Dr. Zafar Ali Shah & Ors Vs. The
Assistant Custodian of Evacuee Property, Jhansi [1961] INSC 133 (4 April 1961)
SARKAR, A.K.
SINHA, BHUVNESHWAR P.(CJ) DAS, S.K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1967 AIR 106 1962 SCR (1) 749
ACT:
Evacuee Property-Declaration of-If could be
made without issuing of notice-Administration of Evacuee Property Act, 1950 (31
of 1950), S. 7-Displaced Persons (Compensation and Rehabilitation) Act, 1954
(44 of 1954), S. 12 -Constitution of India, Art. 19(1) (f).
HEADNOTE:
The Custodian of evacuee properties made a
declaration that two houses were evacuee properties. Notice under s. 7 of the Administration
of Evacuee Property Act, 1950, which initiated the proceedings resulting in the
declaration had been served on two persons as owners. These persons did not
appear and contest the proceedings. The petitioners claimed to be entitled to
certain shares in the houses. No notice under s. 7 Of the Act had at any time
been served on them and they had never been declared evacuees. One of the
petitioners filed an appeal under the Act to the Custodian General which was
dismissed as time barred. The petitioners then filed a petition under Art. 32
Of the Constitution of India on the ground that they were being wrongfully
deprived of their shares in the houses.
Held, that as no notice under s. 7 of the Act
had been served on the petitioners; their shares in the houses had never become
evacuee property nor vested in the Custodian. The petitioner who had filed the
appeal did not thereby lose his rights in the houses either as the appeal did
not decide any question as to such rights but was dismissed on the sole ground
that it was filed beyond the time prescribed for it.
Strictly, no appeal by him lay as he was not
a party to the proceeding resulting in the declaration.
Section 12 of the Displaced Persons (Compensation
and Rehabilitation) Act, 1954, only affects the rights of an evacuee in his
property. The notification made under that section did not have the effect of
extinguishing the petitioners' rights in the houses as they had never been
declared evacuees.
Ebrahim Aboobaker v. Tek Chand Dolwani,
[1953] S.C.R. 691, referred to.
ORIGINAL JURISDICTION: Writ Petition No. 96
of 1959.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
750 S. Shaukat Hussain and P. C. Aggarwala,
for the petitioners N. S. Bindra, R. H. Dhebar and T. M. Sen, for the
respondents.
1961. April 4. The Judgment of the Court was
delivered by SARKAR, J.-This is a petition raising a question of violation of
the fundamental right to hold property guaranteed by Art. 19 (1) (f) of the
Constitution. It arises out of an order made under the Administration of Evacuee
Property Act, 1950, declaring two houses to be evacuee property.
What had happened was that sometime in
September, 1951, two notices were issued under s. 7 of the Act addressed respectively
to Nusrat Ali and Fateh Ali, requiring them to show cause why they should not
be declared evacuees and their properties, being the two houses in dispute, to
be evacuee property. Neither of these two persons having appeared, a
declaration was made by the Custodian on January 10, 1952, under that section
that Nusrat Ali and Fateh Ali were evacuees and the houses were evacuee
property. Upon such declaration the houses vested in the Custodian under the
provision of s. 8 of the Act and he took possession of them. These houses were
the property of one Khadim Ali who had never been declared an evacuee and had
died on or about October 1, 1950, leaving three sons and five daughters, who
thereupon became entitled to them in certain shares. Nusrat Ali and Fateh Ali
were two of the sons of Khadim Ali. The Petitioners are his other son and two
of his daughters. No notice under s. 7 had at any time been issued to them nor
were they ever declared to be evacuees. These facts are not in dispute.
The Petitioners contend that they have been
wrongly deprived of their rights in the houses by the action of the Custodian.
They say that for a, long time they had no knowledge of the proceedings taken
under the Act in respect of the houses and when they came to know of the order
of the Custodian, they took various steps to protect their rights but were
unsuccessful.
751 One of such steps appears to have been an
appeal preferred by the male petitioner on behalf of all the petitioners to the
Custodian-General against the order of January 10, 1952.
On this appeal being rejected, they moved
this Court by the present petition.
The question is whether the Custodian was
entitled to declare the entirety of the two houses evacuee property and deprive
the petitioners of their rights in them. It is well established and not
disputed, that no property of any person can be declared to be evacuee,
property unless that person had first been given a notice under B. 7 of the
Act: see Ebrahim Aboobaker v. Tek Chand Dolwani (1). Admittedly, no such notice
had been issued to the petitioners. Their interest in the houses, therefore,
could not have vested in the Custodian.
Learned counsel for the respondents, the
officers concerned with evacuee properties, concedes that so far as the female
petitioners were concerned, their interest could not in any way be affected by
the order made under s. 7 of the Act. He however contends that the male
petitioner, Zafar Ali, having filed the appeal to the Custodian-General against
the order of January 10, 1952, he personally at least, is bound by the order
dismissing the appeal, that order being a quasi-judicial decision. It is said
that be cannot, there-fore, maintain this petition.
We do not think that this contention is well
founded. Zafar Ali was not a patty to the proceeding in which the order in
dispute had been made. Strictly speaking, no appeal by him against that order
lay or was necessary. Then again the appeal did not decide any question as to
the right of Zafar Ali to the houses for, it was dismissed on the sole ground
that it bad been filed beyond the time prescribed for it.
There was no judicial determination by the
Custodian-General of any fact affecting Zafar Ali's right in the houses. If, as
was conceded, Zafar Ali's share in the houses could not vest in the Custodian
without due notice to him, then we are unable to appreciate how the position
becomes different because Zafar Ali filed an appeal (1) [1953] S.C.R. 691, 702.
752 which was dismissed as time barred and
which he need never have filed at all. The order of January 10, 1952, was
without jurisdiction so far as Zafar Ali's share in the house was concerned,
and it remained so in spite of the appeal.
In our view, the appeal furnishes no answer
to the claim made in the petition. As no notice had been issued to the
petitioners under s. 7, their interest in the two houses never vested in the
Custodian. The acts of the Custodian in so far as they deprive the petitioners
of their property cannot be upheld.
It was also said on behalf of the respondents
that the properties had already been acquired under the Displaced Persons
(Compensation and Rehabilitation) Act, 1954, and therefore the petitioners had,
no longer, any claim to them.
Sub-section (2) of s. 12 of this Act provides
that "On the publication of a notification under sub-section (1), the
right, title and interest of any evacuee in the evacuee property specified in
the notification shall, on and from the beginning of the date on which the
notification is so published, be extinguished and the evacuee property shall
vest absolutely in the Central Government free from all encumbrances." It
was said that a notification mentioned in this section had been issued. It
seems to us that this section does not affect the petitioners' rights. It only
affects the rights of an evacuee which the petitioners, on the admitted facts,
are not.
We may mention here that the petitioner Zafar
Ali claims that his father left a will giving him a larger share in the houses
than he would have got on intestacy. We are not concerned in this case with his
rights under the will, if any, and say nothing about them.
In the result, we allow the petition and set
aside the order of January 10, 1952, in so far as it affected the rights of the
petitioners in the properties concerned. There will be no order as to costs.
Petition allowed.
Back
