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2005 DIGILAW 803 (PNJ)

State of Haryana v. Ruhla

2005-07-29

K.C.SHARMA

body2005
ORDER K.C. Sharma, FC. - This is a Reference Petition, filed by the State of Haryana through Tehsildar (Sales) Headquarter, Rehabilitation Department, under Section 54 of the Administration of Evacuee Property Act, 1950, against the Order, dated 9.12.1974 passed by the Assistant Custodian General, Haryana and Order, dated 19.5.75 passed by the Tehsildar (Sales)-cum-Assistant Custodian, Karnal. 2. The brief facts of this case are that Abdul son of Alladia, resident of Village Kunda Kalan, Tehsil Nukar, District, Saharanpur (U.P.) filed Revision Application, dated 23.3.73, under Section 27 of the Administration of Evacuee Property Act, 1950, before the Custodian General of Evacuee Property, Jaisalmer House, New Delhi, against vesting of his land in favour of the Custodian, stating further that he was owner of 1/36 share of agricultural land in khwat No. 6, equivalent to 54 bighas 8 biswas in Village Kunda Kalan, Tehsil and District Karnal; and he did not migrate to Pakistan and had been residing in Village Kunda Kalan, Tehsil Nukar, District Saharanpur (U.P.) and in that place has also owned land which was never treated as Evacuee Property and that land is under his cultivating possession and stated that the land of village Kunda Kalan, Tehsil & District Karnal, was non-Evacuee Property and could not vest in the Custodian and the said vesting is illegal and without jurisdiction. 3. The Deputy Custodian General, Govt. of India, New Delhi, vide his Order, dated 25.6.1973, sent the said petition to Assistant Custodian General, Haryana for disposal. The Assistant Custodian General, Haryana, vide his Order, dated 9.1.1974, forwarded the said Application to Tehsildar (Sales)-cum-Assistant Custodian, Karnal, for determining Evacuee Property and to submit Report by 12.4.1974, who submitted his Report, dated 12/13.9.1974, to Assistant Custodian General, Haryana. Accordingly, the Assistant Custodian General, Haryana, vide his Order, dated 9.12.1974 held the Applicant entitled for restoration of his property and directed the Assistant Custodian to make alternative allotment of land according to rules. 4. The Tehsildar (Sales)-cum-Assistant Custodian vide, Order dated 19.5.1975, held that the area to be restored was Banjar Qadim in the year 1947 which is equivalent to 3-3 Std. Area and allowed the alternative allotment to this extent. 5. 4. The Tehsildar (Sales)-cum-Assistant Custodian vide, Order dated 19.5.1975, held that the area to be restored was Banjar Qadim in the year 1947 which is equivalent to 3-3 Std. Area and allowed the alternative allotment to this extent. 5. Therefore, Abdul son of AllaDia filed Application dated 19.7.1975, before Tehsildar (Sales) Karnal, alleging that his original land had already been allotted to the refugees and, therefore, alternative land be allotted to him in Village Kunda Kalan or in the nearby village. Thereafter, the matter remained in process upto 1978 but the matter could not be finalised. 6. Ruhla and Ali Ahmad sons of Abdul filed Application, dated 6.10.2003, before Tehsildar (Sales)-cum-Assistant Custodian, Karnal, praying that the possession of the land, measuring 54 bighas 5 bishwas situated in village Kunda Kalan be restored in their favour as per Order, dated 12.9.1974 of Tehsildar (Sales)-cum-Assistant Custodian, Karnal. 7. The case has been heard today. Ld. DA on behalf of the State has impugned the Allotment Orders in favour of Abdul son of Alladia made on 9.12.1974, passed by Assistant Custodian General under Section 27 of the Administration of Evacuee Property Act, 1950 and U.O. dated 19.5.1975, passed by Tehsildar-cum-Assistant Custodian General, Karnal. i) The brief facts of the case are that one Abdul son of Alladia R/o Village Kalan, Tehsil Nukkar of District Saharanpur, filed a Revision Petition dated 23.3.1973 under Section 27 of the Administration of Evacuee Property Act before the Custodian General of Evacuee Property, Jaisalmer House, New Delhi, against the Order, declaring his land in favour of the Custodian Department. ii) In the said Revision, he alleged that he never migrated to Pakistan and he was a genuine owner of 1/36 share of the agricultural land comprised in Khewat No. 6 of Village Kunda Kalan. The total land of his share measured 54 bighas 8 biswas. iii) The Deputy Custodian General, Govt of India, vide Order 25.6.1973 sent the Revision Petition in original to the Assistant Custodian General, Haryana, Chandigarh for disposal, who further forwarded the same to Tehsildar-cum- Assistant Custodian dated 9.1.1974, with the direction to determine the Evacuee Property and for submission of Report by 12.4.1974. The Tehsildar-cum-Asstt. iii) The Deputy Custodian General, Govt of India, vide Order 25.6.1973 sent the Revision Petition in original to the Assistant Custodian General, Haryana, Chandigarh for disposal, who further forwarded the same to Tehsildar-cum- Assistant Custodian dated 9.1.1974, with the direction to determine the Evacuee Property and for submission of Report by 12.4.1974. The Tehsildar-cum-Asstt. Custodian sent his Report on 13.9.1974 with the recommendations that the Property of Abdul son of Alladia, should be returned to him on the ground that he never migrated to Pakistan and Assistant Custodian General, confirmed the Report on 9.12.74, ordering the equivalent Allotment and Restoration of land in lieu of wrongly declared land in the ownership of Abdul son of Alldia as Custodian Property. The Tehsildar-cum- Assistant Custodian found that the land of Abdul was Banjar-Quadim at the time of Partition and he was given entitlement of 3.3 Std. acres. Abdul son of Alladia, applied for implementation of the said Order, on 19.7.1975. In the meantime, Abdul son of Alladia, died and his minor son remained out of picture and the heirs of Abdul, applied on 6.10.2003 for implementation of the said order, after a gap of 25 years. In the year 1969, the Honble Supreme Court as per AIR 1969 SC 1126, Laxman Dass v. State gave a finding that Section 20-B of the Displaced Persons Act (1954) was ultra vires and it is on the basis of this revelation the State filed a suo moto Reference for cancellation of the Restoration Order, passed by Assistant Custodian General, dated 9.12.74 as well as the Order, passed by Tehsildar-cum-Assistant Custodian General on 19.5.75. 8. On the basis of these facts, it has been pleaded that the said Order be cancelled. The Ld. Counsel for the respondent, Sh. Ashish Aggarwal, provided written arguments and argues as under :- i) The real brother of Abdul, namely Abdulha son of Alladia, got the Restoration of his wrongly declared Property in favour of the Custodian dated 4.8.66 vide letter No. II-VIII(85-60-Property and if the law laid down by Honble Supreme Court did not lead to cancellation of restoration, then it should not apply to him; ii) Under Section 27 of the Administration of Evacuee Property Act (1950), authorize the Custodian General to restore a Non-Evacuee Property, which has been declared Evacuee Property in a wrong manner. He quoted AIR 1956, Honble Supreme Court page 77 and 1955 Punjab page 177 (Full Bench) which invest Custodian General with vide powers to rectify an illegal Act, Rule 37 of the Administration Evacuee Property Central Rules, 1950 speaks of the same powers; iii) The Honble Supreme Court, while striking down Section 20-B of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 has not taken away original jurisdiction of the Custodian in rectifying willful injustice or procedural injustice, caused to a citizen. The Honble Supreme Court vide the Decision, reported at AIR 1969 page 1126 has struck down only the restrictions on Section 20-B and not the Section 27 of the Administration of the Evacuee Property Act; iv) There is no time limit under Section 27 for Restoration of Property to a genuine owner, as per 1983 PLJ page 209. This law has been laid down in the case of Mir Dal v. State of Haryana, in which it has been held that citizens who have not migrated from Pakistan and whose house had been wrongly declared evacuee property, are entitled for restoration of their property without any limit of time. 9. At the end of the arguments, he has pleaded that suo-moto petition by the State is not permissible under Section 54 of the Administration of Evacuee Property Act as per law laid down in Subedar Nandlal v. Union of India and others. He also quoted Loku Ram v. State of Haryana and others, 1999(1) PLJ 1, Supreme Court, according to which delay in Revision or Appeal has to be explained after the lapse of 7 years. Therefore, he has prayed that restoration order be kept infact and possession should be delivered within a period of 2 months. Hence, the suo moto reference is worthy of dismissal. 10. I have heard the Ld. DA on behalf of the State and Ld. Counsel for the heirs of deceased, Abdul. The fact that Abdulla, real brother of Abdul, got the restoration of his property wrongly declared as Custodian Property on 4.8.1966 and it was factually taken possession by the daughter of Abdulla, namely, Dunni, in 1969, in village Kunda Kalan near Kunjpura of Tehsil and District Karnal leads to a natural conclusion that the respondent needs equal treatment. 11. In view of the facts and law quoted by the Ld. 11. In view of the facts and law quoted by the Ld. Counsel for the respondent in the case of Mir Dal v. State of Haryana, 1983 PLJ 209, the real brother Abdul and now his heirs, who are the respondents before this Court, are equally entitled for Restoration of the land, measuring 54 bighas 8 biswas. Therefore, the impugned Orders are fully maintained and Assistant Registrar- cum-Managing Officer, Rehabilitation, is directed to deliver the possession of 54 bighas 8 biswas in village Kunda Kalan to the respondents as this land has been allegedly given on lease by the State Govt. In case, the original land of the owner is found Shamlat deh or has been already allotted, then the respondents be given alternative allotment. The final allotment and possession of the land in favour of the respondents be made within a period of 3 months from the date of the receipt of the order. The suo moto Reference of the State is accordingly dismissed. Announced. Petition dismissed.