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CASE NO.: Appeal (civil)  2447 of 2004

PETITIONER: G. Srinivas

RESPONDENT: Government of A.P. and Ors.

DATE OF JUDGMENT: 20/09/2005

BENCH: S.B. Sinha & C.K. Thakker

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       The scope and extent of  application of the principles of natural justice  is in question in this appeal which arises out of a judgment and order dated  15.09.2003 passed by a Division Bench of the High Court of Andhra  Pradesh in Writ Appeal No.1929 of 2001 reversing the judgment and order  dated 12.10.2002 passed by a learned Single Judge of the said Court in Writ  Petition No. 3479 of 1997.

       Plot No.7-A measuring 2 acres 38 guntas situated in Shaikpet village  is the subject matter of dispute between the parties.  The Appellant herein  claims right, title and interest over the said plot relying on or on the basis of  an unregistered deed of sale dated 11.11.1949 AD purported to have been  executed by one Khaja Moinuddin Ansari in favour of his father. The said  Shaikpet village  was formerly a Sarfekhas village and after the merger  thereof in 1949, the administration thereof vested in the State.      

       One Khaja Moin Nawaz Jung Bahadur was said to be the Foreign  Minister in the Nizam regime.  With a view to commemorate the Silver  Jubilee Celebrations, the Jubilee Hills Municipality was constituted by  including the lands situated in Sarfekhas village.  The then Government in  order to develop the Jubilee Hills Municipality into a planned city divided  the land situated in Survey Nos. 403 into 169 plots and allotted the same in  favour of various Nawabs and Nobles on certain terms and conditions which  included the payment of specified amounts to the Government.

       The Municipal Corporation of Hyderabad is the successor of the  Jubilee Hills Municipality.  The contention of the Appellant is that the said  Plot No.7-A was  allotted in favour of Khaja Moinuddin Ansari by the  Government, who,  as noticed hereinbefore, sold the same in favour of his  father.   

       An application was filed for issuance of  supplementary sethwar and  no objection certificate.  By an order dated 09.01.1985, the said plot was  derecognized.  On the other hand, the contention of the State appears to be  that Khaja Moinuddin Ansari is in fact Moin Nawaz Jung Bahadur, who  during the police action was sent to the United Nations of Organization by  the then Nizam to raise the issue of police action by the Union of India and  he having failed therein left for Pakistan and never returned to India;  whereupon by reason of  Notification No. 5 dated 15.09.1949, all his  properties were declared as evacuee properties in terms of  Hyderabad  Administration of Evacuee Property Regulation which was published in the  Hyderabad Gazette on 19.12.1949.  The relevant portion of said notification  reads as under :

"By virtue of power vested in one as custodian under  section 6 of the Hyderabad Administration of Evacuee

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Property Regulation, I hereby declare that the following  properties are Evacuee properties within the terms of the  said regulation and therefore, vest in me.

                               NAGENDRA BAHADUR                                          Custodian

1.      All immovable property of Moin Nawaz Jung  Bahadur e.g. bungalows, Muligies and lands etc., at  Begumpet gunfoundry etc., including all shares,  securities etc., as also property in Aurangabad and  elsewhere in the state.

2.      All immovable property of Begum Moin Nawaz  Jung as also the shares and securities."  

Taking advantage of the absence of  the said Khaja Moinuddin Ansari,  several persons advanced false and frivolous claim thereupon.  One  K.  Satyamma filed a writ petition wherein some order was passed.  Similarly,  one Khaja Moinuddin Ansari through a purported holder of General Power  of Attorney K. Sudarshan also filed a writ petition.  A claim over the said  plot was also made by one  M. Shanker Rao.

       The Appellant herein in view of  the entertainment of the said writ  petition by the High Court also made a representation before the  Government.  By GOMs No.955 dated 17.09.1992, it was directed :          

"In view of the above said findings and  observations and in view of the fact that this is also a  similar case, the Government consider it just and proper  to set aside the orders of de-recognition of plot No.7-A  measuring an extent of Ac. 2.38 guntas issued in the  Government Memo Second read above and to direct the  Collector, Hyderabad to issue no objection certificate and  supplementary shethwar in favour of Sri G. Srinivas, the  Successor in title after satisfying himself about the  documents as was done in the case of Smt. A. Pentamma  in Govt. Memo No. 2436/Assn. III(2)/85-21 dated  29.8.1990 to meet the ends of natural justice."

       As no action was taken, a writ petition came to be filed by the   Appellant herein, being Writ Petition No.2024 of 1996.  The writ petition  was disposed  of directing the Government of Andhra Pradesh to complete  the inquiry contemplated in Memo dated 16.07.1994.  It was further  observed :

       "8.     It is submitted by the learned Government  pleader that the land in question is an evacuee property  and hence, the Government is contemplating to take  necessary consequential action as warranted under law.   This aspect is not the subject matter for enquiry in this  writ petition.  It is so open to the Government if so  advised to proceed in accordance with law in this regard.

       9.      As and when the enquiry is contemplated in  Memo. Dated 16.7.1994 is completed, the second  respondent, District Collector, shall take appropriate  action to implement G.OMs. No.955 without any further  delay, preferably within six months from the date of  receipt of a copy of the enquiry report."

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       The Collector of Hyderabad District, however, drew the attention of  the  Government that issuance of a supplementary sethwar was not possible  for the reason stated therein.  He before sending his report had given a notice  to the Appellant on or about 15.11.1993 asking him to be present in his  office on 22.11.1993 along with the relevant documents and also the address  particulars of  Moin Nawaz Jung for taking necessary action in the matter.   Pursuant to or in furtherance of the said notice, a written submission was  filed by the Appellant wherein he appeared to have denied and disputed the  fact that Plot No.7-A was a part of evacuee property contending that Khaja  Moinuddin Ansari was not an evacuee.  The Collector of Hyderabad District  by Memo. dated 23.12.1993 issued another notice asking the Appellants to  reply satisfactorily with supporting evidence on the points specified therein.    The Appellant in reply thereto, inter alia, stated that the Government had  already made inquiries, heard his counsel and arrived at certain findings but  without prejudice thereto, however he sought to clarify the points raised  therein.  The Collector thereafter allegedly made an inquiry upon  verification of the documents filed by the Respondents herein and submitted  a detailed report to the Government, opining that the Appellant’s case does  not deserve any consideration on the grounds mentioned therein.   

By a  notice dated 16.07.1994, the parties were asked to appear before  the Minister for Revenue on 23.07.1994.  It is not in dispute that a detailed  written submission was filed by the Appellant and his counsel was heard  fully on the said date.  However, it appears from the records that another  notice was issued to the Advocate of the Appellant which was not served.   Before us the original records have been produced from a perusal whereof, it  appears that the envelope containing the notice was returned to the  Government with an endorsement of the postal authority thereupon.   It is  not possible to cull out any meaning from  the said endorsement.   

On 29.11.1996, the Appellant made a representation for giving  another opportunity to him of hearing but the Government of Andhra  Pradesh issued GOMs dated 26.12.1996 holding inter alia:

       "The petitioner has never agitated against the  Notification No. 5 dated 15th September, 1949 declaring  the properties of Khaja Moinuddin Ansari alias Moin  Nawas Jung Bahadur as Evacuee Properties till 10th  April, 1997"

       Questioning the said order, the Appellant filed a writ petition wherein  a learned Single Judge, inter alia, held that the notification issued under  Regulation 6 of the Hyderabad Administration of Evacuee Properties  Regulation was bad in law, as the same did not contain material particulars  of the properties of the evacuee as was  mandatorily required.   It was further  observed that in the said notification, the name of Moin Nawaz Jung  Bahadur was mentioned, but the allotment was made to Khaja Moinuddin  Ansari and, thus, two persons are not the same. It was further held :

       "Accordingly, the impugned order is set aside and  consequently it is declared that the property belonged to  one Khaja Moinuddin Ansari; and the father of the  petitioner having purchased the same under sale  document and the petitioner having succeeded the  property after the death of his father, he shall be deemed  to have acquired the ownership of the property in  question.  The respondents are directed to implement the  orders passed by the Government in G.O.Ms. No 955,  dated 17.9.1992 within a period of two months from the  date of receipt of a copy of this order."

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       The Division Bench on an appeal made by the Government of Andhra  Pradesh set aside the said judgment.   

       Assailing the judgment of the Division Bench, Mr. K.K. Venugopal,  the learned Senior Counsel, appearing on behalf of the Appellant, would  contend that the  State of Andhra Pradesh could not have reopened  the  matter in view of GOMs. No.955 dated  17.09.1992 without initiating a  proceeding under the Evacuee Property Regulation as by reason of the said  Government Order the Appellant derived a right wherefrom he could be  deprived only upon compliance of the principles of natural justice.  In the  aforementioned situation, the State was required to issue a notice to the  Appellant so as to enable him to deal with the question not only as regard  vesting of Plot No.7-A in the Government under the Hyderabad  Administration of Evacuee Property Regulation but also that Khaja  Moinuddin Ansari and Moin Nawaz Jung Bahadur were one and the same  person.  In absence of such a notice it was urged that the findings arrived at  by the State in the impugned order were without jurisdiction.

       Mr. Venugopal would contend that the only ground upon which the  notice dated 16.07.1994 was issued is that as to why the words   ’supplementary sethwar’ in para 8 of the GOMs. No.955 dated  17.09.1992  should not be deleted.  The learned counsel would further submit that  keeping in view the fact that no notice  could be served upon the  Advocate  of the Appellant, as he had  shifted his premises in view of the representation  made by the Appellant on 29.11.1996 prior to the passing of the impugned  order, a fresh opportunity of hearing should  be directed to be given.

       Mr. K. Sundara Vardan, learned Senior Counsel appearing on behalf  of the Respondents, on the other hand, would submit that the principles of  natural justice had fully been complied with, as would appear from the fact  that the Collector had put the Appellant on notice that Plot No.7-A was an  evacuee property and furthermore Khaja Moinuddin Ansari and Khaja Moin  Jung Bahadur were one and the same person.

       It was further urged that  the  question as to   whether Plot No.7-A has  validly been declared to be an evacuee property or not, can  be raised only  by an evacuee or a person claiming through or under him in an appropriate  proceeding and not in  a collateral proceeding.                    

       In view of the order proposed to be passed, it is not necessary for us to  consider the rival contentions raised at the bar in details.  It is beyond any  cavil that some findings were arrived at by the Government of A.P. in favour  of the Appellant in terms of GOMs No.955 dated  17.09.1992.  The said  order, however, may not be said to have attained finality in the sense that the  Collector had been specifically directed to issue a supplementary sethwar in  the name of the Appellant and he was supposed to do so upon satisfying  himself in that behalf.  Such a satisfaction on the part of the Collector could  be arrived at only upon application of mind on the claim of the Appellant.  If  during inquiry, the Collector came to know that the property in question was  in fact an evacuee property and both Khaja Moinuddin Ansari and Khaja  Moin Nawab were one and the same person, nothing prevented him from  bringing the same to the notice of the State.  The State also cannot be said to  have acted illegally or without jurisdiction in issuing the show cause notice  to the Appellant inter alia for rectifying the mistakes as evidently the said  fact had not been brought to its notice before issuing GOMs. No.995 dated  17.09.1992.  However,  despite the fact that the Appellant had availed the  opportunities to respond to the questions raised by the Collector in the notice  dated 16.07.1994  he was merely asked to explain as to why the words  ’supplementary sethwar’ should not be deleted from the GOMs. No.955  dated 17.09.1992.  If the intention of the State was to recall the entire order  being GOMs. No.955 dated 17.09.1992, it should have said so explicitly.   Mr. Sundara Vardan may be right in his submission that when the Appellant  had been given  ample opportunities of hearing and he had filed a detailed  written submission, it was not necessary for the State to issue a second show  cause notice but the fact remains that such a notice was issued.

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       We are not oblivious of the fact that in response to the notice dated  16.07.1994, the  learned Advocate appeared for the Appellant before the  Minister for Revenue and filed written submissions on 23.07.1994.  Yet  again in response to the notice dated 14.06.1996, the learned Advocate for  the Appellant appeared and filed a detailed representation on 21.06.1996 and  also argued the matter.  Yet again pursuant to the notice dated 08.11.1996,  the parties were heard on 16.11.1996.  However, the notice issued on  08.11.1996 does not appear to have been served asking the counsel for the  Appellant to appear on 16.11.1996. Furthermore, while passing the order  dated 30.11.1996, the Minister for Revenue does not appear to have taken  into consideration the representation of the Appellant for further hearing  filed on 29.11.1996.

An order passed by mistake and ignorance of the relevant facts  indisputably can be reviewed, if inter alia, it is found that a fraud was  practised or there was wilful suppression on the part of the Appellant.    

       It is in the aforementioned situation, we are of the opinion that a  further opportunity of hearing may be given to the Appellant.   For the  aforementioned purpose, it is not necessary for the State to issue another  notice inasmuch as in view of the allegations and counter allegations made  in the writ petition, special leave petition as also the counter affidavits filed  on behalf of the Respondents, each party before us is aware of the  contentions raised on behalf of the other side.  The appropriate authority of  the State may, therefore, give an opportunity to the Appellant to be heard  and an appropriate order may be passed thereafter.   

       However, it is  clarified that all the parties would be at liberty to raise  all contentions in the said proceeding.   

       We, however, do not appreciate the approach of the learned Single  Judge while passing his judgment dated 12.10.2002.  He did not consider the  question as to whether validity or otherwise of the notification dated  15.09.1949 issued under Regulation 6 of the Hyderabad Administration of  Evacuee Property Regulation could have been questioned in a collateral  proceeding.  He further did not consider the fact that the question of title  could not be determined in a writ proceeding; nor the identity of a person  could conclusively be found out therein.  The learned Single Judge  furthermore did not advert to the limited scope of judicial review, namely,  that an administrative order passed by the State can be questioned only on  limited grounds and while entertaining a writ petition, the writ court does not  act as an appellate authority.    

       For the reasons aforementioned, both the judgments of the learned  Single Judge and the Division Bench are set aside.   The appeal is allowed  with the  aforementioned observations.  However, in the facts and  circumstances of the case, there shall be no order as to costs.