Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3
PETITIONER:
DR. ZAFAR ALI SHAH AND OTHERS
Vs.
RESPONDENT:
THE ASSISTANT CUSTODIAN OF EVACUEE PROPERTY, JHANSI AND
DATE OF JUDGMENT:
04/04/1961
BENCH:
SARKAR, A.K.
BENCH:
SARKAR, A.K.
SINHA, BHUVNESHWAR P.(CJ)
DAS, S.K.
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1967 AIR 106 1962 SCR (1) 749
ACT:
Evacuee Property-Declaration of-If could be made without
issuing of notice-Administration of Evacuee Property Act,
1950 (31 of 1950), S. 7-Displaced Persons (Compensation and
Rehabilitation) Act, 1954 (44 of 1954), S. 12 -Constitution
of India, Art. 19(1) (f).
HEADNOTE:
The Custodian of evacuee properties made a declaration that
two houses were evacuee properties. Notice under s. 7 of
the Administration of Evacuee Property Act, 1950, which
initiated the proceedings resulting in the declaration had
been served on two persons as owners. These persons did not
appear and contest the proceedings. The petitioners claimed
to be entitled to certain shares in the houses. No notice
under s. 7 Of the Act had at any time been served on them
and they had never been declared evacuees. One of the
petitioners filed an appeal under the Act to the Custodian-
General which was dismissed as time barred. The petitioners
then filed a petition under Art. 32 Of the Constitution of
India on the ground that they were being wrongfully deprived
of their shares in the houses.
Held, that as no notice under s. 7 of the Act had been ser-
ved on the petitioners, their shares in the houses had never
become evacuee property nor vested in the Custodian. The
petitioner who had filed the appeal did not thereby lose his
rights in the houses either as the appeal did not decide any
question as to such rights but was dismissed on the sole
ground that it was filed beyond the time prescribed for it.
Strictly, no appeal by him lay as he was not a party to the
proceeding resulting in the declaration.
Section 12 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954, only affects the rights of an
evacuee in his property. The notification made under that
section did not have the effect of extinguishing the
petitioners’ rights in the houses as they had never been
declared evacuees.
Ebrahim Aboobaker v. Tek Chand Dolwani, [1953] S.C.R. 691,
referred to.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 96 of 1959.
Petition under Art. 32 of the Constitution of India for
enforcement of Fundamental Rights.
750
S. Shaukat Hussain and P. C. Aggarwala, for the
petitioners
N. S. Bindra, R. H. Dhebar and T. M. Sen, for the
respondents.
1961. April 4. The Judgment of the Court was delivered by
SARKAR, J.-This is a petition raising a question of
violation of the fundamental right to hold property
guaranteed by Art. 19 (1) (f) of the Constitution. It
arises out of an order made under the Administration of
Evacuee Property Act, 1950, declaring two houses to be
evacuee property.
What had happened was that sometime in September, 1951, two
notices were issued under s. 7 of the Act addressed
respectively to Nusrat Ali and Fateh Ali, requiring them to
show cause why they should not be declared evacuees and
their properties, being the two houses in dispute, to be
evacuee property. Neither of these two persons having
appeared, a declaration was made by the Custodian on January
10, 1952, under that section that Nusrat Ali and Fateh Ali
were evacuees and the houses were evacuee property. Upon
such declaration the houses vested in the Custodian under
the provision of s. 8 of the Act and he took possession of
them. These houses were the property of one Khadim Ali who
had never been declared an evacuee and had died on or about
October 1, 1950, leaving three sons and five daughters, who
thereupon became entitled to them in certain shares. Nusrat
Ali and Fateh Ali were two of the sons of Khadim Ali. The
Petitioners are his other son and two of his daughters. No
notice under s. 7 had at any time been issued to them nor
were they ever declared to be evacuees. These facts are not
in dispute.
The Petitioners contend that they have been wrongly deprived
of their rights in the houses by the action of the
Custodian. They say that for a, long time they had no
knowledge of the proceedings taken under the Act in respect
of the houses and when they came to know of the order of the
Custodian, they took various steps to protect their rights
but were unsuccessful.
751
One of such steps appears to have been an appeal preferred
by the male petitioner on behalf of all the petitioners to
the Custodian-General against the order of January 10, 1952.
On this appeal being rejected, they moved this Court by the
present petition.
The question is whether the Custodian was entitled to
declare the entirety of the two houses evacuee property and
deprive the petitioners of their rights in them. It is well
established and not disputed, that no property of any person
can be declared to be evacuee, property unless that person
had first been given a notice under B. 7 of the Act: see
Ebrahim Aboobaker v. Tek Chand Dolwani (1). Admittedly, no
such notice had been issued to the petitioners. Their
interest in the houses, therefore, could not have vested in
the Custodian.
Learned counsel for the respondents, the officers concerned
with evacuee properties, concedes that so far as the female
petitioners were concerned, their interest could not in any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
way be affected by the order made under s. 7 of the Act. He
however contends that the male petitioner, Zafar Ali, having
filed the appeal to the Custodian-General against the order
of January 10, 1952, he personally at least, is bound by the
order dismissing the appeal, that order being a quasi-
judicial decision. It is said that be cannot, there-fore,
maintain this petition.
We do not think that this contention is well founded. Zafar
Ali was not a patty to the proceeding in which the order in
dispute had been made. Strictly speaking, no appeal by him
against that order lay or was necessary. Then again the
appeal did not decide any question as to the right of Zafar
Ali to the houses for, it was dismissed on the sole ground
that it bad been filed beyond the time prescribed for it.
There was no judicial determination by the Custodian-General
of any fact affecting Zafar Ali’s right in the houses. If,
as was conceded, Zafar Ali’s share in the houses could not
vest in the Custodian without due notice to him, then we are
unable to appreciate how the position becomes different
because Zafar Ali filed an appeal
(1) [1953] S.C.R. 691, 702.
752
which was dismissed as time barred and which he need never
have filed at all. The order of January 10, 1952, was
without jurisdiction so far as Zafar Ali’s share in the
house was concerned, and it remained so in spite of the
appeal.
In our view, the appeal furnishes no answer to the claim
made in the petition. As no notice had been issued to the
petitioners under s. 7, their interest in the two houses
never vested in the Custodian. The acts of the Custodian in
so far as they deprive the petitioners of their property
cannot be upheld.
It was also said on behalf of the respondents that the
properties had already been acquired under the Displaced
Persons (Compensation and Rehabilitation) Act, 1954, and
therefore the petitioners had, no longer, any claim to them.
Sub-section (2) of s. 12 of this Act provides that "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." It was said that a notification mentioned in
this section had been issued. It seems to us that this
section does not affect the petitioners’ rights. It only
affects the rights of an evacuee which the petitioners, on
the admitted facts, are not.
We may mention here that the petitioner Zafar Ali claims
that his father left a will giving him a larger share in the
houses than he would have got on intestacy. We are not
concerned in this case with his rights under the will, if
any, and say nothing about them.
In the result, we allow the petition and set aside the order
of January 10, 1952, in so far as it affected the rights of
the petitioners in the properties concerned. There will be
no order as to costs.
Petition allowed.
753