Gorkha Ram & Ors Vs. The Custodian
General of India, Delhi  INSC 174 (21 April 1961)
DAYAL, RAGHUBAR SUBBARAO, K.
CITATION: 1961 AIR 1805 1962 SCR (2) 151
Evacuee Property-Moslem non-proprietor migrating
to Pakistan-Village dwelling house, if vests in Custodian- Administration of
Evacuee Property Act, 1950 (31 of 1950), s. 18(1)-Village wajib-ul-arz.
The wajib-ul-arz of village Buland, teshil
and district Rohtak, provided as follows:- "No non-proprietor can settle
in the village or build a house without the consent of the owner of the estate.
Whenever anybody settles, he obtains land or house from the proprietor of the
same and he can live there so long as he pleases. Whenever he abandons the
village, if the house belongs to the Shamlat of it falls into the possession of
the proprietor About the houses of non-proprietors there is no customary right
to sell or mortgage residential houses, remove the material or build burnt
brick house without the consent of the proprietor If any person dies heirless
his house reverts 152 to the possession, of the proprietor of the estate in
which it is situate", and mentioned the mendicants as a type of
non-proprietors settled in the village. One F, a Muslim belonging to that
class, migrated to Pakistan.
The appellants, who were proprietors, took
possession of his dwelling house. The Custo- dian of Evacuee Property claimed
it as evacuee property. The appellants' objection was finally dismissed by the
Custodian General who held that the house was evacuee property and vested in
the Custodian. The High Court dismissed the appellants' petition under Art.
226 of the Constitution holding that the
right of a non-proprietor to occupy a village site was a right in property and
vested in the Custodian when the non-proprietor became an evacuee. In this
Court, while the appellants relied on the wajib-ul-arz, on behalf of the
respondents reliance was placed on s. 18 of the Administration of Evacuee
Held, that s. 18(1) of the Administration of
Evacuee Pro- perty Act, 1950, contemplated tenants, whether occupancy tenants
or tenants for a certain time and applied only to the occupancy rights of a
tenant. Under the wajib-ul-arz, however, a non-proprietor could have no such
right in the site occupied by him as would make him a tenant of it.
Section 18(1) of the Act, therefore, had no
application and the house in question reverted to the proprietors under the
provisions of the wajib-ul-arz when the non-proprietor abandoned the village
and migrated to Pakistan. It could not, therefore, vest in the Custodian.
It was not correct to say that under the
wajib-ul-arz that F's interest in the house was that of a lessee.
Associated Hotels of India v. R. N. Kapur,
 1 S.C.R.
368, held inapplicable,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 340 of 1958.
Appeal by special leave from the Judgment and
Order dated July 3, 1953, of the Punjab High Court in Civil Writ Application
No. 256 of 1952.
Jwala Parshad Chopra and J. K. Hiranandani,
for the appellants.
Nanak Chand, R. H. Dhebar and T. M. Sen, for
respondents Nos. 1 to 3.
1961. April 21. The Judgment of the Court was
delivered by RAGHUBAR. DAYAL, J.-This appeal, by special leave, is against the
order of the Punjab High Court 153 dismissing the petition of the appellants
under Art. 226 of the Constitution praying for quashing the orders of the
Custodian General, dated June 17, 1952.
The appellants and respondents Nos. 4 and 5
are, residents of village Baland, Tehsil and District Rohtak, and are members
of the body of proprietors of that village. The village Baland is divided
between three estates. The plot in suit is in the estate known as 'Barsan'. One
Fakira, a mendicant and a non-proprietor, had his house on the plot in suit. In
January, 1950, the Custodian of Evacuee Property issued a notice under s. 7 of
the Administration of Evacuee Property Ordinance No. XXVII of 1949, stating
that the appellants were in unauthorised possession of the house of Fakira, a
Muslim evacuee, and that the-should either vacate the house or show cause to
the contrary. The appellants filed their objections to the notice. The Deputy
Custodian of Evacuee Property, by his order dated September 3, 1950, rejected
the objections raised by the appellants and declared the house to be 'evacuee
property'. The Deputy Custodian passed this order after he got an enquiry made
through the Revenue Assistant (Rehabilitation). The appel- lants went in appeal
to the Additional Custodian, Evacuee Property, who got further enquiry made to
ascertain whether Mumtaz, son of Fakira, evacuee, had been in occupation of the
house up to the date of the migration of the Muslims as a result of the
partition. This enquiry revealed that Mumtaz had continued to reside in the
village Baland and that a son was born to him in July, 1947. The Additional
Custodian therefore agreed with the report and the order of the Deputy
Custodian that the property in suit was evacuee property. The appellants then
filed a revision before the Custodian General. It was dismissed on June 17,
1952. The Custodian General observed that there was more than sufficient
evidence to establish that Mumtaz continued to be in possession of the house in
dispute up to July, 1947.
Thereafter, the appellants filed a writ
petition in the High Court challenging the legality of the order of the 20 154
Deputy Custodian on the grounds that the Deputy Custodian gave no notice or
opportunity to them to meet the case and that the Custodian had no jurisdiction
in the matter in view of the provisions of the wajibul-arz according to which
the house of a non-proprietor, on his leaving the village, vested in the
proprietory body. The learned Single Judge who heard the petition held that the
provisions of the Administration of the Evacuee Property Act, 1950 (Act XXXI of
1950), had been complied with throughout and referred the question whether the
site occupied by a non-proprietor vested or not in the Custodian after the
occupier had abandoned it, to a larger Bench in view of his opinion that the
decision of another Single Judge in Joti Parshad v. Bhawani Lal required
re-consideration. The Division Bench then decided this question and held the
right of a non- proprietor to occupy a village site was a right in property,
though it might not be an interest in property and that this right vested in
the Custodian if the non-proprietor left the country and became an evacuee. The
writ petition was accordingly dismissed and it is against this order that this
appeal has been filed.
The sole question for determination in this
case is whether Fakira had any such right in the property in suit which could
vest in the Custodian on Fakira or his son Mumtaz becoming an evacuee. The case
for the appellants is that Fakira had no such right which could vest in the
Custodian both on account of the terms of the wajib-ul-arz and on account of
his being a licensee. The respondents rely on s. 18 of the Administration of
Evacuee Property Act to rebut this contention. It is necessary therefore to
determine the scope of s. IS of the Act.
Section 18, as originally enacted, was
substituted by s. 8 of Act XI of 1953, which provided that the substituted
section shall be deemed always to have been substituted for the original
section. Thus the present section must be deemed to be the section existing
from the commencement of this Act. Sub-section (1) of s. 18 is:
"(1) Where the rights of an evacuee in
any land 155 or in any house or other building consist or consisted of
occupancy rights, nothing contained in any law for the time being in force or
in any instrument having the force of law or in any decree or order of any
court, shall extinguish or be deemed to have extinguished any such rights
either on the tenant becoming an evacuee within the meaning of this Act or at
any time thereafter so as to prevent such rights from vesting in the Custodian
under the provision of this Act or to prevent the Custodian from exercising all
or any of the powers conferred on him by this Act in respect of any such
rights, and, notwithstanding anything containd in any such law, contract,
instrument, decree, or order, neither the evacuee nor the Custodian, whether as
an occupancy tenant or as a tenant for a certain time, monthly or otherwise, of
any land or house or other building shall be liable to be ejected or be deemed
to have become so liable on any ground whatsoever for any default of (a) the
evacuee committed after he became an evacuee or within a period of one year
immediately preceding the date of his becoming an evacuee; or (b) the
Custodian." The expression 'occupancy rights' has not been defined in the
Act. It is these occupancy rights which are not extinguished in spite of the
provisions to the contrary in any other law or in any instrument having the
force of law or in any decree or order of the Court. The occasion when they
will not be extinguished would be when a tenant becomes an 'evacuee' within the
meaning of the Act, or thereafter.
It follows that sub-s. (1) of s. 18 provided
for the non- extinguishment of those occupancy rights which would have been
extinguished otherwise on the tenant's becoming an evacuee and that therefore
the person having such rights must be a tenant. If he is not a tenant, then the
occasion contemplated by sub-s. (1) of s. 18, for the application of its
provisions, does not arise. This is further clear from the latter part of this
subsection which provides that notwithstanding anything contained in any law
etc., neither the evacuee nor the Custodian, whether as an occupancy tenant or
as a, 156 tenant for a certain time, shall be liable to be ejected or be deemed
to have become so liable on any ground whatsoever for any default. This latter
part also makes it clear that the persons contemplated by the section are the
tenants, whether occupancy tenants or tenants for a certain time. We therefore
hold that the provisions of s. 18 apply to the occupancy rights of a tenant.
The next question to determine is whether
Fakira was a tenant of this house. It is clear that Fakira who resided in the
house in suit, was not a tenant of it. He occupied the site and probably built
the house himself on getting the necessary permission from the proprietors.
With respect to non-proprietors, the
wajib-ul-arz of the village states:
"No non-proprietor can settle in the
village or build a house without the consent of the owner of the estate.
Whenever anybody settles, he obtains land or house from the proprietor of the
same and he can live there so long as he pleases. Whenever he abandons the
village, if the house belongs to the Shamlat ofit falls into the possession of
that proprietor About the houses of non-proprietors ...... there isno customary
right to sell or mortgage residential houses, remove the material or build
burnt brick house without the consent of the proprietor If any person dies
heirless his house reverts to the possession of the proprietor of the estate in
which it is situate." The mendicants are mentioned as one of the types of
non- proprietors settled in the Shamlat of the estate. It is clear from these
provisions that Fakira, a non-proprietor, had no such right in the site as
would make him a tenant of it. He just had a right to occupy it and build a
house which was, however, heritable and transferable only with the consent of
It follows, therefore, that the provisions of
sub-s. (1) of s. 18, do not apply to Fakira's rights in the plot in suit and
cannot therefore over-ride the provisions of the wajib- ul-arz according to
which his right to 157 reside in the house in suit came to an end when he
abandoned the village on his migrating to Pakistan.
Learned counsel for the respondent has
further contended that apart from s. 18 of the Act, Fakira's right to residence
in the house in suit will vest in the Custodian as his migrating from the
village to Pakistan on partition does not amount to abandonment contemplated by
the provisions of the wajib-ul-arz. It is submitted that the wajib-ul-arz
contemplates voluntary abandonment and not abandonment under force. We find it
difficult to accept this contention. The abandonment is voluntary, though the
volition to abandon arises on account of circumstances over which Fakira bad no
control. He left the village and migrated to Pakistan because he thought that
to be the better thing to do. This point was also not taken before the High
Reliance is placed on the case reported as
Associated Hotels of India v. R. N. Kapoor (1) for supporting the contention
that Fakira was a lessee of the land in suit and not a licensee. We do not
think this case supports the contention. The following propositions were laid
down in that case for determining whether a document creates a licence or a
(1)To ascertain whether a document creates a
licence or lease, the substance of the document must be preferred to the form.
(2)The real test is the intention of the
parties whether they intended to create a lease or a licence.
(3) If the document creates an interest in
the property, it is a lease, but, if it only permits another to make use of the
property, of which the legal possession continues with the owner, it is a
licence, and (4) If under the document a party gets exclusive possession of the
property, prima facie, he is considered to be a tenant, but circumstances may
be established which negative that intention to create a lease.
The terms of the wajib-ul-arz, already
mentioned, make it clear that no interest in the site on which Fakira was
settled was given to Fakira by the proprietors of the village. He was just
granted a heritable (1)  1 S.C.R. 368,385, 158 right to occupy it for
residence. The house reverted to the possession of the proprietors if he died heirless.
Learned counsel for the respondent has drawn
our attention to the observation in the above case to the effect:
"The right of the respondent to transfer
his interest under the document, although with the consent of the appellants,
is destructive of any theory of licence." This observation does not help
the respondent's case because no interest was created in Fakira and therefore
no question of his transferring that interest arises. The wajib-ul-arz only
expresses this much, that there was no customary right to sell or mortgage
residential houses, remove the material or build burnt brick houses without the
consent of the proprietors. It does not say that the non-proprietor can
transfer his residential right to any one with or without the consent of the
proprietor. We therefore do not agree with this contention.
It has also been contended for the respondent
that the licensee's rights which Fakira bad, could vest in the Custodian, as
they come within the meaning of the expression 'property'. Even if they do,
those rights get extinguished in view of the provisions of the wajib-ul-arz and
therefore there could be no vesting of those rights in the Custodian if the
vesting of those rights is not prevented on account of the applicability of s.
18 of the Act. We have already held that s. 18 does not apply as Fakira was not
The expression 'evacuee property' as it stood
in the Act till its amendment in 1953, meant any property in which an evacuee
had any right or interest, whether personal or as a trustee or as a beneficiary
or in any other capacity and included any property etc. Fakira had no right in
any capacity in the property in suit when the Administration of Evacuee
Property Act came into force in 1950, and therefore the property in suit could
not have been 'evacuee property'.
Lastly, we do not find any support in the
provisions of the wajib-ul-arz or in any law for the observation in the
judgment of the Court below:
159 "Were the evacuee to come back he
could demand to take possession of the site, and so it cannot be said that the
right has ceased to exist. The right ceases only if the occupier leaves the
village permanently with no intention of returning,...
It was nobody's case that Fakira and his son
had left the village temporarily and were to return. It was said in paragraph 5
of the written statement of respondents 1 to 3 that Fakira abandoned the house
only in 1947 at the time of partition. The entire case was that Fakira had
migrated to Pakistan and had abandoned the village.
We are therefore of opinion that Fakira did
not possess any such right in the land in suit which could vest in the Custodian
and that therefore the property in suit is not 'evacuee property'. We therefore
allow the appeal with costs throughout and, setting aside the order of the
Court below, allow the petition and quash the order of the Custodian General
dated June 17, 1952, declaring the property in suit to be evacuee property.