JUDGMENT - 1. The suit giving rise to this appeal was filed by the appellants (who will hereafter be called the plaintiffs) against the Union of India, the Custodian of Evacuee Property and the Regional Settlement Commissioner (who will hereafter be called the defendants) for a declaration that the plaintiffs continued to be the tenants of two shop premises and for possession of the said shop premises, The facts underlying this litigation may be briefly stated as follows: The plaintiffs were carrying on business as partners in two shops; (1) M/s, M. Gani and Co., Mahomedali Road, Bombay, and (2) M/s. London Stores, Bori Bunder, Bombay. They were occupying the premises as tenants. On 15-6-1950 the Deputy Custodian of Evacuee Property issued a show cause notice in the joint names of the plaintiffs calling upon them to show cause as to why they should not be declared as evacuees and their property as evacuee property under Section 2 (d) (i) of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act). The notice inter alia stated that they had left for Pakistan on account of the selling up of the dominions of India and Pakistan and that all their property was intended to be declared as evacuee properly. The notice further stated that the hearing of the case was fixed before the Dy. Custodian or Mr. Bhagtani, who was an Inspector, on the 26th June, 1950, at 1 p. m. for Bombay. On 19-9-50 another show cause notice was issued to plaintiff No. 1 under Section 2 (d) (iii) of the Act. The plaintiffs appeared before Inspector Bhagtani and also the Deputy Custodian. The Deputy Custodian recorded their statements and gave a hearing. On 23-12-1950 the Deputy Custodian passed an order declaring both the plaintiffs as evacuees and their property as evacuee property under Section 2 (d) (i) of the Act. In accordance with the above decision, a notification was issued declaring them to be evacuees and their property as evacuee property on 30-12-1950. From the decision, the plaintiffs went in appeal to the Custodian. The appeal was dismissed. Thereafter, the plaintiffs went in revision to the Custodian General. The revision application was rejected. Again, the plaintiffs approached the Custodian General for restoration of the property declared to be evacuee property, that is to say, stock-in-trade under Section 16 of the Act. That application also was rejected. On 14-4-60 the Custodian took charge of the properly belonging to the plaintiffs including the stock-in-trade of the first shop viz., M. Gani and Co., and on 16-4-60 took possession of the other shop viz., London Stores. The plaintiffs thereafter gave a notice under Section 80 Civil Procedure Code and filed the suit, which has given rise to this appeal, on 17-1-1961.

(2) The plaintiffs have challenged the legality and validity of the order passed by the Deputy Custodian on the following grounds:-

(1) The show cause notice was issued to two persons jointly even though the allegations against them on which the orders were passed were quite different.

(2) The notice did not contain any particulars of the property sought to be declared as evacuee property.

(3) The notice did not contain any grounds and what was stated there was a mere repetition of the section. The notice was made returnable before Bhagtani, who was merely an Inspector without any powers to hear the same.

It was, therefore, contended that the notice was defective and bad in law and the order declaring the plaintiffs to be evacuees and their property as evacuee property was an order without jurisdiction and was, therefore, a nullity.

3. The defendants appeared and resisted the plaintiffs claim. They contended inter alia, that the decision of the Custodian General was final under Section 28 of the Act. They also contended that the Civil Court has no jurisdiction to entertain the question relating to the legality of the action taken by the Custodian General under Section 46 of the said Act,

4. As many as seve

Click Here to Read the rest of this document