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Yusuf and ors. Vs. Authorised Deputy Custodian of Evacuee Property, Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Case Nos. 57 and 71 to 80 of 1957
Judge
Reported inAIR1959Raj51
ActsAdministration of Evacuee Property Act, 1950 - Sections 7A and 7(1); Administration of Evacuee Property (Amendment) Act, 1954; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantYusuf and ors.
RespondentAuthorised Deputy Custodian of Evacuee Property, Rajasthan and anr.
Appellant Advocate Thanchand, Adv. for; J.K. Gupta, Adv.
Respondent Advocate H.G. Thanvi, Adv.
DispositionApplications dismissed
Cases ReferredSatya Dev Cheema v. Additional Deputy Custodian
Excerpt:
- - 5. before we consider the paints involved in this case, we should like to point out that satya dev cheema's case air 1956 raj 193 was concerned with the proviso (b) to section 7a of the act as inserted in it by section 4 of the amendment act. we are, therefore, of opinion that proviso (a) clearly applies to these cases as proceedings for declaring the property to be evacuee property were pending in these cases on the 7th of may 1954. learned counsel for the applicant urges that these proceedings could not really be called proceedings in law because it appears from the orderspassed by the authorised deputy custodian in october and november 1956 that the notice issued to the applicants on remand was not according to law......there were proceedings pending.the conclusion, therefore, to which we arrive is that in these cases proceedings were pending on 7-5-1954 for declaring the properties involved as evacuee property. therefore proviso (a) applies. this means that section 7a must be treated to be non-existent so far as 'the properties involved in these cases are concerned. therefore the prohibition contained in section 7a does not apply to these proceedings and it is always open to the authority concerned to take steps to have the property declared evacuee property.the first step which has to be taken procedurally in this behalf is to issue a notice under section 7(1). as the authority has the power to take steps to declare the property evacuee in the cases pending on 7-5-1954, ignoring section 7a of the.....
Judgment:

K.N. Wanchoo, C.J.

1. These are eleven applications under Article 226 of the Constitution by various persons challenging the taking of proceedings under the Administration of Evacuee Property Act against the applicants. We shall dispose them of by one judgment as a common point of law is raised in them.

2. It is not necessary to set out the facts of each case separately. It is enough to say generally that the case against the applicants was that they had left India for Pakistan in 1947 after the partition. They had certain lands in India; but these lands were restored to them in 1948 when they came back to India. In 1951, however, the Patwari of their village reported to the Assistant Custodian, Ganganagar, that the applicants had gone to Pakistan.

On this, proceedings under the Administration of Evacuee Property Act (No. 31 of 1950), hereinafter called the Act, were taken against the applicants and their property was declared evacuee property ex parte. In 1952 the applicants made an application to the Assistant Custodian to the effect that they had not migrated to Pakistan, but had merely left for the neighbouring villages on account of famine. They, therefore, prayed that the ex parte orders passed against them be set aside on proof of their assertion.

The Assistant Custodian rejected these applications in June 1953. Thereupon there were appeals to the Custodian who decided them on 29-1-,1954 and remanded the case for fresh decision. Thereafter fresh notices were issued by the Assistant Custodian, Ganganagar. He came to the conclusion in August 1955 that the applicants had not migrated to Pakistan.

He, however, did not give any decision and submitted the papers to the Custodian, Evacuee Property Rajasthan for orders. The Custodian returned the papers to the Assistant Custodian for deciding the case on merits. Thereupon the Assistant Custodian declared the lands of the applicants as evacuee property on the 29-9-1956. The applicants again appealed, to the Custodian of Evacuee Property.

Their appeals were decided by the Authorised Deputy Custodian in October and November 1956. The Authorised Deputy Custodian held that the notices issued to the applicants were not according to law and, therefore, invalid. He directed the Assistant Custodian to dispose of the cases in accordance with law after the issue of proper notice to the applicants. Thereupon, the Assistant Custodian decided to issue notices to the applicants under Section 7(1) of the Act. The present applications are directed against this decision of the Assistant Custodian.

3. The main contention of the applicants is that in view of the amendment of the Act by Administration of Evacuee Property (Amendment) Act (No. 42 of 1954), hereinafter called the Amendment Act, no proceedings for declaring any property as evacuee property can be taken after 7-5-1954, unless they came within the proviso to Section 4 of the Amendment Act and that this case did not come within the proviso. Reliance in this connection was placed on Satya Dev Cheema v. Additional Deputy Custodian, Evacuee Property, Bharatpur, AIR 1956 Raj 193.

4. The applications have been opposed on behalf of the Assistant Custodian and his contention is that the case is covered by proviso (a) to Section 4 of the Amendment Act and, therefore, he was entitled to issue notices under Section 7(1) of the Act.

5. Before we consider the paints involved in this case, we should like to point out that Satya Dev Cheema's case AIR 1956 Raj 193 was concerned with the proviso (b) to Section 7A of the Act as inserted in it by Section 4 of the Amendment Act. It was not concerned with proviso (a) at all and, therefore, anything said in that case has nothing to do with the application of proviso (a).

The case of the Assistant Custodian is that these cases are covered by proviso (a) and not by proviso (b) and that in view of proviso (a) he had jurisdiction to issue notice under Section 7(1) of the Act in these cases. Now Section 7A of the Act is inserted by Section 4 of the Amendment Act is in these words:

'Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after 7-5-1954:

Provided that nothing contained in this section shall apply to-

(a) any property in respect of which proceedings are pending on 7-5-1954 for declaring such property to be evacuee property; and

(b) the property of any person 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 had left on or after 1-3-1947, any place now forming part of India and who on 7-5-1954, was resident in Pakistan:

Provided further that no notice under Section 7 for declaring any property to be evacuee property with reference to Clause (b) of the preceding proviso-shah be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954.'

6. The case of the applicants is that their cases are covered by proviso (b), while the case o the Assistant Custodian is that these cases are covered by proviso (a). The main question, therefore, to be decided is whether these cases are covered by proviso (a) or by proviso (b) and in case they are covered by proviso (a) whether fresh notices, could be issued under Section 7 of the Act in December 1956.

7. We may say at the outset that provisos (a) and (b) must be taken to be mutually exclusive in the sense that if a case is covered by proviso (a) one need not go to proviso (b) at all. It is only when the case is not covered by proviso (a) that proviso (b) has to be looked into to see whether a notice under Section 7(1) of the Act can be issued. Let us, therefore, see whether these cases are covered by proviso (a). Section 7A provides that no property shall be declared to be evacuee property on or after 7-5-1954.

But there are two exceptions to this and these exceptions are prefaced by these words: 'Provided that nothing contained in this section shall apply to the two exceptions. What the section contains is that no property shall be declared to be evacuee property on or after 7-5-1954. But the proviso says that if the case is covered by either of its two clauses, this provision that no property shall be declared to be evacuee property on or after 7-5-1954 will not apply.

Now proviso (a) is about any property in respect of which proceedings are pending on 7-5-1954 for declaring such property to be evacuee property. If such proceedings are pending with respect to any property on 7-5-1954, the intention of the legislature is that the prohibition contained in this section against the declaration of that property as evacuee property on or after 7-5-1954 will not apply.

8. The question, therefore, boils down to this. Was there any proceeding pending on 7-5-1954 for declaring the properties involved in these cases as evacuee property? If such proceedings-were pending, Section 7A will not apply to these cases and they will be proceeded with as if Section 7A had never been enacted.

From the narration of facts, which we have set out above, it is obvious that proceedings were pending for declaring the properties involved in these cases as evacuee property on 7-5-1954. The facts are that proceedings in this case began in 1951 & the property was declared evacuee property ex parte. There were applications by the applicants to set aside this ex parte order. Those applications were rejected by the Assistant Custodian in June 1953.

Then there were appeals by the applicants which were decided in January 1954 and the cases were remanded for fresh decision. Thus the cases were pending before the Assistant Custodian on 7-5-1954 for fresh decision when Section 7A came into force. We are, therefore, of opinion that proviso (a) clearly applies to these cases as proceedings for declaring the property to be evacuee property were pending in these cases on the 7th of May 1954.

Learned counsel for the applicant urges that these proceedings could not really be called proceedings in law because it appears from the orderspassed by the Authorised Deputy Custodian in October and November 1956 that the notice issued to the applicants on remand was not according to law. He, therefore, urges that as the notice issued was not according to law, we should hold that no proceedings were pending in law, though in fact proceedings were pending before the Assistant Custodian.

We are of opinion that there is no force in this argument. What proviso (a) contemplates is that proceedings for declaring certain property as evacuee property should be pending in fact. If such proceedings are pending in fact, proviso (a) will apply and it is not necessary to go into the question whether the pending proceedings were without any defect of law whatsoever.

We may point out that jurisdiction is of two kinds. There may be a case where there is inherent lack of jurisdiction and in such a case, the order passed by the authority, which lacks inherent jurisdiction, is no order at all in law and may be ignored by the person against whom it is passed. As an example, we may mention the case of a Munsif who has jurisdiction up to Rs. 2000/- only passing a decree in a case valued at Rs. 4000/-.

In such a case there is no inherent jurisdiction in the Munsif and any decree passed by him is no decree in law and the person against whom such a decree is passed may ignore it altogether. But there is a second type of case where there is inherent jurisdiction, but there may be defect in the steps taken which would confer power on the authority to deal with a matter. In such a case, the order passed by the authority cannot be ignored by the person against whom it is passed, for inherent jurisdiction is there.

If the party against whom such an order is passed takes no steps to get it set aside, the order will be valid even though there might be some defect of procedure which may take away the power of the authority to deal with the matter and which may induce the higher authority to set aside the order. But till the order is set aside, it is a valid order and the party against whom it is passed cannot ignore it.

In the second class of cases, if proceedings are I pending, it cannot be said that because there is some defect, there are no proceedings pending-The present cases, in our opinion, are of this second type. There is no inherent lack of jurisdiction in the Assistant Custodian at Ganganagar to deal with the properties involved in these cases and to declare them evacuee property. But of course, if the Assistant Custodian, Ganganagar, does not give notice as required by Section 7(1) of the Act and the rules framed thereunder, there may be defect in the procedure which may deprive him of the power to decide the case.

But any order passed by him on such defective proceedings would remain binding on the person against whom it is passed until it is set aside. Assuming therefore, that there was some defect in the notices in these cases, as seems to have been held by the Authorised Deputy Custodian in his orders of October and November 1956, it does not follow that no proceedings were pending on 7-5-1954 in these cases.

Supposing, any of the applicants in these cases withdrew his appeal, so that the order of the Assistant Custodian of September 1956 stood, that person could not thereafter ignore that order. We are, therefore, of opinion that some defect of procedure which may affect the power of the authority to deal with a matter, but which does not vitiate the inherent jurisdiction of the authority, willnot mean that there were no proceedings pending because of his defect, when in fact, there were proceedings pending.

The conclusion, therefore, to which we arrive is that in these cases proceedings were pending on 7-5-1954 for declaring the properties involved as evacuee property. Therefore proviso (a) applies. This means that Section 7A must be treated to be non-existent so far as 'the properties involved in these cases are concerned. Therefore the prohibition contained in Section 7A does not apply to these proceedings and it is always open to the authority concerned to take steps to have the property declared evacuee property.

The first step which has to be taken procedurally in this behalf is to issue a notice under Section 7(1). As the authority has the power to take steps to declare the property evacuee in the cases pending on 7-5-1954, ignoring Section 7A of the Act altogether, it is open to the authority, in our opinion, to issue a notice under Section 7(1), as that is the foundation of taking subsequent action for declaring the property evacuee property.

We are, therefore, of opinion that this case is covered by proviso (a). We need not, therefore, travel to proviso (b). As the case is covered by proviso (a), Section 7A must be deemed to be non-existent for purposes of these proceedings and it is open to the evacuee authorities to take proceedings for declaring the property evacuee and, therefore, to issue notice under Section 7(1).

9. There is no force in the applications andthey are dismissed with costs.


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