The Evacuee Interest (Separation) Act, 1951(Act No. 31 of 1950) enacted by parliament to make special provisions for the separation of evacuees from those of other persons in property in which such other persons are also interested and for all other matters relevant thereto. This Act should extend to whole of India, however, State of Assam, West Bengal, Tripura, Manipur and Jammu and Kashmir are exempted from its application.
Prior to enactment of this Act, there were certain legislations fro administrating Evacuee Properties one of which is Evacuee Property Act, 1950 enacted with the aim to administer Evacuee properties for compensating refugees lost their properties in Pakistan. Another legislation was the Displaced Persons (Compensation and Rehabilitation) Act, 1954, provides for acquisition of Evacuee Property under Section 12 of this Act by Central Government and the payment of compensation to displaced persons.
Section 2 of the Act provides for certain definitions including the definition of appellate Officer, claims, composite property, etc. As per section 3 of the Act the provisions of any other law, which are inconsistent with the provision of this Act, or even Rules made under this Act should not survive when provisions of this Act is having applicability.
Chapter II of the Act is very important so far as it relates to separation of Evacuee interest in composite property. Section 4 of the Act dealt with provisions empowering State Government to appoint competent officers from amongst the persons who have held judicial office or an Advocate for specified period. Such appointment can be made only with the prior approval of Central Government for performing functions under the Act at specified areas. Section 5 of the Act provides for jurisdiction of such competent officers in respect of deciding claims relating to composite property. Further, Sections 6, 7 and 8 of the Act describes the procedure which is to be followed while dealing with cases or claims under this Act, wherein Section 8 provides for making of decision by such Competent Officer and list of matters which the decision must contain.
Section 9 of the Act makes provisions in respect of mortgaged Property of evacuees, wherein it is clearly stated that, no such property should be subjected to payment of rate of interest more than 5 percents annual. Further, Sub section (2) of Section 9 of the Act specifies about mortgage where mortgagee taking possession of mortgage property and such mortgage to be called under this provision as Usufructuary mortgage and it should be extinguished before on or before completion of 20 years.
The competent officer under the Act is obliged for taking efforts as to separation of interest of Evacuees from interest of persons claiming composite property as provided under Section 10 of the Act. Section 11 of the Act provides for vesting of Evacuee interest in the Custodian where no claim made even after notice under 6 of the Act, or such claim is made and Competent officer separated the Evacuee interest as per section 10 of the Act. Such vesting should be free from all encumbrances and liabilities. Sub Section (2) thereof, says that the Custodian can take possession thereof by evicting claimant or others unless possession is lawful.
As discussed in the case of Abdul Hakim Khan & Ors Vs. The Regional Settlement Commissioner [1961] Section 11 could not vest in the Custodian any property not being evacuee property. This section dealt only with cases where the whole property has been declared to be evacuee property and the claim is as mortgagor or mortgagee or to an undivided share in the property. In such cases in the absence of a claim having been filed or having been filed and found unsustainable, section 11 of the Act vests the whole property in the Custodian. Section 12 of the Act specifies that Rights of claimants against other claimant or other persons should not be affected in respect of transferred property.
The Act under Chapter III of the Act describe provisions about appeal, revision in matters and also describes powers and procedure of Competent Officers and Appellate Officers wherein Section 13 of the Act empowers State Government to appoint Appellate Officers with the approval of the Central Government for hearing appeals against orders of Competent Officers. Further sub sections explains qualification of such officers. The most important section again, is Section 14 of the Act where, aggrieved person from the order of Competent officers, can challenge it under this appellate jurisdiction before Appellate Officers within prescribed period.
Section 15 of the Act empowers Appellate Officer as to revision of matter before him under revisional jurisdiction. Section 16 specks of amendment of such orders passed by Competent officer or even order of Appellate officer can be amended or corrected. Section 17 of the Act specifies that powers and procedure provided under Code of Civil Procedure, 1908 which are vested in Civil Court should be exercised by such officers under this Act. And the orders made under this Act, should be treated as final as per Section 18 of the Act.
Chapter IV of the Act dealt with miscellaneous provisions, wherein Section 19 of the Act specks of power of Central Government and Appellate Officer as to transfer of cases pending trial before any Competent Officer to another Competent Officer. Similarly, pending appeal before any Appellate Officer can also be transferred from one to another Appellate Officer. Further, Section 20 of the Act bars the jurisdiction of Civil Courts or even Revenue Court from entertaining any legal proceedings relating to as to composite property, where Competent Officer has jurisdiction and power to decide such matters.
Section 23 of the Act is very significant provision empowering Central Government to make Rules as to carrying out the intended purpose of this Act and also for the matters enlisted under sub section (2) of this provision. Moreover, the Act was amended by Industries (Development and Regulation) Amendment Act, 1953.
by Faim Khalilkhan Pathan
