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PETITIONER: ASSTT.  CUSTODIAN, E.P. & ORS.

       Vs.

RESPONDENT: BRIJ KISHORE AGARWALA & ORS.

DATE OF JUDGMENT07/10/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. MATHEW, KUTTYIL KURIEN

CITATION:  1974 AIR 2325            1975 SCR  (2) 359  1975 SCC  (1)  21  CITATOR INFO :  RF         1976 SC2237  (22)  RF         1979 SC 621  (28)  R          1980 SC1285  (28)

ACT: U.P.  Administration of Evacuee Property  Ordinance  1949 s.2(c)(i) & (ii)-Scope of.  Custodian first stated that  the property  was not evacuee property and the respondent  acted on   it-later  acquired  it  as   evacuee   property-whether Custodian bound by the earlier statement.

HEADNOTE: The disputed property belonged to a Muslim who left India in 1942.   After the partition of the country she  migrated  to Pakistan in 1948, without coming to India.  In 1962 she came to India and sold the property to respondent no. 1 for a sum of  Rs.  42,000.  Respondent no.  1 purchased  the  property after  ascertaining  from  appellant  no.   1  Custodian  of Evacuee Property that the property was not evacuee property. Later, however, the appellant passed an order declaring  the property   to  be  evacuee  property.   On  a  petition   by respondent  no.   the Assistant Custodian  General  directed that the property be handed over to the respondent no.   and the  sale price deposited in the bank could be taken by  the Custodian.   Since  the  Custodian  did  not  issue  a  sale certificate  in  his favour respondent no.  I filed  a  writ petition  in the High Court which was dismissed by a  single Judge  on  the ground that the seller was an  evacuee.   The Division  Bench on the other hand held that the  seller  was not  an  evacuee under s.2 (c)(i) of  the  United  Provinces Administration  of  Evacuee  Property  ordinance  1949   but refused to consider whether the seller was an evacuee  under s.  2(c)(ii) thereof.  According to s. 2(c)(i) of the  ordi- nance  "evacuee" means, any person who leaves or has  on  or after  the  1st  day of March 1947, left any  place  in  the United  Provinces for any place outside the territories  now forming  part  of India while according to sub  clause  (ii) "evacuee" means any person who is resident in any place  now forming  part of Pakistan and is for that reason  unable  to occupy,  supervise or manage in person his property  in  the United Provinces. Allowing the appeal,

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(1)  There could be no doubt that the seller was an  evacuee within  the  meaning in Teheran till she left  for  Pakistan from  there  cl.  2(c)(i) would not apply  but  clearly  cl. 2(c)(ii) would.  There was no doubt that she was resident in Pakistan  after  the partition of India and  was,  therefore unable  to occupy, supervise or manage her property  in  the United Provinces. [361 G; C-D] (2)The fact that the first respondent had made an  inquiry from  the  Assistant  Custodian  whether  the  property  was evacuee property and was told that it was not, did not  make any difference to this question. [362 A] Howell  v. Falmoth Boat Construction Co. Ltd.,  [1951]  A.C. 837  at  845,  Ebrahim Abbobaker and Another  v.  Tek  Chand Dolwani  [1953]  S.C.R.  691 Zafar  Ali  Shah  v.  Assistant Custodian of Evacuee Property [1962] 1 SCR 749 referred to. (3)Once  it  is  declared that the  property  was  evacuee property, the sum of Rs. 42,000 paid by respondent no.  1 to the  seller  and  deposited in the bank could  not  also  be evacuee  property.   Either the one or the  other  could  be evacuee property.  This sum must be held to be in trust  for the first respondent. [363 F]

JUDGMENT:  CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  170  of 1969. Appeal  from  the Judgment and Order dated the  15th  April, 1968 of the Allahabad High Court (Lucknow Bench) in  Special Appeal No. 258 of 1966. 360 G.   L. Sanghi and S. P. Nayar, for the appellants. C.   P.  Lal, for respondent No. 1. The Judgment of the Court was delivered by ALAGIRISWAMI,  J.-Mrs.  Zohra Naqvi, the wife  of  a  Police official  of the then United Provinces (now  Uttar  Pradesh) was in Teheran in the year 1947 alongwith her husband.   She purchased a property from the Improvement Trust, Lucknow for a  sum of Rs. 6,400/-.  It appears that Mrs. Naqvi  did  not come  to India at all till 1962 when she sold this  property to the sons of respondent No. 1 and one Mrs. Jain.  On 24-6- 1949   the,  United  Provinces  Administration  of   Evacuee Property Ordinance, 1949 came into force. This  would  be  a  proper  stage  at  which  the   relevant provisions  of the Ordinance should be noticed.  Under  that Ordinance "evacuee property" means any property in which  an evacuee  has any right or interest, or which is held by  him under  any  deed  of  trust  or  other  instrument,  and  an "unauthorised person" means any person (whether empowered in this behalf by the evacuee or otherwise) who, after the 15th day  of  August, 1947, has been  occupying,  supervising  or managing the property of an evacuee without the approval  of the  Custodian.   Under  section 5  of  that  Ordinance  all evacuee property situate in the United Provinces shall  vest in the Custodian. We  may  now continue the narration of events.   Before  the purchase of this property the 1st respondent had applied  to the  1st  appellant to be informed whether the  property  in question is an evacuee property and received a reply in  the negative.   But  on 25-3-1963 the 1st  appellant  passed  an order  declaring  the property as an evacuee  property.   It should  be  noticed that an evacuee  property  automatically vests in the Custodian under section 5 and the  notification under  section  6  of  the  Ordinance  is  not  a  necessary condition  for  such vesting.  Section 6  only  enables  the

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Custodian to notify the properties which have already vested in him under the Ordinance.  On 7-3-1964 a notification  was issued  acquiring the disputed plot under section 12 of  the Displaced Persons (Compensation & Rehabilitation) Act, 1954. The  1st  respondent  filed  a  revision  petition  to   the Assistant  Custodian General who directed that the  property should be handed over to the 1st respondent but that the sum of Rs. 42,000/- being the sale price of the property,  which had been deposited with the Allahabad Bank, Lucknow could be taken by the Custodian.  The 1st respondent’s application to the 1st appellant to issue a sale certificate in his  favour not  having produced my result he filed a writ petition  out of which this appeal arises.  The petition was dismissed  by a learned Judge of the Allahabad High Court but on appeal  a Division  Bench of the High Court allowed  the  respondents’ appeal.   This  appeal  has been filed on  the  basis  of  a certificate granted by the High Court. The  learned Single Judge took the view that Mrs. Naqvi  was an evacuee because she had left Uttar Pradesh after the  1st day of 361 March,  1947  to a place outside the territories  of  India. The  Assistant  Custodian General had also taken  a  similar view when the revision petition was filed by 1st  respondent before  him.  The Division Bench on the other hand took  the view  that as Mrs. Nacivi had not left the United  Provinces on or after 1st March, 1947 but her husband had been  posted in  Teheran since some time in 1942 and she had migrated  to Pakistan  from  Teheran after 1st March, 1947 it  would  not make her evacuee under section 2(c)(i) of the Ordinance.  It was  urged  before the Bench that she would  be  an  evacuee under  section  2(c)(ii)  of the  Ordinance  but  the  Bench refused to consider that question. Thus the first question to be decided is whether Mrs.  Naqvi was  an  evacuee.  As it is clear that she left  the  United Provinces even before the 1st March, 1947 and was in Teheran till she left for Pakistan from there, clause 2(c)(i)  would not apply to her but clearly clause 2(c)(ii) would apply  to her.   There is no doubt that she was resident  in  Pakistan after the partition of India and she was, therefore.  unable to  occupy, supervise or manage here property in the  United Provinces.   We do not think that the learned Judges of  the Division  Bench who heard the appeal were right in  refusing to  consider this aspect of the matter.  The 1st  respondent in  his  writ petition clearly averred that  as  Mrs.  Naqvi migrated to Pakistan from Persia she could not be treated as an evacuee.  The order passed by the 1st appellant also pro- ceeded on the basis that Mrs. Naqvi had migrated to Pakistan from  Persia  in 1948 and was still living there.   He  also referred  to  the  fact that she had  sent  the  money  from Teheran in 1947 and the possession of the property had  been taken by her son who came to India in 1948 for that  purpose specifically  whereas  Mrs.  Naqvi continued  to  reside  in Pakistan till she came to India in 1962 for selling the plot and that she was a Pakistani national, In the revision peti- tion filed before the Assistant Custodian General by the 1st respondent  also it is admitted that Mrs. Naqvi migrated  to Pakistan   from  Teheran  as  was  held  by  the   Assistant Custodian.   Therefore,  merely  because  in  his  order  in revision  the  Assistant Custodian General had  relied  upon section 2(c)(i) to hold that Mrs. Naqvi was an evacuee  that cannot prevent the consideration of the fact whether she was an evacuee under section 2(c)(ii). There  can  be no doubt that she was an evacuee  within  the meaning of that word under section 2(c)(ii) and the property

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in   question  was  an  evacuee  property.    The   property automatically  vested  in  the Custodian by  virtue  of  the provision of section 5 of the United provinces Ordinance No. 1  of 1949.  The U. P. Ordinance No. 1 of 1949 was  repealed by  section  58  of the Central  Administration  of  Evacuee Property  Act  ,  1950.   The  result  of  such  repeal  and reenactment  was  that the property in  question  which  had vested   in   the  Custodian  continued  to  vest   in   him notwithstanding the repeal of the Ordinance and there was no need  to take any action under section 7 of that Act.   Such action is necessary only in cases where the property had not already   vested  under  the  provisions  of  the   repealed Ordinance.   We do not consider that the fact that  the  1st respondent                             362 had made an enquiry from the Assistant Custodian whether the property  in question was an evacuee property and  was  told that it was not makes any difference to this question, We  do not think that the reliance placed on behalf  of  the respondents  on  the decision in Robertson  v.  Minister  of Pensions(1) where Lord Denning observed               "I  come  therefore  to  the  most   difficult               question  in  the case.  Is  the  Minister  of               Pensions  bound by the War Office letter  ?  I               think he is.  The appellant thought, no doubt,               that. as he was serving in the army. his claim               to  attributability would be dealt with by  or               through  the War Office.  So he wrote  to  the               War  Office.   The War Office did  not  refers               into  the Minister of Pensions.  They  assumed                             authority  over  the  matter  and  ass ured  the               appellant   that  his  disability   had   been               accepted as attributable to military  service.               He  was  entitled  to  assume  that  they  had               consulted any other departments that might  be               concerned,  such as the Ministry of  Pensions,               before  they gave him the assurance.   He  was               entitled  to assume that the board of  medical               officers  who examined him were recognised  by               the  Minister of Pensions for the  purpose  of               giving  certificates  as  to  attributability.               Can it be seriously suggested that, having got               that assurance, he was not entitled to rely on               it  In my, opinion if a government  department               in  its dealings with a subject takes it  upon               itself to assume authority upon a matter  with               which he is concerned, he is entitled to  rely               upon  having the authority which  it  assumes.               He  does not know, and cannot be  expected  to               know,  the  limits  of  its  authority.    The               department itself is clearly bound, and as  it               is  but an agent for the Crown, It  binds  the               Crown also, and as the Crown is bound, so  are               the  other departments, for they also are  but               agents  of the Crown.  The War  Office  letter               therefore  binds  the Crown and,  through  the               Crown, it binds the Minister of Pensions.  The               function  of  the Minister of  Pension  is  to               administer  the  royal warrant issued  by  the               Crown,  and  be must so administer  it  as  to               honour all assurances given by or on behalf of               the Crown." can   help   the  respondents.   That  decision   has   been disapproved by the House of Lords in Howell v. Falmouth Boat

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Construction  Co.  Ltd.(2)  Lord  simonds  referred  to  the observation  of  Lord Denning in Robertson  v.  Minister  of Pensions(3) and observed :               "My Lords, I know of no such principle in  our               law  nor was any authority for it cited.   The               illegality  of an act is the same  whether  or               not the actor has been misled by an assumption               of  authority  on  the part  of  a  government               officer however high or low in the  hierarchy.               I do not doubt that in criminal proceedings it               would be a material factor that the actor  had               been thus misled if knowledge was a  necessary               element  of  the offence, and in any  case  it               would  have  a bearing on the sentence  to  be               imposed.  But               (1)   [1949] 1 K. D. 227.               (2)   [1951] A.C. 837 at 845.               (3)   [1949] 1 K. D. 227.                                    363               that  is  not the question.  The  question  is               whether  the character of an act done in  face               of a statutory prohibition is affected by  the               fact that it has been induced by a  misleading               assumption  of authority.  In my  opinion  the               answer is clearly No. Such an answer may  make               more difficult the task of the citizen who  is               anxious  to walk in the narrow way;  but  that               does  not  justify a  different  answer  being               given."               Lord  Normand  in dealing with  this  question               observed  at page 849 after referring  to  the               statement of law by Lord Denning:               "As   I   understand   this   statement,   the               respondents  were,  in  the  opinion  of   the               learned Lord Justice, entitled to say that the               Crown  was barred by representations  made  by               Mr.  Thompson  and  acted  on  by  them   from               alleging   against  them  a  breach   of   the               statutory   order,   and  further   that   the               respondents were equally entitled to say in  a               question  with  the appellant that  there  had               been  no  breach.   But  it  is  certain  that               neither a minister nor any subordinate officer               of  the Crown can by any conduct or  represen-               tation   bar  the  Crown  from   enforcing   a               statutory  prohibition or entitle the  subject               to  maintain that there has been no breach  of               it.,, We are. of opinion that the view taken by the House of Lords is the correct one and not the one taken by Lord Denning. We  see  nothing in the decisions of this Court  in  Ebrahim Abbobaker and Another v.  Tek Chand Dolwani (1) or Zafar Ali Shah V. Assistant Custodian of Evacuee Property(2) which can be of any help to the respondents.  This appeal,  therefore, would have to be allowed. But there is one further question to be decided.  Once it is declared  that  this property is an evacuee property  it  is obvious  that  the  sum  of Rs. 42,000/-  paid  by  the  1st respondent  to  Mrs.  Naqvi  and deposited  by  her  in  the Allahabad Bank, Lucknow cannot also be an evacuee  property. Either  the  one or the other can be  an  evacuee  property. This sum must he held to be in trust for the 1st respondent. This principle is not disputed by Mr. G. L. Sanghi appearing on  behalf  of the appellants.  While the  appeal  would  be allowed  there  would  be an order directing  that  the  1st

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respondent  would  be entitled to withdraw the  sum  of  Rs. 42,000/-  deposited  by Mrs. Naqvi in  the  Allahabad  Bank, Lucknow  along with any interest that might have accrued  on it.   In  the circumstances of this case there  will  be  no order ,as to costs. Appeal allowed. P.B.R. (1)  [1953] 1 S.C.R. 691. (2)  [1962] 1 S.C.R. 749. 364