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Union of India (Uoi) Vs. Syed KhairuddIn Ahmad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 727 of 1970
Judge
Reported inAIR1974All98
ActsDisplaced Persons (Compensation and Rehabiliation) Act, 1954 - Sections 12, 12(2) and 13
AppellantUnion of India (Uoi)
RespondentSyed KhairuddIn Ahmad and ors.
Appellant AdvocateB.N. Sapru, Adv.
Respondent AdvocateSharafat Ali, Adv.
DispositionAppeal allowed
Excerpt:
property - evacuee property - sections 12 and 13 of displaced persons (compensation and rehabilitation) act, 1954 - death of evacuee - property inherited by respondents - evacuee includes person in whom right title and interest of evacuee vests at time of acquisition - held, respondents entitled to payment of compensation in lieu of such acquisition. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised.....n.d. ojha, j. 1. one qutub uddin ahmad was owner of certain houses in sabzi mandi, allahabad. as a result of his leaving india for pakistan the aforesaid houses were declared to be evacuee property under the administration of evacuee property act (act xxxi of 1950). qutub uddin ahmad subsequently died in pakistan. the respondents claiming to be his heirs made an application to the central government for restoration of the property in question to them under section 16 of the administration of evacuee property act. the said application was, however, dismissed on 22nd march. 1956. a notification had, in the meantime, been published in the gazette of india dated 4th june, 1955 notifying the property aforesaid to have been acquired by the central government under section 12 of the displaced.....
Judgment:

N.D. Ojha, J.

1. One Qutub Uddin Ahmad was owner of certain houses in Sabzi Mandi, Allahabad. As a result of his leaving India for Pakistan the aforesaid houses were declared to be evacuee property under the Administration of Evacuee Property Act (Act XXXI of 1950). Qutub Uddin Ahmad subsequently died in Pakistan. The respondents claiming to be his heirs made an application to the Central Government for restoration of the property in question to them under Section 16 of the Administration of Evacuee Property Act. The said application was, however, dismissed on 22nd March. 1956. A notification had, in the meantime, been published in the gazette of India dated 4th June, 1955 notifying the property aforesaid to have been acquired by the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act (Act XLIV of 1954). Subsequently, it appears that the Settlement Commissioner passed an order declaring that the notification aforesaid did not affect the property in question, inasmuch as an application under Section 16 of the Administration of Evacuee Property Act was pending on the date when the said notification was published. Thereafter on 16th of October, 1958 a fresh notification under Section 12 of Act XLIV of 1954 was issued acquiring the property aforesaid. In November, 1958 a notice was published that the aforesaid property would be auctioned as acquired pro-perty on 1-12-1958. The respondents in-stituted a writ petition in this Court with a prayer to restrain the appellants from selling the aforesaid property as acquired property. The writ petition was allowed by a learned Single Judge on the ground that Qutub Uddin Ahmad the evacuee having died before the notification under Section 12 was issued, the said notification could not have the effect of extinguishing the rights of the respondents upon whom the interests of Qutub Uddin Ahmad had devolved on his death. The second ground of attack made by the respondents, namely, that the property aforesaid could not be deemed to be evacuee property on the death of Qutub Uddin Ahmad was, however, repelled by the learned Single Judge. He came to the conclusion that the property involved in the present case is clearly an evacuee property. In view of his finding that the provisions of Section 12 of Act XLIV of 1954 could not be applied, he allowed the writ petition and issued a writ of mandamus directing the appellants not to sell the property in question as a property which had been acquired by and had vested in the Central Government under Section 12 of Act XLIV of 1954. The present special appeal has been filed against this judgment of the learned Single Judge.

2. It was urged by the learned counsel for the appellants that on the finding re-corded by the learned Single Judge that the property in question continued to be evacuee property notwithstanding the death of Qutub Uddin Ahmad, the provisions of Section 12 of Act XLIV of 1954 were attracted. It would be useful to quote the relevant provisions of Section 12 and Section 13 of Act XLVI of 1954 which have been relied upon by the learned single Judge. The relevant provision of Sec-tion 12 reads:--

'12. Power to acquire evacuee property for rehabilitation of displaced persons.

(1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section.

(2) On the publication of a notification under Sub-section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, he extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances.'

(3) .....

(4) .....

Section 13 reads:

'13. There shall be paid to an evacuee compensation in respect of his property acquired under Section 12 in accordance with such principles and in such manner as may 'be agreed upon between the Governments of India and Pakistan.'

3. The learned single Judge placed emphasis on the word evacuee used in Section 12(2) and Section 13 referred to above, and held that an evacuee properly could be acquired under Section 12 only during the lifetime of the evacuee. He was of the opinion that Qutub Uddin Ahmad having died the interest which had devolved upon his heirs, namely, the respondents, could not be described as 'right, title and interest of any evacuee.'

4. Having heard learned counsel, we are of the opinion that on the finding recorded by the learned Single Judge that the property in question continued to be evacuee properly on the date when the notification under Section 12 of Act XLIV of 1954 was issued, the provisions of the said section were clearly applicable. Under Sub-section (1) of Section 12 any evacuee property can be acquired by the Central Government by publishing in the Official Gazette a notification in this behalf, if the Central Government is of opinion that it is necessary to do so for a public purpose. Sub-section (2) of Section 12 provides for the extinguishment of the 'right, title and interest of any evacuee' in the evacuee property specified in the notification. Section 13 provides for payment of compensation to an evacuee in respect of the property acquired under Section 12.

5. The property in question was declared evacuee property in the life time of Qutub Uddin Ahmad and continued to be so on the date of his death. The interest which devolved upon the respondents on the death of Qutub Uddin Ahmad could not be larger than that of Qutub Uddin Ahmad. In Salmond on Jurisprudence, 12th Edition, at page 443, dealing with the topic of inheritance it has been stated:--

'The rights which a dead man thus leaves behind him vest in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore, has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some port identified by the law with him whom he represents. The rights which the dead mm can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for.'

6. In view of the aforesaid legal proposition there seems to be no doubt that what the respondents inherited and were holding was 'right, title and interest of any evacuee in the evacuee property' within the meaning of Section 12(2) of Act XLIV of 1954. The mere fact that the respondents themselves may not have been evacuees on the said date is not relevant for applying Section 12. It was enough if the right, title and interest which they were holding, was of an evacuee in an evacuee property. Section 13 again presents no real difficulty in taking the view that Section 12 applies even after the death of an evacuee. Section 13 deals with payment of compensation in lieu of acquisition of right, title and interest of an evacuee in the evacuee property. Such compensation will be payable to the person in whom the said right, title and interest vests on the date of the acquisition. The respondents having inherited the rights and liabilities of Qutub Uddin Ahmad in the property in question held it subject to the liability of its being acquired under Section 12 aforesaid and would be entitled to the compensation payable in lieu of the acquisition of the evacuee's interest of Qutub Uddin Ahmad in the property in question. The word evacuee in the phrase 'shall be paid to an evacuee' in Section 13, in our opinion, includes the person in whom the right, title and interest of the evacuee vests at the time of the acquisition. We are therefore of the opinion that the Central Government was competent to issue the impugned notification for acquiring the property as also the notice to auction the said property.

7. In the result, the appeal succeeds and is allowed. The judgment of the learned Single Judge is set aside and the writ petition is dismissed. There will, however, be no order as to costs.


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