Singh & Others Vs. Panchayat Samiti, Ferozpur & Others  Insc 257
(13 April 2004)
Lahoti & Ashok Bhan. Bhan,J.
appeals have been filed against a common judgment of the Punjab and Haryana High Court, wherein the
High Court has set aside the order of the revisional authority (Commissioner, Ferozpur)
and cancelled the sale made by Tehsildar(Sales) in favour of the appellants.
facts of all the cases are similar and presently the facts are taken from the
appeal of Gurcharan Singh son of Mohan Singh (hereinafter referred to as the
'appellant'). Appellant applied for transfer of land measuring 24 kanals 13 marlas
being 1/4th share of land measuring 98 kanals 12 marlas comprising Khasra No.
136M/7(8-0), 8(8-0), 9(8-0), 6/2(4- 4), 14(7-9), 15/1(2-3), 15/2(2-18),
17/1(4-2), 17/2(1-10), 24/2(2-12), 19(8- 0), 21/2(5-7), 22/1(6-6),
139M/1/1(5-11), 2/1(0-710/1(0-2), 136M/12(8-0), 13(8-0), 18/1(0-1), 18/2(7-3),
23/2(0-17), situated in village Khai, Tehsil Ferozpur on the ground that he was
in continuous possession of this land since Khariff 1989. The case recommended
by the Tehsildar(Sales), Ferozpur vide his report dated 25th March, 1994 was approved by the Sales
Commissioner, Ferozpur vide his order dated 29th March, 1994.
Samiti, Ferozpur, respondent No.1, (hereinafter referred to as the
'respondent') filed an appeal in the Court of Sales Commissioner, Ferozpur on 19th May, 1995. The Sales Commissioner, Ferozpur
vide his order dated 6th
June, 1995 returned
the appeal on the ground that the Act and Rules pertaining to transfer of land
were not applicable. Respondent then filed an appeal before the Chief Sales
Commissioner (Deputy Commissioner), Ferozpur against the transfer of the land
in favour of the appellant. The appellate authority after perusing the record
came to the conclusion that the appellant had taken the land on lease from Panchayat
Samiti for a sum of Rs.30,000/- in the year 1989-90 vide receipt No. 78 dated 2nd May, 1989. Subsequent to the taking of the
land on lease, the appellant filed an application for allotment of land
treating it to be in the ownership of the State being a Package Deal Property.
The appellate authority found that the land belonged to the District Board and
on the abolition of the District Board the land was transferred to the Panchayat
Samiti, Ferozpur. Mutation had also been sanctioned in favour of the Panchayat Samiti.
It was held that the land did not belong to the State of Punjab and the transfer made in favour of
the appellant was bad in law as well as fraudulent. Aggrieved against this
order of the appellate authority the appellant filed a revision before the
Commissioner, Ferozpur Division, which was accepted.
against the said order of the revisional authority, respondent filed a writ
petition which was accepted. The High Court held that the land was not a
Package Deal Property which had been transferred by the Central Government to
the State Government on payment of price. That the land belonged to the
District Board and on the dissolution of the Board, the land was transferred
and mutated in favour of the respondent.
was found to be the owner of the land and the sale made in favour of the
appellant was held to be invalid and without jurisdiction.
the order of the revisional authority was set aside and the sale made in favour
of the appellant was also set aside.
have heard learned counsel for the parties at length.
deal property is the property which is transferred by the Central Government to
the State Government on payment of price. Clause (1-A) of Section 2 of the
Punjab Package Deal Properties (Disposal) Act, 1976, defines the "package
deal property" as the property which was taken over as surplus evacuee
property by the State Government. The Schedule attached to the aforesaid Act,
gives details of the lands which were bought by the state Government of Punjab
from the Central Government. On transfer by the Central Government all such
lands vested in the Provincial Government under the aforesaid Act. Counsel for
the appellant fairly conceded that the land in question does not find mention
in the Schedule attached to the aforesaid Act. This conclusively shows that the
property was not a "package deal property" as contended by the learned
counsel for the appellant and was not in the ownership of the State Government.
property belonged to the District Board. It has been provided under Section 118
of the Zila Parishad Act, 1961 that on the abolition of the District Boards,
all the assets and liabilities would devolve on the Panchayat Samitis
functioning in the districts or in the Zila Parishad in such manner as the
Government may order/direct. On the abolition of the District Boards, their
properties were apportioned amongst the Zila Parishads and the Panchayat Samitis
under the order of the State Government dated 13th February, 1962. The property situated in village Khai (which is in
dispute) has been shown in Schedule 'H' annexed to the order of the State
Government dated 13th
February, 1962. It has
been described as 'Nazul' property. Thereafter on a request made by the
respondent-Panchayat Samiti, the Deputy Commissioner, Ferozpur directed the
Sub-Divisional Officer(Civil), Ferozpur, on 9th May, 1972 to transfer the land to the
respondent. It was made clear in the said letter that the government land
situated at village Fattuwala, Gamewala, Khai and Mamdot belonged to the Zila Parishard
and thereafter the land stood transferred to the respondent.
also shows that the land did not belong to the State government but belonged to
the Zila Parishad/Panchayat Samiti as the successor to the District Board and
which in turn was transferred to the respondent.
with this situation as a last resort, learned counsel for the appellant
contended that the appellant was bona fide purchaser for consideration without
notice and, therefore, the protection provided under Section 41 of the Transfer
of Property Act was available to him. We do not find any force in this
submission. Section 41 of the Transfer of Property Act reads:
Transfer by ostensible owner Where, with the consent, express or implied, of
the persons interested in immovable property, a person is the ostensible owner
of such property and transfers the same for consideration, the transfer shall
not be voidable on the ground that the transferor was not authorised to make
it: provided that the transferee, after taking reasonable care to ascertin that
the transferor had power to make the transfer, has acted in good faith."
Under section 41 of the Transfer of Property Act, transfer made by an
ostensible owner with the consent, express or implied of the real owner is
protected provided that the transferee after taking reasonable care to
ascertain that the transferor had the power to make transfer had acted in good
faith. Learned counsel for the appellant was unable to show from the record
that the State government had transferred the land in favour of the appellant
acting as an ostensible owner with the consent, express or implied, given by
the respondent in favour of the State Government. Learned counsel for the
appellant was also unable to show that the appellant had taken any care to
ascertain that the State Government was either the owner or had the power to
transfer the land and that he had acted in good faith. On the contrary, it has
been brought on record that the appellant had taken the land on lease from the
respondent in the year 1989-90 which clearly demonstrates that he knew that the
respondent was the owner of the land. Even in the Zamabandi, exhibit P-9,
wherein the State government has been shown to be the owner, the possession of
the appellant in column No.5 has been shown to be through the respondent-panchayat
samiti. In spite of knowing all these facts the appellant did not take care to
ascertain the title of his vendor. In these circumstances the appellant is not
entitled to the protection provided under section 41 of the Transfer of
land was transferred to the appellant on payment of Rs.62,625/- out of which
the appellants had initially deposited a sum of Rs.3,082/- being the 1/20th
share of the prioce within 15 days in the treasury on the presentation of the challan.
The remaining amount was to be deposited with interest @ 10% in 19 equated
installments. Learned counsel for the parties were unable to state as to how
much amount has been paid by the appellants to the State Government. In the
circumstances, we direct that the appellants (in all four appeals) would be
entitled to the refund of whatever amount has been deposited by them with the
State Government. The State Government is directed to refund the amount
deposited by the appellants within a period of three months from today.
the reasons stated above, we do not find any merit in these appeals and the same
are dismissed with no order as to costs.