Tikko Bai vs Divisional Commissioner, … on 17 February, 1995

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Rajasthan High Court
Tikko Bai vs Divisional Commissioner, … on 17 February, 1995
Equivalent citations: AIR 1996 Raj 19, 1995 (3) WLC 525, 1995 (1) WLN 642
Author: A Madan
Bench: A Madan

ORDER

Arun Madan, J.

1. The petitioner who is a poor and helpless widow has knocked the doors of justice by way of this writ petition under Art. 226 of the Constitution of India in the matter of Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the relevant provisions of Rajasthan Tenancy

Act, 1955 whereby the petitioner has challenged the impugned order, dated 1-9-1993 passed by the Divisional Commissioner, Bikaner (respondent No. 1) directing resumption of the property/land which was duly allotted to the father-in-law of the petitioner as a displaced person from West Pakistan at Sriganganagar in lieu of the property left by the petitioner’s father-in-law in West Pakistan on partition of the country in 1947. The petitioner who was already displaced person has been displaced again having been rendered homeless by the instrumentality of the State viz. the District Re-habilitation Officer, Sriganganagar (respondent No. 4) on resumption of the land in question which was earlier duly allotted in favour of the petitioner’s father-in-law by the said respondent.

2. The facts giving rise to the filing of this writ petition briefly stated are that the petitioner is a resident of Chak 14 S Tehsil Srikaranpur, District Sriganganagar and agriculturist by profession. By an order of the District Rehabilitation Officer (respondent No. 4) the Late father-in-law of the petitioner, Shri Pedsingh was allotted a piece of land measuring 12 bighas 10 biswas as a claimant under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as ‘the Act of 19545) against the claim of his land which he left in West Pakistan. The said piece of land was allotted vide Chak 14 S Tehsil Srikaranpur, District Sriganganagar. Shri Pedsingh, the allottee, died leaving behind one son named Kala Singh and three daughters. The petitioner is the wife of Late Shri Kalasingh son of Late Shri Pedsingh. After the death of her husband, the petitioner has been in continuous possession of the said property. Since the son of the petitioner was unwell and was ailing in Punjab, the petitioner had to leave Sriganganagar for attending her ailing son and due to the circumstances beyond her control she had entrusted the possession of the said property to Dilip Singh (respondent No. 5) who was appointed as care-taker of the said property on rental basis. When the petitioner returned back from Punjab she asked Dilip Singh to vacate the land and hand over its possession to her. The said respondent refused to hand over the possession and vacate the land and

under the circumstances the petitioner was left with no option but to request the District Rehabilition Officer (respondent No. 4) by moving an application dated 20-1-1982 to direct the said Dilip Singh (respondent No. 5) to vacate the land and hand over its possession to the petitioner. Instead of directing respondent No. 5 to vacate the land and to hand over its possession to the petitioner, respondent No. 4 directed resumption of the said property in favour of the Government vide order dated 10-11-1983; aggrieved by which the petitioner preferred an appeal before the competent authority which was rejected against which revision petition was filed which was allowed and the case was remanded back to the District Rehabilition Officer (respondent No. 4) to pass a fresh order after giving full opportunity of hearing to both the parties in accordance with law.

3. In the impugned order dated 6-9-1986 (Annexure 1) passed by District Rehabilitation Officer, Sriganganagar (respondent No. 4) specific finding has been recorded in favour of the petitioner regarding production of kila jamabandi regarding bona fide possession of the land in question in her favour which is further borne out from the specific entries in her favour in the revenue records. In terms of the earlier order passed by the trial Court on 21-8-1986 in case No. 446/84 from 17-5-84 the petitioner was held to be entitled to 1 / 4 share of the land in question along with three daughters of Late Shri Pedsingh. No appeal was preferred against the said order and hence the same became final and conclusive. It has been further observed by the District Rehabilition Officer in the impugned order, dated 6-9-1986, that Dilip Singh had contended that he was adoptive son of Late Shri Pedsingh but he had failed to furnish any satisfactory proof in support of his contention, i.e., adoption deed etc. and further the evidence tendered on the record also failed to prove the contention of respondent No. 5 as adopted son of Late Shri Pedsingh. Since Pedsingh died leaving behind his natural born son Kalasingh hence the question of taking Dilip Singh, respondent No. 5, in adoption did not arise. Hence the status of respondent

No. 5 regarding possession of the land in question was not better than that of a trespasser and accordingly the authorities concerned were directed to get unlawful possession from respondent No. 5 of the land in question, vacated. It has been further observed by the District Rehabilitation Officer that since admittedly Dilip Singh was a rank trespasser and had failed to furnish satisfactory proof of possession of land in question, he should be directed to vacate the land in question and in compliance with the provisions of Sec. 19(2)(b) of the Act of 1954 read with Rule 102 the possession of the land measuring 12 bighas 10 bis was be resumed by the Central Government. It was further directed that Tehsildar was to take steps for auctioning the land every year for agriculture purposes on rental basis. An appeal was preferred by the petitioner against the impugned order of the District Rehabilition Officer before the Collector-Cum-Chief Settlement Commissioner, Sriganganagar (respondent No. 2) under Section 24 of the Act of 1954.

4. It was contended on behalf of the appellant before the Appellate Authority that instead of taking steps to restore the possession of the land to the petitioner who was a bona fide allottee of the land in question, no steps were taken to get the possession of the land in question from respondent No. 5, since the said respondent was admittedly a trespasser and had no right or title over the same but unfortunately the concerned authorities failed’to take necessary steps to restore the possession of the land to the petitioner. It has been observed by the Appellate Authority in its order, dated 14-9-1988 that since the petitioner was not found in possession of the land in question, the District Rehabilition Officer has rightly resumed the property in favour of the Central Government. It was further observed by the Appellate Authority that the petitioner had failed to implead Dilip Singh as party respondent in appeal and, therefore, she was not entitled for restoration of possession of the land in question in her favour and the appeal was accordingly dismissed vide order, dated 14-9-1988.

5. Against the aforesaid order of the
Appellate Authority a revision petition was preferred by the petitioner before the Divisional Commissioner, Bikaner vide Revision Petition No. 83/91 (Annex. 3) which was dismissed on the ground that possession of the land in question which was given by the petitioner to respondent No. 5 was done unauthorisedly without permission of the competent authority and Rule 102 specifically provides that competent authority can in such a situation cancel the allotment if the possession of land has been handed over to somebody else without permission of the competent authority. The revision petition was consequently dismissed vide order dated 1-9-1993.

6. During course of hearing it was contended by learned counsel for petitioner that the possession of the land measuring 12 bighas 10 biswas was originally allotted to the petitioner’s father-in-law and thereafter she had got the possession through her husband Shri Kalasingh son of Late Shri Pedsingh and after the demise of her husband she has been in continuous possession of the said property. Since the son of the petitioner was unwell and was ailing in Punjab, the petitioner had to leave to Sriganganagar to attend her ailing son and due to the circumstances beyond her control, the petitioner had appointed Shri Dilip Singh temporarily as a care-taker and Dilip Singh instead of faithfully discharging his duties, with some mala fide intention to grab the said property, had refused to hand over its possession to the petitioner when she returned back from Punjab. It has been further contended by the learned counsel for the petitioner that District Rehabilition Officer instead of making proper investigation in the matter and without making any proper inquiry so as to ascertain that who was the actual occupant of the said property and in whose favour that property was originally allotted by the Rehabilitation Department, in a mechanical manner passed an order of resumption of the property in favour of the Central Government on the ground that one Shri Dilip Singh was in unauthorised occupation of the property before its resumption as a trespasser, the property was liable to be resumed in favour of the Central Govern-

ment and the said trespasser Was liable to be evicted.

7. The above contentions advanced by the learned counsel for the petitioner have been controverted by Shri B. K. Bhatnagar, learned counsel for the respondents on the ground that petitioner was not justified in handing over the possession of the land even temporarily to Dilip Singh, respondent No. 5, without applying for permission of the competent authority and to that extent the petitioner has violated the provisions of the Act.

8. A perusal of the order-sheets reveals that despite several opportunities granted to the respondents to file reply to the petition, no reply has been filed on behalf of the respondents in answer to the writ petition hence adverse inference has to be drawn against the respondents for not having contested the writ petition, since it is settled proposition of law that if the pleadings are not specifically controverted by the respondent, the same shall be deemed to be admitted in favour of the petitioner. Before dealing with the merits of the case it will be appropriate to refer to the definition of “displaced person” as defined in Section 2(b) of the Act according to which “displaced person” means any person who, on account of the setting up of the Dominions of India and Pakistan, or on account of civil disturbances or the fear of such disturbances in any area now forming part of West Pakistan, has, after the first day of March, 1947, left or been displaced from, his place of residence in such area and who has been subsequently residing in India, and includes any person who is resident in any place now forming part of India and who for that reason is unable or has been rendered unable to manage, supervise or control any immovable property belonging to him in West Pakistan, and also includes the successors-in-interest of any such person. As per the statement made by the legislature in the objects and reasons of the enactment, it is clearly recorded that the Committee considered the question of re mitting small loans due from the poor section of non-claimant displaced persons, and that the Committee felt that if the proposal is carried out, there would be a reduction of considerable amount in compensation pool from which claimants for compensation are to draw their share. The Committee recommended that cases of deserving displaced persons should be sympathetically considered and appropriate compensation be made to the claimants and that the Committee was of the view that on production of relevant migration certificates and other evidence etc., the compensation be made in favour of the claimants. The very aim and object of the legislation was to give option to the claimants to choose either the compensation in terms of payment or allotment of the property/land in lieu of the property left by the claimants in West Pakistan on partition of the country and on their migration to India so as to avoid hardship and delay in realisation of the claims.

9. It will be pertinent to refer to the provisions of Section 19 of the Act of 1954 which deals with the power of the competent Authority to vary or cancel leases or allotment of any property acquired under this Act. Sub-section (2) of Section 19 of the Act of 1954 provides that where any person-

(a) has ceased to be entitled to the possession any evacuee property by reason of any action taken under Sub-section (1), or

(b) is otherwise in unauthorised possession of any evacuee property or any other immovable property forming of the compensation pool; he shall, after he has been given a reasonsable opportunity of showing cause against his eviction from such property, surrender possession of the property on demand being made in this behalf by the managing officer or managing corporation or by any other person duly authorised by such officer or corporation. If such person fails to surrender possession of any property on demand made under Sub-section (2) the managing officer or managing corporation may, notwithstanding anything to the contrary contained in any other law for the time being in force, ejects such person and take possession of such property and may, for such purpose, use or cause to be used such force as may be necessary.”

10. A perusal of the aforesaid provision
of the Act clearly reveals that the competent Authority has to record a specific finding to the effect before resumption of the evacuee property, that an allottee has ceased to be entitled to the possession of evacuee property either for the reason of an action taken in pursuance of Sub-section (1) of Section 19 of the Act of 1954 if such person is in unauthorised possession of said evacuee property and merely because any person who is otherwise a bona fide allottee of the evacuee property by virtue of the order of allotment in his/her favour and also for the reason of continuous possession of the property in question for several years as in this case, does not cease to be a bona fide allottee merely for the reason that he/she temporarily handed over its possession to any other person by appointing him as a Care-taker for a short duration. Hence an inquiry has to be embarked upon by the competent officer / managing officer in this regard and since admittedly respondent No. 5 was held to be a trespasser over the land in question, it was incumbent upon the District Rehabilition Officer respondent No. 4) to have made inquiry (sic) of the land in question, which has not been done in the facts of the instant case. Without making such inquiry and without ascertaining this aspect and without considering that a bona fide allottee of the land in question under the Act, does not cease to be an allottee merely for the reason of her temporary absence, the petitioner did not cease to be bona fide allottee of the land in question when she had handed over its possession temporarily to respondent No. 5. I am further of the considered opinion that a perusal of the record clearly reveals that no such inquiry was made and the impugned order of resumption dated 1-9-1993 of the Divisional Commissioner, Bikaner was passed in a mechanical manner on some conjectures and surmises in total disregard of the provisions of law and the said order of resumption dated 1-9-1993 passed by the Divisional Commissioner, Bikaner deserves to be quashed and set aside being also contrary to the statement of objects and reasons of the legislation as contained in the
enactment since a displaced person has been displaced again instead of being rehabilitated after having been in possession of the evacuee property for past several years, I am further of the considered opinion that the word “Possession” does not mean actual physical possession of the property and it can also be construed as “constructive possession” which means and implies that the possession may not be actual and physical and yet the possession may be deemed to be lawful even if its possesion is temporarily handed over to any other person such as respondent No. 5, Dilip Singh, *in this case on behalf of the original allottee or claimant.

11. During the course of hearing reliance was placed by the learned counsel for the petitioner on the provisions of Section 46 of the Rajasthan Tenancy Act, 1955 which specifically exempts applicability of the provisions of the Act of 1954 to any woman who is unmarried or divorced or separated from her husband or a widow as in this case. Section 46 of the Rajasthan Tenancy Act, 1955 reads as under:

Section 46 – Letting or sub-letting in exceptional cases-

(1) The restrictions imposed by Section 45 on letting by a holder of Khudkasht (or a land owner) and on sub-letting by tenant shall not apply to-

(d) a woman who is unmarried or divorced or separated from her husband, or is a widow,”

Section 45 of the Rajasthan Tenancy Act imposes restriction on letting and sub-letting of the lands which have been leased out on tenancy to any holder of Khudkasht (land pwner) except in circumstances mentioned in Section 46 of the Rajasthan Tenancy Act. It was contended by the learned counsel for the petitioner that provisions of the Act specifically imposes a restriction regarding letting or sub-letting of the land and exemption is clearly made in favour of a widow under subsection (d) of Section 46 of the Rajasthan Tenancy Act. Hence the District Rehabilition Officer was not justified to direct resumption of the land in favour of the Central Govern-

ment since there is a clear exemption in favour of the widows.

12. After hearing learned counsel for the parties and examining their rival claims and contention and also after having perused the relevant provisions of Act as referred to above, the impugned order dated 1-9-1993 (Annex. 3) passed by the Divisional Commissioner, Bikaner (respondent No. 1) deserves to be quashed and set aside.

13. As a result of the above discussion the writ petition succeeds and the respondents are directed to restore the allotment of the land of Chak 14 S in Tehsil Srikaranpur, District Sriganganagar measuring 12 bighas 10 biswas within a period of three months from today to the petitioner. The respondents are further directed that if any other person has been allotted the aforesaid land, the said allotment shall be treated as cancelled and its possession shall be restored to the petitioner after ejectment of the occupant who is in possession of the said land. Parties are left to bear their own costs.

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