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Mehar Chand Vs. R.L. Aggarwal and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 103 of 1958
Judge
Reported inAIR1959P& H487
ActsConstitution of India - Article 226; Evacuee Interest Separation Act, 1951 - Sections 2, 5, 7, 7(2), 8 and 8(2)
AppellantMehar Chand
RespondentR.L. Aggarwal and anr.
Appellant Advocate H.S. Gujjral, Adv.
Respondent Advocate Chetan Dass, Asstt. Adv.-General
DispositionPetition dismissed
Excerpt:
.....under article 227 of the constitution. - the case having been re-submitted to the authorised deputy custodian (judicial), patiala, the latter arrived at the conclusion that the petitioner had failed to prove that the mortgage-money was paid back to the mortgagee and the property redeemed. it was not stated that the petitioner had availed of all the remedies provided by act 31 of 1950 and approached the highest authority, but failed. they are separate and distinctly set out in the two acts......is freefrom any encumbrance. the petitioner's claimamounted to say that the property was not evacueeproperty and hence it did not vest in the custodian. that is a matter which was for the custodianto decide and not to be gone into by the competent officer.7. jurisdiction of the competent officer under section 5 is restricted to the determination of 'any claim relating to composite property'. the section takes for granted or presupposes that the property with respect to which the claim is made is composite property. an assertion that the property is not composite property would not be a claim 'relating to any composite property.' in fact, the petitioner's claim was that since he had got the property redeemed the property or his interest therein was no longer 'subject to mortgage in.....
Judgment:
ORDER

G.L. Chopra, J.

1. This is a petition under Article 226 of the Constitution for an appropriate writ, direction or order quashing an order of the Custodian and another of the Appellate Officer made under the Evacuee Interest (Separation) Act, No. 64 of 1951 (hereinafter to be referred as the Act).

2. The property in dispute admittedly belongs to Shri Mehar Chand, Pleader, Phagwara, the petitioner. He mortgaged the property with one Ghulam Mahhiuddin for Rs. 14,000/- Ghulam Mahhiuddin being an evacuee the Assistant Custodian, Kapurthala, issued notice under Section 7 of the Administration of Evacuee Property Act No. 31 of 1950, calling upon Shri Mehar Chand to show cause why the property be not declared evacuee property.

The petitioner did not put in his appearance. The Assistant Custodian, vide his order dated 9-7-1951, declared the property to be evacuee property. The petitioner preferred an appeal against this order and submitted that the property had actually been redeemed on payment of the mortgage money to Ghulam Mahhiuddin. The case was remanded to the Assistant Custodian and the petitioner given opportunity to substantiate his claim.

The case having been re-submitted to the Authorised Deputy Custodian (Judicial), Patiala, the latter arrived at the conclusion that the petitioner had failed to prove that the mortgage-money was paid back to the mortgagee and the property redeemed. Petitioner's appeal was, consequently dismissed. A revision filed by the petitioner was also dismissed by the Custodian General, Delhi, on 12-8-1953.

3. In 1957 the Custodian moved the Competent Officer, Kapurthala, for separation of the evacuee interest in the composite property. Notice under Section 6 of the Act was issued. The petitioner put forth his claim, as required by Section 7. It was submitted that the mortgage having been redeemed Ghulam Mahhiuddin had no subsisting interest in the property and, therefore, the property could not be regarded as evacuee property.

The Competent Officer accepted the petitioner's contention and held that the property was no more a composite property. The Custodian went in appeal. The Appellate Officer held the view that the decision of the Custodian that the evacuee had a subsisting interest in the property and, the property was evacuee property was binding upon the Competent Officer.

He accepted the appeal and directed the petitioner to deposit the mortgage money within three months. It is against this order of the Appellate Officer dated 6-11-1957, that the present petition is primarily directed. The petition was presented on 10-2-1958.

4. On behalf of the petitioner two points are being raised, (i) that the orders passed by the Custodian and the higher authorities of that Department declaring the property to be evacuee property under Section 7 of Act 31 of 1950 were illegal and without authority, and (ii) that the order of the Appellate Officer dated 6-11-1957, was wrong in law inasmuch as the point in question was one which was for the Competent Officer to decide. It is, therefore, prayed that the various orders passed by the Custodian Department and also that of the Appellate Officer be quashed,

5. The first of the two points was not specifically raised in the petition. The facts, as stated above, were disclosed by the respondents in their reply. The petitioner had contented himself by saying that his claim as regards the alleged redemption was not accepted by the Custodian. In the prayer clause also it was only the order of the Custodian that was sought to be quashed.

Even the date of the Custodian's order was not mentioned, nor was a copy of it produced. It was not stated that the petitioner had availed of all the remedies provided by Act 31 of 1950 and approached the highest authority, but failed. In view of the suppression of material facts and the fact that the present petition was presented more than six years-after the orders were made, the first point need not be gone into, as no relief can be granted thereon.

6. On the second point, it is contended that the petitioner preferred his claim before the Competent Officer, as required by Section 7 of the Act, and the Competent Officer rightly decided it in favour of the petitioner. The Appellate Officer was: wrong in holding that the Competent Officer could not go into the merits of the claim and determine whether the mortgage stood redeemed. The question necessitates reading of the relevant provisions of the Act. According to Section 2(b) 'claim' means the assertion by any person, not being an evacuee, of any right, title and interest in any property--

(i) as a co-sharer or partner of an evacuee in the property; or

(ii) as a mortgagee of the interest of an evacuee in the property; or

(iii) as a mortgagor having mortgaged the property or any interest therein in favour of an evacuee;

and includes any other interest which such person may have jointly with an evacuee and which is notified in this behalf by the Central Government in the Official Gazette. Section 2(d) defines 'composite property' to mean any property which, or any property in which an interest, has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950 (XXXI of 1950) and--

(i) * * * * *(ii) * * * * *(iii) in which the interest of a person, not being an evacuee, is subject to mortgage in any form in favour of an evacuee, or(iv) * * * * *

Section 5 relates to the jurisdiction of the Competent Officer and says--

'A competent officer shall have jurisdiction to decide any claim relating to any composite property situate within the limits of the local area of his jurisdiction and such cases or classes of cases as may, by general or special order, be transferred to him under Section 19 by the Central Government or the appellate officer.'

Claim is to be submitted as provided for in Section 7. The section requires that the statement of a claim shall include, where the claim is made by a mortgagor, 'the total amount due under the mortgage debt and the particulars necessary to determine the same.' Section 8 lays down--

'(1) On receipt of a statement of claim under Section 7, the competent officer shall, subject to the provisions of Sub-sections (2) and (3), hold an inquiry into the claim in accordance with the procedure laid down in Section 17 and pass an order determining the interest of the Evacuee and the claimant in the property in question and the order shall contain alf or any of the following particulars, namely:

(a) the money value of the property;

(b) in any case where the evacuee and the claimant are co-sharers or partners, their respective shares in the property and the money value of such shares;

(c) in any case where the claim is made by a mortgagor, the amount due to the evacuee;

(d) in any case where the claim is made by a mortgagee, the amount due under the claim in accordance with the provisions of Section 9.

(2) Where the Custodian under the Administration of Evacuee Property Act, 1950 (XXXI of 1950), has determined that the property in question or any interest therein is evacuee property, the decision of the Custodian shall be binding on the Competent officer:

Provided that nothing contained in this subsection shall debar the competent officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under Section 10. (3) If there is any dispute as to whether a liability is a mortgage debt or not or whether any claim submitted under Section 7 exists, the competent officer shall decide such dispute:Provided that a decree of a civil Court (other than an ex parte decree passed after the 14th day of August, 1947) shall, subject to the provisions of Sections 9 and 10, be binding on the competent officer in respect of any matter which has been finally decided by such decree; and where any matter was decided by an ex parte decree passed by a civil Court after the 14th day of August, 1947, the competent officer may decide such matter afresh and, on such decision being made, the ex parte decree shall be deemed to have no effect.'

As I read them, the provisions lead me to think that the contention is without force. In order to be a 'claim' under the Act the claim must have been put forth with the assertion that the claimant is a mortgagor, having mortgaged the property or any interest therein in favour of an evacuee. I doubt if the assertion by a non-evacuee that the property which was once mortgaged with an evacuee. had been redeemed and therefore he was no longer a mortgagor, and the evacuee a mortgagee, can be' regarded as a 'claim' within the meaning of Section 2(b) of the Act.

The claim in such a case would be one by anowner with the assertion that the property is freefrom any encumbrance. The petitioner's claimamounted to say that the property was not evacueeproperty and hence it did not vest in the Custodian. That is a matter which was for the Custodianto decide and not to be gone into by the Competent Officer.

7. Jurisdiction of the Competent Officer under Section 5 is restricted to the determination of 'any claim relating to composite property'. The section takes for granted or presupposes that the property with respect to which the claim is made is composite property. An assertion that the property is not composite property would not be a claim 'relating to any composite property.' In fact, the petitioner's claim was that since he had got the property redeemed the property or his interest therein was no longer 'subject to mortgage in any form in favour of an evacuee.'

8. Section 7(2) lends some further support to the view I take. The sub-section requires the mortgagor, where the claim is by a mortgagor, to state in his claim the amount due from him under the mortgage. If the assertion be that there is no subsisting mortgage and nothing is due from him as mortgage-debt, the sub-section would have no application,

9. The matter, in my opinion, is concluded by Sub-section (2) of Section 8. Decision of the Custodian under the provisions of Act 31 of 1950 that the property in question or any interest therein is evacuee property is binding on the Competent Officer. As already observed, the petitioner's case was that the property in question was not an evacuee property. The matter having been decided by the Custodian and the property having been declared to be evacuee property it could not be reagifated before the Competent Officer.

10. The proviso to Sub-section (2) or Sub-section (3) of Section 8 does not seem to have the effect of conferring jurisdiction upon the Competent Officer to deal with the matter in question, decision on which of the Custodian is declared to be final by Sub-section (2). By virtue of the proviso, the Competent Officer is authorised to determine the amount of mortgage-debt in respect of 'such property', meaning, evacuee property. The proviso pre-supposes the ...... the existence of an evacuee property, the existence of some interest of an evacuee in the property.

The Competent Officer will not be competent to go against the decision of the Custodian that an interest of an evacuee does exist and the property is evacuee property. He is merely to determine the extent of that interest. To be precise, he is only to determine the amount of the mortgage-debt and not whether the mortgage does or does not subsist.

Sub-section (3) also does not improve matters. There is no dispute here whether the liability is a mortgage debt or not, the existence of liability itself is being questioned. A claim under Section 7, as already observed, pre-supposes the existence of an evacuee interest in the property.

11. The result, as pointed out by Mr. H. S. Gujral, certainly is that while the Competent Officer may come to the conclusion that the mortgage debt due from the mortgagor in respect of his property mortgaged with an evacuee is the lowest minimum, say one rupee, he is not competent to determine and hold that the mortgage stands redeemed and nothing is due from the mortgagor. The position does appear to be somewhat anomalous and the cardinal rule is, 'we ought to give to an Act of Parliament the plain, fair, literal meaning of its words, where we do not see from its scope that such meaning would be inconsistent, or lead to manifest injustice.'

The scheme and the provisions of the Act, and those of Act 31 of 1950 unmistakably lead to the conclusion that there ought to be no overlapping between the functions of the Custodian and those of the Competent Officer. They are separate and distinctly set out in the two Acts. To hold that a Competent Officer also has the authority to decide and declare that any property or interest therein (which has been declared as evacuee property by the Custodian) is not evacuee property, would be doing violence to the scope and language of the Act. Such an interpretation, though it may lead to unreasonable results in a particular class of cases, cannot be accepted.

12. The only decision relied upon by Mr. Gujral was given by a Division Bench of this Court in C.W. 143 of 1956 on 1-8-1958 (Punj). That was a converse case, the non-evacuee petitioner being the mortgagee. The petitioner submitted a claim before the Competent Officer, under Section 7 of the Act, for determination and separation of his interest in the property mortgaged with him by an evacuee.

The claim was resisted by the Custodian on the ground that the alleged mortgage was not valid. The Competent Officer found in favour of the Custodian and held that the petitioner had no valid claim. In appeal the Appellate Officer arrived at the conclusion that the mortgage in favour of the petitioner was already paid off by the amounts received by him, and consequently rejected the petitioner's claim.

In the writ petition, it was submitted that the Competent Officer and the Appellate Authority had no jurisdiction to determine the matter. Mehar Singh J., On a consideration of the provisions of the Act observed that the claim did relate to a composite property and therefore the existence or otherwise of the claim was to be determined by the Competent Officer.

Evidently, the claim was made with the assertion that the claimant was a mortgagee and that the property was a composite property; it was, therefore, for the Competent Officer to decide the claim. The decision has no application to the facts of the present case.

13. In the result, the petition is dismissed, but in view of the facts of the case the parties are directed to bear their own costs.


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