Patna High Court
Sayed Salahuddin Ahmad vs Janki Mahton And Ors. on 6 December, 1956
Equivalent citations: AIR1957PAT549, 1957(5)BLJR86, 1957CRILJ1161, AIR 1957 PATNA 549, 1957 BLJR 86 ILR 36 PAT 108, ILR 36 PAT 108
JUDGMENT Jamuar, J.
1. This is an application to quash a certain pro-ceding drawn up under Section 145, Criminal Procedure Code, and pending in the Court below. The circumstances are these. There are two brothers named Salahuddin Ahmad and. Masleuddin Ahmad. Masleuddin Ahmad was declared an evacuee under the Administration of Evacuee Property Act (Act No. XXXI of 1950 and hereafter to be called the Evacuee Property Act) in the month of October, 1952. The two brothers possessed certain proper-ties jointly, and the half share of Masleuddin Ahmad has been declared to be an evacuee property under the aforesaid Act. The properties, subject matter of the proceeding under Section 145, Criminal Procedure Code, are the half share of Masleuddin Ahmad declared to be evacuee property, and the half share of Salahuddin Ahmad. The present application has been filed by "Salaudidn Ahmad, and the contention raised by Mr. Lal Narain Sinha on his behalf has been that in the peculiar circumstances of this case, the proceeding must be quashed.
2. The Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure has to make an enquiry as to the person in possession of the property within the meaning of Sub-section (4) of Section 145, Criminal Procedure Code, and when the Magistrate decides who is in possession of such property, he has to make an order under Sub-section (6) of Section 145 declaring such person to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. Now, Sub-section (1) of Section 4 of the Evacuee Property Act provides as follows:
''The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law".
Hence, if there be any provision in any other law which would be inconsistent with the provisions of the Evacuee Property Act, the provisions of the Evacuee Property Act must prevail and the provisions of the other law which are inconsistent with this Act shall not apply. Accordingly, the argument raised by Mr. Lal Narain Sinha is that the provisions contained in Sub-section (6) of Section 145, Criminal Procedure Code, arc in effect inconsistent with the provisions of the Evacuee Property Act & that, therefore, in the circumstances Section 145, Criminal Procedure Code, cannot apply to properties which have been declared to be evacuee properties.
3. The inconsistency takes this form. Under Section 7 of the Evacuee Property Act, the custodian has been empowered to hold an enquiry and to pass an order declaring a property to be evacuee property. Sub-section (1) of Section 8 deals with the matter of vesting of evacuee property in the custodian and it provides that any properly declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State. This sub-section accordingly must be interpreted to mean that once a property has been declared to be evacuee property under Section 7 of the Evacuee Property Act, that property must be deemed to have vested in the Custodian for the State. Mr. Sri Narain Sahay, who appeared for the opposite party (other than the Custodian), drew our attention to Sub-section (3) of Section 7, which provides that the Custodian shall from time to time notify, either by publication in the Official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under Sub-section (1), and he suggested that although the Custodian has passed an order for the issue of such a notice, that is to say a notice under Sub-section (3) of Section 7, no such publication has yet been made. But to my mind, this point is of no avail to him for the reason that the vesting of the evacuee property in the custodian dates from the date of the daclaration of the property as evacuee property and not from the date of the publication under Sub-section (3) of Section 7 of that Act. A declaration of the share of Masleuddin Ahmad as evacuee property has been made and the property has vested in the Custodian. That being so, Sub-section (4) of Section 8 of the Evacuee Property Act at once comes into effect. This sub-section provides as follows:
"Where after any evacuee property has vested in the Custodian any person is in possession thereof he shall be deemed to he holding on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in this behalf". In the present application, there are as many as 82 persons named as opposite party. Of these, the last is the Custodian of Evacuee Property, Bihar. He claims by virtue of the provisions of the Evacuee Property Act to be in possession of the share of Masleuddin Ahmad in the property which has been declared to be evacuee property; whereas the ether 81 persons claim to be in possession of the entire property that is to say of the share of both the brothers, Saleuddin Ahmad and Masleuddin Ahmad, as tenants in their own right. Accordingly, Mr. Sri Narain Sahay argued that so far as the actual possession of the property in dispute is concerned, it ought to be held with these 81 persons and that, therefore, the proceeding under Section 145, Criminal Procedure Code, should be allowed to proceed. On the other hand, the contention raised by Mr. Lal Narain Sinha is that it is the Custodian now who ought to be held in possession of the evacuee Property, that is, the share of Masleuddin Ahmad, and since that share of Masleuddin has vested in the custodian, under the Evacuee Property Act, the Custodian shall hold the evacuee property in his possession and that, therefore, if a criminal Court proceeds to pass an order under Sub-section (6) of Section 145, Criminal Procedure Code, against the Custodian, that order under the Code of Crimi-nal Procedure would be inconsistent with the previsions of the Evacuee Property Act, and, therefore, the Criminal Court ought not to be permitted to proceed under Section 145, Criminal Procedure Code. It seems to me that having regard to the provisions of Sub-section (4) of Section 8 of the Evacuee Property Act, even if the other opposite party, 81 in number, be found to be in possession of this property, the possession must be deemed to be with the Custodian and in effect it is the Custodian who ought to be held to be in possession. In this view of the matter, to proceed under Section 145, Criminal Procedure Code, with respect to these properties would be inconsistent with the provisions of the Evacuee Property Act. I am of opinion, therefore, that this proceeding ought not to be permitted to continue.
4. It was also argued by Mr. Sri Narain Sahay that there should be no harm if the Magistrate proceeds to make an enquiry under Section 145, Criminal Procedure Code, and if the magistrate finds possession of the property with the 81 persons, namely, the opposite party other than the Custodian, it is open to the Custodian to proceed to take possession of the property by the procedure laid down in Section 9 of the Evacuee Property Act, so that there would be no inconsistency with the provisions of Sub-section (6) of Section 145, Criminal Procedure Code, as the Custodian will then proceed to evict all other persons in due course of law.
He argued that under Section 9, the Custodian must make a dement to surrender possession of the property and if there be a refusal or failure to comply, the Custadian may pioceed to take possession of it. This, it was contended, the Custodian has not yet done and so he cannot take possession of the property. I do not find it possible to accept this contention for the reason that I have already expressed the opinion that it is the Custodian who should be deemed to be in possession of the evacuee property and that the fact that the members of the opposite party, that is, other than the Custodian, have been resisting the claim of the Custodian all through is a circumstance to show that they have been refusing to surrender possession of the evacuee property to the Custodian.
There is no ground, therefore, for holding that the Custodian may after the enquiry under Section 145, Criminal Procedure Code, is completed and an order made against him, be directed to make a formal demand from the other members of the opposite party to surrender possession of the evacuee property to him, and if that demand is not complied with, then to proceed to exercise the right which is given to him under Section 9 of the Evacuee Property Act.
5. In the view which I have taken, the Custodian should be deemed to be in possession of the share of Masleuddin Ahmed which has been declared to be evacuee property, while the other members of the opposite party would be claiming possession over the other half share of Salahuddin Ahmad. The shares of the two brothers having been an undivided share, the two sets of the opposite party, namely, the Custodian and the other members of the opposite party (if they be found to be in possession of the half share of Salahuddin Ahmad), would be in joint possession of the entire share to the extent of half and half. In such a circumstance, a proceeding under Section 145, Criminal Procedure Code, can have no application.
6. For these reasons, I would allow this application and direct that the proceeding under Section 145, Criminal Procedure Code, pending in the Court below be quashed.
Imam, J.
7. I agree.