K.KANNAN,J. - (1.) THE writ petition challenges the order passed by the authorities constituted under the Administration of Evacuee Property Act of 1950. By the impugned order, an allotment to the heirs of one Nawazi was sought to be cancelled nearly 25 years after the restoration order. The details leading to the writ petition are as follows.
(2.) ONE Rozdar Khan and his wife Nawazi were said to have fled to Pakistan at the time of partition and the property that they left behind in India was treated as evacuee property. His wife Nawazi made an application on 25.08.1952 claiming the property on the ground that she had returned to India and her husband died in Pakistan. Her application was dismissed on 05.12.1952. However, on her representation, it appears that an investigation had been undertaken and a report was given by Inspector (Legal), Gurgaon and submitted to the Deputy Custodian that Nawazi's name entered in the census register prepared in the year 1948-49. The land had been claimed by Nawazi as an heir to her husband and the report suggested that the property must be restored to her. The Deputy Custodian made an entry endorsing the recommendation and approving that the property be restored to her. This was sought to be reopened at the instance of a third party, who claimed that restoration order passed in the year 1961 was done on false averments. The impugned order was passed by the Custodian General stating that when the order of cancellation had been made on an application on 05.12.1952, it was a quasi-judicial order and it could not have been modified by an administrative file noting by the same authority. He, therefore, set aside that the order of restoration made on 28.06.1961. The learned counsel for the petitioners points out that a power to restore an evacuee property to an heir of the evacuee is rooted to Section 16 of the Administration of Evacuee Property Act,1950 and the procedure for such a restoration is delineated under Rule 16 of the Administration of Evacuee Property Central Rules of 1950. Section 16 states that any evacuee or any other person claiming to be an heir of an evacuee may apply to the Central Government that the property vested in the Custodian be restored to him. It is not denied that Nawazi was the widow of Rozdar Khan. It is not also denied that the property originally belonged to Rozdar Khan which means that Nawazi as an heir to her husband was entitled to be restored when it is again an admitted fact that the property had been treated as an evacuee property. Rule 16 lays down that the Custodian could impose such terms and conditions which he considered to be just and proper having regard to the commitments already made or action already taken by him in exercise of his functions under the Act. If an order had been passed on a report filed of the Inspector recommending and approving the restoration of the property, it could not have been set aside by the very same authority 25 years later on a specious ground that a quasi- judicial order could not be interfered by an administration order. It is merely one of procedure and it is not as if the order of restoration was passed without any application of mind. On the other hand, the Deputy Custodian had the benefit of a report from the Inspector, who had made personal verification and had given materials to show that Nawazi was in India in the year 1948, that is, after the partition. If the property was the property that belonged to her husband and Nawazi was his widow, the State could not have retained possession of the property without admitting to the legal heirs' claim for restoration. It will be wrong and unfair to debunk the earlier order passed in the year 1961 as an administrative order and it could not have modified a quasi judicial order. An order restoring the entitlement to the legal heir was, under the circumstances, prefect and just and by a fanciful nomenclature employed by the State, the effect of such an order could not have been whittled down.
(3.) THERE is no finding or observation that any fraud or misrepresentation had been made to secure the restoration. The property was rightfully restored to the person entitled to obtain the property. The impugned orders are set aside and the writ petition is allowed.;