Case: Nasir Ahemed Vs. Assistant Custodian General, Evacuee Property U.P., Lucknow

Sub-section (1) of section 7the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee6 of the Administration of Evacuee Property (Central) Rules, 1950 (hereinafter called the Rules) which lays down the manner of inquiry under section 7 provides in sub-rule (1) that where the Custodian is satisfied from information in his possession or otherwise that any property or an interest therein is prima facie evacuee property, he shall cause a notice to be served in the prescribed form on the person claiming title to such property or interest and on any other person or persons whom he considers to be interested in the property. Sub rule (2) of rule 6 says t hat the notice "shall, as far as practicable, mention the grounds on which the property is sought to be declared evacuee property and shall specify the provision of the Act under which the person claiming any title to, or interest in, such property is alleged 17-189 SCI/80 to be an evacuee". "Evacuee" has been defined in section 2(d) of the Act to include several categories of persons, but for the purpose of this case it is necessary to refer only to first three of them. The relevant part of the definition is as"evacuee" means any person, -(i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day of March, 1947, left, any place in a State for any place outside the territories now forming part of India, or(ii) who is resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property in any part of the territories to which this Act extends, or whose property in any part of the said territories has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by an unauthorised person, or(iii) who has, after the 14th day of August, 1947, obtained, otherwise than by way of purchase or exchange, any right to, interest in or benefit from any property which is treated as evacuee or abandoned property under any law for the time being in force inappellant was declared an evacuee by the Assistant Custodian (Judicial), Deoria. Having failed to have the declaration set aside by the appellate and the revisional authorities under the Act, the appellant moved the High Court by a writ petition challenging the notice under s section 7 and the subsequent proceedings based on it. This appeal is from the order of the High Court dismissing the writ petition inis necessary to state a few more facts. It appears that several years before the present notice under section 7 of the Act was issued, on November 22, 1949 when the Administration of Evacuee Property ordinance, 1949, replaced by the Act in 1950 was in force, a notice was issued to the appellant and his brothers including Bashir Ahmad by Deputy Custodian of Evacuee Property, Deoria, Uttaralleging that they were transferring their movable and immovable ; properties to Pakistan and stating that for this reason they were being considered as evacuees and their property was being treated as evacuee property. The notice invited objections from them, if any, within 30 days. At the instance of District Magistrate, Deoria, a similar notice was issued to the appellant and his brothers by the authority in District Chapra in the State of Bihar where also they had some properties, asking them to show cause why they should not be declared or intending evacuees. The Act had then come into force and this notice was issued under section 19 of the Act. Section 19 provided for issue of notice to a person before declaring him an " intending evacuees". The Act as originally passed contained in clause (e) of section. 2 a definition of "intending evacuee" as meaning a person who had transferred after August 14, 1947 any of his assets to Pakistan. Section 19 was repealed and clause (e) of section 2 was deleted in 1953. On enquiry it was found that there was no reliable evidence to justify a declaration that the appellant and his brothers were intending evacuees and the Deputy Custodian, Chapra, dropped the proceeding on May 24, 1952. On November 29, 1952 the Deputy Custodian, Deoria, also dropped the proceeding started upon the notice issued by him, but on the same day he initiated a proceeding under section 7 of the Act against the appellant and his brother Bashir Ahmad that ended in the declaration challenged in this appeal.

Reasoning:
The facts stated above clearly show that the notice and the declaration that followed are both invalid. The notice called upon the appellant and his brother to show cause why they should not be declared evacuees under clause (iii) of section 2(d) of the Act and the ground mentioned in the notice was also based on that clause, yet the Assistant Custodian found that they were evacuees under clauses (i) and (ii) as well. The Authorised Deputy Custodian held that the ground given in the notice in support of the case based on clause (iii) was vague and the notice was defective so far as that ground was concerned, but that was the only case the appellant was cal led upon to answer. The foundation of a proceeding under section 7 is a valid notice and an inquiry which travels beyond the bounds of the notice is impermissible and without jurisdiction to that extent. Therefore the declaration that t he appellant was an evacuee under clauses (i) and (ii) of section 2(d) of the Act must be heldrule 6 the notice under section 7 must be issued in the prescribed form and contain the grounds on which the property is sought to be declared evacuee property. As stated earlier, the notice that was issued in this case merely reproduced the form without mentioning the particulars on which the case against the appellant was based. It was. essential to state the particulars to enable the appellant to answer the case against him. Clearly therefore the notice did not comply with rule 6 and could not provide a foundation for the proceedings thatis said in the preceding paragraph makes it plain that the authority concerned did not apply his mind to the relevant material before issuing the notice. The same thing is apparent from another fact. It has been stated that on November 29, 1952 the Deputy Custodian, Deoria, dropped the proceeding seeking to declare the appellant an intending evacuee and that on the same day he directed the initiation of a proceeding under section 7. Section 7 required the Custodian to form an opinion that the property in question is evacuee property within the meaning of the Act before any action under that section is taken. Also, under rule 6 the Custodian has to be satisfied from information in his possession or otherwise that the property is prima facie evacuee property before a notice is issued. On November 29, 1952 no evidence was found to support a declaration that the appellant was an intending evacuee. There is no material on record to suggest that on that very day the authority had before him any evidence to just ify the initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property. The notice under section 7 thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case. We are therefore unable to agree with the High Court that the Assistant Custodian Generals order did not suffer from any error.