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2013 DIGILAW 1552 (PNJ)

Aman v. State of Haryana

2013-11-25

RAMESHWAR SINGH MALIK

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JUDGMENT RAMESHWAR SINGH MALIK, J. Feeling aggrieved against the inaction on the part of respondent authorities, the petitioners have approached this Court by way of present writ petition seeking a writ in the nature of mandamus directing the respondents to allot alternative land to the petitioners and put them in possession immediately. To unravel the controversy involved between the parties, brief narration of essential facts of the case would be required. The pleaded case on behalf of the petitioners was that they were mortgagees with possession and never left the country during partition. They stayed back. However, wrongly treating the land owned by the petitioners as evacuee property, it was allotted in favour of displaced persons, who came from Pakistan. Thus, the petitioners became restorees. They moved the respondent authorities for putting them in possession of their land or for allotment of alternative land in their favour. The order dated 6.12.1976 (Annexure P-1) was passed by the Custodian General, Haryana, directing the Assistant Custodian General, Haryana, to consider the claim of the petitioners for allotment of an alternative area. Thereafter, petitioners kept on representing to the respondent authorities either for restoration of possession of that very land, which was under their possession as mortgagees or for allotment of an equivalent alternate area. However, claim of the petitioners in compliance of the above said order dated 6.12.1976 (Annexure P-1) was, as a matter of fact, never considered and decided by any competent authority. This fact is not denied even by learned counsel for the State during the course of hearing. Thus, having been left with no other option, petitioners have approached this court by way of present writ petition. Learned Senior counsel for the petitioners submits that the Assistant Custodian was duty bound to consider the claim of the petitioners in compliance of the order Annexure P-1 and the same ought to have been decided by passing an appropriate order, in accordance with law. He also places reliance on the judgements of the Hon'ble Supreme Court in Bhanwarlal and another Vs. Regional Settlement Commissioner, Jaipur cum Custodian Evacuee Property and others, AIR 1965 SC 1885 and Lachhman Dass and others etc., Vs. Municipal Committee, Jalabad and others etc. He also places reliance on the judgements of the Hon'ble Supreme Court in Bhanwarlal and another Vs. Regional Settlement Commissioner, Jaipur cum Custodian Evacuee Property and others, AIR 1965 SC 1885 and Lachhman Dass and others etc., Vs. Municipal Committee, Jalabad and others etc. AIR 1969 SC 1126 , to contend that the mortgagees rights of the petitioners which had culminated into their absolute ownership, could not have been taken away by the State forcibly in the manner the rights have been taken. Neither the petitioners were granted any compensation nor the possession was restored to them on their original piece of land, on which they were admittedly in possession as mortgagees. Besides this, their right for alternate allotment of an equivalent area was also not considered despite the order dated 6.12.1976 (Annexure P-1), having been passed in their favour. Finally, he prays for allowing the present writ petition, seeking appropriate directions to the respondent authorities, atleast to consider the claim of the petitioners in compliance of the order Annexure P-1 and decide the same, in accordance with law. On the other hand, learned counsel for the respondent-State submits that case of the petitioners was squarely covered by order dated 16.5.1983 passed by a Division Bench of this court in CWP No.5287 of 1982 (Smt. Rehmo and another Vs. Financial Commissioner-cum-Secretary to Government Haryana, Rehabilitation Department and others). He places reliance on the averments taken in para 13 of the written statement also, to contend that the claim of the petitioners seems to have been considered for alternate allotment as well, but they were not found entitled for the alternate allotment. He prays for dismissal of the writ petition. Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the arguments advanced, this court is of the considered opinion that in the given fact situation of the case, the petitioners are entitled atleast for consideration of their claim and final determination thereof, by passing an appropriate order by the competent authority, which has not been done in the present case. To say so, reasons are more than one, which are being recorded hereinafter. It is a matter of record that predecessors-in-interest of the petitioners were mortgagees with possession. Mutation No.1287 was sanctioned in favour of forefathers of the petitioners way back on 28.7.1905. To say so, reasons are more than one, which are being recorded hereinafter. It is a matter of record that predecessors-in-interest of the petitioners were mortgagees with possession. Mutation No.1287 was sanctioned in favour of forefathers of the petitioners way back on 28.7.1905. All these details qua the land, possession of the forefathers of the petitioners and their entitlement for allotment of alternative land were considered in detail by the competent authority, while passing a self contained order dated 6.12.1976 (Annexure P-1). Operative part of this order Annexure P-1, reads as under : “ In view of the facts stated above, I accept the petition and remand the case to the Asstt. Custodian with the direction that the property in favour of the petitioners be restored. Since the land originally owned by then has changed hands after the same was allotted to a displaced person, alternative area be allotted to the petitioners in this village or in a nearby village if there is no area.” Learned counsel for the State seems to be correct in relying upon the averments taken in para 13 of the written statement to the effect that some exercise was undertaken in compliance of the abovesaid order Annexure P-1. The relevant averments taken in para 13 of the written statement, read as under : “ That in reply to para 13 of the petition, it is submitted that petitioner Sh. Aman made an application to the Tehsildar (Sales), Gurgaon, stating therein that no land is available in village Alwalpur and as such he may be allotted land in village Dawli Nangli in a compact block. A proposal was drawn by the office Kanungo of Gurgaon but the same was kept pending and was not finalised. Petitioner presented another representation dated 8.1.91 to the then learned Chief Settlement Commissioner on 9.1.91 and the matter was processed and a report was submitted by the Tehsildar (Sales) Gurgaon to the then Chief Settlement Commissioner. A proposal was drawn by the office Kanungo of Gurgaon but the same was kept pending and was not finalised. Petitioner presented another representation dated 8.1.91 to the then learned Chief Settlement Commissioner on 9.1.91 and the matter was processed and a report was submitted by the Tehsildar (Sales) Gurgaon to the then Chief Settlement Commissioner. In that report the Tehsildar (Sales) Gurgaon submitted that restorees were not to be provided alternative land due to abrogation of the relevant provisions under the Displaced Persons (C&R) Act, 1954 and this position was made known to the applicant on 21.1.91 as per information available on record.” A bare reading of the abovesaid para No.13 of the written statement would show that the exercise was dropped midway and no competent authority took the matter to its logical end. No reasons are forthcoming, as to why final order was not passed even for considering the claim of the petitioners for alternative allotment in the adjoining village, because the land which was originally in possession of the petitioners as mortgagees in village Allawalpur, had been allotted to some displaced persons treating this land to be an evacuee land. This case can be considered from another angle. It is not established on record that the petitioners or their forefathers, as a matter of fact, left the country during or after partition in 1947. Once it is so, it does not appeal to reason as to why and how their land was treated as evacuee land, when the petitioners, who were mortgagees in possession over the land stayed back in India and did not opt to go to Pakistan. It seems from the record of the CWP No.13869 of 1996 case that no authority has applied its mind on this important aspect of the matter, as to why the land of the petitioners was put into evacuee land. Further, even if the land was treated as evacuee land inadvertently, in that situation, the reasonable grievance of the petitioners for allotment of equivalent area in the adjoining or nearby village ought to have been redressed by passing appropriate orders. However, even this was not done in the present case. . So far as the judgemnts of the Hon'ble Supreme Court as well as the order Annexure R-1 passed by this court are concerned, there is no dispute about the law laid down therein. However, even this was not done in the present case. . So far as the judgemnts of the Hon'ble Supreme Court as well as the order Annexure R-1 passed by this court are concerned, there is no dispute about the law laid down therein. However, keeping in view the peculiar facts of the present case, genuine and reasonable claim of the petitioners for allotment of equivalent alternate area deserves to be accepted. It is the settled proposition of law that peculiar facts of each case are to be examined, considered and appreciated first before applying any codified or judge made law thereto. Sometimes, even one additional fact or new circumstance can make the world of difference as held by the Hon'ble Supreme Court in the case of Padmausundrao Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533 . No other argument was raised. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court of the considered view that under the peculiar fact situation of the case, the present writ petition deserves to be allowed. Consequently, respondent authorities, whosoever is competent to pass the appropriate order in this case, is directed to consider the claim of the petitioners for allotment of an equivalent alternate area either in the adjoining village Dewla Nangli or any other nearby village wherever sufficient area is available. Since the matter pertains to old record, the competent authority is directed to consider and decide the claim of the petitioners by passing an appropriate order, in accordance with law at an early date, but in any case within a period of six months from the date of receipt of a certified copy of this order. Resultantly, with the observations made and directions issued, as hereinabove, the present writ petition stands allowed, however, with no order as to costs.