Land held by tenants at will cannot be considered as evacuee property under the Administration of Evacuee Property Act, 1950.

( 1 ) THIS petition under Articles 276 and 227 of the Consti- tution is by petitioners who claim to be the owners of 19 Bighas and 8 Biswas of land comprised in Khasra No. 687 situate in village Peer Kamaria, Tehsil Tibi, District Sri Ganganagar. It is claimed that the father of petitioners Shri Peer Ditta, from whom the petitioners claim title to the land, was a co-share r of the Khewat, having jointly purchased the property along with the other co-sharers. S/shri Noora and Pathana were Gair Dakhilkars and tenants at Will on the plots in question. Both Noora and Pathana migrated to Pakistan and the plot in question was incorrectly treated as evacuee property and mutated in favour of the President of India as owner. The petitioners contend that on coming to know of the wrong entry made in favour of the President of India they took steps for getting the property back. It is not disputed that in the year 1967 the third respondent Harkishan Dass made an application for allotment of this land under Displaced Persons (Compensation and Rehabilitation) Act, 1954, being a displaced person from Pakistan and being owner of agricultural land which he left behind. On August 29, 1967, about 19 Bighas and 4 Biswas were allotted to the third respondent against the aforesaid compensation claim.

( 2 ) THE petitioners preferred a Revision Petition under Section 27 of the Administration of Evacuee Property Act, 1950, against the alleged vesting of the property in the custodian. The Deputy Custodian General by his order dated February 23, 1968, allowed the revision petition and remitted the matter to the Assistant Custodian for redetermining the evacuee nature or otherwise of the property after giving the petitioners an opportunity of being heard. Even after remand the petitioners did not succeed as the Assistant Custodian after hearing the petitioners and considering the evidence on record rejected their claim and confirmed the evacuee nature of the land. This order was passed by the Assistant Custodian on May 31, 1971. The petitioners feeling aggrieved by the order of the Assistant Custodian filed an appeal before the Deputy Custodian General. The Deputy Custodian General by his order dated September 25,1972, also rejected the revision petition. It is this order of the Deputy Custodian General which has been impugned in this petition.

( 3 ) LEARNED Counsel appearing for the petitioners submitted that Noora and Pathana did not acquire any right in the land as they were tenants at Will and, therefore, the land could not be treated as evacuee land. He also submitted that the view of the Deputy Custodian General that Section 18 of the Administration of Evacuee Property Act, 1950, ( for short the Act ) was applicable, is not correct. Learned Counsel has placed reliance on a Division Bench decision of the Punjab High Court in Prem Sarup Bansal and Others v The Additional Custodian of Evacuee Property, Punjab Jullundur, and Others (CWP No. 108/56, decided on March 28,1957 ).

( 4 ) RESPONDENTS 1 and 2 have filed a counter-affidavitin which it is brought out that excepting4 Bighas and 10 Biswas, the entire agricultural land was in possession of Noora and Pathana. Counter-affidavit further avers that as per Jamabandi for the year 2003 Noora and Pathana (evacuees) were Gair Dakhilkars. On their migration to Pakistan the land having become evacuee was allotted to the third respondent against his claim for the aforesaid compensation, it is further stated that the land in question was allotted to the third respondent on August29,1967, and possession of the same was taken by the third respondent on October 6, 1967, from the second respondent. It is also pointed out in the counter-affidavit that the petitioners applied for certified cupy of the impugned order only on April 9, 1973 even though they were aware of the order prior to this date. It is further contended that the petition was not filed promptly.

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