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PETITIONER: NASIR AHEMED

       Vs.

RESPONDENT: ASSISTANT CUSTODIAN GENERAL, EVACUEE PROPERTY U.P., LUCKNOWA

DATE OF JUDGMENT28/03/1980

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. UNTWALIA, N.L.

CITATION:  1980 AIR 1157            1980 SCR  (3) 248  1980 SCC  (3)   1

ACT:      Administration of  Evacuee  Property  Act,  1950-Notice issued  under,   section  2(d)(iii)-Declaration  made  under section 2(d)(i) and (ii)-Validity of.

HEADNOTE:      A notice  under section  7  of  the  Administration  of Evacuee Property  Act 1950,  was  Issued  by  the  Assistant Custodian of  Evacuee Property  to  the  appellant  and  his brother (since  deceased) stating  that there  was "credible information in  possession of  the Custodian" that they were evacuees under  clause (iii)  of section 2(d) of the Act and calling upon  them to  show cause  why  they  would  not  be declared evacuees and their property as evacuee property The Assistant Custodian  eventually declared  the appellant  and his brother  as evacuees  under clauses (i), (ii) & (iii) of section 2(d) of the Act.      The Authorised  Deputy Custodian, although he dismissed the appellant’  appeal under  section 24 of the Act, pointed out that  the ground  based on  clause (iii) of section 2(d) was "very  vague" and that the notice was "defective to that extent". The  Assistant Custodian  General Evacuee  Property dismissed the appellant’s review petition and the High Court dismissed the writ petition in limine.      Allowing the appeal, ^      HELD: The  notice and  the  declaration  that  followed stating that  the appellant was an evacuee under clauses (i) and (ii) of section 2(d) of the Act are invalid. [252E, F]      1. The notice called upon the appellant and his brother to show cause why they should not be declared evacuees under clause (iii) of section 2(d) and the ground mentioned in the notice was  also based  on that  clause, yet  the  Assistant Custodian found  that they  were evacuees  under clauses (i) and (ii)  as well. The Authorised Deputy Custodian held that the ground  given in the notice in support of the case based on clause  (iii) was  vague and  the notice was defective so far as that ground was concerned, but that was the only case the appellant was called upon to answer. The foundation of a proceeding under  section 7 is a valid notice and an inquiry which  travels   beyond  the   bounds  of   the  notice   is impermissible  and  without  jurisdiction  to  that  extent.

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[252D-E      2. From  the facts  stated above,  it would appear that the Authority  concerned did  not  apply  his  mind  to  the relevant material  before issuing the notice. The same thing is apparent  from another  fact. On  November 29,  1952  the Deputy Custodian  dropped the  proceeding seeking to declare the appellant  an intending evacuee and that on the same day directed initiation of a proceeding under section 7. Section 7 required  the  Custodian  to  form  an  opinion  that  the property in question was evacuee property within the meaning of the Act 249 before any action under that section was taken. Under rule 6 of the  Administration of  Evacuee Property  (Central) Rules 1950 the  Custodian had  to be satisfied from information in his possession  or otherwise  that the  property  was  prima facie evacuee  property  before  a  notice  was  issued.  On November 29,  1952  no  evidence  was  found  to  support  a declaration that  the appellant  was an  intending  evacuee. There was  no material on record to suggest on that very day the  authority  had  before  him  any  evidence  to  justify initiation of  a proceeding  to  declare  the  appellant  an evacuee and  his property  as evacuee  property. The  notice under section  7 appears  to have  been issued  without  any basis. The  Assistant Custodian  General, who found no merit in the  reversional application  preferred by the appellant, overlooked these aspects of the case. [252H, 253 A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 512 of 1979.      Appeal from  the Judgment  and order dated 18-5-1965 of the Allahabad High Court in Civil Writ No. 2945 of 1964.      Danial Latifi and Mrs. Urmila Sirur for the Appellant.      Nemo for the Respondent.      The Judgment of the Court was delivered by D      GUPTA, J.-A  notice  issued  under  section  7  of  the Administration of  Evacuee Property  Act, 1950  (hereinafter called the  Act) gives  rise to  this appeal  brought  on  a certificate granted  by the  Allahabad High  Court on August 18, 1969  under Article  133(1)(a) of  the  Constitution  of India. Sub-section (1) of section 7 states: E           "Where  the  Custodian  is  of  opinion  that  any      property is evacuee property within the meaning of this      Act, he  may, after  causing notice thereof to be given      in such  manner as  may be  prescribed to  the  persons      interested, and  after holding  such inquiry  into  the      matter as the circumstances of the case permit, pass an      order  declaring   any  such  property  to  be  evacuee      property."      Rule  6  of  the  Administration  of  Evacuee  Property (Central) Rules,  1950 (hereinafter  called the Rules) which lays down  the manner of inquiry under section 7 provides in sub-rule (1)  that where  the Custodian  is  satisfied  from information in his possession or otherwise that any property or an  interest therein  is prima facie evacuee property, he shall cause  a notice to be served in the prescribed form on the person  claiming title  to such property or interest and on any  other person  or persons  whom he  considers  to  be interested in the property. Sub rule (2) of rule 6 says that the notice  "shall,  as  far  as  practicable,  mention  the grounds on  which the  property is  sought  to  be  declared evacuee property  and shall specify the provision of the Act

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under which  the person  claiming any  title to, or interest in, such property is alleged 17-189 SCI/80 250 to be  an evacuee".  "Evacuee" has  been defined  in section 2(d) of  the Act  to include  several categories of persons, but for  the purpose  of this  case it is necessary to refer only to  first three  of them.  The  relevant  part  of  the definition is as follows:      "2(d) "evacuee" means any person,-      (i)  who, on account of the setting up of the Dominions           of India  and Pakistan  or  on  account  of  civil           disturbances or  the fear  of  such  disturbances,           leaves or  has, on  or after the 1st day of March,           1947, left,  any place  in a  State for  any place           outside the territories now forming part of India,           or      (ii) who is  resident in  any place now forming part of           Pakistan and  who for  that reason  is  unable  to           occupy, supervise or manage in person his property           in any  part of  the territories to which this Act           extends, or whose property in any part of the said           territories has ceased to be occupied, super vised           or managed  by any  person or  is being  occupied,           supervised or  managed by  an unauthorised person,           or     (iii) who has,  after the  14th  day  of  August,  1947,           obtained, otherwise  than by  way of  purchase  or           exchange, any  right to,  interest in  or  benefit           from any  property which  is treated as evacuee or           abandoned property  under any  law  for  the  time           being in force in Pakistan." The appellant  was declared  an  evacuee  by  the  Assistant Custodian (Judicial),  Deoria. Having  failed  to  have  the declaration set  aside by  the appellate  and the revisional authorities under  the Act,  the appellant  moved  the  High Court by  a writ  petition challenging  the notice  under  s section 7  and the  subsequent proceedings based on it. This appeal is  from the  order of  the High Court dismissing the writ petition  in limine.  The notice in question was issued by the Assistant Custodian, Evacuee Property, Deoria, to the appellant and  his brother  Bashir Ahmad  on March  11, 1954 stating that  there was  "credible information in possession of the Custodian" that they were evacuees under clause (iii) of section  2(d) of  the Act  and calling  upon them to show cause  why  orders  should  not  be  passed  declaring  them evacuees and  their property as evacuee property. The notice purports to have been issued in accordance with rule 6 which requires a  statement of  the tactual  grounds on  which the notice is based. The notice in this case 251 appears to  be merely  a copy of the prescribed form without particulars. The ground stated in the notice reproduces only what the form contains and that is as follows:           "Acquisition of  any rights  to,  interest  in  or      benefit from  any  evacuee  or  abandoned  property  in      Pakistan,  otherwise   than  by   way  of  purchase  or      exchange."      By this  order dated  December 14,  1955, the Assistant Custodian (Judicial), Deoria, declared the appellant and his brother evacuees  under clauses (i), (ii) & (iii) of section 2(d) though  in the  notice issued  it was  alleged that the information in  possession of  the Custodian  was that  they were evacuees  under clause  (iii) only. An appeal preferred under section  24 of the Act was dismissed by the Authorised Deputy Custodian  on August 30, 1963 who upheld the order of

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the Assistant  Custodian (Judicial).  The Authorised  Deputy Custodian, however,  found that  the ground  based on clause (iii) of  section 2(d)  of the Act was "very vague" and that the notice  was "defective  to that  extent".  It  has  been stated already  that the  notice issued  under rule 6(1) was based only  on that  ground and  clauses  (i)  and  (ii)  of section 2(d)  were not  mentioned at all in that notice. The Assistant Custodian  General, Evacuee Property, U.P. to whom the appellant  and his brother preferred a revision found no merit in the applicants’ case. The Court dismissed in limine the writ  petition made  by the  appellant and  his  brother Bashir Ahmad  on the  view that  the order  of the Assistant Custodian General  did not  suffer from  any  error.  Bashir Ahmad died  after the  High Court  had disposed  of the writ petition, and the appeal before us is by Nasir Ahmad alone.      It is  necessary to  state a few more facts. It appears that several years before the present notice under section 7 of the  Act was  issued,  on  November  22,  1949  when  the Administration of Evacuee Property ordinance, 1949, replaced by the  Act in 1950 was in force, a notice was issued to the appellant and  his brothers including Bashir Ahmad by Deputy Custodian of  Evacuee Property,  Deoria,  Uttar  Pradesh,  . alleging that  they  were  transferring  their  movable  and immovable ; properties to Pakistan and stating that for this reason they  were being  considered as  evacuees  and  their property was  being treated  as evacuee property. The notice invited objections from them, if any, within 30 days. At the instance of  District Magistrate,  Deoria, a  similar notice was  issued  to  the  appellant  and  his  brothers  by  the authority in  District Chapra  in the  State of  Bihar where also they had some properties, asking them to show cause why they should  not be  declared or intending evacuees. The Act had then  come into  force and  this notice was issued under section 19 of the Act. Section 19 provided 252 for issue  of notice  to a  person before  declaring him  an "intending evacuees". The Act as originally passed contained in clause  (e) of  section. 2  a  definition  of  "intending evacuee" as  meaning a  person  who  had  transferred  after August 14,  1947 any  of his  assets to Pakistan. Section 19 was repealed  and clause  (e) of  section 2  was deleted  in 1953. On  enquiry it  was found  that there  was no reliable evidence to justify a declaration that the appellant and his brothers were  intending evacuees  and the Deputy Custodian, Chapra, dropped  the proceeding on May 24, 1952. On November 29, 1952  the Deputy  Custodian, Deoria,  also  dropped  the proceeding started upon the notice issued by him, but on the same day  he initiated  a proceeding  under section 7 of the Act against  the appellant and his brother Bashir Ahmad that ended in the declaration challenged in this appeal.      The facts stated above clearly show that the notice and the declaration  that followed  are both invalid. The notice called upon  the appellant and his brother to show cause why they should  not be  declared evacuees under clause (iii) of section 2(d)  of the  Act and  the ground  mentioned in  the notice was  also based  on that  clause, yet  the  Assistant Custodian found  that they  were evacuees  under clauses (i) and (ii)  as well. The Authorised Deputy Custodian held that the ground  given in the notice in support of the case based on clause  (iii) was  vague and  the notice was defective so far as that ground was concerned, but that was the only case the appellant was called upon to answer. The foundation of a proceeding under  section 7 is a valid notice and an inquiry which  travels   beyond  the   bounds  of   the  notice   is impermissible  and  without  jurisdiction  to  that  extent.

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Therefore the  declaration that the appellant was an evacuee under clauses  (i) and  (ii) of section 2(d) of the Act must be held invalid.      Under rule  6 the notice under section 7 must be issued in the  prescribed form and contain the grounds on which the property is  sought to  be  declared  evacuee  property.  As stated earlier,  the notice  that was  issued in  this  case merely  reproduced   the   form   without   mentioning   the particulars on  which the  case against  the  appellant  was based. It  was. essential to state the particulars to enable the appellant  to  answer  the  case  against  him.  Clearly therefore the  notice did  not comply  with rule 6 and could not provide a foundation for the proceedings that followed.      What is  said in the preceding paragraph makes it plain that the  authority concerned  did not apply his mind to the relevant material  before issuing the notice. The same thing is apparent  from another  fact. It  has been stated that on November 29,  1952 the Deputy Custodian, Deoria, dropped the proceeding seeking to declare the appellant 253 an intending  evacuee and  that on  the same day he directed the initiation  of a  proceeding under  section 7. Section 7 required the  Custodian to form an opinion that the property in question  is evacuee  property within  the meaning of the Act before  any action  under that  section is  taken. Also, under  rule  6  the  Custodian  has  to  be  satisfied  from information in his possession or otherwise that the property is prima  facie evacuee  property before a notice is issued. On November  29, 1952  no evidence  was found  to support  a declaration that  the appellant  was an  intending  evacuee. There is  no material on record to suggest that on that very day the authority had before him any evidence to justify the initiation of  a proceeding  to  declare  the  appellant  an evacuee and  his property  as evacuee  property. The  notice under section 7 thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the  revisional   application  preferred  by  the  appellant overlooked these  aspects of  the  case.  We  are  therefore unable to  agree with  the High  Court  that  the  Assistant Custodian General’s order did not suffer from any error.      We allow this appeal and quash the notice issued to the appellant on  March 11,  1954 and all subsequent proceedings based on  it. The  respondents have  not appeared to contest the appeal; there will be no order as to costs. P.B.R.                                      Appeal allowed . 254