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S.A. JaIn College Trust and Managing Society Vs. the State of Haryana and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 139 of 1986 and Objection No. 14 of 1996 in Regular First Appeal No. 390 o
Judge
Reported in(2004)136PLR287
ActsEast Punjab Evacuees (Administration of Property) Act, 1947 - Sections 5A; East Punjab Displaced Persons (Land Resettlement) Act, 1949 - Sections 9; Administration of Evacuee Property Act, 1950 - Sections 40; Punjab Alienation of Land Act, 1960 - Sections 11
AppellantS.A. JaIn College Trust and Managing Society
RespondentThe State of Haryana and anr.
Appellant Advocate S.P. Jain, Sr. Adv. and; Vijay Kumar Chaudhary, Adv.
Respondent Advocate Viney Mittal, Sr. Adv. and; Arvind Bansal, Adv. for Respondent No. 2
DispositionAppeal dismissed
Cases ReferredS.A. Jain College Trust and Managing Society v. State of Haryana and Anr.
Excerpt:
- haryana urban(control of rent and eviction)act,1973[har.act no.11/1973] -- section 4(2)(b): [m.m. kumar, hemant gupta, ajay & kumar mittal, jj] determination of fair rent held, the fair rent of building under the section is to be determined on the basis of rent agreed between landlord and tenant preceding the date of application. in the absence of rent agreed between parties the basic rent is required to be determined on the basis of rent prevailing in locality for a similar building or rented land on the date of application. if on the date of filing of the application under section 4 of the act for determination of fair rent, the agreed rent was still in vogue thus, it has to be regarded as the basic rent and the same would be constituted as the basis for determining fair rent. .....m.m. kumar, j.1. this appeal under clause x of the letters patent is directed against judgment dated 25.10.1985 rendered by the learned single judge in rfa no. 390 of 1975 vide which the learned single judge has rejected the claim of the appellant s.a. jain college trust, ambala city or apportionment of compensation in respect of the land acquired vide notification no. 6605-edi/13595 dated 15.5.1968 read with notification nos. 4034-edi/69/14965 dated 11.6.1969 and no. 10244/edi/69/20482 dated 13.8.1969 issued under sections 4 and 6 of the land acquisition act, 1894 (for short 'the act'). the claim of the appellant for apportionment under section 30 of the act was rejected earlier by the learned additional district judge, ambala, vide his order dated 30.12.1974.2. this case is a classical.....
Judgment:

M.M. Kumar, J.

1. This appeal under Clause x of the Letters Patent is directed against judgment dated 25.10.1985 rendered by the learned Single Judge in RFA No. 390 of 1975 vide which the learned Single Judge has rejected the claim of the appellant S.A. Jain College Trust, Ambala City or apportionment of compensation in respect of the land acquired vide notification No. 6605-EDI/13595 dated 15.5.1968 read with notification Nos. 4034-EDI/69/14965 dated 11.6.1969 and No. 10244/EDI/69/20482 dated 13.8.1969 issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (for short 'the Act'). The claim of the appellant for apportionment under Section 30 of the Act was rejected earlier by the learned Additional District Judge, Ambala, vide his order dated 30.12.1974.

2. This case is a classical illustration of miseries heaped on a migrant resulting from the allotment of evacuee land. This historical and unique exodus following the partition of the country in 1947 resulted into enactment of various Acts leading to decades long legal battles for the allottees. Shri Ahsan Elahi leased out land measuring 41 K-14 M situated in village Patti Jattan, Tehsil and District Ambala vide registered lease deed for a period of 99 years to the appellant-S.A. Jain College Trust, Ambala City. Section 5-A of the East Punjab Evacuees (Administration of Property) Act, 1947 (for brevity, 1947 Act;) has provided that a lease deed executed after 15.8.1947 in respect of an evacuee property could be effective only if the Custodian had confirmed it. The appellant submitted the lease deed to the custodian for confirmation. The custodian in its order dated 5.3.1949 relied on Section 11 of the Punjab Alienation of Land Act, 1900 (for brevity Alienation Act') and confirmed the lease for twenty years. Against order dated 5.3.1949 a revision was filed by the appellant which was dismissed by Deputy Custodian General of India on 24.4.1961 (Ex.R25). which reads as under:-

'This is a revision petition directed against the order dated 5.3.1949 of the Additional Custodian Jullundur. Facts leading to it may briefly be stated as under:-

On 13.9.1947 one Ahsan Elahi executed a lease deed for 27 Bighas 1 Biswa of land within the limits of Ambala City for a period of 99 years in favour of the petitioner, the S.A. Jain College Trust and Managing Society, Punjab and delivered possession to the lessee. After the execution of the lease lessor migrated to Pakistan and when the lessee applied to the Custodian for confirmation of the transfer the Additional Custodian Punjab granted the prayer but reduced the period from 99 years to 20 years on account of restrictions imposed by the Punjab Alienation of Lands Act then in force.

On 19.3.1953 respondent No. 1 Amrik Singh, a refugee from West Pakistan got this land allotted from the Director Rural Rehabilitation in lieu of his land left behind and on 27.12.55 Managing Officer conferred permanent rights on him in the land. Petitioner preferred an appeal against the order of the Managing Officer, but the same was rejected by the Asstt. Settlement Commissioner on 16.1.57 and a revision against the appellate order was rejected by the Chief Settlement Commissioner on 8.1.58.

As in the order of the Additional Custodian 5 Kanals of land not included in the lease had been included because of a mistake in the lease deed. In Suo Moto revision Chief Settlement Commissioner modified the order of the Additional Custodian by reducing the excess area. This order made on 20.1.60 and in the course of arguments before the Chief Settlement Commissioner petitioner brought up the question of revising the order of the Additional Custodian by extending the lease to the original term, but the petitioner's prayer was not granted and he was advised to file a separate revision if he so liked.

Hence, the present revision filed on 25.1.1961.

A preliminary objection has been raised on behalf of the respondent No. 1 that the revision is time barred and hence must be rejected.

Sec: 27 of the Administration of Evacuee Property Act gives plenary powers to the Custodian General in the matter of revision. He can do so at any time. These revisions can be at his own instance or at the instance of a party.

In the rules framed under the Act no period is prescribed within which Custodian General can take action under the Act, if he of his own motion chooses to interfere with the order of a subordinate authority. But if he is moved by way of an application by a party then Rule 31(5) provides that these application must be given ordinarily within six months.

Recently in Civil Appeal No. 754 of 1957 decided on 4.3.1961 - Purshotam Lal Dhawan v. Dewan Chaman Lal and Ors. the above rule was considered by the Supreme Court and their Lordships held that Rules could not limit the powers of the Custodian General given by the Act and though the Custodian general could entertain the revision petition at any time, yet he had to act judicially and not arbitrarily and when so acting the period mentioned in rule was to be his guide in determining whether delay is reasonable or not.

In the present case the impugned order was passed on 5.3.1949 and the present petition was given on 25.1.61 i.e. after the lapse of about 12 years and prima facie there is inordinate delay. The submission of the learned counsel for the petitioners were three. The first was that the revision petitioner had secured allotment of land by the Director Rural Rehabilitation by an exparte order and by suppressing correct facts and by misrepresentation. Without examining the allegations of the petitioners on merits, it must be held that even if what the petitioners allege is true it affords no ground for extending time. The submission is not relevant. If the allegations are proved to be true that might have the effect of respondent No. 1 being deprived of the land and the land being given to some one else after the expiry of the lease but that was not a circumstance that could stand in the way of the petitioners moving against the order of the Addl. Custodian within the time mentioned in the Rule. The learned counsel for the petitioners could not tell me what the respondent did that prevented the petitioners from filing the revision. The two were independent matters.

The second submission was that after respondent No. 1 secured permanent rights in 1955 the petitioners were prosecuting appeal and revision against respondent No. 1 and in those proceedings respondent No. 1 had moved Custodian Deptt, for cancellation of the lease in favour of the petitioners and it was only on 20.12.60 that the matter was ultimately decided and hence all this period merited exclusion.

I find little force in the above submission. Allotment of permanent rights to respondent No. 1 had nothing to do with the term of lease of the petitioner. Prosecution of appeal and revision did not stand in the way of the petitioner filing a revision against the order of the Additional Custodian. Even the revision of the petitioners was rejected on 8.1.58 and there was no excuse for sleeping over the matter for the next three years.

Order of 20.10.60 only took away a small area of 5 kanals which had wrongly been included in the lease deed and the petitioner never were laying any claim to it as it apparent from para 8 of the petition. How could proceedings initiated in this connection prevent petitioner from filing his revision petition or had any connection with that wrong entry in the lease deed?

The third submission was that petitioners were running a school and the disputed land was for a school grounds and if school was deprived of the land students would suffer heavily. This again is not valid ground for condoning delay. The petitioner society should have thought of the interests of the students years earlier and not allowed time to run and then on sentimental grounds taken shelter behind its apparent apathy. It may be true that the school caters for a large number of children of displaced persons, but there appears little excuse that for the sake of those children respondent No. 1 who is also a displaced person and who has been waiting patiently for his land at the end of the lease granted in 1949, should sacrifice his rights and loose the reward that the present value of the land gives him.

In view of the above I do not consider it necessary to examine the merits of the petition and reject it as barred by time.'

3. All leases of land made by an evacuee in favour of a person other than an evacuee were terminated by Section 9 of the East Punjab Displaced Persons (Land Resettlement 'Act'), 1949 (for brevity '1949 Act') Section 9 created one exception and it empowered Additional Custodian to grant exemption to a lease from termination. The appellant also applied for exemption and vide order dt. 24.11.1952 exemption was granted. Otherwise lease dated 15.9.1947 would be deemed to have been terminated on 25.7.1949.

4. On 19.3.1953 the Director Rural Rehabilitation allotted the land to respondent-Shri Amrik Singh in lieu of the land he had left in West Pakistan under the provisions of Administration of Evacuee Property Act, 1950 (for brevity '1950 Act') A rapat in this regard was entered by the Managing Officer on 2.10.1955. Against this order, the appellant filed an appeal on 23.1.1956 and the same was rejected on 16.1.1957 by the Assistant Settlement Commissioner exercising the powers of Settlement Commissioner. A revision against the order of the Assistant Settlement Commissioner was also dismissed on 8.1.1958. Thereafter some litigation at the instance of the appellant was undertaken but without making any material difference. All these aspects have been noticed in the above reproduced order of the Deputy Custodian General of India. The appellant was, thus, lessee on the land in question for a period of 20 years, which came to an end on 31.8.1967.

5. On 15.5.1968 a notification under Section 4 of the Act was issued and notification under Section 6 were issued on 11.6.69 and 13.8.1969 acquiring this piece of land alongwith other for a playground to be used by the appellant. After acquisition of the land, the Collector Land Acquisition afforded opportunity to the appellant as well as to the respective claims for compensation or apportionment. He pronounced the award on 20.9,1970 in favour of respondent Shri Amrik Singh. The appellant filed objection petition under Section 18 read with Section 30 of the Act, seeking apportionment in the compensation awarded to the respondent. The claim was founded on the preposterous assertion that the College was in possession of the disputed land on the date of issuance of notification under Section 4 of the Act i.e., 15.5.1968 as a statutory tenant/tenant for a period of 99 years on the basis of the registered lease deed dated 13.9.1947.

6. The claim petition of the appellant filed under Section 18 read with Section 30 was referred by the Collector to the learned Additional District Judge, Ambala City for adjudication as enjoined upon him under Section 18. The learned Additional District Judge went into detailed examination of various documents, the evidence, the judgment of the Civil Court, various orders passed by the statutory authorities under various Acts and concluded that it was not open to the appellant to claim that there was a lease for 99 years and therefore, on that basis it was not entitled to apportionment in compensation. Ft is appropriate to refer to the observations made by the learned Additional District Judge, in para 5 and 6 of the judgment which read as under;-

'The sole point for decision is as to whether the S.A. Jain College is a lessee of the land in dispute for 99 years and as to whether the College is also entitled to any apportionment out of the compensation which has been awarded to the claimant Shri Amrik Singh. In order to substantiate this allegation that the college is a lessee for 99 years, reliance has been placed on the Statement of Shri R.N. Moga, Principal, S.A. Jain College, Ambala City PW-1. He deposed that the College has taken this land on lease for 99 years for the play grounds of the College from one Hassan Ali. To the same effect is the statement of Shri Raj Kumar PW3 who deposed that the land in dispute was taken from Hassan Ali on lease for 99 years. Shri Beni Parshad PW4 has proved the correctness of the lease deed Ex.A-1 by stating that the same was attested by him was a witness. Against this evidence reliance has been placed by Amrik Singh Claimant on certified copy of the plaint Ex.R17, certified copy of the written statement Ex.R-18 and certified copy of the judgment and decree of the learned Senior Sub Judge in Civil Suit No. 165 of 1970 Ex.R19 which go to show that the suit filed by S.A. Jain College against Amrik Singh was dismissed in which it was held that the Custodian was competent under the law of the land to reduce the period of lease from 99 years to 20 years. This judgment is inter parties and would act as a res judicata. It may also be pointed out with profit that no appeal was filed against the said judgment and decree of the trial court and hence the said judgment has attained - finality in the eye of law. In view of the above judicial pronouncement, it does not lie in the mouth of the College to urge at this stage that the lease was for a period of 99 years. In addition to it, there is an application addressed to the Education Deptt. by the Principal of the said College dated 10.5.1967 Ex.R1 in which a request was made that the lease was to expire on 31.8.1967 and as such the land should be acquired for the play grounds of the college. To the same effect is another application Ex.R9. Ex.R10 is a copy of another application dated 16.4.49 which was filed on behalf of the College in which it was stated that the College authorities had agreed and acceded to the proposal vide which mutation was sanctioned for 20 years in accordance with the provisions of Section 11 of the Land Alienations Act. Ex.R5 is a copy of the application dated 6.1.54 filed by the College to the State Competent Officer affirming 20 years period of lease. Ex.R22 is a copy of the order of the State Competent Officer dated 2.2.54 by which it was held that the lease was for 20 years and therefore, he had no jurisdiction to separate the evacuee share from that of the non-evacuee. Ex.R23 is a copy of the order of the Assistant Settlement Commissioner dated 16.1.53 whereby the appeal filed by the College was dismissed. In the same manner Ex.R24 is another copy of the order of the Chief Settlement Commissioner dated 8.1.56 whereby the appeal filed by the College was dismissed. Ex.R25 is a copy of another order dated 24.4.61, whereby the request of the College was turned down by the Deputy Custodian General of India. Ex.R26 is copy of another order dated 2.3.71 of the A.R. Cum-Managing Officer, Haryana by which the claim of the College was rejected. Ex.R27 is another copy of the order dated 23.5.72 whereby the Chief Settlement Commissioner, Haryana also dismissed the prayer of the College Authorities. From the above documentary evidence it stands conclusively proved that the property in dispute was leased out to the S.A. Jain College for a period of 20 years only. The said period of lease expired on 21.8.67 and the notification under Section 4 of the Land Acquisition Act was issued on 15.5.68. It is, therefore, clear that on the day when the acquisition proceedings were started, the S.A. Jain College was no longer a lessee of the suit land.

The only point to be seen is as to whether any valuable right in favour of S.A. Jain College subsisted on the day when the land in dispute was acquired and if so, to what amount of compensation the college is legally entitled. It was submitted by Ch. Bakhtawar Singh that the deciding factor of the proportion for the distribution of compensation amount between the landlord and the occupancy tenants should not be the same as that between the Malkana paid by the tenant to the landlord and the land revenues. It was further submitted by him that wherfe the rent is fixed in perpetuity, the landlord is not entitled to more than the capitalised value of his rent and the court ought to proceed on the principle of ascertaining what is the value of the interest of the landlord on the one hand with which he has parted and that of the tenant on the other and to apportion the compensation money between them in accordance with those values. This argument was based on multiple decisions cited as Baton Singh and Ors. v. Nathu Birju, A.I.R. 1961 Punjab 503, Ram Kishan and Ors. v. Jati Ram and Ors., A.I.R. 1941 Lahore 649 and Hakam Singh and Ors. v. Collector, Gurdaspur, A.I.R. 1932 Lahore 123(2) and latest decision of the Hon'ble Supreme Court cited as A.I.R. 19721 S.C. 2017. I am not at all impressed with the above submission and the authorities on which reliance has been placed have not the remotest relevancy to the facts of this case. In all the above cited authorities, the land was acquired by the Govt. and the lessor as well as the lessee were deprived of their interest. In the present case, the land has been acquired by the College authorities themselves and, therefore, it cannot be said that they have been deprived of their interest. In fact, at the request of the Education authorities, the land in question was acquired. In the case in hand, the period of alleged lease has already expired on 31.8.67 before the acquisition proceedings were taken and, therefore, the lessee has not been deprived of any prospective rights, nor can it be said that there was a monthly tenancy, but in fact the possession with the college after the expiry of the lease period was in the capacity of a statutory tenant. It is, therefore a naked possession without any right as has been laid down in (1958)60 P.L.R. 62 at page 63:A.I.R. 1969 Punjab 101 and A.I.R. 1972 S.C. 2526 at 2528. Moreover, the owner Zamidar has the whole of the interest in a property and it is for the tenure holders to show that what part of the interest the Zamidar has diverted himself in their favour. This is what is laid down in Radha Ray and Anr. v. Raja Jyoti Prasad Singh Deo, A.I.R. 1933 Calcutta 21 at page 22. In the instant case, the College has failed to bring any evidence to show that they have been deprived of any legal right after the expiry of the period of lease. I decide this issue accordingly'.

7. A perusal of the above judgment makes it crystal clear that there was over whelming evidence against the appellant showing that the lease which was initially for a period of 99 years was confined to 20 years by the Custodian while approving it under Section 5A of the 1947 Act read with Section 11 of the Alienation Act. The land was acquired for the playground to be allotted to the appellant. The period of 20 years came to an end on 31.8.1967 i.e., much before 15.5.1968 when notification under Section 4 of the Act was issued. It has also been observed by the learned Additional District Judge that the appellant had filed a Civil Suit No. 165 on 1970 on 16.4.1970 which was decided on 27.4.1972 (Ex.R19) where the order of the custodian dated 5.3.1949 determining the lease for 200 years was referred to and it was held that the Civil Court lacks jurisdiction to adjudicate upon the order of the Custodian in view of the bar under Section 19 of the 1947 Act. Against that judgment of the Civil Court, no appeal was filed.

8. Despite massive evidence against the appellant showing that the lease was for 20 years and it has come to an end on 31.8.1967 much before 15.5.1968 despite issuance of notification under Section 4 of the Act and having failed in the Civil Court, the appellant filed RFA No. 241 of 1947. The learned Single Judge while dismissing the aforementioned first appeal with costs observed as under;-

'As regards the appeal filed on behalf of the S.A. Jain College there is indeed little that the counsel for the appellant could say in support of the point sought to be urged, namely that the S.A. Jain College held a lease of the land acquired for 99 years and was thus entitled to apportionment of compensation for this land on this account. The evidence on record however, over-whelming shows that the lease was for 20 years and the period of this lease had expired before the land was acquired. No occasion, thus arises for apportionment of compensation. It would be suffice to refer here to the earlier suit between the parties Exhibit R/19 which was filed by the S.A.Jain College, where it was held that the period of the lease was 20 years. Exhibit R16 is an application filed by the Principal of the College wherein it was mentioned that this lease was to expire on August 31, 1967. Another application to the same effect is Exhibit R/5. The finding of the Court on this point thus warrants no interference in appeal.

In the result, the appeal filed by S.A. Jain College, is hereby dismissed while that of the landlord Amrik Sing is accepted with costs throughout'.

9. The insatiable greed of the appellant still promoted him to file the present appeal on the basis of the same arguments and same submissions factual as well as legal. Before adverting to the arguments of the learned counsel, it is appropriate to refer to the provisions of various Acts which would be relevant to determine the duration of the lease deed executed in favour of the appellant on 13.9.1947 by Sh. Ahsan Elahi. Sections 2 and 5A of the 1947 Act, Section 40 of the 1950 Act, Section 11 of the Alienation Act and Section 9 of the 1949 Act are relevant in this regard. These sections are required to be considered which read as under:-

1947 Act

'2. Definition'- In this Act, unless there is anything repugnant in this subject or context-

(a) 'Custodian' includes an Additional Custodian of evacuee Property. A Deputy Custodian of Evacuee Property appointed under this Act:

(b) 'evacuee' means a person ordinarily resident in or owning property or carrying on business within the territories comprised in the Province of East Punjab who on account of civil disturbances or the fear of such disturbances or the partition of the country ;-

(i) leaves or has since the first day of March 1947 left the said territories for a place outside India, or

(ii) cannot personally occupy or supervise his property or business

(c) 'evacuee property' includes all property in which any evacuee has any right or interest but does not include any movable property in his immediate physical possession:

(d) 'prescribed' means prescribed by rules made under this Act and

(e) 'Property' includes any right or interest in movable and immovable property, in any shop or business established or any factory or workshop or undertaking or in any debt or actionable claim other than a mere right to sue but does not includes cash deposits in banks'

5-A. Prohibition of certain transactions affecting Evacuee's Property.

(1) No sale, mortgage pledge, lease exchange or other transfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent assign or attorney of the evacuee, or such person, on or after the fifteenth day of August, 1947 shall be effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian under this section.

(2) An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him.

(3) The Custodian shall reject any application made after the thirty first days of March, 1948 or after the expiration of two months from the date of transaction was entered into whichever is later.'

(4) The Custodian shall hold a summary inquiry which is not rejected under Sub-section (3) and may decline to confirm the transactions if the application is not evidenced by a document in writing registered under the Indian registration Act, 1908 (XVI 1908) before the 31st day of December, 1947 and it appears to the Custodian that-

(a) the transaction was not a bonafide for valuable consideration; or

(b) the transaction is in the opinion of the Custodian prejudicial to the prescribed objects; or

(c) for any other reason to be given by the Custodian in writing, the transaction ought not to be confirmed.

(5) If the Custodian confirms the transaction, he may confirm it unconditionally, or subject to such conditions and terms as he may consider proper'.

1950 Act

'40. Validity of transfers respecting property subsequently declared to be evacuee property.;-

(1) No transfer made after the 14th day of August, 1947, (but before the 7th day of May, 1954) by or on, behalf of any person in any manner whatsoever, belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them if at any time after the transfer, the transferor becomes an evacuee within the meaning of Section 2 or the property of the transfer is declared or notified to be evacuee property within the meaning of this Act, unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act.

(2) Nothing contained in Sub-section (1) shall apply to the transfer for valuable consideration of any such property as is referred to therein in any of the following cases, namely;

(a) where the transfer has been made with the previous approval of the Custodian before the Commencement of the Administration of Evacuee Property (Amendment) Act, 1953;

(b) where the transferor has not left India for Pakistan within a period of two years from the date of the transfer...

S.9 Termination of leases of land by evacuee in favour of non-evacuee;-

(1) Notwithstanding anything contained in any law for the time being in force all leases of land except such leases as the Custodian by order exempt from the operation of this Section, made by an evacuee in favour of a person other than evacuee shall be deemed to have terminated on the 25th July, 1949 and the land shall be deemed to have vested under this Act in the Custodian with effect from the same date free from all rights of the lessee or persons claiming under such lessee.

(2) where any lease is determined under this Act, there shall be paid the compensation the amount which shall be determined in the matter in accordance with the principles hereinafter set out...'

Alienation Act

Section 11. Any member of an agricultural tribe may make a lease or farm of his land for any term not exceeding twenty years, and any lease or farm made by a member of an agricultural tribe for a longer term than twenty years shall, if the lessee or farmer is not a member of the same tribe or of a tribe in the same group, be deemed to be a lease or farm for the term permitted by this Section'.

10. A conjoint perusal of the above mentioned sections makes it obvious that any, lease executed or any other transaction entered concerning evacuee property on or before 15.8.1947 is required tc be confirmed by the Custodian as per mandate of Section 5-A of 1947 Act. By operation of Section 40 of 1950 Act and also under Section 9 of the 1949 Act leases, were deemed to be terminated unless exemption had been granted by the Custodian to such leases. It is also crystal clear that in Section 11 of the Alienation Act, there is an express bar for treating the lease in respect of agricultural land executed for more than 20 years. It is in this background that the orders passed by the various Acts will have to be examined.

11. We may also make a reference to various provisions which would determine the bonafide allotment of land to respondent Shri Amrik Singh. Section 2, 4 and 5 of the 1949 Act and Sections 2.12.1940 of the 1950 Act are relevant which are reproduced hereunder;-

' 1949 Act

2. xx xx xx(a).......

(b) 'allottees' means a displaced person to whom land is allotted by Custodian under the conditions published with East Punjab Government notification No. 4892-S, dated the 8th July, 1949 includes his heirs legal representatives and sub lessees;

(f) 'present holder' means a person who is in possession of the land allotted or leased to an allottee or lessees, as the case may be;

(4) Right of allottee or lessee to possession;-

An allottee or lessee shall be deemed to have entered into constructive possession of the land allotted or leased to him with effect from Kharif, 1949 but he shall be entitled to take actual possession of any part of such land on which no crops is standing on the 1st December, 1949 and of the balance from the 1st March 1950 or when the standing crops have been harvested by the present holder, whichever is later but in any case by the 15th May, 1950.

(5) Rights and obligation of the present holder 5(1). 'The present holder shall be entitled to keep possession of the land till such date as the allottee or lessee under the preceding section becomes entitled to actual possession thereof and from that date all rights title or interest in the land of such holder shall cease and except as provided in Section 9 he shall not be entitled to claim any damages or compensation on any ground whatsoever'.

1950 Act.

Section 2.

In this Act, unless the context otherwise requires:-

(a) 'allotment' means the grant by a person duly authorised in this behalf of a right of use, or occupation of any immovable evacuee property to any other person but does not include a grant by way of lease;

(b) 'Custodian General' means the Custodian General of the Evacuee Property in India appointed by the Central Government under Section 5'

(C) 'Custodian' means The Custodian for the State and includes any Additional Deputy or. Assistant Custodian of evacuee property appointed in that State'

(d) 'evacuee' means any person:-

(i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbance or the fear of such disturbances, leaves or has on or after the 1st day of March 1947 left any place in a State for any place outside the territories now forming part of India, or

(ii) who is resident in any place now forming part of Pakistan and who for that reasons is unable to occupy, supervise or manage in person his property in any part of the territories to which this Act extends or whose property in any part of the said territories has ceased to be occupied, supervised or managed by any person or is being occupied supervised or managed by an unauthorised person:

(iii) who has, after the 14 day of August, 1947 obtained otherwise than by way of purchase or exchange any right to interest in or benefit from any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan;-

(iv) who has, after the 18th day of October, 1949 transferred to Pakistan, without the previous approval of the Custodian his assets or any part of his assets situated in any part of the territories to which the Act extends; or Notwithstanding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate any lease or amend the terms of any lease or agreement under which any evacuee property is held or occupied by a person (whether such allotment, lease or agreement was granted or entered into before or after the commencement of this Act)

(v) who has after the 18th day of October, 1949 acquired if the acquisition has been made in person by way of purchase of exchange or if the acquisition has been made by or through a member of his family in any manner whatsoever, any right to, interest in or benefit from, any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan;)

Sec 12. Power to vary or cancel leases or allotments of evacuee property.-

(1) Notwithstanding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate any lease or amend the terms of any lease or agreement under which any evacuee property is held or occupied by a person (whether such allotment, lease or agreement was granted or entered into before or after the amendment of this Act).

Provided that in the case of any lease granted before the 14th day of August, 1947 the Custodian shall not exercise any of the powers conferred upon him under this sub section unless he is satisfied that the lessee-

(a) has subject or assigned or otherwise parted with the possession of the whole or any part of the property leased to him (or)

(b) has used or is using such property for a purpose other than that for which it was leased out to him; or

(c) has failed to pay rent in accordance with the terms of the lease.

(2) where by reasons of any action taken under Sub-section (1) any person has ceased to be entitled to possession of any evacuee property he shall on demand by the Custodian surrender possession of such property to the Custodian or to any person duly authorised by him in this behalf:

(3) If any person fails to surrender possession of any property on demand under Sub-section (2) the Custodian may, notwithstanding anything to the contrary in any other law for the time being in force eject such person and take possession of such property in the manner provided in Section 9.

Sec.40 Act validity of transfers respecting property subsequent declared to be evacuee property.-

(1) No transfer made after the 14th day of August 1947 (but before the 7th day of May, 1954) by or on behalf of any person in any manner whatsoever belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them if at any time after the transfer, the transferor becomes an evacuee within the meaning of Section 2 or the property of the transfer is declared or notified to be evacuee property within the meaning of this Act, unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act.

(2) Nothing contained in Sub-section (1) shall apply to the transfer for valuable consideration of any such property as is referred to therein in any of the following cases, namely;

(a) where the transfer has been made with the previous approval of the Custodian before the Commencement of the Administration of Evacuee Property (Amendment) Act, 1953;

(b) where the transferor has not left India or Pakistan within a period of two years from the date of the transfer'.

12. We have heard Shri S.P. Jain, learned Senior Counsel for the appellant and Shri Viney Mittal, learned Senior counsel for respondent No. 2.

13. Shri S.P. Jain submitted that the appellant was still in occupation of the land when notification under Section 4 dated 15.5.1968 was issued. He further submitted that the lease of 99 years had not come to an end and the decisions of the competent authorities referred in the order of the learned Additional District Judge, Ambala were not given effect to and, therefore it is claimed that on the date of notification under Section 4 dated 15.5.1968, the appellant was an interested person and as such was entitled to claim apportionment in the compensation awarded to the respondent Shri Amrik Singh.

14. Shri Viney Mittal, learned Senior Counsel for respondent No. 2 argued that principle of res judicata would be attracted as Ex.R-19 is a decree passed by the Civil Court, where the appellant had claimed that his lease was to run for 99 years despite the order of the Custodian dated 5.3.1949 confining it to twenty years. He further argued that the Civil Court repelled the challenge and held that the order of the Custodian could not be challenged before the Civil Court because of the bar under Section 19 of the 1947 Act. The learned counsel made a detailed reference to the provisions of the Alienation Act, 1950 Act and 1947 Act. In order to buttress his stand that the appellant ceased to have any interest in land before notification under Section 4 was issued on 15.5.1968, he referred to the lease deed executed and registered on 13.9.1947. According to the learned counsel, Section 5(A) of the 1947 Act, read with Section 40 of the 1950 Act, would come in play. According to Section 5(A) of the 1947 Act a limitation. has been engrafted on the right of an evacuee to execute the sale-deed to transfer the evacuee property by way of sale, mortgage, pledge lease, exchange etc on or after 15.8.1947. Section 5(A) requires that such a sale, mortgage, lease etc has to be confirmed by the custodian. Section 5(A) is akin to Section 40 of the 1950 Act. A joint perusal of the above mentioned sections make it obvious that any lease executed on or after 15.8.1947 has to be placed before the Custodian to seek his confirmation. There are further provisions made for revision. The provisions under Section 40 also envisage the similar situation.

15. Shri Viney Mittal, learned Senior Counsel also referred to the provisions of Section 11 of the Alienation Act. According to the learned counsel, Section 11 also creates a bar to lease the agricultural land beyond the period of 20 years. According to him by virtue of provisions under Section 5(A) of the 1947 Act read with Section 40 of the 1950 Act an order had been passed on 5.3.1949 by the Custodian determining the lease to 20 years and that order was unsuccessfully challenged in an appeal and a revision before the competent authority.

16. Learned counsel has further placed reliance on Sections 2(b), (f), 4, 5 of the 1947 Act, to contend that respondent No. 2 was a bonafide allottee. He further submitted that the respondent had entered into constructive possession of the land allotted or leased to him on 20.7.1953. He further submitted that the present holder under Section 5 of the 1949 Act could retain possession of his land till a date, allottees under Section 4 becomes entitled to actual possession and all his rights title or interest in the land would cease from that date and such a present holder would not be entitled to claim any damage or compensation of any kind whatsoever. It is for this reason that respondent Shri Amrik Singh was given the constructive possession of this land on 20.7.1953 vide Patwari's rapat No. 564 and a lease money @ Rs. 300/- p.a. vide which the appellant had been paying rent.

17. On the basis of these provisions, respondent No. 2 claims that on the expiry of the period of 20 years i.e. on 31.8.1967 right of the appellant as present holder had come to an end and by virtue of the provisions in Section 5 of the 1949 Act, such a present holder cannot claim any compensation or share in rent.

18. We have thoughtfully considered the respective submissions of the learned counsel for the parties and are of the considered opinion that this appeal is a vexatious piece of litigation and does not have any substance. Therefore, it merits dismissal.

19. The appellant has lost the battle before various authorities under the 1947 Act, 1950 Act and 1949 Act. The detailed reference has been made to those orders by the learned Additional District Judge Ambala in his order dated 30.12.1974. Respondent No. 2 was allotted this land he was given constructive possession of this land on 20.7.1953. It was stipulated in this report that respondent No. 2 would not be entitled to get actual possession till the expiry of the lease period of twenty years i.e. 12.9.1967. It was provided in this document that during the lease period, he would be entitled to get lease money to the tune of Rs. 300/- p.a. On 2.10.1955 proprietory rights were also conferred on respondent No. 2 as is clear from the order dated 8.1.1958 Ex.R.24 and order dated 23.5.1972 Ex.R.27. Thereafter, the appellant fought an unsuccessful battle in the Civil Court when he filed a Civil Suit No. 165 of 1970 against respondent No. 2 and lost the same. No appeal was filed against the judgment and decree dated 30.12.1974 of the learned Additional District Judge, Ambala and the same had attained finality. Various orders of the statutory authorities and the judgment and decree of the Civil Court should have ordinarily satisfied the appellant about its legal right that a period of 20 years had come to an end on 31.8.1967 and on the date of notification under Section 4 on 15.5.1968, it had no right left in the land in its capacity as lessee as the lease expired on 12.9.1967. However, the appellant preferred to fight a chance litigation and sought reference under Section 18 claiming apportionment in the amount of compensation awarded to the respondent Amrik Singh claiming that it was a lessee.

20. Another reason for dismissal of the appeal is the composite order of the learned Single Judge has already been upheld to the extent of enhancement of compensation by the Letters Patent Bench is evident from the order passed by the Division Bench on 9.5.1986. There was no Letters Patent Appeal filed concerning apportionment of compensation which was subject matter of RFA No. 241 of 1975.Order dated 9.5.1986 passed by the Division Bench in LPA No. 139 of 1986 was challenged before the Supreme Court and their Lordships have dealt with that matter which has attained finality. The judgment of the Supreme Court is reported as S.A. Jain College Trust and Managing Society v. State of Haryana and Anr., J.T. 1995(3) S.C. 510. The present Letters Patent Appeal has to confine to RFA No. 390 of 1975. Therefore, once no Letters Patent Appeal has been filed against the order passed in RFA No. 241 of 1975 albeit composite order, no challenge could be raised to the views taken by the learned Single Judge.

20. For the aforementioned reasons, this appeal is dismissed alongwith the cross objections.

Sd/-

G.S. Singhvi, J.


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