MALIK MOHAMMAD JALIL Vs. ASSTT CUSTODIAN JUDICIAL

JUDGEMENT

(1.) This is a writ petition under Article 226 of the Constitution of India. It has been filed by three persons, namely, (1) Sri Malik Mohammad Jalil, (2) Sri Zamirul Husain, and, (3) Sri Shabbir Husain. The opposite parties in this petition are :-- (1) The Assistant Custodian (Judicial) Azamgarh, and (2) The Assistant Custodian, Azamgarh. The petition relates to certain properties in respect of which proceedings under the Administration of Evacuee Property Act (Act No. XXXI of 1950) have been taken by the Assistant Custodian (Judicial) Azamgarh. In this writ petition the prayer is for the issue of a writ of prohibition directing the opposite party No. 1, that is, the Assistant Custodian (Judicial) not to proceed further with case No. 216 of 1955 consolidated with case No. 235 of 1955 against the petitioners pending before him under Section 7 of the Administration of Evacuee Property Act. This writ petition arises under the following circumstances.

(2.) One Smt. Shugara Bibi, who was the wife of Malik Mohammad Jalil, petitioner No. 1 died on the 5th of November, 1954, leaving three sons. Two of these sons were Zamirul Husain and Sha-bbir Husain who were petitioners Nos. 2 and 3 respectively in this writ petition, and the third one was Aziz Uddin. Aziz Uddin went away to Pakistan some time in the year 1947. He, therefore, became an evacuee. It is alleged in the petition that on the 28th March, 1955, one Kalimullah conveyed certain information to opposite party No. 2 to start proceedings for declaring the properties left by Smt. Shugara Bibi as evacuee property. On the basis of that information two notices were issued to the petitioners under Section 7 of the Administration of Evacuee Property Act (Act No. XXXI of 1950). The first notice was issued on the 31st March, 1955. The second notice issued against them purported to be of the 6th April, 1955. It may be mentioned that, according to the petitioners, the second notice was actually issued on some date after the 8th April, 1955 and not on the 6th -April, 1955. In this connection it was alleged that the second notice was ante-dated with a view to bring it within the period of limitation which, according to the other party, was to expire on the 8th April, 1955. In other words, the date that the second notice bore was a fictitious one.

(3.) The petitioners' case in the present petition is that both the notices issued against them are bad in law, because the last date for the issue of notices prescribed by the Administration of Evacuee Property (Amendment) Act (Act No. 42 of 1954) expired on the 6th of November, 1954. In the alternative, their case is that even if the last date for issue of notices be taken to be the 8th April, 1955, both the notices are bad. The first notice is bad, because, according to the petitioners, it did not specify the list of properties sought to be declared as evacuee properties. The second notice was also bad, because, according to the petitioners, although it purported to have been issued on the 6th April, 1955, it was actually issued on some date subsequent to the 8th of April, 1955, and was ante-dated for the purpose of bringing it within the alleged period of limitation prescribed by the Amending Act.