Case: Haji Siddik Haji Umar and Others Vs. Union of India

This appeal by certificate is filed against the judgment and decree dated July 29, 1970 passed b y the High Court of Gujarat in First Appeal No. 438 of 1962 affirming the judgment and decree dated August 27, 1962 passed in Special Civil Suit No. 254 of 1959 on the file of the Civil Judge (Senior Division), Junagadh dismissing the suit of the plaintiffs for possession of the properties mentioned in Schedule-I attached to the plaint and for damages and other reliefs against the Union ofproperties in question which are situated in the area which formed part of the former princely State of Junagadh originally belonged to one Haji Umar Kasam, a resident of Junagadh who died on May 22, 1956. The plaintiffs are his heirs and legalNawab of Junagadh accepted the accession of his State to Pakistan on August 13, 1947. On September 23, 1947 Haji Umar Kasam left Junagadh for Haj and sailed from Bombay by "S.S. Akbar" on October 8, 1947. On October 24, 1947, the Nawab of Junagadh fled to Pakistan. The State of Junagadh was taken over by its people and a Council of Administration was set up to administer it. Thereafter the State acceded to India. On February 13, 1948 Junagadh State Evacuee (Administration of Property) Act XII of 1948 (hereinafter referred to as the Junagadh Act) was enacted. It provided for the administration of the properties belonging to evacuees. Under that Act the expression evacuee was defined as a person ordinarily resident in or owning property or carrying on business in any village or town within the Junagadh State who had on account of civil disturbances or the fear of such disturbances left that village or town and did not personally occupy or supervise his property or business. All property i n which an evacuee had any right or interest other than any moveable property in his immediate physical possession which was called evacuee property situated within the Junagadh State came to be vested in the Custodian appointed for the purpose of that Act and was directed to continue to be so vested until the Junagadh State Government by notification otherwise directed. There were detailed provisions in that Act relating to the management of evacuee properties. Section 16 (1) of that Act however provided that on being satisfied that evacuees had returned or were returning to the Junagadh State, the Junagadh State Government might by notification in the State Gazette authorise return of the property to the owners in accordance with the aforesaid section 16. Any person claiming to be entitled to any such property could apply in writing to the Custodian who had after giving public notice to hold a summary enquiry into the claim and to pass a formal order declaring the person to whom the possession of the property might be delivered. A notice was issued by the Assistant-Custodian who also exercised certain specified powers of the Custodian under the Junagadh Act on May 1, 1948 in respect of the properties of Haji Umar Kasam as he had not returned to Junagadh and was away for more than six months. On May 5, 1948 his son Haji Mohamed Siddik Haji Umar sent a reply to that notice stating that his father Haji Umar Kasam had not gone away from Junagadh out of fear of civil disturbances; that he had gone on Haj; that all his heirs were living in Junagadh and that he was returning shortly and therefore his properties might not be treated as evacuee properties. No specific reason was, however, given in the said reply for the long delay in the return of Haji Kasam. On receipt of his reply that notice was withdrawn on May 31, 1948. Since Haji Umar Kasam had not returned till September, 1948 the possession of the suit properties was taken by the Custodian between September 23, 1948 and October 1, 1948 as evacuee properties. By the Saurashtra Ordinance III of 1949, the territory of the Junagadh State was integrated with the United States of Saurashtra. It is alleged that by an order dated March 1, 1949 Haji Umar Kasam was declared to be a non-evacuee and the ice factory, one of the suit properties, was ordered to be returned to his sons. This fact is disputed by the Union of India although the High Court of Gujarat h as held that there was such an order. The possession of the ice factory was not, however, returned. It continued to be with the Custodian. But again on May 20, 1949, the Custodian purporting to exercise his power under the Junagadh Act treated Haji Umar Kasam as an evacuee and directed that his ice factory should be taken possession of as an evacuee property. The ice factory was leased out by the State Government in favour of a refugee called Suraji Krishan Nandlal Chowdhary in May, 1949. Since Haji Umar Kasam had not yet returned to India, his sons filed an appeal in July, 1949 before the District Judge, Junagadh against the order declaring him as an evacuee. On August 4, 1949 the Saurashtra Ordinance XLIII of 1949 (hereinafter referred to as the Saurashtra Ordinance) was passed repealing the Junagadh Act and under that Ordinance the properties vested in the Custodian under the Junagadh Act came to be vested in the Custodian of the Unite d States of Saurashtra. This Ordinance was repealed and replaced by the Administration of Evacuee Property Ordinance No. XXVII of 1949 (hereinafter referred to as the Central Ordinance) which applied also to all the acceding States except Cooch-Behar, Manipur and Tripura with effect from October 18, 1949. The Central Ordinance was repealed and replaced bythe Administration of Evacuee Property Act, 1950 (Act XXXI of 1950) (hereinafter referred to as the Act) which came into force on April 17, 1950. Haji Umar Kasam returned to India on December 23, 1949 after the Central Ordinance had come into force.Now reverting to the appeal preferred by the sons of Haji Kasam filed in July, 1949 before the District Judge, Junagadh it is seen that the said appeal was transferred by the District Judge to the High Court of Saurashtra State without deciding it. The High Court in its turn as per its order dated March 22, 1950 sent the appeal to the Custodian of Evacuee Property of Saurashtra on a joint submission made by the counsel appearing for the appellants as well as the counsel for the Custodian with which the High Court agreed. When the said appeal was pending before the Custodian, a petition purporting to be under sub- section (2) of section 6 and section 27 of the Central Ordinance was presented by Haji Umar Kasam himself to the Custodian General of Evacuee Property requesting him to withdraw the appeal to his file and to dispose it of. That petition dated April 17, 1950 was actually presented on April 19, 1950. Before the above petition could be heard by the Custodian General, the Custodian dismissed the appeal on June 2, 1950 on two grounds viz. (i) that the appeal had been filed after t he expiry of the period of limitation and (ii) that Haji Umar Kasam having left the Junagadh State limits after August 15, 1947 and having not returned by the time the order under appeal was passed i.e. May 20, 1949 he had been rightly treated as anthe order passed by the Custodian on the appeal on June 2, 1950 a revision petition was filed before the Custodian General under section 27 of the Act. The Custodian General took up for consideration the petition filed on April 19, 1950 requesting him to withdraw the appeal then pending before the Custodian and the revision petition filed against the order passed in appeal by the Custodian together. After hearing the counsel for Haji Umar Kasam the Custodian General disposed them of by his order dated August 9, 1950. Though he agreed with the submission made on behalf of Haji Umar Kasam that the appeal filed against the order passed by the Custodian, Junagadh on May 20, 1949 could not be disposed of by the Custodian of Saurashtra State, who was of the same rank as the Custodian who had passed the order under appeal, he found it difficult to go behind the order of the High Court of Saurashtra which had transferred the appeal to the Custodian of Saurashtra by its order agreeing with the joint submission made by the counsel for the appellants therein and the counsel for the Custodian. That Judicial order according to the Custodian General, having become final could not be interfered with by him . He also felt that it was not possible for him to set aside the order of May 20, 1949 passed by the Custodian, Junagadh as the office of the Custodian General was not in existence then, even if he could interfere with the appellate order passed by the Custodian of Saurashtra holding that the appeal was barred by time. For these and other reasons, the Custodian General dismissed both the petition dated April 19, 1950 and the revision petition by his order dated August 9, 1950. That order was allowed to become final.Haji Umar Kasam also made an application in January, 1950 to the Custodian for restoration of his property under section 16 of the Central Ordinance. That Section readRestoration of Property: (1) the Custodian may, on application made to him in this behalf in writing by an evacuee or any person claiming to be an heir of an evacuee, restore subject to such terms and conditions as he may think fit to impose, the evacuee property to which the evacuee or other person would have been entitled if this Ordinance were not in force:Provided that the applicant produces in support of his application a certificate from the Central Government or from any person authorised by it in this behalf, to the effect that the evacuee property may be so restored if the applicant is otherwise entitled thereto.(2) On receipt of an application under sub-sect ion (1), the Custodian shall cause public notice thereof to be given in the prescribed manner, and, after holding a summary inquiry into the claim in such manner as may be prescribed may-(a) make a formal order declaring that the property shall be restored to the applicant: or(b) reject the application; or(c) refer the applicant to a civil court for the determination of his claim and title to the property:Provided that no order for restoration shall be made under this section, unless provision has been made in the prescribed manner for the recovery of any amount due to the Custodian in respect of the property or the management thereof.(3) Upon the restoration of the property to the evacuee or to the heir, as the case may be, the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored:rovided that every lease granted in respect of the property or on behalf of the Custodian shall have effect against the person to whom restoration is made until such lease is determined by lapse of time or by operation of law." (Underlining bySection 16(1) of the Act which replaced the Central Ordinance on April 17, 1950 was in the samereceipt of that application filed by Haji Umar Kasam, the Custodian informed him on February 25, 1950 that in order to proceed with it, it was necessary that he should produce a certificate of the Central Government as contemplated under the proviso to section 16(1) set out above. Accordingly he applied to the Custodian General for such a certificate on March 19, 1950. That application was sent to the Custodian of Saurashtra for enquiry and report. The Custodian submitted his final report on June 30, 1953. In his application Haji Umar Kasam had claimed that he ha d left India for the purpose of Haj and had gone to Mecca where he fell ill necessitating a prolonged stay there. He also claimed that he had stayed all along there from September 1947 to December 1949 when he returned to India. In suppor t of his case he produced certificate dated December 3, 1949 issued by the Indian Consul at Jeddah (Saudi Arabia) saying that he had been unavoidably detained there and could not be repatriated earlier. On enquiry the Custodian found that apart from the other circumstances, such as earlier statements made by the sons of Haji Umar Kasam, certain remittances sent from the Bank of India, Junagadh Branch to him which were encashed at Karachi suggested that Haji Umar Kasam must have been in Karachi for a major part of the period during which he was away from India.The following was the list of remittances:"THE BANK OF INDIA JUNAGADH BRANCHAmount remitted by various individuals and firms to parties residing in Karachi (Pakistan) through this branch.Sr. Date of Name of remitter Amount Name of ReceiverNo. remittance remitted in Pakistan1 2 3 4 524 3-11-47 Haji Ibrahim Ayub 12, 000 Haji Umar Kasam70 22-11-47 Haji Ibrahim Ayub 4, 5 00 Haji Umar Kasam167 27-11-47 Haji Ibrahim Ayub 3, 500 Haji Umar Kasam488 23-1-48 Baramain H. Mian 1, 000 Haji Umar Kasam573 10-4-48 Alibhai Haji Hakim- 2, 000 Haji Umar Kasambhai592 1-5-48 Haji A. Haji Umar 5, 000 Haji Umar Kasam617 7-6-48 Haji A. Haji Umar 5, 000 Haji Umar Kasam620 9-6-48 Abdreman Kasam 1, 800 UmarCustodian reported that the evidence before him revealed that Haji Umar Kasam had received the payments through the above bank remittances at Karachi and that the case that Haji Umar Kasam had stayed in Mecca throughout was not believable. After considering the entire matter be fore it and the report referred to above the Government of India declined to grant a certificate referred to in the proviso to section 16 (1) of the Act as it stood then and communicated its decision to Haji Umar Kasam through the Custodian, Saurashtra on July 3, 1954 This decision again was not questioned in any court. A notification under section 12 ofthe Displaced Persons (Compensation and Rehabilitation) Act, 1954 was issued in respect of the properties in quest ion on June 8, 1955. No further effective action appears to have been taken by Haji Umar Kasam against this notification except writing letters to the ministers of the Government of India, some of which are produced before this Court by way of answer to a question put by the Court as to whether any such action was taken before the institution of thementioned earlier Haji Umar Kasam died on May 22, 1956. Thereafter his heirs and legal representatives filed the suit out of which this appeal arises in the year 1959 after issuing the required notice dated January 2, 1959 under section 80 of theCode of Civil Procedure. In that notice, it was stated that the Special Custodian Officer had taken possession of the suit properties between September 23, 1948 and October 1, 1948 illegally acting in abuse of his power. The plaintiffs demanded the return of the suit properties and also damages for illegal possession from October 1, 1948 to January 1, 1959.The main contention of the plaintiffs in the suit is set out in paragraphs 4 and 5 of the plaint. It is pleaded therein that Haji Umar Kasam was not an evacuee ; that the first notice issued by the Custodian Officer was withdrawn on May 31, 1948 ; that again in September, 1948 the Special Custodian Officer had taken possession of the ice factory belonging to Haji Umar Kasam without issuing any notice to him and later on a representation made by the plaintiffs, the Special Custodian Officer passed an order on March 1, 1949 directing the restoration of the properties of Haji Umar Kasam to him and that again on May 20, 1949 the Custodian of Evacuee Property, Junagadh had made a declaration that Haji Umar Kasam was an evacuee and directed the taking over of his properties. It is contended that the order of May 20, 1949 which was passed without issuing notice and without holding an enquiry after the order of March 1, 1949 was illegal and in excess of jurisdict ion. In paragraphs 6 and 7 of the plaint, it was alleged that the order passed by the Custodian on June 2, 1950 was bad in law and the rejection of the petition by the Custodian General on August 9, 1950 and the refusal by the Government of India to grant the certificate under section 16 of the Act were again contrary to law. The suit was filed by the heirs and legal representatives of Haji Umar Kasam on the above basis for possession of the twelve properties mentioned in Schedule-I attached to the plaint which originally belonged to him. The defendant, Union of India, which contested the suit while not denying that an order was made on March 1, 1949 as stated above, inter alia pleaded that the order dated May 20, 1949 had been passed in accordance with law after making necessary inquiry at which the plaintiffs had been given sufficient opportunity to prove that Haji Umar Kasam was not an evacuee. Reliance was also placed by the Union of India on the orders passed on the application made under section 16 of the Act, the notification issued under section 12 ofthe Displaced Persons (Compensation and Rehabilitation) Act, 1954 and section 46 of the Act which barred the jurisdiction of the civil court to decide the questions raised in the suit.On the aforesaid pleadings, the trial court framed as many as fifteen issues and at the conclusion of the trial recorded its findings on them. Ultimately the suit was dismissed. The High Court in appeal discussed the effect of some of the provisions of law applicable to the case and dismissed the appeal. It did not, however, deal with all the issues. It may be noted that on the question relating to the existence of the order of March 1, 1949 while the trial court was of the view that there was no such order, the High Court held that such an order had been made.

Reasoning:
In the context in which sub-section (2A) of section 8 of the Act appears, it is not, therefore, correct to hold that sub-section (2A) would operate only where there is any defect in or invalidity of any previous law or where there is any judgment, decree or order of any court to the contrary. This view receives support from the rule of construction adopted by this Court in The Dominion of India &Anr. v. Shrinbai A. Irani &Anr.(1) The High Court of Gujarat also has taken the same view of sub-section (2A) of section 8 of the Act in Ahmedbhai Abdulkadar &Ors. v. The Custodian of Evacuee Property and Regional Settlement Commissioner, Bombay &Ors.(2) Dealing with this provision, this Court observed in Azimunissa &Ors.v. The Deputy Custodian Evacuee Properties, District Deoria &Ors.(3) at pages 103-104word "purport" has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable; Dicker v. Angerstein [1876] 3 Ch. D.600. 603. Purporting is, therefore, indicative of what appears on the face of it or is apparent even though in law it may not be so. This means that at the time when the Act purported to vest the property in dispute in the Custodian even though the power was not exercisable, s. 8(2A) by giving a retrospective effect to s. 8(2) of the Act makes the vesting as if it was vesting under s. 8 (2) of the Act and therefore the attack on the ground of invalidity cannot be sustained......The effect of s. 8 (2-A) is that what purported to have vested under s. 8 (2) of Ordinance XXVII of 1949 and which is to be deemed to be vested under s. 8 of the Act which repealed that Ordinance , notwithstanding any invalidity in the original vesting or any decree or order of the Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested; (2) removes all defects or invalidity in the vesting or fictional vesting under s. 8 (2) of Ordinance XXVII of 1949 or s. 8 (2) of the Act which repealed the Ordinance; (3) makes the decrees and judgments to the contrary of any court in regard to the vesting ineffective; (4) makes the property evacuee property by its deeming effect; and (5) validates all orders passed by the Custodian in regard to thethe above decision, this Court in M/s. Haji Ismail Noor Mohammad &Co. Ors. v. The Competent Officer, Lucknow &Ors . (1) held that where vesting of evacuee properties had taken place under any corresponding law prior to the coming into force of the Central Ordinance and of the Act, no question of making a fresh declaration under section 7 (1) of the Central Ordinance would arise. The Court further held that by reason of the deeming pro- visions in sub-sections (2) and (2A) of section 8 of the Act, there would be automatic vesting of such properties and such a vesting could not be reopened after the Act came into force. In view of the foregoing since it cannot be disputed that the suit properties had been taken over under the Junagadh Act as evacuee properties in September, 1948 and had continued to be in the possession of the Custodian till the Act was passed, it is not possible to hold that they were not evacuee properties. We are of the view that they have to be dealt with under the Act as evacuee properties which has duly vested in the Custodian under the Act.Section 16 of the Act provides for restoration of evacuee property by the Central Government. Section 27 of the Act gives power of revision to the Custodian General either on his own motion or on application made to him to call for the record of any proceeding in order to satisfy himself as to the legality or propriety of any order passed therein and to pass such order in relation thereto as he thinks fit. Section 28 of the Act bars the jurisdiction of any Court, of course other than the jurisdiction of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 and Article 136 of the Constitution to entertain any suit or proceeding with respect to any order passed by the authorities mentioned therein. Section 46 of the Act which is worded very widely bars the jurisdiction of civil or revenue courts in regard to matters mentioned therein. No such court can entertain any suit or proceeding in which the question whether any property is or is not evacuee property arises or in which the legality of any action taken by the Custodian General or Custodian under the Act is questioned. Any matter which the Custodian General or the Custodian is empowered to determine by or under the A ct is also outside the jurisdiction of any such Court. (see Custodian of Evacuee Property Punjab &Ors. v. Jafran Begum (1). In view of the above provisions, it was not open to the civil court in this case to decide whether the suit properties were evacuee properties or not. It was also not open to it to decide the correctness of the order of the Custodian General dated August 9, 1950 declining to interfere with the order of the Custodian dated June 2, 1950. The question whether a certificate should have been issued by the Central Government also was by implication barred as it was the Custodian who had to restore the property after holding an enquiry into the title of the evacuee when an application was made to him alongwith a certificate issued by the Central Government and a certificate of that nature by itself would be of no use. Neither Haji Umar Kasam nor after his death his heirs and legal representatives questioned these orders before the High Court under Article 226 of the Constitution or before the Supreme Court under Article 32 or under Article 136 of the Constitution. They thus became final and were beyond the jurisdiction of the civil court.The decision of this Court in Fazalbhoy Currimbhoy etc. v. Official Trustee of Maharashtra &Ors. etc.(1) is of no assistance to the plaintiff since in that case the Court was not concerned with any question of law similar to the one which has arisen for consideration in this case. So is the decision of this Court in Dr. Rajendra Prakash Sharma v. Gyan Chandra &Ors.(2) in which the evacuee concerned migrated to Pakistan in the year 1967 after the insertion of section 7A of theis a further hurdle in this case which has arisen on account of the publication of the notification under section 12 of the Displaced Persons (Compensation and Rehabilition) Act, 1954 in respect of the suit properties on June 1, 1955. On the publication of such notification, the right, title or interest of Haji Umar Kasam in the suit properties became extinguished and they vested absolutely in the Central Government free from all encumbrances by virtue of section 12 (2) of the said Act. (see Basant Ram v. Union of India)(3) It is perhaps for this reason that the Central Government could not make any order on the petitions filed by Haji Umar Kasam or his heirs for restoration of the suit properties to them after the publication of the saidthe circumstances, the High Court was right in dismissing the appeal before it.