TAR MOHAMMED AND ORS. ETC. ETC.versusUNION OF INDIA AND ORS. ETC.

                  TAR MOHAMMED AND ORS. ETC. ETC.                                 A
                                  v.
                     UNION OF INDIA AND ORS. ETC.

                                   APRIL 1, 1997

                  (K. RAMASWAMY AND D.P. WADHWA, JJ.]                             B

           Displaced Persons (Compensation and Rehabilitation) Act, 1954: Sec-
    tion 12(2).

           Administration of Evacuee Property Act, 1950: Section 4( 1).
                                                                                  c
          Evacuee PropertyDeclaratio11 of-Notice to appellants to sun·ender
    possessio11-Appella11ts' claim of te11a11cy-Co11tentio11 that disputed property
    was not covered by administration of evacuee property-Held not main-
    tainable 011 fact~171ere should be a ~pecific finding by the authorities that
    the appellants had tenancy granted p1ior to August 14, 1947 in their favour D
    and that they remained in occupation under that title as te11ant~171en only
    sub-section (2) of section 12 of Act stands attracted-17zere is 110 such finding
    recorded by the High Cowt in that behalf-In consequence, the alleged right
    to tenancy has no foundation for resisting taking possession of the land.

           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1393 of                E
    1977

-        From the Judgment and Order dated 2.9.76 of the Bombay High
    Court in S.C. Application No. 463 of 1970.

                                        AND                                       F
           Civil Appeal Nos. 1394-1400 and 2473 of 1977.

         From the Judgment and order dated 21.12.76 of the Bombay High
    Court in S.C. Application Nos. 369, 373, 383, 386, 428, 524, 526/70 and 525
    of~                                                                           G
           V. Mohta, V.B. Saharya for the Appellants.

           S.N. Terdol and Balkrishna Gaur (NP) for the Respondents.

           The following Order of the Court was delivered :                       H
                                       485
    486                   SUPREME COURT REPORTS                   [1997] 3 S.C.R.

A CA No. 1393177 :
        As per Office Report Respondent No. 11 is dead. Hence, Civil
    Appeal No. 1393/77 having abated is dismissed.

    CA Nos. 1394-1400177 & 2473177.
B
        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, 196. One Mohd. Hasham Abdulla was a partner of Mis
  Moula Dina Ayub Firm, Akola which firm owned 689.28 acres of land in
C Balapur and Akola Taluk of Akola District of Maharashtra. The said
  Mohd. Has4am Abdulla migrated to Pakistan. Consequently, the Deputy
  Custodian on June 21, 1951 declared his 1/4th share as evacuee property.
  Thereafter, it would appear from the record that 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
D 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
E 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 posses-
  sion of the property. They challenged the same order in the writ petition.
  Several contentions were raised in the High Cour~ 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
F 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 ter-
  minated. 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
G 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.

          Firstly, we are unable to appreciate the stand t&ken by the appellants
H   for the reason that there.should be a specific finding by the authorities that
                         TAR MOHD. v. U.0.I.                           487

the appellants had tenancy granted by Mohd. Hasham Abdulla prior to A
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. That 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
tenants and, therefore, the property was not covered under the AEP Act B
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 also is set at naught; nor C
does it amount to encumbrance. In consequence, 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.
                                                                             D
     The appeals are, accordingly, dismissed. No costs.

T.N.A.                                                 Appeals dismissed.