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2014 DIGILAW 1119 (PNJ)

Chandigarh Administration v. State of Punjab

2014-07-30

K.KANNAN

body2014
K. Kannan, J. 1. Both these writ petitions are at the instance of the Chandigarh Administration challenging the order passed by the Custodian constituted under the Administration of Evacuee Property Act, 1950. In CWP No. 15724 of 1992. The rival claimants to the Chandigarh Administration are persons who claim to be purchasers from one Muslim who was owner of the property, while the private respondent in CWP No. 15725 of 1992 claims to be an allottee of a property under administration of Evacuee Property Act and making a claim to the property under the Displaced Persons (Compensation and Rehabilitation) Act of 1954 (hereinafter called the Act of 1954) 2. The point for consideration in both the writ petitions is whether the property belongs to Chandigarh Administration in the manner in which it is claimed, namely, as subject of acquisition made by the State of Punjab under the East Punjab Requisitioning and Acquisition of Immovable Property (temporary powers) Act of 1948. The requisition notification relied on by the Administration is a notification issued on 7.1.1952 setting out several items of properties. The properties were said to have been brought under the consolidation scheme when all the properties which are now staked by the private respondents were said to have been ordered to be entered in the name of the Chandigarh Administration. There were said to have been some omissions of not including an extent of 66 bighas 2 biswas of land as belonging to the Administration that was sought to be corrected through a petition filed under Section 42 of East Punjab Holdings (Consolidation and Prevention of Fragmentation Act 1948. The Additional Director had passed an order dated 9.3.1987 purporting to direct the entries to be corrected which included all the properties claimed by the private respondents. These proceedings were done before the Additional Director of Consolidation in the presence of the private respondents and after orders were passed mutating the entries in favour of the petitioner, the private respondents in the above cases had petitioned under Section 27 of the Administration of Evacuee Property Act for treating the property as property either sold or allotted to them and asserting a claim contesting the order passed by the Consolidation Authority. The petitions of the private respondents have been favourably considered on an observation that consolidation authorities could not have directed the mutation in favour of the Chandigarh Administration, without assessing their own claims either under private purchase or the allotments made under the Act of 1954. 3. At the previous hearing, at the commencement of the argument I had directed the counsel for the Chandigarh Administration to produce any order acquiring the property, on an assumption that even apart from an acquisition notice issued under Section 3 of the Act of 1958 it would be necessary to pass an express order of acquisition. The counsel states that the acquisition was made under the provisions of East Punjab Requisitioning and Acquisition of Immovable Property (temporary powers) Act of 1948 and would rely on the provisions of the Act relating to vesting. I have seen through the acquisition notice issued on 7.1.1952 and there is no doubt that it was purported to be issued under the Act 1948 as amended and validated by the Act 2 of 1951 read with notification issued on 5.8.1947. Section 3 of the Act would obtain significance and it is reproduced as under:- 4. Power to acquire requisitioned property:-(1) The Provincial government may at any time acquire any immovable property requisitioned by it under the last preceding section by publishing in the official Gazette a notice to the effect that Government have decided to acquire such property in pursuance of this section. (2) When a notice as aforesaid is published in the official Gazette, the requisitioned property shall on and from the beginning of the day on which the notice is so published vest absolutely in the Provincial Government free from all encumbrances and the period of requisition of such property shall end. It would be seen that the notice issued under Section 3(1) itself constitutes vesting of the property in the State. They would require no further action, apart from the notice which was issued and it would seem therefore that the properties which were described in the notice issued on 7.1.1952 ought to be taken as a complete vesting of the properties mentioned therein. They would require no further action, apart from the notice which was issued and it would seem therefore that the properties which were described in the notice issued on 7.1.1952 ought to be taken as a complete vesting of the properties mentioned therein. The subsequent proceedings would also lend credence to the plea by the Administration that the properties described under Annexure P-1 were actually taken possession of through the Tehsildar and brought through a report by the kanungo on 28.12.1951 (Annexure P-3/P) and endorsed by Tehsildar on 4.1.1952. If the property is vested with the State then all that is to be seen is whether the property claimed by the private respondents tallies to the property which was acquired by the government. 5. It is a matter of record that there had been previous litigation between the administration and the private respondents when the administration was complaining of certain mistakes in consolidation that omitted the entries with reference to 66 bighas 2 biswas and by the order of the Additional Director of Consolidation Holdings. There was a direction specifying specific khasra numbers as properties which were required to be mutated in favour of the administration. I will reproduce hereunder the khasra numbers which are found as properties which were to be entered in the name of the administration as properties that had been mutated in its name against acquisition made already under the Acquisition Act, 1948. Khasra Nos. 17/15/3, 25/5, 31/5/1, 13/2, 18, 23/1, 36/14, 15,16, 25/1, 39/14/5, 15, 17/2, 17/16/1, 16/18/1, 24/16/2, 25/20/1, 36/7, 39/17/2,40/11,120,129, 53/24, 36/7 min, 23/24/2, 23/4, 52/6/2 of the total value of 58/1/2. If there should be a claim in respect of any of the properties, counsel for the petitioner would contend that the rights of parties have already been concluded by virtue of notification made under Act of 1948 as taken note of by the authorities of consolidation and consequently the custodian had no jurisdiction to pass an order accepting the claim made by the private respondents. 6. Learned Senior counsel for the respondent would contend that there is no proof of vesting of the properties which are subject matter of dispute. It is his contention that the consolidation authorities do not themselves decide issues of title, as laid down by the Supreme Court in the decision of Pujari Bai Vs. Madan Lal 1989 SC 1764. 6. Learned Senior counsel for the respondent would contend that there is no proof of vesting of the properties which are subject matter of dispute. It is his contention that the consolidation authorities do not themselves decide issues of title, as laid down by the Supreme Court in the decision of Pujari Bai Vs. Madan Lal 1989 SC 1764. The authorities will have therefore no jurisdiction or power to modify the grant of proprietary rights granted in sanad under Section 10 of Act of 1954. The Senior counsel would urge that the private respondents in CWP No. 15725 of 1992 are allottees under the Act of 1954 and consequently the authorities under the consolidation would have no right to modify any entry relating to the said property. Referring to the claims of the private respondents in CWP No. 15724 of 1992, the Senior counsel would urge that they are purchasers in a private transaction from a Muslim and no part of the property held by the private respondents could be claimed by the Chandigarh Administration. 7. The manner of vesting under the East Punjab Requisitioning and Acquisition of Immovable Property (temporary powers) Act of 1948 has already been set forth by extracting Section 3. If the said provision contemplates vesting by notice there could be no further plea in relation to the property as still belonging to any other person described therein as still belonging to any other person. Any attempt to claim in respect of the said property cannot survive consideration at the instance of the third party that sets up a title in himself. It is an admitted fact that the notice itself does not set forth the properties which are claimed by the private respondents through the petitioner under Section 27. It is in that context that it becomes relevant for us to notice changed khasra numbers that had taken place pursuant to the proceedings under the Consolidation Act of 1948. I have set forth the properties which were ordered to be mutated in favour of the administration already under the order of the Consolidation Authority earlier. It can be noticed that out of three items which are claimed by the respondents in CWP No. 15724 of 1992 only one item is found as a property mutated in favour of the administration. It can be noticed that out of three items which are claimed by the respondents in CWP No. 15724 of 1992 only one item is found as a property mutated in favour of the administration. The following are the three khasra numbers mentioned in the petition filed under Section 27 of the Administration of Evacuee Property Act, 1950 by Inder Singh. The properties are khasra numbers 23/16 of an extent of 5 Kanals 0 Maria, 23/24/2 of an extent of 5 kanals 10 Marlas and 36/6 totalling of an extent of 1 kanal 14 Marlas, 12 kanals 4 Marlas. If we compare them with the properties ordered to be mutated in favour of the Chandigarh Administration it would be noticed that only in respect of 23/2 5 Kanals 10 Marlas the property stands mutated in its favour. As regards two other numbers I find no co-relation. As regards the properties in CWP No. 15725 of 1992 in the application filed by the claimant-Ram Singh there is only one item which does not tally with the property mutated in favour of the Chandigarh Administration out of 12 items. The only item which is excepted that does not fall in the entries is 25/4 4 kanals 18 Marlas. The argument of the Senior counsel that the authorities under the Consolidation Act cannot rectify or modify the proprietary rights granted in sanad is well taken but it must be noticed that we are not here considering the power of the order passed by the authority constituted under the Consolidation Act. On the other hand, the order passed by the Additional Director as on 9.3.1987 has become final between the parties. It was only after the disposal of the proceedings that the private respondents have elected to apply to the authorities under Administration of Evacuee Property Act, 1950 under Section 27. 8. The Counsel for the Chandigarh Administration points out to me that Section 27 is a power of revision of the custodian to satisfy about legality of any order passed in relation to the proceedings under the Act and an order under Section 27 cannot modify or tinker with any order already passed and which had become final between the parties under consolidation. If there was any plea by any of the private respondents that the property did not vest in the government under the 1948 Act and the administration cannot lay claim to any of the properties and would also dispute the actual vesting of the property in respect of which they purported to have either purchased under the private negotiation or allotted under the 1954 Act, it should have been by an independent action to establish title and could not have been through an application filed under Section 27. The reliance on the judgment of the Supreme Court is misplaced for the challenge to the order passed by the authority under the Act 1954 is brought by the administration relying on the orders of the Consolidation authority that was passed earlier and which had become final. Indeed, the Consolidation authority was not granting any title nor it was recognizing any new title. It merely recognized the effect of vesting that had taken place under the 1948 Act and the Administration's act of carrying out a mutation in respect of the property that had been brought under the consolidation scheme as having new khasra and extents that were relatable to the property that were requisitioned under the 1948 Act. The proper correlation could be vouched only by the authorities under the Consolidation Act who have the competency to pass the order directing the entries to be recorded in favour of the Administration in respect of properties that had been requisitioned under the Act 1948. The order of the Consolidation Officer must be taken therefore as merely administrative after the requisition of the property that had vested in the Chandigarh Administration under the Act of 1948 Act, any claim by the private respondents or any order passed by the authorities under the Act of 1954 will be incompetent, for that would mean annulling the effect of vesting that had already taken place. 9. I have already observed that I do not find correlation with reference to two khasra numbers namely 23/16 (5 kanals 0 Maria) and 36/6 (1 kanal 14 Marlas) being the subject matter in CWP No. 15724 of 1992. I do not also find a co-relation in relation to the property in 25/4 (4 kanals 18 Marlas) which is amongst the other items which is the subject matter in CWP No. 15725 of 1992. I do not also find a co-relation in relation to the property in 25/4 (4 kanals 18 Marlas) which is amongst the other items which is the subject matter in CWP No. 15725 of 1992. In respect of the rest of the properties the Administration had a right and the order passed by the authority under the Administration of Evacuee Property Act, 1950 in purported exercise under Section 27 was irregular and unjustified. Counsel for the petitioner makes a feeble argument that the properties which are excluded would be on account of some typographical errors. I cannot assume typographical errors by the only fact that the counsel says so. I reject such an argument but it will be open to it to take an independent action and secure to itself an assertion of right in the manner contemplated by law for correction of khasra numbers. As of now the case would conclude with reference to all rest of the property other than the items of properties which are not found in any of the orders issued in favour of the Chandigarh Administration for which claims are made and which are referred to in the orders passed by the authorities referred to by the custodian under Administration of Evacuee Property Act 1950. 10. Both the writ petitions are disposed of as above.