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2002 DIGILAW 129 (JK)

Sarfo Devi v. State Of J. &K.

2002-05-02

S.K.GUPTA

body2002
1. Petitioners are the displaced persons of West Pakistan. On migration, the petitioners father, Bachiter, occupied evacuee land in R.S. Pura. The petitioners father was a proprietary land owner. They had proprietary land in village Sanghotra, Tehsil R.S. Pura prior to migration in 1947, now in West Pakistan. Petitioners father, Bachiter, was also allotted a land in village Saroha, Tehsil, Garshanker in lieu of his land held in West Pakistan. It was in the year 1954 that Cabinet Order No. 578-C promulgated and the petitioners holding evacuee/ State land much prior to 1954 claimed to be entitled to the regulisation of the said land having been migrated from Border area. It is further contended by the petitioners that they are not double allottees. That the evacuee land occupied by them was on account of their migration from village Sanghotra and they are rehabilitated at Suchetgarh. That the petitioners are entitled to retain this land, which was occupied by them at Suchetgarh, in exchange of the proprietary land left by them at village Sanghotra, West Pakistan, were from they migrated in the year 1947. The Provincial Rehabilitation Officer, (PRO), Jammu, however, cancelled the allotment vide his order dated 19th February, 1973 treating them as double allottees. The petitioners, however, canvassed the correctness of the order before the Divisional Commissioner, Jammu but without any success. The Revision Petition was rejected vide Divisional Commissioners order dated 31-8-1977 and order of the PRO, Jammu was confirmed, which became the subject matter of this writ petition commenced by the petitioners claiming the following relief: "i) that the orders passed by the P.R.O. Respondent No. 2 dated 19th February 1973 as also the order of respondent No. the Divisional Commissioner are not executable in any manner having become barred by limitation as such nonest; and ii) if it is not possible, the land belonging to the petitioners situated at village Sanghotra which is in close proximity of Pakistani fire range may be treated in exchange to that of the land as per Annexure PB herein in the same manner and analogy as per Annexure P-A herein) 2. The stand of the respondents is that, the benefit of Cabinet Order No. 578-C and also Government order No. 254 of 1965 can only be conferred on a person, who fulfills the requisite qualifications/ conditions laid down in the said orders. The stand of the respondents is that, the benefit of Cabinet Order No. 578-C and also Government order No. 254 of 1965 can only be conferred on a person, who fulfills the requisite qualifications/ conditions laid down in the said orders. The proprietary rights can be conferred only on those persons and benefits given, when they are covered by the aforesaid orders. It was contended that whether the petitioners are covered and fulfil the conditions specified in the aforesaid order is a disputed question of fact and, therefore, cannot be decided in exercise or writ jurisdiction. The land in dispute can be regularised only when the eligibility criteria is fulfilled and which is not in the case of the petitioners. 3. It is not disputed that the Provincial Rehabilitation Officer, Jammu had cancelled the allotment of petitioners treating them as double allottees vide order dated 19th February, 1973. This order was assailed before the Divisional Commissioner, who also confirmed the order of the PRO on 31-8-1977, extract of which is given as under: "I have paid consideration to the arguments advanced by the learned counsel for the contending parties and applied my mind to the legal as well as factual aspects involved in the case. The record produced before me transpires that the father of the petitioner Bachiter got land allotted in his favour in Village Saroha, Tehsil Garh Shanker which he subsequently disposed of by a register sale deed, the copy of which is on the file. His sons, the applicants hiding this fact got regularised the evacuees land under Para 8 of Cabinet Order No. 578-C of 1954. Rule 12 of the Cabinet Order No. 578-C supra postulates that if any family has secured more than one allotment of land in its favour, it may within one month of the date of the commencement of aforesaid order (578-C) communicate the fact to the competent authority indicating at the same time the particular allotment which it wants to retain with itself. If such family suppresses the information and the competent authority, i.e., the Tehsildar or the Provincial Rehabilitation Officer either himself or through information received from any other source and after such enquiry as may be necessary came to know of the allotment or allotments secured by such family, he shall have the powers to cancel them and such family shall forfeit its right to claim allotment of land in its favour in future. Explanation to Clause 12 of Govt. order No. Reh-371 of 1971 contemplates that the West Pakistan D/ Ps who held land in West Pakistan and have got claims against it or those West Pakistan D/Ps whose father or other members of the family has got claim for the proprietary land left behind in Pakistan but who held Evacuee/Govt. land in the State should be ejected from the evacuee/Govt land held by the. In face of the provisions of Rule 12 of Govt. Order 578-C of 1954 and Rule 14/15 of Govt. Order Reh-371 of 1971 the petitioners are not entitled to retain the land in dispute. The provincial Rehabilitation officer has rightly cancelled their land. This being so, the impugned order of the Provincial Rehabilitation officer is maintained and revision petition rejected. 4. On the basis of the record produced, the Provincial Rehabilitation Officer cancelled the land of the petitioners treating them as double allottees under the Provisions of Cabinet Order No. 578-C of 1954 read with Order-No. Reh-371 of 1971. So was also held by the Divisional Commissioner, Jammu in his order dated 31-8-1977 that the petitioners are not entitled to retain land in dispute as the petitioners being displaced persons of West Pakistan had already got a claim against it. The orders passed by PRO, Jammu dated 19th February, 1973 and Divisional Commissioner, Jammu dated 31-8-1977 affirming the said order of the PRO, in my view, do not suffer from any infirmity, legal or factual, inviting interference of this Court in exercise of its writ jurisdiction. 5. This apart, the petitioners had earlier also filed Writ Petition No. 107/77/ which stood dismissed for non-prosecution vide order dated 5-9-1988. 5. This apart, the petitioners had earlier also filed Writ Petition No. 107/77/ which stood dismissed for non-prosecution vide order dated 5-9-1988. This Writ Petition, however, came to be filled almost after more than twelve years, which is highly belated and desired to be rejected on the ground of laches alone in view of the settled principles of law, Delay and laches defeat both right and remedy as is held by the Apex Court in Union of India and Another V. S. S. Kothiyal and others, (1998) 8 SCC 682. I do not find any merit in this writ petition and is accordingly dismissed. Mr. Karanjit Singh, appearing for the petitioners, however, submitted that the respondents may be directed not to evacuate the petitioners from the Evacuee/State land in dispute held by them. The petitioners may approach the appropriate authority and seek redressal of their grievance in accordance with law.