Full Judgment Text
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PETITIONER:
ASSTT. CUSTODIAN, E.P. & ORS.
Vs.
RESPONDENT:
BRIJ KISHORE AGARWALA & ORS.
DATE OF JUDGMENT07/10/1974
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
MATHEW, KUTTYIL KURIEN
CITATION:
1974 AIR 2325 1975 SCR (2) 359
1975 SCC (1) 21
CITATOR INFO :
RF 1976 SC2237 (22)
RF 1979 SC 621 (28)
R 1980 SC1285 (28)
ACT:
U.P. Administration of Evacuee Property Ordinance 1949
s.2(c)(i) & (ii)-Scope of. Custodian first stated that the
property was not evacuee property and the respondent acted
on it-later acquired it as evacuee property-whether
Custodian bound by the earlier statement.
HEADNOTE:
The disputed property belonged to a Muslim who left India in
1942. After the partition of the country she migrated to
Pakistan in 1948, without coming to India. In 1962 she came
to India and sold the property to respondent no. 1 for a sum
of Rs. 42,000. Respondent no. 1 purchased the property
after ascertaining from appellant no. 1 Custodian of
Evacuee Property that the property was not evacuee property.
Later, however, the appellant passed an order declaring the
property to be evacuee property. On a petition by
respondent no. the Assistant Custodian General directed
that the property be handed over to the respondent no. and
the sale price deposited in the bank could be taken by the
Custodian. Since the Custodian did not issue a sale
certificate in his favour respondent no. I filed a writ
petition in the High Court which was dismissed by a single
Judge on the ground that the seller was an evacuee. The
Division Bench on the other hand held that the seller was
not an evacuee under s.2 (c)(i) of the United Provinces
Administration of Evacuee Property ordinance 1949 but
refused to consider whether the seller was an evacuee under
s. 2(c)(ii) thereof. According to s. 2(c)(i) of the ordi-
nance "evacuee" means, any person who leaves or has on or
after the 1st day of March 1947, left any place in the
United Provinces for any place outside the territories now
forming part of India while according to sub clause (ii)
"evacuee" means any person who is resident in any place now
forming part of Pakistan and is for that reason unable to
occupy, supervise or manage in person his property in the
United Provinces.
Allowing the appeal,
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(1) There could be no doubt that the seller was an evacuee
within the meaning in Teheran till she left for Pakistan
from there cl. 2(c)(i) would not apply but clearly cl.
2(c)(ii) would. There was no doubt that she was resident in
Pakistan after the partition of India and was, therefore
unable to occupy, supervise or manage her property in the
United Provinces. [361 G; C-D]
(2)The fact that the first respondent had made an inquiry
from the Assistant Custodian whether the property was
evacuee property and was told that it was not, did not make
any difference to this question. [362 A]
Howell v. Falmoth Boat Construction Co. Ltd., [1951] A.C.
837 at 845, Ebrahim Abbobaker and Another v. Tek Chand
Dolwani [1953] S.C.R. 691 Zafar Ali Shah v. Assistant
Custodian of Evacuee Property [1962] 1 SCR 749 referred to.
(3)Once it is declared that the property was evacuee
property, the sum of Rs. 42,000 paid by respondent no. 1 to
the seller and deposited in the bank could not also be
evacuee property. Either the one or the other could be
evacuee property. This sum must be held to be in trust for
the first respondent. [363 F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 170 of
1969.
Appeal from the Judgment and Order dated the 15th April,
1968 of the Allahabad High Court (Lucknow Bench) in Special
Appeal No. 258 of 1966.
360
G. L. Sanghi and S. P. Nayar, for the appellants.
C. P. Lal, for respondent No. 1.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-Mrs. Zohra Naqvi, the wife of a Police
official of the then United Provinces (now Uttar Pradesh)
was in Teheran in the year 1947 alongwith her husband. She
purchased a property from the Improvement Trust, Lucknow for
a sum of Rs. 6,400/-. It appears that Mrs. Naqvi did not
come to India at all till 1962 when she sold this property
to the sons of respondent No. 1 and one Mrs. Jain. On 24-6-
1949 the, United Provinces Administration of Evacuee
Property Ordinance, 1949 came into force.
This would be a proper stage at which the relevant
provisions of the Ordinance should be noticed. Under that
Ordinance "evacuee property" means any property in which an
evacuee has any right or interest, or which is held by him
under any deed of trust or other instrument, and an
"unauthorised person" means any person (whether empowered in
this behalf by the evacuee or otherwise) who, after the 15th
day of August, 1947, has been occupying, supervising or
managing the property of an evacuee without the approval of
the Custodian. Under section 5 of that Ordinance all
evacuee property situate in the United Provinces shall vest
in the Custodian.
We may now continue the narration of events. Before the
purchase of this property the 1st respondent had applied to
the 1st appellant to be informed whether the property in
question is an evacuee property and received a reply in the
negative. But on 25-3-1963 the 1st appellant passed an
order declaring the property as an evacuee property. It
should be noticed that an evacuee property automatically
vests in the Custodian under section 5 and the notification
under section 6 of the Ordinance is not a necessary
condition for such vesting. Section 6 only enables the
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Custodian to notify the properties which have already vested
in him under the Ordinance. On 7-3-1964 a notification was
issued acquiring the disputed plot under section 12 of the
Displaced Persons (Compensation & Rehabilitation) Act, 1954.
The 1st respondent filed a revision petition to the
Assistant Custodian General who directed that the property
should be handed over to the 1st respondent but that the sum
of Rs. 42,000/- being the sale price of the property, which
had been deposited with the Allahabad Bank, Lucknow could be
taken by the Custodian. The 1st respondent’s application to
the 1st appellant to issue a sale certificate in his favour
not having produced my result he filed a writ petition out
of which this appeal arises. The petition was dismissed by
a learned Judge of the Allahabad High Court but on appeal a
Division Bench of the High Court allowed the respondents’
appeal. This appeal has been filed on the basis of a
certificate granted by the High Court.
The learned Single Judge took the view that Mrs. Naqvi was
an evacuee because she had left Uttar Pradesh after the 1st
day of
361
March, 1947 to a place outside the territories of India.
The Assistant Custodian General had also taken a similar
view when the revision petition was filed by 1st respondent
before him. The Division Bench on the other hand took the
view that as Mrs. Nacivi had not left the United Provinces
on or after 1st March, 1947 but her husband had been posted
in Teheran since some time in 1942 and she had migrated to
Pakistan from Teheran after 1st March, 1947 it would not
make her evacuee under section 2(c)(i) of the Ordinance. It
was urged before the Bench that she would be an evacuee
under section 2(c)(ii) of the Ordinance but the Bench
refused to consider that question.
Thus the first question to be decided is whether Mrs. Naqvi
was an evacuee. As it is clear that she left the United
Provinces even before the 1st March, 1947 and was in Teheran
till she left for Pakistan from there, clause 2(c)(i) would
not apply to her but clearly clause 2(c)(ii) would apply to
her. There is no doubt that she was resident in Pakistan
after the partition of India and she was, therefore. unable
to occupy, supervise or manage here property in the United
Provinces. We do not think that the learned Judges of the
Division Bench who heard the appeal were right in refusing
to consider this aspect of the matter. The 1st respondent
in his writ petition clearly averred that as Mrs. Naqvi
migrated to Pakistan from Persia she could not be treated as
an evacuee. The order passed by the 1st appellant also pro-
ceeded on the basis that Mrs. Naqvi had migrated to Pakistan
from Persia in 1948 and was still living there. He also
referred to the fact that she had sent the money from
Teheran in 1947 and the possession of the property had been
taken by her son who came to India in 1948 for that purpose
specifically whereas Mrs. Naqvi continued to reside in
Pakistan till she came to India in 1962 for selling the plot
and that she was a Pakistani national, In the revision peti-
tion filed before the Assistant Custodian General by the 1st
respondent also it is admitted that Mrs. Naqvi migrated to
Pakistan from Teheran as was held by the Assistant
Custodian. Therefore, merely because in his order in
revision the Assistant Custodian General had relied upon
section 2(c)(i) to hold that Mrs. Naqvi was an evacuee that
cannot prevent the consideration of the fact whether she was
an evacuee under section 2(c)(ii).
There can be no doubt that she was an evacuee within the
meaning of that word under section 2(c)(ii) and the property
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in question was an evacuee property. The property
automatically vested in the Custodian by virtue of the
provision of section 5 of the United provinces Ordinance No.
1 of 1949. The U. P. Ordinance No. 1 of 1949 was repealed
by section 58 of the Central Administration of Evacuee
Property Act , 1950. The result of such repeal and
reenactment was that the property in question which had
vested in the Custodian continued to vest in him
notwithstanding the repeal of the Ordinance and there was no
need to take any action under section 7 of that Act. Such
action is necessary only in cases where the property had not
already vested under the provisions of the repealed
Ordinance. We do not consider that the fact that the 1st
respondent
362
had made an enquiry from the Assistant Custodian whether the
property in question was an evacuee property and was told
that it was not makes any difference to this question,
We do not think that the reliance placed on behalf of the
respondents on the decision in Robertson v. Minister of
Pensions(1) where Lord Denning observed
"I come therefore to the most difficult
question in the case. Is the Minister of
Pensions bound by the War Office letter ? I
think he is. The appellant thought, no doubt,
that. as he was serving in the army. his claim
to attributability would be dealt with by or
through the War Office. So he wrote to the
War Office. The War Office did not refers
into the Minister of Pensions. They assumed
authority over the matter and ass
ured the
appellant that his disability had been
accepted as attributable to military service.
He was entitled to assume that they had
consulted any other departments that might be
concerned, such as the Ministry of Pensions,
before they gave him the assurance. He was
entitled to assume that the board of medical
officers who examined him were recognised by
the Minister of Pensions for the purpose of
giving certificates as to attributability.
Can it be seriously suggested that, having got
that assurance, he was not entitled to rely on
it In my, opinion if a government department
in its dealings with a subject takes it upon
itself to assume authority upon a matter with
which he is concerned, he is entitled to rely
upon having the authority which it assumes.
He does not know, and cannot be expected to
know, the limits of its authority. The
department itself is clearly bound, and as it
is but an agent for the Crown, It binds the
Crown also, and as the Crown is bound, so are
the other departments, for they also are but
agents of the Crown. The War Office letter
therefore binds the Crown and, through the
Crown, it binds the Minister of Pensions. The
function of the Minister of Pension is to
administer the royal warrant issued by the
Crown, and be must so administer it as to
honour all assurances given by or on behalf of
the Crown."
can help the respondents. That decision has been
disapproved by the House of Lords in Howell v. Falmouth Boat
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Construction Co. Ltd.(2) Lord simonds referred to the
observation of Lord Denning in Robertson v. Minister of
Pensions(3) and observed :
"My Lords, I know of no such principle in our
law nor was any authority for it cited. The
illegality of an act is the same whether or
not the actor has been misled by an assumption
of authority on the part of a government
officer however high or low in the hierarchy.
I do not doubt that in criminal proceedings it
would be a material factor that the actor had
been thus misled if knowledge was a necessary
element of the offence, and in any case it
would have a bearing on the sentence to be
imposed. But
(1) [1949] 1 K. D. 227.
(2) [1951] A.C. 837 at 845.
(3) [1949] 1 K. D. 227.
363
that is not the question. The question is
whether the character of an act done in face
of a statutory prohibition is affected by the
fact that it has been induced by a misleading
assumption of authority. In my opinion the
answer is clearly No. Such an answer may make
more difficult the task of the citizen who is
anxious to walk in the narrow way; but that
does not justify a different answer being
given."
Lord Normand in dealing with this question
observed at page 849 after referring to the
statement of law by Lord Denning:
"As I understand this statement, the
respondents were, in the opinion of the
learned Lord Justice, entitled to say that the
Crown was barred by representations made by
Mr. Thompson and acted on by them from
alleging against them a breach of the
statutory order, and further that the
respondents were equally entitled to say in a
question with the appellant that there had
been no breach. But it is certain that
neither a minister nor any subordinate officer
of the Crown can by any conduct or represen-
tation bar the Crown from enforcing a
statutory prohibition or entitle the subject
to maintain that there has been no breach of
it.,,
We are. of opinion that the view taken by the House of Lords
is the correct one and not the one taken by Lord Denning.
We see nothing in the decisions of this Court in Ebrahim
Abbobaker and Another v. Tek Chand Dolwani (1) or Zafar Ali
Shah V. Assistant Custodian of Evacuee Property(2) which can
be of any help to the respondents. This appeal, therefore,
would have to be allowed.
But there is one further question to be decided. Once it is
declared that this property is an evacuee property it is
obvious that the sum of Rs. 42,000/- paid by the 1st
respondent to Mrs. Naqvi and deposited by her in the
Allahabad Bank, Lucknow cannot also be an evacuee property.
Either the one or the other can be an evacuee property.
This sum must he held to be in trust for the 1st respondent.
This principle is not disputed by Mr. G. L. Sanghi appearing
on behalf of the appellants. While the appeal would be
allowed there would be an order directing that the 1st
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respondent would be entitled to withdraw the sum of Rs.
42,000/- deposited by Mrs. Naqvi in the Allahabad Bank,
Lucknow along with any interest that might have accrued on
it. In the circumstances of this case there will be no
order ,as to costs.
Appeal allowed.
P.B.R.
(1) [1953] 1 S.C.R. 691.
(2) [1962] 1 S.C.R. 749.
364