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PETITIONER: ABDUL QADIR

       Vs.

RESPONDENT: MANAGING OFFICER CUM ASSTT. CUSTODIAN OF EVACUEE PROPERTY,JA

DATE OF JUDGMENT22/10/1979

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. KOSHAL, A.D.

CITATION:  1980 AIR   89            1980 SCR  (1) 993  1980 SCC  (1) 146

ACT:      Displaced Persons (Compensation and Rehabilitation) Act 1954-S-20A(1) Explanation-Scope of.

HEADNOTE:      The appellant purchased a house in July, 1948. Although neither the  vendor nor  the appellant was an evacuee within the meaning  of the  Administration of Evacuee Property Act, 1950, the  appellant was treated as an evacuee and the house was declared  evacuee property  in 1951.  In response to the appellant’s  petition  filed  in  1953,  a  certificate  was granted by  the Government under the unamended provisions of section  16  of  the  Act.  When  the  appellant  asked  for restoration of  the house  the Assistant Custodian passed an order in  1957 granting  restoration. In  the meantime since respondent No.  2 had been inducted as a tenant in the house by the  Custodian after it was declared evacuee property the appellant was asked to take symbolic possession of the house allowing the tenant to continue in possession.      Section 20A(1)  of the  Displaced Persons (Compensation and Rehabilitation) Act, 1954 provided that where an evacuee had made  an application  under section  16 of  the  Evacuee Property Act,  1950 and the Central Government is of opinion that it is not expedient or practicable to restore the whole or any  part of  the property  to the applicant, it shall be lawful for  the Central  Government to  pay to the applicant the value of the property in cash from the compensation pool in lieu  of the  evacuee property.  The Explanation  to this section provided  that the  provisions of  this  sub-section shall  apply,   whether  or   not  a   certificate  for  the restoration of  the evacuee  property had been issued to the applicant under section 16(1) of the 1950 Act.      The Central  Government revised its earlier order dated November 11,  1960 and  gave compensation  to the  appellant under section 20A of the 1954 Act.      The appellant’s  writ petition challenging the order of the Assistant Custodian was dismissed by the High Court.      Dismissing the appeal, ^      HELD: 1. According to section 16 of the 1950 Act, as it stood  before   October  22,   1956,  an   application   for certificate was to be made to the Central Government. On the

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issuance of  the certificate,  restoration order-was made by the Custodian  of Evacuee  Property. In the instant case the certificate was  issued on  October 27, 1956. The High Court was therefore  right in  holding that the certificate issued in accordance with the old law was not valid. [995 D-F]      2. The  provisions of section 20A(1) have got the over- riding effect  by virtue  of the  Explanation appended to it even after a certificate for the restora- 994 tion  of  the  evacuee  property  had  been  issued  to  the applicant on  October 27,  1956. In spite of the certificate it  was   open  to  the  Central  Government  not  to  allow restoration of  the house  to the  appellant and  to pay him compensation only.  The Central  Government has  adopted the latter course.  Respondent No.  2, a  displaced person,  was inducted as  a tenant  in the property a long time back. The property was  sold to  him  by  the  Custodian.  In  such  a situation it  was just  and proper  to refuse restoration of the  property   to  the   appellant  and  to  pay  him  only compensation. [996 F-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2233 of 1969.      From the  Judgment and  Order dated  11-3-1968  of  the Rajasthan High Court in Writ Petition No. 126/62.      Sobhagmal Jain and S. K. Jain for the Appellant.      E. C. Agarwala and Girish Chandra for the Respondent.      The Judgment of the Court was delivered by      UNTWALIA, J.  This is  an appeal by certificate by Shri Abdul Qadir  from the  judgment of  the Rajasthan High Court dismissing his Writ Petition. The house in question belonged to one Mohammed Amin Khan. The appellant purchased the house from the  said owner on 10-7-1948 for Rs. 12,000. It appears that neither  the appellant  nor Mohammed  Amin Khan  was an evacuee within  the meaning of the Administration of Evacuee Property Act,  1950, hereinafter called the Evacuee Property Act. But  under some  mistaken notion probably the appellant was treated  as an  evacuee and the house was declared as an evacuee  property  on  15-11-1951  in  accordance  with  the Evacuee Property  Act. After  such declaration  the question that the  property was  an evacuee  property  could  not  be reopened and  became final.  Upon that footing the appellant filed an application on 26-9-1953 under section 16(1) of the Evacuee Property  Act, as  the section then stood, for grant of a  certificate.  On  27-10-1956  the  Central  Government granted a  certificate under  the unamended provision of law contained in section 16. Pursuant to the above the appellant made an  application to  the Assistant  Custodian of Evacuee Property for  restoration of the house under sub-section (2) of section 16. The Asstt. Custodian, respondent no. 1 passed an order  on 18-3-1957 restoring the house to the appellant. But before  that Shri  Ajjumal, respondent  no. 2  had  been inducted as  a tenant in the house by the Custodian after it was declared  as an  evacuee  property.  The  appellant  was directed to  take symbolic  possession of the house allowing the said  tenant to continue in its occupation on receipt of rent from him.      The appellant came to know later that on 11-11-1960 the Central Government  passed an order under section 20A of the Displaced Persons  (Compensation  and  Rehabilitation)  Act, 1954, hereinafter 995

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referred to  as the  Displaced Persons  Act, whereby  it was ordered that  in respect  of the house in question action be taken in accordance with the said provision of law. On 6-12- 1960 the  Central Government ordered that it had revised its order dated  11-11-1960 and  the petitioner  was entitled to compensation only under section 20A of the Displaced Persons Act. In  the Civil  Suit  filed  by  the  appellant  against Ajjumal it  transpired that a sale deed had been executed in his favour as he was a displaced person in occupation of the house and  the appellant  was entitled to compensation only. He, therefore,  filed a  writ petition  in the High Court to challenge the  action of the Assistant Custodian, respondent no. 2 and the Union of India, respondent no. 3.      The writ  case was contested by all the respondents and it was asserted that Ajjumal being a sitting allottee had to be  rehabilitated   and  the   appellant  was   entitled  to compensation only.      The High Court has quoted s. 16 of the Evacuee Property Act as  it stood  prior to  22-18-1956 and the section as it came into  force after that date. It has rightly pointed out that there  was a change of procedure in the two provisions. According to  section 16  as it  stood before 22-10-1956 the application for  certificate was  to be  made to the Central Government and  the Central Government in its discretion was to  issue  the  certificate.  On  the  issuance  of  such  a certificate   after    following   certain   procedure   the restoration order  had to  be made  by the  Custodian of the Evacuee Property. In the present case only a certificate was issued on  27-10-1956. The  High Court  is right  in holding that the  certificate so  issued in  accordance with the old law was  not valid. Attempts were made before the High Court to show  that the said certificate was issued pursuant to an order alleged to have been made on 1-10.1956. The High Court was not  satisfied about  the correctness of this new stand. Nothing could  be pointed out to us to persuade us to take a view different  from the  one taken  by the  High  Court  in regard to  the question of the invalidity of the certificate issued in favour of the appellant on 27-10-1956.      There is another difficulty in the way of the appellant and that  comes in because of the provision of law contained in section  20A of  the  Displaced  Persons  Act.  The  said section also had undergone a change from time to time and at the relevant  time sub-section  (1) of  section 20A stood as follows:-           (1) Where  any evacuee  or his  heir has  made  an      application under  Sec. 16  of the Evacuee Property Act      and the Central Government is of opinion that it is not      expedient or 996      practicable to  restore the  whole or  any part of such      property to  the applicant by reason of the property or      part thereof  being in occupation of a displaced person      or otherwise,  then, notwithstanding anything contained      in the  Evacuee Property  Act and this Act, it shall be      lawful for the Central Government-      (a)  to transfer  to  the  applicant  in  lieu  of  the           evacuee  property   or  any   part  thereof,   any           immovable property in the compensation pool or any           part thereof,  being in the opinion of the Central           Government as  nearly as  may be of the same value           as the  evacuee property  or, as  the case may be,           any part thereof, or      (b)  to pay  to the  applicant amount  in cash from the           compensation-pool in  lieu of the evacuee property           or part  thereof as  the Central Government having

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         regard to  the value  of the  evacuee property  or           part thereof may, in the circumstances deem fit.      Explanation:- The  provisions of this sub-section shall      apply,  whether   or  not,   a  certificate   for   the      restoration of  the evacuee property has been issued to      the applicant  under sub-sec.  (1) of  sec. 16  of  the      Evacuee  Property   Act,  as   in  force   before   the      commencement of  the Administration of Evacuee Property      (Amendment) Ordinance,  1956, if  the evacuee  property      has not in fact been restored to the applicant." It would  be noticed  that the provisions of section 20A (1) have got the over-riding effect by virtue of the Explanation appended to  it even after a certificate for the restoration of the  evacuee property had been issued to the applicant on 27-10-1956. In  spite of  the certificate it was open to the Central Government  not to allow restoration of the house to the appellant  and to pay him compensation only. The Central Government has  adopted the latter course. Respondent No. 2, a displaced person, was inducted as a tenant in the property long time  back. The  property was  sold to  him also by the Custodian. In  such a  situation it  was just  and proper to refuse restoration  of the  property to the appellant and to pay him  compensation only.  But we  were informed  that the amount of  compensation payable  to the  appellant has  been determined  at   a  somewhat   low  figure   being  in   the neighborhood of Rs. 8,000 only. The appellant had 997 purchased the house for Rs. 12,000 in the year 1948. In that view of  the matter  we recommend  for consideration  of the Government whether  it would be possible for them to enhance the amount  of compensation  at least  to the  figure of Rs. 12,000. The  matter is finally within their jurisdiction and they may decide it as they think it fit and proper to do.      For the  reasons stated  above this appeal fails and is dismissed but without costs. P.B.R.                                     Appeal dismissed. 998