C.W.P. No.1613 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.1613 of 1989 Date of Decision: 13.05.2010 Surjit Singh son of Sadhu Singh ........Petitioner Versus Financial Commissioner Revenue & Secretary to Govt. Punjab, Rehabilitation Department with delegated powers of Central Government under Section 33 of the Displaced Persons (C & R) Act, 1954 and another ....Respondents Present: Mr. Narinder, Advocate for Mr. G.S. Nagra, Advocate for the petitioner. Mr. Manohar Lall, Addl. A.G., Punjab for respondent No.1. None for the respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J.(ORAL) 1. The petitioner challenges the order passed by the Financial Commissioner on 02.08.1988 modifying the decision made by the Deputy Commissioner by his earlier order dated 27.12.1987 under the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The property had been allotted to the petitioner's father on a claim by him that he was a displaced person from the place now in Pakistan at the time of partition. The matter had come before the Deputy Commissioner on a reference from the Tehsildar, Nawanshahr C.W.P. No.1613 of 1989 -2- that the petitioner's father Sadhu Singh had made a false representation that he was an evacuee and the investigations showed that he was only a local resident. The Deputy Commissioner, however, rejected the reference and ordered filing the case without any further action by observing that the original allottee Sadhu Singh was not even alive and the cancellation of the allotment after his death could not have been made when his son was actually in possession of the property. This order of the Deputy Commissioner was sought to be challenged at the instance of a third party Hajara Singh contending that the allotment made in favour of the petitioner's father on 27.04.1961 was illegal as having been made to a person, who was not entitled under the provisions of the Act. The said person had himself not shown that he was entitled to any interest in the property. Under the circumstances, the Financial Commissioner held that it was not necessary to interfere with the orders of the Deputy Commissioner but still held that the petitioner had raised substantial construction on the taur and it would cause enormous hardship to undo such construction at such a belated stage. He, therefore, ordered that any portion of the plot in dispute, which had been covered by construction shall be allowed to remain and the balance of area at the disputed place, should be disposed of afresh by the department in accordance with law. It is this order which is in challenge before this Court. 2. The learned counsel does not improve upon the situation to provide any evidence that he or his father was a migrant from the place, which is now in Pakistan. However, he relies on a statement C.W.P. No.1613 of 1989 -3- of the Deputy Chief Settlement Commissioner, Ministry of Rehabilitation that held that if a super-structure belonged to an evacuee and the site was to non-evacuee or vice versa, the transfer of the evacuee super structure or site as the case may be could be made to a non-evacuee owner. This proceeding will apply only in cases where one or the other owners of either the site or the construction belongs to an evacuee. We are not dealing with such a situation. The property is claimed by a person, who had not shown that he was displaced person and therefore, if only we are dealing with a property, which had been allotted to an evacuee and the person, who had put up a construction was a non-evacuee, then it would become possible for a non-evacuee to seek for an allotment of the evacuee property. This property had not been allotted to any other person but his own father. The land and the construction were claimed by the same person. The learned counsel also refers to communications sent by Rehabilitation Department to all the Tehsildars on 19.10.1985 that dealt with a transfer of evacuee sites in the unauthorized occupation of non-allottees, who have built houses thereon. The memorandum addresses only to a situation whether an occupant of an evacuee site shall actually remain in continuous physical possession and whether the rent is chargeable from him. It was answered that it was not necessary to retain continuous physical possession, for even a person who leases the property would obtain such a benefit. It could be seen that the subject heading mentioned therein is a little misleading, for what is dealt with in the memorandum was only the reference to the issue C.W.P. No.1613 of 1989 -4- whether a person must show himself to be in physical possession of evacuee site to claim a right of transfer. The impugned order has already protected the interest of the petitioner to the extent to which the construction is put up. He has directed the disposal of only the remaining property in the manner known to law and as per the rules. 3. The decision, which is impugned is fully justified under the facts and circumstances and while determining the extent of possession, which the petitioner is entitled to hold, the authorities may consider any portion of property, which is a necessary appurtenant to the building that has come up to be also allotted to the petitioner so that there is no inconvenience caused to the petitioner to enjoy the property with sufficient access from the road. 4. Subject to this observation, the impugned order is confirmed. The writ petition is dismissed. There shall be, however, no direction as to costs. (K.KANNAN) JUDGE May 13, 2010 Pankaj*