Patna High Court
Fazlur Rahman And Ors. vs Managing Officer, Bihar Secretariat ... on 13 September, 1968
Equivalent citations: 1969(17)BLJR828
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT
N.L. Untwalia and S. Wasiuddin, JJ.
1. There is a property bearing plot No. 486, sheet No. 122 holding No. 70, circle No. 53, Ward No. 15 in Mohalla Dargah Shah Arzani, Police Station Sultanganj, in the town of Patna. According to the petitioners case, this property belonged to Dr. Abdur Rahman, Dr. Rahman transferred this property to his wife, Bibi Rahmat. She died in the year 1940. On her death, petitioners 1 to 6, who are the sons and daughters of Dr. Rahman and Bibi Rahrnat, inherited this property. They transferred it to petitioner No. 7 by a registered sale deed; executed on the 9-th of April, 1966.
2. The petitioners got a notice dated the 27th/28th of October, 1968, under Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1964 (Act 44 of 1954), hereinafter for the sake of brevity referred to as the Displaced Persons Act, 1954. The notice, a copy of which is Annexure 'A' to the writ application said:
Whereas Professor Abdul Ahad son of late Dr. A, Rahman of Mohalla Dargah migrated to Pakistan and whereas his property bearing plot No. 485, Sheet No. 122, H. No. 70 Circle No. ,53 Ward No. 15 in Mohalla Dargah Shah Arzni P.S. Sultanganj.. Patna-6 vested in the Central Government under Section 12 of D. P. (C & R). Act, 1954.
And whereas the said property is in unauthorised occupation of 1. Sri Fazlur Rahman, 2. Khalilur Rahman 3. Azizur Rahman, 4. Ahmadi Bibi, 5. Ashgari Begam, 6. Afasari Naza and Sri Ata Warish Warsi, I hereby demand that the possession of the said property be surrendered to the undersigned within 15 days of the receipt of this notice failing which they will be evicted from the premises with, such force as may be necessary for the purpose. They are also directed to file show cause by 24/11/1966 as to why damages for use and occupation of the building in question may not be fixed at Rs. 50/- p.m. Under Section 19(2) of the D. P. (C & R) Act, 1954 and recovered from them since 15th August, 1947.
2. Upon receipt of the notice, the petitioners showed cause. They claimed that the property was not of Prof. Abdul Ahad. It was the property of Bibi Rahmat, upon whose death it devolved upon petitioners 1 to 6 as her heirs, and, they came in possession of it until they parted with the property in favour of petitioner No. 7 in the year 1966. Certain documents were relied upon by the petitioners before the Managing Officer-cum-Assistant Custodian of Evacuee Property, Patna, who held the enquiry upon the show cause filed then in response to the notice which was, in effect, a notice under Section 19(2)(b) of the displaced Persons Act, 1954. On a consideration of the materials placed before him, he came to the conclusion that the property had been transferred by Bibi. Rahmat by a registeged sale deed executed in the year 1945, as evidenced by deed No. 6355 dated the 9th November, 1945, mentioned in Volume II at page 45 of the register maintained in the Registration Office. He rejected the contention put forward on behalf of the petitioners that the property was not transferred to Prof. Ahad and that it was inherited by petitioners 1 to 6 in the year 1946 on the death of Bibi Rahmat. While doing so, the Managing Officer said:
It is correct that this transaction could not be acted upon. To me, it appears that due to the migration of Prof. Abdul Ahad to Pakistan in 1947, he could not take any action for mutation of his property in his favour. Naturally when the real owner was in Pakistan and the property remained with heirs of Bibi Rahmat, it devolved upon the objectors in routine course.
Although the language used by the Managing Officer was not very happy, it appears what he meant to say was that the transaction was not acted upon in the sense that the property was not mutated in the name of Prof. Abdul Ahad, because he migrated to Pakistan. The persons, who were left in India, were petitioners 1 to 6, and, in routine course, they came in possession of the property. After the passage which I have quoted above, he has said:
Now, it has been established that it was purchased by Prof. Abdul Ahad under a registered deed. He had migrated to Pakistan. The property has rightly been taken over as evacuee property under Old Bihar Ordinance. The objection filed by Sri Fazlur Rahman and others is therefore rejected.
A copy of the order dated the 16th December, 1966, of the Managing Officer is Annexure 'B' to this writ application. Against this order, the petitioners filed an appeal under Section 22 of the Displaced Persons Act, 1954 as also a revision under Section 27 of the Administration of Evacuee Property Act, 1950 (Act 31 of 1950), for the sake of brevity hereinafter 'the Evacuee Property Act, 1950. Both the appeal and the revision were dismissed by the Assistant Settlement Commissioner, Lucknow, by his order dated the 10th April, 1967. The Assistant Settlement Commissioner acting as Assistant Custodian General held in the revision that the property was an evacuee property and, consequently, treating the appeal as an appeal from an order under Section 19 of the Displaced Persons Act, 1954 directing them to be evicted from the property, dismissed the appeal. A copy of the appellate order is Annexure 'C' and that of the revision order is Annexure 'D'.
3. The matter was taken up in further revision, and it was dismissed by the Settlement Commissioner New Delhi, by his order dated the 10th August, 1967; a copy of which is Annexure 'E' to the writ application.
4. Two points have been urged by Mr. Akhar Hussain, learned Counsel for the petitioners, in support of this writ application which has been filed by the petitioners for quashing the various orders aforesaid by writ of certiorari. The petition filed is also under Article 227 of the Constitution of India. The points are: (1) that no notice having been ever issued and no action having been ever taken either under the Bihar Ordinance or under the Central Ordinance or any of the Central Acts, the property in question could not be treated as an evacuee property and the petitioners, could not be evicted by an action taken for the first time in the year 1966 under Section 19 of the Displaced Persons Act, and. (2) that in any view of the matter, no finding has been recorded by any of the authorities-that the property belonged to Prof. Abdul Ahad and not to the petitioners or, if such a finding is held to have been recorded, it is an erroneous finding in law attracting the writ jurisdiction of this Court for setting it aside.
5. Mr. K. D. Chatterji, learned Counsel appearing for respondent No. 1 and whose argument was adopted by Mr. K. P. Verma, appearing for respondent No. 4 submitted that the property had automatically vested in the Custodian under Section 5 of the Bihar Administration of Evacuee Property Ordinance, 1949 (Bihar Ordinance No. III of 1949). A notification dated the 4th July, 1955 (published in the Bihar Gazette of the 24th August, 1955) issued under Section 12(1) read with Section 12(3) of the Displaced Persons Act, 1954, had the effect of vesting the property in the Central Government and bringing it in the compensation pool. The action taken under Section 19 of the said Act, was therefore, justified. He further submitted that the authorities whose orders have been challenged in this case have clearly recorded a finding that the property had been validly transferred by B. to prof. Abdul Ahad and the petitioners had no interest on their own in that property.
6. The Bihar Administration of Evacuee property Ordinance 1949, was promulgated by the Governor on the 21st June, 1949. Under Section 5 of the Ordinance, all evacuee property situated in the province of Bihar, as the State of Bihar then was, vested in the Custodian. Under Section 6(1) of the Ordinance, the Custodian could, or one can say, ought to have notified, either by publication in the official Gazette or in such other manner as may be prescribed, evacuee which had vested in him under the Bihar Ordinance No. III of 1949. It is undisputed in this case that in respect of the property in question such a notification was not published. It is further undisputed that after the vesting of the evacuee property in the Custodian, the action which can be taken by him under Section 6(2) of the Ordinance was not taken arid, the petitioners did not get an opportunity of laying their claim to the property under Section 8 of the Ordinance. The Administration of Evacuee Property Ordinance (Central ordinance No. XXVII of 1959) was promulgated and published in the Gazette of India (Extraordinary) of the 18th October, 1949. Section 55(2) of this Ordinance repealed, the Bihar Ordinance. A provision corresponding to Section 5 of the Bihar Ordinance No. III of 1949 providing for automatic vesting of the evacuee property was not made in the Central Ordinance No. XXVII of 1949. On the other hand, a procedure was prescribed under Section 7 of the Ordinance for declaring any property to be an evacuee property. What has to be pointed out, however, is that, although under Sub-section (1) of Section 8, "any property declared to be evacuee property under Section 7 shall vest in the Custodian", under Sub-section 2 where immediately before the commencement of Ordinance No. XXVII of 1949 any ' evacuee property in province had vested in any person exercising the powers of a Custodian under any law repealed by the Central Ordinance, the evacuee property on the commencement of the Ordinance was to be deemed to have vested in the Custodian and was to continue to so vest. Central Ordinance No. XXVII of 1949 was replaced by the Evacuee Property Act, 1950. Similar provisions as contained in Sections 7 and 8(2) of Central Ordinance No. XXVII of 1949 were engrafted in the Act itself. A similar Ordinance as the one in Bihar had been promulgated in the United provinces, also on June 24, 1949, and, that was U. P. Ordinance No. I of 1949. The provision of the U. P. Ordinance, in so far as Sections 5, 6 and 8 are concerned, were identical to those embodied in the Bihar Ordinance. A question arose before the Allahabad High Court as to whether in view of the provision of law contained in Section 8(2) of Central Ordinance No. XXVII of 1949 and the Evacuee Property Act, 1950, the vesting of an evacuee property under Section 5 of U. P. Ordinance No. I of 1949 could be held to be valid. For the reasons given in the judgment of the Allahabad High Court in Azizun Nisa v. Assistant Custodian , it was held that the vesting was not valid. Thereafter was introduced a new subsection in Section 8 of the Evacuee Property Act, 1950, and, that is Sub-section (2A). This was introduced by Central (Amendment) Act 1 of 1960. The history of the U. P. law in the light of Section 8(2A) came up for consideration before the Supreme Court in Azimunnissa v. The Deputy Custodian, Evacuee Properties, District Deoria . It was held there that in view of this new provision of law the automatic vesting under Section 5 of U. P. Ordinance No. I of 1949 was valid. A similar view has been expressed in another decision of the Supreme Court in Haji Esmail Noor Mohammad and Co. v. Competent Officer Lucknow .
7. Mr. Akbar Hussain, learned Counsel for the petitioners, submitted that there could be no vesting of an evacuee property in the Custodian under Section 5 of the Bihar Ordinance without a notification under Section 6(1) as Section 5 is subject to the other provisions of the Ordinance. In my opinion, there is no substance in this argument. The notification to be published under Section 6(1) is a result of the vesting under Section 5 and not vice-versa. The vesting is automatic as has been held by the Supreme Court with reference to the U.P. Ordinance. It is not dependent upon the issuance or publication of any notification under Section 6(1) it is true that a notification under Section 6(1) could be issued notifying as to which evacuee property had vested in the Custodian. It is further true that an action under Section 6(2) could have been taken. Had that been so, an objection could have been filed by petitioners 1 to 6 that very point of time and, in the proceeding initiated under Section 8 of the Bihar Ordinance, the matter could have been decided as to whether the property in question was an evacuee property or not. But, the absence of a notification or an action taken under section of the Bihar Ordinance cannot nullify the effect of vesting of an evacuee property in the Custodian under Section 5. It is also to be pointed out that under the Evacuee Properly Act, 1950 action could be taken under Section 9 by the Custodian to take possession of the evacuee vested in him. No action even under Section 9 was taken. But that also cannot nullify the effect of vesting under the Bihar Ordinance. Section 6(2) of the Bihar Ordinance says that after the vesting of any evacuee property in the Custodian, any person in possession of any such property shall be deemed to be holding it on behalf of the Custodian. A similar provision is to be found in Sub-section (4) of Section 8 of the Evacuee Property Act, 1950. The effect of these provisions is that although no action was taken either under the Bihar Ordinance or under the Evacuee Property Act, 1950 if the property in question was an evacuee property, it did vest in the Custodian and the possession of the petitioner in the eye of law remained on behalf of the Custodian.
8. Section 12 of the Displaced Persons Act, 1954 empowers the Central Government to acquire any evacuee property for rehabilitation of displaced persons. A notification for acquisition can be issued under Sub-section (1) in respect of any specific property, or, such a notification can be issued in respect of all evacuee property generally in view of the provision of law contained in Sub-section (3) of Section 12. At one point, it seems to have been suggested on behalf of the petitioners that no notification under Section 12 of the Displaced Person Act, 1954, was issued. But, we have seen a copy of the notification issued by the Government of India, Ministry of Rehabilitation, which has been republished in the Bihar Gazette of August 24, 1955, for general information. Under this notification, all urban immovable properties in the State of Bihar, which include the property in question if it is an evacuee property, have been acquired by the Central Government.
9. It appears from the facts of this case as they appear from the record that, in fact, the authorities had no knowledge that the property in question belonged to Prof. Ahad who undisputedly was an evacuee within the meaning of the Bihar Ordinance and the Evacuee Property Act, 1950. From the report of the police officers, the authorities for the first time learnt in the year 1966 that Bibi Rahmat before her death had transferred the property to Prof. Ahad in the year 194.5. Since Prof. Ahad had during the relevant period gone to Pakistan and settled there, in the eye of law the property in question, if it was his had become an evacuee property; and, through the process of operation of law under the various Ordinances and Acts, as discussed above, it had come to vest in the Central Government. That being so, the Managing Officer was competent to issue a notice under Section 19(2)(b) of the Displaced Persons Act, 1954, to the petitioners to show cause against their eviction from the property and to surrender possession of the property to him or to anyother person duly authorised by him. Consequential actions under Section 19 could also be taken. In our opinion, therefore, merely because for the first time action was taken under Section 19 of the Displaced Persons Act, 1954, in the year 1966 about seventeen years after the vesting of the property, it can not be said that there was no vesting or the action is illegal or without jurisdiction,
10. The question, however, arises whether the petitioners can lose their interest or right in the property, if any, merely because of the action of the authorities taken after a considerable number of years treating the property as an evacuee property. The answer is plain. They can not lose their right, if any. It has got to be decided by the authorities and an adjudication has got to be given in respect of the claim of the petitioners. As required by the terms of Sub-section (2) of Section 19 of the Displaced Persons Act 1954, a reasonable opportunity has been given in the petitioners to prove and substantiate their claim. The Managing Officer decided the matter against them. They had their right of appeal under Section 22 of the Displaced Persons Act, 1954, and in this very appeal the question ought to have been gone into as to whether the property was an evacuee property or whether it belonged to the petitioners. Since no action was taken under Section 9 of the Evacuee Property Act, 1950, a revision under Section 27 of that Act was imcompetent. But this technicality apart, the necessary matters which ought to have been considered and decided for deciding a dispute of the kind with which we are concerned in this case have not been considered and decided either by the appellate authority or by the revisional authority. Even in the revisional order, a copy of which is Annexure 'D' the Assistant Custodian General has not kept in view the necessary facts which fall for his decision. According to the petitioners, the sale deed was not acted upon and the property was not of Prof. Ahad as the sale deed did not convey any title or interest in the property to Prof. Ahad. They had no notice of the sale deed executed by Bibi Rahmat in favour of Prof. Ahad, as no reference was made to this sale deed in the notice which was issued under Section 19(2) of the Displaced Persons Act, 1954. The point, therefore was not very clearly taken before the Managing Officer, although it was taken. We have looked to the petition of appeal filed before the appellate authority which was shown to us by Mr. K.D. Chatterji from the original records of the case. Therein, a point was taken that the sale deed executed by Bibi Rahmat in favour of Prof. Ahad was a sham and farzi transaction, that it was not meant to be acted upon and that it conveyed no title to the Professor. In such a situation, in face of ostensible sale deed it was for the petitioners to show that it was a sham and farzi transaction. They had to establish the various ingredients to lead to the conclusion that that the sale deed of 1945 was a sham and farzi document. The Assistant Custodian General in his order (Annexure 'D') says that Bibi Rahmat had executed a sale deed in favour of Prof. Ahad in the year 1945 and, therefore, on her death, she had no subsisting right which could devolve upon her heirs petitioners, 1 to 6. It would be so. But, then the petitioners case was necessary to be examined as to whether that sale deed was a sham and farzi document. In another paragraph, the Assistant Custodian General commits a mistake when he refers to acqusition of title by adverse possession by petitioner 1 to 6. It could not be so. If the property had been transferred to Prof. Ahad, then on his becoming an evacuee, the property became an evacuee property and vested in the Custodian in the year 1949. The possession of the petitioners thereafter was on behalf of the Custodian. The question of adverse possession could not arise. The Assistant Custodian General, as I read his order has nowhere recorded a finding that the case of the petitioners that the sale deed of 1945 was a sham and farzi transaction is, not correct. Such a finding was necessary in this very enquiry initiated by the issuance of a notice under Section 19(2) of the Displaced Persons Act, 1954. The Settlement Commissioner has not re-examined this question treating the order of the Assistant Custodian General passed under Section 27 of the Evacuee Property Act, 1950 as final. His order, therefore, does not improve the matter any further. In our opinion, therefore the case has to go back to the Assistant Settlement Cmmissioner for disposing of the appeal filed before him under Section 22 of the Displaced Persons Act, 1954, in the light of the observations made by us. After he has given his fresh decision, the matter, it necessary, can be taken to the Chief Settlement Commissioner in revision under Section 24 of the Displaced Persons Act, 1954. In absence of any definite and clear finding on the material question which had to be decided by the appellate authority under Section 22 of the Displaced Persons Act, 1954, we are unable to finally reject or allow the claim of the petitioners in this case.
11. In the result, therefore, in exercise of the powers vested in this Court under Article 228 of the Constitution, we set aside the order dated the 10th August, 1967 of the Settlement Commissioner (Annexure 'E') the order dated the 10th April, 1967 of the Assistant Custodian General (Annexure 'D') and the order dated the 10th April 1967, of the Assistant Settlement Commissioner (Annexure 'C') by a writ of certiorari. We remit the case back to the Assistant Settlement Commissioner and by a writ of mandamus direct him to decide afresh Appeal No. RI-I/67 filed by the petitioners under Section 22 of the Displaced Persons Act, 1954, in the light of the observations made above and for dismissal of the revision filed under Section 27 of the Evacuee Property Act, 1950 as incompetent. We shall make no order as to costs.