Gopi Chand (died) through Legal Representatives Smt. Bhagwanti and ors. vs State of Punjab and ors.

J.V. Gupta, J.—This writ petition is directed against the order of the Financial Commissioner, Revenue, and Secretary to Government, Punjab dated June 20, 1980, copy, Annexure P. 9, passed under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter called the Act).

The petitioner made the application for transfer of a portion of the property, bearing No. BII S5/92A, situated in Mohalla Premgarh, Hoshiarpur, on the ground of his possession thereof. His application was rejected by the Managing officer, vide order dated December 6, 1976 copy, Annexure P.3. He filed an appeal and the case was remanded by the Settlement Commissioner, vide his order dated December 21, 1977, copy Annexure P. 4. After remand, the TehsildarcumManaging Officer, Hoshiarpur, visited the spot and came to the conclusion that the petitioner was not in occupation of the property and it was in occupation of Smt. Kesari, widow of Charan Dass, since long. Accordingly he rejected the application. Aggrieved against the same, the petitioner filed an appeal, but it was rejected by Settlement Commissioner, Jullundur, vide order, dated July 10, 1978. The petitioner then filed a revision petition but to no avail. Subsequent thereto, he moved an application under section 33 of the Act, which came up for hearing before the Financial Commissioner, Revenue, and Secretary to Government, Punjab, with delegated powers of the Central Government, under section 33 of the Act. The contention of the petitioner before the Financial Commissioner was that the portion bearing No. BIIIS. 592A, was portion of the property already transferred to him, but the price of the left out portion was not charged by the Department and the property transferred to him as also the left out portion belonged to one Muslim evacuee and it could not be separately disposed of. He also urged that he had raised construction over the disputed area in the year 1976 and even rent from January 1, 1966 to the year 1978 had also been paid by him. On behalf of Smt. Kesari Devi, respondent No. 5, it was argued that this property was in possession of her husband since the year 1971 and that her deceased husband had been paying the rent regularly. It was also submitted that it was admitted by the petitioner himself in year 1974 that the possession was taken over by Fateh Chand son of deceased Charan Dass, the husband of Smt. Kesari Devi, respondent No. 5. Subsequently, on the basis of possession the disputed portion had rightly been transferred to her. Thus, the basic question before the Financial Commissioner was as to who was physically in possession. The learned financial Commissioner after appreciating the respective contentions of the parties and a perusal of the record concluded :

"From the position discussed above, the only conclusion that can be drawn is that the petitioner is not proved to be in occupation of the land, in dispute, and according to his admission in the year 1974, the possession of it had been taken over by Khazan Chand son of Charan Dass. Now it is too late in the day for him to argue that he is in possession if this piece of land and it should have been transferred to him on the basis of possession."

The main contention raised on behalf of the counsel for the petitioner is that the petitioner was in possession of the disputed property inasmuch as he was paying the rent regularly and, therefore, the same could have been allotted to him. According to the learned counsel the possession of the respondents was wrong and illegal, if any. In support of this contention he referred to Union of India and others v. Santokh Singh and another, 1967 Current Law journal 619 and Smt. Jamna Bai and another v. Union of India and others, AIR 1965 Punjab, 395. According to learned counsel even Fateh Chand son of Charan Dass, the predecessorininterest of the respondent Kesari Devi was convicted by the Criminal Court vide order dated 27th May, 1976, copy Exhibit P. 2. Thus argued the learned counsel that such a possession if any of the respondent Kesar Devi could not be held to be legal possession so as to entitle her to the allotment.

After hearing the counsel for the parties, I do not find any merit in this contention. After the said order of the Judicial Magistrate, the authorities under the Rehabilitation Act considered the matter and have given concurrent finding that Smt. Kesar Devi widow of Charan Dass was in occupation of the premises. The authorities referred to above do not support the case of the petitioner. In Santokh Singh''s case (supra) what was held was that his tenancy of the property obviously must be taken to have been accepted by the proper authority and his occupation of it no longer remained unauthorised. In the present case the finding is that the petitioner was not in occupation of the site in dispute and that being so mere payment of rent was of no consequence. Similarly in Smt. Jamna Bai case (supra) it was held that the occupation under the words "occupation" under the Displaced Persons (Compensation and Rehabilitation) Rules denotes occupation in one''s own right. Case of a person in occupation as licensee at the sufferance of an allottee is not covered by it. In the present case the respondent has not been found to be in possession at sufferance. Rather finding is that she is occupying the site in dispute in her own right and also paying rent to the authorities. Thus in my opinion, in the facts and circumstances of this case, there is no error apparent on the face of the record so as to invoke the extra ordinary writ jurisdiction of this Court.

4A. So far as the other contention raised in the writpetition, that a local person cannot be transferred property forming part of compensation pool is concerned, the same was never raised before the authorities concerned who could go into the matter after allowing the parties to substantiate their claims. Moreover, it is not a pure question of law, on the facts admitted by both the parties, that may be gone into by this Court, in writ jurisdiction. Therefore, the petitioner cannot be allowed to agitate this matter for the first time in this writ petition. Consequently, this writ petition fails and is dismissed with costs.

During the pendency of this writ petition, the petitioner moved Civil Miscellaneous Application No. 1604 of 19876, seeking amendment of the writ petition. Vide this Court order dated May 26, 1986, it was ordered to be heard with the main case. By virtue of the said amendment, the petitioner wanted to challenge the orders dated February 28, 1979 and April 17, 1979. However I do not find that any case is made out for allowing the amendment of the writ petition. Consequently, the Civil Miscellaneous Application stands dismissed.

Order accordingly