The Custodian of Evacuee Property,
Bangalore Vs. Khan Saheb Abdul Shukoor [1961] INSC 57 (20 February 1961)
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
SUBBARAO, K.
GUPTA, K.C. DAS
CITATION: 1961 AIR 1087 1961 SCR (3) 855
CITATOR INFO :
R 1962 SC 922 (11)
ACT:
Evacuee Property-Order Passed by
Custodian-State law providing for appeal to the High Court-Later State Act and
Central Act repealing it and Providing for appeal and Power of revision to
Custodian-General Proceedings taken under the earlier State Act
Custodian-General setting aside the Custodian's Order under
revision-Validity-Appeal to High Court-Maintainability-The Mysore
Administration of Evacuee Property (Emergency) Act, 1949 (XLVII of 1949), ss.
5, 6, 8, 30-Evacuee Property (Second) (Emergency) Act 1949 (LXXIV Of 1949), ss.
22, 23, 25-Administration of Evacuee Property Act, 1950 (XXXI Of 1950), S.
27-Constitution of India, Art. 226.
HEADNOTE:
On July 7, 1949, the then State of Mysore
passed the Mysore Administration of Evacuee Property (Emergency) Act, 1949,
providing, inter alia, for the appointment of a Custodian of Evacuee Property
for the State of Mysore for the purpose of administering evacuee property in
the State. By s. 6 all evacuee property vested in the Custodian under s. 5 had
to be notified by him in the Mysore Gazette, while s. 8 provided that any
person claiming any right to any property notified under s. 6 might prefer a
claim to the Custodian on the ground that the property was not evacuee property.
Section 30 provided for an appeal to the High
Court where the original order under s. 8 had been passed by the Custodian, an
Additional Custodian or an Authorised Deputy Custodian. This Act was replaced
by the Mysore Administration of Evacuee Property (Second) (Emergency) Act,
1949, which came into force on November 29, 1949. Section 53(2) of that Act
provided that anything done or any action taken in the exercise of any power
conferred by the earlier Act shall be deemed to have been done or taken in the
exercise of the powers conferred by the later Act. Under the second Act,
instead of the High Court an appeal from the order of the Custodian lay to the
Custodian-General, appointed by the Government of India under the provisions of
the Administration of Evacuee property Ordinance, 1949, which had come into
force on October 18, 1949 ; and in addition, S. 25 Of that Act provided for
revision by the Custodian-General of orders passed by the Custodian. The Administration
of Evacuee Property Act, 1950, which was passed by Parliament and which came
into force on April 17, 1950, provided substantially for all matters contained
in the second 856 Mysore Act. Section 27 gave the Custodian-General powers of
revision against the orders of the Custodian, and s. 58 as amended and given
retrospective operation, provided that " if, immediately before the
commencement of this Act, there was in force in any State to which this Act
extended any law which corresponded to this Act and which was not
repealed......... that corresponding law shall stand repealed." On
September 21, 1949, the Custodian issued a notification declaring the
properties of the respondents as evacuee properties, and claims filed by them
under s. 8 of the earlier Mysore Act were investigated by the Deputy Custodian
who dismissed the same on April 17, 1950. Appeals were filed against the said
order before the Custodian and were allowed on August 22, 1950. on the ground
that there was not sufficient evidence to prove the respondents as evacuees and
consequently the properties in question could not be treated as evacuee
properties. On October 3, 1950, the Custodian-General gave notice to the
respondents under S. 27 of the Administration of Evacuee Property Act, 1950, in
respect of the order of the Custodian dated August 22, 1950, and asked them to
show cause why the said order be not revised. On February II, 1952, the
Custodian-General set aside the order and directed the Custodian to dispose of
the cases afresh. On December 2, 1952, the Custodian passed an order by which
he held that the respondents were evacuees and that their properties were
evacuee properties. Against this order the respondents filed two appeals to the
High Court, and also two writ petitions under Art. 226 of the Constitution as
they had doubts whether any appeal lay to the High Court. The High Court took
the view that the Custodian-General bad no power under S. 27 of the Act to
revise the order of the Custodian and that as the proceedings in these cases
began under s. 8 of the first Mysore Act and as there was nothing corresponding
to that section either in the second Mysore Act or in the Act of 1950, the High
Court was entitled to hear the appeal from the order of December 2, 1952, as
that order must be held to have been passed in proceedings under the first
Mysore Act.
The High Court then went into the matter as
an appellate court and came to the conclusion that the order of the Custodian
dated December 2, 1952, 'Was erroneous.
Held, that the High Court erred in holding
that the order of the Custodian-General dated February II, 1952, was without
jurisdiction. Considering the purpose for which the Administration of Evacuee
Property Act, 195o, was passed and the successive saving clauses in the second
Mysore Act and in the Act, the Custodian-General bad the power under S' 27 to
call for the record of the proceeding in which the order of August 22, 1950,
was passed and consider its legality or propriety.
Held, further, that the High Court was also
in error in holding that appeals to it lay from the order of December 2, 1952.
857 An order made in a proceeding commenced
under s. 8 of the. first Mysore Act must be deemed to be an order made under s.
5(1) of the second Mysore Act or under s. 7(1) of the Act, in view of s. 53(2)
of the second Mysore Act and s. 58(3) of the Act. Consequently, by necessary
intendment, the legislature must have intended that the provision as to appeals
provided by subsequent legislation should supersede the provision as to appeals
under the first Mysore Act.
Garikapatti Vecraya v. N. Subbiah Choudhury
[1957] S.C.R., 488, referred to.
Since the main question for decision in these
cases was whether the respondents were evacuees, and as such a question was one
of fact, the High Court was not justified in looking into the order of December
2, 1952, as an appellate court in dealing with applications for a writ of
certiorari under Art. 226 of the, Constitution.
Hari Vishnu Kamath v. Syed Ahmad Ishaque and
Others, [1955] 1 S.C.R. 1104, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeals-.
Nos. 101 to 104 of 1957.
Appeals from the judgment and order dated
February 4, 1954, of the Mysore High Court in Regular, Second Appeals Nos. 5
and 6 of 1953 and Writ Petitions Nos. 67 and 68 of 1953 respectively.
H. N. Sanyal, Additional Solicitor-General of
India, R.Ganapathy Iyer and D. Gupta for the appellant.
A. V. Visv)anatha Sastri, M. S. K. Sastri
and' T. R. V. Sastri for A. G. Ratnaparkhi, for the respondents.
1961. February 20. The Judgment of the Court
was delivered by WANCHOO, J.-These are four appeals on certificates granted by
the Mysore High Court. They will be disposed of together as the. points raised
in them are common. The facts of these cases are complicated and may be
mentioned in some detail. On July 7, 1949, the then State 'of Mysore passed The
Mysore Administration of Evacuee Property (Emergency) Act, No. XLVII of 1949
(hereinafter called the. first Mysore Act). It provided for the appointment of
a Custodian of Evacuee Property for the State of Mysore and other officers
subordinate to him for the purpose of administering evacuee property in that
858 State. Section 2(c) defined an " evacuee " and s. 2(d) evacuee
property ". Section 5 laid down that all evacuee property situate in
Mysore would vest in-the custodian..
Section 6 provided for a notification by the
Custodian in the Mysore Gazette of evacuee property vested in him.
Section 8 provided that any person claiming
any right to or interest in any property notified under s. 6 as evacuee
property or in respect of which a demand requiring a surrender of possession
had been made by the Custodian might arefer a claim to the Custodian on the
ground that he property was not evacuee property or his interest in the
property had not been affected by the provisions of that Act. It was further
provided that the Custodian was, to hold a summary inquiry in the prescribed manner
into such claims and after taking such evidence as might be produced, pass an
order stating the reasons there for) either rejecting the claim :or allowing it
wholly or in part.
Finally, s. 30 provided for an appeal to the
High Court where the original order under s. 8 had been passed by the
Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act
remained in force till it was replaced by the Mysore Administration of Evacuee
Property (Second) (Emergency) Act, No. LXXIV of 1949 (hereinafter called the
second Mysore Act), which came into force on November 29, 1949.
On September 21, 1949, the Custodian issued a
notification by which he declared the properties. of the two respondents as
evacuee properties which had vested in him, as the, respondents had become
evacuees. Thereupon two claims were filed under s. 8 of the first Mysore Act
separately by the two respondents. These claims were investigated by the Deputy
Custodian who dismissed the same on April 17, 1950, declaring that the, properties
were evacuee properties., It may be mentioned that in the meantime, the second
Mysore Act had come into force by which the first Mysore Act was repealed. But
s. 53(2) of the second Mysore Act provided, that anything done or any action
taken. in the exercise of any power conferred by the first Mysore Act shall be
deemed to have been done 859 or taken in the exercise of the powers conferred
by the second Mysore Act. It was also provided that any penalty incurred or
proceeding commenced under the first Mysore Act shall be deemed to be a penalty
incurred or proceeding commenced under the second Mysore Act as if the latter
Act were in force on the day on which such thing was done, action taken,
penalty incurred or proceeding commenced.
There was how. ever one difference in the two
Mysore Acts.
The first Mysore Act had provided by s. 5 for
the vesting of all evacuee property situate in Mysore ipso facto in the
Custodian; s. 6 then provided for notification by the Custodian and s. 8 for
preferring claims. The second Mysore Act however made a departure from this and
s. 5 thereof provided that" a where the Custodian is of opinion that any
property is evacuee property within the meaning of this Act he may, after
causing notice thereof to be given in such manner as may be prescribed to the
persons interested, and after holding such inquiry into the matter as the
circumstances of the case permit, pass an order declaring any such property to
be evacuee property." Section 6 then provided for vesting of any property
declared to be evacuee property in the Custodian. Thus while under the first
Mysore Act the evacuee property vested in the Custodian and the person who
claimed that it was not evacuee property had to make an application under s. 8
and to get it declared that it was not evacuee property, under the second
Mysore Act there was no vesting in the Custodian and the Custodian had to give
a notice in the manner prescribed (if he thought any property to be evacuee
property) and after hearing the persons interested to declare the property to
be evacuee property; and it was only thereafter that the property vested in him
as evacuee property. Further, the second Mysore Act also defined the "
Custodian-General " as the Custodian-General of Evacuee Property in India
appointed by the Government of India under s. 5 of the Administration of
Evacuee Property Ordinance (Central Ordinance No, XXVII of 1049), which had
come 860 into force on October 18, 1949. Further there was a change in the
forum of appeals and instead of the High Court the appeal lay to the
Custodian-General from an order passed under s. 5 of the second -Mysore Act
where the original order had been passed by the 'Custodian, Additional
Custodian or Authorised Deputy Custodian and in some cases to the District
Judge designated in this behalf by the Government under ss. 22 and 23 of the
second Mysore Act. In addition, provision was made by s. 25 of the second
Mysore Act for revision by the Custodian-General of orders passed by the
District Judge or the Custodian on appeal.
It may be mentioned that the Administration
of Evacuee Property Act, No. XXXI of 1950 (hereinafter called the Act), came
into force on the day the Deputy Custodian passed the order dated April 17,
1950. It may also be mentioned that in the meantime the Constitution of India
had come into force on January 26, 1950, and the former State of Mysore had become
the new Part B State of Mysore under the Constitution. The Act was to apply to
the whole of India except the States of Assam, West Bengal, Tripura, Manipur
and Jammu and Kashmir. Thus the Act applied to the Part B State of Mysore on
April 17, 1950, and though there was no specific provision then in the Act
repealing the second Mysore Act it is not seriously disputed that the Act by
necessary implication repealed the second Mysore Act, as the Act substantially
enacted all that was contained in the second Mysore Act. However that may be,
appeals were filed against the order of April 17, 1950, before the Custodian.
These appeals were allowed on August 22,
1950. The Custodian held that there was not sufficient evidence to prove the
respondents as evacuees and consequently the properties in question could not
be treated as evacuee properties. On October 3,1950, the Custodian General gave
notices to the respondents under s. 27 of the Act in respect of the order of
the: Custodian dated August 22, 1950, and asked them to show cause why'; the
said order of the Custodian be not revised, On December 7, 1950, the
Administration of Evacuee 861 Property (Amendment) Act, No. LXVI of 1950, was
passed by which inter alia s. 58 of the Act was amended and it was provided that
if immediately before the. commencement of the Act there was in force in any
State to which the Act extended any law which corresponded to the Act and which
was not repealed by, sub-s. (1) it shall stand repealed. This was made
retrospective from the date from which the Act came into force (namely, April
17, 1950) and so the repeal of evacuee property laws which were in force in
those States to which the Act applied which was implicit in it was made
explicit from December 7, 1950, so that frum April 17, 1950, only the Act held
the field.
On February 11, 1952, the Custodian-General
set aside the order of the Custodian dated August 22, 1950, and ordered that
further proceedings in these cases should be taken before the Custodian as an
original matter and be was directed to dispose of the cases afresh in the light
of the evidence already recorded and such other evidence as might be produced
before him by the two respondents. When the matter thus came back to the
Custodian he ordered the Deputy Custodian on April 7, 1952, to record the
evidence and then submit the record to him for final disposal. Eventually, the
matter came before the Custodian for final disposal on December 2, 1952. He
held that the two respondents were evacuees and their properties were evacuee
properties. This was followed by two appeals to the High Court on January 2,
1953. As, however, the respondents felt some doubt whether any appeal lay to
the High Court two writ petitions were also filed on September 7, 1953, against
the order of the Custodian. The two appeals as well as the two writ petitions
were disposed of by the High Court by a common judgment on February 4, 1954.
The High Court held that the appeals before it were competent. It further seems
to have 'held that the Custodian General had no power under s. 27 of the Act to
revise the order passed by the Custodian on August 22,1950. Finally, as the
High Court held that the appeals were competent it went into the matter as an
appellate court and came to the conclusion that the order of the 862 Custodian
dated December 2, 1952, was erroneous. It, therefore, allowed the appeals as
well as the writ petitions and set aside the order of the Custodian dated
December 2, 1952, and restored the earlier order of the Custodian dated August
22, 1950. Thereupon "followed applications by the Custodian of Evacuee
Property, Mysore, for certificates to file appeals to this Court on which the
High Court-granted the certificates, and that is how the four appeals have come
up before us.
The main contention of the learned Additional
Solicitor General on behalf of the appellant is two. fold. He urges firstly
that the High Court was in error when it held that the Custodian-General had no
power to set aside the order of August 22, 1950, under s. 27 of the Act. In the
second place, his contention is that the High Court was in error in holding
that an appeal lay to it from the order of the Custodian dated December 2,
1952. Therefore, the High Court could not deal with the matter before it as if
it were hearing an appeal; it could only consider the writ petitions before it
and in doing so it would not be justified in issuing a writ of certiorari
against the order of December 2, 1952, because that order was not passed
without jurisdiction and there was no error of law apparent on the face of the
record to call for interference with it. Mr. Sastri for the respondents In
reply submits that as the proceedings in these oases began under a. 8 of the
first Mysore Act and as there was nothing corresponding to that section either
in the second Mysore Act or in the Act, which replaced successively the first
Mysore Act, the High -Court was entitled to hear an appeal from the order of
December 2, 1952, as that order must be held to have be On passed in a
proceeding under the first Mysore Act, even if it be that the Custodian-General
had the jurisdiction to set aside the order of August 22, 1960 under s. 27 of
the Act. Further, Mr. Sastri contends that the Custodian-General had no
jurisdiction to set aside the order of August 22, 1960, under s. 27 of the Act.
863 The first point therefore which falls for
consideration is whether the Custodian-General had jurisdiction to set aside
the order of August 22,1950, under s. 27; for if he had no such jurisdiction
the High Court may be entitled after holding that the Custodian-General's order
of February 11, 1952, was without jurisdiction, to set aside all subsequent
proceedings, leaving: the order of August 22, 1950, operative and in full force
(assuming for this purpose that the High.
Court had jurisdiction in writ proceedings to
set aside the order of the Custodian-General whose headquarters were in New
Delhi).
Now the first Mysore Act had no provision
relating to the Custodian-General. It was the second Mysore Act which for the
first time brought in the Custodian General and gave him powers of revision
under s. 25 with respect to orders passed by the Custodian or the District
Judge in. appeal. Then came the Act on April 17, 1950, by which the Custodian
General was given the power to call for the record of any proceed in which any
District Judge or Custodian had passed an order for the purpose of satisfying
himself as to the legality or propriety of any such order and to pass such
order in relation thereto as he thought fit. This provision is wider than the
provision in the second Mysore Act and is not confined to orders passed by a
District Judge or a Custodian in appeal and would apply even to original orders
passed by the Custodian, which term, according to the definition in s. 2(c) includes
any Additional, Deputy or Assistant Custodian of evacuee property. We have
already pointed out that the Act provides substantially for all ,matters
contained in the second Mysore Act and therefore must beheld to have repealed
the second Mysore Act by implication. but in any case the question whether the
second Mysore Act was repealed by the Act when it came into force on April 17,
1950, I" been set at rest by the later Central Act, LXVI of 1950. That Act
was passed on December 7, 1950, and 2 thereof began thus:
"For section 58 of the, Administration
of Evacuee Property Act, 1950, the following section shall be 864 substituted.
and shall be deemed always to have been substituted." This clearly shows
that Central Act LXVI was amending s. 58 retrospectively from the date on which
it came into force (namely, April 17, 1950). The new s. 58 which was thus substituted
in the Act from April 17, 1950, contained sub-s.
(2) which is as follows:" If,
immediately before the commencement of this Act, there is in force in any State
to which this Act extends any law which corresponds to this Act and which is
not repealed by sub-section (1), that corresponding law shall stand
repealed." It is clear therefore that the second Mysore Act was expressly
repealed as from April 17, 1950, by the Act in view of this substituted s. 58
put into it retrospectively by Act LXVI, for the second Mysore Act was
undoubtedly a law corresponding to the Act. The High Court seems to have
overlooked the fact that Act LXVI gave retrospective operation to the new s.
58(2) which was inserted in the Act.
It seems to think that the second Mysore Act
was repealed on December 7, 1950, when Act LXVI came into force. The High Court
was further in error in holding that the amended subs. (3) of s. 58 which was
put into the Act also came into force from December 7, 1950, while as matter of
fact it came into force from April 17, 1950, when the Act itself first came
into force.
The position when the Custodian-General gave
notice in October, 1950, under s. 27 of the Act therefore was that the first
Mysore Act had already been re. 'pealed by the second Mysore Act and the second
Mysore Act had been repealed by the Act as from April 17, 1950, and therefore
in October, 1960, only the Act held the field. The question then arises whether
it was open to the Custodian-General to revise the order dated August 22, 1950,
under s. 27 of the Act in February, 1952. Now s. 27 is very wide in terms and
gives power to the Custodian-General at any. time either on his own motion or
on application made to him in this behalf., to call for the record of any
proceeding in which any District Judge or Custodian 865 has passed an order for
the purpose of satisfying himself as to the legality or propriety of any order
and to pass such order in relation thereto as he thinks fit. Prima facie,
therefore, these wide words give power to the Custodian General to revise any
order passed by the Custodian. It is urged on behalf of then respondents that
the Custodian General could; not revise the order dated August 22, 1950.
We are not impressed by this argument. Now
the Act was passed in 1950 to set up a central organisation for the custody,
management and control, etc., of property declared by law to be evacuee
property with the Custodian-General at the head. It is also clear that all
similar laws existing in various States on the date the Act came into force
(namely, April 17, 1950) were repealed by it. The intention of the Legislature
obviously was to provide for the custody and management etc. of evacuee
property in the manner provided in the Act with the Custodian-General as the
head of the organisation. Further, action taken with respect to evacuee
property under the first Mysore Act was deemed under s. 53 (2) of the second
Mysore Act to have been taken there under and finally any action taken in the
exercise of the power conferred by the second Mysore Act was deemed to have
been taken in the exercise of the powers conferred by the Act. Therefore, any
action taken with respect to evacuee property and any order passed by any
Custodian in any proceeding with respect to such property would be subject to
the revisory jurisdiction of the Custodian General under s. 27 in view of the
wide language thereof and the fact that proceedings started under the first
Mysore Act.
would not, in our opinion, make any
difference to the power of the Custodian-General under s. 27. Obviously the
order of August 22, 1950 was passed when the Act was in force in a proceeding
relating to evacuee property by the Custodian and the Custodian-General would
be competent under s. 27 to call for the record of that proceeding and satisfy
himself as to the legality or propriety of any such order and thereafter pass,
such order in relation thereto so he thought fit, We are, therefore, of opinion
that' 866 considering the purpose for which the Act was passed and the
successive saving clauaes in the second Mysore Act and in the Act, the
Custodian General had the power under s. 27 to call for the record of the
proceeding in which the order of August' 22, 1950, was passed &ad consider
its legality or propriety and Pass such order in relation thereto as he thought
fit. Even if the notice of October, 1950, may be open to question as it was
issued before Act LXVI of 1950 was passed, there can be no doubt that the order
of February,, 1952, under a. 27 was passed after hearing the parties and would
be valid and within the jurisdiction of the Custodian-General when it was
passed. Therefore, the order of the Custodian-General dated February II,, 1952,
being within his jurisdiction would not be liable to be set aside on a writ of
certiorari as if the Custodian-General had acted without jurisdiction. The
subsequent proceedings, therefore, which took place after the order of the
Custodian-General would also be with jurisdiction and would not be liable to be
set aside on a writ of certiorari on the ground that they were without
jurisdiction. The High Court, therefore was in error in holding that the order
of the Custodian, General dated February 11, 1952,was without juries diction
and therefore all subsequent proceedings taken in pursuance thereof were also
without jurisdiction, with the result that the order of August 22, 1950 stood
fully operative.
This brings us to the next question whether
any appeal lay to the High Court against the order of December 2, 1952.
There is no, doubt that the proceedings in
the present case commenced under the first, Mysore Act with a notification
under is. 6 and claim applications under s. 8. If the original proceeding had
finished when the first Mysore Act was in force and the order of December 2,
1952, had been passed during its operation there would undoubtedly have been as
appeal to the High Court under s. 30 thereof. But the, first Mysore Act, was
repealed by the second Mysore Act in. November, 1949, and the second Mysore Act
was in its turn repealed by the Act #,a from April 1950. The, questions
therefore, that arises for consideration 867 is 'Whether after the repeal of
the first Mysore Act an appeal would still lie to the High Court from the order
of December 2, 1952. The main contention of Mr. Sastri in this behalf is that
if the second Mysore Act or the Act contained provisions which were similar to
the provisions contained in s. 8 of the first Mysore Act, it may have been
possible to say that the remedy provided by the first Mysore Act under s. 30
had been superseded by the remedy provided in the Act, that remedy being an
appeal to the Custodian-General under s. 24 of the Act. The argument further
proceeds that neither the second Mysore Act nor the Act provides anything
similar to what was provided by s. 8 of the first Mysore Act. Therefore, even
though the first Mysore Act was repealed by the second Mysore Act the
proceedings in the present case must be deemed to be still under the first
Mysore Act which must be deemed to be existing for this purpose and, therefore,
the right of appeal being a vested one and &rising when the proceedings
commenced, there would still be a right of appeal under s. 30 of the first
Mysore Act in spite of its being repealed. When the matter came before the
Custodian in 19,52 it was contended before -him that the proceedings should be
taken to be under the first Mysore Act. He accepted this contention, though he
added that it was immaterial for the purposes of the present cases as the
definition of " evacuee " in S. 2(c) of the first Mysore Act was
practically the same as in s. 2(d) of the Act. It is urged that in view of the
manner in which the Custodian, dealt with the case when he passed the order.
dated December 2, 1952, the proceedings
before him must be taken to be under the first Mysore Act and if so an appeal
would lie to the High Court under ,S. 30.,of the first Mysore Act. This view
has been accepted by the High Court also and that is why it hold; that the
appeals before it were competent; and it is,, the correctness of this view which
has been challenged before us.
Now there is no doubt that the right of
appeal is a substantive right and arises when A proceeding is commenced and
cannot be taken away by subsequent 868 legislation, except by express provision
or necessary intendment. There is no express provision in the present case
taking away the right of appeal conferred by the first Mysore Act. We have
therefore to see whether it can be said that the right of appeal conferred by
the first Mysore Act has been taken away by necessary intendment by the
subsequent legislation ; and if so whether it has been completely taken away or
has been replaced by another right of appeal, though not to the High Court.
Under the first Mysore Act, as we have already pointed out, evacuee property ipso
facto vested in the Custodian under s. 5. There. after the Custodian was
expected to notify such property under s. 6. On such notification or where the
Custodian demanded surrender of possession a person claiming any right to the
property was entitled to make an application preferring a claim before the
Custodian. That application was dealt by the Custodian in a summary manner and
he had 'the power either to reject the application or allow it in whole or in
part. An order passed by the Deputy or the Assistant Custodian under s. 8 was
appealable to the Custodian and an order passed by the Custodian or Additional
Custodian or an authorized Deputy Custodian was appealable to the High Court.
The contention on behalf of the respondents is that when the first Mysore Act
was replaced by the second Mysore Act, there was a vital change in the
procedure and therefore cases in which proceedings had commenced under s. 8
could only be dealt with under the first Mysore Act and for that purpose the
first Mysore Act would be deemed to be alive under a. 6 (e) of the Mysore
General Clauses Act, No. III of 1899, which corresponds to s. 6 (e) of the
General Clauses Act, No. X of 1897. Now there is no doubt that the proceedings
in these cases commenced under the first Mysore Act though they terminated when
that Act was no longer in force. What we have to see is whether there is
anything in the -repealing legislation which by necessary intendment took away
the right of appeal provided by the first Mysore Act and substituted in its
place another right of appeal provided by the repealing Act, 869 The argument
of Mr. Sastri is that there is nothing in the second Mysore Act which repealed
the first Mysore Act corresponding to s. 8 of the first Mysore Act and
therefore in spite of the repeal of the first Mysore Act proceedings commenced
under a. 8 of that Act would continue to be governed thereby, including the
right of appeal. In this connection he urges that the scheme of the second
Mysore Act with respect to evacuee property is vitally different from the
scheme which is to be found in the first Mysore Act. In the second Mysore Act
there is no provision corresponding to s. 5 of the first Mysore Act by which
any property becomes ipso far to evacuee property and vests in the Custodian.
Under the second Mysore Act the Custodian has
first to form a tentative opinion whether the property is evacuee property and
after he has formed such opinion he gives notice thereof to the persons
interested; after such notice is given he holds inquiry into the matter and
thereafter passes an order declaring the property to be evacuee property. Thus
under the first Mysore Act the property became evacuee property ipso facto and
the person claiming any interest in it had to proceed under s. 8 and make a claim
which had to be investigated and thereafter the Custodian finally declared
whether the property, which he had notified under s. 6 was evacuee property or
not. Under the second Mysore Act there being no vesting ipso facto, the
proceeding commences; with a notice by the Custodian to the person interested
followed by an inquiry after which the Custodian decides to declare the
property evacuee if he finds it to be so under the law.
Further under the second Mysore Act when an
order was passed declaring property to be evacuee property under a. 5 it was
open to the person aggrieved by such order to file an appeal to the Custodian
where the original order had been passed by the Deputy Custodian or Assistant
Custodian and to the Custodian-General where the original order had been passed
by the Custodian, Additional Custodian or Authorised Deputy Custodian. There
was also in certain cases appeal to the District Judge; but we are not
concerned with that in the 870 present appeals. The position under the Act was
also the same as under the second Mysore Act and the right of appeal was also
similar.
It is thus true that there has been a change
in the procedure by which evacuee property is finally declared to be evacuee
property. Under the first Mysore Act the property became evacuee property and
the person had to go and file a claim and establish that it was not. That claim
was investigated and after investigation the Custodian had to come to a final
conclusion whether the property was evacuee or not. 'If he came to the
conclusion that it was evacuee property, the vesting under s. 5 was confirmed.
If on the other hand he came to the conclusion that the property was not
evacuee property the legal effect was that there was no vesting under s. 5 of
the first Mysore Act.
Under the second Mysore Act the property did
not ipso facto vest in the Custodian as evacuee property but he formed a
tentative opinion as to whether it was evacuee property and then gave notices
to the persons interested. They appeared before him and the matter was
investigated. He then had to come to a final conclusion whether the property
was evacuee property or not. If he came to the conclusion that it was evacuee
property he declared it to be such; if on the other hand he came to the
conclusion that it was not evacuee property the proceedings came to an end. It
will be seen therefore on a comparison of the two procedures that though there
is difference between the two, the difference is not of a vital or substantial
nature. In the one case the' law started with the presumption that the property
was evacuee property and the person interested had to go and make a claim and
establish that it was not evacuee property and the matter had to be
investigated and the Custodian finally had to come to the conclusion one way or
the other. In the other case the law did not start with the presumption but
only a tentative opinion was to be formed by, the Custodian who gave notice to
the person interested and the matter was then investigated and thereafter the
Custodian had to decide finally one way or the other 871 But in both cases the
question whether the property was evacuee property or not was investigated and
it was only after investigation that it could be finally said whether the
property was evacuee property or, not. Therefore, though there may be an
apparent difference between what is provided by a. 8 in the, first Mysore Act
and by s. 5 in the second Mysore Act as also by s. 7 in the Act, the difference
is, not material and it is only after investigation, whether under s. 8 of the
first Mysore Act, or under s. 5 of the second Mysore Act or under s. 7 of the
Act that the Custodian comes to the final conclusion whether the property is
evacuee property or not. Under the circumstances it would not in our opinion be
unreasonable to say that the investigation provided under a. 8 of the first
Mysore Act and the subsequent remedies following on an order under s. 8 are in
substance the same as the investigation provided under s. 5 of the second
Mysore. Act ores. 7 of the Act and the subsequent remedies following on an
order thereon. We cannot, therefore, agree with the High Court that there is
nothing in the second Mysore. Act to correspond to s. 8 of the first Mysore Act
and therefore these proceedings which began under the first Mysore Act must
continue to be governed by that Act in spite of its repeal by the second Mysore
Act. As we have pointed out above the proceedings under s. 8 of the first
Mysore Act are in substance equal to proceedings under s. 5 of the second Mysore
Act and therefore proceedings commenced under the first Mysore Act must in view
of a. 53(2) of the second Mysore Act, be deemed to be proceedings under s. 5 of
the latter Act. Once that conclusion is reached and it seems to us that it is
inevitable-it follows that an order made in a proceeding commenced under s. 8
of the first Mysore Act must be deemed to be an order made under s. 5(1) of the
second Mysore Act or under s. 7(1) of; the Act. In this connection it is
relevant to point out that; it could not have been the intention of the
legislature to keep the first Mysore Act alive for certain purposes for all,
time the whole object of passing the subsequent Acts is plainly against such an
assumption.
872 The next question that arises is whether
the second Mysore Act and the Act took away the right of appeal which lay to
the High Court under the first Mysore Act and substituted for it another right
of appeal by necessary intendment. As we have already Pointed out, there is no
express provision either in the second Mysore Act or in the Act in this behalf.
But once it is held that proceedings which commenced under s. 8 of the first
Mysore Act must, when the second Mysore Act came into force, be deemed under s.
53(2) thereof to be proceeding under s. 5(1) or when the Act came into be
deemed under s. 58(3) thereof to be proceeding under s. 7(1) and must be
continued under those provisions, it follows that the legislature necessarily
intended that all subsequent action following an order under s. 5(1) or s. 7(1)
must be taken under the second Mysore Act or under the Act as the case may be.
It could not have been intended by the legislature when it was expressly
providing for appeal from an order under s. 5(1) of the second Mysore Act or
under s. 7(1) of the Act that a proceeding commenced under the first Mysore Act
(which was equivalent to a proceeding under s. 5(1) or s. 7(1) should continue
to be governed in the matter of appeal by the first Mysore Act. This is
therefore in our view a case where by necessary intendment (though not by
express provision) the legislature intended that the provision as to appeals
provided by subsequent legislation should supersede the provision as to appeals
under the first Mysore Act. We may point out that this is not a case where the
right of appeal disappears altogether,, all that happens is that where the
order is passed by the Custodian the appeal lies to the Custodian-General
instead of to the High Court. The legislature has provided another forum where
the appeal will lie and in the circumstances it must be held that by necessary
intendment the legislature intended that forum alone to be, the forum where the
appeal will lie and not the forum under the first Mysore Act.
Reference in this connection may be made to
Garikapatti Veeraya v. 873 N. Subbiah Choudhury (1), where this Court held that
the vested right of appeal was a substantive right and was governed by the law
prevailing at the time of the commencement of the suit and comprised all
successive rights of appeal from court to court which really constituted one
proceeding but added that such right could be taken away expressly or by
necessary intendment. In the present cases we are of opinion that once
proceedings under s. 8(1) of the first Mysore Act are held to be similar to
proceedings under s. 5(1) of the second Mysore Act or s. 7(1) of the Act, it
must necessarily follow that the legislature intended this all subsequent
proceedings in the nature of appeal after the first Mysore Act came to an end,
must being the forum provided by the subsequent legislation We are therefore of
opinion that the High Court was in error in holding that appeals to it lay from
the order of December 2, 1952.
The result of the view we have taken is that
the High Court was not justified in looking into the order of December 2, 1952,
as an appellate court,, though I would be justified in scrutinizing that order
as if it was brought before it under Art. 226 of the Constitutional for issue
of a writ of certiorari. The limit of the jurisdiction of the High Court in
issuing writs of certiorari was considered by this Court in Hari Vis Kamath v.
Syed Ahmed Ishaque and others (2) and the following four propositions were laid
down:
(1) Certiorari will be issued for correcting
errors of jurisdiction ;
(2)Certiorari will also be, issued when the
Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction,
as when it decides without giving an opportunity to the parties to be heard, or
violates the principles of natural justice;
(3), The court issuing a writ of critorari
acts in exercise of a supervisory land not appellate jurisdiction. One
consequence of this is that, the court will not review findings of fact reached
by. the inferior court or tribunal, even if they be erroneous;
(4)An error in the decision or determination
itself may also be amenable to a writ of certiorari if (1) [1957] S.C.R. 488.
(1) [1955] S.C.R. 1104, 874 it is a manifest
error apparent on the face of the proceedings, e.g., when it is based on clear
ignorance or disregard of the provisions of law. In other words, it is a patent
error which can be corrected by certiorari but not a mere wrong decision.
In the present case, the Custodian had
jurisdiction to decide the matter once it is held that the, Castodian General
had jurisdiction to set aside the order of August 22, 1950. The main question
for decision in these cases was whether the respondents were evacuees within
the meaning of a. 2(c) of the first Mysore Act. The questions that fall for
decision under s. 2(o) are questions of fact and as pointed out in Hari Vishnu
Kamath's case (2) it is not open on a writ praying for certiorari to review
findings of fact reached by an inferior court or tribunal even though they may
be erroneous. Further, unless there is a patent error of law there can be no
interference by a writ of certiorari.
While dealing with the writ petitions the
main argument that appealed to the High Court was that the Custodian-General,
had no Jurisdiction in revision to reopen the earlier proceedings and in
consequence all subsequent proceedings were null and void The High Court was
further aware of the fact that, the ordinary remedy of the respondents in these
cases against the order of December 2, 1952, was to appeal to the
Custodian-General tinder s. 24 of the Act; but as it was of the view that the
order of ;the Custodian-General under a. 27 was without jurisdiction it held
that it should interfere and set aside the order of December 2, 1952, which was
also without jurisdiction and restore that, of August 22,1950. -In the view we
have taken, the order of the Custodian-General was with jurisdiction and
therefore there was in our opinion no-reason for the High Court interfere in
the exercise of its jurisdiction under Art. 226 of the Constitution with the order
of December 2, 1952, as this is a case where only a writ of certiorari could
issue and that is not justified in view of the decision in Hari Vishnu Kamath's
case(1) (1) [1955] 1 S.C.R. 1104.
875 We therefore allow the appeals, set aside
the order of the High Court and restore that of the Custodian dated December 2,
1952. This of course will not take away the right if any of the respondents to
approach the Custodian-General, for we have not considered the merits of the
order, of December 2, 1952. In the circumstances of this case we pass no order
as to costs.
Appeals allowed.
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