LAL CHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) THE brief history of this case is that the petitioners filed an application before the Assistant Collector, Fatehabad, under Section 8 of the Punjab Tenancy Act for grant of occupancy rights over land measuring 192 kanals 15 marlas in village Hizrawan Kalan, Tehsil Fatehabad, for grant of occupancy rights which they claim to have been cultivating on nominal rent for approximately 100 years. The Assistant Collector disposed of the application vide his order dated 11.10.1989 holding that the petitioners were lessees and the former owners were Muslims who had migrated to Pakistan at the time of partition. The land thus vested in the Custodian and the petitioners were not unauthorised occupants; they would continue to be lessees but had not been able to establish their claim for the grant of occupancy rights. The petitioners filed an appeal before the Collector, Hisar, who rejected it vide his order dated 29.5.1991. This resulted in revision petition before Commissioner, Hisar who concurred with the finding of the lower Courts and dismissed the application as per his order dated 20.1.1992 and, therefore revision petition to the Financial Commissioner under Section 84 of the Punjab Tenancy Act who also upheld the orders of the lower Courts as per his order dated 17.6.1996.

(2.) THE petitioners then went in writ to the High Court which in its judgment dated 23.2.1998 quashed the orders of the Financial Commissioner with the directions that the matter be disposed of in accordance with law and by passing a well-reasoned order.

(3.) I have studied the record and heard the arguments of both counsel. Counsel for the petitioners quoted several judgments. 1981 PLJ page 406 (SC), wherein it has been held that if the tenant has been in possession of the land prior to 1947 it does not result in the Custodian having the power to cancel the lease but that it is necessary to determine the effect of the Administration of Evacuee Property Act on the tenant's right to continue in possession and acquire occupancy right. 1985 PLJ page 76, which stipulates that if a tenant is in possession of land since before 14th August, 1947 under Muslims owners who left for Pakistan then Section 12 of the Administration of Evacuee Property Act applies, if the land has not been allotted to displaced persons it cannot be treated to have been acquired. 1989 PLJ page 676, which is to the effect that tenants not shown in revenue record as occupancy tenants but would have obtained such rights before property vested in Custodian can file a suit for such rights against the Custodian under the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act only in Revenue Courts. This in not entirely relevant since the case has not been filed under the Punjab Occupancy Tenants Act, 1988 PLJ page 304 is also not relevant since it pertains to the Haryana Ceiling on Land Holdings Act. Finally, 1986 PLJ page 531 wherein it has been held that the plea that a Financial Commissioner is revisional jurisdiction could not go into questions of facts and decisions of authorities below on questions of fact binding on him is not tenable. In reply, the respondents had only this to say that Section 12 of the Administration of Evacuee Property Act applies.