The Custodian of Evacuee Property cannot declare any property as evacuee property without giving notice to persons interested, and cannot determine the entire tenancy right to be evacuee property in a proceeding to confirm the relinquishment and transfer of only a 1/4th share of an evacuee in the tenancy right.

Order :- This is a petition for a writ of certiorari or other writ, direction or order under Art. 226 of the Constitution of India against the Additional Custodian of Evacuee Property, who is respondent 1, and the Deputy Custodian of Evacuee Property, who is respondent 2, to quash and set aside certain orders made by them. The matter arises in this way. The petitioners and one Mahomed Shafi were partners and carried on business in the name and style of "Cafe Grant Bakery" at 36, Station Road, Bandra. The partners claim to have been beneficially interested in the tenancy rights of a portion of the premises at 36, Station Road, Bandra, which the partnership occupied, although the rent bill in respect thereof was made out in the name of Mahomed Shafi. By an order made on 12-9-1950, the Deputy Custodian of Evacuee Property declared the said Mahomed Shafi to be an evacuee, and his right, title and interest in the said partnership, viz , his 1/4th share, to be evacuee property. A notification, dated 20-9-1950, was issued under S. 7 (a), Administration of Evacuee Property Act, 1980, notifying the said 1/4th share of Mahomed Shafi in the said partnership as evacuee property. The said Mahomed Shafi had migrated to Pakistan in November 1947. It is alleged by the petitioners that Mahomed Shafi retired from the partnership and surrendered in their favour all his right, title and interest in the said partnership. The petitioners, therefore, applied on 19-10-1950, to the Deputy Custodian of Evacuee Property for confirmation of the relinquishment and surrender under S 40, Administration of Evacuee Property Act, 1950. By an order dated 21-11-1950, the Deputy Custodian not only rejected the application for confirmation, but further ordered that the tenancy rights in the property which the partnership ocaupied at 36, Station Road, Bandra, may be notified as evacuee property and possession be taken of the same. The petitioners went in appeal to the Additional Custodian of Evacuee Property and the Custodian dismissed the appeal on 12-1-1951, and confirmed the order declaring the tenancy rights in the said premises to be evacuee property. It is the petitioners contention that it was not competent to the Deputy Custodian in the first instance or to the Additional Custodian in appeal to declare the tenancy rights to be evacuee property in proceedings under S. 40, Administration of Evacuee Property Act, and in doing so they acted without jurisdiction. It is further the case of the petitioners that before any property can be declared to be evacuee property notice has to be given to every person interested, such notice being a condition precedent to the jurisdiction of the Custodian of Evacuee Property to declare any property as evacuee property; and as no notice has at any time been given to the petitioners regarding the tenancy right of these premises which was sought to be declared as evacuee property, both the Deputy Custodian and the Additional Custodian acted without jurisdiction in passing the order that the tenancy right was evacuee property.

2. Respondent 2 has filed an affidavit on this petition in which he has taken up the position that an enquiry under S. 7, Administration of Evacuee Property Act (which I will hereinafter refer to as the Act) was taken up along with the enquiry in the matter of the petitioners application for confirmation under S. 40 of the said Act and that it was open to him to pass a joint order in respect of both the enquiries which he proceeded to do.

3. Now, before I deal with the important questions of law that arise for determination on this petition, it would be convenient at the outset to set out the proceedings that were in fact taken by the Custodian. On 27-5-1950, notice in Form No. 1, appended to the Administration of Evacuee Property (Central) Rules, 1950, (which I will hereinafter refer to as the Rules) was given to Mahomed Shafi, and a copy of this notice was sent to petitioner No. 1 who is described