Dr. Zafar Ali Shah And Others vs The Assistant Custodian of Evacuee Property, Jhansi

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Writ Petition No. 96 of 1959

Decision Date: 04/04/1961

Coram: A.K. Sarkar, Bhuvneshwar P. Sinha, S.K. Das, N. Rajagopala Ayyangar, J.R. Mudholkar

In this case the petition titled Dr Zafar Ali Shah and Others versus the Assistant Custodian of Evacuee Property, Jhansi was decided on 4 April 1961 by a five‑judge bench of the Supreme Court of India. The bench was composed of Justice A K Sarkar, Justice Bhuvneshwar P Sinha, Justice S K Das, Justice N Rajagopala Ayyangar and Justice J R Mudholkar. The decision was reported in the 1967 All India Reporter at page 106 and in the 1962 Supreme Court Reporter (1) at page 749. The matters raised involved the Administration of Evacuee Property Act, 1950 (Act 31 of 1950), specifically sections 7 and 8, the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act 44 of 1954), section 12, and article 19(1)(f) of the Constitution of India. The petitioners filed Writ Petition No 96 of 1959 under article 32 of the Constitution seeking enforcement of their fundamental right to hold property. Counsel for the petitioners were engaged to present their case, while counsel for the respondents represented the Assistant Custodian. The petition was presented before the Court on 4 April 1961 and the judgment was delivered by Justice A K Sarkar.

The Court observed that the Custodian of evacuee properties had issued notices under section 7 of the Administration of Evacuee Property Act to two individuals, Nusrat Ali and Fateh Ali, requiring them to show cause why their two houses should not be declared evacuee property. Neither of those individuals appeared, and consequently the Custodian issued a declaration on 10 January 1952 that both men were evacuees and that the houses were evacuee property. Upon that declaration the houses vested in the Custodian under section 8 of the Act and he took possession. The petitioners claimed they were entitled to shares in the houses, but the Court noted that no notice under section 7 had ever been served on the petitioners and that they had never been declared evacuees. One of the petitioners had earlier filed an appeal to the Custodian‑General, which was dismissed on the ground that it was filed after the prescribed time. The Court held that the dismissal on procedural grounds did not extinguish the petitioner’s rights, because the appeal did not decide any question concerning those rights and the petitioner was not a party to the original proceeding that resulted in the declaration. Accordingly, the petitioners’ shares had never become evacuee property and therefore never vested in the Custodian. The Court further held that section 12 of the Displaced Persons Act affects only the rights of a person who has been declared an evacuee; since the petitioners had never been so declared, the notification under that section could not extinguish their rights. The judgment referred to the decision in Ebrahim Aboobaker v. Tek Chand Dolwani, [1953] S C R 691, for support. In conclusion, the Court found that the petitioners were not lawfully deprived of their property rights and that the declaration of the houses as evacuee property was ineffective with respect to them.

The petitioners alleged that their fundamental right to hold property, guaranteed by Article 19(1)(f) of the Constitution, had been violated by an order issued under the Administration of Evacuee Property Act, 1950, which declared two houses to be evacuee property. According to the petition, in September 1951 two notices were issued under section 7 of the Act, one addressed to Nusrat Ali and the other to Fateh Ali, directing each of them to show cause why they should not be declared evacuees and why their respective houses should not be deemed evacuee property. Neither Nusrat Ali nor Fateh Ali appeared in response to the notices, and consequently the Custodian issued a declaration on 10 January 1952 under the same provision stating that both Nusrat Ali and Fateh Ali were evacuees and that the two houses in dispute were evacuee property. By operation of section 8 of the Act the houses vested in the Custodian, who thereafter took possession of them.

The houses originally belonged to Khadim Ali, who had never been declared an evacuee and who died around 1 October 1950. At the time of his death he left three sons and five daughters, each entitled to a share in the houses. Nusrat Ali and Fateh Ali were two of Khadim Ali’s sons. The petitioners are the remaining son and two of the daughters. No notice under section 7 was ever served on the petitioners, and they were never declared evacuees. These factual circumstances were not contested.

The petitioners contend that the Custodian’s action wrongly deprived them of their rights in the houses. They state that for a long period they were unaware of any proceedings under the Act concerning the houses, and when they finally learned of the Custodian’s order they attempted various measures to protect their interests, all of which were unsuccessful. One of the measures they pursued was an appeal filed by the male petitioner on behalf of all the petitioners to the Custodian‑General against the 10 January 1952 order. After the appeal was rejected, they filed the present writ petition before this Court.

The central question is whether the Custodian was empowered to declare the entire two houses evacuee property and thereby deprive the petitioners of their rights. It is well settled, and undisputed, that property cannot be declared evacuee unless the owner has first been served a notice under section 7 of the Act; see Ebrahim Aboobaker v. Tek Chand Dolwani. The petitioners acknowledge that no such notice was ever served upon them, and consequently their interest in the houses could not have vested in the Custodian.

Counsel for the respondents, who are officers responsible for evacuee properties, accepted that the female petitioners’ interests could not be affected by the order made under section 7. However, the respondent argued that the male petitioner, Zafar Ali, having filed the appeal to the Custodian‑General, is bound by the dismissal of that appeal, which was a quasi‑judicial decision, and therefore he cannot maintain the present petition. The Court was required to examine the validity of that contention.

The respondents argued that the male petitioner, Zafar Ali, was personally bound by the order of January 10, 1952 that dismissed his appeal, characterising that order as a quasi‑judicial decision. Consequently they contended that he could not maintain the present petition. The Court found this contention insufficiently founded. It observed that Zafar Ali was not a party to the proceeding in which the disputed order was made, and therefore no direct appeal by him against that order existed or was required. Moreover the appeal that was filed did not consider any question concerning his right to the two houses, because it was rejected solely on the ground of being filed beyond the prescribed time limit. As a result there was no judicial determination by the Custodian‑General on any fact that would affect Zafar Ali’s entitlement to the houses. The Court noted that, even if it is conceded that Zafar Ali’s share could not vest in the Custodian without a prior notice to him, the filing of a time‑barred appeal does not alter that legal position. The appeal, which was dismissed as untimely and which the petitioner need never have filed, did not confer jurisdiction on the Custodian‑General over Zafar Ali’s share. Accordingly the order of January 10, 1952 remained without jurisdiction as to Zafar Ali’s interest in the property, even after the rejected appeal. In the Court’s view the appeal offered no answer to the claim raised in the present petition.

Because no notice under section 7 of the Evacuee Property Act had ever been issued to any of the petitioners, their interest in the two houses never vested in the Custodian. Consequently the acts of the Custodian that deprived the petitioners of possession could not be sustained. The respondents further submitted that the properties had already been acquired under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and therefore the petitioners no longer possessed any claim. The Court examined sub‑section (2) of section 12 of that Act, which provides that, upon publication of a notification under sub‑section (1), the right, title and interest of any evacuee in the specific property shall be extinguished and the property shall vest absolutely in the Central Government free of all encumbrances. While acknowledging that such a notification had indeed been issued, the Court held that the provision only affects the rights of an evacuee, a category to which the petitioners did not belong on the facts admitted. The Court therefore concluded that the provision did not prejudice the petitioners’ claim to the houses. It noted that the petitioner, Zafar Ali, had asserted that his father’s will granted him a larger share of the houses than he would have received under intestacy, but the Court made clear that it was not required to consider any rights that might arise from that will. In the final analysis the Court allowed the petition and set aside the order of January 10, 1952 to the extent that it affected the petitioners’ rights in the two houses.

The Court held that the order dated 10 January 1952, to the extent that it had affected the rights of the petitioners in the properties that were the subject of the proceedings, was set aside. In doing so, the Court restored the petitioners’ entitlement to those properties, recognising that the earlier order could not continue to prejudice their legal interests. The judgment further stipulated that no award of costs would be made against either party, meaning that each side would bear its own legal expenses. Accordingly, the petition was allowed, and the relief sought by the petitioners was granted in full.