HON’BLE SRI JUSTICE B. PRAKASH RAO W.P.No. 9440 of 2002 DATE: 25-03-2011 Between: Mohammed Ibrahim andothers …….. Petitioners and Government of A.P. and others ……… Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO W.P.No. 9440 of 2002 ORDER: In this writ petition, which is filed under Article 226 of the Constitution of India, the petitioners seek writ of Certiorari assailing the orders, dated 18-04-2002 passed in an appeal by respondent No.2, rejecting the appeal filed against the orders of the respondent No.3, dated 27-10-1992. Briefly the facts, which gave rise to the present proceedings, are that the petitioners are claiming their right, title and interest in respect of the land in Town Survey Nos.1/3/3 and 1/3/2 of Block H-1 of ward No.10, Shaikpet village, Golconda Mandal, which totally admeasures to Acs.4-08 guntas stated to be the assignment made by the then Administration of Surf-e-Khas belonging to the Nizam HEH Mir Osman Alikhan, which is a personal property of the then Nizam, in the newly established Jubilee Hills Municipality in the year 1342 F by the said Nizam. The said Jubilee Hills Municipality carved out a layout in respect of non agricultural kancha lands in Jubilee Hills and Banjara Hills and sold the plots to the High Officials and Nobles with a view to develop the area in an orderly way. This took place during the time of silver jubilee celebrations on completion of 25 years rule of the Nizam. The said Municipality was merged in the Municipal Corporation of Hyderabad in 1948. According to the petitioners, one Warris Hussain Khan S/o Mashooq Yar Jung was allotted plot No.24 on the eastern branch road admeasuring Ac.04-08 guntas on payment of fixed price of Rs.2,100/- at the rate of Rs.500/- per acre. However, those proceedings could not possibly be finalized for some reason or the other, including the mutation of their names in the revenue records as the entire country particularly the Nizam State was undergoing the political change, social unrest and revolt. The government of Andhra Pradesh in its memo No.3933/Q2/64-17, dated 06-12-1967 recognized such assignments made to various persons after verification as to the payment of the cost into the Sarf-e-Khas treasury. Accordingly, as per the said orders of the Government, the Recommendations made by the Board of Revenue were accepted in respect of the claims of 41 persons and ordered the issuance of the pattas. As per the records, Warris Hussain Khan was allotted plot No.24 admeasuring Acs.04-08 guntas as shown at serial No.14 in the list accompanying the proceedings, dated 06-12-1967. Hence, the petitioners, claiming to be the legal heirs of Warris Hussain Khan since he died, are pursuing the revenue authorities and accordingly a supplementary sethwar was issued and mutation was also effected in the revenue records apart from issuance of no objection certificate in the year 1988. The petitioners also claimed to be in possession and enjoyment of the said property. However, in view of certain proceedings, the District Collector issued a letter, dated 25-01-1983 calling upon the rival claimants through one Khurshid Ali Khan to approach the Civil Court to establish their rights as to the title and possession over the said property and report back to the Collector for implementation of their rights in the Revenue records. Further in connection with the final release of the layout by the MCH for release of the layout already approved by the HUDA of the land, a notice, dated 10-08-1989 was issued by the District Collector to the petitioners for furnishing of the documents of title since the land in plot No.24 of Jubilee Hills Municipality situated on Road No.10, Banjara Hills, is also one among the properties of Khurshid Ali Khan as per notification No.5, dated 30-10-1949 and vested in government. Accordingly, the petitioners have appeared before the District Collector and submitted their objections along with the documents. Since no action is being taken, the petitioners have filed W.P.No.1928 of 1991 challenging the very same notice. Thereupon a Division Bench of this Court as per the order, dated 19-09-1991 directed that: “It will be sufficient if the Collector in his capacity as Custodian under the Act conducts investigation to decide as to whether the property in question was included in the immovable properties of Khurshid Ali Khan, which were declared as evacuee properties. This necessarily involves decision on the identity of Khurshid Ali Khan.” Notification No.5, dated 30-10-1949 (30th Azur 1359F) reads as follows: By virtue of power vested in me as Custodian under Section 6 of the Hyderabad Administration of Evacuee Property Regulation, I hereby declare that the following properties are evacuee properties within the terms of the said regulation and therefore vest in me. HAR PRASAD For Custodian. Item 49. All immovable property of Mr. Khurshid Ali Khan, ex Deputy Controller General, Accounts and Audit Department, Hyderabad Deccan, as also shares and securities, etc. Thereafter the Collector in the capacity as Custodian by the impugned order, dated 27-10-1992 held that the property is an Evacuee Property. As against the same, the petitioners carried the matter in appeal before the second respondent i.e., the Commissioner of Survey and Settlement, and the same was dismissed as per the orders, dated 18- 04-2002 only on the ground that the appeal is not maintainable for the reason “that the evacuee namely Khurshid Ali Khan or his interested persons have failed to challenge the above orders (notification No.5, dated 31-10-1949) before the appropriate authorities within the stipulated time. The Commissioner also held that “those records relating to such notification were not produced before him for verification by the Collector-cum-Custodian.” It is the case of the petitioners that the property in question is not an Evacuee Property. Hence, the writ petition. At the outset there is no dispute in regard to the historical aspects of the Shaikpet village which has its own rigmarole in the process of not only formation of Jubilee Hills Municipality, which was merged subsequently in Hyderabad Municipality, but also in regard to the forming part of Sy.No.129. The entire case of the petitioners depends on the allotment made to Warris Hussain Khan in respect of plot No.24 as it was applied to and the cost was paid. The other proceedings followed thereafter about the recognition and the government issuing the memo on 06-12-1967 are not in dispute. It is also not disputed that one amongst the allottees being shown there in the list is Warris Hussain Khan. There is also no dispute to the fact that the property is the exclusive personal property of the then Nizam. Therefore, with this backdrop of the title traced to the Nizam and the subsequent allotment made to Warris Hussain Khan, who is not declared as evacuee and through whom the petitioenrs are claiming on the face of it, it cannot be said that the said property could in any way be called nor can become an Evacuee Property. There is also no dispute to the effect that the mutation and sethwar were given effect to in favour of the petitioners from 1982 to 1988 when finally the Collector issued No Objection Certificate holding that the government has no interest in the property and there is a due recognition in respect of such rights. The question whether the said property is an Evacuee Property or not necessarily has to be considered from various provisions contained in the Administration of Evacuee Property Act, 1950 (for short ‘E.P. Act’). It is pertinent to mention that the Administration of Evacuee Property Act, 1950 is a special Central Act passed in the year 1950 in the special circumstances then prevailing as a result of partition of India. Section 7(A) of the said Act makes it clear that no property shall be declared as Evacuee Property after the 7th day of May, 1954. In view of this legal prohibition, no cases under the said Act are now pending except some residual cases. Therefore, it becomes necessary to refer to, in brief, the intent and purpose of that special Act so that the issue under reference may be decided within the ambit and scope of the Act. To begin with, as a result of partition of India in 1947, thousands of persons had migrated from India to Pakistan and from Pakistan to India. The enquiring authority under the Act in this case also expressed the same view as mentioned in para-7 of his order, dated 27-10-1992. The above fact had necessitated to pass special local Acts by the concerned States to deal with the extra-ordinary situation then prevailing in those States. By 1950, it was found that there should be uniformity in the Law on that subject. Hence, the Central Government had passed the Administration of Evacuee Property Act, 1950 on 17th April, 1950. This Act is retrospective in operation from 1947 for purposes of its enforcement, Rules were also framed and forms were prescribed under the said Act. All local Acts then in force in all States were repealed by Sec.58 of the said Act. Sec.58(3) read as under:- “The repeal by this Act of The Administration of Evacuee Property Ordinance 1949 (27 of 1949) or the Hyderabad Administration of Evacuee Property Regulation (12 of 1359 F), or of any corresponding Law shall not effect the previous operation of that Ordinance (12 of 1359 F) Regulation or corresponding Law and subject thereto anything done or any action taken in the exercise of any power conferred by or under the Ordinance, Regulation, or corresponding Law, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken”. The said Act of 1950 provides a complete code of enquiry in itself. Several statutory authorities were created and their jurisdiction, powers, functions and duties were specified in the said Act. Appeals and Revisions are provided, against their respective orders. The terms Evacuee and Evacuee Property were defined under Section 2 of the said Act. Similarly special statutory tests and requirements of giving prior notice to all interested persons were laid down under Section 7 of that Act read with Rule 6 of that Act, for declaring a person as an Evacuee and his property as an Evacuee Property. The said Act also provides follow up actions and statutory requirements to be taken and to be followed by the Custodian for purpose of Administration of all Evacuee Properties so declared, by the Custodian of Evacuee Properties. Under Section 8, all items of moveable and immoveable properties, declared as Evacuee Property, vest absolutely in the Custodian of the State for the purpose of Administration. The Custodian is statutorily required to take possession of all such Evacuee Properties under Section 9 of the said Act and to manage those Evacuee Properties according to Sections 10 to 12 thereof. Further the Custodian is statutorily required to maintain all basic records and registers of all properties separately, one for moveable property in form No.XI and another for immoveable properties in form No.X which were declared as Evacuee Properties and were taken possession by him, under Rule 33 of the said Act. He is also empowered to incur expenditure for the said purpose under Section 14 and to maintain all accounts under Section 15 of the said Act. Thus, it is clear that all Evacuee Properties both moveable and immoveable vest in the Custodian for purposes of Administration of such Evacuee Properties and he is statutorily obliged to administer and manage the same as per Rules. The said Act also provides for restoration of any item of Evacuee Property if it is declared as Evacuee Property by mistake. Later on it was found that most of the Evacuees had only some share in the Evacuee properties and their respective share has to be separated from the shares of the other non Evacuees. Hence, a separate Act by name “The Evacuees Interest Separation Act of 1951” was passed by the Central Government. Under that Act respective rights, titles and interests of Evacuees were determined and separated. By 1954 several properties were declared as Evacuee Properties and they had accumulated both in India and Pakistan and the Evacuees of one State became displaced persons in another State. By an agreement in between India and Pakistan, it was decided that all Evacuee Properties existing in India should become absolute property of the Central Government of India and similarly all Evacuee Properties existing in Pakistan should become the absolute properties of Pakistan Government and in their turn each Government should allot such properties to the displaced persons in their respective States in pursuance of the said agreement. A special Act by name “The Displaced Persons (Compensation and Rehabilitation) Act, 1954”, was passed and enforced. Under Section 12 of the said Act, Government of India is empowered to issue a Notification to the effect that from the date of that Notification, all Evacuee Properties, specified in the said Notification, shall vest absolutely in the Government of India free from all encumbrances and the right, title and interest of the Evacuee in such Evacuee Property shall be extinguished from the date of that Notification. These are the broad features of the entire scheme of the Evacuee Property Law in India regulated under the above three Central Acts and within the confines of the said law, the disputed question is to be decided by the deputy Custodian as directed by this Court in the order dated 19-09-1991. Section 2(f) of the E.P. Act defines ‘Evacuee Property’ as follows: “Evacuee Property” means any property of an evacuee (whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity), and includes any property which has been obtained by any person from an evacuee after the 14th day of august, 1947, by any mode of transfer which is not effective by reason of the provisions contained in Sec.40, but does not include-- (i) any ornament and any wearing apparel, cooking vessels or other household effects in the immediate possession of an evacuee. (ii) any property belonging to a joint stock company, the registered office of which was situated before the 15th day of August, 1947, in any place now forming part of Pakistan and continues to be so situated after the said date.” On a bare reading thereof, it has to be seen that necessarily a person has to be an evacuee and the property shall belong to him so that such property could become an ‘Evacuee Property’. Who can be called as an ‘evacuee’ is again prescribed and defined under Section 2(d) of the E.P. Act, which reads as follows: “evacuee” means any person,-- (i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day of March, 1947, left, any place in a State for any place outside the territories now forming part of India, or (ii) who is resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property in any part of the territories to which this Act extends, or whose property in any part of the said territories has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by an unauthorized person, or (iii) who has, after the 14th day of August, 1947, obtained, otherwise than by way of purchase or exchange, any right to, interest in or benefit from any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan. or (iv) who has, after the 18th day of October, 1949, transferred to Pakistan, without the previous approval of the Custodian, his assets or any part of his assets situated in any part of the territories to which this Act extends, or (v) who has after the 18th day of October, 1949, acquired, if the acquisition has been made in person, by way of purchase or exchange or, if the acquisition has been made by or through a member of his family, in any manner whatsoever, any right to, interest in, or benefit from, any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan.” It is only under the circumstances as mentioned in the aforesaid definition, if any citizen happens to leave the territories forming part of India and settles there, he can be called as an ‘evacuee’. If any property is left behind by such person, who is declared to be an evacuee, then only it becomes an 'Evacuee Property’. Before it has to be called as an Evacuee Property or declared as such, there has to be an identification and declaration of the individual as an evacuee. Such individual necessarily has to be an identified and named person. Further it also has to be seen that such person should hold or possess any property. These two aspects are quite material and mandatory before one has to treat the property as an Evacuee Property. Under Section 7 of the Act, a notification of Evacuee Property is contemplated. The learned counsel for the petitioners argued that the property in question is not an Evacuee Property and once it is not an Evacuee Property, the question as to who is the real owner of the land is totally irrelevant, as the government has no say in the matter. Once it is not an Evacuee Property, even if Kursheed Ali Khan is the owner of the land, the Government has no right over the land. He further argued that the notification dated 30-10-1949 under Section 6 mentions as “all immovable property of Kursheed Ali Khan, Ex-Deputy Controller General, Accounts and Audit Department, Hyderabad Deccan”. The details of immovable properties of the said person much less the land in question are not at all mentioned in the notification. Section 6 of Hyderabad Administration of Evacuee Property Regulation of 1358 F is akin to Sec.7 of Central Act i.e. Administration of Evacuee Property Act 1950. Rule 6 of the Rules of Evacuee Property Act 1950, contemplates that an enquiry shall be conducted by the custodian, by serving notices to all interested persons, before coming to a conclusion that a particular property is Evacuee Property and pass an order to that effect, by giving findings in that regard. Rule 7 of the said Rules contemplates that after forming an opinion that a particular property is an Evacuee Property, he shall publish a notification in Form No.2 giving full particulars of property, regarding the location, municipal numbers etc, and in case of agricultural land, it shall specify, as far as possible, its Khasra number and the village, where it is situated. It is mandatory under Section 7 of Administration of the E.P. Act there shall be an enquiry by the custodian, by giving notices to the interested persons and he shall pass an order by giving findings as to why particular property shall be declared as Evacuee Property and that there shall be a notification in that regard, giving specific description of the property with all details. Then only the property, which was included in the notification with all specifications of the property, shall be deemed to be declared as Evacuee Property and then only it vests in the government under Section 8 of the E.P. Act. In the instant case, the details of immovable properties of Kursheed Ali Khan are not at all mentioned in the notification. At least, there is not even a mention about the property in question, in the notification. He further argued that the Collector-cum-Custodian in his order dated 27-10-1992, in para no.7 agrees that there was a large scale migration of people from India to Pakistan in between 1947–1949 and the authorities had no occasion or opportunity to ascertain the properties of migrated persons and as such the authorities had no knowledge at all about the properties of migrated persons. Admittedly, till up to 1967, when the Government had issued the Memo dated 06- 12-1967, recognizing the allotment of plots, the entire record relating to the land in question was with Municipal Corporation of Hyderabad. Therefore, it is obvious that the Custodian was not in possession of the concerned record as on the date of notification Dt.30.10.1949 and as such he had no knowledge that the land in question belongs to Kursheed Ali Khan, whose name was mentioned in the notification. He further argued that the notification was issued, showing the name of Kursheed Ali Khan as Evacuee, without knowing the details of his immovable properties. Custodian has not conducted any enquiry whatsoever before issuing the notification. He further argued that it is not the case of the Collector or Government that any enquiry was conducted and that there is a file relating to the enquiry. The Custodian did not bother to ascertain the details of the immovable properties of Kursheed Ali Khan and has mechanically issued general notification showing all properties of Kursheed Ali Khan as Evacuee without application of mind. He placed reliance on the judgment of the Apex Court reported in NASIR AHMAD VS. ASSISTANT CUSTODIAN GENERAL EVACUEE PROPERTY U P LUCKNOW [1] and the judgment of the Division Benches of this Court reported in ACHUTA REDDY VS. CUSTODIAN EVACUEE PROPERTY ANDHRA PRADESH [2] wherein it was categorically held that it is mandatory that the custodian shall conduct enquiry to form an opinion that particular property is the property belonging to Evacuee and thereafter he shall publish a notification giving full details of the Evacuee Property and then only it vests in the Government and further held that a general notification without the description of the property with all the details, is defective and such a general notification is not a valid notification for declaring particular property as Evacuee Property. In view of the settled legal position, 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. The Apex Court in NASIR AHMED v. ASST. CUSTODIAN GENERAL [3], while dealing with Section 7 under the Administration of Evacuee Property Act 1950, observed: “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. Where the authority concerned did not apply his mind to the relevant material before issuing the notice under Section 7, the notice is not valid” Rule 6 of the Administration of Evacuee Property (Central) Rules, 1950 which lays down the manner of inquiry under Section 7 provides in sub-rule (1) that where the Custodian is satisfied from information in his possession or otherwise that any property or an interest therein is prima facie Evacuee Property, he shall cause a notice to be served in the prescribed form on the person claiming title to such property or interest and on any other person or persons whom he considers to be interested in the property. Sub-rule(2) of Rule 6 says that notice ‘shall, as far as practicable, mention the grounds on which the property is sought to be declared Evacuee Property and shall specify the provision of the Act under which the person claiming any title to, or interest in, such property is alleged to be an evacuee’.” A Division Bench of this Court in BHOGARAJU VISALAKSHI v. MG. OFFICER CUM ASST. CUSTODIAN [4], while dealing with Section 6