MEHAR CHAND Vs. R L AGGARWAL

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution for an appropriate writ, direction or order quashing an order of the Custodian and another of the Appellate officer made under the Evacuee Interest (Separation) Act, No. 64 of 1951 (hereinafter to be referred as the Act ).

(2.) THE property in dispute admittedly belongs to Shri Mehar Chand, Pleader, phagwara, the petitioner. He mortgaged the property with one Ghulam Mahhiuddin for Rs. 14,000/- Ghulam Mahhiuddin being an evacuee the Assistant Custodian, kapurthala, issued notice under Section 7 of the Administration of Evacuee property Act No. 31 of 1950, calling upon Shri Mehar Chand to show cause why the property be not declared evacuee property. The petitioner did not put in his appearance. The Assistant Custodian, vide his order dated 9-7-1951, declared the property to be evacuee property. The petitioner preferred an appeal against this order and submitted that the property had actually been redeemed on payment of the mortgage money to Ghulam mahhiuddin. The case was remanded to the Assistant Custodian and the petitioner given opportunity to substantiate his claim. The case having been re-submitted to the Authorised Deputy Custodian (Judicial), patiala, the latter arrived at the conclusion that the petitioner had failed to prove that the mortgage-money was paid back to the mortgagee and the property redeemed. Petitioner's appeal was, consequently dismissed. A revision filed by the petitioner was also dismissed by the Custodian General, Delhi, on 12-8-1953.

(3.) IN 1957 the Custodian moved the Competent Officer, Kapurthala, for separation of the evacuee interest in the composite property. Notice under Section 6 of the act was issued. The petitioner put forth his claim, as required by Section 7. It was submitted that the mortgage having been redeemed Ghulam Mahhiuddin had no subsisting interest in the property and, therefore, the property could not be regarded as evacuee property. The Competent Officer accepted the petitioner's contention and held that the property was no more a composite property. The Custodian went in appeal. The appellate Officer held the view that the decision of the Custodian that the evacuee had a subsisting interest in the property and, the property was evacuee property was binding upon the Competent Officer. He accepted the appeal and directed the petitioner to deposit the mortgage money within three months. It is against this order of the Appellate Officer dated 6-111957, that the present petition is primarily directed. The petition was presented on 10-2-1958.