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State of Rajasthan and 10 ors. Vs. Asharam and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberD.B. Special Appeal No. 285/1972 and 10 Ors.
Judge
Reported in1984WLN165
AppellantState of Rajasthan and 10 ors.
RespondentAsharam and anr.
Cases ReferredSohanlal v. Union of India and Ors.
Excerpt:
administration of evacuee property act, 1949 - sections 8(2) & (2a)--bikaner state evacuee (administration of property) order, 1948--section, 2(b)--displaced persons (compensation & rehabilitation) act, 1954-sections 12 & 20-on migration of a muslim his property became evacuee property automatically in bikaner state and declaration was not necessary--lacuna stood rectified by promulgation of central act--held, rights of evacuee vested in custodian and it became part of compensation pool--managing officer was competent to allot tenancy rights in evacuee agricultural land;under the provisions of the 1948 order, which was in force at the relevant time in the former state of bikaner, no declaration of a competent authority was necessary and the property or the right or interest in..........the properties left by such persons who became evacuees, issued an order known as the bikaner state evacuee (administration of property) order, 1948 (hereinafter referred to as 'the 1948 order') the order was issued on december 20, 1948 and was published in the bikaner state rajpatra dated december 21, 1948. in accordance with the provisions of the 1948 order, all evacuee properties situated within the former state of bikaner vested in the custodian of evacuee property and continued to remain so vested in him until otherwise directed. 'evacuee property' has been defined, in clause (2) of the 1984 order as including all properties in which an evacuee had any right or interest. after the merger of the former state of bikaner to form the united state of rajasthan, the evacuee.....
Judgment:

D.P. Gupta, J.

1. These are 10 Special appeals directed against orders passed by learned Single Judge of this court, allowing ten similar writ petitions and writ petition referred by a learned Single Judge to the Division Bench. As all these appeals involve common questions of law and arise in similar circumstances, they are being disposed of together by a common order. The writ petitioners in each one of these cases are displaced persons, having migrated to India from territories which now form part of West Pakistan and each one of them had a verified claim for compensation in respect of agricultural lands held by him in. West Pakistan, before migrating from those territories.

2. It is common ground between the parties that the lands in dispute were formerly in the occupation of Muslim tenants and mostly those lands were situated in the Jagir of Chhatargarh which formed part, of the erstwhile State of Bikaner. It appears that some of the Muslim tenants left their agricultural lands oh account of communal disturbances or fear of s(sic) disturbances or on account of the setting up of the separate State of Pakistan. Lands in dispute in these cases were admittedly under the occupation of Muslim tenants before they left their respective village and migrated to places out side the former State of Bikaner or went away to those terriotries which now form part of Pakistan. In the year 1948, the Ruler of the erstwhile State of Bikaner, in order to preserve and manage the properties left by such persons who became evacuees, issued an order known as the Bikaner State Evacuee (Administration of Property) Order, 1948 (hereinafter referred to as 'the 1948 Order') The order was issued on December 20, 1948 and was published in the Bikaner State Rajpatra dated December 21, 1948. in accordance with the provisions of the 1948 order, all evacuee properties situated within the former State of Bikaner vested in the Custodian Of Evacuee Property and continued to remain so vested in him until otherwise directed. 'Evacuee Property' has been defined, in clause (2) of the 1984 Order as including all properties in which an evacuee had any right or interest. After the merger of the former State of Bikaner to form the United State of Rajasthan, the evacuee properties which were vested in the Custodian in the erstwhile State of Bikaner came under the control and management of the Custodian appointed under the provisions of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as 'the Central Act'). The Government of India later issued a notification under the provisions of Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'the Act'), declaring that evacuee agricultural lands situated in various village in Rajasthan would stand acquired by the Central Government and shall form part of the compensation pool. After the notification was issued under Section 12 of the Act, the lands in dispute came to be vested in the Central Government and then formed part of the compensation pool. The Managing Officer, Shri Ganganagar thereafter passed orders allotting the lands in dispute to the writ-petitioners, under the provisions of Section 20(sic)(c) of the Act The writ petitioners subsequently requested the Tehsildar Anopgarh, District Sri Ganganagar to give over possession of the lands in dispute to the respective allottees thereof. But as the Tehsildar failed to deliver possession over the disputed lands to the writ petitioners, in accordance with the orders of the Managing Officer, the petitioners approached this Court by means of writ petitions. The writ petitions came up before the learned Single Judge of this Court. The grievance of the writ-petitioners was that the Tehsildar did not comply with the orders of allotment passed by the Managing Officer and possession of the lands in dispute was not transferred by him to the writ petitioners. All the ten writ petitions were allowed by the learned Single Judge of this Court by different orders and directions have been issued in each writ petition to the respondents to comply with the orders passed by the Managing Officer, Sri Ganganagar and the Tehsildar has been directed in each case to hand over possession of the lands in dispute to the allottee thereof. In some cases, proceedings under Section 91 of the Rajasthan Land Revenue Act, 1956 had been taken against the writ petitioners by the concerned Tehsildars, and in those cases, the proceedings under Section 91 of the Rajasthan Land Revenue Act have been quashed by this Court. In Writ Petition No. 1052 0f 1974, filed by Sohanlal, a learned Single Judge referred the writ petition to the Division Bench, so that the same could be heard and disposed of along with the special appeals arising out of the writ petitions decided earlier.

3. According to the writ petitioners, the Muslim Khatedar tenants migrated to territories which now form part of Pakistan, on account of civil disturbances after March 1947 or fear of such disturbances or on account of the partition of the country and, thus, they became evacuees. The respondents have denied this allegation and have asserted that the Muslim tenants did not become evacuee as they did rot migrate to Pakistan but they continued to reside in other parts of Rajasthan, and as such the lands in dispute also did not become evacuee properties. The respondents have not disclosed the place or places to which the former Muslim tenants of the disputed lands have migrated. It is not the case of the respondents that the former Muslim tenants of the disputed lands or their legal representatives even returned to claim Khatedari or tenancy rights in the lands in dispute. It maybe pointed out that in the 1948 Order, 'evacuee' was defined in clause 2(b) as under:

2(b) 'Evacuee' means a person ordinarily resident or owning property or carrying on business within the territories comprised in the Bikaner State, who on account of civil disturbance, or the fear of such disturbance 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 the State of Bikaner, or

(ii) cannot personally occupy or supervise his property or carry on his business or watch his interests or enforce his rights.

4. Thus, so far as the law prevalent in the former State of Bikaner is concerned, if a person left the territories of the erstwhile State of Bikaner for a place outside that State, on accounts civil disturbance or for fear of such disturbances or on account of the partition of the country, then such person would fall within the definition of an 'evacuee', as contained in clause 2(b)of the 1948 Order. At the same time, the property, in which such a person had any right or interest would be evacuee property. According to the provisions of clause 4 the 1948 Order, all evacuee automatically vested in the coustodian of the former State of Bikaner automatically vested in the Custodian of Evacuee Property. After the repeal of the 1948 Order, such evacuee properties came to be vested in the Custodian appointed under the Central Act and the same continued to remain so vested in him until they were vested in the entral Government and thereafter formed part of the compensation pool, by virtue of the notification issued under Section 12 of the Act. As it is not in dispute that the Muslim agriculturists, who were earlier Khatedar tenats of the lands in dispute, had left their respective villages and had migrated to places out side the former State of Bikaner, such Muslim tenants became evacuees and it is not of much consequence as to whether they migrated at that time to other parts of Rajasthan or they left for Pakistan at that very time. It is also not in dispute that neither those Muslim Khatedar tenants nor their legal representatives at any time claimed possession of the lands in dispute, which fact supports the con(sic)tion of the writ petitioners that the Muslim occupants of such lands became evacuees. As soon as the Muslim Khatedar tenants became evacuee their right or interest in the agricultural lands in dispute became evacuee property. It may be observed that according to the 1948 Order, which was was prevalent in the former State of Bikaner at the relevant time, no declaration of the Property of such evacuees as evacuee property was necessary. The properties belonging to the evacuees or their right or interest in such properties became evacuee property as soon as they left their respective villages for places out side the fomer State of Bikaner, on account of civil disturbances or fear of such disturbances or on account of the partition of the country. once of the rights of the Muslims tenants became evacuee property their right or interest in the lands in dispute automatically became vested in the Custodian of Evacuee Property. It may be observed that the lands in dispute belonged to the Jagirdar of Chhatargarh at the relevant time and Muslim occupants there of possessed merely tenancy rights in such lands. The title or ownership in such lands continued to vest in the Jagirdar while only the tenancy rights in those lands became evacuee property and became vested in the Custodian. Thereafter, the tenancy right in such lands were acquired by the Central Government by a notification issued under Section 12 of the Act on April 6, 1955 and, thus, the tenancy right became part of the compensation pool. The Managing Officer was therefore, justified in allotting the tenancy rights in such lands, which then formed part of the compensation pool, to the displaced persons against their verified claims in respect of agricultural lands left by them in those territories which now form part of Pakistan.

5. It was argued by Shri Mathur, learned Additional Advocate General, appearing on behalf of the State of Rajasthan that the lands in question could not become evacuee properties unless a declaration to that effect was made by the competent authority under the provisions of Section 7 of the Central Act. We have a'ready referred above to the provisions of the 1948 Order, which was in force in the former State of Bikaner at the relevent time when the Muslim occupants of the lands in dispute left those lands and migrated to places out side the former State of Bikaner on account of civil disturbances or fear of such disturbances or on account of the partition of the country. Clause (4) of the 1948 Order provided that all evacuee properties situated within the State of Bikaner shall vest in the Custodian of Evacuee Property and shall continue to remain so vested until otherwise directed. Thus, according to the law in force at that time in the former State of Bikaner, the tenancy rights in the lands in dispute automatically became evecuee properties and no dec(sic)'aration at all was necessary in respect thereof. Once, the property became evacuee property, they were vested in the Custodian of Evacuee Property. A combined reading of the provisions of clauses 4 and 6(1) of the 1948 Order goes to show that evacuee property, as defined in the Order automatically vested in the Custodian of Evacuee Property and thereafter any person, who happened to hold such property, would continue to do so on behalf of the Custodian, until the Custodian assumed possession or control over such property. The tenancy rights earlier enjoyed by the Muslim occupants of the lands in dispute thus automatically became evacuee property as soon as the former Muslim tenants of such lands left the territories of former State of Bikaner on account of civil disturbances or fear of such disturbances or on account of the partition of the county. The tenancy rights in the lands in dispute also automatically vested in the Custodian of Evacuee Property and continued to remain vested in him, until such rights were acquired by the Central Government and were made part of the compensation pool on account of the notification dated April 6, 1955 issued under Section 12 of the Act.

6. It may be pointed out here that the 1948 Order continued to remain in force ever after the formation of the United State of Rajasthan on account of the provisions of the Rajasthan Administration Ordinance, 1949 and was replaced subsequently by the Rajasthan Evacuee Property Ordinance, 1949 and was ultimately replaced by the Central Act. However the subsequent laws, which came into force on the subject saved anything done or any action taken under the 1948 Order and the tenancy rights in the lands in dispu'e which once became evacuee property under the 1948 Order continued to rmain as such even thereafter until they formed part of the compensation pool.

7. In the case of Assistant Custodian, E.P. and Ors. v. Brij Kishore Agrawala and Ors. : [1975]2SCR359 it was held by the Supreme Court an evacuee propety automatically vests in the Custodian under Section 5 of the U.P. Administration of Evacuee Property Ordinance. Their Lordships of the Supreme Court observed in the aforesaid case that the result of repeal and re-enacment of the law on the subject was that the property which had once vested in the Custodian continued to vest in him, notwithstanding the repeal of the Ordinance by the Central Act and there was no need to take any further action in this respect under Section 7 of the Central Act. It was also pointed out by their Lordships that a notification under Section 7 of the Central Act was necessary only in these cases where the property had not already vested in the Custodian in accordance with the provisions of the repealed law.

8. If there was any doubt about the validity of the vesting of the tenancy rights in the lands in dispute in tha Custodian of evacuee property or even if any defect or invalidity remained in such vesting, the same has been cured by the retrospective insertion of Sub-section (2 A) in Section 8 of the Central Act by the Administration of Evacuee Property Amendment Act, 1960 The previsions of Sub-section (2-A) of Section 8, which was retrospectively introduced in the Central Act,removed the lacuna,if any,which might have remained in the provisions of Sub-section (2) of that Section, regarding vesting of evacuee property in the Custodian. Sub-section (2) and (2-A) of Section 8 of the Central Act, which are relevant for our present purpose, read as under :

(2) Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act, and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to vast:

Provided that where at the commencement of this Act there is pending before the High Court, the Custodian or any other authority for or in any State any proceeding under Section 8 or Section 30 of the Administration of Evacuee Property Ordinance, 1949 (XII of 1949), then notwithstanding anything contained in this Act or in any other law for the time being in force, such proceeding shall be disposed of as if the definition of' evacuee property' and 'evacuee' contained in Section 2 of this Act had become applicable thereto.

(2-A) Without prejudice to the generality of the provisions contained in Sub-section (2), all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall notwithstanding any defect in, or the invalidity of such law or any judgment, decree or order of any court, be deemed for all purposes to have validly vested in that person, as if the provisions of such law had been enacted by Parliament and such property shall on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly, any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken.

9. The aforesaid provisions, contained in Sub-section (2-A) of section 8 of the Central Act, came up for consideration before their Lordships of the Supreme Court in Azimunnisa and Ors. v. The Deputy Custodian, Evacuee Properties and Ors. AIR 1962 SC 385 and it was observed as under:

We think it unnecessary to decide as to whether the deeming provision of Section 8(2) of the Act or of Ordinance XXVII of 1949 was sufficient to give validity to the vesting. Section 8 (2-A) as introduced into the Act, in our opinion, makes the vesting valid, because it gives validity to the vesting which purported to have taken place as a result of Ordinance XXVII of 1949 even though it was only apparently so and was not so in law, because that is what 'purport' implies.

The effect of Section 8 (2-A) is that what purported to have vested under Section 8(2) of Ordinance XXVH of 1949 and which is to be deemed to be vested under Section 8 of the Act which repealed that Ordinance notwithstanding any invalidity in the original vesting or decree or order of the Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested; (2) removes all defects or invalidity in the vesting or fictional vesting under Section 8 (2) of Ordinance XXVII of 1946 or Section 8 (2) of the Act, which repealed the Ordinance; (3) makes the decrees and judgments to the contrary of any court in regard to the vesting inffect ve: (4) makes the property evacuee property by its deeming effect: and (5) validates all orders passed by the Custodian in regard to the property.

10. Thus, it is clear that under the provisions of the 1948 Order, which was in force at the relevant time in the former State of Bikaner, no declaration of a competent authority was necessary and the property or the right or interest in such property left by an evacuee automatically became evacuee property and also became vested in the Custodian of Evacuee Property. The subsequent repeal and re-enactment of the law on the subject did not make any change in the position of such property or the right or interest of the evacuee in such property and the same continue to remain as evacuee property vested in the Custodian. Further, if there was any invalidity or defect in the vesting of the evacuee rights in respect of the lands in dispute in the Custodian of Evacuee Property, the same was cured after the promulgation of the provisions of Sub-section (2A) of Section 8 of the Central Act with retrospective effect. As mentioned earlier, on account of the notification published by the Central Government on April 6, 1956, the tenancy rights in the agricultural lands in dispute became vested in the Central Government and became part of the compensation pool. It may be pointed out that neither the former evacuee nor their legal representatives nor the State Government took any proceedings at any time for getting the tenancy rights in the lands in dispute released from the compensation pool, before such tenancy rights in those lands were allotted by the Managing Officer to the respective writ petitioners. In this view of the matter, absence of a declaration regarding the rights or interest of the evacuee in the lands in dispute as evacuee property did not in any manner affect the character of evacuee interest in those lands becoming evacuee property and the same automatically vested in the Custodian on Evacuee Property. A similar view was taken by learned Single Judge of the Delhi High Court in the case of Hamid v. Assistant CuStodian of Evacuee Property, Sri Ganganagar and Anr. (SB Civil Writ Petition No. 392 D of 1960 decided on 11-8-69), which case also related to tenancy rights in agricultural lands situated in the former State of Bikaner. After the tenancy rights in the lands in dispute became part of the compensation pool the Managing officer was competent under Section 20 of the Act to allot the tenancy rights in such lands to the respective writ petitioners. The allotment orders contain a specific direction to the concerned Tehsildar to hand over possession of the land in dispute to the respective allottees.

11. It was then argued by the learned Additional Advocate General that the lands in dispute, which formerly belonged to the jagirdar of Chhatargarh, were resumed by the State Government under the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 with effect from July 1, 1954 and after their resumption such lands became vested in the State Government as such the State had the right to allot the lands to land less persons. There is no doubt that after the resumption of the jagir of Chhatargarh all lands situated in the Jagir area of Chhatargarh including the lands in dispute became vested in the State Government and the State became the owner of such lands. However, in these cases the question does not relate to the ownership right or corpus in the lands in dispute, which admittedly remains with the State Government, but the question relates merely to tenancy rights, which alone was possessed by the former Muslim occupants of such lands in accordance with the provisions of the Bikaner State Tenancy Act, 1954. The tenancy rights which belonged to the former Muslim occupants, became evacuee property when they became evacuees and ultimately the same formed part of the compensation pool. Thus, the tenancy rights in the lands in dispute could lawfully be allotted by the Managing Officer to the writ petitioners. The effect of resumption of the Jagir of Chhatargarh was undoubtedly that the State Government stepped into the shoes of the Jagirdar and the ownership of such lands was transferred to and vested in the State Government. But the right or interest of the Muslim tenants became evacuee property as distinct from the corpus of such lands. The Muslim occupants were not entitled to the ownership of the lands in dispute, but their rights or interest in such lands were limited to tenancy rights only. Thus, what formed part of the compensation pool was merely the tenancy rights in the lands in dispute and it was only such rights which could have been and were allotted by the Managing Officer to the writ petitioners. The allotment of agricultural lands in dispute by the Managing Officer to the writ petitioners must be understood to be restricted to the allotment of tenancy rights in such lands and has no relevance to the ownership or corpus of such lands, which admittedly vested in the State Government. The Managing Officer had nothing to do with the ownership rights in such lands and as such he could allot only the tenancy rights in the lands in dispute to the writ petitioners, as only those rights in such lands formed part of the compensation pool. Thus, it must be made clear that what became evacuee property was only the tenancy rights of the Muslim occupants of the lands in dispute and only the tenancy rights in such lands was vested in the custodian of evacuee property and was acquired by the Central Government and those rights only then formed part of the compensation pool. Thus, only the tenancy rights in such lands could be lawfully allotted by the Managing Officer to the writ petitioners and larger rights in the lands in dispute could not have been and were not allotted by the Managing Officer to the writ petitioners, over and above the tenancy rights in such lands.

12. It was then argued on behalf of the State that on account of the provisions of Section 15-A of the Rajasthan Tenancy Act, Khatedari rights could not accrue in the lands in dispute, which are situated in the Rajasthan Canal Project area. Although under the Bikaner State Tenancy Act, 1945 the Muslim tenants might have enjoyed Khatedari rights in the lands in dispute, but the writ petitioners would get only such rights in the lands in dispute as are admissible under the relevant law in force at the time when the orders of allotment were made in their favour by the Managing Officer. After the Rajasthan Tenancy Act was promulgated, Section 15-A became applicable and as the lands in dispute are situated in the Rajasthan Canal Project area, Khatedari rights could not accrue in such lands to the writ petitioners unless they are acquired by them in accordance with the procedure prescribed under Section 15-AAA. Thus, by virtue of the orders of allotment passed by the Managing Officer in favour of the writ petitioners, the tenancy rights in the lands in dispute would accrue in favour of the respective allottees and not Khatedari rights in such lands which could not be acquired by them on account of the provisions of Section 15-A of the Rajasthan Tenancy Act.

13. Another argument advanced on behalf of the State was that the Sands in dispute were recorded in the Record of Rights as Government lands and as they were not recorded as evacuee lands, the said lands could be lawfully allotted by the State to landless persons. As we have already observed above, although the State Government became the owner of the lands in dispute, yet the State Government had no right to make allotment of tenancy rights in such lands as the tenancy rights in those lands became evacuee property and were vested in the Custodian of Evacuee Property and subsequently formed part of the compensation pool. The Managing Officer alone then had the right to make allotment of tenancy rights in such lands to displaced persons, in accordance with the provisions of the Act. So long as the Managing Officer has lawfully allotted the tenancy rights in the lands in dispute to the writ petitioners and the tenancy rights in those lands were held by them, the State Government has no right to make allotment of such rights. If any orders of allotment have been made by the State Government or its officers in respect of the lands in dispute, the same were without any authority of law, as the State Government could not interfere with the management of evacuee properties or properties which formed part of the compensation pool. Any orders of allotment made by the State Government or its officers in respect of tenancy rights in the land in dispute would be of no effect, so far as the rights of the writ petitioners in such land are concerned.

14. In the Record of Rights the names of Muslim tenants appears to have been recorded earlier when they held tenancy rights in such lands. Even after the commencement of the 1948 Order or the promulgation of the Central Act if the names of Muslim tenants continued to be recorded as tenants of the lands in dispute in the Record of Rights, it would be ineffective, as under the 1948 Order the vesting was automatic and absence of an entry in the Record of Rights is of no consequence. As the Muslim occupants of the lands in dispute becomes evacuees no body cared to get the requisite corrections made in the existing entries in the Record of Rights. The Managing Officer rightly allotted the tenancy rights in the lands in dispute to the writ petitioners and directed the concerned Tehsildar to put he respective writ petitioner in possession of land allotted to him. The appellants in the special appeal cannot proceed to allot such lands to any other person.

15. It is, however made clear that the writ petitioners would only be deemed to have acquired tenancy rights in the respective lands allotted to them by the Managing Officer. The writ petitioners shall not claim Khatedari rights in such lands unless proceedings in accordance with the provisions of Section 15-AAA are taken. It is also clarified that the writ petitioners would be entitled to obtain possession of the agricultural lands allotted to them by the Managing Officer, only upto the ceiling limit applicable to the area in which such lands are situated.

16. In the result, the orders passed by the learned Single Judge allowing the writ petitions are upheld and all the special appeals are dismissed. The writ petitions No. 1052 of 1974, Sohanlal v. Union of India and Ors. is allowed, and the respondents in that writ petition are directed to comply with the orders passed by the Managing Officer, Sri Ganganagar allotting the tenancy rights in the land in question to the writ petitioner.

17. The parties are left to bear their own costs in the special appeals as well as in the writ petition No. 1052 of 1974.


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