The Financial Commissioner Revenue and Another vs Sifte Hassan (deceased through his legal representative)

Rekha Mittal, J.—The appellant prays that order dated 14.11.2011, allowing the writ petition, filed by the respondent, thereby setting aside order dated 12.05.1987 (Annexure P4), passed by the Financial Commissioner, declining the respondent''s claim for restoration of evacuee property, u/s 16 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as ''the 1950 Act'') may be set aside. Counsel for the appellant submits that the claim of the respondent for restoration of property, in dispute, cannot be considered as Section 20-B of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as ''the 1954 Act''), has been declared to be unconstitutional being ultra vires, by the Hon''ble Supreme Court in Lachhman Dass and Others Vs. Municipal Committee, Jalalabad and Others, . It is further argued that as ''the 1954 Act'' has been repealed on 06.09.2005 and new enactment framed in 2008, does not contain any provision for any authority/forum, to restore the property declared as evacuee, the order of the Financial Commissioner declining the claim of the respondent is liable to be upheld.

Counsel for the respondent, on the other hand, submits that it is admitted by the appellants that the respondent never migrated to Pakistan as he temporarily shifted to Uttar Pradesh, to protect his life during riots, at the time of partition of the country. The property was, therefore, wrongly declared evacuee property and could not be distributed in the manner provided under the 1950 Act. Despite this admission by the appellants, they have refused to restore the property. It is further submitted that the respondent is entitled to restoration of his land situated in village Zabti Chhapra and Nabiabad, but he has made an offer that he confined his prayer to land in village Zabti Chhapra, which is in his possession.

We have heard counsel for the parties, perused the impugned order, order of the Financial Commissioner and the paper book.

Apart from the fact that the appeal is barred by limitation, we find no reason to accept the appeal.

The appellant has not disputed that respondent, Sifte Hassan did not migrate to Pakistan and only temporarily shifted to Uttar Pradesh at the time of partition of the country. It is not denied that land belonging to respondent, situated in Village Zabti Chhapra and Nabiabad, was wrongly declared evacuee property. Despite admitting the fact that the land, in dispute, was wrongly declared evacuee property and that the respondent has remained in possession of the land in village Zabti Chhapra, the Financial Commissioner has decided against the respondent, by holding that Section 20-A of the 1954 Act has been abrogated. A relevant extract from the order of the Financial Commissioner, reads as follows:-

It is thus clear from the above mentioned report that the petitioners were possessing land in village Zabti Chhapra and Nabiabad, but, since they migrated to U.P. from, though temporarily, the land has since been disposed of. Although they can be deemed to be entitled to the restoration of the original property u/s 16 of the Administration of Property Act, it is not possible to do so in view of the fact that Section 20-A of the Act ibid has since been abrogated and the said land can no longer be restored to the petitioners. Under the circumstances although, I consider the claim of the petitioners to be genuine, I am unable to recommend any relief to them. The petitioners, can, if they so desire, approach the Government of India for relief under the relevant law. Both the petition stand rejected.

The appellant-State has not disputed, rather admitted that the respondent has remained in possession of his land in village Zabti Chhapra. As the respondent never migrated out of the territory of India and only temporarily shifted to Uttar Pradesh to protect himself during riots, his land was wrongly declared as an evacuee property by the custodian. The impugned order has been passed by allowing the writ petition and directing the State to restore the land to the respondent.

Counsel for the State has failed to point out any error or illegality in the impugned order directing restoration of the land to the respondent in village Zabti Chhapra alone, as the respondent has voluntarily left his claim in respect of his land in village Nabiabad. The order passed by the Financial Commissioner has been rightly set aside as he failed to take into consideration that the claim of the respondent is maintainable, u/s 16 of ''the 1950 Act'' and the same could not be denied, on the plea that Section 20-A of the 1954 Act has been held to be ultra vires of Article 31-B of the Constitution of India. Section 16 of the Act that provides for restoration of property, reads as under:-

Restoration of Property- (1) The Custodian may, on application made to him, in this behalf in writing by an evacuee or any person claiming to be the heir or an evacuee, restore, subject to such terms and conditions as he may think fit to impose, the evacuee property to which the evacuee or other person would have been entitled if this Act were not in force.

Provided that the applicant produces in support of his application a certificate from the Central Government, or from any person authorized by it in this behalf, to the effect that the evacuee property may be so restored if the applicant is otherwise entitled thereto.

(2) On receipt of an application under sub Section (1), the Custodian shall cause public notice thereof to be given in the prescribed manner and, after holding a summary inquiry into the claim in such manner as may be prescribed, may

(a) make a formal order declaring that the property shall be restored to the applicant; or

(b) reject the application: or

(c) refer the applicant to a civil court for the determination of his claim and title to the property;

Provided that no order for restoration shall be made under this section, unless provision has been made in the prescribed manner for the recovery of any amount due to the Custodian in respect of the property or the management thereof.

XXX

The plea that as Section 20-B of ''the 1954 Act'' has been declared ultra vires in ''Lachhman Dass''s case (supra), the land cannot be restored, is incorrect. Indisputably, Section 20-B of the Act, imposes certain restrictions on restoration of evacuee property. Section 20-B of the said Act was held ultra vires of Article 31(2) of the Constitution of India as it offends the right to property of a person, whose property was declared evacuee and was liable for restoration, u/s 27 of ''the 1950 Act'' or under the Evacuee Interest Separation Act, 1951. Counsel for the State has not been able to point out as to how the judgment passed by the Hon''ble Supreme Court in ''Lachhman Dass''s case (supra) applies to the present controversy or would validate the order passed by the Financial Commissioner against the respondent.

Counsel for the State made a faint attempt to argue that as ''the 1950 and 1954 Acts'' have been repealed on 06.09.2005 and the new enactments, namely, Haryana Evacuee Properties (Management and Disposal) Act, 2008/Haryana Evacuee Properties (Management and Disposal) Amendment Act, 2010, do not contain any provision empowering any authority for restoration of land to any Muslim restoree, the impugned order is illegal and liable to be set aside. The plea, in our considered opinion, is nothing but a hollow attempt to take away the genuine claim of the respondent. The respondent had been pursing his remedy since 1959 and he cannot be deprived of his legal right merely because in the new Act passed in the year 2008/2010, the State has failed to discharge its obligation to provide a forum for the redressal of genuine grievances of the rightful claimants or to restore/allot land to the successful litigants. In view of what has been discussed hereinabove, the appeal is dismissed, leaving parties to bear their own costs.