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Judgment
PANKAJ JAIN, J. (Oral)
By way of present petition, the petitioner is aggrieved of order dated 01.02.1993 passed by Financial Commissioner, Taxation Punjab, Chandigarh.
The property in question, was declared to be evacuee property by way of notification dated 24.02.1985, issued under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Sawan Singh s/o Lal Singh, predecessor-in-interest of the petitioner, being a displaced person, was allotted 57 kanal 06 marlas land comprised in khasra No.13R/10/2, 6, 21, 14R/7, 14, 25, 24R/5/1, 25R/1 and 10/1 at village Dharamkot Bagga, Tehsil Gurdaspur.
The allotment in favour of Sawan Singh was challenged by predecessor-in-interest of the private respondents. The same was cancelled by Settlement Commissioner, Punjab, Jalandhar vide order dated 20.02.1981. He remanded the matter to Tehsildar (Sales) for providing alternate allotment to the petitioner. The order dated 20.02.1981 was challenged by the petitioners vide revision petition under Section 24 of the 1954 Act. The same was allowed vide order dated 31.08.1981 (P-2) observing as under:-
“I have considered the arguments advanced by the learned counsel for the parties and have examined the record. I am afraid, the Punjab Restitution of Mortgage Lands Act 4 of 1938 is not at all attracted in this case. The respondents were required to prefer their claim within the statutory period for the redemption of land which they failed to do. So the land in dispute cannot, in any circumstances, be treated as their ownership. Since the land involved in both the village viz. Dharamkot Bagga and Shakar Mochhian, is of the same character, the Settlement Commissioner should have decided the issue of mortgage at his level; rather than leaving it to the Tehsildar (Sales)-cum-Managing Officer, Gurdaspur. In these circumstances, I accept the revision petition, set aside the impugned order and remand the case to the Settlement Commissioner, Punjab, Jullundur for deciding it afresh.”
Subsequent thereto, Sanad was issued in favour of father of the petitioner on 08.11.1982 which is on record as Annexure P-1. Respondents claiming themselves to be owners filed application under Section 4 of the Restitution of Mortgaged Lands Act, 1938. The Custodian as well as petitioner both were arraigned as respondents. Application filed by respondent was dismissed by Collector vide order dated 07.03.1990 (P-5) holding that the application being barred by time, the present petitioner has become owner.
In appeal filed by respondents before Commissioner, the order was affirmed vide order dated 17.09.1991 (P-6). Still aggrieved, respondents preferred revision petition as provided under Section 10-A of 1938 Act. The same has been allowed vide order dated 01.02.1993 holding that the respondents having been recorded as owners in the record of rights, no notice was served upon them before declaring the property as evacuee and prior to the allotment made in favour of the petitioners.
Counsel for the petitioner while assailing the impugned order would submit that the proceedings being under Section 4 of the 1938 Act, Financial Commissioner ought not have commented upon the legality of the allotment of land to the petitioner and the declaration of the property as evacuee. He submits that till date, the respondents have neither challenged the notification declaring the property as evacuee nor allotment. Thus, the revision ought not have been allowed remanding the matter to Collector.
Per contra, Mr. Garg submits that the Financial Commissioner has rightly interfered in the orders passed by the Collector as well as the Commissioner. The dispute with respect to allotment was remanded to Chief Settlement Commissioner vide order dated 31.08.1981 to decide upon the issue of mortgage. No order was passed pursuant thereto, yet Sanad was issued.
I have heard counsel for the parties and have carefully gone through the records of the case.
There is no serious dispute about the facts. The issue that arises for the consideration before this Court:-
whether Financial Commissioner vide impugned order should have remanded the matter for fresh decision holding that the notice was not served upon the owners before allotment in the year 1980 and thus, the same was bad.
Owners have not challenged notification declaring the property evacuee under 1950 Act till date. Thus, the Financial Commissioner ought not have commented upon declaration of evacuee property. The revision petition should have been confined to maintainability of the application filed by respondent under Section 4 of the Restitution of Mortgaged Land Act, 1938 and on factual merits thereof. The plea raised by Mr. Garg with regard to absence of any order passed pursuant to Annexure P-2, also cannot be considered in view of the fact that the sanad (Annexure P-1) issued in favour of the father of the petitioner has remained unchallenged till date. However, the fact remains that the evacuee property are the rights possessed by Muslims before they migrated to Western Punjab. They only possessed mortgagee rights. Thus, the Financial Commissioner is directed to decide the issue of restitution of mortgage property. It needs to be decided whether respondents are entitled for restitution of mortgagee rights or the same stand extinguished with efflux of time. The matter is remanded to the Financial Commissioner to be decided afresh within a period of 03 months.
11 The parties shall appear before Financial Commissioner on 28.09.2026.
Disposed off, accordingly.