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The Revenue Recovery Act, 1890
The Code Of Criminal Procedure, 1973
The Rehabilitation Council Of India Act, 1992
Section 7 in The Revenue Recovery Act, 1890
Section 8 in The Revenue Recovery Act, 1890

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Andhra High Court
Co-Operative Tenant Farming ... vs Joint Collector-Cum-Deputy ... on 18 September, 2000
Equivalent citations: 2000 (6) ALD 108
Bench: G Bikshapathy

Judgment

1. In this writ petition the Order of the Joint Collector-cum-Settlement Commissioner, Nalgonda dated 29-7-1998 passed under Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is assailed.

2. The petition has a long chain of events spreading over nearly half a century.

3. The 1st petitioner is the Co-operative Society registered under the provisions of the Co-operative Societies Act comprising of small fanners. It was registered and formed for the purpose of espousing and safeguarding the rights of the members in respect of the small extents of lands held by them at Malkapur village, Choutuppal Mandal, Nalgonda District.

4. It is the case of the petitioner that Malkapur village was an erstwhile Jagir village held by Jagirdar one Mirza Maqsood Ahmed Khan. He used to collect the land revenue being Jagirdar from the members of the petitioner society and he did not have any rights except collecting the revenue from the members of the petitioner society on behalf of the State. The Government of Hyderabad exercising the powers under Section 172 of A.P. (Telangana Area) Land Revenue Act, 1317-Fasli framed the rules

published in the Gazette No.32, dated Thir 1356 Fasli known as rules regarding the grant of pattedary rights in non-khalsa village. Under the said Rules, the persons who were in occupation of Jagir lands and paid land revenue to the Jagirdar shall be treated as pattedars of khalsa lands. The members of the petitioner society have been paying the land revenue to the said Jagirdar and predecessors-in-interest of the members were also recognised as tenants of Jagirdar and their names were entered in the revenue records. Therefore, all the members of the Society were deemed to have acquired the pattedary rights in respect of the lands occupied by them except the lands which were held by the Jagirdar under his personal cultivation consequent on abolition of Jagirs under the provisions of the Abolition of Jagir 1338 Fasli (1949 A.D.).

5. It is their ease that the Government started claiming the land as Evacuee property of one Mirza Maqsood Ahmed Khan and the petitioner bona fide acting on the statement of the respondents purchased an extent of Ac.197-25 gts. of land in S.Nos.128, 41, 48, 50, 55, 61, 82 to 86 of Malkapur village from one Dhamanmal Ainshimal, a displaced person. Thus, it is the case of the petitioner that they purchased an extent of Ac.197-21 gts. and also purchased another extent of Ac.432-32 gts., by paying Rs.17,312/- towards the sale consideration. It is also their case that after payments were made, the Tahsildar addressed a letter to the Regional Settlement Commissioner on 5-9-1961 stating that Evacuee property has been disposed of and sought for the sale certificate. It is stated that the sale was conducted on the directions of the Regional Settlement Commissioner. Thus, they became owners to the total extent of Ac.630-30 gts. As per the records of the Government in respect of the balance area, the petitioners continued to be in exclusive possession and enjoyment

of the lands as pattedars by paying land revenue to the jagirdars.

6. While so, in the year 1988, the 2nd respondent initiated proceedings under Section 145 Criminal Procedure Code and passed Orders on 6-6-1988 attaching the lands belonging to the petitioner society. The said action was challenged by the petitioner in WP No.9224 of 1988. While admitting the writ petition, interim suspension Order was passed and finally the writ petition was disposed of quashing the order of attachment dated: 13-8-1987 leaving it open to the authorities concerned to decide as to the ownership of the land in question. Again the 1st respondent issued 5 notices in File No.B1/13070/89, dated 12-7-1989 purporting to be under Form-I (Rule 6) of Evacuee Property Central Rules stating that the property mentioned in the notices vested in the custodian and it should be surrendered within 20 days. Since, no enquiry was caused determining the status and since the notices were completely contrary to the directions of this Court in earlier writ petition, Society filed another WP No.10390 of 1989. While admitting, interim stay of dis-possession was granted and finally the writ petition was allowed on 25-2-1997 directing detailed enquiry to be conducted after affording sufficient opportunity within a period of six months. In pursuance of the said directions, notices were again issued to the petitioner under sub-section (4) of Section 8 of Administration of Evacuee Property Act, 1950 (for brief the 'E.P. Act') directing the Society to surrender the possession. The Society was represented by a Counsel and it also made an application for furnishing the documents namely 1) the notification issued under Section 7(3) of E.P. Act declaring the properties of Mirza Maqsood Ahmed Khan as Evacuee property and some other documents- However, these documents were not furnished to the petitioner stating that certain documents were destroyed and

certain other documents were not originated from the Collector's office. Therefore, the petitioner filed another Writ Petition No.5564 of 1998 and the same was disposed of on 4-3-1998 with a direction to the 1st respondent to furnish the documents sought by the petitioner on payment of fees and fulfilling the requirements. As the direction was not complied with, the petitioner filed CC No.773 of 1998. It was represented before this Court that the copies of the documents were not available in the records of the respondents and therefore, they could not be furnished. Hence, the contempt case was closed. However, during the enquiry petitioner society filed a detailed written representations pulling forth various objections viz., (a) that proceedings under Section 8(4) are illegal and incompetent as there was no notification declaring the property as Evacuee property; (b) that Mirza Maqsood Ahmed Khan was only Jagirdar and he was not an Evacuee; (c) that the petitioner became owner to the extent of Ac.630-30 gts. as the aforesaid land was transferred forming part of common pool under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for brief the 'D.P. Act') and therefore, no proceedings under the E.P. Act could be initiated. It was also stated that under the provisions of A.P. (Telangana Area) Tenancy and Agricultural Lands Act, the members of the petitioner society deemed to have become protected tenants by virtue of the provision in Section 34 and to establish this, they sought for extract pahani patrikas for the years 1940 to 1955, which were not furnished to them. But, however, without considering this, the 1st respondent passed an Order dated 29-7-1998 directing surrender of the lands excepting Ac.197-21 gts. The said Order is assailed in this writ petition.

7. Counters were filed by the respondents at different stages.

8. In the first counter, filed in November, 1998, it was stated that Malkapur village was not a Jagirdar village and it is a khalsa village. It was also denied that Section 172 of A.P. (Telangana Area) Land Revenue Act, 1317 Fasli was applicable as it was not a Jagir village and that the nature of lands as Jagir lands was only brought for the first time. In para 7 of the counter it is stated that the land in question to the extent of Ac. 1,407-18 gts. stood patta in the name of one Mirza Maqsood Ali Khan and the said lands were declared as Evacuee property concerned on his migration to Pakistan in 1950, and thereafter the lands were allotted to the following displaced persons:

Sl. No.

Name

of the displaced person

Extent

allotted

Allotment Order No. and date

1.

Smt.

RadhaBai W/o Chowthiram

143.18

NAI/55

13-5-1954

2.

Tahilmei

S/o Jeevatmal

260.12

NAL/47

12-5-1954

3.

Dhamanmal

Anishmimal

197.21

NAL/42

12-5-1954

4.

Unalloted

land

806.07

    Total

1,407.18

 

The respondent further stated that the alleged purchase of Ac.432-32 gts. was not correct. Had it been a fact, they would have purchased the lands from the displaced persons. They also denied that the Society paid the alleged sale consideration of Rs.17,312/- towards the purchase of Ac.432-32 gts. It is stated that the petitioner failed to produce any evidence to the effect that the sale amount was credited in the Treasury though challans. Therefore, claim was rightly rejected by the 1st respondent. It is also stated that the petitioners having contended that they purchased the land, from one of the displaced persons under a

registered sale deed, now again cannot turn around and say that the land in question was never declared as Evacuee property. Even though no notification was produced, yet, they are estopped from contending that the lands in question were not Evacuee properties. Since the petitioners produced valid documents in respect of the Ac. 197-21 gts., the balance land was directed to be resumed. It is further stated that the records of the Evacuee properties were sent to the Accounts Officer during 1960 and they were misplaced, the certified copies of documents could not be furnished as requested by the petitioner. It is stated that whether the notification was issued or not declaring the properties as Evacuee property, the issue became academic in view of the conduct of petitioners themselves, who have admitted that it is Evacuee property as from the file of Tahsildar, Ramannapet No.B1/ 5599/59, the Society was a lessee for the year 1958-59 and credit the lease amount on 18-9-1959 and 23-9-1959. With regard to the competency of the proceedings, it is stated that the notices under Section 8 were issued and the case was initiated prior to the issuance of notification of the Government of India under Section 12 of the D.P. Act acquiring the Evacuee property and as such the notices were quite legal and valid. In any case, it is stated that even under Section 19 of the D.P. Act, the same authorities have to consider the matter after giving opportunity to the parties. It is also submitted that the lands in question formed part of compensation pool under the D.P. Act and therefore, the matter has to be necessarily to be decided under the D.P. Act. Since, the petitioners failed to submit any reliable evidence for the purchase of Ac.432-32 gts., their claim was rejected. Reference to the Jagir village and protected tenancy certificates and the extract of the Register are not relevant for the purpose of this case. That the Government of India issued notification on 28-7-1988 acquiring all the Evacuee properties in the

State of Andhra Pradesh and by the time the notices were issued under E.P. Act to the petitioner, notification by the Central Government was not issued, therefore, the action taken under Section 8 prior to notification was quite legal and after the notification, and final Orders passed under Section 19 of the D.P. Act were legal and valid.

9. In August, 2000, additional counter-affidavit was filed on the ground that the respondents could locate some more important documents. According to the counter-affidavit, it is stated that the property of Mirza Maqsood Ahmed Khan was declared as Evacuee property in Gazette No. 188, dated 30-7-1951 and from 1954, it was being shown as Evacuee property in the revenue records. The petitioner society were never recorded as Protected Tenant holder in the revenue records. The lands were allotted on lease (koul) by the Custodian of the property in pursuance of the Order of the Ministry for Rehabilitation dated 3-8-1953. They executed a lease deed dated 3-8-1953 as the property was vested in the common pool, some portion of the lands inter alia were allotted to three persons Smt. Radha Bai, Thailmel, and Dhamanma, Anishmimal. It is stated that the petitioners played fraud by suppressing this material information. It is further stated that the petitioner Society on 14-7-1960 applied for stay of auction and allotment of about 400 acres on payment of fair price on the ground that they had been tilling the land from 1953. In that letter, they stated that Mirza Maqsood Ahmed Khan was a contractor in the Military Department and not a Jagirdar. The petitioner society claim that they paid Rs.17,312/- towards the purchase price, but, yet, alleged sale was not confirmed as per rules and no sale certificate was issued and the original challans were not produced.

10. Again in September, 2000 another affidavit was sworn to by the 1st respondent

stating that Mirza Maqsood Ahmed Khan was described as Contractor in Military Department only on the basis of the contents of the letter filed by the petitioner itself and that they denied that contradictory stands were taken by them in various counters. The petitioner executed a lease deed in 1953 and also in 1959 and therefore, they cannot claim adverse possession as it is only a permissive possession. The respondents sought for dismissal of the writ petition on the ground that the petitioner suppressed the material facts and did not come with clean hands.

11. Elaborate arguments were advanced by the learned senior Counsel appearing for the petitioner Mr. K. Prathap Reddy and also the learned Advocate-General on behalf of the respondents.

12. The following issues arise for consideration in this writ petition namely :

(1) Whether the Government issued any notification as required under Section 7 of E.P. Act and whether the land in question fall in the Category of Evacuee property?

(2) Whether the action initiated under Section 8(4) of E.P. Act is competent or whether it is competent for the authorities to pass an Order under Section 19 of the D.P. Act having issued show-cause notice under Section 8 of E.P. Act?

(3) Whether the Society purchased the land having an extent of Ac.432-32 gts. alleged to have been sold to the Society by the respondents in accordance with law and whether the Society acquired title to the said land?

(4) Whether the initiation of proceedings under Section 19 in respect of lands allotted to Radha Bai and Tahilmel, displaced persons was competent?

(5) Whether the impugned Order is sustainable in law?

13. The learned senior Counsel for the petitioner Society, Mr. K. Prathap Reddy submits that in the absence of any notification, it would not be appropriate for the authority to initiate action either under Section 8 of the E.P. Act, and such a document was never produced by the Respondents. He submits that before notification under Section 7 is issued, it is incumbent on the part of the authorities under the E.P. Act to issue notices to the Evacuee as well as the persons interested including the persons in occupation of the land and he has to form an opinion that the property in question was a Evacuee property and after hearing the parties concerned shall pass an Order declaring the property as Evacuee property. Such a procedure has not been followed. No document has been placed before this Court to the effect that the procedure as contemplated under Section 7 was followed. He submits that merely because, the petitioners accepted that it is an Evacuee property, it cannot be legally construed as Evacuee property as the parties cannot confer any title or jurisdiction nor their acceptance would validate the notification if it is otherwise invalid in law. It is further submitted that even though, petitioner was a protected tenant holder and has been cultivating the land for the several years, even prior to the E.P. Act came into force, but yet, since the authorities styling it was a Evacuee properly and in order to avoid complications, in respect of the title to the land, they purchased the land which was allotted to the Dhamanmal Anishmimal having an extent of Ac.197-21 gts. They also purchased an extent of over Ac.432-32 gts. on payment of sale consideration of Rs.17,312/-. It is stated that when the land was sought to be auctioned, they made an application to the authorities offering to pay the sale consideration, as they have been

tilling the land for several years. Therefore, on that basis, directions were issued to sell the land and the basis of the value assessed by the Collector. The Tahsildar, Ramannapet, called upon the petitioner to deposit the amount and the same were deposited through challans. Even though sale certificate was not issued, yet, the fact remains that they paid the sale consideration and thus they became the owners. He also submits that in respect of the other balance land, the land was allotted to other two persons namely Smt. Radha Bai, and Thailmel, and therefore, respondents have no power to initiate any action even under D.P. Act, it is only the allottees, who acquired the absolute right can initiate action. It is not the case of the Government that the allotment was cancelled and again the lands were resumed back. In fact, there was no such procedure of resumption of the land. Therefore, in the absence of the cancellation of allotment, the Respondents have no jurisdiction to initiate any action against the petitioner calling upon them to surrender the land.

14. He also lastly submits that even the notification issued under Section 7 of E.P. Act, which was filed by the Respondent at a highly belated stage, is impregnated with any amount of suspicion. The notification as issued did not contain any details as to whether any opportunity was given or any notices were served on the parties concerned under Section 7. Even the name was mentioned as Maqsood Ahmed Khan, formerly working in the Rationing Department and details of the properties held by him were not mentioned. Thus, the very notification itself is contrary to Section 7 of the Act. Therefore, it cannot be said that there was a valid notification under the E.P. Act. Therefore, all the proceedings are illegal and without jurisdiction.

15. On the other hand, the learned Advocate-General appearing for the State

submits that the notification as issued on 30-7-1951, is quite legal and valid and the petitioner filed to challenge the notification. Hence, it is not open for them to contend that the said notification is illegal and contrary to law. It is no doubt true that the case of the petitioners are that the land was owned by Jagirdar and that they were the tenants having in possession and enjoyment of the land for several decades and that they acquired the protected tenancy rights. Alternatively also it is their case that they purchased the land and thus they are the owners even under the D.P. Act.

16. The Adminsitration of Evacuee

Property Act, 1950 came into effect with effect from 17-4-1950. Under the said Act, the competent authority namely the Custodian is required to issue necessary notification and there upon consider objections and pass final Orders. Section 7 of Evacuee property is extracted below:

"7. Notification of Evacuee property:-- (1) Where the Custodian is of the 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.

1(A) Where during the pendency of any proceeding under sub-section (1) for declaring any property to be Evacuee property any person interested in the property dies, the proceeding 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 or 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)."

Therefore, from the reading of the above provision, it is clear that the Custodian should form an opinion that the property is Evacuee property and he shall cause notice in the prescribed form to the interested persons. Therefore, what is required to be considered is whether a notice has been issued in the prescribed manner. Under Rule 6 of The Administration of Evacuee Property (Central) Rules, 1950 (for brief the 'E.P. Rules'), a detailed procedure has been contemplated. But, the Respondents have not been able to show any document that the notification was issued after following the procedure as laid down under Rule 6. Even the notification itself is so vague as to what are the properties held by Maqsood Ahmed Khan even assuming that he is a Evacuee except stating following words in the notification. The notification states as follows:

"No. 188 Notification was issued by the Custodian Evacuee properly, Hyderabad taken notification No.188, dated 30-7-1951".

In exercise of the powers conferred by Section 78 of the E.P. Act, I hereby declare and notify the following as Evacuee property and they vest in the Custodian of Evacuee property.

X X X X

15. All properties belonging to Maqsood Ahmed Khan, formerly working in the Rationing Department".

In Form No.1 under Rule 6, notice is required to be issued along with the grounds. Rule 6 is extracted below:

"6. Manner of inquiry under Section 7 :--(1) Where the Custodian is satisfied from information in his possession or otherwise that any property or an interest therein is prima facie Evacuee properly, he shall cause a notice to be served, in Form No.1, on the person claiming title to such property or interest and on any other person or persons whom he considers to be interested in the property.

(2) The notice shall, as far as practicable, mention the grounds on which the property is sought to be declared Evacuee property and shall specify the provision of the Act under which the person claiming any litle to, or interest in such property is alleged to be an Evacuee.

(3) The notice shall be served personally, but if that is not practicable the service may be effected in any manner provided in Rule 28.

(4) Where a notice has been duly served, and the party called upon to show-cause why the property should not be declared as Evacuee property, fails to appear on the date fixed for hearing, the Custodian may proceed to hear the matter ex parte and pass such order on the material before him as he deems fit.

(5) Where such party appears and contests the notice he shall forthwith file a written statement verified in the same manner as a pleading under the Code of Civil Procedure, 1908 stating the reasons why he should not be

deemed to be an Evacuee and why the properly or his interest therein should not be declared an Evacuee property. Any person or persons claiming to be interested in the enquiry or in the property being declared as Evacuee property, may file a reply to such written statement. The Custodian shall then, either on the same day or on any subsequent day to which the hearing may be adjourned, proceed to hear the evidence, if any, which the party claiming to be interested as mentioned above may adduce.

(6) After the whole evidence has been duly recorded in a summary manner, the Custodian shall proceed to pronounce his Order. The Order shall state the points for determination, and the findings thereon with brief reasons".

These details were also not forthcoming from the respondents.

17. Under Rule 7, the Custodian after holding an enquiry shall pass an Order notifying certain property as Evacuee property. The said notification has to be issued in Form-II and it shall contain full particulars of the land, municipal No. etc. In case of agricultural land, it shall specify as far as possible, its khasra property and village where it is situated. Rule 7 reads thus:

"7. Notification of Evacuee property under sub-section (3) of Section 7 :--(1) The Custodian, after holding such enquiry, as he deems fit and on being satisfied that a particular property is Evacuee property, shall notify the same in the official Gazette or in any local newspaper or on the notice Board kept for that purpose in his office. In the last mentioned case, the Custodian may, in addition, cause a copy of the notification to be affixed on the Evacuee property.

(2) The notification shall be in Form No.2 and shall give full particulars of the property regarding the location, municipal numbers, etc. In case of agricultural land, it shall specify, as far as possible, its khasra number and the village where it is situated. Any error or irregularity in the drawing up or the publication of the notification shall not be deemed to detract from the validity of such ann or otherwise afford a valid defence to claim of the Custodian to the property as having vested in him.

(3) A list of all such Evacuee property brought up to date in each State shall be published once a year, in the official Gazette or in such other manner as the Custodian deems fit."

But, even these details are totally absent. It is very much doubtful whether any such enquiry was conducted by the authorities and whether Mirza Maqsood Ahmed Khan, who was said to be Evacuee was the same person as Maqsood Ahmed Khan, The burden is on the respondents to establish that there was a valid notification and that the notification was issued after following the procedure laid down under Rules 6 and 7 read with Section 7 of the Act. These ingredients are totally absent in the notification even assuming that the notification was issued under Section 7 of the Act.

18. The petitioners are also equally not able to say with certainly either it is a Evacuee property or Jagir property. But, it cannot be disputed that the land was being described as Evacuee property right from 1951, as can be seen from the files produced by the Government and the Government was under the impression that the notification was issued. Even the petitioners also in various letters admitted that it is Evacuee property of Mirza Maqsood Ahmed Khan. But, whether Mirza Maqsood Ahmed Khan is the same person as Maqsood Ahmed Khan is a still doubtful.

19. Even in the lease deeds alleged to have been executed by the Society in 1953, 1954 and 1959, the lands were described as Evacuee lands of Maqsood Ahmed Khan. The petitioners cannot be found fault with having described the property as Evacuee property as they were not aware of such situation at any time. The very core of contention is that no enquiry as contemplated under Rules 6 and 7 was conducted and that no notification was issued under Section 7. Therefore, they were also not aware as to whether it is in fact a Evacuee property.

20. It is also noticed in this regard that when an earlier writ petition was filed, the then Joint Collector in WP No.10309 of 1989 filed a counter while disputing the allegations made in para 2 of the affidavit slated that Jagirdar Mirza Maqsood Ahmed Khan migrated to Pakistan and his land declared as Evacuee property. This gave boost to the contention of the petilioners that he was Jagirdar and he was not a pattedar. As seen from various counters filed by the respondents in writ petitions and also the averments made by the petitioners from time to time, it appears that both the parties tried to make situalionally tailor made pleadings groaping in dark. But, at this distant of time, this Court feels that it is a futile exercise to again to go to the root of the matter which prevailed in 1951 and upset the entire thing. Even the respondents with great difficulty secured this notification, which was filed in September, 2000. Prior to that, their contention all through was that such notification was not traceable and in fact all the proceedings were initiated as if the lands were Evacuee properties. Therefore, to direct an enquiry as to whether there was a valid notification would be an exercise in futility at this juncture as the same situation would occur even if such a direction is issued as none of the records are available with any of the office. Under those

circumstances, keeping in view of the respective impressions gained by the petitioner as well as the respondents authorities, it has to be held that the properties held by Mirza Maqsood Ahmed Khan were declare as Evacuee properties by notification dated 30-7-1951. The 1st respondent only came to the conclusion that it is a Evacuee property on the ground that the petitioners never disputed that it was the Evacuee property. But, that is not the requirement of the law. Before any proceedings are initiated under the E.P. Act, it has to necessarily satisfy itself whether there is valid notification in the record and whether they vested with the Custodian under the E.P. Act. But, be that as it may, since this Court keeping in view the facts and circumstances find that the properties of Mirza Maqsood Ahmed Khan vested in Government by virtue of the notification under Section 7, no further findings is necessary on this aspect.

21. With regard to the competency of the 1st respondent to initiate action under Section 8(4) of E.P. Act and then pass an Order under Section 19 of D.P. Act, the 1st respondent has observed that the notification was issued under Section 12 of the D.P. Act on 28-7-1988 by which all the Evacuee properties in Andhra Pradesh were acquired by Central Government and by that time, the proceedings were already initiated under the provisions of the E.P. Act. Hence, it was stated that the Order passed under Section 19 are valid. This reasoning apparently not sustainable in law, the D.P. Act entered force with effect from 9-10-1954. It is an Act, to provide compensation and rehabilitation of the grants to the displaced persons and the matters connected therewith. Under Section 12, the Central Government is empowered to acquire any Evacuee property for public purpose including the purpose connected with the relief and rehabilitation of the displaced persons by

issuing a notification. Under sub-section (4), the Evacuee property, who acquired under Section 12(1), it shall form part of the compensation pool. Section 12 reads thus:

"12. Power to acquire evacuee properly for rehabilitation of displaced persons :--

(1) If the Central Government is of opinion that it is necessary to acquire any Evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including "payment of compensation to such persons, the Central Government may at any time acquire such Evacuee property by publishing in the official Gazette a notification to the effect that the Central Government has decided to acquire such Evacuee property in pursuance of this see.

(2) On the publication of a notification under sub-section (1), the right, title and interest of any Evacuee in the Evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the Evacuee property shall vest absolutely in the Central Government free from all encumbrances.

(3) It shall be lawful for the Central Government, if it so considers necessary, to issue from time to time the notification referred to in sub-section (1) in respect of,--

(a) all Evacuee property generally; or

(b) any class of Evacuee property; or

(c) all Evacuee property situated in a specified area; or

(d) any particular Evacuee property.

(4) all Evacuee property acquired under this Section shall form part of the compensation pool."

Compensation pool was defined under Section 2(a) as compensation pool constituted under Section 14. Section 14 is extracted below:

"14. Compensation pool :--(1) For the purpose of payment of compensation and rehabilitation grants to displaced persons, there shall be constituted a compensation pool which shall consist of-

(a) all Evacuee property acquired under Section 12, including the sale proceeds of any such property shall all profits and income accruing from such property;

(b) such cash, balances lying with the Custodian as may, by Order of the Central Government, be transferred to the compensation pool;

(c) such contributions, in any form whatsoever, as may be made to the compensation pool by the Central Government or any State Government;

(d) such other assets as may be prescribed.

(2) The compensation pool shall vest in the Central Government free from all encumbrances and shall be utilised in accordance with the provisions of this Act and the rules made thereunder."

Thus, the compensation pool consists of all the Evacuee property acquired under Section 12 including the sale of such property etc., under Section 20, powers are vested with the Settlement Commissioner for the sale of the property to a displaced person or any association of displaced persons or to any other persons, whether the property sold in a public auction or otherwise. Section 20 is extracted below:

"20. Power to transfer property out of the compensation pool:--(1) Subject to any rules that may be made under this Act, the managing officer or managing Corporation may transfer any property out of the compensation pool-

(a) by sale of such property to a displaced person or any association of displaced persons whether incorporated or not, or to any other person, whether the property is sold by public auction or otherwise;

(b) by lease, of any such property to a displaced person or an association of displaced persons, whether incorporated or not, or to any other person;

(c) by allotment of any such properly to a displaced person or an association of displaced persons whether incorporated or not, or to any other person, on such valuation as the Settlement Commissioner may determine;

(d) in the case of a share of an Evacuee in a company, by transfer of such share to a displaced person or any association of displaced persons, whether incorporated or not, or to any other person, notwithstanding anything to the contrary contained in the Indian Companies Act, 1913 or in the memorandum of articles of association of such company;

(e) in such other manner as may be prescribed.

(1-A) For the purpose of transferring any property out of the compensation pool under sub-section (1), it shall be lawful for the managing office or the managing Corporation to transfer the same to the displaced person jointly with any other person or an association of displaced persons or otherwise.

(2) Every managing officer or managing Corporation selling any immovable property by public auction under subsection (1) shall be deemed to be a Revenue Officer within the meaning of sub-section (4) of Section 89 of the Indian Registration Act, 1908.

(3) Where the ownership of any property has passed to the buyer before the payment of the whole of the purchase money, the amount of the purchase money or any part thereof remaining unpaid and any interest on such amount or part shall, notwithstanding anything to the contrary contained in any other law, be a first charge upon the property in the hands of the buyer or any transferee from such buyer and may, on a certificate issued by the Chief Settlement Commissioner, be recovered in the same manner as an arrear of land revenue."

From a reading of the above provision, it is apparent that it is competent for the managing Officer to direct the sale of the Evacuee property either to displaced persons or association of such persons or any other persons. It is also open for him to direct the sale by a public auction or otherwise. Therefore, when once the notification is issued under Section 12 acquiring the Evacuee property, the provisions of E.P. Act would not be available any further and the property so acquired is required to be deal with under the provisions of the D.P. Act only and in fact in the counter, it has been clearly stated that the property of the Evacuee Mirza Maqsood Ahmed Khan formed part of the common pool. There is no reference to common pool in the E.P. Act and such reference has to be only made with reference to the D.P. Act in view of the provisions as extracted above. Even though, it is stated that the Government of India issued notification under Section 12 of D.P. Act dated 27-8-1988, no material is

forthcoming from the respondents. Obviously that is incorrect as is evident from the records that Sanads were granted to the three displaced persons viz., Smt. Rodha Bai, Thailmel, and Dhamemmal Anishmimal. Grants was made only after the land was brought into common pool. Even in the Sanad Orders filed by the respondents which are dated 14-11-1956 transferring the property in lieu of compensation payable to them under the D.P. Act it was clearly, stated that the Government of India in notification dated 18-1-1955, issued under Section 12 of the D.P. Act acquired the Evacuee property described in the schedule to the Sanad. Thus, it is clear that the Evacuee lands of Maqsood Ahmed Khan were acquired by Centra! Government by virtue of the notification under Section 12 of D.P. Act in 1955 itself and out of the said lands Sanads were granted to three displaced persons referred to above and Sanads were issued in their favour by an Order dated: 14-1-1956 under the provisions of D.P. Act. Therefore, from the date of the declaration under Section 12, the property formed part of the common pool and the action has to be initiated under the provisions of D.P. Act. The reasoning given by the 1st respondent that the notices were issued prior to 21-7-1988 under E.P. Act was justified as the lands did not form part of common pool under the D.P. Act was obviously incorrect as can be seen from the Sanad granted to the displaced persons; the lands which were transferred to the displaced persons in lieu of the compensation were acquired by notification under Section 12 in 1955 itself. But, even assuming that such a notification was issued on 27-8-1988, even then no proceedings could have been initiated under Section 8(3). Obviously 5 notices were issued for the first time to the petitioner in 1989, which was challenged in writ petition and thereafter fresh notices were issued. The petitioner filed Writ Petition No.9224 of 1988 not against the notices issued by the

Respondents under Section 8(3), but against proceedings initiated by the Collector under Section 143 Cr.PC. The initiation of the proceedings under Section 143 of Criminal Procedure Code was not for eviction and therefore, even the proceedings initiated in the notices dated: 12-7-1989, is subsequent to the notification issued under Section 12. Therefore, the very notices issued by the 1st respondent would not conform to the requirement of the law, as by the date of such notification, the lands formed part of the common pool and some of the lands were also transferred to the displaced persons. But, however, the enquiry was conducted by the 1st respondent and final Orders were passed under Section 19 of the D.P. Act. Even though, initiation is not according to the law, but, yet, the fact remains that the enquiry was conducted, an order was passed under Section 19 of the D.P. Act which is impugned in this Writ Petition. This Court is of the opinion that, it would not be fair to set aside the notices on this ground. It is to be noted that the notices were specifically issued in Form No.3 under Rule 6(1) of E.P. Rules, but, yet, as already observed by this Court that the Respondents were not in position to decide as to under which Act the matter has to be proceeded with. Further, when once the notification under Section 12 of D.P. Act is issued, the Evacuee properly which hither to vested in the Custodian shall vest in Central Government and form part of compensation pool. It is to be noted under E.P. Act, the authorities were designed as Deputy Custodian, Custodian and Custodian General etc. While in D.P. Act the authorities were designed as Managing Officers, Settlement Officers and Chief Settlement Officers etc. As can be seen from the records available in the files of the respondent, the matters were dealt with under the Designation of the Settlement Commissioner and even the Sanad was granted by the Regional Settlement Commissioner under the D.P. Act. Therefore, the proceedings were dealt with

under the D.P. Act only and not E.P. Act. it is true that the notices were issued under the E.P. Act, but the fact remains that E.P. Act was no more applicable after Section 12 notification under the D.P. Act was issued. The authorities were under confused state of affairs on this issue as the officers of State dealing with the matters arising under E.P. Act and D.P. Act are one and the same. Hence, wrong quoting of the provisions of E.P. Act under the peculiar facts of this case cannot vitiate the enquiry under Section 19 of the D.P. Act. Therefore, I hold that the proceedings must be deemed to have been initiated under D.P. Act.

22. The next crucial and most important question is whether the petitioners acquired the ownership of the lands in question?

23. The learned Counsel for the petitioner submits that even according to the case of the respondents that an extent of Ac.1,407-18 gts. stood as patta in the name of Mirza Maqsood Ahmed Khan situated at Malkapur village in various survey numbers and the said property was declared as Evacuee property, later on the following extents were allotted to the displaced persons:

Sl. No.

Name

Extent Ac.Gts.

Allotment No.

1.

Smt. Radha Bai

143-18

NAL/55

2.

Tahilmel

260-12

NAL/47

3.

Dhamanmal Anishmimal

197-21

NAL/42

4.

Unallotted land

806-07

    Total

1,407-18

 

It is now accepted by the 1st respondent that the land allotted to Dhamanmal Anishmimal was purchased by the Society under a registered sale deed in 1965 and therefore, it was excluded from the surrender

proceedings. With regard to the unallotted land, it is the case of the petitioner society that the land was being cultivated by the members of the petitioner society for the last several decades and that a decision was taken by the Settlement Commissioner to sell the unallotted Evacuee property lands at Malkapur village. Initially, a decision was taken to sell the land itself, but, however, the decision was not communicated and the Society was granted lease of the land from time to time. Even as per the respondents counter, lease was granted in 1953, 1954 and 1969. In the material papers filed by the Respondents, in the letter of Custodian of Evacuee property dated: 1-8-1953 it was stated that it was decided to give these lands to the petitioner co-operative society on lease pending consideration of the proposal regarding the sale. The following is the extract of letter dated 1-8-1953 of the Custodian, Evacuee property, Hyderabad addressed to Deputy Custodian and Collector, Nalgonda:

"I enclosed a copy of the Order passed by the Minister for rehabilitation on 3rd July, 1953 in the Batasingaram and Malkapur Evacuee property case. It has been finally decided to give these lands to the Compensation-operative Society on lease. The question of sale of these properties is being separately taken up with the Government of India. These lands will be given to the Society on the basis of twice the yearly land revenue demand of the lands being paid by the Society in advance to the Department of the Custodian as lease money.

You are requested kindly to take action accordingly.

Yours faithfully

Sd/-

Additional Custodian

Copy to the Secretary, Malkapur Cooperative Tenant Farming Society, Vinayakrao Building, Mozamjahi Market, Hyderabad Decision, For information".

24. The learned Counsel also submits that from various letters and correspondence it is established that there was valid sale and the Society acquired the ownership of the land of an extent of Ac.432-32 gts., out of unallotted land. He refers to various communications in this regard. The learned Advocate-General, however, argues with firmness that there was no sale at all and the documents relied on by the petitioner society could not acted upon.

25. As can be seen from the above letter dated 1-8-1953, there were proposals for sale of the land to the petitioner society and they were pending with the Central Government. Buy pending consideration, a decision was taken to lease out the lands and in fact as can be seen from various records produced before this Court, the Society has been cultivating the land either under tease or otherwise. From the letter of the Tahsildar, Ramannapet, daied 6-10-1955, it is seen that the lands of Mirza Maqsood Ahmed Khan were allotted to displaced persons in Regional Settlement Commissioner Order Nos.42, 43, 47 and 55 out of the above allottees only No.42 turned up and others did not take possession of the land. Holder of No.42 was none-else-than Dhamanmal Anishmimal, who subsequently, sold that the land to the Society under a registered sale deed. But, however, in respect of the other lands, they were leased out in favour of the Society from 1953 on one year koul basis. It is also stated in the said letter that prior to lease of the land to the co-operative society they were leased out to Iqbal Singh and Share Singh in 1950 to 1952. For the years 1953-54, they were leased out to co-operative Society. In 1954-55, lands were allotted to displaced persons. Since, the allottees did

not turn up, they were given on temporary lease to the Society and they continued to cultivate the land even after the expiry of the lease in the absence of the instructions. As can be seen from the letter of the Collector, Naglonda dated 21-11-1953, lease deed was executed in favour of the petitioner Society in respect of the lands measuring Ac.1,367-14 gts. for the year 1953-54. On 7-6-1954, allotment Orders were issued to the displaced persons were cancelled by the Regional Settlement Officer, Bombay. But, however, the said cancellation was revoked by Order dated 3-8-1954. It is seen from various letters from the file produced by the respondents, the lands transferred to the two displaced persons namely Radha Bai and Tahilmell were continued to be in possession of the Society as the records reveal that they did not take the possession and it is also to be noted that no cancellation Order was passed by the Settlement Commissioner. The District Collector, Nalgonda in his letter dated 21-6-1960 directed the Tahsildar, Ramannapet while enclosing a copy of the Settlement Commissioner, Bombay to auction all the unsold, undisputed rural acquired Evacuee properties by a public auction. The said enclosed letter issued by the Regional Settlement Commissioner, Bombay, in Reference No.3127795-95, reads as follows:

"It has been brought to the notice of this office that there are still a large number of acquired rural Evacuee properties still unsold in your District.

In this connection, it is stated that the Ministry of Rehabilitation has desired that all the remaining unsold rural properties should be disposed of before 15-6-1960 and a report submitted. You are therefore, requested to take personal interest in this matter to issue immediate instructions to the concerned Mamlatdars/ Tahsildars to auction all

the remaining unsold undisputed rural acquired Evacuee properties by public auction. The auction may be conducted after 14 days from the date of giving vide legal publicity by beat of drum etc. and the auctions may be supervised directly by the Mamlatdars/Tahsildars or any other responsible Gazetted Officer after getting these properties evaluated by revenue authorities or panchas. Immediately after the auctions, the report along with other connected records may be forwarded to this office.

This may please be given top priority and it may be ensured that immediate instructions are issued to the Mamlatdars/ Tahsildars to take necessary action in the matter under intimation to this office. On hearing from you, necessary instructions and connected papers and forms will be forwarded to Mamlatdars/ Tahsildars concerned".

Accordingly, notices were issued by the Tahsildar and other authorities for sale of unsold Evacuee property of the Mirza Maqsood Ahmed Khan having an extent of Ac.769-19 gts. in S.Nos.87 to 110, 112, 172, 173 and 179. The date was fixed 22-7-1960. At this point of time, the Society made an application on 14-7-1960 to stay the proceedings and requested the authorities to allot the lands after fixing the fair price. The said petition which finds place in File No.B1/4305/60, is extracted below:

"In the Office of the Tahsildar (Asst. Custodian), Ramannapet Taluka, Dist. Nalgonda, File No.4305/60/B1.

Sale of S.Nos. 87-89-90 to 110-112-272-273, 279 situate at Malkapur of Maqsood Ahmed Khan's Evacuee property.

Petition of Co-operative Tenant's Farming

Society Registered

Petitioners above named submit as follows :

1. That the Co-operative Society above-named is functioning from 1951 at Malkapur. Maqsood Ahmed Khan was pattedar of above survey numbers but as he went away to Pakistan these lands were declared Evacuee property and were taken into custody of this Honourable Office.

2. Petitioner filed an application stating that, these lands may be allotted to these petitioners after fixation of fair prices but anyhow this was not sanctioned by the Government. But, however, the Custodian of Evacuee property agreed to allot these lands on "Qoul". Accordingly, these petitioners are tilling these lands from 1953 and are paying Qoul money to the tune of Rs. 1,497-8-0 including land revenue.

3. It may please be noted that these lands were only kancha lands and was never cultivated by Maqsood Ahmed Khan, as he was a Contractor in Military Department to supply grass and as such he was interested in grass only.

4. When in 1953 these lands were given to us on lease, we, after spending an amount of about Rs.5,000/- made the lands (about 400 acres) cultivable, and are cultivating the same. At present crops of Jawar and Bajra are standing.

5. These lands are given on patta by the Custodian in 1955 to some refugees who were residing at that time at Bombay but they never took possession and never cultivated till now. We are the qouldars of Custodian Department and are paying the money in the Government Treasury yearly.

6. Now it is notified that these lands will be sanctioned as per notification

dated 3-7-1960. We bring to the kind notice of this office, that from 7 years we are cultivating the lands and this Society is a Farming Society. As per policy of Tenancy Act tillers are given preference to purchase the lands. If these lands are put to open auction, this Society will be put to loss. This Society is ready to pay the price as per above said Act.

Therefore we pray

that it is just and necessary that these lands are allotted to us after fixing the fair price, and open auction is dropped; OR any other suitable Order is passed. Dated 14-7-1960 Petitioners

Sd/-

Secretary,

Co-operative Farming Society

Limited, Malkapur".

To that letter, reply was issued by the Tahasildar, Ramannapet in Memo No.B1/ 4305/60, dated: 15-7-1960 stating that the claim has to be settled by the appropriate authorities and they have to approach the concerned authorities to settle the claim. The representation discloses that the land was never cultivated by the Evacuee and that the members of the petitioner society themselves are cultivating the land and developed the land to the extent of Ac.400-00 gts. and made the land cultivable. The members have been tilling the land and they have a preferential right to purchase the land. Thereupon, direction was issued by the Collector on 21-7-1960 stating that the matter has been referred to Regional Settlement Commissioner, Bombay for clarification, and in the meanwhile, the Tahsildar was directed not to proceed with the auction pending further instructions. On 15-7-1960, the Collector, Nalgonda again directed the Tahsildar to sell the undisputed rural Evacuee properties by public auction

and to send the report by 25-7-1960 which was replied stating that there was only one case was pending and the auction was postponed on the directions of the Collector dated: 21-7-1960. It appears that originally, one Mr. Kishanchand P. Meer Chandani filed an application for allotment of the land to the extent of Ac.789-I9 gts. situated in S.Nos.87, 89 to 110, 112, 172, 173 and 179. Further, it is revealed that he did not take possession and subsequently, allotment Order was revoked, even though it is restored back he did not take possession and the cancellation became final. To that effect, Orders were issued by the Regional Settlement Commissioner dated 1st December, 1958. The aforesaid land was slated for auction on which the Society made representation dated 14-7-1960. However, from the file, it is seen that out of Ac.789-19 gts. an extent of Ac.337-00 from S.No.89 was sought to be transferred to the Forest Department, but no final orders have been passed. On this, the objection was raised by the Society through representation dated: 13-9-1965 not to transfer this land also as the land was already sold to the Society on payment of sate consideration @ Rs.40/- per acre as fixed by the Commissioner and the sale certificate was awaited. In the D.O. Letter dated 26-6-1965, the Tahsitdar, Ramnnapet he furnished the details of S.No.89 measuring Ac.337-17 gts. It was stated that it is a hillock and it is not even useful for Kancha. Out of this, 90 acres was being used as kancha and cattle cannot go through for grazing. The co-operative society is in possession of the Survey Numbers and has been paying the land revenue as it has been leased out to them. The present market value of the land was about Rs.25/- per acre and the land did not fall within the municipal limits. The Tahsildar, Ramannapet in his letter dated 25-2-1996 has reported that the land measuring Ac.432-32 gts. was sold to the co-operative society @ Rs.40/-per acre and the Society has credited the

entire amount due from the Society and requested the Collector to issue sale certificate. The District Revenue Officer in his letter dated: 28-3-1968 addressed to the Regional Settlement Officer informed that he would send a detailed report regarding whether the lands were sold. It is also mentioned that though rate was recommended @ Rs.25/- per acre, the Society offered Rs.40/- per acre. That was also intimated through letter to the Regional Settlement Officer. Therefore, what was referred to by the Regional Settlement Officer was with regard to S.No.89 having an extent of Ac.313-00 out of Ac.769-19 gts. It is not the case of the Society it purchased this land also.

26. The letter of Tahsildar dated 22-4-1961, the Society was directed to pay the balance of Rs.4,872/- on or before 29-4-1961 failing which the lands would be put to auction. The letter reads thus:

"Memo No.B1-43 05/61 D.22-4-1961.

Sub:- Evacuee property-dispose of unallotted evacuee lands - in this Taluk -situated at Malkapur village - belonging to Maqsood Ahmed Khan - report called for.

Your are therefore, directed to credit the balance amount of Rs.4,872/- on or before 29-4-1961 failing which the lands will be put to auction.

Return the duplicate copy duly signed.

Sd/- Tahsildar. Sd/- for Tahsildar.

To

Sri V. Sheshaiah, Co-operative Fanning Society, Malkapur".

Thereafter, we find the copies of five challans including the challan for Rs.4,872/-. At page 518, the map of entire Evacuee property of Maqsood Ali Khan was prepared duly

signed by Mandal Revenue Officer. In the said map, the land sold to the Society viz. Ac.432-32 gts. was clearly shown in red colour. This map reveals the entire break up of Ac.1,407-18 gts. of Evacuee property at Malkapur.

27. From the letter of Tahsildar, Ramannapet, addressed to the Regional Settlement Officer dated 5-9-1961, it is seen that the Regional Settlement Commissioner, Bombay in his Order dated 18-11-1960 addressed to the Collector and the Deputy Custodian directed to dispose of lands either to the tenants on market value or by conducting auction. In pursuance of this, he has notified to the members of the petitioner society to credit @ Rs.40/- per acre. Accordingly, entire sale consideration of Rs. 17,312/- was paid. Therefore, he requested despatch of sale certificate. The said letter dated 5-9-1961 is extracted below:

From :

Sri D. Sreenivas Rao, B.A. L.L.B,

Tahsildar, Ramannapet,

Nalgonda District,

Andhra Pradesh

To

The Regional Settlement Commissioner,

Bombay, Government of India,

Ministry of Rehabilitation,

Office of the Regional Settlement Commissioner,

Contractor Bldg., Nicol Road,

Ballard Estate, Bombay-1.

Encl.( ) No.BI.4306/60

dated the 5th September, 1961.

Sir,

Sub:--Disposal of under sub-section-allotted Evacuee Agricultural Lands-pertaining to M.M. Ahmed Khan (Sri) situated at Malkapur village, Ramannapet - Tq. Nalgonda - District. Requested for sale certificate.

Ref:--

1. Your Lr.No.73098-145/60, dated 18-11-1960 addressed to the Collector and Dy. Custodian, Andhra Pradesh.

2. Collectorate Memo No.A6-10084/80, dated 12-1-1961.

3. Collectorate Memo No.A6/10084/80, dated 3-7-1961.

With reference to the above, I am to state that the agricultural lands of Sri Mirza Maqsood Ahmed Khan an Evacuee are situated in one Malkapur village, Ramannapet Taluk, Nalgonda district. One co-operative Farming Society was in possession of these lands since long and the Society leased the lands to its 47 members. As per the Orders contained in reference I from the Regional Settlement Commissioner, Bombay, I have been directed by the Collector and the Dy. Custodian Nalgonda to dispose of the lands either to the tenants on market value or by conducting auction.

In pursuance of this direction I had notified to the tenants of the Co-operative Farming Society Malkapur to credit the cost of the lands in their possession at the rate of Rs.40/- (forty only) per acre as determined by the Collector, Nalgonda.

In response to this notification the Secretary of the Society Sri V. Seshaiah, while crediting an amount of Rs.6,500/- submitted petition on 15-2-1961 stating that he would credit the balance within a fortnight or so. The said Secretary had later credited the total cost in instalments and all the credit particulars are furnished below:

"1. Chalian No.112 dated 15-2-1961 Rs.6,500/-

2. Challan No. 119 dated 17-2-1961 Rs.2,900/-

3. Challan No.420 dated 15-4-1961 Rs.3,000/-

4. Challan No.166, dated 29-4-1961 Rs.4,872/-

5. Challan No.174 dated 2-8-1961      Rs. 40/-

Total Rs.17,312/-

A copy of the petition submitted by him on 15-2-1961 and an Order of the Collector and Dy. Custodian, Nalgonda dated: 12-1-1961 in regard to the market value of the land and the original credit particulars are sent herewith for issuing a sale certificate in favour of the Co-operative Farming Society. A list of the members of the Society who have credited the amounts and went title in the name of the Society is also furnished herewith. The Society requests a sale certificate in its name, mentioning its members indicated in the list and its subscribers.

Kindly arrange to send the sale certificate as early as possible.

Tahsildar.

Copy to the District Collector, Nalgonda with reference to his memo IIIrd cited for favour of information.

Copy to the Revenue Divisional Officer, Bhongir with reference to his reminder No.II file No.210/61/A3, dated 25-7-1961 for favour of information.

N.B.

The particulars of land under sale are given below:

1. 26 S.Nos. Measuring 432-32 Guntas (S.Nos. 87, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105,     106, 107, 108, 109, 110, 112, 272, 273, 279,) (all dry lands) Assessment No.326-45.

2. Total cost of the land is Rs. 17,312/-at the rate of Rs.40/- (forty) per acre.

3. S.No. wise particulars were also furnished through this office reference No.

Sd/- Tahsildar".

28. The Tahsildar by letter No.25-2-1966 addressed to the Collector, Nalgonda requested for sale certificate. The said letter reads thus:

"Copy of the letter No.A3/401/65, dated 25-2-1966 from Tahsildar, Ramannapet. Addressed to District Collector, Nalgonda.

Sub :--E.P. Issuing a sate certificate in respect of lands S.Nos. 87s 90, to 110, 112, 272, 273, 270 of Evacuee Maqsood Ahmed Khan in favour of the tenants Co-operative Farming Society, Malkapur village, Ramannapet taluka, Nalgonda District regarding.

Ref:--Collectorate Letter No.C1 /18433/ 65, dated 21-1-1966.

I submit that the evacuee land measuring an extent of 432-32 acres was sold to the Co-operative Farming Society Malkapur @ Rs.40-00 per acre and the Society has credited the entire amount due from the Society i.e., Rs.17,312-00.

Hence, I submit that a sale certificate may be issued to the Co-operative Farming Society in respect of lands bearings Nos.87, 89, 90 to 110, 112, 272, 273, 279 of evacuee Shri Maqsood Ahmed Khan.

Sd/-

Tahsildar,

Ramannapet".

29. Since there was no response, the Society on 13-9-1965 issued a letter to the District Collector, Nalgonda for sending the sale certificate.

30. Even in the letter of Joint Custodian, Nalgonda, letter to the Custodian in Ref.No.31/13070/89, dated 12-7-1989, the lands sold and amount was remitted. However, Sale certificate was not issued.

The following is the relevant extract:

"From:

Smt. Nilam Sawhney, I.A.S.,

Dy. Custodian of Evacuee Property

and Joint Collector, Nalgonda.

To

The Custodian of Evacuee Property and Secretary to Commissioner, Survey Settlement and Land Records, Andhra Pradesh, Hyderabad. Lr.No.B1/13070/89, Dated 12-7-1989.

Sir,

Sub :--Evacuee Property - Malkapur village - Choutuppal Mandal, Nalgonda District - Purchase of Evacuee Property lands of Ac.432-32 guntas by tenat Farming Co-operative Society, Malkapur on Market value - certain clarification sought for - Regarding.

.....

I am to state that an extent of Ac.806-07 guntas which was unallotted to anybody and same stands in the name of original Evacuee Sri Maqsood Ahmed Khan. The tenant Farming Co-operative Society said to have purchased an extent of Ac.432-32 guntas on market value fixed by the then Tahsildar, Ramannapet. It is evident from the disposal number B1/4305/60 of the Tahsildar, Ramannapet that as per the Orders contained in Ref.No.73098-145/60, dated 18-11-1960 of the Regional Settlement Commissioner, Bombay, the then Tahsildar, Ramannapet has disposed the lands in S.Nos.87, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 112, 272, 273, and 279 covering an extent of Ac.432-32 guntas for Rs.17,312/- on market value @ Rs.40/- per Acre which was subsequently credited by the Society and proposals were submitted by the then

Tahsildar through his Lr.No.B1/4305/60, dated 5-9-1961 directly to the Regional Settlement Commissioner, Bombay for issue of sale certificate. But no sale certificate is issued to the Society. Further action taken by the Regional Settlement Commissioner is to be verified from the tile of Commissioner, Survey Settlement and Land Records, Andhra Pradesh, Hyderabad".

31. That as far as Ac.197-21 gts. are concerned, which was allotted to one of the displaced persons which was purchased by the Society, and hence there is no dispute. With regard to the Ac.432-32 gts., it is submitted that it was purchased for Rs.17,312/- and also deposited the amount in the Government Treasury. It is also their case that the copies of the Treasury challans were produced before the 1st respondent and he did not pursue the same for the reasons best known to him. The learned senior Counsel also produced the original challans before this Court. They have been verified and the following particulars are found:

S.No.

Details of Challan

Amount

1.

Challan No.112, dated 15-2-1961

Rs.6,500/-

2.

Challan No. 119, dated 17-2-1961

Rs.2,900/-

3.

Challan No.420, dated 15-4-1961

Rs. 3,000/-

4.

Challan No.166, dated 29-4-1961

Rs. 4,872/-

5.

Challan No.174, dated 2-8-1961

Rs. 40/-

  Total

Rs. 17,312/-

The Tahsildar, Ramannapet has admitted that the money has been deposited in pursuance of the directions issued to the co-operative society to deposit the amount in respect of Ac.432-32 gts. and by D.O. letter No.83/401/65 requested the Collector to issue sale certificate. From this letter, he

submits that the permission was granted by the Regional Settlement Commissioner and the sale of Ac.769-19 gts. was postponed and in respect of the Ac.432-32 gts. the petitioner deposited the amounts. Therefore, when once the sale consideration is paid in 1961 itself and the receipt of the amount has been admitted, it is deemed that the properly has been transferred and the petitioner society is deemed to have acquired the title to the properties. He submits that no confirmation is necessary, when once the sale amount is paid. He also submits that since 1961, it was being intimated that the amount has been received towards the sale consideration and the sale certificate was requested. It was neither rejected nor accepted for more than 40 years. Therefore, it has to be construed that the sale was confirmed. He relies on the decision of the Supreme Court reported in Gurbax Singh v. Financial Commissioner, 1991 Supp.(1) SCC 167 and Bishan Paul v. Mothu Ram, , to the effect that when once the sale consideration is paid, the issue of sale certificate is only a formality and it will not have the effect of divesting the interest from the Society. On the other hand, the learned Advocate-General submits that the challans are not traceable in the office and he initially submitted that there was no evidence whatsoever with the respondent that the sale was conducted and the amount was realised. It was also alternatively submitted that even assuming that sale took place and the amount was deposited by the Society, yet inasmuch as, sale certificate was not issued and the sale was not confirmed, it cannot be said that the petitioners became owners of the lands.

32. The question that calls for consideration is whether there was a direction to sell the land to the Society on a reasonable rate and whether the lands in fact were sold?

33. As already observed, an extent of Ac.769-19 gts. which was unallotted land,

was stated for sale, but in view of the application made by the petitioner-society on 14-7-1960, the sale was postponed and negotiations took place for selling the same by fixing proper rate. It is not as if the Tahsildar has conducted the sale without keeping the authorities informed. As can be seen from the files the Regional Settlement Commissioner has addressed a letter on 18-11-1960 to the Collector to sell the land and in turn in the Collector issued Memos on 12-1-1961 and on 3-7-1961 to the Tahsildar to sell the lands. The 1st respondent rejected the claim for Appellate Court (sic) 432-32 gts. on the ground that the Society did not produce the certified copies and the challans are not available with the Mandal Revenue Officer or other authorities. But, as can be seen from the files of the Department itself and the correspondence from 1953 to 1989 coupled with the availability of the copies of the challans and the demarcation plan prepared by the Mandal Revenue Officer, it is evident that public auction of the lands did not take place, but the sale price as fixed was deposited through challans and the sale certificate was awaited. It is now well settled that when the authorities failed to consider the relevant documents or consider documents which are not relevant and appropriate or come to a conclusion which no person of ordinary prudence would arrive at such a conclusion on the basis of available material, the findings of such authority would be perverse and liable for interference by this Court under Article 226 of Constitution of India. In this case, I find that the 1st respondent did not advert to any of the Correspondence available with him and thus rendered perverse finding that the sale had not taken place as the Society did not produce the challans. Hence, I find that the sale was not established is illegal and unsustainable and it is accordingly, set aside. Obviously, realising the situation, the respondents raised an alternative plea in subsequent counters stating that even

assuming sale has taken place, yet, it was not complete, inasmuch as, sale certificate was not issued and confirmation of sale was not given.

34. Therefore, the next question that calls for consideration is whether the interest in the property was passed on to the petitioner society in the absence of issue of sale certificate or confirmation.

35. The produce for sale of the common pool is prescribed under Rule 90 and 91 of D.P. Rules. Under Rule 90, notice of intended sale shall be given 15 days before the proposed sale prescribing the property to be sold its location and its boundaries. It shall also be affixed on the conspicuous spots of the property. When the purchase money has been realised full from the auction purchaser, the managing officer shall issue sale certificate. Rule 92 relates to set aside the sale. The Supreme Court in Bishan Paul's case (supra), referring to Section 20 and relevant rules observed as follows: "(6) The property belonged to the compensation pool and was transferred under the provisions of Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954). The procedure for sale of property in the compensation pool is laid down in Chapter XIV of Displaced Persons (Compensation and Rehabilitation) Rules, 1955. The Chapter is self-contained and deals with the mode of sale of property; persons who may bid at sales; persons not eligible to purchase; the procedure for sale of property by auction; and the procedure for setting aside the sale. Unfortunately, the Rules do not indicate clearly the point of time from which the title of the auction-purchaser is to commence as is done by Section 65 of the Code of Civil Procedure. Neither side claims to apply the provisions of the Transfer of Property Act and the case was argued on

the basis of the Rules to determine the time from which title can be said to commence. Before we consider the argument and also refer to certain rulings in which these Rules have been considered, we may set out the material rules...."

The Supreme Court observed as follows:

"The passing of title thus presupposes the payment of price in full and the question is at what stage this takes place. Obviously, there are several distinct stages in the sale of property. These are: (a) the fall of the hammer and the declaration of the highest bid; (b) the approval of the highest bid by the Settlement Commissioner or officer appointed by him; (c) payment of the full price after approval of the highest bid; (d) grant of certificate; and (e) registration of the certificate.

It seems to us that the matter must be considered on general principles. In this case, the highest bid was of the respondent and he paid the full price before the sale in his favour was confirmed. The sale certificate, though issued later, mentioned the date of the confirmation of the Sale in his favour. The tenant was asked to attorn to the purchaser from the date of confirmation of sale and thus possession was also delivered on that day. Title, therefore, was not in abeyance till the certificate was issued but passed on the confirmation of sale. The intention behind the rules appears to be that title shall pass when the full price is realised and this is now clear from the new form of the certificate reproduced in Jaimal's case, 66 Pun. I.R. 99 (AIR 1964 Punj.99). No doubt till the price is paid in full there is no claim to the property, but it seems somewhat strange that a person who has paid the price in full and in whose favour the sale is also confirmed and

who is placed in possession should only acquire title to the property from the date on which a certificate is issued to him. There may conceivably be a great deal of time spent before the certificate is granted. In this case, the tenant was told to attorn from October 3, 1956 because nothing remained to be done except the ministerial acts of issuing the certificate and getting it registered. Therefore, so far as title was concerned, it must be deemed to have passed and the certificate must relate back to the date when the sale became absolute."

In Gurbax Singh's case (supra), the Supreme Court interpreting Rules 90(15) and 92 observed as follows : "There are distinct stages in the auction sale of property in the compensation pool namely, (1) the fall of the hammer and the declaration of the highest bid, (2) the approval of the highest bid by the Settlement Commissioner or officer appointed by him, (3) payment of the full price after this approval, (4) grant of certificate, and (5) registration of the certificate. That is the intention behind the Rules. The new form of the sale certificate requires a mention that the purchaser had been declared the purchaser of the said property with effect from the certificate date. The title, however, would not be in abeyance till the certificate was issued, but would be based on the confirmation of the sale. The intention behind the Rules appears to be that title shall pass when the full price is realised and this is now clear from the new form of the certificate, and title must be deemed to have passed and the certificate must relate back to the date when the sale became absolute. The Appellant, therefore, must be held to have obtained title to the land on the date of confirmation of the sale."

In this regard, it is to be noted that under Section 20, it is open for the managing officer to dispose of the acquired property from the common pool either by public sale or otherwise. The cases decided by the Supreme Court related to cases of public auction. But, in the instant case, public sale has not taken place at the instance of the Society even though sale notification was issued, and the sale was postponed and the directions were issued to sell the same otherwise than by way of public auction. Therefore, the question that would fall for consideration is whether in such a case, non-issue of sale certificate, can be said that the petitioner did not obtain the title to the land. It is true, in this case, the sale certificate was not issued, but it is not in dispute that the entire amounts were already paid as early as in 1961. The land was sold to the Society on the directions of the competent authority. In such a situation, the release of sale certificate which are withheld for the reasons best known to the authorities is only a mere formality. More over, in the wake of the fact that there was no Order cancelling the sale, it cannot be said that the petitioners did not acquire the title to the property. It is also not the case whether the amount was not paid on the other hand the entire amount as determined by the authorities was already paid and the original challans were produced before this Court. Thus, I find that there was a valid sale in favour of the Society for an extent of Ac.432-32 gts. and the consequently the title deemed to have been passed on to the petitioner Society on payment of sale amount.

36. Coming to the remaining land, the learned Counsel for the petitioner submits that five notices were issued representing five pieces of lands seeking surrender. Earlier notices were issued in 1989 and similarly, notices were issued in 1997. They were issued in respect of five bits of land. The details of the notices are as follows:

Notice date

S.Nos.

Extent

  Ac. Gts.

(a)

12-7-1989

1,

28, 41.48 to 50, 55, 61, 82 to 86

197-21

(b)

12-7-1989

87,90 to 110,112,272, 273 and 279

432-32

(c)

12-7-1989

44,

45, 89 & 111

373-15

(d)

12-7-1989

114

260-12

(e)

12-7-1989

115,123,137,141 & 267

143-18

Obviously, these notices were issued in order to deal with the properties independently. As already noticed, notice (a) related to Ac.197-21 gts. which was purchased by the petitioner society under a registered sale deed. Notice (b) relate to the extent of Ac.432-32 and the title in the said land is deemed to have been passed to the Society in view of the finding rendered by this Court. As far as extent of land Ac.260-12 gts. at Sl.No. (d) was concerned, it was transferred to Tahilmell by Sanad on 14-1-1956 in lieu of the compensation. Similarly, in respect of notice at (e) Ac.143-18 gts. was transferred to Radha Bai by the Regional Settlement Commissioner by Sanad on 14-11-1956 and the land covered Ac.373-15 gts. at Sl.No (c) even though it was acquired under Section 12 of D.P. Act, it was neither transferred nor sold in public auction, it continued to be an undisposed of land. Thus, as far as the lands it is open of Ac.260-12 gts. and Ac. 143-18 gts. are concerned, they stand transferred to the displaced persons and when once the transfer has taken place in favour of displaced persons, the learned Counsel submits that the authorities have no power to initiate any action under Section 19. It is for the displaced person to seek appropriate remedy before the appropriate authorities. It is the case of the Government that even though the land was allotted, the possession was not taken and therefore, it continued to vest with the Government. I am unable to accept this contention. As far as these two pieces are concerned, admittedly, they were transferred in their favour absolutely and those transfer Orders have not been cancelled so far. As can be seen from the Sanads dated 14-1-1956 was issued by the Regional Settlement Officer, Bombay. Clauses 1, 2 and 4 are extracted below:

"Sanad Form

Whereas by notification of Government of India in the Ministry of rehabilitation No.S-III 59 (5) 54-1 dated 18-1-1955 issued under Section 12 of the Displaced Person (Compensation and Rehabilitation) Act, 1954 (44 of 1954) (hereinafter referred to as the said Act), the Central Government has acquired the evacuee property described in the Schedule to this Sanad (hereinafter referred to as the said property).

2. And Whereas the said property may be transferred to Smt. Radabai W/o Choithram of Brk.No.355, Camp No.2 Kalyan, for the purpose of the compensation payable to him under the said Act.

3. x x x x

4. The President is hereby pleased to transfer the right, title and interest acquired by the Central Government in the said property to Smt. Radhabai W/o Choithram (hereinafter referred to as the transferee) subject to the following terms and conditions:- X X X X X".

Similar Sanad was also issued to Tahilmell The interest therefore to the extent mentioned in the Sanad stands transferred in their favour and in the revenue records they were recorded as pattedars and therefore, no proceedings could be initiated

by the authorities under Section 19. It is for the displaced persons to take action to evict the petitioner in accordance with law.

37. As far as the other Ac.373-15 gts. is concerned, there is no dispute that it formed part of the common pool under Section 12 of the Act and the petitioner society is in occupation and enjoyment of the land. It is an admitted case that they have been in continuous possession and enjoyment of the lands by virtue of the lease granted, the authorities are not sure whether there was any subsisting lease or lease has expired. Even though the lease has expired, still the authorities are required to take action in accordance with the provisions of the D.P. Act. It is the admitted case of Respondents that the Society is in permissive possession of land and as on today they are in possession of entire extent of lands right from 1953 onwards either under a valid lease or otherwise. Therefore, the Society cannot be termed as unauthorised occupant and evicted on that ground. Hence, I hold that the Order of surrender in respect of this land is illegal and invalid. However, the Respondents are at liberty to initiate appropriate action under D.P. Act for eviction of the petitioner society or alternatively it is open for the Respondents to allot the land by public auction or otherwise keeping in view their possession and enjoyment for over 50 years.

38. The learned Advocate-General, however, submits that the writ petition has to be dismissed in limini on the ground that virtually the petitioner Society played fraud on the authorities. At one stage, they are contending that the property belonging to a Jagirdar and they acquired protected tenancy rights and the records show that they have been cultivating the lands as tenants and at another stage they say that the properties was Evacuee property and executed lease deeds in 1953, 1954 and thereafter.

39. He relies on the decisions of the Supreme Court reported in S.P. Chengalvarayanaidu (dead) by LRs. v. Jagannath (Dead) By. LRs., , the State of Haryana v. The Kamal Distillery Company Ltd., . There is no dispute about the proposition. When a party approaches this Court with unclean hands, the discretionary remedy cannot be extended to such persons. But, in the instant case, the petitioner society is challenging the impugned proceedings of a quasi-judicial authority contending that the Order is illegal and without jurisdiction. It is not for the first time, the Society is approaching this Court for any relief. It has challenged to the impugned proceedings and writ of certiorari was sought for. Therefore, this contention would not govern the field. The matter was adjudicated before the 1st respondent and the parties were heard and aggrieved by the Order passed by the respondents, the writ petition has been filed. Therefore, the contention that there was a suppression of material facts and the petitioner society approached this Court with unclean hands are not relevant in the context of the present scenario.

40. The learned Advocate-General, however, submits that the claim of the petitioner on the ground of adverse possession also not sustainable in law as it is a permissive possession and it was not a case of assertion of adverse possession to the knowledge of true owner. He relies on the decisions of the Supreme Court reported in Atyam Veerraju v. Pechetti Venkanna, , A.S. Vidyasagar v. S, Karunanandam, 1995 Supp (4) SCC 570 and Ahmed Suleman Bhorat v. State of Gujarat, . I am not inclined to adjudicate the matter in view ot the findings already recorded by me. It is also not necessary to decide the issue relating to deemed protected tenancy, since it is now held that it is Evacuee property

and it is governed by the provisions of E.P. Act and later D.P. Act. Even though, material has been placed before this Court that they were deemed to be protected tenants as per the registers maintained by the authorities and the same was denied on the ground of no records are available and from 1954 onwards, the land were being shown in the revenue records as Evacuee property from 1954. Under these circumstances, since it is a disputed question of fact, I am not inclined to adjudicate the same.

41. In the counter it is stated that the petitioner have not availed appeal remedy under D.P. Act. But, this aspect was not argued. Be that as it may, the petitioners have challenged the very jurisdiction of authorities to initiate action under D.P. Act and more over the writ petition was admitted in 1998. Under these circumstances, it cannot be said that the writ petition was not maintainable. Hence, I have to reject the contention.

42. For the reasons stated above, the writ petition is allowed. Impugned orders are quashed. Consequently it is declared that the title of the property in respect of Ac.432-32 gts. is been deemed to have been vested with the petitioner society and hence Respondents have no jurisdiction to initiate proceedings under Section 19 of the Act.

43. The initiation of the proceedings under Section 19 in respect of the lands which were allotted to Radha Bai and Tahilmell displaced persons having an extent of Ac.143-18 gts. and Ac.260-12 gts. are illegal and incompetent and without jurisdiction.

44. In respect of the balance land of Ac.373-15 gts. it is open for the respondents to proceed against the petitioner Society in accordance with law after following the procedure as laid down under the D.P. Act

or alternatively the respondents may consider allotting the land to the petitioner society as observed by this Court in preceding paras.

45. There shall be no order as to costs.