KADIR ABDUL GANI Vs. COLLECTOR AND SETTLEMENT OFFICER

JUDGEMENT

(1.) The short facts of the case are that the petitioners are claiming to be the legal heirs of Smt.Rabiya Vali Mohmed having interest in the property which was purchased by her as per the sale transaction dated 27-7-1962 from Bassarmal Motumal and Bulchand Bassarmal. The said Bassarmal Motumal and Bulchand Bassarmal appear to have purchased the property as per the auction sale of the evacuee property of one Ahmed Gani of Jetpur who went to Pakistan after 14-8-1947. It further appears that the said Ahmed Gani had purchased two plots admeasuring 986 sq. yds. from one Kassam Tar Mohmed Vadiwala. Out of the said area of 986 sq, yds., when the property came to be declared evacuee there was construction over the land admeasuring 360 sq.yds. and the left out area of open land was 626 sq.yds. It is the case of the petitioners that when Bassarmal Motumal and Bulchand Bassarmal purchased the property in the auction of the aforesaid evacuee property, which comprised of a total area admeasuring 986 sq. yds. of the land with the superstructure in the portion of the land and the said area was given E.P. No.35/1 and the whole property was purchased by Smt.Rabiya Vali Mohmed as per the sale transaction dated 27-7-1962.

(2.) However, in the year 1977 proceedings of show-cause notice came to be issued by the Rehabilitation Officer and the Managing Officer under The Administration of Evacuee Property Act, 1950 (hereinafter referred to as "the Act") and ultimately the said authority as per the decision dated 23-11-1977 declared the open area of the plot admeasuring 626 sq. yds. as acquired evacuee property (E.P.) No.35/2 and subsequently ordered that the possession of the said property should be taken over.

(3.) It appears that the petitioners thereafter carried the matter before this Court by preferring SCA No.1774/1977 and this Court (Coram: I.C.Bhatt, J. as he was then), as per the decision dated 18-4-1984 set aside the order dated 23-11-1977 only on the limited ground that the petitioner has not been heard, nor has he been given any reasonable opportunity to defend his case before passing the impugned order and, therefore, the direction was given to the respondent to hear the petitioner on the show-cause notice dated 2-2-1977 and to pass appropriate orders in accordance with law. It was also observed that the petitioner will be at liberty to produce any other evidence that he wishes in connection with his defence and the same shall be taken into consideration by the competent authority. It further appears that thereafter the Collector heard the petitioner and passed the order, whereby he found that the evacuee property No.35/1 was comprising of the residential building and the land admeasuring 360 sq. yds. only and evacuee property No.35/1 was not of open plot admeasuring 626 sq. yds. and, therefore, he declared that there is automatically vesting of the said property of migrants bearing evacuee property No.35/2 and consequently the Mamlatdar and the Custodian was directed to take possession of the property. The matter was carried further by the petitioners before the authorized Chief Settlement Commissioner and Dy. Secretary (Rehabilitation), Revenue Department of the State Government against the decision of the Collector. The said Chief Settlement Commissioner ultimately passed the dated 5-5-1989 whereby for the reasons recorded in the said order he rejected the application of the petitioners and confirmed the order dated 28-10-1987 of the Collector and under these circumstances the present petition before this Court.