Full Judgment Text
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PETITIONER:
BHANWAR LAL AND ANR.
Vs.
RESPONDENT:
REGIONAL SETTLEMENT COMMISSIONER, JAIPUR, CUM-CUSTODIAN OF
DATE OF JUDGMENT:
06/05/1965
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
SUBBARAO, K.
BACHAWAT, R.S.
CITATION:
1965 AIR 1885 1966 SCR (1) 163
ACT:
Administration of Evacuee Property Act, 1950 (31 of
1950)--Notice under s. 7(1) to deceased Mortgagees-Whether
sufficient--No Separation proceedings--Rights of Custodian.
HEADNOTE:
The names of the predecessors of the appellants were
recorded as mortgagees in the villages records in respect of
a property, owned by persons who later migrated to Pakistan.
The Custodian of Evacuee Property issued a notice under s.
7(1) of the Administration of Evacuee Property Act, 1950 to
these persons and the predecessors of the appellants stating
that the predecessors of the appellants were in illegal
possession of the property and to show cause why the
property should not be declared as evacuee property. The
notice was affixed at a conspicuous place in the village.
It could not be served on the predecessors of the appellants
who had died long before the issue of the notice. Since no
objections were filed, the Custodian declared the property
as evacuee property. No action was also taken to separate
the interest of the evacuees from those of the mortgagees
under the Evacuee Interest (Separation) Act. The appellants
filed a writ petition in the High Court for quashing the
later order declaring the property as evacuee property and
to restrain the respondent to interfere with their
possession. The High Court dismissed the petition holding
that issue of the notice to the predecessors of the
appellant, was sufficient compliance tinder s. 7(1) of the
Act. In appeal to this Court.
HELD : The Custodian can form his opinion about any property
having become evacuee proPerty on the basis of information
available to him, and issue notice to persons interested
also on the basis of such information. He is not expected
to hold a general. inquiry of the persons interested in the
alleged evacue property. lie had complied with the
requirements of s. 7(1) of the Act to give notice to the
predecessors of the appellants who resided at -some other
place and about whom he could have no knowledge whether they
were alive or not. The notice was,however, ineffective and
not good as the predecessors of the appellants had died long
before. [165 D-H]
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Abdul Hokim Khan v. The Regional Settlement Commissioner,
[1962] 1 S.C.R. 531, followed.
The impugned order did not affect the rights of the
appellants, if any as mortgagees. The non-issue of the
notice to the appellants therefore was of no consequence as
the order subsequently passed without the issue of the
notice to them did not affect their interest. By virtue of
the latter order, the rights of the evacuees in the property
suit vested in the Custodian and those right:, consisted of
the rights of equity of redemption. This means that the
Custodian held the property subject to the mortgagee rights,
if any, of the appellants. [166 A-B, E-F]
So long as proper action under the Evacuee Interest
(Separation) Act was not taken to separate the interest of
the evacuees and the appellants
164
who claimed to be the mortgagee the Custodian could not take
any action against the appellants or their tenants who were
said to be in possession of the property in suit. [167 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 244 of 1965.
Appeal bY special leave from the judGment and order dated
April 7, 1964 of the Rajasthan High Court in D.B. Writ
Petition No. 192 of 1960.
B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for the
appellants.
D. R. Prem and B. R. G. K. Achar, for respondent No. 1.
The Judgment of the Court was delivered by
Raghubar Dayal, J. Ibrahim and Khurshed, brothers, sons of
Paneh Ali, Isak and Baggu, sons of Jawaye, owned Khasra No.
26, measuring 20 bighas, at village Alipore, Tehsil
Hanumangarh. They migrated to Pakistan. The Assistant
Custodian of Evacuee Property, Hanumangarh, issued notice
under s. 7(1) of the Administration of Evacuee Proper Act.
1950 (Act XXXI of 1950) hereinafter called the Act, to these
persons and also to Hazari, son of Chuni and Magha, son of
Kana, stating therein that Ibrahim and others had gone to
Pakistan and that Hazari and Magha were in :Illegal
possession of the land. They were all required to show
cause why the land be not declared evacuee property. The
notice was affixed at a conspicuous place in village
Alipore. The notice could not be served on Hazari and Magha
as they had died long berore the issue of notice in 1955.
No objections were filed and on April 7, 1955 the Assistant
Custodian declared Ibrahim, Khurshed, Isak and Baggu
evacuee$ and the aforesaid property evacuee property.
Bhanwar Larson of Hazari and Rati Ram, grandson of Magha,
filed a petition under Art. 226 of the Constitution in the
Rajasthan High Court for the quashing of the order dated
April 7, 1955 and for restraining the Regional Settlement
Commissioner, Jaipur, the Managing Officer of acquired
Evacuee Property, Ganganagar, the Tehsildar, Hanumangarh,
from interfering with their possession over the property
declared to be evacuee property. They alleged that one
Paneh Mohamad, father of Ibrahim and Khurshed, had mortgaged
this property to Hazari and Magha in 1931, that the
mortgagees had been in possession of the property, that they
did not get any notice of the proceedings taken by the
Assistant Custodian and were informed of his order in 1959
by their tenants
165
in the land in suit when the allottees of the land were
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taking steps to recover possession. The, writ petition was
dismissed by the High Court which held that the issue of
notice to Hazari and Magha was sufficient compliance with
the requirements of sub-s. ( 1 ) of s. 7 of the Act as the
Custodian had not to make any preliminary enquiry about the
persons who might be interested in the property of the
alleged evacuee. It is against this order that Bhanwar Lal
and Rati Ram have filed this appeal by special’ leave.
Section 7 (1) of the Act reads
"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."
The Custodian can form his opinion about any property having
become evacuee property on the basis of information
available to him. It has been so held in Abdul Hakim Khan
v. The Regional Settlement Commissioner(1). He can issue
notice to the persons interested also on the basis of
information available to him. He is not expected to hold a
general inquiry of the persons interested in the alleged
evacuee property. In the present case it appears that the
village records about the land in suit which is
agricultural. recorded the names of Hazari and Magha as
mortgagees and that the Assistant Custodian could consider
them to be the persons interested. He could have had no
information whether these mortgagees who resided at some
other place were alive or not. He complied with the
requirements of sub-s. (1) of s. 7 to give a notice to
Hazari and Magha. The notice however was ineffective and
not good as Hazari and Magha had died long before. The
question then arises whether the further Proceedings on the
basis of this notice could affect the, interests of the
mortgagees.
The interest of Ibrahim and others, the evacuees of the pro-
perty in suit which was under mortgage, consisted of the
equity of redemption in the property. It is this interest
of theirs which could be declared evacuee property and the
order of the Assistant Custodian dated April 7, 1955,
declaring the aforesaid property to be evacuee property,
really amounts to an order declaring the
(1) [1962] 1 S.C.R. 1531.
166
right of Ibrahim and others in the equity of redemption
evacuee property. The order cannot affect the mortgagee
rights as lbrahim and others had no interest in the
mortgagee rights.
It follows that the impugned order does not affect the
rights of the appellants if any as mortgagees. The non-
issue of the notice to the appellants therefore is of no
consequence as the order subsequently passed without the
issue of the notice to them does not affect their interest.
Reference in this connection may again be made to Abdul
Hakim Khan’s Case(1). In that case a number of persons had
shares in certain property. Some of them migrated to
Pakistan. The notice under s. 7(1) was issued to one of
those persons who had not migrated to Pakistan. The
Custodian declared the property of those who had migrated to
be evacuee property and specified their share in the
property. The other co-shares except the one to whom the
notice was issued, challenged the validity of the order
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passed under s. II of the Evacuee Interest (Separation) Act,
1951 (Act LXIV of 1951), vesting the entire property in the
Custodian. This Court held that the, objectors could not
challenge the validity of the order under s. 7 of the Act as
it did not affect their rights in the property. Similarly
it can be said that the appellants in this case cannot
challenge the validity of the proceedings on the notice
issued by the Assistant Custodian and the order of the
Assistant Custodian the property in suit to be evacuee
property when that order does not affect the mortgagee
rights of the appellants.
By virtue of the order dated April 7, 1955, this rights of
the ,evacuees in the property in suit vest in the Custodian
and those rights, is stated earlier, consist of the rights
of equity of redemption. This means that the Custodian
holds the property subject to the mortgagee rights, if any,
of the appellants.
It has been conceded by Mr. Prem appearing for the respon-
dents, that no action has been taken under the Evacuee
Interest (Separation) Act, 1951. Section 10 of this Act
empowers the competent officer to take all necessary
measures for the purpose of separating the interest of the
evacuees from those of the claimants in any composite
property which, inter alia, means any property which or in
which an interest has been declared to be evacuee property
or has vested in the Custodian under the Act and in which
the interest of the evacuee is subject to mortgage in any
form in favour of a person not being an evacuee. It is only
after such separation of the interests of the evacuee and
(1) [1962] I S.C.R. 531.
167
the claimants in the composite property that the evacuee
interest -gets vested in the Custodian free from all
encumbrances. It follows that so long as proper action
under the Evacuee interest Separation Act is not taken to
separate the interest of the evacuees and the appellants who
claim to be mortgagees, the Custodian cannot take any action
against the appellants or their tenants who are said to be
in possession of the property in suit.
The result then is that we dismiss the appeal and confirm
the order of the Court below with respect to the validity of
the order of the Assistant Custodian dated April 7, 1955.
We allow the appeal with respect to the prayer for
restraining the Regional Settlement Commissioner and others,
respondents 1 to 3, from interfering with the possession of
the appellants or their tenants. We order the parties to
bear their own costs throughout.
Appeal partly allowed,
168