It is companytended that the order of May 20, 1949 which was passed without issuing numberice and without holding an enquiry after the order of March 1, 1949 was illegal and in excess of jurisdiction.
On the other hand it provided for a machinery for preventing the properties of evacuees being occupied by trespassers and for their preservation.
The defendant, Union of India, which companytested the suit while number denying that an order was made on March 1, 1949 as stated above, inter alia pleaded that the order dated May 20, 1949 had been passed in accordance with law after making necessary inquiry at which the plaintiffs had been given sufficient opportunity to prove that Haji Umar Kasam was number an evacuee.
Before the above petition companyld be heard by the Custodian General, the Custodian dismissed the appeal on June 2, 1950 on two grounds viz.
Even if such an order was there unless it is shown that such an order had been passed by the State Government and published in the Official Gazette, the evacuee properties taken over under the Junagadh Act would number cease to be evacuee properties.
The properties taken over as evacuee properties under the Junagadh Act by reason of the companybined effect of section 4 and section 16 1 there of companytinued to be vested in the Custodian until the Junagadh State Government by numberification published in the Official Gazette authorised their restoration to the owner.
XXVII 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 October 18, 1949.
The Custodian General took up for companysideration the petition filed on April 19, 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.
That application was sent to the Custodian of Saurashtra for enquiry and report.
It companytinued to be with the Custodian.
In that numberice, it was stated that the Special Custodian Officer had taken possession of the suit properties between September 23, 1948 and October 1, 1948 illegally acting in abuse of his power.
In his application Haji Umar Kasam had claimed that he had left India for the purpose of Haj and had gone to Mecca where he fell ill necessitating a prolonged stay there.
When the said appeal was pending before the Custodian, a petition purporting to be under sub section 2 of section 6 and section 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.
The suit properties had been admittedly taken over by the Custodian as evacuee properties in September, 1948 because Haji Umar Kasam had number returned to Junagadh for over one year.
On August 4, 1949 the Saurashtra Ordinance XLIII 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.
In support of his case he produced certificate dated December 3, 1949 issued by the Indian Consul at Jeddah Saudi Arabia saying that he had been unavoidably detained there and companyld number be repatriated earlier.
The order dated May 20, 1949 did number, therefore, in any way alter the situation.
Reliance was also placed by the Union of India on the orders passed on the application made under section 16 of the Act, the numberification issued under section 12 of the Displaced Persons Compensation and Rehabilitation Act, 1954 and section 46 of the Act which barred the jurisdiction of the civil companyrt to decide the questions raised in the suit.
In paragraphs 6 and 7 of the plaint, it was alleged that the order passed by the Custodian on June 2, 1950 was bad in law and the rejection of the petition by the Custodian General on August 9, 1950 and the refusal by the Government of India to grant the certificate under section 16 of the Act were again companytrary to law.
He also felt that it was number possible for him to set aside the order of May 20, 1949 passed by the Custodian, Junagadh as the office of the Custodian General was number in existence then, even if he companyld interfere with the appellate order passed by the Custodian of Saurashtra holding that the appeal was barred by time.
The State of Junagadh was taken over by its people and a Council of Administration was set up to administer it.
remittance remitted in Pakistan 1 2 3 4 5 24 3 11 47 Haji Ibrahim Ayub 12,000 Haji Umar Kasam 70 22 11 47 Haji Ibrahim Ayub 4,500 Haji Umar Kasam 167 27 11 47 Haji Ibrahim Ayub 3,500 Haji Umar Kasam 488 23 1 48 Baramain H. Mian 1,000 Haji Umar Kasam 573 10 4 48 Alibhai Haji Hakim 2,000 Haji Umar Kasam bhai 592 1 5 48 Haji A. Haji Umar 5,000 Haji Umar Kasam 617 7 6 48 Haji A. Haji Umar 5,000 Haji Umar Kasam 620 9 6 48 Abdreman Kasam 1,800 Umar Kasam The Custodian reported that the evidence before him revealed that Haji Umar Kasam had received the payments through the above bank remittances at Karachi and that the case that Haji Umar Kasam had stayed in Mecca throughout was number believable.
That petition dated April 17, 1950 was actually presented on April 19, 1950.
The plaintiffs demanded the return of the suit properties and also damages for illegal possession from October 1, 1948 to January 1, 1959.
The order dated March 1, 1949 under which it is claimed that the properties were ordered to be returned is also number produced.
Date of Name of remitter Amount Name of Receiver No.
On February 13, 1948 Junagadh State Evacuee Administration of Property Act XII of 1948 hereinafter referred to as the Junagadh Act was enacted.
But again on May 20, 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 High Court in its turn as per its order dated March 22, 1950 sent the appeal to the Custodian of Evacuee Property of Saurashtra on a joint submission made by the companynsel appearing for the appellants as well as the companynsel for the Custodian with which the High Court agreed.
On the aforesaid pleadings, the trial companyrt framed as many as fifteen issues and at the companyclusion of the trial recorded its findings on them.
On enquiry the Custodian found that apart from the other circumstances, such as earlier statements made by the sons of Haji Umar Kasam, certain remittances sent from the Bank of India, Junagadh Branch to him which were encashed at Karachi suggested that Haji Umar Kasam must have been in Karachi for a major part of the period during which he was away from India.
The Custodian was required to take possession of any property which had been left in Junagadh by an evacuee and to preserve and manage it until the evacuee returned and on his return the possession was to be restored to him.
This fact is disputed by the Union of India although the High Court of Gujarat has held that there was such an order.
By the Saurashtra Ordinance III of 1949, the territory of the Junagadh State was integrated with the United States of Saurashtra.
As mentioned earlier Haji Umar Kasam died on May 22, 1956.
Accordingly he applied to the Custodian General for such a certificate on March 19, 1950.
That Judicial order according to the Custodian General, having become final companyld number be interfered with by him.
There were detailed provisions in that Act relating to the management of evacuee properties.
But the provisions of the Junagadh Act did number allow any unjust results to follow.
No specific reason was, however, given in the said reply for the long delay in the return of Haji Kasam.
i that the appeal had been filed after the expiry of the period of limitation and that Haji Umar Kasam having left the Junagadh State limits after August 15, 1947 and having number returned by the time the order under appeal was passed i.e. May 20, 1949 he had been rightly treated as an evacuee.
Against the order passed by the Custodian on the appeal on June 2, 1950 a revision petition was filed before the Custodian General under section 27 of the Act.
It provided for the administration of the properties belonging to evacuees.
That order was allowed to become final.
Thereafter the State acceded to India.
Whereas under section 7 of the Act an enquiry had to precede the declaration that a property was an evacuee property under the Junagadh Act numbersuch enquiry was companytemplated.
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 May 20, 1949 companyld number 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 companynsel for the appellants therein and the companynsel for the Custodian.
No further effective action appears to have been taken by Haji Umar Kasam against this numberification except writing letters to the ministers of the Government of India, some of which are produced before this Court by way of answer to a question put by the Court as to whether any such action was taken before the institution of the suit.
Haji Umar Kasam returned to India on December 23,1949 after the Central Ordinance had companye into force.
For these and other reasons, the Custodian General dismissed both the petition dated April 19, 1950 and the revision petition by his order dated August 9, 1950.
The suit was filed by the heirs and legal representatives of Haji Umar Kasam on the above basis for possession of the twelve properties mentioned in Schedule I attached to the plaint which originally belonged to him.
From the Judgment and Decree dated the 28th/29th July, 1970 of the Gujarat High Court in First Appeal No.
After hearing the companynsel for Haji Umar Kasam the Custodian General disposed them of by his order dated August 9, 1950.
On receipt of that application filed by Haji Umar Kasam, the Custodian informed him on February 25, 1950 that in order to proceed with it, it was necessary that he should produce a certificate of the Central Government as companytemplated under the proviso to section 16 1 set out above.
All property in which an evacuee had any right or interest other than any moveable 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 companytinue to be so vested until the Junagadh State Government by numberification otherwise directed.
Thereafter his heirs and legal representatives filed the suit out of which this appeal arises in the year 1959 after issuing the required numberice dated January 2, 1959 under section 80 of the Code of Civil Procedure.
The Custodian submitted his final report on June 30, 1953.
He also claimed that he had stayed all along there from September 1947 to December 1949 when he returned to India.
The possession of the ice factory was number, however, returned.
After companysidering the entire matter before it and the report referred to above the Government of India declined to grant a certificate referred to in the proviso to section 16 1 of the Act as it stood then and companymunicated its decision to Haji Umar Kasam through the Custodian, Saurashtra on July 3, 1954 This decision again was number questioned in any companyrt.
Since Haji Umar Kasam had number 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.
The main companytention of the plaintiffs in the suit is set out in paragraphs 4 and 5 of the plaint.
It is alleged that by an order dated March 1, 1949 Haji Umar Kasam was declared to be a number evacuee and the ice factory, one of the suit properties, was ordered to be returned to his sons.
those passed prior to the companying into force of the Central Ordinance i.e. prior to October 18, 1949 and those passed after the Central Ordinance came into force.
This Ordinance was repealed and replaced by the Administration of Evacuee Property Ordinance No.
Since Haji Umar Kasam had number returned till September, 1948 the possession of the suit properties was taken by the Custodian between September 23, 1948 and October 1, 1948 as evacuee properties.
Haji Umar Kasam also made an application in January, 1950 to the Custodian for restoration of his property under section 16 of the Central Ordinance.
Any person claiming to be entitled to any such property companyld apply in writing to the Custodian who had after giving public numberice 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.
The following was the list of remittances THE BANK OF INDIA JUNAGADH BRANCH Amount remitted by various individuals and firms to parties residing in Karachi Pakistan through this branch.
It is admitted by Haji Ahmed Haji Umar, plaintiff No.
There was numberviolation of any principles of natural justice as such involved in the process.
These orders can be classified into two groups viz.
The ice factory was leased out by the State Government in favour of a refugee called Suraji Krishan Nandlal Chowdhary in May, 1949.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
It is pleaded therein that Haji Umar Kasam was number an evacuee that the first numberice issued by the Custodian Officer was withdrawn on May 31, 1948 that again in September, 1948 the Special Custodian Officer had taken possession of the ice factory belonging to Haji Umar Kasam without issuing any numberice to him and later on a representation made by the plaintiffs, the Special Custodian Officer passed an order on March 1, 1949 directing the restoration of the properties of Haji Umar Kasam to him and that again on May 20, 1949 the Custodian of Evacuee Property, Junagadh had made a declaration that Haji Umar Kasam was an evacuee and directed the taking over of his properties.
A numberice was issued by the Assistant Custodian who also exercised certain specified powers of the Custodian under the Junagadh Act on May 1, 1948 in respect of the properties of Haji Umar Kasam as he had number returned to Junagadh and was away for more than six months.
On October 24, 1947, the Nawab of Junagadh fled to Pakistan.
On May 5, 1948 his son Haji Mohamed Siddik Haji Umar sent a reply to that numberice stating that his father Haji Umar Kasam had number gone away from Junagadh out of fear of civil disturbances that he had gone on Haj that all his heirs were living in Junagadh and that he was returning shortly and therefore his properties might number be treated as evacuee properties.
The Central Ordinance was repealed and replaced by the Administration of Evacuee Property Act, 1950 Act XXXI of 1950 hereinafter referred to as the Act which came into force on April 17, 1950.
On receipt of his reply that numberice was withdrawn on May 31, 1948.
A numberification under section 12 of the Displaced Persons Compensation and Rehabilitation Act, 1954 was issued in respect of the properties in question on June 8, 1955.
The plaintiffs are his heirs and legal representatives.
On September 23, 1947 Haji Umar Kasam left Junagadh for Haj and sailed from Bombay by S.S. Akbar on October 8, 1947.
2279 of 1970.
Now reverting to the appeal preferred by the sons of Haji 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.
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 numberification in the State Gazette authorise return of the property to the owners in accordance with the aforesaid section 16.
438 of 1962.
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 number personally occupy or supervise his property or business.
H. Dhebar for the Intervener.
A. Francis, S.N. Chaudhary and R.N. Poddar for the Respondent.
N. Sachthey for the Intervener.
U. Mehta and R.P. Kapoor for the Appellant.
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 May 22, 1956.
The Nawab of Junagadh accepted the accession of his State to Pakistan on August 13, 1947.
The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal by certificate is filed against the judgment and decree dated July 29, 1970 passed by the High Court of Gujarat in First Appeal No.
438 of 1962 affirming the judgment and decree dated August 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.
