Full Judgment Text
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PETITIONER:
NASIR AHEMED
Vs.
RESPONDENT:
ASSISTANT CUSTODIAN GENERAL, EVACUEE PROPERTY U.P., LUCKNOWA
DATE OF JUDGMENT28/03/1980
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
UNTWALIA, N.L.
CITATION:
1980 AIR 1157 1980 SCR (3) 248
1980 SCC (3) 1
ACT:
Administration of Evacuee Property Act, 1950-Notice
issued under, section 2(d)(iii)-Declaration made under
section 2(d)(i) and (ii)-Validity of.
HEADNOTE:
A notice under section 7 of the Administration of
Evacuee Property Act 1950, was Issued by the Assistant
Custodian of Evacuee Property to the appellant and his
brother (since deceased) stating that there was "credible
information in possession of the Custodian" that they were
evacuees under clause (iii) of section 2(d) of the Act and
calling upon them to show cause why they would not be
declared evacuees and their property as evacuee property The
Assistant Custodian eventually declared the appellant and
his brother as evacuees under clauses (i), (ii) & (iii) of
section 2(d) of the Act.
The Authorised Deputy Custodian, although he dismissed
the appellant’ appeal under section 24 of the Act, pointed
out that the ground based on clause (iii) of section 2(d)
was "very vague" and that the notice was "defective to that
extent". The Assistant Custodian General Evacuee Property
dismissed the appellant’s review petition and the High Court
dismissed the writ petition in limine.
Allowing the appeal,
^
HELD: The notice and the declaration that followed
stating that the appellant was an evacuee under clauses (i)
and (ii) of section 2(d) of the Act are invalid. [252E, F]
1. The notice called upon the appellant and his brother
to show cause why they should not be declared evacuees under
clause (iii) of section 2(d) and the ground mentioned in the
notice was also based on that clause, yet the Assistant
Custodian found that they were evacuees under clauses (i)
and (ii) as well. The Authorised Deputy Custodian held that
the ground given in the notice in support of the case based
on clause (iii) was vague and the notice was defective so
far as that ground was concerned, but that was the only case
the appellant was called upon to answer. The foundation of a
proceeding under section 7 is a valid notice and an inquiry
which travels beyond the bounds of the notice is
impermissible and without jurisdiction to that extent.
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[252D-E
2. From the facts stated above, it would appear that
the Authority concerned did not apply his mind to the
relevant material before issuing the notice. The same thing
is apparent from another fact. On November 29, 1952 the
Deputy Custodian dropped the proceeding seeking to declare
the appellant an intending evacuee and that on the same day
directed initiation of a proceeding under section 7. Section
7 required the Custodian to form an opinion that the
property in question was evacuee property within the meaning
of the Act
249
before any action under that section was taken. Under rule 6
of the Administration of Evacuee Property (Central) Rules
1950 the Custodian had to be satisfied from information in
his possession or otherwise that the property was prima
facie evacuee property before a notice was issued. On
November 29, 1952 no evidence was found to support a
declaration that the appellant was an intending evacuee.
There was no material on record to suggest on that very day
the authority had before him any evidence to justify
initiation of a proceeding to declare the appellant an
evacuee and his property as evacuee property. The notice
under section 7 appears to have been issued without any
basis. The Assistant Custodian General, who found no merit
in the reversional application preferred by the appellant,
overlooked these aspects of the case. [252H, 253 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 512 of
1979.
Appeal from the Judgment and order dated 18-5-1965 of
the Allahabad High Court in Civil Writ No. 2945 of 1964.
Danial Latifi and Mrs. Urmila Sirur for the Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by D
GUPTA, J.-A notice issued under section 7 of the
Administration of Evacuee Property Act, 1950 (hereinafter
called the Act) gives rise to this appeal brought on a
certificate granted by the Allahabad High Court on August
18, 1969 under Article 133(1)(a) of the Constitution of
India. Sub-section (1) of section 7 states: E
"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."
Rule 6 of the Administration of Evacuee Property
(Central) Rules, 1950 (hereinafter called the Rules) which
lays down the manner of inquiry under section 7 provides in
sub-rule (1) that where the Custodian is satisfied from
information in his possession or otherwise that any property
or an interest therein is prima facie evacuee property, he
shall cause a notice to be served in the prescribed form on
the person claiming title to such property or interest and
on any other person or persons whom he considers to be
interested in the property. Sub rule (2) of rule 6 says that
the notice "shall, as far as practicable, mention the
grounds on which the property is sought to be declared
evacuee property and shall specify the provision of the Act
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under which the person claiming any title to, or interest
in, such property is alleged 17-189 SCI/80
250
to be an evacuee". "Evacuee" has been defined in section
2(d) of the Act to include several categories of persons,
but for the purpose of this case it is necessary to refer
only to first three of them. The relevant part of the
definition is as follows:
"2(d) "evacuee" means any person,-
(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 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, super vised
or managed by any person or is being occupied,
supervised or managed by an unauthorised person,
or
(iii) who has, after the 14th day of August, 1947,
obtained, otherwise than by way of purchase or
exchange, any right to, interest in or benefit
from any property which is treated as evacuee or
abandoned property under any law for the time
being in force in Pakistan."
The appellant was declared an evacuee by the Assistant
Custodian (Judicial), Deoria. Having failed to have the
declaration set aside by the appellate and the revisional
authorities under the Act, the appellant moved the High
Court by a writ petition challenging the notice under s
section 7 and the subsequent proceedings based on it. This
appeal is from the order of the High Court dismissing the
writ petition in limine. The notice in question was issued
by the Assistant Custodian, Evacuee Property, Deoria, to the
appellant and his brother Bashir Ahmad on March 11, 1954
stating that there was "credible information in possession
of the Custodian" that they were evacuees under clause (iii)
of section 2(d) of the Act and calling upon them to show
cause why orders should not be passed declaring them
evacuees and their property as evacuee property. The notice
purports to have been issued in accordance with rule 6 which
requires a statement of the tactual grounds on which the
notice is based. The notice in this case
251
appears to be merely a copy of the prescribed form without
particulars. The ground stated in the notice reproduces only
what the form contains and that is as follows:
"Acquisition of any rights to, interest in or
benefit from any evacuee or abandoned property in
Pakistan, otherwise than by way of purchase or
exchange."
By this order dated December 14, 1955, the Assistant
Custodian (Judicial), Deoria, declared the appellant and his
brother evacuees under clauses (i), (ii) & (iii) of section
2(d) though in the notice issued it was alleged that the
information in possession of the Custodian was that they
were evacuees under clause (iii) only. An appeal preferred
under section 24 of the Act was dismissed by the Authorised
Deputy Custodian on August 30, 1963 who upheld the order of
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the Assistant Custodian (Judicial). The Authorised Deputy
Custodian, however, found that the ground based on clause
(iii) of section 2(d) of the Act was "very vague" and that
the notice was "defective to that extent". It has been
stated already that the notice issued under rule 6(1) was
based only on that ground and clauses (i) and (ii) of
section 2(d) were not mentioned at all in that notice. The
Assistant Custodian General, Evacuee Property, U.P. to whom
the appellant and his brother preferred a revision found no
merit in the applicants’ case. The Court dismissed in limine
the writ petition made by the appellant and his brother
Bashir Ahmad on the view that the order of the Assistant
Custodian General did not suffer from any error. Bashir
Ahmad died after the High Court had disposed of the writ
petition, and the appeal before us is by Nasir Ahmad alone.
It is necessary to state a few more facts. It appears
that several years before the present notice under section 7
of the Act was issued, on November 22, 1949 when the
Administration of Evacuee Property ordinance, 1949, replaced
by the Act in 1950 was in force, a notice was issued to the
appellant and his brothers including Bashir Ahmad by Deputy
Custodian of Evacuee Property, Deoria, Uttar Pradesh, .
alleging that they were transferring their movable and
immovable ; properties to Pakistan and stating that for this
reason they were being considered as evacuees and their
property was being treated as evacuee property. The notice
invited objections from them, if any, within 30 days. At the
instance of District Magistrate, Deoria, a similar notice
was issued to the appellant and his brothers by the
authority in District Chapra in the State of Bihar where
also they had some properties, asking them to show cause why
they should not be declared or intending evacuees. The Act
had then come into force and this notice was issued under
section 19 of the Act. Section 19 provided
252
for issue of notice to a person before declaring him an
"intending evacuees". The Act as originally passed contained
in clause (e) of section. 2 a definition of "intending
evacuee" as meaning a person who had transferred after
August 14, 1947 any of his assets to Pakistan. Section 19
was repealed and clause (e) of section 2 was deleted in
1953. On enquiry it was found that there was no reliable
evidence to justify a declaration that the appellant and his
brothers were intending evacuees and the Deputy Custodian,
Chapra, dropped the proceeding on May 24, 1952. On November
29, 1952 the Deputy Custodian, Deoria, also dropped the
proceeding started upon the notice issued by him, but on the
same day he initiated a proceeding under section 7 of the
Act against the appellant and his brother Bashir Ahmad that
ended in the declaration challenged in this appeal.
The facts stated above clearly show that the notice and
the declaration that followed are both invalid. The notice
called upon the appellant and his brother to show cause why
they should not be declared evacuees under clause (iii) of
section 2(d) of the Act and the ground mentioned in the
notice was also based on that clause, yet the Assistant
Custodian found that they were evacuees under clauses (i)
and (ii) as well. The Authorised Deputy Custodian held that
the ground given in the notice in support of the case based
on clause (iii) was vague and the notice was defective so
far as that ground was concerned, but that was the only case
the appellant was called upon to answer. The foundation of a
proceeding under section 7 is a valid notice and an inquiry
which travels beyond the bounds of the notice is
impermissible and without jurisdiction to that extent.
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Therefore the declaration that the appellant was an evacuee
under clauses (i) and (ii) of section 2(d) of the Act must
be held invalid.
Under rule 6 the notice under section 7 must be issued
in the prescribed form and contain the grounds on which the
property is sought to be declared evacuee property. As
stated earlier, the notice that was issued in this case
merely reproduced the form without mentioning the
particulars on which the case against the appellant was
based. It was. essential to state the particulars to enable
the appellant to answer the case against him. Clearly
therefore the notice did not comply with rule 6 and could
not provide a foundation for the proceedings that followed.
What is said in the preceding paragraph makes it plain
that the authority concerned did not apply his mind to the
relevant material before issuing the notice. The same thing
is apparent from another fact. It has been stated that on
November 29, 1952 the Deputy Custodian, Deoria, dropped the
proceeding seeking to declare the appellant
253
an intending evacuee and that on the same day he directed
the initiation of a proceeding under section 7. Section 7
required the Custodian to form an opinion that the property
in question is evacuee property within the meaning of the
Act before any action under that section is taken. Also,
under rule 6 the Custodian has to be satisfied from
information in his possession or otherwise that the property
is prima facie evacuee property before a notice is issued.
On November 29, 1952 no evidence was found to support a
declaration that the appellant was an intending evacuee.
There is no material on record to suggest that on that very
day the authority had before him any evidence to justify the
initiation of a proceeding to declare the appellant an
evacuee and his property as evacuee property. The notice
under section 7 thus appears to have been issued without any
basis. The Assistant Custodian General who found no merit in
the revisional application preferred by the appellant
overlooked these aspects of the case. We are therefore
unable to agree with the High Court that the Assistant
Custodian General’s order did not suffer from any error.
We allow this appeal and quash the notice issued to the
appellant on March 11, 1954 and all subsequent proceedings
based on it. The respondents have not appeared to contest
the appeal; there will be no order as to costs.
P.B.R. Appeal allowed .
254