IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16385 of 1990 (O&M) Date of decision: 30.05.2011 Gurdial Singh and another ...Petitioners versus The Union of India and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Sudhir Mittal, Advocate, for the petitioners. Ms. Kamla Malik, Advocate, for Mr. Anil Rathee, Advocate, for respondent No.1. Mr. Satbir Singh Goripuria, DAG, Haryana, for respondents 2 to 4. ---- 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. (Oral) 1. The petitioners seek for an issue of mandamus to quash the auction notice of the Managing Officer on behalf of the custodian under Displaced Persons (Compensation and Rehabilitation) Act of 1954 (for short, the '1954 Act'). Apprehending dispossession, the petitioners have sought for a direction that the property shall be transferred by the State of Haryana in favour of the petitioners. The issue involved in the case is whether the property is an evacuee property or whether it is a property escheated to the Government to which the provisions of Nazool Lands (Transfer) Rules, 1956 (for short, the '1956 Rules') applied. By the decision through this judgment, I have found that the impugned action Civil Writ Petition No.16385 of 1990 (O&M) - 2 - of the respondent was not tenable in law and the petitioners are entitled to a claim for consideration of transfer in the light of 1956 Rules. 2. The facts giving rise to the writ petition are that the property belonged to one Hansa son of Ram Lal and on his death in the year 1945, the property had become escheated to the Government. The Government had sold the property to the Khadi Board but the Khadi Board recovered back the consideration from the State and surrendered the property back to the Government. According to the petitioners, the property retained the character of 'Nazool Land' and treated as such by the Government through leases granted in favour of the petitioners. The document of lease itself is not produced but the petitioners contended that, in evidence of the lease, they have made the payment to the Tehsildar, Karnal from the year 1969 onwards, brought through P9 to P14. As evidence of possession even prior to this period and the character of the property as property belonging to the State Government, the petitioners produced the jamabandi for the year 1952-53 to show that the property belonged to the provincial Government meaning thereby that it was not treated as the property belonging to the Central Government or vested with the Central Government. Annexure P2 shows the continuance of the property of the provincial Government in the year 1952-53 and on 05.05.1964, the property has been shown to be in the hands of Cooperative Farms Society through Mukanda and Bhartu in equal shares as persons belonging to the Scheduled Caste community. There are receipts of the year 1969 that showed that cultivation had been carried out and documents have also been produced for the year 1969. Civil Writ Petition No.16385 of 1990 (O&M) - 3 - 3. Learned counsel argues that the property which was treated as Nazool Land and having been left in the hands of persons belonging to the scheduled caste, was liable to be transferred in favour of the cultivators if the property was less than 10 acres of land provided they did not own any other land. The counsel refers to Rule 3A of the 1956 Rules, that reads as follows:- “In a village where Nazool land available is less than 10 acres and is being leased to members of scheduled castes, it may be allotted to the present lessees, individually upto the limit of a unit of nazool land provided, they do not own any land of their own. Those who own some land, they may be allowed such area as would make up the unit of Nazool land as defined in the rules, when added to their own land, and the rest may be allotted to others.” Instead of effecting a transfer to the petitioners and making them owners in the manner contemplated by the Rules as aforesaid, the property is now sought to be dealt with, as though this was a property which was an evacuee property and liable for being auctioned under the 1954 Act. The cause of action for the writ petition was the auction notice issued by the Managing Officer-cum-Tehsildar (Sales), Karnal, for an action proposed to be held on 20.12.1990. 4. The learned counsel for the State would contend that though the property belonged to the provincial Government, it has been subsequently transferred to the Central Government and the property was correctly being dealt with as evacuee property and attempted to be Civil Writ Petition No.16385 of 1990 (O&M) - 4 - auctioned in public. The further contention is that the petitioners have not filed any document to show that lease had been granted in favour of the petitioners at any time and the production of receipts for payment of rents would themselves not prove that there had been any lease in favour of the petitioners. 5. I reject the contention of the State and hold that this property could not be treated as either evacuee property or a property vesting in the Central Government. The earliest entry of the year 1952 shows that the property had become the property of the provincial Government and the transaction of the year 1969 show that the property had been leased to the petitioners. The production of rents receipts are surely evidence of a pre-existing transaction of lease. The petitioners' right cannot be defeated unless it is established in defence by the State that the property vested in the Central Government by either statutory vesting or by any form of transfer known to law from the provincial Government to the Central Government. The revenue entries of the years 1952 and 1969 are themselves sufficient proof of the fact that the property was property treated as escheated and held as Nazool Land. The petitioners are also, therefore, entitled to compel the State to transfer the property in the manner contemplated under Rule 3 after satisfaction entered by the State that they owned no other land at the relevant time when the writ petition was filed. 6. The impugned notice is quashed and the second respondent is directed to initiate action for consideration of the petitioners claim under Rule 3 of 1956 Act. The Government shall take appropriate Civil Writ Petition No.16385 of 1990 (O&M) - 5 - decision under the Rules within 8 weeks from the date of receipt of copy of this order. 7. The writ petition is allowed to the above extent. (K.KANNAN) JUDGE 30 .05.2011 sanjeev