SCA/362619/1989 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3626 of 1989 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MANJULABEN WD/O PRABHUDAS DURLABHJI - Petitioner(s) Versus SECRETARY REVENUE DEPTT. & 4 - Respondent(s) ========================================================= Appearance : MR A.H.DESAI for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.3.1,1.3.2 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,2.2.5 MR JK SHAH, AGP for Respondent(s) : 1 - 3. MR MA KHARADI for Respondent(s) : 4, MR HITESH B PATEL for Respondent(s) : 4, MR JR NANAVATI WITH MR RASHESH A RINDANI for Respondent(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 01/09/2008 ORAL JUDGMENT Heard learned advocates appearing for the SCA/362619/1989 2/14 JUDGMENT parties at considerable length. 2. In the present petition, petitioners have challenged orders at Annexure A, B and D to the petition, effectively by virtue of which the authorities below were pleased to hold and declare that certain land bearing survey Nos.382, 383/2, 388 and 193 of Veraval were evacuee properties and were further pleased to confirm allotment of such lands in favour of respondent No.4 herein being a displaced person. 3. In order to appreciate the controversy, it would be necessary to note briefly the factual aspects arising in the petition. 3.1 The land in question originally belonged to three owners jointly, namely Sidibhai, Valibhai and Noor Rahman. Sidibhai and Valibhai migrated to Pakistan in the year 1943 before independence. However, Noor Rahman continued to live in India even after independence and died in Veraval around the year 1954. After the death of Noor Rahman, his properties were inherited by his son Hussain Noor and after death of Hussain Noor, Bai Fafa, mother of Hussain, Amanur and Marium. The land in question was sold to Jagjivandas Haridas by registered sale deed dated 14.7.54. By subsequent sale deed dated 19.1.56 Jadvji Nagji became owner of the land. Jadavji Nagji thereafter sold the land to Taramati Ratilal by sale deed dated 14.9.59. She, in turn, sold the land to SCA/362619/1989 3/14 JUDGMENT Vrajlal Jadavji by sale deed dated 6.3.61. Vrajlal Jadavji in turn sold the land to the petitioners by sale deed dated 3.10.61. 3.2 Apparently, relying on an order dated 25.8.55 allegedly declaring the property in question as an evacuee property, Mamlatdar by order dated 21.9.74 alloted the land to respondent No.4 herein. The Collector by his order dated 25.4.76 confirmed the order passed by the Mamlatdar. Appeal filed against the order of the Collector came to be turned down by the Authorized Chief Settlement Commissioner by order dated 1.5.79. The petitioners thereupon approached the State Government and by the order dated 13.5.80, proceedings were remanded to the Authorized Chief Settlement Commissioner. The Authorized Chief Settlement Commissioner has passed fresh order dated 3.4.81. The petitioners once again approached the Government and the proceedings were remanded. Once again, the Authorized Chief Settlement Commissioner rejected the appeal of the petitioners on 16.12.86. Once again, the matter was remanded to the Authorized Chief Settlement Commissioner who by his order dated 25.3.88 quashed the allotment of the land in question to respondent No.4. Thereupon, respondent No.4 challenged the order before the State Government. The State Government by the impugned order dated 12.5.89 allowed the appeal of respondent No.4 and reinstated the orders passed by the Mamlatdar and the Collector in the year 1974 and 1976 respectively. The SCA/362619/1989 4/14 JUDGMENT petitioners are therefore before this Court in the present petition. 4. Appearing for the petitioners, learned advocate Shri Anshin Desai submitted that the property in question was never lawfully declared as evacuee property. The said authorities, therefore, could not have dealt with the property on such premises. The allotment of land to respondent No.4 was, therefore, unlawful. 4.1 It was contended that admittedly, even after partition, one of the owners of the land Noor Rahman stayed back in India. He never migrated and the property therefore, could not have been categorized as an evacuee property. 4.2 It was contended that in view of the provisions contained in section 7-A of the Administration of Evacuee Property Act, 1950, the property in question could not have been declared as an evacuee property after 7th May 1954. My attention was drawn to the provisions contained in section 7-A. It was contended that at no point of time any notice was issued by the authorities declaring the property as evacuee property. It was, therefore, contended that the very basis for dealing with the property as evacuee property was missing. 4.3 It was contended that in any case, the petitioners are bonafide purchasers for value SCA/362619/1989 5/14 JUDGMENT without notice. The property had changed hands on as many as 4 or 5 occasions previously and the petitioners had no reason to believe that the same could not have been freely sold or purchased. Long time after the petitioners acquired the property rights, the Mamlatdar in the year 1974 sought to allot the said property to respondent No.4 which was illegal. 4.4 It was contended that even before the so called declaration of the property as evacuee property on 28.5.55, the same was sold to Jagjivandas Haridas. Therefore, the authorities could not have dealt with the property thereafter in any manner. 4.5 It was contended that the so called order dated 25.8.55 declaring the property as evacuee property has never been produced on record. The petitioners have been insisting on production of such a document. However, admittedly, the authorities could not trace any such order from the record and on mere assumption that such an order must have been passed, the petitioners' valuable rights cannot be taken away. 4.6 It was contended that respondent No.4 herein had despite the stay granted by this Court to maintain status qua with respect to the land in question, in utter disregard to the said order attempted to sell his rights in the property to respondent No.5 and thereby divested himself any SCA/362619/1989 6/14 JUDGMENT right, title or interest over the property. 4.7 Counsel relied on several decisions of various High Courts as well as the Supreme Court. However, in view of the conclusion that I have reached as would be evident from the discussion hereinafter, it is not necessary to refer to the authorities cited. 5. On the other hand, learned AGP Shri JK Shah appearing for the Government supported the orders passed by the Authorities and opposed the petition contending, inter alia, that the petitioners have never challenged the order dated 25.8.55 and at this belated stage, without the order on record, it is not open for the petitioners to question the legality thereof. He, however, stated that despite best efforts and time being given by this Court, the authorities have not been able to trace out the original order dated 25.8.55. He placed on record a communication dated 11.7.08 from the Collector, Juangadh wherein it is stated that due to fire, records have been destroyed and it is not possible to produce any of the original documents. 6. Learned advocate Shri Kharadi appearing for respondent No.4 submitted that the property is an evacuee property and the same has been rightly granted to respondent No.4. He submitted that at such a belated point of time, the petitioners cannot seek to get the benefit out of the original or copy SCA/362619/1989 7/14 JUDGMENT of the order not being available on record. He submitted that the petitioners should have verified full details before purchasing the property. He contended that respondent No.5 has also no right, title or interest in the property and that respondent No.4 had never sold the property to respondent No.5 and even the power of attorney had not signed the document in question. 7. Before dealing with the rival submissions, one important aspect of the matter needs to be tackled at this stage. Respondent No.5 was permitted to be joined in the petition pursuant to order dated 25.4.01 passed by the learned single Judge in Civil Application No.6509 of 2000. In the Civil Application, it was inter alia, stated by respondent No.5 that the property in question is already transferred to him by respondent No.4. On the basis of the sale document as well as the order passed by this Court in the Civil Application on 25.4.01, it was contended that respondent No.5 be permitted to oppose the petition. On this limited issue, I have heard learned advocate Shri J.R.Nanavati. Prima facie finding that respondent No.5, in the facts of the case, cannot be permitted to address the Court on merits of the petition, learned advocate Shri J.R.Nanavati submitted that respondent No.5 has vital interest in the litigation. He submitted that respondent No.5 acquired the said property through document dated SCA/362619/1989 8/14 JUDGMENT 1.5.97 by virtue of which respondent No.4 has transferred his interest in the property in question in favour of respondent No.5. He submitted that the same is not a sale deed, but only a transfer of interest in the land which respondent No.4 had in favour of respondent No.5. I however find that this Court on 2.6.89 granted ad interim relief in terms of para 11(C) of the petition and further directed that the matter would be heard on 6.6.89. On 6.6.89, the Court adjourned the hearing to 15.6.89 extending the interim relief granted earlier. Eventually, on 26.6.91, the Court admitted the petition and confirmed the interim relief in terms of para 11(C) of the petition on condition that the petitioner shall maintain status quo with respect to the property in question and shall not transfer, alienate or in any way encumber the property in question. It is this interim order which continued thereafter and continues even today. Para 11(C) of the petition reads as follows:- “(C) pending admission and final hearing of this special civil application, the execution, operation and implementation of the orders dated 21-9.74, 24—5-76 and 12-5-89 (Annexure 'A', 'B' and 'D') passed by the Managing Officer-cum-Mamlatdar, Evacuee Property, Junagadh, the Collector, Junagadh and the Secretary, Revenue Department, Gandhinagar may kindly be stayed;” It can thus be seen that on condition of the SCA/362619/1989 9/14 JUDGMENT petitioners' maintaining status quo with respect to the property in question, allotment of the property in favour of respondent No.4 was suspended. Respondent No.4, therefore, could not have dealt with the property thereafter, despite which as per the say of respondent No.5 herein, respondent No.4 through his power of attorney executed a document dated 1.5.97 in favour of respondent No.5 assigning his right to the said respondent. In the document, it is stated that respondent No.4 has been allotted the land in question. He has, therefore, become entitled to hold the land as owner and has therefore right to sell the land. He stated that occupants of the land have lost the litigation upto the Government level and though against such an order Special Civil Application No.3626 of 1989 has been filed which has been admitted and order has been passed not to deal with the property, no stay has been granted against him and only stay is against the order of the Government. He has, therefore, got right to transfer the property as owner thereof which he in turn transfers to respondent No.5 for sale consideration of Rs.1 lac upon which respondent No.5 becomes owner of the property and upon completion of the litigation would enjoy the property fully. By no stretch of imagination, the above document can be treated as a limited transfer of rights of respondent No.4 in favour of respondent No.5 pendente lite. It is clear from the document that respondent No.4 was attempting to sell the property to SCA/362619/1989 10/14 JUDGMENT respondent No.5 despite clear injunction against him granted by this Court of which he was very well aware. By clear direction, this Court had suspended operation of allotment of the land in question to respondent No.4 as an evacuee. Such injunction was in operation. Respondent No.4 was aware about it. Despite which, during the pendency of the petition, claiming to be the owner of the land in question, he attempted to sell his so called ownership rights to respondent No.5. Respondent No.5 also despite knowledge of the pending litigation and presumably also of the interim orders passed by this Court tried to purchase the property from respondent No.4 in the guise of declaration by respondent No.4 that there is no stay against respondent No.4. I find that the attempt of respondent No.5 to purchase the property in question under such dubious circumstances would disentitle him from opposing the petition on merits and addressing the Court on legal issues. I am conscious of the fact that this Court had granted the Civil Application of respondent No.5 permitting him to join as party respondent. However, these issues were not examined at that stage nor permitting respondent No.5 simpliciter to be joined as respondent would preclude inquiry at the hands of this Court regarding his bonafides and locus standi. I have, therefore, not permitted learned advocate Shri J.R.Nanavati to address the Court on merits of the matter. SCA/362619/1989 11/14 JUDGMENT 8. Reverting to the question of legality of the impugned orders, at the outset, I am of the opinion that though learned advocate Shri Desai had made detailed submissions about the legality of the order dated 25.8.55 of the Government declaring the property as evacuee property and prima facie I find that some of the arguments seem attractive, at this distant point of time, it was not possible for the petitioners to challenge the order itself and in absence of any previous challenge, it would not be open for him to question the legality thereof. One important aspect of the matter, however, cannot be lost sight of. The petitioners have been contending from the outset that no such order, as referred to declaring the property as evacuee property, has ever been passed. At no stage, such an order has been brought on record. The authorities also have admitted that the order is not traceable. In the order dated 12.5.89 passed by the Government, it has been recorded that the custodian has not been able to produce the order dated 25.8.55. Though the original records are available, the record is substantially destroyed and the Collector, Veraval declared on 3.5.89 that the orders dated 25.8.55 and 3.9.56 were not made available to the Secretary. The Secretary, however, on the basis of some entries made in the revenue records believed that such an order must have been passed. To ascertain the full facts, I had requested the learned AGP to make full inquiry and produce on record, if possible, the order SCA/362619/1989 12/14 JUDGMENT dated 25.8.55. As noted, he also showed the inability of the administration to do so conveying that on account of fire, documents were lost. 10. Stand of the respondents has to be seen in the background of the facts of the case. It is possible that in certain circumstances after passage of time, original documents may be lost. It is true that under such circumstances, litigants may not be granted benefit of such developments. However, in the present case, as already noted, even before the so called order dated 28.5.55 declaring the property as evacuee property, the same was sold by the owners thereof in the year 1954. The land changed hands on as many as 4 occasions thereafter and finally it was purchased by the present petitioners in the year 1961. From 1961 to 1974, the petitioners continued to enjoy the land uninterruptedly without any notice. It was only in the year 1974, the Mamlatdar attempted to allot the land to respondent No.4 treating it as an evacuee property. Proceedings were carried further at the hands of the petitioners or respondent No.4 at one stage or the other and finally in the year 1989, the Secretary upheld the allotment of land to respondent No.4. When under such circumstances, long standing rights of the petitioners are disturbed, it is at least necessary that the initial order declaring the property as evacuee property be available on record. Right from 1970, the petitioners have been contending that no such order was passed or in any case could have been legally SCA/362619/1989 13/14 JUDGMENT passed. Quite apart from the serious doubt about any such order having been passed, the petitioners could have at appropriate stage pursued their legal remedy and could have challenged the same in accordance with law. Under such circumstances, the petitioners would not have been faced with the predicament of not having earlier challenged the order of the property being declared as evacuee property. As noted, prima facie I find that in view of the provisions contained in section 7-A of the Administration of Evacuee Property Act, 1950, after the amendment in the Act in the year 1954, no such order could have been passed. Combine effect of these factors would be that it would be highly inequitable and unjust to extinguish the rights of the petitioners on the property in question only going by reference to a so called order declaring the property as evacuee property. None of the authorities could lay their hands on the original order or even copy thereof. Everyone is left to grope in the dark about the nature of such an order. Had such an order been produced in time, the petitioners could have at least availed of their legal remedies and could have considered challenging it in accordance with law. Under the circumstances, I find that the authorities below have committed an error in treating the property as evacuee property and allotting the same to respondent No.4. 11. Though learned advocate Shri Kharadi submitted that respondent No.4 had never executed the SCA/362619/1989 14/14 JUDGMENT document dated 1.9.97 and that his power of attorney also had not signed the same, respondent No.4 has not taken any such contention on record before this Court nor challenged the document before any forum. Learned advocate Shri Kharadi further submitted that in the revenue record there was a reference that the property is an evacuee property. He further submitted that in view of the provisions contained in section 114 of the Evidence Act, a presumption would arise. These contentions in facts of the case cannot be accepted. Mere reference in the revenue record is not sufficient. There was no material to show on what basis such reference was made. Presumption under section 114 is also not irrebutable. 11. In the result, the petition is allowed. The impugned orders at Annexure A, B and D are quashed. Rule is made absolute accordingly. (Akil Kureshi, J.) (vjn)