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1970 DIGILAW 282 (DEL)

S. JASBIR SINGH v. CHIEF COMMISSIONER, DELHI

1970-12-23

PRAKASH NARAIN

body1970
PRAKASH NARAIN ( 1 ) THIS petition under Article 226 of the Constitution of India is directed against the purported acquisition of certain garden land in Village Malakpur Chhawani in which the petitioners claim an interest. The contentions are that the acquisition is illegal and should be set aside inasmuch as vis- a-vis the petitioners there has been noncompliance of the mandatory provisions of Sections 5-A and 9 of the Land Acquisition Act, 1894. ( 2 ) THREE acres out of a garden known as Mojiwala Bagh in village Malakpur in all measuring 21 bighas and 19 biswas comprised in khasra No. 383 was temporarily allotted to one Ishar Singh by the Assistant Custodian of Evacuee Property (Rural), Delhi on 7-5-1953. It will be pertinent to read the terms of this allotment letter produced by the petitioners and relied upon by them. It reads as under: "from The Assistant Custodian of E. P. Rural, Delhi, To Shri Ishar Singh, House No. XV/ 8934. Multani Dhandha. Pahar Ganj, Delhi. Memorandum: Subject: Allotment of Garden. You have been temporarily allotted 3 acres out of Garden known as Mouiawala Bagh, measuring 21 bighas and "19 biswas comprising Khasra No. 383, situated in village Malikpur Cantt. on the following conditions: Income of the remaining portion of the said garden will be credited in the treasury. 1. That provided that you agree to reside in the garden and maintain the same by yourself or with the help of the displaced tenants. 2. You shall be wholly responsible Tor the proper up-keep and maintenance of the garden and fruits and buildings thereon and share also pay the prescribed rent and other cesses as fixed. 3. The garden allotted to you cannot be sublet without previous sanction of this office. Sd/- R. N. Dheby, Assistant Custodian (Rural) Delhi. "ishar Singh died on 17-6-1961 and the petitioners are his son and daughters. Prior to his death the allotment in favour of Ishar Singh was cancelled by. an order dated 28-7-1959 passed by the Assistant Custodian of Evacuee Property (Rural), Delhi. An appeal preferred by Ishar Singh against that cancellation was dismissed by the Deputy Custodian General on 31-3-1960. Aggrieved by that cancellation Ishar Singh had filed Civil Writ No. 160-D of 1960 challenging the cancellation as contrary to the provisions of the Administration of Evacuee Property Act and the rules framed thereunder. An appeal preferred by Ishar Singh against that cancellation was dismissed by the Deputy Custodian General on 31-3-1960. Aggrieved by that cancellation Ishar Singh had filed Civil Writ No. 160-D of 1960 challenging the cancellation as contrary to the provisions of the Administration of Evacuee Property Act and the rules framed thereunder. This writ petition has recently been allowed by Rajindar Sachar, J. , who has quashed the order of cancellation on the ground that it was passed contrary to the provisions of the rules. ( 3 ) A notification No. F. 1 (44)/62- L and H dated 3-10-1962 published in the Delhi Gazette dated 18-10-1962 was issued by the Delhi Administration under Section 4 of the Land Acquisition Act notifying certain areas including the area which had been allotted originally to Ishar Singh for intended acquisition. A notification under Section 6 of the Land Acquisition Act, 1894 in respect of this land was issued on 31-12-1962. The land originally allotted to Ishar Singh is included in the area so notified for, acquisition. ( 4 ) THE petitioners have challenged this acquisition, as already noticed above, on the ground that they were not given any opportunity of being heard as is required by Section 5-A of the Land Acquisition Act prior to issue of the notification under Section 6 of the Land Acquisition Act and that no notices have been issued to them under Sec. 9 of the Land Acquisition Act. It has also been urged that the property in question being evacuee property could not be acquired by the Delhi Administration at all. ( 5 ) THE respondents have contested the petition and have set out all the facts about the reason for this acquisition and claim that possession has already been taken of the land. It has not been disputed that the petitioners were not heard under Section 5-A of the Land Acquisition Act and that no notices under Section 9 were issued to them but it is alleged that the petitioners had no claim to the land and although no notices were issued under Section 9 to them their claims are being considered and so no prejudice would be caused to them. ( 6 ) MR. ( 6 ) MR. M. M. Vohra, the learned counsel for the petitioners has first urged with some vigour that the land in question being admittedly evacuee property could not be acquired by the Delhi Administration at all. His contention is that the Government cannot acquire what is already its own. This argument has merely to be stated to be rejected. By no stretch of imagination can evacuee property be considered as Government proverty. Indeed if it was to be so considered the acquisition of evacuee property contemplated by the provisions of the Displaced Persons (Compensation and Rehabilitation) Act which postulates acquisition of evacuee property would be inconceivable. There would have been no need for the Parliament to have made provision for acquisition of evacuee property for being placed in the compensation pool. A reading of Section 8 of the Administration of Evacuee Property Act makes it manifest that evacuee property vests in the Custodian of Evacuee Property and indeed the entire scheme of the Administration of Evacuee Property Act leaves no doubt that the Custodian, was merely managing the property belonging to evacuees on their behalf till such time as some political settlement was arrived at between India and Pakistan, for further dealing with such properties. There are also provisions in the Administration of Evacuee Property Act for restoration of evacuee property to original claimants. The argument of Mr, Vohra that the control exercised by the Central Government in giving directions to the Custodian in respect of evacuee property would show that it had disposing power over the property cannot be accepted. These directions were in respect of management and for keeping the property intact and preserving it and have nothing to do with the exercise of ownership rights. ( 7 ) THE second contention raised by Mr. Vohra was that inasmuch as admittedly the petitioners have not been afforded anyopportunity of being heard as required by Section 5-A of the Land Acquisition Act, the notification under Section 6 in respect of the land has to be quashed. This contention raises the question as to whether the petitioners were at all entitled to be heard in terms of Section 5-A of the Land Acquisition Act. Mr. This contention raises the question as to whether the petitioners were at all entitled to be heard in terms of Section 5-A of the Land Acquisition Act. Mr. Vohra urges that the petitioners are the son and daughters of Ishar Singh and so succeeded to and inherited the rights of Ishar Singh in the garden allotted to Ishar Singh and inasmuch as the cancellation of the allotment in the name of Ishar Singh has been sat aside the allotment continues and the petitioners have an interest in the property. To test this proposition propounded by Mr. Vohra it will be necessary to find out whether the allotment created any interest in the property in favour of Ishar Singh and whether that interest was heritable. The term allotment has been defined by Section 2 (a) of the Administration of Evacuee Property Act, 1950 in the following terms. " allotment means the grant by a person duly authorised in this behalf of a right of use or occupation of any immovable evacuee property to any other person, but does not include a grant by way of lease;" It is an admitted case that the allotment relied upon by the petitioners was an allotment made under the Administration of Evacuee Property Act in favour of Ishar Singh and which letter of allotment has already been read above. The term as defined in this Act makes a distinction between a mere right conferred of use or occupation of any immoveable evacuee property and the grant of a lease. The term lease itself is not denned in the Act and so must have the same meaning as is given to that word in the Transfer of Property Act which is "a transfer of a right to enjoy such property, made for certain time. expressed or implied or in perpetuity in consideration of a price paid or promised. or of money, a share of crops service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. "the distinction between a lease and licence is well-known. Whether in a given case an agreement between two parties creates a lease or only a licence has to be decided on the construction of the document of title. All the same the distinction between a lease and a licence is one of substance. "the distinction between a lease and licence is well-known. Whether in a given case an agreement between two parties creates a lease or only a licence has to be decided on the construction of the document of title. All the same the distinction between a lease and a licence is one of substance. A licence does not create any interest or property rights in the estate and, therefore, a licensee is not entitled to even a notice to quit before eviction. On the other hand a lease in terms of Section 105 of the Transfer of Property Act creates an interest in immoveable property. This distinction and state of law is well-settled and I need refer to only a few decisions. In Jai Narain v. Syed Ali Murtaza, AIR 1951 Pat 190 , a Bench of the Patna High Court held in clear terms that a licence does not create any interest in the property of the grantor nor is it a property right. Similarly a Bench of Punjab High Court in 52 Pun LR 107 = (AIR 1950 EP 296) clearly laid down that if the contract is merely for the use of the property in a certain way and on certain terms without the grantee getting exclusive right of occupation, it would be a licence as opposed to a lease. In any case, the two types of grants contemplated by the Administration of Evacuee Property Act are lease as distinguished from allotment. Ishar Singh was not granted a lease but merely a temporary allotment and did not even have full enjoyment of the property allotted. This can be regarded no better than a licence. As a licence creates no property rights or interest in the estate of the grantor there cannot be any devolution of interest. Admittedly, Ishar Singh died on 17-6-1961. The allotment in his favour could not be inherited by the petitioners. The allotment having come to an end and the property being evacuee property could be acquired, the petitioners cannot claim to be persons interested who must be heard under Section 5-A of the Land Acquisition Act. Mr. Vohra has urged that inasmuch as the cancellation of allotment has been set aside the allotment must be regarded as subsisting which would give the petitioners a right to claim interest. Mr. Vohra has urged that inasmuch as the cancellation of allotment has been set aside the allotment must be regarded as subsisting which would give the petitioners a right to claim interest. I have already negatived the contention that the petitioners could succeed to whatever interest Ishar Singh had in the land. The cancellation of allotment in the name of Ishar Singh was made in his lifetime and what has been struck down is that cancellation. The question of the allotment subsisting was neither raised nor could be considered in C. W. No. 160-D of 1960. I, therefore, hold that the petitioners have no right in the land which was originally allotted to their father and as such when the same was acquired they were not entitled to claim a hearing under Section 5-A of the Land Acquisition Act. ( 8 ) THE result is that as the petitioners have no right, this petition fails and is hereby dismissed with costs.