatsoever on the record. The question is accordingly answered.
(c) Whether it was open to the Chief Settlement Commissioner to have set aside the sale certificate directing issuance of corrigendum under revisional jurisdiction in the absence of any finding of fraud, misrepresentation or concealment of any material facts.
51. The revisional powers of the Chief Settlement Commissioner stems from Section 24 of the Act. Such power to cancel an allotment or a sale certificate is judicial in nature and the jurisdiction of the Chief Settlement Commissioner arises if an allotment or sale is obtained by an allottee or purchaser by fraud, misrepresentation or concealment of material facts.
52. The Apex Court in Shauqin Singh and Ors. v. Desa Singh and Ors. : AIR1970SC672 interpreting the provisions of Section 24 of the Act observed in para 6:
6. Section 24(2) of the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954 confers authority upon the Chief Settlement Commissioner to revise the orders of subordinate authorities. In so far as it is relevant it provides:
Without prejudice to the generality of the foregoing power under subsection (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, not withstanding any thing contained in this Act, the Chief Settlement Commissioner may pass an order.... canceling the lease or allotment granted to him...
The Chief Settlement Commissioner has, therefore, ower under Sub-section (2) to cancel an allotment if he is satisfied that the order of allotment of land had been 'obtained by means of fraud, false representation or concealment of any material fact.' The power is judicial and by the use of the expression 'is satisfied' the Chief Settlement Commissioner is not made the final arbiter of the facts on which the conclusion is reached. The jurisdiction of the Chief Settlement Commissioner arises only if an allotment is obtained by means of fraud, false representation or concealment of material facts. The relevant satisfaction is a jurisdictional fact on the existence of which alone the power may be exercised. A superior authority or the High Court in a writ petition would, there fore, be entitle to consider whether there was due satisfaction by the Chief Settlement Commissioner on materials placed before him and that the order was made not arbitrarily, capriciously or perversely.
(Emphasis given)
53. As held by the Supreme Court, the Chief Settlement Commissioner can exercise the power of revision for the cancellation of the sale certificate or allotment only if an order of allotment or sale had been obtained by means of 'fraud', 'misrepresentation' or 'concealment of any material facts'. The atisfaction of the Chief Settlement Commissioner is a jurisdictional fact on the existence of which alone the powers may be bxercised.
In the present case there is no finding of either the Chief Settlement Commissioner or the Financial Commissioner-cum-Secretary Relief and Rehabilitation exercising the power of Government of Himachal Pradesh in revision that the sale certificate was obtained by the petitioner by practicing fraud or misrepresentation or concealment of fact. What the Chief Settlement Commissioner in his impugned order says after noticing the submision of respondent No. 5 is:
The learned Counsel for the applicant/petitioner as argued that the very fact that the original sale certificate had everything like the money of the property and boundaries date etc. typed, the other things written in ink and that the with many types of ink coupled with the statement of Sh. Santokh Singh as well as the explanation of Sh. Avtar Singh shows that these additions alternations and interpolations were made later on unauthorizedly with ulterior motive to benefit Sh. Santokh Singh and to cause loss to the Government.
54. This was the submission of respondent No. 5 before the Chief Settlement Commissioner but he has not given any finding on this. He has not even said a word that Sardar Santokh Singh was responsible for these interpolations in any manner. There is no allegation much less finding that any fraud was practiced by Sardar Santokh Singh or that he made any misrepresentation or concealed any material fact in obtaining the sale certificate. I have already said that factually there are no interpolations. The original sale certificate is missing for which, by no stretch, the petitioner can be held responsible because he himself has complained, while inspecting the file that such certificate was missing from the record. On the other hand, the needle of suspicion clearly points towards the respondent No. 5.
55. The other arguments which was raised before the Chief Settlement Commissioner were that 'when the area was increased, there should have been a corresponding increase in the sale value but this has not been done'. Secondly, no opportunity whatsoever was afforded nor any public inquiry made. This allegation indeed is without any foundation in the record. There is nothing on the record which suggests that area was ever increased.
Now the reasons led to the findings and conclusions given by the Chief Settlement Commissioner in one paragraph are:
I have given careful thought to all these facts, the arguments advanced and the judgment of the Hon'ble High Court of Himachal Pradesh and have no hesitation in coming to the conclusion that this interpolation and addition made in the original sale certificate through addition alterations and through corrigendum is illegal and unwarranted and are hereby set-aside and it is ordered that this be rectified by issuing of a new corrigendum and restoring the original typed typed entries as given in original certificate of sale dated 31st October, 1961. Corrections be made accordingly.
56. A reading of this paragraph shows that no reason in spite of 'careful thought' of the Chief Settlement Commissioner can be culled out. In any event, the Chief Settlement Commissioner does not say that the sale certificate was obtained by the petitioner by practicing fraud, misrepresentation or concealment of fact.
A Three Judges Bench of the Supreme Court reiterated in Estates Development Ltd. (In liquidation) v. The Union of India and Ors. : [1970]2SCR534 that the allotment or sale certificate had been obtained by a false representation or fraud or concealment of material fact is a condition precedent for taking action under Section 24(2) of the Act. The condition is mandatory and in the absence of any such finding, the Chief Settlement Commissioner has no jurisdiction to cancel the allotment.
Their Lordships observed:
It is not necessary to examine this document in detail for we are of the opinion that the appeal must be allowed and the order of the Chief Settlement Commissioner must be quashed on the ground that there is no finding of the Chief Settlement Commissioner that the Company had obtained allotment of the land 'by means of fraud, false representation or concealment of any material fact' within the meaning of Section 24(2) of the Act.
57. Either under Sub-section (1) of Section 24 or Sub-section (2) of Section 24, the Chief Settlement Commissioner does not enjoy unfettered power or arbitrary discretion to cancel an allotment (See : 1964 (6) PLR 770 and 1979 PLR 297).
58. To conclude, in the absence of any allegation or finding of fraud, misrepresentation or concealment of fact on the part of Sardar Santokh Singh in obtaining the sale certificate in question, the Chief Settlement Commissioner had no jurisdiction to cancel the sale certificate and issue corrigendum giving less area than what is in possession of the petitioner for the last over fifty years.
59. Mr. Bhupender Gupta, learned Senior Counsel in the end urged that as there are disputed questions of fact involved in this petition, therefore, this Court will not interfere in its jurisdiction under Article 226 of the Constitution of India. The contention is misplaced.
60. Firstly there are no disputed questions of facts involved in this writ petition. Under challenge is the order of the Chief Settlement Commissioner as affirmed by the Secretary Relief and Rehabilitation in the revision under Section 33 of the Act. The Apex Court in Shauqin Singh supra, held that in such a situation, a superior authority or a High Court in the writ petition would be entitled to consider whether there was due satisfaction of the Chief Settlement Commissioner or that the order was not made arbitrarily. Their Lordships observed:.The jurisdiction of the Chief Settlement Commissioner arises only if an allotment is obtained by means of fraud, false representation or concealment of material facts. The relevant satisfaction is a jurisdictional fact on the existence of which alone the power may be exercised. A superior authority or the High Court in a writ petition would, therefore, be entitled to consider whether there was due satisfaction by the Chief Settlement Commissioner on materials placed before him and that the order was made not arbitraily capriciously, or perversely.
61. Secondly, there was no other equally efficacious remedy available to the petitioner after his revision petition was dismissed by the Financial Commissioner-cum-Secretary Relief and Rehabilitation.
62. Section 36 of the Act specifically bars the jurisdiction of the Civil Courts to entertain any suit or proceedings in respect of any matter which the Central Government or any Officer or Authority appointed under the Act is empowered by or under the Act to determine. Section 36 reads:
36. Bar of jurisdiction:-Save as otherwise expressly provided in this Act, no Civil Court shall have the jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any office or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
63. Section 27 of the Act also lays down that every order made by the officer or Authority under the Act including a Managing Corporation shall be final and shall not be called in any question in any Court by way of appeal or revision or in any original suit, application or execution proceedings. Section 27 reads:
Finality of orders : Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act, including a managing Corporation, shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceeding.
64. A reading of Section 27 and 36 of the Act shows that finality is attached to an an order made by an officer or authority under the Act. Such an order is not open to challenge in any Civil Court. It is not given to the Civil Court to challenge the correctness or otherwise of the decision of the authorities under the Act.
I draw support for the view I have taken from Sardari Lal and Anr. v. Union of India and Ors. : AIR1974Delhi151 , Darbara Singh v. The Union of India and Anr. 1972 Punjab Law Reporter 381).
No other point was urged.
The inevitable conclusion is that the impugned order of the Chief Settlement Commissioner, dated 18.1.1995 Annexure-P14 in Case No. 3/ 93-CSC as affirmed by the Financial Commissioner-cum-Secretary (Revenue)-cum-Secretary Relief and Rehabilitation dated 13.3.2000 in case No. 199 of 1995 being illegal, without jurisdiction and unfounded are liable to be quashed.
CWP No. 405 of 2000.
65. Challenge in this writ petition is to the order of the Assistant Settlement Officer, Shimla exercising the powers of Settlement Collector, Shimla dated 21.8.1993, 'Annexure-P4', as affirmed by the Divisional Commissioner, Shimla by his order dated 29.6.1995 in Case No. 156/1993 (Annexure-P5) and the order of the Financial Commissioner-cum-Secretary (Revenue)-cum- Secretary (Relief and Rehabilitation) dated 13.3.2000 in case No. 199/1995 (Annexure-P 6).
As already noticed in earlier part of the judgment, Evacuee property Fountain Blue Villa was sold to Kishore Chand Bhandari. This property was inherited by his sons. Lt. Col. V.K. Bhandari, Devinder Kumar Bhandari, Bhupinder Kumar Bhandari and Narinder Kumar Bhandari. They sold this property in the year 1978 by two separate sale deeds to respondent No. 5, Enaksni Mahajan (Annexure P7 and P8 in CWP No. 296 of 2000 translation whereof is Annexure P7/T and P8/T on record). First sale deed (Annexure-P7) was executed by Lt. Col. V.K. Bhandari, Devinder Kumar Bhandari and Bhupinder Kumar Bhandari in respect of their 3/4th share in the 'Fountain Blue Villa'. The property is described as 'Three storeyed pucca house tin roofed building existing over the land comprising Khasra Number 598/B and 598/2 (Kitas-2) measuring 145 sq. yds. and 7 sq. ft. besides Khasra Number 598/C measuring 17 sq. yds. and 8 sq. ft. comprising common passage as mentioned in copy of Aks Tatima prepared by Patwari Station Ward Bara Shimla, Municipal Corporation, Shimla'. Thus, Mrs. Enakshi Mahajan was sold three Khasra numbers namely, 598/ B, 598/2 and 598/C. Khasra No. 598/C is described as 'common passage' mentioned in Aks Tatima with the sale deed. Simalarly, the remaining 1/4th share was sold by Narinder Kumar Bhandari on 5th July, 1978. Under this sale deed also, the property 'Fountain Blue Villa' is described in the same terms which reads:
Three storeyed structure existing over Khasra Numbers 598/B and 598/2 (Kitas-2) measuring 145 Sq. Yds. 7 Sq. ft. besides illegible) joint share in the property comprising khasra number 598/ C measuring 17 sq. yds 8 sq. ft. the full description of which has been given in a copy (attached) of aks tatima prepared by Patwari Station Ward, Bada Shimla, Municipal Corporation, Shimla.
66. It appears, Sardar Santokh Singh filed an application before the Managing Officer (Sales) (Annexure P23 in civil writ petition No. 296 of 2000) saying that there is a common stairs case mentioned in the sale certificate issued to Kishore Chand Bhandari purchaser of Fountain Blue Villa adjoining the property of Santokh Singh but the common stairs case/passage has not been mentioned in the sale certificate issued to him, which should be corrected. The Managing Officer inspected the spot on July 16, 1966 and issued corrigendum in the deed of conveyance executed in favour of Kishore Chand in the Schedule of property that after the word boundaries' the word verandah and two stairs case common' shall be inserted. The change was never challenged by Kishore Chand Bhandari or his sons. Based on this, an application was filed by the petitioner sanctioning the mutation of half share in Khasra number 598/ C which was allowed. Enakshi Mahajan sent an application, by post, to the Settlement Officer; Shimla requesting that the orders of the Assistant Collector 2nd Grade-cum-Naib Tehsildar, Shimla dated 8.11.1990 sanctioning mutation No. 1884 whereby half share of Khasra number 598/C measuring 17 sq. yds. and 8 sq. ft. was given to Sardar Santokh Singh may be cancelled on the ground that enquires reveal that the Relief and Rehabilitation Department had not sold half share in the impugned Khasra number 598/C to any body. The Settlement Officer made an endorsement.
Received by Dak. This case shall be heard and disposed as per law by the Assistant Settlement Officer Town.
67. Having received this application, the Assistant Settlement Officer treated it as an appeal and by his impugned order dated 21.8.1993 set aside the order dated 8.11.1990 and remanded the case back to the Assistant Collector for decision afresh on the ground that the mutation was attested ex-parte and no steps were taken to intimate the concerned parties regarding the attestation of the mutation. It was only the present petitioner as attorney of his mother who was present at the time of attestation mutation.
68. Dis-satisfied, the mother of the petitioner carried an appeal before the Commissioner, Shimla which was dismissed by impugned order dated 29.6.1995 (Annexure-P5) on extraneous grounds such as, in second appeal, this Court in Shanti Devi v. Gopal Mohan and Ors. on 7.10.1994 set aside the order including Khasra number 600/B in Cosy Nook Estate which was affirmed by the Supreme Court and the Ors. of the Chief Settlement Commissioner which are impugned in the other petition.
69. Not satisfied, the present petitioner approached the Financial Commissioner-cum-Secretary (Revenue)-cum-Secretary (Relief and Rehabilitation) dated 13.3.2000 in Case No. 199/95 which was disposed of by common order as noticed above. In this order also, the Financial Commissioner says nothing except that these aspects of the case were considered thoroughly by the Officers who examined the case including the Divisional Commissioner against which order the revision petition filed by the mother of the petitioner. I see nothing wrong in the order of remand as respondent No. 5 was not heard when the mutation transferring half share in Khasra number 598/C was attested/transferred in the name of predecessor-in-interest of the petitioner. However, apparently, Respondent No. 5 Enakshi Mahajan is not entitled to anything more than what was sold to her by the sellers of 'Fountain Blue Villa' under two different sale deeds noticed above. I hasten to add that so far the question of the area of Cosy Nook Estate is concerned, it will not be open to the Assistant Collector or the Appellate Authorities to question the area in view of my findings and observations made in Civil Writ Petition No. 296 of 2000.
70. No othor point is urged before me.
71. In result, Writ Petition No. 296 of 2000 is allowed. The order of the Chief Settlement Commissioner dated 18.1.1995 (Annexure-P14) in Case No. 3/1993-CSC, the order of the Financial Commissioner-cum-Secretary (Revenue)-cum-Secretary (Relief and Rehabilitation) dated 13.3.2000 (Annexure-P22) are set aside and quashed consequently the corrigendum issued by the Naib Tehsildar dated 4.2.1995 (Annxure-P27) is also quashed. The sale certificate Annexure-P1 is held to be legal and valid. No costs.
CMPS No. 1647 of 2001, 1539 of 2002, 1917 of 2004 in CWP No. 296 of 2000.
72. No order in view of the disposal of the writ petition.
Writ petition No. 405 of 2000 is dismissed subject to the observations made herein above. The Assistant Collector 2nd Grade shall proceed to decide the application of the predecessor-in-interest of the petitioner regarding the attestation of mutation No. 1884 afresh after due notice to both the parties in accordance with law and the observations made herein above.
No costs.