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Vadapalli Sattaiah Vs. Custodian, Evacuee Property, Govt. of A.P., Hyderabad - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. No. 752 of 1958
Judge
Reported inAIR1961AP477
ActsAdministration of Evacuee Property Act, 1950 - Sections 4 and 10(2); Administration of Evacuee Property (Central) Rules, 1950 - Rule 22; Administration of Evacuee Property (Amendment) Act, 1956
AppellantVadapalli Sattaiah
RespondentCustodian, Evacuee Property, Govt. of A.P., Hyderabad
Appellant AdvocateB.V. Subrahmanyam, Adv.
Respondent AdvocateThe 3rd Government Pleader
Excerpt:
.....section 10 (2) (m) of administration of evacuee property act, 1950, section 4 of administration of evacuee property (amendment) act, 1956 and rule 22 of administration of evacuee property (central) rules, 1950 - petition filed for issue of writ claiming amount decreed from respondent - amendment in section 10 (2) (m) effected right of petitioner - nothing showed amendment made with retrospective effect - under section 4 petitioner's right to have decree debt due to him not effected - held, petitioner entitled for payment of debt. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general clauses act, 1897, section 6: [g.s. singhvi, cj, dr.g. yethirajulu, ramesh ranganathan, g.bhavani prasad, c.v. nagarjuna reddy, jj] exemption of..........of mandamus or any other appropriate writ or directions calling upon the respondent-custodian of evacuee property, state of andhra pradesh, hyderabad to pay to the petitioner the amount decreed to him in o. s. no. 32/1 of 1358 fasli, on the file of the sessions court, secunderabad against the judgment-debtor, khwaja hussain timmapuri, an evacuee from and out of the monies belonging to the said evacuee in the hands of the respondent2. the facts are shortly as follows: on 24-1-1949, the petitioner herein filed a suit o. s. no. 82/1 of 1358 fasli in the court of the sessions judge, secunderabad against the said timmapuri and his partner for the recovery of rs. 37,864-10-8 being the amount due on the foot of khata dealings. the petitioner obtained an attachment before judgment of the said.....
Judgment:

Ramachandra Rao, J.

1. This is an application by the petitioner for the issue of a writ of mandamus or any other appropriate writ or directions calling upon the respondent-Custodian of Evacuee Property, State of Andhra Pradesh, Hyderabad to pay to the petitioner the amount decreed to him in O. S. NO. 32/1 of 1358 Fasli, on the file of the Sessions Court, Secunderabad against the judgment-debtor, Khwaja Hussain Timmapuri, an Evacuee from and out of the monies belonging to the said evacuee in the hands of the respondent

2. The facts are shortly as follows: On 24-1-1949, the petitioner herein filed a suit O. S. No. 82/1 of 1358 Fasli in the Court of the Sessions Judge, Secunderabad against the said Timmapuri and his partner for the recovery of Rs. 37,864-10-8 being the amount due on the foot of khata dealings. The petitioner obtained an attachment before judgment of the said Timmapuri's house in Nallagutta, Secunderabad. After the defendant had been served with notice, the petitioner's Advocate brought it to the notice of the Court that the 1st defendant was an evacuee and that the Custodian of Evacuee property, Hyderabad State should be notified of his claim in the suit. The Court then passed an order on 29-6-1949 to the following effect;-

'Now the regulation has come into force..... send a copy of the application to toe Custodian to enable him to decide whether he wants to be a party to the suit or not.'

On 7-8-1949, the Court granted two weeks' time to the Custodian directing him to send his attorney or Pleader to file his written statement and put forward bis pleas. The Custodian having failed to take further steps in the matter, the Court passed an order to the following efiect:-

'The 1st defendant's advocate has no objection to a decree being Passed against the 1st delendant ..... It is stated that information should go to the Custodian. It is, therefore, ordered that the Custodian be informed that the decree prayed for is against an evacuee which may be executed against the immoveable property of the evacuee. The Custodian may plead on behalf of the evacuee or apply to the Court to be made a party to the suit before the decree is passed against the 1st defendant. The Custodian may choose his course. If he intends to be a party to the suit, he should either be present in person or appear by an advocate or attorney and file the application. Otherwise, the decree will be passed. The Custodian may be informed that the court itself does not find it necessary to add him as a party to the suit. Call on 28-3-134& Fasli, 28-9-1949'.

The Custodian having failed to appear, the Court, after some adjournments, passed its final judgment on 31-12-1949 in the following terms:-

'Parties through advocate present. No reply has been given by the Custodian's office. Plaintiffs advocate has withdrawn the suit against defendant No. 2 and prayed a decree of Rs. 35,719-4-3 against defendant No. 1. Defendant No. 1 admits claim and agreed that a decree should be passed against him.'

The suit was accordingly decreed against the 1st defendant alone for a sum of Rs. 35,719-4-3 with costs and interest thereon at the rate of 4 per cent per annum from the date of decree to the date of realisation against defendant No. 1.

3. Thereafter, on 27-10-1950, the Custodian of Evacuee Property, Hyderabad addressed the Court praying that orders may be passed vacating the order of attachment. On 29-10-1950 the court passed the following order:

'In accordance with the provisions of the Evacuee Property Act, no attachment can be made on evacuee property, it is deemed to have been vacated. Then no further order would be required. There is no application before me now for execution against the immoveable property, which has been taken over by Custodian. This fact has already been stated in the application by the decree-holder which has been sent to the Custodian. A reply may be sent accordingly.''

Subsequently, tie Custodian sold the house of the evacuee. It appears that, on 8-11-1950, the petitioner withdrew from the Court a sum of Rs. 2,817 which was deposited into the Court, after notice to the Custodian, who notified that he had no objection to the withdrawal. Thereafter, be addressed letters to the Custodian to settle his claim under the decree and there being no response, he addressed the Custodian-General of Evacuee Property,. India at Delhi. Ultimately, after some correspondence, the petitioner's claim was registered by the Custodian on 29-9-1952. Thereafter, the petitioner was addressing the Custodian of Evacuee Property at Hyderabad as also the Custodian General at Delhi for the due satisfaction of his claim.

In fact, a letter D/- 14-5-55 from the Custodian General of Evacuee Property, India states that the matter regarding payment of the third party claims is under consideration of the Government of India and that the decision arrived at will be notified in the press for the information of the general public. Things went on like this and the petitioner was kept in suspense until he received a final communication D/- 8-1-58 from the office of the Custodian of Evacuee Property and Additional Settlement Commissioner, Andhra Pradesh to the following effect:

'I am to say that the Ministry of Rehabilitation, Government of India, have decided not to make payment of Third party Claims so far registered and not to register any such claim in future.'

Thus having received a final denial of his claim, the petitioner has filed this Writ Application for issue of a writ of mandamus.

4. It is contended by Sri B.V. Subrahmanyam, learned counsel for the petitioner that the Custodian had ample notice of the suit and that he did not choose to contest the same. It is argued that neither the Act nor the rules permit the Custodian to take shelter under an arbitrary decision of the Ministry of Rehabilitation, Government of India not to make payments of third party claims. He relies upon the provisions of Section 10 of the Administration of Evacuee Property Act, 1950 (Central Act No. XXXI of 1950) hereinafter referred to as the Act. The provisions of Section 10 so far as they are relevant, are as follows:

'Section 10(1) Subject to the provisions of any rules that may be made in this behalf the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto.

(2) Without prejudice to the generality of the provisions contained in Sub-section (1) the Custodian may, for any of the purposes aforesaid,.....

(m) incur any expenditure, including the payment of taxes, duties , cesses, and rates to Government or to any local authority or of any amounts due to any employee of the evacuee or of any debt due by the evacuee to any person;

(n) pay to the evacuee, or to any member of his family or to any other person as in the opinion of the Custodian is entitled thereto, any sums of money out of the funds in his possession.'

Rule 22 of the Administration of Evacuee Property (Central) Rules is as follows:

'22(1) Any person, claiming the right to receive any payment from any evacuee or from the property of such evacuee, whether in repayment of any loan advanced or otherwise, may present a petition to the Custodian for registration of his claim. Such application shall be signed and verified by the claimant in the same manner as a plaint is required to be signed and verified under the Code of Civil Procedure, 1908.

(2) On receipt of such application the Custodian where he finds the claim to be supported-

(a) by a decree of competent court, or (b) by a registered deed executed and registered before 14th August 1947, or by a registered deed executed and registered after such date but con-finned by the Custodian', and if he is satisfied that the claim has not been satisfied either wholly or in part, may register the claim or such part thereof as has not yet been satisfied. He may also register a claim proved to have been acknowleged in writing by the evacuee himself before 1st March, 1947, on being satisfied that such claim has not been satisfied. In all other cases he shall direct the claimant to establish his claim in a Civil Court. (3) The mere registration of a claim shall not entitle the claimant to payment and the Custodian may for reasons to be recorded refuse payment.

(4) No debt incurred by the evacuee before the property vested in the Custodian shall be paid without the sanction of the Central Government or Custodian General.

5. The learned counsel contends that the petitioner's claim having been registered, be is entitled to the payment and that the Central Government has no right to pass a general order that no claims of third parties should be considered. The leamed Government Pleader appearing for the Custodian contends that, by virtue of Section 4 of the Administration of Evacuee Property (Amendment) Act, 1956 (Central Act 91 of 1956) which came into force on 22nd day of October, 1956, the words 'or of any amounts due to any employee of the evacuee or any of the debts due by the evacuee to any person' have been deleted from Clause (m) of Sub-section (2) of Section 10 of the Act of 1950. In pursuance of this deletion, Rule 22 was also deleted on 20th February, 1957.

6. It is therefore contended on behalf of the Custodian that there is no provision in the Act by which the Custodian can pay any debt due to any person. The argument, in substance, is that the. debts of the evacuee to the third parties need not be paid on account of the amendment made by the Central Act 91 of 1956. This is how the learned Government Pleader justifies the notification-of the Ministry of Rehabilitation Government of India, above quoted.

7. It should however be noted that in the amendments made by the Central Act 91 of 195ft there is nothing to show that they are intended to operate retrospectively. It is a well-established principle of law that no amendment to a statute is retrospective unless there is anything in the Amending Act which either expressly or by necessary implication leads to that conclusion. This. principle is embodied in section 6 of the General. Clauses Act (X of 1897), which, so far as is relevant reads as follows:

'Where this Act, or any Central Act or Regulation made after the commencement of this-Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) .....

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred, under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed'

8. If the principle enunciated in Section 6 is home in mind, the petitioner's right to have the decree debt due by the evacuee paid out to him has not been affected by the repeal. We, therefore, consider that the petitioner is entitled to have his claim against the properties of the evacuee considered on the merits by the Custodian of Evacuee Property, Hyderabad, under the law as existing on 29-9-1952.

9. It therefore follows that the petitioner is entitled to the issue of a writ of mandamus directing the respondent to consider on merits the petitioner's claim for the payment of the decree debt in O. S. No 32/1 of 1358 Fasli dated 24th Khurdad, 1358 Fasli, on the file of the Divisional and Sessions Judge, Secunderabad in accordance with the provisions of the Administration of Evacuee Property Act, 1950 as unamended, and Rule 22 of the Rules as then in operation. The respondent will pay the petitioner Rs. 100/- towards costs.


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