Avadh Behari Rohalgi, J.
(1) Possession is nine-tenths of the law This case illustrates it. The battle in this case is about vacant possession of a property bearing house No. 58, situated on Chruch Road) Bhogal, to which the N.D.M.C. has given municipal number 4936 and Khasra number of which is 594. Its area is 422 sq. yards. The petitioners are in possession of 275 sq. yards of this plot. The dispute relates to this land. The property has a long history; It was owned by one Chaudhry Chand Khan and his two brothers. It appears that during the riots of 1947 Chand Khan left Bhogal and went to reside in Nizamuddin. His brothers and his nephews were killed during the disturbances of 1947. From the report of the Assistant Custodian (judicial) dated December 27, 1963 it appears that the residents of the locality saw the dead bodies of daceased persons being carried away in trucks in the riots of 1947. They testified to it. The Custodian of Evacuee Property in 1948 teeated this property and two other properties of Chand Khan and his brothers as evacuee properties. As law provided for automatic vesting, these properties vested in the Custodian. On May 3, 1955 these properties were taken over as part of the compensation pool. In this case we are concerned only with house No. 58. It was in possession of one Puran, a local man. There were two chhapors on this plot of land. On May 24, 1948, Santokh Singh, one of the present petitioners, applied for allotment of the portion in occupation of Puran, On December 5, 1948 Puran was evicted and the vacant plot with chappars thereon was allotted to the petitioners, namely, Santokh Singh and his brothers Balbir Singh and Harbans Singh, on a monthly rent of Rs. 3.50Paise. After allottment they built puce structure consisting of 6 rooms with 3 shops on this plot and now they are doing the business of tyre retreading and motor parts there.
(2) In 1954, when peace returned after the Great Divide, Chand Khan as the only surviving member of the family made an application to the Custodian of Evacuee Property for the restoration of his properties on the ground that he was never an evacuee and that he never migrated to Pakistan. Nothing was done on his application. He repeated this application in 1962. The Custodian moved in the matter. He ordered an enquiry into the title of Chand Khan to these properties and his status whether he was an evacuee or not. The Central Government came to the conclusion that Chand Khan was entitled to the restoration of his properties because he remained in India throughout and was working as a Superintendent of Gardening in the Office of the Archeological Department, Government of India, Maulana Azad Road, New Delhi. On Angurt 1, 1966, the Central Government made an order under Section 16 of the Administration of Evacuees' Property Act 1950 (the Act) holding that Chand Khan was entitled to the restoration of his properties. In the order it was recorded that the Central Government is satisfied that the evacuee properties which had vested in the Custodian were the properties of Chand Khan and he would have been entitled to the same if the Act had not been in force. It was also found that he had satisfied the conditions prescribed in the rules in this behalf. Sd the Central Government declared Chand Khan to be entitled to the restoration of evacuee properties described in the Schedule and directed that action may be taken inregard to the said properties under Section 20-A of the Displaced Persons (Compensation and Rehabilitation) Act 1954.
(3) After this order dated August 1, 1966 Chand Khan made an application on October 17, 1966 to the Regional Settlement Commissioner saying that as the order of restoration had been passed in his favor attornment letters to the tenants of these properties may be issued. He said :
'ALL the tenants may be requested to pay me the rent in future and the previous amount which has been collected by your department from these tenants since the beginning may also be paid to me after deducting maintenance account, if any.'
On October 4, 1971 the Central Government passed another order under Section 16 of the Act in supersession of its previous order dated August I, 1966. The operative portion of the order dated October 4, 1971 reads thus : 'NOW, thereforee, in exercise of the powers conferred by Section 16 of the Administration of Evacuee Property Act, 1950, the Central Government hereby directs that the evacuee property described in the schedule shall be restored to the applicant subject to the following conditions namely:- (i) that the amount due to the Custodian in respect of the property or the managemet thereof shall be paid by him to Custodian of Evacuee Property : (ii) that he shall not evict any allottee/tenant of the said property except in the circumstances in which lessees can be evicted under the law for the time being in force.'
(4) The only difference between the order dated October 4, 1971 and the superseded order of August 1, 1966 was this that reference to Section 20-A of the Displaced Persons (Compensation and Rehabilitation) Act was omitted altogether in the order dated October 4, 1971. The reason for this omission was that Section 20-A of the Displaced Persons (Compensation and Rehabilitation) Act 1954 had been struck down by the Supreme Court in Lachhman Dass v. Jalalabad Municipality, : 3SCR645 . So no action was to be taken under Section 20-A. After the order dated October 4, 1971 the Managing Officer on November 8, 1971 informed the petitioners that property No. 58, Church Road Bhogal had been restored in favor of Chand Khan, restoree, vide order dated October 4, 1971 and that it has been decided that no tenant/allottee of the said properties will be evicted. The petitioners were directed to pay rent to the restoree and deal otherwise with him with effect from October 4, 1971. This letter was a letter of attornment to the restoree.
(5) So far so good. The petitioners have no quarrel with the restoration of properties to Chand Khan if they are not to be evicted from the property. They are prepared to pay rent to Chand Khan's heirs because Chand Khan died in the course of this long litigation and now his heirs have come on the record. But this is not the end of the matter.
(6) On February 2, 1972 the Managing Officer-cum-Assistant Custodian suddenly issued a notice to the present petitioners, Balbir Singh, Harbans Singh and Santokh Singh, calling upon them to surrender possession of the property to him or his field inspector within 72 hours failing which he threatened he would evict the petitioners from the premises by use of force. Now in place of attornment the Managing Officer demanded delivery of vacant possession. This was the effect of this letter. This letter may be reproduced here at this stage :
'WHEREAS the undermentioned property has since been restored vide order of Deptt. of Rehabilitation No. 2(232)/54-Prop. 4911 dated 4.10.71. Whereas it has also been decided to hand over physical possession of the property to the restoree Shri Chand Khan. Whereas S/Shri Balbir Singh, Santokh Singh and Harbans Singh are in possession of the property. I hereby demand that the possession of the said property be surrendered by them to me or to Shri B.S. Bhatnagar Field Inspector authorised by me within 72 hours failing which he will be evicted from the undermentioned premises with such force as may be necessary for the purpose. SI. No. Description Locality 1 58 Church Road, Bhogal Delhi. This notice supersedes letter No. MO/Allot/58/Church Road/SLE/71/D/1394- 98 dated 8-11-71. sd/- (P.N. Oberoi) Managing Officer Cum Assistant Custodian'
This letter is the cause of action for this writ which was filed an February 7, 1972. Suddenly the Managing Officer acted wtth a lightening speed and required delivery of vacant possession within 72 hours. The petitioners say that they bad no time to pursue any other remedy except to go to court and ask for stay of the impugned order dated February 2, 1972.
(7) The short question is whether the petitioners can be required to deliver vacant possession to the Managing Officer in respect of a property which was restored by the Central Government in exercise of its powers under Section 16 of the Act. The petitioners claim that there is no power in the Managing Officer to evict them from the premises by use of force and all that can be demanded from them is an attornment to the restoree Chand Khan or his heirs as was actually done by the letter of attornment dated November 8, 1971. The heirs of Chand Khan, on the other hand, defend the order dated February 2, 1972 and contend that the said order was validly been made. The controversy centres round the interpretation of Section 16 of the Ac . Section. 16 may thereforee be reproduced here :
'16. Restoration of evacuee property- (1) subject to such rules as may be made in this behalf, any evacuee or any person claiming to be an heir of an evacuee may apply to the Central Government or to any person authorised by the Central Government in this behalf (hereinafter in this section referred to as the authorised person) that any evacuee property which has vested in the Custodian and to which the applicant would have been entitled if this Act were not in force, may be restored to him. (2) On receipt of an application under sub-section (i), the Central Government or the authorised person, as the case may be, shall cause public notice thereof to be given in prescribed manner, and after causing an inquiry into the claim to be held in such manner as may be prescribed shall :- (a) if.satisfied :-- (i) that the conditions prescribed by rules made iff this behalf have been satisfied ; (ii) that the evacuee property is the property of the applicant; and (iii) that it is just or proper that the evacuee property should be restored to him ; Make an order restoring the property to the applicant, or (b) if not so satisfied, reject the applicant provided that where the application is rejected on the ground that the evacuee property is not the property of the applicant, the' rejection of the application shall not prejudice the right of the applicant to establish his title to the property in a civil court, or (c) if there is any doubt with respect to the title of the applicant to the property refer him to a civil court for the determination of his tide.
Provided that no order for the restoration of any evacuee property shall be made under this sub section unless provision has been made in the prescribed manner for the recovery of any amount due to the Custodian in respect of the property or the management thereof. (3) Upon the restoration of the property to the evacuee or to the heir, as the case may be, the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored: Provided that every lease granted in respect of the property by or on behalf of the Custodian shall have effect against the person to whom restoration is made until such lease is determined by lapse of time or by operation of law. Explanationn-For the purpose of the proviso to this sub-section, an allotment shall be deemed to be a lease and shall have effect against the person to whom restoration is made to the same extent and in the same manner as if it were a lease. (4) The Custodian shall, on demand, furnish to the evacuee or to the heir, as the case may be, a statement containing an abstract of the income received and expenditure incurred in respect of the property.'
(8) SUB-SECTION (3) of Section 16 says that upon the restoration of the property to the evacuee or the heirs, as the case may be, the Custodian shall stand absolved of all responsibilities in respect of the properties so restored, But such restoration shall not prejudice the rights which any other person may be entitled to enforce against the restoree in respect of the property. The proviso and the Explanationn are important. The proviso says that every lease granted in respect of the property by the Custodian shall be bind- ing on the restoree unless such lease is determined by lapse of time or by operation of law. The Explanationn says that an allotment shall be deemed to be a lease for the purpose of the proviso and shall be binding on the restoree to the same extent and in the same manner as if it were a lease. Now, we know that Santokh Singh applied for allotment of the portion which was in occupation of Puran, a local man, on May 24, 1948 Puran was evicted and the premises in question were allotted to Santokh Singh on a monthly rent of Rs. 3.50 Paise. He set up structures. On January 28, 1955 he applied for repairs. The letter of the Custodian dated January 28, 1955 (Annexure A) shows that Santokh Singh was authorised to get repairs done to house No. 58 Church Road, Bhogal of which he was an occupant to the extent of Rs. 70-5 annas-0 Paise and the said amount was passed for payment to him. The Displaced Persons (Compensation and Rehabilitation) Act came into force on October 9, 1954. So there was an allotment to Santokh Singh. The allottee has the same rights against the restoree as he had against the Custodian, Under the Explanationn an allotment is equal to a lease. The allotment is binding on the restoree as a lease. There is no power in the managing officer to to evict the allottee or the lessee. The Custodian under sub-section (3) stands absolved of all responsibilities. Now the Managing Officer has issued the impugned order dated February 2, 1972. How does he get power to order eviction Which law gives him power to use force He is asking the petitioners to surrender possession to him. But I find there is no power. In his notice he says that it has been 'decided to hand over physical possession to the restoree Shri Chand Khan'. These are the crucial words. Who has taken this decision What power has he got to take the decision How and under what law he has taken this decision These questions stare us in the face. Under Section 16 vacant possession is not to be given to the restoree if the allottee is in possession. Rules 15 and 16 of Administration of Evacuee Property (Central) Rules, 1950 (the Rules) which deal with the procedure for restoration of property and terms and conditions which may be imposed while making an order for restoration of property under Section 16. Section 16 gives to the Managing Officer no such power as he claims in his notice dated February 2, 1972. All that can be done is that the allottee can be asked to attorn to the restoree. This is the right thing to do. It was done when the Managing officer vide his letter dated November 8, 1971 wrote to the petitioners that they should attorn to the restoree. This is what Chand Khan himself asked for in his letter dated October 17, 1966 to the Regional Settlement Commissioner. That position obtained till 1971. Then there was a sudden change in the attitude of the authorities. There was a complete reversal in the position on February 2, 1972 when vacant possession was claimed and threat to evict the allottee was held out So on this aspect of the case my conclusion is that only attornment is possible after restoration if there is an allottee or a lessee in the premises. Vacant possession, cannot be ordered. Use of physical force is not sanctioned by law.
(9) Counsel for the heirs of Chand Khan mainly relies on Section 54 of the Act and rules 37 of the Rules. Section 54 says :
'SECTION 54. Power of Central Government to take action with regard to evacuee property. The Central Government may for the purpose of regulating the administration of any property which has Vested in the Custodian under the provisions of this Act, pass such order or direct such action to be taken in relation thereto as, in its opinion, the circumstances of the case require and as is not inconsistent with any of the provisions contained in this Act.' Rule 37. 'Restitution-When any property taken into possession as an evacuee property is subsequently declared by the Custodian or any other competent authority to be a non-evacuee property, the Custodian may, on the application of any party entitled to the actual possession thereof, take such action as will place the parties in the same position in which they were on the date of possession. For this purpose, the Custodian may order the person in occupation of the poperty to vacate the same and the custodian may use such force as may be necessary for the purpose.'
In my opinion neither Section 54 nor Rule 37 has any application. Section 54 does not apply because the order of restoration passed by the Central Government dated October 4, 1971 is expressly made under the provision of Section 16 of the Act. The order of eviction, as the notice dated February 2, 1972 purports to be, is inconsistent with the provisions contained in Section 16 of the Act. Section 54 gives a sort of revisional jurisdiction to the central Government with regard to the administration of an evacuee property which has vested in the custodian under the Act. But no order in exercise of such jurisdiction can be passed by it in contravention of the provisions of the Act, Section 54 in the face of the express provision of Section 16 has no application to the case.
(10) Rule 37 will not apply because a declaration by the Custodian is the foundation of the rule. The Custodian has to declare that a certain property of which he had taken possession as an evacuee properly is a nonevacuee property. Such a declaration has first to be made. Then the Custodian can resort to his power under rule 37 to order a person in occupation of the property to vacate it and for this purpose may use such force as is necessary. The custodian in this case is out of the picture. He stands absolved of all his responsibilities on the making of the order of restoration by the Central Government. Correspondingly he is denuded of all powers. Once divested of powers and duties how can the Assistant Custodian Gum-Managing Officer make an order of eviction Section 16 has stripped him of all rights and responsibilities. The property is a part of the compensation pool. So the Managing Officer is managing it. Rule 37 does not give power to the Managing Officer because no declaration has been made as it contemplated by the rule.
(11) Chand Khan's heirs must produce a declaration before they can take the help of Rule 37. Counsel referred me to Lekh Raj v. Deputy Custodian Bombay, : 1SCR120 in support of his contention that when an authority passes an order which is within its competence) it cannot fail merely because it purports to be made under a wrong provision if it can be shown within its powers under any other rule. There can be no quarrel with this proposition. It simply means this Judge the substance and not the form of the impugned order. Applying this principle here I am unable to hold that the amended restoration order dated October 4, 1971 was passed under Rule 37 of the Central Rules and not under Section 16 of the Act. The substance of the order shows that the Central Govt. was exercising its powers under Section 16, and the order conforms to the content of that power. I have not the least hesitation in rejecting the argument that the order was made Under Rule 37.
(12) Above all, the order of restoration dated October 4, 1971 itself says that the restoration of the property to the restoree is subject to this condition, namely, that the restoree 'shall not evit any allottee/tenant of the said property except in the circumstances in which lessees can be evicted under the law for the time being in force'. This is a restriction on restoree's rights. The restoration order restores the ownership to Chand Khan but denied him vacant possession of the property. The notice dated February 2, 1972 is in contravention of the conditions of restoration imposed by the Central Government and must thereforee be held to be illegal.
(13) In his statement dated April 17, 1968 (L2) and the letter datedJune, 1969 (L-5) Chand Khan demanded actual physical possession of the property. In his statement he said : 'I am not prepared to receive cash compensation of my property.' The reason was that in its restoration order dated August 1, 1966, the Central Government had directed that action under Section 20-A of the Displaced Persons Act, 1954 be taken. Under that section the non-evacuee owner could be paid compensation. But that section was struck down by the Supreme Court in 1969. So the need arose to amend the restoration order. The amended order was passed on October 4, 1971 deleting the reference to Section 20-A. Now the only course left to the Government was to ask the allottees to attorn to the restoree. This was done by letter dated November 8, 1971 by the Managing Officer. This was also what Chand Khan had himself asked for in his letter dated October 17, 1966.
(14) The Managing Officer acted illegally when he issued the impugned notice dated February 2, 1972. The law does not give him power to demand vacant possession or to order eviction of the allottee, namely, the petitioners. The writ petition must succeed.
(15) For these reasons the impugned notice dated February 2, 1972 is quashed and set aside and it is held that the petitioners cannot be evicted from the premises by issuing such a notice as the one dated February 2, 1972. Chand Khan's heirs can have their remedies against the allottee as is provided to them under the law. Parties are left to bear their own costs.