Md. Sharfuddin Vs. R. P. Singh &
Ors  INSC 87 (10 March 1961)
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1961 AIR 1312 1962 SCR (1) 239
Appeal--Person aggrieved--Property held to be
not evacuee property--Whether Assistant Custodian can Prefer appeal against
order--Administration of Evacuee Property Act, 1950 (31 of 1950), S. 24(1)(a).
The Assistant Custodian, Giridih, passed an
order holding that the properties of the appellant were not evacuee properties.
The Custodian, acting under S. 26(1) of the Administration of Evacuee Property
Act, 1950, called for the records of the case, and after hearing the appellant
dropped the proceedings. Subsequently, the Assistant Custodian, Head-quarters,
Patna, filed an appeal before the Custodian under S. 24(1)(a) of the Act,
against the order of the Assistant Custodian, Giridih. In appeal the Custodian
declared the shares of the brothers of the appellant in the property to be
evacuee property and referred the matter for separation of their shares. The
appellant contended that no appeal lay under S. 24(1)(a) at the instance of the
Assistant Custodian, Head-quarters.
Held, that the appeal filed by the Assistant
Custodian, Headquarters was incompetent. The Assistant Custodian, Headquarters,
was not a 'person aggrieved' within the meaning of S. 24 of the Act, by the
order of the Assistant Custodian, Giridih, and he could not prefer an appeal.
Ebrahim Aboobakar v. Custodian-General of
Evacuee Property,  S.C.R. 696, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 458 of 1958.
Appeal by special leave from the judgment and
decree dated September 3, 1956, of the Patna High Court in M. J. No. 603 of
M. K. Ramaraurthi, R. K. Garg, S. C. Agarwal
and D. P. Singh, for the appellant.
R. C. Prasad, for the respondents.
1961. March 10. The Judgment of the Court was
delivered by SUBBA RAO, J.--This appeal by special leave is directed against
the order of the High Court of Judicature at Patna dismissing the application
filed by the 240 appellant under Art. 226 of the Constitution to quash the
order dated August 4, 1955, passed by Shri R. P. Singh, Custodian of Evacuee
The facts relevant to the question raised in
this appeal may be briefly stated. On information supplied by one Qurban Ahmad,
the Assistant Custodian, Giridih, issued a notice under s. 7(1) of the
Administration of Evacuee property Act, 1950 (Act 31 of 1950), (hereinafter
called the Act), to the appellant to show cause why he should not declare
holdings Nos. 326, 774 and 654 in his possession as evacuee properties. The
Assistant Custodian, after making the necessary inquiry, held that the said
holdings were evacuee properties. The appellant filed a revision petition under
s. 26 of the Act against the said order to the Deputy Custodian, Hazaribagh,
who set aside the order of the Assistant Custodian and remanded the matter to
him for disposal in accordance with law. On April 26, 1954, the Assistant
Custodian, Giridih, on a consideration of the evidence placed before him, held
that the said properties were not evacuee properties, and on that finding he
released them. Thereafter, the Custodian, acting under s. 26(1) of the Act,
called for the records of the case and, after hearing the appellant, by his
order dated January 27, 1955, dropped the proceedings. On February 22, 1955,
the Assistant Custodian, Head-quarters, Patna filed an appeal before the Custodian,
under s. 24(1)(a) of the Act, against the order of the Assistant Custodian,
Giridih, dated April 26, 1954, releasing the holdings of the appellant. On
August 4, 1955, the Custodian set aside the order of the Assistant Custodian,
Giridih, and declared the shares of the brothers of the appellant in the
holdings to be evacuee properties and referred the matter to the appropriate
authority for the separation of their interest. Thereafter, the appellant filed
an application to the High Court under Art. 226 of the Constitution to quash
the said order, but that was dismissed. Hence the appeal.
Though many questions were raised before the
High Court, only the following four questions were pressed before us by learned
counsel for the appellant 241 (1) No appeal lay to the Custodian from the order
of the Assistant Custodian, Giridih, at the instance of the Assistant
Custodian, Headquarters, Patna. (2) Under s. 7-A of the Act the Custodian has
no power after May 7, 1954, to declare any property to be evacuee property
unless proceedings are pending on the said date for declaring such property as
evacuee property, and that in the present case, as the appeal against the order
of the Assistant Custodian was filed only on February 22, 1955, no proceeding
was pend- ing on the prescribed date and, therefore, the Custodian illegally
made the order in direct contravention of the provisions of B. 7-A of the Act.
(3) The Custodian acted perversely in condoning the delay in filing the appeal
to him without assigning any reasons. (4) The notice issued to the appellant
under s. 7(1) of the Act was defective and, therefore, the proceedings taken
pursuant thereto were void.
The appellant lost before the High Court on
all the four points. Though learned counsel for the appellant raised all the
four contentions before us, he seriously pressed only the first two
To appreciate the first contention and to
give a satisfactory answer thereto, it would be necessary to consider the scope
of the relevant provisions of the Act.
Section 2(c) defines "Custodian" to
mean the Custodian for the State and to include any Additional, Deputy or
Assistant Custodian of evacuee property in that State. Section 6 authorises the
Central Government to appoint for any State a Custodian and as many Additional,
Deputy or Assistant Custodians of Evacuee Property as may be necessary for the
purpose of discharging the duties imposed on the Custodian by or under the Act.
By sub-s. (3) of that section, the Additional, Deputy and Assistant Custodians
of Evacuee Property shall discharge the duties imposed on them by or under the
Act under the general superintendence and control of the Custodian of the
State, but the Central Government may, by general or special order, provide for
the distribution of work among them. The said provisions indicate that whatever
the designations of the said officers be they are 242 all Custodians within the
definition of "Custodian" in the Act, though for convenience their
duties are either statutorily or administratively defined. Under s. 7 a
Custodian-it may be noted that the Custodian may be any one of the aforesaid
categories-if he is of opinion that any property is evacuee property within the
meaning of the 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. Sub-s. (3) thereof enjoins
on him the duty to publish in the Official Gazette all properties declared by
him to be evacuee properties. After such declaration the said properties vest
in the Custodian for the State. Section 9 empowers the Custodian to take
possession of evacuee property vested in him. Section 10 confers powers on the
Custodian to take such measures as he considers necessary or expedient for the
purposes of securing, administering, preserving and managing any property.
Section 24 confers a right on any person aggrieved by an order made under s. 7
to prefer an appeal to the Custodian where the original order has been passed
by a Deputy or Assistant Custodian and the amount or value of the property
which is the subject-matter of the order does not exceed two thousand rupees,
and to the Custodian-General in any other case. Section 26, which was deleted
from the Act by s. 8 of Act 91 of 1956, conferred a revisional jurisdiction on
the Custodian, Additional Custodian or Authorized Deputy Custodian against the
orders of subordinate officers. Section 27 gives to the Custodian- General a
plenary power of revision to correct the orders of any Custodian at any time.
The scheme of the foregoing provisions may be briefly stated thus: A Custodian,
as defined in the Act, after necessary inquiry, may declare a property to be
evacuee property; on such declaration the property vests in him; after such
vesting, the Custodian manages the said property; if a Custodian wrongly or
illegally declares a property to be evacuee property, the person aggrieved by
his 243 order can prefer an appeal to the appropriate authority prescribed
under s. 24; the Custodian or the Custodian.
General, as the case may be, in appropriate
cases, can also, in exercise of his revisional jurisdiction, set aside that
order; if a Custodian illegally or improperly releases a property on the ground
that it is not evacuee property, it is liable to be revised by the Custodian or
the Custodian- General, as the case may be, under s. 26 or s. 27 of the Act.
Learned counsel for the respondents contends
that the words "any person aggrieved" under s. 25 of the Act are
comprehensive enough to include a Custodian and, therefore, a Custodian can
prefer an appeal against an order of a Custodian releasing properties under s.
7 of the Act.
Realizing that an obvious anomaly is implicit
in the argument, learned counsel concedes that an appeal can be filed only by a
Custodian other than the Custodian who made the order releasing the properties.
It is said that the Central Government may, under s. 6 of the Act, provide for
the distribution of work among the various Custodians, namely, Additional,
Deputy and Assistant Custodians, and in such allocation the power to inquire
whether a property is an evacuee property or not may be confer. red on one
Custodian and the power to manage it on another, and that, in that event, the
Custodian on whom the power to manage is conferred will be a person aggrieved
within the meaning of s. 24 of the Act. In our View this argument is not
consistent with the scheme of the Act. Though for the purpose of convenience of
management or judicial determination of disputes the Act provides different
categories of Custodians, all of them fall within the definition of
"Custodian" in the Act. The Act further provides a hierarchy of
tribunals under the superintendence and control of the Custodian-General. It
would be anomalous were it to be held that a Custodian could prefer an appeal
against the order of a Custodian. The Act does not contemplate one officer
preferring appeals against the orders of another officer If an Assistant
Custodian or a Custodian went wrong in the matter of declaring a property to be
an evacuee property, the 244 Act provides that the Custodian or the Custodian General,
as the case may be, before 1956, and the Custodian-General thereafter, may set
right the wrong. In the premises the words "any person aggrieved" in
s. 24 of the Act can only mean a person whose properties have been declared to
be evacuee properties by the Custodian, or a person who moved the Custodian to
get the properties so declared or any other such aggrieved person. The words
"any person aggrieved" in the context of the Act cannot include any
Custodian as defined in the Act.
Strong reliance is placed upon the decision
of this Court in Ebrahim Aboobaker v. Custodian-General of Evacuee Property (1)
in support of the contention of the respondents. In that case, on information
supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee
Property, the latter started proceedings under the Bombay Evacuees (Administration
of Property) Act, 1949, against one Aboobaker. The Additional Custodian, after
recording the statement of Aboobaker and examining the evidence produced by Tek
Chand Dolwani, held that the said Aboobaker was not an evacuee. Tek Chand
Dolwani filed an appeal against the said order to the Custodian-General of
India' One of the questions raised was whether the said Tek Chand Dolwani was a
person aggrieved by the order of the Additional Custodian within the meaning of
s. 24 of the Central Ordinance XXVII of 1949, and was entitled to appeal
against the said order.
This Court held that the said person was a
person aggrieved within the meaning of the said section. It was provided in
rule 5(5) of the rules made under the Ordinance that any person or persons
claiming to be interested in the inquiry or in the property being declared as
evacuee property, might file a written statement in reply to the written
statement filed by the persons interested in the property claiming that the
property should not be declared as an evacuee property; and that the Custodian
should proceed. to hear the evidence, if any, which the party appearing to show
cause might produce and also the evidence which the party claiming to be
interested as mentioned (1)  S.C.R. 696.
245 above might adduce. The rule, therefore,
authorized the Additional Custodian to adjudicate between the person moving the
Custodian to declare a property as evacuee property and the person denying that
fact In that context, this Court held that the person moving the Custodian was
a person aggrieved within the meaning of s. 24. This decision or the decisions
relied upon by this Court in the aforesaid case in coming to the said
conclusion are not relevant to the present enquiry. Where a statute or rules framed
there under provide for a dispute between two parties to be decided by a
tribunal, it is implicit in that provision that the defeated party is one
aggrieved by that decision. But the same cannot be said of a Custodian and the
party in whose favour he gave a decision; nor can another subordinate officer
of the Custodian, who made the decision and who has no statutory duty to appear
before the Custodian to put forward the case of the department or lead evidence
in support thereof, be equated to a party in a lis. We, therefore, bold, having
regard to the scheme of the Act, that the Assistant Custodian, Headquarters, Patna, is not a person aggrieved within the meaning of s. 24 of the Act. The appeal to the
Custodian, therefore, was not competent.
In this view, the second question does not
fall to be considered. In the result, the order of the High Court is set aside
and we direct the issue of a writ of certiorari to quash the order of the
Custodian of Evacuee Property Bihar, dated April 26, 1954 setting aside the order of the Assistant Custodian, Giridih, releasing the holdings Nos.
326, 774 and 654 in Giridih belonging to the
appellant. The appeal is allowed with costs throughout.