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Abdul Rehman Vs. Assistant Custodian - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 61 of 1957
Judge
Reported inAIR1960MP253
ActsAdministration of Evacuee Property Act, 1950 - Sections 26, 26(2) and 56; Administration of Evacuee Property (Amendment) Act, 1956; Administration of Evacuee Property (Central) Rules, 1950 - Rule 31
AppellantAbdul Rehman
RespondentAssistant Custodian
Appellant AdvocateW.Y. Pande, Adv.
Respondent AdvocateBalwant Singh, Adv.
DispositionApplication dismissed
Excerpt:
.....can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - he has, however, impleaded the assistant custodian who passed the original order from which the petitioner had unsuccessfully appealed to the custodian......in review on 4-10-1956 about seven and a half months later, though rule 31 has provided that such review applications should he filed within thirty clays. as the rule stood originally, section 5 of the limitation act was applicable to these proceedings. it is not necessary to consider the effect of the amendment of the rule, dropping sub-rule (7), because the petitioner did not try to satisfy the custodian that he had sufficient cause, nor has he alleged here that his application should have been entertained on account of the benefit he derives from s. 5 or 12 of the limitation act. his contention is that r. 31' providing for limitation for review application is ultra vires of the statute and therefore should not have been invoked by the custodian.3. the relevant section is section 26.....
Judgment:
ORDER

H.R. Krishnan, J.

1. This is an application of a person declared to be an evacuee, from the order of the Custodian, refusing to admit an application for review, on the ground that it was patently time barred. The petitioner's contention is that Rule 31 of the Evacuee Property Rules is itself ultra vires of Section 26 of the Administration of Evacuee Property Act (31 of 1950) as it stood before the amendment of 1956 (by Act No. 91 of 1956).

2. Strangely enough the petitioner has not impleaded the Custodian from whose order on the petition for review he has come up to this Court. He has, however, impleaded the Assistant Custodian who passed the original order from which the petitioner had unsuccessfully appealed to the Custodian. This appellate Court's order was made on 16-2-1956. He went up in review on 4-10-1956 about seven and a half months later, though Rule 31 has provided that such review applications should he filed within thirty clays. As the rule stood originally, Section 5 of the Limitation Act was applicable to these proceedings. It is not necessary to consider the effect of the amendment of the rule, dropping Sub-rule (7), because the petitioner did not try to satisfy the Custodian that he had sufficient cause, nor has he alleged here that his application should have been entertained on account of the benefit he derives from S. 5 or 12 of the Limitation Act. His contention is that R. 31' providing for limitation for review application is ultra vires of the Statute and therefore should not have been invoked by the Custodian.

3. The relevant section is Section 26 Sub-section (2) of the Administration of Evacuee Property Act. By the Act No. 91 of 1956, Section 26 was itself dropped: but that was subsequent to the proceedings. Sub-section (1) of Section 26 relates to revision and uses the words 'at any time'; but Section 56(2)(r) empowers the Central Government to make rules for the limitations of appeals and revisions. Here we are dealing with an application for review under Section 26(2), which does not say 'at any time', but only enables a Custodian to review his own order after giving notice to the parties. Thus at all events, in regard to review there is no fetter on the rule-making powers. Even in regard to revision, there is express provision in Section 56(2)(r). In that section, there is a general Clause (1), empowering Government to make rules for carrying out the purposes of the Act and a second clause setting out, but not exhaustively, the matters on which they may be framed; it is without prejudice to the generality of the first sub-section. Item (f) in this list does not probably by oversight, make mention of review. But it can always come under the general Sub-clause (1). Certainly, the purpose of the Act can be carried out only if there is some control over such proceedings, and the finality of the decisions is assured by barring attempts to reopen settled cases after a prescribed period. Thus it cannot at all be contended that Rule 31 prescribing limitation goes beyond the scope of rule-making powers given by Section 56, or contravenes anything contained in Section 26(2) of the Administration of Evacuee Property Act.

4. In the result the application is dismissed. Hearing costs Rs. 25/.


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