THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION No.113 of 1996 .1.2007 Between: Paul Sharma, S/o.late Sri Rajaram Sharma And another ... Petitioners AND The Custodian General under Administration of Evacuee Property Act, Bombay And others ...Respondents THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION No.113 of 1996 ORDER: The petitioners seek a writ of Mandamus declaring the premises bearing Door No.2-3-762 situated at Amberpet, Hyderabad (hereafter called, the subject property) is not evacuee property under the provisions of the Administration of Evacuee Property Act, 1950 (the Act, for brevity), that the action of the respondents in treating the subject property as having been vested with the Custodian under the Act as arbitrary and illegal, and that the action of the respondents in taking steps against the petitioners and interfering with their possession and enjoyment of the subject property as illegal and arbitrary. The petitioners also seek a direction to respondents not to interfere with the possession and enjoyment of the subject property by the petitioners where they are carrying on the business in the name and style of Sharma Combines and Sharma Industrial Suppliers. The case of the petitioners is as follows. The subject property was owned by Ruknuddin Hassan. Mubarakunnisa Begum (hereafter called, transferee) purchased the said property under a registered sale deed dated 06.9.1952. She in turn sold the property to Venkateswara Rao under registered document dated 07.7.1961, who in turn sold the property to Syed Ali. The father of the first petitioner purchased the property from Syed Ali under registered sale deed dated 11.3.1973. After purchasing the property, old building was demolished and a new building bearing Door Nos.2-3-762/A to E was constructed with mulgies. The first petitioner, who is the wife of second petitioner, commenced the business M/s.Sharma Industrial Suppliers employing 30 employees. The petitioners are paying municipal tax, sales tax, non-agricultural land tax, professional tax and also obtained necessary licences under the Factories Act, Employees Provident Fund Act and State Insurance Act. On 02.1.1996, Revenue Inspector from the Office of the Mandal Revenue Officer (MRO), Musheerabad Mandal – fourth respondent herein; came to the premises and sealed and locked the mulgies. Assailing the same, the writ petition is filed. The petitioners contend that their vendors or vendors’ vendors were never given any notice under the Act nor any enquiry was conducted under Section 7 of the Act. They also allege that if there is any notification declaring the subject property as evacuee property, the same is void being in violation of principles of natural justice. It is only on 08.2.1994, third respondent issued notice to the petitioners alleging the petitioners’ property as evacuee property. When the second respondent proposed to conduct enquiry, the petitioners appeared with all the documents but no enquiry was conducted. This Court while admitting the writ petition, passed interim orders on 09.1.1996 in WPMP No.109 of 1996 directing to open the lock and allow the petitioners to enter the premises. The dispossession was also stayed. The respondents moved WVMP No.213 of 1996 for vacating the said interim order. By an elaborate order dated 06.3.1996, a learned Single Judge of this Court vacated the interim order observing that any action by the respondents shall be subject to result of the writ petition. In W.A.No.250 of 1996, filed by the petitioners herein, Division Bench set aside the order of the learned Single Judge and ordered status quo on condition of petitioners depositing a sum of Rs.3,000/- per month commencing from April, 1996. The Joint Collector, Hyderabad, filed counter affidavit. It is stated that the subject property was declared as evacuee property on 18.12.1952 under Section 7 of the Act duly notifying the same in Gazette No.297, dated 03.1.1953. The transferee purchased the subject property from Ruknuddin Hassan (evacuee) but by order dated 30.7.1953, the Senior Assistant Custodian of Evacuee Property rejected the confirmation of the sale and directed to take over the subject property. Therefore, the second respondent by letters dated 16.5.1985 and 21.4.1995 informed that Ruknuddin Hassan migrated to Pakistan and that the subject property has to be taken over by the Government, as the sale was not confirmed by the Senior Assistant Custodian of Evacuee Property. Accordingly action was initiated and notice was issued in Form No.3 under Section 8(4) of the Act to the first petitioner to surrender the possession. After receiving notice dated 18.7.1995, fourth respondent took possession of the subject property under a cover of panchanama duly evicting the occupants. Along with the counter affidavit, respondents also enclosed the Memo dated 16.5.1985 issued by the second respondent, the order of the Senior Assistant Custodian dated 30.7.1953 and Hyderabad Government Gazette dated 12.2.1953. When the matter is pending before this Court, the petitioners filed additional affidavit on 20.6.2005. The contents thereof are as follows. Mubarakunnisa Begum purchased the property from the evacuee. She applied to the Custodian General, New Delhi, for confirmation of sale. The Senior Assistant Custodian, L.P. (Legal), Hyderabad, passed orders on 30.7.1953 rejecting the application for confirmation. As against the same, she filed a revision before the Custodian General of Evacuee Property, who was camping in Hyderabad. By order dated 16.6.1955 in File No.0277/R/CG/54/DCC/TR/21/55 rejected the revision petition. For further redressal, transferee filed a review petition, which was allowed by order dated 14.12.1956 in File No.1481-RW/DCG/55. The authorities under the Act accepted the review petition and confirmed the sale in favour of Mubarakunnisa Begum on condition of payment of Rs.8,000/-. She also filed a Miscellaneous Petition for modification of the order seeking reduction of the amount of Rs.8,000/-. The same was disallowed on 14.4.1958. She paid the amount and the property was released in favour of Mubarakunnisa Begum by the Deputy Custodian General. The petitioners also alleged that an endorsement was made in the registers maintained by the concerned officials at Serial Nos.2185, dated 14.4.1958 in Case Nos.2192, 2142 and 2172. After obtaining the confirmation of sale in her favour, the transferee sold to Venkateswara Rao, who in turn sold to the vendor of the petitioners from whom the petitioners purchased the subject property under registered sale deed dated 11.3.1973. The Assistant Secretary in the office of the second respondent filed additional counter affidavit on behalf of the second respondent. Various averments and allegations in the additional affidavit filed by the petitioners are not specifically denied. It is however stated that the petitioners did not bring to the notice of the Government about various documents under which Mubarakunnisa Begum obtained confirmation orders. It is also alleged that the original proceedings were not placed before this Court or before the authorities. In view of the averments made by the petitioners in the additional affidavit, this Court directed the respondents to cause production of the relevant registers maintained under the Act and the Rules made thereunder. Accordingly Form-VIII Register is produced before this Court. Learned Senior Counsel for the petitioners has taken this Court through the proceedings dated 30.7.1953 of the Senior Assistant Custodian, L.P., (Legal), Hyderabad, and other proceedings passed by the Deputy Custodian General, Hyderabad. Initially the Senior Assistant Custodian rejected the application of Mubarakunnisa Begum by order dated 30.7.1953. As against the same, the transferee filed an appeal before Additional Custodian, which was rejected by an order dated 14.12.1953. The same was subject matter of the revision petition before the Deputy Custodian General, who by order dated 16.6.1955 rejected the revision petition. The review petition was then filed. The Deputy Custodian General passed orders in review petition bearing File No.1481- RW/DCG/55 allowing the application for confirmation of sale subject to payment of Rs.8,000/-. The transferee again filed another Miscellaneous Application bearing No.2192- R/Judl/Andhra/57 before the Deputy Custodian General, Camp at Nizamabad, seeking reduction of the amount. Though the reduction was not accepted, time extended for payment of the amount, by order dated 14.4.1958. Apart from these proceedings, the attention of this Court was also invited to page No.958 in Form-VIII Register. The entry at serial No.2185 deals with the subject property. The entire register contains 25 columns. Below columns 17 to 21 pertaining to property at serial No.2185, it is endorsed on 29.9.1963 that the property has been released in favour of Smt.Mubarakunnisa Begum, as per the order of the Deputy Custodian dated 14.4.1958. A perusal of the Form-VIII Register and the copies of the proceedings produced by the petitioners along with additional affidavit filed ten years after filing the writ petition would certainly prima facie supports the case of the petitioners. However, as contended by the learned Government Pleader for Revenue (General), when the matter was considered by the second respondent who directed the District Collector to take possession, all these documents and Registers were not available. Therefore, this Court is of considered opinion that the second respondent or any competent authority should consider these documents before taking any action. Needless to mention that if the sale by evacuee in favour of Mubarakunnisa was confirmed by the authorities under the Act, the possession of the petitioners cannot be treated as illegal. It is brought to the notice of this Court that during the pendency of the writ petition, the petitioners have been regularly depositing a sum of Rs.3,000/- per month in the Registry. The petitioners would be entitled to seek refund of the same from the Registry by filing appropriate application. In the result, for the above reasons, the writ petition is disposed of directing status quo as on today with regard to possession and enjoyment of the property. The matter is remitted to the second respondent or any other authority exercising powers under the Act to consider all the proceedings/orders produced by the petitioners and pass appropriate orders within a period of three months from the date of receipt of a copy of this order. The petitioner is given liberty to produce all the documents before such authority after receiving notice. There shall be no order as to costs. _____________ (V.V.S.RAO, J) January , 2007. YS