Mohammad & Ors Vs. Union of India & Ors  INSC 368
(1 April 1997)
RAMASWAMY, D.P. WADHWA
O R D
E R CA NO.1393/77 As per office Report Respondent No.11 is dead. Hence, Civil
Appeal No. 1393/77 having abated is dismissed.
NOS.1394-1400/77 & 2473/77 These appeals arise from the common judgment of
the Bombay High Court passed in special civil Application No.369/1970 and batch
on December 21, 1976. One Mohd. Hasham Abdulla was a
partner of M/s Moula Dina Ayub Firm, Akola which firm owned 689.28 acres of land in Balapur and Akola Taluk of Akola
District of Maharashtra. The said Mohd.
Abdulla migrated to Pakistan. Consequently, the Deputy Custodian
on June 21, 1951 declared his 1/4th share a s
evacuee property. Therefore, it would appear from the record the as per the
assertion made by the appellants, a partition of the partnership properties
took place on May 16, 1956 and it was claimed that the said property had fallen
to the share of Mohd. Hasham Abdulla. They claimed tenancy rights in the said
property. Pursuant to the declaration and also action taken under the Displaced
persons (compensation and Rehabilitation) Act. 1954 [for short, the
"Act" ], the order came to be passed by the Assistant Custodian of
the Evacuee property on April 28, 1969 and notice in furtherance thereof was
issued on February 9, 1970 in some cases and on April 23, 1971 in some other
cases by the Tehsildar directing the appellants to surrender possession of the
property. They challenged the same order in the writ petition. Several contention
were raised in the High court and all have been negatived by the High Court.
One contention, raised before us by Shri Mohta, learned senior counsel for the
appellants, is that they remained in possession of the property prior to August 14, 1947 as tenants. By operation of
sub-section (2) of section 12 of the Act, the tenancy cannot be Terminated. The
property, therefore, was not free from encumbrances under The Administration of
Evacuee property Act. 1950 [for short, the "AEP Act" As a
consequence, the order passed by the Tehsildar and Assistant Custodian Evacuee
property is without jurisdiction and authority of law. It also contended that
it was subject to encumbrance. Therefore, the view taken by the Division Bench
of the Bombay High Court is not correct in law.
we are unable to appreciate the stand taken by the appellants for the reason
that there should be a specific finding by the authorities that the appellants
had tenancy that there should be specific finding by the authorities that the
appellants had tenancy granted by Mohd.
Abdulla prior to August
14, 1947 in their favour
and that they remained in occupation under that title as tenants. Then only
sub-section (2) of section 12 of Act stands attracted. There is no such finding
recorded by the High court in that behalf nor any such contention was raised.
Their only premise is that they were tenant and, therefore, the property was
not covered under the AEP Act as free from encumbrances. That contention. though
raised in the High court, was negatived. The High Court reasoned that by
operation of Section 4(1) of the AEP Act. the pre- existing law stands excluded
by virtue of the non obstante clause. Thereby, tenancy rights also stand
extinguished by operation of the non obstante clause. Once section 4(1) of the
AEP Act stands attracted, the alleged right to tenancy has no foundation for
resisting taking possession of the land. Even the order passed by the Tehsildar
and Assistant Custodian has not been made part of the record which was impugned
in the High Court. Under these circumstances, there is no case warranting
appeals are, accordingly, dismissed. No. costs.
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