Gokul Chand (Since Deceased) ... vs Gulab L. Ajwani And Ors.
1999 Latest Caselaw 520 Del

JUDGMENT

C.M. Nayar, J.

1. The present petition under Article 226 of the Constitution of India has been filed for issuance of a writ of certiorari for calling the records of respondents 1 and 2 and for quashing the order of respondent No. -1 dated 20th October, 1976 in Case No. 18-R/D:H/76(GLA) and for a further relief in the nature of writ of prohibition directing the respondents not to treat the property bearing Municipal No. XII/5801-5803 constructed on Khasra Nos. 282 and 745/581 as evacuee property and for restraining from collection of rent from the petitioner and his tenants. The petitioner who is now represented by his legal representatives was alleged to be the owner of 5 Biswas of land out of Khasra No. 282 and 15 Biswas of land out of Khasra No. 745/581 in Patti Chandrawal, Tehsil and District Delhi. The petitioners' father and now the petitioners are stated to be in possession of the said land since the founding of the village. It is further submitted that the petitioner lived in a part of the property and other portions are let out to the tenants who hold the same under the petitioner. The Municipal records have indicated the petitioner as the owner of the properties and he is stated to be paying house tax for the same. Copies of the Khasra Girdawaries for the years 1972-73, 1973-74, 1974-75 and 1975-76, house tax demands and the receipt of part payments of the same and a list of tenants have been attached as Annexures Al to A6 to the writ petition, the other facts as referred to in paragraphs 2, 3, 4 and 5 of the writ petition read as follows :

"2. On 6.6.1967 the petitioner filed an application before the Collector, Delhi stating that the petitioner was in possession of about 1300 sq. yards of land in Patti New Chandrawal, Delhi for the last 50 years, and houses bearing Municipal Nos. 5801-5803 belonging to him were also situated on the said land; that he was in possession, was assessed to house tax for the said houses and he was in possession of receipts showing payment of house tax upto 31.5.1967, but in the Khasra, Girdawari his name was not recorded or verified as a person in possession of the land. Instead the names of 8 others were entered in Khasra Girdawari. He prayed that his name may be ordered to be recorded in the relevant Khasra Girdawari. A copy of this application is attached as Annexure A-7. It was marked by the Collector to the Revenue Assistant for early report. The Revenue Assistant forwarded it to the Tehsildar for enquiry. The Tehsildar called for the report of the Girdawar Kanungo. The Girdawar Kanungo and the Patwari visited the spot on 8.6.1967 and verified the fact of the petitioner's possession on the land in question and the houses standing thereon- The Tehsildar thereafter on 13.6.1967 submitted his report to the effect that the land in question was situated in an urban area and was governed by the provisions of the Land Revenue Act and the houses situated thereon were assessed to house tax to the Corporation. He stated, "I am personally of the opinion if the possession of the occupiers were recorded in the urban area in the Khasra Girdawari, there may be numerous cases of similar type." He attached an extract of the Khasra Girdawari with his report. The copies of the petition dated 6.6.1967, the order of the Revenue Assistant dated 7.6.1967 the report of Raghbir Singh Girdawar Kanungo dated 8.6.1967 and the report of the Tehsildar dated 13.6.1967 are attached as Annexures A-7 to A-10 to this writ petition.

3. On the receipt of the report of the Tehsildar dated 13.7.1967 (Annexure A-10) Sh. K.N. Srivastava, Revenue Assistant, Delhi, held that there were 70 co-sharers in the entire Khasra (Khasra No. 745/581 measuring 19 Bighas and 11 Biswas) and the petitioner and other co-sharers had constructed their houses as per the entries in Jamabandi prepared in 1960-61 and the Khasra No. is recorded to be "Gali Mumkin Abadi" is a joint property in possession of "Malkan Patti Chandrawal". He found that the entry of only 8 co-sharers by the Patwari was dishonest. He therefore on 24.6.1967 recommended that this Khasra No. like before be shown as in the joint possession of all the co-shares and the names of the eight persons inserted by the Patwari be deleted and the Patwari should be charge-sheeted on this account. The report of the Revenue Assistant was submitted to the Deputy Commissioner through the Additional District Magistrate (R). The Additional District Magistrate (R) observed that though the character of the land had changed completely and the ownership of the property must have been shown in the Municipal record, there should be no harm to approve the suggestion of the Revenue Assistant. This note of the Additional District Magistrate was seen by the Deputy Commissioner. True copies of the report of Shri K.N. Srivastava the Revenue Assistant dated 24.6.1967, the report of the remarks of Sh. V.P. Singh, Additional District Magistrate (R) dated 26.6.1967, and the order of the Deputy Commissioner are attached as Annexures A-11 and A-12 to this writ petition.

4. That Mr. Hakum Singh, father of respondent No. 4 and others filed a revision under Section 16 of the Punjab Land Revenue Act before the Judicial Secretary, Delhi Administration against the order of .the Deputy Commissioner dated 26.6.1967. Mr. R.K. Banerjee, Judicial Secretary, by his order dated 24.2.1968 accepted the revision, set aside the impugned order and directed that after giving the revision petitioners an opportunity of being heard, a fresh decision be made. A true copy of the order of the judicial Secretary dated 24.2.1968 is attached as Annexure A-13 to this writ petition.

5. On the matter coming up for redecision after the remand, Mr. K.N. Srivastava, Revenue Assistant by his order dated 13.11.1968 held that under para 9.3 of the Punjab Land Record Manual which was applicable to this area being an urban area the Girdawari should be dealt with by the Patwari in the usual way at the time of ordinary Girdawari and by this be understood that the particular area was used as residential or agricultural land should be recorded at the time or usual Girdawari. He further found that he recording of specific possession in case of residential areas was not envisaged by the Land Record Manual. He therefore upheld the previous order and ordered the name of the eight co-sharers should be deleted. A copy of the order of Sh. K.N. Srivastava dated 13.11.1968 is attached as Annexure A-14 to this writ petition."

2. In paragraph 7 it is stated that property Nos. 5801-5803, Municipal Ward No. XII, Delhi belonging to the petitioner were situated in a part of Khasra No. 282(5 Biswas) and a part of Khasra No. 745/581 (15 Biswas). The main dispute which is the subject matter of the present controversy is with regard to Khasra No. 283 which respondents 1 and 2 allege has been declared as an evacuee property. The petitioner intended that he never had anything to do with the land comprising Khasra No. 283 which bears presently Khasra No. 276/5. The land in Khasra No. 276/5 is at a distance from the petitioner's properties and is presently in occupation of Shri Lakhpat Rai, son of Nathu and Sri Ram and Ho Ram, sons of Hakum Singh and Chander Vaid and their tenant. The land comprising Khasra No. 283 measuring 11 Biswas belonged to Mohd. Afrin and the said properties were evacuee properties and were being alleged to be used by some unauthorised persons. The petitioner is stated to have received notice on 21st October, 1975 from the Managing Officer to furnish certain particulars to the Department. The said notice is annexed as Annexure-A26 to the writ petition and the same reads as follows :

"No. MO/R/283/Chandrawal/75

GOVERNMENT OF INDIA

MINISTRY OF SUPPLY & REHABILITATION

(SETTLEMENT WING)

JAMNAGAR HOUSE, NEW DELHI DATED: 21.10.1975              

MEMORANDUM

Whereas per data of this department the property No. 283 Chandrawal is being shown as undisposed, has come to my notice that you are in possession of the above said premises.

You are, hereby requested to contact the undersigned on 28.10.1975 at 2.30 p.m. in connection with this property. In case the property has been purchased/ restored, the copy of the sale certificate or other relevant documents may please be shown.

Please bring alongwith you restoration order.

MANAGING OFFICER"

3. The petitioner felt aggrieved by the notice and filed a revision petition before the Deputy Custodian General of Evacuee Property, New Delhi who vide his order dated 20th October, 1976 disposed of the same. The basic plea which was agitated before the authority was that the deceased petitioner did not have anything to do with the property bearing Khasra No. 283 but only was the owner of built up structures on the property bearing Khasra Nos. 282 and 745/581 though it was described by the Custodian as Khasra No. 383.

4. The first question which requires to be considered is as to whether property bearing Khasra No. 283 is an evacuee property and the ownership accordingly has vested in the Custodian General of Evacuee Property. The learned Deputy Custodian General recorded finding in this regard in paragraph 17 and clearly held that property comprising Khasra No. 283 is an evacuee property and the petitioner did not have any right, title or interest in the same. Paragraphs 17 and 18 of his order reproduced as under:

"17. I have considered the contentions raised on the two sides extensively and it seems to me that the basic point is regarding Khasra No. 283 which is an evacuee property for which a notice has been issued to the petitioner claiming damage charges. Throughout the course of proceedings on record, it is clear that Khasra No. 283 has not been claimed by the petitioner and that Khasra No. 283 is distinct/ different from Khasra Nos. 282, 745/581 claimed by the petitioner and is at a different place with a different area. Mr. Bahri, Counsel for the petitioner has himself said that even if the property is situated at Khasra No. 283, it had been taken as evacuee property in 1975. I am afraid, this is not the correct position. The property already stands vested in the Custodian as is clear from the copies of Jamabandis cited by the Counsel for the respondents and there is thus no question of the property being taken over as evacuee property at this stage as indeed no property could be declared as evacuee property after the amendment of the Act in 1954. Thus, there would appear to be no substance in the contention of the Counsel for the petitioner that the property could not be taken over as evacuee property.

18. From the mass of evidence produced in respect of Khasra No. 283, it is clear that the property was entered in the name of the Custodian after he had taken it over as evacuee property on the migration of its owner Shri Feroz-ul-Afrin to Pakistan. In this respect the entries in the Jamabandi for the year 1949-50 are significant, as the name of the owner Shri Feroz-ul-Afrin is shown aginst the property but its management is shown to be of the Custodian. There is repetition of these entries over several years cited by the Counsel for the respondents as well as by the Department's representative. It follows that so far as Khasra No. 283 in respect of which a demand has been placed on the petitioner by the Managing Officer (R), is concerned it is evacuee property and the petitioner has certainly not claimed any interest or ownership of Khasra No. 283. The 'Aks Shajra' and 'Field Book alongwith several other documents produced by the respondents in the present case are significant. There would also appear to be a point in what Shri Banga has said regarding Shri Gokul withdrawing his application for demarcation, when presumably, he found that Khasra No. 283 did not fall in Khasra No. 282, 745/581, as a result of the spot visit for demarcation by the Patwari. This speaks circumstantially against the petitioner, v/ho has not offered any satisfactory explanation for it. Petitioner had not been able to link Khasra No. 283 with his property. Further, as the petitioner did not claim Khasra No. 283 as evacuee property, he could not possibly challenge its having been taken over/treated as evacuee property Khasra No. 283, as the evidence on record shows, was clearly owned by a Muslim Feroz-ul-Afrin and rightly vested in the Custodian of Evacuee Property, after Feroz-ul-Afrin became an evacuee on migration from India."

5. The reading of the above will, therefore, substantiate that the petitioner has no

right, title and interest in Khasra No. 283 which is held to be an evacuee property and indeed has not claimed any such right over the same. The finding of the Deputy Custodian General of Evacuee Property, therefore, does not require interference and is, accordingly, affirmed. However, the petitioner has only made claim of property comprising in Khasra No. 282 and 745/581 over which he built the structures and did not press that he had any right, title or interest in property comprising Khasra No. 283. In this view of the matter it was necessary for the Custodian General to record finding as to whether the petitioner ever encroached on Khasra No. 283 or built any structure on the same to claim rent in respect thereof on the basis that it was an evacuee property. On the other hand learned Counsel for the petitioner has referred me to the statutory demarcation of the property which was conducted under Section 101 of the Punjab Land Revenue Act wherein Revenue Officer (Field Kanungo) has recorded his findings that the petitioner was not in any manner in occupation of Khasra No. 283. The translated portion of the operative part of the report reads as follows :

"In Patti Chandrawal, Mauza Delhi, pakka houses, and Bungalows from single storey to 3-4 journeyed have been built on the spot and lines of old Khasra numbers stand diminished on the spot. Therefore, it is difficult to make identification of built up area. In Chandrawal population, settlement No. 269 measuring 39.12 Biswas wherein population exists, is rightly situated on its place, which formed No. 276 in 1917/18 and as per Jamabandi 1929-30 it was divided in parts, as has been stated above. Even hereafter it has been divided in many parts and according to plan of partition file and as per spot measurement I have reached on this conclusion that Khasra No. 283 measuring 0.11 Biswas is the property of the Custodian, which is in possession of Shri Ho Ram, son of Hakum Singh, Shivli, son of Maman, Shri Likhi Ram, son of not known, Shri Romal, son of Maman and Chandra Ved, son of Rumal, on the spot no sort of resistance took place.

 

 The presence proceedings on spot is attached with this report. Prepared by  
 Sd/- (in English)      Sd/- (in English)
Pat. (Civil Station)                                              Kuria Mal
4/X/79                                                         Field Kgo (Delhi)
25.5.1979
 

 Copy of presence dated 25.5.1979  
 

For purposes of making identification of Khasra No. 283, Patti Chandrawal, Muajzaa Delhi, reached the spot today the 25.5.1979, with the police force headed by Shri Hoshiar Singh, S.I. Police Station, Roshanara. As per programme Shri Lok Nath, Area Patwari alongwith Revenue Records and other scale articles meant for measurement, Shri B.S. Bhatnagar, Asstt. Managing Officer, Shri Jhangi Ram Patwari, Custodian Department, Shri Gokal Chand, Shri Ram, Ho Ram, Rumal, Shivli, Likhi Ram, Chander Vaid, were found present on the spot. Assisting Staff of Shri Amrik Lal, Girdawar of Circle Narela, Shri Ganga Ram Patwari of Palla Area, Shri Kasturi Lal Patwari of Seelampur area are also present."

This demarcation was made in the presence of Shri B.S. Bhatnagar, Managing Officer and Jhangi Ram, Patwari. Therefore, on the basis of the above, it is contended by learned Counsel for the petitioner that at no stretch of time Khasra No. 283 was in the possession of the petitioner and no structures could be built on the same.

6. In view of the above facts the respondents are not entitled to collect rents from the petitioners as they are not in possession of property comprising Khasra No. 283. The finding that the property in Khasra No. 283 is an evacuee property is, however, affirmed. The present petition is allowed in the above terms. The respondents shall, however, be at liberty to take any steps as may be permissible in law in case there is encroachment upon Khasra No. 283 which is held as an evacuee property. There will be no order as to costs.