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Hayat Karim Khan Vs. the Collector and Deputy Custodian Evacuee Property, Sholapur - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 1156 of 1959
Judge
Reported inAIR1963Bom219; (1963)65BOMLR13; ILR1962Bom696; 1963MhLJ258
ActsAdministration of Evacuee Property Act, 1950 - Sections 7-A; Administration of Evacuee Property (Amendment) Act, 1954 - Sections 4, 7, 7A, 8 and 10
AppellantHayat Karim Khan
RespondentThe Collector and Deputy Custodian Evacuee Property, Sholapur
Appellant AdvocateA.A. Omar, Adv.
Respondent AdvocateV.H. Gumaste, Addl. Govt. Pleader
Excerpt:
administration of evacuee property act (xxxi of 1950), section 7-a - administration of evacuee property (amendment) act (xlii of 1954), sections 4, 8, 10--period of six months for notice under section 7-a whether commences from may 7, 1954 or october 8, 1954.under the second proviso to section 7-a of the administration of evacuee property act, 1950, the period of six months for the purpose of notice under section 7 of the act will commence from october 8, 1954. therefore, the property referred to in section 7-a(b) of the act can be declared to be evacuee property and proceedings in that behalf can be taken by the authorities even after may 7, 1954, but only upto april 8, 1955, and no more. - - 1. the only question that has been raised in this appeal is as to whether the last proviso in..........evacuee properly act, 1954 which was introduced into the act by section 4 of the administration of evacuee property (amendment) act, 1954, can be said to have a retrospective effect, in the sense that its provisions must be deemed to have come into effect as from 7th may 1954. both the trial court is well as the learned extra assistant judge were of the view that the expression in that proviso, namely, 'commencement of the administration of evacuee property (amendment) act of 1954', which was admittedly on 8th october 1954, could not be substituted by '7th may 1954' and that, therefore, the property which was attached by the appellant in execution of his decree against the judgment-debtor was not liable to be attached in the hands of the custodian of evacuee property.2. mr. omer the.....
Judgment:

1. The only question that has been raised in this appeal is as to whether the last proviso in Section 7-A of the Administration of Evacuee Properly Act, 1954 which was introduced into the Act by Section 4 of the Administration of Evacuee Property (Amendment) Act, 1954, can be said to have a retrospective effect, in the sense that its provisions must be deemed to have come into effect as from 7th May 1954. Both the Trial Court is well as the learned Extra Assistant Judge were of the view that the expression in that proviso, namely, 'commencement of the Administration of Evacuee Property (Amendment) Act of 1954', which was admittedly on 8th October 1954, could not be substituted by '7th May 1954' and that, therefore, the property which was attached by the appellant in execution of his decree against the judgment-debtor was not liable to be attached in the hands of the Custodian of Evacuee Property.

2. Mr. Omer the learned advocate for We appellant decree-holder, contended that Section 10 of the Amendment Act specifically provided that the amendments introduced by Sections 4 and 8 of the Amendment Act shall he deemed to have come into effect as from 7th May 1954 and that, therefore, for the words 'commencement of the Administration of Evacuee Property (Amendment) Act of 1954' the date '7th May 1954' should be substituted. It is certainly true that Section 10 of the Amendment Act makes a specific provision for the retrospective operation of the amendments introduced by Sections 4 and 8 of the Amendment Act. But if we turn to Section 7-A which has been introduced by Section 4 of the Amendment Act, it would appear as if one need not have recourse to Section 10 for the purpose of finding whether the last proviso to Section 7-A should operate from 7th May 1954, because wherever it has been thought proper by the Legislature that operation should be given to the proviso in that section as from 7th May 1954, that date has been specifically stated. Section 7-A which has been introduced by Section 4 of the Amendment Act is as follows:

'Notwithstanding anything contained in this Act, no property shall be declared to be an evacuee property on or alter the 7th day of May, 1954; provided that nothing contained in this section shall apply to:

(a) any property in respect of which proceedings are pending on the 7th day of May, 1954 for declaring such property to be evacuee property; and

(b) the property of any person who, on account of the setting up of the Dominions of India and. Pakistan or on account of civil disturbances or the fear of such disturbances had left on or after the 1st day of March, 1947 any place now forming part of India, and who, on 7th day of May 1954, was resident in Pakistan.

Provided further that no notice under Section 7 for declaring any property to be evacuee property with reference to clause (b) of the preceding proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act of 1954.'

3. Now, it will be clear that the primary intention of the section is that no properly shall be declared to be evacuee property on or alter the 7th day of May 1954. So far as this part of the section is concerned, it is specifically expressed to have come into operation as from 7th May 1954 and recourse to Section 10 for the purpose of finding its retrospective nature is not at all necessary. Then clause (a) of the first proviso also mentions 7th May 1954 as the date in respect of any proceedings that might be pending for declaration of any property to be evacuee property. According to this clause of the first proviso, the substantive part of the section, namely, that no properly shall be declared to be evacuee property on or after 7th May 1954, shall not apply to any property in respect of which proceedings for declaring such property to be evacuee property are pending on that day i.e. on 7th May 1954. This clause to the first proviso, therefore, constitutes the first exception to the section. Clause (b) of the proviso also refers to 7th May 1954 as being the date on which a person who bad left on or after the first day of March, 1947 any place now forming part of India, was resident in Pakistan. The substantive part of the section is not to apply by reason of this clause of the proviso to the property of such person. In other words, the property of such person can be declared to be evacuee property even after 7th May 1954. Then there is a further proviso added to the section and that proviso says that where a property has been left by a person in India who was resident in Pakistan on 7th May, 1954, such property can be declared to be evacuee properly even after 7th May, 1954, but no notice for declaring such property to be evacuee property under Section 7 of the Act shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act of 1954. Reading the substantive part of the section, clause (b) of the first proviso and the last proviso together, the conclusion that one can reach is that although as a general rule no property shall be declared to be evacuee property on or after 7th May 1954, in case of any property of a person who left on or after 1st March 1947 any place now forming part of India and who on 7th May 1954 was resident in Pakistan, proceedings for declaring such property to be evacuee property can be taken even after 7th May 1954, but no notice for such declaration under Section 7 of the Act shall be given after the expiry of six months from the commencement of the Administration of Evacuee Property (amendment) Act of 1954 i.e. from 8th October 1954. The effect of clause (b) of the first proviso by itself would be that the property of a person who was resident in Pakistan an 7th May 1954 may at any time be declared to be evacuee property even after 7th May 1954. But the second proviso makes all the difference to this position. It specifically refers to the property referred to in clause (b) of the first proviso and with reference to that property it is specifically stated that no proceeding for declaring that property to be evacuee property by way of giving notice for the purpose shall be taken after the expiry of six months from the commencement of the Amendment Act. In other words, the property referred to in clause (b) of the section could be declared to be evacuee property and proceedings in that behalf could be taken by the authorities even after 7th May 1954 but only upto 8th April 1955 and no more. If Mr. Omer's contention were to be accepted and the date '7th May 1954' were to be substituted for the words, 'commencement of the Administration of Evacuee Property (Amendment) Act of 1954', the period of six months would be cut down to only one month after the commencement of the Amendment Act, and obviously no action under the proviso could be taken by the authorities until after the commencement of the Act. Apart from this, there is no warrant at all in any part of the Amendment Act not even in Section 10 of the Amendment Act for substituting '8th May 1954' for the words 'commencement of the Administration of Evacuee Property (Amendment) Act of 1954'. Mr. Omer very fairly conceded that the whole of the Amendment Act was not given retrospective effect, and that it was only Section 4 and Section 8 of the Amendment Act that were given retrospective effort as from 7th May 1954. If that is so, I fail to see any justification for substituting the date '7th May 1954' for the words 'commencement of the Administration of Evacuee Property (Amendment) Act of 1954'. Besides, it appears to me that in so far as this section is concerned, apart from the provisions of Section 10 of the Amendment Act, wherever the Legislature intended that the provisions should operate as from 7th May 1954 it is specifically so stated. So far as the second proviso to the section is concerned, it was not the intention of the Legislature that the period of six month for the purpose of notice should commence from 7th May 1954. 11 it was so intended, the legislature could very well and easily have used that date instead of the long expression 'Commencement of the Administration of Evacuee Property (Amendment) Act of 1954'. This divergence in expression itself makes it very clear that the Legislature did not intend by the second provision to section 7-A that no notice for declaring a property referred to in clause (b) of the first proviso to be evacuee property could be given after the expiry of six months from 7th May 1954. In my opinion, the construction of the proviso is very clear and it means what in terms It says. Accordingly, the view taken by both the lower Courts is quite correct and the appeal is dismissed with costs.

4. Mr. Omer applies for certificate. Certificate refused.

5. Appeal dismissed.


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