Judgment:
Lingaraja Rath, J.
1. The claim in these two cases relates to evacuee property allotted to one Nenumal, a displaced person on 26-2-1969 under the provisions of the Administration of Evacuee Property Act, 1950 (referred to hereinafter as '1950 Act'). Even though long years have elapsed yet the dispute between the parties has been kept alive by series of litigations spreading over the period and contested at all the levels including in this Court and the Supreme Court, as also before the executive authorities.
2. The facts of the case appear in the judgment under the appeals as also in the previous judgments. We are referring to the facts in brief only to elucidate the discussions to be made hereafter.
3. The property originally belonged to one Ghulam Mohd. Qureshi who died in 1943 leaving behind two sons viz., Ghulam Mahamood Qureshi and Naziruddin and his widow Jahangirunnisa Begum. For convenience sake we shall refer to the son Qureshi as the junior Qureshi. After his migration to Pakistan two notices were issued on 16-7-1955 and 3-2-1955 declaring his property as evacuee property under the 1950 Act and on 27-2-1969 the property was allotted to the petitioner in W.P. No. 568/1980. Dr. Mallikharjuna Rao, the appellant is the Power of Attorney holder for the heirs of the displaced person Nenumal. One Mohd Fakruddin, the writ petitioner in W.P. No. 1895/1980 out of which W.A. No. 1505/86 arises, challenged the declaration and allotment before this Court in W.P. No. 34/1970. That case having been allowed by a learned Single Judge, the judgment was assailed on behalf of the allottee in W. A. No. 403/1972 which was decided on 17-4-1973 holding that what had vested under the 1950 Act was 7/16th share of all the properties left by the father Qureshi including the Ac.51-16 guntas allotted to him. The Court held that the undivided 7/16th share vested in the custodian could be allotted validly to a displaced person. Any person found in possession of such property which has vested in the custodian was bound on demand to surrender possession to the custodian or to any person authorised by him. After the decision of the Court a communication was made on 30-6-1977 by the Managing Officer of the Ministry of Works, Housing, Supply and Rehabilitation (Settlement Wing), New Delhi, to the Collector and District Magistrate, Hyderabad, even while referring to the Judgment of the Court, that the property under dispute was to be dealt with under the provisions of the Administration of Evacuee Property Act and the rules framed thereunder, that the views expressed in letter Rc.D4/ 654/77 dated 31-3-1977thattheshare of the custodian is 7/16 and the remaining 9/16 belongs to Mohd. Fakruddin and that the property is a composite property, are not correct as Mohd. Fakruddin had lost his case with regard to his claim in the property in question. He therefore, requested the Collector to put the allottee Nenumal in possession of the entire land measuring Ac.51-16 guntas. Since no steps were taken, the Power of Attorney holder filed W.P. No. 568 / 80 seeking implementation of the order of the Managing Officer, dated 30-6-1977. The other Writ Petition No. 1895/80 was filed by Mohd. Fakruddin seeking relief to declare the letter dated 7-4-1980 of the Tahsildar, Rajendranagar taluk, requesting the allottee to select the survey numbers to an extent of Ac.22-37 (both dry and wet) out of Ac.52-14 guntas of land as representing 7/16th share of the alleged property as void and without jurisdiction. The further relief claimed was to direct respondents 1 and 2 i.e. Collector and the Tahsildar to refer the claim of the allottee to the extent of 7/16th share to the Competent Officer under the Evacuee Interest (Separation) Act, 1951 (Act 64/51) (for short '1951 Act') and to separate his share in the composite property. Both the cases were disposed of by the learned Single Judge by a common Judgment allowing both the Writ Petitions and directing the competent authority under Act 64/51 to make enquiry about the interest of the evacuee as directed by the Court in W.A. No. 403/72. The direction in W.P. No. 568/80 was that on such determination, the authorities under the 1950 Act and also under the 1951 Act shall put the allottee in possession of the property declaring the property as evacuee property. In the present appeals the judgment has been assailed by both the parties, it being the claim of the allottee that the entire Ac.51-16 guntas must be allotted to him as was decided by the Managing Officer, in his letter dated 30-6-1977, and the other being the move in W. A. No. 958 /87 to assail again the very allotment made as also the declaration of the lands as the evacuee property and also the direction to implement the judgment in W.A. No. 403 of 1972 dated 17-4-1972.
4. For convenience sake we shall refer to the Power of Attorney holder of the allottee Nenumal as the petitioner and the appellant in W.A. No. 958/87 as the 1st respondent.
5. The basis of the claim of the 1st respondent is on the basis of two sale deeds executed by all the heirs of the father Quareshi on 14 ABAN, 1356 Fasli and 20 AZRU, 1357 Fasli approximately corresponding to 14-9-1947 and 20-10-1947 respectively. These two sale deeds were found, to the extent they purported to transfer evacuee property, by the Judgment in W.A. No. 403/72, as not valid. The learned Judge also found the allotment made in favour of the petitioner to be correct, but restricted the evacuee interest to be 7/16th share in the total property of father Quareshi including the Ac.51-16 guntas of land involved in the present case and decided that only such property was liable to be allotted to the petitioner. The judgment in W.A. No. 403/72 was subjected to Special Leave Petition before the Hon'ble Supreme Court, but leave was refused. The issues decided in that judgment have hence become final and are not available for readjudication as is purported to be moved in W.A. No. 958/87. As a matter of fact the very questions attempted to be raised in W.A. No. 958/87 are also foreign to the contentions advanced in W.P. No. 1895/80, as in that petition the 1st respondent only sought the relief to direct the Collector and the Tahsildar to refer the claim of the allottee to the competent authority under 1950 Act to demarcate the 7/16th share of the allottee and to give him possession. Hence there is no need to differ with the learned Judge in dismissing the W.A. No. 958/87. The question raised by the petitioner is that the 1st respondent not having made an application under Section 6(3) of the 1951 Act and that too within the time stipulated, i.e. one year from the commencement of the Evacuee Interest (Separation) A.P. Amendment Act, 1960, the right to claim separation of the composite property was (sic) and as such the allotment order in its entirety is operative to the credit of the petitioner. The learned Single Judge held that even if an application had not been made within one year by the 1st respondent as required under Section 6(3) of 1951 Act, yet it was the duty of the competent Officer to have given a general notice requiring all persons having interest to lodge claim in respect of the property and also issue notice to every person who, in his opinion had a claim in the property, to submit claims and that such duty of the competent Officer was not obliterated only because the claimant does not submit the claim within one year. Taking such a view the learned Single Judge directed the competent authority under 1951 Act to make enquiry as to the interest of the evacuee as directed in W.A. No. 403/92 and put the allottee in possession. Section 6 of the 1951 Act deals with separation of interest in the composite property consisting of both evacuee interest and non-evacuee interest. To appreciate the submission advanced, it is of benefit to extract Section 6 of 1951 Act:
'6. Notice to submit claims:-
(1) For the purpose of determining or separating the evacuee interest in a composite property, any competent officer having jurisdiction over such property may, either on information received in this behalf from the Custodian or on an application from a claimant, issue, in such form and manner as may be prescribed,-
(a) a general notice requiring all persons who claim interest in such property, and
(b) also a notice on every person who, in the opinion of the competent officer, may have a claim in such property, to submit claims, if any, in respect of that property.
(2) An application under sub-section (1) shall be in such form and manner as may be prescribed.
(3) No application under this section shall be entertained if filed after the expiry of one year from the commencement of the Evacuee Interest (Separation) Amendment Act, 1960.
Since the period is specified under sub-section (3) of Section 6 that no application is to be entertained after expiry of one year from the commencement of the Evacuee Interest (Separation) Amendment Act, 1960, the argument is that no application having been made within the stipulated time, the person claiming right to the non-evacuee share can no longer pursue the case, the effect of which would be extinguishment of his right in respect of that interest and the entire composite property would continue to vest in the custodian. The submission is fallacious. The 1950 Act only directs vesting of evacuee property and nothing more. Any property which is non-evacuee property does not get vested in the custodian. Hence even when the property is composite, the non-evacuee part of it continues as the property of the person who has the right to it. The right to property was protected under Article 31 of the Constitution of India till 20-6-1979 when the 44th Amendment Act, 1978 came by which Articles 19-Fand 31 were deleted. Any person who was the owner of non-evacuee property even though such property was composite had the fundamental right to hold it which he could not be deprived of except in accordance with Article 31 as it stood then. Sub-section (3) of Section 6 of the 1951 Act hence could not be given an interpretation so as to deprive a person of his fundamental right to property. It is well settled that statutes are to be interpreted, as far as possible, so as to find them constitutional and not as defeating the guarantees of the Constitution. A presumption of constitutionality is attached to all statutes. If sub-section (3) of Section 6 is interpreted in the manner as is contended before us, the provisions would have been ultra-vires of Article 31 of the Constitution. That being so the only interpretation, to which a combined reading of sub-section (3) and Sub-section (1) of Section 6 of 1951 Act is amenable to, is that while an application from the claimant would not be entertained after one year, yet his right to that property is not extinguished and that at any time which is not fixed under the statute, the competent officer can issue notice or proceed to determine the actual interest of the non-evacuee and take steps under Section 10 of the 1951 Act to separate the interest. The only set back which the claimant, suffers because of his default in making the application in time is that his right to get his interest separated is suspended. But once the competent officer initiates the move to separate the interests, his right to the property operates uninhibited and he becomes entitled to the separation. In that view of the matter, we concur with the view taken by the learned Single Judge.
6. In the result, both the Writ Appeals are liable to be dismissed. Since much time has lapsed we direct the competent Officer under the 1951 Act, the Commissioner of Survey, Settlement and Land Records (Custodian of Evacuee Property) A.P., Hyderabad, to take recourse to Section 10 of that Act after issuing notices to both the parties and carve out Ac.22-38 guntas representing 7/16th share and deliver possession of the same to the allottee within four months from the date of receipt of this order.
7. The Writ Appeals are accordingly dismissed. No order as to costs.