S.C. Agrawal, J.
1. Smt. Raji Bai, the petitioner in this petition under Article 226 of the Constitution is a displaced person having migrated after March 1947 from West Pakistan, leaving behind her irrigated lands there. In the erstwhile State of Bikaner in village Gharsana Tehsil Anupgarh District Ganganagar, land measuring 46 Bighas and 13 his was in khasra No. 62 and land measuring 23 Bighas and 3 Biswas in Khasra No. 64 formed part of the Estate of Chhatargarh and were recorded as occupancy Khudkast lands of Mohd Alt son of Shri Alia Jawaya Peeru, Khiwan, Ramzan and Subhan sons of Shri Firoz Khan Dulle Khan and Jale Khan sons of Jeewan Khan and Miran Khan S/o. Soyat Khan. The case of the petitioner is that the above named Muslim Khatedars migrated to Pakisthan during the civil distrbance after March, 1947 and, thereafter the said lands became evacuee property within the meaning of Section 2(c) of Bikaner State (Administration of Evacuee Property Order, 1948 as well as within the meaning of the said termin Section 2(f) of the Administration of Evacuee Property Act, 1949 aid the said property vested in the Custodian. The case of the petitioner is further that the aforesaid evacuee property was acquired by the Central, Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation Act, 1954, vide Government of India notification dated 6th April, 1955 for the purpose of constituting the compensation pool for the purpose of rehabili. ration of Desplaced Persons and that the Managing Officer, Ganganagar by his order dated 19th April, 1963 allotred the said agricultrurel lands to the petitioner Under Section 20(f)(c) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and directed the Revenue Trhsildar, Anopgarh to hand-over the above mentioned land atonce to the petitioner. The petitioner had submitted that inspite of the aforesaid order, the Revenue Authorities have not delivered possession of the land alloted to her and that there was likelihood of the said land being allotted to others for cultivation. The petitioner has, therefore, filed this writ petition for the issue of an appropriate writ directing Tehsildar (Revenue) as well as the Tehsildar (Colonisation), Anupgarh to put the petitioner in possession of land in question and also for the issue of writ restraining Tehsildar (Colonisation), Gharsana from alloting land in question to any body else.
2. The writ petition is contested on behalf of the respondents Nos. 3 to 5 I.E. State Government, the Tehsildar (Colonisation) Gharsana and Tehsildar (Revenue) Anopgarh, or the ground that the lands in dispute never formed part of the compensation pool and this could not be allotted in favour of the petitioner in as much as the Khatedars of these lands did not migrate to West Pakistan during the period 1-3-1947 to 18-10-1949 and thereafter upto 1955. According to the said respondents Peeru s/o Firoz Khan was shot dead near Khazuwala in India in the year 1955 56 and the other Muslims were residing in India in village Bhaguwala, Tehsil Anupgarh till 1965 and that they left for Pakistan in the year 1965, during the Indo Pak war.
3. Shri R.N. Bishnoi, the learned Counsel for the petitioner, has submitted that the lands in dispute formed part of the compensation pool and were being dealt with as evacuee property by the authorities entrusted with the administration of evacuee properties and on that basis the said lands have been allotted in favour of the petitioner and that the State Government, having not challenged the order of allotment passed in favour of the petitioner in accordance with the procedure laid down in the Displaced Persons (Compensation and Rehabilitation) Act, 1954, could not be permitted to challenge the said order in the present proceedings. In support of his aforesaid submission the learned Counsel has poaced reliance on an earlier decision of this Court in Ishwari Prasad and Anr. v. Union of India SB. Civil Writ Petition No. 4-2-1971 decided on 3rd November, 1972.
4. I am of the view that the aforesaid contention of the learned Counsel for the. petitioner should be accepted In Ishwarl Prasad's case, a learned Judge of this Court Hon'ble Mr. Justice Tyagi, as he then was) was dealing with a case in which an order of allotment had been made by the Managing Officer and it was contended on behalf of the State Government that the property could not be allotted as it did not form part of the compensation pool in as much as the Muslim tenants had left for Pakistan some time in 1952 or 1953 and not in 1947 as alleged by the petitioner in the said case. The said contention urged on behalf of the State Government was not accepted by this Court and it was observed:
If the State Government thinks that the Muslim tenants have migrated to Pakistan after 1950 Act came in to the force, they could have challenged the action taken by the Managing Officer when the property was dealt-with by him as an evacuee property.
This Court has further observed:
Since no attempt had been made by the State Government to get the order of the competent Authority passed under the provisions of a statute set aside the State Government cannot challenge the rights of the petitioner as long as the order of allotment stands in fovour of the petitioner.
5. I am of the view that the aforesaid observations fully govern the present case in as much as it was open to the State Government to challenge the order of allotment made in favour of the petitioner by resort to appropriate proceedings under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The Slate Government, having failed to challenge the said order, cannot ignore the same.
6. Relying upon the provisions of Section 7A of the Administration of Evacuee Property Act, 1950, the learned Dy. Government Advocate has submitted that no property could be declared as evacuee property after 7th May, 1954 and that in the present case, the Muslim tenants had left India after that date & therefore, the lands in dispute could not be treated as evacuee property. In my view of this contention of the learned Dy. Government cannot be accepted in as much as the copy of the Khasra Girdawari pertaining to the years Smt. 2008-2011 (1951-54), (which is annexed as Ex. R III to the reply to the writ petition), shows that the Muslim tenants were absent during the years 1951-52 and as a result of their absence the Khatedari in their favour was cancelled. Thus the document produced by the respondents themselves belies their case that the Muslim tenants had not left India till 7th May, 1954. More over, as held by me earlier, it is not permissible for the State to raise this contention in view of their having not challenged the allotment order.
7. For the reasons aforesaid I hold that respondent Nos. 3 to 5 have improperly refused to implement the order of allotment dated 19th April, 1963 passed by the Managing Officer, Ganganagar in favour of the petitioner on the view that the said order of allotment was illegal and without jurisdiction.
8. The writ petition is, therefore, allowed and it is declared that the petitioner is entitled to be put in possession of the lands alloted to her under the allotment order dated 19th April, 1963 and respondents Nos. 3 to 5 are restrained from alloting the said lands to any body else. There will be no order as to costs in this petition.