Case: Bishambar Nath Kohli And Others Vs. State Of Uttar Pradesh And Others

1. House No. 11, Kaiserbagh at Lucknow, was since 1918 in the occupation of one Chowdhry Akbar Hussain. After the partition of India, Choudhry Akbar Hussain migrated to Pakistan. By order, dated October 12, 1949 the Deputy Custodian of Evacuee Property, Lucknow, in exercise of power "under S. 6 of the U. P. Administration of Evacuee Property Ordinance 1 of 1949 as continued in force by Central Ordinances 12 and 20 of 1949" declared No. 11, Kaiserbagh as "evacuee property". No claim was preferred by any person in pursuance of this notification, and management of the property continued with the Custodian of Evacuee Property (sic) Ordinance 1 of 1949 as continued in force by Central Ordinances and Rehabilitation) Act 44 of 1954, the Central Government by a notification, dated May 27, 1955 acquired the property for the Central pool constituted under that Act. On June 7, 1957 the property was put up for sale by public auction and was purchased by one Ram Chand Kohli2. On September 27, 1961 the State of Uttar Pradesh applied under S. 27 of the Administration of Evacuee Property Act 31 of 1950 invoking the revisional jurisdiction of the Custodian General against the order of the Deputy Custodian notifying the property as evacuee property. The State of Utter Pradesh claimed that the property belonged to the State and Chowdhry Akbar Hussain had no proprietary interest in the property and accordingly the Deputy Custodian had no power to declare it "evacuee property". It was submitted that the State of Uttar Pradesh was not aware of the notification declaring the property to be evacuee property, nor of the subsequent proceedings and of the sale to Ram Chand Kohli. The appellants who are the legal representatives of Ram Chand Kohli contended, inter alia, that the petition was belated, and that in any event the property being of the ownership of Chowdhry Akbar Husain it was lawfully declared evacuee property. The Custodian General upheld the plea of the State of Uttar Pradesh, and set aside the order of the Deputy Custodian. With special leave the heirs and legal representatives of Ram Chand Kohli have appealed to this Court.

Reasoning: The procedure followed by the Custodian General is however open to grave objection, because he did not even give an opportunity to the legal representatives of Ram Chand Kohli to lead evidence in rejoinder to the evidence relied upon by the State. It appears that only copies of documents on which the title of the State of Uttar Pradesh was founded were filed in the proceeding before the Custodian General. The revision petition was heard by the Custodian General on August 4, 1962, and thereafter the proceeding stood adjourned till August 14. 1962, for further hearing. On August 6, 1962, counsel for the appellants served a notice upon counsel for the State of Uttar Pradesh calling upon him to give inspection of the documents referred to in the notice. No inspection was given, and the hearing took place on August 14, 1962. It is true that counsel for the appellants did attempt to meet the case sought to be raised by the State of Uttar Pradesh on the merits, and submitted that the property in dispute was owned by Chowdhry Akbar Hussain. That, however, would not justify the procedure followed by the Custodian General, nor would it lead to the inference that the appellants had, in the circumstances of this case, waived the irregularity in the trial. It is common ground before us that at no stage, originals of a large number of documents, on which reliance was placed by the State of Uttar Pradesh, and on which the Custodian General founded his conclusion, were produced before the Custodian General. The Custodian General does not appear to have even told the appellants that he had admitted copies of those documents on the record. Nor did he give to the appellants an opportunity to meet the case which the State of Uttar Pradesh sought to makeprocedure followed by the Custodian General is in gross viloation of the rules of naturalorder notifying the property was made under the Central Ordinance 12 of 1949. If the notification be deemed an order within the meaning of S. 30 (6), the order having been declared fictionally made under Act 31 of 1950, remained subject to the revisional jurisdiction of the Custodian. If any other view is taken, some startling results may follow: for instance, if under an order passed by the Custodian or action taken by him, the rights of a person are infringed, and before he files an appeal or the revising authority is moved, the Ordinance or the Act is repealed and is substituted by a new Act or Ordinance, the person aggrieved would, if the view contended for by the appellants were to prevail, have no remedy at all, because the finality of orders declared by the repealed statute would operate. It may be noted that under S. 27of Act 31 of 1950 which invests the Custodian General with powers of revision, an Explanation is incorporated by Act 1 of 1960 that the power conferred on the Custodian General under S. 27 may be exercised by him in relation to any property, notwithstanding that such property has been acquired under S. 12 ofthe Displaced Persons (Compensation and Rehabilitation) Act, 1954. This also indicates that even if the evacuee property has been acquired under S. 12 of Act 44 of 1954, it is still open to the Custodian General in appropriate cases to exercise his power in revision. We are, therefore, of the view that the Custodian General had the power to entertain the revision application filed by the State of Uttarour view, the decision of the Court on the principal ground that the chain of fictions was broken, and the impugned order was not one which was to be deemed to have been made under Act 31 of 1950, rendered consideration of all other questions unnecessary.If by the observations set out, it was intended to lay down that the legal fiction introduced by S. 58 (3) of Act 31 of 1950 by which anything done or action taken in exercise of the powers conferred by the earlier Ordinance was to be deemed to have been done or taken in exercise of the powers by or under the Act applies only if under the earlier Ordinance anything done or action taken had not become final by virtue of the provisions of that Ordinance, we are unable, with respect, to accept that interpretation.