Allowed

Md. Sharfuddin v. R. P. Singh and Others.

Supreme Court10 Mar 19611961 INSC 83 · [1962] 1 S.C.R. 2391961 INSC 83

Case brief

AI extract

What is this about?

The Supreme Court allowed the appeal, holding that an Assistant Custodian is not a 'person aggrieved' and lacks competence to prefer an appeal against a subordinate Custodian's order under s. 24 of the Administration of Evacuee Property Act. The Court quashed the Custodian's order.

What did the court decide?

Order of the Custodian dated April 26, 1954, and the High Court's order dismissing the application were set aside with a writ of certiorari.

What the court decided

Md. Sharfuddin versus R. P. Singh and Others. — Property and Title | Supreme Court (1962)

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l S.C.R. SUPREME COURT REPORTS 239

Md. SHARFUDDIN

March IO,

R. P. SINGH AND OTHERS.

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(K. SuBBA RAO, RAGHUBAR DAYAL and

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J, R. MUDHOLKAR, JJ.)

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P_.

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Appeal-Person aggrieved-Property held to be not evacuee property-Whether Assistant Custodian can prefer appeal against order -Administration of Evacuee Property Act, r950 (Jr of r950), s. 24(r)(a).

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The Assistant Custodian, Giridih, passed an order holding that the properties of the appellant were not evacuee properties. The Custodian, acting under s. 26(1) of the Administration of Evacuee Property Act, 1950, called for the records of the case, and after hearing the appellant dropped the proceedings. Subsequently, the Assistant Custodian, Head-quarters, Patna, filed an appeal before the Custodian under s. 24(1)(a) of the Act, against the order of the Assistant Custodian, Giridih. In appeal the Custodian declared the shares of the brothers of the appellant in the property to be evacuee property and referred the matter for separation of their shares. The appellant contended that no appeal lay under s. 24(1)(a) at the instance of the Assistant Custodian, Head-quarters.

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Held, that the appeal filed by the Assistant Custodian, Headquarters was incompetent. The Assistant Custodian, Headquarters, was not a 'person aggrieved' within the meaning of s. 24 of the Act, by the order of the Assistant Custodian, Giridih, and he could not prefer an appeal. Ebrahim Aboobakar v. Custodian-General of Evacuee Property, [1952] S.C.R. 696, distinguished. .

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Crvn. APPELLATE JURISDICTION: Civil Appeal No. 458 of 1958.

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·-

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Appeal by special leave from the judgment and decree dated September 3, 1956, of the Patna High Court in M. J. No. 603 of 1955.

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M. K. Ramamurthi, R. K. Garg, S. 0. Agarwal and

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D. P. Singh, for the appellant.

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R. O. Prasad, for the respondents.

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March 10. The Judgment of the Court was delivered by

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SUBBA RAO, J.-This appeal by special leave is Subb• Rao J. directed against the order of the High Court of Judicature at Patna dismissing the application filed by the

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240 SUPREME COURT REPORTS [1962]

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1961
Md.Sharfuddin
v.
R.P.Singh
&Others
SubbaRao].

appellantunder Art.226oftheConstitutiontoquash
theorderdatedAugust 4, 1955, passed by Shri R. P.
Singh, CustodianofEvacuee Property, Bihar.
.
Thefacts relevant tothequestion raised inthis
appeal may be briefly stated.
Oninformation sup-
pliedbyone Qurban Ahmad,theAssistant Custodian,
Giridih, issued a notice unders.7(1)oftheAdminis-
trationofEvacueePropertyAct, 1950 (Act31of
1950), (hereinafter calledtheAct), totheappellantto
show causewhyhe shouldnotdeclare holdings Nos.
326,774and654 in his possession as evacuee proper-
ties.
Tho Assistant Custodian, after makingthe
necessary 'inquiry, heldthatthesaid holdings were
evacuee properties.
Theappellant filed a revision
petition unders.26oftheAct against the said order
to theDeputyCustodian, Hazaribagh, who set aside
theorderoftheAssistant Custodianandremanded
thematterto him for disposal in accordance with
law. On April 26, 1954, the Assistant Custodian,
Giridih, on a considerationoftheevidence placed
before him, heldthatthesaid properties werenot
evacuee properties,andonthatfinding he released
them. Thereafter,theCustodian, acting unders.26(1)
oftheAct, called fortherecords ofthecase and,after
hearingtheappellant, by his order datedJanuary27,
1955, droppedtheproceedings. On February 22, 1955,.._
theAssistant Custodian, Head-quarters,Patnafiledan
appeal beforetheCustodian,unders.24(l)(a)ofthe
Act, againsttheorderoftheAssistant Custodian,
Giridih,datedApril 26, 1954, releasingtheholdingsof
theappellant.
On August 4, 1955, the Custodianset
asidetheorder.ofthe Assistant Custodian, Giridih,
anddeclaredthesharesofthebrothersoftheappel-
lantintheholdings to be evacuee propertiesand
referredthemattertotheappropriateauthorityfor
theseparationoftheirinterest.
Thereafter,the
appellant filedanapplication totheHighCourt
under Art.226oftheConstitution to quashthesaid
order,butthatwas dismissed.
Hencetheappeal.
Thoughmanyquestions were raised beforethe
HighCourt, onlythefollowing four questions were
pressed before usbylearned counsel for the_appellant·

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• •

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1 s.c.R. SUPREME COURT REPORTS

¶24

241

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•

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(1) No appeal lay to the Custodian from the order of r96z the Assistant Custodian, Giridih, at the instance of Md 5-;-1 -;-1 1 dd. the Assistant Custodian, Headquarters, Patna. (2) · :.' u Uµder s. 7-A of the Act the Custodian has no power R. P. P. Singh after May 7, 1954, to declare any property to be & Othm evacuee property unless proceedings are per.ding on the said date for declaring such property as evacuee Subba Rao property, and. that in the present case, as the appeal against the order of the Assistant Custodian was filed only on February 22, 1955, no proceeding was pending on the prescribed date and, therefore, the Custodian illegally made the order in direct contravention of the provisions of s. 7-A of the Act. (3) The Custo. diari acted perversely in condoning the delay in filing the·.llppeal to him without assigning llny reasons. (4) The notice issued to the appellant under s. 7(1) of the Act was defective and, therefore, the proceedings taken pursuant thereto were void.

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r96z 5-;-1 -;-1 1 dd. · :.' u rn R. P. P. Singh & Othm

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Subba Rao J.

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The appellant lost before the High Court on all the four points. Though learned counsel for the appellant raised all the four contentions before us, he seriously pressed only the first two contentions.

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To appreciate the first contention and to give a satisfactory answer thereto, it would be necessary to consider the scope of the relevant provisions of the Act. Section 2(c) defines "Custodian" to mean the Custodian for the State and to include any Additional, Deputy or Assistant Custodian of evacuee property in , that State. Section 6 authorizes the Central Government to appoint for any State a Custodian and as many Additional, Deputy or Assistant Custodians of Evaicuee Property as may be necessary for the purpose of discharging the duties imposed on the Custo"dian by or under the Act. By sub-s. (3) of that section, the Additional, Deputy and Assistant Custodians of Evacuee Property shall discharge the duties imposed on them by or under the Act under the general superintendence and control of the Custodian of the State, but the Central Government may, by general or special order, provide for the distribution of work among them. The said provisions indicate that whatever the designations of the said officers be they are 3• .

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242 SUPREME COURT REPORTS (1962]

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all Custodians within the definition of "Custodian" in Md. Sharfuddin the Act, though for convenience their duties are v. either statutorily or administratively defined. Under R. P. Singh s. 7 a Custodian-it may be noted that the Custodian 6' Others may be any one of the aforesaid categories-if he is of opinion that any property is evacuee property within Subba Rao ]. the meaning of the 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. Sub-s. (3) thereof enjoins on him the duty to publish in the Official Gazette all properties declared by him to be evacuee properties. After such declaration the said properties vest in the Custodian for the State. Section 9 empowers the Custodian to take possession of evacuee property vested in him. Section 10 confers powers on the Custodian to take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any p>:operty. Section 24 confers a right on any person aggrieved by an order made under s. 7 to prefer an appeal to. the Custodian where the original order has been passed by a Deputy or Assistant Custodian and the amount or value of the property which is the subject-matter · of the order does not exceed two thousand rupees, and to the Custodian-General in any other case. Section 26, which was deleted from the Act by s. 8 of Act 91 of 1956, conferred a revisional jurisdiction on the Custodian, Additional Custodian or Authorized Deputy Custodian against the orders of subordinate officers. Section 27 gives to the Custodian-General a plenary power of revision to correct the orders of any Custodian at any time. The scheme of the foregoing provisions may be briefly stated thus: A Custodian, as defined ·in the Act, after necessary inquiry, may declare a property to be evacuee property; on such declaration the property vests in him; after such vesting, the Custodian manages the said property; if a Custodian wrongly or illegally declares a property to be evacuee property, the person aggrieved by his

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< -. '

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1 S.C.R. SUPREME COURT REPORTS

243

J " >

•

••

...

order can prefer an appeal to the appropriate authority prescribed under s. 24; the Custodian or the Custodian. General, as the case may be, in appropriate cases, can also, in exercise of his revisional jurisdiction, set aside that •order; if a Custodian illegally or improperly releases a property on the ground that it is not evacuee property, it is liable to be revised by the Custodian or the Custodian-General, as the case may be, under s. 26 or s. 27 of the Act.

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Learned counsel for the respondents contends that the words "any person aggrieved" under s. 25 of the Act are comprehensive enough to include a Custodian and, therefore, a Custodian can prefer an appeal against an order of a Custodian releasing properties under s. 7 of the Act. Realizing that an obvious anomaly is implicit in the argument, learned counsel concedes that an appeal can be filed only by a Custodian other than the Custodian who made the order releasing the properties. It is said that the Central Government may, under s. 6 of the Act, provide for the distribution of work among the various Custodians, namely, Additional, Deputy and Assistant Custodians, and in such allocation the power to inquire whether a property is an evacuee property or not may be conferred on one Custodian and the power to manage it on another, and that, in that event, the Custodian on whom the power to manage is conferred will be a person aggrieved within the meaning of s. 24 of the Act. In our view this argument is not consistent with the scheme of the Act. Though for the purpose of convenience of management or judicial determination of dispu~es the Act provides different categories of Custod;ans, all of them fall within the definition of "Custodi.i.n" in the Act. The Act further provides a hierarchy of tribunals under tho superintendence and control of the Custodian-General. It would be anomalous were it to be held that a Custodian could prefer an appeal against the order of a Custodian. The Act does not contemplate one officer preferring appeals against the orders of another officer. If an Assistant Custodian or a Custodian went wrong in the matter of declaring a property to be an evacuee property, the

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Md. Sharfuddin v. R. P. Singh & Others

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Subba Rao ].

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244 SUPREME COURT REPORTS [1962]

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Act provides that the Custodian or the CustodianGeneral, as the case may be, before 1956, and the Md. Sharfuddin v. Custodian-General thereafter, may set right the wrong. R. P. Singh In the premises the words "any person aggrieved" in & OJh~rs s. 24 of the Act can only mean a person whose properties have been declared to be evacuee properties ~ubba Rao ]. by the Custodian, or a person who moved the Custodian to get the properties so declared or any other such aggrieved person. The words "any person aggrieved" in the context of the Act cannot include any Custodian as defined in the Act.

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Strong reliance is placed upon the decision of this Court in Ebrahim Aboobaker v. Custodian-General of Evacuee Property (¹ ) in support of the contention of the respondents. In that case, on information supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee Property, the latter started proceedings under the Bombay Evacuees (Administration of Property) Act, 1949, against one Aboobaker. The Additional Custodian, after recording the statement of A boo baker and examining the evidence produced by Tek Chand Dolwani, held that the said Aboobaker was not an evacuee. Tek Chand Dolwani filed an appeal against the said order to the Custodian-General of India. One of the questions raised was whether the said Tek Chand Dolwani was a person aggrieved by the order of the Additional Custodian within the meaning of s. 24 of the Cen.tral Ordinance XXVII of 1949, and was entitled to appeal against the said order. This Court held that the said person was a person aggrieved within the meaning of the said section. It was provided in rule 5(5) of the rules made under the Ordinance that any person or persons claiming to be interested in the inquiry or in the property "being declared as evacuee property, might file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared as an evacuee property; and that the Custodian should proceed to hear the evidence, if any, which the party appearing to show cause might produce and also the evidence which the party claiming to be interested as mentioned

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{I) [1952] S.C.R. 696.

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1 S.C.R. SUPREME COURT REPORTS 245

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above might adduce. The rule, therefore, autho- '96' rized the Additional Custodian to adjudicate between Md Sha•fuddin the person moving the Custodian to declare a property · v. as evacuee property and the person denying that fact. R. P. Singh In that context, this Court held that the person mov& Others ing the Custodian was a person aggrieved within the meaning of s. 24. This decision or the decisions relied Subba Rao f. upon by this Court in the aforesaid case in coming to the said conclusion are not relevant to the present enquiry. Where a statute or rules framed thereunder provide for a dispute between two parties to be decided by a tribunal, it is implicit in that provision that the defeated party is one aggrieved by that decision. But the same cannot be said of a Custodian and the party in whose favour he gave a decision; nor can another subordinate officer of the Custodian, who made the decision and who has no statutory duty to appear before the Custodian to put forward the case of the department or lead evidence in support thereof, be equated to a party in a lis. We, therefore, hold, having regard to the scheme of the Act, that the Assistant Custodian, Headquarters, Patna, is not a person aggrieved within the meaning of s. 24 of the Act. The appeal to the Custodian, therefore, was not competent.

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In this view, the second quest.ion does not fall to be considered. In the result, the order of the High Court is set aside and we direct the issue of a writ of certiorari to quash the order of the Custodian of Evacuee Property, Bihar, dated April 26, 1954 setting aside the order of the Assistant Custodian, Giridih, releasing the holdings Nos. 326, 774 and 654 in Giridih belonging to the appellant. The appeal is allowed with costs throughout.

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Appeal allowed.

Md. Sharfuddin v. R. P. Singh and Others.

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Md. Sharfuddin v. R. P. Singh and Others.

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