The court emphasized the importance of providing a fair opportunity for the petitioners to be heard before making findings that could affect their rights.

JUDGMENT :

1. Initially the predecessor-in-interest of the petitioners, namely, Haji Mohammad Jamal, was leased out one double storeyed building with compound, two sheds with carpet looms, one shed. godowns and storeroom belonging to one Sheikh Sadiq Hussain, in the year 1952. The lease period was extended from time to time and the last extension of lease was made in favour of predecessor-in-interest of the petitioners vide order of Custodian General dated 03.01.1977 and an agreement in respect of the property mentioned above was executed, thereby providing the tenure of lease period for 60 years with effect from 01.10.1978. The annual rent was fixed @ Rs.24,000/-. The rent was payable on or before the 15th day every month.

2. During the currency of the lease, Haji Mohammad Jamal i.e. the predecessor-in-interest of the petitioners expired and the petitioners continued to remain in occupation of the property mentioned above after his demise. As the rent was not paid, therefore, the respondent No.2 issued a show cause notice dated 21.10.2003 to the legal representatives of the deceased lessee i.e. the petitioners herein thereby stating that an amount of Rs.86,000/- was outstanding against them on account of unpaid rent upto December, 2003. The petitioners were asked to show cause as to why the lease in respect of the evacuee property be not terminated. The petitioners, thereafter, paid an amount of Rs.50,000 (cash), Rs.20,000 (cash), Rs.45,000 (Bank Draft) and Rs.35,000 (Bank Draft) on 13.11.2003, 22.03.2004, 19.04.2006 and 20.07.2006 respectively. Thereafter, another show cause notice dated 21.07.2006 was issued to the petitioners stating therein that an amount of Rs.97,000/- (subject to reconciliation) was due as outstanding rent upto March, 2006 and accordingly, the petitioners were asked to show cause by or before 29.07.2006 as to why lease in respect of the above said property be not terminated and possession be resumed by the Department. It was also stated in the notice that the lessee has expired and thus the lease has ceased to exist and further the factory was not functional and the property in question was not maintained properly. The petitioners in response to the said notice vide reply dated 27.07.2006 stated that they had applied for the transfer of lease in their favour but the department did not take any action and with the change in law and order situation, necessary steps had been taken to revive the commercial activities and they had spent more than Rs.4.00 lacs for the maintenance of the property. Besides, it was also stated by the petitioners that there was only a balance of sum of Rs.35,000/- and the petitioners had approached the department with a demand draft but the same was not acknowledged. Thereafter vide order dated 04.08.2006, the respondent No.2, taking into consideration the reply submitted by the petitioners, held the possession of the petitioners as unauthorized and that an amount of Rs.97,000/- was outstanding, consequently, in exercise of powers vested in him under Section 7 of the Evacuee Property Act, 2006, directed the petitioners to surrender the possession of the property to the Deputy Custodian.

3. The order dated 04.08.2006 was impugned by the petitioners before the respondent No.1 and the respondent No.1 vide order dated 31.08.2006 set aside the order and directed for de-novo proceedings to be completed within a period of 21 days after providing an opportunity of being heard to the petitioners. The said order was passed on the premise that though in the subject of the order impugned it was mentioned “cancellation of allotment” but in the order it was nowhere indicated that the lease granted to late Haji Mohammad Jamal had been cancelled in exercise of the powers conferred upon the Custodian under Section 10 of the Act. After the matter was remanded to respondent No.2, the respondent N