IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8286 of 1991 (O&M) Date of decision: 22.07.2011 Shiromani Gurdwara Prabandhak Committee, Amritsar, through its General Attorney Shri Gurcharan Singh, Assistant Secretary, Sub Office, Chandigarh. ...Petitioner versus Custodian General Punjab-cum-Deputy Secretary to Govt. Punjab Rehabilitation Department, Sector 22-B, Chandigarh and another. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Sukhbir Singh, Advocate, for the petitioner. Mr. N.S.Pawar, Additional Advocate General, Punjab. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. 1. The petition is at the instance of Shiromani Gurdwara Prabandhak Committee (SGPC) seeking for quashing of the proceedings of the Financial Commissioner (Appeals), Punjab, passed on 18.05.1990. The impugned order had been passed in revision filed by the petitioner against the orders passed under the Administration of Evacuee Property Act of 1950, seeking for release of the property from the central pool. 2. The contention of the petitioner is that the property had been purchased several decades back in the historic town of Tarn Taran and Civil Writ Petition No.8286 of 1991 (O&M) - 2 - hospital for lepers was established. It was being maintained from generation to generation and they were held in the possession of various persons, who had this affliction. It appears that there arose disputes in the year 1923 between Shri Darbar Sahib which was actually maintaining it and the persons, who were in actual occupation. In a representative suit brought at the instance of persons in occupation, a compromise was entered into that became a decree of the Court holding that the property would be allowed to be continued in their possession free of obstruction and if ever they abandoned the same, the property will revert to Shri Darbar Sahib. 3. After coming into force of the Sikh Gurdwara Act of 1925, Shri Darbar Sahib, Tarn Taran was notified as a Sikh Gurdwara along with the properties held by it, including the property in question which stood entered as 'abadi jazamian'. The revenue entries continued as such from 1921-22 to 1951-52. It also bears out from the record that the claim of exclusive title by 5 of the occupants, who had this affliction, had filed petition under Section 5 of the Sikh Gurdwara Act and the Tribunal also affirmed the compromise already entered into on 24.02.1931, where the ownership of the property with the Gurdwara stood reiterated and the sick persons had been recognized with the right of occupation. 4. After the partition and the passing of the Administration of Evacuee Property Act of 1950, the property was shown as evacuee property. The petitioner appears to have made a claim in the year 1959 for the release of the property in dispute as belonging to Shri Darbar Sahib. The Assistant Custodian rejected the application on 31.08.1961. Civil Writ Petition No.8286 of 1991 (O&M) - 3 - An appeal was preferred and later remanded on 27.06.1963. The Assistant Custodian again dismissed the application, but on appeal before the Deputy Custodian, it was remanded again on 28.10.1968. The petition came to be dismissed again on 23.09.1981 and the revision had been filed to the Financial Commissioner (Appeals), who confirmed the order passed by the Custodian General on 18.05.1990. It is this order which is in challenge in this writ petition. 5. There is no doubt about the fact that the property had been referred to as the property belonging to SGPC with the actual possession being held by certain persons, who had the physical affliction. The learned counsel appearing on behalf of the petitioner states that the custodian had no power to treat the property as evacuee property as his jurisdiction was excluded by Section 37 of the Sikh Gurdwara Act of 1925. According to him, the Civil Court decree and still later, the Tribunal constituted under the SGPC Act, had recognized the ownership of the property with the Sikh Gurdwara. The custodian himself had no competency to treat the property as evacuee property falling within the central pool. 6. The exclusion of jurisdiction as claimed by the petitioner, in my view, is not correct. Section 37 of the Sikh Gurdwara Act, 1925 reads as follows:- “37. Courts not to pass an order or grant or execute a or decree inconsistent with decision of a tribunal:- Except as provide in this Act no Court shall pass any order or grant any decree or execute wholly or partly, any order or decree, Civil Writ Petition No.8286 of 1991 (O&M) - 4 - if the effect of such order, decree or execution would be inconsistent with any decision of a tribunal, or any order passed on appeal therefrom, under the provisions of this part.” The said provision lends primacy to the decision of the Tribunal under SGPC Act. It does not exclude the power of a Custodian. On the other hand, the Administration of Evacuee Property Act contains Section 4 which is operative, notwithstanding anything contained in any other enactment. In my view, the said Section 4 overrides the power of any other Tribunal to decide on the character of property and the jurisdiction will vest only with the authority constituted under the Administration of Evacuee Property Act. Section 4 reads as follow:- “4. Act to override other law.- (1) the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. (2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from, any property shall apply, or be deemed ever to have applied, to evacuee property.” It is, therefore, necessary to turn to the provisions of the Administration of Evacuee Property Act of 1950. The “evacuee property” is defined under Section 2(f) as follows:- “evacuee property” means any property of an evacuee Civil Writ Petition No.8286 of 1991 (O&M) - 5 - (whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity), and includes any property which has been obtained by any person from an evacuee after the 14th day of August 1947, by any mode of transfer which is not effective by reason of the provisions contained in Section 40, but does not include- (i) any ornament and any wearing apparel, cooking vessels or other household effects in the immediate possession of an evacuee; (ii) any property belonging to a joint stock company, the registered office of which was situated before the 15th day of August 1947, in any place now forming part of Pakistan and continues to be so situated after the said date.” 7. Since the property shall be the property of evacuee, the definition of “evacuee” under Section 2(d) shall be seen to include any person who on account of the setting up of the Dominions of India and Pakistan has left India after 1st March, 1947. It is an admitted fact that the afflicted persons, who were staying at the property, had gone away to Pakistan. The evacuee property includes not only the property which was held in possession by an evacuee as an owner but property held “in any other capacity”. The key requirement is only that the property is held in possession of an evacuee irrespective of ownership. The fact that the Sikh Gurdwara was the owner shall not detract from the character of the property as evacuee property. The evacuee property that is declared Civil Writ Petition No.8286 of 1991 (O&M) - 6 - under Section 7 shall become vested in the custodian. It is again an admitted fact that the property had been notified under Section 7 though it is stated faintly that no notice had been given to the petitioner. The claim to the property as the exclusive property and that the property will not vest in the custodian, therefore, not tenable at all in the light of the express provisions of the Administration of Evacuee Property Act. 8. However Section 11 contains special provisions with reference to certain trust properties. It is brought through record that the petitioner had himself filed a petition under Section 92 CPC for administration of property in trust before a Civil Court. The suit was dismissed, the appeal was dismissed and second appeal to this Court was also dismissed, citing the exclusive jurisdiction under the Sikh Gurdwara Act. This is cited only to refer to the character of property as asserted by the petitioner as a trust property meant for public charity. If it is a trust property, then the appropriate consideration must have been under Section 11 of the Evacuee Property Act for which special provisions have been made. Section 11 reads as follows:- “11. Special provisions with respect to certain trust properties.- (1) Where any evacuee property which has vested in the Custodian is property in trust for a public purpose of a religious or charitable nature, it shall be lawful for the Central Government, notwithstanding anything contained in the instrument of trust or any law for the time being in force, to appoint by general or special order, new trustees in place of the evacuee trustees and the property Civil Writ Petition No.8286 of 1991 (O&M) - 7 - shall remain vested in the Custodian only until such time as the new trustees are so appointed; and pending the appointment of such new trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as far as possible, the purpose of the trust. (2) In respect of any Wakf-alal-aulad.- (a) Where the mutawalli is an evacuee, the property forming the subject matter of the wakf shall vest in the Custodian subject to the rights of the beneficiaries under the wakf, if any, who are not evacuees; (b) Where not all the beneficiaries are evacuees, the rights and interests of such of the beneficiaries as are evacuees shall alone vest in the Custodian.” It shall always be lawful for the Central Government to appoint new trustees in the place of evacuee trustees and shall remain vested in the custodian till such time new trustees are appointed. The proper consideration must have been, therefore, under Section 11. This aspect of the case has not been considered at all. 9. Under the circumstances, even while rejecting the contention of the petitioner that the property did not come within the purview of the Administration of Evacuee Property Act and that it was the exclusive property that belonged to the petitioner, I direct that the matter is remitted to the Financial Commissioner (Appeals) for consideration of the claim of the petitioner under Section 11 of the Administration of Evacuee Property Act. Civil Writ Petition No.8286 of 1991 (O&M) - 8 - 10. The impugned order is modified and the case is remitted to the Financial Commissioner (Appeals), Punjab, for consideration of the case in accordance with law and in the light of the relevant provisions of the Administration of Evacuee Property Act. 11. The writ petition is disposed of. (K. KANNAN) JUDGE 22 .07.2011 sanjeev