IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Tuesday, the 5th day of October, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO WRIT APPEAL Nos.2140, 2089 and 2084 of 2003, 7, 8 and 10 of 2004, 1021 of 2006 and Writ Petition No.1895 of 2009 Between: The Collector, Hyderabad district and others … Petitioners And Mir Ahmed Ali Khan and others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO WRIT APPEAL Nos.2140, 2089 and 2084 of 2003, 7, 8 and 10 of 2004, 1021 of 2006 and Writ Petition No.1895 of 2009 COMMON JUDGMENT: - (Per Hon’ble Sri Justice A.Gopal Reddy) These intra court appeals under Clause 15 of the Letters Patent appeal and connected writ Petitions, have been heard together because they raise common issues and law inter connected with rights of parties in regard to the land admeasuring Ac.12-10 guntas covered by survey Nos.346 to 349 of Shaikpet Village, and are disposed of by this Common Judgment. 2. Facts in brief that are necessary for disposal and are not in dispute are as under:- One Imam Ali was pattadar of lands in survey Nos.346 to 349 admeasuring Ac.12-10 guntas of Shaikpet village. Mir Ahmed Ali Khan, petitioner in W.P.No.6604 of 1994 claims to be a protected tenant of the above land was granted ownership certificate under Section 38-A of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for brevity, “Tenancy Act”) by the Revenue Divisional Officer, Hyderabad (West) in proceedings No.H/11827/65, dated 18.06.1965 after due enquiry and issued form VI-A certifying that Mir Ahmed Ali Khan, S/o.Mir Wajed Ali Khan shall be deemed to be the purchaser of the land in question under the Provisions of sub-section (6) of Section 38 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 Act in respect of Ac.11-33 guntas covered by survey Nos.346, 347, 348, 348/Paiki and 349 of Shaikpet village. One Lt.Col.M.A.Hasan claims that he purchased the property from Imam Ali, but the sale deeds were not available to show his purchase and consequential mutation proceedings were undertaken and necessary changes have not been recorded in the revenue records and hence the said lands stands in the name of original pattadar Imam Ali. While so, a notification, dated 20.11.1951, was issued under Section 7 of the Administration of Evacuee Property Act, 1950 (for short, “E.P.Act”), notifying the properties including house No.364 at Yellareddyguda and 200 acres of land in Yellareddyguda belongs to Lt.Col.M.A.Hasan as an evacuee Property. One Azeezullah Hasan, claiming a share in the properties held by Col.M.A.Hasan filed an application before the Deputy Custodian of Evacuee property claiming a share in survey Nos. 68, 71 and 72 of Yellareddyguda village admeasuring Acs.400-00 and the properties of Shaikpet village admeasuring Acs.200-00 of land and his bungalow No.364 of Yellareddyguda village of Hyderabad District. On dismissal of the claim by the Deputy Custodian on 06.10.1953, he filed an appeal before the Additional Custodian. The said appeal was disposed of on 21.02.1954, stating that the lands in survey Nos.68, 71 and 72 of Yellareddyguda village is an Evacuee property along with other properties of Shaikpet village measuring Acs.200-00 of land adjoining the bungalow No.364 of Yellareddyguda village of Hyderabad District. Meanwhile, One Capt.D.S.M.S.Hanspal, claiming lands along with a bungalow as the Evacuee property of Col.M.A.Hasan under displacement, made a claim before the Deputy Custodian and the same was dismissed on 06.08.1953, holding that the property is not Evacuee property. On such dismissal, he filed an Appeal No.134/APL of 1953 before the Additional Custodian, Evacuee Property, Hyderabad. The Appellate Authority dismissed the appeal on 13.02.1954 confirming the finding of the Deputy Custodian that the survey Nos.346, 347, 348, 348/Paiki, 349 and 351, admeasuring Ac.12-04 guntas situated at Shaikpet village did not belong to Col.M.A.Hasan and the possession of Cap.D.S.M.S.Hanspal of the said property as an allottee of the department was incorrect. The said order has become final. On granting ownership certificate in favour of Mir Ahmed Ali Khan under Section 38-A of Tenancy Act, his name was entered in the revenue records. Meanwhile, the Government of India, Ministry of Supply of Rehabilitation (Department of Rehabilitation) by notification, dated 23.06.1980, has transferred the residuary Evacuee Property work to the Government of A.P. and powers exercisable by it under Sub- Section (4) of Section 24 and 33 of D.P.C.R.Act to the Officers of the State Government. While so, basing on the report submitted by the Mandal Revenue Officer, Golkonda that the said land is an evacuee property, the Commissioner of Survey, Settlements and Land Records vide his letter, dated 20.11.1992, directed the Collector to enquire as to how the evacuee properties were got converted as patta lands and whether such conversion was done properly and to take action under Section 17 of Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for brevity, “D.P.C.R.Act”). Pursuant to the said direction, the District Collector issued a memo on 03.03.1993 to Mir Ahmed Ali Khan, to which they submitted their explanation and no orders were passed on the memo issued to the petitioner, dated 03.03.1993, by the District Collector and the same presumes to have been dropped. Mir Ahmed Ali Khan executed a gift deed, dated 10.06.1986, gifting an extent of 6860 square yards of land out of the land of Ac.11-33 guntas purchased by him under Section 38 of the Tenancy Act to Khairul Anam Educational and Charitable Trust, Hyderabad-petitioner in W.P.No.761 of 1996 and delivered possession of the same to the trust on the said date. Since then they have been in possession and enjoyment and have constructed the building and other structures in the land gifted to it, after obtaining necessary permission from the municipal authorities. While so, Mir Ahmed Ali Khan filed W.P.No.6604 of 1994 stating that pursuant to the memo B/597/1991, dated 15.01.1993, issued by the Mandal Revenue Officer, Golkonda-2nd respondent to produce the documents available with the petitioner to show the property in question is not an Evacuee property in respect of survey Nos.346 to 349 of Shaikpet village, Golkonda Mandal, he submitted applications, dated 01.02.1993 and 15.02.1993 enclosing copies of all the documents showing it as a private patta land which is in his possession, but no orders were passed in response to the memo, dated 15.01.1993, and without giving any opportunity of personal hearing and without passing any final order on the explanation submitted by him, the 2nd respondent came to the said land and high handedly started demolishing the structures and attempted to take possession of the land. Therefore, a Mandamus should be issued to the respondents restraining the possession and enjoyment of the lands covered by survey Nos.346 to 348. Khairul Anam Educational and Charitable Trust, represented by its trustees filed W.P.No.761 of 1996 complaining that on 16.09.1996 the 2nd respondent high-handedly threatened to dismantle the constructions made by them. Hence, the respondents should be restrained from interfering with the possession of the land to an extent of 6860 square yards. The 1st respondent filed Counter in the said writ petition, enclosing the proceedings of the 1st respondent-Government of India, rep. by Deputy Custodian, Ministry of Government Affairs, New Delhi, dated 21.02.1957, wherein it was stated that the orders passed by the Deputy Custodian (L) in his order No.134/ADE/53, declaring the property bearing survey Nos.346 to 349 situated at Yellareddyguda, Shaikpet village pertains to Col.M.A.Hassan Evacuee as non-evacuee property is null and void, as there is no documentary evidence produced except the oral evidence of village Patwari. The said order was passed between the Deputy Custodian and the Mir Ahmed Ali Khan on 21.02.1957. One M.Raja Babu got himself impleaded in W.P.Nos.6604 of 1994 and 761 of 1996 as per the orders in W.P.M.P.Nos.9285 and 8611 of 1997 respectively as 4th respondent stating that the lands covered in survey Nos.346 to 348 of Shaikpet village and some other lands were declared as Evacuee properties belonging to Col.M.A.Hasan and were subsequently sought to be allotted to the displaced persons for which he has already completed the formalities and the file is pending for allotment of the lands to him before the Commissioner, Survey Settlement and Land Records, A.P., Hyderabad. In the counter affidavit filed by the 1st respondent District Collector, it is submitted that originally survey Nos.346 to 349 of Shaikpet village admeasuring Ac.12-10 guntas i.e., survey No.346 Ac.1- 31 guntas, survey No.347 Ac.2-00, survey No.348 Ac.2-37 guntas, survey No.348/Paiki Ac.4-11 guntas and survey No.349 Ac.1-11 guntas were patta lands of one Imam Ali. One Lt.Col.M.A.Hasan purchased these lands, which were adjacent to his other properties i.e., Bungalow and land in survey Nos.68, 71 and 72 of Yellareddyguda. He was declared as an Evacuee and all the properties including the H.No.364 at Yellareddyguda and 200 acres of land at Yellareddyguda as evacuee properties vide notification No.229, dated 20.11.1951 and he applied for sanction of mutation in his favour before the Tahsildar West, Hyderabad and the said Tahsildar also sanctioned the mutation vide his order no.14/5555 of 1355 fasli on 24.06.1355 Fasli and gave instructions to include his case at the time of recording of endorsement. As his case was not implemented as ordered by the Tahsildar West, the name of Imam Ali is continued in the revenue records as pattadar of the lands. In the meantime the custodian of Evacuee property has declared the lands in survey Nos.346 to 349 along with other property of Col.M.A.Hasan as Evacuee property and issued notification vide notification No.229, dated 20.11.1951. Col.Hasan purchased these lands, which were adjacent to his other properties in survey Nos.68, 71 and 72 of Yellareddiguda. According to the entries in the form-2 register i.e., the register of acquired Urban Immovable properties, the survey No.346 to 349 of Shaikpet village besides the other properties of Yellareddiguda has been acquired under Section 12 of the D.P.C.R.Act. As regards the certificate issued by the Revenue Divisional Office, Hyderabad west in proceedings No.H/11827/64, dated 18.06.1965, the orders are irregular as the Revenue Divisional Officer who issued the same has no jurisdiction and the Tenancy Act under which they were issued was not applicable to the lands in question, which is vested with the Central Government being the evacuee property of Col.M.A.Hasan. With regard to the orders of the Deputy Custodian and Additional Custodian, these orders were set aside by the Deputy Custodian General of Evacuee property, order No. DCG/57-247/Apl/56, dated 21.02.1957. 3. Both the petitioners in W.P.No.6604 of 1994 and 761 of 1996 together filed W.P.No.29572 of 1998 to quash the proceedings, dated 21.02.1957. 4. The learned single Judge of this Court by the impugned common order, dated 15.09.2003, allowed all the three writ petition Nos.6604/1994, 761/1996 and 29572 of 1998, holding that the name of Imam Ali was shown to be the owner and pattadar of the said land till an application was made by the petitioner-Mir Ahmed Ali Khan to issue ownership certificate under Section 38(E) of the Hyderabad Tenancy and Agricultural Lands Act, 1950, who having paid the price of the land to the sons of Imam Ali before the Revenue Divisional Officer, who endorsed and issued ownership certificate and consequent to which his name was recorded as protected tenant in the revenue records, the respondents are not justified in interfering with his possession over the said land. Further, the learned single Judge also stated that the impugned proceedings said to have been issued by the Deputy Custodian, dated 21.02.1957, which is subject matter of challenge in W.P.No.29572 of 1998, is not genuine and the very existence of it is doubtful. Even otherwise, the notification No.229, dated 20.11.1951, declaring the properties of Col.M.A.Hasan as Evacuee properties refers to survey Nos.346 to 349 of Yellareddyguda, whereas the subject land is in survey Nos.346 to 349 of Shaikpet village, Golkonda Mandal, which is not an evacuee property and accordingly allowed the writ petitions. 5. Meanwhile, one M.Subba Raidu filed W.P.No.5918 of 2002 claiming that he purchased the land admeasuring 360 square yards (Plot No.249) in Kamalapuri Colony in ward No.8, block No.3 of Municipal Corporation of Hyderabad (MCH) under registered sale deed, dated 25.11.1996 and another extent of 212 square yards in survey No.348 situated at Kamalapuri Colony of Shaikpet village under another registered sale deed dated 27.06.2001, from Mir Akbar Ali Khan. He demolished the old structures and after obtaining building permission from the Municipal Corporation of Hyderabad, took up construction and when the construction was in progress, the officials of the Mandal Revenue Officer, Shaikpet Mandal stopped the construction. Hence, a Mandamus may be issued directing the respondents not to interfere with the petitioner’s construction activity in the lands purchased by him, which forms part of survey No.348. 6. Following the common judgment in W.P.Nos.6604 of 1994, 710 of 1996 and 29372 of 1998, the said writ petition was also allowed by this Court by order dated 05.07.2006 and if still the Government claims that the land as evacuee property, it shall be open to it to agitate the matter in an appropriate forum. 7. Aggrieved by the order in W.P.No.5918 of 2002, the Government filed W.A.No.1021 of 2006. Aggrieved by the common judgment in W.P.Nos.6604 of 1994, 762 of 1996 and 29572 of 1998, the official respondent Nos.1 to 3 filed W.A.Nos.7, 8, 10 of 2004 and respondent No.4 filed W.A.Nos.2140, 2081, 2084 of 2003 respectively. 8. Pending the appeals, Sri Narayana Das, represented by M.Rajan babu filed W.P.No.1895 of 2009 stating that his principal father was a displaced person. In fact they came to India from Sindh during partition between India and Pakistan. In accordance with the provisions of the D.P.C.R. Act and the Rules made thereunder, his principal made petitions to the authority under the said act on 09.06.1994 and 27.06.2001 for allotment of Ac.10-12 guntas of land in survey Nos.346 to 349 in Shaikpet village, Golkonda Mandal under Sections 19 and 20 of the D.P.C.R.Act, which are pending before the Chief Commissioner, Land Administration. Earlier he made application to the Commissioner on behalf of M/s.Sarvodaya Nagar Weaker Section Welfare Association, seeking allotment of the very same land for the weaker sections. On coming to know that the said property was an evacuee property, his principal and his family members made a claim through him under the provisions of the Act. It is further submitted that the original owner of the property is one Imam Ali, but he sold the property to Col.M.A.Hasan together with a bungalow bearing No.346 and the said Col.M.A.Hasan thereafter migrated to Pakistan and accordingly, his property was declared as evacuee property. It is further submitted that respondent Nos.5 to 7 in W.P.No.1895 of 2009 and late Mir Ahmed Ali Khan filed writ petitions i.e., W.P.No.6604 of 1994, 761 of 1996 ans 29572 of 1998 and the same were allowed, against which writ appeals are pending. Since his principal is holding a claim under claim bearing CAF.No.2061/By/By/By XXVII Index No.8/NS10/314, a writ of Mandamus may be issued declaring the inaction of respondent Nos.1 to 4 in not considering the claim of the petitioner in respect of his property admeasuring Ac.10-12 guntas situated in survey Nos.346 to 349 of Shaikpet village in response to the representations dated 09.06.1994 and 27.06.2001, as illegal and a consequential direction to consider his clam and pass appropriate orders. 9. Sri N.Sridhar Reddy, learned Special Government Pleader representing the Advocate General on behalf of the State Government contends that once the properties are declared as Evacuee properties and notified by notification, dated 21.11.1951 at Sl.No.50, the properties vested in the State Government. One Azeezullah Hasan claimed share in the property of Lt.Col.M.A.Hasan, the Deputy Custodian of Evacuee Property dismissed his claim on 06.10.1953 and the appeal before the Additional Custodian was also dismissed on 21.02.1954. The same Deputy Custodian dismissed claim made by one Cpt.D.S.M.S.Hanspal holding that the property is not an evacuee property on 06.08.1953, which has been confirmed in appeal on 13.02.1954 by the Additional Custodian as Evacuee property. On further appeal, the Deputy Custodian General, Jamnagar, set aside the said order on 21.02.1957. Once the property is declared as an evacuee property by exercising the powers under Section 7 of the Administrative of Evacuee Properties Act, 1950, no certificate can be issued in favour of Mir Ahmed Ali Khan under Section 38-E of the Tenancy Act. Even if the order, dated 21.02.1957 is non est in law, still the land remains to be an evacuee property. Therefore, the obtaining of certificate under Section 38-E is of no use. The writ petitions filed by the petitioners for declaration of the petitioners’ ownership over the property ought not to have been entertained by the learned Single Judge. Further, the orders of the Deputy Custodian, dated 21.02.1957, cannot be questioned after 41 years in W.P.No.29572 of 1998. The communication from the Government of India, dated 14.09.1994, wherein it was informed that on verification of the authenticity of the copy of the order, dated 21.02.957, issued by Gurucharan Das alleged Assitant Settlement Commissioner was retired on 25.03.1991 and the copy issued under the signature does not appear to be a genuine. In view of the same, the learned Single Judge ought not to have been upheld the title of Mir Ahmad Ali Khan and the persons claiming under him in exercise of the writ jurisdiction, wherein disputed questions of facts and law are involved. 10. Sri P.Venu Gopal, learned counsel for M.Rajan Babu- appellant in the writ appeal Nos.2140, 2089 and 2084 of 2003 and the petitioner in W.P.No.1895 of 2009, after taking the Court through the precise affidavit filed in W.P.No.6604 of 1994 and 761 of 1996, contends that Imam Ali Khan, who was the absolute owner and possessor, alienated the land to Col.M.A.Hasan, who migrated to Pakistan and who was declared as an evacuee. When his brother Azeezullah Hasan made an application claiming share in the property of Col.M.A.Hasan before the Deputy Custodian, the same was dismissed on 06.10.1953. On appeal, the Additional Custodian on 21.02.1954 dismissed the appeal, confirming the finding of the Deputy Custodian that the property is an evacuee property. When Cap.D.S.M.S.Hanspal made a claim before the Deputy Custodian, the very same Deputy Custodian passed an order on 06.08.1953 dismissing the claim and the appeal before the Additional Custodian was also dismissed on 13.02.1954. The learned counsel brought to our notice, the interim order passed by this Court in W.A.M.P.No.299 of 2005 in W.A.No.2140 of 2003, dated 09.02.2005, wherein the Commissioner, Survey Settlement and Land Records was directed for sending the entire record of file No.CE/664/Hyd-52 and record No.765/S/486 for the year 1952 in a sealed cover through a special messenger. When the said records are not available, W.P.No.25972 of 1998 is hit by latches as once it is established that it is an evacuee property on dismissal of the claim by Hazeezulla Hasan holding that it is an evacuee property. When the notification dated 20.11.1951 has not been challenged, the said writ petition has to be dismissed in limini and without granting any relief. 11. Sri D.Prakash Reddy, learned senior counsel appearing for the writ petitioners submitted that once the ownership of Imam Ali of the property covered by survey Nos.346 to 349 has not been disputed, the claim of the Government that Imam Ali sold the said land to Col.M.A.Hasan, which has been declared as an evacuee property, is not correct. It is for the Government to establish about the said sale in favour of M.A.Hasan. No documents were filed to establish the said fact that Imam Ali sold the property to M.A.Hasan, except mutation proceedings said to have been undertaken as stated by him in the counter. The learned counsel also brought to our notice, the application made by Mohammed Abdullah Hussain Saheb and the mutation proceedings, which was referred to in the counter with regard to survey Nos.346, 347, 348/1-2-3 and 349 granted by the Tahsil West in file No.14/555 of 1358 Fasli, dated 24.06.1355 Fasli, issued from the Office of the Tahsil West, Hyderabad in reply to the application, wherein it is stated that Imam Ali pattadar of village Shaikpet sold the property in favour of Abdullah Hussain Saheb. If Abdullah Hussain Saheb has purchased the said property from Col.M.A.Hasan, the petitioner will become the protected tenant of Abdullah Hussain. The writ petitioners are the protected tenants whose rights have been recognized in an appropriate proceedings and a certificate has also been issued in favour of the petitioners under Section 38-A of the Tenancy Act and they acquired the title to the property. He also brought to our notice, the counter averments in para 5 of the WP 6604 of 1994, wherein it is referred that Col.M.A.Hasan applied before the Tahsildar West Hyderabad for sanction of mutation orders in file No.14/555 of 1355 Fasli on 24.06.1355 Fasli to include his case at the time of recording the endorsement. The Government failed to establish his property as an evacuee property and the main basis of the Government that the property was purchased by Col.M.A.Hasan is falsified with the above proceedings. The purchaser Col.M.A.Hasan is a myth. He also contends that purchase is made by Abdullah Hussain Saheb but not by Col.M.A.Hasan. The application made by one Azeezullah Hasan is not relating to survey numbers of Shaikpet village. Hanspal is the appellant in appeal No.134/APL/1953, before the Additional Custodian, Evacuee Property, who confirmed the orders passed by the Deputy Custodian, Hyderabad, dated 06.08.1953 declaring survey No.346 to 349 and 357 of Shaikpet village did not belong to Col.M.A.Hasan. If any appeal has to be preferred, it should be by the Hanspal, but not by the Deputy Custodian, who decided the matter. Therefore, the Appellate order, dated 21.02.1957, passed by the Deputy Custodian General, Jamnagar is a fabricated document and except four lines order, no reasons were assigned and who issued notice to the parties is also not evident from the said order. When Hanspal is satisfied with the order of the Additional Custodian of A.P., filing of the appeal and passing the above order at the instance of Deputy Custodian, itself speaks how the 4th respondent/appellant in writ appeals claiming allotment of the properties created the documents. Further, in the counter affidavit filed by respondent Nos.2 and 3 viz., Mir Akbar Ali Khan and Hamid Ali Khan in W.A.M.P.No.1621 of 2006 in WA.M.P.NO.359 of 2006 in W.A.No.2140 of 2003 filed by the Rajan Babu to receive the documents filed by him along with the W.A.M.P.No.359 of 2006 as additional documents, secondary evidence for deciding the writ appeals, they have categorically stated that the letters and notices pertain to the period between 1951 to 1953, and the father of respondent Nos.2 and 3 is described as Ex-Minister in all the notices and letters and during the said period he was not even a member of the Legislative Assembly and got first time elected to the Legislative Assembly in the year 1957 and was a Minister during his second term as a M.L.A., which was the period between the years 1962 to 1967. Therefore, the letter addressed to him describing him as ex-minister is absurd and the said documents were fabricated by Rajan Babu. Therefore, the application is not maintainable under Sections 63 and 65 of the Indian Evidence Act, 1872. No reply has been filed by the proposed allottes who will not have any right to seek any Mandamus. 12. Sri Kaja Mohidduin for R2 in W.A.No.2084 and 2089 of 2003, contends that the notification issued declaring the evacuee property does not include survey Nos.346 to 349 in the locality and the orders passed by the Deputy Custodian declaring the property as an evacuee property has been confirmed. 13. In order to appreciate the rival contentions advanced by the learned counsel, it is necessary to refer to relevant statutory provisions. 14. Section 7 of the E.P.Act deals with Notification of evacuee property which is as under: - Sec.7:- Notification of evacuee property: - (1) Where the Custodian is of opinion