SURAJDEO NARAIN SINGHA Vs. CUSTODIAN EVACUEE PROPERTY

JUDGEMENT

(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 Section 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 Section 40 of the Act. He urged that the proceedings instituted by the petitioners under Section 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 declared evacuee property. His argument was that in the instant case no notice was given to the petitioners and the notice that was sent to Bibi Anis Fatma did not fulfil the requirements of Section 7 of the Act read with Rule 6 aforesaid. He referred in this connection to the notice which was sent to Bibi Anis Patma, which is Annexure A to the petition. No exception can be taken to the abstract proposition of law propounded by Mr. Ghose. It is true that non-compliance with the provisions of Section 7 of the Act renders the order declaring any property to be evacuee property ultra vires as without jurisdiction. As laid down by their Lordships of the Bombay High Court in Abdul Majid Haji Mahomed v. P. R. Nayak, AIR 1951 Bom 440 (A), 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. In this case however, it has not been shown satisfactorily that the proceedings instituted by the custodian were ultra vires for non-compliance with the provisions of Section 7. So far as Abdul Majid, one of the vendors is concerned, there is no challenge that he was properly declared to be evacuee and his property evacuee property in 1950. In fact, no reference has been made in the affidavit to the proceedings instituted by the Custodian against Abdul Majid in 1950. It will be recalled that one of the sale deeds in favour of the petitioners was executed by Abdul Majid along with his mother. This sale deed refers to the transfer of Order 39 odd acre. So far as the property covered by this sale is concerned, it cannot, therefore, be said that the declaration was illegal and void for want of jurisdiction.