N.K. Kapoor, J.
1. Petitioners seek quashing of orders of Chief Settlement Commissioner dated 16.6.1994, Annexure P-2 and of Tehsildar (Sales)-cum-Managing Officer dated 1.6.1994, Annexure P-1, with further direction to the respondents to sell the land to the petitioners as per law.
2. Petitioners claim themselves to be displaced persons, Harijans, members belonging to Backward Classes and landless labourers. They lay claim to the property being in their cultivating possession since 1968 on the basis of press notes, Annexures P-3 to P-5. According to the petitioners, the aforesaid instructions relate to rural and Sub-urban evacuee lands and so they have a right to purchase the same in terms of the aforementioned instructions of the Government. So the proceedings initiated by Tehsildar (Sales) Cum-Managing Officer declining then-dispossession vide order Annexure P-1 and the affirmation of the order by the Chief Settlement Commissioner, Annexure P-2, are not only contrary to the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'the Act') and the rules/instructions of the Government but otherwise unjust and un-sustainable and hence liable to be quashed.
3. Notice of motion was issued for 17.11.1994 and dispossession of petitioners was stayed vide order dated 11.8.1994. Pursuance to the notice of motion issued by the Court written statement has been filed by Shri M.P. Gupta, Joint Secretary to Government Haryana, Rehabilitation Department, on behalf of respondents 1 to 3, writ petition was ordered to be admitted on 17.5.1995 with a further direction that the same may be decided within a period of six months from that date.
4. The answering respondents have taken the following preliminary objections:-
1) That petitioners have not exhausted the alternative remedy of filing the petition Under section 33 of the Act;
2) That no legal vested right of the petitioners has been infringed;
3) That joint writ petition filed by 25 petitioners is not maintainable; and
4) That the order of the Chief Settlement Commissioner dated 16.6.1994, annexure P-2, relates to the rejection of the stay application and that too in respect of petitioners 1 to 4 and 13 to 22.
On merits it has been stated that the petitioners have no right, title or interest in the land and they have been ejected in conformity with the judicial pronouncements under the due process of law on 8.6.1994. According to the answering respondents, no fundamental right of the petitioners has been infringed. Infact they have no case to file the present writ petition. It has further been stated that out of land measuring 345 acres, land measuring 60 acres had already been allotted to Public Health Department, another 25 acres has been given to Jail Department, 75 acres to Housing Board and 180 acres to Faridabad Municipal Corporation for Jhugi and Jhopri dwellers and remaining 5 acres is already under abadi and so the land in dispute is to be utilised for aforesaid public purposes. Challenging the contention of the petitioners that they are authorised occupants, it has been stated that the petitioners un-authorisedly occupied the land and so an appropriate order has been passed for their eviction in terms of Section 19 of the Act. The press notes/instructions, annexure P-3 to P-5 relate to the rural evacuee agricultural land, which form part of the Rural Package Deal, 1961 and not to be urban land as alleged. According to para 1(a) of the instructions dated 11.7.1988 the land like the land in question having commercial and residential potentiality of the land near the developing town cannot be transferred under the instructions. Since the land comes within the purview of an urban area and the same falls within the Municipal limits of Faridabad Complex Administration (now Municipal Corporation) a fully developed town and a satellite to Delhi, the petitioners have no right even on the basis of these instructions.
5. During the pendency of the petition a prayer was made to implead P.W.D. Public Health Department, as necessary/proper party as part of the land has already been transferred to them. This prayer was not opposed and so P.W.D. Public Health Department, was permitted to be arrayed as one of the respondents who in turn adopted the written statement filed by respondents 1 to 3.
6. Learned counsel for the petitioners after giving in brief facts leading to the filing of the present writ petition argued that the possession of the petitioners-Tulu Ram as tenant-at-will/lessee stands established in view of the decision of the civil Court, annexures P-6 to P-8 and so the petitioners could not be termed to be unauthorised occupants of the land, which is in their occupation and so proceedings initiated by Tehsildar (Sales)-cum-Managing Officer Under Section 19 of the Act were wholly mis-conceived and so order annexures P-1 and P-2 deserves to be quashed on this ground alone. Elaborating the counsel argued that whereas Section 19 deals with cancelling of any allotment or terminating any lease by the Managing Officer and is general in its ambit, Section 29 of the Act grants a special protection from ejectment to certain classes of persons. So, in view of the special protection to persons who have a lawful claim to stay on the land the provisions of Section 19 are not attracted in the present case. So, any order passed by the Tehsildar (Sales)-cum-Managing Officer Under Section 19 is nonest and the subsequent affirmation by the Chief Settlement Commissioner, annexure P-2, does not make the same valid. Otherwise too, the authorities have indeed erred in law in not properly adjudging the status of the petitioners. Infact, the authorities have chosen to bye-pass the judicial verdict of the Civil Court wherein they have been held to be in possession as non-occupancy tenants. It is well settled that a non-occupancy tenant can be evicted only in due course of law. Rather under our jurisprudence even an un-authorised occupant can be evicted under due process of law. Since the petitioners are tenants-at-will and the property fell within the purview of rural agricultural property its nomenclature could not be challenged with the passage of time and that too with a right which vested in the petitioners to purchase the same on the basis of Government instructions. So even if the property has now come within the municipal limits and hence urban, is hardly any ground to deprive the petitioners of their right to own and possess the property and especially so when this is the only means of their livelihood. Dealing with the objection raised by the answering respondents that vide annexure P-2 only stay application has been decided and that there is an alternative remedy of approaching the Government in terms of Section 33 of the Act, the counsel argued that the concerned authority has' almost examined the matter in entirety leaving no scope for him or for any other incumbent to grant the relief sought by the petitioners and so this way order annexure P-2, is in the form of a final pronouncement. Even otherwise, in view of the specific stand taken by the Government, the petitioners are left with no other efficacious remedy except of approaching this Court through the present writ petition. Even from another angle i.e. since the answering respondents as per their reply have already sold/allotted land to various departments, respondents have become functus officio and no such relief can possibly be granted by the respondents.
7. Learned counsel for the respondents on the other hand argued that the status of the petitioners was that of an unauthorised occupant and so appropriate proceedings were initiated to evict them in terms of Section 19 of the Act. Since no vested right had accrued to the petitioners, Tehsildar (Sales)-cum-Managing Officer after affording the petitioners a due opportunity of hearing finally came to the conclusion that they have no claim for allotment of land as the instructions relied upon relate to rural agricultural land whereas the land in dispute is urban and falls within the municipal limits. It is in pursuance to the valid order passed by Managing Officer that petitioners were dispossessed and subsequently this huge area of 345 acres has been allotted to various departments, namely, Public Health Department, Jail Department, Haryana Housing Department and to Faridabad Municipal Corporation for settlement of Jhugi and Jhopri dwellers etc. According to the counsel, the various instructions appended to the petition (Annexures P-3 to P-5) pertain to the disposal of rural evacuee agricultural land. So, before petitioner could be said to possess any land it is to be established that the claim lays to a rural evacuee agricultural land. The nature of land is to be seen at the time of allotment and so even if the case of the petitioners is examined on the date when the order was passed by the Tehsildar (Sales)-cum-Managing Officer the land sought to be purchased (on concessional rate) was an urban area and so none of the instructions grant any such right or claim to the petitioners. According to the counsel, though the Civil Court decree confers a status of non-occupancy tenant upon the petitioner-Tillu Ram yet such a finding does not bind the department as the jurisdiction of the civil Court is specifically barred Under Section 36 of the Act. Otherwise too, court while granting the decree merely restrained tike defendants from interfering with the possession of the plaintiff and permitted the defendants to dispossess the plaintiff in accordance with the provisions of the Act and the Rules framed there under. So, even the civil Court permitted the answering respondents from taking all permissible steps to evict the unauthorised occupants like the petitioners in terms of the provisions of the Act, It is with this background that the case was examined by Tehsildar (Sales)-cum-Managing Officer who found no merit in the pleas advanced by the claimants and accordingly rejected the application for purchase of land vide order dated 1.6.1994.
8. Broad facts have been noticed above, Joint petition has been filed by 25 persons out of which 5 claim to be Displaced persons and another 4 to be Harijans and Landless Labourers and 6 to be persons belonging to Backward Classes and the remaining landless labourers. According to the petitioners they came on land in the year 1952 but their names stand recorded from the year 1968 to 1978. They have laid claim to the various parts of land in their possession on the ground that the property in their possession is a rural evacuee agricultural property and as per instructions issued by the Government from time to time such persons have a preferential claim to purchase the same. Thus, the precise point which needs some close examination is their status i.e. whether they are lessees or un-authorised occupants and secondly the property sought to be purchased is rural evacuee agricultural land.
9. Concededly, there is no lease or grant in favour of any of the petitioners. There is no proof on record that they have been inducted upon the land on the basis of any valid order of any competent authority. So, under the provisions of the Act they can be termed to be un-authorised occupants. There is no specific provision in the Act allowing such persons to purchase an evacuee property. The Government taking a beneficial view in the matter had been issuing instructions from time to time to grant some relief to such persons who even though unauthorisedly occupied the land. These instructions invariably pertain to rural evacuee agricultural land. Petitioners have made reference to these instructions (Annexures P-3 to P-5). Vide annexures P-5 dated 10.11.1981 it was decided to dispose of the inferior evacuee land and so necessary instructions were issued by the Financial Commissioner to all the Tehsildar (Sales) in the State. Various stipulations have been made in this memorandum dated 10.11.1981 that the land in occupation of such a person should be made cultivable by kharif 1975 and also specifies the price per standard acre upto a particular limit and thereafter. Similarly vide Annexure P-4, dated 11.7.1983 again some partial modification was made of the earlier policy and so persons who were un-authorised occupants since Kharif 1985 or earlier were permitted to purchase the same not exceeding 5 acres at a stipulated price. Clause (e) of instructions, annexure P-4, have relevancy to the point under, controversy, which reads as :-
'The Sub-urban agricultural lands other than those which are potential sites for commercial and residential purpose or the developing towns and areas would be transferred on the current market price assessed by the Settlement Officer (Sales)/Addl. Settlement Officer (Sales) on the basis of norms prescribed for the purposes, which will be recovered stipulated in (c) and (d) above.'
According to this clause Sub-urban agricultural lands other than those which are potential sites for commercial and residential purpose of the developing towns and areas would be transferred on the current market price on the basis of norm prescribed for the purpose. A bare reading of the aforesaid provision makes it clear that only rural evacuee agricultural land was intended to be transferred to un-authorised occupants to the extent of 5 acres at a particular price i.e. a sum of Rs. 30,000/- per acre. Since some agricultural land yet remained un-allotted to these unauthorised occupants another press note dated 16.12.1991 was issued by the Government permitting such occupants to submit applications for purchase of the land in their occupation on or before 13.12.1992. Vide annexure P-3 only time had been extended and other conditions remained as in Annexure P-4.
10. Rule 2(h) of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, defines an 'urban area' as under :-
'2(h) 'urban area' means any area within the limits of a corporation,a municipal committee, a notified area committee, a town area committee, a small town committee a cantonment or any other area notified as such by the Central Govt. from time to time.Provided that in the case of a quasi permanent allotment of (any rural area) already made in the States of Punjab and Patiala and East Punjab States Union, the limits of an urban area shall be as they existed on the 15th August, 1947.'
and Rule 2(f) defines 'rural area' as under :-
'2(f) 'Rural area' means any area which is not urban area.'
11. The validity of Rule 2(h) was challenged on the ground of discrimination and the apex Court in Bihari Lal Batra v. The Chief Settlement Commissioner (Rural) Punjab, Chandigarh, 1964 P.L.R. 701, held as under :-
'Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it affects an alteration in the law. It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which we are unable to follow.'
12. In that case the petitioner had some unsatisfied claim for allotment and it is on 29.12.1955 that he was allotted by the Managing Officer on quasi-permanent tenure some land which was within the municipal area of Kharar. Subsequently a sanad too was issued to the petitioner on 31.12.1955. It is when the petitioner tried to take possession of the land that a dispute was raised by the respondents that the land fell within the urban area as defined in Rule 2(h) of the Rules and so this allotment to the petitioner was contrary to the law. Concerned authority consequently cancelled the allotment which was subsequently challenged. It is with this background that Rule was challenged being discriminatory as it differentiate between two class of persons, one who had been allotted land prior to the coming into enforcement of Rule 2(h) on May 29,1955 and thereafter. It is in this context that the Court held the same to be valid.
13. So, the matter has to be examined as to whether the property comes within the ambit of rural evacuee agricultural land or urban land at a time when the same is to be allotted. In the present case petitioners have laid claim and that too on the basis of instructions annexure P-4 before Tehsildar (Sales)-cum-Managing Officer in the form of objections which has been decided on 1.6.1994. At best one can say that the petitioners' claim has been made on the basis of annexure P-3 (which contemplates applications upto 30.12.1992). At this point of time and even few years earlier the property admittedly has come within the Municipal Limits of Faridabad Complex Administration and so the same has ceased to be a rural area. Accordingly the aforesaid instructions, annexures P-3 and P-4, do not help the case of the petitioner in any manner.
14. Whether petitioners are lessees or un-authorised occupants again is to be examined in the light of the provisions of the Act. No doubt, civil Court in case Tiltu Ram v. State of Haryana and Anr. held the plaintiff to be a tenant-at-will and this finding has been affirmed in appeal as well as in the regular second appeal, but the same when examined in the light of Section 36 of the Act are infact nonest orders. Section 36 of the Act specifically bars the jurisdiction of the Civil Court to entertain any suit or proceedings which any officer or authority appointed under the Act is empowered to determine and that no injunction can be granted by any Court or other authority in respect of any such action. It is in this context that Tehsildar (Sales)-cum-Managing Officer while examining the claim of the petitioners ignored this decree and chose to evaluate the relevant material as on record. As observed earlier too, there is no document on record on the basis of which one can infer that there was any valid lease or allotment in favour of the petitioners. This being the position, the authorities rightly chose to proceed against the unauthorised occupants in terms of Section 19 of the Act. Section 19 reads as under :-
'19. Power to vary or cancel lease or allotment of any property acquired under this Act.--(1) Notwithstanding anything contained in any contract or any other law for the time being in force but subject to any rules that may be made under this Act, the managing officer or managing corporation may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under this Act is held or occupied by a person, whether such allotment or lease was granted before or after the commencement of this Act.
(2) Where any person,-
(a) has ceased to be entitled to the possession of any evacuee property by reason of any action taken under Sub-section (1), or
(b) is otherwise in unauthorised possession of any evacuee property or any other immovable property forming part of the compensation pool; he shall after he has been given a reasonable opportunity of showing cause against his eviction from such property, surrender possession of the property on demand being made in this behalf by the managing officer or managing corporation or by any other person duly authorised by such officer or corporation.
(3) If any person fails to surrender possession of any property on demand made under Sub-section (2), the managing officer or managing corporation may, notwithstanding anything to the contrary contained in any other law for the time being in force, eject such person and take possession of such property and may, for such purpose, use or cause to be used such force a may be necessary.
(4) Where a managing officer or a managing corporation is satisfied that any person, whether by way of allotment or lease, is or has at any time been, in possession of any evacuee property acquired under this Act to which he was not entitled, or which was in excess of that to which he was entitled, under the law under which such allotment or lease was made or granted, then, without prejudice to any other action which may be taken against that person, the managing officer or the managing corporation may, having regard to such principles of assessment of rent as may be specified in this behalf by the Central Government, by order, assess the rent payable in respect of such property and that person shall be liable to pay the rent so assessed for the period for which the property remains or has remained in his possession.
Provided that no such order shall be made without giving to the person concerned a reasonable opportunity of being heard.(5) Where any person is, or has at any time been in unauthorised possession of any evacuee property acquired under this Act, the managing officer or the managing corporation may, having regard to such principles of assessment of damages as may be specified in this behalf by the Central Government, by order assess the damages on account of the use and occupation of such property and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order;Provided that no such order shall be made without giving to the person concerned a reasonable opportunity of being heard.'
15. Admittedly the authority has granted a reasonable opportunity to the petitioners to place their view points. It is different matter that authorities somehow did not find any substance in any of contentions raised but that itself is no ground for setting aside a valid order passed under the Act. Feeling aggrieved against the order, petitioner/petitioners instead of filing an appeal in terms of Section 23 of the Act, filed a revision petition and during the pendency of the same prayed for stay of the operation of the impugned order of the Managing Officer. The Chief Settlement Commissioner after noticing the various contentions and especially the assertion made by the answering respondents that the petitioners stand evicted from the property in dispute found no ground to stay the operation of the order of Tehsildar (Sales)-cum-Managing Officer. So, technically vide order annexure P-2 only interim stay had been declined to the petitioners. In the context of the present case a queer situation has arisen i.e. dispossession of the petitioners from the property, allotment of the same to various departments of the Governments and the Board and the specific stand taken by the answering respondents, namely, written statement by Shri M.P. Gupta, Joint Secretary to Government Haryana, Rehabilitation Department. Thus, in view of clear stand taken by the Joint Secretary no useful purpose indeed would be served in relegating the petitioners to the Court of Chief Settlement Commissioner. Thus, it can be taken that the Chief Settlement Commissioner has infact applied this mind to the fact of the case and passed a final order. Infact, this too is the stand of the Government. The petitioners have approached the Court on the basis of their long possession as well as the Government instructions which permit them to purchase the property at stipulated rates. This concession could be availed of in respect of rural evacuee agricultural property provided petitioner/petitioners qualify in terms of such Government instructions/press notes. No such concession is permissible in respect of urban area. Though the petitioners have failed in their attempt to purchase the property which remained in their cultivating possession for a pretty long time for the reason that the same falls within the definition of urban area as per Rules; yet these persons deserve to be accommodated on such other land which comprises the pool of rural evacuee agricultural land for their livelihood. Accordingly while dismissing the writ petition I direct the Chief Settlement Commissioner to take a compassionate view of the matter and initiate such step/steps permissible under the Act/Rules and even if need be by invoking its inherent powers to accommodate the petitioners (who fulfill the requirement of press notes/instructions etc.) on some alternate land comprising rural evacuee agricultural land within a time frame.
16. Parties shall bear their own costs.