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Maqbool Ahmad Allah Rakha and anr. Vs. the Custodian of Evacuee Property, New Delhi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Nos. 33-D to 37-D of 1956
Judge
Reported inAIR1958P& H78
ActsAdministration of Evacuee Property Act, 1950 - Sections 7 and 7A; Administration of Evacuee Property (Amendment) Act, 1954 - Sections 4 and 10
AppellantMaqbool Ahmad Allah Rakha and anr.
RespondentThe Custodian of Evacuee Property, New Delhi
Appellant Advocate Sultan Yar Khan, Adv.
Respondent Advocate K.K. Raizada, Adv.
DispositionPetitions dismissed
Cases Referred and Satya Dev Cheema v. Additional Deputy Custodian
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........under article 226 of the constitution filed by maqbul ahmad and pirdos ahmad are as follows. one manzur ahmad was the owner of a half share of five separate pieces of land situated at the-village of pimbora in the district of muzaffar-nagar (u.p.) and on the 5th of. december, 1954-five notices were issued under section 7 of the administration of evacuee property act by the additional assistant custodian (rural), muzaffarna-gar, for declaring manzur ahmad's shares in these properties to be evacuee property on the ground-that he had migrated to pakistan. the notices were contested by maqbul ahmad the brother and firdoz ahmad the son of manzur ahmad on the ground that manzur ahmad had not migrated to pakistan but had been killed in the disturbances at patiala in 1947.2. the cases were.....
Judgment:

Falshaw, J.

1. The facts giving rise to those five-connected Petitions (Civil Writs Nos. 33-D to 37-D of 1956) under Article 226 of the Constitution filed by Maqbul Ahmad and Pirdos Ahmad are as follows. One Manzur Ahmad was the owner of a half share of five separate pieces of land situated at the-village of Pimbora in the district of Muzaffar-nagar (U.P.) and on the 5th of. December, 1954-five notices were issued under Section 7 of the Administration of Evacuee Property Act by the Additional Assistant Custodian (Rural), Muzaffarna-gar, for declaring Manzur Ahmad's shares in these properties to be evacuee property on the ground-that he had migrated to Pakistan. The notices were contested by Maqbul Ahmad the brother and Firdoz Ahmad the son of Manzur Ahmad on the ground that Manzur Ahmad had not migrated to Pakistan but had been killed in the disturbances at Patiala in 1947.

2. The cases were decided together by the Additional Assistant Custodian, Muzaffarnagar, by his order dated the 12th of January, 1955. Apparently no efforts had been made in the meantime by the father and brother of the alleged evacuee to have any mutation effected in the revenue re-cords regarding his share of the property, and the evidence produced by them in an effort to prove that Manzur Ahmad had been killed in Patiala in 1947 was not believed, and Manzur Ahmad was accordingly declared to be an evacuee and his shares in the properties to be evacuee property. The petitioners' appeal against this order was dismissed by the Custodian, Uttar Pradesh, and their revision petition was dismissed by the Deputy Custodian-General at Delhi on the 24th of November, 1955. The orders are challenged in the-present writ petitions.

3. it is obviously not open to this Court to go into the facts, and the petitions must be decided on the basis that the findings that Manzur Ahmad had not been killed in 1947 and was an evacuee are correct. The chief legal argument addressed to me on behalf of the petitioners was that the Assistant Custodian had no power in December, 1954 to issue notices under Section 7 of the Act. Reliance was placed on the provisions of Sections 4 and 10 of the Administration of Evacuee Property (Amendment; Act 42 of 1954 which' for general purposes came into force on the 8th of October. 1954. Section 4 reads -

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

7A Property not to be declared evacuee property on or after 7th May, 1954.

Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after 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 May, 1954 for declaring such property to be evacuee property; and

(b) the 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 after 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 reads - 'The amendments made in the principal Act by Section 4 and S, 8 of this Act shall be deemed to have come into force on the 7th day of May, 1954.'

4. It is argued that the clear meaning of the new Section 7-A read with Section 10 of the amending Act is that no notice under Section 7 could be issued after six months from the 7th of May, 1954, i.e. after the 7th of November, 1954 and therefore the present notices issued in December, 1954 were invalid.

5. On the other hand this interpretation would appear to indicate that the Legislature intended to give with one hand and take away with the other, since 'six months from the commencement of the Act' mentioned in the proviso inserted in Section 7-A would become whittled down to one month from the 8th of October, 1954 when the Act received the assent of the President, and in spite of the wording of Section 10 of the amending Act, such an interpretation appears to be repugnant to common sense and to the ordinary principles of interpreting statutes.

6. As a matter of fact this very point has been independently considered by Division Benches of the Hyderabad High Court, Mohd. Ansari and Jaganmohan Beddy JJ., and the Rajasthan High Court, Wanchoo C. J. and Bapna J., in Begum Noor Banoo v. Custodian, Evacuee Property, Hyderabad, AIR 1956 Hyd 56 (A), and Satya Dev Cheema v. Additional Deputy Custodian, Evacuee Property, Bharatpur. AIR 1956 Raj 193 (B). These cases related to notices issued in January and February. 1955 and in both cases it was held that the words 'from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954' must mean 'from the date when the Act came into force on the 8th of October, 1954.' Wanchoo C. J. has put the matter thus -

'The fact that Section 10 of the Amendment Actmakes Section 4 of the Amendment Act retrospectivedoes not change the date of the commencementof the Amendment Act. The reason why Section 4 wasmade specifically retrospective was to cover thosecases where property might have been declaredevacuee property after 7-5-1954, but before theAmendment Act came into force even though thecase might not be covered by the two provisos.'With this view I am in respectful agreement, andI therefore consider that there is no ground forInterference in these petitions. I accordingly dismiss them but leave the parties to bear their owncosts.


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