Decided on January 14,1957



Falshaw, J. - (1.) The facts giving rise to those five-connected Petitions (Civil Writs Nos. 33-D to 37-D of 1956) under Article 226 of the Constitution filed by Maqbul Ahmad and Pirdos Ahmad are as follows. One Manzur Ahmad was the owner of a half share of five separate pieces of land situated at the-village of Pimbora in the district of Muzaffar-nagar (U.P.) and on the 5th of. December, 1954-five notices were issued under Section 7 of the Administration of Evacuee Property Act by the Additional Assistant Custodian (Rural), Muzaffarna-gar, for declaring Manzur Ahmad's shares in these properties to be evacuee property on the ground-that he had migrated to Pakistan. The notices were contested by Maqbul Ahmad the brother and Firdoz Ahmad the son of Manzur Ahmad on the ground that Manzur Ahmad had not migrated to Pakistan but had been killed in the disturbances at Patiala in 1947.
(2.) The cases were decided together by the Additional Assistant Custodian, Muzaffarnagar, by his order dated the 12th of January, 1955. Apparently no efforts had been made in the meantime by the father and brother of the alleged evacuee to have any mutation effected in the revenue re-cords regarding his share of the property, and the evidence produced by them in an effort to prove that Manzur Ahmad had been killed in Patiala in 1947 was not believed, and Manzur Ahmad was accordingly declared to be an evacuee and his shares in the properties to be evacuee property. The petitioners' appeal against this order was dismissed by the Custodian, Uttar Pradesh, and their revision petition was dismissed by the Deputy Custodian-General at Delhi on the 24th of November, 1955. The orders are challenged in the-present writ petitions.
(3.) it is obviously not open to this Court to go into the facts, and the petitions must be decided on the basis that the findings that Manzur Ahmad had not been killed in 1947 and was an evacuee are correct. The chief legal argument addressed to me on behalf of the petitioners was that the Assistant Custodian had no power in December, 1954 to issue notices under Section 7 of the Act. Reliance was placed on the provisions of Sections 4 and 10 of the Administration of Evacuee Property (Amendment; Act 42 of 1954 which' for general purposes came into force on the 8th of October. 1954. Section 4 reads - "After Section 7 of the principal Act, the following section shall be inserted, namely :- 7A Property not to be declared evacuee property on or after 7th May, 1954. Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954. Provided that nothing contained in this section, shall apply to - (a) any property in respect of which proceedings are pending on the 7th day of May, 1954 for declaring such property to be evacuee property; and (b) the property of any person who, on account of the setting up of the Dominions of India " and Pakistan or on account of civil disturbances or the fear of such disturbances had left on or after the 1st day of March, 1947 any place now forming part of India, and who on the 7th day of May, 1954, was resident in Pakistan : Provided further that no notice under Section 7 for declaring any property to be evacuee property with reference to clause (B) of the preceding proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954." Section 10 reads - "The amendments made in the principal Act by Section 4 and S, 8 of this Act shall be deemed to have come into force on the 7th day of May, 1954.";

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