Gujarat High Court
Kadir Abdul Gani vs Collector And Settlement Officer on 23 April, 2003
Author: Jayant Patel
Bench: Jayant Patel
JUDGMENT Jayant Patel, J.
1. The short facts of the case are that the petitioners are claiming to be the legal heirs of Smt. Rabiya Vali Mohmed having interest in the property which was purchased by her as per the sale transaction dated 27-7-1962 from Bassarmal Motumal and Bulchand Bassarmal. The said Bassarmal Motumal and Bulchand Bassarmal appear to have purchased the property as per the auction sale of the evacuee property of one Ahmed Gani of Jetpur who went to Pakistan after 14-8-1947. It further appears that the said Ahmed Gani had purchased two plots admeasuring 986 sq. yds. from one Kassam Tar Mohmed Vadiwala. Out of the said area of 986 sq, yds., when the property came to be declared evacuee there was construction over the land admeasuring 360 sq.yds. and the left out area of open land was 626 sq.yds. It is the case of the petitioners that when Bassarmal Motumal and Bulchand Bassarmal purchased the property in the auction of the aforesaid evacuee property, which comprised of a total area admeasuring 986 sq. yds. of the land with the superstructure in the portion of the land and the said area was given E.P. No.35/1 and the whole property was purchased by Smt.Rabiya Vali Mohmed as per the sale transaction dated 27-7-1962.
2. However, in the year 1977 proceedings of show-cause notice came to be issued by the Rehabilitation Officer and the Managing Officer under The Administration of Evacuee Property Act, 1950 (hereinafter referred to as "the Act") and ultimately the said authority as per the decision dated 23-11-1977 declared the open area of the plot admeasuring 626 sq. yds. as acquired evacuee property (E.P.) No.35/2 and subsequently ordered that the possession of the said property should be taken over.
3. It appears that the petitioners thereafter carried the matter before this Court by preferring SCA No.1774/1977 and this Court (Coram: I.C.Bhatt, J. as he was then), as per the decision dated 18-4-1984 set aside the order dated 23-11-1977 only on the limited ground that the petitioner has not been heard, nor has he been given any reasonable opportunity to defend his case before passing the impugned order and, therefore, the direction was given to the respondent to hear the petitioner on the show-cause notice dated 2-2-1977 and to pass appropriate orders in accordance with law. It was also observed that the petitioner will be at liberty to produce any other evidence that he wishes in connection with his defence and the same shall be taken into consideration by the competent authority. It further appears that thereafter the Collector heard the petitioner and passed the order, whereby he found that the evacuee property No.35/1 was comprising of the residential building and the land admeasuring 360 sq. yds. only and evacuee property No.35/1 was not of open plot admeasuring 626 sq. yds. and, therefore, he declared that there is automatically vesting of the said property of migrants bearing evacuee property No.35/2 and consequently the Mamlatdar and the Custodian was directed to take possession of the property. The matter was carried further by the petitioners before the authorized Chief Settlement Commissioner and Dy. Secretary (Rehabilitation), Revenue Department of the State Government against the decision of the Collector. The said Chief Settlement Commissioner ultimately passed the dated 5-5-1989 whereby for the reasons recorded in the said order he rejected the application of the petitioners and confirmed the order dated 28-10-1987 of the Collector and under these circumstances the present petition before this Court.
4. Mr.Shah, learned Counsel appearing for the petitioners, has contended, inter alia, that the area of the open plot was comprising of land admeasuring 626 sq. yds. originally belonging to Shri Ahmed Gani of Jetpur who migrated after 14-8-1947. He submitted that it was a composite property of the evacuee Ahmed Gani who had purchased from Kassam Tar Mohmed Vadiwala. He submitted that even when the inquiry conducted by the City Survey Department on 28-9-1969 it was found that the property belonging to Haji Amad Haji Gani Latiwala admeasuring 986 sq. yds. was sold as per the sale-deed dated 22-1-1939 to Ahmed Gani and the said property of Ahmed Gani was sold as per the sale certificate. Mr.Shah further submitted that in the inquiry proceedings it is recorded that in the Sale Transaction dated 27-6-1962 by registered sale-deed executed by Bassarmal Motumal and other to Smt. Bai Rabiya, there is a reference to the area and, therefore, in the City Survey inquiry it was found that both the portions of the land namely; the land below the construction admeasuring 360 sq. yds. and the open plot admeasuring 626 sq. yds were found to be of the ownership of Bai Rabiya Vali Mohmed. Mr.Shah submitted that, therefore, it was not open to the authority to take a contrary view. Mr.Shah also contended that as per the Section 7 and Section 7A of the Act, no property can be declared to be evacuee property on or after 7th May, 1954 and, therefore, he submitted that in view of the bar operating under Section 7 and Section 7A, the declaration is without any authority and jurisdiction. He submitted that Section 8(2)(A) cannot be made applicable in the present case because at the relevant point of time, the property was not declared as evacuee property and once it is not declared as evacuee property, there cannot be said to be vesting in the Custodian and he submitted that the reliance placed upon the Section 8(2)(A) while passing the order and its confirmation thereof are ill-founded. Mr.Shah also relied upon the judgement of the Apex Court in the case of "Dr. Rajendra Prakash Sharma v. Gyan Chandra and Others" reported in AIR 1980 SC, 1206 to contend that a property cannot be subsequently declared as evacuee property after the cut-off date of 7th May, 1954.
5. On behalf of the respondents, Ms.Pandit, learned AGP, has supported the order passed by the lower authority.
6. Having considered the above, the first question which is required to be decided is as to whether the property could be declared as evacuee property or whether there is any bar operating under Section 7 read with Section 7A as such. In the present case, there is no dispute on the point that the property of Ahmed Gani of Jetpur who went to Pakistan after 1947 was declared as evacuee property. There is also not dispute on the point that the property of Mr.Ahmed Gani vests to the Custodian under the Act. Had the property not been declared as evacuee property and subsequently not vested to the Custodian, there was no question of its sale by public auction and, therefore, when the property had already been declared as evacuee property and when it had been vested to the Custodian the only question which has been examined by the authority is whether the whole area of 986 sq. yds forming part of the evacuee which is sold or what is sold is only the constructed portion and the land below the construction admeasuring 360 sq. yds. In my view, when the question is regarding the composition of the evacuee property it cannot be said that the bar operates under Section 7 and Section 7A. If a particular migrant is holding more than one properties namely; A, B and C, and only properties A and B are declared evacuee and C is not declared as evacuee, then possibly such bar may operate, if the properties have stood in the name of evacuee after the cut-off date. Such is not the case here in as much as the property was already declared evacuee and it was also sold by public auction. Therefore, when the authority or the Chief Settlement Commissioner under the Act has to decide regarding internal composition of the property of the evacuee, which is already declared evacuee property, it cannot be said that the bar would operate and he has no authority to declare that a particular portion of the property of evacuee is not sold and what is sold is a part of it and hence, in my view, the first contention of Mr.Shah is meritless and hence rejected.
7. The fact situation of the judgement of the Apex Court upon which the reliance was placed was altogether different in as much as in the case before the Apex Court no proceedings under Section 7 to declare the property evacuee property were taken by the Custodian against the person who remained in India at least till 1963. Such is not the present case and, therefore, the reliance placed is ill-founded.
8. The aforesaid takes me to examine the second contention regarding the composition of the property which is purchased in public auction by Bassarmal Motumal. In the sale certificate, there is no reference to the area when the public auction took place and only boundaries were mentioned. It has been submitted by the petitioners that at the relevant point of time also on South there was other open plot and, therefore, it cannot be read that the open plot must mean the open plot of the evacuee. However, in my view, when immediately after the purchase on 28-4-1962 Bassarmal and other sold the property to Rabiya Vali Mohmed as per the sale transaction dated 27-7-1962 the area mentioned of the whole property is one strong consideration to find out as to whether the property of Ahmed Gani which is purchased by Bassarmal Motumal and other comprises of the total area of 986 sq. yds or only the constructed portion leaving the other portion of the plot admeasuring 626 sq. yds as different. The sale-deed is not produced on record and some reference is found only in the City Survey inquiry. The perusal of the order passed by the Collector as well as the Chief Settlement Commissioner shows that the aforesaid important aspect of the case is not examined. It appears that if when Bassarmal and other sold the property to Bai Rabiya Vali Mohmed as per the sale-deed dated 27-7-1962 and if the area is mentioned as that of 986 sq. yds, it can reasonably be construed that the property comprises of 986 sq. yds which was sold by sale certificate. I am not expressing any final opinion on the said aspect, but it will be for the authority to consider the contents of the sale-deed accordingly and to take final decision in the matter. Since the aforesaid aspect which goes to the root of the matter is not considered by the authority below, it can be said that the authority has committed error which is apparent on the face of record and the matter deserves to be remanded.
9. In view of the aforesaid discussion, the order dated 5-5-1989 passed by the Chief Settlement Commissioner, copy whereof is produced at Annexure "H" is quashed and set aside with the further directions that he shall rehear the matter and shall also take into consideration the observations made by this Court hereinabove in this judgement and shall render the decision as early as possible, preferably within a period of four months from the date of receipt of the writ of this Court.
10. It is further directed that until the Chief Settlement Commissioner decides the matter as observed earlier, the status-quo qua the property shall be maintained on condition that the petitioners shall also maintain the status-quo qua the possession and the title of the property in question and they shall not transfer or alienate the property in any manner whatsoever.
11. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No costs.