MOHD UMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE properly in dispute, situate in Kashmere Gate, was owned by one Rahim bux. The same was occupied by displaced persons during disturbances and on 5th october, 1948, Rahim Bux filed an application which was registered as application no. 1585 claiming that he was a non-evacuee. Since he did not receive any reply he made a second application on 9th November, 1948, but unfortunately he died on 9th January, 1949. It appears that since the applications were not pursued by the legal representatives of Rahim Bux, the Assistant Custodian dismissed the first application in default on 29th March, 1949, with an observation that he was not deciding the question of ownership of the property. Again on 26th April, 1949, the assistant Custodian dismissed the second application in default. The property was for the first time on 19th April, 1949, notified as evacuee property under Sub section (1) of Section 6 of the East Punjab Evacuees' (Administration of Property)Act, 1947, as applicable to Delhi (Annexure 'g' to the reply affidavit) and in the said notification it was inter alia stated -- "i hereby assume possession of and control over the evacuee properties specified in the schedule annexed hereto".-The house in question was included in the said schedule. On 10th June, 1955, the petitioners filed an appeal before the Authorised Deputy Custodian against the order dated 29th March, 1949, dismissing the first application of Rahim Bux in default. The appeal was dismissed by the Authorised Deputy Custodian en 28th july, 1955, as barred by time. Since the petitioners appear to have made an alternative prayer that their appeal dated 10th June, 1955, be treated as petition under Section 6 (5) of the Administration of Evacuee Property Act, 1950 (Act No. XXXI of 1950), the Authorised Deputy Custodian forwarded the said application to the Custodian as he felt that the Custodian alone was competent to hear an application under Section 6 (3 ). On 5th August, 1955. the Custodian declined any relief under Section 6 (3) on the ground that he was not competent to interfere with the judicial finding of the Authorised Deputy Custodian contained in his order dated 28th July, 1955. After the said order of the Custodian the petitioners had resorted to two remedies -- (1) they made an application to the Central government, which, according to the learned counsel for the petitioners, should be treated as one under Section 16 of the Administration of Evacuee Property Act, 1950, and (2) they filed a revision petition before the Custodian General against the order dated 28th July, 1955. It may be mentioned that the respondent denied that any such application dated 8th August, 1. 955, was filed with the Central government. On 6th September, 1956, the Custodian General dismissed the revision petition as barred by time. The petitioners again made an application to the Central Government on 7th september, 1956, (Annexure 'g' to the petition ). Relief was claimed in this petition under Section 18 of Act XXXI of 1950. The Central Government appears to have sent the matter to the Assistant Custodian for enquiry. According to the learned counsel for the petitioners the findings of the Assistant Custodian were -

(2.) MR. Parkash Narain, the learned counsel for the respondent, says that this report is a privileged document and cannot be looked at. In view of the decision arrived at by me, it is not necessary to resolve this controversy. On 17th september, 1957, the Secretary to the Central Government also dismissed the application as barred by time. On 30th December, 1957, the petitioners again moved the Central Government for reconsideration of the entire matter which application was also dismissed on 27th August, 1958, and the petitioners filed the present petition on 4th November, 1958.

(3.) IF the Assistant Custodian reported, as he is alleged to have done, that two of the petitioners are non-evacuees, it would be most unfortunate if they are deprived of their property on technical pleas without any enquiry by the appropriate authorities on the merits of the case. I am, however, not concerned with that as that is a matter for the appropriate authorities charged with the administration of evacuee property to look into. I have no doubt in my mind that the authorities concerned would look into the matter and see that no injustice is done if such a course is permissible under the law.