DULARI Vs. ADDL CUSTODIAN EVACUEE PROPERTY

JUDGEMENT

(1.) This is an application tinder Article 226 of the Constitution by Shrimati Dulari praying that this Court may issue a writ of prohibition or in the alternative appropriate directions, or orders under Article 226 of the Constitution of India prohibiting opposite party 1, i.e., the Additional Custodian Evacuee Property, Lucknow from reviewing his 'Judgment' dated 30-1-1951, passed in Appeal No. 276 of 1950. There is a further prayer that opposite party 2, namely, the Custodian Evacuee Property at Lucknow be prohibited from issuing any notification under Section 7 of Act 31 of 1050 in respect of a certain house, details of which are given in the petibion, and treating it as "Evacuee Property".

(2.) The facts, briefly stated, which gave rise to this petition, were that op1 n 16-10-1947, the appli-qant purchased the property in dispute, which is situate at Ghaziabad, from one Shubratan, who made a sale of the property to the applicant for a sum of Rs. 2,500/- on her behalf and on behalf of her minor children and on behalf of another Naboo wife of one Allah Diya. The vendors left India for Pakistan as "Evacuees" on 16-10-1949, and consequently the property in dispute assumed the character of "evacuee property".

(3.) Under Ordinance 27 of 1949, namely, the Aministration of Evacuee Property Ordinance, it became necessary under Section 38 to have the confirmation of a sale, which had been made after the 14th day of August, 1947, by or on behalf of an evacuee. Section 38 of the Ordinance is in these words: "No transfer of any right or interest in any property made in any manner whatsoever after the 14th day of August, 1947, by or on behalf of an evacuee or by or on behalf of a person who has become an evacuee after the date of the transfer, shall be effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian." Under this section an application for the confirmation of such a transfer had to be made either by the transferor or by the transferee within a period of two months from the commencement of the Ordinance. The Ordinance came into force on 18-10-1949. It is important to notice that by sub- Section (3) of Section 38, the provisions of Section 5, Limitation Act were made applicable to applications which were to be made under Sub-section (2) of the section. Ordinance 27 of 1949 was superseded by Act 31 of 1950, namely the Administration of Evacuee Property Act. By Section 40 of this Act a similar provision to Section 38 of the Ordinance was made. By Section 40(2) an application for confirmation of such transfer had to be made within two months of the date of transfer or within two months from the commencement of this Act or within two months from the date of the notification or declaration referred to in Sub-section (1), whichever was later. The provisions of Section 5, Limitation Act were again made applicable to applications which were to be moved under this section for confirmation of transfers.