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2017 Supreme(UK) 385
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. JOSEPH, V.K. BIST, JJ.
Vikrant Chaudhary and Another. - Appellants
Versus
Shri Bhagwan Dass and Others. - Respondents
SPECIAL APPEAL NO. 1069 OF 2017
Decided On : 21-12-2017
For the Appellant :Mr. Arvind Vashisth, Senior Advocate assisted by Mr. Ashish Sinha, Advocate
For the Respondents:Mr. Siddharth Singh, Advocate, Mr. Rakesh Thapliyal, Assistant Solicitor General with Mr. Jay Vardhan Kandpal, Standing Counsel, Mr. Narain Dutt, Brief Holder, Mr. T.S. Bindra, Advocate for respondent no. 5.
The court emphasized the need for a final decision on the ownership of the allotted land and the applicability of relevant legal provisions, leaving all contentions open for reconsideration at the time of the final decision.
Headnote:
Evacuee Properties Act - Land Allotment - Section 7, Section 8
Fact of the Case:
The writ petition sought possession of allotted land under the Administration of Evacuee Properties Act, 1950. The appellants claimed ownership under sale deeds and sought shelter under Sections 209 and 210 of the U.P. Zamindari Abolition Act, 1950.
Finding of the Court:
The court set aside the interim decision, stating it had the trapping of a final judgment and repelled the issues raised by the appellants under Sections 209 and 210. The court left all contentions open for reconsideration at the time of the final decision.
Issues: The primary issues were the ownership of the allotted land under the Evacuee Properties Act and the applicability of Sections 209 and 210 of the U.P. Zamindari Abolition Act, 1950.
Ratio Decidendi: The court found that the interim decision had the characteristics of a final judgment and repelled the appellants' arguments under Sections 209 and 210, leaving all contentions open for reconsideration at the time of the final decision.
Final Decision: The impugned decision was set aside, and the writ petition was directed to be disposed of by the learned Single Judge.
K.M. Joseph, J.
1. Appellants are respondent nos. 7 & 8 in the writ petition. The writ petition was filed by the first respondent in this Appeal seeking the following relief:
“(a) issue a writ, order or direction in the nature of mandamus commanding the respondents No. 2 and 3 to deliver possession of the allotted land i.e. Khasra No. 119/3, admeasuring 0.024 hectare, Khasra No. 132/2 admeasuring 0.061 hectare, Khasra No. 283/1 admeasuring 0.340 hectare and Khasra No. 286/1 admeasuring 0.275 hectare, total land measuring 0.700 hectare, situated in Village Bagral, Dehradun, to the petitioner and also direct them to amend or incorporate change in the revenue records accordingly.”
2. The learned Single Judge passed the following interim order in the writ petition:
“An interesting question which crops up for consideration in this case is a conjoint interpretation of a Central Legislation along with the Legislation by the State, so far it relates to its applicability on land laws of the State.
2. It is not in dispute by any of the parties to the writ petition, that by exercising powers under Section 7 of the Administration of Evacuee Properties Act, 1950. A notification by way of declaring the property in question i.e. Plot No.283/1 and 286/1 was declared as an evacuee properties under the Act. Under the said act, the Custodian has been defined under Sub Section (C) of Section 2 who is the authority who has been defined with the power to declare a property as to be evacuee properties “within the meaning of the Act”. The process of declaration contemplated under Section 7, itself was adhered and it is yet again, no one’s case that the procedure provided therein was not complied with.
3. The Administration of Evacuee Properties Act, 1950 post independence had an intention to meet a situation which has arisen out of the creation of two dominions i.e. Pakistan and India, which has emerged out of the civil disturbances which occurred at the time of partition of the country. As a result of which, the people migrated to the places of their choice so as to make their satisfactory arrangement for their livelihood and a place for abode.
4. In this process, there was certain properties lying within the territorial domain of the country i.e. India, which was evacuated by the occupants/owners who ultimately migrated as a consequence of independence of two countries India and Pakistan. As a result of partition, a vacuum occurred as to the manner in which such a property which was left by evacuee was required to be dealt with and managed. Consequently, post independence period the Government of India framed the Act called as the Administration of Evacuee Properties Act, 1950. It goes without saying that theory of eminent domain will always prevail over such type of property which is evacuated as a consequences of army aggression or the separation of two dominions due to partition and that is why to provide an authenticity to the evacuee property and its status and a manner such property was to be dealt, a notification is contemplated under Section 7 of the Act. Consequently, vesting of such property declared as evacuee property under Section 7, is contemplated under Section 8 of the Act, which is quoted hereunder:-
“8. Vesting of evacuee property in the Custodian.-(1) Any property declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State,-
(a) in the case of the property of an evacuee as defined in sub-clause (i) of clause (d) of section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India;
(b) in the case of the property of an evacuee as defined in sub-clause (ii) of clause (d) of section 2, from the 15th day of August, 1947; and
(c) in the case of any other property, from the date of the notice given under sub-section (10 of section 7 in respect thereof.
(2) Where immediately before the commencement of this Act, any prop
