Punjab-Haryana High Court
Haryana State Through Deputy ... vs Shri Chattarbhuj Lilawati Trust on 11 December, 2013
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.651 of 1986 (O&M)
Date of decision: 11.12.2013
Haryana State through Deputy Commissioner, Karnal and others.
... Appellants.
Versus
Shri Chattarbhuj Lilawati Trust, Railway Road, Panipat, through
Shri Pawan Kumar son of Shri Sumer Chand, resident of Panipat,
District Karnal.
.... Respondent
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. D.D. Gupta, Additional Advocate General, Haryana.
Mr. Nitin Sarin, Advocate,
for the respondent.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ?Yes.
----
K.Kannan, J.
1. The plaintiff's suit for declaration and for injunction had been dismissed by the trial Court. The appellate Court reversed the decision and the defendants-State authorities are the appellants before this Court.
2. The suit of the plaintiff complained of the action of the notice issued by the 3rd defendant Tehsildar directing the removal of Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) -2- construction and complaining of the plaintiff's possession as in unauthorized occupation. The plaintiff's contention was that the property which was in an extent of 2 bighas 1 biswa out of Khasra Nos.3545, 3546, 3547, 3548, 3544 and 3543 min in Patti Ansar, Panipat belonged at all times to the plaintiff-Trust and the Custodian of the Rehabilitation Department through which the defendants asserted title and complained of the plaintiff as in unlawful occupation had no interest at all in the subject matter. The plaintiff would state that the property belonged to one Chattar Bhuj and he had created a Trust in the property for performance of certain charities and he had never created any transaction of sale or transfer to any persons, who had fled to Pakistan at the time of partition leaving the property as evacuee property. Consequently, there was no scope for any orders to be passed treating the property as evacuee property and if there had been any order so passed, it was void, illegal and inoperative. The plaintiff would make specific reference to the order passed by the Tehsildar (Sales)-cum-Assistant Custodian on 28.07.1975, referring to the alleged sales made by Chattar Bhuj through power of attorney Abdul Hakim in favour of certain persons as resulting in the property to be rendered as evacuee property and contend that the order was illegal. The property was never declared as evacuee property and the same being without the municipal limits of Panipat partook the character of urban Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) -3- immovable property did not form part of the package deal between the Haryana State and the Union of India.
3. The suit was resisted by the State contending that the properties had all been sold between 11.06.1945 to 22.06.1945 through 20 sale deeds to various persons, who were Muslims and on their migration to Pakistan, the property automatically vested by operation of Section 4 of the East Punjab Administration of Property Act of 1947 and under Section 8(2A) of the Administration of Property Act of 1950. The properties were later managed by the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act of 1954 and knowing the vesting of the property in the Government, the plaintiff-Trust itself had made an application in June 1975 for the sale of the property to the Trust at a reasonable price. The plaintiff cannot, therefore, set up title in itself and deny the title to the Government.
4. The defendants would also contend that if there had been any order passed on 25.08.1962 by the competent officer, as it was contended by the plaintiff in the plaint, it was not traceable, but even without reference to it, the property became automatically vested with the Custodian under Section 4 of the Punjab Administration of Evacuee Property Act of 1948 before passing the order on 25.08.1962. Since there had been a vesting in the State by operation of law, the Government was authorized to dispose it off under the Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) -4- relevant rules and instructions. The notice issued on 28.07.1975 requiring the plaintiff to vacate the property was, under the circumstances, justified and no exception could be taken to the same.
5. The appellate Court has held, while setting aside the decision of the trial Court, that the defendants had not produced the order dated 25.08.1962 in spite of notice having been given before the trial Court for its production and there had been no document to show that there had been a notification issued declaring the property to be evacuee property. The Court had also reasoned that none of the sales alleged to have been executed by Abdul Hakim as an alleged power of attorney was proved and, therefore, the plaintiff's title to the property cannot be denied. It is against this judgment of the appellate Court which is challenged in appeal by the State.
6. The plaintiff's suit is for declaration of title of the suit properties and indeed, there are no documents that prove the ownership of the plaintiff with reference to the properties. I asked the learned counsel appearing on behalf of the respondent to show any document which constitutes an affirmation of title in favour of the Trust and he would only point out to the admitted position that Chattar Bhuj had been stated to be the original owner and the claim to the status of the property as evacuee by the State itself emanated from the alleged sales of Chattar Bhuj in favour of several Muslims, Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) -5- who had later migrated to Pakistan. There is no ground to suppose that the original title in favour of Chattar Bhuj could be understood as also an acknowledgment of title in favour of Chattar Bhuj-Trust. There was no document to show that Chattar Bhuj created any Trust in respect of this property. If it were to be understood that the Trust was oral, then there ought to be some document consistent with such change of character showing the property as having vested with Chattar Bhuj-Trust. We have no such document on file. The plaintiff's action for declaration ought to have been dismissed on this sole ground, but I am prepared to examine whether the ownership of the property in Chattar Bhuj continued beyond the year 1945, for some Trust standing in his name could lay a claim by any positive proof of such devolution. In this case, the documents produced by the State were voluminous to even discredit the contention that the property did not continue with Chattar Bhuj. The power of attorney in favour of Abdul Hakim and all the sale deeds which he had executed from 11.06.1945 to 22.06.1945 (D2 to D21) had been filed before the court below. The sales themselves are adequate testimony to the divesting of title from Chattar Bhuj to various persons in whose favour the sales were made. It is too late in the day to deny the existence of these sale deeds and that all the sales made in the year 1945 were not valid.
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7. The counsel for the respondent made a vain bid to contend that the secondary evidence could not be produced in the absence of adequate reasons for non-production of the original. In H.Siddiqui (dead) by LRs Versus A.Ramalingam-2011(4) SCC 240, the Supreme Court was holding that mere admission of document in evidence did not amount to its proof. In this case, copies of document have produced by the State in support of its plea that the property had passed out of the hands of Chattar Bhuj and held by the 3rd parties, who had fled to Pakistan and which resulted in the property being vested in the Custodian. Section 65 of the Evidence Act details the circumstances when the secondary evidence could be relied on. The purchasers under the respective documents are not in India. They have migrated to Pakistan. The original documents cannot, therefore, be expected to be in the custody of the Government. In any rate, the production of the documents from the persons in Pakistan cannot be secured without extraordinary difficulty. There is surely a ground made for production of the secondary evidence. Section 65 (c) states where the original is destroyed or lost or when the property offering evidence to its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time. The production of the documents from the custody of persons now in Pakistan who may or may not have retained the same is surely not possible and Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) -7- there was therefore a well laid ground made for production of secondary evidence. The recitals in the documents are themselves proof of what they stated. I will, therefore, reject the plea of the plaintiff and hold that by the fact that Chattar Bhuj himself had sold the property in the year 1945, a claim to title by the Trust for declaration ought to fail.
8. In this case, the counsel for the respondent/plaintiff argued and cited several decisions to the effect that if the property was evacuee property, then there was no automatic vesting of evacuee property in the State and there ought to have been a notification made under Section 7. Even any proceeding under the Evacuee Interest (Separation) Act of 1951 (for short, the 1951 Act) cannot be valid without serving notice to the petitioner. He would rely on decisions of this Court that the administrative action without statutory notices would be void ab initio. I do not think it is necessary for me to reproduce the decisions, for, I take it as a settled proposition that if any legislation requires notice to the affected party and actions have been taken without notice, the plaintiff can properly maintain that an order passed without such notice is invalid. In this case, the issue of whether the property was evacuee property is not even, in my view, essential for consideration of the point for adjudication, namely, whether the plaintiff-Trust was the owner of the property to sustain its relief for declaration. As I have Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) -8- already held, the declaratory relief cannot be granted to the plaintiff by only pointing out that the property belonged which belonged to Chattar Bhuj once had passed out of his hands and, therefore, the title of the plaintiff as a Trust cannot be automatically inferred. Such a devolution was not possible in the eyes of law.
9. I am still prepared to examine the issue of whether the Government was justified in issuing a notice complaining of the plaintiff's possession as unlawful and that it has to be removed. The plaintiff has referred to a notice issued by the defendant which was the basis for the suit and the plaintiff's own position at the time when it responded to the notice Ex.PA through a reply given by one Sumer Chand, claiming to be a President of the Trust, was in the following words with the prayer: "It is prayed that the amount in question, if it at all belongs to the Custodian Deptt., be sold to the applicant Trust for a reasonable compensation and at a reasonable price. The trust needs it for the expansion of Maternity Hospital being run by the trust." The present representative of the Trust is Pawan Kumar, who is the son of Sumer Chand. The Trust which had, therefore, accepted the ownership of the property with the Government and which was pleading for a transfer in its favour for consideration, would be estopped from setting up a plea against the Government and denying the vesting of the property with the Custodian. All that the reply states is that the President of the Trust Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) -9- did not know all the sales by the power of attorney Abdul Hakim in favour of several persons. From the passive statement of ignorance of transactions, the plaintiff escalated his original decision to a complete denial of the transactions. I find, therefore, the suit itself is mala fide and the assertion of title was an afterthought.
10. If the Government has in its reply stated that it does not have the proceedings said to have been made in the year 1962 relating to some orders passed under Evacuee Interest Separation Act, it will be begging the question to state the inability to produce the document itself as proof that there had been no vesting with the State. The plaintiff has made an averment in his plaint about the order and if the plaintiff cannot prove his title, the burden immediately cannot be transported to the defendant to show that there had been an order passed in the year 1962 under the 1951 Act or any further order passed were not shown to have been followed by competent orders passed earlier. In this case, there are certain unimpeachable documents, in original, which have been produced by the State to help us piece together some disjointed facts. In a communication written by the Tehsilder, Karnal to the Chief Settlement Commissioner on 29.07.1975, he has mentioned that there had been several sales by Chattar Bhuj through power of attorney treating them as residential plots before 1947 which involved about 2500 square yards. The plots had not actually be Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) - 10 -
converted into residential sites on the spot when the partition took place and the Muslims owners of the property purchased had migrated to Pakistan. These sale transactions were said to have been detected from the registration record in the Registrar's office. When the sanad of partition of agricultural land had been prepared in the office of the competent officer, the claimants had been 4 persons including Chattar Bhuj in respect of the property in Khasra Nos.3541 to 3547. In respect of specific portions, some had been allotted to the share of the claimants including Chattar Bhuj and some portions left to the shares of the Custodian. The details of which is as under:-
Share of the claimant-Chattar Bhuj Share of Custodian
i) 3541 (0-51 biswas) ---
ii) 3542 (min) 11 biswas 0-1
iii) 3543 for owner 3 bighas (3-0) ---
iv) 3544 nil 0-6
v) 3545 nil 0-8
vi) 3546 nil 0-3
vii) 3547 nil 0-9
11. The effect of these documents would only show that the property which had been treated as evacuee property was later made the subject of claim and Chattar Bhuj himself had laid a claim to the property. The original document is before court and if the plaintiff Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) - 11 -
did not go as far as to state that these are fake documents, the government could only speak from the records and it is difficult to impute any personal knowledge to any officer who actually passed the order after entertaining the claims. The plaintiff's case was one of ignorance of these documents and he cannot simply disown the effect of the public documents regarding the manner of its treatment. Section 114 of the Evidence Act must be invoked to presume that the official act resulting in separation in the proceedings made and produced before the Court by the State. While there cannot be an automatic vesting of the property under the 1950 Act, the said Act itself was successor to East Punjab Evacuee Administration of Property Ordinance IV of 1947 soon after the partition of the country into dominion of India and Pakistan. This was superseded by the Act XIV of 1947 that came into force on 12.12.1947. This was superseded by the East Punjab Evacuee Property Administration Ordinance IX of 1947. This was further amended by the Ordinance XX of 1949 that came into force on 23.08.1949. This was replaced by Ordinance XXVII of 1949 and later superseded by the Administration of Evacuee Property Act XXXI of 1950. The 1950 Act contained an important amendment through Section 8(2A) which read as follows:-
"Without prejudice to the generality of the provisions contained in sub section (2) all property which under any Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) - 12 -
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 such law had been enacted by Parliament and such property shall on the commencement of the 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 validity and lawfully made or taken."
It contained a non obstante clause of making valid all properties that had already become vested with the Custodian. The 1951 Act allows for claims to be made for separation of interest and for making submission of claims in relation to the property. The Act was a complete code in itself as regards the manner of claims that were possible in respect of evacuee property. If Chattar Bhuj has participated in the proceedings, as Ex.D2 would reveal, then if the Trust were to contend that the separation made, was erroneous, it could have been a subject of challenge only by way of appeal provided under Section 14 of the 1951 Act. Section 18 of the 1951 Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) - 13 -
Act reads thus:-
"18. Finality of orders.-Save as otherwise expressly provided in this Act, every order made by any appellate officer or competent officer shall be final and shall not be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceedings."
The jurisdiction of the civil court is barred in respect of matters where the 1951 Act makes special provisions. The Section reads thus:-
"20. Jurisdiction of civil courts barred in certain matters.-(1) Save as otherwise expressly provided in this Act, no civil or revenue court shall entertain any suit or proceeding in so far as it relates to any claim to composite property which the competent officer is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the competent officer in respect of the composite property shall be granted by any civil court or other authority.
(2) All suits and proceedings pending before a civil or revenue court at the commencement of this Act shall, in so far as they relate to any claim filed before a Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.651 of 1986 (O&M) - 14 -
competent officer under Section 7, be stayed during the pendency of any proceeding under this Act.
(3) Nothing in sub-section (1) shall prevent any civil or revenue court from entertaining any suit or proceeding relating to any right in respect of any payment made, or property transferred or delivered, to a claimant under the provisions of this Act which any other claimant or other person may be entitled by due process of law to enforce against the claimant to whom the payment is made or the property is delivered or transferred."
The plaintiff cannot, therefore, make any claim in respect of the property or seek for injunction in respect of matters which have been already dealt with and the rights considered. The suit was not competent in so far as it contained any reference to the invalidity of the orders passed under the 1951 Act. The reference to exclusion of civil court jurisdiction is made not to render an adjudication made regarding the plaintiff's claim to title to the property as not competent. On the other hand, it is to address an objection taken in the body of the plaint that the orders passed by the competent authorities under the Act were void ab initio. Such a contention could not have been taken before the civil court.
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Regular Second Appeal No.651 of 1986 (O&M) - 15 -
12. The decision of the lower appellate Court is set aside and the second appeal by the State is allowed. No costs.
13. It is stated that the property is now used by the Trust for running a Maternity Hospital, a subject of healthcare, which is indeed a State's duty itself. Even while dismissing the suit and quashing the plaintiff's claim that Trust is the owner of the property, I observe that if the Government wants to take possession of the property, it may have due regard to the existing hospital and allow for continuity of service available at the hospital in the manner that it thinks fit instead of demolishing the superstructure. This is left to the best decision of the Government and this observation ought not to be taken as enabling the plaintiff-Trust to stay on in the property by denying the title of the Government in respect of the subject matter of the site involved at the property.
(K.KANNAN) 11.12.2013 JUDGE sanjeev Kumar Sanjeev 2013.12.13 10:42 I attest to the accuracy and integrity of this document chandigarh