ANWARI Vs. STATE OF PUNJAB

JUDGEMENT

(1.) In this appeal, by special leave, the appellant, daughter of an evacuee, has challenged the order of the High Court of Punjab and Haryana passed in cwp No. 11339 of 1993, declining to interfere with the order of the financial Commissioner dated 3-2-1993.

(2.) To appreciate the controversy here a resume of the facts will be apt. The appellant invited a decision as to the nature of the property in question from the Additional Custodian by filing an application under Section 27 of the Administration of Evacuee Property Act, 1950 (for short "the Act") , who, however, referred the matter to the Custodian-General and directed the appellant to appear before the Custodian-General at Chandigarh on 1-9-1989. By order dated 16-1-1990 the Assistant Custodian-General, after referring to the records of the litigation pending between the appellant and Respondents 5 to 7 in the civil court, pointed out that Shahabudin had left for Pakistan during partition of the country or immediately thereafter so he was a resident of Pakistan and, therefore, he was an evacuee within the meaning of Section 2 (d) of the Act. That finding was affirmed by the Financial Commissioner, punjab in his order passed under Section 54 of the said Act. The Financial commissioner relying upon the report of SSP's office which indicated that shahabudin came to India on 8-11-1953 and left India on 27-11-1953 noted that that fact remained unrebutted and held that the property in question vested automatically in the Custodian and therefore Section 7 of the Act was not attracted and thus dismissed the revision on 3-2-1993. That order was impugned in the writ petition before the High Court by the appellant. The writ petition was dismissed, by the order under challenge, so the appellant is before us in this appeal.

(3.) Shri S. K. Bagga, learned Senior Counsel for the appellant, vehemently contends that there is no automatic vesting of the property in the Custodian under the Act and in the absence of a declaration under Section 7 of the Act no property vests in the Custodian and as admittedly in this case there has been no such declaration, the order of the Financial Commissioner is liable to be set aside. Mr Rajinder Mathur, learned counsel for the respondents argued that under Section 5 of the Patiala and East Punjab State Union administration of Evacuee Property Ordinance ("the Ordinance" in short) the property had vested in the Custodian and it shall continue to be vested under section 8 (2) of the Act and in such a case no declaration under Section 7 of the Act is necessary.