MUNSHI SHEIKHZADA SYED SHER MOHAMMED Vs. CUSTODIAN OF EVACUEE PROPERTY AJMER

JUDGEMENT

(1.) THESE two petitions have been filed under Art. 226 of the Constitution and raise identical points.

(2.) THE case of the petitioners is that in the town of Ajmer there were three house properties, Nos. A. M. C. IV/395, IV/596 and IV/556. THEse were owned and possessed by Syed Sher Mohammed and his brothers Syed Mukhtar Mohd. , Syed Siraj Mohammed, Syed Zahoor Mohammed and Syed Akhtar Mohammed.

(3.) IT is apparent from the above that the learned Judicial Commis-sioner was definitely of the opinion that the properties hiving been released On 31st January, 1950, no longer remained evacuee properties and the proceedings for declaring them Evacuee Properties could not be taken in view of the Amending Act XLII of 1954. The view taken by the learned Custodian that the order passed in revision directing the Assistant Custodian to make further enquiries having been held by the learned Judicial Commissioner to be beyond jurisdiction, while the order setting aside the order of release being held to be within his jurisdiction the property became evacuee property is erroneous The Custodian in his order accepting the revision did not declare the properties to be evacuee properties. What he said was that he had information that the said property or properties did not belong to the Syed brothers and an inquiry afresh as to ownership of property was required to be made. IT was left to the result of the inquiry whether the properties were to be declared evacuee properties or otherwise If the learned Custodian was then of opinion that the property was evacuee property he would have said so. The previous state of affairs could not also come into existence because Mr. Jaisinghani had not only declared the property to be non-evacuee property but had also directed its possession to be made over to the Syed brothers and that order seems to have been then carried out. The property did not remain in the possession or control of the Custodian authorities. When this was so, the property could only vest in the Custodian according to the provision of Act, 1950, that is, by declaration of the property as evacuee property under sec. 7. The Amendment Act, 1954, however, stood in the way of any proceeding being taken after the period mentioned in that Act excepting in the case of pending proceedings, and as observed by the learned Judicial Commissioner in his order of 28th August, 1956, the mere fact that order of Mr. Jaisinghani was liable to be reviewed did not make the proceedings pending. Any other interpretation would not carry out the intention of the Amendment Act which was to afford a certain sense of security among a section of the public and relieve them of a nightmare of having to answer the Custodian in respect of their acts and doings after the lapse of several years of the creation of the two dominions, India and Pakistan. The effect of the Amending Act of 1954 was rightly pointed out by the learned Judicial Commissioner as prohibiting the declaration of any property to be evacuee property except in the circumstances mentioned in the Amending Act.