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