Kanwar Kamaljit Singh and another vs Custodian, Evacuee properties, Punjab and others

1.The petitioners herein claim to be the owners of land measuring 264 kanals 15 marlas situate in village Rohani, tehsil Phagwara, district Kapurthala. Under the pretext of correcting the revenue entries, the land has been declared as "Evacuee Property". The petitioners complain that they have been divested of their property without any notice from any authority. Having failed to get relief at the hands of the authorities, they have filed the present petition and challenged the orders at Annexures Pl, P2 and P4 respectively.

A few facts which have not been rebutted need to be noticed. It is alleged that prior to 1947 Kanwar Sarbjit Singh was the owner of 264 kanals 15 marlas of agricultural land. It was alleged that this land had been sold by him through his attorney to certain muslims before the partition of the country through 14 registered sale deeds. In 12 cases mutations were entered initially, but were finally rejected on the ground that the vendor had raised certain objections and the vendees were not present. No mutations were entered in respect of the remaining two sale deeds. Consequently, till 1947 the land was recorded in the ownership of Kanwar Sarjit Singh. In fact, according to the averments of the petitioners, it continued to be shown in the name of the father of the petitioner till 1969.

It is alleged that in the year 1959, the said Sarbjit Singh alienated the property through a gift deed in favour of his attorney Sh. Rajpal Singh. The petitioners filed a civil suit challenging the gift deed. Though their suit was initially dismissed, but their appeal was accepted by the learned Appellate Court. The said Rajpal Singh filed a Regular Second Appeal No. 121 of 1967 in this Court. This appeal was dismissed by the High Court vide its judgment of December 24, 1970. In this appeal it was held that the property was joint Hindu family property and that the gift deed was invalid. The petitioners alleged that when they sought the execution of the decree it came to their notice that the Tehsildar-Sale-cum-Managing Officer, Kapurthala had vide its order dated October 15, 1969 directed the revenue authorities to correct the record of rights by sanctioning the mutations which had been rejected prior to the year 1947. A Copy of this order has been placed on the record of the case as Annexure P.1. The petitioners have categorically averred that this order has been passed without any notice to them or to their father. On coming to know of this order, the petitioners filed a petition before the Deputy Secretary (Rehabilitation)-cum-Assistant Custodian General exercising the power of Custodian General, Punjab. The petition was rejected with the following observations:--

"I have considered these arguments at length and have also perused the record minutely. A perusal of the order dated 15-10-69 of the Tehsildar (Sales)-cum-Managing Officer, Kapurthala reveals that only directions were given to the revenue authorities to correct the revenue record by incorporating the registered sale deeds. He never declared the land in dispute as an evacuee property. It having been sold by the father of the Muslims prior to the partition of the country, automatically stood vested in Custodian and there was no question of declaring it as evacuee. In these circumstances, the present revision is devoid of any merits and is hereby dismissed."

The above order is stated to be based on a report dated January 23, 1984 submitted by the Assistant Custodian. Aggrieved by the order at Annexure P.2, the petitioners filed a petition before the Financial Commissioner (Appeals) u/s 54 of the Admin-istration of Evacuee Property Act, 1950. This petition was also dismissed by the order of September 6,1990. Aggrieved by the orders at Annexures P.1, P.2 and P.4, the petitioners filed the present petition under Article 226 of the Constitution of India. These orders have been challenged inter alia on the ground that the order at Annexure P.1 has been passed without any notice to the petitioners or their predecessor in interest. It has been further averred that in the garb of correcting the revenue entries the property of the petitioners could not be declared as evacuee property on or after May 7, 1954. The petitioners maintained that the action is violative of the provisions contained in the East Punjab Evacuee (Administration of Evacuee Property) Act, 1947 as also the provisions contained in the Administration of Evacuee Property Act, 1950.

No written statement has been filed. Mrs. Nirmaljit Kaur, learned Counsel for the petitioners has contended that the basic order in the case is at Annexure P.I. By this order, the Tehsildar (Sales)-cum-Managing Officer, Kapurthala had held that the land belonged to muslims evacuees and that it had wrongly continued to be shown in the names of the vendors. He accordingly declared the land to be the evacuee property. He had further declared that the possession should be resumed and the unauthorised occupants be charged rent at 8 times the right of land revenue.

She further submits that in the subsequent proceedings the order at Annexure P.1 had been merely sustained. Her case in nut-shell is that since the order at Annexure P.1 was wholly illegally, the subsequent orders are vitiated. She also submits that no order declaring the property as evacuee could have been passed after May 7, 1954 and that the action was contrary to the provisions of East Punjab Evacuee (Administration of Evacuee Property) Act, 1947 as also the provisions contained in the Administration of Evacuee Property Act, 1950. Mr. S. S. Kang on the other hand submitted that the land in question having been sold through registered sale-deeds, the petitioners had no title or interest left in the land and the present petition was wholly misconceived.,

The petitioners have categorically averred that prior to the year 1947, 12 mutations were intially entered, but on the objection of the vendor the mutations with regard to the whole land had been rejected. The land continued to be shown in the ownership of Sarbjit Singh in all the mutations till the year 1969, when the order at Annexure P.1 was passed. The petitioners have also categorically averred that the order dated October 15, 1969 was made "without any notice to the petitioners or to their father Kanwar Sarbjit Singh, who was then alive". They have further averred that "the mutations sanctioned by Annexure P.1 were without notice to the petitioners or their predecessor-in-interest and as such the various orders are liable to be quashed". These averments have not been rebutted by filing any written statement. The unrebutted position on record, therefore, is that even though prior to partition 14 registered sale-deeds were alleged to have been executed and 12 mutations had been initially sanctioned, yet even the 12 mutations were cancelled prior to partition on the objection of the vendor. It is further clear that the land continued to be shown in the ownership of Kanwar Sarbjit Singh till the year 1969 when the order at Annexure P.1 was passed. By this order the land was virtually declared to be evacuee. It is further clear that no notice whatsoever was given either to the petitioners or their predecessor-in-interest. It is well settled that even an administrative order, which has civil consequences cannot be passed except in accordance with the principles of natural justice. In the present case, the proceedings were not purely administrative. They were at least quasi-judicial, if not judicial, and yet no notice was given to anyone whose interest was likely to be affected in spite of the fact that request for mutations had been rejected many years back. Such a course of action was wholly illegal. It was totally contrary to the elementary principles of natural justice and fair play. It was absolutely arbitrary. The order at Annexure P.1 is vitiated on this ground alone. The orders at Annexure P.2 and P.4 merely upheld the order at Annexure P.1. Since the order at Annexure P.1 is vitiated, even the orders subsequently passed viz. the orders at Annexures P.2 and P.4 are also vitiated. On this short ground alone, the three impugned orders are liable to be quashed.

It is no doubt correct that by the order at Annexure P.1, the Tehsildar (Sales)-cum-Managing Officer had merely purported to order the corrections in the revenue record. The fact remains that the petitioners were divested of their property. Furthermore, it was clearly held that the land "belongs to muslim evacuees..." On this basis it was also held that "the land being evacuee property forms part of compensation....." It is thus not a merely correction of the revenue entries, but a clear order declaring the land to be evacuee property. In view of the provisions of Section 7 of the 1950 Act which envisages the issue of a notice to the interested persons followed by an enquiry into the matter, the action of the Tehsildar (Sales)-cum-Managing Officer was even contrary to law. If such an opportunity had been given, the petitioners could have shown that in view of the provisions of Section 7A the land could not be declared to be an evacuee property after May 7, 1954. The failure to grant an opportunity was thus not only violative of the principles of natural justice but also of the provisions of Section 7 of the 1950 Act. It resulted in material miscarriage of justice. The petitioners had after all succeeded up to this Court in RSA No. 121 of 67 decided on December 24, 1970. They had more than a prima facie case. They had a right to be heard, which was illegally denied to them.

Mr. Kang, however, contends that the petitioners had no locus standi. Their pre-decessor-in-interest had executed 14 sale deeds. These were registered sale-deeds. He refers to the order of the Financial Commissioner (Appeals) to even contend that the existence of 14 registered sale deeds had not been disputed. However, Mrs. Nirmaljit Kaur controverted this position. She submitted that the learned Financial Commissioner (Appeals) had not correctly appreciated the position. In order to satisfy myself regarding the correct position, I had asked Mr. Kang on April 12, f991 to produce the sale-deeds by April 17, 1991, He appeared before me and produced a copy of the letter dated April 16, 1991 from the Deputy Secretary to Government Punjab, Rehabilitation Department to the Tehsildar (Mehal-cum-Sales), Phagwara directing him to produce copies of the sale-deeds in respect of land measuring 264 kanals 15 marlas situate in village Bohani, Tehsil Phagwara, District Kapurthala and directed him to contact the Assistant Advocate-General, Mr. S. S. Kang, with the copies of sale-deeds within a day or two positively. A Photostat copy of this letter was also produced by Mr. Kang and has been placed on record as "Mark A" by me. More than one opportunity was given by me to Mr. Kang to produce the copies of the sale-deeds. In spite of the fact that more than a month has elapsed, he has failed to produce any copy before me. In fact, he stated before me that no officer had contacted him in spite of telephonic calls. In this situation, I have strong reservation regarding the existence of sale-deeds. Nothing stopped the State from producing the copies thereof. Firstly no written statement was filed. Secondly, no copies have been produced in spite of opportunity having been given. In this situation, the very basis of the order appears to be doubtful. No wonder, the authorities divested the petitioners of their properly without any opportunity watsoever.

The writ petition is consequently allowed. The orders at Annexures P.1, P.2 and P.4 are hereby set aside. The petitioners are also held entitled to their costs, which are assessed at Rs. 5,000/-.

Petition allowed.