- (1.)This appeal, by special leave, is against the order of the Punjab High Court dismissing the petition of the appellants under Act 226 of the Constitution praying for quashing the order of the Custodian General, dated June 17, 1952.
(2.)The appellants and respondents Nos. 4 and 5 are residents of village Baland, Tehsil and District Rohtak, and are members of the body of proprietors of that village. The village Baland is divided between three estates. The plot in suit is in the estate known as 'Barsan'. One Fakira, a mendicant and a non-proprietor, had his house on the plot in suit. In January 1950, the Custodian of Evacuee Property issued a notice under S. 7 of the Administration of Evacuee Property Ordinance No. XXVII of 1949, stating that the appellants were in unauthorised possession of the house of Fakira a Muslim evacuee, and that they should either vacate the house or show cause to the contrary. The appellants filed their objections to the notice. The Deputy Custodian of Evacuee Property, by his order dated September 3, 1950 rejected the objections raised by the appellants and declared the house to be 'evacuee property'. The Deputy Custodian passed this order after he got an enquiry made through the Revenue Assistant (Rehabilitation). The appellants went in appeal to the Additional Custodian, Evacuee Property, who got further enquiry made to ascertain whether Mumtaz son of Fakira, evacuee, had been in occupation of the house up to the date of the migration of the Muslims as a result of the partition. This enquiry revealed that Mumtaz had continued to reside in the village Baland and that a son was born to him in July, 1947. The Additional Custodian therefore agreed with the report and the order of the Deputy Custodian that the property in suit was evacuee property. The appellants then filed a revision before the Custodian General. It was dismissed on June 17, 1952. The Custodian General observed that there was more than sufficient evidence to establish that Mumtaz continued to be in possession of the house in dispute up to July, 1947.
(3.)Thereafter, the appellants filed a writ petition in the High Court challenging the legality of the order of the Deputy Custodian on the grounds that the Deputy Custodian gave no notice or opportunity to them to meet the case and that the Custodian had no jurisdiction in the matter in view of the provisions of the wajib-ul-arz according to which the house of a non-proprietor, on his leaving the village, vested in the proprietary body. The learned Single Judge who heard the petition held that the provisions of the Administration of Evacuee Property Act, 1950 (Act XXXI of 1950), had been complied with throughout and referred the question whether the site occupied by a non-proprietor vested or not in the Custodian after the occupier had abandoned it, to a larger Bench in view of his opinion that the decision of another Single Judge in Joti Prashad v. Bhawani Lal required re-consideration. The Division Bench then decided this question and held the right of a non-proprietor to occupy a village site was right in property, though it might not be an interest in property and that this right vested in the Custodian if the non-propriter left the country and became an evacuee. The writ petition was accordingly dismissed and it is against this order that this appeal has been filed.