A.N. Grover, J.
1. This is a petition under Article 226 of the Constitution in which the orders of the Competent Officer dated 24-10-1956 and of the Appellate Officer dated 26-9-1957, made under the provisions of the Evacuee Interest (Separation) Act, 1951, are impugned.
2. It is alleged in the petition that- certain Muslims who are now evacuees had mortgaged their agricultural land with possession measuring 110 bighas odd with the predecessor-in-interest of the petitioner more than 60 years prior to the enforcement of the aforesaid Act. The petitioner who has been in possession after he succeeded to his predecessor-in-interest received a notice dated 17-4-1954 from the Competent Officer purporting to have been issued under the Act by which he was required to submit his claim in the prescribed form as information had been received that he had an interest in the composite property described in the Schedule and the evacuee interest had to be separated from other interests.
The petitioner filed his claim-petition and appeared before the competent Officer. The point that was raised by him before the aforesaid officer was that the evacuee mortgagors never got the property redeemed within the period prescribed for redemption under Article 148 of the Limitation Act and their right to redeem had become extinct under Section 28 of that Act with the result that the petitioner had become the owner of the property. It was further stated that the property in dispute was no longer composite property and no question of separation of alleged evacuee interest arose.
On 24-10-1956 the competent Officer made an order holding that the mortgage being over 20 years old, the provisions contained in Section 9(2) of the Act applied and it stood extinguished. Henceforth the property was to vest in the Custodian free from all encumbrances and liabilities. The petitioner filed an appeal under the provisions of the Act which was dismissed by the Appellate Officer in view of some judgment given by him in some other case and the following observations were made.
'It was argued by the learned counsel for the appellants that if the Custodian holds that as the property has vested in him under Section 11 of the Evacuee Interest (Separation) Act, 1951, he cannot reopen the question, the claimants will have no remedy left, I have specifically provided in my judgment in Custodian v. Mst. Gondo, Appeal No. 690 of 1956, that the question must be determined whether the evacuees had any interest in the properties or not. If the Custodian dismisses the applications of the claimants only on the ground that the vesting order under Section 11 of the Evacuee Interest (Separation) Act, 1951 bars his jurisdiction to determine the rights of the claimants, they may move this court again, when I will consider whether I should review my orders.' This led to the present petition.
3. It has been contended by Mr. H. L. Sarin, who appears on behalf of the petitioner, that the property in dispute had never been declared to be evacuee property, nor had it vested in the Custodian under the Administration of Evacuee Property Act, 1950, and, therefore, it was not composite property within the meaning of Section 2(d) of the Act. It is submitted that if it was not composite property, the Competent Officer had no jurisdiction under Section 5 to decide any matter relating to the property in dispute. It is pointed out that in the notice which was sent to the petitioner, dated 17-4-1954 (Annexure 'A'), all that is stated is as follows:
'Whereas information has been received that you have all interest in the composite property described in the Schedule hereto annexed.
And whereas the evacuee interest in the said property is to be separated from other interests ..
In the order of the Competent Officer although it is stated that the declaration by the Custodian that the evacuee has an interest in the property as a mortgagor is binding, it is nowhere stated that any such declaration was ever made. A reference to the concluding part of the order of the Appellate Officer set out before shows that the Custodian had never determined the property to be evacuee or had decided whether evacuees had any interest therein. Mr. Sarin, therefore, contends that the property in dispute could not be considered to be composite property and the authorities under the Act would have no jurisdiction to make any orders with regard to it as their jurisdiction is confined to such properties as fall within the definition of composite property.
It is clear from the reply filed on behalf of the respondents that the procedure prescribed by the Administration of Evacuee Property Act for declaring property to be evacuee property was not followed. It is, however, claimed in para 8 (iv) that compliance with Section 7 of that Act was not necessary as evacuee interest of the property in dispute vested in the Custodian vide Ordinance No. IX of 1949 (which was saved by Section 8 of the Administration of Evacuee property Act, 1950). According to Mr. Sarin automatic vesting of the interest of the nature that has been relied upon is not warranted by the enactments in question.
In Ebrahim Aboobaker v. Tek Chand, AIR 1953 SC 298, it has been laid down that reading Sections 7 and 8 of the Administration of Evacuee Property Act, 1950, it appears that the Custodian gets dominion over the property only after the declaration is made. The declaration follows upon the enquiry made under Section 7, but until the proceeding is taken under Section 7, there can be no vesting of the property and consequently no right in the Custodian to take possession of it.
In Allaudin v. M. B. Meher, AIR 1952 Bom 213, Tendolkar J., considered that the giving of notice under Section 7 of the aforesaid enactment was a statutory requirement and it was not merely procedural but it was mandatory and went to the root of the jurisdiction of the Custodian. If no notice was given to persons interested, the declaration made that any property was evacuee property was without jurisdiction and was liable to be set aside. In Azizun Nisa v. Asst. Custodian, (S) AIR 1957 All 561, it has been held that the provisions contained in Section 7(3) of the Administration of Evacuee Property Act that the Custodian must notify all properties declared to be evacuee property in the official gazette shows that a specific property must be declared as evacuee property and not 'all property belonging to the evacuee'. The notification published in the Gazette must contain full description of the properties so that they can be identified. Thus, in alt these cases it has been held that the provisions contained in Sections 7 and 8 of the Administration of Evacuee Property Act must be followed before a property can be declared to be an evacuee property or can be deemed to have been so declared, and that it is only when property has been declared to he evacuee property under the provisions of Section 7 that it can be deemed to have vested in the Custodian.
In the present case it is quite clear from the written statement of the respondents themselvesthat the provisions of Section 7 of the Administration of Evacuee Property Act were never followed. In fact reliance has been placed on behalf of the respondents on the provisions contained in Section 8(2) of the Act which is in the following terms:
'Where immediately before the commencement of this Act, any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest; .........' It is submitted on their behalf that certain notifications had been issued under the East Punjab Evacuees (Administration of Property) Act, 1947, by which the Custodian had taken control and assumed possession of all immovable evacuee properties situate in the province of East Punjab of which possession and control had not already been taken by him.
A notification of this nature dated 1-5-1948 was published on 4-5-1948 in the East Punjab Government Gazette and it is contended that on a proper interpretation of Section 8(2) read with all the previous evacuee legislation it should be held that the property in dispute had vested in the Custodian notwithstanding the fact that the procedure under Section 7 of Act XXXI of 1950 had not been allowed. A similar contention was raised in Custodian, Evacuee Property, Punjab v. Gujar Singh, 55 Pun LR 94: (AIR 1953 Punj 161), before Weston C. J., who repelled the same.
It has been held by him that a general proclamation cannot be taken as determination that any particular property which the Custodian chooses to name is evacuee property. There must be an enquiry by the Custodian in the case of specific items of property said to be evacuee property. Where the Custodian assumes physical possession or assumes control by express notification the enquiry is contingent upon objections raised by claimants. In those cases of property of which no possession is taken, no control assumed by express notification or no enquiry made, such as that contemplated by Section 7, there is no determination that the particular property is evacuee property,
4. In the present case there is no suggestion that the property in dispute was ever specified in any notification or order issued by the Custodian or any officer of his Department. The general proclamation that was issued cannot be taken to mean that the property had been declared to be evacuee property in accordance with law. It seems to me that under Section 8(2) it has to be seen whether any property in a State had vested as evacuee property in the Custodian under any law repealed by the Act of 1950.
If it has so vested that property shall, on thecommencement of the aforesaid Act, be deemed tobe evacuee property declared as such. For thepurpose of vesting, there must be something tangible and objective which the Custodian Departmentshould have done, e.g., assumption of physicalcontrol, specification of a particular property asevacuee property, assumption of control by expressnotification and the like. A mere general notification or proclamation of the nature issued inMay 1948 in which no particular property or properties were specified could not have the effect ofvesting the particular property in dispute in theCustodian.
It could never be intended that the claimants to a particular property or other parties interested in that property should have absolutely no notice or opportunity of substantiating their claims or establishing their interest before the Custodian Department and unless a notification or notice with regard to particular property or properties was issued the parties interested shall not be in a position to know whether their properties were being affected.
There can be little doubt that Section 8(2) could have retrospective effect only in such cases in which sonic positive action had been taken under the relevant provisions or some effective decision, had been given; otherwise the provisions of the Act were to apply and there would be no vesting unless a notice under Section 7 has been issued and a declaration has been made.
5. In the notice which was sent to the petitioner there was no mention of any declaration having been made by the Custodian that any evacuee had any interest in the property in dispute. It is not the respondents' case that the Custodian Department over issued any notice to the petitioner or gave him any opportunity to be heard before the information mentioned in the notice was sent to the Competent Officer. As has been held by Bishan Narain J., in Civil Writ No. 33 of 1957, decided on 18-9-1957, the mere fact that such an information is sent to the Competent Officer does not satisfy the provisions of Section 8(2) of the Evacuee Interest (Separation) Act. In that case also Bishan Narain J., held that the respondents had failed to show that in fact the property in dispute was ever declared to be evacuee property.
6. The question then arises whether in the absence of any material on the record which might show that the property was in fact declared to be evacuee property in accordance with law, the Competent Officer had any jurisdiction to make the order which he did. The relevant provisions of the Evacuee Interest (Separation) Act have already been referred to in this connection. On behalf of the respondents, however, reliance has been placed on the provisions of Section 8(2) of the Evacuee Interest (Separation) Act which is as follows;
'Where the Custodian under the Administration of Evacuee Property Act, 1950, has determined that the property in question or any interest therein is evacuee property, the decision of the Custodian shall be binding on the competent officer;
Provided that nothing contained in this subsection shall debar the competent officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under Section 10.'
It is submitted that if there is any determination by the Custodian that any property or any interest therein is evacuee property then that shall be of binding force, but the Competent Officer is not debarred from determining the mortgage debt in respect of such property or any interest therein. It is urged that if no determination had been made by the Custodian then it is for the competent Officer to decide whether any particular property or any interest therein is evacuee property or not, and as there has been no determination of that nature in the present case it should be left to the competent Officer to determine the same.
I am unable to accede to this contention. The condition pre-requisite for the exercise of jurisdiction under Section 5 by the competent Officer is that the claim should relate to 'Composite property'.
The definition of composite property, as pointed out before, covers only such property which, or any property in which an interest, has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act. That condition has not been fulfilled in the present case and the property not being composite property, the competent Officer would have no jurisdiction whatsoever with regard to the same,
7. For the reasons given above, this petition must be allowed and the impugned orders quashed for want of jurisdiction. I order accordingly. In the circumstances of the case, however, I leave the parties to bear their own costs.