IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 992 of 2002. Reserved on: 25.11.2008. Decided on: 09.01.2009. Meer Baksh and another. … … … Petitioners. Versus Union of India and Others. … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. G.D. Verma, Senior Advocate with Mr. R.L. Chaudhary, Advocate. For the Respondents: Mr. Janesh Mahajan, Central Government Counsel for respondent No.1. Mr. Rajinder Kishore Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate for respondents No.2 to 4. Rajiv Sharma, Judge: Brief facts necessary for the adjudication of this petition are that the predecessor-in-interest of the petitioners, Shri Sultan Mohammad as per the pleadings was owner in possession of the land measuring 48-4-9 Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - bighas situated in Pargana Nair Chowk, Tehsil Sadar, District Mandi, H.P. comprised in Khewat No.42/36 Khatauni No.144/139, measuring 11-04-16 bighas, Khatauni No.145/140-141, measuring 7-15-10 bighas Khewat No.6/6 Khatauni No.11/11, measuring 4-01-12 Khewat No.7/7, 7 Khatauni No.12/12, 13/12, measuring 18-04-19, measuring 18-01-19, Khewat No.11/11, Khatauni No.16/16/17/18 measuring 2-10-04, Khewat No.7/7 Khatauni No.12/12 measuring 2-0-0 bighas, Khewat No.12, Khatauni No.18/19, measuring 2-01-12 bighas. This position is evident from the copy of jamabandi for the year 1952-53 (Annexure P-2). Shri Sultan Mohammad had not migrated to Pakistan and had succeeded to the estates of Shri Deen Mohammad, Atta Mohammad, sons and Smt. Hazara widow of Bahadar, Rashid Mohammad, Ramzan Mohammad, Shoukat Ali son of Lalu, Malu son of Umara son of Nura residents of village Bhangrotu, Tehsil Sadar, District Mandi, H.P. Patwari Halqua has submitted his reports to this effect vide Annexures P-X and P-Y. Shri Sultan Mohammad was also non-occupancy tenant over land measuring 43-11-16 bighas situated in Pargana Nair Chowk, Tehsil Sadar, District Mandi, H.P. comprised in Khewat No.4/3, Khatauni No.7/6/8/7/9/8, Khewat No.4, Khatauni No.10/8/11/8, measuring 17-05-03 bighas and 6- 11-09 bighas, Khewat No.5, Khatauni No.14/12/13 measuring 8-11-9 bighas, Khewat No.4, Khatauni No.10/10, Khatauni No.15/14,15, 16/14 measuring 8-17-13 bighas. This position is also denoted in the copy of jamabandi for the year 1950-51. The land mentioned above was declared “evacuee” under the provisions of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as “the Act” for brevity sake). The mutations were attested in favour of the Central - 3 - Government. Shri Sultan Mohammad made representation for restoration of his land under Section 16 of the Act. The same was rejected vide communication No. 6(10)/Rest/56/3825, dated 15.2.1957 of the Ministry of Rehabilitation. The appeal preferred against this order was rejected somewhere in the year 1967. He made several representations for restoration of his land vide Annexures P-10 to P-16. The petitioners also made representation in the year 2000. It is primarily contended in the petition that since Shri Sultan Mohammad has never migrated to Pakistan, the land in his occupation could not be declared “evacuee property”. The respondents have admitted that Shri Sultan Mohammad has never migrated to Pakistan. So far as the possession of Shri Sultan Mohammad is concerned, the stand of the State is that the father of the petitioners was joint owner of the land. It is also admitted by the State that the father of the petitioners was occupancy tenant over the land measuring 43-11-16 bighas. It is also admitted by the State that a note was appended in the jamabandi (Annexure P-3) that Shri Sultan Mohammad has not left for Pakistan. The other averment made is that the tenants have abandoned their tenancy rights. Mr. G.D. Verma, learned Senior Advocate has strenuously argued that the action of the respondents of declaring the land owned by the petitioners’ predecessor-in-interest, Shri Sultan Mohammad as “evacuee property” is bad in law. His precise submission is that since Shri Sultan Mohammad has never left for Pakistan, there was no occasion for the custodian to declare the property owned by him as evacuee property. He has further contended that Shri Sultan Mohammad, predecessor-in- interest of the petitioners was a rustic villager and he had made - 4 - representations to the Central Government for restoration of land, however, the representations were rejected in the years 1957 and 1967 respectively. He lastly contended that the predecessor-in-interest of the petitioners has made several representations vide Annexures P-10 to P- 16. The petitioners have also made a representation in the year 2000. The learned Senior Additional Advocate General has justified the declaration of the property of the petitioners’ predecessor-in-interest as “evacuee property”. His further contention was that the petitioners’ predecessor-in-interest should have assailed the decisions by filing appropriate appeals and the petition is belated. He also contended that the land which was declared evacuee property has been further allotted. He lastly contended that this Court has no jurisdiction in view of Section 46 of the Act to adjudicate the present petition. I have heard the learned counsel for the parties and perused the record carefully. What emerges from the facts culled out from the pleadings of the parties is that the petitioners’ father was owner of land measuring 48-4-9 bighas. This position is also reflected in the copy of jamabandi for the year 1952-53 (Annexure P-2). He was also occupancy tenant of the land measuring 43 bighas 11-16 biswas situated in Pargana Nair Chowk, Tehsil Sadar, District Mandi, H.P. This position is also evident from the copy of jamabandi for the year 1950-51 (Annexure P-3). An endorsement has been made in Annexure P-3 that Shri Sultan Mohammad has not left for Pakistan. It is categorically admitted by the respondent-State in its reply that Shri Sultan Mohammad has never left for Pakistan. In case Shri Sultan Mohammad has not left for Pakistan, - 5 - the property under his occupation as owner and occupancy tenant could not be declared “evacuee property”. It will be apt at this stage to take note of expression “evacuee” as defined in sub-section (d) of Section 2 of The Administration of Evacuee Property Act, 1950. It reads thus:- “2.(d) “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 unauthorised 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 - 6 - 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]” The expression “evacuee property” has been defined in sub- section (f) of Section 2 of the Act. It reads thus:- “2. (f) [“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 section 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.” Section 7 of the Act postulates that where the Custodian is of the opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given in such a manner as - 7 - may be prescribed to the persons interested, and after holding such inquiry in the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. Section 7-A provides that notwithstanding any thing contained in the Act, no property shall be declared evacuee property on or after 7th May, 1954. Section 8 of the Act provides that any property declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State. Section 16 provides for restoration of evacuee property. Section 46 bars the jurisdiction of civil Courts in certain matters. What emerges from the combined reading of the provisions of the Administration of Evacuee Property Act, 1950 is that evacuee means a 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, left any place now forming part of India, and a person who is resident in any place forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property. It further provides that evacuee would also mean a person who has after the 14th day of August, 1947, obtained, otherwise 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. It is admitted case of the parties that Shri Sultan Mohammad, predecessor-in-interest of the petitioners has always remained in India after 15th August, 1947. In these circumstances, the land owned by him as detailed in paras 9 and 10 could not be declared “evacuee property”. - 8 - The matter is required to be considered from another angle. It was necessary for the Custodian to issue notice in the prescribed manner and to hear the parties and thereafter pass an appropriate order. Mr. G.D. Verma has strenuously argued that no such notice was ever issued to the predecessor-in-interest of the petitioners, i.e. Shri Sultan Mohammad by the Custodian. The respondents have failed to prove any contemporaneous record that the notice as stipulated under Section 7 was ever issued to Shri Sultan Mohammad. The petitioners’ predecessor-in-interest, Shri Sultan Mohammad has made efforts to get the land restored under Section 16 of the Act. The petitioner being rustic villagers has only mentioned that his case was turned down by the Ministry of Rehabilitation on 15.2.1957. His further representation was rejected in the year 1967. The respondents have not placed on record the copies of these two decisions. It was not expected from the poor rustic villager who has been deprived of his property in contravention of law to retain the copies whereby his case was rejected. Further the State being custodian of these documents should have placed them on record. The necessity for seeing these two documents was to ensure that there was due application of mind while passing the orders. The endeavour of the Court was to see these two documents to ensure whether the authorities in question were aware that Shri Sultan Mohammad had never migrated to Pakistan and thus his property could not be declared evacuee property. Mr. R.K. Sharma had also argued that the petitioners or petitioners’ predecessor-in-interest should have filed appeals against the orders passed in the years 1957 and 1967. This plea merits rejection. The order which is bad in law from - 9 - the inception can be assailed directly in writ petition in stead of relegating the parties to approach the alternative remedy. The decision of the Custodian to declare the land of the petitioners’ predecessor-in- interest as evacuee property was in violation of the principles of natural justice and also contrary to law for the simple reason that Shri Sultan Mohammad has never left India for Pakistan. It appears that the Custodian has also not taken into consideration Sections 12 and 18 of the Act. The Custodian had no jurisdiction to allot the land which has been illegally declared evacuee property to other persons. It is not disputed by the State that Shri Sultan Mohammad was owner of the land and occupancy tenant as per the admissions made in paras 9 and 10 of the reply. He had, in fact, inherited the land owned by other co-owners. He was the sole survivor to inherit the land after the killing of other co- owners of the land during disturbance. Shri Sultan Mohammad has always remained in India and has died in India. The Constitution Bench in Dr. Zafar Ali Shah and others v. The Assistant Custodian of Evacuee Property, Jhansi and others, AIR 1967 SC 106 has held that no property of any person can be declared to be evacuee property unless that person had first been given a notice under Section 7, where no such notice had been issued to some of the owners of the properties their interests in the properties could not vest in the Custodian. The order declaring the properties to be evacuee properties in such a case is without jurisdiction. Their Lordships have held as under (p. 107, paras 4 and 6):- “4. The question is whether the Custodian was entitled to declare the entirety of the two houses evacuee property and deprive the petitioners of their right in them. - 10 - It is well established and not disputed, that no property of any person can be declared to be evacuee property unless that person had first been given a notice under S. 7 of the Act: see Ebrahim Aboobaker v. Tek Chand Dolwani, 1953 SCR 691 at p. 702: (AIR 1953 SC 298 at p. 302). Admittedly, no such notice had been issued to the petitioners. Their interest in the houses, therefore, could not have vested in the Custodian. 6. We do not think that this contention is well founded. Zafar Ali was not a party to the proceeding in which the order in dispute had been made. Strictly speaking, no appeal by him against that order lay or was necessary. Then again the appeal did not decide any question as to the right of Zafar Ali to the houses for, it was dismissed on the sole ground that it had been filed beyond the time prescribed for it. There was no judicial determination by the Custodian-General of any fact affecting Zafar Ali's right in the houses. If, as was conceded, Zafar Ali's share in the house could not vest in the Custodian without due notice to him, then we are unable to appreciate how the position becomes different because Zafar Ali filed an appeal which was dismissed as time barred and which he need never have filed at all. The order of January 10, 1952 was without jurisdiction so far as Zafar Ali's share in the house was concerned, and it remained so in spite of the appeal.” The apex Court has held in Custodian, Evacuee Property, Punjab and others v. Jafran Begum, AIR 1968 SC 169 that Section 46 or Section 28 of the Administration of Evacuee Property Act, 1950 cannot bar the jurisdiction of High Court under Article 226 of Constitution. Their Lordships have held as under (p. 178, para 10):- - 11 - “10. It may be added that the only question to be decided under S. 7 is whether the property is evacuee property or not and the jurisdiction of the Custodian to decide this question does not depend upon any finding on a collateral fact. Therefore there is no scope for the application of that line of cases where it has been held that where the jurisdiction of a tribunal of limited jurisdiction depends upon first finding certain state of facts, it cannot give itself jurisdiction on a wrong finding of that state of fact. Here under S. 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does not depend upon any collateral fact being decided as a condition precedent to his assuming jurisdiction. In these circumstances, S. 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in S. 4 (l) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of I Civil Procedure on a combined reading of l s. 4, 28 and 46. But as we have said already, S. 46 or S. 28 cannot bar the jurisdiction of the High Court under Art 226 of the Constitution, for that is a power conferred on the High Court under the Constitution.” Mr. Sharma had also argued vehemently that the writ petition is barred by delay and laches. It is not appropriate for the State to deprive the persons of their properties without jurisdiction and thereafter to rake up the issue of delay or laches. It is settled law by now that a person cannot be deprived of his property without authority of law. The property of the petitioners has been declared evacuee property without jurisdiction. Shri Sultan Mohammad had made representations as noticed above vide Annexures P-10 to P-16 for the restoration of his - 12 - land. The petitioners have also made representation in the year 2000. The representations made by the petitioners’ predecessor-in-interest or the petitioners have not been addressed to. The Hon’ble supreme Court in Haryana State Electricity Board versus State of Punjab and Others, (1974) 3 SCC 91 has held that when the petitioner was making representations and moving the appropriate authorities at all stages, then the writ petition could not be thrown out on the ground of delay and laches. Similarly the Hon’ble Supreme Court in State of M.P. and Others versus Nandlal Jaiswal and Others, (1986) 4 SCC 566 have made the following pertinent observations on the issue of delay and laches (pp. 594-595 para 24):- “……….Of course, this rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the Court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it.” Their Lordships of the Hon’ble Supreme Court in State of U.P. and Others versus Manohar (2005) 2 SCC 126 have not approved the stand of the State of U.P. of not paying the compensation to the - 13 - petitioner who was divested of his land without jurisdiction. Their Lordships have held as under (pp.128-129 paras 3 to 10):- “3. The grievance of the respondent before the High Court was that his name was high-handedly deleted from the revenue record and the revenue record thereafter showed the name of the appellants. He was dispossessed from the land and no compensation was paid, nor were any steps taken in law for acquiring the land. The respondent demanded an amount of Rs.10 lakhs as compensation with interest from the date of dispossession. 4. The appellants appeared through counsel before the High Court and produced certain records. In view of the correspondence, to which we have referred, between the officers of the State, the High Court came to the conclusion that the case made out by the respondent was acceptable and that the State should be directed to take steps to pay compensation to the petitioner within 3 months with appropriate interest in accordance with the law. The High Court contemptuously dismissed the arguments of the counsel for the appellant that the petitioner had already been paid the compensation but that the records evidencing such payment were not available as they had been “weeded out” due to the delay on the part of the respondent in approaching the Court. 5. As a matter of fact, the appellants were unable to produce even a scrap of evidence indicating that the land of the respondent had been taken over or acquired in any manner known to law or that he had ever been paid any compensation in respect of such acquisition. That the land was thereafter constructed upon, is not denied. - 14 - 6. Having heard the learned counsel for the appellants, we are satisfied that the case projected before the Court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent. 7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the 44th Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows: "300-A- Persons not to be deprived of property save by authority of law - No person shall be deprived of his property save by authority of law." 8. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution. In our view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the intransigence displayed before us. 9. In the result, we dismiss the appeal with exemplary costs of Rs.25,000. The compensation payable as directed by the High Court, together with the costs - 15 - directed by us, shall be paid within a period of 3 months from today. 10. The respondent shall also be paid interest on the compensation amount from 22.2.1999 till date of payment @ 9% per annum.” It would also be pertinent to mention at this stage that the respondent-State had taken a plea of delay and laches in preliminary objections when the reply to the unamended writ petition was filed. However, in reply to the amended writ petition no such plea has been raised. Moreover, the question of delay and laches