SURAJ PRAKASH Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellants/plaintiffs(hereinafter referred to as the appellants for the sake of convenience) through the present second appeal have taken exception to a judgment and decree dated December 23, 1997 passed by an Additional District Judge, Tis Hazari, Delhi, whereby he dismissed an appeal preferred by the appellants herein against the judgment and decree dated December 18,1968 passed by a Sub Judge, Tis Hazari,Delhi.

(2.) Brief facts which are necessary for the appreciation of the points involved in the present appeal are being reproduced below: that the appellants are in occupation of a plot bearing No. 34/27, Ward No.16, Pusa Road, Delhi(hereinafter referred to as the disputed property for the sake of brevity) fully shown by letters ABCD in the plan annexed with the plaint. The disputed property is a nazul land belonging to the Government of India (hereinafter referred to as the respondent No.1). The interest of the respondent No.1 in the said property vested in the Delhi Improvement Trust, now Delhi Development Authority,(hereinafter referred to as respondent No.2) through an agreement in between respondent No.1 and the Delhi Improvement Trust, for the purpose of management of the said property. The respondent No.1 and the Delhi Improvement Trust were both non-evacuees and as such their proprietary rights in the disputed property were non evacuee rights and thus neither could vest in the Custodian nor could this be acquired by the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act (No.44 of 1954),('The Act' for short). The disputed property was leased out through a lease deed dated January 30,1942 by the then Delhi Improvement Trust to one Shri Dhanpat Rai, a non-evacuee, for a period of 99 years (the lease being renewable after a period of 10,20,30 or 60 years respectively ) from the Ist day of April of calender year in which the lease was granted as per the terms and conditions of the aforementioned lease deed. In case of breach of any of the terms and conditions the leasehold rights were to revert to the Delhi Improvement Trust ( now DDA) automatically. The aforesaid lessee Shri Dhanpat Rai without the permission of the Delhi Improvement Trust or the Government of India sub let the disputed property to a Muslim evacuee who migrated to Pakistan in the year 1947 owing to the disturbances in the country and as such the lessee's rights in the disputed property were taken over by the Custodian Department though they had no right or jurisdiction to do so. Neither Shri Dhanpat Rai nor the Muslim evacuee fulfilled the terms and conditions of the lease inasmuch as the lease was never renewed either by the Muslim evacuee or the Custodian and as such it reverted to the non evacuee landlord. Furthermore, the Custodian of Evacuee Properties by a Notification dated May 13,1949 as published in the Gazette of India (Extraordinary) dated May 28,1949 restored the lease rights to non evacuee landlord i.e. Delhi Improvement Trust. Consequently, the disputed property from the date of the above Notification ceased to be the evacuee property. The disputed property being a non evacuee property could not have been acquired and was in fact not acquired under Section 12 of the Act and thus did not vest in the Central Government.The appellants raised super-structure over the disputed property in their respective portions after the allotment of the same to them and spent a sum of Rs.70,000.00 in connection therewith. Some of the appellants are running their industrial concerns in their respective portions. Thus the disputed property is being used for residential as well as commercial purposes. The disputed property being the nazul land could not have been acquired under Section 12 of the Act nor could it have been disposed of by the Union of India through their Managing Officer in view of the provisions of Article 299 of the Constitution of India. Respondent No.1 are not competent to authorise the Managing Officer to sell the properties other than those forming part of the compensation pool. The appellants are lawful tenants under the respondent No.1. Respondent No.3 as such has got no right and title to eject the appellants from the disputed property. The transfer of the disputed property in favour of respondent No.3 by the respondent No.1 is therefore, null and void and does not confer any right or title on the respondent No.3. The disputed property in utter disregard to the provisions of law was sold at a public auction held on September 18,1960 and was purchased by respondent No.3. The appellants objected to the sale of the disputed property as the same was non evacuee property and could not be sold and filed an appeal before the Assistant Settlement Commissioner. The said appeal was dismissed vide order dated March 28, 1961. The appellants then presented a revision against the said order. However, the revision petition was also dismissed on September 13, 1961 by the Deputy Chief Settlement Commissioner. Petition under Section 33 of the Act against the order passed by the Deputy Chief Settlement Commissioner was dismissed as communicated to the appellants by letter dated December 21, 1961. The orders with regard to the sale of the disputed property in pursuance whereof the auction was held on September 18, 1960 and the order passed by the Assistant Settlement Commissioner dated March 28, 1961 and the impugned order dated September 13, 1961 passed by the Deputy Chief Settlement Commissioner and the order passed by the Central Government communicated to the appellant on December 21, 1961 are illegal, invalid, void and without jurisdiction and as such not binding on the appellants for the reasons stated in paras(a) to (t) of the plaint.

(3.) Notice under Section 80 of the Code of Civil Procedure was served on respondent No.1. The appellants have thus prayed that the auction sale in regard to the disputed property held on September 18, 1960 and the purchase of the same by respondent No.3 and the order dated March 28, 1961 passed by the Assistant Settlement Commissioner and the order dated 13, 1961 passed by the Deputy Chief Settlement Commissioner in revision and the order passed by the Central Government an d communicated to the appellants vide letter dated December 21, 1961 be declared as illegal and void and without jurisdiction and not binding on the appellants. They have further prayed that the appellants being the lawful tenants are entitled to the transfer of the disputed property in their favour and they be not held liable to eviction by the respondent No.3 since they have raised super structures of permanent nature over the disputed property.