ALI HAMZA OSMANY Vs. ASSISTANT CUSTODIAN

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution for a writ of prohibition directing the opposite party No. 1, the Assistant Custodian (Judicial), Azamgarh, from proceeding further with the case No. 1161/220 of 1955. The facts are not disputed in this case.

(2.) The point which has been raised by the learned counsel in this petition is a pure question of law. The applicants are the sons of late Khan Bahadur Mohammad Ali Ausat, who died on the 17tn of January 1952, leaving behind the applicants and one Ali Irtiza Osmany as his three sons and Mst. Shamsunnisa and Mst. Akhtari as his two daughters. Mst. Shamshunnisa is married to one Ali Haider Usmani who migrated to Pakistan in 1949 and is now settled ia the district of Mianwali in West Punjab. Mst. Shamshunnisa left for Mianwali in 1952 and is now living there with her husband. The father of the applicants had considerable landed property in the district of Azamgarh and after the abolition of zamindari in the State of Uttar Pradesh it was reduced to sir and khudkasht plots only and they are in possession of the applicants. The Assistant Custodian, Azamgarh, opposite party No. 2, issued a notice on the 4th of April 1955 to Mst. Shamshunnisa who is treated as evacuee under Section 7 of the Administration of Evacuee Property Act No. XXXI of 1950, to show cause why the property in village Dhelai, Ferozepore, detailed in the list attached to the notice should not be treated as evacuee property. The petitioners also received notice in January 1956 and on the 12th of January 1956, they filed a written statement taking the plea that the notice was barred by proviso to the newly added Section 7-A after Section 7 of the Administration of Evacuee Property Act. In spite of that objection the Assistant Custodian (Judicial) put up the case for evidence. On these facts the present writ for prohibition is asked for.

(3.) The contention raised by the petitioners is that under the Amending Act the Custodian had no power to issue any notice beyond six months from the 7th of May 1954. In order to appreciate this point, it is necessary to refer to certain provisions of the Administration of Evacuee Property Act. Section 7 of Act XXXI of 1950 provides as follows:-