1969 PLP 686 (SCMR)

Respondents Nos. 1 and 2 : Ex parte. Date of hearing : 23rd May 1969. HAMOODUR RAHMAN, C. J.‑This judgment should be read in continuation of the judgment recorded by this Court, on the 14th May 1969, in which the facts of the case and the points raised in the appeal have already been fully set out. The Evacuee Register of Ward `G' of Hyderabad for the years 1948 to 1958, which was called for on the 14th May 1969, bas since been received and it contains an entry, at page 40, to the effect that residential plot No. G‑57/9, which is the plot in dispute, was an evacuee property brought on the register. The proprietor's name given in the Register is Khubchand Bhagumal and the name of the evacuee occupant recorded therein is of Mst. Sughran, wife of Haji Allah Rakha. The area of the plot is shown as about 78 x 66 square feet and the occupant is stated to have been in occupation thereof for about two years. The rent fixed by the Custodian for the premises is Rs. 2 p.m. and in the remarks column it is mentioned as follows:‑ "Mohajir Kacha self construction made by occupant." This entry, it is now claimed, prima facie establishes that the property in dispute was treated as an evacuee property by the Custodian Department. It was in occupation of an evacuee from before the 1st January 1957, and the Department had actually assessed the rent thereof recoverable from the evacuee occupant. The evacuee bad also to the knowledge of the department put up a Kutcha structure thereon. These facts were, it is urged, sufficient to establish that the property, was treated as evacuee property and, therefore, it became incumbent upon its owner, if he was a non‑evacuee, to obtain, under section 22 of the Administration of Evacuee Property Act XII of 1957, a declaration of the non‑evacuee character of the property as well. It was not sufficient for the owner merely to content himself by getting a declaration of his personal status as a non‑evacuee. It was necessary not only to obtain a further declaration that the property in dispute was not an evacuee property but also an order of restoration thereof under section 23 of the above‑mentioned Act. It is pointed out on behalf of the appellant that this was not done as in the application for declaring Khubchand Bhagumal a non‑evacuee the property in dispute was not included in the list .of properties which was given by Khubchand. The learned counsel, appearing for the respondent No. 3 has, on the other hand, contended that a mere entry in the register of evacuee properties is not sufficient to establish that the property had, in fact ever been treated as evacuee property. In any event, it is said, that since the Settlement Commissioner, in the final departmental decision, had come to a clear finding that "at no time the building was treated as evacuee property" it must be presumed that the Settlement Commissioner to whom the evacuee property register was available, had duly taken the entry into account and then found that the property was never treated as an evacuee property. His finding, which was a finding of fact could not be disturbed in the writ jurisdiction. In this connection reliance has also been placed on a decision of this Court in the case of Abdul Khaliq‑Abdul Razzaq v. Kishan chand and others (P L D 1964 S C 74), to support the contention and it has been urged that, as pointed out in the above decision, "treating must relate to either a declaration by the Custodian about the nature of the property or its user for the purposes of the Act by him, or by the Rehabilitation Authorities so as to indicate a consciousness of the actual or assumed nature of the property". Even according to this concept of treating, it must, however, be pointed out that if the entries in the register are correct then the fact that the Custodian Department had even assessed the rent to be realized from the evacuee occupant would, sufficiently satisfy the above test and would show that the property in dispute had in fact, been used for the purposes of the Administration of Evacuee Property Act, consciously and would, therefore, amount to treating the property as evacuee property. The contention of the learned counsel for the respondent that the appellant had never even applied for the transfer of the property, is not relevant for the purpose of deciding as to whether the property was treated as evacuee property or not. If it was treated as evacuee property at any time before the 1st January 1957, then it was necessary for Khubchand Bhagumal to obtain declaration to the effect that this property was not an evacuee property, because, he had himself been declared to be a non‑evacuee. This aspect of the matter, it appears, was not considered either by the Settlement Commissioner or by the High Court. Irrespective of the fact as to whether the appellant was lawfully entitled to the transfer of the property in dispute or not, this question bad of necessity to be determined. The property could not be excluded from the compensation pool merely on the ground that its original owner Khubchand Bhagumal had been declared a non‑evacuee finally by the order of the Evacuee Property Enquiries Tribunal, in September 1959. The mere declaration of the owner as a non‑evacuee is not, in our view, sufficient for this purpose. Whether the owner or his successor‑in‑interest can get such a declaration even now because of the insertion of section 3‑A in the said Act, which debars the Custodian from declaring any property to be non‑evacuee after the coming into force of the Amendment Act, 1958, is not a matter with which we are at present concerned, but since this important aspect of the matter has not been considered either by the Settlement Authorities or by the High Court, we are of the view that the finding of the Settlement Commissioner, even though one of fact, cannot be sustained as it is based upon a non‑consideration of an important aspect of the case and a material item of evidence. The appeal must, accordingly, be allowed, the order of the Settlement Authorities, cancelling the Permanent Transfer Deed issued to the appellant in respect of the property in dispute, must be set aside and the case sent back for a proper enquiry. If the property was ever treated as evacuee property before the Ist of January 1957, then it will have to be considered as to whether it was also necessary for Khubchand Bhagumal or his successors‑in -interest to apply under section 22 of the above‑mentioned Act to have the property declared non‑evacuee. This appeal is, accordingly, allowed but there will be no order as to costs because the appellant too did not raise this question in this specific form before the Settlement Authorities; Appeal accepted.