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PETITIONER: TAR MOHAMMAD & ORS. ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS. ETC.

DATE OF JUDGMENT:       01/04/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          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. CA 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. Hasham  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

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taken by  the Division Bench of the Bombay High Court is not correct in law.      Firstly, 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. Hasham 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 interference.      The appeals are, accordingly, dismissed. No. costs.