Hafiz Iqbal Ahmed and Others vs Custodian General of Evacuee Property and Others

D.K. Mahajan, J.—This petition under Articles 126 and 227 of the Constitution is by Hafiz Iqbal Ahmad, Madrasa Talimul Quran and Sheikh Abdul Majid. The respondents are the Custodian General of Evacuee Property. Jeet Ram allottee, who has been conferred the proprietary rights in the property in dispute, and Union of India.

The petitioners case is that petitioner No. 1, was the sole owner of plots Nos. 2327 and 2328-A, situate at Chandpur. district Bijnore. The petitioner had created a Wakf Alullah in favour of Madrasa Talimul Quran by means of a registered Wakf deed dated the 19th of July. 1953. The petitioner had also mortgaged this property to his brother Munshi Maqbul Ahmed under a mortgage-deed dated the 13th of September, 1930 registered on that very date. The mortgage was by way of Baitul-wafa with a condition that the petitioner could purchase the property within four years. The petitioner did redeem the property on the 12th of May, 1934, with the result that the mortgage in favour of Munshi Maqbul Ahmad came to an end, On the partition of the country, according to the petitioner, the Wakf property was treated as evacuee property. As such, it was taken possession of and allotted to respondent No. 2, who later on got the proprietary rights in it. The petitioner came to know of this fact and applied u/s 27 of the Administration of Evacuee Property Act, 1950, to the Custodian General, Evacuee Property, for its release on the ground that he was not an evacuee and that the property was also not an evacuee property. The matter was enquired into by the Assistant Custodian, Bijnore and he found that petitioner No. 1 was not an evacuee and also that the property in dispute was not an evacuee property. This finding was upheld by the Assistant Custodian-General in revision. However, both these authorities, instead of ordering restoration of his property to the petitioner, directed that as the property had been allotted to respondent No. 2 on quasi-permanent basis, the proper course to adopt was to give the petitioner either equivalent property or money compensation. The petitioner is dissatisfied with this order and has come to this Court under Articles 223 and 227 of the Constitution.

This petition is not contested by the Union of India and is only contested by respondent No. 2 The learned counsel for respondent No. 2, in the first instance, contended that petitioner No. 1 is dead, and therefore, no petition on his behalf lies. So far as the other two petitioners are concerned he contends that there is Wakf Alullah in their favour and, as such it is maintained that they have no locus standi to contest the petition. It is not necessary to examine the latter contention, because in any view the first contention is not sound and must fail. Before the Custodian-Department it was also urged that petitioner No. 1 is dead, and this plea was rejected by the Department on the short ground that there was no proof that petitioner No. 1 was dead. The same plea is raised before me and it has to be rejected on the same ground because there is no cogent proof that petitioner No. 1 is dead. It is well-settled that there is no presumption in favour of death. Presumption is in favour of life, and any person, who contends that a particular person is dead, has to prove that fact. Mere assertion will not take the place of proof. In this view of the matter, I am unable to hold without cogent evidence that petitioner No. 1 in fact, is dead. The argument about his death hinges on the fact that petitioner No. 1 has not been heard of for several years, according to the respondent, whereas, according to petitioners, he is in Saudi Arabia lying ill with paralysis. Whatever may be the merits of the respective contentions, in view of the fact that there is no positive evidence of death, it is not possible for me to hold that petitioner No. 1 is dead. Therefore, the preliminary, objection is repelled.

On the merits, the petitioners have a good case. It is common ground that the present case does not fall u/s 20A of the Displaced Persons (Compensation and Rehabilitation) Act. The direction surely could be issue 1 u/s 20B, but that direction can only be issued by the Central Government. There is no power, so far as the Custodian General is concerned, to issue that direction, and what is impugned in the present proceedings is the direction by the Custodian-General that the petitioner should not be restored his property but should be paid cash compensation or compensation in kind. This power as already stated only vests in the Central Government.

The learned counsel for the petitioners contends that even the Central Government cannot issue this direction, because at the time when the order of restoration was passed, section 20B was not in existence I am, however, unable to agree with this contention. Central Government can step in at any time before the property is actually restored to the person entitled to it in pursuance of an order u/s 27 of the Administration of Evacuee Property Act. However, in the present case there is no order by the Central Government directing that the petitioner should be given cash compensation in kind in lieu of his property. In this situation, the petitioner would be entitled to the restoration of his property as the alternative order is without jurisdiction and cannot be upheld.

So far as the respondent is concerned, it is open to him to move the Central Government for an order u/s 20B, but that is a matter up to him and the Central Government. So far as this Court is concerned. It cannot dismiss the petition on the ground that respondent No. 2 has been allowed proprietary rights in the property, to which the petitioner in law is entitled. In this view of the matter, this petition is allowed. The order of the Custodian-General directing that the petitioner should be granted cash compensation or alternative land in lieu of the land belonging to him, is set aside. There will be no order as to costs.

Petition allowed.