Haji Siddik Haji Umar & Ors Vs.
Union of India [1983] INSC 5 (18 January 1983)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) SEN, A.P. (J) MISRA, R.B. (J)
CITATION: 1983 AIR 259 1983 SCR (2) 249 1983
SCC (1) 408 1983 SCALE (1)48
ACT:
Administration of Evacuee Property Act,
1950-Sub-s. (2A) of s. 8 and ss. 28 and 46-Property taken over as evacuee
property under any repealed law-Sub-s. (2A) of s. 8 operates even if there is
no defect in previous law and cures all defects in taking over-ss. 28 and 46
bar jurisdiction of civil court to interfere in any matter determined by
Custodian General or Custodian.
HEADNOTE:
Sub s. (2A) of s. 8 of the Administration of
Evacuee Property Act, 1950 states that all property which under any law
repealed by the Act purports to have vested as evacuee property in any person
exercising the powers of Custodian in any State shall, notwithstanding any
defect in, or the invalidity of such law or any judgment, decree or order of
any Court be deemed for all purposes to have validly vested in that person, as
if the provisions of such law had been enacted by Parliament and such property
shall, on the commencement of the Act, be deemed to have been evacuee property
declared as such within the meaning of the Act and accordingly, any order made
or other action taken by the Custodian or, any other authority in relation to
such property shall be deemed to have been validly and lawfully made or taken.
The properties which were the subject matter
of the suit from which this appeal arose were situate in the erstwhile State of
Junagadh and belonged to one Haji Umar Kasam who had sailed from Bombay on October
8, 1947 on a pilgrimage to Mecca. On May 1, 1948 a notice in respect of these
properties was issued under the Junagadh State Evacuee (Administration of
Property) Act XII of 1948 but it was withdrawn on May 31, 1948 on receipt of a
reply from his son that he had not gone away from Junagadh out of fear of civil
disturbances but in fact had gone on Haj and was expected to return shortly.
Since he did not return till September, 1948 the Custodian took possession of
the suit properties.
Thereafter the territory of Junagadh became
integrated with the United States of Saurashtra and the Junagadh Act was
repealed by a Saurashtra Ordinance which in turn was repealed by a Central
Ordinance. The Administration of Evacuee Property Act, 1950 replaced the
Central Ordinance.
An order declaring Haji Umar Kasam as an
evacuee was issued on May 20, 1949 by the Custodian purporting to act under the
Junagadh Act. The appeal filed against this order before the District Judge,
Junagadh was transferred by him to the High Court of Saurashtra which in turn
sent the same to the Custodian of Saurashtra for disposal. Haji Umar Kasam returned
to India 250 during the pendency of that appeal and filed a petition under the
provisions of the Central Ordinance-which had come into force by then-before
the Custodian General requesting him to transfer the appeal to his file for
disposal. Before this petition could be heard, the appeal was dismissed by the
Custodian of Saurashtra on June 2, 1950. A revision filed against this order
was dismissed on August 9, 1950 by the Custodian General along with the
petition for transfer of the appeal which had been filed earlier. Haji Umar
Kasam's application under s. 16 of the Central Ordinance for restoration of his
property was also turned down when the Central Government declined to grant the
certificate contemplated under the proviso to sub-s. (1) thereof on the ground
that, contrary to his claim that he had gone to Mecca and stayed there, there
was evidence suggesting that he must have been in Karachi for a major part of
the period during which he was away from India. A notification was also issued
in respect of the suit properties under s. 12 of the Displaced Persons
(Compensation and Rehabilitation) Act, 1954.
The heirs and legal representatives of Haji
Umar Kasam filed the suit contending that he was not an evacuee; that the
taking over of possession of the properties after the withdrawal of the notice
on May 31, 1948 without issuing further notice was illegal; that an order
directing restoration of the properties to Haji Umar Kasam had been passed on
March 1, 1949 and therefore the order of May 20, 1949 declaring him an evacuee
without issuing notice or holding an inquiry was illegal; and that the orders
passed by the Custodian and the Custodian General on June 2, 1950 and August 9,
1950 respectively as well as the refusal by the Government of India to grant
the certificate under s. 16 were all contrary to law.
The Union of India which contested the suit
did not deny that an order was made on March 1, 1949 as stated above but
pleaded that the order dated May 20, 1949 had been passed in accordance with
law after making necessary inquiry at which the plaintiffs had been given
sufficient opportunity to prove that Haji Umar Kasam was not an evacuee. Ii
placed reliance on the order passed on the application made under s. 16 and the
notification issued under s. 12 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1954 and on s. 46 which barred the jurisdiction of the civil court to
decide the questions raised in the suit.
The trial court dismissed the suit and the
appeal against its dismissal was rejected by the High Court. On the question
relating to the existence of the order of March 1, 1949 directing the
restoration of properties of Haji Umar Kasam, while the trial court was of the
view that there was no such order, the High Court held that such an order had
been made;
Dismissing the appeal,
HELD :Sub-s. (2A) of s. 8 operates even if
there is no defect in any previous law under which action is taken and cures
all defects, if any, in the taking over of the properties as evacuee
properties. The words "notwithstanding any defect in or the invalidity of,
such law or any judgment, decree or order of any 251 Court" found in this
sub-section do not cut down the operation of the clear words of the sub-section
which validate the vesting of any property which purports to have vested as
evacuee property even if there was any irregularity in the procedure. The
non-obstante clause referred to above is not intended to whittle down the
operation of sub-s (2A) of s. 8. It is introduced only out of abundant caution.
In the context in which this sub- section appears it is not correct to hold
that it would operate only where there is any defect in or invalidity of any
previous law or where there is any judgment, decree or order of any court to
the contrary. [267 A-E] The Dominion of India & Anr. v. Shrinbai A. Irani
& Anr., [1955] 1 S.C.R. 296; Azeemunnisa & Ors. v. The Deputy Custodian
Evacuee Properties, District Deoria & Ors., [1961] 2 S.C.R. 91 and M/s.
Haji Esmail Noor Mohammed & Co & Ors. v. The Competent Officer, Lucknow
& Ors., [1967] 3 S.C.R. 134, referred to.
Ahmedbhai Abdulkadar & Ors. v. The
Custodian of Evacuee Property and Regional Settlement Commissioner, Bombay
& Ors., A.I.R. 1971 Gujarat 181, approved.
In the instant case it cannot be disputed
that the suit properties had been taken over under the Junagadh Act as evacuee
properties in September, 1948 and had continued to be in the possession of the
Custodian till the Act was passed and therefore it is not possible to hold that
they were not evacuee properties. [268 H, 269 A] (ii) Whereas under s. 7 of the
Act an enquiry had to precede the declaration that a property was an evacuee
property, under the Junagadh Act no such enquiry was contemplated. The
Custodian was required by s. 7 of that Act to take possession of any property
which had been left in Junagadh by an evacuee. The suit properties had been
taken over as evacuee properties in September, 1948 because Haji Umar Kasam had
not returned to Junagadh for over one year.
Such taking over was an administrative act.
By reason of the combined effect of ss. 4 and 16 (1) of the Junagadh Act the
properties continued to be vested in the Custodian. The order dated March 1,
1949 under which it is claimed that the properties were ordered to be returned
has not been produced. Even if such an order was there unless it is shown that
such an order had been passed by the State Government and published in the
Official Gazette, the suit properties would not cease to be evacuee properties.
By virtue of s. 5 of the Saurashtra Ordinance they became vested in the
Custodian of Saurashtra and by virtue of s. 8 (2) of the Central Ordinance they
became vested in the Custodian appointed under that Ordinance. All properties
vested under the Central Ordinance became evacuee property in the hands of the
Custodian appointed under the Act by virtue of sub- ss. (2) and (2A) of s. 8.
Any doubt that existed about the vesting of the properties in the Custodian
under the Act as evacuee property was removed by enacting sub-s; (2A) of s. 8
with retrospective effect. [261 E-H, 262 A-E, 266 E-F] (iii) It is only after
the Central Ordinance came into force that Haji Umar Kasam preferred his
petition for restoration of his properties under s. 16 (1) of 252 that Ordinance,
and also applied for a certificate as per proviso to that sub-section to the
Government of India.
Again it is only after the Act came into
force replacing the Central Ordinance that the Custodian General disposed of
the petition for transfer of the appeal pending before the Custodian of
Saurashtra and the revision petition filed against his order dated June 2,
1950. The effect of these proceedings have to be considered in the light of the
provisions of the Act. [263 G-H, 264 A-B] (iv) Section 28 bars the jurisdiction
of any court to entertain any suit or proceeding with respect to any order
passed by the authorities mentioned therein. Section 46 which is worded very
widely bars the jurisdiction of civil or revenue courts in regard to matters mentioned
therein. No such court can entertain any suit or proceeding in which the
question whether any property is or is not evacuee property arises or in which
the legality of any action taken by the Custodian General or the Custodian
under the Act is questioned. Any matter which the Custodian General or the
Custodian is empowered to determine by or under the Act is also outside the
jurisdiction of any such court. In view of these provisions it was not open to
the civil court to decide whether the suit properties were evacuee properties
or not. It was also not open to it to decide the correctness of the order of
the Custodian General dated August 9, 1950 declining to interfere with the
order of the Custodian dated June 2, 1950. The question whether a certificate
should have been issued by the Central Government also was by implication
barred as it was the Custodian who had to restore the property after holding an
inquiry into the title of the evacuee when an application was made to him along
with a certificate issued by the Central Government and a certificate of that
nature by itself would be of no use.
Neither Haji Umar Kasam, nor after his death,
his heirs and legal representatives, questioned these orders before the High
Court under Art. 226 or before this Court under Art. 32 or Art. 136. Thus they
became final and were beyond the jurisdiction of the civil court. [269 C-H, 270
A] Custodian of Evacuee Property, Punjab & Ors. v. Jafran Begum, [1967] 3
S.C.R. 736, referred to.
Fazalbhoy Currimbhoy etc. v. Official Trustee
of Maharashtra & Ors., [1979] 2 S.C.R. 699 and Dr. Rajendra Prakash Sharma
v. Gyan Chandra & Ors., [1980] 3 S.C.R. 207, distinguished.
(v) On the publication of the notification
under s. 12 of the Displaced Persons (Compensation and Rehabilitation) Act,
1954 the right, title or interest of Haji Umar Kasam in the suit properties
became extinguished and they vested absolutely in the Central Government free
from all encumbrances by virtue of s. 12 (2) of that Act. [270 D-E] Basant Ram
v. Union of India, [1962] Supp. 2 S.C.R. 733, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 2279 of 1970.
253 From the Judgment and Decree dated the
28th/29th July, 1970 of the Gujarat High Court in First Appeal No. 438 of 1962.
T.U. Mehta and R.P. Kapoor for the Appellant.
P.A. Francis, S.N. Chaudhary and R.N. Poddar
for the Respondent.
R.N. Sachthey for the Intervener.
R.H. Dhebar for the Intervener.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. This appeal by certificate is filed against the judgment and
decree dated July 29, 1970 passed by the High Court of Gujarat in First Appeal
No. 438 of 1962 affirming the judgment and decree dated August 27, 1962 passed
in Special Civil Suit No. 254 of 1959 on the file of the Civil Judge (Senior
Division), Junagadh dismissing the suit of the plaintiffs for possession of the
properties mentioned in Schedule-I attached to the plaint and for damages and
other reliefs against the Union of India.
The properties in question which are situated
in the area which formed part of the former princely State of Junagadh
originally belonged to one Haji Umar Kasam, a resident of Junagadh who died on
May 22, 1956. The plaintiffs are his heirs and legal representatives.
The Nawab of Junagadh accepted the accession
of his State to Pakistan on August 13, 1947. On September 23, 1947 Haji Umar
Kasam left Junagadh for Haj and sailed from Bombay by "S.S. Akbar" on
October 8, 1947. On October 24, 1947, the Nawab of Junagadh fled to Pakistan.
The State of Junagadh was taken over by its people and a Council of
Administration was set up to administer it. Thereafter the State acceded to
India. On February 13, 1948 Junagadh State Evacuee (Administration of Property)
Act XII of 1948 (hereinafter referred to as 'the Junagadh Act') was enacted. It
provided for the administration of the properties belonging to evacuees. Under
that Act the expression 'evacuee' was defined as a person ordinarily resident
in or owning property or carrying on business in any village or town within the
254 Junagadh State who had on account of civil disturbances or the fear of such
disturbances left that village or town and did not personally occupy or
supervise his property or business. All property in which an evacuee had any
right or interest other than any moveable property in his immediate physical
possession which was called 'evacuee property' situated within the Junagadh
State came to be vested in the Custodian appointed for the purpose of that Act
and was directed to continue to be so vested until the Junagadh State
Government by notification otherwise directed. There were detailed provisions
in that Act relating to the management of evacuee properties. Section 16 (1) of
that Act however provided that on being satisfied that evacuees had returned or
were returning to the Junagadh State, the Junagadh State Government might by
notification in the State Gazette authorise return of the property to the
owners in accordance with the aforesaid section 16. Any person claiming to be
entitled to any such property could apply in writing to the Custodian who had
after giving public notice to hold a summary enquiry into the claim and to pass
a formal order declaring the person to whom the possession of the property
might be delivered. A notice was issued by the Assistant-Custodian who also
exercised certain specified powers of the Custodian under the Junagadh Act on May
1, 1948 in respect of the properties of Haji Umar Kasam as he had not returned
to Junagadh and was away for more than six months. On May 5, 1948 his son Haji
Mohamed Siddik Haji Umar sent a reply to that notice stating that his father
Haji Umar Kasam had not gone away from Junagadh out of fear of civil
disturbances; that he had gone on 'Haj'; that all his heirs were living in
Junagadh and that he was returning shortly and therefore his properties might
not be treated as evacuee properties. No specific reason was, however, given in
the said reply for the long delay in the return of Haji Kasam. On receipt of
his reply that notice was withdrawn on May 31, 1948. Since Haji Umar Kasam had
not returned till September, 1948 the possession of the suit properties was
taken by the Custodian between September 23, 1948 and October 1, 1948 as
evacuee properties. By the Saurashtra Ordinance III of 1949, the territory of
the Junagadh State was integrated with the United States of Saurashtra. It is
alleged that by an order dated March 1, 1949 Haji Umar Kasam was declared to be
a non-evacuee and the ice factory, one of the suit properties, was ordered to
be returned to his sons.
This fact is disputed by the Union of India
although the High Court of Gujarat has held that there was such an order.
The possession of 255 the ice factory was
not, however, returned. It continued to be with the Custodian. But again on May
20, 1949, the Custodian purporting to exercise his power under the Junagadh Act
treated Haji Umar Kasam as an evacuee and directed that his ice factory should
be taken possession of as an evacuee property. The ice factory was leased out
by the State Government in favour of a refugee called Suraji Krishan Nandlal
Chowdhary in May, 1949. Since Haji Umar Kasam had not yet returned to India,
his sons filed an appeal in July, 1949 before the District Judge, Junagadh
against the order declaring him as an evacuee. On August 4, 1949 the Saurashtra
Ordinance XLIII of 1949 (hereinafter referred to as the 'Saurashtra Ordinance')
was passed repealing the Junagadh Act and under that Ordinance the properties
vested in the Custodian under the Junagadh Act came to be vested in the
Custodian of the United States of Saurashtra. This Ordinance was repealed and
replaced by the Administration of Evacuee Property Ordinance No. XXVII of 1949
(hereinafter referred to as the 'Central Ordinance') which applied also to all
the acceding States except Cooch- Behar, Manipur and Tripura with effect from
October 18, 1949. The Central Ordinance was repealed and replaced by the
Administration of Evacuee Property Act, 1950 (Act XXXI of 1950) (hereinafter
referred to as 'the Act') which came into force on April 17, 1950. Haji Umar
Kasam returned to India on December 23,1949 after the Central Ordinance had
come into force.
Now reverting to the appeal preferred by the
sons of Haji Kasam filed in July, 1949 before the District Judge, Junagadh it
is seen that the said appeal was transferred by the District Judge to the High
Court of Saurashtra State without deciding it. The High Court in its turn as
per its order dated March 22, 1950 sent the appeal to the Custodian of Evacuee
Property of Saurashtra on a joint submission made by the counsel appearing for
the appellants as well as the counsel for the Custodian with which the High
Court agreed.
When the said appeal was pending before the
Custodian, a petition purporting to be under sub-section (2) of section 6 and
section 27 of the Central Ordinance was presented by Haji Umar Kasam himself to
the Custodian General of Evacuee Property requesting him to withdraw the appeal
to his file and to dispose it of. That petition dated April 17, 1950 was
actually presented on April 19, 1950. Before the above petition could be heard
by the Custodian General, the Custodian dismissed the appeal on June 2, 1950 on
two grounds viz. (i) that the appeal had 256 been filed after the expiry of the
period of limitation and (ii) that Haji Umar Kasam having left the Junagadh
State limits after August 15, 1947 and having not returned by the time the
order under appeal was passed i.e. May 20, 1949 he had been rightly treated as
an evacuee.
Against the order passed by the Custodian on
the appeal on June 2, 1950 a revision petition was filed before the Custodian
General under section 27 of the Act. The Custodian General took up for
consideration the petition filed on April 19, 1950 requesting him to withdraw
the appeal then pending before the Custodian and the revision petition filed
against the order passed in appeal by the Custodian together. After hearing the
counsel for Haji Umar Kasam the Custodian General disposed them of by his order
dated August 9, 1950. Though he agreed with the submission made on behalf of
Haji Umar Kasam that the appeal filed against the order passed by the Custodian,
Junagadh on May 20, 1949 could not be disposed of by the Custodian of
Saurashtra State, who was of the same rank as the Custodian who had passed the
order under appeal, he found it difficult to go behind the order of the High
Court of Saurashtra which had transferred the appeal to the Custodian of
Saurashtra by its order agreeing with the joint submission made by the counsel
for the appellants therein and the counsel for the Custodian. That Judicial
order according to the Custodian General, having become final could not be
interfered with by him. He also felt that it was not possible for him to set
aside the order of May 20, 1949 passed by the Custodian, Junagadh as the office
of the Custodian General was not in existence then, even if he could interfere
with the appellate order passed by the Custodian of Saurashtra holding that the
appeal was barred by time. For these and other reasons, the Custodian General
dismissed both the petition dated April 19, 1950 and the revision petition by
his order dated August 9, 1950.
That order was allowed to become final.
Haji Umar Kasam also made an application in
January, 1950 to the Custodian for restoration of his property under section 16
of the Central Ordinance. That Section read as:
"16. Restoration of Property: (1) the
Custodian may, on application made to him in this behalf in writing by an
evacuee or any person claiming to be an heir of an evacuee, restore subject to
such terms and conditions as he may think 257 fit to impose, the evacuee
property to which the evacuee or other person would have been entitled if this
Ordinance were not in force:
Provided that the applicant produces in
support of his application a certificate from the Central Government or from
any person authorised by it in this behalf, to the effect that the evacuee
property may be so restored if the applicant is otherwise entitled thereto.
(2) On receipt of an application under
sub-section (1), the Custodian shall cause public notice thereof to be given in
the prescribed manner, and, after holding a summary inquiry into the claim in
such manner as may be prescribed may- (a) make a formal order declaring that
the property shall be restored to the applicant:
or (b) reject the application; or (c) refer
the applicant to a civil court for the determination of his claim and title to
the property:
Provided that no order for restoration shall
be made under this section, unless provision has been made in the prescribed
manner for the recovery of any amount due to the Custodian in respect of the
property or the management thereof.
(3) Upon the restoration of the property to
the evacuee or to the heir, as the case may be, the Custodian shall stand
absolved of all responsibilities in respect of the property so restored, but
such restoration shall not prejudice the rights, if any, in respect of the
property which any other person may be entitled to enforce against the person
to whom the property has been so restored:
Provided that every lease granted in respect
of the property or on behalf of the Custodian shall have effect against the
person to whom restoration is made until such lease is determined by lapse of
time or by operation of law." (Underlining by us) 258 [Note: Section 16(1)
of the Act which replaced the Central Ordinance on April 17, 1950 was in the
same terms.] On receipt of that application filed by Haji Umar Kasam, the
Custodian informed him on February 25, 1950 that in order to proceed with it,
it was necessary that he should produce a certificate of the Central Government
as contemplated under the proviso to section 16(1) set out above. Accordingly
he applied to the Custodian General for such a certificate on March 19, 1950.
That application was sent to the Custodian of Saurashtra for enquiry and
report.
The Custodian submitted his final report on
June 30, 1953.
In his application Haji Umar Kasam had
claimed that he had left India for the purpose of Haj and had gone to Mecca
where he fell ill necessitating a prolonged stay there. He also claimed that he
had stayed all along there from September 1947 to December 1949 when he
returned to India.
In support of his case he produced
certificate dated December 3, 1949 issued by the Indian Consul at Jeddah (Saudi
Arabia) saying that he had been unavoidably detained there and could not be
repatriated earlier. On enquiry the Custodian found that apart from the other
circumstances, such as earlier statements made by the sons of Haji Umar Kasam,
certain remittances sent from the Bank of India, Junagadh Branch to him which
were encashed at Karachi suggested that Haji Umar Kasam must have been in
Karachi for a major part of the period during which he was away from India.
The following was the list of remittances:
"THE BANK OF INDIA JUNAGADH BRANCH
Amount remitted by various individuals and firms to parties residing in Karachi
(Pakistan) through this branch.
____________________________________________________________
Sr. Date of Name of remitter Amount Name of Receiver No. remittance remitted in
Pakistan ____________________________________________________________ 1 2 3 4 5
____________________________________________________________ 24 3-11-47 Haji
Ibrahim Ayub 12,000 Haji Umar Kasam 70 22-11-47 Haji Ibrahim Ayub 4,500 Haji
Umar Kasam 167 27-11-47 Haji Ibrahim Ayub 3,500 Haji Umar Kasam 488 23-1-48 Baramain
H. Mian 1,000 Haji Umar Kasam 573 10-4-48 Alibhai Haji Hakim- 2,000 Haji Umar
Kasam bhai 592 1-5-48 Haji A. Haji Umar 5,000 Haji Umar Kasam 617 7-6-48 Haji
A. Haji Umar 5,000 Haji Umar Kasam 620 9-6-48 Abdreman Kasam 1,800 Umar
Kasam" ____________________________________________________________ 259
The Custodian reported that the evidence before him revealed that Haji Umar
Kasam had received the payments through the above bank remittances at Karachi
and that the case that Haji Umar Kasam had stayed in Mecca throughout was not
believable. After considering the entire matter before it and the report
referred to above the Government of India declined to grant a certificate
referred to in the proviso to section 16 (1) of the Act as it stood then and
communicated its decision to Haji Umar Kasam through the Custodian, Saurashtra
on July 3, 1954 This decision again was not questioned in any court. A
notification under section 12 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1954 was issued in respect of the properties in question on June 8, 1955.
No further effective action appears to have been taken by Haji Umar Kasam
against this notification except writing letters to the ministers of the
Government of India, some of which are produced before this Court by way of
answer to a question put by the Court as to whether any such action was taken
before the institution of the suit.
As mentioned earlier Haji Umar Kasam died on
May 22, 1956. Thereafter his heirs and legal representatives filed the suit out
of which this appeal arises in the year 1959 after issuing the required notice
dated January 2, 1959 under section 80 of the Code of Civil Procedure. In that
notice, it was stated that the Special Custodian Officer had taken possession
of the suit properties between September 23, 1948 and October 1, 1948 illegally
acting in abuse of his power. The plaintiffs demanded the return of the suit
properties and also damages for illegal possession from October 1, 1948 to
January 1, 1959.
The main contention of the plaintiffs in the
suit is set out in paragraphs 4 and 5 of the plaint. It is pleaded therein that
Haji Umar Kasam was not an evacuee ; that the first notice issued by the
Custodian Officer was withdrawn on May 31, 1948 ; that again in September, 1948
the Special Custodian Officer had taken possession of the ice factory belonging
to Haji Umar Kasam without issuing any notice to him and later on a
representation made by the plaintiffs, the Special Custodian Officer passed an
order on March 1, 1949 directing the restoration of the properties of Haji Umar
Kasam to him and that again on May 20, 1949 the Custodian of Evacuee Property,
Junagadh had made a declaration that Haji Umar Kasam was an evacuee and
directed the taking over of his properties. It is 260 contended that the order
of May 20, 1949 which was passed without issuing notice and without holding an
enquiry after the order of March 1, 1949 was illegal and in excess of
jurisdiction. In paragraphs 6 and 7 of the plaint, it was alleged that the
order passed by the Custodian on June 2, 1950 was bad in law and the rejection
of the petition by the Custodian General on August 9, 1950 and the refusal by
the Government of India to grant the certificate under section 16 of the Act
were again contrary to law. The suit was filed by the heirs and legal
representatives of Haji Umar Kasam on the above basis for possession of the
twelve properties mentioned in Schedule-I attached to the plaint which
originally belonged to him. The defendant, Union of India, which contested the
suit while not denying that an order was made on March 1, 1949 as stated above,
inter alia pleaded that the order dated May 20, 1949 had been passed in
accordance with law after making necessary inquiry at which the plaintiffs had
been given sufficient opportunity to prove that Haji Umar Kasam was not an
evacuee. Reliance was also placed by the Union of India on the orders passed on
the application made under section 16 of the Act, the notification issued under
section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954
and section 46 of the Act which barred the jurisdiction of the civil court to
decide the questions raised in the suit.
On the aforesaid pleadings, the trial court
framed as many as fifteen issues and at the conclusion of the trial recorded
its findings on them. Ultimately the suit was dismissed. The High Court in
appeal discussed the effect of some of the provisions of law applicable to the
case and dismissed the appeal. It did not, however, deal with all the issues.
It may be noted that on the question relating to the existence of the order of
March 1, 1949 while the trial court was of the view that there was no such
order, the High Court held that such an order had been made.
In order to deal with the contentions of the
parties before us it is necessary to deal with the effect of the orders passed
from time to time under the various provisions of law applicable to the case.
These orders can be classified into two groups viz. those passed prior to the
coming into force of the Central Ordinance i.e. prior to October 18, 1949 and
those passed after the Central Ordinance came into force.
We shall first deal with the orders passed
prior to the coming into force of the Central Ordinance. It is now necessary to
consider 261 the provisions of the Junagadh Act which came into force on
February 13, 1948. It did not provide for any enquiry before treating any
property as evacuee property. Section 2 (b) of the Junagadh Act defined the term
'evacuee' and section 2 (c) defined the term 'evacuee property' as all property
in which an evacuee had any right or interest. The object of the Junagadh Act
was to make provision for the preservation and the management of evacuee
properties. Section 4 of that Act provided that an evacuee property situated
within the Junagadh State would vest in the Custodian for the purpose of that
Act and would continue to be so vested until the Junagadh State Government by
notification otherwise directed. Section 7 of that Act required the Custodian
to take possession of all evacuee properties. Section 8 of that Act provided
for an enquiry by the Custodian into the claims of any person in respect of
property taken possession of by him as evacuee property. If the Custodian was
satisfied that the claimant had any right to it, he had to give effect to it.
But if he rejected the claim, the aggrieved party could file an appeal before
the High Court. Section 16 (1) of that Act empowered the Junagadh State
Government by notification in the State Gazette to authorise the return of any
evacuee property on being satisfied that the concerned evacuee had returned or
was returning to the State of Junagadh after holding an enquiry into the title
of such evacuee to the property in question. It is thus clear that the pattern
of the provisions of the Junagadh Act was different from the provisions of the
Act. Whereas under section 7 of the Act an enquiry had to precede the
declaration that a property was an evacuee property under the Junagadh Act no
such enquiry was contemplated. But the provisions of the Junagadh Act did not
allow any unjust results to follow. The Custodian was required to take
possession of any property which had been left in Junagadh by an evacuee and to
preserve and manage it until the evacuee returned and on his return the
possession was to be restored to him. There was no violation of any principles
of natural justice as such involved in the process. On the other hand it
provided for a machinery for preventing the properties of evacuees being
occupied by trespassers and for their preservation. The suit properties had
been admittedly taken over by the Custodian as evacuee properties in September,
1948 because Haji Umar Kasam had not returned to Junagadh for over one year. Such
taking over was an administrative act. The properties taken over as evacuee
properties under the Junagadh Act by reason of the combined effect of section 4
and section 16 (1) there of continued to be vested in the Custodian until 262
the Junagadh State Government by notification published in the Official Gazette
authorised their restoration to the owner. No Gazette notification authorising
such restoration is produced before the Court. The order dated March 1, 1949
under which it is claimed that the properties were ordered to be returned is
also not produced. Even if such an order was there unless it is shown that such
an order had been passed by the State Government and published in the Official
Gazette, the evacuee properties taken over under the Junagadh Act would not
cease to be evacuee properties. The order dated May 20, 1949 did not,
therefore, in any way alter the situation. It only reiterated the true
character of the properties namely that the properties in question were evacuee
properties which had been taken over in exercise of the powers under the
Junagadh Act. It is admitted by Haji Ahmed Haji Umar, plaintiff No. 2 in his
deposition that they were in the possession of the Custodian when the Saurashra
Ordinance came into force on August 4, 1949. Section 4 of that ordinance
provided that the provisions contained in that Ordinance and the rules and
orders made thereunder would have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force in the United
States of Saurashtra of which Junagadh was a part. Section 5 of that Ordinance
provided for the vesting of all evacuee properties situated in the United
States of Saurashtra in the Custodian under the Ordinance. Thus the properties
vested in the Custodian of Junagadh came to be vested in the Custodian of the
United States of Saurashtra. The properties of Haji Umar Kasam also accordingly
became vested in the Custodian of the United States of Saurashtra.
The Central Ordinance came into force on
October 18, 1949 and it was applicable to the State of Saurashtra also.
Section 55 of that Ordinance reads as follows
;
"55. Repeals and saving. (1) The
administration of Evacuee Property Ordinanc, 1949 (XII of 1949), as in force in
the Chief Commissioners' Provinces and the Province of Madras and the United
Provinces is hereby repealed.
(2) If, immediately before the commencement
of this Ordinance, there is in force in any Province other than any of the
Provinces specified in sub-section (1) or in any Acceding State any law
corresponding to the Administra 263 tion of Evacuee Property Ordinance, 1949,
that law also shall stand repealed.
(3) Notwithstanding the repeal by the
Ordinance of the Administration of Evacuee Property Ordinance, 1949, or of any
corresponding law, anything done or any action taken in the exercise of any
power conferred by that Ordinance or law shall be deemed to have been done or
taken in the exercise of the powers conferred by this Ordinance, and any
penalty incurred or proceeding commenced under that Ordinance or law shall be
deemed to be a penalty incurred or proceeding commenced under this Ordinance as
if this Ordinance were in force on the day on which such thing was done, action
taken, penalty incurred or proceeding commenced." Sub-sections (2) and (3)
of section 55 extracted above treated all actions taken under the Saurashtra
Ordinance which also came to be repealed as actions taken under the Central
Ordinance. By section 8 (2) of this Ordinance all evacuee properties vested in
the Custodian of the United States of Saurashtra became vested in the Custodian
appointed or deemed to be appointed under it. That sub- section reads as.
"8. Vesting of evacuee property in the
Custodian (1) ............................................
(2) Where immediately before the commencement
of this Ordinance any evacuee property in a Province had vested in any person
exercising the powers of a Custodian under any law repealed hereby, the evacuee
property shall, on the commencement of this Ordinance, be deemed to have vested
in the Custodian appointed or deemed to have been appointed for the Province
under this Ordinance, and shall continue to so vest." It is only after the
Central Ordinance came into force that Haji Umar Kasam who had returned to
India in December, 1949 preferred his petitions for restoration of his
properties under section 16 (1) of the Central Ordinance and also applied for a
certificate as per proviso to that sub- section to the Government of India.
Again it is only after the Act came into force on April 17, 1950 replacing the
above Central Ordinance, the Custodian General disposed of the 264 petition for
transfer of the appeal pending before the Custodian of Saurashtra and the
revision petition filed against his order dated June 2, 1950. The effect of
these proceedings have to be considered in the light of the provisions of the
Act. The relevant provisions of the Act which have to be considered are section
8 (2), section 8 (2A), section 16 (1), section 28, section 46 and section 58.
It may he mentioned here that section 8 (2A)
of the Act was inserted into the Act by the Administration of Evacuee Property
(Amendment) Act, 1960 (Act I of 1960) on February 27, 1960 but section 2 of
that Act declared that new sub- section "shall be inserted and shall be
deemed always to have been inserted" thus giving it retrospective effect
from the date of the commencement of the Act. Section 16(1) of the Act was in
the same terms as section 16 (1) of the Central Ordinance extracted above. The
other relevant provisions of the Act are given below :
"8. Vesting of evacuee property in the
Custodian.
(1)
.............................................
(2) Where immediately before the commencement
of this Act, any property in a State had vested as evacuee property in any
person exercising the powers of Custodian under any law repealed hereby the
property shall, on the commencement of this Act, be deemed to be evacuee
property declared as such within the meaning of this Act and shall be deemed to
have vested in the Custodian appointed or deemed to have been appointed for the
State under this Act, and shall continue to so vest :
Provided that where at the commencement of
this Act there is pending before the High Court, the Custodian or any other
authority for or in any State any proceeding under section 8 or section 30 of
the Administration of Evacuee Property Ordinance, 1949 (XII of 1949), or under
any other corresponding law repealed by the Administration of Evacuee Property
Ordinance, 1949 (XXVII of 1949), then notwithstanding anything contained in
this Act or any other law for the time being in force, such proceeding shall be
disposed of as if the definitions of 'evacuee property' and 'evacuee' contained
in section 2 of this Act had become applicable thereto.
265 (2A) Without prejudice to the generality
of the provisions contained in sub-section (2), all property which under any
law repealed hereby purports to have vested as evacuee property in any person
exercising the powers of Custodian in any State shall, notwithstanding any
defect in, or the invalidity of, such law or any judgment, decree or order of
any court, be deemed for all purposes to have validly vested in that person, as
if the provisions of such law had been enacted by Parliament and such property shall,
on the commencement of this Act, be deemed to have been evacuee property
declared as such within the meaning of this Act and accordingly, any order made
or other action taken by the Custodian or, any other authority in relation to
such property shall be deemed to have been validly and lawfully made or taken.
28. Finality of orders under this
Chapter-Save as otherwise expressly provided in this Chapter, every order made
by the Custodian-General, District Judge, 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.
46. Jurisdiction of civil courts barred in
certain matters. 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 (b) ......... ......
(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.
266
58. Repeals and savings-The Administration of
Evacuee Property Ordinance, 1949 and the Hyderabad Administration of Evacuee
Property Regulation are hereby repealed.
(2) 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.
(3) The repeal by this Act of the
Administration of Evacuee Property Ordinance, 1949, or the Hyderabad
Administration of Evacuee Property Regulation or of any corresponding law shall
not affect the previous operation of that Ordinance, Regulation or
corresponding law and subject thereto, anything done or any action taken in the
exercise of any power conferred by or under that Ordinance, Regulation or
corresponding law, shall be deemed to have been done or taken in the exercise
of the powers conferred by or under this Act as if this Act were in force on
the day on which such thing was done or action was taken." The effect of
the provisions of the Act in so far as this case is concerned may be summarised
thus: All properties vested in the Custodian under the Central Ordinance became
evacuee property in the hands of the Custodian appointed under the Act by
virtue of sub-sections (2) and (2A) of section 8 of the Act. Any doubt that
existed about the vesting of the properties in the Custodian under the Act as
evacuee property was removed by enacting section 8 (2A) of the Act with
retrospective effect. It says that all property which under any law repealed by
the Act purports to have vested as evacuee property in any person exercising
the powers of Custodian in any State shall, notwithstanding any defect in or
the invalidity of such law or any judgment, decree, order of any court be
deemed for all purposes to have validly vested in that person as if the
provisions of that law had been enacted by Parliament and such property shall
on the commencement of the Act be deemed to have been evacuee property declared
as such within the meaning of the Act and accordingly any order made or other
action taken by the Custodian or any other authority in relation to such
property shall be deemed to have been validly and lawfully made or taken. This
267 provision operates even if there is no defect in any previous law under
which action is taken and cures all defects, if any, in the taking over of the
properties as evacuee properties. The words 'notwithstanding any defect in or
the invalidity of, such law or any Judgment, decree, or order of any court'
found in sub-section (2A) of section 8 of the Act do not cut down the operation
of the clear words of that sub-section which validate the vesting of any
property which purports to have vested as evacuee property even if there was
any irregularity in the procedure. The non-obstante clause referred to above is
not intended to whittle down the operation of sub-section (2A) of section 8.
It is introduced only out of abundant
caution. Omitting the non-obstante clause, sub-section (2A) of section 8 would
read:
"without prejudice to the generality of
the provisions contained in sub-section (2), all property which under any law
repealed purports to have vested as evacuee property in any person exercising
the powers of Custodian in any State shall be deemed for all purposes to have
validly vested in that person......." In the context in which sub-section
(2A) of section 8 of the Act appears, it is not, therefore, correct to hold
that sub-section (2A) would operate only where there is any defect in or
invalidity of any previous law or where there is any judgment, decree or order
of any court to the contrary. This view receives support from the rule of
construction adopted by this Court in The Dominion of India & Anr. v. Shrinbai
A. Irani & Anr.(1) The High Court of Gujarat also has taken the same view
of sub-section (2A) of section 8 of the Act in Ahmedbhai Abdulkadar &
Ors.v. The Custodian of Evacuee Property and Regional Settlement Commissioner,
Bombay & Ors.(2) Dealing with this provision, this Court observed in
Azimunissa & Ors.v. The Deputy Custodian Evacuee Properties, District
Deoria & Ors.(3) at pages 103-104 thus:
"The word "purport" has many
shades of meaning. It means fictitious, what appears on the face of the
instrument; the apparent and not the legal import and therefore any act which
purports to be done in exercise of a power is to be deemed to be done within
that power notwithstanding 268 that the power is not exercisable; Dicker v.
Angerstein [1876] 3 Ch. D.600. 603. Purporting is, therefore, indicative of
what appears on the face of it or is apparent even though in law it may not be
so. This means that at the time when the Act purported to vest the property in
dispute in the Custodian even though the power was not exercisable, s. 8(2A) by
giving a retrospective effect to s. 8(2) of the Act makes the vesting as if it
was vesting under s. 8 (2) of the Act and therefore the attack on the ground of
invalidity cannot be sustained......
The effect of s. 8 (2-A) is that what
purported to have vested under s. 8 (2) of Ordinance XXVII of 1949 and which is
to be deemed to be vested under s. 8 of the Act which repealed that Ordinance,
notwithstanding any invalidity in the original vesting or any decree or order
of the Court shall be deemed to be evacuee property validly vested in the
Custodian and any order made by the Custodian in relation to the property shall
be deemed to be valid. Thus retrospective effect is given to the Act to
validate (1) what purports to be vested; (2) removes all defects or invalidity
in the vesting or fictional vesting under s. 8 (2) of Ordinance XXVII of 1949
or s. 8 (2) of the Act which repealed the Ordinance; (3) makes the decrees and
judgments to the contrary of any court in regard to the vesting ineffective;
(4) makes the property evacuee property by its deeming effect; and (5)
validates all orders passed by the Custodian in regard to the property."
Following the above decision, this Court in M/s. Haji Ismail Noor Mohammad
& Co. Ors. v. The Competent Officer, Lucknow & Ors. (1) held that where
vesting of evacuee properties had taken place under any corresponding law prior
to the coming into force of the Central Ordinance and of the Act, no question
of making a fresh declaration under section 7 (1) of the Central Ordinance
would arise. The Court further held that by reason of the deeming pro- visions
in sub-sections (2) and (2A) of section 8 of the Act, there would be automatic
vesting of such properties and such a vesting could not be reopened after the
Act came into force.
In view of the foregoing since it cannot be
disputed that the suit properties had 269 been taken over under the Junagadh
Act as evacuee properties in September, 1948 and had continued to be in the
possession of the Custodian till the Act was passed, it is not possible to hold
that they were not evacuee properties. We are of the view that they have to be
dealt with under the Act as evacuee properties which has duly vested in the
Custodian under the Act.
Section 16 of the Act provides for
restoration of evacuee property by the Central Government. Section 27 of the
Act gives power of revision to the Custodian General either on his own motion
or on application made to him to call for the record of any proceeding in order
to satisfy himself as to the legality or propriety of any order passed therein
and to pass such order in relation thereto as he thinks fit. Section 28 of the
Act bars the jurisdiction of any Court, of course other than the jurisdiction
of the High Court under Article 226 of the Constitution and of the Supreme
Court under Article 32 and Article 136 of the Constitution to entertain any
suit or proceeding with respect to any order passed by the authorities
mentioned therein. Section 46 of the Act which is worded very widely bars the
jurisdiction of civil or revenue courts in regard to matters mentioned therein.
No such court can entertain any suit or proceeding in which the question
whether any property is or is not evacuee property arises or in which the
legality of any action taken by the Custodian General or Custodian under the
Act is questioned. Any matter which the Custodian General or the Custodian is
empowered to determine by or under the Act is also outside the jurisdiction of
any such Court. (See Custodian of Evacuee Property Punjab & Ors. v. Jafran
Begum (1). In view of the above provisions, it was not open to the civil court
in this case to decide whether the suit properties were evacuee properties or
not. It was also not open to it to decide the correctness of the order of the
Custodian General dated August 9, 1950 declining to interfere with the order of
the Custodian dated June 2, 1950. The question whether a certificate should
have been issued by the Central Government also was by implication barred as it
was the Custodian who had to restore the property after holding an enquiry into
the title of the evacuee when an application was made to him alongwith a
certificate issued by the Central Government and a certificate of that nature
by itself would be of no use.
Neither Haji Umar Kasam nor after his death
his heirs and legal representatives questioned 270 these orders before the High
Court under Article 226 of the Constitution or before the Supreme Court under
Article 32 or under Article 136 of the Constitution. They thus became final and
were beyond the jurisdiction of the civil court.
The decision of this Court in Fazalbhoy
Currimbhoy etc. v. Official Trustee of Maharashtra & Ors. etc.(1) is of no
assistance to the plaintiff since in that case the Court was not concerned with
any question of law similar to the one which has arisen for consideration in
this case. So is the decision of this Court in Dr. Rajendra Prakash Sharma v. Gyan
Chandra & Ors.(2) in which the evacuee concerned migrated to Pakistan in
the year 1967 after the insertion of section 7A of the Act.
There is a further hurdle in this case which
has arisen on account of the publication of the notification under section 12
of the Displaced Persons (Compensation and Rehabilition) Act, 1954 in respect of
the suit properties on June 1, 1955. On the publication of such notification,
the right, title or interest of Haji Umar Kasam in the suit properties became
extinguished and they vested absolutely in the Central Government free from all
encumbrances by virtue of section 12 (2) of the said Act. (see Basant Ram v.
Union of India)(3) It is perhaps for this reason that the Central Government
could not make any order on the petitions filed by Haji Umar Kasam or his heirs
for restoration of the suit properties to them after the publication of the
said notification.
In the circumstances, the High Court was
right in dismissing the appeal before it.
In the result the appeal fails and it is
dismissed.
There shall be no order as to costs. The
plaintiffs are also exonerated from the liability to pay the costs of the
defendant in the trial court. We, however, make it clear that the dismissal of
this appeal does not bar any other remedy available to the appellants in law.
H.L.C. Appeal dismissed.
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