Syed Mirza And Ors. vs Union Of India And Ors.
2008 Latest Caselaw 297 Del

JUDGMENT

S. Muralidhar, J.

1. Seven residents of House No. 1/378 (old) 661(new) Gali Nalbandan, Kashmere Gate (the Gali Nalbandan property), Delhi filed this petition on 8th February 1990 seeking inter alia a declaration that the Gali Nalbandan property is not an evacuee property under the Administration of Evacuee Property Act, 1950 (AEP Act 1950) and for quashing a demand raised by the Delhi Administration by a Memorandum dated 17th January 1990 calling the petitioners to pay the arrears of rent up to June 1989 in respect of the Gali Nalbandan property failing which the tenancy of the property would be cancelled and its possession resumed.

2. There are two other prayers in this writ petition. One pertains to another property at No. 1/242 (old)/423 (new) Gali Rajan, Kashmere Gate (Gali Rajan property). The prayer is that this Court should hold that the Gali Rajan property is not an evacuee property and that the order dated 25th September 1959 of the civil court is binding on the authorities. The other is that the orders dated 4th August, 1982 and 20th February 1989 of the Custodian General and the order dated 4th February 1988 of the Central Government rejecting the petitioners petitions under the AEP Act 1950 should be quashed.

Background facts

3. According to the Petitioners the Gali Nalbandan property was initially owned by Mohd. Akbar and four others. By a registered sale deed dated 13th February 1882 it was sold to Mirza Jan, Mohd. Jan, Agha Jan, Ali Jan and sons of Miyan Jan. The property then devolved upon the surviving brothers of Agha Jan. By a subsequent agreement dated 8th April 1913 entered into between Mohd. Jan and Ali Jan it was agreed that the Gali Nalbandan property shall be the absolute property of Ahmad-ul-Nisa, the daughter of Mirza Jan. The Petitioners claim to be the descendants of Ahmad-ul-Nisa.

4. The Petitioners state that they were given to understand that by virtue of a Notification dated 21st May 1948 published in the Gazette of India dated 27th May 1948 under Section 6(1) of the Eastern Punjab Evacuee (Administration of Property) Act, 1947 the Gali Nalbandan property had been declared as an evacuee property and had been taken over by the Custodian. According to the Petitioners when they enquired as to how the property had been declared as an evacuee property, they were furnished with a copy of the Notification in which at serial No. 891 the description was of a property at door No. 378 Eastern Model Basti, Karol Bagh. The confusion was compounded by the fact that the Gali Nalbandan property is situated in Municipal Ward No. 1 and the entry at Sl. No. 891 in the Gazette also described the property as I/378, although it was of Karol Bagh and not Kashmere Gate.

5. According to the Petitioners although the said Notification did not pertain to the Gali Nalbandan property, but to an entirely different property located miles away in Karol Bagh, they nevertheless invoked the jurisdiction of the Central Government under Section 16 of the AEP Act 1950 for restoration of the Gali Nalbandan property on the ground that the said property could never be declared as an evacuee property since none of their predecessors or they had ever migrated to Pakistan. By a letter dated 9th October, 1957 the Central Government directed the Petitioners to establish their title to the Gali Nalbandan property by filing a civil suit and thereafter apply for restoration if their title was so established.

6. Thereafter the Petitioners filed a Civil Suit No. 676 of 1968 claiming title to the Gali Nalbandan property and for a declaration that the action of the Central Government in treating the said property as evacuee property was illegal. The stand of the Central Government in the written statement was that by a Notification dated 21st May 1948 the Gali Nalbandan property had been declared as an evacuee property. Further it was contended that the civil court had no jurisdiction to examine the matter.

7. By its judgment dated 24th April 1970 the learned Sub-Judge 1st Class, Delhi dismissed the suit relying upon the judgment of the Supreme Court in Custodian v. Jafran Begum . The Court rejected the plaint under Order 7 Rule 11 CPC on the ground that the jurisdiction of the civil court was barred. The Petitioners Appeal No. 120 of 1970 was dismissed by the Additional District Judge, Delhi by a judgment dated 18th January 1971.

8. The Petitioners then approached the authorities under the AEP Act 1950. On 24th November 1981 they filed a Revision Petition under Section 27 of the AEP Act 1950 before the Custodian General challenging the Notification dated 21st May 1948 pertaining to the Gali Nalbandan property. An amended Revision Petition was filed on 8th December 1981. By an order dated 4th August 1982 the Custodian General rejected the Revision Petition on the ground that the Petitioners had already approached the Central Government under Section 16 of the Act and the Central Government had already directed the Petitioners to establish their title by approaching the civil court.

9. The Petitioners then filed an application on 9th September 1982 before the Central Government under Section 16 of the AEP Act 1950 questioning the declaration of the Gali Nalbandan property as an evacuee property. On 21st January 1985 a letter was received from the Central Government requesting them to appear with ration card and other documents to prove their occupation of the Gali Nalbandan property. On 4th February 1988 the Petitioners application under Section 16 was rejected by the Central Government but a copy of the said order was not furnished to the Petitioners.

10. The said order dated 4th February 1988 a copy of which was subsequently produced in the present proceedings by the Respondents reads as under:

To

S/Shri Syed Mirza & Ahmed Mirza, H. No. 1/661 Gali Nal Bandan, Kashmere Gate, Delhi.

Subject: Petition under Section 16 of the Administration of Evacuee Property Act 1950 filed by S/Shri Syed Mirza & Ahmed Mirza for restoration of prop. No. 1/378/661, Gali Nal Bandan, Kashmere Gate, Delhi.

Sir,

With reference to your application dated 5.3.85 regarding restoration of property No. I/378/661, Gali Nal Bandan, Kashmere Gate, Delhi under Section 16 of the Administration of Evacuee Property Act 1950, I am directed to inform you that the same has been examined and it has not been found possible to accede to your request.

Yours faithfully, (Kuldip Rai) Deputy Secretary to the Government of India.

11. On 25th January 1989, the Petitioners filed two applications: one under Section 16 of the AEP Act 1950 for restoration of the Gali Nalbandan property and another under Section 27 of the AEP Act 1950 for recall of the order dated 4th August 1982 passed by the Custodian General.

12. By an order dated 1st February 1989 the Central Government informed the Petitioners that the earlier application under Section 16 had already been dismissed by the letter dated 4th February 1988 and a fresh application for the same relief could not be entertained. By a separate order dated 21st February 1989, the Chief Settlement Commission held that there was no provision for recall of an order passed by the Custodian General. Accordingly, the Petitioners application under Section 27 seeking recall of the order dated 4th August 1982 was rejected.

13. The immediate provocation for the present petition was that on 4th October 1989 a memo was received from the Land & Building Department, Evacuee Property Cell, Delhi Administration asking the petitioners to pay the arrears of rent up to June 1989 in the sum of Rs. 4,750 by 27th October, 1989. This was reiterated by a Memo dated 27th January 1990 issued by the same department asking the petitioners to comply with the demand for payment of rent failing which the tenancy would be cancelled and possession of the Gali Nalbandan property resumed.

14. Rule was issued in this writ petition on 17th December 1991. During the pendency of the writ petition there have been deaths of some of the Petitioners who have been substituted by their legal representatives. Amended memos of parties have been filled from time to time.

Case of the Respondents

15. In the counter affidavit filed by the Respondents it is contended that both the Gali Rajan property and the Gali Nalbandan property vested in the Custodian of the Evacuee Properties and that these were duly notified in the Gazette. It is pointed out that the Civil Suit No. 50 of 1958 filed by Ahmad-ul-Nisa with the prayer for a declaration that she was the owner of Gali Nalbandan property was rejected by a judgment dated 25th September 1959 and this became final as far as the Gali Nalbandan property is concerned. It is contended that in the Notification dated 21st May 1948 "inadvertently the locality of the property was wrongly mentioned as Eastern Model Basti, Karol Bagh instead of Gali Nalbandan, Kashmere Gate, however, the property number and ward number were correctly mentioned in the Notification". It was claimed that "it was clearly understood by every one that the said Notification related to the property in suit situated in Gali Nalbandan, Kashmere Gate, Delhi...."

16. It was then stated that a subsequent Suit No. 677 of 1969 filed by the Petitioners in respect of Gali Nalbandan property was dismissed on 24th April 1970 and the appeal against the said judgment was also dismissed. It is stated that the numerous Petitions filed thereafter by the Petitioners were rejected by the Central Government and therefore the present petition which is nothing but a revival of those already rejected prayers is entirely misconceived and that it is also barred by the principle of constructive res judicata. It is pointed out that the fact of the disposal of the Suit filed by Ahmad-ul-Nisa was not mentioned in the writ petition and that therefore the Petitioners have not come to Court with clean hands.

17. In the rejoinder filed by the Petitioners it is pointed out that neither the Petitioners nor their predecessors had ever migrated to Pakistan and that at no stage had the authorities declared the properties at either Gali Rajan or Gali Nalbandan to be evacuee properties. Accordingly there was no question of any property belonging to the Petitioners or their predecessors being taken over as evacuee property. According to the Petitioners they did not suppress any of the facts before the Central Government. They maintain that the judgment dated 25th September 1959 was being misquoted by the Central Government and in fact the Petitioners claim as regards the Gali Rajan property had been accepted by the civil Court in that judgment.

Proceedings in this Court

18.1 When this matter was taken up for final hearing it was noticed that the records of the case were not available for perusal. Adjournments had to be granted on several occasions to enable the Respondents to produce the records. On 24th May 2007 the following order was passed:

1. Learned Counsel for the Respondent informs that only part of the relevant record is available with the Respondents 2 and 3 and that the other part of the record is available with the Respondent No. 1 and therefore those records are not yet available. The matter be treated as part heard. List for hearing on 18.8.2007.

2. It is made clear that the hearing will proceed on the basis of whatever records are available on the next date and will be concluded on the next date. No further adjournment will be granted.

3. The Registry is requested to deliver a copy of this Order to the Respondent No. 1 through its Secretary through a special messenger within three days.

18.2 Thereafter on 7th September 2007 the Court was constrained to pass the following order:

1. This is a writ petition pertaining to the year 1990 in which the petitioner has sought a declaration that properties No. I/242(old)/423 (New), Gali Rajan, Kashmere Gate, Delhi and I/378(Old)/661 (New), Gali Nalbandan, Kashmere Gate, Delhi are not evacuee properties. The petitioner also sought a writ of certiorari to quash orders dated 4th August, 1982 and 21st February, 1989 passed by the Custodian General of Evacuee Property under the Administration of Evacuee Properties Act, 1950 as well as the order dated 4th February, 1988 passed by the Central Government. The petitioner has also sought quashing of order dated 17th January, 1990 passed by the Managing Officer (EP), Delhi Administration, Land & Building Department, Evacuee Property Cell calling upon the petitioner to pay arrears of rent failing which the possession of the property No. 1/378(old)/661(New), Gali Nalbandan, Kashmere Gate, Delhi would be resumed.

2. Several adjournments were granted to the respondents from 8th February, 2007 onwards. The matter was heard in part on 22nd February, 2007, 27th February, 2007 and 6th March, 2007. By an order dated 8th March, 2007, the respondents were asked to keep the records of the case ready. During the hearing on 17th May, 2007, Mr. Sanjiv Sahay, learned Counsel appearing for respondents had assured the Court that records would be made available on the next date of hearing and the case was, therefore, adjourned to 24th May, 2007. However, on 24th May, 2007, Mr. Sahay informed the Court that only part of the relevant record was available with the respondents. The Court then directed the listing of the matter for hearing on 18th August, 2007. A copy of the order was directed to be delivered to the respondent No. 1 i.e. Union of India through Secretary, Ministry of Home Affairs, Department of Internal Security, Rehabilitation Division, Jaisalmer House, Mansingh Road, New Delhi for compliance.

3. The matter was listed on 31st August, 2007 and again today. However, no one appeared on behalf of Union of India on either date. The Court is unable to dispose of the matter in the absence of the records which are to be produced by the Union of India. Since there is no one present to assist the Court on behalf of the Union of India, there is no alternative but to require personal appearance of a senior level officer not below the rank of Director in the Ministry of Home Affairs, Department of Internal Security, Rehabilitation Division, Jaisalmer House, Mansingh Road, New Delhi with the relevant record of the case on the next date of hearing. Ordered accordingly.

4. List on 5th October, 2007.

5. A copy of this order be delivered to the Secretary, Ministry of Home Affairs, Department of Internal Security, Rehabilitation Division, Jaisalmer House, Mansingh Road, New Delhi by the Registry within a period of 6 days for compliance.

18.3 This was followed by a further detailed order on 5th October 2007 on which date the records were still not produced:

1. At the last hearing on 7.9.2007, this Court passed a very detailed order, requiring the personal appearance of a senior level officer not below the rank of the Director in the Ministry of Home Affairs, Department of Internal Security, Rehabilitation Division along with the relevant records of the case. This became necessary since despite several orders the records were not produced by the Respondents. No counsel was also present on behalf of the Respondents on the previous date. It was further directed that the copy of the said Order dated 7.9.2007 should be delivered by the Registry of the Court to the Secretary, Ministry of Home Affairs, Department of Internal Security, Rehabilitation Division within a period of six days.

2. The Report of the Registry confirms that a copy of the Order dated 7.9.2007 was served at the office of the Rehabilitation Division. However, no Officer from the said Division was present in the Court today. Mr. Sanjeev Sahay, the learned Advocate appearing today on behalf of the Rehabilitation Division was not in a position to inform the Court whether the records were available.

3. The Court takes a very serious view of the non-production of the records particularly since this writ petition has been pending for over 17 years and the Court is unable to proceed with the final disposal of the matter in the absence of the records. Mr. Sahay informs the Court that the concerned officers whom he has been in touch with are:

(i) Mr. A.K. Kaushik Asstt. Settlement Commissioner Vikas Bhawan, ITO, New Delhi

(ii) Mr. T.C. Nakh, Addl. Secretary(L&B) Vikas Bhawan, ITO, New Delhi.

(iii) Mr. I.B. Karan, Jt. Secretary, FFR Divn.

Ministry of Home Affairs, Lok Bhawan, New Delhi

(iv) Shri S.P. Verma, Dy. Secretary, FFR Divn.

Ministry of Home Affairs, Lok Bhawan, New Delhi

4. Mr. Sahay further states that he will convey the concern of the Court to the above Officers and ensure that at least one of them, conversant with the records, is present in Court on the next date of hearing. Mr. Sahay further states that the records are perhaps with the Union of India and not with the Rehabilitation Division and that reminders have been sent to the Union of India in this regard. The Court makes it clear that it is entirely up to the Respondents to figure out among themselves as to who should make the records available for the perusal of this Court, without passing the buck to each other. The Court may be constrained to pass adverse orders on the next date of hearing if the records are not produced.

5. A certified copy of this order along with a certified copy of the previous order dated 7.9.2007 be delivered to each of the officers mentioned in para 3 of this order by the Registry through a Special Messenger (after obtaining the due acknowledgment) not later than 9.10.2007.

6. List on 2.11.2007. Order dusty to the counsel for the parties.

18.4 On 2nd November 2007 this Court was informed that other than one small file containing a few orders no other record was available in the Rehabilitation Division. The Court then proceeded to hear final arguments on the basis of the available records.

Submissions of Counsel

19. Mr. Ashok Aggarwal, learned Counsel for the Petitioners makes the following submissions:

(a) Without a proper enquiry or investigation a property cannot be declared as an evacuee property either under Section 2 read with Section 4 of the 1947 Act or Section 2(d) read with Section 7 of the AEP Act 1950. Reliance is placed on the decisions of this Court in Kundan Lal v. Hari Ram , Karadia Jetha Kana v. Managing Officer-cum-Collector AIR 1981 Gujarat 27 and Union of India v. Seth Sat Narain .

(b) The possession of the property at Gali Nalbandan by the Petitioners and their predecessor-in-interest Ahmad-ul-Nisa has been acknowledged by the Custodian while describing the adjoining properties in the conveyance deed executed by him.

(c) The Notification dated 27th May 1948 does not refer to the Gali Nalbandan but to a property in another locality in Eastern Model Basti, Karol Bagh. The consolidated list of urban evacuee properties refers to properties at Door Nos. 377, 379, 380, 387 and 389 Kashmere Gate but not Door No. 378/I Kashmere Gate.

(d) The publication of a Notification in the official gazette concerning the declaration and vesting of the Gali Nalbandan property as an evacuee property was an essential prerequisite under the AEP Act 1950 before it could be claimed to be an evacuee property. Reliance in support of this submission is placed on the judgment of the Supreme Court in ITC Bhadrachalam Paperboards v. Mandal Revenue Officer, Andhra Pradesh .

(e) In any event neither the Central Government nor the Custodian has taken any follow-up action under Section 6(3) of the AEP Act 1950 to take possession of the Gali Nalbandan property.

(f) The orders passed by the Central Government declining to entertain the Revision Petition are vitiated by non-application of mind to the records and the admitted facts.

(g) As regards the plea of constructive res judicata it is submitted that the right title and interest of the petitioners in the Gali Nalbandan property was not directly or substantially in issue in Suit No. 50 of 1958. In any event since the learned Sub Judge had held in the judgment dated 25th May 1959 that the order of the Custodian declaring the Gali Rajan property to be an evacuee property was unsustainable in law for want of notice under Section 7 of the AEP Act 1950, that finding was binding on the Central Government.

(h) In the alternative as per the decision in Jafran Begum since the civil court lacked the jurisdiction to try such an issue its decision cannot operate as res judicata. Since it was the Respondent alone who could decide whether the Gali Nalbandan property in question was an evacuee property and it had not done so till date. Therefore, the Gali Nalbandan property could not be treated as an evacuee property. No arrears of rent could be demanded from the petitioners on such assumption.

(i) The resort to Section 8(2A) of the AEP Act 1950 by the Respondents to validate the vesting of the Gali Nalbandan property cannot be sustained since the Notification dated 27th May 1948 does not describe it as evacuee property at all. The decision in Azimunissa v. The Deputy Custodian, Evacuee Properties, District Deoria is distinguishable on facts.

(j) As regards the Gali Rajan property it is contended that the judgment of the civil court dated 25th September 1959 is binding on the Respondents. That judgment having attained finality, the Respondents were bound to restore the Gali Rajan property to the petitioners.

20. Mr. Gaurav Duggal and Mr. Sanjeev Sahay, learned Counsel appearing for the Rehabilitation Division and the GNCTD respectively contend as follows:

(a) The Petition is barred by laches and delay. Against the vesting of the Gali Nalbandan property in the Custodian by the Notification dated 21st May 1948, the Petitioners invoked the jurisdiction of the Central Government under Section seeking restoration only five years thereafter. Suit No. 50 of 1958 was filed ten years after the Notification. The second suit was filed in 1968 a further ten years later. The Revision Petition was filed in 1981 ten years after the appeal was dismissed on 18th January, 1970. That revision petition was dismissed on 4th August 1982. The Petitioners waited for another eight years before filing the present petition.

(b) Against the order dated 17th January 1990 there is an alternative remedy available to the Petitioners under Sections 10A, 16, 24 and 27 of the AEP Act 1950 which in fact the Petitioners have already unsuccessfully invoked.

(c) The Petitioners are guilty of concealment of facts since the fact of the order dated 25th September 1959 passed by the learned Sub-Judge dismissing Suit No. 50 of 1958 was concealed when the Petitioners filed the subsequent Suit filed in 1968. In the Revision Petition filed before the Central Government the fact of the filing of the Suits was not disclosed. The Petitioners have not come to Court with clean hands and therefore this Petition ought to be dismissed.

(d) The Petitioners have in the earlier rounds of litigation never raised the objection that the Notification dated 21st May 1948 did not pertaining to the Gali Nalbandan property. The Petitioners have throughout proceeded on the basis that there was such a Notification and were only seeking the release of the property from the Custodian. Now bringing up the issue of the validity of the Notification when the civil court has already held against them in a judgment is barred by the principle of constructive res judicata.

(e) The scope of writ petition of this Court under Article 226 of the Constitution is confined to quashing orders of quasi-judicial authorities which violate the principle of natural justice. There is no such grievance available to the Petitioners here since they have had several rounds of litigation in the civil court as well as before the authorities under the AEP Act 1950.

(f) In any event the examination of the claim of the Petitioners here would involve disputed question of facts for which documents would have to be proved and analysed. This exercise cannot be undertaken by the Writ Court.

(g) The judgment of the Supreme Court in Azimunissa has held that there is a deemed vesting of an evacuee property in the Custodian in terms of Section 8(2A) of the AEP 1950 Act notwithstanding any defect or invalidity in the notification of vesting. Therefore the vesting of the Gali Nalbandan property by the Notification dated 21st May 1948 does not get invalidated only because of the error in the description of the property.

Prayers (a) and (c) not entertained

21. At the outset this Court would like to confine the scope of the present writ petition to prayer (b) which seeks a declaration that the Gali Nalbandan property is not an evacuee property and prayer (d) challenging the demand of arrears of rent raised by the Respondents in relation to the Gali Nalbandan property by the Memorandum dated 17th January 1990. This Court is not prepared to entertain the prayers (a) and (c) for the reasons explained hereafter.

22. Prayer (a) in the writ petition is for a declaration that Gali Rajan property is not an evacuee property and that the order dated 25th September 1959 passed by the Sub-Judge 1st Class, Delhi in Suit No. 50 of 1958 is binding on the authorities. It will be recalled that the right title and interest of the predecessor in interest of the petitioners i.e. Ahmad-ul-Nisa in the Gali Rajan property was already upheld by the judgment dated 25th September 1959 in Suit No. 50 of 1958. That judgment has become final and inasmuch as the Respondents were parties to the said suit it binds them as well. Therefore there is no need to once again reiterate the said declaration which is a matter of record. The said judgment grants a declaratory relief which alone was sought by the plaintiff Ahmad-ul-Nisa. No consequential prayer for possession was sought or granted. In the circumstances, there is no scope for this Court in the present writ petition to entertain prayer (a) and it is accordingly rejected.

23. As regards prayer (c) seeking the quashing of the orders dated 4th August 1982 and 21st February 1989 of the Custodian General and 4th February 1988 of the Central Government, there is force in the contention of the Respondents that these prayers are barred by delay and laches.

24. It will be recalled that the petitioners had already filed Civil Suit No. 676 of 1968 claiming title to the Gali Nalbandan property and for a declaration that the action of the Central Government in treating the said property as evacuee property was illegal. By its judgment dated 24th April 1970 the learned Sub-Judge 1st Class, Delhi dismissed the suit for want of jurisdiction. The petitioners appeal was also dismissed by the Additional District Judge, Delhi on 18th January 1971. That order was accepted by the petitioners who then began invoking the jurisdiction of the authorities under the AEP Act 1950. Once the Custodian General rejected the petitioners revision petition under Section 27 AEP Act 1950 on 4th August 1982, the petitioners filed another petition under Section 16 AEP Act 1950 when clearly such a petition had already been declined way back on 9th October 1957 by the Central Government. No such second petition seeking the same relief could have been filed. This therefore cannot satisfactorily explain the delay and laches on the part of the petitioners in not challenging the 4th August 1982 order till 1990.

25. Even the petition filed on 25th January 1989 seeking recall of the order dated 4th August 1982 was ill advised as obviously there was no provision in the AEP Act 1950 permitting recall of an order passed by the Custodian General. Naturally this petition was dismissed on 21st February 1989. Strangely even these orders were not challenged till the present petition was filed on 8th February 1990. These subsequent proceedings were plainly pointless and vexatious and cannot improve the position as regards delay and laches one bit for the petitioners.

26. In the facts and circumstances, this Court upholds the objections of the Respondents to this Court entertaining prayers (a) and (c) of the writ petition.

Issues arising for determination

27. The narration of facts indicate that as far as the present writ petition is concerned the immediate provocation is the impugned Memorandum dated 17th January 1990 issued by the Delhi Administration demanding arrears of rent for the Gali Nalbandan property from the petitioners and stating that if they did not pay the arrears of rent their tenancy would be cancelled and the property repossessed. The challenge to this Memorandum by the present writ petition filed on 8th February 1990 can hardly be said to be barred by delay and laches. Therefore, the scope of the present petition is being confined only to examining the validity of the said impugned Memorandum dated 17th January 1990.

28. For examining the validity of the impugned Memorandum dated 17th January 1990, the scope and effect of the earlier orders concerning the declaration of the Gali Nalbandan property as evacuee property have necessarily to be examined. To that extent therefore prayers (b) and (d) of the writ petition are taken up for consideration.

29. Given the limited scope of the present writ petition, and on the strength of the above pleadings and contentions of the parties, the following questions arise for determination in the present writ petition:

(i) Is the Writ Petition liable to be dismissed for concealment of facts?

(ii) Is the Writ Petition liable to be dismissed on the ground that the Petitioners have an equally efficacious alternative remedy?

(iii) Do the surviving prayers (b) and (d) in the writ petition involve disputed question of facts and therefore beyond the scope of the jurisdiction of this Court under Article 226 of the Constitution?

(iv) Is the prayer for quashing the demand of arrears of rent barred by the principle of estoppel and waiver?

(v) Are prayers (b) and (d) in the writ petition barred by the principle of constructive res judicata?

(vi) Can the Gali Nalbandan property be said to have automatically vested in the Custodian in terms of Section 8(2A) of the AEP Act 1950 by holding the Notification dated 21st May 1948 to be merely defective?

Issue No. (i): Concealment of facts

30. As regards the issue concerning concealment of facts, this Court finds that there is a mention of the judgment dated 25th September 1959 in para 44 of the Writ Petition. The Petitioners have in fact annexed a copy of the judgment as Annexure P-13 to the Writ Petition. The order dated 24th April 1970 passed by the learned Sub Judge has also been annexed to the Writ Petition as Annexure P-18. The narration in that regard is contained in para 24 of the Writ Petition. The facts concerning the consequential appeal are at para 25.

31. In that view of the matter it cannot be said that the Petitioners have willfully concealed facts in the present writ petition. In any event, all those facts were in the knowledge of the Respondents and there is no question of the Petitioners trying to get any unfair advantage since all these facts were available in the records of the Respondents. This Court is of the considered view that this Writ Petition cannot be rejected on the ground of concealment of facts.

Issue (ii): Alternative Remedy

32. As regards the availability of an alternative remedy, the contention of the Petitioners is that whenever in the past the Petitioners have approached the Respondents under the AEP Act 1950 they have been asked to get the question of title determined by the civil court. The Central Government has consistently declined to examine the claim of the Petitioners on merits. To this extent the Petitioners appear to be justified in their submission. At the time when initially Petitioners applied under the AEP Act 1950, Section 16(1A) had not been inserted. This requires the Petitioners to first exhaust the remedy before the Custodian General before filing a Revision Petition before the Central Government under Section 16.

33. Therefore, when the Central Government was first approached, it relegated the Petitioners to the civil court. However when the Petitioners approached the civil court, the Central Government took a stand that the suit was not maintainable. In fact, the 1968 Suit was dismissed on the ground that the civil court had no jurisdiction. When the Custodian General was again approached, the earlier order of the Central Government was referred to for rejecting the claim of the Petitioners. The net result is that as far as the alternative remedy is concerned neither the Central Government nor the Custodian General have examined the claims of the Petitioners on merits at any stage. In these circumstances, it would be futile to relegate the Petitioners to alternative remedy under the Act since that is not likely to result in any useful decision at all. To this extent the Petitioners are justified in contending that it would be unjust to reject this Writ Petition on the ground of availability of an alternative remedy. Issue (ii) is answered accordingly.

Issue (iii): Disputed Questions of fact?

34. The scope of the present writ petition is confined to examining prayers (b) and (d). In order to examine the validity of the demand raised by the Respondents by its Memorandum dated 17th January 1990, the Court is required to examine whether in fact the property has been demonstrated by the Respondents to be an evacuee property in terms of the AEP Act 1950. The Respondents can do so only by showing that there is a validly gazetted Notification vis-a-vis the said property. These are essentially matters of record which should not involve determination of complicated questions of fact. Issue (iii) is answered accordingly.

Issue (iv):Waiver and Estoppel

35. The contention of the Respondents is that the question of the validity of the vesting of the Gali Nalbandan property already stands concluded by the judgments of the civil court rendered first in 1959 and then in 1970. It is contended that the question of the Notification dated 21st May, 1948 does not refer to the Gali Nalbandan property is being raised for the first time by the Petitioners who had themselves throughout proceeded on the plea that the said Notification did, in fact, refer to the Gali Nalbandan property.

36. With the records of the present case not being made available to the Court by the Respondents, it was not possible to ascertain if in fact any enquiry took place before the property was declared to be an evacuee property. The Court has had to proceed on the basis of the records placed before it and forming part of the petition. As regards the Notification dated 21st May 1948, which the Central Government is relying upon, it refers to the property at Karol Bagh and not the property in Gali Nalbandan. Although a plea has been taken that for all practical purposes the parties understood that this was an inadvertent error, there is no statement to that effect anywhere in writing or forming part of the record of the suits of 1958 or 1968 or in the orders passed in those suits. No such issue seems to have framed at the instance of the Central Government in those suits. It is not possible, in the absence of any errata or corrigendum issued by the Central Government, to simply accept the plea that the reference to the Karol Bagh property in the Notification dated 21st May 1948 is an inadvertent error. This is too serious a matter since the legal status of vesting gets crystallised under the AEP Act 1950 only after the procedure for notifying a property as evacuee property, by publication in the Gazette, is followed. An evacuee property cannot be said to have vested in the Custodian unless the Notification following an enquiry as contemplated in the AEP Act 1950, is published in the official gazette. There is a sanctity to this procedure which has to be mandatorily complied with. This much is clear from the judgment of the Supreme Court in ITC Bhadrachalam Paperboards where the law was explained thus (SCC, p.646):

The object of publication in the Gazette is not merely to give information to public. Official Gazette, as the very name indicates, is an official document. It is published under the authority of the Government. Publication of an order or rule in the Gazette is the official confirmation of the making of such an order or rule. The version as printed in the Gazette is final. The same order or rule may also be published in the newspapers or may be broadcast by radio or television. If a question arises when was a particular order or rule made, it is the date of Gazette publication that is relevant and not the date of publication in a newspaper or in the media (See Pankaj Jain Agencies v. Union of India. In other words, the publication of an order or rule is the official irrefutable affirmation that a particular order or rule is made, is made on a particular day (where the order or rule takes effect from the date of its publication) and is made by a particular authority; it is also the official version of the order or rule. It is a common practice in courts to refer to the Gazette whenever there is a doubt about the language of, or punctuation in, an Act, Rule or Order. Section 83 of the Evidence Act, 1872 says that the court shall presume the genuineness of the Gazette. Court will take judicial notice of what is published therein, unlike the publication in a newspaper, which has to be proved as a fact as provided in the Evidence Act. If a dispute arises with respect to the precise language or contents of a rule or order, and if such rule or order is not published in the Official Gazette, it would become necessary to refer to the original itself, involving a good amount of inconvenience, delay and unnecessary controversies. It is for this reason that very often enactments provide that rules and/or regulations and certain type of orders made there under shall be published in the Official Gazette. To call such a requirement as a dispensable one - directory requirement - is, in our opinion, unacceptable.

37. In the instant case there are no records to show that the mandatory procedure under the AEP Act 1950 was in fact followed in respect of the Gali Nalbandan property. It was incumbent on the Respondents to satisfy the Court that the Gali Nalbandan property was validly treated as an evacuee property in order to show that the demand for arrears of rent as raised in the Memorandum dated 17th January 1990 was valid. The Respondents failed to do so.

38. There cannot be an estoppel or waiver against the law. The fact that the Petitioners did not earlier raise the issue that the Notification dated 21st May 1948 did not pertain to the property in question cannot preclude an examination whether in fact the Notification pertains to such property.

39. The judgment of the civil court in 1959 came at the time when the requirement of the Petitioners having to exhaust their remedies before the Custodian General did not exist. It is also the admitted position that against the 1959 judgment neither the Petitioners nor the Central Government filed any appeal. As regards the Gali Nalbandan property, it is correct that the judgment declines to grant the relief sought by the Petitioners viz., a declaration of their title to the property. That finding is binding on the Petitioners.

40. However, it is one thing to say that the Petitioners have failed in getting the court to declare their title to the property in question. It is a different thing for the Respondents to show that the Gali Nalbandan property was an evacuee property in which the petitioners were tenants and by which fact the Respondents could validly seek to recover arrears of rent from the petitioners. In other words, the failure of the petitioners to establish their title to the Gali Nalbandan property cannot automatically mean that the Respondents are entitled to treat the said property as an evacuee property and recover arrears of rent from the petitioners on that basis. This is apparent from the issues framed in the Suit No. 50 of 1958 which read as under:

1. Is the Plaintiff owner of the suit property?

2. Whether a valid notice under Section 80 CPC was served by the Plaintiff on Defendant Nos. 1 and 2, if not its effect?

3. Relief.

41. There was no issue framed in the 1958 Suit to the effect that the Gali Nalbandan property validly vested in the Custodian as evacuee property. In Suit No. 50 of 1958 the issue was whether the plaintiff has established her title to the Gali Rajan and Gali Nalbandan properties. This was answered partly in her favor. While the title to the Gali Rajan property was declared in favor of the plaintiff, the title to the Gali Nalbandan property was not. Yet, it cannot be said that by virtue of the said judgment dated 25th September 1959 in Suit No. 50 of 1958 the Central Government has been able to demonstrate that there was a valid vesting in it of the Gali Nalbandan property as evacuee property under the AEP Act 1950. As regards the 1968 suit, there was no decision on merits therein and it was dismissed on the question of jurisdiction.

42. Accordingly it is held that the principle of estoppel or waiver does not apply to the facts of the present case. In other words the dismissal of the suits of 1958 and 1968 will not preclude the Petitioners from challenging the impugned Memorandum dated 17th January 1990 on the ground that the Central Government has failed to show that the Gali Nalbandan property has validly vested in the Central Government as evacuee property under the AEP Act 1950. Issue (iv) is answered accordingly.

Issue (v): Constructive Res Judicata

43. The Respondents contend that the petitioners are precluded from questioning the vesting of the Gali Nalbandan property in the Central Government as an evacuee property in terms of the AEP Act 1950 since this issue was collaterally in issue in Suit No. 50 of 1958. The principle of constructive res judicata has been explained by the Supreme Court in Forward Construction Co. v. Prabhat Mandal (Regd.) (1986) 1 SCC 100 in the following words (SCC, p.112):

...Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defense. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverter and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided....

(emphasis supplied)

44. Turning to the case on hand it is the contention of the Respondents that the issue whether the Gali Nalbandan property was in fact an evacuee property ought to have been an issue if not directly but collaterally in Suit No 50 of 1968. As already noticed such an issue was not framed in the said suit. The written statement in the suit only negated the title of the plaintiff to the Gali Nalbandan property but as already pointed out there was no question of there being a declaration as to the valid vesting of the property as an evacuee property in the Central Government. Although in the 1968 suit the petitioners did raise the issue of the validity of the declaration of the Gali Nalbandan property as evacuee property, the issue was never examined as the suit was dismissed for lack of jurisdiction. Thereafter every attempt by the petitioners to have the issue decided has been rejected on technical grounds and not on merits.

45. While examining the validity of the demand of arrears of rent, it would be necessary to examine whether the Delhi Administration could have proceeded on the footing that the Gali Nalbandan property is in fact an evacuee property. Only then can it treat the occupiers as tenants and seek to collect rent. It requires to be recalled that the essential requirements for declaring the Gali Nalbandan property to be an evacuee property are absent in the instant case. There has been no determination whether in fact the property was validly declared to be an evacuee property. In the circumstances, the failure by Ahmad-ul-Nisa and later the petitioners to have their title to the Gali Nalbandan property established cannot automatically result in the property acquiring the character of an evacuee property and having validly vested as such in the central government. The principles of constructive res judicata cannot be said to be attracted to such a situation. Issue (v) is answered in the negative.

Issue (vi): Does Section 8(2A) apply?

46. It was noticed earlier that the Notification dated 21st May 1948 does not pertain to the Gali Nalbandan property at all. No errata or corrigendum was issued at any point in time by the Central Government or the Custodian to the said Notification which clearly refers only to a property at Karol Bagh. Further the consolidated list of evacuee properties also pointedly omits to mention Door No. 378 of Kashmere Gate. It is difficult in the circumstances to accept the plea of the Respondents that the failure to mention the correct address in the Notification dated 21st May 1948 was merely an error.

47. The reliance placed on the judgment in Azimunnisa also appears to be misplaced. The facts of the case there as set out in the judgment show that the defect in the description of the property was in a notice sent to the person declared as evacuee and not in the Notification itself. Further, the admitted position there was that the property in question was described "sufficiently" although not "thoroughly." This is apparent from the following passage in Azimunnissa (SCR, pp.105-106):

The first notice to Khatoon Bibi was under Ordinance 27 dated November 22, 1949, against which her husband Abdul Barkat filed objections but evidently no order was passed on it. The second notice which was given on July 5, 1950, sufficiently specified the property. Against this notice objections were again raised by Abdul Barkat but were dismissed by the order dated March 7, 1951, and no further appeal or revision or any other proceeding was taken against that order and any defects and deficiencies whether of law or otherwise cannot now be raised. It was specifically stated in that order that the property was sufficiently, though not thoroughly, described and that property was declared to be evacuee property.

48. The purport of Section 8(2A) of the AEP Act 1950 was explained thus (SCR pp. 105-106):

The effect of Section 8(2A) is that what purported to have vested under Section 8(2) of Ordinance 27 of 1949 and which is to be deemed to be vested under Section 8 of the Act which repealed that Ordinance, notwithstanding any invalidity in the original vesting or any decree or order of the Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested; (2) removes all defects or invalidity in the vesting or fictional vesting under Section 8(2) of Ordinance 27 of 1949 or Section 8(2) of the Act which repealed the Ordinance; (3) makes the decrees and judgments to the contrary of any court in regard to the vesting ineffective; (4) makes the property evacuee property by its deeming effect; and (5) validates all orders passed by the Custodian in regard to the property.

49. The above explanation of the effect of Section 8(2A) of the AEP Act 1950 was obviously in the context of the facts of that case where there was sufficient but not exhaustive description of the property in the notice to the evacuee. However, in the instant case, there is a basic difference inasmuch as there is no description of the Gali Nalbandan property in the Notification dated 21st May 1948. Viewed from any angle it cannot possibly be said that this is a mere defect which can somehow get validated by Section 8(2) of the AEP Act 1950. This Court is of the considered view that the facts in Azimunissa were distinct and different from the facts of the present case and that judgment is therefore distinguishable. The Respondents cannot take shelter of Section 8(2A) of the Act to save the situation in the present case and contend that the Notification dated 21st May 1948 in fact pertains to the Gali Nalbandan property.

Conclusion

50. The conclusion therefore that the Delhi Administration has by the impugned Memorandum dated 17th January, 1990 sought arrears of rent in respect of the Gali Nalbandan property which has not been shown by it to be an evacuee property in terms of the AEP Act 1950. In the circumstances the demand of arrears of rent raised by the impugned Memorandum dated 17th January 1990 is bad in law and is hereby quashed.

51. The writ petition is accordingly partly allowed to the limited extent indicated hereinabove. In the circumstances there will be no order as to costs.