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Mohamed Balam Shaikh Vs. R.S. Trivedi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Petition No. 299 of 1953
Judge
Reported in(1954)56BOMLR991
AppellantMohamed Balam Shaikh
RespondentR.S. Trivedi
Excerpt:
administration of evacuee property act (xxxi of 1950), sections 7(1), 9 - administration of evacuee property (central) rules, 1950, rule 7(1), (2)--notification issued by custodian declaring that assets of business evacuee property without giving description of assets--whether notification constitutes declaration that particular items of such assets evacuee property. ;under rule 7(7) of the administration of evacuee property (central) rules, 1950, the custodian of evacuee property has to be satisfied that a 'particular' property is evacuee property, and it is not open to him to say generally that the assets of a business is evacuee property, without giving a description by which the assets can be identified. the notification issued by him should, therefore, give sufficient particulars of..........appropriate writ, direction or order in connection with several orders passed by the custodian of evacuee property, deputy custodian of evacuee property, additional custodian and assistant custodian, who are the four respondents in this petition,2. from the petition as drafted it is extremely difficult to find out what the actual grievance of the petitioner is and on what ground or grounds he challenges any one of the many orders. strangely enough, not a single one of the orders challenged is annexed to the petition. that by itself is a serious lapse and might have entailed the consequence of the dismissal of the petition because it is quite essential that the order sought to be set aside must be before the court and it is not sufficient merely to refer to the orders in the petition......
Judgment:

Tendolkar, J.

1. This is a petition for an appropriate writ, direction or order in connection with several orders passed by the Custodian of Evacuee Property, Deputy Custodian of Evacuee Property, Additional Custodian and Assistant Custodian, who are the four respondents in this petition,

2. From the petition as drafted it is extremely difficult to find out what the actual grievance of the petitioner is and on what ground or grounds he challenges any one of the many orders. Strangely enough, not a single one of the orders challenged is annexed to the petition. That by itself is a serious lapse and might have entailed the consequence of the dismissal of the petition because it is quite essential that the order sought to be set aside must be before the Court and it is not sufficient merely to refer to the orders in the petition. But fortunately for the petitioner the respondents have made good the deficiency by annexing all the orders to the affidavit in reply and the orders are now before the Court; and it is now possible after looking at the affidavit of the respondents to visualise what the dispute is and what the grievance of the petitioner is.

3. The petitioner claims to be the owner of a motor lorry bearing No. BMS 1017 and he alleges that he purchased it on August 23, 1951, from one Bachubhai who was carrying on business in the name of Lucky Transport Co. On August 28, 1952, this lorry was attached by the Police at Ahmednagar under orders of the Regional Transport Officer, Nasik. The Regional Transport Officer in his turn acted upon a letter written by the Deputy Custodian of Evacuee Property dated July 12, 1952, requesting the Regional Transport Officer to take possession of the car. After this car had been attached the petitioner made inquiries as to the circumstances under which it had been attached, and it was found that there were certain proceedings under the Evacuee Property Act as a result of which the Custodian claims that this lorry had been declared to be evacuee property. Now, it appears that one Rajahussein was a partner of Bachubhai in the Lucky Transport Co. Proceedings under the Evacuee Property Act were taken as a result of which on June 1.2, 1951, the Assistant Controller held that Bachubhai was the owner of the Lucky Transport Co. or rather its assets and not Rajahussein. This decision of the Assistant Custodian was reversed by the Additional Custodian on August 29, 1951, and on August 30, 1951, a notification was issued declaring certain properties to be evacuee properties. The relevant part of the notification which gives the description of the property with which we are concerned is:

Right title and interest of Baza Hussein Suleman Agha in the Lucky Transport Co., including tenancy rights at 16 Nowroji Hill Road, Dongri, Bombay 9, and all the capital assets (including truck No. BMS 652 and other trucks) of the said Lucky Transport Company.

It appears that on September 14, 1951, Bachubhai went in revision against this order of August 29, 19.51, but by his letter dated May 20, 1952, Bachubhai withdrew this revision and the revision application was accordingly dismissed by the Custodian General on June 20, 1952.

4. It also appears that proceedings under the Evacuee Property Act were instituted against Bachubhai and on August 8, 1952, an order was made declaring Bachubhai to be an evacuee and car No. BMZ 8070 to be evacuee property. On August 30, 1952, the present petitioner made an application for confirmation of the transfer of this truck to him by the evacuee Bachubhai although the truck had not been declared to be evacuee property as forming the property of Bachubhai. This application was dismissed on December 16, 1952, and an appeal against this dismissal to the Custodian was dismissed by an order dated July 20, 1953. The orders against which the petitioner seeks relief are the order of July 11,1952, which as I have earlier stated is a letter addressed by the Deputy Custodian of Evacuee Property to the Regional Transport Officer, Nasik, to take possession of the truck, the orders of August 29 and 30, 1951, relating to the property of the evacuee Raza Hussein, the order of August 8, 1952, relating to the property of the evacuee Bachubhai and the orders of December 16, 1952, and July 20, 1953, relating to the application for confirmation made by the petitioner.

5. Now, it is quite plain that the order of August 8, 1952, which declares Bachubhai to be an evacuee only declares car No. BMZ 8070 as evacuee property, and it does not purport to deal with the lorry No. BMS 1017 which the petitioner claims as his own. Obviously, therefore, the petitioner can have no right to seek to set aside this order nor has he any interest in doing so. Similarly, as Bachubhai has not been declared to be the owner of truck No. BMS 1017 by the Custodian of Evacuee Property nor has the said truck been notified to be evacuee property, the question of an application for confirmation itself does not arise, and therefore the dismissal of the application cannot give the petitioner any right to come to Court to set aside the dismissal. As there was no transfer of any property belonging to the evacuee Bachubhai, there could be no question of confirmation of any such transfer. Therefore, it is clear that in so far as the orders of August 8, 1952, and December 16, 1952, and July 20, 1953, are concerned, the petitioner cannot claim any relief.

6. Turning next to the orders made in the proceedings against Raza Hussein, if there is an order declaring BMS 1017 to be evacuee property as being the property of Raza Hussein, the petitioner may have a right to have these orders set aside, provided ho made out some good cause for doing so. But when one turns to the order of August 29 and the declaration of August 30, 1951, which I have already set out above, truck No, BMS 1017 is, in my opinion, not included in the property declared as evacuee, property by that notification.

7. Turning for a moment to the relevant provisions of the Act and the rules, Section 7(1) of the Act provides that the Custodian shall have power to declare any property as evacuee property after causing notice to be given and after holding such inquiry as the circumstances of the case may permit. Then Rule 7 of the Administration of Evacuee Property (Central) Rules, 1950, sub-r. (1), provides that

The Custodian after holding such inquiry as ho deems fit and on being satisfied that a particular property is evacuee property shall notify the same....

the manner of notification being provided by the rule; but it is clear from this rule that the Custodian has to be satisfied that a 'particular' property is evacuee property, and it is not open to him to say generally that the assets of a business or for the matter of that the truck of a business is evacuee property, without giving a description by which the assets or the truck can be identified. This is made clearer when one turns to sub-r. (2) of Rule 7 which provides that the notification which is to be given under Rule 7(1) shall be in form No. 2; and it further provides that the notification shall give full particulars of the property regarding the location, etc. When one turns to form 2, that form also has a column headed 'description' for every property. It is obvious, therefore, that the law requires that the notification should give sufficient particulars of the property so as to make it possible for any person to identify the property, and, in my opinion, the notification which says that 'all the capital assets of the Lucky Transport Company' or even adding 'including truck No. BMS 652 and other trucks' is not sufficient to constitute a declaration that trucks belonging to the Lucky Transport Company of which no particulars are given and which cannot be identified by the public from this notification were declared to be evacuee property. Just as truck No. BMS 652 was specifically mentioned, the Custodian should have, if he desired to declare any other trucks as evacuee property, set out such particulars about the trucks as would enable the public to identify the trucks, the object of the notification obviously being to enable the public to know that a particular specified property has been declared to be evacuee property. In my opinion, therefore, the notification of August 30, 1951, does not declare truck No. BMS 1017 to be evacuee property.

8. Therefore, the petitioner is not concerned with that order or with the setting aside of that order, nor with the setting aside of the order of August 29, 1951, of the Additional Custodian as a result of which this notification was made.

9. He is, however, concerned with the forcible taking of possession by the police of the truck which was admittedly in his possession. No one could deprive him of that possession unless he could establish a title to that truck superior to the title of the petitioner. The Custodian could take possession of that truck under Section 9 of the Evacuee Property Act only if there had been a declaration that the truck was evacuee property and the petitioner refuses or fails on demand to surrender possession of the truck. Now, in this case both the requisite ingredients are absent. There is no order declaring this truck to be evacuee property nor is there any demand on the petitioner to surrender possession of the truck and a failure or refusal on his behalf to do so. Obviously, therefore, the action of the Regional Transport Officer acting upon the request of the Deputy Custodian to take forcible possession of the truck through the agency of the police was quite unjustifiable. Possession of the truck has pending these proceedings been restored to the petitioner upon his giving security, so that the Custodian has placed himself in a position in which he could ask the petitioner to restore possession to him or enforce the security. As in my opinion the Custodian had no right in the first instance to obtain possession of the lorry as he did, he is not entitled to take any steps to obtain possession of the lorry from the petitioner until the conditions laid down in Section 9 of the Evacuee Property Act are first satisfied, viz. that a declaration is made that this truck is evacuee property and upon demand being made on the petitioner to surrender possession he fails or refuses to surrender possession.

10. I will, therefore, restrain the respondents from taking possession of truck No. BMS 1017 from the petitioner without complying with the provisions of Section 9 of the Evacuee Property Act.

11. As regards costs, the petitioner has succeeded only on a point which has not been specifically raised on the petition, and the numerous allegations, including allegations of mala fides, which have been made in respect of the various orders of the respondents, have turned out to have in any event 110 relevance whatever to the petition before me. Having regard to this fact I make no order as to the costs of this petition.


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