The Allahabad High Court has held that the State cannot stop construction on a land by merely alleging it to be evacuee property, without placing on record any document showing that the property was registered as evacuee property or that proceedings for its registration are pending.

The bench of Justice Prakash Padia and Justice Vivek Saran held,

“Since the respondents State has not brought on record any such document, which would refer the property in question either registered as an evacuee property or any such proceedings are still pending for its registration etc., mere allegation would not suffice and the action of the State respondents for stopping the constructions work on the land in question, where the map has been sanctioned, cannot be justified.”

An evacuee property is one left behind during 1947 partition by a person who migrated to Pakistan.

Petitioners claimed title to 90 square metres of Plot No. 25 (old No. 19), Civil Lines, South, Muzaffarnagar, which Nawab Mohammad Sadakkat Ali Khan had transferred to their predecessors-in-interest by an exchange deed registered on 23.07.1946. The Muzaffarnagar Development Authority sanctioned a map for a commercial complex on 16.08.2018.

Three complaints alleging the land to be enemy property had already been rejected, the last by the Assistant Custodian of Enemy Property on 02.08.2019. On 06.01.2023 State officials stopped the construction by force and on 24.01.2023 partly demolished it during the night, writing a remark on the property in the name of the Custodian, Muzaffarnagar.

The State argued that as the erstwhile owner had left India and become a Pakistani citizen, the property was liable to be treated either as enemy property under the Enemy Property Act, 1968 or as evacuee property under the Administration of Evacuee Property Act, 1950. Counsel for the Custodian of Enemy Property stated that it was not enemy property.

On the enemy property plea, the Court held that once the Assistant Custodian had recorded on 02.08.2019 that the remaining land was not enemy property, the State's reliance on an earlier communication was misplaced.

On the evacuee property plea, the Court found nothing on record beyond a passing reference in a letter dated 06.12.2021. It observed that Section 2(f) of the Act of 1950 fixed 14.08.1947 as the cut-off date for transfers, that Section 7-A barred any property being declared evacuee property on or after 07.05.1954. It held that Rule 7(3) of the Rules framed under the Act required a list of evacuee property in each State to be published once a year.

Accordingly, the Court restrained the respondents from interfering with the peaceful possession and occupation of the property to the extent of which the map had been sanctioned, and allowed the petition.