Punjab-Haryana High Court
State Of Haryana vs Rulha And Others on 9 February, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CWP No.17309 of 2006 -
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CWP No.17309 of 2006
Date of Decision: February 09, 2012
State of Haryana
.....Petitioner
Versus
Rulha and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Sandeep S. Mann, Sr. DAG, Haryana for the petitioner-State.
Mr. Ashish Aggarwal, Advocate for respondents No.1 and 2.
Paramjeet Singh, J The instant writ petition has been filed under Articles 226/227 of the Constitution of India for quashing of order dated 29.07.2005 (Annexure P-6) passed by Financial Commissioner & Principal Secretary, Revenue/Rehabilitation, Haryana; order dated 09.12.1974 (Annexure P-3) passed by Assistant Custodian General, Haryana and order dated 19.05.1975 (Annexure P-4) passed by Tehsildar (Sales)-cum-Assistant Custodian, Karnal.
Brief facts of the case are that Abdul son of late Sh. Allah Dia resident of Village Kunda Kalan, Tehsil Nukar, District Saharanpur(Uttar Pradesh) filed an application dated 23.03.1973 under Section 27 of the Administration of Evacuee Property Act, 1950 (henceforth to be referred as 'the Act') before the Custodian General of Evacuee Property, Jaislmeer House, New Delhi against automatic vesting of his land in favour of CWP No.17309 of 2006 -
Custodian. It is alleged in the petition that he was owner of land to the extent of 1/36 share comprised in Khasra No.6 equivalent to 54 Bigha 8 Biswa in Village Kunda Kalan, Tehsil and District Karnal (Haryana) . He did not migrate to Pakistan but had been residing in village Kunda Kalan in Tehsil Nukar, District Saharanpur (U.P.). It is further stated that he has also land in U.P. and that land has never been declared as evacuee property and is under his cultivating possession. It has been further alleged that several applications have been made by him to the Custodian Authorities, Haryana that his land situated in Village Kunda Kala, Tehsil & District Karnal is non- evacuee property as such vesting of his land with the Custodian is illegal and without jurisdiction. The Deputy Custodian General of India vide order dated 25.06.1973 forwarded the petition to the Assistant Custodian General, Haryana for final disposal. The Assistant Custodian General, Haryana vide order dated 09.01.1974 (Annexure P-1) forwarded the said application to the Tehsildar (Sales)-cum-Assistant Custodian, Karnal, directing him to submit report after determining the evacuee nature of the property. In pursuance of the order dated 09.01.1974 (Annexure P-1), the Assistant Custodian, Karnal submitted his report dated 12/13.09.1974 to the Assistant Custodian General, Haryana. The Assistant Custodian General, Haryana vide order dated 09.12.1974 (Annexure P-3) held that predecessors-in-interest of respondents No.1 and 2 were entitled for restoration of their property and directed the Assistant Custodian, Karnal to make alternative allotment of land of equivalent area in accordance with law. In compliance of that order, the Tehsildar (Sales)-cum-Assistant Custodian, Karnal vide order dated 19.05.1975 (Annexure P-4) assessed the value of respondents' land equivalent to 3 standard acres and 3 units and allowed the alternative CWP No.17309 of 2006 -
allotment to that extent and restored the area of the respondents. Thereafter on 05.07.1975 (Annexure R-3) Abdul (father of respondents No.1 and 2) filed an application for execution of orders dated 09.12.1974 (Annexure P-3) and 19.05.1975 (Annexure P-4) that land be allotted to them in place of original land in village Kunda Kalan or nearby village. Thereafter the case for providing alternative land to the private respondents was remained pending in the office of Assistant Custodian, Karnal up to 1978. During pendency of that application Abdul (father of the private respondents) died. On 06.10.2003, Ruhla and Ali (respondents No.1 and 2) sons of Abdul again filed application before the Assistant Custodian, Karnal for delivery/restoration of the possession of the land measuring 54 bighas 5 biswa situated in village Kunda Kalan in terms of order dated 09.12.1974 and 19.05.1975. However, State of Haryana through Tehsildar (Sales) (Hqrs.), Rehabilitation Department by taking suo motu reference filed petition under Section 54 of the Administration of Evacuee Property Act, 1950 before Financial Commissioner, Haryana for setting aside the orders dated 09.12.1974 and 19.05.1975. The Financial Commissioner vide order dated 29.07.2005 (Annexure P-6) upheld the orders dated 09.12.1974 (Annexure P-3) passed by the Assistant Custodian General, Haryana and order dated 19.5.1975 (Annexure P-4) passed by the Tehsildar (Sales)-cum-Assistant Custodian, Karnal and ordered the petitioner-State to deliver the possession of final allotment within a period of three months. Hence, the instant writ petition by State.
I have heard learned counsel for the parties and perused the record.
CWP No.17309 of 2006 -
Learned counsel for the petitioner-State argued that in view of judgment delivered by Division Bench of this Court in case of Smt. Rahmo and another Vs. The Financial Commissioner and others in CWP No.5287 of 1982 decided on 16.5.1983 respondents cannot be allotted land in spite of the fact that they had never migrated to Pakistan. On the other hand, learned counsel for the respondents submitted that the judgment is not applicable to the facts of case in hand. Firstly, that was a case where the property was left by the persons in Pakistan and they were allotted property in India. But here is a case where the property has wrongly been declared as evacuee property. Respondents No.1 and 2 or their ancestors had never migrated out of India nor they had been allotted any land out of India. Their land has wrongly been declared as evacuee property. The property of respondents No.1 and 2 has rightly been ordered to be restored by the competent authorities.
The Hon'ble Apex Court had the occasion to deal with Section 27 of the Act in the case of Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi and others, AIR 1956 SC-77 wherein the Apex Court has held that Section 27 is very wide in its terms and it cannot be construed as being subject to any limitations such as filing of an appeal. Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality because under Section 27 the Custodian General can exercise revisional powers for the purpose of satisfying himself as to "the legality or propriety" of any order of the Custodian. A Full Bench of this Court in Prem Singh Vs. Deputy Custodian General, AIR 1955 Punjab -177 (FB) has also held that under Section 27 of the Act, the Custodian General has inherent powers. Similarly, learned Single Judge of this Court in the case of CWP No.17309 of 2006 -
Mir Dal Vs. State of Haryana, 1983-PLJ 209 has held that no time limit is prescribed for filing petition or for restoration of the property. In that case the persons had also not migrated to Pakistan but their land had wrongly been treated as evacuee property.
All the authorities have concurrently found that the property of respondents No.1 and 2 and their ancestors has wrongly been declared as evacuee property and they are entitled to restoration of their property under Section 16 of the Act. This Court vide order dated 15.03.2010 directed the authroiteis to file affidavit with regard to availability of land in Village Kunda Kalan Tehsil and District Karnal. Affidavit dated 21.07.2009 of Zile Singh, Under Secretary to Government of Haryana filed in this Court reads as under:
"I the above named deponent do hereby solemnly affirm and state as under:
1. That the petitioner-State filed the above mentioned writ petition for quashing the impugned order dated 29.7.25(Annexure P-6) passed by the Financial Commissioner and Principle Secretary whereby order dated 9.12.1974 passed by Assistant Custodian Haryana and the order dated 19.5.1975 passed by the Teshildar (Sales)-cum-Assistant Custodian Karnal have been affirmed and further directions were given to deliver the possession of 54 bigha 8 biswa situated in village Kunda Kalan (Karnal) or in case the original land is found shamlat deh or has already been allotted then CWP No.17309 of 2006 -
respondent be given alternative allotment though respondents No.1 and 2 had no legal right to claim alternative land in view of the law laid down by the Hon'ble Supreme Court reported as AIR 1969 SC 1126 and this Hon'ble Court also relied upon this judgment while dismissing the CWP No.5287 of 1982 vide order dated 16.05.1983 annexed with the writ petition as Annexure P-8.
2. That the above mentioned writ petiton came up for hearing on 02.11.2006 when this Hon'ble Court was pleased to issue notice of motion for 05.12.2006 and further State was directed to file an affidavit categorically stating whether any lands are available with the State Government for allotment to respondents No.1 and 2 or not.
3. That on 05.12.2006 the case was adjourned for arguments for 20.02.2007. In the meanwhile operation of the impugned order Annexre P-6 was ordered to be remained stayed. Thereafter case was adjourned on one count or the other and was taken up on 21.04.2009.
4. That on 21.04.2009 this Hon'ble Court was pleased to adjourn the case to 23.07.2009 for filing affidavit.
5. That as per information given by the Tehsildar (Sales) Karnal the lands are available in Villages (1) CWP No.17309 of 2006 -
Chaura (563 kanal), (2) Darad (68 Kanal), (3) Jundla (82 kanal), (4) Kachhwa (96 kanal), (5) Garhi Bhalal (261 kanal), (6) Kunda Kalan (1175 kanal G.M. Reit) for disposal."
Reading of the affidavit makes it clear that in Village Kunda Kalan, Tehsil and District Karnal 1175 kanal land is still available for disposal. Since the property of respondents No.1 and 2 or their ancestors has been declared as evacuee property against the provisions of law as they had never migrated out of India rather they had settled in adjoining State of Uttar Pradesh and after consolidation that has changed and still the property is available with State of Haryana in the same very village in which the property of respondents No.1 and 2 was wrongly declared as evacuee property. It is a settled principle of law that no one can be deprived of his property except in accordance with due procedure established under the law.
Keeping in view the above facts and particularly the fact that the brother of the father of the respondents namely Abdula, whose property had also wrongly been declared as evacuee property, has already been allotted land in pursuance to order dated 19.12.1974 passed by Assistant Custodian, Haryana and possession of which has already been delivered to the brother of the father of the respondents in the year 1969. Respondents No.1 and 2 are also entitled to similar relief for restoration of their property. I, therefore, deem it appropriate to direct the authorities to deliver the possession of 54 bigha and 8 biswa situated in village Kunda Kalan, Tehsil and District Karnal as the order of allotment had become final in the year 1975.
Ordered accordingly.
CWP No.17309 of 2006 -
In view of above discussion, the present writ fails and the same is hereby dismissed. The orders passed by authorities are upheld.
No order as to costs.
(PARAMJEET SINGH) JUDGE 09.02.2012 vcgarg