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PETITIONER: HAJI SIDDIK HAJI UMAR & OTHERS

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT18/01/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SEN, A.P. (J) MISRA, R.B. (J)

CITATION:  1983 AIR  259            1983 SCR  (2) 249  1983 SCC  (1) 408        1983 SCALE  (1)48

ACT:      Administration of  Evacuee  Property  Act,  1950-Sub-s. (2A) of  s. 8  and ss.  28 and  46-Property  taken  over  as evacuee property  under any repealed law-Sub-s. (2A) of s. 8 operates even  if there  is no  defect in  previous law  and cures  all   defects  in  taking  over-ss.  28  and  46  bar jurisdiction of  civil court  to  interfere  in  any  matter determined by Custodian General or Custodian.

HEADNOTE:      Sub s.  (2A) of  s. 8  of the Administration of Evacuee Property Act,  1950 states that all property which under any law repealed  by the  Act purports to have vested as evacuee property in any person exercising the powers of Custodian in any State  shall, notwithstanding  any  defect  in,  or  the invalidity of  such law  or any judgment, decree or order of any Court  be deemed for all purposes to have validly vested in that  person, as  if the  provisions of such law had been enacted by  Parliament  and  such  property  shall,  on  the commencement of  the Act,  be deemed  to have  been  evacuee property declared  as such within the meaning of the Act and accordingly, any  order made  or other  action taken  by the Custodian or,  any  other  authority  in  relation  to  such property shall  be deemed  to have been validly and lawfully made or taken.      The properties  which were  the subject  matter of  the suit from  which this  appeal  arose  were  situate  in  the erstwhile State  of Junagadh  and belonged  to one Haji Umar Kasam who  had sailed  from Bombay  on October  8, 1947 on a pilgrimage to  Mecca. On  May 1, 1948 a notice in respect of these properties was issued under the Junagadh State Evacuee (Administration of  Property) Act  XII of  1948 but  it  was withdrawn on May 31, 1948 on receipt of a reply from his son that he had not gone away from Junagadh out of fear of civil disturbances but in fact had gone on Haj and was expected to return shortly. Since he did not return till September, 1948 the  Custodian  took  possession  of  the  suit  properties. Thereafter the  territory of Junagadh became integrated with the United  States of  Saurashtra and  the Junagadh  Act was repealed  by  a  Saurashtra  Ordinance  which  in  turn  was repealed by  a  Central  Ordinance.  The  Administration  of

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Evacuee Property Act, 1950 replaced the Central Ordinance.      An order  declaring Haji  Umar Kasam  as an evacuee was issued on  May 20,  1949 by  the Custodian purporting to act under the  Junagadh Act. The appeal filed against this order before the  District Judge,  Junagadh was transferred by him to the  High Court of Saurashtra which in turn sent the same to the Custodian of Saurashtra for disposal. Haji Umar Kasam returned to India 250 during the  pendency of  that appeal  and filed  a  petition under the provisions of the Central Ordinance-which had come into force  by then-before  the Custodian General requesting him to  transfer the appeal to his file for disposal. Before this petition  could be  heard, the  appeal was dismissed by the Custodian  of Saurashtra  on June  2, 1950.  A  revision filed against  this order was dismissed on August 9, 1950 by the Custodian  General along  with the petition for transfer of the  appeal which  had  been  filed  earlier.  Haji  Umar Kasam’s application under s. 16 of the Central Ordinance for restoration of  his property  was also  turned down when the Central  Government   declined  to   grant  the  certificate contemplated under  the proviso to sub-s. (1) thereof on the ground that, contrary to his claim that he had gone to Mecca and stayed there, there was evidence suggesting that he must have been  in Karachi  for a major part of the period during which he was away from India. A notification was also issued in respect  of the  suit  properties  under  s.  12  of  the Displaced Persons  (Compensation  and  Rehabilitation)  Act, 1954.      The heirs  and legal representatives of Haji Umar Kasam filed the  suit contending  that he was not an evacuee; that the taking  over of  possession of  the properties after the withdrawal of  the notice  on May  31, 1948  without issuing further  notice   was  illegal;   that  an  order  directing restoration of  the properties  to Haji  Umar Kasam had been passed on  March 1,  1949 and therefore the order of May 20, 1949 declaring  him an  evacuee without  issuing  notice  or holding an  inquiry was  illegal; and that the orders passed by the  Custodian and  the Custodian General on June 2, 1950 and August  9, 1950  respectively as  well as the refusal by the Government of India to grant the certificate under s. 16 were all contrary to law.      The Union  of India  which contested  the suit  did not deny that an order was made on March 1, 1949 as stated above but pleaded  that the  order dated  May 20,  1949  had  been passed in accordance with law after making necessary inquiry at  which   the  plaintiffs   had  been   given   sufficient opportunity to  prove  that  Haji  Umar  Kasam  was  not  an evacuee. Ii  placed reliance  on the  order  passed  on  the application made  under s.  16 and  the notification  issued under s.  12 of  the  Displaced  Persons  (Compensation  and Rehabilitation) Act,  1954 and  on s.  46 which  barred  the jurisdiction of  the civil  court to  decide  the  questions raised in the suit.      The trial  court dismissed  the  suit  and  the  appeal against its dismissal was rejected by the High Court. On the question relating  to the existence of the order of March 1, 1949 directing  the restoration  of properties  of Haji Umar Kasam, while  the trial court was of the view that there was no such  order, the  High Court  held that such an order had been made;      Dismissing the appeal, ^      HELD :Sub-s.  (2A) of s. 8 operates even if there is no defect in  any previous  law under which action is taken and

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cures all  defects, if  any,  in  the  taking  over  of  the properties as evacuee properties. The words "notwithstanding any defect  in  or  the  invalidity  of,  such  law  or  any judgment, decree or order of any 251 Court" found  in  this  sub-section  do  not  cut  down  the operation of  the  clear  words  of  the  sub-section  which validate the  vesting of any property which purports to have vested  as   evacuee  property   even  if   there  was   any irregularity  in  the  procedure.  The  non-obstante  clause referred to  above is  not  intended  to  whittle  down  the operation of  sub-s (2A)  of s. 8. It is introduced only out of abundant  caution. In  the context  in  which  this  sub- section appears  it is  not correct  to hold  that it  would operate only  where there  is any defect in or invalidity of any previous  law or  where there is any judgment, decree or order of any court to the contrary. [267 A-E]      The Dominion  of India  & Anr.  v. Shrinbai  A. Irani & Anr., [1955]  1 S.C.R. 296; Azeemunnisa & Ors. v. The Deputy Custodian Evacuee Properties, District Deoria & Ors., [1961] 2 S.C.R.  91 and  M/s. Haji Esmail Noor Mohammed & Co & Ors. v. The  Competent Officer,  Lucknow &  Ors., [1967] 3 S.C.R. 134, referred to.      Ahmedbhai Abdulkadar & Ors. v. The Custodian of Evacuee Property and  Regional  Settlement  Commissioner,  Bombay  & Ors., A.I.R. 1971 Gujarat 181, approved.      In the instant case it cannot be disputed that the suit properties had  been taken  over under  the Junagadh  Act as evacuee properties  in September,  1948 and had continued to be in  the possession  of the  Custodian till  the  Act  was passed and  therefore it  is not  possible to hold that they were not evacuee properties. [268 H, 269 A]      (ii) Whereas  under s.  7 of  the Act an enquiry had to precede the  declaration that  a  property  was  an  evacuee property,  under  the  Junagadh  Act  no  such  enquiry  was contemplated. The Custodian was required by s. 7 of that Act to take  possession of  any property  which had been left in Junagadh by  an evacuee.  The suit properties had been taken over as  evacuee properties  in September, 1948 because Haji Umar Kasam  had not  returned to Junagadh for over one year. Such taking over was an administrative act. By reason of the combined effect  of ss. 4 and 16 (1) of the Junagadh Act the properties continued  to be  vested in  the  Custodian.  The order dated March 1, 1949 under which it is claimed that the properties  were   ordered  to  be  returned  has  not  been produced. Even if such an order was there unless it is shown that such  an order  had been passed by the State Government and published  in the  Official Gazette, the suit properties would not  cease to be evacuee properties. By virtue of s. 5 of the  Saurashtra  Ordinance  they  became  vested  in  the Custodian of  Saurashtra and  by virtue  of s.  8 (2) of the Central  Ordinance  they  became  vested  in  the  Custodian appointed under  that Ordinance. All properties vested under the Central  Ordinance became  evacuee property in the hands of the  Custodian appointed  under the Act by virtue of sub- ss. (2)  and (2A)  of s. 8. Any doubt that existed about the vesting of  the properties in the Custodian under the Act as evacuee property was removed by enacting sub-s; (2A) of s. 8 with retrospective effect. [261 E-H, 262 A-E, 266 E-F]      (iii) It  is only after the Central Ordinance came into force that  Haji  Umar  Kasam  preferred  his  petition  for restoration of his properties under s. 16 (1) of 252 that Ordinance,  and also  applied for  a certificate as per proviso to  that sub-section  to the  Government  of  India.

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Again it is only after the Act came into force replacing the Central Ordinance that the Custodian General disposed of the petition for  transfer of  the  appeal  pending  before  the Custodian of  Saurashtra and  the  revision  petition  filed against his  order dated  June 2,  1950. The effect of these proceedings have  to be  considered  in  the  light  of  the provisions of the Act. [263 G-H, 264 A-B]      (iv) Section  28 bars  the jurisdiction of any court to entertain any  suit or  proceeding with respect to any order passed by  the authorities  mentioned  therein.  Section  46 which is  worded very  widely bars the jurisdiction of civil or revenue courts in regard to matters mentioned therein. No such court can entertain any suit or proceeding in which the question whether  any property is or is not evacuee property arises or  in which  the legality of any action taken by the Custodian  General   or  the  Custodian  under  the  Act  is questioned. Any  matter which  the Custodian  General or the Custodian is  empowered to  determine by or under the Act is also outside  the jurisdiction of any such court. In view of these provisions  it was  not open  to the  civil  court  to decide whether  the suit  properties were evacuee properties or not. It was also not open to it to decide the correctness of the  order of  the Custodian General dated August 9, 1950 declining to interfere with the order of the Custodian dated June 2, 1950. The question whether a certificate should have been  issued   by  the   Central  Government   also  was  by implication barred  as it  was  the  Custodian  who  had  to restore the property after holding an inquiry into the title of the  evacuee when  an application  was made  to him along with a  certificate issued  by the  Central Government and a certificate of  that nature  by itself  would be  of no use. Neither Haji  Umar Kasam, nor after his death, his heirs and legal representatives,  questioned these  orders before  the High Court under Art. 226 or before this Court under Art. 32 or Art.  136. Thus  they became  final and  were beyond  the jurisdiction of the civil court. [269 C-H, 270 A]      Custodian of  Evacuee Property, Punjab & Ors. v. Jafran Begum, [1967] 3 S.C.R. 736, referred to.      Fazalbhoy  Currimbhoy   etc.  v.  Official  Trustee  of Maharashtra &  Ors., [1979]  2 S.C.R.  699 and  Dr. Rajendra Prakash Sharma  v. Gyan Chandra & Ors., [1980] 3 S.C.R. 207, distinguished.      (v) On  the publication of the notification under s. 12 of the  Displaced Persons  (Compensation and Rehabilitation) Act, 1954 the right, title or interest of Haji Umar Kasam in the suit  properties became  extinguished  and  they  vested absolutely  in   the  Central   Government  free   from  all encumbrances by virtue of s. 12 (2) of that Act. [270 D-E]      Basant Ram  v. Union  of India,  [1962] Supp.  2 S.C.R. 733, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2279 of 1970. 253      From the  Judgment and Decree dated the 28th/29th July, 1970 of  the Gujarat  High Court  in First Appeal No. 438 of 1962.      T.U. Mehta and R.P. Kapoor for the Appellant.      P.A. Francis,  S.N. Chaudhary  and R.N.  Poddar for the Respondent.      R.N. Sachthey for the Intervener.      R.H. Dhebar for the Intervener.

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    The Judgment of the Court was delivered by      VENKATARAMIAH, J.  This appeal  by certificate is filed against the  judgment and  decree dated July 29, 1970 passed by the High Court of Gujarat in First Appeal No. 438 of 1962 affirming the  judgment and  decree dated  August  27,  1962 passed in  Special Civil Suit No. 254 of 1959 on the file of the Civil  Judge (Senior  Division), Junagadh dismissing the suit of  the plaintiffs  for possession  of  the  properties mentioned in  Schedule-I attached  to  the  plaint  and  for damages and other reliefs against the Union of India.      The properties  in question  which are  situated in the area which  formed part  of the  former  princely  State  of Junagadh originally  belonged to  one  Haji  Umar  Kasam,  a resident  of   Junagadh  who  died  on  May  22,  1956.  The plaintiffs are his heirs and legal representatives.      The Nawab  of Junagadh  accepted the  accession of  his State to  Pakistan on August 13, 1947. On September 23, 1947 Haji Umar Kasam left Junagadh for Haj and sailed from Bombay by "S.S. Akbar" on October 8, 1947. On October 24, 1947, the Nawab of  Junagadh fled  to Pakistan.  The State of Junagadh was taken over by its people and a Council of Administration was set up to administer it. Thereafter the State acceded to India.  On   February  13,   1948  Junagadh   State  Evacuee (Administration of  Property) Act  XII of  1948 (hereinafter referred to  as ’the Junagadh Act’) was enacted. It provided for  the  administration  of  the  properties  belonging  to evacuees.  Under  that  Act  the  expression  ’evacuee’  was defined  as  a  person  ordinarily  resident  in  or  owning property or  carrying on  business in  any village  or  town within the 254 Junagadh State  who had  on account of civil disturbances or the fear  of such disturbances left that village or town and did not  personally occupy  or  supervise  his  property  or business. All  property in which an evacuee had any right or interest other  than any  moveable property in his immediate physical possession  which  was  called  ’evacuee  property’ situated within  the Junagadh State came to be vested in the Custodian appointed  for the  purpose of  that Act  and  was directed to  continue to  be so  vested until  the  Junagadh State Government  by notification  otherwise directed. There were  detailed  provisions  in  that  Act  relating  to  the management of evacuee properties. Section 16 (1) of that Act however provided  that on  being satisfied that evacuees had returned or  were  returning  to  the  Junagadh  State,  the Junagadh State Government might by notification in the State Gazette authorise  return of  the property  to the owners in accordance  with   the  aforesaid  section  16.  Any  person claiming to  be entitled to any such property could apply in writing to  the Custodian who had after giving public notice to hold  a summary  enquiry into  the claim  and to  pass  a formal order  declaring the person to whom the possession of the property  might be delivered. A notice was issued by the Assistant-Custodian who  also  exercised  certain  specified powers of  the Custodian  under the  Junagadh Act  on May 1, 1948 in  respect of  the properties of Haji Umar Kasam as he had not  returned to Junagadh and was away for more than six months. On May 5, 1948 his son Haji Mohamed Siddik Haji Umar sent a  reply to  that notice  stating that  his father Haji Umar Kasam  had not  gone away  from Junagadh out of fear of civil disturbances;  that he had gone on ’Haj’; that all his heirs were  living in  Junagadh and  that he  was  returning shortly and therefore his properties might not be treated as evacuee properties.  No specific  reason was, however, given in the  said reply  for the long delay in the return of Haji

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Kasam. On  receipt of his reply that notice was withdrawn on May 31,  1948. Since  Haji Umar  Kasam had not returned till September, 1948  the possession  of the  suit properties was taken by  the  Custodian  between  September  23,  1948  and October 1,  1948 as  evacuee properties.  By the  Saurashtra Ordinance III  of 1949,  the territory of the Junagadh State was integrated  with the  United States of Saurashtra. It is alleged that by an order dated March 1, 1949 Haji Umar Kasam was declared to be a non-evacuee and the ice factory, one of the suit properties, was ordered to be returned to his sons. This fact  is disputed  by the  Union of  India although the High Court of Gujarat has held that there was such an order. The possession of 255 the ice  factory was not, however, returned. It continued to be with  the Custodian.  But again  on  May  20,  1949,  the Custodian  purporting   to  exercise  his  power  under  the Junagadh Act  treated Haji  Umar Kasam  as  an  evacuee  and directed that  his ice factory should be taken possession of as an  evacuee property.  The ice  factory was leased out by the State  Government in  favour of  a refugee called Suraji Krishan Nandlal  Chowdhary in  May, 1949.  Since  Haji  Umar Kasam had  not yet  returned to  India, his  sons  filed  an appeal in  July, 1949  before the  District Judge,  Junagadh against the  order declaring him as an evacuee. On August 4, 1949 the  Saurashtra Ordinance  XLIII of  1949  (hereinafter referred  to  as  the  ’Saurashtra  Ordinance’)  was  passed repealing the  Junagadh Act  and under  that  Ordinance  the properties vested  in the  Custodian under  the Junagadh Act came to  be vested  in the Custodian of the United States of Saurashtra. This  Ordinance was repealed and replaced by the Administration of  Evacuee Property  Ordinance No.  XXVII of 1949 (hereinafter  referred to  as the  ’Central Ordinance’) which applied  also to all the acceding States except Cooch- Behar, Manipur  and Tripura  with effect  from  October  18, 1949. The Central Ordinance was repealed and replaced by the Administration of  Evacuee Property  Act, 1950  (Act XXXI of 1950) (hereinafter referred to as ’the Act’) which came into force on  April 17,  1950. Haji Umar Kasam returned to India on December  23,1949 after  the Central  Ordinance had  come into force.      Now reverting  to the  appeal preferred  by the sons of Haji Kasam  filed in  July, 1949  before the District Judge, Junagadh it  is seen that the said appeal was transferred by the District  Judge to  the High  Court of  Saurashtra State without deciding  it. The  High Court in its turn as per its order dated  March 22, 1950 sent the appeal to the Custodian of Evacuee Property of Saurashtra on a joint submission made by the  counsel appearing  for the appellants as well as the counsel for  the Custodian with which the High Court agreed. When the  said appeal  was pending  before the  Custodian, a petition purporting to be under sub-section (2) of section 6 and section  27 of  the Central  Ordinance was  presented by Haji Umar  Kasam himself to the Custodian General of Evacuee Property requesting  him to  withdraw the appeal to his file and to dispose it of. That petition dated April 17, 1950 was actually presented  on April  19,  1950.  Before  the  above petition could  be  heard  by  the  Custodian  General,  the Custodian dismissed  the appeal  on  June  2,  1950  on  two grounds viz. (i) that the appeal had 256 been filed  after the expiry of the period of limitation and (ii) that  Haji Umar  Kasam having  left the  Junagadh State limits after  August 15, 1947 and having not returned by the time the  order under appeal was passed i.e. May 20, 1949 he

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had been rightly treated as an evacuee.      Against the order passed by the Custodian on the appeal on June  2, 1950  a revision  petition was  filed before the Custodian General under section 27 of the Act. The Custodian General took  up for  consideration the  petition  filed  on April 19,  1950 requesting  him to  withdraw the appeal then pending before the Custodian and the revision petition filed against  the   order  passed  in  appeal  by  the  Custodian together. After  hearing the counsel for Haji Umar Kasam the Custodian General disposed them of by his order dated August 9, 1950. Though he agreed with the submission made on behalf of Haji  Umar Kasam  that the appeal filed against the order passed by  the Custodian, Junagadh on May 20, 1949 could not be disposed of by the Custodian of Saurashtra State, who was of the  same rank  as the Custodian who had passed the order under appeal,  he found  it difficult to go behind the order of the  High Court  of Saurashtra  which had transferred the appeal to  the Custodian of Saurashtra by its order agreeing with the  joint submission  made  by  the  counsel  for  the appellants therein  and the  counsel for the Custodian. That Judicial order  according to  the Custodian  General, having become final  could not  be interfered  with by him. He also felt that it was not possible for him to set aside the order of May  20, 1949  passed by  the Custodian,  Junagadh as the office of  the Custodian  General was not in existence then, even if  he could  interfere with the appellate order passed by the  Custodian of  Saurashtra holding that the appeal was barred by  time. For  these and other reasons, the Custodian General dismissed both the petition dated April 19, 1950 and the revision  petition by  his order  dated August  9, 1950. That order was allowed to become final.      Haji Umar  Kasam also  made an  application in January, 1950 to  the Custodian for restoration of his property under section 16 of the Central Ordinance. That Section read as:           "16. Restoration  of Property:  (1) the  Custodian      may, on  application made  to him  in  this  behalf  in      writing by  an evacuee  or any person claiming to be an      heir of  an evacuee,  restore subject to such terms and      conditions as he may think 257      fit to  impose,  the  evacuee  property  to  which  the      evacuee or  other person  would have  been entitled  if      this Ordinance were not in force:           Provided that the applicant produces in support of      his  application   a  certificate   from  the   Central      Government or  from any person authorised by it in this      behalf, to  the effect that the evacuee property may be      so restored  if the  applicant  is  otherwise  entitled      thereto.           (2) On receipt of an application under sub-section      (1), the Custodian shall cause public notice thereof to      be given in the prescribed manner, and, after holding a      summary inquiry into the claim in such manner as may be      prescribed may-           (a)  make  a   formal  order  declaring  that  the                property shall  be restored to the applicant:                or           (b)  reject the application; or           (c)  refer the  applicant to a civil court for the                determination of  his claim  and title to the                property:           Provided that  no order  for restoration  shall be      made under this section, unless provision has been made      in the prescribed manner for the recovery of any amount      due to  the Custodian in respect of the property or the

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    management thereof.           (3) Upon  the restoration  of the  property to the      evacuee or  to the  heir,  as  the  case  may  be,  the      Custodian shall  stand absolved of all responsibilities      in respect  of  the  property  so  restored,  but  such      restoration shall  not prejudice the rights, if any, in      respect of  the property  which any other person may be      entitled to  enforce against  the person  to  whom  the      property has been so restored:           Provided that  every lease  granted in  respect of      the property  or on  behalf of the Custodian shall have      effect against  the person  to whom restoration is made      until such  lease is  determined by lapse of time or by      operation of law." (Underlining by us) 258           [Note: Section 16(1) of the Act which replaced the      Central Ordinance  on April  17, 1950  was in  the same      terms.]      On receipt  of that  application  filed  by  Haji  Umar Kasam, the  Custodian informed him on February 25, 1950 that in order to proceed with it, it was necessary that he should produce  a   certificate  of   the  Central   Government  as contemplated under  the proviso  to section  16(1)  set  out above. Accordingly  he applied  to the Custodian General for such a  certificate on  March 19, 1950. That application was sent to  the Custodian of Saurashtra for enquiry and report. The Custodian  submitted his  final report on June 30, 1953. In his  application Haji  Umar Kasam had claimed that he had left India  for the  purpose of  Haj and  had gone  to Mecca where he  fell ill  necessitating a prolonged stay there. He also claimed  that  he  had  stayed  all  along  there  from September 1947  to December  1949 when he returned to India. In  support  of  his  case  he  produced  certificate  dated December 3,  1949 issued  by the  Indian  Consul  at  Jeddah (Saudi Arabia)  saying that he had been unavoidably detained there and  could not  be repatriated earlier. On enquiry the Custodian found  that apart  from the  other  circumstances, such as  earlier statements  made by  the sons  of Haji Umar Kasam, certain  remittances sent  from the  Bank  of  India, Junagadh Branch  to  him  which  were  encashed  at  Karachi suggested that Haji Umar Kasam must have been in Karachi for a major  part of  the period  during which  he was away from India.      The following was the list of remittances:              "THE BANK OF INDIA JUNAGADH BRANCH      Amount remitted  by various  individuals and  firms  to parties residing in Karachi (Pakistan) through this branch. ____________________________________________________________ Sr. Date of    Name of remitter    Amount   Name of Receiver No. remittance                     remitted    in Pakistan ____________________________________________________________ 1        2          3          4                 5 ____________________________________________________________ 24  3-11-47     Haji Ibrahim Ayub    12,000  Haji Umar Kasam 70  22-11-47    Haji Ibrahim Ayub     4,500  Haji Umar Kasam 167 27-11-47    Haji Ibrahim Ayub     3,500  Haji Umar Kasam 488 23-1-48     Baramain H. Mian      1,000  Haji Umar Kasam 573 10-4-48     Alibhai Haji Hakim-   2,000  Haji Umar Kasam                 bhai 592  1-5-48     Haji A. Haji Umar     5,000  Haji Umar Kasam 617  7-6-48     Haji A. Haji Umar     5,000  Haji Umar Kasam 620  9-6-48     Abdreman Kasam        1,800  Umar Kasam" ____________________________________________________________ 259      The Custodian  reported that  the evidence  before  him

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revealed that  Haji Umar  Kasam had  received  the  payments through the  above bank  remittances at Karachi and that the case that Haji Umar Kasam had stayed in Mecca throughout was not believable.  After considering  the entire matter before it and  the report referred to above the Government of India declined to  grant a  certificate referred to in the proviso to  section  16  (1)  of  the  Act  as  it  stood  then  and communicated its  decision to  Haji Umar  Kasam through  the Custodian, Saurashtra  on July  3, 1954  This decision again was not  questioned  in  any  court.  A  notification  under section  12  of  the  Displaced  Persons  (Compensation  and Rehabilitation) Act,  1954 was  issued  in  respect  of  the properties in question on June 8, 1955. No further effective action appears to have been taken by Haji Umar Kasam against this notification except writing letters to the ministers of the Government  of India,  some of which are produced before this Court  by way  of answer to a question put by the Court as  to   whether  any  such  action  was  taken  before  the institution of the suit.      As mentioned  earlier Haji  Umar Kasam  died on May 22, 1956. Thereafter  his heirs  and legal representatives filed the suit  out of  which this  appeal arises in the year 1959 after issuing  the required  notice dated  January  2,  1959 under section  80 of  the Code  of Civil  Procedure. In that notice, it was stated that the Special Custodian Officer had taken possession  of the  suit properties  between September 23, 1948  and October  1, 1948  illegally acting in abuse of his power.  The plaintiffs  demanded the  return of the suit properties and  also damages  for  illegal  possession  from October 1, 1948 to January 1, 1959.      The main  contention of  the plaintiffs  in the suit is set out  in paragraphs  4 and 5 of the plaint. It is pleaded therein that  Haji Umar  Kasam was not an evacuee ; that the first notice  issued by  the Custodian Officer was withdrawn on May  31, 1948 ; that again in September, 1948 the Special Custodian Officer  had taken  possession of  the ice factory belonging to  Haji Umar  Kasam without issuing any notice to him and  later on  a representation  made by the plaintiffs, the Special  Custodian Officer  passed an  order on March 1, 1949 directing  the restoration  of the  properties of  Haji Umar Kasam  to him  and that  again  on  May  20,  1949  the Custodian  of   Evacuee  Property,   Junagadh  had   made  a declaration that Haji Umar Kasam was an evacuee and directed the taking over of his properties. It is 260 contended that  the order  of May  20, 1949 which was passed without issuing  notice and without holding an enquiry after the order  of March  1, 1949  was illegal  and in  excess of jurisdiction. In  paragraphs 6  and 7  of the plaint, it was alleged that  the order  passed by  the Custodian on June 2, 1950 was bad in law and the rejection of the petition by the Custodian General  on August  9, 1950 and the refusal by the Government of  India to  grant the certificate under section 16 of the Act were again contrary to law. The suit was filed by the heirs and legal representatives of Haji Umar Kasam on the above  basis for  possession of  the  twelve  properties mentioned  in   Schedule-I  attached  to  the  plaint  which originally belonged  to him.  The defendant, Union of India, which contested the suit while not denying that an order was made on  March 1,  1949 as  stated above, inter alia pleaded that the  order dated  May  20,  1949  had  been  passed  in accordance with  law after making necessary inquiry at which the plaintiffs  had been  given  sufficient  opportunity  to prove that  Haji Umar Kasam was not an evacuee. Reliance was also placed  by the  Union of  India on the orders passed on

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the application  made under  section  16  of  the  Act,  the notification  issued  under  section  12  of  the  Displaced Persons (Compensation  and  Rehabilitation)  Act,  1954  and section 46  of the  Act which barred the jurisdiction of the civil court to decide the questions raised in the suit.      On the  aforesaid pleadings,  the trial court framed as many as  fifteen issues  and at  the conclusion of the trial recorded its  findings on  them.  Ultimately  the  suit  was dismissed. The  High Court in appeal discussed the effect of some of  the provisions  of law  applicable to  the case and dismissed the appeal. It did not, however, deal with all the issues. It may be noted that on the question relating to the existence of  the order  of March  1, 1949  while the  trial court was of the view that there was no such order, the High Court held that such an order had been made.      In order  to deal  with the  contentions of the parties before us  it is  necessary to  deal with  the effect of the orders passed from time to time under the various provisions of  law   applicable  to  the  case.  These  orders  can  be classified into  two groups  viz. those  passed prior to the coming into  force of  the Central  Ordinance i.e.  prior to October  18,   1949  and  those  passed  after  the  Central Ordinance came into force.      We shall first deal with the orders passed prior to the coming into  force of  the  Central  Ordinance.  It  is  now necessary to consider 261 the provisions  of the Junagadh Act which came into force on February 13, 1948. It did not provide for any enquiry before treating any  property as evacuee property. Section 2 (b) of the Junagadh  Act defined  the term  ’evacuee’ and section 2 (c) defined  the term  ’evacuee property’ as all property in which an  evacuee had  any right  or interest. The object of the Junagadh  Act was to make provision for the preservation and the  management of evacuee properties. Section 4 of that Act provided  that an  evacuee property  situated within the Junagadh State  would vest  in the Custodian for the purpose of that  Act and  would continue  to be  so vested until the Junagadh  State   Government   by   notification   otherwise directed. Section  7 of  that Act  required the Custodian to take possession of all evacuee properties. Section 8 of that Act provided for an enquiry by the Custodian into the claims of any  person in respect of property taken possession of by him as evacuee property. If the Custodian was satisfied that the claimant  had any  right to it, he had to give effect to it. But  if he rejected the claim, the aggrieved party could file an appeal before the High Court. Section 16 (1) of that Act empowered  the Junagadh State Government by notification in the  State Gazette to authorise the return of any evacuee property on  being satisfied  that the concerned evacuee had returned or  was returning  to the  State of  Junagadh after holding an  enquiry into  the title  of such  evacuee to the property in  question. It  is thus clear that the pattern of the provisions  of the  Junagadh Act  was different from the provisions of the Act. Whereas under section 7 of the Act an enquiry had  to precede  the declaration that a property was an evacuee  property under  the Junagadh Act no such enquiry was contemplated. But the provisions of the Junagadh Act did not allow  any unjust  results to  follow. The Custodian was required to  take possession  of any property which had been left in Junagadh by an evacuee and to preserve and manage it until the  evacuee returned and on his return the possession was to  be restored  to him.  There was  no violation of any principles of  natural  justice  as  such  involved  in  the process. On  the other  hand it provided for a machinery for

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preventing the  properties of  evacuees  being  occupied  by trespassers and  for their preservation. The suit properties had been  admittedly taken  over by the Custodian as evacuee properties in  September, 1948  because Haji  Umar Kasam had not returned to Junagadh for over one year. Such taking over was an  administrative act.  The properties  taken  over  as evacuee properties  under the  Junagadh Act by reason of the combined effect  of section  4 and  section 16  (1) there of continued to be vested in the Custodian until 262 the Junagadh  State Government  by notification published in the Official  Gazette authorised  their restoration  to  the owner. No  Gazette notification authorising such restoration is produced  before the Court. The order dated March 1, 1949 under which  it is  claimed that the properties were ordered to be  returned is  also not produced. Even if such an order was there  unless it  is shown  that such  an order had been passed by the State Government and published in the Official Gazette,  the   evacuee  properties  taken  over  under  the Junagadh Act  would not  cease to be evacuee properties. The order dated  May 20,  1949 did  not, therefore,  in any  way alter the  situation. It  only reiterated the true character of the  properties namely  that the  properties in  question were  evacuee  properties  which  had  been  taken  over  in exercise of  the  powers  under  the  Junagadh  Act.  It  is admitted by  Haji Ahmed  Haji Umar,  plaintiff No.  2 in his deposition that they were in the possession of the Custodian when the  Saurashra Ordinance  came into  force on August 4, 1949.  Section   4  of  that  ordinance  provided  that  the provisions contained  in that  Ordinance and  the rules  and orders made  thereunder would  have  effect  notwithstanding anything inconsistent  therewith contained  in any other law for the  time  being  in  force  in  the  United  States  of Saurashtra of  which Junagadh  was a part. Section 5 of that Ordinance provided for the vesting of all evacuee properties situated in the United States of Saurashtra in the Custodian under the  Ordinance. Thus  the  properties  vested  in  the Custodian of  Junagadh came to be vested in the Custodian of the United States of Saurashtra. The properties of Haji Umar Kasam also accordingly became vested in the Custodian of the United States of Saurashtra.      The Central  Ordinance came  into force  on October 18, 1949 and  it was applicable to the State of Saurashtra also. Section 55 of that Ordinance reads as follows ;           "55. Repeals and saving. (1) The administration of      Evacuee Property  Ordinanc, 1949  (XII of  1949), as in      force in  the Chief  Commissioners’ Provinces  and  the      Province of  Madras and  the United Provinces is hereby      repealed.           (2) If,  immediately before  the  commencement  of      this Ordinance, there is in force in any Province other      than any  of the Provinces specified in sub-section (1)      or in  any Acceding  State any law corresponding to the      Administra 263      tion of Evacuee Property Ordinance, 1949, that law also      shall stand repealed.           (3) Notwithstanding the repeal by the Ordinance of      the Administration of Evacuee Property Ordinance, 1949,      or of  any corresponding  law,  anything  done  or  any      action taken  in the exercise of any power conferred by      that Ordinance or law shall be deemed to have been done      or taken  in the  exercise of  the powers  conferred by      this Ordinance,  and any penalty incurred or proceeding      commenced under  that Ordinance  or law shall be deemed

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    to be  a penalty incurred or proceeding commenced under      this Ordinance  as if  this Ordinance  were in force on      the day  on which  such thing  was done,  action taken,      penalty incurred or proceeding commenced."      Sub-sections (2)  and (3) of section 55 extracted above treated all  actions taken  under the  Saurashtra  Ordinance which also  came to  be repealed  as actions taken under the Central Ordinance.  By section  8 (2)  of this Ordinance all evacuee properties  vested in  the Custodian  of the  United States  of   Saurashtra  became   vested  in  the  Custodian appointed or  deemed to  be appointed  under it.  That  sub- section reads as.           "8. Vesting of evacuee property in the Custodian           (1) ............................................           (2) Where  immediately before  the commencement of      this Ordinance  any evacuee  property in a Province had      vested  in  any  person  exercising  the  powers  of  a      Custodian under  any law  repealed hereby,  the evacuee      property shall,  on the commencement of this Ordinance,      be deemed  to have vested in the Custodian appointed or      deemed to  have been  appointed for  the Province under      this Ordinance, and shall continue to so vest."      It is  only after the Central Ordinance came into force that Haji  Umar Kasam who had returned to India in December, 1949  preferred   his  petitions   for  restoration  of  his properties under section 16 (1) of the Central Ordinance and also applied  for a  certificate as per proviso to that sub- section to  the Government  of India. Again it is only after the Act  came into  force on  April 17,  1950 replacing  the above Central  Ordinance, the  Custodian General disposed of the 264 petition for  transfer of  the  appeal  pending  before  the Custodian of  Saurashtra and  the  revision  petition  filed against his  order dated  June 2,  1950. The effect of these proceedings have  to be  considered  in  the  light  of  the provisions of  the Act.  The relevant  provisions of the Act which have  to be  considered are  section 8  (2), section 8 (2A), section 16 (1), section 28, section 46 and section 58. It may  he mentioned here that section 8 (2A) of the Act was inserted into  the Act  by  the  Administration  of  Evacuee Property (Amendment)  Act, 1960  (Act I of 1960) on February 27, 1960  but section  2 of  that Act declared that new sub- section "shall  be inserted  and shall  be deemed  always to have been inserted" thus giving it retrospective effect from the date  of the  commencement of  the Act. Section 16(1) of the Act  was in  the same  terms as  section 16  (1) of  the Central  Ordinance   extracted  above.  The  other  relevant provisions of the Act are given below :           "8. Vesting of evacuee property in the Custodian.           (1) .............................................           (2) 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 :           Provided that  where at  the commencement  of this      Act  there  is  pending  before  the  High  Court,  the      Custodian or  any other  authority for  or in any State      any proceeding  under section  8 or  section 30  of the

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    Administration of Evacuee Property Ordinance, 1949 (XII      of 1949), or under any other corresponding law repealed      by the  Administration of  Evacuee Property  Ordinance,      1949 (XXVII  of 1949),  then  notwithstanding  anything      contained in  this Act  or any  other law  for the time      being in force, such proceeding shall be disposed of as      if the  definitions of ’evacuee property’ and ’evacuee’      contained  in   section  2   of  this  Act  had  become      applicable thereto. 265           (2A) Without  prejudice to  the generality  of the      provisions contained  in sub-section  (2), all property      which under  any law  repealed hereby  purports to have      vested as evacuee property in any person exercising the      powers of Custodian in any State shall, notwithstanding      any defect  in, or  the invalidity  of, such law or any      judgment, decree  or order  of any court, be deemed for      all purposes  to have validly vested in that person, as      if the  provisions of  such law  had  been  enacted  by      Parliament and such property shall, on the commencement      of this  Act, be  deemed to  have been evacuee property      declared as  such within  the meaning  of this  Act and      accordingly, any  order made  or other  action taken by      the Custodian  or, any  other authority  in relation to      such property  shall be deemed to have been validly and      lawfully made or taken.           28. Finality  of orders under this Chapter-Save as      otherwise expressly  provided in  this  Chapter,  every      order made  by the  Custodian-General, District  Judge,      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.           46. Jurisdiction of civil courts barred in certain      matters. 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           (b)  ......... ......           (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. 266           58.  Repeals  and  savings-The  Administration  of      Evacuee Property  Ordinance,  1949  and  the  Hyderabad      Administration  of   Evacuee  Property  Regulation  are      hereby repealed.           (2) If,  immediately before  the  commencement  of      this Act,  there is in force in any State to which this      Act extends  any law  which corresponds to this Act and      which  is   not  repealed   by  sub-section  (1),  that      corresponding law shall stand repealed.           (3) The  repeal by  this Act of the Administration      of Evacuee  Property Ordinance,  1949, or the Hyderabad      Administration of Evacuee Property Regulation or of any      corresponding  law   shall  not   affect  the  previous      operation   of    that   Ordinance,    Regulation    or      corresponding law and subject thereto, anything done or      any action taken in the exercise of any power conferred

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    by or under that Ordinance, Regulation or corresponding      law, shall  be deemed to have been done or taken in the      exercise of  the powers  conferred by or under this Act      as if  this Act  were in force on the day on which such      thing was done or action was taken."      The effect  of the  provisions of  the Act in so far as this  case   is  concerned   may  be  summarised  thus:  All properties  vested   in  the  Custodian  under  the  Central Ordinance became  evacuee  property  in  the  hands  of  the Custodian appointed  under the Act by virtue of sub-sections (2) and (2A) of section 8 of the Act. Any doubt that existed about the  vesting of  the properties in the Custodian under the Act  as evacuee property was removed by enacting section 8 (2A)  of the  Act with  retrospective effect. It says that all property  which  under  any  law  repealed  by  the  Act purports to  have vested  as evacuee  property in any person exercising the  powers of  Custodian  in  any  State  shall, notwithstanding any  defect in or the invalidity of such law or any  judgment, decree,  order of  any court be deemed for all purposes to have validly vested in that person as if the provisions of  that law  had been  enacted by Parliament and such property shall on the commencement of the Act be deemed to have  been evacuee  property declared  as such within the meaning of  the Act  and accordingly any order made or other action taken  by the  Custodian or  any other  authority  in relation to  such property  shall be  deemed  to  have  been validly and lawfully made or taken. This 267 provision operates  even  if  there  is  no  defect  in  any previous law  under which  action is  taken  and  cures  all defects, if  any, in  the taking  over of  the properties as evacuee properties. The words ’notwithstanding any defect in or the  invalidity of,  such law or any Judgment, decree, or order of  any court’  found in sub-section (2A) of section 8 of the  Act do not cut down the operation of the clear words of that  sub-section  which  validate  the  vesting  of  any property which  purports to  have vested as evacuee property even if  there was  any irregularity  in the  procedure. The non-obstante clause  referred to  above is  not intended  to whittle down the operation of sub-section (2A) of section 8. It is  introduced only out of abundant caution. Omitting the non-obstante clause,  sub-section (2A)  of section  8  would read:           "without  prejudice   to  the  generality  of  the      provisions contained  in sub-section  (2), all property      which under any law repealed purports to have vested as      evacuee property in any person exercising the powers of      Custodian in any State shall be deemed for all purposes      to have validly vested in that person......."      In the  context in  which sub-section (2A) of section 8 of the  Act appears,  it is  not, therefore, correct to hold that sub-section  (2A) would operate only where there is any defect in  or invalidity  of any previous law or where there is any  judgment, decree  or  order  of  any  court  to  the contrary. This  view  receives  support  from  the  rule  of construction adopted  by this Court in The Dominion of India & Anr.  v. Shrinbai  A. Irani  & Anr.(1)  The High  Court of Gujarat also  has taken the same view of sub-section (2A) of section 8  of the  Act in  Ahmedbhai Abdulkadar & Ors.v. The Custodian  of   Evacuee  Property  and  Regional  Settlement Commissioner, Bombay  & Ors.(2) Dealing with this provision, this Court  observed  in  Azimunissa  &  Ors.v.  The  Deputy Custodian Evacuee  Properties, District  Deoria & Ors.(3) at pages 103-104 thus:           "The word "purport" has many shades of meaning. It

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    means fictitious,  what appears  on  the  face  of  the      instrument; the  apparent and  not the legal import and      therefore any act which purports to be done in exercise      of a power is to be deemed to be done within that power      notwithstanding 268      that the power is not exercisable; Dicker v. Angerstein      [1876] 3  Ch. D.600.  603.  Purporting  is,  therefore,      indicative of  what appears  on the  face of  it or  is      apparent even  though in  law it  may not  be so.  This      means that  at the  time when the Act purported to vest      the property  in dispute  in the  Custodian even though      the power  was not  exercisable, s.  8(2A) by  giving a      retrospective effect  to s.  8(2) of  the Act makes the      vesting as  if it was vesting under s. 8 (2) of the Act      and therefore  the attack  on the  ground of invalidity      cannot be sustained......           The effect of s. 8 (2-A) is that what purported to      have vested  under s.  8 (2) of Ordinance XXVII of 1949      and which  is to  be deemed  to be vested under s. 8 of      the Act  which repealed that Ordinance, notwithstanding      any invalidity in the original vesting or any decree or      order of  the Court  shall  be  deemed  to  be  evacuee      property validly  vested in the Custodian and any order      made by the Custodian in relation to the property shall      be deemed  to be  valid. Thus  retrospective effect  is      given to  the Act  to validate  (1) what purports to be      vested; (2)  removes all  defects or  invalidity in the      vesting  or   fictional  vesting  under  s.  8  (2)  of      Ordinance XXVII  of 1949  or s.  8 (2) of the Act which      repealed the  Ordinance;  (3)  makes  the  decrees  and      judgments to the contrary of any court in regard to the      vesting ineffective;  (4) makes  the  property  evacuee      property by  its deeming  effect; and (5) validates all      orders  passed  by  the  Custodian  in  regard  to  the      property."      Following the  above decision,  this Court in M/s. Haji Ismail Noor  Mohammad &  Co. Ors.  v. The Competent Officer, Lucknow &  Ors. (1)  held  that  where  vesting  of  evacuee properties had taken place under any corresponding law prior to the coming into force of the Central Ordinance and of the Act, no question of making a fresh declaration under section 7 (1)  of the  Central  Ordinance  would  arise.  The  Court further held  that by  reason of the deeming pro- visions in sub-sections (2)  and (2A)  of section  8 of  the Act, there would be  automatic vesting  of such  properties and  such a vesting could not be reopened after the Act came into force. In view  of the  foregoing since  it cannot be disputed that the suit properties had 269 been taken over under the Junagadh Act as evacuee properties in September, 1948 and had continued to be in the possession of the Custodian till the Act was passed, it is not possible to hold that they were not evacuee properties. We are of the view that  they have  to be  dealt with  under  the  Act  as evacuee properties  which has  duly vested  in the Custodian under the Act.      Section 16  of the  Act  provides  for  restoration  of evacuee property  by the  Central Government.  Section 27 of the Act  gives power  of revision  to the  Custodian General either on  his own  motion or  on application made to him to call for  the record  of any  proceeding in order to satisfy himself as  to the legality or propriety of any order passed therein and  to pass  such order  in relation  thereto as he thinks fit.  Section 28  of the Act bars the jurisdiction of

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any Court, of course other than the jurisdiction of the High Court under  Article 226  of the  Constitution  and  of  the Supreme Court  under Article  32  and  Article  136  of  the Constitution  to  entertain  any  suit  or  proceeding  with respect to  any order  passed by  the authorities  mentioned therein. Section  46 of  the Act which is worded very widely bars the  jurisdiction of  civil or revenue courts in regard to matters  mentioned therein.  No such  court can entertain any suit  or proceeding  in which  the question  whether any property is  or is  not evacuee  property arises or in which the legality of any action taken by the Custodian General or Custodian under  the Act is questioned. Any matter which the Custodian General or the Custodian is empowered to determine by or  under the Act is also outside the jurisdiction of any such Court. (see Custodian of Evacuee Property Punjab & Ors. v. Jafran Begum (1). In view of the above provisions, it was not open  to the  civil court in this case to decide whether the suit  properties were  evacuee properties or not. It was also not  open to  it to decide the correctness of the order of the  Custodian General  dated August 9, 1950 declining to interfere with  the order  of the  Custodian dated  June  2, 1950. The  question whether  a certificate  should have been issued by  the Central  Government also  was by  implication barred as  it was  the Custodian  who  had  to  restore  the property after  holding an  enquiry into  the title  of  the evacuee when  an application  was made  to him  alongwith  a certificate  issued   by  the   Central  Government   and  a certificate of  that nature  by itself  would be  of no use. Neither Haji  Umar Kasam  nor after  his death his heirs and legal representatives questioned 270 these orders  before the High Court under Article 226 of the Constitution or before the Supreme Court under Article 32 or under Article  136 of  the Constitution.  They  thus  became final and were beyond the jurisdiction of the civil court.      The decision of this Court in Fazalbhoy Currimbhoy etc. v. Official  Trustee of  Maharashtra & Ors. etc.(1) is of no assistance to the plaintiff since in that case the Court was not concerned  with any  question of  law similar to the one which has  arisen for  consideration in this case. So is the decision of  this Court  in Dr.  Rajendra Prakash  Sharma v. Gyan Chandra  &  Ors.(2)  in  which  the  evacuee  concerned migrated to Pakistan in the year 1967 after the insertion of section 7A of the Act.      There is a further hurdle in this case which has arisen on account  of the  publication of  the  notification  under section  12  of  the  Displaced  Persons  (Compensation  and Rehabilition) Act, 1954 in respect of the suit properties on June 1,  1955. On  the publication of such notification, the right, title  or interest  of Haji  Umar Kasam  in the  suit properties became extinguished and they vested absolutely in the Central  Government free from all encumbrances by virtue of section  12 (2) of the said Act. (see Basant Ram v. Union of India)(3)  It is perhaps for this reason that the Central Government could  not make  any order on the petitions filed by Haji  Umar Kasam or his heirs for restoration of the suit properties  to  them  after  the  publication  of  the  said notification.      In the  circumstances, the  High  Court  was  right  in dismissing the appeal before it.      In the  result the  appeal fails  and it  is dismissed. There shall be no order as to costs. The plaintiffs are also exonerated from  the liability  to  pay  the  costs  of  the defendant in  the trial  court. We,  however, make  it clear that the  dismissal of  this appeal  does not  bar any other

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remedy available to the appellants in law. H.L.C.                                     Appeal dismissed. 271