Full Judgment Text
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PETITIONER:
DR. RAJENDRA PRAKASH SHARMA
Vs.
RESPONDENT:
GYAN CHANDRA & ORS.
DATE OF JUDGMENT27/03/1980
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
PATHAK, R.S.
CITATION:
1980 AIR 1206 1980 SCR (3) 207
1980 SCC (4) 364
CITATOR INFO :
D 1983 SC 259 (21)
ACT:
Administration of Evacuee Property Act 1950 (31 of
1950). Sections 2(d), 7, 7A 8, 28 and 46 & Displaced Persons
(Compensation and Rehabilitation) Act 1954 (44 of 1954)
Sections 2(c), 22, 23, 24 and 27 Property acquired under
section 12 and auctioned under section 20 of 1954 Act-
Property nor declared by Custodian as evacuee property under
section 7 of 1950 Act-Jurisdiction of Civil Court to
determine question whether property declared evacuee
property-Section 46 of 1950 Act whether a bar-Section 27 of
1954 Act-Whether applicable.
HEADNOTE:
The appellant field a suit in the civil court alleging
that the house in dispute was owned by one Abdul Rashid and
that he had let out the house to his father who was paying
rent to him, that Abdul Rashid had migrated to Pakistan and
the house was declared evacuee property. Later, the house
was put to auction on January 29, 1969 under section 20 of
the Displaced Persons (Compensation and Rehabilitation) Act,
1954, was purchased by him and that the sale certificate was
also issued. He further pleaded that the respondents-
defendants had also filed suit No. 67 of 1970 for ejected
and arrears of rent against his father, that the suit was
decreed on May 10, 1971, and that in pursuance of that
decree they tried to dispossess him, and as he was not
impleaded in the ejected suit, he was not bound by that
decree. The appellant claimed a declaration of his title to
the property and prayed for perpetual injunction restraining
the defendants-respondents from dispossessing 13: him in
execution of the ejected decree.
The respondents resisted the suit, denied that the
property in dispute was ever declared evacuee property or
that it was ever acquired under the provisions of the Act of
1954, and asserted that the appropriate authorities never
passed any order under section 7 of the Administration of
Evacuee Property Act, 1950 declaring the property to be
evacuee property. The 1st defendant further pleaded that
Abdul Rashid had only 1/6th share in the house in question
which was purchased by his father and therefore the
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respondents are exclusive owners of the House. The said
Abdul Rashid had migrated to Pakistan in the year 1967 long
after he had transferred his interest and share in the house
in question and that the father of the appellant had in
collusion with the Custodian Department prepared fictitious
proceedings relating to the sale of the house in question,
that the Custodian Department had no jurisdiction to declare
the property was evacuee property, much less could they sell
it under the Act of 1954, and that the auction if any held,
was nullity having been brought about by misrepresentation
and fraud.
The trial court held that Abdul Rashid was not the
owner of the house in question, that the entire proceedings
taken by the Custodian Department were illegal and without
jurisdiction and the plaintiff did not acquire any title by
virtue of the sale held by the Authorities under the
Displaced Persons (Compensation and Rehabilitation) Act of
1954, and accordingly dismissed the suit.
208
On appeal, the Additional District Judge, affirmed the
findings of the trial court and held that the jurisdiction
of the Civil Court was not burred by section 46 of the
Administration of Evacuee Property Act, 1950 and that it
could go into the question whether or not the matter had
been adjudicated upon by the authorities under that Act. It
found that no inquiry, as contemplated under section 7 of
the 1950 Act was held and no Notification was issued by the
Authorities under that Act, declaring the suit property to
be evacuee property. It further held that Abdul Rashid had
no title or interest, whatever, in the house in question
after July 31, 1953, when, in accordance with the decree of
the Civil Court in partition Suit No. 289 of 1953, Phool
Chand had deposited the value of 1/6th share of Abdul Rashid
in this property.
The High Court dismissed the Second Appeal preferred by
the appellant affirming the concurrent findings of the court
below. It also held that Abdul Rashid was in India much
after the repeal of UP ordinance No. 1 of 1949 and
consequently there was no question of the property vesting
automatically in the Custodian under the aforesaid
ordinance.
In the appeal to this court it was contended on behalf
of the appellants: (1) in view of the decision in Custodian
of Evacuee Property, Punjab & Ors v. Jatran [1967] 3 SCR 736
and section 46 of the 1950 Act, the Civil Court had no
jurisdiction to adjudicate upon the question whether the
suit property or any right or interest therein is or is not
evacuee property, (2) the sale of the suit property had been
effected in favour of the appellant under section 20 of the
1954, Act, after it had been acquired by the Central
Government under section 12 of that Act, free from all
encumbrance and formed part of the compensation pool, (3)
the order of its acquisition passed under section 12, and
its sale under section 20 of the 1954 Act had become final
and conclusive, the respondents could not be allowed to go
behind those orders and question their finality on the
ground that the property has never been evacuee property
vesting in the Custodian, because section 27 of the 1954 Act
bars the jurisdiction of the Civil Court to go into this
question
Dismissing the appeal,
^
HELD: 1 (i) Section 46 will not bar the jurisdiction of
the Civil Court where the Custodian has never declared the
property as evacuee property after taking proceedings under
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section 7 of the 1950 Act. [219 C]
Custodian of Evacuee Property, Punjab & ors. v. Jafran
Begum [1967] 3 S.C.R. 736 referred to and explained.
(ii) Form a conjoint reading of section 7 & 8 of the
1950 Act it is clear that the making of a declaration after
inquiry under section 7 that the property is ’evacuee
property’ is a sine qua non for giving the Custodian
dominion over the property. If no proceeding is taken under
section 7, there CHD be no vesting of the property in the
Custodian. [216 C]
Fazalbhoy v. Official, Trustee of Maharashtra [1979] 2
S.C.R. 699 at p. 712 referred to.
In the instant case Abdul Rashid was throughout
residing in India and personally managing the suit property
And collecting its rent till 1963. He migrated or went away
from India for good some time in 1963 or thereafter.
Therefore, if the Custodian had not taken any proceedings
under section 7
209
of the 1950 Act to declare the suit property as evacuee
property before the 7th day of May, 1954, and no such
proceedings were pending on May 7, 1954, the property of
Abdul Rashid could not be declared evacuee property under
the Act, the poor of the Custodian to do so having been
terminated by section 7A. [217 B-C]
(iii) It was for the plaintiff-appellant to show by
producing relevant notifications or other documentary
evidence that the Custodian had taken proceedings and
declared the suit property to be evacuee property in
Accordance with the provisions of section 7 or that such
proceedings had been initiated earlier and were pending on
the 7th day of May, 1954. Despite ample opportunity granted
to the plaintiff he did not produce any such documentary
evidence in the courts below. All that he showed was that
Rehabilitation Authorities had purporting to act under the
1954 Act sold the suit property to him and issued the sale
certificate in his favour on April 1st, 1969. [217 D]
(iv) Clauses (a), (c) and (d) of section 46 postulate
that at the time when the question whether or not a property
is evacuee property comes for adjudication the power of the
Custodian-General or the Custodian under this Act of 1950 to
determine the question is subsisting. That is to say, if at
the point of time when the question arises, the power of the
authorities constituted under this Act to adjudicate that
question stands terminated or extinguished by the operation
of section 7A of the 1954 Act, none of the clauses (a), (c)
and (d) of section 46 will bar the jurisdiction of the Civil
Court to determine that question, which had not been decided
by the Custodian during the period he had the power to
determine it. [219 P-G]
(v) Section 28 has no application to the facts of the
instant case because no order made by any of the authorities
mentioned in that section is being called in question.
Section 46, also, does not come in the way because no
proceedings under section 7 of the 1950 Act to declare the
suit house ns evacuee property can be taken by the Custodian
against Abdul Rashid. [219 H220 A]
(vi) No notification under Sub-section (3) of section 7
published in the official Gazette has been placed on the
record Nor was it shown that any proceedings initiated under
section 7 of the Act to declare it evacuee property were
pending on MAY 7, 1954, and the question of saving those
proceeding under the Proviso to section 7A does not arise.
[220 Bl
In the instant case Qazi Abdul Rashid was throughout
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resident of India till 1963 and was personally managing the
suit house and collecting rent of it from the tenant. After
May 7, 1954, therefore, the Custodian had no jurisdiction
under the 1950 Act to declare the suit house as evacuee
property. The jurisdiction of the Courts below to go into
this question was thus not barred by anything in sections 28
and 46 of the 1950 Act. [220 C]
2(i) Section 20 of the 1954 Act confers powers on the
managing officer to transfer any property out of the
compensation pool by sale or in any other manner indicated
in clauses (b) to (e) of that Section. The necessary
prerequisite for sale is that the property must have been
declared under section 7 of the 1950 Act to be evacuee
property by the Custodian or it must be evacuee property
under the deeming provisions of any law which may be
applicable to the case of the evacuee. In other words, only
that property could be acquired
210
under section 12 and form part of the compensation pool
which satisfies the definition of "evacuee property" even in
section 2(c) of the 1954 Act. If the property was never
evacuee property, as defined in section 2(c), it does not
legally form part of the compensation pool and, therefore,
cannot be disposed of under section 20 or the Rules framed
under this statue. [220 C, 221 H-222 B]
(ii) The necessary prerequisite for acquiring property
under section 12 is that it must be ’evacuee property’ as
defined in section 2(c) of the 1954 Act. In the absence of
this essential prerequisite the Central Government is not
competent to acquire, that property under this section for
throwing it into the compensation pool. This prerequisite or
condition precedent, was lacking in the instant case. No
notification published in the official Gazette either under
sub-section (1) or sub-section (3) of section 12 appears to
have been brought on the record of this case, nor attention
drawn to any such notifications. [221 F-G]
3. Section 27 of the 1954 Act is not’ attracted because
the plaintiff, who filed the original suit and is now
appellant in this appeal, is not questioning the finality of
the order of the sale alleged to have been made by the
managing officer. It is the defendant-respondents who are
resisting the plaintiff’s claim on the ground that the sale
is a nullity. It could not be made under this Act of 1954
for the reason that it was never declared evacuee property
under section 7 of the Act and thus never formed part of the
compensation pool. The words "under this Act" occurring in
section 27 are significant. They show that those orders
which are not made by any officer or authority in accordance
with the provisions of this Act, but outside the provisions
of this Act in excess of jurisdiction, can be called in
question in the civil court. The language of section 27 is
not as wide as that of section 46 of the 1950 Act. [222 G-
223 A]
4. As Qazi Abdul Rashid remained in India continuously
upto 1963, no question of automatic vesting under the U.P.
Ordinance No. 1 of 1949 could arise. That ordinance was not
applicable to him at all. [214 H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 424 of
1979
Appeal by Special Leave from the Judgment and order
dated 23-8-1978 of the Allahabad High Court in Second Appeal
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No. 34/78. D. R. Gupta and B.V. Desai for the Appellant. B.
R. Agarwala for the Respondents. The Judgment of the Court
was delivered by SARKARlA, J.-This appeal by special leave
is directed against a judgment, dated August 23, 1978,
whereby a learned Single Judge of the Allahabad High Court
dismissed the appeal of the appellant herein. It arises out
of these circumstances. The plaintiff, Dr. Rajendra Prakash
Sharma, is the appellant before us. He filed a suit in the
court of the Civil Judge, Bulandshahar, alleging that the
house in dispute was owned by one Qazi Abdul Rashid, son of
Qazi Abdul Razak. Qazi Abdul Rashid had let out this house
to Dr. Bhu Deo Sharma, father of the appel-
211
lant, who was paying rent for the same to Qazi Abdul Rashid.
He further alleged that the said Abdul Rashid had migrated
to Pakistan and the house in dispute was declared evacuee
property under the then existing law. Later on, it was put
to auction on January 29, 1969 under Section 20 of the
Displaced Persons (Compensation & Rehabilitation) Act, 1954,
and was purchased by the plaintiff for a consideration of
Rs. 1,000/-, and the appellant was declared purchaser of
this property with effect from April, 1, 1969. Sale
Certificate, dated March 19, 1969, was also issued in his
favour.
He further pleaded that the defendants-respondents had
also filed Suit No. 67 of 1970 for ejectment and arrears of
rent against the appellant’s father, Bhu Deo Sharma. The
suit was decreed on May 10, 1971, and that in pursuance of
that decree they were trying to dispossess the plaintiff-
appellant He further stated that since he was not impleaded
in the ejectment suit, he was not bound by that decree. On
these facts, the plaintiff-appellant claimed a declaration
of his title to the property in question and further prayed
for a perpetual injunction restraining the defendants from
dispossessing him in execution of the Ir said decree
obtained by the defendants in Suit No. 67 of 1970.
The defendants resisted the suit. They denied that the
property in dispute was ever declared evacuee property or
that it was ever acquired under the provisions of the Act of
1954. They asserted that the appropriate authorities never
passed any order under Section 7 of the Administration of
Evacuee Property Act declaring this property to be evacuee
property. The contesting defendant, Gyan Chandra, further
pleaded that Qazi Abdul Rashid had only 1/16th share in the
house in question which was purchased by the defendants
father (since deceased) and, therefore, the defendants are
exclusive owners of the house. Gyan Chandra further alleged
that Qazi Abdul Rashid had migrated to Pakistan in the year
1967, long after he had transferred his interest and share
in the house in question; that Dr. Bhu Deo Sharma, father of
the appellant had in collusion with the Custodian
Department, prepared fictitious proceedings relating to the
sale of the house in question; that the Custodian Department
had no jurisdiction to declare the property in suit as
evacuee property, much less could they sell it under the Act
of 1954. According to the defendant, the auction if any
held, was a nullity having been brought about by
misrepresentation and fraud.
The trial court held that Qazi Abdul Rashid was not the
owner of the house in question; that the entire proceedings
taken by the Custodian Department were illegal and without
jurisdiction and the plaintiff did not acquire any title by
virtue of the sale held by the Authorities
212
under the Displaced Persons Compensation and Rehabilitation)
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Act (No. 44 of 1954) (for short, called the 1954 Act). In
the result, the trial court dismissed the plaintiff’s suit.
On appeal, the Additional District Judge, Bulandshahar
affirmed the findings of the trial court. He held that the
jurisdiction of the civil n court was not barred by section
46 of the Administration of Evacuee Property Act (No. 31 of
1950) (hereinafter called the 1950 Act) to go into the
question whether or not the matter had been adjudicated upon
by the Authorities under that Act. It found that no inquiry,
as contemplated under Section 7 of Act 31 of 1950 was held
and no Notification was issued by the Authorities under that
Act, declaring the suit property to be evacuee property. It
held that Abdul Rashid had no title or interest, whatever,
in the house in question after July 31, 1953, when, in
accordance with the decree of the Civil Court in the
partition Suit No. 289 of 1953, PhoolChand had deposited Rs.
343/ regarding the value of 1/6th share of Abdul Rashid in
this property. on the deposit of that amount, Phool Chand
and his sons had become sole’ owners of the property in
question and the plaintiff’s father became their tenant of
the suit property. It was in that capacity that a decree for
ejectment was passed against him and in favour of the
respondents. In the result, it was held that since the
property had never been declared evacuee property after
following the prescribed procedure under the Act and the
Rules framed thereunder, the rights of the defendants
respondents remained unaffected by the’ auction held by the
Custodian Department and the consequent issue of the sale
certificate in favour of the plaintiff-appellant.
The High Court affirmed the concurrent findings of the
two courts below and dismissed the Second Appeal preferred
by the plaintiff. It agreed with the lower appellate court
that the auction in favour of the plaintiff-appellant was a
nullity and wholly without jurisdiction and did not confer
any rights on him because the suit property had never been
declared as evacuee property in accordance with law. It also
held that Abdul Rashid was in India much after the repeal of
the U.P. Ordinance 1 of 1949 and consequently there was no
question of the property vesting automatically in the
Custodian under the aforesaid ordinance. The High Court,
however, granted six months’ time to the plaintiff-appellant
to deliver vacant possession of the suit house to the
defendants-respondents without the intervention of the
court.
After obtaining special leave under Article 136 of the
Constitution, the aggrieved plaintiff has now come in appeal
before this Court.
213
The main contention of the learned counsel for the
appellant is two-fold: (a) In view of Section 46 of the 1950
Act, the Civil Court had no jurisdiction to adjudicate upon
the question whether; the suit property or any right or
interred therein is or is not evacuee property. (Reliance
for this contention has been placed on the decision of this
Court in Custodian of Evacuee Property, Punjab and ors. v.
Jafran Begum.
(b) The sale of the suit property has been effected in
favour of the appellant under Section 20 of the 1954 Act,
after it had been acquired by the Central Government under
Section 12 of that Act, free from all encumbrances, and
formed part of the compensation pool. It will therefore, be
presumed that prior to its acquisition under Section 12 of
the 1954 Act, it was evacuee property vesting in the
custodian. The orders of its acquisition passed under
Section 12 and its sale under Section 20 of the 1954 Act had
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become final and conclusive. The respondent could not be
allowed to go behind those orders and question their
finality on the ground that the property has never been
evacuee property vesting in the custodian, because Section
27 of 1954 Act bars the jurisdiction of the Civil Court to
go into this question. The only remedy of the defendants-
respondents is to claim compensation under the 1954 Act.
Reference in this connection’ has been made to N. S. Gujral
v. Custodian of Evacuee Property and Anr.
Before dealing with these contentions, some basic facts
concurrently found by all the courts below may be noticed.
Qazi Abdul Rashid obtained a money decree in suit No.
523 of 1935 against one Ami Chand S/o Phool Chand and
brother of present respondents (original defendants 1 to 4).
In execution of that decree, he purchased with the
permission of the court, the share of Ami Chand in 1937. At
that time, apparition suit No. 3 of 1931 amongst the family
members of the said Ami Chand was pending in the Court of
the Civil Judge, Bulandshahr. Qazi Abdul Rashid did not join
as a party in the said partition suit. However, he
instituted Suit No. 452 of 1949 against the said Phool Chand
and others in the court of the Munsif, Khurja for partition
and separate possession of his share. The suit was
contested. The Munsif decreed the suit holding that Qazi
Abdul Rashid had 1/16th share in the house in question and
one other shop. Applying the provisions of Section 4 of the
Partition Act, the Munsif evaluated Qazi Abdul Rashid’s
1/16th share in the suit house at Rs. 343/- and directed the
sale of that share.
214
Feeling aggrieved by the said decree, Qazi Abdul Rashid
preferred Civil Appeal No. 289 of 1953. The First Appellate
Court by its judgment, dated December 20, 1954 (Ex. A-2),
partly allowed the appeal and modified the decree of the
trial court in so far as it related to the shop. But it
upheld the decree of the trial court in so far as it related
to the house now in question, whereby Phool Chand defendant
was required to deposit Rs. 343/- as the value of Qazi Abdul
Rashid’s share. In accordance with the decree affirmed by
the First Appellate Court, Phool Chand on July 31, 1953
deposited Rs. 343/- (vide Ex. A-1) to the credit of Qazi
Abdul Rashid, the then plaintiff in the Court. Qazi Abdul
Rashid being aggrieved by the decree of the First Appellate
Court, preferred Second Appeal No. 235 of 1955 in the High
Court. The High Court dismissed this appeal as abated by an
order, dated February 25, 1959 (Ex. A-l), due to the failure
of Qazi Abdul Rashid to take proper steps for substitution
of the legal representatives of the then respondents 7 and
11, who had died during the pendency of the appeal.
During the pendency of the said litigation, Phool Chand
and his two sons, Gyan Chand and Raghbur Sharan, instituted
Suit No. 323 of 1953 in the court of the Munsif, Khurja for
the recovery of the damages for use and occupation of the
house in dispute against Qazi Abdul Rashid. By a judgment
dated September 30, 1959 (Ex. A-4) the trial court decreed
that suit against Qazi Abdul Rashid. Aggrieved by that
judgment and decree, Qazi Abdul Rashid preferred Civil
Appeal No. 461 of 1959 which was partly allowed by the First
Appellate Court on December 21, 1960.
The trial court further found-and this finding has been
upheld by the First Appellate Court and the High Court that
Abdul Rashid definitely remained in India at least till
1963, if not till 1965. Upto 1963, he was directly receiving
rent from his tenant, the father of the present plaintiff-
appellant, in respect of the suit house. This was held
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primarily on the basis of documentary evidence (Ex. A-14/A).
In view of the fact that Qazi Abdul Rashid remained in
India I continuously upto 1963, no question of automatic
vesting under the I U.P. Ordinance No. 1 of 1949, could
arise. That ordinance was not applicable to him at all. For
our purpose, only the 1950 Act and the 1954 Act are
relevant. It will, therefore, be worthwhile to notice, very
briefly, the material provisions of these statutes.
215
Clause (d) of Section 2 of the 1950 Act defines
"evacuee;" this A definition so far as material, reads:
"Evacuee means any persons-
(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 a 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, supervised
or managed by any person or is being occupied,
supervised or managed by an unauthorised person,
or.. "
(iii) to (iv) are not relevant for this case.
Clause (h) defines "evacuee property" to mean "any property
of an 1 evacuee (whether held by him as owner or as a
trustee or as a beneficiary or as a tenant or in any other
capacity) and includes any property which has been obtained
by any person from an evacuee after the 14th day of August
1947, by any mode of transfer which is not effective by
reason of the provisions contained in Section 40 :) but does
not include ........ " Sub-section (1) of Section 7 requires
that 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. Sub-section (3) of the Section
peremptorily requires the Custodian to notify from time to
time by publication in the official Gazette or in such other
manner as may be prescribed all p properties declared by
him to be evacuee properties under Sub-section (1).
Rule 6 of the Rules framed under the 1950 Act requires
that the notice to be served under Section 7(1) on persons
interested in the property proposed to be declared evacuee
property shall be in Form I.
Section 8 provides, "Any property declared to be
evacuee property under Section 7 shall be deem-d to have
vested in the Custodian for the State-
(a) in the case of the property of an evacuee as
defined in sub clause (i) of clause (d) of Section
2, from the date on which
216
he leaves or left any place in a State for any
place outside the territories now forming part of
India;
(b) in the case of the property of an evacuee as
defined in sub-clause (ii) of clause (d) of
Section 2, from the 15th day of August, 1947; and
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(c) in the case of any other property, from the date
of the notice given under sub-section (I) of
Section 7 in respect thereof. (The rest is not
material)."
From a conjoint reading of Sections 7 and 8, it is
clear that the making of a declaration after inquiry under
Section 7, that the property is ’evacuee property’ is a sine
qua non for giving the Custodian dominion over the property.
If no proceeding is taken under Section 7, there can be no
vesting of the property in the Custodian. (See observations
in Fazalbhoy v. Official Trustee of Maharashtra.
The other point to be noted is that in the case of an
‘evacuee’ falling under sub-clause(i) of the definition of
‘evacuee’ that is one, who on account of the things
mentioned in that sub-clause, leaves India or has left India
on or after August 14, 1947, the vesting will date from the
date he leaves India for any outside destination. Tn the
instant case, Qazi Abdul Rashid left India to settle in
Pakistan long after August 14, 1947 (in 1963).
Section 9 gives power to the Custodian to take
possession of evacuee property which vests in him under
Section 8.
Then, there is Section 7A which was inserted by the
Administration of Evacuee property (Amendment) Act, 1954 (42
of 1954) with effect from May 7, 1954.
"Notwithstanding anything contained in this Act, no
property shall be declared to; be evacuee property on or
after the 7th day of May 1954:" This is made subject to two
Provisions. Clause (a) of the First Proviso saves from the
application of this Section any property in respect of which
proceeding are pending on the 7th day of May, 1954 for
declaring such property to be evacuee property. Clause (b)
of the Proviso saves from the bar of this Section property
of any person who became an evacuee on or after the Ist day
of March, 1947, and who on the 7th day of May, 1954 was
resident in Pakistan. The second Proviso lays down that no
notice under Section 7 for declaring any property to be
evacuee property with reference to Clause (b) of the
preceding Proviso shall be issued after the expiry of six
months from the commencement of the Administration of
Evacuee
217
Property (Amendment Act, 1954). Then, there are three
Explanations, which are not material for our purpose.
It is clear from the facts concurrently found in the
instant case that Qazi Abdul Rashid was throughout residing
in India and personally managing the suit property and
collecting its rent till 1963. He migrated or went away from
India for good sometime in 1963 or thereafter. Therefore, if
the Custodian had not taken any proceedings under Section 7
of the 1950 Act to declare the suit property as evacuee
property before the 7th day of May 1954, and no such
proceedings were pending on May 7, 1954, the property of
Qazi Abdul Rashid could not be declared evacuee property
under the Act, the power of the Custodian to do so having
been terminated by Section 7A.
It was for the plaintiff-appellant to show by producing
relevant notifications or other documentary evidence that
the Custodian had taken proceedings and declared the suit
property to be evacuee property in accordance with the
provisions of Section 7 or that such proceedings had been
initiated earlier and were pending on the 7th day of May,
1954. Despite ample opportunity granted to the plaintiff, he
did not produce any such documentary evidence in the courts
below. All that he showed was that the Rehabilitation
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Authorities had, purporting to act under the 1954 Act, sold
the suit property to him and issued the sale certificate in
his favour on April 1, 1969.
Section 24 gives a person aggrieved of an order made
under Section 7 by the Custodian a right of appeal. Section
27 confers power of revision on the Custodian-General to
revise suo motu or on the application made to him, any order
passed by the Custodian if it is rot found to be legal or
proper.
Sections 28 and 46 bar the jurisdiction of courts.
Section 28 reads thus:
"Save as otherwise expressly provided in this Chapter,
every order made by the Custodian-General, 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."
Section 46 of the 1950 Act provides:
"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
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(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."
The scope of Sections 28 and 46 of the 1950 Act came up
for consideration before this Court in Jafran Begum’s case
(ibid). The facts of that case were that a person who was in
possession of a house in India, migrated to Pakistan. Notice
was issued to his son under s.7 of the Administration of
Evacuee Property Act, 1950, and after hearing him the Deputy
Custodian declared the house to be evacuee property. Jafran
Begum, who was the mother of the evacuee and on whom the
notice under s.7 of the Act was not served, started
proceedings before the Custodian, claiming that the owner of
the house had executed a will bequeathing the property to
her and so the property could not be declared evacuee
property. That application was dismissed by the Custodian.
When she failed before the authorities constituted under the
Act, she filed a suit in the civil court basing her case on
the will and prayed for a permanent injunction restraining
the authorities from evicting her from the house. On the
question of jurisdiction being raised, the High Court held
that determination of a complicated question of law relating
to title by authorities under the 1950 Act was not final and
could be reopened in the civil court, and Section 46 did not
bar the civil court’s jurisdiction to entertain such a
question. After examining the scheme of the 1951) Act,
Wanchoo, .J., speaking for the Bench constituted by three
learned Judges, laid down the law, thus:
"(Where) the question whether certain properties are
evacuee properties has been decided under s. 7 etc.,
whether that decision is based on issues of fact or
issues of law, jurisdiction of courts is clearly,
barred under S. 46(a). It is difficult to see how a
distinction can be drawn between decisions under S. 7
based on questions of fact and decisions based on
questions of law. The decision is made final whether
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based on issues of law or of fact by S. 28 and S. 46
bars the jurisdiction of civil and revenue courts in
matters which are decided under S.7 whatever may be the
basis of decision, whether issues of factor of law and
whether simple or complicated."
(Emphasis supplied)
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"...... S.46 is a complete bar to the jurisdiction of
civil or revenue courts in any matter which can be
decided under S. 7. This conclusion is reinforced
by the provision contained in S. 4(1) of the Act
which provides that the Act overrides other laws
and would thus override S. 9 of the Code of Civil
Procedure on a combined reading of Ss.4, 28 and
46. (But).. S. 46 or S. 28 cannot bar the
jurisdiction of the High Court under Art. 226 of
the Constitution."
(Emphasis supplied)
From the crucial words underlined in the above extract, it
is clear that even according to the rule of the above
decision section 46 will not bar the jurisdiction of the
civil court where the Custodian has never declared the
property as evacuee property after taking proceedings under
Section 7 of the l 950 Act.
A Full Bench of the Allahabad High Court in Khalil
Ahmed Khan v. Malka Mehar Nigar Begum(1), held that where
the matter as to whether a property is evacuee property or
not, has never been adjudicated upon by the Custodian
himself but he merely takes action on the basis of the
judgment of the court of first instance, without deciding
the matter for himself, that judgment being subject to
correction by the court of appeal does not become final
merely because the Custodian had taken action on the basis
thereof. In such a case, the jurisdiction of the civil court
of appeal to determine the correctness of an adjudication
already made by the civil court is not barred. This decision
was noticed by this Court in Jafran Begum (ibid), and it was
observed that to some extent, "this case is in line with the
view we have taken."
The matter can be looked at from another angle also.
Clauses (a), (c) and (d) of section 46 postulate that at the
time when the question whether or not a property is evacuee
property comes for adjudication the power of the Custodian-
General or the Custodian under this Act of 1950 to determine
that question is subsisting. That is to say, if at the point
of time when the question arises, the power of the
authorities constituted under this Act to adjudicate that
question stands terminated or extinguished by the operation
of Section 7A of 1954, none of the clauses (a), (c) and (d)
of section 46 will bar the jurisdiction of the civil court
to determine that question which had not been decided by the
custodian during the period, he had the power to determine
it.
Section 28 has no application to the facts of the
instant case because no order made by any of the authorities
mentioned in that section is
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being called in question. Section 46, also, does not come in
the way because no proceedings under section 7 of the 1950
Act to declare the suit house as evacuee property were taken
by the Custodian against Qazi Abdul Rashid. No notification
under sub-section (3) of section 7 published in the official
Gazette has been placed on the record. Nor was it shown that
any proceedings initiated under section 7 of the Act to
declare it evacuee property were pending on May 7, 1954, and
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the question of saving those proceedings under the proviso
to section 7A does not arise.
Qazi Abdul Rashid was throughout a resident of India
till 1963 and was personally managing the suit house and
collecting rent of it from the tenant. After May 7, 1954,
therefore, the Custodian had no jurisdiction under the 1950
Act to declare the suit house as evacuee property. The
jurisdiction of the courts below to go into this question
was thus not barred by anything in sections 28 and 46 of the
1950 Act.
We, therefore, negative the first contention of the
appellant.
Now let us have a look into the relevant provisions of
the 1954 Act.
Section 2(c) of the 1954 Act defines "evacuee property"
to mean any property which has been declared or is deemed to
have been declared as evacuee property under the
Administration of Evacuee Property Act, 1950. At this place,
it may be recalled that the second part of the definition
which contains a deeming provision has no application to the
facts of the instant case because Qazi Abdul Rashid was
throughout residing in India till his migration to Pakistan
in 1963. That is to say, he had not become an evacuee before
the repeal of the U.P. Ordinance No. 1 of 1949. This
ordinance is not relevant for the purposes of the present
case. The first part of the definition, also, is not
applicable because the suit house has never been declared as
evacuee property under the 1950 Act.
The next provision is to be found in section 12, which
reads as follows:
"S. 12. Power to acquire evacuee property for
rehabilitation of displaced persons.-
(1) If the Central Government is of opinion that
it is necessary to acquire any evacuee property
for a public purpose, being a purpose connected
with the relief and rehabilitation of displaced
persons, including payment of compensation
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to such persons, the Central Government may at any
time acquire such evacuee property by publishing
in the official Gazette a notification to the
effect that the Central Government has decided to
acquire such evacuee property in pursuance of this
section.
(2) 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.
(3) It shall be lawful for the Central Government, if
it so considers necessary, to issue from time to
time the notifications referred to in sub-section
(1) in respect of- (a) all evacuee property
generally; or (b) any class of evacuee property;
or (c) all-evacuee property situated in a
specified area; or (d) any particular evacuee
property.
(4) All evacuee property acquired under this section
shall form part of the compensation pool."
It may be noted that the necessary prerequisite for
acquiring property under Section 12 is that it must be
’evacuee property’ as defined in section 2(c) of the 1954
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Act. In the absence of this essential prerequisite, the
Central Government is not competent to acquire that property
under this section for throwing it into the compensation
pool. This prerequisite or condition precedent, as already
noticed, was lacking in the instant case. No notifications
published in the official Gazette either under sub-section
(I) or sub-section (3) of section 12 appear to have been
brought on the record of this case. Our attention was not
drawn to any such notifications.
Then, there is section 20 which confers power on the
managing officer to transfer any property out of the
compensation pool by sale or in any other manner indicated
in clauses (b) to (e) of that section. Again, the necessary
prerequisite for sale is that the property must have been
declared under section 7 of the 1950 Act to be evacuee
property by the Custodian or it must be evacuee property
under the
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deeming provisions of any law which may be applicable to the
case of the evacuee. In other words, only that property
which was evacuee property could be acquired under section
12 and form part of the compensation pool which satisfies
the definition of "evacuee property" given in section 2(c)
of the 1954 Act. If the property was never evacuee property,
as defined in section 2(c), it does not legally form part of
the compensation pool and, therefore, cannot be disposed of
under Section 20 or the Rules framed under this statute.
Then, there are Sections 22, 23 and 24. Section 22
gives a right of appeal to a person aggrieved by an order of
the Settlement officer or a managing officer, to the
Settlement Commissioner. Any person aggrieved by the order
of the Settlement Commissioner/Additional Settlement
Commissioner/Assistant Settlement Commissioner or a managing
officer has been given a right to prefer an appeal to the
Chief Settlement Commissioner under Section 23. But no
appeal is competent from any order passed in appeal under
Section 22. Section 24 confers the power of revision on the
Chief Settlement Commissioner to revise any order of the
authorities mentioned in that Section, including that of the
managing officer.
Some argument was made by the learned counsel for the
appellant that the only remedy of the respondents was to
prefer an appeal or revision under the aforesaid provisions
of this Act and that, since 1. they did not avail of the
same under Section 27, the sale made by the managing officer
in favour of the plaintiff-appellant has become final and
cannot be questioned in any court. Section 27 reads thus:
"27. Finality of orders.-Save as otherwise
expressly provided in this Act, every order made by any
officer or authority under this Act, including a
managing corporation, shall be final and shall not be
called in question in any court by way of an appeal or
revision or in any original suit, application or
execution proceeding."
It will be seen that Section 27 is not attracted
because the plaintiff, who filed the original suit and is
now coming before us by way of appeal, is not questioning
the finality of the order of the sale alleged to have been
made by the managing officer. It is the defendant
respondents who are resisting the plaintiff’s claim on the
ground that the sale is a nullity. It could not be made
under this Act of 1954 for the reason that it was never
declared evacuee property under Section 7 of the Act and
thus never formed part of the compensation pool. The words
"under this Act" occurring in Section 27 are significant
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They show that those orders which are not made by any
officer or
223
authority in accordance with the provisions of this Act, but
outside the provisions of this Act in excess of
jurisdiction, can be called in question in the civil court.
It may be noted that the language of Section 27 is not as
wide as that of Section 46 of the 1950 Act.
The facts of N.S. Gujral (ibid) were entirely
different. There, an Indian citizen held a money decree
against a person who, subsequent to the passing of the
decree, turned an evacuee. It was held that at no time, the
decree-holder had any right whatsoever in the property which
vested in the Central Government on the issue of the
notification under Section 12. It was further held that
though the decree-holder cannot claim to proceed against the
property in suit ’ or its income after the date on which it
vested in the Central Government by virtue of the
notification under Section 12, he can ask the Custodian to
pay him out of the moneys’ lying with him on the date’ of
such vesting if he can satisfy him in the manner provided in
Section 10(2)(n) read with Section 10(1) of the 1950 Act.
The ratio of that decision has no application to the facts
of the pr
The second contention, also, being meritless, is over-
ruled.
For the foregoing reasons, the appeal fails and is
dismissed with costs.
Before parting with this judgment, we may note here
that at the conclusion of final arguments in this Court,
counsel for the appellant represented that his client was
making all efforts to search out and produce the Gazette
Notification, whereby the suit property was declared and
notified as evacuee property by the Custodian under
subsection (3) of Section 7 of the 1950 Act. He wanted some
time. We therefore, reserved this judgement to give the
plaintiff-appellant a last chance to produce such a
notification of which the Court could take judicial notice.
But, he has failed to produce any such Gazette Notification.
Instead, he has produced, what purports to be, a copy of an
order, dated January 5, 1951, of the Assistant Custodian.
This is not a copy of any Gazette Notification of which
judicial notice, without formal proof, could be taken. We,
therefore, do not find any good ground to reopen the case
and decline the appellant’s request for permitting him to
produce additional evidence at this very late stage.
N V K. Appeal dismissed.
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