RAM SWAROOP AND OTHERS Vs. ASSISTANT CUSTODIAN GENERAL AND OTHERS
LAWS(ALL)-1964-4-35
HIGH COURT OF ALLAHABAD
Decided on April 28,1964

Ram Swaroop And Others Appellant
VERSUS
Assistant Custodian General And Others Respondents

JUDGEMENT

V.Bhargava, J. - (1.)This special appeal has been filed by four persons whose petition under Art. 226 of the Constitution was partly dismissed by a learned Single Judge. These four appellants came forward with the case that they were tenants of some sir land, situated in village Kannauj Bangar, which was held by a number of persons as sir. Some of these persons, who held sir rights in his land, migrated to Pakistan. The share of those persons, who migrated to Pakistan, was half in this sir land. The appellants claimed that, since they were tenants of the sir land and were entered as occupants in 1956 Fasli and were actually cultivating this land in 1959 Fasli, they became sirdars of this land on the enforcement of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Zamindari Abolition Act). Proceedings were, however, purported to be taken by the Assistant Custodian Evacuee Property in respect of the sir rights of the persons who had migrated to Pakistan and had become evacuees. It appears that a notice under Sec. 7(1) was issued inviting objections against the declaration of those persons as evacuees and the declaration of their zamindari property as well as their sir rights to the extent of half in these plots as evacuee property. No objections were filed and, thereupon their half share was declared as evacuee property. Subsequent to this declaration, proceedings were taken by the department of the Custodian Evacuee Property under which it was sought to dispossess these appellants. These proceedings were purported to be taken under Sec. 10 of the Administration of Evacuee Property Act (hereinafter referred to as the Evacuee Property Act) and it was in pursuance of those proceedings that there were further proceedings under the Evacuee Interest Separation Act, 1951 (hereinafter referred to as the Separation Act). As a result of all these proceedings and the various orders passed in those proceedings, the appellants were sought to be dispossessed, and some of the land, in which the appellant claimed sirdari rights was purported to be sold to respondents nos. 5 to 7who thereupon claimed that they had become sirdars of this land. The appellants then moved this Court under Art. 226 of the Constitution and challenged the entire proceedings which had been taken by the Custodian Department and the Competent Officer. The prayer in the writ petition was for quashing orders which had been made in those proceedings by the Assistant Custodian General, the Assistant Custodian as well as the Competent Officer and there was also a prayer that these proceedings, in which these orders were made, be all quashed. A further prayer was made for issue of a writ of mandamus directing these respondents, the Assistant Custodian General, the Competent Officer, the Assistant Custodian Judicial and the Assistant Custodian Evacuee Property Fatehgarh, not to disturb the possession of the appellants over the land described in the petition which consisted of five plots had been shown as the joint sir, before the Zamindari Abolition Act came into force, of the evacuees and some other persons and this was the land in respect of which the appellants were claiming as tenants of sir. The learned Single Judge held that half share in these plots of land, which had belonged to the persons who had become evacuees, in fact became evacuee property and, consequently, the appellants were entitled to the relief in respect of half share in these plots only. This half share, in respect of which relief was granted, was represented by the share in sir which was held prior to the enforcement of the Zamindari Abolition Act by the persons who had not migrated to Pakistan and had not become evacuees. The appellants have come up in appeal against the order of the learned Single Judge to the extent that he refused relief to them in respect of half share in these plots which the learned Single Judge held had become evacuee property.
(2.)When this appeal came up before us, a question arose whether the proceedings, that were being taken by the department of the Custodian of Evacuee property, were at all valid and for this purpose we called upon learned counsel representing respondents nos. 1 to 4 to produce before us the notice under Sec. 7(1) and the declaration under Sec. 7(1) of the Evacuee Property Act under which it was claimed that this property was declared as evacuee property. The notice under Sec. 7(1) was produced before us and it appeared that it was issued on 18th June, 1952 prior to the enforcement of the Zamindari Abolition Act. The notice mentioned two types of property, one was the zamindari property and the other was sir. In present appeal, we are not concerned with the Zamindari Property at all. In the sir, the evacuees were shown as having half share. No objections were filed in respect of this notice issued for the purpose of declaring that half share in the sir of the evacuees as evacuee property. The next document available is that dated 23rd July 1952 in which the Assistant Custodian, respondent no. 4 gave his final finding that this half share in the sir had also become evacuee property. This decision given by the Asstt. Custodian amounts to the declaration under Sec. 7(1) of the Evacuee Property Act and it appears that it was published in accordance with rules, subsequently, it was on the basis of this declaration that further proceedings were taken which resulted in the orders that have been impugned by the appellants.
(3.)The significant point in these documents is that on 18th June, 1952, when the notice under Sec. 7(1) of the Evacuee Property Act was issued, the evacuees did in fact possess sir rights in these plots of land. The evacuee had proprietary rights in this land and had also acquired special type of cultivatory rights which gave them the status of sir holders. After this notice under Sec. 7(1) of the Evacuee Property Act had been issued but before the declaration under that Sec. could be made, the Zamindari Abolition Act came into force. We have just mentioned above that the declaration was made by the Assistant Custodian, respondent no. 4 on 23rd July 1952 while the Zamindari Abolition Act came into force on 1st July 1952. It appears that at the time of making the declaration under Sec. 7(1) on 23rd July 1952, the Assistant Custodian, respondent no. 4, completely ignored the effect of the enforcement of the Zamindari Abolition Act. Under Sec. 6 of the Zamindari Abolition Act, on 1st July, 1952 all proprietary rights which were vested even in these evacuees in the plots which constituted their sir vested in the State Government. This vesting in the State Government took place not withstanding the issue of the notice under Sec. 7(1) of 18th June, 1952. Sec. 6 of the Zamindari Abolition Act specifically lays down that vesting will take place in the State Government notwithstanding anything contained in any other law for the time being in force, which means that the provisions of Sec. 6 of the Zamindari Abolition Act would take effect even if its provisions were to be some extent contrary to the provisions of the Evacuee Property Act. In Sec. 4 of the Evacuee Property Act also, it was laid down that the provision of that Act would take effect notwithstanding anything contained in any other law for the time being in force. This provision in that Sec. had the effect that, on the day when that Act came into force, if there were any other laws in force and had any provision contrary to the provisions of the Evacuee Property Act, those provisions of the other laws were overruled by the provisions of the Evacuee Property Act. The Zamindari Abolition Act was, however, not in force when the Evacuee Property Act came into force. It was enacted subsequently by the U.P. Legislature was, therefore competent to enact laws relating to evacuee property and, consequently, when the Zamindari Act was enacted, its provisions of the Zamindari Act became enforceable, whether consistent or inconsistent with the provisions of the Evacuee Property Act, because the former having received the assent of the President before its enforcement, its provisions in Uttar Pradesh would prevail over the inconsistent provisions of the Evacuee Property Act in view of the provisions of Art. 254(2) of the Constitution. The result was that, thought in respect of the share of the evacuees in the sir land, a notice was validly issued on 18th June, 1952, that notice did not stand in the way of those evacuees being divested of their proprietary rights in the sir land and all those proprietary rights being vested in the State Government. The further consequence of the enforcement of the Zamindari Abolition Act was that the sir rights possessed by the evacuees in these plots completely disappeared and instead they were deemed to have acquired bhumidhari rights in these plots. Under Sec. 18 of the Zamindari Abolition Act these plots, which were the joint sir of the evacuees and some non-evacuees, had to be deemed to be settled with all of them and had to be deemed to be held by them as bhumidhars with effect from 1st of July, 1952. Under these circumstances, the sir rights in these plots were extinguished and the evacuees and the non-evacuees thereafter came to posses in these plots new right described as bhumidhari rights. On 23rd July, 1952, consequently, no sir rights in this land existed, so that on that day there could be no declaration of the sir rights of the evacuees in these plots as evacuee property. The declaration made by the Assistant Custodian on 23rd July 1952, was therefore, totally ineffective in so far as the sir rights in these plots were concerned. The declaration was, in fact, in respect of rights which had been extinguished and were non-existent. No doubt, on that date, it might have been competent for the Assistant Custodian to declare the bhumidhari rights of the evacuees in these plots as evacuee property but we find that no such declaration was in fact made.


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