Dr. Rajendra Prakash Sharma Vs. Gyan
Chandra & Ors [1980] INSC 54 (27 March 1980)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
PATHAK, R.S.
CITATION: 1980 AIR 1206 1980 SCR (3) 207 1980
SCC (4) 364
CITATOR INFO :
D 1983 SC 259 (21)
ACT:
Administration of Evacuee Property Act 1950
(31 of 1950). Sections 2(d), 7, 7A 8, 28 and 46 & Displaced Persons
(Compensation and Rehabilitation) Act 1954 (44 of 1954) Sections 2(c), 22, 23,
24 and 27 Property acquired under section 12 and auctioned under section 20 of
1954 Act- Property nor declared by Custodian as evacuee property under section
7 of 1950 Act-Jurisdiction of Civil Court to determine question whether
property declared evacuee property-Section 46 of 1950 Act whether a bar-Section
27 of 1954 Act-Whether applicable.
HEADNOTE:
The appellant field a suit in the civil court
alleging that the house in dispute was owned by one Abdul Rashid and that he
had let out the house to his father who was paying rent to him, that Abdul
Rashid had migrated to Pakistan and the house was declared evacuee property.
Later, the house was put to auction on January 29, 1969 under section 20 of the
Displaced Persons (Compensation and Rehabilitation) Act, 1954, was purchased by
him and that the sale certificate was also issued. He further pleaded that the
respondents- defendants had also filed suit No. 67 of 1970 for ejected and
arrears of rent against his father, that the suit was decreed on May 10, 1971,
and that in pursuance of that decree they tried to dispossess him, and as he
was not impleaded in the ejected suit, he was not bound by that decree. The
appellant claimed a declaration of his title to the property and prayed for
perpetual injunction restraining the defendants-respondents from dispossessing
13: him in execution of the ejected decree.
The respondents resisted the suit, denied
that the property in dispute was ever declared evacuee property or that it was
ever acquired under the provisions of the Act of 1954, and asserted that the
appropriate authorities never passed any order under section 7 of the Administration
of Evacuee Property Act, 1950 declaring the property to be evacuee property.
The 1st defendant further pleaded that Abdul Rashid had only 1/6th share in the
house in question which was purchased by his father and therefore the
respondents are exclusive owners of the House. The said Abdul Rashid had
migrated to Pakistan in the year 1967 long after he had transferred his
interest and share in the house in question and that the father of the
appellant had in collusion with the Custodian Department prepared fictitious
proceedings relating to the sale of the house in question, that the Custodian
Department had no jurisdiction to declare the property was evacuee property,
much less could they sell it under the Act of 1954, and that the auction if any
held, was nullity having been brought about by misrepresentation and fraud.
The trial court held that Abdul Rashid was
not the owner of the house in question, that the entire proceedings taken by
the Custodian Department were illegal and without jurisdiction and the
plaintiff did not acquire any title by virtue of the sale held by the
Authorities under the Displaced Persons (Compensation and Rehabilitation) Act
of 1954, and accordingly dismissed the suit.
208 On appeal, the Additional District Judge,
affirmed the findings of the trial court and held that the jurisdiction of the
Civil Court was not burred by section 46 of the Administration of Evacuee
Property Act, 1950 and that it could go into the question whether or not the
matter had been adjudicated upon by the authorities under that Act. It found
that no inquiry, as contemplated under section 7 of the 1950 Act was held and
no Notification was issued by the Authorities under that Act, declaring the
suit property to be evacuee property. It further held that Abdul Rashid had no
title or interest, whatever, in the house in question after July 31, 1953,
when, in accordance with the decree of the Civil Court in partition Suit No.
289 of 1953, Phool Chand had deposited the value of 1/6th share of Abdul Rashid
in this property.
The High Court dismissed the Second Appeal
preferred by the appellant affirming the concurrent findings of the court
below. It also held that Abdul Rashid was in India much after the repeal of UP
ordinance No. 1 of 1949 and consequently there was no question of the property
vesting automatically in the Custodian under the aforesaid ordinance.
In the appeal to this court it was contended
on behalf of the appellants: (1) in view of the decision in Custodian of
Evacuee Property, Punjab & Ors v. Jatran [1967] 3 SCR 736 and section 46 of
the 1950 Act, the Civil Court had no jurisdiction to adjudicate upon the
question whether the suit property or any right or interest therein is or is
not evacuee property, (2) the sale of the suit property had been effected in
favour of the appellant under section 20 of the 1954, Act, after it had been
acquired by the Central Government under section 12 of that Act, free from all
encumbrance and formed part of the compensation pool, (3) the order of its
acquisition passed under section 12, and its sale under section 20 of the 1954
Act had become final and conclusive, the respondents could not be allowed to go
behind those orders and question their finality on the ground that the property
has never been evacuee property vesting in the Custodian, because section 27 of
the 1954 Act bars the jurisdiction of the Civil Court to go into this question
Dismissing the appeal,
HELD: 1 (i) Section 46 will not bar the
jurisdiction of the Civil Court where the Custodian has never declared the
property as evacuee property after taking proceedings under section 7 of the
1950 Act. [219 C] Custodian of Evacuee Property, Punjab & ors. v. Jafran
Begum [1967] 3 S.C.R. 736 referred to and explained.
(ii) Form a conjoint reading of section 7
& 8 of the 1950 Act it is clear that the making of a declaration after
inquiry under section 7 that the property is 'evacuee property' is a sine qua
non for giving the Custodian dominion over the property. If no proceeding is
taken under section 7, there CHD be no vesting of the property in the
Custodian. [216 C] Fazalbhoy v. Official, Trustee of Maharashtra [1979] 2
S.C.R. 699 at p. 712 referred to.
In the instant case Abdul Rashid was
throughout residing in India and personally managing the suit property And
collecting its rent till 1963. He migrated or went away from India for good
some time in 1963 or thereafter.
Therefore, if the Custodian had not taken any
proceedings under section 7 209 of the 1950 Act to declare the suit property as
evacuee property before the 7th day of May, 1954, and no such proceedings were
pending on May 7, 1954, the property of Abdul Rashid could not be declared
evacuee property under the Act, the poor of the Custodian to do so having been
terminated by section 7A. [217 B-C] (iii) It was for the plaintiff-appellant to
show by producing relevant notifications or other documentary evidence that the
Custodian had taken proceedings and declared the suit property to be evacuee
property in Accordance with the provisions of section 7 or that such
proceedings had been initiated earlier and were pending on the 7th day of May,
1954. Despite ample opportunity granted to the plaintiff he did not produce any
such documentary evidence in the courts below. All that he showed was that
Rehabilitation Authorities had purporting to act under the 1954 Act sold the
suit property to him and issued the sale certificate in his favour on April
1st, 1969. [217 D] (iv) Clauses (a), (c) and (d) of section 46 postulate that
at the time when the question whether or not a property is evacuee property
comes for adjudication the power of the Custodian-General or the Custodian
under this Act of 1950 to determine the question is subsisting. That is to say,
if at the point of time when the question arises, the power of the authorities
constituted under this Act to adjudicate that question stands terminated or
extinguished by the operation of section 7A of the 1954 Act, none of the
clauses (a), (c) and (d) of section 46 will bar the jurisdiction of the Civil
Court to determine that question, which had not been decided by the Custodian
during the period he had the power to determine it. [219 P-G] (v) Section 28
has no application to the facts of the instant case because no order made by
any of the authorities mentioned in that section is being called in question.
Section 46, also, does not come in the way
because no proceedings under section 7 of the 1950 Act to declare the suit
house ns evacuee property can be taken by the Custodian against Abdul Rashid.
[219 H220 A] (vi) No notification under Sub-section (3) of section 7 published
in the official Gazette has been placed on the record Nor was it shown that any
proceedings initiated under section 7 of the Act to declare it evacuee property
were pending on MAY 7, 1954, and the question of saving those proceeding under
the Proviso to section 7A does not arise.
[220 Bl In the instant case Qazi Abdul Rashid
was throughout resident of India till 1963 and was personally managing the suit
house and collecting rent of it from the tenant. After May 7, 1954, therefore,
the Custodian had no jurisdiction under the 1950 Act to declare the suit house
as evacuee property. The jurisdiction of the Courts below to go into this
question was thus not barred by anything in sections 28 and 46 of the 1950 Act.
[220 C] 2(i) Section 20 of the 1954 Act confers powers on the managing officer
to transfer any property out of the compensation pool by sale or in any other
manner indicated in clauses (b) to (e) of that Section. The necessary
prerequisite for sale is that the property must have been declared under
section 7 of the 1950 Act to be evacuee property by the Custodian or it must be
evacuee property under the deeming provisions of any law which may be
applicable to the case of the evacuee. In other words, only that property could
be acquired 210 under section 12 and form part of the compensation pool which
satisfies the definition of "evacuee property" even in section 2(c)
of the 1954 Act. If the property was never evacuee property, as defined in
section 2(c), it does not legally form part of the compensation pool and,
therefore, cannot be disposed of under section 20 or the Rules framed under
this statue. [220 C, 221 H-222 B] (ii) The necessary prerequisite for acquiring
property under section 12 is that it must be 'evacuee property' as defined in
section 2(c) of the 1954 Act. In the absence of this essential prerequisite the
Central Government is not competent to acquire, that property under this
section for throwing it into the compensation pool. This prerequisite or
condition precedent, was lacking in the instant case. No notification published
in the official Gazette either under sub-section (1) or sub-section (3) of
section 12 appears to have been brought on the record of this case, nor
attention drawn to any such notifications. [221 F-G]
3. Section 27 of the 1954 Act is not'
attracted because the plaintiff, who filed the original suit and is now
appellant in this appeal, is not questioning the finality of the order of the
sale alleged to have been made by the managing officer. It is the
defendant-respondents who are resisting the plaintiff's claim on the ground
that the sale is a nullity. It could not be made under this Act of 1954 for the
reason that it was never declared evacuee property under section 7 of the Act
and thus never formed part of the compensation pool. The words "under this
Act" occurring in section 27 are significant. They show that those orders
which are not made by any officer or authority in accordance with the
provisions of this Act, but outside the provisions of this Act in excess of
jurisdiction, can be called in question in the civil court. The language of
section 27 is not as wide as that of section 46 of the 1950 Act. [222 G- 223 A]
4. As Qazi Abdul Rashid remained in India
continuously upto 1963, no question of automatic vesting under the U.P. Ordinance
No. 1 of 1949 could arise. That ordinance was not applicable to him at all.
[214 H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 424 of 1979 Appeal by Special Leave from the Judgment and order dated 23-8-1978
of the Allahabad High Court in Second Appeal No. 34/78. D. R. Gupta and B.V.
Desai for the Appellant. B.
R. Agarwala for the Respondents. The Judgment
of the Court was delivered by SARKARlA, J.-This appeal by special leave is
directed against a judgment, dated August 23, 1978, whereby a learned Single
Judge of the Allahabad High Court dismissed the appeal of the appellant herein.
It arises out of these circumstances. The plaintiff, Dr. Rajendra Prakash
Sharma, is the appellant before us. He filed a suit in the court of the Civil
Judge, Bulandshahar, alleging that the house in dispute was owned by one Qazi
Abdul Rashid, son of Qazi Abdul Razak. Qazi Abdul Rashid had let out this house
to Dr. Bhu Deo Sharma, father of the appel- 211 lant, who was paying rent for
the same to Qazi Abdul Rashid.
He further alleged that the said Abdul Rashid
had migrated to Pakistan and the house in dispute was declared evacuee property
under the then existing law. Later on, it was put to auction on January 29,
1969 under Section 20 of the Displaced Persons (Compensation &
Rehabilitation) Act, 1954, and was purchased by the plaintiff for a
consideration of Rs. 1,000/-, and the appellant was declared purchaser of this
property with effect from April, 1, 1969. Sale Certificate, dated March 19,
1969, was also issued in his favour.
He further pleaded that the
defendants-respondents had also filed Suit No. 67 of 1970 for ejectment and
arrears of rent against the appellant's father, Bhu Deo Sharma. The suit was
decreed on May 10, 1971, and that in pursuance of that decree they were trying
to dispossess the plaintiff- appellant He further stated that since he was not
impleaded in the ejectment suit, he was not bound by that decree. On these
facts, the plaintiff-appellant claimed a declaration of his title to the
property in question and further prayed for a perpetual injunction restraining
the defendants from dispossessing him in execution of the Ir said decree
obtained by the defendants in Suit No. 67 of 1970.
The defendants resisted the suit. They denied
that the property in dispute was ever declared evacuee property or that it was
ever acquired under the provisions of the Act of 1954. They asserted that the
appropriate authorities never passed any order under Section 7 of the Administration
of Evacuee Property Act declaring this property to be evacuee property. The
contesting defendant, Gyan Chandra, further pleaded that Qazi Abdul Rashid had
only 1/16th share in the house in question which was purchased by the
defendants father (since deceased) and, therefore, the defendants are exclusive
owners of the house. Gyan Chandra further alleged that Qazi Abdul Rashid had
migrated to Pakistan in the year 1967, long after he had transferred his
interest and share in the house in question; that Dr. Bhu Deo Sharma, father of
the appellant had in collusion with the Custodian Department, prepared fictitious
proceedings relating to the sale of the house in question; that the Custodian
Department had no jurisdiction to declare the property in suit as evacuee
property, much less could they sell it under the Act of 1954. According to the
defendant, the auction if any held, was a nullity having been brought about by
misrepresentation and fraud.
The trial court held that Qazi Abdul Rashid
was not the owner of the house in question; that the entire proceedings taken
by the Custodian Department were illegal and without jurisdiction and the
plaintiff did not acquire any title by virtue of the sale held by the
Authorities 212 under the Displaced Persons Compensation and Rehabilitation)
Act (No. 44 of 1954) (for short, called the 1954 Act). In the result, the trial
court dismissed the plaintiff's suit.
On appeal, the Additional District Judge,
Bulandshahar affirmed the findings of the trial court. He held that the
jurisdiction of the civil n court was not barred by section 46 of the
Administration of Evacuee Property Act (No. 31 of 1950) (hereinafter called the
1950 Act) to go into the question whether or not the matter had been
adjudicated upon by the Authorities under that Act. It found that no inquiry,
as contemplated under Section 7 of Act 31 of 1950 was held and no Notification
was issued by the Authorities under that Act, declaring the suit property to be
evacuee property. It held that Abdul Rashid had no title or interest, whatever,
in the house in question after July 31, 1953, when, in accordance with the decree
of the Civil Court in the partition Suit No. 289 of 1953, PhoolChand had
deposited Rs. 343/ regarding the value of 1/6th share of Abdul Rashid in this
property. on the deposit of that amount, Phool Chand and his sons had become
sole' owners of the property in question and the plaintiff's father became
their tenant of the suit property. It was in that capacity that a decree for
ejectment was passed against him and in favour of the respondents. In the
result, it was held that since the property had never been declared evacuee
property after following the prescribed procedure under the Act and the Rules
framed there under, the rights of the defendants respondents remained
unaffected by the' auction held by the Custodian Department and the consequent
issue of the sale certificate in favour of the plaintiff-appellant.
The High Court affirmed the concurrent
findings of the two courts below and dismissed the Second Appeal preferred by
the plaintiff. It agreed with the lower appellate court that the auction in favour
of the plaintiff-appellant was a nullity and wholly without jurisdiction and
did not confer any rights on him because the suit property had never been
declared as evacuee property in accordance with law. It also held that Abdul
Rashid was in India much after the repeal of the U.P. Ordinance 1 of 1949 and
consequently there was no question of the property vesting automatically in the
Custodian under the aforesaid ordinance. The High Court, however, granted six
months' time to the plaintiff-appellant to deliver vacant possession of the
suit house to the defendants-respondents without the intervention of the court.
After obtaining special leave under Article
136 of the Constitution, the aggrieved plaintiff has now come in appeal before
this Court.
213 The main contention of the learned
counsel for the appellant is two-fold: (a) In view of Section 46 of the 1950
Act, the Civil Court had no jurisdiction to adjudicate upon the question
whether; the suit property or any right or interred therein is or is not evacuee
property. (Reliance for this contention has been placed on the decision of this
Court in Custodian of Evacuee Property, Punjab and ors. v. Jafran Begum.
(b) The sale of the suit property has been
effected in favour of the appellant under Section 20 of the 1954 Act, after it
had been acquired by the Central Government under Section 12 of that Act, free
from all encumbrances, and formed part of the compensation pool. It will
therefore, be presumed that prior to its acquisition under Section 12 of the
1954 Act, it was evacuee property vesting in the custodian. The orders of its
acquisition passed under Section 12 and its sale under Section 20 of the 1954
Act had become final and conclusive. The respondent could not be allowed to go
behind those orders and question their finality on the ground that the property
has never been evacuee property vesting in the custodian, because Section 27 of
1954 Act bars the jurisdiction of the Civil Court to go into this question. The
only remedy of the defendants- respondents is to claim compensation under the
1954 Act.
Reference in this connection' has been made
to N. S. Gujral v. Custodian of Evacuee Property and Anr.
Before dealing with these contentions, some
basic facts concurrently found by all the courts below may be noticed.
Qazi Abdul Rashid obtained a money decree in
suit No. 523 of 1935 against one Ami Chand S/o Phool Chand and brother of
present respondents (original defendants 1 to 4).
In execution of that decree, he purchased
with the permission of the court, the share of Ami Chand in 1937. At that time,
apparition suit No. 3 of 1931 amongst the family members of the said Ami Chand
was pending in the Court of the Civil Judge, Bulandshahr. Qazi Abdul Rashid did
not join as a party in the said partition suit. However, he instituted Suit No.
452 of 1949 against the said Phool Chand and others in the court of the Munsif,
Khurja for partition and separate possession of his share. The suit was
contested. The Munsif decreed the suit holding that Qazi Abdul Rashid had
1/16th share in the house in question and one other shop. Applying the
provisions of Section 4 of the Partition Act, the Munsif evaluated Qazi Abdul
Rashid's 1/16th share in the suit house at Rs. 343/- and directed the sale of
that share.
214 Feeling aggrieved by the said decree,
Qazi Abdul Rashid preferred Civil Appeal No. 289 of 1953. The First Appellate
Court by its judgment, dated December 20, 1954 (Ex. A-2), partly allowed the
appeal and modified the decree of the trial court in so far as it related to
the shop. But it upheld the decree of the trial court in so far as it related
to the house now in question, whereby Phool Chand defendant was required to
deposit Rs. 343/- as the value of Qazi Abdul Rashid's share. In accordance with
the decree affirmed by the First Appellate Court, Phool Chand on July 31, 1953
deposited Rs. 343/- (vide Ex. A-1) to the credit of Qazi Abdul Rashid, the then
plaintiff in the Court. Qazi Abdul Rashid being aggrieved by the decree of the
First Appellate Court, preferred Second Appeal No. 235 of 1955 in the High
Court. The High Court dismissed this appeal as abated by an order, dated
February 25, 1959 (Ex. A-l), due to the failure of Qazi Abdul Rashid to take
proper steps for substitution of the legal representatives of the then
respondents 7 and 11, who had died during the pendency of the appeal.
During the pendency of the said litigation,
Phool Chand and his two sons, Gyan Chand and Raghbur Sharan, instituted Suit
No. 323 of 1953 in the court of the Munsif, Khurja for the recovery of the
damages for use and occupation of the house in dispute against Qazi Abdul
Rashid. By a judgment dated September 30, 1959 (Ex. A-4) the trial court
decreed that suit against Qazi Abdul Rashid. Aggrieved by that judgment and
decree, Qazi Abdul Rashid preferred Civil Appeal No. 461 of 1959 which was
partly allowed by the First Appellate Court on December 21, 1960.
The trial court further found-and this
finding has been upheld by the First Appellate Court and the High Court that
Abdul Rashid definitely remained in India at least till 1963, if not till 1965.
Upto 1963, he was directly receiving rent from his tenant, the father of the
present plaintiff- appellant, in respect of the suit house. This was held
primarily on the basis of documentary evidence (Ex. A-14/A).
In view of the fact that Qazi Abdul Rashid
remained in India I continuously upto 1963, no question of automatic vesting
under the I U.P. Ordinance No. 1 of 1949, could arise. That ordinance was not
applicable to him at all. For our purpose, only the 1950 Act and the 1954 Act
are relevant. It will, therefore, be worthwhile to notice, very briefly, the
material provisions of these statutes.
215 Clause (d) of Section 2 of the 1950 Act
defines "evacuee;" this A definition so far as material, reads:
"Evacuee means any persons- (i) who on
account of the setting up of the Dominions of India and Pakistan or on account
of civil disturbances or the fear of such disturbances, leaves or has, on or
after the 1st day of March, 1947, left any place in a State for any place
outside the territories now forming part of India, or (ii) who is a resident in
any place now forming part of Pakistan and who for that reason is unable to
occupy, supervise or manage in person his property in any part of the territories
to which this Act extends, or whose property in any part of the said
territories has ceased to be occupied, supervised or managed by any person or
is being occupied, supervised or managed by an unauthorised person, or.. "
(iii) to (iv) are not relevant for this case.
Clause (h) defines "evacuee
property" to mean "any property of an 1 evacuee (whether held by him
as owner or as a trustee or as a beneficiary or as a tenant or in any other
capacity) and includes any property which has been obtained by any person from
an evacuee after the 14th day of August 1947, by any mode of transfer which is
not effective by reason of the provisions contained in Section 40 :) but does
not include ........ " Sub-section (1) of Section 7 requires that 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. Sub-section (3) of the
Section peremptorily requires the Custodian to notify from time to time by
publication in the official Gazette or in such other manner as may be
prescribed all p properties declared by him to be evacuee properties under
Sub-section (1).
Rule 6 of the Rules framed under the 1950 Act
requires that the notice to be served under Section 7(1) on persons interested
in the property proposed to be declared evacuee property shall be in Form I.
Section 8 provides, "Any property
declared to be evacuee property under Section 7 shall be deem-d to have vested
in the Custodian for the State- (a) in the case of the property of an evacuee
as defined in sub clause (i) of clause (d) of Section 2, from the date on which
216 he leaves or left any place in a State for any place outside the
territories now forming part of India;
(b) in the case of the property of an evacuee
as defined in sub-clause (ii) of clause (d) of Section 2, from the 15th day of
August, 1947; and (c) in the case of any other property, from the date of the
notice given under sub-section (I) of Section 7 in respect thereof. (The rest
is not material)." From a conjoint reading of Sections 7 and 8, it is
clear that the making of a declaration after inquiry under Section 7, that the
property is 'evacuee property' is a sine qua non for giving the Custodian
dominion over the property.
If no proceeding is taken under Section 7,
there can be no vesting of the property in the Custodian. (See observations in
Fazalbhoy v. Official Trustee of Maharashtra.
The other point to be noted is that in the
case of an `evacuee' falling under sub-clause(i) of the definition of `evacuee'
that is one, who on account of the things mentioned in that sub-clause, leaves
India or has left India on or after August 14, 1947, the vesting will date from
the date he leaves India for any outside destination to the instant case, Qazi
Abdul Rashid left India to settle in Pakistan long after August 14, 1947 (in
1963).
Section 9 gives power to the Custodian to
take possession of evacuee property which vests in him under Section 8.
Then, there is Section 7A which was inserted
by the Administration of Evacuee property (Amendment) Act, 1954 (42 of 1954)
with effect from May 7, 1954.
"Notwithstanding anything contained in
this Act, no property shall be declared to; be evacuee property on or after the
7th day of May 1954:" This is made subject to two Provisions. Clause (a)
of the First Proviso saves from the application of this Section any property in
respect of which proceeding are pending on the 7th day of May, 1954 for
declaring such property to be evacuee property. Clause (b) of the Proviso saves
from the bar of this Section property of any person who became an evacuee on or
after the 1st day of March, 1947, and who on the 7th day of May, 1954 was
resident in Pakistan. The second Proviso lays down that no notice under Section
7 for declaring any property to be evacuee property with reference to Clause
(b) of the preceding Proviso shall be issued after the expiry of six months
from the commencement of the Administration of Evacuee 217 Property (Amendment
Act, 1954). Then, there are three Explanations, which are not material for our
purpose.
It is clear from the facts concurrently found
in the instant case that Qazi Abdul Rashid was throughout residing in India and
personally managing the suit property and collecting its rent till 1963. He
migrated or went away from India for good sometime in 1963 or thereafter.
Therefore, if the Custodian had not taken any proceedings under Section 7 of
the 1950 Act to declare the suit property as evacuee property before the 7th
day of May 1954, and no such proceedings were pending on May 7, 1954, the
property of Qazi Abdul Rashid could not be declared evacuee property under the
Act, the power of the Custodian to do so having been terminated by Section 7A.
It was for the plaintiff-appellant to show by
producing relevant notifications or other documentary evidence that the
Custodian had taken proceedings and declared the suit property to be evacuee
property in accordance with the provisions of Section 7 or that such
proceedings had been initiated earlier and were pending on the 7th day of May,
1954. Despite ample opportunity granted to the plaintiff, he did not produce
any such documentary evidence in the courts below. All that he showed was that
the Rehabilitation Authorities had, purporting to act under the 1954 Act, sold
the suit property to him and issued the sale certificate in his favour on April
1, 1969.
Section 24 gives a person aggrieved of an
order made under Section 7 by the Custodian a right of appeal. Section 27
confers power of revision on the Custodian-General to revise suo motu or on the
application made to him, any order passed by the Custodian if it is rot found
to be legal or proper.
Sections 28 and 46 bar the jurisdiction of
courts.
Section 28 reads thus:
"Save as otherwise expressly provided in
this Chapter, every order made by the Custodian-General, Custodian, Additional
Custodian, Authorised Deputy Custodian, Deputy Custodian or Assistant Custodian
shall be final and shall not be called in question in any Court by way of
appeal or revision or in any original suit, application or execution
proceeding." Section 46 of the 1950 Act provides:
"Save as otherwise expressly provided in
this Act, no civil or revenue court shall have jurisdiction- (a) to entertain
or adjudicate upon any question whether any property or any right to or interest
in any property is or is not evacuee property; or 218 (c) to question the
legality of any action taken by the Custodian-General or the Custodian under
this Act, or (d) in respect of any matter which the Custodian- General or the
Custodian is empowered by or under this Act to determine." The scope of
Sections 28 and 46 of the 1950 Act came up for consideration before this Court
in Jafran Begum's case (ibid). The facts of that case were that a person who
was in possession of a house in India, migrated to Pakistan. Notice was issued
to his son under s.7 of the Administration of Evacuee Property Act, 1950, and
after hearing him the Deputy Custodian declared the house to be evacuee
property. Jafran Begum, who was the mother of the evacuee and on whom the
notice under s.7 of the Act was not served, started proceedings before the
Custodian, claiming that the owner of the house had executed a will bequeathing
the property to her and so the property could not be declared evacuee property.
That application was dismissed by the Custodian.
When she failed before the authorities
constituted under the Act, she filed a suit in the civil court basing her case
on the will and prayed for a permanent injunction restraining the authorities
from evicting her from the house. On the question of jurisdiction being raised,
the High Court held that determination of a complicated question of law
relating to title by authorities under the 1950 Act was not final and could be
reopened in the civil court, and Section 46 did not bar the civil court's
jurisdiction to entertain such a question. After examining the scheme of the
1951) Act, Wanchoo, .J., speaking for the Bench constituted by three learned
Judges, laid down the law, thus:
"(Where) the question whether certain
properties are evacuee properties has been decided under s. 7 etc., whether
that decision is based on issues of fact or issues of law, jurisdiction of
courts is clearly, barred under S. 46(a). It is difficult to see how a
distinction can be drawn between decisions under S. 7 based on questions of
fact and decisions based on questions of law. The decision is made final
whether based on issues of law or of fact by S. 28 and S. 46 bars the
jurisdiction of civil and revenue courts in matters which are decided under S.7
whatever may be the basis of decision, whether issues of factor of law and
whether simple or complicated." (Emphasis supplied) 219 "...... S.46
is a complete bar to the jurisdiction of civil or revenue courts in any matter
which can be decided under S. 7. This conclusion is reinforced by the provision
contained in S. 4(1) of the Act which provides that the Act overrides other
laws and would thus override S. 9 of the Code of Civil Procedure on a combined
reading of Ss.4, 28 and
46. (But).. S. 46 or S. 28 cannot bar the
jurisdiction of the High Court under Art. 226 of the Constitution."
(Emphasis supplied) From the crucial words underlined in the above extract, it
is clear that even according to the rule of the above decision section 46 will
not bar the jurisdiction of the civil court where the Custodian has never
declared the property as evacuee property after taking proceedings under
Section 7 of the l 950 Act.
A Full Bench of the Allahabad High Court in
Khalil Ahmed Khan v. Malka Mehar Nigar Begum(1), held that where the matter as
to whether a property is evacuee property or not, has never been adjudicated
upon by the Custodian himself but he merely takes action on the basis of the
judgment of the court of first instance, without deciding the matter for
himself, that judgment being subject to correction by the court of appeal does
not become final merely because the Custodian had taken action on the basis
thereof. In such a case, the jurisdiction of the civil court of appeal to
determine the correctness of an adjudication already made by the civil court is
not barred. This decision was noticed by this Court in Jafran Begum (ibid), and
it was observed that to some extent, "this case is in line with the view
we have taken." The matter can be looked at from another angle also.
Clauses (a), (c) and (d) of section 46
postulate that at the time when the question whether or not a property is
evacuee property comes for adjudication the power of the Custodian- General or
the Custodian under this Act of 1950 to determine that question is subsisting.
That is to say, if at the point of time when the question arises, the power of
the authorities constituted under this Act to adjudicate that question stands
terminated or extinguished by the operation of Section 7A of 1954, none of the
clauses (a), (c) and (d) of section 46 will bar the jurisdiction of the civil
court to determine that question which had not been decided by the custodian
during the period, he had the power to determine it.
Section 28 has no application to the facts of
the instant case because no order made by any of the authorities mentioned in
that section is 220 being called in question. Section 46, also, does not come
in the way because no proceedings under section 7 of the 1950 Act to declare
the suit house as evacuee property were taken by the Custodian against Qazi
Abdul Rashid. No notification under sub-section (3) of section 7 published in
the official Gazette has been placed on the record. Nor was it shown that any
proceedings initiated under section 7 of the Act to declare it evacuee property
were pending on May 7, 1954, and the question of saving those proceedings under
the proviso to section 7A does not arise.
Qazi Abdul Rashid was throughout a resident
of India till 1963 and was personally managing the suit house and collecting
rent of it from the tenant. After May 7, 1954, therefore, the Custodian had no
jurisdiction under the 1950 Act to declare the suit house as evacuee property.
The jurisdiction of the courts below to go into this question was thus not
barred by anything in sections 28 and 46 of the 1950 Act.
We, therefore, negative the first contention
of the appellant.
Now let us have a look into the relevant
provisions of the 1954 Act.
Section 2(c) of the 1954 Act defines
"evacuee property" to mean any property which has been declared or is
deemed to have been declared as evacuee property under the Administration of
Evacuee Property Act, 1950. At this place, it may be recalled that the second
part of the definition which contains a deeming provision has no application to
the facts of the instant case because Qazi Abdul Rashid was throughout residing
in India till his migration to Pakistan in 1963. That is to say, he had not
become an evacuee before the repeal of the U.P. Ordinance No. 1 of 1949. This
ordinance is not relevant for the purposes of the present case. The first part
of the definition, also, is not applicable because the suit house has never
been declared as evacuee property under the 1950 Act.
The next provision is to be found in section
12, which reads as follows:
"S. 12. Power to acquire evacuee
property for rehabilitation of displaced persons.- (1) If the Central
Government is of opinion that it is necessary to acquire any evacuee property
for a public purpose, being a purpose connected with the relief and rehabilitation
of displaced persons, including payment of compensation 221 to such persons,
the Central Government may at any time acquire such evacuee property by
publishing in the official Gazette a notification to the effect that the
Central Government has decided to acquire such evacuee property in pursuance of
this section.
(2) 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.
(3) It shall be lawful for the Central
Government, if it so considers necessary, to issue from time to time the
notifications referred to in sub-section (1) in respect of- (a) all evacuee
property generally; or (b) any class of evacuee property;
or (c) all-evacuee property situated in a
specified area; or (d) any particular evacuee property.
(4) All evacuee property acquired under this
section shall form part of the compensation pool." It may be noted that
the necessary prerequisite for acquiring property under Section 12 is that it
must be 'evacuee property' as defined in section 2(c) of the 1954 Act. In the
absence of this essential prerequisite, the Central Government is not competent
to acquire that property under this section for throwing it into the
compensation pool. This prerequisite or condition precedent, as already noticed,
was lacking in the instant case. No notifications published in the official
Gazette either under sub-section (I) or sub-section (3) of section 12 appears
to have been brought on the record of this case. Our attention was not drawn to
any such notifications.
Then, there is section 20 which confers power
on the managing officer to transfer any property out of the compensation pool
by sale or in any other manner indicated in clauses (b) to (e) of that section.
Again, the necessary prerequisite for sale is that the property must have been
declared under section 7 of the 1950 Act to be evacuee property by the
Custodian or it must be evacuee property under the 222 deeming provisions of
any law which may be applicable to the case of the evacuee. In other words, only
that property which was evacuee property could be acquired under section 12 and
form part of the compensation pool which satisfies the definition of
"evacuee property" given in section 2(c) of the 1954 Act. If the
property was never evacuee property, as defined in section 2(c), it does not
legally form part of the compensation pool and, therefore, cannot be disposed
of under Section 20 or the Rules framed under this statute.
Then, there are Sections 22, 23 and 24.
Section 22 gives a right of appeal to a person aggrieved by an order of the
Settlement officer or a managing officer, to the Settlement Commissioner. Any
person aggrieved by the order of the Settlement Commissioner/Additional
Settlement Commissioner/Assistant Settlement Commissioner or a managing officer
has been given a right to prefer an appeal to the Chief Settlement Commissioner
under Section 23. But no appeal is competent from any order passed in appeal
under Section 22. Section 24 confers the power of revision on the Chief
Settlement Commissioner to revise any order of the authorities mentioned in
that Section, including that of the managing officer.
Some argument was made by the learned counsel
for the appellant that the only remedy of the respondents was to prefer an
appeal or revision under the aforesaid provisions of this Act and that, since
1. they did not avail of the same under Section 27, the sale made by the
managing officer in favour of the plaintiff-appellant has become final and
cannot be questioned in any court. Section 27 reads thus:
"27. Finality of orders.-Save as
otherwise expressly provided in this Act, every order made by any officer or
authority under this Act, including a managing corporation, shall be final and
shall not be called in question in any court by way of an appeal or revision or
in any original suit, application or execution proceeding." It will be
seen that Section 27 is not attracted because the plaintiff, who filed the
original suit and is now coming before us by way of appeal, is not questioning
the finality of the order of the sale alleged to have been made by the managing
officer. It is the defendant respondents who are resisting the plaintiff's
claim on the ground that the sale is a nullity. It could not be made under this
Act of 1954 for the reason that it was never declared evacuee property under
Section 7 of the Act and thus never formed part of the compensation pool. The
words "under this Act" occurring in Section 27 are significant They
show that those orders which are not made by any officer or 223 authority in
accordance with the provisions of this Act, but outside the provisions of this
Act in excess of jurisdiction, can be called in question in the civil court.
It may be noted that the language of Section
27 is not as wide as that of Section 46 of the 1950 Act.
The facts of N.S. Gujral (ibid) were entirely
different. There, an Indian citizen held a money decree against a person who,
subsequent to the passing of the decree, turned an evacuee. It was held that at
no time, the decree-holder had any right whatsoever in the property which
vested in the Central Government on the issue of the notification under Section
12. It was further held that though the decree-holder cannot claim to proceed
against the property in suit ' or its income after the date on which it vested
in the Central Government by virtue of the notification under Section 12, he
can ask the Custodian to pay him out of the moneys' lying with him on the date'
of such vesting if he can satisfy him in the manner provided in Section 10(2)(n)
read with Section 10(1) of the 1950 Act.
The ratio of that decision has no application
to the facts of the pr The second contention, also, being meritless, is over-
ruled.
For the foregoing reasons, the appeal fails
and is dismissed with costs.
Before parting with this judgment, we may
note here that at the conclusion of final arguments in this Court, counsel for
the appellant represented that his client was making all efforts to search out
and produce the Gazette Notification, whereby the suit property was declared
and notified as evacuee property by the Custodian under subsection (3) of
Section 7 of the 1950 Act. He wanted some time. We therefore, reserved this judgment
to give the plaintiff-appellant a last chance to produce such a notification of
which the Court could take judicial notice.
But, he has failed to produce any such
Gazette Notification.
Instead, he has produced, what purports to
be, a copy of an order, dated January 5, 1951, of the Assistant Custodian.
This is not a copy of any Gazette
Notification of which judicial notice, without formal proof, could be taken.
We, therefore, do not find any good ground to reopen the case and decline the
appellant's request for permitting him to produce additional evidence at this
very late stage.
N V K. Appeal dismissed.
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