Judgment:
J.K. Mehra, J.
(1) The petitioner in the present case has filed a writ petition seeking the following reliefs :
'ITis, thereforee, humbly prayed that this Hon'ble Court may be pleased to issue a writ of certiorari, calling for the records of the case and quash the orders of the respondents Nos. 1 to 4 as referred to above and issue a writ of mandamus or such other writs, orders ordirections, as this Hon'ble Court may deem fit and proper, directing that the land in dispute may be ordered to be transferred to the petitioner against the price of Rs. 10,560.00 already recovered from the petitioner on 2.7.1968 as per orders of Shri Kartar Singh, Managing Officer dated 13.6.68 and 1.7.68 referred to above, and the orders of the transfer of the land in dispute to the respondents Nos.. 5 and 6 and the orders of the dispossession of the petitioner there from may be ordered to be set aside.In the alternative, it is prayed that it may be ordered that the petitioner was not liable to be evicted from the land in dispute under Section 19 of the Displaced Persons (Compensation & Rehabilitation)Act, in case the transfer of the land in favor of the respondentsNos. 5 and 6 was to stand, and that the petitioner should not be charged any amount for use and occupation of the land since the date of the deposit of the cost of the property by the petitioner in July 1968, and in the alternative, the petitioner may be paid interest at the rate of 12 per cent per annum, or at such other rate as thisHon'ble Court may deem fit and proper on the amount deposited byhim, after assessing mesne profits, in accordance with the rents of similar acquired evacuee lands in the locality after hearing the petitioner in the matter.'
(2) Briefly stating the facts of the case are that the writ petitioner was a mortgagee of the land comprised in Khasra Nos.l582, 1583, 1584 and 1585Khewat No.2 Khatauni No. 130, measuring 13 bighas4 biswas, situated in village Punjab Khore, Delhi State since 31/01/1946. However,.before the property could be redeemed, partition of the country took. place and the mortgagor left the country and this property came to be treated as 'evacuee property'. The mortgage was with possession. The mortgage debt was deemed to have been satisfied at the end of 20 years of enjoyment of usufruct by the petitioner vide order dated 16.3.61 passed by Shri C.L. Mahey, Competent Officer who pronounced on the claim of the petitioner, under Section 7 of the Evacuee Interest (Separation) Act, 1951 and fixed the petitioner's entitlement of Rs. 510.00 under Section 9(2)(2) of the said Act. The competent officer in the said order dated 16/03/1961 came to the conclusion that 'as the mortgagee has enjoyed the usufruct of the property from the date of mortgage till now, mortgage amount stands reduced to 204X5/20 equal to Rs.510.00, under Section 9(2) of the Evacuee Interest (Separation) Act for whichamount the claim is accepted. The only feasible mode of separating the evacuee and non-evacuee interests is sale of the property by auction'.
(3) It is conceded that neither the amount of Rs. 510.00 was paid to the petitioner by the Custodian of Evacuee Property Delhi nor was the land put toauction, notwithstanding orders dated 30.4.66 passed by Shri K.L. Wason, Competent Officer, who held 'period of 20 years having elapsed on 31.1.1966 the land in question stands automatically redeemed in favor of the Custodian without any encumberances. The Custodian can now take possession of the land from the mortgagee claimant.'
(4) The petitioner however continued all along to be in cultivatory possession after the aforesaid orders also. On 12.6.68, in view of their existingpolicy, the land was offered for transfer by allotment to the petitioner at the rate of Rs. 800.00 per bigha totalling Rs. 10.560.00 and the land was ordered to be transferred to the petitioner on payment of the said amount. The petitioner accordingly deposited the amount on 2/07/1968. Before, however, the land could be formally conveyed in favor of the petitioner, respondents 5 and 6who were allottees of some other agricultural land in the villages Punjab Khore and Jat Khore challenged the said order of transfer by filing an appeal against the transfer to the petitioner and their appeal was allowed vide orders dated31st October 1968 passed by Shri Radha Krishan, Authorised Settlement Commissioner. The said order makes an interesting reading where he held without saying about the locus standi of the appellants that although unauthorised cultivator of evacuee agricultural land was as per the policy and instructions of theGovt. entitled to such transfers, but persons placed in the position similar to that of petitioner could not get it transferred to them as they were not unauthorised occupants, but was a previous mortgagee although his mortgage had come to an end and he was continuing to be in possession of the said land. The petitioner thereafter filed a revision challenging the said order under Section 34 ofthe Displaced Persons (Rehabilitation & Compensation) Act (hereinafter referred to as 'the Act'), but the same was also rejected vide orders dated 6.8.70,However, further challenges under Section 33 of the Act to the said order by the petitioner and the Government resulted in orders dated 8.2.71 and 24.2.71respectively of Shri Rajni Kant, Deputy Chief Settlement Commissioner with powers of the Central Government. The said Shri Rajni Kant vide order dated8.2.71 had remanded the case for re-hearing. This was once again decided bythe Managing Officer, who vide order dated 7.8.71 ordered the allotment be made in favor of respondents 5 and 6 for the reasons, inter-alia,
'THERE are no doubt instructions for the transfer of land to the unauthorised occupants but it is to be examined whether Shri Jai Lal could be covered by these instructions contained in the minutes of the meeting dated 9.11.67 and could have a preferential right over the rights of the Delhi colonists. In the order the Central Government has clearly laid down that under the Act and the Rules Shri Jai Lal can claim no right for the transfer of the land while Shri Ved Parkash and Nawal Singh being Delhi Colonists had a right under the Act for the allotment of the land.'
However, I do not find any such finding having been given by the Central Government in the decision rendered by the said Shri Rajni Kant. This resulted in the petitioner's filing an appeal under Section 22 of the said Act which was partly allowed by the Authorised Settlement Commissioner vide order dated 10.2.72 by setting aside the order of allotment of land in dispite to respondents 5 and 6.It was further held that ' it cannot be held in these proceedings that the appellant was eligible for transfer of the land on the marketvalue, but it was still open to him to approach the Managing Officer to consider him for transfer, if he was eligible for the same by way ofnegotiation.'
(5) Against this order, the respondents 5 and 6 filed a revision petition.In this revision petition, the petitioner also filed his cross-objections, urging that he was entitled to the land at the original assessed price which had already been paid by the petitioner. The said petition of respondents 5 and 6 was howeverallowed. Against this the petitioner filed a petition under Section 33 of the Act,but the same was dismissed in liming by Joint Secretary, Government of India.Ministry of Rehabilitation vide his order dated 20.6.74. The only ground for decision against the petitioner was 'as the record shows, there are Delhi colonists in the field with claims for allotment of the land and these claims remaining to be satisfied, the transfer cannot be effected to the petitioner a non-claimant and non-displaced person in preference to the claimants.' The said Joint Secretary also held the petitioner liable for charges for use and occupation. the petitioner was also ordered to be dispossessed from the land vide notice of Managing Officer dated 3 1/08/1970. Even a review against the said order of the Joint Secretary was filed, but the same was also dismissed.
(6) Having thus failed in all the fora, the petitioner has come to this Court seeking a writ as set out hereinabove. Some of the contentions which the petitioner had raised are that assuming that the mortgage stood satisfied, but thereafter he continued to be in cultivatory possession and has acquired the status of a tenant in respect of the land in dispute and was not liable to bed is possessed except on any of the grounds under Section 19 of the Act read with Rule 102 of the relevant rules. In fact, the case of the petitioner is that it was not the petitioner whose possession was either wrongful or who was liable to bevacated, but it was wrong allotment of the land made to respondents 5 and 6,which needed revocation.
(7) It is further alleged that the rehabilitation authorities had no right on the one hand to claim from the petitioner the mesne profits for the use and occupation of the property since 1966 till date and at the same time denying payment of any interest to the petitioner on the amount of Rs. 10,561.00deposited by him over six years prior to the filing of the petition.
(8) That amount having been deposited as full consideration for the said plot of land, the petitioner has claimed protection of the provisions of Section 29 of the Act.
(9) The right of the petitioner was challenged by the said respondents5 and 6 and a counter-affidavit was also filed on behalf of respondents 1 to 4.Respondents 1 to 4 have conceded in para 4 of the counter affidavit that the department had offered the transfer of the said land to then occupant, i.e., the petitioner on payment of Rs. 10.560.00 which was determined as the purchase price of the land and further that this was done under the policy of the Government in existence at the relevant time which would only mean that it was not an unauthorised act or an action of any individual officer which was in breach of any Government's instructions or the policy. It has also been stated in the counter-affidavit of the said respondents that respondents 5 and 6 were the Delhi colonists which means they were the persons whose lands were earlier acquired and who were allotted lands in Pakistan in lieu of their land in Delhi and these people according to the said respondents 1 to 4 had a verified claim of agricultural land to the extent of 8 acres and 14' units and that their challenge was mainly that they had been allotted 8 acres and 10 units of land out of the said total claim in the two villages leaving 1 acre and 15/8 units still to be allotted for full satisfaction of their claim. It is on account of that balance claim that the allotment was claimed by and made to respondents 5 and 6 and the transfer in favor of the petitioner could not be affected despite the petitioner having deposited the full consideration. .
(10) Respondents 5 and 6 have not disputed the above facts, but have vehemently argued that the petitioner had not acquired any right, title or interest in the land and had no right to remain in possession thereof after satisfaction of his mortgage. They have also pointed out that the petitioner could not even be equated with unauthorised occupant because the unauthorised occupant under the Act means only the displaced persons from West Pakistan who were in unauthorised occupation and since the petitioner was not one such person no transfer could validly take place in his favor under the said Act. I am unable to accept this contention. In case any such meaning was intended to be attributed to the expression 'unauthorised occupant' the legislature would have defined the said expression so as to exclude all 'those who were unauthorised occupants but were not displaced persons. In the Act, there is no such definition ofthe 'unauthorsed occupant'. In the absence of such a limited definition or any provisions in the said Act itself, the Courts have to construe the expression'unauthorised occupant' in its ordinary sense. It is not disputed that after the mortgage was satisfied no lease was granted to the petitioner/mortgagee and he continued to be in possession of the land without any specific authority to do so.
(11) The intention of the legislature could not have been to create anew category of landless/displaced persons, who were already in cultivatorypossession, by dispossessing them in order to allot that land to a displaced persons in that particular village even though land was available for such allotment in other villages in Union Territory of Delhi.A reference in this connection may be made to Annexure-B to THE petition, i.e., the order of Shri K.L. Wason dated 30/04/1966 when on the automatic redemption the C.O. has ordered 'The Custodian can now take possession of the land from the mortgagee claimant'. The authorities have not gone into the question as to who can be described as an 'unauthorised occupant'or whether the right of allotment was available to occupants and the policy merely extended that right to the unauthorised occupants only. Shri Rajni Kant with delegated powers of the Central Govt. while proceeding under Section 33 of the Act has proceeded on the premises that he had not been shown any instructions of the Government. Before me it has not been disputed all through that such a policy decision did exist and none of the parties or the authorities other than Mr. Rajni Kant had challenged the existence or validity of such a policy decision. Although he set aside the impugned order and remanded the case of the Managing Officer to pass fresh orders, he also fell into an error by failing to consider as to whether the continued possession of the petitioner was authorised or unauthorised or whether unauthorised occupants were intended to be granted rights superior to other occupants. On remand the Managing Officer proceeded on the sole ground that Shri Jai Lal, the petitioner was not an 'unauthorised occupant' and his continuing in possession during the long drawn out proceedings cannot give him any right on the basis of possession and has further proceeded on the preferential right of the Delhi colonists without considering that there was nothing in law which made it incumbent on the authorities accommodate respondents 5 and 6 on the land in question only. This decision of the Managing Officer was duly challenged before the Chief Settlement Commissioner and the appellate authority again proceeded on the basis that Shri Jai Lal was not covered under the instructions which related to the unauthorised occupants of land and property and that he was not eligible under the Act and the Rules. The decision of Mr. Gulab L. Ajmani, Authorised Chief Settlement Commissioner dated 25.3.74 setting aside the order of Authorised Settlement Commissioner dated 10.2.72, was challenged before the Secretary,Govt. of India under Section 33 and that challenge also failed without considering all the pros and cons of the case simply proceeded on the basis that the Delhi Colonists with claim for allotment of land which remained to be satisfied had a preferential right and the petitioner who is a non-claimant and non-displaced person has no right. The said authority did not care to look into the availability of other vacant land which was and till date is available for such allotment to Delhi Colonists.
(12) Only with a view to ascertain and in the interest of maintaining the stability in the village I specifically inquired of respondents 1 to 4 if there was any other land available for allotment within the Union Territory of Delhi.Mr. H.S. Bhatia, Managing Officer, Evacuee Property Cell, Delhi 'appeared and stated that the land is available for allotment in other villages, like Hamidpuretc.
(13) Counsel for respondents 5 and 6 stated that there is no land which is absolutely vacant but there are stretches of land and in all those one or the other unauthorised occupant is sitting and it will take some time for the said respondents to recover possession of the land. This to my mind is not a valid reason for displacing a person already in cultivatory possession of land and who has already deposited full consideration at the then market value of theland.Parties also cited various decisions to buttress their respective arguments.
(14) The petitioner, while challenging the jurisdiction of the ChiefSettlement Commissioner to interfere with the decision of the Managing Officer with regard to the allotment etc. except on the plea that the allotment has been obtained by a false representation, fraud or concealment of material facts, has relied upon the case of Estate Development Limited v. Union of India, reported as : [1970]2SCR534 . He has also relied upon the case of Piara Lal v.TheAssistant Registrar-cum-Managing Officer Rehabilitation Department and Others,reported as 1967 Plr 495 wherein the Punjab High Court had come to the conclusion that even the petitioner who was an old tenant under a local mortgagee was entitled to purchase the land on reserve price under the Govt.instructions and such transfer was held to be valid. The case of the petitioner is that he was in possession as mortgagee in cultivatory possession of the land since 1946 and even after the satisfaction of the mortgage continued to occupy the said land under the Custodian and that the decision to transfer this land to him for valuable consideration was in accordance with the government policy and as such the same could not have been a subject matter of challenge at the hands of respondents 5 and 6 who had no right, title or interest in the said land and were in fact allottees of other land in this village as well as in another village in Delhi and the decision of the Managing Officer to sell the land to thesaid Petitioner/mortgagee could not be interfered with, particularly, when no fraud or false representation or concealment of material facts was proved or even alleged against him. The petitioner has relied upon the decision of the Supreme Court in the case of Estate Development Limited (supra) in support of his arguments that the decision to sell the land pursuant whereto the full consideration at the then prevailing market value was paid by the petitioner could not be interfered with. To almost the same effect is the ruling of Himachel Pradesh High Court reported as . In fact, the said authority has gone to the extent that the finding of false representation, fraud or concealment of material facts is a condition precedent to any interference under Section 24(2) of the Act. Counsel for the petitioner has also relied upon the ratio of the-case Bishan Paul v. Mothu Ram, reported as : AIR1965SC1994 , which was a case of sale by auction and there, while considering the relevant Rule 90the Supreme Court held that 'intention behind the rules seems to be that title shall pass when the full price is realised and this is now clear from the new form of Certificate requiring a mention that the purchaser has been declared the purchaser with effect from a specified date.'
(15) In the present case also, I find the Managing Officer vide his orderdated 12.6.68 had, while acting in terms of the existing policy of Government whereby it was intended to transfer the rural agricultural land to even unauthorised occupants, provided they are willing to pay the present market price of theland fixed by the Department. Not only the price was fixed and thereafter he had confirmed vide his letter dated 1.7.68 requiring the petitioner to deposit thesaid amount of Rs. 10560.00 for the said land, but had threatened that in case full amount is not deposited the property will be put to re-auction. Followingthis, total price of the land was duly deposited by the petitioner on 8.7.68.Thus, the petitioner had done all that he was required to do to earn a good marketable title to the land and what remained to be done is the work of executing the conveyance deed and having it registered. However, the complications started arising afterwards when respondents 5 and 6 approached the Settlement Officer with delegated powers of the Settlement Commissioner seeking to setaside the transfer. I may observe that admittedly the setting aside of the transfer is not on the basis of either fraud, false representation or concealment of material facts nor has any authority gone into the question of locus standi of respondents 5 and 6 to challenge the decision of Managing Officer. Mr. RadhaKrishan in his judgment has set aside the transfer of the land in dispute on the sole ground that the petitione,r 'would not appear to be unauthorised occupant' because he was a mortgagee of land and once the mortgagewas satisfied he was obligated to make over the possession of the same to theCustodian. He has not described and discussed as to what was the meaning of'unauthorised occupant'. The intention of the Legislature or the Government policy could not have been to displace the already stable position or to afford the unauthorised occupants any privileges which would be superior to therights or privileges of the persons in lawful possession of the land or who had acquired lawfully the cultivatory possession. In fact, the intention was to rehabilitate refugees from West Pakistan without any loss of time on the lands which were vacant and unoccupied. The land in dispute was neither vacant norunoccupied at the time of partition of the country and the petitioner's rights as mortgagee in cultivatory posse ssion at that time are not in dispute. So far as other lands are concerned I have already observed above that respondents 1 to4 have already stated that the lands are available within the Union Territory of Delhi which could have been allotted to respondents 5 and 6. In my view, the whole basis of interference with the original order of the Managing Officer is perverse unwarranted and not permitted under the provisions of Section 24(2)of the said Act. It is the responsibility of respondents 1 to 4 to provide respondents 5 and 6 an alternate land in any other village which admittedly has remained available in Union Territory of Delhi. Even the revision and further decisions have proceeded on the wrong premises without taking a note of the facts that other lands in Delhi were available for allotment to respondents 5 and 6and that the condition precedent for the Chief Settlement Commissioner or other authorities to interfere with the orders of Managing Officer, that is the allotment to the petitioner had been obtained by him by means of fraud, false representation or concealment of material facts being not there, they couldnot interfere with the said order of the Managing Officer.
(16) In that view, I feel that the concerned authorities should have allotted the respondents 5 and 6 other lands available for such allotment than the land in question which had been in possession of the petitioner since before the start of litigation and had continued to be in possession even after the mortgage in his favor stood satisfied in terms of Section 9(2) of the Evacuee Interest (Separation) Act. I am in agreement with the ratio of the judgment of the Punjab High Court and I feel that there is absolutely no illegality in the transfer of the land in question to the petitioner. It would be in the interest of equity and justice for the authorities to allot other available land/sites to respondent 5and 6.
(17) Another point which was raised by respondents 5 and 6 was that no policy which was ultra virus the provisions of the Act could be implemented or was valid and as such any sale affected in favor of the petitioner who was neither displaced person nor Delhi Colonist could have been validly affect under such a policy and that an unauthorised person in the context of this Act could be only a displaced person who without allotment had occupied the land and not a person placed like the petitioner. As already stated above, I am somehow not in agreement with this view. I do not find any force in this contention also and the same is rejected.
(18) In the light of the above discussion I make the rule absolute, restore the original orders of the Managing Officer dated 12.6.68 and 1.7.68 and quash all the subsequent orders of dispossession and direct the respondents 1 to4 to convey the land in question to the petitioner against the price already received by them. I further direct the respondents 5 and 6 may be accommodated by allotment of some other land which during the proceedings was stated by thesaid respondents 1 to 4 to be available for the purpose.
(19) The petition is disposed of in the above terms with no order as to costs.