- (1.) This order will dispose of eight writ petitions (C. Ws. 3401 and 3734 of 1968, 1146 and 1270 of 1969 and 2275, 2333, 2632 and 2657 of 1970) which involve a common question of law. Four of these writ petitions (C. Ws. 3401 and 3734 of 1968 and 1146 and 1270 of 1969) relate to Haryana State while the remaining four writ petitions to Punjab State. The dispute in all these cases is between the right of the Gram Panchayats to get the Shamilat land in the respective villages over which the Panchayats have jurisdiction and the right of the Central Government, Rehabilitation Department, to allot such land to the extent to which the Muslim evacuees had an interest therein, to the displaced persons, to satisfy their unsatisfied claims or to dispose of that property in any other manner under the provisions of the Displaced Persons (Compensation and Rehabilitation Act, 1954 (hereinafter referred to as the Central Act of 1954).
(2.) Before the partition of India, which took place on 15th August, 1947, generally speaking, Shamilat land, in a particular village, was owned by the proprietors of the village hasab rasad khewat, i.e., in proportion to their holdings in the village. Some of the villages, with which some of these writ petitions are concerned, were wholly Muslim villages in which all the Muslims migrated to Pakistan and there were some others which were partly inhabited by Muslims and partly by non-Muslims, out of whom Muslims migrated whereas local proprietors continued to live in the villages. After the wholesale migration of Muslim population mainly from the State of Punjab, as it existed prior to the partition i.e. including what is now the State of Haryana, the problem before the authorities was how to manage and preserve the property of the Muslim evacuees. The East Punjab Evacuees (Administration of Property) Act, 14 of 1947, (hereinafter referred to as the Punjab Act of 1947), was passed by the Punjab Legislature and it came into force on 13th December, 1947, replacing the earlier Ordinance to the same effect. According to Section 4 of the said Act, all interests in the property, moveable or immovable, of the evacuees, vested in the Custodian of the State. It is not necessary to notice the various amendments made in the Punjab Act of 1947 which was ultimately replaced by a Central Ordinance of 1949 and then by the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Central Act of 1950), which came into force on 17th April, 1950. Section 7 of the said Act provided for an enquiry to be made, after due notice to the person interested, where the Custodian was of the opinion that any property was evacuee property, and, after being so satisfied, he was to notify in the Official Gazette that the property was evacuee property. Sub-section (2) of Section 8 of the Central Act of 1950 is as follows :- "Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act, and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest." Thus, the interests of the evacuees which had vested in the Custodian under the Punjab Act of 1947 automatically came to be vested in the Custodian appointed under the Central Act of 1950. The object of vesting the interests of the evacuees in the Custodian is made clear in Section 10 of this Act. Sub-section (1) of the said Section runs as under : "Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto."
(3.) It has to be noted that the property of the evacuees vests in the Custodian not only for the purpose of management, but also inter alia for 'preserving' the same. It has to be kept in mind that as a result of the mass scale exchange of population between West Pakistan and the Union of India, huge agricultural land and other property, both movable and immovable, were left by the refugees from West Pakistan to the Union of India and similarly by the refugees from Union of India to Pakistan. In order to preserve the property left by the evacuees in the Union of India, it was necessary not to allow the same to be disposed of or otherwise frittered away. Although at dominion level conferences, effort was made to persuade the Pakistan Government to evaluate the entire property left by the refugees in West Pakistan and the one left by the refugees in the Union Of India and, as the value of the property left by non-Muslim refugees was considered to be much higher demand was being made for the Pakistan to compensate the Union of India for that property, but all the same it was felt that this hope may not be realised. The real hope of the refugees was to get some compensation out of the property left by the evacuees in the Union of India. Hence, it was absolutely necessary to preserve such property so that the same may not be adversely affected or reduced. This is also clear from sub-section (2) of Section 7 of the Central Act of 1950, where it is provided that when the Custodian gives a notice in respect of any property, which in his opinion is evacuee property, then, after the issue of such notice and pending decision of the question, whether the same was or was not evacuee property, such property shall "be incapable of being transferred or charged in any way, except with the leave of the Custodian." The result of the provisions of Sections 7, 8 and 10 of the Central Act of 1950, therefore, was that all interests in the evacuee property vested in the Custodian of the State, inter alia, to be "preserved.";