RAMADAYAL Vs. CUSTODIAN EVACUEE PROPERTY RAJASTHAN

JUDGEMENT

(1.) THIS is an application by Ramdayal under Article 226 of the Constitution for a writ, direction or order to the Custodian Evacuee Properly, Rajasthan, and arises in the following circumstances:

(2.) THE applicant purchased a building in Jodhpur City on the 22-12-1947, for Rs. 17,500/-, and paid the money to Nisarali Khan and Sadiq Ali Khan, the vendors, and got possession on the same day. As Nisarali Khan and Sadiq Ali Khan became evacuees, an application was made on the 13-1-1950, for confirmation of the sale in favour of the applicant. The Deputy Custodian, Jodhpur, held that the application for confirmation was time-barred, and also held that the property was, in all probability, worth Rs. 38,000/-, and certainly not less than Rs. 30,000/ -. Thereupon, the applicant appealed to the Custodian Rajasthan, and the Custodian held in November, 1951, that the application for confirmation was within time, and ordered that the case would be heard on other points on a date to be fixed later. Before, however, the case could be heard by the Custodian on other points, there was a revision before the Custodian General of India. This revision was pending when the Administration of Evacuee Property Act No. XXXI of 1950, was amended in 1. 953. The Custodian General thereafter rejected the revision petition, and directed the Custodian to decide the ease according to the amended law. So the Custodian heard the appeal in July, 1954, and came to the conclusion that the property was worth Rs. 25,000/-, and ordered the applicant to pay the balance namely Rs. 7,500/- within two months, otherwise the petition for confirmation would stand dismissed. The applicant then went in revision to the Custodian General, and this was dismissed. Thereupon the present application has been made to this Court. The case of the applicant is that though the Custodian acted under Sub-section (5) of section 40 he had no jurisdiction to pass the order which he did, as he did not take the consent of the applicant. The applicant, therefore, prays for a writ in the nature of certiorari quashing the order of the Custodian.

(3.) THE application has been opposed by the opposite parties, and their case is that the Custodian's order is covered by Sub-section (6) of Section 40, and there is no reason for interference by this Court. Section 40 of the Administration of Evacuee property Act (No. XXXI) of 1950, as amended by Act No. II of 1953, lays down that no transfer made after the 14-8-1947, by or on behalf of any person in any manner whatsoever of any property belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them, if, at any time after the transfer, the transferor becomes an evacuee within the meaning of Section 2 or the property of the transferor is declared or notified to be evacuee property within the meaning of this Act, unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act. Sub-section (2) of Section 40 provides certain exceptions. Sub-section (3)provides for an application for confirmation, and Sub-section (4) among other things gives power to the Custodian to reject the application if he is of opinion that the transaction has not been entered into in good faith. Then comes Sub-section (5) which provides that any application for confirmation, which has been rejected among, other things solely on the ground that it was barred by limitation, may be reconsidered by the Custodian, and he may confirm the transfer subject to certain conditions. The applicant has referred to Sub-section (5) as having been applied to the case by the Custodian. He is, however, wrong there because Sub-section (5) does not apply to his case. It only applies to cases which have ended, and not to pending cases like the applicant's. Then comes Sub-section (6 ). It says that if the application is not rejected under Sub-section (4), the Custodian may confirm the transfer either unconditionally or on such terms and conditions as he may think fit to impose. The conditions mentioned in Sub-section (5) do not apply to an order under Sub-section (6 ). Then comes Sub-section (7) which relates to applications for confirmation pending before the Custodian on the commencement of Act. No. II of 1953. It provides that where such an application is liable to be rejected on either of the grounds specified in clauses (a) and (b) of Sub-section (5), the Custodian can exercise any of the powers conferred on him under that Sub-section The Custodian has really dealt with the applicant's application for confirmation under Sub-section (7)though the Sub-section is not mentioned in the order. It is clear, however, that it was Sub-section (7) which the Custodian had in mind for he quotes the words of Sub-section (7) in the opening part of his judgment. Once Sub-section (7) applies, the conditions of Sub-section (5) also apply.