Delhi High Court
Krishna Kumari vs Union Of India And Ors. on 18 March, 1989
Equivalent citations: 38(1989)DLT221, 1989RLR156
JUDGMENT M.K. Chawla, J.
(1) In an auction sale of plot nos. 73- 74, Block No. 27, Vishwas Nagar, Shahdara. Delhi, held on 27th December, 1958, by the Managing Officer appointed under Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as the Act), the highest bid of the petitioner Smt. Krishna Kumari, for Rs. 32751- was accepted. A sum of Rs. 4951- towards the part payment of the sale consideration was adjusted from compensation application of the petitioner. After the possession of the plots was handed over, the petitioner constructed a set of two rooms and the boundary well. Since then she is in occupation of this property.
(2) The grievance of the petitioner is that in spite of repeated requests and reminders, the respondents are neither accepting the balance price nor issuing the sale certificate. The petitioner now learns that the respondent is experiencing difficulty in finalising the sale, inasmuch as they have come across an order, declaring Smt. Harmuji Khanam to be nonevacuee, having the right to plot no. 73 only. In order to resolve the controversy, the respondents have sought the advice from the Ministry of Law. The opinion of the Law Department is that the respondents can go ahead with finalising the sale of the plots in question in favor of the petitioner. In spite of this opinion, the respondents are not moving in the matter. Left with no other option, the petitioner has sought the issuance of writ of mandamus or any other appropriate writ, order or direction requiring the respondents to accept the balance sale price, finalise the sale deed and/or issue the certificate of sale in accordance with the provisions of the Act.
(3) While issuing Rule, the Division Bench noted that the petitioner has not imp leaded Mst. Harmuji Khanam the alleged owner in whose favor an order under Section 16 of the Act has been passed. The petitioner was directed to implead Mst. Harmuji Khanam, as. respondent no. 4. The order was complied with. Notice was issued to her but she remained unserved for sufficient long time. Ultimately, she was served by substituted service by affixation on the last known address and also by beat of drum. In spite of service, none has cared to put in appearance on her behalf.
(4) The stand of the respondents is that after the sale of the plot in favor of the petitioner and the adjustment of a .part of the consideration, the respondents realised that the owner (Smt. Harmuji Khanam) of plot no. 73, block no. 27. Vishwas Nagar, Shahdara was declared evacuee vide order (if the Assistant Custodian (Judicial) on 27th July, 1955. The order was later on set aside by the Deputy Custodians and the case was remanded back to the Assistant Custodian for deciding the case on merits. The Assistant Custodian vide his order dated 27th June, 1956. held this property as a non-evacuee property. The Central Government while exercising the powers under Section 16 of the Administration of Evacuee Property Act. 1950, restored it to its owner Smt. Harmuji Khanam. Under the circumstances, plot no. 73, could not be held to have been acquired u/s 12 of the Act. The auction sale held on 27th December, 1958 was thus void ab initio.
(5) In order to appreciate the scope of the rival contentions of the parties, it is relevant to bear in mind the scheme of the various Ordinances and the Acts under which the properties owned and left by Mohammdans after the partition of the country were taken over The East Punjab Evacuee (Administration of Property) Ordinance. 1947. first in the series, came' into force on 14th of September, 1947. By virtue of Section 5 of the said Ordinance, the Custodian was authorised to take possession of evacuee properties and devise measures necessary. Or expedient for its preservation. .Then came the East Punjab Evacuees (Administration of Property) Act 14 of 1947. By virtue of Section 4, all the evacuee properties situated within the province of East Punjab vested in the Custodian, until the same is returned to the owner in accordance with the procedure laid down under Section 12. This was an automatic vesting. This very Act was amended to bring in its application the provinces of Delhi and Ajmer Marwara, by enacting East Punjab Evacuee (Administration of Property) Delhi and Ajmer-Marwara Amendment 0rdinance,1949. The Government complied the list of Urban Evacuee properties in the State of Delhi up to 31st December, 1950. The compilation is in bound volume. In this compilation at serial no. 891-97, these two plots bearing nos. 73 and 74, in block no. 27, Vishwas Nagar, having an area of 200 sq, yards, each are shown as evacuee properties. The owners name is mentioned as Mohd. Misha. Next in the series which is relevant for he purpose of this petition, came Central Enactment. The Administration of Evacuee Property Act, 1950. By virtue of Section 7, if the Custodian was of the opinion that any property is evacuee property within the meaning of this Act, he could pass an order declaring such property to be evacuee property after causing a notice thereof to the person interested and after holding such enquiry into the matter as the circumstances of the case may permit. Section 8(2), provides that:- "Where immediately before the commencement of this Act, any property in a State had vested ax 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."
The effect of sub-section (2) of Section 8 is that all the properties which automatically vested in the Custodian under the Administration of Evacuee Property Ordinance, 1949 have been put on par with the properties which after coming into force of the Administration of Evacuee Property Act have been declared as evacuee property under Section 7. The effect of coming into force of Section 7-A is that no property was to be declared evacuee property on or after the 7th day of May. 1954, save as provided in this Section.
(6) A procedure for the restoration of an evacuee property is laid down in Section 16 of the Act. Under this provision. any evacuee or any person claiming to be an heir of evacuee may apply to the General Government that any evacuee property which has vested in the Custodian, to which the applicant would have been entitled if this Act were not in force, may be restored to him. Under this provisions no application is to be entertained unless the applicant has filed all appeals and revision applications permissible under this Act, against the order declaring the property of the evacuee to be the evacuee property, and the Custodian General has made a final order in the case. This provision, however, will not affect any property which has been acquired for the purposes of rehabilitation of displaced persons under Section 12 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954. Once the Central Government is of the opinion that it is necessary to acquire any evacuee property for a public purpose being a purpose connected with the relief and rehabilitation of displaced person, including payment of compensation to such person may acquire such an evacuee property. On the publication of the notification of such a property, all rights, title and interest of any evacuee in the said property shall be deemed to have extinguished and the said property shall vest absolutely in the Central Government free from all encumbrances. This is the effect of Section 12 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954. thereafter, the Managing Officer was authorised vide Section 20 to transfer any property out of the compensation pool either by sale or by allotment to a displaced person. By virtue of this power, the two plots in dispute were sold by public auction.
(7) With this background, the contention of the respondent can now be looked into. Learned counsel has placed reliance on a notification dated 4th January, 1952 in pursuance of which the Addl. Custodian for the State of Delhi is alleged '' to have notified for general information the list of evacuee properties vested in him. Annexure attached to it mentions the name of Mst. Harmuji Khanam as the owner of some field nos. Reliance has also been placed on the notification dated 3rd June, 1955 issued under Section 12 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, declaring I that all urban immoveable properties in the State of Delhi, which have been declared or deemed to have been declared an evacuee properties, under the Administration of Evacuee Property Act 1950 shall vest in the Custodian, except the properties falling under anyone or more of the following categories. 1. "In respect of which proceedings are pending before any authority at the date of this notification under the Administration of evacuee property Act" or 2. ...............
(8) According to the learned counsel, at the time of the publication of this notification, some sort of proceedings were pending before the Central Government for the restoration of the .plots to its original owner Smt. Harmuji Khanam. Learned counsel has also placed reliance on the order dated 1st March. 1957 whereby the Central Government was pleased to restore to the applicant Smt. Harmuji Khanam plot no. 73 subject to certain conditions. On the strength of these documents, the contention of the learned counsel for the respondent is that the real owner of the plots in dispute was Harmuji Khanam. whose application or appeal was pending consideration when the property was declared as evacuee property in the year 1952. In this situation, the Managing Officer was not authorised to put the property to auction and for that reason, the sale in the name of the petitioner has not been completed.
(9) The entire argument of the learned counsel for the respondent is based on the documents which prima facie are not tenable and have no bearing to the facts of the present case for the following amongst other reasons:-- a. The respondents in their counter do not dispute and rather admit the correctness of the averments made in para I of the petition, which reads as under:- "That plot nos. 73-74, block no. 27, Vishwas Nagar. Shahdara, Delhi, were taken over as evacuee property. These appear at serial no. 891-897 of the list of Urban Evacuee Property in the State of Delhi, prepared in accordance with the provisions of sub-rule (3) of Rule 7 of the Administration of Evacuee property (Central) Rules, 1950, as on 31st December, 1950. Subsequently, on the enactment of Displaced Persons (Compensation & Rehabilitation) Act, 1954, hereinafter referred to as the Act, these plots were acquired vide notification issued by the Central Government under Section 12 of the Act and became acquired evacuee property."
In the counter-affidavit, the contents of this para are admitted.
If these averments stand admitted, then certainly the property in dispute had already been declared evacuee property and it vested in the Central Government free from all encumberances. Then the question of issuance of subsequent notifications on which reliance is placed did not arise. In similar circumstances, the Supreme Court in a case reported as M/s. Haji Esmail Noor Mohd. & Co. v. Competent Officer, Lucknow held that once a person is declared an evacuee within the meaning of U.P. Ordinance 1 of 1949, his property would automatically vest in the Custodian under the said Ordinance. The said vesting was deemed to have token place under the Central Ordinance 27 of 1949, and the Central Act 31 of 1950. Thereafter no question of issuing further notice making a declaration that the said property was an evacuee property u/s 7(1) of the Ordinance, arises. Section 7 only applies to properties other than those which have been vested automatically in the Custodian. Such a vesting cannot be reopened' under the Central Ordinance or the Central Act, for it has already vested therein by a fiction.
The issuance of notification dated 4th January, 1952 is doubtful inasmuch as the original date has been changed in ink from December, 1951 to 4th January, 1952. Further more, in the normal course, the description of property should have been mentioned underneath the notification meant for that purpose. Instead a handwritten annexure is attached notifying the names' of various persons shown as owners of some field nos. Against none of these persons, the plot nos. arc mentioned. Even though in the previous notification and in the list of Urban evacuee properties, in the State of Delhi. prepared as on 31s't December, 1950, the plot nos. are mentioned. It is not made clear as to from where this annexure was obtained. Certainly it does not form part of the notification.
The field nos. shown against the name of Harmuji Khanam, relate to one plot and not two, as claimed. There is no reason for this Court to ignore the official book compiled under the rules listing the properties in dispute as evacuee properties.
(D)The original of this notification has not been produced and there is no authentic record to support the issuance of such a notification or the list of the properties shown therein. It is not a legally admissible document and cannot be given preference over the 1950 compilation.
(E)On the second aspect, as to whether any application or appeal was pending consideration when the notification, dated 4th January, 1952 or the notification dated 3rd June, 1956 was published, it was incumbent upon the respondents to have placed on record some authentic/original record to support this plea. "they have not produced the, copy of any application, appeal, revision or review petition showing that any proceedings were pending before any competent authority as on 4th January, 1952 or 3rd June 1955. Learned counsel for the respondent concedes that the Department is not in possession of any such record. In that situation, it cannot be held. as a fact that any application, appeal or revision was pending consideration, before that date.
(F)The so-called order dated 1st March 1957 is a document on which no reliance can be placed. The original order has not been produced on the record or shown to the Court. Even a photo copy of the order does not bear the signature of Kanwar Bahadur who is alleged to have passed that order. From this order, it is not clear as to when the application by Mst. Harmuji Khanam was made and to which authority. It is also not clear whether it was an appeal or revision before the Central Government. In the absence of the particular date of the filing of the application, appeal or revision, it cannot be determined if at all such a proceedings initiated by Mst. Harmuji Khanam was within limitation or not, particularly when no notice was ever sent or served on the petitioner, who by that time had already been declared purchaser and had taken possession of the property in dispute.
(10) In face of these infirmities, appearing on the face of these documents, this Court will not be justified in placing any reliance on any of them.
(11) At this stage, it may be noticed that on two occassions, the respondents referred the matter to the Ministry of Law for their opinion. The Ministry vide their advice dated 27th July, 1979 and 24th December, 1979, opined that the sale of plot DOS. 73 .and 74, may be confirmed in favor of the ruction purchaser Smt. Krishna Kumari by ordering her to deposit the balance amount of the purchase money. It appears that later on, once again the respondents referred the matter to the Law Department for their revised opinion. A copy of the said advice has been placed on record. In para no. 2 of the said note, the Deputy Legal Adviser proceeds on the assumption of the correctness of the position incorporated in para No. 4 of the note that the plot No. 73 was declared an evacuee property by an ex parte order dated 29th July, 1955 which was later on set aside and on remand, the property was declared to be non-evacuee. When asked for, the detailed note which was submitted to the legal department for their opinion, learned counsel regretted inability to trace out or produce the same. Without that it is not possible to conclude as to how and under what circumstances the property was declared to be non-evacuee.
(12) It is painful to observe that the auction of plots in question which took place as far back as 27th December, 1958, has yet to be given a finality. The petitioner has always been ready and willing to pay the balance price but due to the inaction on the part of the respondents, which prima facie is unjustified, the petitioner has suffered a lot. She has been made to run from pillar to post to get her rights and title determined, this is on account of the unhelpful attitude of the officers of the respondent-Department. Sometime and in some court, the finality has to be given. After 31 years of protracted litigation, it is desirable that a direction be issued to the respondents and in particular to the Managing Officer to finalise the sale of plots no. 73 and 74, Vishwas Nagar. Shahdara, Delhi, in favor of the petitioner at the earliest. Ordered accordingly.