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Banshidhar and ors. Vs. the Appellate Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 666 of 1972
Judge
Reported inAIR1984Raj202; 1984()WLN603
ActsEvacuee Interest (Separation) Act, 1951 - Sections 13; Displaced Persons (Compensation and Rehabilitaion) Act, 1954 - Sections 2 and 12; Administration of Evacuee Property Act, 1950; Separation Act - Sections 2
AppellantBanshidhar and ors.
RespondentThe Appellate Officer and ors.
Appellant Advocate B.L. Purohit, Adv.
Respondent Advocate Rajesh Balia, Adv.
DispositionAppeal dismissed
Cases ReferredIn Dr. Rajendra Prakash Sharma v. Gyan Chandra
Excerpt:
.....act, 1954 - section 12 and evacuee interest (separation) act 1951--evacuee interest--allotment of--evacuee share not notified under section 12 and never become part of compensation pool-held malawi officer was incompetent to allot it and transfer was ex facie void.;the evacuee share of noor mohd. in the composite properties was not notified under section 12 and as such it never became part of the compensation pool on account of the issuance of a notification under section 12. the managing officer was incompetent to a lot the sama to pamandas or to any other person as the lanes in question never became part of compensation pool thus, the transfer of the aforesaid 7 bighas 13 biswas of land by the managing officer to pamandas was ex facie void and was of no effect.;(b) evacuee interest..........an evacuee. ultimately, on a claim petition filed by mst. kakoo the deputy custodian-general of evacuee property, by his order dated april 30, 1964 held that noor mohd, had become an evacuee while mst. kakoo was not an evacuee. her non-evacuee interest was determined as 7/24, while the share of her son noor mohd. in the aforesaid agricultural lands was determined as 17/24 by the order passed on 16-12-1968 by the competent officer under the provisions of the separation act. it was held that the valuation of the evacuee interest was rs. 15,000/-. however, by the order of the competent officer dated march 14, 1969 the evacuee interest in the composite property was offered to the displaced person allottee, ignoring the right of the claimant co-sharer, mst. kakoo. it may be mentioned here.....
Judgment:

Dwarka Prasad, J.

1. The orders passed by the competent officer, appointed under Section 4, Evacuee Interest (Separation) Act, 1951 (hereinafter referred to as 'the Separation Act') and the Appellate Officer, appointed under Section 13 of the Separation Act, directing that the composite property in dispute should be offered to respondent 2 Mst. Kakoo at the assessed price, in case she was willing to purchase the same, were challenged by the appellants by means of a writ petition in this Court. The writ petition was, however, dismissed by a learned single Judge of this Court by his order dt. Aug. 29, 1972 on the ground that the same was filed after a considerable delay and the appellants could not explain the aforesaid delay,

2. The circumstances in which this matter has come up before us may be briefly stated. Khasras Nos. 313, 363, 376 and 496, situated in village Nawan, Tehsil Hanumangarh in the District of Sri Ganganagar belonged to Noor Mohd. and his mother Mst. Kakoo, respondent 2. It was alleged that both Noor Mohd. and Mst. Kakoo had migrated to Pakistan as a result of civil disturbances and had become evacuees. However, Mst. Kakoo claimed that she never became an evacuee. Ultimately, on a claim petition filed by Mst. Kakoo the Deputy Custodian-General of Evacuee Property, by his order dated April 30, 1964 held that Noor Mohd, had become an evacuee while Mst. Kakoo was not an evacuee. Her non-evacuee interest was determined as 7/24, while the share of her son Noor Mohd. in the aforesaid agricultural lands was determined as 17/24 by the order passed on 16-12-1968 by the Competent Officer under the provisions of the Separation Act. It was held that the valuation of the evacuee interest was Rs. 15,000/-. However, by the order of the Competent Officer dated March 14, 1969 the evacuee interest in the composite property was offered to the displaced person allottee, ignoring the right of the claimant co-sharer, Mst. Kakoo. It may be mentioned here that the petitioner appellants claimed that 7 bighas 13 biswas of land out of Khasra No. 496 was allotted to Pamandas by the Managing Officer by his order dated 18-2-1960 and that the petitioner appellants were the legal representatives of Pamandas allottee.

3. Mst. Kakoo filed an appeal against the order passed by the Competent Officer on Mar. 14, 1969. The Appellate Officer allowed the appeal by his order dt. 2-9-1971 and held that in accordance with the provisions of Rule 11B(c)(i) of the Rules framed under the Separation Act, the entire evacuee interest should have been offered to the non-evacuee co-sharer, namely Mst. Kakoo. It was also held by the Appellate Officer that the present appellants could not dispute the valuation of the evacuee interest, as determined by the Competent Officer, by way of cross-objections. He also set aside the transfer of 7 bighas 13 biswas of land to the appellants. After the case came back to the Competent Officer, he proceeded to re-determine the value of the evacuee share, which was 17/24 out of the agricultural lands specified above. By his order dt. 28-10-1971, the Competent Officer re-determined the value of the evacuee share as Rs. 52,850/- and offered the entire evacuee share to the non-evacuee co-sharer, Mst. Kakoo subject to payment of the balance amount of Rs. 37,435/-. Once again Mst. Kakoo preferred an appeal against the re-determination of the value of the evacuee share. The appeal preferred by Mst. Kakoo was allowed by the Appellate Officer by his order dated March 6, 1972 and it was held that the competent officer was not entitled to re-value the evacuee interest and thus the order passed by the Competent Officer dt. 28-10-1971 was set aside.

4. Thereafter, the appellants filed a writ petition in this Court. The learned single Judge was of the view that the writpetition was in fact directed against the order passed by the Appellate Officer on 2-9-1971 setting aside the transfer of 7 bighas 13 biswas of land to the appellants and also holding that the entire evacuee share in the composite property should be offered to the non-evacuee co-sharer and not to the displaced person allottees. The learned single Judge also held that the writ petition was belated as it was filed on 10-8-1972, after a lapse of almost one year. Against the dismissal of the writ petition, the present appeal has been filed.

5. Learned counsel for the appellants advanced two submissions before us. His first submission was that the evacuee interest of Noor Mohd. was evacuee property and after a notification was issued under Section 12, Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'the 1954 Act') the said property ceased to be evacuee property and that thereafter the Managing Officer was competent to transfer 7 bighas 13 biswas of land to Pamandas under Section 20 of the 1954 Act. Learned counsel submitted that the Competent Officer and the Appellate Officer could not deal with the share of Noor Mohd. after the notification was issued under Section 12 of the 1954 Act, because thereafter the property lost its character as an evacuee property but became part of the compensation pool and was transferred to Pamandas as a displaced person against a verified claim. The second submission of the learned counsel for the appellants was that as a major portion of the lands in dispute, namely 17/24 became part of the compensation pool, the remaining property, namely the non-evacuee share should have been transferred to the appellants or the same should have been disposed of by sale in order of priority as provided in Section 10(a)(i).

6. So far as the first argument of the learned counsel is concerned, it is based upon a misconception. Section 12 of the 1954 Act authorises the Central Government to acquire any evacuee property for rehabilitation of displaced persons by publication of a notification in the Official Gazette and upon publication of such a notification, the right, title and interest of any evacuee in such evacuee property specified in the notification shall be extinguished and the evacuee propertyshall vest absolutely in the Central Government. Sub-section (4) of Section 12 provides that all such evacuee properties acquired under that section, shall form part of the compensation pool. Section 14 of the 1954 Act provides as to what would constitute the compensation pool. It has been provided therein that compensation pool shall consist of all evacuee properties acquired under Section 12 besides other properties specified in that section. Then, under Section 16 the Central Government is authorised to appoint Managing Officer and Managing Corporation for the purpose of custody, management and disposal of the property in the compensation pool. Under Section 20, the Managing Officer or Managing Corporation is authorised to transfer any property out of the compensation pool by sale, lease, allotment or otherwise. Thus, in order that a property may be transferred by the Managing Officer to a displaced person, it is absolutely essential that the said property must first form part of the compensation pool and that is possible only if the property in question is evacuee property and a notification under Section 12 of the 1954 Act is issued in respect thereof by the Central Government acquiring the same.

7. In Dr. Rajendra Prakash Sharma v. Gyan Chandra AIR 1980 SC 1206, it was observed by the Supreme Court that the necessary prerequisite for acquiring property under Section 12 is that it must be evacuee property and that the Central Government is not competent to acquire any property under Section 12, for throwing it into the compensation pool unless the condition precedent namely, that the property should be declared to be an evacuee property or it must be deemed to be an evacuee property is not complied with. Then, there must be a notification under Section 12 by the Central Government declaring that such property was acquired for the purposes of forming part of the compensation pool.

8. Rule 93 of the Rules framed under the 1954 Act provides that the Central Government may acquire any property declared or deemed to have been declared as an evacuee property under the Administration of Evacuee Property Act, 1950, except the properties falling in any one of the categories specified therein.One of the categories, which constitutes an exception for the purpose of acquisition by the Central Government under Section 12, is a composite property, within the meaning of the Separation Act. Now 'composite property' has been defined in Section 2(d) of the Separation Act and means any property or interest in a property, in which the evacuee has an undivided share as a co-sharer or partner of any other person, besides other categories mentioned in the said definition.

9. The notification issued by the Central Government on April 6, 1955 under Section 12 of the 1954 Act, which has been relied upon by the learned counsel for the appellants was looked into by us. It states that all evacuee properties consisting of agricultural lands and groves situated in' the State of Rajasthan have been acquired, except the categories specified in the said notification. Clause (5) of such exceptions referred to 'composite property' within the' meaning of the Separation Act. As a matter of fact, the notification issued by the Central Government under Section 12 is substantially in accordance with the provisions of Rule 93. In the present case, it is undeniable that Mst. Kakoo, who was a non-evacuee, had 7/24 share in the lands in dispute, while her son Noor Mohd. who became an evacuee, had 17/24 share. Thus, the agricultural lands in dispute were undoubtedly composite properties within the meaning of Section 2(d) of the Separation Act and as such Rule 93 of the Rules framed under the 1954 Act was applicable. The notification referred to by the learned counsel for the appellants clearly specified that composite properties as a category were expressly excluded from the evacuee agricultural lands in Rajasthan, which were acquired by the Central Government under Section 12 of the 1954 Act by the said notification. Thus, the agricultural lands in dispute in the present case, being composite properties, did not form subject-matter of the notification issued under Section 12 and as such the interest of the evacuee therein could not be extinguished and the said lands did not vest in the Central Government nor the said property became part of the compensation pool. But the evacuee interest of Noor Mohd. continued to remain as an evacuee property until the proceedings were taken under the Separation Act.

10. The Appellate Officer by his order dated 2-9-1971 held that the entire evacuee interest should be offered to the non-evacuee co-sharer and, therefore, the transfer of 7 bighas 13 biswas of land to the appellants was set aside. The appellate Officer was justified in doing so, because as observed by us above the evacuee share of Noor Mohd. in the composite properties was not notified under Section 12 and as such it never became part of the compensation pool on account of the issuance of a notification under Section 12. The Managing Officer was incompetent to allot the same to Pamandas or to any other person as the lands in question never became part of the compensation pool, Thus, the transfer of the aforesaid 7 bighas 13 biswas of land by the Managing Officer to Pamandas was ex facie void and was of no effect.

11. Coming to the second submission of the learned counsel regarding the application of Section 10 of the Separation Act, it may be observed that the manner in which the evacuee share in the composite property could be disposed of, for the purpose of separating the evacuee interest from that of the non-evacuee, has been prescribed in Section 10 but those provisions are subject to the rules made in that behalf. Rule 11-B provides the mode of separation of interest of evacuees from that of the other co-sharers in the composite property. In the case of agricultural lands situated in rural areas and where the market value of the evacuee share is Rs. 15,000/- or less, the mode of separation which has been prescribed in Rule 11-B is that the evacuee share shall be offered at the market price to the non-evacuee co-sharers, who shall be entitled to pay the entire price of such evacuee share. In case the co-sharer does not want to purchase the evacuee share, then the same could be sold to the sitting allottee, if any, if he is a displaced person. After following the two modes indicated above, the property would be sold and the sale proceeds thereof should be distributed in accordance with the share of the non-evacuees, as determined by the Competent Officer. Thus, in the first instance the evacuee share, in case of agricultural lands and where the market value of the evacuee share is Rs. 15,000/- or less, has to be offered to the non-evacuee co-sharer at the market price. The same view has been taken by the Appellate Office. As a matter of fact, by the order of the competent Officer dated Mar. 14, 1969 only the remaining portion of the evacuee share was offered to the non-evacuee co-sharer, Mst. Kakoo. Then an appeal was preferred by Mst. Kakoo which was allowed by the Appellate Officer by his order dt. 2-9-1971 and it was held that the entire evacuee share should be offered to her at the market price, as she was a non-evacuee co-sharer and was entitled to the entire evacuee share in accordance with the provisions of Rule 11-B(c)(i) of the Rules made under the Separation Act, which would prevail in accordance with the provisions of Section 10 of the Separation Act. Moreover, since the appellants were not entitled to any transfer or allotment of any portion by the Managing Officer out of the agricultural lands in question as indicated above, as they are composite properties, the appellants did not fall within the description of 'sitting allottees', as the allotment made in favour of Pamandas was itself void and of no consequence as indicated above by us.

12. In the result, there is no force in this appeal and the same is dismissed. The parties are left to bear their own costs.


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