Gujarat High Court
Adamji Haji Dawood Education &Medical ... vs State Of Gujarat Thro.Chief Secretary on 21 September, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10742 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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ADAMJI HAJI DAWOOD EDUCATION &MEDICAL SOCIETY
TRUST
Versus
STATE OF GUJARAT THRO.CHIEF SECRETARY & 3 other(s)
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MR. K.M. ANTANI, AGP for the Respondent(s) No. 1,2
MR MA BUKHARI(211) for the Respondent(s) No. 4
RULE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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NEUTRAL CITATION
C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023
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Date : 21/09/2023
ORAL JUDGMENT
1. The present petition is filed through Yusuf A. Dalwani, the power of attorney holder of all trustees of Sir Adamji Haji Daud Education & Medical Society Trust, being aggrieved and dissatisfied by the impugned order dated 14.07.1983 passed by the respondent No.2 - Collector (the then Collector & Deputy Custodian of Evacuee Property & Settlement Commissioner, office of the Collectorate, Rajkot).
2. The brief facts leading to the filing of the present petition reads thus:
2.1. Shri Adamji Haji Daud came to hold the property of Survey No. 113/1-2-3 admeasuring about 14 Acres 30 Gunthas from the then State, by way of deed dated 01.11.1921 issued by the then State. That the said property comprised of two plots. The big plot is admeasuring about 12 Acres and 30 Gunthas, whereas, the small plot is the rest of the land. However, in the revenue records, the said small Page 2 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined plot is stated to be admeasuring 1 Acres and 37 Gunthas, which is the land in question in the present case (hereinafter referred to as 'the land in question / subject property' for the sake of brevity). The said properties owned by the said evacuee, were taken over by the Assistant Custodian, Jetpur vide Notification No. AC/ JTP/ 2492/1953 dated 08.06.1953 and disposed of by the settlement organization under the provision of Section 20 of the Displaced Person (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'the Act, 1954') as properties acquired by the Central Government under Section 12 of the Act, 1954. The said property is declared as evacuee property No. 119 which is admeasuring about 6636 sq.mtrs. covered by City Sheet No. 32 Chalata No. 1 to 24 and Sheet No. 41 Chalata No.1 to 7 situated at Jetpur.
2.2. Sir Adamji Haji Daud created a trust for the purpose of providing various charitable services in respect of hospital and education under the name as stated in the cause title. The said Trust was registered as society in the year Page 3 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined 1940-41 under the provisions of the Societies Act, 1860 with the concerned Registrar at Calcutta. In the year 1940-41 or before that, Sir Adamji gifted most of his properties situated in Jetpur town to the said Trust. As per the inquiry carried-
out by the Collector and / or Deputy Custodian of Evacuee Property, Madhya Saurashtra, Rajkot, the land in question was also gifted to the trust in the year 1941 and possession and management of the same were also handed over to the Trust in the year 1941 itself.
2.3. It is the case of the petitioner that, in the year 1940-41 or before that, Sir Adamji gifted most of his properties situated in Jetpur town to the said trust. That as per the inquiry carried out by the Collector and / or Deputy Custodian of Evacuee Property, Madhya Saurashtra, Rajkot, the land in question is also gifted to the trust in the year 1941 and possession and management of the same is also handed over to the trust in the year 1941 itself. Sir Adamji was having business spread over in the entire India at that point of time, i.e. before partition. That Sir Adamji Haji Page 4 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined Daud, resident of Town-Jetpur immediately after partition i.e. after 1947 left for Pakistan and became evacuee as defined under Section 2 of the Ordinance VIII of 1948 promulgated by the then Saurashtra Government for administration of Evacuee Properties and all his properties left by him became evacuee properties, vested in Custodian under Section 5 of the said Ordinance.
2.4. Since the year 1940-41, the petitioner trust is in possession, occupation and management of the land in question and running schools and hospital on the said land. That in the year 1950, the EP Act came into force and thereby properties of all the persons who are evacuee were acquired and put under the custody of the concerned authority i.e. custodian. A particular inquiry and notification as provided in the Administration of Evacuee Property Act, 1950 (hereinafter referred to as 'EP Act' for short) is to be followed. That by way of notification / order dated 08.06.1953, the then Collector and Dy. Custodian of Evacuee Property, Madhya Saurashtra, Rajkot passed an order in Page 5 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined respect of properties of Sir Adamji, declaring him as evacuee, wherein, all the properties except the properties under the management of Sir Adamji Haji Daud School and Sir Adamji Haji Daud Hospital at Jetpur were declared as evacuee properties. The said Notification is duly produced at Annexure-C. 2.5. Though inquiry was also carried-out by the then Collector and Dy. Custodian under the EP Act in respect of the property in question to the effect that whether the said property is validly gifted to the petitioner trust and the same is an evacuee property or not, the report / order dated 05.05.1957 was treated as confidential report, which came to be supplied to the petitioner herein on the request made to the respondent no.2. The property in question is under the control, management and possession of the petitioner trust and the same is 'non-evacuee properties'. The said confidential report/order dated 05.05.1957 is duly produced at Annexure-D. 2.6. In the meanwhile, the petitioner trust came to be Page 6 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined registered under the Bombay Public Trust Act, 1950. However, subsequently, the respondent no.3 by an order dated 09.10.1970 held that the said property as of the ownership of the State, against which Revision Application under Section 211 of the Bombay Land Revenue Code was preferred before the Collector. That the Collector by judgment and order dated 09.10.1978 in Revision Application No. 83 of 1978 set aside the order of the respondent no.3 remanding the matter. The respondent no.3 again by order dated 12.08.1981 held that the land in question was of the ownership of the State, while the remaining land was of private ownership of the trust. That an appeal against the said order came to be dismissed by the Deputy Collector vide order dated 07.12.1981. The petitioner herein therefore preferred an Appeal before the Collector being Appeal No. 26 of 1982, which came to be dismissed by judgment and order dated 30.08.1982.
2.7. Being aggrieved by the said order dated 30.08.1982, the petitioner preferred Appeal bearing No. Page 7 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined TEN.A.R./103/1982 before the Gujarat Revenue Tribunal. The Gujarat Revenue Tribunal by its order dated 13.11.1984 was pleased to quash and set aside the order passed by the respondent no.2 holding that the same is without jurisdiction. The said order is duly produced at Annexure-E. 2.8. it is also pertinent to note that, despite the pendency of the above proceedings before the Gujarat Revenue Tribunal, the respondent no.2 passed the impugned order dated 14.07.1983 holding that the property in question is evacuee property and the same is required to be taken into custody and possession of the Custodian as per the provisions of the Evacuee Property Act in force at that point of time. 2.9. Being aggrieved by the aforesaid order dated 14.07.1983, the petitioner herein preferred an Appeal / Revision before the Custodian General and Deputy Secretary- the authority constituted constituted under the EP Act as per Section 24/27, in which interim relief came to be granted by the Competent Authority in favour of the petitioner directing the parties to maintain status-quo by order dated 07.02.1984. Page 8 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023
NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined 2.10. Pending the said appeal, on the basis of the inquiry report that the property in question belongs to the petitioner trust since the year 1940-41. In view of this Act, EP Act itself is not applicable to the property in question. Further, as per the Notification dated 08.06.1953, the Deputy Custodian of evacuee property, constituted under the EP Act and by the said Notification it has been held that the properties under the management of the petitioner trust i.e. hospital and school are to be excluded from the evacuee properties of Sir Adamji - the declared evacuee. 2.11. In spite of the aforesaid notification issued by the Deputy Custodian dated 08.06.1953, the respondent no.3 entered the name of the Government in the revenue record in respect of the properties in question and proceeded further as if the land was acquired by the Government. The said change of entry mutated in the revenue records and notice under Section 135-D of the Bombay Land Revenue Code came to be issued to the petitioner on 04.08.2005. The petitioner filed appropriate proceedings against the same and the same are Page 9 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined pending before the competent authority. 2.12. The Acts in respect of evacuee persons and displaced persons came to be repealed by way of notification of the Central Government published in government gazette dated 05.09.2005. That as per the said Notification, the EP Act is also repealed. Upon inquiry by the respondent no.1 - State, the Central Government has issued one letter dated 18.11.2005, wherein, it is stated that 'as observed from the repealed Act, 2005, there is no saving clause in the repealing Act which would validate the action taken before coming into force of the Act. The statutory authorities appointed are required to exercise the powers or take action as mentioned in the repealed Act. Hence, in view of the repeal of these Acts, no action can be taken or any authority exercised under the repealed Act by these notified authorities. In the circumstances, the notified authorities shall be deemed to be discontinued...', the said notification dated 05.09.2005 and letter dated 18.11.2015 are duly produced at Annexure-H and I respectively.
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NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined 2.13. Being aggrieved and dissatisfied, In the aforesaid set of facts, the petitioner herein has approached this Court seeking the following reliefs:
"(A) YOUR LORDSHIPS be pleased to issue a writ mandamus, or any other appropriate writ, order or direction, directing the respondents not to take any action in any manner in pursuance to the an impugned order dtd.
14.07.1983 passed by respondent no.2 purportedly under the EP Act and to treat the same as non-existent as the EP Act is repealed, in the interest of justice;
OR IN THE ALTERNATIVE (AA) YOUR LORDSHIPS be pleased to issue a writ of mandamus, or any other appropriate writ, order or direction, quashing and setting aside the impugned order dtd. 14.07.1983 passed by the respondent no.2 purportedly under the EP Act at the concerned point of time and all subsequent action taken/ purported to be taken in pursuance thereto, in the interest of justice;
IN THE ALTERNATIVE (AAA)YOUR LORDSHIPS be pleased to issue a writ of mandamus, or any other appropriate writ, order or direction, directing the respondent no. 1 to hear the Evacuee Appeal / revision filed u/s. 24/27 of the EP Act by constituting proper authority and till then no steps may be taken in pursuance to the impugned order, in the interest of justice; (B) YOUR LORDSHIPS be pleased to direct the respondents not to take possession of the property in question or take any coercive steps against the property in question in pursuance to the impugned order dtd. 14.07.1983 passed by the respondent no.2, pending the admission, hearing and final disposal of this petition, in the interest of justice; (C) YOUR LORDSHIPS be pleased to grant such other and further reliefs, as may be deemed fit by this Hon'ble Court, in the interest of justice."
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NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined SUBMISSIONS ON BEHALF OF THE PETITIONER :
3. Heard Mr. A.S. Asthavadi, learned advocate appearing for the petitioner.
3.1. Mr. A.S. Asthavadi, learned advocate appearing for the petitioner submitted that the impugned action of the respondent no.2 in enforcing the impugned order dated 14.07.1983 or to take any action, pursuant to the EP Act, which is now repealed, is per-se ultra-vires. It was submitted that as per the notification issued by the then Competent Authority i.e. Deputy Custodian of Evacuee Property on 08.06.1953, that Sir Adamji Daud being declared as evacuee, all his properties were declared as evacuee properties except the properties under the management of Sir Adamji Haji Daud School and Adamji Haji Daud Hospital at Jetpur.
3.2. It was also submitted that the said notification came to be declared by the office of the Deputy Custodian of Evacuee Property on 24.06.1963. The Act came to be Page 12 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined repealed in the year 1950. No property be declared as evacuee property on or after 07.05.1954. Placing reliance on Section 7(a), it was submitted that no action could be taken against the petitioner herein in view of the bar of Section 7(a), more particularly, the declaration having been made by way of notification dated 08.06.1953 and declaration dated 24.06.1963, it was submitted that any action subsequent thereto would be non-est in eye of law.
3.3. It was submitted that the action of the respondent authority initiating the proceeding against the petitioner herein by initiating inquiry in the year 1973 and proceedings to pass an order on the ground that the subject property is an evacuee property, is not sustainable and that the said order dated 14.07.1983 is required to be quashed and set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT - STATE :
4. Heard Mr. K.M. Antani, learned Assistant Government Pleader appearing for the respondent-State.Page 13 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023
NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined 4.1. Mr. K.M. Antani, learned Assistant Government Pleader appearing for the respondent-State submitted that property in question belongs to trust property. After death of Sir Adamji, the legal heirs of Adamji came to be inculcated as trustees of the said trust. It was submitted that the legal heirs of Sir Adamji Trust also declared themselves as evacuee and in view thereof the legal heirs being the trustees having declared as evacuee, the property are evacuee properties and no right accrues in favour of the petitioner herein. 4.2. Placing reliance on the aforesaid submissions, Mr. Antani, learned AGP submitted that the proceedings are continuous proceedings. It was submitted that after the declaration dated 08.05.1953, the respondent authorities continued the proceedings by a communication from the office of the Assistant Custodian, Madhya Saurashtra, Jetpur that the possession of Haji Daud Hospital and Sir Adamji Muslim High School including furniture, fixture, equipment, etc., be handed over to the respondent authority under the provisions of the Administration of Evacuee Property Act. Page 14 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023
NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined 4.3. Mr. K.M. Antani, learned Assistant Government Pleader appearing for the respondent - State placed reliance on the communication dated 19.06.1956 and submitted that all properties of Sir Adamji Haji Daud have been declared as evacuee properties by the office, by declaration dated 24.06.1953 and have signed below the order on behalf of late Shri Adamji. Further all the three sons of late Shri Adamji have also separately declared evacuee, and their properties as evacuee properties. The ward property include any property of any evacuee whether held by him as owner or as a trustee and includes properties of any type i.e. right and interest of any such properties. The heirs of late Sir Adamji, i.e. (I) Vahad, (II) Gulammahommad and (III) Jafariya, are the trustees of the society, and therefore, their rights and interest to manage the properties as trustees of the society vested in the custodian.
4.4. Placing reliance on the aforesaid order, it was submitted that by a communication dated 31.08.1956, the Secretary of the Trust was directed to surrender the Page 15 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined possession of the Haji Daud Hospital and Sir Aadamjee Muslim High School including all furniture, fittings, equipment, etc. under the provision of the Administration of Evacuee Property Act.
4.5. Placing reliance on the aforesaid, it was submitted that the proceedings were continuing as on 1956 and in view thereof, the bar of Section 7-A of the EP Act, would not be applicable in the facts of the present case. Mr. Antani, learned AGP relied on the common oral judgment dated 27.02.2020 passed by this Court in Special Civil Application No. 12847 of 2019 and Special Civil Application No. 16510 of 2019 and placed reliance on Para-50 and 51 and submitted that interference by the writ Court for infraction of any statutory provisions or norms, if such infraction has not resulted in injustice, is not a matter of course. Mr. Antani, learned AGP further submitted that, in view of the aforesaid submissions, the present petition be dismissed. ANALYSIS :
5. Having heard the learned advocates appearing for Page 16 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined the respective parties, the following is germane for consideration of this Court:
(a) Sir Aadamji Haji Daud came to be declared as evacuee and his properties as evacuee properties and the possession of which was taken over immediately, except the properties under the management of Sir Adamji Haji Daud High School and Sir Adamji Haji Daud Hospital at Jetpur by an order dated 08.06.1953. The said order assumes the force of declaration on 24.06.1953, wherein, the Collector's order No. CMS/EVC/715 dated 08.06.1953, the properties of Sir Adamji Haji Daud, Jetpur came to be declared as evacuee properties in terms of the order dated 08.06.1953. The movable of the said properties were directed to be disposed of by the public auction that may be held by the Deputy Collector, Jetpur.
(b) The respondent authority by communication dated 21.05.1956 directed the Assistant Custodian, Madhya Saurashtra, Jetpur, pursuant to the declaration dated 24.06.1953 to hand over the possession of all the properties Page 17 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined of Sir Adamji Haji Daud, having been declared as evacuee properties. The heirs of late Sir Adamji, i.e. (I) Vahad, (II) Gulammahommad and (III) Jafariya, who were the trustees of the said society have also been declared as evacuee, the remaining properties were also ordered to be taken possession of by the Assistant Custodian to the Secretary, in view of the fact that the heirs of Sir Adamji were also declared as evacuee.
(c) By communication dated 31.08.1956, it was directed to surrender the possession of Haji Daud Hospital and Sir Adamji Muslim High School including all furniture, fittings, equipment, etc. under the provisions of the administration of EP Act.
(d) The Secretary of Sir Adamji Haji Daud Educational and Medical Society, viz. Ahmed Abdul Sattar Tai challenged the order passed by the Assistant Custodian, Jetpur dated 19.06.1956 before the Additional Custodian, Evacuee Property, Rajkot, which came to be disposed of vide order dated 16.01.1957, in view of the fact that the trustees had Page 18 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined preferred statutory appeal challenging the said order passed by the Assistant Custodian.
(e) The appeal which was filed by the Secretary of the Trust under Section 24/27 of the administration of EP Act, 1950 before the Deputy Custodian General of Evacuee Property, New Delhi, came to be allowed by order dated 31.01.1958.
(f) It appears from the record that on 24.03.1958, the possession of Sir Admji Haji Daud Hospital at Jetpur was handed over to the Trust by the Assistant Custodian Jetpur.
(g) The respondent authorities initiated the inquiry in the year 1970. That vide order dated 09.05.1970, the respondent no.3 held the said properties are the ownership of the State, against which, an application under Section 211 of the Bombay Land Revenue Code was preferred before the Collector. On 09.07.1978, the Collector in Revision Application No. 83 of 1978 set aside the order passed by the respondent no.3 and remanded the matter back. On 12.08.1981, the respondent no.3 again held that the land in Page 19 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined question to the extent of 9323 sq.meters was of the ownership of the State, i.e. evacuee property, while the remaining land was of the private ownership of the Trust.
(h) On 07.12.1981, against the order dated 12.08.1981, appeal was preferred, which came to be dismissed by the Deputy Collector. On 30.08.1982, the petitioner preferred appeal before the Collector being Appeal No. 26 of 1982, which came to be dismissed.
(i) On 14.07.1983, pending the said proceedings before the Tribunal, the respondent no.2 passed the impugned order holding that the properties in question are evacuee properties, and therefore, the same are required to be taken in custody and possession of the custodian as per the provisions of the EP Act in force, at the relevant point of time.
(j) On 03.11.1984, the petitioner preferred Appeal bearing No. 103 of 1982 before the Gujarat Revenue Tribunal, whereby, the Gujarat Revenue Tribunal quashed and Page 20 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined set aside the order passed by the respondent no.2, the same being without jurisdiction.
(k) Being aggrieved by the aforesaid order dated 14.07.1983, the petitioner herein preferred Appeal/ Revision before the Custodian General and Deputy Secretary, authority constituted under Section 24/27 of the EP Act. On 07.02.1984, the interim relief came to be granted by the custodian general.
(l) Pending the said proceedings, the respondent no.3 entered the name of the Government in the revenue record in respect of the property in question and proceeded as if the land was acquired by the Government and for the said change of entry in the revenue record, Notice under Section 135 of the BLRC came to be issued to the petitioner on 04.08.2005.
(m) The petitioner herein filed appropriate proceedings against the same and the said are pending before the competent authority.
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(n) That all the acts in respect of evacuee persons and displaced persons came to be repealed by way of notification of the Central Government published in Government Gazette dated 05.09.2005. The said Notification dated 05.09.2005 reads thus:
"EXTRAORDINARY PART-II - Scheme-I PUBLISHED BY AUTHORITY.
MINISTRY OF LAW AND JUSTICE (Legislative Department) New Delhi, the 6 th September, 2005.
The following Act of Parliament received the assent of the President on 5 th September, 2005 and is hereby published for general information :
THE DISPLACED PERSONS CLAIMS AND OTHER LAWS REPEAL ACT 2005 No.33 OF 2005.
(5th September, 2005) An Act to repeal the Displaced Persons (Claims) Act, 1950 and certain others eachment.
It is cancelled by Parliament by the dailys all Year on the Republic at India or to thems.
1. The Act may be called the Displaced Persons Claims and other Laws Repeal Act, 2005.
2. The enactments specilied in any Schedule are hereby expleaded.
THE GAZETTEE OF INDIA EXTRAORDINARY THE SCHEDULE (See Section 2) RETAIL ON IMCUMBMENTS Sr. Name of the Act Year Act No. No. Page 22 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined 1 The Administration of 1950 31 Evacuee Property Act.
2 The Displaced 1950 41 Persons(Claims) Act.
3 The Evacuee antered 1951 61(Separation) Act.
4 The Displaced Persons 1954 62(Claims Supplementary Act.
5 The Displaced Person 1951 41
(Compensation and
Retabilitation) Act.
Sd/ - T.K.V ISWANATHAN.
Secretary to the Govt.
(o) As per the said Notification, the EP Act also came
to be repealed. Further, upon inquiry by the respondent no.1- State, the Central Government issued a further communication dated 18.11.2005, wherein it observed thus:
"...As observed from the Repealed Act, 2005, there is no saving clause in the Repealing Act which would validate the actions taken before coming into force of the Act. The statutory authorities appointed are required to exercise their powers or take actions as mentioned in the Repealed Act. Hence in view thereof, after the repeal of these acts no action can be taken or any authority exercised under the repealed act by the these notified authorities. In the circumstances the notified authorities shall be deemed to be discontinued...."
(p) The appeal under the EP Act was pending before Page 23 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined the competent authority since 1983. On 16.01.2007, the petitioner received a letter from the respondent no.1, wherein, it is stated that, EP Act and other Acts related thereto are repealed, nothing further is required to be done in pursuant to the said appeal dated 03.08.1983 relating to land admeasuring 6636 sq.mters. However, in the proceedings before the respondent no.3, the authority is continuously following the impugned order passed by the respondent no.2, which is passed under the EP Act and was under challenge before the concerned authority.
6. The facts which emerge are that Sir Adamji Haji Daud was declared as evacuee and his properties as evacuee properties except the properties under the management of Sir Adamji Haji Daud High School and Sir Adamji Haji Daud Hospital at Jetpur by order dated 08.06.1953, which was followed by declaration dated 24.06.1953. In the opinion of this Court, once there was a declaration with respect to the properties in question that Sir Adamji Haji Daud High School and Sir Adamji Haji Daud Hospital were not included as Page 24 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined evacuee properties, Section 7-A of the EP Act comes into play. Section 7-A of the EP Act, clearly stipulates that no property shall be declared as an evacuee property on or after 07.05.1954.
7.1. At this stage, it is apposite to refer to Section 2(f), which reads thus:
"(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 14 th day 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 15 th day of August, 1947, in any place now forming part of Pakistan and continues to be so situated after the said date."
7.2. Section 7 of the EP Act, reads thus:
"7. Notification of evacuee property.-
(1) Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property.
[(1A) Where during the pendency of any proceeding under sub-section (1) for declaring any property to be evacuee Page 25 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined property any person interested in the property dies, the proceedings shall, unless the Custodian otherwise directs, be continued and disposed of as if such person were alive.] (2) Where a notice has been issued under sub-section (1) in respect of any property, such property shall, pending the determination of the question whether it is evacuee property or otherwise, be incapable of being transferred or charged in any way, except with the leave of the Custodian, and no person shall be capable of taking any benefit from such transfer or charge except with such leave. (3) The Custodian shall, from time to time, notify, either by publication in the Official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under sub-section (1). 7A. Property not to be declared evacuee property on or after 7 th May, 1954. - Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7 th day of May, 1954:
Provided that nothing contained in this section shall apply to-
(a) any property in respect of which proceedings are pending on the 7 th day of May, 1954 for declaring such property to be evacuee property; and
(b) the property of any 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 1 st day of March, 1947, any place now forming part of India, and who on the 7 th day of May, 1954, was resident in Pakistan:
Provided further that no notice under section 7 for declaring any property to be evacuee property with reference to clause
(b) of the preceding proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954 (42 of 1954)."
8. This Court while issuing Rule on 11.05.2007, granted interim relief in terms of Para-8 (B). Further, status- Page 26 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023
NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined quo also came to be granted in the appeal proceedings being Appeal/ Revision No. 24/27 of EP Act before the Custodian General, in which the impugned order has also been stayed and the said relief is in operation till date.
9. In the facts of the present case, admittedly, the subject properties were not included as evacuee properties as per the declaration dated 08.06.1953 (Pg.62) and further declaration dated 24.06.1953 (Pg.63) duly issued by the Collector & Deputy Custodian of Evacauee Property, Madhya Saurashtra, Dist.: Rajkot and Assistant Custodian, Madhya Saurashtra, Jetpur respectively, which reads thus. 9.1. The declaration dated 08.06.1953:
"Office of the Collector or Deputy Custodian of Evacuee Property, Madhya Saurashtra District, RaJkot, dated the 8 th June, 1953.
To The Assistant Custodian, of Evacuee Property, Madhya Saurashtra District, Rajkot.
Subject:- Declaration of Sir Adamji Haji Daud as an Evacuee.
Reference your No. AC/JTP/297/1953 dated the 16-2-1953 on Page 27 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined the subject noted above.
As Sir Adamji Haji Doud is a declared evacuee and his properties as evacuee properties, you are requested to take over immediately actual possession of all the properties except properties under the management of Sir Adamji Haji Daud High School and the Adamji Haji Daud Hospital at Jetpur and regularise all recoveries and arrears of rent etc. and report compliance.
Movables of the above evacuee may be disposed off as usual by the public Auction to be held in the presence of the Deputy Collector, Jetpur.
Papers of the case are returned herewith. Sd/- N.D. Buch Collector & Deputy Custodian of Evacuee Property, Madhya Saurashtra, Dist.: Rajkot.
Copy with compliments to:
The Secretary to the Government, Rehabilitation Department, Government of Saurashtra.
The Deputy Collector, Jetpur Division, Jetpur. Received application on 29-6-53.
Prepared true copy on 9-7-53 Delivered true copy on 9-7-53 9.2. Declaration dated 24.06.1953 reads thus:
"No. AC/JTP/CASE No.119 Office of the Assistant Custodian of the Evacuee Property, Madhya Saurashtra, Jetpur, dated 24 th June, 1953 DECLARATION Property of Sir Adamji Haji Dawood of Jetpur The Marginally noted properties are declared to be an evacuee properties.
vide Collector's order No. Cms/Evc/715 dated 8-6-1953 Page 28 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined Sd. C.N. Shekh Assistant Custodian Madhya Saurashtra, Jetpur.
Locality:
Oppose Kot's tree, Fulwadi, Bumbia Seri and other localities."
10. The Assistant Custodian of Evacuee Properties on 19.06.1956 informed the petitioner that all the properties of Sir Adamji, having declared evacuee properties by declaration dated 19.06.1953. By communication dated 31.08.1956 (Pg-
65), the Assistant Custodian directed the petitioner Trust to surrender the possession of Haji Daud Hospital and Sir Adamji Muslim High School including all furniture, fittings, equipment, etc. under the provisions of the Administration of Evacuee Property Act. The petitioner filed appeal against the said communication / order dated 19.06.1953 before the Deputy Custodian of Evacuee Properties, it was held to be not maintainable, by order dated 16.01.1957 (Pg.66). On an opinion sought for by the Additional Custodian of Evacuee Property, it was opined that there was sufficient evidence to hold that Sir Adamji Haji Daud made a gift deed of the property of the above institution in favour of the society and Page 29 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined had parted with the possession and proceeded to opine that the properties of institution should not be treated as evacuee properties, by communication dated 05.05.1957 and the file came to be returned with the aforesaid opinion. It is apposite to refer to the relevant part, which reads thus:
"...I consider these to be sufficient evidence to hold that Sir Adamji Haji Daud made a gift deed of the properties of the above institution in favour of the society and had parted with the possession.
In 1941 Hindu Law was applicable to the Mohmedans of Jetpur but even under Hindu Law a gift deed did not required to be in writing but it was not valid unless it was accompanied with delivery of possession of the subject of the gift from the doner to the donee. There being sufficient reasons to believe that the delivery o the possession was made, the gift can be said to be valid. I am accordingly of the opinion that the properties of Institution should not be treated as evacuee property. Sd/- H.H. Trivedi Collector & Dy Custodian of Evacuee Property, Madhya Saurashtra, Rajkot.
CONFIDENTIAL No.CMS/EVC/218/1957 Office of the Collector and Deputy Custodian of Evacuee Property Madhya Saurashtra District, Rajkot, Dt: 5th May 1957.
To The Additional Custodian of Evacuee Property, Rajkot.
Subs HAJI DAUD HOSPITAL AND SCHOOL AT JETPUR. Sir, With reference to your letter No.EP/2-155 dated 30-11-1956, Page 30 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined I am to return herewith the case files received with your letter noted above along with my confidential notes on the subject.
Yours faithfully."
11. The Minister for Rehabilitation & Minority Affairs, Government of India by communication dated 13.12.1957 on receipt of the representation by the petitioner trust with respect of the letter dated 05.11.1957, on examining held the action of the Assistant Custodian in sealing the hospital was not proper, for the reason that the property could not be declared as evacuee properties in respect of which, cause of action arose after 07.05.1954 and the properties involved is a trust property. The Custodian General of the Evacuee Property was requested to release the said properties. The relevant part of the said communication reads thus:
"3. On a representation received from the Resident Secretary of the Society, the case was examined in the Ministry. It was felt that action of the Assistant Custodian in sealing the hospital was not proper, firstly for the reason that no property could be declared as evacuee property in respect of which cause of action arose after the 7 th May 1954, and, secondly, because the property involved in this case is a trust property. The Custodian General of Evacuee Property has, in the circumstances, been requested to release the property. I understand that he is taking necessary action in the matter. The Municipality will have, therefore, to deal direct with the society."Page 31 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023
NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined
12. The appeal challenging the communication / order passed by the Assistant Custodian dated 24.06.1953 declaring the properties in question of the petitioner Trust as evacuee properties, under Section 24 /27 of the EP Act came to be allowed by the Deputy Custodian of Evacuee Properties, by order dated 31.01.1958, which reads thus:
"Order:
This is an appeal by Ahmed Abdul Sattar Tai, Secretary, Sir Adamji Haji Dawood Educational & Medical Society under Section 24 of the administration of Evacuee Property Act, 1950. The appeal has been confined at the hearing to only one Institution viz Haji Dawood Hospital, Jetpur (Saurashtra). It appears from the record that the property of Sir Adamji Hahi Dawood of Jetpur was declared as evacuee property by Assistant Custodian, Madhya Saurashtra Jetpur on 24 th June 1953. The order of that date refers to the Collector order No.CMS/EVC/715, dated 8-6-53. The Collector's order, however directs taking over possession of all the properties of the evacuee excepting properties under the management of Sir Adamji Haji Dawood High School and the Adamji Haji Dawood Hospital at Jetpur. It would thus appear that these two properties were not declared as evacuee properties. Moreover, the Hospital is in the possession of and is being run by a society Registered under the Societies Registration Act, 1860 in 1940-41 and even if a few of its Members of the Managing Committee are evacuees, the remedy would have to be sought with in the four-courner of that Act.
The fact, however, remains that the Hospital had ceased to be the personal property of Haji Dawood, oven though it may have been financed by him and that it was not and could not he declared, as evacuee property. The order directing the taking over its possession as evacuee property was not based on a correct application of the legal position and cannot be sustained.
The appeal is accordingly accepted and the property known as Haji Dawood Hospital, Jetpur is released as non evacuee Page 32 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined property.
Announced. Inform appellant
Camp Lucknow
31-1-1950. Sd/-(M.L. Vijh)
Deputy Custodian General of E.P
India."
13. Once the possession of the hospital was handed over to the trust, as per the communication dated 24.03.1958, the said proceedings attained finality. Considering the contention raised by Mr. Antani, learned AGP appearing for the respondent-State that Custodian General noted that the trust properties were managed by trustees/ members of the management committee, who were evacuees. In the said context, the declaration dated 21.05.1956, was just and proper to cure the illegality, where the hospital property though held by trustees, who were evacuees was exempted from being declared as evacuee properties and further order dated 14.07.1983 came to be passed, which was just and proper. Testing the dispute from the point of view of the submissions made by Mr. Antani, learned AGP even if the legal heirs of Sir Adamji were declared to be evacuee and once they were declared to be evacuee, considering the Page 33 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined definition 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), includes any property which has been obtained by any person from an evacuee after the 14 th day August, 1947, by any mode of transfer which is not effective by reason of the provisions contained in section 40. Further, the Trust was registered as a Society in the year 1940-41 under the provision of the Societies Act, 1860 with the concerned Registrar at Calcutta. In the year 1940-41 or before that, Sir Adamji gifted most of his properties situated at Jetpur town to the said Trust. As per the inquiry carried-out by the Collector and / or Deputy Custodian of Evacuee Property, Madhya Saurashtra, Rajkot, the land in question was also gifted to the Trust in the year 1941 and possession and management of the same were also handed over to the Trust in the year 1941 itself. All the personal properties of Sir Adamji Haji are vested with the custodian, which are not in dispute. The aforesaid properties came to be gifted by Sir Adamji Haji Daud to the Society and parted with the Page 34 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined possession, which is held to be a valid gift by the opinion dated 05.05.1957 by the Collector and Deputy Custodian of Evacuee Property, Madhya Saurashtra, Rajkot, which is duly produced on record.
14. In the opinion of this Court, once there was a declaration, wherein, the aforesaid properties were not included as evacuee properties and the said declaration was prior to the year 1954, the properties in question cannot be considered as evacuee properties. In view thereof, the said contention raised by Mr. Antani, learned AGP does not appeal to this Court. The facts of the present case are also governed by the bar of Section 7-A of the EP Act, which provides that, no property shall be declared to be evacuee property on or after 07.05.1954.
15. At this stage, it is apposite to refer to the ratio as laid down by this Court in Special Civil Application No. 2834 of 2001 vide oral judgment dated 19.08.2023 in the case of Patani Haji Mohammad Malam v/s. State of Gujarat, relevant Para-7 to 10 reads thus:Page 35 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023
NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined "7. Having heard learned counsel for the respective parties, it appears that the impugned order passed by the authorities below has been assailed mainly on the two grounds (i) that the order passed by the respondent-
Collector is without jurisdiction and (ii) that the order is illegal in view of the provisions of Section 7 of the Evacuee Property Act. While we go into the aspect of the jurisdiction one thing which is not in dispute is that the respondent-Collector is designated as Assistant Settlement Commissioner under the provisions of the Evacuee Property Act and in the instant case the respondent-Collector has sought to exercise powers under the provisions of the Evacuee Property Act. It is required to be noted that when the Collector acts as Assistant Settlement Commissioner under the provisions of Evacuee Properties Act, he is not authorized or empowered to initiate any proceedings under the Bombay Land Revenue Code or the Rules framed thereunder. In the present case, indisputably, the Collector has purportedly exercised the powers under the provisions of the Bombay Land Revenue Code though he was acting as a custodian under the provisions of the Evacuee Properties Act. In my opinion when the Collector has been designated to act as the Settlement Commissioner under the provisions of the Evacuee Property Act, he ought not to have exercised the powers under the Bombay Land Revenue Code framed thereunder. In the present case being done, it has to be said that the order passed by the Collector cancelling the Revenue Entry made in favour of the petitioner in purported exercise of powers under the Bombay Land Revenue Code is illegal and bad in law and therefore the same deserves to be quashed and set aside.
8. In so far as the next aspect is concerned, it is by now well settled law that if the custodian has not initiated any proceeding under section 7 of the Evacuee Properties Act to declare the land in question as "Evacuee Property act"
before 7 th May, 1954 and that no such proceedings were pending as on 7 th May, 1954, under such circumstances, the land could not be declared as "Evacuee Properties"
under the Evacuee Properties Act. Section 7-A of the Evacuee Property Act terminates the power of the custodian (Collector) to exercise such power in the present Page 36 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined case. It appears that the owner of the land i.e. Husenbhai Siddibhai had migrated to Pakistan and ¼ of his land share proposed to be declared as "Evacuee Property". However, I find that there is nothing on record to show that any proceeding under section 7 of the Evacuee Property Act was initiated in respect of the said land before 07 th May, 1954 or that any such proceeding was pending before the said date.
9. Under such circumstances, the respondent- Authority could not have exercised the powers under the provisions of the Evacuee Property Act for declaring the property as "Evacuee Property". This being contrary to the provisions of the Evacuee Property Act, the impugned order deserves to be quashed and set aside on such ground.
10. In view of the above, the present petition deserves to be allowed and the same is accordingly allowed. The impugned order dated 09.01.2001 passed by the Joint Secretary (Appeals) Revenue Department, Ahmedabad and also order dated 31.07.1996, passed by the respondent No.2 are quashed and set aside. Subsequent proceeding of issuance of Notice dated 24.11.1995 is also quashed and set aside. Rule is made absolute."
16. In the facts of the present case, those properties which were held to be evacuee properties, are in possession of the State, even if the legal heirs were declared as evacuees, the properties were an exception as declaration was of the year 1953, and therefore, the same principle would apply and in view thereof, the bar under Section 7(A) of the EP Act would come into play. The proceedings in question Page 37 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined came to be initiated by the respondent authority on 21.05.1956, which in the opinion of this Court, cannot be said to be continuation of the declaration of the year 1953, considering the fact that the order passed on 21.05.1956 also attained finality in appeal by the Trust, which came to be allowed in the year 1958 and in view thereof, the bar of Section 7(A) of the EP Act comes into play i.e. after the declaration in the year 1953. Even going further with regard to the submissions made by the learned AGP, even after 1953, the said properties came to be accepted, as exception to the evacuee properties by the order passed by the Deputy Custodian in Appeal under Section 24 of the Act, which is the statutory appeal provided under the Act, as referred above and the possession was also handed over to the trust. In view thereof the order impugned dated 14.07.1983 passed by the respondent no.2 is required to be quashed and set aside and the same is quashed and set aside. Once the properties having been declared by orders dated 08.06.1953, 24.06.1953 and 31.01.1958, wherein, it is stated that, the Hospital had ceased to be the personal property of Haji Page 38 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined Daud, even though, it may have been financed by him and that it was not and could not be declared as evacuee property. The impugned order dated 14.07.1983 directing the taking over its possession as evacuee property was not based on a correct application of the legal position and cannot be sustained and the same is rqeuired to be quashed and set aside. The appeal is accepted and the property known as Haji Daud Hospital, Jetpur is released as non-evacuee property. The order impugned is quashed and set aside, in view of the order dated 31.01.1958, wherein, the said order has attained finality with respect to Haji Daud Hospital and the possession was also directed to be handed over to Shri Ahmed Haji Tai, Secretary, Sir Adamji Hadji Daud Hospital.
17. At this stage, it is apposite to refer to the ratio as laid down in the case of Whirlpool Corporation V/s. Registrar of Trade Mark, Mumbai reported in (1998) 8 SCC 1 , Para-15 reads thus:
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that Page 39 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."
18. At this stage, it is apposite to refer to the ratio as laid down in the case of Magadh Sugar & Energy Limited V/s. State of Bihar & Ors. reported in 2021 SCC OnLine 801, Para-25 reads thus:
"25. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai and Harbanslal Sahni v. Indian Oil Corporation Ltd. Recently, in Radha Krishan Industries v. State of Himachal Pradesh a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is Page 40 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where
(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;
(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
19. Considering the ratio as laid down by the Hon'ble Apex Court, in the opinion of this Court, after the declaration with respect to the subject properties as 'non- evacuee properties' as on 24.06.1953, the initiation of action by the respondent authority in 1956 is held to be excess of jurisdiction, which resultantly, calls for invoking the powers under Article-226 of the Constitution of India. An alternative remedy itself does not divest this Court to exercise the Page 41 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023 NEUTRAL CITATION C/SCA/10742/2007 JUDGMENT DATED: 21/09/2023 undefined powers under Article-226 of the Constitution of India, considering the undisputed facts, emerging for the consideration of the dispute in question.
20. For the foregoing reasons, exercising extraordinary jurisdiction under Article-226 of the Constitution of India, the impugned order dated 14.07.1983 passed by the respondent No.2 - Collector (the then Collector & Deputy Custodian of Evacuee Property & Settlement Commissioner, office of the Collectorate, Rajkot) is quashed and set aside. The petition stands allowed. Rule is made absolute.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 42 of 42 Downloaded on : Fri Sep 22 20:45:43 IST 2023