Asstt. Custodian, E.P. & Ors Vs.
Brij Kishore Agarwala & Ors  INSC 198 (7 October 1974)
MATHEW, KUTTYIL KURIEN
CITATION: 1974 AIR 2325 1975 SCR (2) 359 1975
SCC (1) 21
RF 1976 SC2237 (22) RF 1979 SC 621 (28) R
1980 SC1285 (28)
U.P. Administration of Evacuee Property
Ordinance 1949 s.2(c)(i) & (ii)-Scope of. Custodian first stated that the
property was not evacuee property and the respondent acted on it-later acquired
it as evacuee property-whether Custodian bound by the earlier statement.
The disputed property belonged to a Muslim
who left India in 1942. After the partition of the country she migrated to
Pakistan in 1948, without coming to India. In 1962 she came to India and sold
the property to respondent no. 1 for a sum of Rs. 42,000. Respondent no. 1
purchased the property after ascertaining from appellant no. 1 Custodian of
Evacuee Property that the property was not evacuee property.
Later, however, the appellant passed an order
declaring the property to be evacuee property. On a petition by respondent no.
the Assistant Custodian General directed that the property be handed over to
the respondent no. and the sale price deposited in the bank could be taken by
the Custodian. Since the Custodian did not issue a sale certificate in his
favour respondent no. I filed a writ petition in the High Court which was
dismissed by a single Judge on the ground that the seller was an evacuee. The
Division Bench on the other hand held that the seller was not an evacuee under
s.2 (c)(i) of the United Provinces Administration of Evacuee Property ordinance
1949 but refused to consider whether the seller was an evacuee under s.
2(c)(ii) thereof. According to s. 2(c)(i) of the ordinance "evacuee"
means, any person who leaves or has on or after the 1st day of March 1947, left
any place in the United Provinces for any place outside the territories now
forming part of India while according to sub clause (ii) "evacuee"
means any person who is resident in any place now forming part of Pakistan and
is for that reason unable to occupy, supervise or manage in person his property
in the United Provinces.
Allowing the appeal, (1) There could be no
doubt that the seller was an evacuee within the meaning in Teheran till she
left for Pakistan from there cl. 2(c)(i) would not apply but clearly cl.
2(c)(ii) would. There was no doubt that she
was resident in Pakistan after the partition of India and was, therefore unable
to occupy, supervise or manage her property in the United Provinces. [361 G;
C-D] (2)The fact that the first respondent had made an inquiry from the
Assistant Custodian whether the property was evacuee property and was told that
it was not, did not make any difference to this question. [362 A] Howell v. Falmoth
Boat Construction Co. Ltd.,  A.C.
837 at 845, Ebrahim Abbobaker and Another v.
Tek Chand Dolwani  S.C.R. 691 Zafar Ali Shah v. Assistant Custodian of
Evacuee Property  1 SCR 749 referred to.
(3)Once it is declared that the property was
evacuee property, the sum of Rs. 42,000 paid by respondent no. 1 to the seller
and deposited in the bank could not also be evacuee property. Either the one or
the other could be evacuee property. This sum must be held to be in trust for
the first respondent. [363 F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 170 of 1969.
Appeal from the Judgment and Order dated the
15th April, 1968 of the Allahabad High Court (Lucknow Bench) in Special Appeal
No. 258 of 1966.
360 G. L. Sanghi and S. P. Nayar, for the
C. P. Lal, for respondent No. 1.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-Mrs. Zohra Naqvi, the wife of a Police official of the then
United Provinces (now Uttar Pradesh) was in Teheran in the year 1947 alongwith
her husband. She purchased a property from the Improvement Trust, Lucknow for a
sum of Rs. 6,400/-. It appears that Mrs. Naqvi did not come to India at all
till 1962 when she sold this property to the sons of respondent No. 1 and one
Mrs. Jain. On 24-61949 the, United Provinces Administration of Evacuee Property
Ordinance, 1949 came into force.
This would be a proper stage at which the
relevant provisions of the Ordinance should be noticed. Under that Ordinance
"evacuee property" means any property in which an evacuee has any
right or interest, or which is held by him under any deed of trust or other
instrument, and an "unauthorised person" means any person (whether
empowered in this behalf by the evacuee or otherwise) who, after the 15th day
of August, 1947, has been occupying, supervising or managing the property of an
evacuee without the approval of the Custodian. Under section 5 of that
Ordinance all evacuee property situate in the United Provinces shall vest in
We may now continue the narration of events.
Before the purchase of this property the 1st respondent had applied to the 1st
appellant to be informed whether the property in question is an evacuee
property and received a reply in the negative. But on 25-3-1963 the 1st
appellant passed an order declaring the property as an evacuee property. It
should be noticed that an evacuee property automatically vests in the Custodian
under section 5 and the notification under section 6 of the Ordinance is not a
necessary condition for such vesting. Section 6 only enables the Custodian to
notify the properties which have already vested in him under the Ordinance. On
7-3-1964 a notification was issued acquiring the disputed plot under section 12
of the Displaced Persons (Compensation & Rehabilitation) Act, 1954.
The 1st respondent filed a revision petition
to the Assistant Custodian General who directed that the property should be
handed over to the 1st respondent but that the sum of Rs. 42,000/being the sale
price of the property, which had been deposited with the Allahabad Bank,
Lucknow could be taken by the Custodian. The 1st respondent's application to
the 1st appellant to issue a sale certificate in his favour not having produced
my result he filed a writ petition out of which this appeal arises. The petition
was dismissed by a learned Judge of the Allahabad High Court but on appeal a
Division Bench of the High Court allowed the respondents' appeal. This appeal
has been filed on the basis of a certificate granted by the High Court.
The learned Single Judge took the view that
Mrs. Naqvi was an evacuee because she had left Uttar Pradesh after the 1st day
of 361 March, 1947 to a place outside the territories of India.
The Assistant Custodian General had also
taken a similar view when the revision petition was filed by 1st respondent
before him. The Division Bench on the other hand took the view that as Mrs.
Nacivi had not left the United Provinces on or after 1st March, 1947 but her
husband had been posted in Teheran since some time in 1942 and she had migrated
to Pakistan from Teheran after 1st March, 1947 it would not make her evacuee
under section 2(c)(i) of the Ordinance. It was urged before the Bench that she
would be an evacuee under section 2(c)(ii) of the Ordinance but the Bench
refused to consider that question.
Thus the first question to be decided is
whether Mrs. Naqvi was an evacuee. As it is clear that she left the United
Provinces even before the 1st March, 1947 and was in Teheran till she left for
Pakistan from there, clause 2(c)(i) would not apply to her but clearly clause
2(c)(ii) would apply to her. There is no doubt that she was resident in
Pakistan after the partition of India and she was, therefore. unable to occupy,
supervise or manage here property in the United Provinces. We do not think that
the learned Judges of the Division Bench who heard the appeal were right in
refusing to consider this aspect of the matter. The 1st respondent in his writ
petition clearly averred that as Mrs. Naqvi migrated to Pakistan from Persia
she could not be treated as an evacuee. The order passed by the 1st appellant
also proceeded on the basis that Mrs. Naqvi had migrated to Pakistan from
Persia in 1948 and was still living there. He also referred to the fact that
she had sent the money from Teheran in 1947 and the possession of the property
had been taken by her son who came to India in 1948 for that purpose
specifically whereas Mrs. Naqvi continued to reside in Pakistan till she came
to India in 1962 for selling the plot and that she was a Pakistani national, In
the revision petition filed before the Assistant Custodian General by the 1st
respondent also it is admitted that Mrs. Naqvi migrated to Pakistan from
Teheran as was held by the Assistant Custodian. Therefore, merely because in
his order in revision the Assistant Custodian General had relied upon section
2(c)(i) to hold that Mrs. Naqvi was an evacuee that cannot prevent the
consideration of the fact whether she was an evacuee under section 2(c)(ii).
There can be no doubt that she was an evacuee
within the meaning of that word under section 2(c)(ii) and the property in
question was an evacuee property. The property automatically vested in the
Custodian by virtue of the provision of section 5 of the United provinces
1 of 1949. The U. P. Ordinance No. 1 of 1949
was repealed by section 58 of the Central Administration of Evacuee Property
Act , 1950. The result of such repeal and reenactment was that the property in
question which had vested in the Custodian continued to vest in him notwithstanding
the repeal of the Ordinance and there was no need to take any action under
section 7 of that Act. Such action is necessary only in cases where the
property had not already vested under the provisions of the repealed Ordinance.
We do not consider that the fact that the 1st respondent 362 had made an
enquiry from the Assistant Custodian whether the property in question was an
evacuee property and was told that it was not makes any difference to this
question, We do not think that the reliance placed on behalf of the respondents
on the decision in Robertson v. Minister of Pensions(1) where Lord Denning
observed "I come therefore to the most difficult question in the case. Is
the Minister of Pensions bound by the War Office letter ? I think he is. The
appellant thought, no doubt, that. as he was serving in the army. his claim to
attributability would be dealt with by or through the War Office. So he wrote
to the War Office. The War Office did not refers into the Minister of Pensions.
They assumed authority over the matter and ass ured the appellant that his
disability had been accepted as attributable to military service.
He was entitled to assume that they had
consulted any other departments that might be concerned, such as the Ministry
of Pensions, before they gave him the assurance. He was entitled to assume that
the board of medical officers who examined him were recognised by the Minister
of Pensions for the purpose of giving certificates as to attributability.
Can it be seriously suggested that, having got
that assurance, he was not entitled to rely on it In my, opinion if a
government department in its dealings with a subject takes it upon itself to
assume authority upon a matter with which he is concerned, he is entitled to
rely upon having the authority which it assumes.
He does not know, and cannot be expected to
know, the limits of its authority. The department itself is clearly bound, and
as it is but an agent for the Crown, It binds the Crown also, and as the Crown
is bound, so are the other departments, for they also are but agents of the
Crown. The War Office letter therefore binds the Crown and, through the Crown,
it binds the Minister of Pensions. The function of the Minister of Pension is
to administer the royal warrant issued by the Crown, and be must so administer
it as to honour all assurances given by or on behalf of the Crown." can
help the respondents. That decision has been disapproved by the House of Lords
in Howell v. Falmouth Boat Construction Co. Ltd.(2) Lord simonds referred to
the observation of Lord Denning in Robertson v. Minister of Pensions(3) and
"My Lords, I know of no such principle
in our law nor was any authority for it cited. The illegality of an act is the
same whether or not the actor has been misled by an assumption of authority on
the part of a government officer however high or low in the hierarchy.
I do not doubt that in criminal proceedings
it would be a material factor that the actor had been thus misled if knowledge
was a necessary element of the offence, and in any case it would have a bearing
on the sentence to be imposed. But (1)  1 K. D. 227.
(2)  A.C. 837 at 845.
(3)  1 K. D. 227.
363 that is not the question. The question is
whether the character of an act done in face of a statutory prohibition is
affected by the fact that it has been induced by a misleading assumption of
authority. In my opinion the answer is clearly No. Such an answer may make more
difficult the task of the citizen who is anxious to walk in the narrow way; but
that does not justify a different answer being given." Lord Normand in
dealing with this question observed at page 849 after referring to the
statement of law by Lord Denning:
"As I understand this statement, the
respondents were, in the opinion of the learned Lord Justice, entitled to say
that the Crown was barred by representations made by Mr. Thompson and acted on
by them from alleging against them a breach of the statutory order, and further
that the respondents were equally entitled to say in a question with the
appellant that there had been no breach. But it is certain that neither a
minister nor any subordinate officer of the Crown can by any conduct or
representation bar the Crown from enforcing a statutory prohibition or entitle
the subject to maintain that there has been no breach of it.,, We are. of
opinion that the view taken by the House of Lords is the correct one and not
the one taken by Lord Denning.
We see nothing in the decisions of this Court
in Ebrahim Abbobaker and Another v. Tek Chand Dolwani (1) or Zafar Ali Shah V.
Assistant Custodian of Evacuee Property(2) which can be of any help to the
respondents. This appeal, therefore, would have to be allowed.
But there is one further question to be
decided. Once it is declared that this property is an evacuee property it is
obvious that the sum of Rs. 42,000/paid by the 1st respondent to Mrs. Naqvi and
deposited by her in the Allahabad Bank, Lucknow cannot also be an evacuee
Either the one or the other can be an evacuee
This sum must he held to be in trust for the
This principle is not disputed by Mr. G. L.
Sanghi appearing on behalf of the appellants. While the appeal would be allowed
there would be an order directing that the 1st respondent would be entitled to
withdraw the sum of Rs.
42,000/deposited by Mrs. Naqvi in the
Allahabad Bank, Lucknow along with any interest that might have accrued on it.
In the circumstances of this case there will be no order ,as to costs.
(1)  1 S.C.R. 691.
(2)  1 S.C.R. 749.