Case: Anwari (Mst) Vs. State of Punjab & Others

In this appeal, by special leave, the appellant, daughter of an evacuee, has challenged the order of the High Court of Punjab and Haryana passed in CWP No. 11339 of 1993, declining to interfere with the order of the Financial Commissioner dated 3-2-1993. To appreciate the controversy here a resume of the facts will be apt. The appellant invited a decision as to the nature of the property in question from the Additional Custodian by filing an application under Section 27 of the Administration of Evacuee Property Act, 1950 (for short "the Act"), who, however, referred the matter to the Custodian-General and directed the appellant to appear before the Custodian-General at Chandigarh on 1-9-1989. By order dated 16-1-1990 the Assistant Custodian-General, after referring to the records of the litigation pending between the appellant and Respondents 5 to 7 in the civil court, pointed out that Shahabudin had left for Pakistan during partition of the country or immediately thereafter so he was a resident of Pakistan and, therefore, he was an evacuee within the meaning of Section 2(d) of the Act. That finding was affirmed by the Financial Commissioner, Punjab in his order passed under Section 54 of the said Act. The Financial Commissioner relying upon the report of SSPs office which indicated that Shahabudin came to India on 8-11-1953 and left India on 27-11-1953 noted that that fact remained unrebutted and held that the property in question vested automatically in the Custodian and therefore Section 7 of the Act was not attracted and thus dismissed the revision on 3-2-1993. That order was impugned in the writ petition before the High Court by the appellant. The writ petition was dismissed, by the order under challenge, so the appellant is before us in this appeal.Shri S. K. Bagga, learned Senior Counsel for the appellant, vehemently contends that there is no automatic vesting of the property in the Custodian under the Act and in the absence of a declaration under Section 7 of the Act no property vests in the Custodian and as admittedly in this case there has been no such declaration, the order of the Financial Commissioner is liable to be set aside. Mr. Rajinder Mathur, learned counsel for the respondents argued that under Section 5 of the Patiala and East Punjab State Union Administration of Evacuee Property Ordinance ("the Ordinance" in short) the property had vested in the Custodian and it shall continue to be vested under Section 8(2) of the Act and in such a case no declaration under Section 7 of the Act is necessary. We find considerable force in the submissions of Mr. Mathur. Here it will be necessary to refer to Section 5 of the Ordinance and Section 8(2) of the Act which read thus : Section 5 of the Ordinance "5. (1) Subject to the provisions of this Ordinance, all evacuee property situate in the Union shall vest in the Custodian. (2) Where immediately before the commencement of this Ordinance any evacuee property in the Union had vested in any person exercising the powers of a Custodian under any corresponding law in force therein immediately before such commencement, the evacuee property shall, on the commencement of this Ordinance, be deemed to have vested in the Custodian appointed for the Union under this Ordinance. (3) Where any property in the Union belonging to a joint stock company had vested in any person exercising the powers of a Custodian under any corresponding law in force therein immediately before the commencement of this Ordinance then, nothing contained in clause (d) of Section 2 shall effect the operation of sub-section (2), but Government may, by notification in the Official Gazette, direct that the Custodian shall be divested of any such property in such manner and after such period as may be specified in the notification." Section 8(2) of the Act " 8. (2) Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest :" * A plain reading of the provisions extracted above makes it clear that by virtue of Section 5 of the Ordinance all the properties of an evacuee stood vested in the Custodian Officer of the State. Section 8(2) of the Act declares that when any property in a State had vested as evacuee property in a person exercising the power of Custodian under any law repealed thereunder that property shall be deemed to be evacuee property declared as such within the meaning of the Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed in the State under the Act on the commencement of the Act and shall continue to so vest.This Court in Assistant Custodian, E.P. v. Brij Kishore Agarwala 1974 SC 111 had occasion to consider the provisions of the U.P. Administration of Evacuee Property Ordinance (1 of 1949). It was held that under Section 5 of that Ordinance all evacuee property situate in the United Provinces vested in the Custodian and on the repeal of that Ordinance under Section 58 of the Act, the property which had already vested in the Custodian continued to vest in him notwithstanding the repeal of that Ordinance by Section 58 of the Act and there was no need to take any action under Section 7 of the Act.In view of this position we do not find any illegality in the order of the High Court warranting our interference.

Decision:
0[ds]This Court in Assistant Custodian, E.P. v. Brij Kishore Agarwala 1974 SC 111  had occasion to consider the provisions of the U.P. Administration of Evacuee Property Ordinance (1 of 1949). It was held that under Section 5 of that Ordinance all evacuee property situate in the United Provinces vested in the Custodian and on the repeal of that Ordinance under Section 58 of the Act, the property which had already vested in the Custodian continued to vest in him notwithstanding the repeal of that Ordinance by Section 58 of the Act and there was no need to take any action under Section 7 of the Act.In view of this position we do not find any illegality in the order of the High Court warranting our interference.