MOHAMMAD SHARFUDDIN Vs. R P SINGH

JUDGEMENT

(1.) This appeal by special leave is directed against the order of the High Court of Judicature at Patna dismissing the application filed by the appellant under Art. 226 of the Constitution to quash the order dated August 4, 1955 passed by Shri R. P. Singh, Custodian of Evacuee Property, Bihar.

(2.) The facts relevant to the question raised in this appeal may be briefly stated. On information supplied by one Qurban Ahmad, the Assistant Custodian, Giridih, issued a notice under S. 7(1) of the Administration of Evacuee Property Act, 1950 (Act XXXI of 1950) (hereinafter called the Act), to the appellant to show cause why he should not declare holdings Nos. 326, 774 and 654 in his possession as evacuee properties. The Assistant Custodian, after making the necessary inquiry, held that the said holdings were evacuee properties. The appellant filed a revision petition under Section 26 of the Act against the said order to the Deputy Custodian, Hazaribagh, who set aside the order of the Assistant Custodian and remanded the matter to him for disposal in accordance with law. On April 26, 1954, the Assistant Custodian, Giridhi on a consideration of the evidence placed before him, held that the said properties were not evacuee properties, and on that finding he released them. Thereafter, the Custodian, acting under S 26(1) of the Act, called for the records of the case and, after hearing the appellant, by his order dated January 27, 1955, dropped the proceedings. On February 22, 1955, the Assistant Custodian, Headquarters, Patna, filed an appeal before the Custodian, under S. 24(1)(a) of the Act, against the order of the Assistant Custodian, Girdih, dated April 26, 1954, releasing the holdings of the appellant. On August 4, 1955, the Custodian set aside the order of the Assistant custodian, Giridih, and declared the shares of the brothers of the appellant in the holdings to be evacuee properties and referred the matter to the appropriate authority for the separation of their interest. Thereafter, the appellant filed an application to the High Court under Art. 226 of the Constitution to quash the said order, but that was dismissed. Hence the appeal.

(3.) Though many question were raised before the High Court, only the following four questions were pressed before us by learned counsel for the appellant:(1) No appeal lay to the Custodian from the order of the Assistant Custodian, Giridih, at the instance of the Assistant Custodian, Headquarters, Patna. (2) Under S. 7-A of the Act the Custodian has no power after May 7, 1954, to declare any property to be evacuee property unless proceedings are pending on the said date for declaring such property such property as evacuee 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 Custodian acted perversely in condoning the delay in filing the appeal to him without assigning any 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.