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1957 Supreme(Pat) 64
PATNA HIGH COURT
V.Ramaswami and Kanhaiya Singh JJ.
Surajdeo Narain Singha
Versus
Custodian, Evacuee Property
Miscellaneous Judicial Case No. 8 of 1956 ;
Decided On : MARCH 01, 1957
Non-compliance with the provisions of Section 7 of the Administration of Evacuee Property Act, 1950 renders the order declaring any property to be evacuee property ultra vires as without jurisdiction.
Headnote:
EVACUEE PROPERTY - DECLARATION - NOTICE - JURISDICTION - WRIT - DELAY - MALA FIDE TRANSACTION - Administration of Evacuee Property Act, 1950 (XXXI of 1950), Secs. 7, 40 - Constitution of India, Art. 226.
Fact of the Case:
Petitioners purchased properties from vendors who were declared evacuees under the Administration of Evacuee Property Act, 1950. They applied for confirmation of the transfers under Section 40 of the Act, but later sought to drop the proceedings, claiming that the properties were not evacuee properties as there was no legal declaration under Section 7 of the Act. The Assistant Custodian rejected their application, and the Custodian dismissed their appeal. The petitioners then filed a writ petition in the High Court, challenging the declaration under Section 7 and seeking a mandamus to prohibit interference with their possession of the properties.
Finding of the Court:
The High Court held that the declaration under Section 7 was not ultra vires and illegal, as the petitioners had not shown satisfactorily that the proceedings instituted by the Custodian were ultra vires for non-compliance with the provisions of Section 7. The Court also found that the petitioners were guilty of undue delay in applying for the writ, and that the entire transaction was mala fide. Therefore, the Court dismissed the writ petition.
Issues: 1. Whether the declaration under Section 7 of the Act was ultra vires and illegal for non-compliance with the provisions of Section 7? 2. Whether the petitioners were guilty of undue delay in applying for the writ? 3. Whether the entire transaction was mala fide?
Ratio Decidendi: 1. The fulfilment of the two conditions, namely, the condition of notice to the persons interested in the property and the holding of such enquiry into the matters as the circumstances of the case permit, are conditions precedent to the exercise of jurisdiction by the custodian, and if either of these two conditions are not complied with, then the order passed by him under Section 7 (i) of the Act would be an order without jurisdiction. 2. The petitioners had not shown satisfactorily that the proceedings instituted by the Custodian were ultra vires for non-compliance with the provisions of Section 7. 3. The petitioners were guilty of undue delay in applying for the writ, as nearly three years had elapsed before they came to the court. 4. The entire transaction was mala fide, as the vendors of the petitioners were evacuees, the properties were purchased for inadequate price, and the petitioners were aware of the declaration of evacuee status of one of the vendors.
Final Decision: The High Court dismissed the writ petition.
Kanhaiya Singh, J.
1. On the 2nd January, 1953, the petitioners obtained two registered sale deeds, one from Bibi Anis Fatma and the second from her and her son Abdul Majid in respect of 2.47 acres for Rs. 2000 and Order 39 odd acre, for Rs. 600, respectively, the lands being situate in village Sherpur in the district of Patna. Abdul Majid had been declared evacuee as far back as 1950 and Bibi Anis Fatma on 23-4-1953, under the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act). The petitioners, it is alleged, learnt of this declaration in respect of Bibi Anis Patma on 25-7-1953 and filed on the same date an application before the Assistant Custodian, Patna, for confirmation of the said two transfers to them under Sec. 40 of the Act. On 21-4-1955 the petitioners made an application to the Assistant Custodian to drop the proceedings for confirmation of the sale on the ground that the disputed properties were not evacuee properties as there was no legal declaration under Section 7 of the Act. The Assistant Custodian rejected the application on the same day on the ground that the application was not maintainable as he had no jurisdiction to review or revise the order passed by another Assistant Custodian having concurrent jurisdiction. He adjourned the confirmation proceedings to 4-5-1955 for hearing.
In the meantime, the petitioners preferred revision to the Custodian against the order of the Assistant Custodian datd 21-4-1955, and by his order dated 2-5-1955 he dismissed the application in revision on the ground that the Assistant Cus-todian had no jurisdiction to revise the order of another Assistant Custodian and that the application for review of the previous decision was, therefore, incompetent and no revision lay to him against an order on such an incompetent petition. He further pointed Out that even if that application was treated as a revision against the original order declaring the properties of the petitioners vendors as evacuee properties, the ap-plication was barred by time and there were no good reasons to condone the delay and extend the period of limitation.
On 29-6-1955 the Assistant Custodian by his order in the proceedings under Section 40 of the Act refused to confirm the transfers in favour of the petitioners. Against this order, the petitioners took an appeal to the Custodian, who by his order dated 13-9-1955 dismissed the appeal.
2. On 4-1-1956, the petitioners applied to this court for grant of a writ in the nature of certiorari to quash the declaration under Section 7 of the Act and for a mandamus prohibiting the defendants from interfering with the possession of the properties purchased by them. Their case is that the declaration made by the Assistant Custodian under Section 7 of the Act was ultra vires and illegal because no notice was given to the petitioners and the properties were not specified in the notice that was issued to their vendors.
3. Mr. B. C. Ghose appearing for the petitioners contended that the disputed properties were not evacuee properties and, therefore the transfers in favour of the petitioners did not need confirmation under Sec. 40 of the Act. He urged that the proceedings instituted by the petitioners under Sec. 40 of the Act were misconceived and should have been dropped. His submission is that only those properties vest in the Custodian for the State which are declared to be evacuee properties under Section 7 of the Act and that since in this case the declaration made by the Assistant Custodian under Section 7 of the Act was ultra vires and illegal, the disputed properties did not constitute evacuee properties. He referred to Rule 6 of the Administration of Evacuee Property (Central) Rules 1950, and contended that before making the declaration it was obligatory upon the Assistant Custodian to Issue notice to all persons interested in the property, mentioning therein as far as practicable the grounds on which the property was sought to be
