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PETITIONER: GORKHA RAM AND OTHERS

       Vs.

RESPONDENT: THE CUSTODIAN GENERAL OFINDIA, DELHI

DATE OF JUDGMENT: 21/04/1961

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

CITATION:  1961 AIR 1805            1962 SCR  (2) 151

ACT: Evacuee   Property-Moslem   non-proprietor   migrating    to Pakistan-Village  dwelling  house, if  vests  in  Custodian- Administration  of Evacuee Property Act, 1950 (31 of  1950), s. 18(1)-Village wajib-ul-arz.

HEADNOTE: The  wajib-ul-arz  of village Buland,  teshil  and  district Rohtak, provided as follows:-               "No  non-proprietor can settle in the  village               or  build a house without the consent  of  the               owner   of  the  estate.    Whenever   anybody               settles,  he  obtains land or house  from  the               proprietor  of the same and he can live  there               so long as he pleases. Whenever     he               abandons the village, if the house belongs  to               the Shamlat     of    it   falls   into    the               possession of the proprietor   About       the               houses   of   non-proprietors  there   is   no               customary  right    to   sell   or    mortgage               residential  houses,  remove the  material  or               build burnt brick house without the consent of               the proprietor If any person dies heirless his               house reverts               152               to  the possession, of the proprietor  of  the               estate in which it is situate", and  mentioned               the  mendicants as a type  of  non-proprietors               settled  in  the  village.  One  F,  a  Muslim               belonging to that class, migrated to Pakistan.               The  appellants,  who were  proprietors,  took               possession of his dwelling house.  The  Custo-               dian of Evacuee Property claimed it as evacuee               property.    The  appellants’  objection   was               finally dismissed by the Custodian General who               held  that the house was evacuee property  and               vested  in  the  Custodian.   The  High  Court               dismissed the appellants’ petition under  Art.               226 of the Constitution holding that the right               of  a non-proprietor to occupy a village  site               was  a  right in property and  vested  in  the

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             Custodian  when the non-proprietor  became  an               evacuee.  In this Court, while the  appellants               relied  on the wajib-ul-arz, on behalf of  the               respondents  reliance was placed on s.  18  of               the Administration of Evacuee Property Act. Held,  that s. 18(1) of the Administration of  Evacuee  Pro- perty  Act,  1950, contemplated tenants,  whether  occupancy tenants  or tenants for a certain time and applied  only  to the  occupancy rights of a tenant.  Under the  wajib-ul-arz, however,  a non-proprietor could have no such right  in  the site occupied by him as would make him a tenant of it. Section 18(1) of the Act, therefore, had no application  and the house in question reverted to the proprietors under  the provisions  of  the  wajib-ul-arz  when  the  non-proprietor abandoned  the village and migrated to Pakistan.   It  could not, therefore, vest in the Custodian. It  was not correct to say that under the wajib-ul-arz  that F’s interest in the house was that of a lessee. Associated  Hotels of India v. R. N. Kapur, [1960] 1  S.C.R. 368, held inapplicable,

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 340 of 1958. Appeal  by special leave from the Judgment and  Order  dated July  3,  1953,  of  the Punjab High  Court  in  Civil  Writ Application No. 256 of 1952. Jwala  Parshad  Chopra  and  J.  K.  Hiranandani,  for   the appellants. Nanak  Chand,  R. H. Dhebar and T. M. Sen,  for  respondents Nos. 1 to 3. 1961.  April 21.  The Judgment of the Court was delivered by RAGHUBAR.   DAYAL,  J.-This  appeal, by  special  leave,  is against the order of the Punjab High Court 153 dismissing the petition of the appellants under Art. 226  of the  Constitution  praying for quashing the  orders  of  the Custodian General, dated June 17, 1952. The  appellants and respondents Nos. 4 and 5 are,  residents of  village  Baland,  Tehsil and District  Rohtak,  and  are members of the body of proprietors of that village.    The village Baland is divided between three estates.  The   plot in suit is in the estate known as ’Barsan’.  One  Fakira,  a mendicant and a non-proprietor, had his house on the plot in suit.   In January, 1950, the Custodian of Evacuee  Property issued a notice under s. 7 of the Administration of  Evacuee Property  Ordinance  No.  XXVII of 1949,  stating  that  the appellants  were in unauthorised possession of the house  of Fakira, a Muslim evacuee, and that the-should either  vacate the  house  or show cause to the contrary.   The  appellants filed their objections to the notice.  The Deputy  Custodian of  Evacuee Property, by his order dated September 3,  1950, rejected  the  objections  raised  by  the  appellants   and declared  the  house to be ’evacuee property’.   The  Deputy Custodian  passed  this order after he got an  enquiry  made through the Revenue Assistant (Rehabilitation).  The  appel- lants  went in appeal to the Additional  Custodian,  Evacuee Property, who got further enquiry made to ascertain  whether Mumtaz,  son of Fakira, evacuee, had been in  occupation  of the house up to the date of the migration of the Muslims  as a  result  of  the partition.  This  enquiry  revealed  that Mumtaz  had  continued to reside in the village  Baland  and that  a son was born to him in July, 1947.   The  Additional Custodian therefore agreed with the report and the order  of

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the  Deputy Custodian that the property in suit was  evacuee property.   The appellants then filed a revision before  the Custodian General.  It was dismissed on June 17, 1952.   The Custodian   General  observed  that  there  was  more   than sufficient evidence to establish that Mumtaz continued to be in possession of the house in dispute up to July, 1947. Thereafter, the appellants filed a writ petition in the High Court challenging the legality of the order of the 20 154 Deputy  Custodian on the grounds that the  Deputy  Custodian gave  no notice or opportunity to them to meet the case  and that the Custodian had no jurisdiction in the matter in view of the provisions of the wajibul-arz according to which  the house  of  a  non-proprietor, on his  leaving  the  village, vested  in the proprietory body.  The learned  Single  Judge who  heard  the  petition held that the  provisions  of  the Administration  of the Evacuee Property Act, 1950 (Act  XXXI of 1950), had been complied with throughout and referred the question  whether  the  site occupied  by  a  non-proprietor vested  or  not  in the Custodian  after  the  occupier  had abandoned it, to a larger Bench in view of his opinion  that the  decision  of another Single Judge in  Joti  Parshad  v. Bhawani  Lal required re-consideration.  The Division  Bench then  decided  this question and held the right  of  a  non- proprietor to occupy a village site was a right in property, though it might not be an interest in property and that this right vested in the Custodian if the non-proprietor left the country  and  became  an evacuee.   The  writ  petition  was accordingly dismissed and it is against this order that this appeal has been filed. The sole question for determination in this case is  whether Fakira  had  any such right in the property  in  suit  which could  vest  in the Custodian on Fakira or  his  son  Mumtaz becoming  an evacuee.  The case for the appellants  is  that Fakira  had no such right which could vest in the  Custodian both  on  account of the terms of the  wajib-ul-arz  and  on account of his being a licensee.  The respondents rely on s. 18  of the Administration of Evacuee Property Act  to  rebut this contention.  It is necessary therefore to determine the scope of s. IS of the Act. Section  18, as originally enacted, was substituted by s.  8 of  Act  XI  of 1953, which provided  that  the  substituted section shall be deemed always to have been substituted  for the  original  section.  Thus the present  section  must  be deemed  to be the section existing from the commencement  of this Act.  Sub-section (1) of s. 18 is:               "(1)  Where  the rights of an evacuee  in  any               land                                    155               or  in any house or other building consist  or               consisted   of   occupancy   rights,   nothing               contained  in  any law for the time  being  in               force or in any instrument having the force of               law  or in any decree or order of  any  court,               shall   extinguish  or  be  deemed   to   have               extinguished  any  such rights either  on  the               tenant becoming an evacuee within the  meaning               of this Act or at any time thereafter so as to               prevent  such  rights  from  vesting  in   the               Custodian  under the provision of this Act  or               to  prevent the Custodian from exercising  all               or any of the powers conferred on him by  this               Act  in  respect  of  any  such  rights,  and,               notwithstanding anything containd in any  such

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             law,  contract, instrument, decree, or  order,               neither the evacuee nor the Custodian, whether               as  an occupancy tenant or as a tenant  for  a               certain  time,  monthly or otherwise,  of  any               land  or  house  or other  building  shall  be               liable  to  be ejected or be  deemed  to  have               become so liable on any ground whatsoever  for               any default of               (a)   the evacuee committed after he became an               evacuee  or  within  a  period  of  one   year               immediately preceding the date of his becoming               an evacuee; or               (b) the Custodian." The  expression ’occupancy rights’ has not been  defined  in the  Act.   It  is  these occupancy  rights  which  are  not extinguished  in spite of the provisions to the contrary  in any  other law or in any instrument having the force of  law or  in any decree or order of the Court.  The occasion  when they will not be extinguished would be when a tenant becomes an  ’evacuee’ within the meaning of the Act, or  thereafter. It  follows that sub-s. (1) of s. 18 provided for  the  non- extinguishment  of those occupancy rights which  would  have been  extinguished  otherwise on the  tenant’s  becoming  an evacuee  and  that therefore the person having  such  rights must be a tenant.  If he is not a tenant, then the  occasion contemplated by sub-s. (1) of s. 18, for the application  of its provisions, does not arise.  This is further clear  from the  latter  part  of this subsection  which  provides  that notwithstanding anything contained in any law etc.,  neither the  evacuee  nor  the Custodian, whether  as  an  occupancy tenant or as a, 156 tenant for a certain time, shall be liable to be ejected  or be deemed to have become so liable on any ground  whatsoever for any default.  This latter part also makes it clear  that the  persons  contemplated by the section are  the  tenants, whether occupancy tenants or tenants for a certain time.  We therefore  hold  that the provisions of s. 18 apply  to  the occupancy rights of a tenant. The  next  question  to determine is whether  Fakira  was  a tenant  of this house.  It is clear that Fakira who  resided in  the house in suit, was not a tenant of it.  He  occupied the site and probably built the house himself on getting the necessary permission from the proprietors. With  respect  to non-proprietors, the wajib-ul-arz  of  the village states:               "No  non-proprietor can settle in the  village               or  build a house without the consent  of  the               owner   of  the  estate.    Whenever   anybody               settles,  he  obtains land or house  from  the               proprietor  of the same and he can live  there               so  long as he pleases.  Whenever he  abandons               the village, if the house belongs to the  Shamlat               ofit falls into the possession of that    proprietorAbout               the houses of non-proprietors  ......    there               isno  customary right to sell or  mortgage               residential  houses,  remove the  material  or               build burnt brick house without the consent of               the proprietor If any person dies heirless his               house   reverts  to  the  possession  of   the               proprietor  of  the  estate  in  which  it  is               situate." The  mendicants  are mentioned as one of the types  of  non- proprietors  settled  in the Shamlat of the estate.   It  is clear  from these provisions that Fakira, a  non-proprietor,

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had no such right in the site as would make him a tenant  of it.   He  just had a right to occupy it and  build  a  house which was, however, heritable and transferable only with the consent of the proprietor. It follows, therefore, that the provisions of sub-s. (1)  of s.  18, do not apply to Fakira’s rights in the plot in  suit and cannot therefore over-ride the provisions of the  wajib- ul-arz according to which his right to 157 reside in the house in suit came to an end when he abandoned the village on his migrating to Pakistan. Learned  counsel  for the respondent has  further  contended that  apart  from  s.  18 of  the  Act,  Fakira’s  right  to residence in the house in suit will vest in the Custodian as his migrating from the village to Pakistan on partition does not amount to abandonment contemplated by the provisions  of the  wajib-ul-arz.   It is submitted that  the  wajib-ul-arz contemplates voluntary abandonment and not abandonment under force.  We find it difficult to accept this contention.  The abandonment  is  voluntary, though the volition  to  abandon arises on account of circumstances over which Fakira bad  no control.   He  left  the village and  migrated  to  Pakistan because he thought that to be the better thing to do.   This point was also not taken before the High Court. Reliance is placed on the case reported as Associated Hotels of  India v. R. N. Kapoor (1) for supporting the  contention that  Fakira  was  a lessee of the land in suit  and  not  a licensee.    We  do  not  think  this  case   supports   the contention.   The following propositions were laid  down  in that  case  for  determining whether a  document  creates  a licence or a lease:               (1)To ascertain whether a document  creates               a  licence  or  lease, the  substance  of  the               document must be preferred to the form.               (2)The  real test is the intention  of  the               parties  whether  they intended  to  create  a               lease or a licence.               (3) If the document creates an interest in the               property,  it  is  a lease, but,  if  it  only               permits  another to make use of the  property,               of  which the legal possession continues  with               the owner, it is a licence, and               (4)  If  under  the  document  a  party   gets               exclusive  possession of the  property,  prima               facie,  he is considered to be a  tenant,  but               circumstances   may   be   established   which               negative that intention to create a lease. The  terms of the wajib-ul-arz, already mentioned,  make  it clear  that  no  interest in the site on  which  Fakira  was settled  was  given  to Fakira by  the  proprietors  of  the village.  He was just granted a heritable (1)  [1060] 1 S.C.R. 368,385, 158 right  to occupy it for residence.  The house  reverted  to the possession of the proprietors if he died heirless. Learned counsel for the respondent has drawn our   attention to the observation in the above case to the effect:               "The  right of the respondent to transfer  his               interest under the document, although with the               consent  of the appellants, is destructive  of               any theory of licence." This observation does not help the respondent’s case because no interest was created in Fakira and therefore no  question of his transferring that interest arises.  The  wajib-ul-arz only expresses this much, that there was no customary  right

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to sell or mortgage residential houses, remove the  material or  build  burnt  brick houses without the  consent  of  the proprietors.   It does not say that the  non-proprietor  can transfer  his residential right to any one with  or  without the  consent of the proprietor.  We therefore do  not  agree with this contention. It  has  also  been contended for the  respondent  that  the licensee’s  rights  which  Fakira bad,  could  vest  in  the Custodian, as they come within the meaning of the expression ’property’.  Even if they do, those rights get  extinguished in view of the provisions of the wajib-ul-arz and  therefore there  could be no vesting of those rights in the  Custodian if  the vesting of those rights is not prevented on  account of  the applicability of s. 18 of the Act.  We have  already held  that s. 18 does not apply as Fakira was not a  tenant. The  expression  ’evacuee property’ as it stood in  the  Act till  its amendment in 1953, meant any property in which  an evacuee had any right or interest, whether personal or as  a trustee  or  as a beneficiary or in any other  capacity  and included  any  property  etc.  Fakira had no  right  in  any capacity in the property in suit when the Administration  of Evacuee Property Act came into force in 1950, and  therefore the property in suit could not have been ’evacuee property’. Lastly, we do not find any support in the provisions of  the wajib-ul-arz  or  in  any law for  the  observation  in  the judgment of the Court below:                             159               "Were the evacuee to come back he could demand               to  take  possession of the site,  and  so  it               cannot  be said that the right has  ceased  to               exist.  The right ceases only if the  occupier               leaves   the  village  permanently   with   no               intention of returning,... It  was nobody’s case that Fakira and his son had  left  the village  temporarily  and were to return.  It  was  said  in paragraph  5 of the written statement of respondents 1 to  3 that Fakira abandoned the house only in 1947 at the time  of partition.  The entire case was that Fakira had migrated  to Pakistan and had abandoned the village. We are therefore of opinion that Fakira did not possess  any such  right  in  the land in suit which could  vest  in  the Custodian  and  that therefore the property in suit  is  not ’evacuee  property’.   We therefore allow  the  appeal  with costs  throughout and, setting aside the order of the  Court below,  allow  the  petition  and quash  the  order  of  the Custodian  General  dated  June  17,  1952,  declaring   the property in suit to be evacuee property. Appeal allowed.