Full Judgment Text
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PETITIONER:
ABDUL QADIR
Vs.
RESPONDENT:
MANAGING OFFICER CUM ASSTT. CUSTODIAN OF EVACUEE PROPERTY,JA
DATE OF JUDGMENT22/10/1979
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
KOSHAL, A.D.
CITATION:
1980 AIR 89 1980 SCR (1) 993
1980 SCC (1) 146
ACT:
Displaced Persons (Compensation and Rehabilitation) Act
1954-S-20A(1) Explanation-Scope of.
HEADNOTE:
The appellant purchased a house in July, 1948. Although
neither the vendor nor the appellant was an evacuee within
the meaning of the Administration of Evacuee Property Act,
1950, the appellant was treated as an evacuee and the house
was declared evacuee property in 1951. In response to the
appellant’s petition filed in 1953, a certificate was
granted by the Government under the unamended provisions of
section 16 of the Act. When the appellant asked for
restoration of the house the Assistant Custodian passed an
order in 1957 granting restoration. In the meantime since
respondent No. 2 had been inducted as a tenant in the house
by the Custodian after it was declared evacuee property the
appellant was asked to take symbolic possession of the house
allowing the tenant to continue in possession.
Section 20A(1) of the Displaced Persons (Compensation
and Rehabilitation) Act, 1954 provided that where an evacuee
had made an application under section 16 of the Evacuee
Property Act, 1950 and the Central Government is of opinion
that it is not expedient or practicable to restore the whole
or any part of the property to the applicant, it shall be
lawful for the Central Government to pay to the applicant
the value of the property in cash from the compensation pool
in lieu of the evacuee property. The Explanation to this
section provided that the provisions of this sub-section
shall apply, whether or not a certificate for the
restoration of the evacuee property had been issued to the
applicant under section 16(1) of the 1950 Act.
The Central Government revised its earlier order dated
November 11, 1960 and gave compensation to the appellant
under section 20A of the 1954 Act.
The appellant’s writ petition challenging the order of
the Assistant Custodian was dismissed by the High Court.
Dismissing the appeal,
^
HELD: 1. According to section 16 of the 1950 Act, as it
stood before October 22, 1956, an application for
certificate was to be made to the Central Government. On the
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issuance of the certificate, restoration order-was made by
the Custodian of Evacuee Property. In the instant case the
certificate was issued on October 27, 1956. The High Court
was therefore right in holding that the certificate issued
in accordance with the old law was not valid. [995 D-F]
2. The provisions of section 20A(1) have got the over-
riding effect by virtue of the Explanation appended to it
even after a certificate for the restora-
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tion of the evacuee property had been issued to the
applicant on October 27, 1956. In spite of the certificate
it was open to the Central Government not to allow
restoration of the house to the appellant and to pay him
compensation only. The Central Government has adopted the
latter course. Respondent No. 2, a displaced person, was
inducted as a tenant in the property a long time back. The
property was sold to him by the Custodian. In such a
situation it was just and proper to refuse restoration of
the property to the appellant and to pay him only
compensation. [996 F-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2233 of
1969.
From the Judgment and Order dated 11-3-1968 of the
Rajasthan High Court in Writ Petition No. 126/62.
Sobhagmal Jain and S. K. Jain for the Appellant.
E. C. Agarwala and Girish Chandra for the Respondent.
The Judgment of the Court was delivered by
UNTWALIA, J. This is an appeal by certificate by Shri
Abdul Qadir from the judgment of the Rajasthan High Court
dismissing his Writ Petition. The house in question belonged
to one Mohammed Amin Khan. The appellant purchased the house
from the said owner on 10-7-1948 for Rs. 12,000. It appears
that neither the appellant nor Mohammed Amin Khan was an
evacuee within the meaning of the Administration of Evacuee
Property Act, 1950, hereinafter called the Evacuee Property
Act. But under some mistaken notion probably the appellant
was treated as an evacuee and the house was declared as an
evacuee property on 15-11-1951 in accordance with the
Evacuee Property Act. After such declaration the question
that the property was an evacuee property could not be
reopened and became final. Upon that footing the appellant
filed an application on 26-9-1953 under section 16(1) of the
Evacuee Property Act, as the section then stood, for grant
of a certificate. On 27-10-1956 the Central Government
granted a certificate under the unamended provision of law
contained in section 16. Pursuant to the above the appellant
made an application to the Assistant Custodian of Evacuee
Property for restoration of the house under sub-section (2)
of section 16. The Asstt. Custodian, respondent no. 1 passed
an order on 18-3-1957 restoring the house to the appellant.
But before that Shri Ajjumal, respondent no. 2 had been
inducted as a tenant in the house by the Custodian after it
was declared as an evacuee property. The appellant was
directed to take symbolic possession of the house allowing
the said tenant to continue in its occupation on receipt of
rent from him.
The appellant came to know later that on 11-11-1960 the
Central Government passed an order under section 20A of the
Displaced Persons (Compensation and Rehabilitation) Act,
1954, hereinafter
995
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referred to as the Displaced Persons Act, whereby it was
ordered that in respect of the house in question action be
taken in accordance with the said provision of law. On 6-12-
1960 the Central Government ordered that it had revised its
order dated 11-11-1960 and the petitioner was entitled to
compensation only under section 20A of the Displaced Persons
Act. In the Civil Suit filed by the appellant against
Ajjumal it transpired that a sale deed had been executed in
his favour as he was a displaced person in occupation of the
house and the appellant was entitled to compensation only.
He, therefore, filed a writ petition in the High Court to
challenge the action of the Assistant Custodian, respondent
no. 2 and the Union of India, respondent no. 3.
The writ case was contested by all the respondents and
it was asserted that Ajjumal being a sitting allottee had to
be rehabilitated and the appellant was entitled to
compensation only.
The High Court has quoted s. 16 of the Evacuee Property
Act as it stood prior to 22-18-1956 and the section as it
came into force after that date. It has rightly pointed out
that there was a change of procedure in the two provisions.
According to section 16 as it stood before 22-10-1956 the
application for certificate was to be made to the Central
Government and the Central Government in its discretion was
to issue the certificate. On the issuance of such a
certificate after following certain procedure the
restoration order had to be made by the Custodian of the
Evacuee Property. In the present case only a certificate was
issued on 27-10-1956. The High Court is right in holding
that the certificate so issued in accordance with the old
law was not valid. Attempts were made before the High Court
to show that the said certificate was issued pursuant to an
order alleged to have been made on 1-10.1956. The High Court
was not satisfied about the correctness of this new stand.
Nothing could be pointed out to us to persuade us to take a
view different from the one taken by the High Court in
regard to the question of the invalidity of the certificate
issued in favour of the appellant on 27-10-1956.
There is another difficulty in the way of the appellant
and that comes in because of the provision of law contained
in section 20A of the Displaced Persons Act. The said
section also had undergone a change from time to time and at
the relevant time sub-section (1) of section 20A stood as
follows:-
(1) Where any evacuee or his heir has made an
application under Sec. 16 of the Evacuee Property Act
and the Central Government is of opinion that it is not
expedient or
996
practicable to restore the whole or any part of such
property to the applicant by reason of the property or
part thereof being in occupation of a displaced person
or otherwise, then, notwithstanding anything contained
in the Evacuee Property Act and this Act, it shall be
lawful for the Central Government-
(a) to transfer to the applicant in lieu of the
evacuee property or any part thereof, any
immovable property in the compensation pool or any
part thereof, being in the opinion of the Central
Government as nearly as may be of the same value
as the evacuee property or, as the case may be,
any part thereof, or
(b) to pay to the applicant amount in cash from the
compensation-pool in lieu of the evacuee property
or part thereof as the Central Government having
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regard to the value of the evacuee property or
part thereof may, in the circumstances deem fit.
Explanation:- The provisions of this sub-section shall
apply, whether or not, a certificate for the
restoration of the evacuee property has been issued to
the applicant under sub-sec. (1) of sec. 16 of the
Evacuee Property Act, as in force before the
commencement of the Administration of Evacuee Property
(Amendment) Ordinance, 1956, if the evacuee property
has not in fact been restored to the applicant."
It would be noticed that the provisions of section 20A (1)
have got the over-riding effect by virtue of the Explanation
appended to it even after a certificate for the restoration
of the evacuee property had been issued to the applicant on
27-10-1956. In spite of the certificate it was open to the
Central Government not to allow restoration of the house to
the appellant and to pay him compensation only. The Central
Government has adopted the latter course. Respondent No. 2,
a displaced person, was inducted as a tenant in the property
long time back. The property was sold to him also by the
Custodian. In such a situation it was just and proper to
refuse restoration of the property to the appellant and to
pay him compensation only. But we were informed that the
amount of compensation payable to the appellant has been
determined at a somewhat low figure being in the
neighborhood of Rs. 8,000 only. The appellant had
997
purchased the house for Rs. 12,000 in the year 1948. In that
view of the matter we recommend for consideration of the
Government whether it would be possible for them to enhance
the amount of compensation at least to the figure of Rs.
12,000. The matter is finally within their jurisdiction and
they may decide it as they think it fit and proper to do.
For the reasons stated above this appeal fails and is
dismissed but without costs.
P.B.R. Appeal dismissed.
998