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Mohd. Umar and ors. Vs. Union of India (Uoi), Ministry of Rehabilitation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 418-D of 1958
Judge
Reported inAIR1967P& H412
ActsEast Punjab Evacuees' (Administration of Property), Act 1947 - Sections 6(2), 6(3) and 7; Administration of Evacuee Property Act, 1950 - Sections 16, 16(1A) and 16(2)
AppellantMohd. Umar and ors.
RespondentUnion of India (Uoi), Ministry of Rehabilitation
Appellant Advocate Shiv Charan Singh, Adv.
Respondent Advocate Parkash Narain, Adv.
DispositionPetition dismissed
Excerpt:
.....which the custodian may assume possession of and/or control over the property mentioned in the order. it could not have been contemplated by section 7 that in a case like the present the time for making application would have expired even before the notification......to two remedies -- (1) they made an application to the central government, which, according to the learned counsel for the petitioners, should be treated as one under section 16 of the administration of evacuee property act, 1950, and (2) they filed a revision petition before the custodian general against the order dated 28th july, 1955. it may be mentioned that the respondent denied that any such application dated 8th august, 1.955, was filed with the central government. on 6th september, 1956, the custodian general dismissed the revision petition as barred by time.the petitioners again made an application to the central government on 7th september, 1956, (annexure 'g' to the petition). relief was claimed in this petition under section 18 of act xxxi of 1950. the central government.....
Judgment:

S.K. Kapur, J.

1. The properly in dispute, situate in Kashmere Gate, was owned by one Rahim Bux. The same was occupied by displaced persons during disturbances and on 5th October, 1948, Rahim Bux filed an application which was registered as application No. 1585 claiming that he was a non-evacuee. Since he did not receive any reply he made a second application on 9th November, 1948, but unfortunately he died on 9th January, 1949. It appears that since the applications were not pursued by the legal representatives of Rahim Bux, the Assistant Custodian dismissed the first application in default on 29th March, 1949, with an observation that he was not deciding the question of ownership of the property. Again on 26th April, 1949, the Assistant Custodian dismissed the second application in default. The property was for the first time on 19th April, 1949, notified as evacuee property under Sub-section (1) of Section 6 of the East Punjab Evacuees' (Administration of Property) Act, 1947, as applicable to Delhi (Annexure 'G' to the reply affidavit) and in the said notification it was inter alia stated -- 'I hereby assume possession of and control over the evacuee properties specified in the schedule annexed hereto'. -- The house in question was included in the said schedule. On 10th June, 1955, the petitioners filed an appeal before the Authorised Deputy Custodian against the order dated 29th March, 1949, dismissing the first application of Rahim Bux in default. The appeal was dismissed by the Authorised Deputy Custodian en 28th July, 1955, as barred by time. Since the petitioners appear to have made an alternative prayer that their appeal dated 10th June, 1955, be treated as petition under Section 6(5) of the Administration of Evacuee Property Act, 1950 (Act No. XXXI of 1950), the Authorised Deputy Custodian forwarded the said application to the Custodian as he felt that the Custodian alone was competent to hear an application under Section 6(3). On 5th August, 1955. the Custodian declined any relief under Section 6(3) on the ground that he was not competent to interfere with the judicial finding of the Authorised Deputy Custodian contained in his order dated 28th July, 1955. After the said order of the Custodian the petitioners had resorted to two remedies -- (1) they made an application to the Central Government, which, according to the learned counsel for the petitioners, should be treated as one under Section 16 of the Administration of Evacuee Property Act, 1950, and (2) they filed a revision petition before the Custodian General against the order dated 28th July, 1955. It may be mentioned that the respondent denied that any such application dated 8th August, 1.955, was filed with the Central Government. On 6th September, 1956, the Custodian General dismissed the revision petition as barred by time.

The petitioners again made an application to the Central Government on 7th September, 1956, (Annexure 'G' to the petition). Relief was claimed in this petition under Section 18 of Act XXXI of 1950. The Central Government appears to have sent the matter to the Assistant Custodian for enquiry. According to the learned counsel for the petitioners the findings of the Assistant Custodian were --

(1) Rahim Bux, the original owner, was not an evacuee and he died on 9th January, 1949.

(2) Rahim Bux had two sons and two daughters and out of two sons Nur Ahmed had gone to Pakistan and his share in the property was evacuee property.

(3) Amna Khatoon, one of the daughters of Rahim Bux, was also an evacuee, but Mohd. Umar and Sughra, petitioners Nos. 1 and 2, were non-evacuees and half of the property should be released.

2. Mr. Parkash Narain, the learned counsel for the respondent, says that this report is a privileged document and cannot be looked at. In view of the decision arrived at by me, it is not necessary to resolve this controversy. On 17th September, 1957, the Secretary to the Central Government also dismissed the application as barred by time. On 30th December, 1957, the petitioners again moved the Central Government for reconsideration of the entire matter which application was also dismissed on 27th August, 1958, and the petitioners filed the present petition on 4th November, 1958.

3. If the Assistant Custodian reported, as he is alleged to have done, that two of the petitioners are non-evacuees, it would be most unfortunate if they are deprived of their property on technical pleas without any enquiry by the appropriate authorities on the merits of the case. I am, however, not concerned with that as that is a matter for the appropriate authorities charged with the administration of evacuee property to look into. I have no doubt in my mind that the authorities concerned would look into the matter and see that no injustice is done if such a course is permissible under the law.

4. Mr. Shivcharan Singh, the learned counsel for the petitioners, assails the orders dated 29th March, 1949, 26th April, 1949. 10th June, 1955, 28th July. 1955, 5th August, 1955, 6th September, 1956 and 19th July, 1957, already mentioned above, on the ground that there was no claim petition within the meaning of Section 7 as could justify the passing of the aforesaid orders. The suggestion of the learned counsel is that there are two requirements of Section 7 of the East Punjab Evacuees' (Administration of Property) Act, 1947--

(1) The right of an aggrieved person to make a claim arises only after the Custodian has taken possession or assumed control of the property under Section 6; and(2) The limitation for making such an application is 'thirty days from the date on which the possession of the property was taken.'

5. The learned counsel has emphasised that whereas in the earlier part of Sub-section (1) of Section 7 the right arises after the Custodian has 'taken possession or assumed control under Section 6, the limitation is prescribed by the latter part of the section as thirty days from the date on which the possession of the property is taken and for the purposes of calculating thirty days assumption of control is of no significance. He further points out that the mode of taking possession or assuming control is prescribed by Section 6 and that is by publication of the order in the official gazette. According to the learned counsel, since the notification assuming control was published on 19th April 1949, the application made on 5th October, 1948, was in fact not an application under Section 7 of the East Punjab Evacuees' (Administration of Property) Act, 1947, and consequently the appeals and or revisions could not be dismissed by the Authorised Deputy Custodian or the Custodian General as time-barred. The learned counsel suggests that on parity of reasoning his application under Section 16 of the 1950 Act dated 7th September, 1956 (Exhibit R-2) could not be treated as time-barred as was done by the Central Government by its order dated 19th July, 1957, inasmuch as by virtue of Section 16(1-A) of the 1950 Act no application under Section 16 could be made unless the applicant had filed all appeals and revision applications permissible under the Act. Since the appeals and revisions of the petitioners were misconceived and not on a proper application under Section 7 for the reasons mentioned . already, the application under Section 16 of the 1950 Act was also premature. It may be pointed out that according to the reply affidavit (paragraph 8 (1)) 'the possession of the property in question was taken in September 1948.' In support of the plea that possession was taken in September 1948 reliance is placed by the respondent on a letter dated 18th September, 1948, sent to all the occupants of the house calling upon them to produce 'all the papers in your possession and /or power in respect of your occupation of House No. 1/110, Gali Patli, Kashmere Gate.......' It is not clear, however, from the said document whether the possession was in fact taken or not, but I have no reason to doubt the statement contained in the reply affidavit that the possession was so taken. The learned counsel for the petitioners does not dispute that in case the application dated 5th October, 1948, made by Rahim Bux was an application under Section 7 of the 1947 Act, the appeals and revisions would be obviously barred by time. There is a simple answer to the contentions raised on behalf of the petitioners. If the learned counsel for the petitioners is right in saying that application could be made under Section 7 of the East Punjab Evacuees' (Administration of Property) Act, 1947, only after thirty days of taking of actual possession, which has not so far been taken, then their remedy would obviously be to make an application after the taking of possession. Since elaborate arguments have been addressed to me on the scope of Sections 6 and 7 of the 1947 Act, I would rather like to deal with that point than to leave it to be agitated again on an application under Section 7, if made by the petitioners, to avoid protracted proceedings in pursuance thereof. Sub-sections (2) and (3) of Section 6 of the 1947 Act appears to refer to actual physical possession. The language of Sub-section(2) which says 'If the holder of such property refused or fails to vacate the property......' clearly indicates that the procedure prescribed in Sub-sections (2) and (3) is for taking of actual physical possession. Take a case where the property is in occupation of a tenant and the Custodian seeks to take possession only by asking the tenant to attom to the Custodian. In that case there would hardly be any occasion to use force necessary for securing compliance with his order as envisaged by Sub-section (2) or to take possession in the presence of residents of the locality as provided in Sub-section (3). So far as Section 7 is concerned, it is undoubtedly in artistically worded. The period of limitation for making applications thereunder is provided as 'thirty days from the date on which the possession of the property was taken.' If in a case like the present possession is already with the Custodian before the issue of the notification in the official gazette under Section 6, it becomes difficult to find out as to when the period of limitation would start. That controversy, I think, can be best resolved by reading Sections 6 and 7 together and consequently by reading the word 'taken' in Section 7 as 'assumed'. Section 6 talks of a general or special order under which the Custodian may assume possession of and/or control over the property mentioned in the order. It could not have been contemplated by Section 7 that in a case like the present the time for making application would have expired even before the notification. It must, therefore, mean that if the Custodian assumes possession or control over the property, the period of thirty days would start from the notification. The notification, as I have said earlier, was issued on 19th April, 1949, and the period of limitation would expire after thirty days from the date of the notification. Admittedly, no such application was made within time and consequently the appellate or the re-visional authorities would be helpless in the matter of giving any relief to the petitioners. So far as the argument regarding Section 16 of the 1950 Act is concerned, no proper proceedings having been taken as envisaged by Section 16(1-A), the Central Government could also not afford any relief to the petitioners. It was suggested by the learned counsel for the petitioners that the Custodian General dismissed their appeal on 6th September, 1956, and on 13th September, 1956, they moved the Central Government under Section 16. If the appeals arid/or revisions before the Authorised Deputy Custodian and the Custodian General respectively were hopelessly barred by time, I do not subscribe to the view that sixty days under Section 16(1-A)(b) would still be counted from the date of that order. If that were so, the whole object of Section 16(1-A) would be frustrated inasmuch as any aggrieved person may file an appeal and/or a revision petition after the laps of ten years and then claim that he could move the Central Government within sixty days thereof. Clause (a) and (b) of Section 16(1-A) must be read together, and, when so read, it is apparent that the sixty days' period is to be calculated only after proper appeals and revision applications as provided in Clause (a) have been filed.

6. In these circumstances, there appears to be no merit in this petition and the same is dismissed with no order as to costs.


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