THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON’BLE MR JUSTICE G.KRISHNA MOHAN REDDY W.P.Nos.15679, 15697, 16120 & 26448 of 2005 COMMON JUDGMENT: (Per Sri Justice V.Eswaraiah) 1. Since these writ petitions have been filed against common order dated 10.3.2004 passed by the Special Court under A.P. Land Grabbing (Prohibition) Act, (for short referred to as the Special Court) in L.G.C Nos. 17 and 114 of 1999 and 28 of 2002 (for short ‘the common order’) and common questions arise for consideration, they are being disposed of by this common judgment. 2. The first three writ petitions i.e., 15679, 15697 and 16120 of 2005 are filed by the State, having aggrieved by the common orders dismissing L.G.C. Nos. 17 and 114 of 1999 filed by the State and in allowing L.G.C No. 28 of 2002, whereas, W.P. No. 26448 of 2005 was filed by the respondents 2 to 9 in L.G.C. No. 17 of 1999, seeking a writ of mandamus declaring the observations of the Special Court made in the common order with reference to L.G. C No. 17 of 1999 to the effect that the respondents 1 to 8 therein, whereas the first of them is the first applicant in LGC.No.28 of 2002 got only possessory title and the observations made with regard to Ex.C.8 sale deed, as illegal and contrary to law. 3. The State through its Mandal Revenue Officer, Shaikpet village, Hyderabad filed L.G.C. No. 17 of 1999 for declaring the respondents therein who are the petitioners in W.P.No.26448 of 2005 as land grabbers of the property scheduled therein and an extent of 5546 sq.mtrs. (6633 sq.yards) situated in T.S. No. 8/1, Block “B”, Ward No. 10 correlated to Survey NO. 129 /67 of Shaikpet village, which happened to be an Evacuee Property, and evict them therefrom and deliver the vacant possession of the property to the State and further to punish them under Sections 3 and 4 of Act. The boundaries of the property are given as under; EAST : T.S. No. 8/1, Block “B”, Ward No. 10 WEST : T.S. No. 8/1, Block “B”, Ward No. 10 NORTH : Yellareddyguda sivar SOUTH : T.S. No. 8/1, Block “B”, Ward No.10 (Road) 4. Further, the State through its Mandal Revenue Officer, Shaikpet village, Hyderabad filed L.G.C. No. 114 of 1999 for declaring the respondents therein as the land grabbers of an extent of 7368 Sq.Mts in T.S. No. 8/1, 1/1/2 and 9/1/2 Block “B”, Ward -10, correlated to Survey No. 129/62 of Shaikpet village is classified as Evacuee Property belonging to the Government. 5. L.G.C. No. 28 of 2002 was filed by Mr. Vallabhaneni Subba Rao and Mr. Vallabhaneni Raghavender Rao against Smt A Saritha Reddy, Mr U.Vijay Kumar and the State for declaring the respondents as the land grabbers of 500 sq.yards out of an extent of Ac.1.40 cents located in Survey No.129/67 (old) RE-Survey No. 141 and T.S. No. 8/1, T.S. No. 1/1/2 of Shaikpet village, Hyderabad, on the same ground that the respondents occupied the property illegally, whereas by the common order dated 10.3.2004 while dismissing the L.G.C.Nos. 17 and 114 of 1999 filed by the State, the Special Court allowed the L.G.C. No. 28 of 2002 observing therein; “In the result, the applicants are having possessory title in the application schedule property. The possession of the applicants is true, is valid and is legal against the entire world except the true owner Aziz Asif son of Hyatunnisa Begum (The vendor under Ex.C-8) and Liaquath Jung, Former Finance Minister in Nizam State. The first respondent is a land grabber. The first respondent is directed to vacate the application schedule property and deliver vacant possession of the schedule property to the applicants within two months from this date, failing which the concerned Revenue Divisional Officer shall initiate steps as contemplated under Rule 15 (2) of the Rules framed under the Act and submit a compliance report to this Court within two months, after expiry of the above said two moths period granted to the first respondent to deliver vacant possession of the property to the applicants. The application against respondents 2 and 3 is dismissed. No costs.” 6. Aggrieved by the order, the respondents therein i.e., Smt A Saritha Reddy and another also filed a writ petition in W P No. 6171 of 2005 and the same is pending. 7. The basis for the Government to file L.G.C. Nos. 17 and 114 of 1999 on the file of the Special Court is as follows: The Shaikpet village of Hyderabad district was formerly a Sarfekhas village and all the Sarfekhas were merged in the Diwani in 1358 Fasli (1949 A.D) and the administration of the village was transferred and vested with the Government making over all the relevant records to the Government thereafter. The initial survey of Shaikpet village commenced in 1326 Fasli (1916 AD) and it was implemented in 1330 Fasli (1920 AD). The Survey No. 129 measuring an extent of Ac. 3288.02 guntas which is popularly known as ‘Kanch Tatti Khana’, was classified as Government land. In 1331 Fasli, a Supplementary Sethwar was issued by sub dividing the Survey No.129 into 10 divisions as Survey Nos. 129/1 to 129/10. The Survey Number 129/1 consists of an extent of Ac.3094.39 guntas and Survey Numbers 129/2 to 129/10 consist of an extent of Ac.190.03 guntas of land. In 1334-35 Falsi (1924-1925 AD) survey number 352 of Shaikpet village measuring Ac.63.24 guntas was deleted and included in the adjoining village viz., Yellareddyguda. Subsequently, during 1337 to 1341 Faslis ( 1927 to 1931 A.D.) assignments were made by Avval Talukdar (District Collector, Atrat Balda District) whereby out of survey No. 129/1 new Survey Nos. 129/11 to Survey No. 129/84, Survey No. 129/86 and Survey No. 129/87 were created. Survey No. 129/67 admeasuring Ac. 5.29 guntas was assigned to Sri M.Aziz Asif S/o Liaquath Ali Jung, who was the then Finance Minister of erstwhile Nizam state. He made representations before the Commissioner, Land Records stating that his son Sri M. Aziz Asif, pattadar of Sruvey No. 129/67, Shaikpet village, migrated to Pakistan during the year 1949 and all the immovable properties held by him were declared as Evacuee properties and taken over by the Custodian, Evacuee Property. He further requested to grant a certificate to the said effect, for the following properties. 1. Building site in Jubilee Hills Ac.5.21 guntas in Survey No. 129/67 of Shaikpet village of Hyderabad district. 2. Cultivable land in Survey No. 106/5, 6,7,8,9 and 10 measuring Ac.21.08 guntas named Tarlagadda situated in Parki Banda village, Baghaat Taluq. 3. Cultivable land in Survey NO. 100/1, 100/2, 99/1, 19/2 and 101 measuring Ac.28.23 guntas in Parki Banda village, Baghaat taluq. In the said representation, it is further stated that Mr. M Aziz Asif S/o Liaquath Ali Jung also owned certain immovable properties in Parkibanda village of Narsapur taluq of Medak district and those properties were declared as Evacuee properties vide Gazette Notification No. 26/51 dated 22.5.1951 (Ex.A1) published in the Ordinary Gazette in Vol.82 Hyderabad dated 21.6.1951 of the Deputy Custodian and Collector, Sanga Reddy, Medak district. It is also mentioned therein that those properties which are not included inadvertently in the list of properties declared as Evacuee properties also vest in the Deputy Custodian Evacuee. Hence, the land in Survey No. 129/67 not mentioned inadvertently in the Gazette Notification is construed as the Evacuee Property and vested with the Government. Further, relevant Revenue records are also to the same effect. Thus, it is the case of the Government that Mr.M.Aziz Asif S/o Liaquath Ali Jung is an evacuee and all the properties owned by him before he migrated to Pakistan, automatically transferred to the Government of India as Evacuee Properties and they cannot be claimed by any private individual on the basis of any documents. Further, the Government claims that R. Koteswar Rao, the vendor of the respondents got corrected his name in the T.S.L.R. by colluding with the then Deputy Director, Survey and Land Records, Hyderabad and created a fictitious sale deed to show, as if he purchased the said property from Mr.Aziz Asif and accordingly his name was wrongly entered in the TSLR by the same authority and further he sold away the valuable Government land to several individuals spurious and concocted documents taking advantage of difference in the names of the fathers of the evacuee and the other named Mr.Aziz Asif. 8. The case of the respondents/claimants is as follows: They are the vendees of Koteshwar Rao, who purchased the said property from Mr.Aziz Asif S/o Nayeem Asif. The name of R. Koteswar Rao was entered in the relevant patta as well as in the Town Survey Records for the property and the said M.Aziz Asif S/o Liakat Ali Jung or Liakat Jung got nothing to do with the property purchased by their vendor R. Koteswara Rao from Aziz Asif S/o Nayeem Asif. It is further stated that the property of M.Aziz Asif S/o Liakat Ali Jung is not at all established, nor any assignment particulars or notification declaring it as the Evacuee property have/has been filed. Further, there is no clarification about the name of the father of M.Aziz Asif as Liaquath Ali Jung or as Liyakat Jung. Further, when it is claimed to be the property of an evacuee only, the Government even as its custodian got no right to file the cases having no rights therein and it is not maintainable. Before the Special Court, P.Ws.1 and 2 were examined and Exs.A1 to A11 were marked. 9. The point that arises for consideration is? i) Whether Survey No. 129/67 is an Evacuee Property of M.Asif Aziz son of Liyakat Ali Jung and vested with the Government? ii) Whether the Government got locus standi to file the case? iii) Whether R.Koteswara Rao purchased it from Asif Aziz son of Nayeem Asif who was the lawful owner of the property; and iv) Whether the Special Court got jurisdiction to entertain the application? v) Whether the common order is sustainable or not. 10. The learned counsel for the petitioner submits that there is no basis to say that the subject properties belonged to Mr.Aziz Asif who is stated to have migrated to Pakistan and even assuming so, his properties would not automatically vest in the Government, unless those properties were declared as Evacuee properties in accordance with law. It is also claimed by him that at no point of time, Survey No. 129/67 of Shaikpet village, Hyderabad was shown as the property of the Government or an Evacuee property either in the Revenue records or in the Town Survey Records, therefore, it cannot be said that the entries made in the revenue records for the property in the name of Mr.Koteswar Rao, is illegal or erroneous. The correspondence of Mr. Liakat Jung in the year 1953, 1954 and 1955 with the Deputy Custodian of Evacuee Properties, Hyderabad to the effect that the subject property was taken over by the Deputy Custodian of Evacuee Properties was accepted by the Custodian of the Evacuee Properties, Hyderabad and further there was no scope to give any such notification after 7.5.1954 in terms of Section 7-A of the Evacuee Properties Act. According to him, the notification No. 26/51 dated 22.5.1951 issued by the Deputy Custodian and Collector, Sangareddy, Medak District was not in accordance with Section 7 of the Act, 1950. Further, as the respondents are the bonafide purchasers of the property for a valid consideration and they have been in continuous possession and enjoyment of it since more than the statutory period of 30 years and have perfected their title over the property by adverse possession, they cannot be declared as the land grabbers of the property and cannot be evicted therefrom. The learned counsel Sri P.Sri Raghuram has placed reliance in support of his contentions, the following decisions: 1. MOHD. ALI HASAN KHAN AND OTHERS v. BHAGIRATHLAL AND OTHERS[1]. 2. DELHI ADMINISTRATION AND OTHERS v. MADAN LAL NANGIA AND OTHERS[2]. 11. On the other hand, the learned Advocate General submits that the Act, 1950 is to administer the Evacuee Property in accordance with the provisions contained therein and there is good evidence to the effect that the property belonged to Asif Aziz son of Liyakat Jung and it was vested with the Government as the evacuee property and the Special Court failed to consider the matter properly. 12. Further, the Government produced and relied upon Ex.A2 certain correspondence of Liakat Jung with the Deputy Custodian of Evacuee properties, it includes a Xerox copy of letter dated 28.8.1950 in which it is stated that Mr.Likat Jung got no intention to go to Pakistan as he possessed valuable immovable properties in Hyderabad; that he was a pensioner drawing a pension of Rs.1000/- from the Government; that he may be on the black list of Pakistan; that his son Mr.Aziz Asif returned from England in December, 1948 that after about two months his services were dispensed with by the N.S.Railway that then he proceeded to Karachi in search of employment that one month thereafter his wife disposed of certain jewelry and remitted the sale proceeds to her husband through Liakat Jung; that he got two houses in Hyderabad and that apart from Aziz Asif, he got another son and two daughters who were staying in Hyderabad. He further stated that Aziz Asif left to Pakistan some time in June, 1949 and he got no assets in Pakistan nor he acquired any assets in Pakistan. Further on 9.10.1953, he addressed a letter to Mr. T.N.Kapoor, Additional Custodian, Evacuee Properties, Hyderabad, seeking permission to sell his house at Kohan NO. 1107-1109, Ward F Block 2 in Somajiguda to meet his personal expenses. It also provides that on the same day, i.e., on 9.10.1953, he addressed another letter to Mr.T.N.Kapoor, Additional Custodian, Evacuee Properties, Hyderabad requesting to issue a certificate in respect of the immovable properties left behind by his son Aziz Asif who migrated to Pakistan about six years prior to that and which were taken over by the Custodian of Evacuee Properties, Hyderabad. (the details of the said properties are referred to supra) Quite surprisingly and contradictory to the correspondence noted above, there is copy of another letter dated 10.2.1955 in which it is requested by Liyakat Jung that the properties of M.Aziz Asif his son were not declared as the evacuee properties by that date with a request to inform whether the properties of his son were taken over by the evacuee or not which disproves the contents of the first letter dated 28.8.1950. Therefore, there is no acceptable evidence that the properties of M.Aziz Asif were declared as evacuee properties, which completely demolishes the claim of the Government. The Government filed notification No. 26/51 dated 22.5.1951 (Ex.A.1) published in the Gazette – Ordinary in Vol.82 Hyderabad dated 21.6.1951 with regards to the Office of Deputy Custodian and Collector, Sangareddy, Medak district declaring the properties of Aziz Asif as Evacuee property. The notification for the sake of convenience, is extracted as follows; “By virtue of the powers vested in me as Deputy Custodian, I hereby declare under Section 7 (1) and (2) read with Section 2 d of the Administration of Evacuee Property Act, XXXI of 1959, that the following properties are the evacuee properties within the terms of the said Act and therefore vest in me. All the properties of Mr.Aziz Asif S/o Likat Jung, lands measuring 21 Acres 28 guntas with an assessment of Rs.10 situated in Parkibanda village of Narsapur taluq of Medak district and any other property of the evacuee not included in this list which any have been inadvertently left out of the same.” Sd/- Collector and Deputy Custodian” It is not mentioned therein as Md.Aziz, it is only stated therein as Aziz Asif son of Liyakat Jung, but not Liaquath Ali Jung. Different descriptions were given with regards to the so-called evacuee and his father which requires clarification, which has been not done failing which also no relief can be granted to the Government. Further, the Special Court on the basis of certified copy of sale deed dated 8.11.1961 executed by Hayathunnisa Begum Saheba W/o Liyakat Jung including the western boundary noted therein held that Md.Aziz Asif was the owner of S.No.9167, but without the identification of the parties, it is not useful to any body in the cases. Ex.A.5 is the representation made by Mr R.Koteswar Rao to the District Collector, Hyderabad in which it is stated that his name was recorded as the pattadar in respect of the land in Survey No. 129/67 admeasuring Ac.5.29 guntas and that there is a mistaken entry as regards the measurement of it by which there is difference of Ac.1.20 in the Town Survey Register and requested to rectify and to correct it as Ac.5.29 as per the patta in his favour. 13. For the sake of convenience, Section 7, 7-A and 8 of the Administration of Evacuee Property Act, 1950, which are relevant here are extracted below. 7:Notifications 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. 3 (a) [a] Inserted (and shall be deemed always to have been inserted) by the Administration of Evacuee Property (Amendment) Act, 1954 (42 of 1954), S. 3.[(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)” 7-A : Property not to be declared evacuee property on or after 7th May 1954 3 (a) [a] Inserted by the Administration of Evacuee Property (Amendment) Act, 1954 (42 of 1954), S. 4 (w.r.e.f. 7-5-1954).[ Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954: Provided that nothing contained in this section shall apply to- (a) any property in respect of which proceedings are pending on the 7th day of May, 1954 for declaring such property to be evacuee property; and (b) the property of any person 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 had left on or after the 1st day of March, 1947, any place now forming part of India, and who on the 7th day of May, 1954 was resident in Pakistan. Provided further that no notice under (Section 7) for declaring any property to be evacuee property with reference to Clause (b) of the preceding proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954. Explanation 1.- A person shall be deemed to have been resident in Pakistan on the 7th day of May, 1954, within the meaning of Clause (b) of the first proviso, if he was ordinarily residing in Pakistan before that date, notwithstanding that he was temporarily absent from Pakistan on that date. Explanation II.-A person who had left India for Pakistan before the 7th day of May, 1954, on the authority of a passport or any other valid travel document issued by any competent authority in India, and who was temporarily residing in Pakistan on that date, shall not be deemed to have been resident in Pakistan on that date within the meaning of Clause (b) of the first proviso. Explanation III.- A person who had left Pakistan for India on or after the 18th day of July, 1948, and who was in India on the 7th day of May, 1954, shall, unless he came to India under a valid permit for permanent return or for permanent settlement, issued under (Influx from Pakistan (Control) Act, 1949) ,be deemed to have been resident in Pakistan on the 7th day of May, 1954, within the meaning of Clause (b) of the first proviso.] Section 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 (S.30 of the Administration of Evacuee Property Ordinance, 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. 3 (a) [a] Inserted and deemed always to have been inserted by the Administration of Evacuee Property (Amendment) Act (1 of 1960), S. 2.[(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, bedeemed 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.] (3) Where any property in a State belonging to ajoint stock company had vested in any person exercising the powers of a Custodian under any law