The Custodian of Evacuee Property vs Khan Saheb Abdul Shukoor, Etc

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

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 101 to 104 of 1957

Decision Date: 20 February 1961

Coram: K.N. Wanchoo, P.B. Gajendragadkar, A.K. Sarkar, K.C. Das Gupta

In this matter, the Supreme Court of India delivered a judgment on 20 February 1961 concerning the dispute between the Custodian of Evacuee Property, Bangalore, as petitioner and Khan Saheb Abdul Shukoor together with others as respondents. The judgment was authored by Justice K. N. Wanchoo and the bench comprised Justices K. N. Wanchoo, P. B. Gajendragadkar, A. K. Sarkar and K. C. Das Gupta. The case was reported in the 1961 volumes of the All India Reporter and the Supreme Court Reporter, bearing citations 1961 AIR 1087 and 1961 SCR (3) 855 respectively, and it was later cited in the 1962 Supreme Court Reports as R 1962 SC 922 (11). The central issue involved the validity and maintainability of appeals and revisions under statutes governing evacuee property, including the Mysore Administration of Evacuee Property (Emergency) Act, 1949 (XLVII of 1949) with sections 5, 6, 8 and 30, the Mysore Administration of Evacuee Property (Second) (Emergency) Act, 1949 (LXXIV of 1949) with sections 22, 23 and 25, the Administration of Evacuee Property Act, 1950 (XXXI of 1950) with section 27, and the relevant provision of the Constitution of India, Article 226. The petition raised questions about the power of the Custodian to pass orders, the right of appeal to the High Court, the effect of subsequent legislation that repealed earlier statutes, and the authority of the Custodian‑General to revise orders previously made by the Custodian.

The Court explained that on 7 July 1949 the then State of Mysore enacted the Mysore Administration of Evacuee Property (Emergency) Act, 1949, which, among other provisions, created the office of a Custodian of Evacuee Property for the purpose of administering evacuee assets within the State. Section 6 of that Act required the Custodian, after acquiring property under section 5, to publish a notification in the Mysore Gazette. Section 8 allowed any person who claimed a right in a property that had been so notified to lodge a claim before the Custodian, asserting that the property was not in fact evacuee property. Section 30 provided that a party dissatisfied with an order made under section 8 by the Custodian, an Additional Custodian or an authorised Deputy Custodian could appeal to the High Court. This legislation was later superseded by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, 1949, which became operative on 29 November 1949. Section 53(2) of the second Act stipulated that any act or exercise of power performed under the earlier Act would be deemed to have been done under the authority of the later Act. The second Act replaced the High Court as the appellate forum; instead, an appeal from a Custodian’s order now lay to the Custodian‑General, who was appointed by the Government of India under the Administration of Evacuee Property Ordinance, 1949, effective from 18 October 1949. Moreover, section 25 of the second Act authorised the Custodian‑General to revise orders issued by the Custodian. Subsequently, the Parliament enacted the Administration of Evacuee Property Act, 1950, which came into force on 17 April 1950 and largely incorporated the provisions of the Mysore Act. Section 27 of this central Act conferred upon the Custodian‑General the power to revise orders made by the Custodian, thereby continuing the legislative scheme established by the earlier state enactments.

The Act granted the Custodian‑General the authority to revise orders issued by the Custodian, and Section 58, as amended with retrospective effect, declared that any earlier law of a State corresponding to the new Act and not expressly repealed would be deemed repealed at the moment the new Act commenced. On 21 September 1949, the Custodian issued a notification stating that the properties of the respondents were to be treated as evacuee properties. The respondents subsequently filed claims under Section 8 of the earlier Mysore Act. The Deputy Custodian examined those claims and dismissed them on 17 April 1950. The respondents appealed the dismissal to the Custodian, and on 22 August 1950 the Custodian set aside the dismissal, holding that the evidence was insufficient to establish the respondents as evacuees and therefore the properties could not be classified as evacuee properties. Subsequently, on 3 October 1950, the Custodian‑General served a notice upon the respondents under Section 27 of the Administration of Evacuee Property Act, 1950, concerning the Custodian’s order dated 22 August 1950, and invited them to show cause why that order should not be revised. On 2 February 1952, the Custodian‑General annulled the August 1950 order and instructed the Custodian to reconsider the matters anew. Thereafter, on 2 December 1952, the Custodian issued a fresh order declaring that the respondents were evacuees and that their properties were evacuee properties. In response to that order, the respondents filed two appeals before the High Court and also instituted two writ petitions under Article 226 of the Constitution, as they were uncertain whether an appeal to the High Court was permissible.

The High Court opined that the Custodian‑General possessed no power under Section 27 of the 1950 Act to revise the Custodian’s order. It further reasoned that because the original proceedings had commenced under Section 8 of the first Mysore Act and because neither the second Mysore Act nor the 1950 Act contained a corresponding provision, the High Court was competent to entertain the appeal against the 2 December 1952 order, treating that order as having been issued in proceedings governed by the first Mysore Act. Acting as an appellate tribunal, the High Court examined the matter and concluded that the Custodian’s 2 December 1952 order was erroneous. The Court subsequently held that the High Court erred in its finding that the Custodian‑General’s 2 February 1952 order was ultra vires. In light of the purpose behind the enactment of the Administration of Evacuee Property Act, 1950, and the successive saving provisions contained in the second Mysore Act and the 1950 Act, the Court determined that the Custodian‑General did have the power under Section 27 to summon the record of the proceedings that led to the 22 August 1950 order and to assess its legality and propriety. Moreover, the Court held that the High Court was also mistaken in its conclusion that appeals to it were not permissible.

The Court observed that an order issued under section 8 of the first Mysore Act, which began a proceeding on 2 December 1952, should be treated as an order made under section 5(1) of the second Mysore Act or, alternatively, as an order made under section 7(1) of the Administration of Evacuee Property (Emergency) Act, 1950, because of the provisions contained in section 53(2) of the second Mysore Act and section 58(3) of the 1950 Act. By necessary implication, the legislature had intended that the appellate provisions contained in the later statutes would replace the earlier appellate provisions that were set out in the first Mysore Act. The Court referred to the decision in Garikapatti Vecraya v. N. Subbiah Choudhury, [1957] S.C.R. 488, to support this interpretation. Since the principal issue in the matters before the Court was whether the respondents qualified as evacuees—a question of fact—the Court held that the High Court was not empowered to review the order of 2 December 1952 in an appellate capacity when hearing applications for a writ of certiorari under article 226 of the Constitution. In reaching this conclusion, the Court applied the principle enunciated in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Others, [1955] 1 S.C.R. 1104.

The judgment related to civil appeals numbered 101 to 104 of 1957, which were appeals from the Mysore High Court judgment and order dated 4 February 1954, as well as regular second appeals numbered 5 and 6 of 1953 and writ petitions numbered 67 and 68 of 1953. The appellant was represented by counsel appearing on behalf of the Union, while the respondents were represented by counsel on their behalf. The judgment was delivered on 20 February 1961 by Justice Wanchoo. The Court noted that the four appeals arose from certificates granted by the Mysore High Court and that they would be disposed of together because they raised common points of law. The factual background was intricate and required detailed narration. The Court recalled that on 7 July 1949, the State of Mysore enacted the Mysore Administration of Evacuee Property (Emergency) Act, No. XLVII of 1949, hereinafter referred to as the first Mysore Act. This Act provided for the appointment of a Custodian of Evacuee Property for the State and for subordinate officers to administer evacuee property. Section 2(c) defined “evacuee” and section 2(d) defined “evacuee property”. Section 5 stipulated that all evacuee property situated in Mysore would vest in the Custodian. Section 6 required the Custodian to publish a notification in the Mysore Gazette of the evacuee property vested in him. Section 8 allowed any person claiming a right or interest in property listed under section 6, or in property for which the Custodian had demanded surrender of possession, to refer a claim to the Custodian on the ground that the property was not evacuee property or that the claim‑ant’s interest was not affected by the Act. The Act further provided that the Custodian was …

The Act required the Custodian to conduct a summary inquiry in the manner prescribed for any claim made under the procedure, to consider any evidence that might be produced, and then to issue an order that set out the reasons for either rejecting the claim or allowing it in whole or in part. Section thirty of the same Act also allowed an aggrieved party to appeal the order to the High Court when the original order had been passed by the Custodian, an Additional Custodian or an authorised Deputy Custodian. This legislation remained operative until it was superseded by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, No LXXIV of 1949, referred to as the second Mysore Act, which came into force on 29 November 1949. Earlier, on 21 September 1949, the Custodian had issued a notification declaring the properties of the two respondents to be evacuee properties that vested in the Custodian because the respondents had become evacuees. Following that notification, each of the two respondents filed a separate claim under section 8 of the first Mysore Act. The Deputy Custodian examined both claims and dismissed them on 17 April 1950, stating that the properties were indeed evacuee properties. It should be noted that during the pendency of those proceedings the second Mysore Act had come into force, thereby repealing the first Mysore Act. Nevertheless, section 53(2) of the second Act provided that any act or action taken under the powers conferred by the first Act would be deemed to have been done under the powers of the second Act, and that any penalty incurred or proceeding initiated under the first Act would be treated as if it were incurred or commenced under the second Act, as though the latter had been in force on the date of the act. There was, however, a material difference between the two statutes. The first Mysore Act, by virtue of section 5, effected the automatic vesting of all evacuee property situated in Mysore in the Custodian; section 6 dealt with the Custodian’s notification, and section 8 allowed persons to prefer claims. The second Mysore Act altered this scheme. Its section 5 provided that where the Custodian was of the opinion that any property fell within the definition of evacuee property under the Act, he could, after giving prescribed notice to interested persons and after holding an inquiry as the circumstances permitted, pass an order declaring such property to be evacuee property. Section 6 of the second Act then provided for the vesting of any property so declared in the Custodian. Consequently, under the first Act the property vested in the Custodian immediately and a claimant had to apply under section 8 to obtain a declaration that the property was not evacuee property, whereas under the second Act the property did not vest until after the Custodian, following notice and inquiry, declared it to be evacuee property.

Under the second Mysore Act the property did not automatically vest in the Custodian; the Custodian was required to issue a notice in the prescribed manner whenever he considered any property to be evacuee property, to conduct a hearing of the interested persons, and only after making a declaration that the property was evacuee property did the vesting take effect in his favour. The second Mysore Act further defined the term “Custodian‑General” as the Custodian‑General of Evacuee Property in India, who was appointed by the Government of India pursuant to section 5 of the Administration of Evacuee Property Ordinance (Central Ordinance No XXVII of 1949) that had become operative on 18 October 1949. In addition, the statute altered the appellate forum: instead of the High Court, an appeal from an order made under section 5 of the second Mysore Act—where the original order had been rendered by the Custodian, an Additional Custodian, or an authorised Deputy Custodian—lay to the Custodian‑General, and in certain instances to the District Judge designated for that purpose by the Government under sections 22 and 23 of the second Mysore Act. Moreover, section 25 of the second Mysore Act authorised the Custodian‑General to revise orders issued by the District Judge or by the Custodian on appeal. It is relevant to note that the Administration of Evacuee Property Act, No XXXI of 1950 (hereinafter “the Act”), came into force on the same day that the Deputy Custodian issued the order dated 17 April 1950. By that time the Constitution of India had also come into effect on 26 January 1950, thereby converting the former State of Mysore into a Part B State under the Constitution. The Act was applicable throughout India except in the States of Assam, West Bengal, Tripura, Manipur and Jammu and Kashmir, and consequently it applied to the Part B State of Mysore as of 17 April 1950. Although the Act contained no explicit clause repealing the second Mysore Act, it is not seriously contested that, by necessary implication, the Act superseded the earlier statute because it incorporated virtually all of its provisions. Nevertheless, appeals were filed against the 17 April 1950 order before the Custodian; these appeals were decided on 22 August 1950. The Custodian concluded that the respondents had not produced sufficient evidence to establish their status as evacuees, and therefore the properties in dispute could not be treated as evacuee property. On 3 October 1950 the Custodian‑General served notices to the respondents under section 27 of the Act, relating to the Custodian’s order of 22 August 1950, and invited them to show cause why that order should not be revised. Subsequently, on 7 December 1950 the Administration of Evacuee Property (Amendment) Act, No LXVI of 1950, was enacted, which among other changes amended section 58 of the Act.

The Act was amended by Section 58, which expressly provided that if, immediately before the commencement of the Act, any State to which the Act extended had a law in force that corresponded to the Act and that law had not been repealed under sub‑section (1), such law would be deemed repealed. This amendment was made retrospective to the date on which the Act originally came into force, namely 17 April 1950. Consequently, the implied repeal of earlier evacuee‑property statutes that were operating in the States covered by the Act became an explicit repeal effective from 7 December 1950, thereby ensuring that from 17 April 1950 onward the Act alone governed the field of evacuee‑property law.

On 11 February 1952, the Custodian‑General set aside the Custodian’s order dated 22 August 1950 and directed that the matters should be remitted to the Custodian for consideration as original proceedings. The Custodian was instructed to decide the cases anew, taking into account the evidence already on record and any further evidence that the two respondents might produce. The Custodian, after receiving the matter back, ordered the Deputy Custodian on 7 April 1952 to compile the evidence and forward the record for his final determination. The Custodian finally disposed of the cases on 2 December 1952, holding that both respondents qualified as evacuees and that their properties were therefore evacuee properties. The respondents filed two appeals in the High Court on 2 January 1953, and, uncertain whether an appeal was permissible, also filed two writ petitions on 7 September 1953 against the Custodian’s order. The High Court disposed of the two appeals and the two writ petitions together in a common judgment on 4 February 1954. The High Court held that the appeals were maintainable and further concluded that the Custodian‑General had no authority under section 27 of the Act to revise the Custodian’s order of 22 August 1950. Acting as an appellate tribunal, the High Court found the Custodian’s order of 2 December 1952 to be erroneous, set aside that order, and restored the earlier order of 22 August 1950. Following this, the Custodian of Evacuee Property, Mysore, applied for certificates to file appeals to “this Court,” which the High Court granted, resulting in the four appeals now before the Supreme Court. The counsel for the appellant, the Additional Solicitor‑General, advanced a two‑fold contention, first asserting that the High Court erred in holding that the Custodian‑General lacked power to set aside the order of

In the present matter, the appellant’s counsel argued that the High Court erred on two separate grounds. First, he maintained that the High Court wrongly concluded that the Custodian‑General possessed no authority under section 27 of the Act to set aside the order dated 22 August 1950. Second, he asserted that the High Court was mistaken in holding that an appeal was permissible against the order dated 2 December 1952; consequently, he contended that the High Court could not have treated the proceedings as an appeal. According to his reasoning, the High Court should have limited itself to adjudicating the writ petitions, and in so doing it would have been unjustified in issuing a writ of certiorari to challenge the December 2 1952 order because, in his view, that order was not rendered ultra vires and no apparent error of law was evident on the face of the record that would warrant interference.

The respondents, represented by counsel, countered that the proceedings originated under clause 8 of the first Mysore Act, a provision that has no counterpart in either the second Mysore Act or the later Act that succeeded the first. On that basis, they argued that the High Court was properly authorized to entertain an appeal from the December 2 1952 order, since that order must be regarded as having been issued in a proceeding governed by the first Mysore Act, even if the Custodian‑General retained jurisdiction to set aside the August 22 1950 order under section 27 of the Act. In addition, the respondents contended that the Custodian‑General lacked authority under section 27 of the Act to overturn the August 22 1950 order. Accordingly, the initial point for determination was whether the Custodian‑General indeed possessed jurisdiction to set aside the August 22 1950 order pursuant to section 27; if he did not, the High Court could, after finding the Custodian‑General’s February 11 1952 order to be without jurisdiction, invalidate all subsequent proceedings, thereby restoring the August 22 1950 order to full effect, assuming, for the sake of argument, that the High Court had jurisdiction in writ proceedings to annul an order issued by the Custodian‑General whose headquarters were located in New Delhi. The respondents further explained that the first Mysore Act contained no provisions relating to the Custodian‑General, while the second Mysore Act introduced the office of the Custodian‑General and conferred upon him revisionary powers under section 25 with respect to orders made by the Custodian or the District Judge in appeal. Subsequently, the Act enacted on 17 April 1950 expanded those powers, authorising the Custodian‑General to request the record of any proceeding in which a District Judge or Custodian had issued an order, in order to determine the legality or propriety of such an order and to make any order he deemed appropriate. This provision was broader than that in the second Mysore Act, as it was not limited to orders made by a District Judge or a Custodian in appeal and would also apply to original orders issued by the Custodian, a term that, under the definition in section 2(c), includes any Additional, Deputy or Assistant Custodian of evacuee property.

In the judgment, the Court observed that the power to call for records applied to any order issued by the Custodian, and that the term “Custodian” as defined in section 2(c) includes any Additional, Deputy or Assistant Custodian of evacuee property. The Court noted that the 1950 Act contains essentially all the provisions that were in the second Mysore Act, and therefore the 1950 Act must be understood to have implicitly repealed the second Mysore Act. Moreover, the question of whether the second Mysore Act was repealed when the 1950 Act became operative on 17 April 1950 had already been settled by the later Central Act, numbered LXVI of 1950. That Central Act was enacted on 7 December 1950 and began with the clause: “For section 58 of the Administration of Evacuee Property Act, 1950, the following section shall be substituted and shall be deemed always to have been substituted.” This language shows that Central Act LXVI amended section 58 retrospectively to the date the 1950 Act came into force, namely 17 April 1950. The substituted section 58 contained sub‑section (2) which provides: “If, immediately before the commencement of this Act, there is in force in any State to which this Act extends any law which corresponds to this Act and which is not repealed by sub‑section (1), that corresponding law shall stand repealed.” Consequently, the second Mysore Act, being a law corresponding to the 1950 Act, was expressly repealed as of 17 April 1950 by virtue of the newly inserted sub‑section (2) of section 58, which was given retrospective effect by Central Act LXVI. The Court pointed out that the High Court had overlooked the retrospective operation of the new sub‑section (2) and had incorrectly concluded that the second Mysore Act was repealed only on 7 December 1950, when Central Act LXVI itself came into force. The Court further held that the amended sub‑section (3) of section 58, which was also inserted by the 1950 Act, likewise came into force on 17 April 1950 and not on 7 December 1950. Therefore, when the Custodian‑General issued a notice in October 1950 under section 27 of the Act, the first Mysore Act had already been repealed by the second Mysore Act, and the second Mysore Act had already been repealed by the 1950 Act as of 17 April 1950. Accordingly, by October 1950 only the 1950 Act governed the field. The Court then considered whether the Custodian‑General was empowered to revise the order dated 22 August 1950 under section 27 of the Act in February 1952. Section 27 is very wide in its terms and authorises the Custodian‑General, at any time and either on his own motion or on an application made to him, to call for the record of any proceeding in which any District Judge or Custodian has passed an order, for the purpose of satisfying himself as to the legality or propriety of that order and to pass any order he thinks fit in relation thereto.

The Judge or Custodian had the authority to issue an order for the purpose of determining for himself whether any earlier order was legal or proper, and to thereafter issue a further order concerning that matter as he deemed appropriate. On its face, the broad wording of the provision therefore conferred upon the Custodian‑General the power to revise any order that had been made by the Custodian. It was submitted by the respondents that the Custodian‑General could not revise the order dated 22 August 1950. The Court was not persuaded by that submission. The Act of 1950 had been enacted in order to create a central organisation charged with the custody, management and control of property that had been declared by law to be evacuee property, and the Custodian‑General was placed at the head of that organisation. It was also clear that, on the date the Act came into force—17 April 1950—all comparable statutes that existed in the various States were repealed by the Act. The Legislature’s evident intention was to provide for the custody and management of evacuee property in the manner set out in the Act, with the Custodian‑General as the head of the scheme. Moreover, actions taken with respect to evacuee property under the first Mysore Act were, by virtue of section 53(2) of the second Mysore Act, deemed to have been taken under that second Act, and any action taken in the exercise of power conferred by the second Mysore Act was in turn deemed to have been taken under the powers conferred by the 1950 Act. Consequently, any action or any order issued concerning evacuee property, irrespective of whether the proceeding had been initiated under the first Mysore Act, fell within the revisory jurisdiction of the Custodian‑General under section 27, given the wide language of that provision. The order of 22 August 1950 had been issued while the Act was already in force, in a proceeding relating to evacuee property and made by the Custodian; thus the Custodian‑General was competent, under section 27, to call for the record of that proceeding, to satisfy himself as to the legality or propriety of that order, and to issue a further order as he thought fit. Accordingly, considering the purpose for which the Act was enacted and the successive saving clauses contained in the second Mysore Act and in the 1950 Act, the Custodian‑General possessed the power under section 27 to request the record of the proceeding in which the 22 August 1950 order was passed, to examine its legality or propriety, and to pass any order relating thereto as he deemed appropriate. Even if the notice issued in October 1950 were open to question because it was issued before the passage of Act LXVI of 1950, there is no doubt that the order dated February 1952, made under section 27 after hearing the parties, was valid and within the Custodian‑General’s jurisdiction.

The Court pointed out that the order dated 11 February 1952 issued by the Custodian‑General was made while he was still exercising the authority that existed at the time the order was passed; consequently that order fell within his jurisdiction and could not be set aside by a writ of certiorari on the premise that the Custodian‑General had acted without jurisdiction. In the same vein, the Court held that every proceeding that followed the February 1952 order was likewise undertaken under the Custodian‑General’s lawful authority and therefore could not be challenged by a writ of certiorari on the basis of lack of jurisdiction. Accordingly, the Court concluded that the High Court had erred in declaring the February 1952 order to be without jurisdiction and in holding that all subsequent proceedings pursued in its wake were likewise without jurisdiction, a view that would have left the earlier order of 22 August 1950 fully operative. Turning to the next issue, the Court examined whether any statutory right of appeal to the High Court existed against the order dated 2 December 1952. It observed that the present proceedings were initiated under the first Mysore Act, having been commenced by a notification issued under section 6 of that Act and by claim applications filed under section 8. Had the original proceeding been concluded while the first Mysore Act was still in force and the December 1952 order rendered during that period, an appeal to the High Court under section 30 of the first Mysore Act would unquestionably have been available. However, the first Mysore Act had been repealed by the second Mysore Act in November 1949, and the second Mysore Act, in turn, had been repealed by the Evacuee Property Act that came into operation in April 1950. The question therefore arose as to whether, after the repeal of the first Mysore Act, a right of appeal to the High Court could still be maintained from the December 1952 order. Counsel for the petitioner, Mr Sastri, contended that if the second Mysore Act or the Evacuee Property Act contained provisions analogous to those in section 8 of the first Mysore Act, the appellate remedy provided by section 30 of the first Mysore Act might have been displaced by the remedy created in the later legislation, namely an appeal to the Custodian‑General under section 24 of the Evacuee Property Act. The argument further maintained that neither the second Mysore Act nor the Evacuee Property Act contains any provision comparable to section 8 of the first Mysore Act. Accordingly, despite the formal repeal of the first Mysore Act, the Court reasoned that the present proceedings should be deemed to continue under the first Mysore Act for the purpose of determining the right of appeal, that the right of appeal is a vested substantive right that arises at the commencement of the proceeding, and therefore the appeal under section 30 of the first Mysore Act would remain available notwithstanding the repeal of that Act. When the matter was placed before the Custodian‑General in 1952, it was contended before him that the proceedings should be taken to

The Custodian acknowledged the argument that the proceedings should be regarded as falling under the first Mysore Act. He, however, observed that this point was immaterial for the present matters because the definition of “evacuee” contained in section 2(c) of the first Mysore Act was essentially the same as the definition provided in section 2(d) of the later Act. It was further submitted that, based on the manner in which the Custodian dealt with the case when he issued his order dated 2 December 1952, the proceedings before him must be considered to have been brought under the first Mysore Act. If that premise were accepted, an appeal would arise to the High Court under section 30 of the first Mysore Act. The High Court adopted this view, holding that the appeals before it were competent, and the correctness of that view has now been questioned before this Court. The Court noted that the right of appeal is a substantive right that arises at the moment a proceeding is commenced and that such a right cannot be removed by later legislation unless there is an express provision or a necessary intendment to that effect. In the present case there is no express provision removing the appeal right created by the first Mysore Act. Consequently, the Court must examine whether the later legislation has, by necessary intendment, taken away the appeal right conferred by the first Mysore Act, and if it has, whether that right has been wholly eliminated or merely replaced by a different avenue of appeal that does not extend to the High Court.

Under the first Mysore Act, as previously explained, evacuee property vested automatically in the Custodian by operation of section 5. Following this vesting, the Custodian was required to give notice of such property under section 6. Upon receipt of that notice, or when the Custodian demanded surrender of possession, any person asserting a claim to the property was entitled to file an application before the Custodian seeking recognition of that claim. The Custodian dealt with each application in a summary fashion and possessed the authority either to reject the application entirely or to allow it in whole or in part. An order issued by a Deputy Custodian or an Assistant Custodian pursuant to section 8 could be appealed to the Custodian himself, while an order made by the Custodian, an Additional Custodian, or an authorized Deputy Custodian was appealable to the High Court. The respondents contended that the replacement of the first Mysore Act by the second Mysore Act introduced a significant procedural alteration, so that cases whose proceedings had begun under section 8 could only be dealt with under the first Mysore Act. Accordingly, they argued that the first Mysore Act should be treated as still in force for those cases under section 6(e) of the Mysore General Clauses Act, No. III of 1899, which corresponds to section 6(e) of the General Clauses Act, No. X of 1897. The Court observed that there is no doubt that the proceedings in these …

In this case the Court observed that proceedings which had been started under the first Mysore Act ceased to continue when that Act ceased to be in force. The Court therefore needed to determine whether the legislation that repealed the first Act contained, by necessary implication, a provision that removed the right of appeal that was created by the first Act and replaced it with a different appeal right created by the repealing legislation. Counsel for the respondents, identified as Mr Sastri, argued that the second Mysore Act contained no provision that corresponded to section 8 of the first Mysore Act; consequently, despite the repeal of the first Act, any proceedings that had been commenced under section 8 of the first Act should continue to be governed by that provision, including the right of appeal that it authorised. He further submitted that the scheme of the second Mysore Act with respect to evacuee property differed fundamentally from the scheme embodied in the first Act. In particular, the second Act lacked any provision analogous to section 5 of the first Act, which in the earlier law made any specified property automatically become evacuee property and vest in the Custodian. Under the second Act the Custodian was required first to form a tentative opinion on whether a particular property was evacuee property; after forming that opinion the Custodian had to give notice of the opinion to all interested persons, thereafter conduct an enquiry into the matter, and finally pass an order declaring the property to be evacuee property if the inquiry supported that conclusion. By contrast, under the first Act a property became evacuee property automatically, and any person claiming an interest in such property was obliged to file a claim under section 8. That claim was then investigated, and after investigation the Custodian finally decided, based on the notice that had been issued under section 6, whether the property was indeed evacuee property. Because the second Act did not provide for automatic vesting, the procedural steps began with the Custodian’s notice to the interested person, followed by an inquiry, after which the Custodian could decide to declare the property evacuee if the evidence warranted such a declaration. Moreover, the second Act permitted the aggrieved party, after an order under paragraph 5 declaring a property to be evacuee, to file an appeal. The appeal lay to the Custodian where the original order had been made by a Deputy Custodian or an Assistant Custodian, and to the Custodian‑General where the original order had been made by the Custodian, an Additional Custodian, or an authorised Deputy Custodian. Although in some instances an appeal could be taken to the District Judge, the Court noted that such appeals were not relevant to the present appeal. The Court further stated that the position under the subsequent legislation was essentially the same as under the second Mysore Act and that the right of appeal remained analogous. Consequently, the Court recognised that there had indeed been a change in the procedural mechanism by which a property was finally declared to be evacuee property: under the first Mysore Act the property became evacuee automatically, whereas under the second Mysore Act the declaration resulted from a notice, inquiry and final decision by the Custodian.

In the first Mysore Act, a property was deemed evacuee property unless the person interested filed a claim to demonstrate that it was not; that claim was then investigated and the Custodian was required to reach a final determination. If the Custodian concluded that the property was indeed evacuee, the vesting provision contained in section 5 of the first Mysore Act was confirmed. Conversely, if the Custodian decided that the property was not evacuee, the legal effect was that no vesting occurred under section 5 of that Act. Under the second Mysore Act, the property did not automatically vest in the Custodian as evacuee property. Instead, the Custodian first formed a tentative opinion on whether the property qualified as evacuee, after which he issued notices to the persons interested. Those persons were then required to appear before the Custodian, and the matter was investigated. After completing the investigation, the Custodian had to reach a final conclusion. If he concluded that the property was evacuee, he declared it to be such; if he concluded otherwise, the proceedings terminated. By comparing the two procedures, it becomes clear that although there is a procedural difference, the distinction is not of a vital or substantial nature. In the first procedure, the law began with the presumption that the property was evacuee, placing the burden on the interested person to prove the contrary, whereas in the second procedure the law did not start with any presumption but required the Custodian to develop a tentative opinion, give notice, and then investigate before making a final decision. In both statutory schemes, the central issue—whether the property was evacuee—was subject to investigation, and only after that investigation could a definitive conclusion be reached. Consequently, the apparent divergence between provision a. 8 of the first Mysore Act, section 5 of the second Mysore Act, and section 7 of the later Act does not constitute a material difference. The investigation mandated by a. 8 of the first Act and the remedies that follow an order under that provision are, in substance, the same as the investigation required under section 5 of the second Mysore Act and the remedies that follow an order under section 7 of the later Act.

The Court observed that the investigation provided under section 8 of the first Mysore Act was essentially the same as the investigation provided under section 5 of the second Mysore Act or section 7 of the Act, and that the subsequent remedies following an order were also the same. Consequently, the Court could not agree with the High Court’s view that the second Mysore Act contained nothing corresponding to section 8 of the first Mysore Act and that proceedings which began under the first Mysore Act must continue to be governed by that Act despite its repeal. As the Court had pointed out earlier, proceedings under section 8 of the first Mysore Act were in substance equal to proceedings under section 5 of the second Mysore Act; therefore, by virtue of section 53(2) of the second Mysore Act, those proceedings had to be deemed proceedings under section 5 of the latter Act. Once that conclusion was reached, which the Court found inevitable, it followed that an order made in a proceeding commenced under section 8 of the first Mysore Act must be treated as an order made under section 5(1) of the second Mysore Act or under section 7(1) of the Act. The Court noted that it could not have been the legislature’s intention to keep the first Mysore Act alive for all purposes forever, since the whole object of passing the subsequent Acts was plainly contrary to such an assumption. The next question that arose was whether the second Mysore Act and the Act removed the right of appeal that lay to the High Court under the first Mysore Act and substituted another right of appeal by necessary implication. The Court observed that there was no express provision in either the second Mysore Act or the Act to that effect. However, once it was held that proceedings which had commenced under section 8 of the first Mysore Act must, when the second Mysore Act came into force, be deemed under section 53(2) to be proceedings under section 5(1), and when the Act came into force be deemed under section 58(3) to be proceedings under section 7(1), and that they must continue under those provisions, it followed that the legislature necessarily intended that all subsequent action following an order under section 5(1) or section 7(1) be taken under the second Mysore Act or under the Act, as the case may be. It could not have been intended by the legislature, while expressly providing for appeal from an order under section 5(1) of the second Mysore Act or under section 7(1) of the Act, that a proceeding commenced under the first Mysore Act (which was equivalent to a proceeding under section 5(1) or section 7(1)) should continue to be governed, for the purpose of appeal, by the first Mysore Act. Accordingly, the Court held that by necessary implication, although not by express provision, the appellate forum created by the later legislation superseded the forum provided under the first Mysore Act.

The Court observed that the legislature intended the appeal provisions contained in later statutes to replace those that existed under the first Mysore Act. It clarified that this intention did not eliminate the right of appeal altogether; rather, when an order was issued by the Custodian, the appropriate avenue for appeal became the Custodian‑General instead of the High Court. By providing a new forum for appeal, the legislature, by necessary intendment, meant that only the forum created by the subsequent legislation should be used for appeals and not the forum established under the first Mysore Act. In support of this view, reference was made to Garikapatti Veeraya v. N. Subbiah Choudhury (1), where the Court had held that a vested right of appeal is a substantive right governed by the law in force at the commencement of the suit and that it includes all successive rights of appeal that together constitute a single proceeding, while also noting that such a right may be removed either expressly or by necessary intendment. The Court further explained that, once proceedings under section 8(1) of the first Mysore Act were deemed equivalent to proceedings under section 5(1) of the second Mysore Act or section 7(1) of the later Act, it necessarily followed that the legislature intended all subsequent appeal proceedings, after the first Mysore Act had ceased to apply, to be taken before the forum provided by the later legislation. Consequently, the Court held that the High Court had erred in deciding that appeals could be filed with it from the order dated 2 December 1952. According to the Court’s view, the High Court was not justified in treating that order as an appellate matter, although it could examine the order under Article 226 of the Constitution if a writ of certiorari were sought. The Court recalled the principles governing the High Court’s jurisdiction to issue writs of certiorari as set out in Hari Vis Kamath v. Syed Ahmed Ishaque and others (2), namely: (1) certiorari is issued to correct errors of jurisdiction; (2) it is also issued when a court or tribunal acts illegally in the exercise of its jurisdiction, for example by deciding without hearing the parties or violating natural‑justice principles; (3) the court issuing certiorari acts in a supervisory capacity, not an appellate one, and therefore does not review findings of fact made by an inferior court or tribunal even if they are erroneous; and (4) a writ of certiorari may be entertained where there is an error in the decision or determination itself, provided the error is manifest and not merely a wrong decision.

In the present case the Court observed that a manifest error is one that is apparent on the face of the proceedings, for example when the error arises from a clear ignorance or disregard of the provisions of law, and that such a patent error may be corrected by a writ of certiorari but does not include a mere wrong decision. The Court held that the Custodian possessed jurisdiction to adjudicate the matter once it was established that the Custodian‑General had authority to set aside the order dated 22 August 1950. The principal issue for determination was whether the respondents qualified as evacuees within the meaning of clause 2(c) of the First Mysore Act. The questions falling under section 2(o) were factual questions, and, as indicated in Hari Vishnu Kamath’s case, a writ of certiorari cannot be used to review factual findings of an inferior court or tribunal even if those findings are erroneous. Moreover, unless there is a patent error of law, certiorari cannot be employed to interfere with the lower tribunal’s decision.

While considering the writ petitions, the principal contention before the High Court was that the Custodian‑General lacked jurisdiction to revisit the earlier proceedings, rendering all subsequent proceedings void. The High Court additionally noted that the ordinary remedy available to the respondents against the order of 2 December 1952 was an appeal to the Custodian‑General under section 24 of the Act. However, the High Court opined that the order of the Custodian‑General under clause 27 was beyond his jurisdiction and therefore set aside the order of 2 December 1952, restoring the earlier order of 22 August 1950. The Supreme Court disagreed with that view, finding that the Custodian‑General’s order was made within his jurisdiction and that there was no reason for the High Court, exercising its supervisory jurisdiction under Article 226 of the Constitution, to interfere with the order dated 2 December 1952. The Court further concluded that only a writ of certiorari could be issued in such circumstances, and that such a writ was not justified in view of the decision in Hari Vishnu Kamath’s case.

Consequently, the Court allowed the appeals, set aside the order of the High Court, and restored the order of the Custodian dated 2 December 1952. The Court clarified that this restoration did not deprive any respondent of the right to approach the Custodian‑General, as the merits of the 2 December 1952 order were not examined. No order as to costs was made.