HON’BLE THE CHIEF JUSTICE
SRI PINAKI CHANDRA GHOSE
AND
HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR
WRIT APPEAL Nos.1103 and 1413 of 2012 and 149 of 2013
4th March, 2013
Between:
The Secretary to Government of
Andhra Pradesh, Revenue Department,
Secretariat, Hyderabad and others. … Appellants
And
Mohd. Ibrahim and others. … Respondents
HON’BLE THE CHIEF JUSTICE
SRI PINAKI CHANDRA GHOSE
AND
HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR
WRIT APPEAL Nos.1103, 1413 of 2012 and 149 of 2013
JUDGMENT: (per the Hon’ble the Chief Justice)
These appeals are directed against the order dated 25th March, 2011 passed by the learned Single Judge in Writ Petition No.9440 of 2002, whereby the learned Single Judge allowed the writ petition filed by the writ petitioners.
2) Writ Appeal No.1103 of 2012 has been filed by the Government of Andhra Pradesh; Writ Appeal No.1413 of 2012 has been filed by respondent Nos.35 to 40 and Writ Appeal No.149 of 2013 has been filed by respondent Nos.4 to 11 in the writ petition. For the sake of convenience, the parties herein are referred to as they are arrayed in the writ petition.
3) Brief facts leading to filing of the writ petition are that one Mohd. Amanullah and others claiming to be the legal representatives of Waris Hussain Khan, filed Writ Petition No.1928 of 1991 for a writ of mandamus declaring the action of the respondents in treating the land admeasuring Ac.4.08 guntas in Plot No.24 at erstwhile Jubilee Hills Municipality in Sy.No.403 of Shaikpet Village, now Road No.10, Banjara Hills, Hyderabad or any part thereof as evacuee property as illegal and without jurisdiction. A Division Bench of this Court disposed of the writ petition directing the District Collector, Hyderabad in his capacity as Custodian under the Administration of Evacuee Property Act, 1950 to conduct investigation and to decide whether the property was included in the immovable properties
of Khurshid Ali Khan, which were declared as evacuee properties, and the District Collector shall function within the confines of Section 7 of the said Act and shall not proceed any further to determine any other right of the petitioners. Pursuant to the order of the Division Bench, Joint Collector & Deputy Custodian of Evacuee Property enquired into the matter and declared the subject property as evacuee property by order dated 27.10.1992. Against the said order, Mohd. Amanullah and two others filed an appeal before the Commissioner of Survey, Settlements and Land Records, and the same was rejected as not maintainable. Thereupon, the said Mohd. Amanullah and others filed a miscellaneous petition before the Commissioner, Appeals in the office of Chief Commissioner of Land Administration, who, by order dated 18.4.2002, dismissed the petition as not maintainable. The Commissioner, Appeals observed that the evacuee or his interested persons have failed to challenge the order issued in Notification No.5, dated 30.10.1949 declaring the evacuee properties of Khurshid Ali Khan to have vested in the Custodian, within stipulated time, and that the order passed by the Commissioner, Survey, Settlements and Land Records in the capacity as Custodian General is final and cannot be called in question in any court by way of appeal, revision or any original suit etc. Aggrieved by the same, the present writ petition has been filed by Mohammed Ibrahim and 22 others. As noted above, the Hon’ble Single Judge allowed the writ petition and the operative portion of the order under appeal reads as under:
“…………..the writ petition is allowed and consequently, the order, dated 27-10-1992 passed by the Joint Collector & Deputy Custodian of Evacuee Property, Hyderabad, and the order, dated 18-04-2002 passed by the Commissioner of Survey and Settlements, Hyderabad, are set aside, leaving it open for the respondent Nos.2 and 3 to take steps against the encroachments and for issuance of necessary revenue records with due entries including a fresh supplementary sethwar in the name of the allottee Warris Hussain Khan S/o Mashooq Yar Jung and the writ petitioners……………”
As against the said order, these writ appeals are filed by the Government of Andhra Pradesh and unofficial respondents in the writ petition.
4) Learned Advocate General appearing on behalf of the Government submits that the Hon’ble Single Judge was not correct in holding that the property in question does not belong to Khurshid Ali Khan. He submits that though Plot No.24 admeasuring Ac.4.08 guntas was initially allotted to Warris Hussain Khan, but the record reveals that the total sale consideration was paid by Khurshid Ali Khan and hence it is deemed to have been his property and not of Warris Hussain Khan. Further, the said Khurshid Ali Khan was declared as evacuee under the provisions of Administration of Evacuee Property Act, and by Notification No.5, dated 30.10.1949 issued under the said Act, all the immovable properties of Khurshid Ali Khan including shares and securities were declared as evacuee properties. The subject property was notified under the provisions of the Evacuee Property Act as an evacuee property, and the Hon’ble Single Judge has gone into several disputed questions of fact and title to the property and held that Warris Hussain Khan is the title holder to the property and the writ petitioners as his legal heirs are the owners of the property. He submits that the Hon’ble Single Judge should not have gone into disputed question of title in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, and should have relegated the matter to civil court when all the properties of Khurshid Ali Khan were notified under the Evacuee Property Act. The Hon’ble Single Judge was also not correct in holding that when the property in question is not evacuee property, the question as to who is the real owner of the property is irrelevant as the Government has no say in the matter. He further submits that once the property is declared as evacuee property under the provisions of the Hyderabad Administration of Evacuee Property Regulation, 1358 F., the property vests with the Government and it has every right to deal with the said property and the Hon’ble Single Judge could not have declared that the property belongs to the writ petitioners.
5) The learned Advocate General further submits that the judgments relied on by the Hon’ble Single Judge are not applicable to the facts of the case. He has placed reliance on the judgment of the Supreme Court in Ebrahim Aboobaker v. Tek Chand Dolwani[1] and submitted that Khurshid Ali Khan was an evacuee and all his properties were declared in the notification dated 30.10.1949 and, therefore, the property in question belongs to him as an evacuee property, and mere non-mentioning of the description of the property in the notification would not be fatal to the case.
6) The learned Advocate General has also placed reliance on the judgment of a Division Bench of Patna High Court in Md. Sharifuddin v. R.P. Singh[2] to contend that non-mention of the particulars of the property in the notification would not be an illegality at all and the proceedings before the Custodian cannot be said to be without jurisdiction.
7) Sri D. Prakash Reddy, learned Senior Counsel representing Sri C. Ramachandra Raju, learned counsel appearing for the writ petitioners submits that the notification dated 30.10.1949 issued under Section 6 of the Hyderabad Administration of Evacuee Property Regulation is not valid and does not have the effect of vesting the property in the Custodian as the notification is general in nature without containing any particulars of the property of the evacuee and, therefore, the Hon’ble Single Judge has rightly allowed the writ petition. He submits that Hyderabad Administration of Evacuee Property Regulation, 1949 has been replaced by Administration of Evacuee Property Act, 1950, and Section 7 thereof is akin to Section 6 of Regulation 1949, and under Section 7 of the said Act, it is mandatory that the Custodian shall conduct an enquiry by issuing notices to the interested persons before issuing the notification declaring the property as evacuee property, and the notification shall contain the particulars of the evacuee property without any exception. He submits that a general notification without mentioning the details of the property is not a valid notification and it does not have the effect of declaring the property as evacuee property and consequent vesting in the Custodian. In this case, a general notification was issued from which it is clear that the Custodian did not identify the properties of the evacuee and issued the notification in a mechanical manner without identifying the property by conducting an enquiry as mandated by the Act. In support of the contention that a general notification under Section 7 is not valid, the learned counsel has placed reliance on the judgment of the Supreme Court in Nasir Ahmed v. Assistant Custodian General, Evacuee Property, U.P., Lucknow[3] and Division Bench judgments of this Court in Bhogaraju Vishalakshi v. Managing Officer-cum-Asst. Custodian, Evacuee Property Dept., Hyderabad[4] and Achuta Reddy v. Custodian, Evacuee Property[5] and the judgments of other High Courts.
8) The learned counsel further submits that the property in question does not belong to Khurshid Ali Khan, the alleged evacuee, and the same belongs to Warris Hussain Khan, who was an Army Officer in the then Nizam Government. In the year 1940, the father of Warris Hussain Khan applied for allotment of subject land in the name of his son and accordingly the land was allotted on payment of sale consideration. The Joint Collector in his order dated 27.10.1992 observed that allotment was made in favour of Warris Hussain Khan, however, the further observation of the Joint Collector that Warris Hussain Khan wrote a letter to the authorities to mutate the land in the name of Khurshid Ali Khan is not correct, as he himself admitted in the order that there is no documentary evidence to show that Warris Hussain Khan applied to mutate the land in the name of Khurshid Ali Khan. This fact was also admitted by the District Collector in the written statement filed in O.S.No.2782 of 1984 on the file of the VIII Assistant Judge, City Civil Court, Hyderabad. He, therefore, submits that Warris Hussain Khan was the real allottee of the subject land and the writ petitioners, as legal heirs of the said Warris Hussain Khan, are entitled to the property.
9) Respondent Nos.35 to 40 in the writ petition have filed Writ Appeal No.1413 of 2012 against the same impugned order. The appellants in this appeal contend that they have purchased various portions of the plots on the land in question from their respective vendors who were allotted the said property under the compromise decree dated 9.8.1984 in O.S.No.41 of 1984 on the file of II Additional Senior Civil Judge, City Civil Court, Hyderabad. They, however, claim that subsequently the compromise decree was cancelled on the ground of fraud without their knowledge. The appellants, therefore, contend that they are not bound by the subsequent order setting aside the compromise order and thereby they further claim that their title to the plots purchased by them remains unaffected notwithstanding the compromise decree having been set aside. It is also specifically contended in paragraph 4 of the grounds of appeal that the appellants are initiating separate proceedings challenging the order of the civil court setting aside the compromise decree and that the appellants reserve their right to challenge the said order by separate proceedings. The appellants, therefore, claim that they are bona fide purchasers of their respective plots and having alienated the plots the vendors of the writ petitioners have colluded with each other and got the compromise decree for the purpose of making unlawful gain. The learned Single Judge, while dealing with the case of the impleaded respondents 12 to 21, had noticed the substance of the averments as above, but proceeded to conclude that all the impleded parties have no locus standi to remain as parties to the proceedings in view of the earlier finding of the learned Single Judge holding that the property belongs to the writ petitioners. The appellants in Writ Appeal No.1413 of 2012 are primarily aggrieved by the said adverse finding recorded by the learned Single Judge in the impugned order.
10) Sri M.S. Prasad, learned Senior Counsel appearing for respondent Nos.4 to 11 in the writ petition, while reiterating the submissions made by the learned Advocate General, submits that the notification published in the official gazette in the year 1949 was never challenged either by the evacuee or any of his legal heirs and it has become final. He submits that in a writ of certiorari filed by the alleged legal heirs of Waris Hussain Khan, this Court could not have gone into disputed questions of fact and could not have re-appreciated the evidence basing on which the authorities under the Evacuee Property Act passed orders way back in 1992, and the notification of 1949. He has drawn our attention to the order dated 24.4.1998 passed by a learned Single Judge of this Court in Writ Petition No.7366 of 1993 filed for a direction to the respondents therein not to handover possession of item 2 of the property viz., Plot No.24, Road No.10, Banjara Hills, to Public Works Department. The learned Single Judge recording the statement made in the counter affidavit filed by the Government that the property was declared as an evacuee property by notification dated 7.11.1949 and that it was not challenged and became final, observed that no cause of action survives to the petitioners as the property was declared as evacuee property.
11) The learned Senior Counsel further submits that earlier a Division Bench of this Court in Writ Petition No.1928 of 1991 directed the authorities to enquire as to the identity of Khurshid Ali Khan, who was admittedly declared as evacuee, and when the authority under the Evacuee Property Act conducted an enquiry and passed an order dated 27.10.1992, this Court, in certiorari jurisdiction, cannot enquire into such a finding of fact. The writ petitioners also did not challenge the order dated 29.2.1994 passed by the Custodian General of Evacuee Property i.e. Commissioner of Survey, Settlements & Land Records, and it has become final. No review is provided under the Act and the writ petitioners filed the miscellaneous petition before the Commissioner, Appeals seeking review of the order dated 29.2.1994, which was rightly rejected by the authority. Further, the writ petition is not maintainable for non-joinder of necessary parties.
12) Regarding the contention advanced by the learned counsel for the petitioners that the notification dated 30.10.1949 is bad for not mentioning the details of the immovable properties of Khurshid Ali Khan, the learned Senior Counsel submits that the judgments on which reliance was placed by the Hon’ble Single Judge were based on the judgment of Allahabad High Court, which was overruled by a five-Judge Bench of the Supreme Court in Azimunnissa v. Deputy Custodian, Evacuee Properties, District Deoria[6]. In a similar case reported as Begum Noorbanu v. Deputy Custodian General of Evacuee Property[7], the Supreme Court held that once a person has been declared an evacuee after due notice it would be unnecessary to give notice to him thereafter under Section 7 of the Act and no purpose will be served by issuing such notice because the earlier notification would be conclusive against the evacuee on the question of his migration to Pakistan. In that case, a general notification without any particulars of the property of the evacuee was issued by the Custodian.
13) In view of the contentions advanced by the learned counsel, firstly, we may consider the question whether the property in question was rightly declared as evacuee property under the provisions of the Administration of Evacuee Property Act, 1950. The procedure for notifying any property as evacuee property is provided in Section 7 of the said Act, which is akin to Section 6 of Hyderabad Administration of Evacuee Property Regulation, 1949. Similarly, two other important provisions of the Administration of Evacuee Property Act also need to be noticed. They are extracted hereunder:
“7. Notification of evacuee property.-(1) Where the Custodian is of opinion that any properly is evacuee property within the meaning of this Act, he may after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property.
(1A) Where during the pendency of any proceeding under sub-section (1) for declaring any property to be evacuee property any person interested in the property dies, the proceeding shall, unless the Custodian otherwise, directs, be continued and disposed of as if such person were alive.
(2) Where a notice has been issued under sub-section (1) in respect of any property, such property shall, pending the determination of the question whether it is evacuee property or otherwise, be incapable of being transferred or charged in any way, except with the leave of the Custodian and no person shall be capable of taking any benefit from such transfer or charge except with such leave.
(3) The Custodian shall, from time to time, notify, either by publication in the Official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under sub-section (1).”
“8. Vesting of evacuee property in the Custodian.-
(1) Any property declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State.-
(a) in the case of the property of an evacuee as defined in sub-clause (i) of clause (d) of Section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India;
(b) in the case of the property of an evacuee as defined in sub-clause (ii) of clause (d) of Section 2, from the 15th day of August, 1947; and
(c) in the case of any other property, from the date of the notice given under sub-section (1) of Section 7 in respect thereof.
(2) Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest:
Provided that where at the commencement of this Act there is pending before the High Court, the Custodian or any other authority for or in any State any-proceeding under Section 8 or Section 30 of the Administration of Evacuee Property Ordinance, 1949 (12 of 1949), or under any other corresponding law repealed by the Administration of Evacuee Property Ordinance, 1949 (27 of 1949), then notwithstanding anything contained in this Act or in any other law for the time being in force, such proceeding shall be disposed of as if the definitions of' evacuee property' and 'evacuee' contained in (Section 2) of this Act had become applicable thereto.
(2A) Without prejudice to the generality of the provisions contained in sub-section (2), all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, notwithstanding any defect in, or the invalidity of, such law or any judgment, decree or order of any Court, be deemed for all purposes to have validity vested in that person, as if the provisions of such law had been enacted by Parliament and such property shall, on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly, any order made or other action taken by the Custodian or, any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken.”
A reading of Section 7 discloses that if the Custodian is of the opinion that any property is evacuee property within the meaning of the Act, he may hold an inquiry into the matter after giving notice to the persons interested and pass an order declaring any such property to be evacuee property. Section 8 is to the effect that any property declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State, and notwithstanding any defect in any law repealed by the Administration of Evacuee Property Act, all property purported to have vested in the Custodian shall be deemed to have been evacuee property declared as such within the meaning of the said Act.
14) Rule 7 of the Administration of Evacuee Property (Central) Rules, 1950 states the manner in which a notification is issued under sub-section (3) of Section 7 of the Evacuee Property Act and the particulars such notification shall contain. The same reads:
“7. Notification of Evacuee Property under sub-section (3) of Section 7.-
(1) The Custodian, after holding such enquiry, as he deems fit and on being satisfied that a particular property is evacuee property, shall notify the same in the Official Gazette or in any local newspaper or on the notice board kept for that purpose in his office. In the last mentioned case, the Custodian may, in addition, cause a copy of the notification to be affixed on the evacuee property.
(2) The notification shall be in Form 2 and shall give full particulars of the property regarding the location, municipal numbers, etc. In case of agricultural land, it shall specify, as far as possible, its khasra number and the village where it is situated. Any error or irregularity in the drawing up or the publication of the notification shall not be deemed to detract from the validity of such a notification or otherwise afford a valid defence to claim of the Custodian to the property as having vested in him.
(3) A list of all such evacuee property brought up-to-date in each State shall be published once a year, in the official Gazette or in such other manner as the Custodian deems fit.”
Rule 7 (1) of the Evacuee Property Rules, 1950 is to the effect that the Custodian, after holding enquiry, and on being satisfied that a particular property is evacuee property, shall notify the same in the official Gazette or in any local newspaper etc. Sub-rule (2) of Rule 7 says that the notification shall be in Form No.2 and shall give particulars of the property regarding the location, municipal numbers etc., however, any error or irregularity in the drawing up or the publication of the notification shall not be deemed to detract from the validity of such a notification.
15) In this case, the contention of the writ petitioners is that the mandatory requirement under Section 7 of the Act is that the notification shall contain the particulars of the evacuee property and a general notification without mentioning the details of the property is not valid and does not have the effect of declaring the property as evacuee property and does not vest in the Custodian. Whereas, it is the case of the appellant Government that non-mentioning of the details of the property in the notification would not be fatal to the case; therefore, the finding recorded by the Hon’ble Single Judge that there is no notification in the eye of law so far as the property in question is concerned and consequently the property in question was not declared as evacuee property and it was never vested with the government, cannot sustain.
16) The Hon’ble Single Judge has placed reliance on the judgment of the Supreme Court in Nasir Ahmed (supra) and of this Court in Achuta Reddy (supra) and proceeded to observe that a general notification without the description of the property is not a valid notification. However, the learned Advocate General has placed reliance on another judgment of the Supreme Court in Ebrahim Aboobaker (supra) and of a Division Bench of the Patna High Court in Md. Sharifuddin (supra). On reading the judgment in Ebrahim Aboobaker, we find that the question whether the notification without description of the property is not valid did not fall for consideration of the Hon’ble Judges of the Supreme Court. In another judgment of the Patna High Court, relied on by the learned Advocate General, the learned Judges held:
“It is true that the particulars of the property which the Custodian sought to notify are not stated in the notice, but no prejudice thereby has been caused to the petitioner inasmuch as he had an opportunity to contest this notice before the Assistant Custodian, and, ultimately, before the Custodian, and, as a matter of fact, he did contest them, and, therefore, it cannot be said that he was not aware of the particulars of the properties which the Custodian sought to notify.
In the petition which was filed by Qurban before the Assistant Custodian, Bihar, under S. 7 of the Act, the various properties were specified which according to the first informant, were evacuee properties. The petitioner claims only three of the holdings out of these evacuee properties as his own, and, therefore, it cannot be said that the non-mention of the particulars of the properties in the notice has caused any prejudice to the petitioner. It was, at the best, a defect, which did not go to the root of the jurisdiction of the Custodian nor made the proceeding without jurisdiction. It was a mere clerical error or irregularity at the best, and, therefore, it was not an illegality at all.”
The Hon’ble Judges of the Patna High Court while dealing with the contention raised by the petitioner therein that the particulars of the property which the Custodian sought to notify are not stated in the notice, observed that non-mention of the particulars of the properties in the notice has not caused any prejudice to the petitioner as he had an opportunity to contest the notice before the Custodian.
17) In Nasir Ahmed (supra), the notice issued by the Custodian under Section 7 of the Act was challenged. While allowing the appeal, the Supreme Court held:
“Under Rule 6 the notice under Section 7 must be issued in the prescribed form and contain the grounds on which the property is sought to be declared evacuee property. As stated earlier, the notice that was issued in this case merely reproduced the form without mentioning the particulars on which the case against the appellant was based. It was essential to state the particulars to enable the appellant to answer the case against him. Clearly therefore the notice did not comply with Rule 6 and could not provide a foundation for the proceedings that followed.
What is said in the preceding paragraph makes it plain that the authority concerned did not apply his mind to the relevant material before issuing the notice. The same thing is apparent from another fact. It has been stated that on November 29, 1952 the Deputy Custodian, Deoria, dropped the proceeding seeking to declare the appellant an intending evacuee and that on the same day he directed the initiation of a proceeding under Section 7. Section 7 requires the Custodian to form an opinion that the property in question is evacuee property within the meaning of the Act before any action under that section is taken. Also, under Rule 6 the Custodian has to be satisfied from information in his possession or otherwise that the property is prima facie evacuee property before a notice is issued. On November 29, 1952 no evidence was found to support a declaration that the appellant was an intending evacuee. There is no material on record to suggest that on that very day the authority had before him any evidence to justify the initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property. The notice under Section 7 thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case. We are therefore unable to agree with the High Court that the Assistant Custodian General's order did not suffer from any error.”
In the above case, the Supreme Court was dealing with the question whether the notice should contain the particulars of the property sought to be notified as evacuee property and held that it was essential to state the particulars to enable the appellant to answer the case against him.
18) In Azimunnissa (supra), though the appellants contested the correctness of the fact that the property was properly described, the Hon’ble Judges of the Supreme Court did not consider the question in view of the facts of that case.
19) In Begum Noorbanu (supra), the Supreme Court held as follows:
“It seems to us that the notice contemplated by S. 7 of the Act is in the first place intended to provide an opportunity to the person whose property is in the opinion of the Custodian an evacuee property to satisfy the custodian that he is not an 'evacuee' as defined in S. 2(d) of the Act. For, if he is not an 'evacuee' his property cannot be declared evacuee property. In the second place it is to afford an opportunity to persons who have not migrated to Pakistan to satisfy the Custodian that the property which in the opinion of the Custodian, is evacuee property does not belong to an evacuee or that an evacuee has no interest therein. Therefore, once a person has been declared an evacuee after due notice it would be unnecessary to give notice to him thereafter under S. 7 of the Act. No purpose will be served by issuing such notice because the earlier notification would be conclusive against the evacuee on the question of his migration to Pakistan. Having migrated to Pakistan the evacuee loses all interest in the property left by him in India in the sense that upon its being declared as 'evacuee property' it would vest in the Custodian alone u/S. 8(1) of the Act. That is to say, where any property of a person has been declared 'evacuee property' he must be deemed to be an evacuee. The only persons who could claim to be interested in the property would, therefore, be those who have not migrated to Pakistan and who may possibly claim that the property is theirs and did not belong to the evacuee. It is immaterial for the purposes of S.7 whether a particular property had actually devolved on the evacuee before migration to Pakistan or devolved later. Whatever be the point of time at which the property devolved on the evacuee it would become evacuee property in the sense that it is liable to be declared as evacuee property and to vest in the Custodian, provided that the devolution occurred before the power of the Custodian to declare any property as evacuee property came to an end under S.7-A of the Act. It is not disputed that the devolution of the Khan Bahadur's estate occurred and the declaration of Zarina's share of evacuee property was made at a time when it was competent to the Custodian to make it. Apart from that there is a good deal of force in the argument that the objection of non-service of notice could properly be taken only by the person on whom the notice is not served and not by third parties.”
In the above case, the Supreme Court observed that once a person is declared as evacuee, it would be unnecessary to give notice to him thereafter under Section 7. However, in paragraph 12 of the judgment, the Supreme Court held:
“……………..The scheme of the Act does not require that grounds should be specified in the notification. But of course a sufficient description of the properties is required to be given so that the properties could be readily identified…………………”
20) In Bhogaraju Vishalakshi (supra), a Division Bench of this Court dealt with the question whether a notification in general terms would amount to vesting of specific properties of the evacuee in the Custodian, and held that a general notification will not have the effect of vesting the particular property in the Custodian so as to negative the title of any other person to that property.
21) In Achuta Reddy (supra), a Division Bench of this Court considered a similar question. Following the earlier judgment in Bhogaraju Vishalakshi (supra) it was held:
“26. In this case, we are not concerned with the other properties of the evacuee; but we are only concerned with this particular item of property, which is the subject-matter of this writ petition and the notification does not give any description of the property in question, its situation, survey numbers, boundaries or any other details relevant for identifying the property as belonging to the evacuee and taken over by the Custodian.
27. Therefore, in the absence of any description of the property or any other particulars to enable a party to know that this is an evacuee property, it would be difficult for us to sustain the notification in so far as it concerns the petitioner. The decision in Vishalakshi’scase governs this case and, therefore, the petitioner is entitled to seek the relief under Article 226 of the Constitution.”
In the above case, the Division Bench held that the notification should contain description of the property sought to be notified. A reading of the above two judgments shows that Amendment Act 1 of 1960 by which Section 2A to Section 8 was inserted, was not noticed by the Hon’ble Judges of this Court.
22) An analysis of Section 7 of the Evacuee Property Act and Rule 7 of the Evacuee Property Rules shows that if the Custodian is of the opinion that any property is evacuee property within the meaning of the Act, he may pass an order declaring any such property to be evacuee property after issuing notice to the interested persons and after holding an enquiry. Though Rule 7(2) of the Evacuee Property Rules is to the effect that the notification shall give particulars of the property, however, any error or irregularity in the drawing up or the publication of the notification shall not invalidate the notification. It is also very crucial to notice that under sub-clause (1) of Section 8, as soon as any property is declared as evacuee property under Section 7, it automatically vests in the Custodian for the State, and admittedly, in the present case, there was a notification under Section 7. We will, however, assume that the said notification was without any particulars of the properties of the evacuee. However, the vesting of the properties is automatic on declaration of any property as evacuee property under the Administration of Evacuee Property Act. Further, under Section 8(1), all properties of the evacuee automatically vest in the Custodian. Further, by virtue of amendment made to Section 8 by inserting Section 2A extracted above, by virtue of Amendment Act 1 of 1960, even if there is any defect or invalidity in any law, it will not affect such vesting of the property in the Custodian. Furthermore, it is also crucial that the said Amendment Act 1 of 1960 which added Section 2A to Section 8 was an amendment with retrospective effect and hence the said amended provision is deemed to exist from the date the Administration of Evacuee Property Act came into force (17.4.1950). Further, under Section 4 of the said Act, the orders or rules made under the provisions of the present Act override any other law or instrument inconsistent with the present law. The retrospective effect given to sub-section 2A of Section 8 fell for consideration before the Supreme Court in M/s. Haji Esmail Noor Mohammed and Co. v. Competent Officer, Lucknow[8]. The said decision also dealt with the ratio of the decision of Allahabad High Court in Azimunnissa’s case (AIR 1957 All. 561), on which reliance is placed by Sri M.S. Prasad, learned counsel for the appellants in Writ Appeal No.149 of 2013, on the effect of retrospective amendment to sub-section 2A of Section 8. Paragraphs 7 and 8 of the said judgment are, therefore, relevant and read as under:
“7. Section 8 (2) of this Act corresponds to S. 8 (2) of the Central Ordinance No. 27 of 1949. This Act repeals the Ordinance and practically enacts its provisions. Under this Act also the automatic vesting of the evacuee property in the Custodian under the U. P. Ordinance No. 1 of 1949 deemed to have continued to vest under the Custodian appointed under the Central Ordinance No.27of 1949 is continued by fiction, under this Act. The High Court of Allahabad in Azimiunnissa's case, AIR 1957 All 561, held that there was no valid vesting under Ordinance XII of 1949 or even under Ordinance XX of 1949 for lack of legislative competence and that, therefore, the deeming clause in Ordinance XXVII of 1949 or Act XXXI of 1950 would not continue the vesting. This defect was cured by Act 1 of 1960 retrospectively validating the vesting under the earlier laws. This aspect of the case was considered by this Court in Azimunissa v. Deputy Custodian, Evacuee Properties, District Deoria, 1961-2 SCR 91 at p. 104: (AIR 1961 SC 365 at p. 371). Therein Kapur, J., speaking for the Court, observed:
"The effect of S. 8 (2-A) is that what purported to have vested under S. 8 (2) of Ordinance XXVII of 1949 and which is to be deemed to be vested under S. 8 of the Act which repealed that Ordinance, notwithstanding any invalidity in the original vesting or any decree or order of the court shall be deemed to be evacuee property validly vested in the Custodian; and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested, (2) removes all defects or invalidity in the vesting or fictional vesting under S. 8 (2) of Ordinance XXVII of 1949 or S. 8 (2) of the Act which repealed the Ordinance; (3) makes the decrees and judgments to the contrary of any Court in regard to the vesting ineffective; (4) makes the property evacuee property by its deeming effect: and (5) validates all orders passed by the Custodian in regard to the property".
In the instant case, from the narration of the facts it is clear that Abdul Latif Hajee Esmail, in view of the disturbed conditions, went away to Pakistan in the year 1948 and therefore, he was an evacuee within the meaning of the U. P. Ordinance 1 of 1949. His property, i. e., his interest in the partnership business, automatically vested under the Ordinance in the Custodian. The Deputy Custodian of Evacuee Property Kanpur issued notice to the firm on September 7, 1949, informing the firm that the Kanpur property of the firm would be taken possession. The said vesting was deemed to have taken place under the Central Ordinance 27 of 1949 and the Central Act 31 of 1950. Subsequent proceedings were taken under the provision of the said Central Ordinance and Act. As stated above, the automatic vesting of Abdul Latif Hajee Esmail's share in the firm was continued by Central Ordinance 27 of 1949 and Central Act 31 of 1950 by the deeming provisions contained therein. Therefore, no question of issuing further notice or making a declaration that the said interest was evacuee property under S. 7 (1) of the Ordinance arises. Section 7 only applies to properties other than those which have been vested automatically in the Custodian. Such a vesting cannot be reopened under the Central Ordinance or the Central Act, for it has already vested thereunder by fiction. It follows that the petitioners have no interest in the share of Abdul Latif Hajee Esmail in the firm which had vested in the Custodian.
8. That apart, after the Central Act 31 of 1950 came into force on April 17, 1950, the Deputy Custodian of Evacuee Property (Judicial) Allahabad, made an order on the objection filed by the firm . Therein he held that the share of Abdul Latif Hajee Esmail in the firm i.e., 5 annas out of 19 annas and 3 pies, vested in the Custodian and on that finding declared it to be evacuee property. That order had become final. The firm did not take any further proceedings under the Act to set aside that order which had become final. It is no longer open to it to question this finding. It follows that the petitioners have no fundament right in regard to the interest of Abdul Latif Esmail in the partnership.
Xx xx xx xx”
23) We are also unable to uphold the judgment of the learned Single Judge for another reason. A writ of certiorari was sought for by the writ petitioners assailing the order of the second respondent in his capacity as the Custodian General. The said appeal was directed against the order dated 29.2.1994 passed by the third respondent. The second respondent, in the said appellate order, held that the properties in question were declared as evacuee properties and vested in the Custodian by virtue of Notification No.5 dated 30.10.1949 published in Hyderabad Gazette No.6 dated 7.11.1949, but no appeal was preferred against the said notification either by the evacuee or any person interested. The finality attached to the said vesting, therefore, could not be disturbed by filing an appeal against the orders of the third respondent. We may also notice that the third respondent came to pass orders on the basis of the application made by the writ petitioners almost seeking declaration of title in their favour. The maintainability of the appeal and the correctness of the said order of the second respondent are not gone into by the learned Single Judge in the impugned order but all the said orders have been set aside while exercising certiorari jurisdiction.
24) The Custodian notified all the properties of Khurshid Ali Khan as ‘evacuee properties’ by Notification dated 30.10.1949 issued under Section 6 of Hyderabad Administration of Evacuee Property Regulation, 1949.
It appears that no one had challenged the said notification at any time identifying the property of Khurshid Ali Khan as ‘evacuee property’ on the ground of non-description of the property in the notification issued by the Custodian in the year 1949.
Now, the question is,
whether after a lapse of fifty years, the writ petitioners can be permitted to challenge it on the ground of non-description of the property in the notification issued by the Custodian in the year 1949. In our considered opinion, the answer must be in the negative. No material has been placed on record by the writ petitioners that the writ petitioners or their predecessors-in-interest have challenged the notification of the Custodian claiming interest in the property or the notification is vitiated on the ground of non-description of the property. In such view of the matter, it should be construed that the notification of the Custodian had attained finality and the property vested in the Custodian.
The writ petitioners or their predecessors-in-interest having failed to initiate appropriate proceedings to challenge the notification at the relevant time, cannot, now be permitted to challenge the same.
The decisions relied upon by the learned counsel for the writ petitioners
inBhogaraju Vishalakshi and Achuta Reddy (supra) wherein it was held that the notification would be invalid for non-description of the property, in our opinion, would have come to the aid of the writ petitioners had the writ petitioners or their predecessors-in-interest been diligent enough in challenging the notification at the appropriate time.
25) It is also seen from the order of the Joint Collector dated 27.10.1992 that due to migration of people to Pakistan and land reform laws, there was little confusion over title of land especially in Shaikpet Village and this gave rise to bringing in forged/bogus documents and government lands were sold to gullible buyers.
Then, on instructions from the Chief Secretary, the Collector, Hyderabad enquired into the matter in 1962, and the Government recognized the rights of 41 persons covering 50 plots vide Memo No.3933/02/64-D, dated 6.12.1967, as full payment had been made by them.
Out of them, the plot in question which was allotted to Khurshid Ali Khan is one. Thus, it appears that after the notification was issued on 30.10.1949 declaring the properties of Khurshid Ali Khan as evacuee properties, and consequent vesting in the Custodian, the Government did not take any steps to protect the property in question.
The Joint Collector also observed that from 1967 to 1982, no one approached the Collector, Hyderabad for mutation of land in his name and for delivery of possession.
Thereafter, some persons laid claim over the subject plot and on enquiry, it was found that the subject plot was originally allotted to Waris Hussain Khan and subsequently transferred in the name of Khurshid Ali Khan, who was in Hyderabad Civil Service, and migrated to Pakistan.
Thus, we are of the view that the Joint Collector, after thorough enquiry, found that the title over the subject plot was conferred on Khurshid Ali Khan though mutation was not effected in Revenue records due to the above reasons. Therefore, we are unable to agree with the finding recorded by the Hon’ble Single Judge that it is not known whether such Khurshid Ali Khan exists and it cannot be said that the property belonged to him and it is an evacuee property in the absence of any material to show his right, title and interest.
26) As regards the contention raised by the learned Advocate General that the Hon’ble Single Judge should have relegated the matter to civil court, we are of the view that the Hon’ble Single Judge could not have decided disputed questions of fact in the writ petition, on which a specific finding was given by the Joint Collector in the impugned order, especially when different persons are claiming the property in question, and it would have been in the fitness of things to direct the parties to work out their remedies in an appropriate forum.
27) The case of the appellants in Writ Appeal No.1413 of 2012 is that pursuant to a compromise decree dated 9.8.1984 passed in O.S.No.41 of 1984 by the Court of II Senior Civil Judge, City Civil Courts, Hyderabad, their vendors sold the properties to them and put them in possession. However, subsequently, the compromise decree was set aside on the ground of fraud. The Hon’ble Single Judge did not agree with the contention of these appellants that they have got abiding interest in the property and that they are vital parties in these proceedings and accordingly held that they have no locus standi to remain as parties to the writ petition. In the view we have taken that the Hon’ble Single Judge could not have decided disputed questions of fact, when especially different persons are claiming the property in question, we are of the opinion that the appellants in these appeals are also proper and necessary parties. Therefore, if so advised, these appellants may agitate their rights before the appropriate forum.
28) For the foregoing reasons, the impugned order of the Hon’ble Single Judge is set aside and the writ appeals are allowed subject to the above observations, however, with no order as to costs.
___________________________
PINAKI CHANDRA GHOSE, CJ
4th March, 2013.
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VILAS V. AFZULPURKAR, J.
LR COPY BE MARKED.
ARS
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