K. Kannan, J. - (1.) THE case brings out facts which are as old as the story of partition of India. The case was admitted by the Bench of this Court on 26.09.1991 and the Petitioner was granted stay of dispossession. It was dismissed previously once and restored to bring the legal representatives of the deceased Petitioner. There have been no representation for the persons, who have been brought on record. I have proceeded to dispose of the case on the basis of the record.
(2.) THE impugned order was passed by the Financial Commissioner in purported exercise of the powers under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act of 1954. There have been several adjudications at the lower tiers of the adjudicating machinery when the Petitioner was making a claim for a property measuring 11 marlas situated in Dasuya in property No. B -IV.S -49 -A. This was claimed to be a property under the ownership of one Altaf Hussan Faizkhan, who was alleged to have executed a rayatnama in favour of the Petitioner, according to which, he was entitled to retain possession from generation to generation. This property was declared as evacuee property in 1959 -60 and the Petitioner, therefore, filed a petition under Section 27 of the Administration of Evacuee Property Act before the Deputy Custodian General. The authority passed an order on 19.09.1960 and referred the matter to the Assistant Custodian General for enquiry. After due enquiry, the Assistant Custodian General found that the Petitioner was entitled to remain in possession of the property but the ownership right belonged to the custodian. An application had been made by the Petitioner to the Managing Officer for the transfer of the plot, but it was rejected on 15.04.1980 as time barred. His appeal to the Settlement Commissioner was accepted by order dated 15.05.1990, who remanded the case to the Tehsildar -cum -Managing Officer for transferring the property to the Petitioner after seeking clarification from the Rehabilitation Department. On remand, the Managing Officer asked the Petitioner to produce evidence of possession before 31.12.1976. The Petitioner had failed to prove the possession and, therefore, the petition Civil Writ Petition No. 11155 of 1990 (O&M) - 3 -was rejected on 31.08.1984. The appeal filed by him to the Settlement Commissioner was dismissed on 14.07.1985 as time barred. He filed a revision to the Chief Settlement Commissioner, who dismissed it on 08.09.1987. Further the revision had been filed before the Financial Commissioner, who again dismissed it on 31.05.1990. It is this order which is the subject of challenge in the writ petition. At no point of time, the Petitioner's claim has been considered on merits, after the Assistant Custodian General was directed to carry out an enquiry regarding the rights of the persons over the property which was declared as evacuee property. The property had been claimed to have come under the possession of the Petitioner even prior to partition of India under a document of rayatnama from the original owner. The Petitioner was entitled for consideration of his continuation in possession on such terms as the Act provided. The Assistant Custodian had actually referred the matter to the Managing Officer for transfer of the plot, but the Managing Officer had rejected it on 15.04.1980 as time barred. All the succeeding years which have culminated in the impugned order referred to the fact that the Petitioner had failed to prove his possession before 1977. I think there has been a complete miscarriage of justice for the Petitioner. For a person, who has been asserting his right, even after immediately it was declared as evacuee property in the year 1959 -60 was not required to prove that he had been in possession of the property before 1977, or if it was required, it must have taken as established, since the Assistant Custodian General had found soon after 19.09.1960 that the Petitioner was entitled to retain Civil Writ Petition No. 11155 of 1990 (O&M) - 4 -his possession. If the enquiry or adjudication was necessary that he had been in possession of the property prior to the date of partition and if he had failed to establish such possession, then it would obtain some meaning. As stated above, even at the time when an order was passed on 19.09.1960, the Custodian General had found that the Petitioner was in possession, but he had referred to the Assistant Custodian only to consider the transfer of ownership from the Custodian in the manner provided in the Administration of Evacuee Property Act. The authorities could not have, therefore, rejected the Petitioner's claim on the ground that he had not established possession prior 1977. The possession of the Petitioner must have been taken as established by the only fact that proceedings were pending all the while from the year 1960 itself. The authorities were looking for a proof when it was as pellucid as crystal. In the impugned order, the Financial Commissioner has observed that the Petitioner could not file electricity bill or voter list or ration card prior to the year 1977 which he should have definitely had if he had been in possession from the year 1947. Though a writ Court does not enter a question of fact, I am of the view that the authorities were looking for certain evidence which was an obvious fact. The order of the Financial Commissioner is set aside and the same is remitted to the Financial Commissioner, Chandigarh, for consideration of his rights taking the possession of the Petitioner as established, the transfer of ownership made in accordance with law with no further proof than what was already adduced before the Assistant Custodian General.
(3.) THE writ petition is disposed of with the above observation. The competent authority shall serve a notice of the date fixed and pass appropriate orders of transfer of ownership in the light of the relevant provisions of the Act.;