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SUPREME COURT OF INDIA
20th February, 1961
P.B. GAJENDRAGADKAR, A.K. SARKAR, K. SUBBA RAO, K.N. WANCHOO AND K.C. DAS GUPTA, JJ.
The Custodian of Evacuee Property, Bangalore (in all the Appeals), Appellant
Versus
Khan Saheb Abdul Shukoor etc., Respondents.
Civil Appeals Nos. 101 to 104 of 1957.
Advocates appeared
Mr. H. N. Sanyal, Addl. Solicitor General of India (M/s. R. Ganapathy Iyer and D. Gupta, Advocates, with him), for Appellant (in all the Appeals); Mr. A. V. Viswanatha Sastri, Sr. Advocate (Mr. M. S. K. Sastri and Mr. T. R. V. Sastri, Advocates for Mr. A. G. Ratnaparkhi, Advocate, with him), for Respondents (in all the Appeals).
EVACUEE PROPERTY - ADMINISTRATION - MYSORE ADMINISTRATION OF EVACUEE PROPERTY (EMERGENCY) ACT, 1949 (MYSORE ACT XLVII OF 1949) - MYSORE ADMINISTRATION OF EVACUEE PROPERTY (SECOND) (EMERGENCY) ACT, 1949 (MYSORE ACT LXXIV OF 1949) - ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 (ACT XXXI OF 1950) - ADMINISTRATION OF EVACUEE PROPERTY (AMENDMENT) ACT, 1950 (ACT LXVI OF 1950) - REPEAL OF MYSORE ACTS - EFFECT ON PENDING PROCEEDINGS - RIGHT OF APPEAL - WHETHER TAKEN AWAY BY REPEALING LEGISLATION - CUSTODIAN-GENERAL'S POWER OF REVISION - WHETHER AFFECTED BY REPEAL OF MYSORE ACTS - WRIT OF CERTIORARI - SCOPE AND LIMITS.
Fact of the Case:
The facts of the case are complicated and may be mentioned in some detail. On July 7, 1949, the then State of Mysore passed The Mysore Administration of Evacuee Property (Emergency) Act, No. XLVII of 1949 (hereinafter called the first Mysore Act). It provided for the appointment of a Custodian of Evacuee Property for the State of Mysore and other officers subordinate to him for the purpose of administering evacuee property in that State. Section 2(c) defined an "evacuee" and S. 2(d) "evacuee property". Section 5 laid down that all evacuee property situate in Mysore would vest in the Custodian. Section 6 provided for a notification by the Custodian in the Mysore Gazette of evacuee property vested in him. Section 8 provided that any person claiming any right to or interest in any property notified under section 6 as evacuee property or in respect of which a demand requiring a surrender of possession had been made by the Custodian might prefer a claim to the Custodian on the ground that the property was not evacuee property or his interest in the property had not been affected by the provisions of that Act. It was further provided that the Custodian was to hold a summary inquiry in the prescribed manner into such claims and after taking such evidence as might be produced, pass an order (stating the reasons therefor) either rejecting the claim or allowing it wholly or in part. Finally, S. 30 provided for an appeal to the High Court where the original order under S. 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act remained in force till it was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, No. LXXIV of 1949 (hereinafter called the second Mysore Act), which came into force on November 29, 1949.
Finding of the Court:
1. The Custodian-General had the power under S. 27 to call for the record of the proceeding in which the order of August 22, 1950, was passed and consider its legality or propriety and pass such order in relation thereto as he thought fit. 2. The right of appeal conferred by the first Mysore Act has been taken away by necessary intendment by the subsequent legislation. 3. The High Court was not justified in looking into the order of December 2, 1952, as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Art. 226 of the Constitution for issue of a writ of certiorari.
Issues: 1. Whether the Custodian-General had jurisdiction to set aside the order of August 22, 1950, under S. 27 of the Act? 2. Whether an appeal lay to the High Court against the order of the Custodian dated December 2, 1952?
Ratio Decidendi: 1. The Custodian-General had the power under S. 27 to call for the record of the proceeding in which the order of August 22, 1950, was passed and consider its legality or propriety and pass such order in relation thereto as he thought fit. The Act was passed in 1950 to set up a central organisation for the custody, management and control, etc., of property declared by law to be evacuee property with the Custodian-General at the head. It is also clear that all similar laws existing in various States on the date the Act came into force (namely, April 17, 1950) were repealed by it. The intention of the Legislature obviously was to provide for the custody and management etc. of evacuee property in the manner provided in the Act with the Custodian-General as the head of the organisation. Further, action taken with respect to evacuee property under the first Mysore Act was deemed under Sec. 53(2) of the second Mysore Act to have been taken thereunder and finally any action taken in the exercise of the power conferred by the second Mysore Act was deemed to have been taken in the exercise of the powers conferred by the Act. Therefore, any action taken with respect to evacuee property and any order passed by any Custodian in any proceeding with respect to such property would be subject to the revisory jurisdiction of the Custodian-General under section 27 in view of the wide language thereof and the fact that proceedings started under the first Mysore Act would not, in our opinion, make any difference to the power of the Custodian-General under Sec. 27. 2. The right of appeal conferred by the first Mysore Act has been taken away by necessary intendment by the subsequent legislation. The proceedings under S. 8 of the first Mysore Act are in substance equal to proceedings under S. 5 of the second Mysore Act and therefore proceedings commenced under the first Mysore Act must in view of S. 53(2) of the second Mysore Act, be deemed to be proceedings under S. 5 of the latter Act. Once that conclusion is reached-and it seems to us that it is inevitable-it follows that an order made in a proceeding commenced under S. 8 of the first Mysore Act must be deemed to be an order made under S. 5(1) of the second Mysore Act or under S. 7(1) of the Act. In this connection it is relevant to point out that it could not have been the intention of the Legislature to keep the first Mysore Act alive for certain purposes for all time; the whole object of passing the subsequent Acts is plainly against such an assumption.
Final Decision: Appeals allowed.
Judgment
WANCHOO, J. : These are four appeals on certificates granted by the Mysore High Court. They will be disposed of together as the points raised in them are common. The facts of these cases are complicated and may be mentioned in some detail. On July 7, 1949, the then State of Mysore passed The Mysore Administration of Evacuee Property (Emergency) Act, No. XLVII of 1949 (hereinafter called the first Mysore Act). It provided for the appointment of a Custodian of Evacuee Property for the State of Mysore and other officers subordinate to him for the purpose of administering evacuee property in that State. Section 2(c) defined an "evacuee" and S. 2(d) "evacuee property". Section 5 laid down that all evacuee property situate in Mysore would vest in the Custodian. Section 6 provided for a notification by the Custodian in the Mysore Gazette of evacuee property vested in him. Section 8 provided that any person claiming any right to or interest in any property notified under section 6 as evacuee property or in respect of which a demand requiring a surrender of possession had been made by the Custodian might prefer a claim to the Custodian on the ground that the property was not evacuee property or his interest in the property had not been affected by the provisions of that Act. It was further provided that the Custodian was to hold a summary inquiry in the prescribed manner into such claims and after taking such evidence as might be produced, pass an order (stating the reasons therefor) either rejecting the claim or allowing it wholly or in part. Finally, S. 30 provided for an appeal to the High Court where the original order under S. 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act remained in force till it was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, No. LXXIV of 1949 (hereinafter called the second Mysore Act), which came into force on November 29, 1949.
2. On September 21, 1949, the Custodian issued a notification by which he declared the properties of the two respondents as evacuee properties which had vested in him, as the respondents had become evacuees. Thereupon, two claims were filed under S. 8 of the first Mysore Act separately by the two respondents. These claims were investigated by the Deputy Custodian who dismissed the same on April 17, 1950, declaring that the properties were evacuee properties. It may be mentioned that in the meantime, the second Mysore Act had come into force by which the first Mysore Act was repealed. But S. 53(2) of the second Mysore Act provided that anything done or any action taken in the exercise of any power conferred by the first Mysore Act shall be deemed to have been done or taken in the exercise of the powers conferred by the second Mysore Act. It was also provided that any penalty incurred or proceeding commenced under the first Mysore Act shall be deemed to be a penalty incurred or proceeding commenced under the second Mysore Act as if the latter Act were in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced. There was however one difference in the two Mysore Acts. The first Mysore Act had provided by S. 5 for the vesting of all evacuee property situate in Mysore ipso facto in the Custodian; S. 6 then provided for notification by the Custodian and S. 8 for preferring claims. The second Mysore Act, however, made a departure from this and S. 5 thereof provided that :
"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."
3. Section 6 then provided for vesting of any property declared to be evacuee property in the Custodian. Thus whil
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