S. Muralidhar, J.

Syed Mirza and Ors.

Vs.

Union of India and Ors.

Writ Petition (C) No. 724 of 1990

Decided On: 15.02.2008

Advocates Appeared :

For Appellant/Petitioner/Plaintiff: Ashok Aggarwal and Jawahar Raja, Advs.

For Respondents/Defendant: Sanjeev Sahay, Adv. for L and B and GNCTD and Gaurav Duggal, Adv. for Ministry of Home Affairs, Freedom Fighters’ Rehabilitation Division

Subject: Property

Cases Referred:

Custodian v. Jafran Begum AIR 1968 SC 169;

Kundan Lal v. Hari Ram AIR 1981 Delhi 144;

Karadia Jetha Kana v. Managing Officer-cum-Collector AIR 1981 Gujarat 27;

Union of India v. Seth Sat Narain 18 (1980) DLT 490;

ITC Bhadrachalam Paperboards v. Mandal Revenue Officer, Andhra Pradesh (1996) 6 SCC 634;

Azimunissa v. The Deputy Custodian, Evacuee Properties, District Deoria AIR 1961 SC 365;

Pankaj Jain Agencies v. Union of India; Forward Construction Co. v. Prabhat Mandal (Regd.) (1986) 1 SCC 100

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 alias 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 Seriall 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 Gal