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Ali Hamza Osmany and anr. Vs. Assistant Custodian and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 557 of 1956
Judge
Reported inAIR1958All104
ActsAdiminstration of Evacuee Property Act, 1950 - Sections 4, 7(1), 7A and 10; Adiminstration of Evacuee Property (Amendment) Act, 1954; Constitution of India - Article 226
AppellantAli Hamza Osmany and anr.
RespondentAssistant Custodian and anr.
Appellant AdvocateRama Shanker Prasad, Adv.
Respondent AdvocateS.S. Dhawan, Adv.
DispositionPetition dismissed
Excerpt:
(i) property - period of limitation - section 7a of administration of evacuee property act, 1950 - date of commencement of the act - notice issued on 04/04/1955 if filed beyond six months - not barred by the provision of act. (ii) constitution - defective notice - article 226 of constitution of india - contention that notice was defective and consequently no notice was issued - point not to be taken in grounds of petition - no ground to support petition under article 226. - 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..........april 1955 to mst. shamshunnisa who is treated as evacuee under section 7 of the administration of evacuee property act no. xxxi of 1950, to show cause why the property in village dhelai, ferozepore, detailed in the list attached to the notice should not be treated as evacuee property.the petitioners also received notice in january 1956 and on the 12th of january 1956, they filed a written statement taking the plea that the notice was barred by proviso to the newly added section 7a after section 7 of the administration of evacuee property act. in spite of that objection the assistant custodian (judicial) put up the case for evidence. on these facts the present writ for prohibition is asked for.3. the contention raised by the petitioners is that under the amending act the custodian had no.....
Judgment:
ORDER

Mehrotra, J.

1. This is a petition under Article 226 of the Constitution for a writ of prohibition directing the opposite party No. 1, the Assistant Custodian (Judicial), Azamgarh, from proceeding further with the case No. 1161/220 of 1955. The facts are not disputed in this case.

2. The point which has been raised by the learned counsel in this petition is a pure question of law. The applicants are the sons of late Khan Bahadur Mohammad Ali Ausat, who died on the 17tn of January 1952, leaving behind the applicants and one Ali Irtiza Osmany as his three sons and Mst. Shamsunnisa and Mst. Akhtari as his two daughters. Mst. Shamshunnisa is married to one Ali Haider Usmani who migrated to Pakistan in 1949 and is now settled ia the district of Mianwali in West Punjab. Mst. Shamshunnisa left for Mianwali in 1952 and is now living there with her husband.

The father of the applicants had considerable landed property in the district of Azamgarh and after the abolition of zamindari in the State of Uttar Pradesh it was reduced to sir and khudkasht plots only and they are in possession of the applicants. The Assistant Custodian, Azamgarh, opposite party No. 2, issued a notice on the 4th of April 1955 to Mst. Shamshunnisa who is treated as evacuee under Section 7 of the Administration of Evacuee Property Act No. XXXI of 1950, to show cause why the property in village Dhelai, Ferozepore, detailed in the list attached to the notice should not be treated as evacuee property.

The petitioners also received notice in January 1956 and on the 12th of January 1956, they filed a written statement taking the plea that the notice was barred by proviso to the newly added Section 7A after Section 7 of the Administration of Evacuee Property Act. In spite of that objection the Assistant Custodian (Judicial) put up the case for evidence. On these facts the present writ for prohibition is asked for.

3. The contention raised by the petitioners is that under the Amending Act the Custodian had no power to issue any notice beyond six months from the 7th of May 1954. In order to appreciate this point, it is necessary to refer to certain provisions of the Administration of Evacuee Property Act. Section 7 of Act XXXI of 1950 provides as follows:--

'7 (i). Where the Custodian is of opinioa that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property.'

In the year 1954 the Parliament passed an Act called the Administration of Evacuee Property (Amendment) Act, 1954. For the sake of brevity this may be called as Act No. XXIV of 1954. This Act received the assent of the Presidenton the 8th of October 1954. Section 4 of Act No. XXIV of 1954 is as follows:--

'4. After Section 7 of the principal Act, the following section shall be inserted, namely:--

'7-A. Notwithstanding anything contained in this Act, no property shall be declared to be 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 1954 for declaring such property to be evacuee property; and

(b) any 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 about the 1st day of March 1947 any place now forming part of India, and who on the 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, 1954.'

Section 10 of the Amending Act further provides that:--

'The amendments made in the principal Act, Section 4 and Section 8 of this Act shall be deemed to have come into force on the 7th day of May, 1954.'

On the language of Section 10 of the Amending Act it is argued that Section 7A, which has been inserted by virtue of Section 4 of the Amending Act to the substantive Act No. XXXI of 1950, will be deemed to have come into force on the 7th day of May 1954, and consequently that part of the Act will be deemed to have come into force on the 7th of May 1954 for the purpose of the proviso to Section 7A and the present notice which was issued on the 4th of April 1955 was filed beyond six months from the date when this Amending Act came into force.

In my opinion, there is no force in this contention. Proviso to Section 7A which has been introduced by Section 4 of Act XXXI of 1950 has got to be interpreted and the question to be considered is what is the meaning to be given to the words 'after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954'.

Because Section 10 has given retrospective effect to the provisions of Section 7A, it does not, to my mind, mean that the Amending Act itself came into force on the 7th of May 1954. All the sections of the Amending Act, including Section 4, by which Section 7A has been added after Section 7 of Act XXXI of 1950 came into force on the 8th of October 1954. The fact that the newly added Section 7A in the eye of law will be deemed to have commenced from the 7th of May 1954 does not to my mind mean that Section 4 of the Amending Act itself, came into force on the 7th May 1954,All the sections of the Amending Act came into force on the 8th of October 1954.

None of the sections of the Amending Act has been pointed out to me which came into operation on the 7th of May 1954. In the case of Satya Dev v. Additional Deputy Custodian, Evacuee Property, Bharatpur , similar point was considered and it was held by a Bench consisting of Wanchoo, C. J., and Bapna, J., that:--

'The proviso bars issue of notice after the expiry of six months from the commencement of the Amendment Act. The day on which the Amendment Act came into force can only be 8-10-1954, on which date it received the assent of the President.

The fact that Section 4 of the Amendment Act was given retrospective operation does not mean that the Amendment Act commenced on 7-3-1954. The Amendment Act under all circumstances could only commence on 8-10-1954, though certain parts of it were deemed to have commenced on an earlier date by virtue of Section 10 of the Amendment Act.

The Amendment Act came into force on 8-10-1954, and this is the date of its commencement, and notices could be issued up to six months from that date namely up to 8-4-1955.'

Similar view was taken in the case of Noor Banoo v. Custodian, Evacuee Property, AIR 1956 Hyd 56 (B).

4. It was then contended by Mr. RamaShankar Prasad that the notice itself was defective and consequently there was no notice issued on the 4th of April 1955. That is not' the point which has been taken in the grounds here and it cannot therefore be allowed to be raised at this stage. Moreover, it is open to the petitioners to object to the validity of the notice before the Custodian on the ground that the notice is defective and it is open to him to pass any orders according to law; but that is not a ground on which this petition can be allowed to be supported,

5. There is therefore no force in this petition and it is rejected; but I make no ordersas to costs.


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