K. Kannan, J. - (1.) THE above writ petition had been disposed of on 31.10.2011 dismissing the writ petition. It was disposed of on merits even though there had been no representation on behalf of the petitioner, considering the fact that the case was old and the case would, therefore, require to be disposed of on merits. I had examined the case with the assistance of the State counsel and passed the order on 31.10.2011. An application for review has been filed stating that the petitioner has important documents to rely on and that the disposal of the case made without adverting to the facts on merely the issue of limitation was not justified.
(2.) UNDER the normal circumstances, there is no scope for a court to dispose of the case on merits, when there was no representation on behalf of the petitioner. It should been only dismissed for default if at all, but there were extraordinary circumstances and, therefore, it came to be disposed of in the manner it was done. I do not want to take away the right of a person by the default of appearance and, therefore, I have allowed the counsel for the petitioner to argue on merits. This is a case relating to an allotment which was made to a displaced person on 19.05.1959 by the authority under the Displaced Persons (Compensation ad Rehabilitation) Act, 1954. This was in relation to a property bearing No. 40/41 in Ghosi Mandi at Ambala Cantt. The dispute was with reference to a rival claim made by Sunder Singh and Kartar Singh who were also granted half of the property by virtue of the fact that they were seen to be in possession of the property at that time. The petitioner had a contention to make that only he had made a verified claim while Kartar Singh or Sunder Singh had not made any such claim. There was yet another lady Krishnawanti who was staking a claim in relation to the very same property on a plea that she was also in possession of the property. When the order was passed originally, it appears that not only both, the petitioner Charan Dass and Krishna Wanti had preferred the respective appeals, but the appellate authority disposed of the case against Charan Dass holding that it was barred by limitation and dismissed the appeal filed by Krishnawanti also. The matter went to the High Court which rejected the claim and the matter went to the Supreme Court. It was decided through a decision reported in : AIR 1980 Supreme Court 1306. The Supreme Court considered the issue of retrospectivity of Rule 30 which was repealed and directed a fresh consideration of the matter. When the matter was sent back to the authority, he disposed of the case holding that he had the property examined through the Tehsildar (Sales) and he had found that the property was partible and hence, Kartar Singh and Sunder Singh would also be entitled to the property in which they were in possession. Against this order, the petitioner had preferred an appeal but the appellate authority merely held that the order had been passed on 06.07.1981, but the appeal had been filed only on 28.05.1982. The limitation prescribed under the Rules is 30 days. The counsel says that the order had not been actually communicated and only after he came to know about the order that the appeal could be filed, I examined the order and I find that it was not pronounced in the presence of the petitioner and, therefore, he was entitled to prefer an appeal within 30 days from the day when he came to know about the order. I would, therefore, hold that the appeal could not have been dismissed on merely an issue of limitation in not filing the appeal within 30 days from the date of passing of the order.
(3.) I thought for a while whether any purpose would be served in reopening the issue of where allotments had gone to the contesting respondents as early as in 1951. Litigation had started soon after the allotment was made and it had stood on all these years. The first time when the Supreme Court was disposing of the case in the year 1980 and the case was brought for hearing again before the Settlement Officer, he noticed that the private respondents had actually been in the petitioner's property and he also found that the Tehsildar had given a report that the property was disposable. These are, in my view, essential questions of fact of how the property was and whether it was possible to make an allotment in the manner it did. The counsel for the petitioner refers me to the interpretation given by the Supreme Court as regards Rule 30 in respect of which matter was actually remitted. As regards Rule 30, the Supreme Court had stated that where a payment of compensation on an acquired evacuee property was allotable but in the occupation of more than one person, one holding verified claim in the occupation of any acquired evacuee which is an allotable property shall be offered to the person whose right compensation is the highest and the other persons may be allotted such other acquired evacuee property which is allotable that may be available. There is no doubt that if the petitioner as an evacuee had a verified claim and the compensation payable to him was more than or equivalent to the value of the property, the whole of the property could have been offered only to him. There is no question of making the allotments to persons only because more than one was actually residing at the property. But the point is whether that could be given effect to at this length of time. Even if the matter were to be taken up immediately after the Supreme Court judgment and disposed of and parties' rights had been readjusted, then it should have been served the ends of justice. It will be unfair to dislocate the persons who have been in possession for more than 50 years and the person, who had been fighting is also no more.;