SUNDRI Vs. DY. CUSTODIAN EVACUEE PROPERTY

JUDGEMENT

(1.) I regret I cannot agree wholly with the views expressed by my learned brother Anand, J. I shall elaborate on this in the lines that follow. The facts are fully stated in the judgment of brother Anand. It will be enough if only the salient facts are stated. The dispute pertains to some land which was declared to be evacuee property on the premises that it was the proprietary land of one, Begum Shair Mohammad, evacuee. On application, the Dy. Custodian released the land in favour of two persons namely, Ismail Bhat and Sultan Bhat under Section 8 of the Evacuee Property Act. The Dy. Custodian agreed with the applicant's contention that they were the owners and that Begum Shair Mohammad was only a mortgagee with possession under them. The Dy. Custodian ordered the release in favour of Sultan Bhat and Ismail Bhat upon their depositing Rs. 200/- being the mortgage money, Ismail Bhat and Sultan Bhat sold the land after it was released in their favour. The land came to be owned by the petitioners as purchasers. The Custodian, however, called for the record and, being of the opinion, that the order was not justified set aside the same but without any notice to the vendees. In the course of the proceedings the Custodian even recorded some evidence behind the back of the petitioners. The petitioners filed a writ petition challenging the order as void, illegal and without jurisdiction. The petition came to be heard by a learned single Judge who raised two Questions mentioned in the beginning of his judgment by Anand, J. and referred the entire case for hearing and disposal by Full Bench.

(2.) IN order to appreciate and determine the points arising in this case, it is necessary, in the first instance, to read the relevant provisions of the Act and the rules made thereunder. Section 5 of the Act deals with the vesting of the evacuee property in the Custodian and provides that subject to the provisions of this Act all evacuee properly situated in the State shall be deemed to have been vested in the Custodian. Section 6 enables the Custodian to notify the evacuee property which has vested in him under this Act. Section 7 deals with the power of Custodian to take possession of evacuee property vested in him and provides that if any person in possession of an evacuee property refuses or fails on demand to surrender possession thereof to the Custodian or to any person duly authorised by him, the Custodian may use such force as is necessary, for taking possession of such property. Section 8 deals with the claims by interested persons and provides :

(3.) THE Custodian General, Custodian, Additional Custodian or authorised Deputy Custodian may, at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding under this Act which is pending before, or has been disposed of, by an officer subordinate to him, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding and may pass such order in relation thereto as he thinks fit. Provided that the Custodian General, Custodian, the Additional Custodian or the authorised Deputy Custodian shall not under this sub-section pass an order revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard :