Delhi High Court
Shri I.M.I. vs Union Of India And Anr. on 3 May, 1993
Equivalent citations: 1993(26)DRJ251
JUDGMENT C.M. Nayar, J.
(1) The petitioner has filed the present writ petition under Article 226 of the Constitution of India, for grant of appropriate writ, directions to the Union of India for transfer of two-third of the premises known as4. Flagstaff Road,CivilLines, Delhi, to the petitioner, who is a displaced person from West Pakistan by sale, under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the Rules made there under. The petitioner has also prayed for cancellation of the restoration orders in favor of Shri A.A.Rushdie on the ground that he is not a citizen of India and he has played a fraud on the Central Government by representing that he is an Indian National.
(2) The petitioner has averred in the petition that he is a displaced person from West Pakistan,whose father migrated to India along with other family members in the year 1947 in the wake of the partition of India. The father of the petitioner, occupied the premises, 4, Flagstaff Road,Civil Lines, Delhi,( hereinafter referred to as'the impugned property') in January, 1948, when the said property was allotted to him by the Custodian of Evacuee Property, Delhi.
(3) The impugned property belonged to Shri A.A. Rushdie son of Mohd.Din, who was said to have migrated to Pakistan. The property was declared as evacuee property through a notification dated May 17, 1948,announced in the official Gazette of Ministry of Relief and Rehabilitation, office of the Custodian of Evacuee Property, Government of India. The relevant part of the said Notification reads as follows: "REGISTEREDNO.D-28 The Gazette Of India Extraordinary Published By Authority New DELHI. MONDAY. May 17. 1948 GOVERNMENT' Of India Ministry Of Relief And Rehabilitation Office of the Custodian of Evacuee Property Notification No. T/(l) New Delhi, the 17th May, 1948 At (1) In pursuance of the powers vested in me under sub- section (i) of Section 6 of the East Punjab Evacuees (Administration of Property) Act, as applicable to the Province of Delhi, I hereby assume possession of and over the evacuee properties specified in the schedules annexed hereto. Schedule A- Residential Premises Sl.No. Description locality ...... ...... 74 4 Flagstaff Road, ..... ..... .....
(4) The petitioner has further contended that Shri A.A. Rushdie had other properties in India in 1947 and though he had shifted from India to Pakistan he had maintained an address in Bombay, to establish that he was a resident of India to keep ownership of his properties in India. The property, at 4, Flagstaff Road, at the time of partition of India, was under acquisition with the Ministry of Works, Mines and Power, Government of India, and was lying vacant. Rai Bahadur Nanak Chand and Rai Bahadur Dina Nath were both displaced persons from North West Frontier Province. Rai Bahadur Nanak Chand, at the relevant time, was holding the office of Deputy Custodian (Transport) of Evacuee Property in the office of the Custodian of Evacuee Property, New Delhi. While the property was yet under process of de-requisition, the Custodian of Evacuee Property allotted the same to Rai Bahadur Nanak Chand and R.B. Dina Nath. The property was de-requisitioned in the early 1948.
(5) It is further alleged in the petition that Shn A.A. Rushdie was only in Delhi when business called for his presence in Delhi and he only maintained an address in Bombay, while he was actually living in Karachi and it was believed that he also kept a forwarding address in U.K., as part of his plans to dispose of his property in India and to be available to those in whom he was interested to deal with.
(6) The other facts, which may be relevant for the present petition, are that Shri M.A.Sujan, Deputy Custodian-11, wrote to R.B. Nanak Chand to let him know whether other places of residence arc in his possession or control. The said communication dated 9th January, 1948 reads as follows: "NO.1/9 Government of India Ministry of Relief & Rehabilitation Office of the Custodian, Evacuee's Property 'P' Block, Raisina Road. Dated New Delhi the 9th January, 1948 It is reported that you are occupying No.4, Flags Staff Road, which is anevacuee's property and that some other places of residence are in your possession or control. I would, therefore, request you to let me have a detailed report about this. sd/- (M.A. Sujan) Deputy Custodian II. R.B.Nanak Chand Bhasin, Deputy Custodian Transport."
(7) Reply was received by the office of Custodian from R.B. Nanak Chand which may also be reproduced as below: "JANUARY13th, 198 Reference 4 Flagstaff Road. Please refer to your office file. The house was allotted tome and Rai Bahadur Dina Nath,Garrison Engineer of N.W.F.P. by the Custodian on 3.12.47, while yet it was in the process of de-requisitioning. Later we learnt that it was finally decided to de-requisition it and early in January we occupied it in the belief that it has been derequisitioned. Only some formalities remained to be gone through. We are two families of 9 members each. The accommodation is hardly sufficient for 18 refugees. sd/- (R.B.Nanakchand Bhasin) Deputy Custodian ( Transport) Deputy Custodian Allotment"
(8) Thereafter R.B. Nanak Chand and R.B.Dina Nath filed an application that their rent may be fixed on the basis of similar accommodation in the area, as laid down by the relevant office order. Shri V.S.Jaitley, Deputy Custodian (Rent) by order dated June 30, 1948, assessed the rent/license fee of the entire property at Rs.500.00 per month.
(9) The petitioner has submitted that Shri A.A. Rushdie informed his father that the property had been restored to him and rent thereof may be paid to him. He had shown some papers to this effect to R.B.Nanak Chand. Since the petitioner's father did not doubt his intention and the family was on the way of permanently rehabilitating themselves at Delhi, he kept on paying rent to him .The restoration order, which was demanded to be seen by R.B.Nanak Chand was never shown to him. It is not disputed that father of the petitioner had been paying rent to Shri A. A. Rushdie and the same had been deposited in the authorised Bank, as desired by Shri A.A. Rushdie , Reference may be made to paragraph 12 of the writ petition, which reads as follows: "12.That the petitioner's father had been paying rent to him by depositing the same in the New Bank of India, L- Block, Connaught Place, New Delhi, as desired by Shri Rushdie. This was possibly the most convenient way of collecting the rent, without disclosing his whereabouts. This would also be an alibi, for showing and establishing that he was an Indian National. The petitioner's father expired inseptember, 1976 and the petitioner followed the same practice of depositing the rent in the Bank, as had been done by his father earlier. This practice was followed till about 1982, when the Income Tax made a claim on rent for some dues outstanding. Shortly after it was found that the Income Tax had made this claim, as a mechanical process, and this property was actually an Evacuee property as per notification and vested in the Central Government and had not been restored to Mr.Rushdie, the payment of rent was made to the C.E.P.,Delhi in the office of the Department of Internal Security New Delhi. The rent was tendered from January to March, 1984, which they did not accept and returned to the petitioner."
(10) There is, therefore, no dispute that R.B.Nanak Chand continued to pay the rent to Shri A.A.Rushdie and the same practice was followed by the petitioner and the last time, he tendered the rent, was from January to March, 1984. The petition also discloses in para 8 that Shri Rushdie disposed of one-third of the property in the Southern portion in about 1960, falling in the tenancy of the petitioner's father. Shri A.A. Rushdie had then entered into sale agreement dated December 22, 1970, with Shri B .R.Jain for the sale of 2/3rd portion of the impugned property and some trouble arose between the parties and suit for Specific Performance was filed in this Court, being Suit No. 994 of 1977, which was decreed on October 5, 1983, by the learned Single Judge and it is stated that an appeal in respect thereof is already pending. It will not be necessary to say anything further in this regard, as it has no further relevance to the present controversy between the parties.
(11) The petitioner thereafter brought to the notice of respondent no.2 that the impugned property was an Evacuee property and that the displaced person was living in it for the last 40 years and that it had not been restored to Shri A.A. Rushdie and the same may be allotted to him under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, The petitioner further contended that he wrote number of letters between March 1984 to December, 1985, but no reply was received in respect thereof. The reply ultimately was received by respondent's letter dated August 6, 1986,and the plea of the petitioner was rejected. The same may be reproduced as follows: "TO Shri I.M.Lall, 4,Flag Staff Road, 255 Civil Lines, Delhi-54. Subject: Evacuee Property- 4. Flag Staff Road, Civil Lines Delhi. Sir, I am directed to refer to your letter dated the 27th June, 1986. on subject cited above and to inform you that the property No.4, Flag Staff Road,Delhi, had no doubt vested in the Custodian as an evacuee property and was notified as such in the Gazette of India dated 17.5.1948, but apparently, it was later on restored by the Central Government to Shri Anis Ahmed Rushdie under section 16 of the Administration of Evacuee Property Act, 1950. Since then, the property is to be taken to be in the full ownership of Shri Rushdie. The enquiries made reveal that three portions of the property known as 4, Flagstaff Road, Delhi, were sold in 1960 to three different purchasers who have, since, had their respective building plans ap- proved from the Municipal Corporation of Delhi and are in their separate portions. Another portion of the property was sold by Shri Rushdie to Shri Bhikhu Ram Jain, Ex-M.P. It seems that some litigation had subsequently cropped-up and ultimately the Delhi High Court accepted Shri Rushdie as its owner. In the circumstances of the case, it is not possible for us to allot to you the portion of the property presently in your occupation, as this Department have no locus standi in so far as this property is concerned. Yours faithfully, sd/- (M.K. Kansal) Settlement Commissioner"
(12) The petitioner filed a revision petition under the relevant provisions against the said communication of the Settlement Commissioner. The Assistant Settlement Commissioner/Custodian of Evacuee Property, who represented the Department raised the following arguments against the averments of the petitioner and the same are reproduced as follows: "A)the communication dated 6.8.1986 is not an order passed under the D.P. (CAR) Act, 1954 and, assuch, no revision petition lies against this so-called order. B) Under the provisions of Section 24 of the D.P. (C&R)Act, 1954, the Chief Settlement Commissioner may at any time call for the record of any proceedings under the said Act in which, an Assistant Settlement Officer, Settlement Officer, Assistant Settlement Commissioner, Addl. Settlement Commissioner, Managing Officer or Managing Corporation has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation there to as he thinks fit. The petitioner has challenged restoration of the property to Shri Anis Ahmed Rushdie in these proceedings. As the proceedings for restoration of the property are not under the D.P. (C&R) Act, 1954 and as the order for restoration of the property was not passed by any of the officers mentioned above, the revision petition under section 24 of the D.P. ( C&R) Act does not lie. (C) The petitioner has himself admitted that his father had been paying the rent of the property No.4, Flag Staff Road, Delhi to Shri Rushdie since 1950. Assuch, the petitioner has no locus to come to the Deptt. in 1984 and complain that Shri Rushdie had left for Pakistan in 1948."
(13) The Settlement Commissioner accepted the plea and agreed with the submissions of the Custodian of Evacuee Property that for the reasons given by him and discussed above, the revision petition was not maintainable and the same was dismissed accordingly by the order dated August 25, 1987. Aggrieved by this order, the petitioner filed Revision Petition under Section 33 of the Displaced Persons(Compensation& Rehabilitation) Act, 1954. The said Revision Petition was also dismissed vide order dated March 10, 1988. The present writ petition has been filed to impugn the above orders.
(14) The respondents have filed their respective counter affidavits to the writ petition. Respondents I and 2 have reiterated that the writ petition suffers from delay and laches. The father of the petitioner Rai Bahadur Nanak Chand became one of the tenants of Shri A.A.,Rushdie on January 1, 1948 in the building known as 4, Flagstaff Road, Civil Lines,Delhi. He resided as a tenant with two tenants, namely, R.B. Dina Nath and Dr.Sukh Dayal in the same property. R.B.Nanak Chand paid the rent regularly to the owner and he died sometime in September 1976. The petitioner continued to pay rent, admittedly, until 1982 and he had, for the first time, in 1989 has raised his present claim in the writ petition. The delay is fatal and the writ petition is liable to be dismissed on this short ground. It is further reiterated that Section 7-A of the Administration of Evacuees Property Act, 1954, thereinafter referred to as 'the 1954 Act' imposes a ban on the initiation of fresh proceedings for,declaring a given property as Evacuee property. Section 7-A provides that "no property shall be declared to be evacuee property on or after the 7th day of May, 1954 .......... unless proceedings are pending on the 7thday of May, 1954 for declaring such property to be evacuee property."
(15) R.B. Nanak Chand was issued a Letter of Attornment dated September 27,1949, by the Assistant Custodian as the impugned property was restored as Non Evacuee Property. The said Letter of Attornment may be reproduced as under "GOVERNMENT of India Ministry of Rehabilitation Office of the Custodian of Evacuees' Property 'P" Block-Raisina Road, No. 4, Flag Staff Road New Delhi,the 27.9.1949 To R.B. Nanak Chand, R.S.Dina Nath, Dr. Sukh Dayal 4, Flag Staff Road Civil Lines Delhi. Subject: House No. 4, Flag Staff Road Whereas the owner or landlord of the property in your occupation, Shri Anis Ahmed Rushdie has been held to be a non evacuee and whereas an order has been passed in his favor, you are hereby directed to pay rent to and deal otherwise with the said landlord direct. sd/- Assistant Custodian"
(16) R.B.NANAK Chand .therefore, was asked to pay rent to Shri A.A. Rushdie who was declared to be owner after the impugned property was held to be non-evacuee. Reference is made to the provisions of Sections 27 and 28 of the Administration of Evacuee Property Act, 1950, to support the proposition that the order dated September 27, 1949. declaring Shri A.A. Rushdie as non-Evacuee, has become final and it cannot be called in question in any Court by way of Appeal or Revision or in Original Suit, application or execution proceeding (Section 28). The petitioner also has not moved the Custodian General under Section 27, which empowers the Custodian to satisfy himself as to the legality and propriety of any order, at any time, after giving opportunity of being heard. Counter affidavit has also been filed by respondent no.3, wherein, it has been reiterated that R.B.Nanak Chand was posted as Deputy Custodian (moveables) in the office of the Custodian of Evacuee Property. Shri A.A. Rushdie was frequently moving between Delhi and Bombay and in terms of an arrangement between Shri A.A, Rushdie and R.B.Nanak Chand rent was deposited by the later in the bank account of the former with the New Bank of India, 1. Block,Connaught Place, New Delhi. R.B.Nanak Chand is mentioned as a tenant under Shri A.A. Rushdie in the Municipal, Income Tax and Wealth Tax records. The rent payable was attached after 1962 by the Municipal and Income Tax Authorities for non payment of the dues by Shri A.A. Rushdie after his leaving for U.K. 'By an order published in the Official Gazette on May 17, 1948, the Custodian, in pursuance of the powers vested in him under Section 6(1) of the 1947 Act, (hereinafter referred to as the 1947 Act) assumed possession of the impugned property, which was included at serial No. 74.-No actual physical possession was ever taken. Consequent to the assumption of possession, a petition under Section 7 of the Act was filed by Shri A.A. Rushdie claiming that he was a non Evacuee and was the owner of the said property.' The possession of the property was not taken and no situation ever arose for Shri A.A. Rushdie to apply for restoration of property under Section 12 of the East Punjab Evacuees' (Administration of Property) Ordinance Iv of 1947, (17) The relevant provisions of the 1947 Act (Act No.XIV of 1947) may now be reproduced as follows: "2.Definitions- "(b) Evacuee" means a person ordinarily resident in or owning property or carrying on business within the territories comprised in the Province of the East Punjab, who on account of civil disturbances, or the fear of such disturbances, or the partition of the country: (i) leaves, or has since the first day of March 1947, left the said territories for a place outside India, or (ii) cannot personally occupy or supervise his property or business or watch his interests or enforce his rights; (c) "evacuee property" includes all property in which an evacuee has any right or interest but does not include any movable property in his immediate physical possession; 4. Vesting of evacuee property in the custodian- All evacuee property situated within the Province shall vest in the Custodian for the purposes of this Act and shall continue to be so vested until it is returned to the owner inaccordance with the provisions of section. 6. Custodian to take possession of evacuee property- (1) Subject to the provisions of this Act a Custodian may by general or special order with reference to the location or description of a specific or any class of evacuee property assume possession of or control over the property mentioned in the order which shall be published in the official Gazette. From the date of the order, the holder of such property, if any, shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or a person authorised by him in this behalf. (2) If the holder of such property refuses or fails to vacate the property or, in case of movable property to surrender possession thereof, the Custodian may use all force necessary for securing compliance with his order, and may for this purpose after giving reasonable warning and facility to any women not appearing in public to withdraw, remove or open any lock or bolt or break open any door or do any act necessary for taking possession. (3) The Custodian shall proceed to take possession of the property in the presence of not less than two residents of the locality at least one of whom if possible shall be a member of the community to which the evacuee owner belongs, and shall prepare a record, induplicate, of the proceedings which shall be signed by him and each of the witnesses. (4) When the Custodian takes possession of movable property (including the stock-in-trade or plant or machinery of any undertaking), he shall prepare an inventory, in duplicate, of all such movable property in the presence of not less than two residents of the locality and at least one of whom if possible shall be a person belonging to the community to which the evacuee owner belongs, and also a record of his proceedings, in duplicate,and each copy shall be signed by him and each of the witnesses. (5) On the conclusion of the proceedings under sub-section (2) or sub section (3) the Custodian shall forward one copy of the record and inventory to the District Court for record. 7. Inquiry into claims to evacuee property-(1) Any person claiming any right to or interest in any property of which the Custodian has taken possession or assumed control under section 6 may prefer such claim, to the Custodian by an application within thirty days from the date on which the possession of the property was taken. (2) The Custodian may, after summary inquiry, reject the application if it appears to him that the claim is untenable. (3) If upon such inquiry it appears to the Custodian that the applicant has a right to or interest in the property, he may make such order as he considers proper in order to give effect to such right or interest consistently with the objects of this Act: Provided that if the Custodian is satisfied that the property is not evacuee property and that the applicant is entitled to the exclusive possession of the property, he may deliver possession of the property to the applicant. (4) The Custodian shall record an order setting out his findings and the reasons therefore. (4-A) The Custodian or Additional Custodian may, at any time on his own motion or on application made to him, call for records of any proceedings under this section pending before or disposed of by an Assistant or Deputy Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the aforesaid proceedings and may pass any orders in relation thereto as he may think fit: Provided that the Custodian or Additional Custodian shall not under this sub-section pass an order revising or modifying such order and affecting any person without giving such person an opportunity of being heard: Provided further that if one of the officers aforesaid takes action under this sub-section, the other shall not be competent to do so. (5) Any person aggrieved by an order made under sub-section (4) or sub-section (4-A) may appeal to the District Judge within one month of the making of the order. (6) The High Court may of its own motion or on application made to it call for the record of any proceedings relating to an evacuee property whether pending or disposed of under sub-sections (4) or (5) for the purpose of satisfying itself as to the legality or propriety of any order passed in the aforesaid proceedings, and may pass such orders in relation thereto as it may think fit. (7) Subject to the decision of the District Judge on appeal or the High Court in revision, the order of the Custodian under sub-section (4) or (4-A) shall be final and conclusive. 12. Return of property- (1) On being satisfied that evacuees have returned or are returning to the Province, the Provincial Govern- ment may by notification in the Official Gazette authorise return of their immovable property to the owners in accordance with this section. (2) Any person claiming to be entitled to any such property may apply in writing to the Custodian, who shall after giving public notice hold a summary inquiry into the claim, and make a formal order declaring the person to whom the possession of the property may be delivered. (3) The delivery of the property to the person named in such order shall absolve the Custodian of all responsibility in respect of the property, but shall not prejudice any rights in respect of the property which any other person may be entitled to by due process of law to enforce against the person to whom possession of the property is so delivered: Provided that every lease validly granted by the Custodian shall have effect as against the owner until determined by lapse of time or operation of law. (4) The Custodian shall deliver or cause to be delivered to the person named in the order referred to in sub-section (2) a statement containing an abstract of the account of the management of the property and, if any sum be due and outstanding to the Custodian in respect of the excess expenses or fees,a notice requiring that person to pay such sum with interest at the rate of six percentum per annum from the date of the notice; and if the sum be not paid within time specified in the notice it will be recoverable as provided in section 20. (5) The Custodian may direct return of part or whole of the moveable property to the owner at any time on such conditions and terms as he deems fit. 12A. Transfer of management of tenancy rights of evacuees to non evacuee landlords after creation of new tenancies- (1) Notwithstanding anything contained in this Act, where the Custodian has under this Act granted a lease in respect of any evacuee property, of or over which he has assumed possession or control and which consists of tenancy rights or other rights of a like nature, he may, in any case where the Lesser, under whom such property was held immediately before the Custodian assumed possession or control thereof, is not an evacuee, by general or special order, declare that with effect from such date as may be specified in the order, he shall stand absolved of all responsibilities in respect of the property or the lease granted by him. (2) On the making of any such declaration as is specified in sub-section - (i) the ease granted by the Custodian shall be deemed to have effect as against the Lesser under whom the property was held immediately before the Custodian assumed possession or control thereof, until it is determined by lapse of time or operation of law; and (ii) all sum realised by the Custodian in respect of the said lease prior to the date of the declaration specified in sub-section (1) shall, less the fees, if any, payable to him, become payable to the Lesser against whom the lease now has effect."
(18) The Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance, 1949, (Ordinance No. xii of 1949) came into force in Delhi and replaced 1947 Act. Section 5 provided the vesting of Evacuee Property in the Custodian Section 6 gave powers to the Custodian from time to time to notify, either by publication in the Gazette of India or in such other manner, as may be prescribed the Evacuee properties, which are vested in him under this Ordinance. Section 7 referred to the powers of the Custodian to take possession of the Evacuee property, vested in him and the claims of the interested persons were considered under Section 8 of the Ordinance. Section 14 provided for restoration of the property (19) The Administration of Evacuee Property Ordinance Xxvii of 1949 repeated the Ordinance xxii of 1949, as referred above,and the material change was introduced regarding the procedure for notification of filing of claims by the provisions of Section 7. The same is reproduced as under: "7.Notification of evacuee property-(1) Where the Custodian is of opinion that any property is evacuee property within the meaning of this Ordinance, 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. (2) Pending the determination of the question whether any property is evacuee property or otherwise, any property in respect of which a notice has been issued under sub-section (1) shall, from the date of the notice be deemed to have been attached by the Custodian, and any transfer or delivery of such property or of any right or interest therein and any payment to any person contrary to such attachment shall be void against all claims enforceable under the attachment. (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)."
(20) This provision, inter-alia, provides that the Custodian shall cause notice to be given to the persons interested and after holding enquiry into the matter, as the circumstances of the case permit, pass an order declaring any such property to be Evacuee property.
(21) The Administration of Evacuees' Property Act, 1950, (Act No.xxxi of 1950) hereinafter referred to as the 1950 Act, replaced the Ordinance xxvii of 1949. The relevant provisions are reproduced as follows: "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. (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 subsection (1). 16. Restoration of property.- (1) The Custodian may, on application made to him in this behalf in writing by an evacuee or any person claiming to be the heir of an evacuee, restore, subject to such terms and conditions as he may think fit to impose, the evacuee property to which the evacuee or other person would have been entitled if this Act were not in force. Provided that the applicant produces in support of his application a certificate from the Central Government or from any person authorised by it in this behalf, to the effect that the evacuee property may be so restored if the applicant is otherwise entitled thereto. (2) On receipt of an application under sub-section (1) the Custodian shall cause public notice thereof to be given in the prescribed manner and, after holding a summary inquiry into the claim in such manner as may be prescribed, may- (a) make a formal order declaring that the property shall be restored to the applicant; or (b) reject the application; or (c) refer the applicant to a civil court for the determination of his claim and title to the property: Provided that no order for restoration shall be made under this section, unless provision has been made in the prescribed manner for the recovery of any amount due to the Custodian in respect of the property or the management thereof. (3) Upon the restoration of the property to the evacuee or to the heir, as the case may be, the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored. Provided that every lease granted in respect of the property by or on behalf of the Custodian shall have effect against the person to whom restoration is made until such lease is determined by lapse of time or by operation of law. (4) The Custodian shall, on demand, furnish to the evacuee or to the heir, as the case may be, a statement containing an abstract of the account of the income received and expenditure, incurred in respect of the property."
(22) Section 7-A was introduced by the Amendment Act of 1954 and the same reads as follows: "7-A.Property not to be declared evacuee property on or after 7th May, 1954- Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th 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 7th day of May, 1954 for declaring such property to be evacuee; and (b) the property of any person who on account of the setting up of Dominions of India and Pakistan or on account of civil disturbance or the fear of such disturbances had left on or after the 1st day of March, 1947, any place now forming part of India, and who on the 7th day May of 1954, was resident of 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."
(23) The petitioner has contended; (A) that the impugned property 4, Flagstaff Road, Civil Lines,Delhi, was held to be Evacuee property and the Custodian assumed control of/took possession on Decembers, 1947 and allotted the same to the petitioner's late father and another. The property, therefore, came to vest in the Custodian under Section 4 of 1947 Act; (B) The property was notified as Evacuee property of which the Custodian had taken possession vide notification dated May 17, 1948, and the same has not been restored thereafter. It accordingly remains Evacuee property; (C) The purported order under Section 7 of the Act cannot deem to be an order on several counts, such as: A)THEREis no application or mention of the date of the application to the Custodian for the restoration of the property. It is not known what has prompted the Custodian to issue this order. b)The order does not give any reasons or findings to support its conclusions. c)The purported order further states, "the Custodian has held him to be a Non Evacuee." Therefore these are not the findings of S.P.Advani, Auth. Dy Custodian said to be the signatory. 264 d)The order directs payment of rent to Shri A.A.Rushdie. Therefore, at best it is a direction for payment of rent, which direction was followed by my late father; till the notification came to hand, when the rent was paid to the Custodian for January,February and March, 1984. e)The document or the copy of the purported order is not supported by primary evidence or secondary evidence. (Sections 61 and 65 of the Evidence Act.) i)It is not registered nor is it attested. ii)It is not signed nor is the address of the beneficiary given on the document, as a minimum proof of his residence in India. f)Properties vesting in the Custodian u/s 6 of the Act by notification can only be restored under section 12 of the Act, and therefore, provision of Section 7 of the Act would not apply. g)It does not meet the requirements of the Act under which it is issued and, therefore, it is invalid in law and stands to be set aside.
The Letter of Attornment of September 27, 1949, is not an order under Section 7 of the Act and cannot be acted upon; (D) The petitioner is eligible for transfer by sale under Section 20 of the 1954 Act,as a sitting displaced person and sole occupant and he must be allotted the impugned property, in terms of these provisions. The impugned property was held by respondents I and 2 as restored under Section 16 of the 1950 Act, and the petitioner having filed claim under Section 20A of 1954 Act, which called for allotment of property, and the petitioner has to be allotted the same even if restored.
(24) The facts do not seem to be in dispute. The impugned property was allotted to R.B. Nanak Chand, late father of the petitioner, R.B.Dina Nath, after they came to Delhi as displaced persons from North West Frontier Province on December 3, 1948 by the Custodian of Evacuee property. Shri M.A.Sujan.Deputy Custodian II. wrote to Rai Bahadur Nanak Chand. who himself was Deputy Custodian, Transport, that it was reported that he was occupying No.4, Flags Staff Road, which was an evacuee property and that some other places of residence were in his possession or control. He wanted to have a detailed report in this regard. This communication is dated January 9, 1948. The Communication of the Deputy Custodian, as well as, the reply of R.B.Nanak Chand have already been reproduced in the preceding paragraphs. R.B. Nanak Chand and R.B.Dina Nath filed an application that the rent may be fixed on the basis of similar accommodation in the area and the same was decided accordingly by an order of the Deputy Custodian dated June 30, 1948. The impugned property was notified as Evacuee property vide notification issued by the Government of India at serial No. 74 and reference to the same has also been made earlier. Shri A.A. Rushdie is understood to have filed a claim petition under Section 7 of the 1947 Act, .claiming that he was the owner of the property and was a non evacuee and the property be restored to him. The Claim Petition came up before Mr.S.P.Advani, Authorised Deputy Custodian. Shri S.P.Advani by order dated December 10, 1948, stated that it may be noted that Shri A.A. Rushdie had been held to be a nonevacuee and the impugned property had been allotted by the Custodian to deserving refugees. It is further on record that Shri A.A. Rushdie had stated that he would be satisfied if he was paid fair rent for the property. The order dated December 10, 1948, may be reproduced as follows: "BEFOREDEPUTY Custodian, Restoration & Claims, New Delhi File No. DC/X/R/1269/6672-74 In repetition of Mr.A.A.Rushdie with respect to house No.4-Flagstaff Road, Delhi and House No.26-A, Aurangzeb Road, New Delhi. Order These petitions purport to fall under section 7 of the Act of Xiv of 1947. It may be noted here that the petitioner has been already held to be non-evacuee by the Custodian and I have this day given him permission to sell 26 and 26-A,Aurangzeb Road, New Delhi. As regards house no.4. Flagstaff Road, Delhi it has been allotted by the Custodian to deserving refugees and I understand from the petitioner that he would be satisfied if he is paid fair rent for this property. As a result, the present claim is already allowed and the allottees of house No.4, Flagstaff Road, Delhi can be made to attorn to the petitioner in due course. 10th December,1948 sd/- S.P.ADVANI SPA/BLB Authorised Deputy Custodian Copy to:- 1. Deputy Custodian (Residential) for necessary action. 2. Finance & Accounts Officer 3. The Estate Office, 'N' Block, New Delhi for information. sd/- S.P.Advani Authorised Deputy Custodian"
(25) R.B. Nanak Chand thereafter addressed a communication to the Assistant Custodian, which is part of record of this case and the said Communication is written in his own handwriting. This communication reads as follows: Dated 20.5.1949 "TO. The Assistant Custodian Kashmiri Gate Sector P Block, New Delhi Dear Sir, I am in receipt of your letter No.RPI/289 dated 13.5.1949 received 01118.5.1949. I cannot understand why I have been called for 25th instant. I have been allotted a portion of 4 Flagstaff Road since January 1948 and have been accepted as tenant on payment of rent. However, I will appear before you on the 25th instant at 4 P.M., as I have two appeals fixed for that day before the District Judge,Delhi for the Dina Nath will be out of station. I will appear on his behalf too. His case similar to mine. If you think it is not necessary to come in view of our being allottees, kindly inform me before 25th instant. It may be worthy of note that this house has been declared non-evacuee property by Mr.S.P.Advani on 10.12.1948 and restored to the owner. Yours faithfully, sd/- Nanak Chand"
(26) Shri A.A.Rushdie had also filed an application under section 12 A of the 1947 Act and Shri S.C.Saksena, Asstt.Custodian passed the following order: "OFFICE of the Assistant Custodian of Evacuee Property, New Delhi. File No.DC/X/TR7937/13141/10/9 Re: Petition of Shri Anis Ahmed Rushdie under section 8 of Ordinance 12 of 1949, in respect of property Nos.4 Flagstaff Road Civil Lines,Delhi. Order This is an application under Section 12 A of East Punjab Act of 1947, as extended to Delhi, and is now treated under Section 8 of Ordinance 12 of 1949. From the evidence on record and the statement of the petitioner and his witnesses the petitioner is proved to be the owner of the property in question and non evacuee, vide evidence on record. The Judgment in case No. DC/X/con/1949 dated 10.12.1949 is in favor of the petitioner wherein he has been held to be a non-evacuee. The prayer of the petitioner is that he be allowed to realise rents from the occupants and he is ready to treat the present occupants as his tenants. As a result, the present application is hereby allowed, under notification dated 13th March, 1949 1949.N.21(Z-3) 1949. The Custodian already stand absolved of all responsibilities in respect of tenancy rights of an evacuee land owners. The lease granted by the Custodian shall be deemed to have effect as against the petitioner and all sums realised by the Custodian from non confirmers lease the fee if any payable to him, become payable to the petitioner. The occupants whether confirmed or not confirmed will be directed to deal with the petitioner directly in future. A notice to that effect be sent to such occupants whose names as ascertained from the applicant are given below. The finance and accounts office will further ascertain the names of the occupants of the property from the Assistant Custodian concerned. And these occupants too will be informed to pay the rent in future to the petitioner and deal with him directly. New Delhi sd/- Dated SGS/JS Assistant Custodian."
(27) Consequent, upon passing of the order, the Assistant Custodian sent the communication to Rai Bahadur Nanak Chand, which reads as follows: "NO.4,Flag Staff Road. New Delhi 27.9.1949 To , R.B.Nanak Chand, R.S.Dina Nath. Dr. Sukh Dayal 4, Flagstaff Road, Civil Lines, Delhi. Subject:House No.4, Hag Staff Road. Whereas the owner or landlord of the property in your occupation. Shri Anis Ahmed Rushdie has been held to be a non evacuee and whereas an order has been passed in his favor, you are hereby directed to pay rent to and deal otherwise with the said landlord direct. sd/- , Assistant Custodian"
(28) R.B.NANAK Chand accepted that the property was declared to be non-evacuee and continued to pay the rent to Shri A.A. Rushdie till his death in the year 1976 and the same is not denied by the petitioner. The petitioner himself continued to pay such rent and the same is also not denied by him and is borne out from the averments, made in the petition. The subsequent development, with regard to the agreement to sell of the impugned property, in favor of Shri B.R.Jain, are relevant to this extent that third party rights have come into existence and a decree has already been passed by this Court, and it is stated that an appeal is pending in this regard. I am concerned in the present proceedings with the status of the impugned property, which had been held as nonevacuee by the Authorities and, as such, restored to the owner. The impugned property was released by the Government and this fact has been referred to in the order of Shri S.P.Advani, Authorised Deputy Custodian dated December 10, 1948. The father of the petitioner,R.B.Nanak Chand, was directed to attorn to Shri A.A.Rushdie and asked to pay the rent directly to Shri A.A.Rushdie.
(29) The petitioner has strongly relied upon the judgment of the Hon'ble Supreme Court in Haji Siddik Haji Umar and others v. Union of India , to contend that the properties, which were held Evacuee prior to 1950 Act, automatically vested in the Custodian and the matter thereafter cannot be re-opened. There cannot be any restoration, as the the impugned property was not restored after the notification of May 17, 1948, when it was declared Evacuee property by the Central Government. Reference is made to paragraph 23 of the said judgment, which reads as follows: "THERE is further hurdle in this case which has arisen on account of the publication of the notification under section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 in respect of the wit properties on June 1,1955. On the publication of such notification, the right, title or interest of Haji Umar Kasam in the suit properties became extinguished and they vested absolutely in the Central Government free from all encumbrances by virtue of Section 12 (2) of the said Act(see Basant Ram v. Union of India). It is perhaps for this reason that the Central Government could not make any order on the petitions filed by Haji Umar Kasam or his heirs for restoration of the suit properties to them after the publication of the said notification."
(30) The facts of the above case are not, in any manner, comparable to the present case. The Custodian had admittedly taken over the suit properties as evacuee properties because Haji Umar Kasam had not returned to Junagadh for over one year and it was also established on enquiry by the Custodian that 'certain remittances sent from the Bank of India, Junagadh Branch to him, which were encashed at Karachi suggested that Haji Umar Kasam must have been in Karachi for a major part of the period during which he was away from India.' The list of such remittances have been cited in the judgment. Reference may be made to paragraphs 9 and 10 of the judgment at pages 414-415 which read as follows: "9.The Custodian reported that the evidence before him revealed that Haji Umar Kasam had received the payments through the above bank remittances at Karachi and that the case that Haji Umar Kasam had stayed in Mecca throughout was not believable. After considering the entire matter before it and the report referred to above the Government of India declined to grant a certificate referred to in the proviso to Section 16(1) of the Act as it stood then and communicated its decision to Haji Umar Kasam through the Custodian, Saurashtra on July 3, 1954. This decision again was not questioned in any court. A notification under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, was issued in respect of the properties in question on June 8, 1955. No further effective action appears to have been taken by Haji Umar Kasam against this notification except writing letters to the ministers of the Government of India, some of which are produced before this Court by way of answer to a question put by the Court as to whether any such action was taken before the institution of the suit. 10.As mentioned earlier Haji Umar Kasam diedonMay22, 1956. Thereafter his heirs and legal representatives filed the suit out of which this appeal arises in the year 1959 after issuing the required notice dated January . 2, 1959 under Section 80 of the Code of Civil Procedure. In that notice, it was stated that the Special Custodian Officer had taken possession of the suit properties between September 23, 1948 and October 1, 1948 illegally acting in abuse of his powers. The plaintiffs demanded the return of the suit properties and also damages for illegal possession from October 1, 1948 to January 1,1959."
(31) In the present case, the notification under section 6 of 1947 Act was no-doubt issued which was only an invitation to file claims under Section 7 of the Act. The status of the property would depend upon the result of the proceedings under Section 7 of the 1947 Act, as has been rightly contended by the counsel for the respondents. The impugned property, on an application of Shri A.A. Rushdie, was restored to him and the same was declared as non-evacuee property and no possession, at any stage, was taken by the Custodian in compliance with the provisions of Section 7. Therefore, it cannot be held that the notification of May 17, 1948, operates as an absolute bar in the present circumstances and the property could not ever be held as non-evacuee and restored to the owner in the manner it has been done.
(32) The notification was no-doubt issued by the Central Government on May 17, 1948, notifying the impugned property as Evacuee property under sub-section 1 of Section 6 of the 1947 Act. The Custodian thereafter did not take any steps, as contemplated by sub-section 3 of Section 6. The Custodian also did not take any action, as provided by Section 7 of the 1950 Act as the property had already been held as nonevacuee. Shri A.A.Rushdie represented and moved a petition for declaration that the impugned property is non-evacuee property and the same be restored to him. The impugned property was declared as non-evacuee as far back as 1948 and the same is further borne out by an order of Shri S.C.Saksena, Assistant Custodian, under Section 12 A of the 1947 Act, as extended to Delhi. The said order is already reproduced in the earlier paragraph of the judgment.
(33) The claim of Shn A.A.Rushdie was accepted on December 10, 1948, and the tenancy rights were created in favor of R.B.Nanak Chand, who continued to pay the rent till his death in the year 1976 and the petitioner also does not deny his paying the rent as a tenant of the impugned property till the year 1982 arid no proceedings to impugn the restoration were initiated by them.
(34) The counsel for the respondents have further contended that no notice under Section 7 of the 1950 Act was issued to Shn A.A. Rushdie and the order, declaring the property as Evacuee property, in any. case, is without jurisdiction. No property can be declared to be Evacuee property unless that person had first been given a notice under Section 7 and where no such notice had been issued, to some of the owners of the properties, their interest in the properties could not vest in the Custodian. It is accordingly submitted that as no such notice was issued to Shri A.A. Rushdie the property was correctly restored to him and declared as non Evacuee property on December 10, 1948. Reference is made to the judgments of the Hon'ble Supreme Court in Dr. Zafar Ali Shah and others v. The Assistant Custodian of Evacuee Property, Jhansi and others ; Custodian, Evacuee Property, Punjab and others v. Jafran Begum, and of this Court in Union of India and another v. Allahawal and others (35) SUB-SECTION 3 of Section 7 clearly envisages that 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 subsection 1. There is accordingly no force in the contention of the petitioner that the property which is once notified as Evacuee property in the Official Gazette cannot be declared as non-Evacuee unless the same is de-notified by a subsequent notification. The same also seems to be the scheme of 1947 Act, as contemplated by Section 7. It may, however, be mentioned that the impugned property has not been shown in the list of evacuee properties, situated in the urban area of Delhi State made up to 31st December, 1950, which was subsequently published by the Custodian of Evacuee Property in accordance with the provisions of sub rule (3) of Rule 7 of the Administration of Evacuee Property (Central) Rules, 1950.
(36) There is, therefore, force in the contention that notice under Section 7 of 1950 Act is the foundation of jurisdiction declaring any property as Evacuee property. No property of any person can be declared to be Evacuee property, unless that person had been given a notice under Section 7. Where, no such notice had been issued, to the owners of the properties, their interests could not vest in the Custodian.
(37) The Hon'ble Supreme Court in Dr. Zafar Ali Shah and others v.The Assistant Custodian of Evacuee Property, Jhansi and others (supra) has clearly held that 'no property of any person can be declared to be evacuee property unless that person had been given a notice under Section 7 of the Act.' (38) It will not be necessary for this Court to go into the question of the legality of notification, issued on May 17, 1948, as subsequently no proceedings took place and the property was restored to the owner and declared non Evacuee property. There is no doubt that the Custodian did not take any further proceedings after the notification under Section 6(1) of the 1947 Act was published in the Official Gazette and no steps were taken as Shri A.A.Rushdie had already moved for restoration of his property. The Notification accordingly cannot stand in the way of a declaration and order by which the Custodian had subsequently declared the impugned property as a non Evacuee property. This was also reiterated by the non-specification of the impugned property in the list of evacuee properties situated in the Urban area of Delhi as on 31st December, 1950,by the Custodian.
(39) The counsel for the respondents have also contended that no property can be taken over as Evacuee property on or after May 7, 1954, when no proceedings in this regard were pending against Shri A.A. Rushdie on that date. Reference is made to the judgment of the Hon'ble Supreme Court in Dr. Rajendra Prakash Sharma v. Gyan Chandra and others .
(40) In the present case, no such proceedings were pending and neither the Custodian had taken any proceedings under Section 7 of the 1950 Act, to declare the impugned property as Evacuee property before May 7, 1954. In view of this, the property, which had already been restored to Shri A.A. Rushdie, could not be treated as Evacuee property after May 7, 1954. The powers of the Custodian were clearly defined by the Amended provisions, as contained in Section 7-A of the 1950 Act and no fault can be found with the restoration of the property on the. facts of the present case .
(41) Reference may also be made to the judgment of the Supreme Court in Lachhman Dass and others v: Municipal Committee, Jalalabad and others etc., , which held the provisions of Section 20B of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, as unconstitutional for the reason that the Section enables the Central Government to deprive rightful owner of the property, if it was of the opinion that it was not expedient or practicable to restore the whole or part of the property. This will indicate that the property has to be restored to the owner after the same is held to be non evacuee and he cannot be deprived of the same.
(42) The present petition is being disposed of on merits. It will not be out of place to recapitulate the facts, which has relevancy in the matter. The property was declared as Evacuee property by Notification of May 17, 1948. The petition of the owner Shri A.A. Rushdie, was accepted as far back as December 10, 1948 and the same is borne out from the records of the Custodian. The communication in this regard was also sent to the father of the petitioner, R.B. Nanak Chand, who wrote in his own handwriting on May 20, 1949, that the house had been declared non evacuee property by Shri S.P. Advani on December 10, 1948 and returned to the owner. The owner of the property was satisfied, if he was paid rent and late R.B.Nanak Chand continued to pay the rent till his death in 1976 and the petitioner followed the same practice, admittedly, till 1982. The petitioner did not take any proceedings nor the same were taken by R.B.Nanak Chand during all this period, when the property had apparently been restored to Shri A.A. Rushdie. He represented to the Chief Settlement Commissioner on 27th January, 1986(Annexure Iv to the writ petition), bringing to his notice the Notification dated May 17, 1948 published in the Gazette of India, earlier meetings of September, 1985 and communication of p73 December 9, 1985 and other communications as referred to in annexure 'A'. The Settlement Commissioner Shri N.K. Kansal, replied to the petitioner that the impugned property was restored to Shri A.A. Rushdie and the same is to be taken in his full ownership. The petitioner filed a Revision Petition under Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, against the findings of the Settlement CommissionerdatedAugust6. 1986, in the court of Chief Settlement Commissioner. The Revision Petition was heard and it was reiterated that the petitioner had himself admitted that his father had been paying the rent of the property No. 4, Flagstaff Road, CivilLines,Delhi,to Shri A.A. Rushdie since 1950 and as such, the petitioner had no locusstand to come to the Department in the year 1984.
(43) The petitioner has not denied that Shri A.A. Rushdie had informed his father that the impugned property had been restored to him and the rent, therefore, may be paid to him. The petitioner has averred that since his father did not doubt his intention and the family was on the way of permanently rehabilitating themselves in Delhi, he kept on paying rent to him. The same practice was continued by the petitioner till about 1982. The present cause of action arose only on the plea, as the petitioner contended, that Shri A.A. Rushdie was an influential person and in fact, he had shifted from India to Pakistan and only maintained his address of Bombay, to establish that he was resident of India to keep the ownership of his properties in this country. He has further alleged that Shri A.A. Rushdie played a fraud on the Central Government, as well as, on the father of the petitioner, as he had in fact been settled at Pakistan. These are questions of fact which cannot dislodge the findings of the Central Government, arrived as far back as 1948, that the impugned property had already been declared as non evacuee and restored to the owner. The tenants, including the father of the petitioner, sitting on the said property, had attorney to the owner and had been paying rent. It is too late in the day to challenge the order of restoration at this belated stage. The question of fraud, played upon the Central Government by Shri A.A. Rushdie , and his subsequent settling in Pakistan, cannot be gone into in the present proceedings. The order of restoration dated December 10, 1948, in fact had not been challenged by the petitioner and his late father R.B. Nanak Chand and it will not be open for this Court to adjudicate upon the questions of fact in proceedings under Article 226 of the Constitution of India.
(44) In view of the above, the Writ Petition fails and is dismissed. There shall be no order as to costs. The Registry of this Court shall inform the petitioner about the pronouncement of this judgment within three days from today in terms of my order dated March 19,1993, in Cmp No. 2550/93.