- (1.) The petitioner, who died pending appeal, claimed to be a purchaser at an auction held on 06.05.1988 of certain properties under the rules made under Displaced Persons (Compensation and Rehabilitation) Act of 1954 (for short, 1954 Act). He was declared to be the highest bidder at Rs. 56,000/- against the reserve price of Rs. 26,095/-. According to the petitioner, the only objection that was made was at the instance of one Naranjan Ram, who was son-in-law of 3rd respondent-Chamela Ram and although rules required deposit of 20% to entertain any objection, no such deposit had been made. The Tehsildar (Sales), therefore, recorded the fact that the objector himself did not press his objections later and he had also observed that the 3rd respondent-Chamela Ram, who claimed to be in an unlawful occupation even prior to auction, did not avail of an opportunity to pay the occupation charges, as called upon to do through a notice on 06.04.1988. Since he did not make the payment within the time stipulated, the property had been put up for auction. This was sought to be challenged by Chamela Ram before the Settlement Commissioner in revision under the State rules and the impugned order was passed directing a consideration of Chamela Ram's claim in accordance with the new policy of the Government issued on 18.07.1988. The Settlement Commissioner ruled that the third respondent's claim was bound to be examined in terms of the new policy and the mere fact that auction had been held after giving an opportunity on a previous occasion on 06.04.1988 will not conclude the rights of parties.
(2.) Independent of the proceedings before the authorities under the Act, the third respondent-Chamela Ram had sought for a declaration that the auction held on 06.05.1988 in favour of third respondent was not valid. The court had held that the auction was null and void on the ground that person in possession of evacuee property had a preferential right to secure a transfer in his favour and as per Section 19 of the 1954 Act, a person in possession of the evacuee property should be given reasonable opportunity of showing cause against eviction and since opportunity was not given, the sale held by the Government was not justified. The civil court actually took notice of the Settlement Commissioner's order for coming to the decision that he did, which is itself the subject of challenge in their writ petition. The decision of the appellate court also held the auction to be not valid and the State has come on second appeal in RSA No.4507 of 2001. The case has been admitted on the substantial questions of law raised requiring a consideration of whether a State itself could be taken as an aggrieved party in a contest between two private individuals and whether the civil court had jurisdiction to entertain such a suit. The other points that arise are also whether in the absence of finding regarding violation of the procedure mentioned under the rules, a sale by way of auction could be held to be illegal. The further points are whether an unauthorized occupant had any superior rights compared to an auction purchaser and a direction for consideration of entitlement of unlawful occupier could be understood as implied order of setting aside the auction held.
(3.) The civil suit is indeed a duplication of an effort which was in challenge in the writ petition filed in the year 1992 itself. The civil court decree has literally followed the decision of the Commissioner in directing the third respondent's claim under the new policy. Its finding that the auction held must be taken to be invalid on the ground that the preferential right of the petitioner was not examined allows for the same consideration which has prevailed on the Settlement Commissioner in directing the examination of the 3rd respondent's claim. All the substantial questions which are raised in the second appeal stand subordinated to the principal consideration raised in the writ petition. In my view, there is no doubt that a person in unlawful occupation was entitled to be considered for preferential right of sale if policy considerations dictated such a course. That was precisely so considered on 06.04.1988 when an opportunity was reported to have been given to the third respondent to appear before the Tehsildar (Sales) on 18.04.1988 and deposit the rent for his unauthorized occupation on or before 18.04.1988. There is a specific averment made in the petition in paragraphs 5 and 6 that the third respondent did not avail of that opportunity and he did not deposit the rent. The property was reported to have been put up for auction on 06.05.1988 only on the failure of the third respondent to pay the rent and thwart the sale. This contention is met by the third respondent in his reply as follows:- "That the contents of these paras are only partly admitted/correct. The replying respondent did go to the Tehsildar (Sales)'s office along with the lagan amount but the same was not accepted on the plea that general stay order was in operative (sic) since and the price fixation matter was under consideration of the Government/Rehabilitation Deptt." When the property was put to auction on 06.05.1988, it is no doubt true that the third respondent himself did not seek to set it aside and he had allowed his son-in-law to oppose the sale but even when his objections were not pressed, the matter did not conclude there. The third respondent had sought to challenge the action of the Tehsildar directly by means of a revision petition on a plea that he was an inferior evacuee as a person to whom the property had been leased and that the sale had been effected without any notice to him. It is not as if the auction was not challenged under the provisions of the relevant rules, as contended by the learned senior counsel appearing on behalf of the petitioner. On the other hand, the matter was directed to be considered by the order of the Settlement Commissioner on 18.07.1988 only in the revision filed by the 3rd respondent. That order was not put in challenge by the petitioner. It can be noticed that when the Settlement Commissioner directed a fresh consideration by the Tehsildar, the third respondent had already approached the civil court also for a declaration that the sale effected was null and void, in that the sale had been effected without notice to him and in violation of Section 19 of the 1954 Act. When the Tehsildar was directed to consider the third respondent's right, it was another way of saying that the auction that had taken place in favour of the petitioner was to be examined in the context of whether the third respondent had a preferential right and, therefore, the property itself could not have been put up in auction. That right was to be examined in terms of liberalization of the policy relating to the disposal of the rural and sub-urban evacuee lands.;