Uttarakhand High Court
Vikrant Chaudhary And Another vs Bhagwan Dass And Others on 21 December, 2017
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SPECIAL APPEAL NO. 1069 OF 2017
Vikrant Chaudhary and another. .......Appellants
Versus
Shri Bhagwan Dass and others. ........Respondents
Mr. Arvind Vashisth, Senior Advocate assisted by Mr. Ashish Sinha, Advocate for the
appellants.
Mr. Siddharth Singh, Advocate for respondent no. 1 / writ petitioner.
Mr. Rakesh Thapliyal, Assistant Solicitor General with Mr. Jay Vardhan Kandpal,
Standing Counsel for the Union of India / respondent no. 2.
Mr. Narain Dutt, Brief Holder for the State of Uttarakhand / respondent nos. 3 & 4.
Mr. T.S. Bindra, Advocate for respondent no. 5.
Dated: 21.12.2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. Joseph, C.J. (Oral) Appellants are respondent nos. 7 & 8 in the writ petition. The writ petition was filed by the first respondent in this Appeal seeking the following relief:
"a) issue a writ, order or direction in the nature of mandamus commanding the respondents No. 2 and 3 to deliver possession of the allotted land i.e. Khasra No. 119 / 3, admeasuring 0.024 hectare, Khasra No. 132/2 admeasuring 0.061 hectare, Khasra No. 283/1 admeasuring 0.340 hectare and Khasra No. 286/1 admeasuring 0.275 hectare, total land measuring 0.700 hectare, situated in Village Bagral, Dehradun, to the petitioner and also direct them to amend or incorporate change in the revenue records accordingly."
2. The learned Single Judge passed the following interim order in the writ petition:
"An interesting question which crops up for consideration in this case is a conjoint interpretation of a Central Legislation along with the Legislation by the State, so far it relates to its applicability on land laws of the State.2
2. It is not in dispute by any of the parties to the writ petition, that by exercising powers under Section 7 of the Administration of Evacuee Properties Act, 1950. A notification by way of declaring the property in question i.e. Plot No.283/1 and 286/1 was declared as an evacuee properties under the Act. Under the said act, the Custodian has been defined under Sub Section (C) of Section 2 who is the authority who has been defined with the power to declare a property as to be evacuee properties "within the meaning of the Act". The process of declaration contemplated under Section 7, itself was adhered and it is yet again, no one's case that the procedure provided therein was not complied with.
3. The Administration of Evacuee Properties Act, 1950 post independence had an intention to meet a situation which has arisen out of the creation of two dominions i.e. Pakistan and India, which has emerged out of the civil disturbances which occurred at the time of partition of the country. As a result of which, the people migrated to the places of their choice so as to make their satisfactory arrangement for their livelihood and a place for abode.
4. In this process, there was certain properties lying within the territorial domain of the country i.e. India, which was evacuated by the occupants/owners who ultimately migrated as a consequence of independence of two countries India and Pakistan. As a result of partition, a vacuum occurred as to the manner in which such a property which was left by evacuee was required to be dealt with and managed. Consequently, post independence period the Government of India framed the Act called as the Administration of Evacuee Properties Act, 1950. It goes without saying that theory of eminent domain will always prevail over such type of property which is evacuated as a consequences of army aggression or the separation of two dominions due to partition and that is why to provide an authenticity to the evacuee property and its status and a manner such property was to be dealt, a notification is contemplated under Section 7 of the Act. Consequently, vesting of such property declared as evacuee property under Section 7, is contemplated under Section 8 of the Act, which is quoted hereunder:-
"8. Vesting of evacuee property in the Custodian.- (1) Any property declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State,-
(a) in the case of the property of an evacuee as defined in sub-clause (i) of clause (d) of section 2, 3 from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India;
(b) in the case of the property of an evacuee as defined in sub-clause (ii) of clause (d) of section 2, th from the 15 day of August, 1947; and
(c) in the case of any other property, from the date of the notice given under sub-section (10 of section 7 in respect thereof.
(2) Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest:
Provided that where at the commencement of this Act there is pending before the High Court, the Custodian or any other authority for or in any State any proceeding under section 8 or section 30 of the Administration of Evacuee Property Ordinance, 1949 (12 of 1949), or under any other corresponding law repealed by the Administration of Evacuee Property Ordinance, 1949 (27 of 19490, then notwithstanding anything contained in this Act or in any other law for the time being in force, such proceeding shall be disposed of as if the definitions of "evacuee property" and "evacuee" contained in section 2 of this Act had become applicable thereto. [(2-A) Without prejudice to the genrality of the provisions contained in sub-section (2), all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, notwithstanding any defect in, or the invalidity of, such law or any judgment, decree or order of any Court, be deemed for all purposes to have validly vested in that person, as if the provisions of sauch law had been enacted by Parliament and such property shall, on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly, any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken.] (3) Where any properly in a State belonging to a joint stock company had vested in any person exercising 4 the powers of a Custodian under any law previously in force, then nothing contained in clause (f) of section 2 shall affect the operation of sub-section (2), but the [Central Government] may, by notification in the Official Gazette, direct that the Custodian shall be divested of such of any such property in such manner and after such period as may be specified in the notification.
(4) Where after any evacuee property has vested in the Custodian any person is in possession thereof, he shall be deemed to be holding on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorized by him in this behalf."
5. The effect of the notification under Section 7, would be that irrespective of title or occupancy the property it would vest with the Custodian as defined under the Act by virtue of under Section 8 of the Act. As soon as the property is devolved or vested with the custodian, no one claiming under whatsoever title would have a right to deal with the property in any manner whatsoever. In the instant case, the Assistant Custodian by virtue of notification dated 11.11.1952 issued, while exercising powers under Section 7 declared plot nos.283/1 and 286/1 measuring 0.54 and 0.68 acres respectively lying in Khata No.11 at Village Bagral, was notified and declared as evacuee property. If any occupant irrespective of title he or she claims deals with the property thus vested under Section 8 as a consequential effect of notification under Section 7 it would have an effect of nullifying the effect of vesting which is not the intention of legislature.
6. The respondents in the writ petition claim to be the purchaser of such property, which has been declared as evacuee property under Section 7 as to be an evacuated property. He contends that the principle owner whose property was declared as an evacuee property under Section 7 of the Act i.e. Rahim Bux on his death is claiming that it was succeeded by his wife Sharifan and minor children.
7. The case of the private respondents is that Sharifan after taking permission for dealing with the property sold the same after obtaining necessary permission from the District Judge to one Mr. O.C. Kundan. Admittedly, at the time when the sale deed was executed on 21.06.1980, the implications under Section 7 read with Section 8 of the Administration of Evacuee Properties Act, 1950 was already in existence. However, the property sold on 21.06.1980 5 exchanged hands and was sold by Mr. O.C. Kundan to Mr. Prem Prakash and Rashmi on 27.12.1990. Later on, on 11.08.1991, Prem Prakash sold the property to Dinesh Kumar and others, who ultimately sold the property to the present respondents as well as to others namely Pradeep Kumar, P.S. Kochar, Charanjeet, Siddhartha and Vikram, irrespective of cumulative transfers which has taken place after 11.11.1952 and onwards. They are all would be void transfers because the transferee had no right to sell the property because of the vesting of the same with the Custodian under Section 8 of the Administration of Evacuee Properties Act, 1950.
8. Hence, this Court is of the considered opinion that a void sale deed more particularly in a situation where the seller had no right vested in him to sell and still he sells the property it will not confer any valid title or any subsequent purchaser irrespective of cumulative transfers of the property.
9. To this argument, Mr. Piyush Garg, learned counsel for the respondents tried to draw the attention of this Court to the impact of Section 209 read with Section 210 of the U.P. Zamindari Abolition Act, 1950, wherein he has contended that since according to the writ allegation, the petitioner has sought possession from the respondents their rights of seeking possession would be barred by implication of Section 209 read with Section 210. Consequently, he takes the shelter of the provisions contained under Section 210 of the U.P. Zamindari Abolition Act, which reads as under:-
"210. Consequence of failure to file suit under Section 209,- If a suit for eviction from any land under Section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall-
(a) where the land forms part of the holding of a bhumidhar with transferable rights, become a bhumidhar with a transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished;
(b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non-transferable rights and the right, title and interest of an asami, if any, in such land shall be extinguisehed;6
(c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year.
[Provided that the consequences mentioned in a Clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.] "
10. If both the provisions of Section 209 for which the consequential effect is dealt with under Section 210 of the U.P. Zamindari Abolition Act is read in precision the principle intention of Section 209 contemplates and ejectment of a person occupying the land without title, meaning thereby, the learned counsel for the respondents cannot have a dual arguments as regards to devolvement of right on him, if he claims to be purchaser, then he is stopped from claiming by an effect of under Section 209 read with Section 210. If in the argument, he contends that he is having a title by virtue of a sale deed executed in his favour. In that eventuality, he cannot have the rescue of Section 209 which deals with the process of ejectment of a person occupying a land without title which is not the case of the respondents. The subsequent argument pertaining to interpretation of Section 210 as raised by the learned counsel for the respondents as to what would be the effect of Section 209, as already observed above in the absence of there being a satisfaction to the ground available under Section 209, the consequential effect of Section 210 will not come into play, because Section 210 is not an independent provision, it is always dependent upon a prior satisfaction of the condition contemplated under Section 209. Thus, this argument extended by learned counsel for the respondents is not acceptable by this Court.
11. There is another aspect of the matter that the process of ejectment and the effect of failure to take steps for eviction and the consequences as contemtplated under Section 210 is vis a vis against a Bhumidhars as defined under the Act. The definition of Bhumidhars and its classification is provided under Section 129 of the Act. But as per definition of Bhumidhar under revenue law it means a landlord or proprietor as per revenue law applicable.
12. Here, in the instant case, since the property stands vested with the Custodian by impact of Section 8 of the evacuee properties Act, the Custodian himself with whom the property is vested by an implication of Central law will not fall to be within the purview of Bhumidhars, and thus the argument extended by learned counsel for the respondents that he would be 7 having the benefit of Section 209 read with Section 210 is not available to him. Once the respondents do not have any valid title vested with him. In that eventuality, may it be whatsoever effect it may have over the case of the petitioner. He ceases his right to oppose an action agitated by the petitioner irrespective of the independent case which is to be floated by him.
13. Thus, I hold that the respondents have got no right to oppose the cause without effecting the other arguments which the Court may pose to the petitioner during the course of arguments.
14. Heard in part.
15. List this case on 13.12.2017 for further arguments."
3. In brief, it appears to be a case, where, according to the petitioner, writ petitioner claims under an allottee of the evacuee property, and he seeks the relief, which we have already set out hereinbefore. Claim set up by respondent nos. 7 & 8 would appear to be that the property in question belongs to them under the sale-deeds executed by the predecessors-in-interest, namely, respondent nos. 5 to
7. The learned Single Judge, we notice, has proceeded by the impugned decision, which does not finally dispose of the writ petition, to decide the rights of the appellants, who were respondent nos. 7 & 8. The learned Single Judge does not appear to have dealt with the rights or claim of the writ petitioner as such. The appellants would appear to have a case that they can seek shelter under the provisions of Sections 209 and 210 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act). This argument has been rejected by the learned Single Judge by the impugned decision. This is clear from the findings, which have been entered into in Paragraphs 10, 11 and 12 of the impugned decision, and finally, the learned Single Judge proceeded to hold that the appellants have got no right to oppose the cause. This finding is rendered without affecting the arguments, which the Court may pose to the writ petitioner. Therefore, the learned Single Judge would appear to have not gone into the rights of the petitioner in the first place, and instead has decided the right of the respondents. Thereafter, the learned Single 8 Judge has posted the case on 13th December, 2017 for further arguments.
4. We have heard Mr. Arvind Vashisth, learned Senior Counsel for the appellants, Mr. Siddharth Singh, learned counsel appearing on behalf of the first respondent / writ petitioner, Mr. Rakesh Thapliyal, Assistant Solicitor General with Mr. Jay Vardhan Kandpal, Standing Counsel for the Union of India, Mr. Narain Dutt, learned Brief Holder for the State of Uttarakhand / respondent nos. 3 & 4 and Mr. T.S. Bindra, learned counsel on behalf of the 5th respondent.
5. As far as respondent nos. 6 & 7 are concerned, they are the sons of the 5th respondent and it brought to our notice that they are essentially proforma respondents, and they are residing abroad. It is also brought to our notice that notice was also not served on them when the impugned decision was rendered. We understand that setting aside this decision would not adversely affect them. In such circumstances, we proceed to decide the Appeal, even though the notice is not being taken on respondent nos. 6 & 7.
6. We are of the view that the learned Single Judge ought not to have passed the impugned decision, which though appears to be an interim order has trapping of the final judgment. This is for the reason that as far as the issues, which have been raised primarily by the appellants in relation to Sections 209 and 210 of the Act are concerned, they stand repelled. The learned Single Judge has not proceeded to hold that this is only a tentative finding and it is open to be reconsidered at the time of final decision. Therefore, this amounts to a final finding on issues, which apparently would vitally affect the appellants' right. Therefore, we are of the view that the impugned decision cannot be sustained. Accordingly, the impugned decision will stand set aside. However, we make it clear that we have not expressed any view regarding the merits of the matter. We leave open all the contentions of all the parties.
97. Mr. Rakesh Thapliyal, learned Assistant Solicitor General would submit that he could not file the counter affidavit. If he is so advised, he may request the learned Single Judge for liberty to bring on record his pleadings.
8. List the writ petition before the learned Single Judge on 5th January, 2018 and we request the learned Single Judge to dispose of the writ petition as the writ petition is of the year 2007.
9. The Appeal stands disposed of.
10. Let certified copy of this judgment be issued today itself.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
21.12.2017 21.12.2017
Rathour