MOHAMMAD DIN Vs. H C ASTHAN

JUDGEMENT

(1.) ONE Mohammad Amin, who was the father of Mohammad Din, on the stand taken by the Evacuee Property Authorities, migrated to Pakis tan in June, 1948. His properties were treated to be evacuee property and got automatically vested in the Custodian under the provisions of U. P. Ordinance No. I of 1949. Subsequently, treating the properties to be evacuee property a notifi cation was issued under Section 12 (1) of the Displaced Persons (Compensation and Rehabilitation) Act (Act XLIV of 1954) and the property in question was thereby acquired. The acquired property was thereafter auctioned on 1- 12-1960 and purchased by some one who has not been made a party in the present special ap peal; nor was he made a party in the writ petition giving rise to this appeal. The Assistant Custodian of Evacuee Property had during the lifetime of Mohammad Amin issued notices on 16th November, 1957 claiming arrears of rent in respect of the evacuee property. At this place it may be pointed out that Mohammad Amin had subsequent to his migration to Pakistan in June, 1948 come back to India on a temporary permit which allowed him to stay here for only six weeks. He, however, illegally continued to reside in India even after the expiry of the afore said period and was prosecuted and con victed on 16th November, 1957. When the aforesaid notices were issued he was in India. He filed an objection against the aforesaid notices, but the same was dis missed. Mohammad Amin died in 1959 and thereafter the appellant continued to file objections, appeals and revisions before various authorities which were all rejected. The appellant thereafter instituted a writ petition in this Court which was dis missed by a learned Single Judge by the judgment under appeal.

(2.) LEARNED counsel for the appel lant urged that U. P. Ordinance No. I of 1949 was ultra vires and, consequently, the property in question never vested in the Custodian, nor it became the evacuee property. The invalidity of the aforesaid Ordinance has, in our opinion, been cured by the amending Act of 1960 which added sub-section (2-A) to Section 8 of the Ad ministration of Evacuee Property (Act XXXI of 1950) Act. The said sub-section (2-A) provides:-

(3.) LEARNED counsel for the appel lant then urged that the proceedings for acquiring the property in question under Section 12 (1) of Act XLIV of 1954 and the auction sale held on 1-12-1960 (which date falls subsequent to the death of Mohammad Amin) were illegal. In sup port of his contention learned counsel relied upon Zafar Ali v. Assistant Custo dian, Evacuee Property (AIR 1967 SC 106). The submission made by the learned counsel in this connection cannot be ac cepted on a variety of grounds. As a re sult of the property being acquired under Section 12 (1) of Act XLIV of 1954 the property became acquired property and vested in the Central Government. Nei ther the Union of India nor the person who purchased the property at the auc tion held on 1st December, 1960, were as already pointed out above, made parties in the writ petition, nor have they been made parties even in the special appeal. The question cannot, therefore, be .ad judicated upon in their absence. That apart Zafar Ali's case (supra) relied upon by the learned counsel, is clearly distin guishable. In the said case, it was held that on the requisite publication being made under Section 12 (1) of Act XLIV of 1954 the right, title and interest only of an evacuee in evacuee property gets extinguished and not of a person who is a non- evacuee. That was a case of several co-sharers owning the property and only two of them being evacuee. That was not a case where the right, title and interest of an evacuee had devolved upon his heirs. In the instant case, Mohammad Amin father of the appellant was an eva cuee and on his death, his right, title and interest devolved on the appellant. The interest which devolved upon the appel lant on the death of his father could not be larger than that of his father. In Sal-mond on Jurisprudence 12th Edition, at page 443 dealing with the topic of inheri tance it has been stated: