DARSHAN LAL Vs. R L AGGARWAL

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution in which the orders of the competent Officer dated 24-10-1956 and of the Appellate Officer dated 26-91957, made under the provisions of the Evacuee Interest (Separation) Act, 1951, are impugned.

(2.) IT is alleged in the petition that- certain Muslims who are now evacuees had mortgaged their agricultural land with possession measuring 110 bighas odd with the predecessor-in-interest of the petitioner more than 60 years prior to the enforcement of the aforesaid Act. The petitioner who has been in possession after he succeeded to his predecessor-in-interest received a notice dated 17-4-1954 from the Competent Officer purporting to have been issued under the Act by which he was required to submit his claim in the prescribed form as information had been received that he had an interest in the composite property described in the schedule and the evacuee interest had to be separated from other interests. The petitioner filed his claim-petition and appeared before the competent Officer. The point that was raised by him before the aforesaid officer was that the evacuee mortgagors never got the property redeemed within the period prescribed for redemption under Article 148 of the Limitation Act and their right to redeem had become extinct under Section 28 of that Act with the result that the petitioner had become the owner of the property. It was further stated that the property in dispute was no longer composite property and no question of separation of alleged evacuee interest arose. On 24-10-1956 the competent Officer made an order holding that the mortgage being over 20 years old, the provisions contained in Section 9 (2) of the Act applied and it stood extinguished. Henceforth the property was to vest in the custodian free from all encumbrances and liabilities. The petitioner filed an appeal under the provisions of the Act which was dismissed by the Appellate Officer in view of some judgment given by him in some other case and the following observations were made.

(3.) IT has been contended by Mr. H. L. Sarin, who appears on behalf of the petitioner, that the property in dispute had never been declared to be evacuee property, nor had it vested in the Custodian under the Administration of Evacuee property Act, 1950, and, therefore, it was not composite property within the meaning of Section 2 (d) of the Act. It is submitted that if it was not composite property, the Competent Officer had no jurisdiction under Section 5 to decide any matter relating to the property in dispute. It is pointed out that in the notice which was sent to the petitioner, dated 17-4-1954 (Annexure 'a"), all that is stated is as follows: "whereas information has been received that you have all interest in the composite property described in the Schedule hereto annexed. And whereas the evacuee interest in the said property is to be separated from other interests. . In the order of the Competent Officer although it is stated that the declaration by the Custodian that the evacuee has an interest in the property as a mortgagor is binding, it is nowhere stated that any such declaration was ever made. A reference to the concluding part of the order of the Appellate Officer set out before shows that the Custodian had never determined the property to be evacuee or had decided whether evacuees had any interest therein. Mr. Sarin, therefore, contends that the property in dispute could not be considered to be composite property and the authorities under the Act would have no jurisdiction to make any orders with regard to it as their jurisdiction is confined to such properties as fall within the definition of composite property. It is clear from the reply filed on behalf of the respondents that the procedure prescribed by the Administration of Evacuee Property Act for declaring property to be evacuee property was not followed. It is, however, claimed in para 8 (iv) that compliance with Section 7 of that act was not necessary as evacuee interest of the property in dispute vested in the Custodian vide Ordinance No. IX of 1949 (which was saved by Section 8 of the Administration of Evacuee property Act, 1950 ). According to Mr. Sarin automatic vesting of the interest of the nature that has been relied upon is not warranted by the enactments in question. In Ebrahim Aboobaker v. Tek Chand, AIR 1953 SC 298, it has been laid down that reading Sections 7 and 8 of the Administration of Evacuee property Act, 1950, it appears that the Custodian gets dominion over the property only after the declaration is made. The declaration follows upon the enquiry made under Section 7, but until the proceeding is taken under Section 7, there can be no vesting of the property and consequently no right in the Custodian to take possession of it. In Allaudin v. M. B. Meher, AIR 1952 Bom 213, Tendolkar J. , considered that the giving of notice under Section 7 of the aforesaid enactment was a statutory requirement and it was not merely procedural but it was mandatory and went to the root of the jurisdiction of the Custodian. If no notice was given to persons interested, the declaration made that any property was evacuee property was without jurisdiction and was liable to be set aside. In Azizun Nisa v. Asst. Custodian, (S) AIR 1957 All 561, it has been held that the provisions contained in Section 7 (3) of the Administration of Evacuee Property Act that the Custodian must notify all properties declared to be evacuee property in the official gazette shows that a specific property must be declared as evacuee property and not