P.K. Banerjee, C.J.
1. In these 28 writ petitions common questions of law and facts are involved and, therefore, they are being disposed of by a common order.
2. These rules have been directed against the orders of Revenue Tehsildar holding the petitioners to be trespassers on the land and refusing to mutate the nemes of the petitioners in the record.
3. The petitioners were allotted the land in question under the Administration of Evacuee Property Act, 1950 by the Custodain, who is incidentally respondent No. 2, Settlement-cum-Managing Officer (Collector), Sri Ganganager and get Sanads. Therea ter a letter was sent to the Tehsildar Revenue, Anoopgarh to mutate the lands of the petitioners. It is not stated in the petitions that when the applications for mutation were sent to the Tehsildar, the petitioners received notices purporting (o be made under Section 22 of the Rajasthan Colonisation Act, 1954 and the petitioners put in appearance stating therein that the lands were not Government lands and the same stand allotted to them vide Sanad Ex. I and they were allotted the land by the Custodian Department in pursuance to Sanad issued to them by the Custodian Department. However, it appears that thereafter the petitioners came to know that they were declared trespassers over the lands in dispute, which are subject matter of these petitions. Thereupon the petitioners got the copies of the orders and filed writ applications.
4. It is alleged that the petitioners were allotted land by the Custodian, respondent No. 2 The petitioners filed applications and prayed that respondent No. 4 may be persuaded not to take any action under Section 22 of the Rajasthan Colonisation Act, 1954 regarding the lands in dispute and further reliefs including one that the petitioners names may be mutated and the respondents be restrained from dispossessing the petitioners from the lands in question were made. Rules were issued and status quo as regards possession was ordered to continue on giving solvent security for payment of mesne profit at the rate of Rs. 150/- per bigha per agricultural year and two months' time was allowed to the petitioner for furnishing security. This order in writ petition No. 69 of 1982, Kishan Singh v. State of Rajisthan and Ors. was made on May 5, 1982. Whether this security has been given or not, it is not found from the record.
5. Mr. Sharma, however, contended that he has given the security, but Mr. Additional Advocate General, of course, denies this security. Assuming for a moment, the security has not been furnished, ad-interim stay order passed stood automatically vacated as far back as in 1982. Therefore, however, if otherwise the interim order continues pending the hearing of the rule.
6. Affidavit in opposition was filed by the respondents including the Custodian, wherein it was stated inter alia that the whole basis of the case is the forged Sanads alleged to have been issued in favour of the petitioners by the District Rehabilitation Officer, Sri Ganganagar, who had issued verification stating that the Sanads are forged and are not genuine. It is further stated that the lands in questions are not the lands belonging to the Custodian Department and they were Government lands and they were reserved for allotment to Pong Dam ousteds of evacuees from the project of Pong Dam of Himachal Pradesh. It is, however, stated, the allotments were later on cancelled due to the breach of conditions by Pong Dam Evacuees. It is stated further that the lands in dispute were lying vacant upto Samwant Year. 2037 and in Samwat Year 2038 the petitioners the passed over the lands and so they were declared trespassers under Section 22 of the Rajasthan Colonisation Act, 1954, after considering the objections filed by the petitioners. It is furter alleged that in some cases, I am hearing a bunch of them, first information reports were filed by the Government before the Police alleging forgery by some of the persons, which are pending. On these grounds the parties came to trial.
7. Mr. Sharma, on behalf of the petitioners, contended firstly that the petitioners are Sanad holders of the property of the Custodian Department and the State Government has no right in respect of the same. under Section 8 of the Administration of Evacuee Property Act, 1950, in particular under Section 7 a notification is called for where the Custodian is of opinion that any property is evacuee property within the meaning of the Act, he may after causing notice thereof to be given in such matter as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such properly to be evacuee property. When such notice is issued under subsection (1) of Section 7 of the Administration of Evacuee Property Act, 1950 inspect of any property, such property shall pending the determination of the question whether it is evacuee property or otherwise, be incapable of being transferred or charged in any way except with the leave of the Custodian and person shall be capable of taking any benefit from such transfer or charge with such leave. Under Sub-section (3) of Section 7 the Custodian from time to time notify either by publication in the Official Gazette or such other manner as may be prescribed, all properties declared by him to evacuee properties under Sub-section (I). under Section 8 of the Act any property declared to be evacuee property under Section 7 shall be deemed to we vested in the Custodian for the State under the Administration of Evacuee Property Act, 1950. Under Sub-section (2) of Section 8 where imsdiately before the corrmencement of this Act, any property in a State had sted as evacuee property in any person exercising the powers of Custodian ider any law repealed thereby, the property shall be deemed to be evacuee operty declared as such within the meaning of this Act and shall be deemed have vested in the Custodian appointed or deemed to have been appoint dair the State under this Act, and shall continue to so vest.
8. From these provisions it is quite clear that before a property is dclared an evacuee property, provisions under Sections 7 and 8 of the dministration of Evacuee Property Act, 1950, have to be followed. From petitions, herein before stated, we have not seen whether such provisions ere followed in the case of the property alleged to have been given to the petitioners. Be that as it may, the question whether the property is evacuee property or the State Government property is highly disputed question of tact and cannot be decided under Article 226 of the Constitution of India and moreover, Section 28 and Section 46 also take away the powers of the Court to decide that question and can only be decided by the Custodian himself under Section 46 read with Section 24 onwards. under Section 46 of the Act no Civil or Revenue Court shall have jurisdiction to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. Therefore, it is only the authority under the Administration of Evacuee Property Act which can go into the question arising out of the Act. In view of the fact that whether the property is evacuee property or not, whether Sanad is issued or not these questions have been raised by the affidavit in opposition filed by the respondents. I cannot decide this under Article 226 of the Constitution of India.
9. Section 22 of the Rajasthan Colonisation Act, 1954 gives the power to the authorised Collector to hold whether any persons is occupier or continues to occupy any land in the Colony to which he has no right or title without lawful authority shall be regarded as trespasser. It appears from the petitions that under Section 22 of the Rajasthan Colonisation Act, 1954 this has been so held, but the question still remains as has been argued by Mr. Sharma that the Administration of Evacuee Property Act, 1950 applies and if the property in question is an evacuee property, the Rajasthan Colonisation Act, 1914 has no application. As I am not going to decide and I cannot decide under Article 226 of the Constitution of India, I leave this question open whether it is the State Government's property or the property under the Sanad gotty the petitioners under to Administration of Evacuee Property Act, 1950. This question will be left open, but I am of the opinion that this disputed question cannot be decided under Article 226 of the Constitution of India and I have no option but to hold the rules must stand discharged and all the questions raised in these petitions are left open to be raised by the parties in particular petitions to take remedies in other appropriate forum in accordance with law.
10. The rules are, therefore, discharged. There will be no order as to costs.