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1989 Supreme(Pat) 283
HIGH COURT OF PATNA (RANCHI BENCH)
(S. B. Sinha, J.)
Khawaja Nasiruddin & ors. - Petitioners
Vs.
The State of Bihar & ors. - Respondents
C.W.J.C. No. 1382/82 (R)
Decided on: 11.8.1989
For the petitioner: M/s. Vijoy Pratap Singh, M.Y. Eqbal, Ashok Kumar Sinha and B.K. Nag.
For the Respondent: M/s. N.K. Prasad and dents M. Sahu.
For the State: M/s. N. Roy and I.D. Sinha.
The court cannot determine the validity of service of notice and the jurisdictional fact in exercise of its writ jurisdiction when these involve disputed questions of fact that require adjudication.
Headnote:
EVACUEE PROPERTY - ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - SECTION 7 - SERVICE OF NOTICE - VALIDITY - JURISDICTION OF CIVIL COURT - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
Petitioner challenged the order declaring their property as evacuee property and the sale certificate issued pursuant to an auction held under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, alleging that no proper notice was served upon them as required under Section 7 of the Administration of Evacuee Property Act, 1950.
Finding of the Court:
1. The petitioner failed to establish that the service of notice was not done in accordance with the prescribed manner, as the authorities had taken steps to serve notice by beat of drum and affixing it at a conspicuous place near the residence of the alleged evacuee, which substantially complied with the requirements of Rule 28 of the Administration of Evacuee Properties (Central) Rules. 2. The petitioner's claim that they were not aware of the proceedings under the Act was contradicted by their admission that they appeared in a land acquisition proceeding and claimed compensation, which indicated that they had knowledge of the basis of the claim of the auction purchaser. 3. The petitioner's delay in filing the writ petition, after a lapse of more than 10 years from the date they allegedly came to know about the auction sale, amounted to laches and disentitled them from invoking the writ jurisdiction of the court. 4. The question of whether the alleged evacuee was rightly held to be an evacuee within the meaning of the Act involved disputed questions of fact that could not be determined by the court in exercise of its writ jurisdiction. 5. The court held that the writ petition was not maintainable as it could not determine the validity of the service of notice and the jurisdictional fact had to be decided upon adjudication of serious and bona fide disputed questions of facts.
Issues: 1. Whether the service of notice under Section 7 of the Administration of Evacuee Property Act, 1950, was valid and in accordance with the prescribed manner. 2. Whether the petitioner's delay in filing the writ petition amounted to laches and disentitled them from invoking the writ jurisdiction of the court. 3. Whether the court could determine the validity of the service of notice and the jurisdictional fact in exercise of its writ jurisdiction.
Ratio Decidendi: 1. The court held that the service of notice was substantially in compliance with the requirements of Rule 28 of the Administration of Evacuee Properties (Central) Rules, as the authorities had taken steps to serve notice by beat of drum and affixing it at a conspicuous place near the residence of the alleged evacuee. 2. The court held that the petitioner's delay in filing the writ petition, after a lapse of more than 10 years from the date they allegedly came to know about the auction sale, amounted to laches and disentitled them from invoking the writ jurisdiction of the court. 3. The court held that it could not determine the validity of the service of notice and the jurisdictional fact in exercise of its writ jurisdiction, as these involved disputed questions of fact that required adjudication.
Final Decision: The writ petition was dismissed as not maintainable.
S. B. Sinha, J.- This writ application is directed against an order dated 25.7.1952 as contained in Annexure-2 to the writ application and a sale certificate dated 20.9.1965, as contained in Annexure• 6 to the writ application.
2. The impugned order as contained in Annexure-2 to tbe writ application was passed by the respondent no. 2 declaring one Khawaja Nassiruddin as an evacuee, and thereby declaring his properties as evacuee properties.
3. The facts of the case lie in a very narrow compass. On or about 24.4.1951, the Tehshildar of the area in question reported that the aforementioned Khawaja Basiruddin, the father the petitioner no. 1 and husband of the petitioner no. 2 had left India, a copy whereof is contained in Annexure-1 to the writ application. Upon receipt of the aforementioned report, the matter was inquired into by the Inspector of Evacuee Property, who also submitted a report to the same effect.
4. On or about 18.2.1952, the Sub-divisional Officer directed issuance of notice in the name of Khawaja Basiruddin but it appears that in the matter of service, thereof (sic) by the peon concerned that the said notice could not be served and as such he requested for an extension of time.
5. By an order dated 6.6.1952, the Respondent no. 2 directed that all the formalities for service of notice as also by beat of drum at the spot should be taken. The said order dated 6.6.1952 is contained in Annexure-4 to the writ application.
6. It appears from the order sheet that by an order dated 28.6.1952, the respondent no. 2 accepted the service of notice upon the aforementioned Khawaja Basiruddin as valid and on 3.7.1922, the respondent no. 2 directed issuance of summons upon the witnesses. From the order-sheet dated 19.7.1952, it appears that no body appeared on behalf of the procedee and on that date the Evacuee Inspector was examined.
7. By the impugned order dated 25.7.1952 as contained in Annexure-2 to the writ application, the property in question being holding no.5, comprising of plot nos. 822, 831 and 832 measuring 5.20 decimals was declared to be evacuee property.
8. Thereafter, on 21.4.1960, an auction in respect of aforementioned property purported to be under the Displaced Persons (Compensation and Kehabilitation) Act, 1954, was held wherein the said properties were purchased by one Shri Chambalal, father of the newly added respondent, Shri Kesar Lal Gera.
9. By a sale certificate dated 20th February, 1965, the auction purchaser, namely Sri Chambalal was declared to be the purchaser in respect of the property in question with effect from 20th June. From the aforementioned sale certificate as contained in Annexure to the writ application, it appears that certain compensation payable to the aforementioned Sri Chamba Lal due to him and his associates were adjusted from the sale price.
10. It further appears that the petitioners executed an agreement for sale in favour of one Adarsh Grih Nirman Samiti and members of the said Samiti started disturbing the possession of heirs of Chamba Lal, and as such on 21.10.1982, Kesar Lal Gera, one the heirs of the aforementioned Chamba Lal, who was impleaded as respondent in the writ application, filed a suit in the court of Special Subordinate Judge, Ranchi, which was registered as Title suit No. 257 of 1982. A copy of the plaint in the aforementioned Title Suit No. 257 of 1982 is contained in Annexure-A to the counter affidavit filed on behalf of the respondent no. 6.
11. In the aforementioned suit, the petitioner nos. 1 and 2 filed a written statement alleging inter alia, therein that the properties of the aforementioned Khwaja Basiruddin were wrongly declared as evacuee properties and the plaintiff's-predecessor in interest namely Sri Chamba Lal did not acquire any right, title and interest in relation thereto. The petitioners further contended in the said written statement that they have all along been in possession of the lands in question by getting their names mutated in the offi
