Sharma, J - (1.) THIS is a petition by Kishanlal under Articles 226 and 227 of the Constitution of India. rl he respondents are the Collector of Bharatpur, No. 1, Sub-Divisional Officer, Bharatpur, No. 2, Tehsildar, Nadbai Tehsil, District Briaratpur, No. 3, and Additional Deputy Custodian, Evacuee Property, Bharatpur, No. 4.
(2.) THE petitioner's case is that he had purchased a piece of land measuring 56' 8" north, 48' south, 120' east and 81' west in Mohalla Katra of Nadbai, District Bharatpur commonly known as Patti Hatupatti bounded as below as per sale-deed dated 2ist February, 1946, which was duly registered : (a) North - House of Durga Panna Vaish. (b) South - Public road. (c) East - public road. (d) West - Open land. This property was purchased from the owners Gainda and others of the said land and possession was taken of it by the petitioner. On 12th September, 1954 the Patwari concerned made a report in Tehsil Nadbai that land measuring 56-1/2' north, 52' south, 122' east and 85' west had been encroached upon and taken possession of by the petitioner without lawful authority. The Girdawar further reported that Khasra No. 2426/1078, which was the joint property of both Hindu and Muslim owners bad been occupied by the petitioner without lawful authority and that this land was 'shamlat Deh. ' The Tehsildar, Nadbai, respondent No. 3, passed an order for inspection of the disputed land and the petitioner gave up the possession of the excess area of 3' on the south, 3' on the east and 4' on the west, which was alleged to have been included in this area covered by the sale deed as per report of the Girdawar. The Tehsildar after inquiry held that the said piece of land was the common property of Hindu and Muslim landlords of the village and that half of that property vested in the Custodian and so the petitioner was liable to be ejected, from the land. The papers were forwarded for sanction to the Sub-Divisional Officer, Bharatpur, respondent No. 2, who in turn agreeing with the views expressed by the Tehsildar submitted the papers to the Collector, Bharatpur, respondent No. 1, for necessary orders The Collector, Bharatpur forwarded these papers on 25th January, 1956 to the Additional Deputy Custodian, Bharatpur for early remarks. The Additional Deputy Custodian, Evacuee Property, Bharatpur, respondent No. 4, agreeing with the views expressed by the Collector and other respondents returned back the papers to the Collector, who ordered the Tehsildar to take necessary action into the matter. The Tehsildar, respondent No. 3, after receiving the order from the Collector issued a notice dated 11th February, 1956 to the petitioner calling upon him to surrender the possession of land in dispute by 5th March, 1956 at the latest and this notice was received by the petitioner on or about 25th February, 1956. The petitioner contends that the property in dispute was neither 'shamlat Deh5 nor the part of Khasra No. 2426/1078 and the Mohammedans of the village had no right therein and consequently the Custodian had no vested rights in the land in dispute. He says that the orders passed by respondents Nos. 1 to 3 are ultra vires. He contends that the property in dispute was never declared to be evacuee property and that the Matsya Evacuees (Administration of Property) Ordinance, 1943 (hereinafter called the Matsya Ordinance) and the Administration of Evacuee Property Act, 1950 (hereinafter called the Act) which came into force on 17th April, 1950 are not at all applicable to the present case as the sale had already been effected before the coming; into force of the aforesaid laws. He further says that the property in dispute has not been declared to be evacuee property under sec. 7 of the Act and the order of the Tehsildar is without jurisdiction. He contends that the notice Ex. B, dated 11th February, 1956 is illegal as it does not specify the property directed to be taken in compliance with the order of respondent No. 1. He says that even if the property is common property as alleged, the notice is ultra vires and the Tehsildar and Collector had no jurisdiction to hear and decide such matters. The petitioner prays that respondents Nos. 1 to 3 be directed not to interfere with the lawful possession of the petitioner over the disputed property and that the order of respondent No. 1 directing respondent No. 3 to take action and the order of respondent No. 3, dated 12th February, 1956 be quashed or any other writ or direction or order might be issued which this Court deems proper. The respondents Nos. 1 to 3 have filed a common reply. They have not disputed the extent and description of the land in dispute given by the petitioner. It is admitted that a sale-deed in respect of a part of the land in dispute was executed in favour of the petitioner, but it is contended that the vendors were not authorised to execute or sell it because it was 'shamlat land' which belonged not only to the vendors but also to other Hindus and Muslims as well. It is alleged that the Muslims left for Pakistan in the year 1947 and their interest had vested in the Custodian of the Evacuee Property. The petitioner therefore did not acquire any right over this joint land by virtue of the sale-deed. As regards possession, it has been alleged that the disputed property is an open piece of land and no possession had been taken by the petitioner nor was it capable of any physical possession. It is contended that the proceedings taken in pursuance of the notice given by the authorities concerned are not illegal or void. The Tehsildar had acted as ex-officio Assistant Custodian under the orders of the Additional Deputy Custodian and that the Tehsildar and Collector acted as ex officio Assistant and Deputy Custodians by virtue of their office. Their orders are governed by the law relating to evacuee property and if the petitioner feels dissatisfied with any of these steps taken by either of them at their own instance or under the directions of the Additional Deputy Custodian, the petitioner's remedy is provided by the Evacuee Property Act and not by coming direct to this Court. As the petitioner has not availed of that remedy the petition is not maintainable. The petitioner is alleged to be a trespasser and therefore not having any right in the property in dispute. We have heard Sri S. C. Agarwal on behalf of the petitioner and Sri B. C. Chatterjee on behalf of respondents Nos. 1 to 3 and Sri G. N. Sharma on behalf of respondent No. 4. The main point on which stress is laid by Sri S. C. Agarwal on behalf of the petitioner is that the property in dispute was never declared to be evacuee property under sec. 1 of the Act. The foundation is therefore lacking for the Custodian authorities to call upon the petitioner to deliver possession of the property in dispute to them. It has been argued that under sec. 9 of the Act the Custodian can ask for surrender of possession of the property after it has been declared to be evacuee property. Unless and until the property is so declared, the Custodian authorities have no right to demand surrender of possession. It was also urged that under the Matsya Ordinance there was no provision for declaration of the property as evacuee property. The property of evacuees no doubt vested in the Custodian under sec. 4 of the Matsya Ordinance without any declaration, but its possession could not be taken by the Custodian unless a notice was published by the Custodian in the locality specifying the property of which he intended to take possession ; further where the property was occupied by any person, the Custodian had to give a notice in writing requiring such person to vacate the property and if that person claimed to be entitled to continue in possession of that property, the Custodian was bound to hold a summary inquiry and determine the claim. It was after this procedure that the custodian could take the possession of evacuee property under the Matsya Ordinance. In support learned counsel referred to sec. 6 of the Matsya Ordinance. It is further argued that even after the Custodian had taken possession of any property under sec. 6 from any person, such person was entitled to prefer a claim to the Custodian by an application within 15 days from the date on which the possession of the property was taken and if the Custodian after summary inquiry rejected the claim such person could appeal to the District Judge within one month of the making of the order and the decision of the District Judge on such appeal and subject only to such decision, the order of the Custodian was to be final. It was argued that as no action was taken under the Matsya Ordnance nor was any declaration made under sec. 7 of the Act, the Custodian authorities were not entitled to demand surrender of possession of the property in dispute. On behalf of the respondents it has been argued that the property in dispute vested in the Custodian of the Matsya State automatically and no declaration as required by sec. 7 of the Act was necessary. After such vesting of the property if the Matsya Ordinance had remained in force, demand for possession would have been made under sec. 6 of the Matsya Ordinance. As the said Ordinance was repealed before such possession could be taken, possession could be demanded u/s 9 of the Act and this is exactly what the respondents are now doing It was also argued that if the petitioner were aggrieved by the order of the respondents for surrender of possession of the property in dispute, he could appeal or make application for revision before appropriate authorities under the Act. We have considered the argument of the learned counsel for both the parties. It ii admitted that no declaration under sec, 7 of the Act has been made with respect to the property in dispute. Under sec 8 (1) of the Act any property shall be deemed to have vested in the Custodian for the State after it has been declared to be evacuees property under sec. 7. Sub-sec. 2 of sec. 8 of the Act, however, runs 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 Art 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: Provided that where at the commencement of this Act, there is pending before the High Court, the Custodian or any other authority for or in any State any proceeding under sec. 8 or sec. 30 of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1919), or under any other corresponding law repealed by the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949), then notwithstanding anything contained in this Act or in any other law for the time being in force, such proceeding shall be disposed of as if the definitions of 'evacuee property' and 'evacuee' contained in sec. 2 of this Act had become applicable thereto. " There is no doubt that if the property in dispute had vested in Custodian under the Matsya Ordinance, by virtue of subsec. 2 of sec. 8 of the Act, it would have been deemed to have vested in the Custodian under the Act and would have continued to so vest. Under sec. 4 of the Matsya Ordinance, of however, only evacuee property could vest in the Custodian. The definition 'evacuee property' in sec. 2 sub clause (c) of the Matsya Ordinance is as follows: - "evacuee property" includes all property in which an evacuee has any right or interest, but does not include any movable property in his immediate physical possession. " Sec. 2 (b) defines 'evacuee' as follows: - "evacuee" means a person ordinarily resident in or owning property or carrying on business within the territories comprised in the United State of Matsya, who on account of civil disturbances or the fear of such disturbances or the partition of the country: - (i) leaves, or has since the 1st day of March 1947, left the said territories for a place outside India or, (ii) cannot personally occupy or supervise his property or business. It, therefore, follows that the property in dispute could vest in the Custodian only if it were the property of an evacuee within the meaning of sec. 2 (b) of the Matsya Ordinance. Now if the property had been declared as an evacuee property under sec. 7 of the Art that would have been done after a notice provided by sec 7 and after giving an opportunity to the persons interested to show cause and after holding such inquiry into the matter as the circumstances of the case permit. If the property had vested automatically in the Matsya Custodian, he could only have taken possession of the property after following the procedure prescribed by sec. 6 of the Matsya Ordinance, and even if the Matsya Custodian had taken possession of the property, the claimant would have had an opportunity to prefer a claim to the Custodian who would have been obliged to make a summary inquiry before disponing of the application and if aggrieved by trie order of the Custodian, the claimant would have had a right to appeal to the District Judge whose decision would have been final, and the decision of the Custodian under sec. 7 (2) would have been final only subject to the appellate decision of the District Judge. In the present case there is no order of the Matsya Custodian that the property in dispute had vested in him. No proceedings were taken by the Matsya Custodian to demand possession of the property in dispute from the petitioner so that the petitioner might have no opportunity to object to the demand of possession by the Custodian. He had no opportunity to go to the District Judge for a final decision in the matter. Therefore it is too late new in the day to say that although no order of vesting was made by the Matsya Custodian and there were no proceedings under sec, 6 of the Matsya Ordinance, the property in dispute should be taken ipso facto to be evacuee property within the meaning of sec. 2 (c) of the Matsya Ordinance. The petitioner is quite justified in saying that the Matsya Custodian authorities not having taken any steps in respect of the property in dispute, the Custodian authorities are not entitled to say that they are entitled to take possession of the property in dispute and the petitioner had no right whatever to dispute that the property is not evacuee property. If we were to accept this argument of the learned counsel for respondents very unjust results would follow. It is a very serious invasion of a fundamental right to seize property in possession of a citizen of India without any compensation. The property can be seized without any compensation only if there is a valid law to that effect. About the properties declared to be evacuee properties under sec. 7 of the Act, there is a provision in sec. 7 of the Act which gives a reasonable opportunity to a claimant to object that the property is not evacuee property. The decisions of the Custodian authorities under sec. 7 have been made appealable under sec. 24 to higher Custodian authority. The decision under sec. 7 has in some cases been made appealable to the District Judge nominated in this behalf by the State Government. Before therefore the demand for delivery of possession is made by the Custodian authorities, a claimant has a right to be heard and the decision of the original authority is open to appeal. Under the Matsya Ordinance also this aspect of the matter had not been ignored that before possession is taken from a person a reasonable opportunity should be given to him to show cause against it, and even after possession had been taken, he had a right to be heard if he made an application before the original Custodian authority within 15 days and against the decision of the Custodian authority he had a right of appeal before the District Judge. Now in the present case the respondents want to have it both ways. They say firstly that there is no necessity for a declaration under sec. 7 because the property vested in the Matsya Custodian automatically and by virtue of sec. 8 2) of the Act the property now vests in the Custodian of the Rajasthan State. They say secondly that because the Matsya Ordinance has now been repealed, the petitioner has no right to object to surrender of possession and can have also no right to go to the District Judge against the decision of the Custodian if the possession is taken from him. We do not think that such an argument can be countenanced. The respondents have produced no convincing material before us beyond the reports of the Patwari and Girdawar to show that the property in dispute belonged both to Hindus as well as Muslims. In the absence of any order of the Matsya Custodian showing that the property in dispute was regarded as evacuee property under the Matsya Ordinance, we cannot take the report of the Patwari or Girdawar as ipse dixit for holding that the property in dispute is evacuee property within the meaning of the Matsya Ordinance. The prerequisite for the automatic vesting of the property in the Custodian under the Matsya Ordinance was that it should be evacuee property. There is nothing to show that when the Matsya Ordinance was in force, it was treated as such ; nor is there any convincing and cogent evidence to show that it was the property of Muslims and it cannot be said that it automatically vested in the Custodian under the Matsya Ordinance,
(3.) THE petitioner has filed a sale-deed in respect of the property in dispute. It has not been denied that the vendors of the property were atleast some of the owners of the property in dispute. It also appears from the record that the sale-deed is a registered deed and the petitioner has taken possession over the property in dispute and has erected a boundary wall around it. He is therefore entitled to retain possession of the property in dispute unless after appropriate proceedings the property in dispute is declared to be evacuee property. Learned counsel for the respondents has argued that the petitioner ought to have gone in appeal or revision to the higher Custodian authorities against the order of the respondents. On a reference to the Act, we find that there is no provision for an appeal against an order under sec. 8 (4) or (9) of the Act which deals with surrender of possession. Of course under sec. 26 a Custodian had powers of revision against the orders of the Assistant or Deputy Custodian and under sec. 27 the Custodian General had powers of revision against the orders of the Custodian. In the present case the action of the respondents is apparently so unauthorised that we would not dismiss the petition simply on the ground that the Custodian or Custodian General, as the case may be, had discretionary powers of interference in revision under secs. 26 and 27 of the Act and the petitioner did not avail of it. Moreover whatever remedy the petitioner had under sec. 26 of the Act had now been taken away by the Administration of Evacuee Property Amendment Act (Act No. LXLI) of 1956 by sec. 8 of which secs. 25, 26 and several other sections of the Act have been omitted. The petition is allowed, the order of respondent No. 1 directing respondent No. 3 to take action and the order of respondent No. 3, dated 11th February, 1956 are quashed and the respondents are directed not to ask for the surrender of possession of the property in dispute under the aforesaid orders. The petitioner shall get his costs from respondents 1 and 3 .;