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PETITIONER: BHAROO MAL AND OTHERS

       Vs.

RESPONDENT: CUSTODIAN GENERAL, EVACUEE PROPERTY.

DATE OF JUDGMENT: 10/03/1961

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1961 AIR 1283            1962 SCR  (1) 246

ACT: Evacuee  Property--Custodian, Powers of--Whether can  deter- mine  and recover rent in summary manner--Administration  of Evacuee Property Act, 1950 (31 of 1950)S. 10--Administration of Evacuee Property (Central) Rules, 1950, r. 10.

HEADNOTE: The appellants exchanged their property in Pakistan with the property  of an evacuee in India.  They applied for  confir- mation  of the transaction which was granted by  the  Deputy Custodian.   Later, the Custodian revised the order and  set aside  the  confirmation and ordered the  ejectment  of  the appellants  from  the properties which were the  subject  of exchange.   He  further  ordered  that  they  should  render accounts of the rents and profits realised by them from this property.   The appellants contended that the Custodian  bad no  jurisdiction to pass any order requiring them to  render accounts of the rents and profits. Held,  that  the Custodian bad no power under  the  Adminis- tration  of  Evacuee  Property Act to  direct  a  person  in unauthorised  possession  of  evacuee  property  to   render accounts  of rents and profits thereof without resorting  to the  ordinary  remedy provided by law, that is,  by  way  of suit.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos. 7 to 9  of 1959. Appeals  by special leave from the judgment and order  dated June 25,1955, in cases Nos. 0551-R CG/ 54, 0602-R/CG/54  and 0503-R/CG/54 of 1954. Achhru Ram and B. R. L. Ayengar, for the appellants. Gopal Singh and T. M. Sen, for the respondents. 1961.  March 10.  The Judgment of the Court was delivered MUDHOLKAR, J.-These are appeals by special leave from  three orders  against  an order passed on March 12,  1954  by  the Custodian  General,  Evacuee Property,  disposing  of  three revision  petitions,  two  of which were  preferred  by  one Bharoo Mal (since deceased)

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247 and one by his wife, and now widow, Padma Devi.  Even though a  common order was passed by the  Custodian-General,  three appeals have been preferred before this Court. The facts leading upto the appeals are briefly as  follows: An  agreement  was entered into between  Bharoomal  and  one Nanan   Begum  on  April  11,  1948  for  the  exchange   of Bharoomal’s properties,at Sukkar in Sind, Pakistan for Nanan Begum’s  properties at Lucknow.  Prior to that, on April  7, 1948 a similar-agreement was entered into between Padma Devi and one Tahir Ali.  It is common ground that in pursuance of the   agreement  Bharoomal  and  Padma  Devi  entered   into possession  of the properties obtained by them  in  exchange from  Nanan Begum and Tahir Ali respectively and the  latter entered into possession of the. properties belonging to  the former  situated in Sukkar.  The deed of exchange was to  be executed  within two years of the date of agreement; but  in fact  it was never executed. Consequently in the  year  1950 Bharoomlal  and  Padma  Devi  instituted  three  suits   for specific  performance.   These suits were decreed  and  sale deeds conveying certain properties to Bharoomal and  certain properties  to  Padma  Devi were executed by  the  Court  in February, 1952. In  October,  1949  the  U.  P.  Administration  of  Evacuee Property  Ordinance,  1949 (1 of 1949) was  promulgated  and shortly  thereafter the Administration of  Evacuee  Property (Chief  Commissioners  Provinces)  Ordinance,  1949  (12  of 1949),  promulgated by the Central Government, was  extended to the United Provinces replacing U. P. Ordinance 1 of 1949. Nanan  Begum  and  Tahir Ali having  migrated  to  Pakistan, Bharoomal  and Padma Devi made three applications under  cl. 25(2)  of  the  Central Ordinance for  confirmation  of  the exchanges in their favour.  These applications were  granted by  the  Deputy Custodian of Evacuee Property  in  the  year 1950.   Sometime in the year 1951 the Custodian  of  Evacuee Property suo motu revised the orders of the Deputy Custodian passed in the year 1950 on the ground that the agreements on the basis 248 of  which  the applications for confirmation  were  made  by Bharoomal and Padma Devi do not amount to transfers and that consequently  they  could not be, confirmed.  He  also  held that the, deeds of transfer  obtained by Bharoomal and Padma Devi from the  court were not confirmed by the Custodian and that, therefore, the possession of Bharoonal and Padma  Devi over  the  properties  in  question  which  wore  admittedly evacuee properties was unauthorised.  He, therefore, ordered that  possession  of  the  properties  be  taken  back  from Bharoomal and Padma Devi and that they should be required to account  for  the rent& and profits realised  by  them  from these properties.  These persons preferred applications  for revision  before the Custodian-General of Evacuee  Property. Their applications were, as already stated, rejected by him. In the appeal to this Court the only ground pressed is  that the Custodian had no jurisdiction to pass an order requiring the  appellants to render accounts of the rents and  profits from the properties in their possession.  Mr. Achhruram, who appears  for them, accepts the position that the  orders  of the Deputy Custodian of Evacuee Property passed in the  year 1950 confirming the transfers were rightly set aside by  the Custodian  in  revision.  Therefore, only a  short  question falls  to  be  determined  by us and  that  is  whether  the Custodian  was right in further ordering the  appellants  to render accounts of rents and profits from the properties  in their possession.

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We  asked  Mr. Gopal Singh, who appears for  the  Custodian- General, to show us any provision in the Act or in the rules which authorises the Custodian of Evacuee Property to direct a person who is alleged to be in unauthorised possession  of evacuee property to render accounts for rents and profits of those  properties without resorting to the  ordinary  remedy provided by law, that is by way of suit. Mr.  Gopal  Singh contends that as soon as Nanan  Begum  and Tahir  Ali  migrated  to Pakistan their  property  in  India automatically  vested in the Custodian of  Evacuee  Property under  cl.  5(1)  of  the U. P.  Ordinance  1  of  1949  and continued to vest under Central 249 Ordinance  No.  XII  of  1949  which  replaced  the  U.   P. Ordinance.   By  virtue  of  sub-s.  (2)  of  s.  8  of  the Administration of Evacuee Property Act, 1950 (XXXI of  1950) which came into force on April 18, 1950, the property  which is vested in the Custodian under any law repealed by the Act shall be deed to be evacuee  property within the  meaning of the Act and shall be deemed to have vested in the  Custodian appointed  under that Act.  The Central 1 Ordinance  XII  of 1949  was  one  of the laws repealed by the  Act.   He  then referred  to  s.  10  and  contended  that  thereunder   the Custodian  has  the power to recover  from  an  unauthorised occupant of evacuee property the rents and profits  realised by  him  during the period of his  unauthorised  occupation. Sub-section (1) of s. 10 reads thus:               "Subject  to the provisions of any rules  that               may be made in this behalf, the Custodian  may               take such measures as lie considers  necessary               or  expedient  for the purposes  of  securing,               administering,  preserving  and  managing  any               evacuee property and generally for the purpose               of  enabling him satisfactorily  to  discharge               any  of the duties imposed on him by or  under               this  Act  and may, for any  such  purpose  as               aforesaid, do all acts and incur all  expenses               necessary or incidental thereto." According  to him the words "for the purposes  of  securing, administering,preserving     and   managing   any   evacuee property"effectively  confer  on  the  Custodian  power  to recoverrents and profits of the property from the  person in possession.  There is nothing in the words relied on from which  a power of the kind contended for by learned  counsel can  be  deduced.   Sub-section (2) of  s.  10  specifically enumerates  some  of the powers of the  Custodian.   Learned counsel was not able to point to anything in the sub-section which  confers power on the Custodian to recover  rents  and profits  from  a  person  in  unlawful  possession  of   the properties.  Learned counsel then referred to r. 10 and said that this rule would entitle the Custodian to determine  and recover  rents  and profits from unauthorised  occupants  of evacuee property.  Sub-rule 1 32 250 of  r.  10 undoubtedly authorises the Custodian  to  recover possession  of  property from the evacuee or from  a  person whether  holding  on  behalf of, or  under  the  evacuee  or otherwise  and  not  having a  lawful  title  to  possession thereof as against the Custodian.  There is  nothing in this sub-rule  which further entitles the Custodian to  determine and recover rents and profits from an unauthorised  occupant of  evacuee  property.   Sub-rule 2 of r.  10  empowers  the Custodian  to  issue a notice to a tenant or a  licensee  in possession  of  evacuee property whom the  Custodian  cannot

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eject  or does not want to eject.  For one thing  this  sub- rule  cannot  apply  to a person who :Is alleged  to  be  in unauthorised occupation of evacuee property.  Then again  it does  not  confer any power on the  Custodian  to  determine rents  and profits or to recover rent in a  summary  manner. In  the circumstances we must hold that this provision  also does  not  help  the  respondent.   Such  being  the   legal position,  we must quash and set aside that portion  of  the order of the Custodian, confirmed by the Custodian  General, which  requires the appellants to pay rents and  profits  in respect of properties of Nanan Begum and Tahir Ali in  their possession.   Both parties will, however, be at  liberty  to take  such  steps  is  may  be  open  to  them  at  law  for establishing or enforcing their respective claims. Costs  of the appeal will be borne by the  respondents.   As the  appeals  were argued together there will  be  only  one hearing fees.                                    Appeals allowed. 251