Gorkha Ram And Others vs The Custodian General Of India, Delhi

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 340 of 1958

Decision Date: 21 April 1961

Coram: Raghubar Dayal, J. R. Mudholkar

In the matter of Gorkha Ram and others versus the Custodian General of India, the Supreme Court of India delivered its judgment on 21 April 1961. The judgment was authored by Justice Raghubar Dayal, who sat on the bench together with Justice J. R. Mudholkar. The petitioners were Gorkha Ram and other members of a proprietors’ body, while the respondent was the Custodian General of India, Delhi. The case is reported in 1961 AIR 1805 and 1962 SCR (2) 151, and it concerned the Administration of Evacuee Property Act, 1950 (31 of 1950), specifically section 18(1), in relation to a Muslim non‑proprietor who had migrated to Pakistan. The headnote set out the traditional rules of the village of Buland in the tehsil and district of Rohtak, described as a “wajib‑ul‑arz”. Those rules stipulated that a non‑proprietor could not settle or construct a house without the consent of the estate owner, that a non‑proprietor occupied land only by acquiring it from the proprietor, and that such occupancy continued only while the non‑proprietor pleased. Upon abandonment of the village, if the dwelling belonged to the communal (Shamlat) property, it automatically fell into the possession of the proprietor. The customary law further provided that a non‑proprietor had no right to sell, mortgage, dismantle, or rebuild his house without the proprietor’s consent, and that on the death of a non‑proprietor without heirs, the house reverted to the proprietor of the estate in which it stood. The headnote identified mendicants, referred to as “Fakiras”, as a class of non‑proprietors residing in the village. One such Fakira, a Muslim belonging to this class, migrated to Pakistan. The proprietors, who owned the estate, subsequently took possession of his dwelling house. The Custodian of Evacuee Property claimed that the house had become evacuee property and therefore vested in the Custodian. The proprietors objected, but the Custodian General dismissed their objection, holding that the house was indeed evacuee property. The Punjab High Court, acting on a petition under article 226 of the Constitution, dismissed the proprietors’ petition, reasoning that the non‑proprietor’s right to occupy the village site constituted a property right that, once the non‑proprietor became an evacuee, vested in the Custodian. Before the Supreme Court, the proprietors relied upon the traditional wajib‑ul‑arz rules, while the respondents relied upon section 18 of the Administration of Evacuee Property Act. The Court held that section 18(1) of the 1950 Act contemplated tenants, whether occupants for a limited term or for an indefinite period, and applied only to tenancy occupancy rights. Under the customary wajib‑ul‑arz, however, a non‑proprietor did not acquire any tenancy right in the site he occupied, and therefore could not be said to be a tenant. Consequently, section 18(1) had no application to the facts of this case. The Court concluded that, upon the Fakira’s abandonment of the village and migration to Pakistan, the dwelling house reverted to the proprietors in accordance with the provisions of the wajib‑ul‑arz, and could not vest in the Custodian. The Court further observed that it was incorrect to characterise the Fakira’s interest in the house as that of a lessee under the customary law, and cited the decision in Associated Hotels of India v. R. N. Kapur (1960) in support of its reasoning.

The Court recorded that the present appeal was listed as Civil Appeal No 340 of 1958 and was taken on the special leave of the Supreme Court. The appeal challenged the judgment and order dated 3 July 1953 of the Punjab High Court in Civil Writ Application No 256 of 1952. Counsel for the appellants consisted of Jwala Parshad Chopra and J. K. Hiranandani, while the respondents numbered one to three were represented by Nanak Chand, R. H. Dhebar and T. M. Sen. The judgment was pronounced on 21 April 1961 by Justice Ragubar Dayal.

The matter arose from a petition filed by the appellants under Article 226 of the Constitution, seeking the nullification of the orders issued by the Custodian General on 17 June 1952. Both the appellants and respondents numbered four and five were residents of village Baland in the tehsil and district of Rohtak, and each claimed to belong to the body of proprietors of that village. Village Baland was divided into three estates, and the specific plot in dispute lay within the estate known as “Barsan.” A mendicant named Fakira, who was not a proprietor, occupied the plot and had constructed a house there.

In January 1950, the Custodian of Evacuee Property served a notice pursuant to section 7 of the Administration of Evacuee Property Ordinance No XXVII of 1949. The notice alleged that the appellants were holding Fakira’s house without authority and directed them either to vacate the premises or to file a written explanation within the prescribed time. The appellants responded by filing objections to the notice. Subsequently, the Deputy Custodian of Evacuee Property issued an order on 3 September 1950 rejecting the appellants’ objections and declaring the house to be evacuee property. That order was based on an inquiry conducted by the Revenue Assistant (Rehabilitation).

The appellants further appealed the Deputy Custodian’s decision to the Additional Custodian of Evacuee Property. The Additional Custodian ordered another inquiry to determine whether Mumtaz, the son of Fakira and an evacuee, had remained in occupation of the house up to the date of the Muslim migration caused by partition. The inquiry found that Mumtaz continued to reside in village Baland and that a son was born to him in July 1947. Accepting the inquiry report, the Additional Custodian concurred with the Deputy Custodian that the subject property constituted evacuee property. The appellants then filed a revision petition before the Custodian General, which was dismissed on 17 June 1952. In the dismissal, the Custodian General observed that ample evidence showed Mumtaz remained in possession of the disputed house until July 1947.

Following that dismissal, the appellants approached the Punjab High Court through a writ petition, challenging the legality of the Deputy Custodian’s order. They argued that the Deputy Custodian had failed to give them any notice or opportunity to be heard and contended that the Custodian lacked jurisdiction because, under the provisions of the wajib‑ul‑arz, a house belonging to a non‑proprietor would revert to the proprietary body upon the non‑proprietor’s departure from the village.

In the proceedings before the High Court, the Single Judge who heard the petition concluded that the Administration of the Evacuee Property Act, 1950 (Act XXXI of 1950) had been observed in every respect. He therefore referred the question of whether a site occupied by a non‑proprietor became vested in the Custodian after the occupier abandoned it to a larger Bench, because he believed that an earlier judgment of another Single Judge in Joti Parshad v. Bhawani Lal required reconsideration. The Division Bench that considered the referred issue held that the right of a non‑proprietor to occupy a village site constituted a right in property, even though it might not amount to an interest in property, and that such a right would vest in the Custodian when the non‑proprietor left the country and became an evacuee. Accordingly, the writ petition was dismissed, and the present appeal was filed against that order. The sole matter to be determined is whether Fakira possessed any such right in the suit property that could have vested in the Custodian when Fakira or his son Mumtaz became evacuees. The appellants contend that Fakira had no right capable of vesting in the Custodian, both on the ground that the provisions of the wajib‑ul‑arz barred such vesting and because Fakira was merely a licence holder. The respondents, on the other hand, rely upon section 18 of the Administration of Evacuee Property Act to rebut this contention. Consequently, the scope of section 18 must be examined. Section 18, as originally enacted, was replaced by section 8 of Act XI of 1953, which declared that the substituted section shall be deemed to have been in force since the commencement of the Act; therefore, the present section is to be treated as having existed from the Act’s inception. Sub‑section (1) of section 18 provides that where an evacuee’s rights in any land, house or other building consist, or consisted, of occupancy rights, no provision of any law then in force, nor any instrument having the force of law, nor any decree or court order, shall extinguish or be deemed to extinguish those rights either when the tenant becomes an evacuee within the meaning of the Act or at any later time, so as to prevent such rights from vesting in the Custodian under the Act, or to prevent the Custodian from exercising any of the powers conferred on him by the Act in respect of those rights. Moreover, notwithstanding any such law, contract, instrument, decree or order, neither the evacuee nor the Custodian, whether as an occupancy tenant or as a tenant for a certain period, monthly or otherwise, of any land, house or other building shall be liable to be ejected or be deemed to have become liable on any ground whatsoever for any default of (a) the

In this case, the Court examined the meaning of the term “occupancy rights” used in the Act, noting that the Act itself does not define the expression. The Court observed that these occupancy rights are intended to survive despite any contrary provision in any other law, any instrument possessing the force of law, or any decree or order of a court. The survival of such rights is triggered when a tenant becomes an “evacuee” within the meaning of the Act, or thereafter. Consequently, sub‑section (1) of section 18 was understood to preserve those occupancy rights that would otherwise be extinguished on the tenant’s becoming an evacuee. The Court therefore concluded that the provision applies only to a person who is a tenant; if a person is not a tenant, the situation contemplated by sub‑section (1) of section 18 does not arise. This interpretation was reinforced by the latter part of the same subsection, which expressly states that, notwithstanding any law, decree, or order, neither the evacuee nor the Custodian, whether acting as an occupancy tenant or as a tenant for a limited period, shall be liable to be evicted or deemed evicted on any ground of default. The Court held that the language of the subsection confirms that the persons referred to are tenants, whether they are occupancy tenants or tenants for a certain time, and thus the provisions of section 18 apply to the occupancy rights of a tenant. The next issue before the Court was whether Fakira, the occupant of the house in dispute, qualified as a tenant. The Court found that Fakira, who lived in the house, was not a tenant. He had merely occupied the site and apparently constructed the house after obtaining permission from the proprietors. The Court referred to the customary law of the village, known as wajib‑ul‑arz, which provides that a non‑proprietor may not settle or build a house without the consent of the estate owner, and that any such settlement is dependent on the proprietor’s permission. The customary rule further states that a non‑proprietor’s right to the house is not transferable, mortgagable, or sellable without the proprietor’s consent, and that if a non‑proprietor dies without heirs, the house reverts to the proprietor. The Court noted that mendicants are listed among the categories of non‑proprietors settled in the Shamlat of the estate, and consequently, Fakira, being a non‑proprietor, possessed no right that would render him a tenant. He only held a right of occupation, not a tenancy right.

The Court observed that the right to build a house on the plot was heritable and transferable only with the consent of the proprietor. Consequently, the provisions of sub‑section (1) of section 18 could not be made applicable to Fakira’s rights in the disputed plot, and therefore could not override the rules of the wajib‑ul‑arz which dictated that Fakira’s right to reside in the house ceased when he left the village and migrated to Pakistan. Counsel for the respondent further argued that, aside from section 18, Fakira’s right of residence should vest in the Custodian because his migration at the time of Partition did not constitute the type of abandonment contemplated by the wajib‑ul‑arz. The respondent submitted that the customary rule envisaged only voluntary abandonment and not abandonment due to force. The Court found this contention difficult to accept. The abandonment was deemed voluntary, even though the decision to leave was prompted by circumstances beyond Fakira’s control. He departed the village and migrated to Pakistan because he believed it to be the better course of action, a point that had not been raised before the High Court.

The respondent also relied on the decision in Associated Hotels of India v. R. N. Kapoor (1) to argue that Fakira was a lessee rather than a licensee of the land. The Court was not persuaded by this reliance. The earlier judgment set out four principles for distinguishing a lease from a licence: (i) the substance of the document prevails over its form; (ii) the parties’ intention is the decisive test; (iii) a document that creates an interest in the property gives rise to a lease, whereas one that merely permits use without transferring legal possession results in a licence; and (iv) exclusive possession creates a presumption of tenancy, which may be rebutted by surrounding circumstances. The terms of the wajib‑ul‑arz, as previously explained, make clear that the proprietors did not confer any interest in the site to Fakira; he was granted only a heritable right to occupy the residence, and the house would revert to the proprietors if he died without heirs. Counsel for the respondent highlighted a passage from the cited case stating that “the right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence.” The Court held that this observation did not aid the respondent because no proprietary interest had been created in Fakira’s favour.

The Court observed that because no proprietary interest had ever been created in Fakira, there was no possibility that he could transfer any such interest; consequently, the issue of a transfer did not arise. It noted that the provisions of the wajib‑ul‑arz merely expressed that the customary law did not allow a non‑proprietor to sell or mortgage a residential house, to remove the building material, or to construct burnt‑brick houses without the consent of the proprietors. The Court further clarified that the wajib‑ul‑arz did not authorize a non‑proprietor to assign his residential right to any other person, whether or not the proprietor consented, and therefore rejected the respondent’s contention on that basis. The respondent had also argued that the licensee’s rights held by Fakira could vest in the Custodian because they fell within the meaning of “property.” The Court held that even assuming those rights qualified as “property,” they were extinguished by the provisions of the wajib‑ul‑arz; consequently, no vesting could occur, especially since the applicability of section 18 of the Act was already rejected on the ground that Fakira was not a tenant. The Court explained that, prior to its amendment in 1953, the expression “evacuee property” in the Act signified any property in which an evacuee possessed any right or interest—personal, as trustee, as beneficiary, or in any other capacity—and that it encompassed any such property. Since Fakira possessed no right in any capacity in the suit property when the Administration of Evacuee Property Act came into force in 1950, the Court concluded that the suit property could not be characterised as evacuee property. Moreover, the Court found no support in the wajib‑ul‑arz or any other law for the lower Court’s observation that an evacuee who returned could demand possession and that the right would cease only if the occupier left the village permanently without intention to return. The Court noted that the written statements of respondents 1 to 3 expressly stated in paragraph 5 that Fakira abandoned the house in 1947 at the time of partition, and that the entire case was premised on Fakira’s migration to Pakistan and his abandonment of the village. Accordingly, the Court held that Fakira never possessed any right in the land that could vest in the Custodian, and therefore the suit property was not evacuee property. The Court allowed the appeal with costs throughout, set aside the order of the lower Court, allowed the petition, and quashed the Custodian General’s order dated 17 June 1952, which had declared the suit property to be evacuee property. The appeal was allowed.