State of Rajasthan vs The Divisional Commissioner

M.N. Bhandari, J.—By these writ petitions, a challenge is made to the order dated 1st July, 2013 passed by Divisional Commissioner where appeal preferred by non-petitioner was allowed with the directions for allotment of land and thereby order passed by the District Collector, Alwar dated 12.02.2013 was set aside.

Shri G.S. Gill, AAG, submits that in pursuance of the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954 (in short "Act, 1954"), the Divisional Commissioner has passed an order directing the State Government to allot the land in favour of non-petitioners without providing opportunity of hearing to the State Government.

It is submitted that predecessor of the non-petitioner earlier filed a writ petition which was disposed of by this court with remand of the case to the Collector (Rehabilitation), Alwar. It was with the direction to decide the controversy afresh after providing opportunity of hearing to the parties. The Collector (Rehabilitation) thereafter passed a detailed and speaking order after hearing both the parties. Therein, application of the non-petitioner for allotment of land under the Act, 1954 was dismissed vide order dated 12.02.2013. The non-petitioner thereafter preferred an appeal before the Divisional Commissioner, which has been allowed and challenged herein.

Learned Additional Advocate General Shri G.S. Gill submits that Displaced Persons (Compensation and Rehabilitation) Act, 1954 apart from other enactments were repealed by the Parliament by the Repealed Act, 2005 (in short "Act, 2005"). A right cannot be determined or granted in pursuance of the Repealed Act. The claim in favour of non-petitioner has been allowed in ignorance of the fact that the provisions of Administration of Evacuee Property Act, 1950 (in short "Act, 1950") and the Act of 1954 cannot be enforced after repeal. The detailed reason for denial of benefits has been given by the Collector (Rehabilitation) in his order on remand of the case however it was then ignored by the Divisional Commissioner and sketchy order has been passed.

Brief history of the case:

It is a case where at the time of division of the country in the year 1947, all the family members of one Khizar Haiyat Khan were killed in the riots except mother, Smt. Niyazan, who was pregnant and did not leave the country. The property of the family was taken in the custody as per provisions of the Act, 1950. It was recorded in the name of Custodian department. Smt. Niyazan thereupon made an application to the Central Government for rehabilitation and restoration of the land by invoking Section 16 of the Act, which was then allowed vide order dated 07.02.1958. The land could not be allotted despite various orders of State authorities from time to time. The application was further moved for that purposes but was dismissed by the Additional Collector, Alwar vide order dated 20.08.2009.

A writ petition prior to the aforesaid order was filed as application moved by the petitioner in the year 1999 had not been decided by the State Government. The application was then decided during pendency of the writ petition. An order was passed in pending writ petition on 27.10.2010 for re-examination of the application afresh by the Collector (Rehabilitation), Alwar. A fresh order was thereafter passed on 27.04.2011 dismissing the application of the non-petitioner holding that allotment of the land sought by the non-petitioner in pursuance of the order of the Government of India dated 07.02.1958 was not belonging to his predecessor and even description of the land is not given in the order dated 07.02.1958. It was also held that land is now sought by Liyakat Ali is under Will, which is not valid as per Mohammedan Law. The land was not available at the time of Will and otherwise Mohammedan Law does not permit Will of entire property thus claim is not tenable. It was also found that no material exists to show that Shahanaz was wife of Khizar Haiyat Khan rather name of wife is different than mentioned therein.

A committee constituted for inquiry also gave adverse report regarding credential of the non-petitioner''s wife. In the marriage certificate, name of Sagira Begum was mentioned and not of Shahanaz Begum though it is stated that Khizar Haiyat Khan had divorced his first wife. In view of the above, whereabouts of the respondents were also doubted.

Learned Additional Advocate General Shri G.S. Gill submits that all the aforesaid facts were ignored by the Divisional Commissioner while passing the impugned order thus it deserves to be quashed and matter be remanded back for fresh decision on all the issues or it may be decided by the court itself.

Learned counsel for respondents seriously opposed the grounds raised by the petitioner. The allegation of denial of opportunity of hearing by the Divisional Commissioner is incorrect as notice on the appeal was served and order-sheets dated 07.05.2013 & 26.06.2013 show not only presence of both the parties but an opportunity of hearing. In view of the above, ground regarding denial of opportunity of hearing is not made out.

Learned counsel for respondents further stated that the Act, 1954 was repealed by the Act, 2005 but it was not to effect the proceedings in view of Section 6 of General Clauses Act, rather aforesaid is saved. Reference of judgment of this court in the case of Laxman Singh Vs. State & Ors., D.B. Civil Special Appeal (W) No. 762/1995, decided on 14.09.2006 is given. Therein, issue was decided in reference to the provisions of the Act, 1954 itself. Further reference of the judgment in the case of Lal Chand Vs. Additional Collector (First)-cum-Settlement Commissioner, Sriganganagar & Ors., S.B. Civil Writ Petition No. 2788/2007, decided on 20.12.2007 has been given apart from the reference of judgment in the case of Raja Ram Vs. State of Rajasthan, S.B. Civil Writ Petition No. 219/2006, decided on 21.08.2006.

Learned counsel further stated that the direction for allotment of land was given by the Central Government on 07.02.1958 with description of land in the schedule attached to it. Pursuant to the order aforesaid, the Collector passed an order on 01.03.1968 for allotment of land but it was not given effect to. The non-petitioner was forced to run from pillar to post despite direction of the Government of India for allotment of land on 07.02.1958 itself. The denial is mainly on the ground that no land is available in the pool thus cannot be allotted in ignorance of the provisions of Section 28A of the Act, 1954.

The petitioner-State can very well allot other land from the pool. The proceedings were also taken for allotment of alternative land but was not given effect to. It is moreso when the Collector passed an order on 01.03.1968 for restoration of land but the Tehsildar did not execute the order moreso when he was even made free to allot other land. An order was also passed by the Chief Settlement Commissioner on 20.07.1974 for allotment of alternative land to Khizar Haiyat Khan. The order was not given effect even when sufficient land was available in custodian pool or if it is not, allotment of other land can be made. Even the report was sought and given by Tehsildar on 27.07.2007 indicating availability of land in the custodian pool. The non-petitioner then approached High Court where interim order was passed on 24.10.2007 directing the State Government to maintain status quo in regard to the land identified earlier.

It is by way of deliberate act that allotment has been denied on one or other flimsy grounds though Section 16 provides for management of custodian pool and Section 14 of the Act, 1954 prohibits allotment of land to other person. In view of the above, denial of allotment of land was wholly on erroneous grounds. The status of the non-petitioner has also been questioned though while earlier writ petition was pending, Khizar Haiyat Khan died and his legal heirs were brought on record wherein the State Government did not raise any objection. It was to the surprise that when non-petitioner made claim before the Collector in pursuance of agreed order of this court in earlier Writ Petition bearing No. 4704/2007, the status of the non-petitioners was doubted. It was in ignorance of the order of this court taking non-petitioners as legal heirs of Khizar Haiyat Khan. The Collector thus decided the issue, which was not opened for his decision. The status of property of Khizar Haiyat Khan was also doubted in ignorance of the fact that the Government of India had passed an order in his favour way back in the year 1958. In the subsequent orders also, no objection was raised as to whether ancestors were having property before the riots of 1947 or not. The aforesaid shows arbitrariness of the respondents with a view to harass the non-petitioners and to deny benefit of the Act, 1954. The writ petition has now been argued on many grounds though it was not raised before the Divisional Commissioner.

The petitioners have even questioned the Will though they have no authority to decide the rights of the party arising out of Will because jurisdiction under the Act, 1954 is quite limited. The Will was held to be void with refusal of allotment of land in ignorance of the fact that only Liyakat Ali is claiming allotment of land under the Will but other legal heirs are also claiming their rights, as inherited. The reference of Mohammedan Law has been given which does not bar Will of agriculture land and even if it is accepted for the sake of arguments that Will can be made for 1/3 share, then non-petitioner Liyakat Ali restricts his claim to that extent.

Learned counsel for respondents further submitted that Will is in reference to the land possessed by the predecessor of Liyakat Ali thus it could not have been questioned.

Lastly, reference of judgment of Hon''ble Apex Court in the case of Union of India (UOI) and Another Vs. Raja Mohammed Amir Mohammad Khan, has been given wherein similar direction for allotment of land was given with the cost of Rs. 5 lacs.

Learned counsel for respondents has further clarified that reliance on the order of the Additional District Collector, Alwar dated 20.08.2009 placed by Shri G.S. Gill, AAG in ignorance of the fact that on the aforesaid order, the case was remanded back to the Collector (Rehabilitation) to decide it afresh vide the order dated 27.10.2010 in earlier writ petition. The final order in the writ petition was passed on 24.07.2012. The reliance on the earlier order dated 20.08.2009 is thus misplaced.

I have considered the rival submissions made by the parties and perused the record.

It would be relevant to refer facts of the case. In the riots somewhere in the year 1947, all the family members of Khizar Haiyat Khan died except mother Smt. Niyazan, who was pregnant at that time. She gave birth to Khizar Haiyat Khan. The land belonging to the said Muslim family was declared to be evacuee property. The mother, Smt. Niyazan, applied for restoration of property after things became normal. The application aforesaid was submitted after giving all the required details. In view of the above, an order was passed by the Central Government on 07.02.1958 for restoration of the property thus required directions had been issued in favour of the respondents in the year 1958 itself. Smt. Niyazan''s son Khizar Haiyat Khan approached custodian department for implementation of the order of Central Government and on which, the Managing Officer-cum-Assistant Custodian, Alwar passed an order on 01.02.1968 for implementation of the order of the Central Government. On 01.03.1968, the Collector (Rehabilitation), Alwar directed the Tehsildar, Kishangarh for implementation of the order within a period of one month. On 01.08.1968, the Tehsildar reported that land belonging to the erstwhile Muslim family and claimed by Khizar Haiyat Khan is in possession of the trespassers thus the Collector should order for dispossession so as to restore the possession in favour of Khizar Haiyat Khan. On 14.08.1968, the Tehsildar gave notices to the trespassers to dispossess them. A revision petition was preferred by the trespassers, which was allowed with the direction that they should not be evicted without opportunity of hearing.

When the order was not implemented then he again made an application on 19.11.1969 for restoration of possession. On 18.08.1972, the Collector (Rehabilitation) reduced the claim of Khizar Haiyat Khan restricting it to 65 bighas and 14 biswas. A revision petition was then filed by Khizar Haiyat Khan before the Chief Settlement Commissioner was allowed vide the order dated 20.07.1974. It was with the direction to the Managing Officer, Kishangarh to allot the land from custodian pool in implementation of the order of the Central Government dated 07.02.1958. Despite order of the Chief Settlement Commissioner dated 20.07.1974, the land was not allotted in favour of Khizar Haiyat Khan thus he made a representation to the Collector (Rehabilitation) apart from representations to other authorities followed by legal notices.

The Collector (Rehabilitation) then called for the report from the Tehsildar concerned as to whether other land is available. A report was submitted indicating availability of land in Village Rudhar-Dhani Nath and Patti Katla apart from land in other Villages. The report did not yield result in favour of Khizar Haiyat Khan and in the meantime, he was given option to take barren land by paying a sum of Rs. 1,000 per acre equal to Rs. 625 per bigha. He had agreed for allotment of barren land on the rates given above but the State Government did not allot the land even thereafter. In those circumstances, a writ petition was filed to seek appropriate direction on the Government. During the pendency of the writ petition, it came in knowledge that Tehsildar-cum-Managing Officer in its report dated 27.07.2007 pointed out availability of custodian land in village Jodia, Khorikalan and Piplana. On the aforesaid, stay application was moved to seek status quo for the said land, which was granted by this court. This Court thereafter passed an order on 04.07.2008 to find out as to how much time would be required for decision on the application submitted by Khizar Haiyat Khan for allotment of land. On 06.08.2008, further direction was given to the Additional Advocate General to verify as to whether land mentioned by Tehsildar in its order dated 27.07.2007 is available for allotment or not. On 22.08.2008, the court was informed that land mentioned in Tehsildar''s report dated 27.07.2007 is available.

This court thereafter passed another order on 10.09.2008 for details of the land. On 06.03.2009, the Additional Advocate General assured for a reasonable decision to redress the grievance of Khizar Haiyat Khan. The direction was given by this court on 30.03.2009 to ADA, Alwar for decision on the application of Khizar Haiyat Khan. An order was then passed on 20.08.2009 refusing allotment of land and to refer the case to the Central Government. The amendment in the writ petition was then sought and granted by the court to challenge the said order of the Additional Collector.

In the meanwhile, Khizar Haiyat Khan died and application was moved to bring his legal representatives on record, which was then allowed. The High Court issued another order on 27.10.2010 directing the Additional Collector to re-examine the matter. An order was then passed on 27.04.2011 by the Additional Collector denying allotment of land. The further amendment to challenge the said order was made and allowed. The writ petition was finally disposed vide the order dated 24.07.2012 with the direction to the Collector to decide the matter afresh and in the meanwhile to maintain status quo. Since Khizar Haiyat Khan died and his legal representatives were brought on record before the High Court, thus the representation was made by the legal heirs but aforesaid was also dismissed vide order dated 12.02.2013. The challenge to the order before the Divisional Commissioner remained successful vide impugned order dated 01.07.2013.

The facts given above reveal existence of the property belonging to a Muslim family whose all the family members were killed in the riots of 1947 except Smt. Niyazan. She made an application for restoration of the property and was allowed by the Central Government on 07.02.1958 itself.

The first question raised by Shri G.S. Gill, AAG is that the order dated 07.02.1958 does not describe the land. The stand taken by the State Government is quite surprising, rather shocking. The facts available on record show that on application moved by Smt. Niyazan, the Central Government passed an order on 07.02.1958 for allotment of land and schedule was containing description of the property. For the sake of arguments, it is assumed that application was not disclosing the description of the property then how subsequent orders for allotment of land were passed by the Managing Officer-cum-Assistant Custodian, Alwar so as the Collector (Rehabilitation). It has further been ignored that on 01.08.1968, the Tehsildar made a report that land belonging to family has been trespassed followed by notices to the trespassers to evict them. The trespassers could not be evicted due to acceptance of their revision petition as the action was without an opportunity of hearing. The facts aforesaid show not only description of the property but was even identified by the State authorities. Surprisingly and contrary to the aforesaid, the arguments have been raised that order dated 07.02.1958 was not having description of the property.

It is surprising that the State is taking excuses against their own record. This is only one part of fact otherwise the Collector (Rehabilitation) passed an order on 18.08.1972 to reduce the claim of Khizar Haiyat Khan though the order aforesaid was set aside on 20.07.1974 by the Chief Settlement Commissioner with the direction to maintain the allotment of land to the extent it was allowed by the Government of India. If the details and description of land were not available with the State Government, then how area was reduced by the Collector (Rehabilitation) on 18.08.1972. The facts would not end here inasmuch as the Collector (Rehabilitation) then called for the report regarding availability of land which was submitted by the respective Tehsildars from time to time. At one stage, Khizar Haiyat Khan was even offered barren land at the cost of Rs. 1,000/- per acre followed by admission of the State Government regarding availability of land and for that reason alone, this court passed an order to maintain the status quo in the earlier writ petition. If the land was not identified and allotment was not permissible, why exercise as described above was undertaken by the respondents as and when directed by the court in the previous writ petition. It is only to mislead the court or not to redress the grievance of the respondents. The facts mentioned above speak volumes against the State functionary who has kept this matter alive for years together though on passing of the order dated 07.02.1958, the rights had accrued in favour of the respondents and should have been given effect. In the background, the arguments of learned AAG that land was not described in the order dated 07.02.1958 cannot be accepted.

The question now comes regarding whereabouts of the respondents. It is stated that a report was sought as to whether claimants are the successor as name of wife of Khizar Haiyat Khan was shown to be Shaznaz, whereas it was not mentioned in the marriage certificate rather it was given as Sagira Begum. The crux of the issue is that claimants cannot be considered to be legal heirs of Khizar Haiyat Khan so as to pursue the claim in reference to the order dated 07.02.1958. The aforesaid ground is again surprising. After the death of Khizar Haiyat Khan during pendency of the earlier writ petition, his legal heirs were taken on record by this court without any objection from the side of the State. Once they were taken on record as legal heirs, the question of their relationship with Khizar Haiyat Khan was not available.

The issue of relationship was not raised when application was moved by Smt. Niyazan or at no point of time before the issue was earlier pursued by Smt. Niyazan & Khizar Haiyat Khan and thereby right claimed by Khizar Haiyat Khan cannot be questioned so as Liyakat Ali who is pursuing the case in pursuance of Will and others being legal heirs. I find that issue was elaborately discussed earlier by the Additional Collector in his order dated 30.03.2009 but did not sustain in the High Court as direction was given to decide the matter afresh which was later on decided vide order dated 27.04.2011. An order was again passed on the direction of the High Court in the earlier writ petition bearing No. 4704/2007. The writ petition was thereupon decided with the following directions:

(i) That this matter is remanded to the Collector, (Rehabilitation), Alwar with a direction that he shall decide the case afresh without being influenced by any orders passed earlier in this matter by him or any of the authorities;

(ii) While deciding the matter afresh, the Collector, Alwar shall permit both sides to produce their evidence; documentary and statements by way of affidavits. Thereafter, both the parties shall be given an opportunity of hearing;

(iii) That in view of the fact that the instant case is being agitated since long, the Collector, Alwar is directed to take the matter on priority and shall decide the same at the earliest but in no case beyond a period of four months from 30th July, 2012. In case any of the parties is aggrieved of the decision given by the Collector, he shall be at liberty to challenge the same in accordance with law;

(iv) Both the parties are directed to appear before the Collector, Alwar on 30th July, 2012. It is also made clear that both sides shall co-operate in the proceedings before the Collector, Alwar so as to have the matter decided within time frame. No adjournment shall be granted to either of the parties unless and until the Collector, Alwar is of the opinion that it is very essential to do so. Even in that case, no long adjournment shall be granted; and

(v) Both the parties are directed to maintain status quo, as it exists today, in respect of the land in question, as ordered earlier by the High Court, for a period of four months, commencing from 30th July, 2012.

The last order was then passed on 12.02.2013 by the State authority but it is nothing but repetition of same facts with similar finding as was described earlier in two orders. It is despite of the order of the High Court that it should not be influenced by the previous order. The relevant part of the order to question the relationship is quoted hereunder for ready reference:

The impugned order shows doubts about the legal heirs of Khizar Haiyat Khan ignoring that application to take his legal heirs was allowed by the High Court without an objection by the State Government thus could not have been questioned by the Collector in an impugned order and otherwise rights of the parties have been denied based on doubt only so that allotment of land may not be made. The aforesaid is again in ignorance of the fact that till order was passed by the Collector in the year 2009, nobody raised aforesaid issue. The representations of Khizar Haiyat Khan were decided from time to time and that too from the year 1958 till 2009. Thus the aforesaid issue is erroneously raised by the State Government to frustrate the claim rather to harass the respondents for the aforesaid, which is happening for last more than 56 years.

The third issue raised by Shri G.S. Gill, AAG is that as per Mohammeden Law, Will of the entire property in favour of Liyakat Ali was not permissible. The learned Senior Advocate Shri Abhay Bhandari submitted that it can be maintained to the extent Will of the property is permissible under Mohammedan Law and remaining may be given to legal heirs. I find force in the argument and is thus accepted. So far as legal heirs are concerned, they are entitled to the allotment of land without deduction and to the extent it comes in their share but so far as Liyakat Ali is concerned, he would be entitled to the allotment of land to the extent it is permissible under Mohammedan Law. It would then not offend Mohammedan Law though the issue aforesaid was not available for the Additional Collector to decide as he was to pass an order in reference to the Act, 1954 but to make things straight and clear, the direction aforesaid has been given by this court.

Now issue comes as to whether opportunity of hearing was provided to the State by the Divisional Commissioner. I find that the ordersheets produced by the respondents show not only notice but presence of the counsel for the State Government in all the proceedings. In the background aforesaid, the arguments of the learned counsel for petitioner that opportunity of hearing was not given to the State Government by the Divisional Commissioner, cannot be accepted.

The last argument of the learned counsel for petitioner is in reference to the Repeal Act of 2005 where under the Act, 1954 was repealed. According to the State Government, the repeal takes away any right claimed under the earlier Act.

I have considered the aforesaid arguments and find that repeal does not take away all the rights of the parties rather it is saved by Section 6 of the General Clauses Act. For ready reference, Section 6 of the Act is reproduced hereunder:

Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

The issue aforesaid was considered by the Division Bench of this court in the case of Laxman Singh (supra). Therein, the issue was in reference to the Act, 1954 itself. It was held that repeal will not take away any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed and such legal proceedings or remedy instituted/continued or enforced as if Repealed Act has not been passed. The effect of Section 6 saves right in favour of the parties, if acquired or accrued, etc. If facts of this case are seen then rights in favour of respondents were endorsed on 07.02.1958 itself. The subsequent orders and proceedings are nothing but as a consequence thereof and for implementation of the order where direction was also given for allotment of land at the instance of the Collector. The alternative land was saved and made available to give effect to the order passed by the Central Government. Shri G.S. Gill, learned AAG, referred judgment of Hon''ble Apex Court in the case of Kolhapur Canesugar Works Ltd. and Another Vs. Union of India and Others,

I have considered the said judgment as well and find that facts therein were altogether different than facts of this case and otherwise it does not nullify the effect of Section 6 of General Clauses Act. It is settled law that decision of the court cannot make a provision to be redundant though the High Court and the Supreme Court have jurisdiction and the authority to declare a provision to be unconstitutional but till the aforesaid is made, presumption of constitutional validity remains. In the case referred to above, repeal was followed by substitution of the provision and the issue aforesaid was decided in reference to the legislation made as a consequence of repeal. In the instant case, the Repealed Act, 2005 is not with new enactment or substitution of the provision thus the judgment referred above does not provide assistance. Shri G.S. Gill, AAG has not raised any other issue during the course of arguments.

In view of the discussion made aforesaid, I find that though the order of the Divisional Commissioner is sketchy but detailed finding has been recorded on all the issues raised herein thus impugned order is not interfered. Thus while holding right of the respondents for allotment of land pursuant to the order the Government of India dated 07.02.1958, the only modification in the impugned order would be that Liyakat Ali, claiming benefits under the Will would be entitled to land upto the extent which is permissible under Mohammedan Law. The remaining legal heirs would be entitled to the allotment of land to the extent it come in their share. With the aforesaid direction, the order of the Divisional Commissioner is modified.

The writ petitions are disposed of with the aforesaid. This disposes of stay applications also.