SINDHI KASAM MOTI Vs. M. N. BUCH

JUDGEMENT

(1.) The present petition brings out clearly how mindless the bureaucratic machinery can be in passing orders which would have drastic consequences in respect of the person or property of a citizen. It is difficult to say whether this is due to thoughtlessness or inefficiency or for some ulterior motive. Whatever be the reason it is equally reprehensible. The peculiar facts of this case are that although this Court (Coram: B. J. Divan, C.J.) by his judgment and order dated 9th September, 1977 in Special Civil Application No. 45/74 had very clearly and distinctly held that the impugned order declaring the petitioner's property as evacuee property was in contravention of the provisions of Section 7A of the Administration of Evacuee Property Act (hereafter called the Act) as there was no evidence on record as to when the petitioner of the said petition Kasam Moti, the father of the present petitioners had migrated to Pakistan or had become an evacuee. In that petition also, the respondent State of Gujarat did not care to file an affidavit -in -reply presumably because they had no material to prove the alleged migration. In this petition also the State has not bothered to file an affidavit -in -reply controverting the averments made in the petition or setting out the facts as to when the present petitioners' father ever migrated to Pakistan.

(2.) INSPITE of clear finding given by this Court, in the aforesaid judgment which is Annexure 'C' to this petition, the Deputy Custodian of Evacuee Properties and Collector -cum -Settlement Commissioner, Junagadh thoughtlessly issued the impugned order dated 23 -1 -78 whereby he declared the suit property bearing survey No. 10/1 admeasuring 12 acres and 29 gunthas as evacuee property. As in the earlier petition in the present petition also, the respondent Deputy Custodian has not filed any affidavit -in -reply to show as to on what basis did he pass the impugned order and what material did he possess to show that the father of the petitioners was an evacuee. Miss K. N. Valikarimwala, the learned Asstt. Government Pleader on behalf of M/s. Bhaishanker Kanga and Girdharlal for the respondent was granted time either to file an affidavit in -reply or to keep some responsible officer present to answer the queries from the Court. It is surprising that the respondent Dy. Custodian of Evacuee Property has neither filed affidavit nor cared to remain present as directed by this Court. That shows the careless or irresponsible attitude adopted by the respondent. It is very difficult for the Court to decide the questions before it in absence of necessary cooperation and proper assistance by the respondent. The respondent not filing the affidavit -in -reply in this petition as well as in the previous one shows that he has got no material now and never had any before him to show that the father of the present petitioners was an evacuee at any time. Even if he has, it is of no use because it is not produced before the Court. Moreover, to issue a notice under the provisions of an Act which have ceased to exist more than two decades ago, suggests that the impugned notice is wholly malafide and perhaps that is the reason why the respondent has failed to file affidavit -in -reply or to remain present before the Court inspite of the clear and specific directions given to the learned Assistant Government Pleader in this regard. In absence of any reply by the respondent, the facts set out and the averments made in the petition have to be accepted as correct. It was held by this Court in the aforesaid decision and it is being held in this petition also that there is nothing on record to show that the petitioners' father was an evacuee at any point of time and hence the present petition is allowed as was the earlier one.

(3.) THE petitioners' father was put to avoidable expenses and hardship by the thoughtless action of the respondent and the same has been done to the present petitioners. This shows how much callous some officers can be towards the citizens especially the agricultural rural folks. It seems that the previous judgment of this Court has been wilfully disregarded, otherwise there was no reason to give the impugned notice if the respondent had cared to read that judgment. It is indeed a matter of regret that these things have to be said in respect of an officer of such a high rank as the Collector and Deputy Custodian of the Evacuee Property. Whether such an action is due to ignorance or personal malafide in either case, it is disgraceful for any officer. More so, for an officer of a high rank.