Messrs. Roop Chand and Co., Panipat vs The Deputy Custodian General India, New Delhi and Others

D.K. Mahajan, J.—This is a petition by Messrs. Rup Chand and Company, Wool Merchants, G.T. Road, Panipat, district Karnal, and is directed against the order of the Deputy Custodian General holding that a sum of Rs. 2430/14/9 is due from the petitioner to the Custodian. The petitioner had some dealings with the Muslims, who became evacuees in 1947 and certain amounts were due from the petitioner to various evacuees. The petitioner''s case is that this amount has already been paid by him to the evacuees and in support thereof he has produced receipts of insured letters of the same denomination. The department however took the view that the payment to the evacuees was not valid discharge in view of section 13 of the Administration of Evacuee Property Act, 1950. Aggrieved by this order the petitioner has come to this Court under Article 226 of the Constitution.

Three contentions have been advanced by the learned counsel for the petitioner, namely,-

(1) that on the date when the demand was made from the petitioner the debt had become barred by time, and, therefore, it could not be held that any amount was due from the petitioner to the evacuees;

(2) that no proper notice u/s 48(2) of the Act was given to the petitioner to show cause against the amount sought to be recovered from him; and

(3) that there is no vesting of the amount in the Custodian till a notification u/s 7 of the Act is issued and there being no notification the amount never vested in the Custodian.

So far as the first contention is concerned, the short answer, to it is to be found in section 48(2) of the Act as amended by Act 19 of 1956. The amending Act came into force with effect from the 22nd of October, 1956. The amended section 48 is in these terms:-

48.(1) Any sum payable to the Government or to the Custodian in respect of any evacuee property, under any agreement, express or implied, lease or other document or otherwise howsoever, may be recovered in the same manner as an arrear of land revenue.

(2) If any question arises whether a sum is payable to the Government or to the Custodian within the meaning of sub-section (1), the Custodian shall, after making such inquiry as he may deem fit, and giving to the person by whom the sum is alleged to be payable an opportunity of being beard, decide the questions and the decision of the Custodian shall, subject to any appeal or revision under, this Act be final and shall not be called in question by any Court or other authority.

(3) For the purposes of this section, a sum shall be deemed to be payable to the Custodian not withstanding that its recovery is barred by the Indian Limitation Act, 1908 or any other law for the time being in force relating to limitation of actions.

The learned counsel argues that the Act is only prospective and is retrospective only to a limited extent, namely, that its retrospectivity is limited to the 22nd of October, 1956. According to the learned counsel he had a vested right in this amount after the period of limitation for its recovery had expired. Therefore, the provisions of the amended sub-sections (3) of section 48 of the Act are of no avail to the Department. In support of his contention he relies on N.V. Nageswara Aiyar Vs. Alagu Srinivasa Aiyangar (dead) and Others, , The Lord Krishna Sugar Mills Ltd., Saharanpur v. The Assistant Custodian, Saharanpur AIR 1955 Lah. 721, and Bansidhar Lal v. Assistent Custodian Evacuee Property, Sarsaram AIR 1936 Lah. 251.

I have gone through all these decisions and in my View none of them, is of any assistance to the learned counsel. As a matter of fact, the Punjab decision goes against his contention. Moreover, sub-section (3) of section 48 of the Act cannot be construed in the manner the learned counsel wants me to construe, because if this is done it will become redundant. It is not a case where the department had adjudicated his rights and had come to a decision that no amount was due or that the amount due was barred by limitation, as was the case in the Patna decision. Here in this case the amount was still being disputed and the liability qua it was being determined. So far as the Allahabad decision is concerned, it merely deals with section 48(2) of the Act arid has no relevancy. That being so, I am unable to accept the first contention.

As regards the second contention, there is a notice dated the 1st of May, 1959. After that notice the Custodian passed the order determining the amount and against that older an appeal was preferred. As a matter of fact in the appeal a substantial relief was granted to the petitioner. His only grievance at the moment is that he has in fact paid the amount to the evacuees and, therefore, he should not be made to pay that amount twice ever. It is no doubt true that it is in fact a hardship on him, but it is a hardship which has been worked by the law and I am not in a position to give him any relief in opposition to the law of the land. Therefore, the second contention must also fail.

The third and the last contention is that the property has not been declared vested in the Custodian u/s 7 of the Act. Section 7 deals with the vesting of the property. Section 13 deals with amounts in respect of property that has vested and also in respect of any transaction entered into by the evacuees. The amounts in question are of the second category, that is, in respect of transactions entered into by the evacuees. They have nothing, to do with the vesting of the property. Therefore, section 7 of the Act does not come into play and the argument on the basis of this section has no meaning and must be repelled.

In the circumstances, there is no force in this petition and the same is dismissed, but there will be no order as to costs.