E.S.VENKATARAMIAH - (1.) THIS appeal by certificate is filed against the judgment and decree dated 29/07/1970 passed by the High Court of Gujarat in First Appeal No. 438 of 1962 affirming the judgment and decree dated Aug. 27, 1962 passed in Special Civil Suit No. 254 of 1959 on the file of the Civil Judge (Senior Division), Junagadh dismissing the suit of the plaintiffs for possession of the properties mentioned in Schedule I attached to the plaint and for damages and other reliefs against the Union of India.
(2.) THE properties in question which are situated in the area which formed part of the former princely State of Junagadh originally belonged to one Haji Umar Kasam, a resident of Junagadh who died on 22/05/1956. THE plaintiffs are his heirs and legal representatives. The Nawab of Junagadh accepted the accession of his State to Pakistan on Aug. 13, 1947. On Sept. 23, 1947 Haji Umar Kasam left Junagadh for Haj and sailed from Bombay by "S. S. Akbar" on Oct. 8, 1947. On Oct. 24, 1947, the Nawab of Junagadh fled to Pakistan. The State of Junagadh was taken over by its people and a Council of Administration was set up to administer it. Thereafter the State acceded to India. On Feb. 13, 1948 Junagadh State Evacuee, (Administration of Property) Act 12 of 1948 (hereinafter referred to as 'the Junagadh Act') was enacted. It provided for the administration of the properties belonging to evacuees. Under that Act the expression 'evacuee' was defined as a person ordinarily resident in or owning property or carrying on business in any village or town within the Junagadh State who had on account of civil disturbances or the fear of such disturbances left that village or town and did not personally occupy or supervise his property or business. All property in which an evacuee had any right or interest other than any movable property in his immediate physical possession which was called 'evacuee property' situated within the Junagadh State came to be vested in the Custodian appointed for the purpose of that Act and was directed to continue to be so vested until the Junagadh State Government by notification otherwise directed. There were detailed provisions in that Act relating to the management of evacuee properties. Section 16 (1) of that Act however provided that on being satisfied that evacuees had returned or were returning to the Junagadh State, the Junagadh State Government might by notification in the State Gazette authorise return of the property to the owners in accordance with the aforesaid S. 16. Any person claiming to be entitled to any such property could apply in writing to the Custodian who had after giving public notice to hold a summary enquiry into the claim and to pass a formal order declaring the person to whom the possession of the property might be delivered. A notice was issued by the Assistant Custodian who also exercised certain specified powers of the Custodian under the Junagadh Act on 1/05/1948 in respect of the properties of Haji Umar Kasam (H. U. K.) as he had not returned to Junagadh and was away for more than six months. On 5/05/1948 his son Haji Mohamed Siddik Haji Umar sent a reply to that notice stating that his father Haji Umar Kasam had not gone away from Junagadh out of fear of civil disturbances; that be had gone on 'Haj'; that all his heirs were living in Junagadh and that he was returning shortly and therefore his properties might not be treated as evacuee properties. No specific reason was, however, given in the said reply for the long delay in the return of Haji Umar Kasam. On receipt of his reply that notice was withdrawn on 31/05/1948. Since Haji Umar Kasam had not returned till September, 1948 the possession of the suit properties was taken by the Custodian between Sept. 23, 1948 and Oct. 1, 1948 as evacuee properties. By the Saurashtra Ordinance III of 1949, the territory of the Junagadh State was integrated with the United States of Saurashtra. It is alleged that by an order dated 1/03/1949 Haji Umar Kasam was declared to be a non-evacuee and the ice factory, one of the suit properties, was ordered to be returned to his sons. This fact is disputed by the Union of India although the High Court of Gujarat has held that there was such an order. The possession of the ice factory was not, however, returned. It continued to be with the Custodian. But again on 20/05/1949, the Custodian purporting to exercise his power under the Junagadh Act treated Haji Umar Kasam as an evacuee and directed that his ice factory should be taken possession of as an evacuee property. The ice factory was leased out by the State Government in favour of a refugee called Suraji Krishan Nandlal Chowdhary in May, 1949. Since Haji Umar Kasam had not yet returned to India, his sons filed an appeal in July, 1949 before the District Judge, Junagadh against the order declaring him as an evacuee. On 4/08/1949 the Saurashtra Ordinance 43 of 1949 (hereinafter referred to as the 'Saurashtra Ordinance') was passed repealing the Junagadh Act and under, that Ordinance the properties vested in the Custodian under the Junagadh Act came to be vested in the Custodian of the United States of Saurashtra. This Ordinance was repealed and replaced by the Administration of Evacuee Property Ordinance No. 27 of 1949 (hereinafter referred to as the 'Central Ordinance') which applied also to all the acceding States except Cooch-Behar, Manipur and Tripura with effect from Oct. 18, 1949. The Central Ordinance was repealed and replaced by the Administration of Evacuee Property Act, 1950 (Act 31 of 1950) (hereinafter referred to as 'the Act') which came into force on 17/04/1950. Haji Umar Kasam returned to India on Dec. 23, 1949 after the Central Ordinance bad come into force. Now reverting to the appeal preferred by the sons of Haji Umar Kasam filed in July, 1949 before the District Judge, Junagadh it is seen that the said appeal was transferred by the District Judge to the High Court of Saurashtra State without deciding it. The High Court in its turn as per its order dated 22/03/1950 sent the appeal to the Custodian of Evacuee Property of Saurashtra on a joint submission made by the counsel appearing for the appellants as well as the counsel for the Custodian with which the High Court agreed. When the said appeal was pending before the Custodian, a petition purporting to be under subsection (2) of S. 6 and S. 27 of the Central Ordinance was presented by Haji Umar Kasam himself to the Custodian General of Evacuee Property requesting him to withdraw the appeal to his file and to dispose it of. That petition dated 17/04/1950 was actually presented on 19/04/1950. Before the above petition could be heard by the Custodian General, the Custodian dismissed the appeal on 2/06/1950 on two grounds viz. (i) that the appeal had been filed after the expiry of the period of limitation, and (ii) that Haji Umar Kasam having left the Junagadh State limits after Aug 15, 1947 and having not returned by the time the order under appeal was passed i. e. 20/05/1949 he had been rightly treated as an evacuee.
(3.) AGAINST the order passed by the Custodian on the appeal on 2/06/1950 a revision petition was filed before the Custodian General under S. 27 of the Act. The Custodian General took up for consideration the petition filed on 19/04/1950 requesting him to withdraw the appeal then pending before the Custodian and the revision petition filed against the order passed in appeal by the Custodian together. After hearing the counsel for Haji Umar Kasam the Custodian General disposed them of by his order dated 9/08/1950. Though he agreed with the submission made on behalf of Haji Umar Kasam that the appeal filed against the order passed by the Custodian, Junagadh on 20/05/1949 could not be disposed, of by the Custodian of Saurashtra State, who was of the same rank as the Custodian who had passed the order under appeal, he found it difficult to go behind the order of the High Court of Saurashtra which had transferred the appeal to the Custodian of Saurashtra by its order agreeing with the joint submission made by the cannot for the appellants therein and tile counsel for the Custodian. That judicial order according to the Custodian General, having become final could not be interfered with by him. He also felt that it was not possible for him to set aside the order of 20/05/1949 passed by the Custodian, Junagadh as the office of the Custodian General was not in existence then, even if he could interfere with the appellate order passed by the Custodian of Saurashtra holding that the appeal was barred by time. For these and other reasons, the Custodian General dismissed both the petitions dated 19/04/1950 and the revision petition by his order dated 9/08/1950. That order was allowed to become final. Haji Umar Kasam also made an application in January, 1950 to the Custodian for restoration of his property under Sec. 16 of the Central Ordinance. That section read as : "16 Restoration of Property: (1) the Custodian may, on application made to him in this behalf in writing by an evacuee or any person claiming to be an heir of an evacuee, restore, subject to such terms and conditions as he may think fit to impose, the evacuee property to which the evacuee or other person would have been entitled if this Ordinance were not in force : Provided that the applicant produces in support of his application a certificate from the Central Government or from any person authorised by it in this behalf, to the effect that the evacuee property may be so restored if the applicant is otherwise entitled thereto. (2) On receipt of an application under sub-section (1), the Custodian shall cause public notice thereof, to be given in the prescribed manner, and, after holding a summary inquiry into the claim in such manner as may be prescribed may- (a) make a formal order declaring that the property shall be restored to the applicant; or (b) reject the application; or (c) refer the applicant to a Civil for the determination of his claim and title to the property : Provided that no order for restoration shall be made under this section, unless provision has been made in the prescribed manner for the recovery of any amount due to the Custodian in respect of the property or the management thereof, (3) Upon the restoration of the property to the evacuee or to the heir, as the case may be, the Custodian shaft stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored : Provided that every lease granted in respect of the property or on behalf of the Custodian shall have effect against the person to whom restoration is made until such lease is determined by lapse of time or by operation of law."(Underlining by us.) (Note: Section 16 (1) of the Act which replaced the Central Ordinance on 17/04/1950 was in the same terms.) ;