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PETITIONER: DR. ZAFAR ALI SHAH AND OTHERS

       Vs.

RESPONDENT: THE  ASSISTANT  CUSTODIAN OF EVACUEE  PROPERTY,  JHANSI  AND

DATE OF JUDGMENT: 04/04/1961

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1967 AIR  106            1962 SCR  (1) 749

ACT: Evacuee  Property-Declaration  of-If could be  made  without issuing  of notice-Administration of Evacuee  Property  Act, 1950 (31 of 1950), S. 7-Displaced Persons (Compensation  and Rehabilitation) Act, 1954 (44 of 1954), S. 12  -Constitution of India, Art. 19(1) (f).

HEADNOTE: The Custodian of evacuee properties made a declaration  that two  houses were evacuee properties.  Notice under s.  7  of the  Administration  of Evacuee Property  Act,  1950,  which initiated  the proceedings resulting in the declaration  had been served on two persons as owners.  These persons did not appear and contest the proceedings.  The petitioners claimed to  be entitled to certain shares in the houses.  No  notice under  s. 7 Of the Act had at any time been served  on  them and  they  had  never been declared evacuees.   One  of  the petitioners filed an appeal under the Act to the  Custodian- General which was dismissed as time barred.  The petitioners then  filed a petition under Art. 32 Of the Constitution  of India on the ground that they were being wrongfully deprived of their shares in the houses. Held, that as no notice under s. 7 of the Act had been  ser- ved on the petitioners, their shares in the houses had never become  evacuee property nor vested in the  Custodian.   The petitioner who had filed the appeal did not thereby lose his rights in the houses either as the appeal did not decide any question  as  to such rights but was dismissed on  the  sole ground that it was filed beyond the time prescribed for  it. Strictly, no appeal by him lay as he was not a party to  the proceeding resulting in the   declaration. Section  12  of  the  Displaced  Persons  (Compensation  and Rehabilitation)     Act, 1954, only affects the rights of an evacuee  in his property.  The notification made under  that section  did  not  have  the  effect  of  extinguishing  the petitioners’  rights  in the houses as they had  never  been declared evacuees. Ebrahim  Aboobaker v. Tek Chand Dolwani, [1953] S.C.R.  691, referred to.

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JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 96 of 1959. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental Rights. 750 S.   Shaukat   Hussain   and  P.  C.  Aggarwala,   for   the petitioners N.   S.  Bindra,  R.  H.  Dhebar and  T.  M.  Sen,  for  the respondents. 1961.  April 4. The Judgment of the Court was delivered by SARKAR,  J.-This  is  a  petition  raising  a  question   of violation   of  the  fundamental  right  to  hold   property guaranteed  by  Art.  19 (1) (f) of  the  Constitution.   It arises  out  of an order made under  the  Administration  of Evacuee  Property  Act,  1950, declaring two  houses  to  be evacuee property. What had happened was that sometime in September, 1951,  two notices  were  issued  under  s.  7  of  the  Act  addressed respectively to Nusrat Ali and Fateh Ali, requiring them  to show  cause  why they should not be  declared  evacuees  and their  properties,  being the two houses in dispute,  to  be evacuee  property.   Neither  of these  two  persons  having appeared, a declaration was made by the Custodian on January 10,  1952, under that section that Nusrat Ali and Fateh  Ali were  evacuees and the houses were evacuee  property.   Upon such  declaration the houses vested in the  Custodian  under the  provision of s. 8 of the Act and he took possession  of them.  These houses were the property of one Khadim Ali  who had never been declared an evacuee and had died on or  about October 1, 1950, leaving three sons and five daughters,  who thereupon became entitled to them in certain shares.  Nusrat Ali  and Fateh Ali were two of the sons of Khadim Ali.   The Petitioners are his other son and two of his daughters.   No notice  under s. 7 had at any time been issued to  them  nor were they ever declared to be evacuees.  These facts are not in dispute. The Petitioners contend that they have been wrongly deprived of  their  rights  in  the  houses  by  the  action  of  the Custodian.   They  say  that for a, long time  they  had  no knowledge of the proceedings taken under the Act in  respect of the houses and when they came to know of the order of the Custodian,  they took various steps to protect their  rights but were unsuccessful. 751 One  of such steps appears to have been an appeal  preferred by  the male petitioner on behalf of all the petitioners  to the Custodian-General against the order of January 10, 1952. On this appeal being rejected, they moved this Court by  the present petition. The  question  is  whether the  Custodian  was  entitled  to declare the entirety of the two houses evacuee property  and deprive the petitioners of their rights in them.  It is well established and not disputed, that no property of any person can  be declared to be evacuee, property unless that  person had  first  been given a notice under B. 7 of the  Act:  see Ebrahim Aboobaker v. Tek Chand Dolwani (1).  Admittedly,  no such  notice  had  been issued to  the  petitioners.   Their interest in the houses, therefore, could not have vested  in the Custodian. Learned counsel for the respondents, the officers  concerned with evacuee properties, concedes that so far as the  female petitioners were concerned, their interest could not in  any

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way be affected by the order made under s. 7 of the Act.  He however contends that the male petitioner, Zafar Ali, having filed the appeal to the Custodian-General against the  order of January 10, 1952, he personally at least, is bound by the order  dismissing  the  appeal, that order  being  a  quasi- judicial  decision.  It is said that be cannot,  there-fore, maintain this petition. We do not think that this contention is well founded.  Zafar Ali was not a patty to the proceeding in which the order  in dispute had been made.  Strictly speaking, no appeal by  him against  that  order lay or was necessary.  Then  again  the appeal did not decide any question as to the right of  Zafar Ali  to the houses for, it was dismissed on the sole  ground that  it bad been filed beyond the time prescribed  for  it. There was no judicial determination by the Custodian-General of any fact affecting Zafar Ali’s right in the houses.   If, as  was conceded, Zafar Ali’s share in the houses could  not vest in the Custodian without due notice to him, then we are unable  to  appreciate how the  position  becomes  different because Zafar Ali filed an appeal (1)  [1953] S.C.R. 691, 702. 752 which  was dismissed as time barred and which he need  never have  filed  at  all.  The order of January  10,  1952,  was without  jurisdiction  so far as Zafar Ali’s  share  in  the house  was  concerned, and it remained so in  spite  of  the appeal. In  our  view, the appeal furnishes no answer to  the  claim made  in the petition.  As no notice had been issued to  the petitioners  under  s. 7, their interest in the  two  houses never vested in the Custodian.  The acts of the Custodian in so  far  as they deprive the petitioners of  their  property cannot be upheld. It  was  also  said on behalf of the  respondents  that  the properties  had  already been acquired under  the  Displaced Persons  (Compensation  and Rehabilitation) Act,  1954,  and therefore the petitioners had, no longer, any claim to them. Sub-section  (2) of s. 12 of this Act provides that "On  the publication  of  a notification under sub-section  (1),  the right,  title  and interest of any evacuee  in  the  evacuee property  specified in the notification shall, on  and  from the  beginning of the date on which the notification  is  so published,  be extinguished and the evacuee  property  shall vest  absolutely  in the Central Government  free  from  all encumbrances." It was said that a notification mentioned  in this  section  had been issued.  It seems to  us  that  this section  does not affect the petitioners’ rights.   It  only affects  the rights of an evacuee which the petitioners,  on the admitted facts, are not. We  may  mention here that the petitioner Zafar  Ali  claims that his father left a will giving him a larger share in the houses  than  he would have got on intestacy.   We  are  not concerned  in this case with his rights under the  will,  if any, and say nothing about them. In the result, we allow the petition and set aside the order of January 10, 1952, in so far as it affected the rights  of the  petitioners in the properties concerned. There will  be no order as to costs. Petition allowed.                             753