AI Structured Summary
Not yet generated for this judgment
Judgment
The petitioners have filed the present petition
challenging the order dated 08.11.2011 passed by respondent
no.1 thereby cancelling the order dated 08.09.2006 by which
the petitioners were allotted a land.
The petitioners are daughter and son of late Vani
Bai Sobhani,. Late Vani Bai Sobhani migrated from Lahore. She
was a Displaced Person and filed a claim application to the
General Custodian regarding immovable property which was
left by her in East Pakistan before Government of India under
Displaced Persons (Claims) Act, 1950 (hereinafter referred as
''the Act'') before General Custodian Government, Delhi, which
was accepted as "VERIFIED CLAIM". On the basis of ''Certified
Claim'' under the orders, the Chief Custodian Commissioner, an
immovable property. Quarter No.50/9, situated at Bairagarh
was allotted to the Displaced Person under the Act of 1950
and 1954. However, the mother of the petitioners could not
get the physical possession of the allotted property.
Thereafter, an application was submitted on 24.04.2000 to the
State Custodian Commissioner Court (Rehabilitation
Department) Government of M.P., Bhopal, then on
28.11.2005, the mother of the petitioners has submitted an
application that if the possession of the said property could not
be delivered of the allotted property than in its place some
other property reserved by the Rehabilitation Department in
village Behta may be allotted to her. The State Custodian
Commissioner Court (Rehabilitation Department) Government
of M.P., Bhopal sent a memo dated 23.12.2005 to the
Collector, Bhopal that if the possession of the allotted property
is not possible then alternative property available may be
allotted to her. The Collector, Bhopal thereafter referred the
matter to Nazul Officer, Bhopal, who in his turn referred it to
Pirbandhak Adhikari Custodian Tahsildar, under Displaced
Persons (Claims) Act s 1950 and 1954. After enquiry into the
matter Pirbandhak Adhikari reported that the allotted property
is not locateable and, therefore, the delivery of possession is
impossible, however, an alternate land is available which is
part of Khasra No.30/2/1, situated at Revenue Village Behta,
Bairagarh, District Bhopal may be allotted to her. On enquiry
report and recommendation, the Court of Custodian
Commissioner, State of M.P. (Rehabilitation Department),
Bhopal vide letter dated 08.09.2006 has allotted to her the
recommended property i.e. 0.21 acres land forming the part of
khasra no.30/2/1. In consequence of the order, the State
Government of M.P. Rehabilitation Department directed the
Custodian and Pirbandh Adhikari, through Collector Bhopal to
get the ''Sanad'' registered by stamps and Registration Office.
Accordingly, Nazul Officer Bairagarh Bhopal got the ''Sanad''
registered of the said property on 14.11.2006 in the name of
the mother of the petitioners thereafter copy of the said Sanad
was given to the mother of the petitioners. The petitioners
thereafter filed an application under Section 109 of the M.P.
Land Revenue Code for mutating her name on the said land
and after enquiry under Section 110 of the M.P. Land Revenue
Code, name of the mother of the petitioners was recorded
thereafter possession of the said property was delivered to her
on 20.12.2006. After a period of 5 years, the respondents had
passed an order dated 08.11.2011 thereby cancelling the
allotment dated 08.09.2006 made in favour of the petitioner
on the ground that the Act of 1954 is repealed 06.09.2005.
Being aggrieved by that order, the petitioner has filed the
present writ petition.
Respondents have filed their return and in the
return they have submitted that the petitioner has filed an
application for allotment of land under the Act of 1954. She
did not take physical possession of the property earlier allotted
to her i.e. quarter no.50/9. The Act of 1954 had been repealed
by the Central Government while Displaced Persons (Claim and
other Laws) Repeal Act, 2005 w.e.f. 05.09.2005 (hereinafter
referred as ''the Act 2005'') without stipulating any saving
clause. As on date of repeal, no application of the petitioner
claiming allotment of land under the provisions of the Act was
pending and it is the matter of record that she moved an
application claiming alternative allotment of land on
28.11.2005. After repeal Act of 2005, all the forums created
under the Act became ceased to continue further including
Office of State Custodian Commissioner Court (Rehabilitation
Department) Government of M.P., Bhopal to whom the
application was addressed. There was no occasion to proceed
with the aforesaid application in absence of any forum after
repeal of the Act, though her application was taken into
consideration by the concerned authority. The contention of
learned counsel for the petitioner that his claim is covered
under the Verified Claims and, therefore, allotment could not
cancel in view of the order of the Central Government dated
22.09.2008 is also misconceived. As per the definition of
Verified Claim given in the Act of 1954 in Section 2(e) does not
cover the claim registered and verified by the appointing
authority, in respect of which, no dis-satisfaction wholly or
partially is expressed by the allottee. In absence of any such
pleadings and in view of the fact that as on the repeal of the
Act no such proceedings were in existence, the allotment of
alternative land vide order dated 8.09.2006 cannot be said to
be justified.
The petitioners have filed the rejoinder to the said
reply. In the rejoinder petitioners have submitted that on
05.09.2005 the proceedings of handing over the vacant
possession of the then Government Build up Property was
pending. In fact, from perusal of the Annexure P-3 and new
Annexure R-1 make it crystal clear that the case was pending
at the time of alleged cancellation of the impugned order. The
proceedings of delivering the actual/physical possession of the
Government Build up Property were also pending and when it
was realized by the respondents that the physical possession
of the said property could not be delivered then another
alternative property was allotted. He submits that there is no
saving clause under the Act the Central Government by issuing
the notification in the year 2008 has clarified the said clause.
Learned counsel for the petitioner argues that the impugned
order dated 08.11.2011 is illegal and arbitrary and has been
passed without issuing any show cause notice or giving any
opportunity of hearing in the matter. It has been submitted
that the Sanad has already been registered in the name of the
mother of the petitioners and, therefore, the same could not
be quashed by the impugned order. The Act of 1954 was
repealed by the Act of 2005 on 05.09.2005 on the date of
Repeal Act proceedings for allotment of land were pending
consideration before the competent authority. Hence the said
proceedings were saved and not affected by the Repeal Act . In
this respect, the Ministry of Home Affairs, Government of India
issued a direction to all the Chief Secretaries of the State and
Administrator under the UTS clarifying that the enactment of
the Displaced Persons (Claims and Other Laws) Repeal Act,
2005. After clarification of the Central Government the State
Government has issued a Sankshepika on 11.08.2011
requested the clarification or opinion of the Law Department.
The Law Department has replied that the clarification of the
Central Government is self explanatory. Thus, as per the
petitioner, the Repeal Act of 1954 had no effect on the
allotment of the land of the petitioner whatsoever. The
allotment order issued in favour of the petitioner has attained
finality and the Sanad has already been registered in the name
of the petitioner. He also relied on the judgment passed by the
Apex Court in the case of Union of India Vs International
Sindhi Panchayats and Others passed in Civil Appeal
No.6703/2008 decided on 20.04.2014.
Heard learned counsel for the parties and perused
the record. The Central Government has enacted the Act
which is known as the Displaced Person (Claims) Act, 1950. As
per the said Act, the persons who are migrated from Pakistan
are entitled to get the property in India. Accordingly, mother
of the petitioners has submitted an application for allotment of
the land which was accepted as Verified Claim vide Annexure
P-3. The Verified Claim has been defined under the Act of
1954 under Section 2 (f) it means "Verified Claim" means any
claim registered under the Principal Act in respect of which a
final order has been passed under the Act. Initially, the mother
of the petitioners was allotted quarter no.50/9 situated at
Bairagarh, however, as the petitioners could not get the
physical possession of the allotted property, therefore, vide
Annexure P-4 she has submitted an application on 24.04.2000
for allotment of the handing over the physical possession of
the said property. However, the possession of the said
property could not be given to the petitioners and, therefore,
the Collector has referred the matter to the Nazul Officer,
Bhopal for allotting her the alternative property. Accordingly,
Deputy Secretary vide letter 23.12.2005 has directed the
Collector to submit a report whether any alternative land could
be allotted to the mother of the petitioners. The Nazul Officer
vide letter dated 27.01.2006 has informed the Deputy
Secretary, the possession of the quarter no.50/9 could not be
given to the petitioner. However, the same alternative land i.e.
khasra no.30/2/1 is available for the allotment. The Deputy
Secretary thereafter vide order dated 08.09.2006 has directed
the Collector to issue the Sanad in favour of the mother of the
petitioners. Accordingly, alternative land was allotted to the
petitioner on 15.11.2006 and Sanad has also been issued in
her favour on 12.09.2006 and on the basis of the said Sanad
her name was also mutated in the land record. In the
meanwhile, the Central Government has repeal the Act of
1954 w.e.f. 05.09.2005 on the basis of the said repeal Act, the
respondents have cancelled the allotment made in favour of
the mother of the petitioners on 08.09.2005 vide order dated
08.11.2011 on the ground that after coming into force of the
Repeal Act, no allotment can be made in favour of the
petitioners. The Central Government has issued a notification
on 22.09.2008 as per the Clause 3 of the Circular the Repeal
Act would not effect the disposal of the cases which are
mentioned therein, in which the Clause 3.3 provides for that it
would not be applicable to the Verified Claims in which full
compensation has not been given so far. The Clause 5 of the
said Circular further provides that as regards the revival of the
authorities prescribed under the Reveals Act it is clarified that
since the subject stands transferred to the State Government
the action for settlement of pending the matters can be taken
by the authorities prescribed under any State Laws that may
have been enacted and the State Governments are requested
to take necessary time bound action for settlement of pending
claims. In the present case, the mother of the petitioners has
submitted an application under the Act of 1954 and her
application was under process and she was allotted the land
under the Act of 1954. However, the possession of the said
property could not be given to the mother of the petitioners
and, therefore, in the year 2000 she submitted an application
for allotment of the alternative land. The said application was
processed and the plot was allotted to her on 08.09.2006. The
repeal Act came into force w.e.f. 05.09.2006 which shows that
at the time when the repeal Act came into the force the claim
of the petitioner was pending and, therefore, the case of the
petitioner is covered by the circular issued by the State
Government on 21.09.2008. So far as, the contention of
learned counsel for the respondents that there is no saving
clause under the Repeal Act, therefore, no benefit can be
given to the petitioners. The Apex Court in the case of Union
of India (supra) in para 2 has held as under:-
As against respondents no.6 and 8, it is ordered
as follows:-
It is declared that the provisions of Section 6 of the
General Clauses Act are applicable to the Displaced
Persons Claims and Other Laws Repeal Act, 2005 (for
short " Repeal Act, 2005") and that the respondent nos.
6 and 8 herein shall continue to decide the cases and
proceedings pending on the date of the said Repeal
Act, 2005 and implement the decisions in the said
cases under the repealed Displaced Persons
Compensation & Rehabilitation Act, 1954 and other
related Acts.
Thus, as per the judgment passed by the Apex
Court, Section 6 of the General Clauses Act would be
applicable to the Act of 2005 and thus, the respondents are
bound to consider the application submitted by the mother of
the petitioners under the Act of 1954.
Thus, in light of the above aforesaid discussion, the
writ petition is allowed and the impugned order dated
08.11.2011 is hereby quashed and the respondents further
directed not to interfere into the possession of the petitioners.
No order as to costs.