Case: The Custodian of Evacuee Property, Bangalore Vs. Khan Saheb Abdul Shukoor &amp; Others

1. These are four appeals on certificates granted by the Mysore High Court. They will be disposed of together as the points raised in them are common. The facts of these cases are complicated and may be mentioned in some detail. On July 7, 1949, the then State of Mysore passed The Mysore Administration of Evacuee Property (Emergency) Act, No. XLVII of 1949 (hereinafter called the first Mysore Act). It provided for the appointment of a Custodian of Evacuee Property for the State of Mysore and other officers subordinate to him for the purpose of administering evacuee property in that State. Section 2(c) defined an "evacuee" and S. 2(d) "evacuee property". Section 5 laid down that all evacuee property situate in Mysore would vest in the Custodian. Section 6 provided for a notification by the Custodian in the Mysore Gazette of evacuee property vested in him. Section 8 provided that any person claiming any right to or interest in any property notified under section 6 as evacuee property or in respect of which a demand requiring a surrender of possession had been made by the Custodian might prefer a claim to the Custodian on the ground that the property was not evacuee property or his interest in the property had not been affected by the provisions of that Act. It was further provided that the Custodian was to hold a summary inquiry in the prescribed manner into such claims and after taking such evidence as might be produced, pass an order (stating the reasons therefor) either rejecting the claim or allowing it wholly or in part. Finally, S. 30 provided for an appeal to the High Court where the original order under S. 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act remained in force till it was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, No. LXXIV of 1949 (hereinafter called the second Mysore Act), which came into force on November 29, 1949.2. On September 21, 1949, the Custodian issued a notification by which he declared the properties of the two respondents as evacuee properties which had vested in him, as the respondents had become evacuees. Thereupon, two claims were filed under S. 8 of the first Mysore Act separately by the two respondents. These claims were investigated by the Deputy Custodian who dismissed the same on April 17, 1950, declaring that the properties were evacuee properties. It may be mentioned that in the meantime, the second Mysore Act had come into force by which the first Mysore Act was repealed. But S. 53(2) of the second Mysore Act provided that anything done or any action taken in the exercise of any power conferred by the first Mysore Act shall be deemed to have been done or taken in the exercise of the powers conferred by the second Mysore Act. It was also provided that any penalty incurred or proceeding commenced under the first Mysore Act shall be deemed to be a penalty incurred or proceeding commenced under the second Mysore Act as if the latter Act were in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced. There was however one difference in the two Mysore Acts. The first Mysore Act had provided by S. 5 for the vesting of all evacuee property situate in Mysore ipso facto in the Custodian; S. 6 then provided for notification by the Custodian and S. 8 for preferring claims. The second Mysore Act, however, made a departure from this and S. 5 thereof provided thatthe 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 evacuee property.Section 6 then provided for vesting of any property declared to be evacuee property in the Custodian. Thus while under the first Mysore Act the evacuee property vested in the Custodian and the person who claimed that it was not evacuee property had to make an application under S. 8 and to get it declared that it was not evacuee property, under the second Mysore Act there was no vesting in the Custodian and the Custodian had to give a notice in the manner prescribed (if he thought any property to be evacuee property) and after hearing the persons interested to declare the property to be evacuee property; and it was only thereafter that the property vested in him as evacuee property. Further, the second Mysore Act also defined the "Custodian General" as the Custodian General of Evacuee Property in India appointed by the Government of India under S. 5 of the Administration of Evacuee Property Ordinance (Central Ordinance No. XXVII of 1949), which had come into force on October 18, 1949. Further there was a change in the forum of appeals and instead of the High Court the appeal lay to the Custodian General from an order passed under S. 5 of the second Mysore Act where the original order had been passed by the Custodian, Additional Custodian or Authorised Deputy Custodian and in some cases to the District Judge designated in this behalf by the Government under Ss. 22 and 23 of the Second Mysore Act. In addition, provision was made by S. 25 of the second Mysore Act for revision by the Custodian General of orders passed by the District Judge or the Custodian on appeal.4. It may be mentioned that the Administration of Evacuee Property Act, No. XXXI of 1950 (hereinafter called the Act), came into force on the day the Deputy Custodian passed the order dated April 17, 1950. It may also be mentioned that in the meantime the Constitution of India had come into force on January 26, 1950, and the former State of Mysore had become the new Part B State of Mysore under the Constitution. The Act was to apply to the whole of India except the States of Assam, West Bengal, Tripura, Manipur and Jammu and Kashmir. Thus the Act applied to the Part B State of Mysore on April 17, 1950, and though there was no specific provision then in the Act repealing the second Mysore Act it is not seriously disputed that the Act by necessary implication repealed the second Mysore Act, as the Act substantially enacted all that was contained in the second Mysore Act. However that may be, appeals were filed against the order of April 17, 1950, before the Custodian. These appeals were allowed on August 22, 1950. The Custodian held that there was not sufficient evidence to prove the respondents as evacuees and consequently the properties in question could not be treated as evacuee properties. On October 3, 1950, the Custodian General gave notices to the respondents under S. 27 of the Act in respect of the order of the Custodian dated August 22, 1950 and asked them to show cause why the said order of the Custodian be not revised. On December 7, 1950, the Administration of Evacuee Property (Amendment) Act, No. LXVI of 1950, was passed by which inter alia S. 58 of the Act was amended and it was provided that if immediately before the commencement of the Act there was in force in any State to which the Act extended any law which corresponded to the Act and which was not repealed by sub-sec. (1) it shall stand repealed. This was made retrospective from the date from which the Act came into force (namely, April 17, 1950) and so the repeal of evacuee property laws which were in force in those States to which the Act applied which was implicit in it was made explicit from December 7, 1950, so that from April 17, 1950, only the Act held the field.5. On February 11, 1952, the Custodian General set aside the order of the Custodian dated August 22, 1950, and ordered that further proceedings in these cases should be taken before the Custodian as an original matter and he was directed to dispose of the cases afresh in the light of the evidence already recorded and such other evidence as might be produced before him by the two respondents. When the matter thus came back to the Custodian he ordered the Deputy Custodian on April 7, 1952, to record the evidence and then submit the record to him for final disposal. Eventually, the matter came before the Custodian for final disposal on December 2, 1952. He held that the two respondents were evacuees and their properties were evacuee properties. This was followed by two appeals to the High Court on January 2, 1953. As, however, the respondents felt some doubt whether any appeal lay to the High Court two writ petitions were also filed on September 7, 1953, against the order of the Custodian. The two appeals as well as the two writ petitions were disposed of by the High Court by a common judgment on February 4, 1954. The High Court held that the appeals before it were competent. It further seems to have held that the Custodian-General had no power under S. 27 of the Act to revise the order passed by the Custodian on August 22, 1950. Finally, as the High Court held that the appeals were competent it went into the matter as an appellate court and came to the conclusion that the order of the Custodian dated December 2, 1952, was erroneous. It, therefore, allowed the appeals as well as the writ petitions and set aside the order of the Custodian dated December 2, 1952 and restored the earlier order of the Custodian dated August 22, 1950. Thereupon followed applications by the Custodian of Evacuee Property, Mysore, for certificates to file appeals to this Court on which the High Court granted the certificates, and that is how the four appeals have come up before us.

Reasoning: It is clear therefore that the second Mysore Act was expressly repealed as from April 17, 1950, by the Act in view of this substituted S. 58 put into it retrospectively by Act LXVI, for the second Mysore Act was undoubtedly a law corresponding to the Act. The High Court seems to have overlooked the fact that Act LXVI gave retrospective operation to the new S. 58(2) which was inserted in the Act. It seems to think that the second Mysore Act was repealed on December 7, 1950, when Act LXVI came into force. The High Court was further in error in holding that the amended sub-sec. (3) of S. 58 which was put into the Act also came into force from December 7, 1950, while as a matter of fact it came into force from April 17, 1950, when the Act itself first came intoare, therefore, of opinion that considering the purpose for which the Act was passed and the successive saying clauses in the second Mysore Act and in the Act, the Custodian-General had the power under S. 27 to call for the record of the proceeding in which the order of August 22, 1950, was passed and consider its legality or propriety and pass such order in relation thereto as he thought fit. Even if the notice of October, 1950, may be open to question as it was issued before Act LXVI of 1950 was passed, there can be no doubt that the order of February, 1952, under section 27 was passed after hearing the parties and would be valid and within the jurisdiction of the Custodian-General when it was passed. Therefore, the order of the Custodian-General dated February 11, 1952, being within his jurisdiction would not be liable to be set aside on a writ of certiorari as if the Custodian-General had acted without jurisdiction. The subsequent proceedings, therefore, which took place after the order of the Custodian-General would also be with jurisdiction and would not be liable to be set aside on a writ of certiorari on the ground that they were without jurisdiction. The High Court, therefore, as in error in holding that the order of the Custodian-General dated February 11, 1952, was without jurisdiction and therefore all subsequent proceedings taken in pursuance thereof were also without jurisdiction, with the result that the order of August 22, 1950, stood fullywe have pointed out above the proceedings under S. 8 of the first Mysore Act are in substance equal to proceedings under S. 5 of the second Mysore Act and therefore proceedings commenced under the first Mysore Act must in view of S. 53(2) of the second Mysore Act, be deemed to be proceedings under S. 5 of the latter Act. Once that conclusion is reached-and it seems to us that it is inevitable-it follows that an order made in a proceeding commenced under S. 8 of the first Mysore Act must be deemed to be an order made under S. 5(1) of the second Mysore Act or under S. 7(1) of the Act. In this connection it is relevant to point out that it could not have been the intention of the Legislature to keep the first Mysore Act alive for certain purposes for all time; the whole object of passing the subsequent Acts is plainly against such anmay point out that this is not a case where the right of appeal disappears altogether; all that happens is that where the order is passed by the Custodian the appeal lies to the Custodian-General instead of to the High Court. The legislature has provided another forum where the appeal will lie and in the circumstances it must be held that by necessary intendment the legislature intended that forum alone to be the forum where the appeal will lie and not the forum under the first Mysore Act. Reference in this connection may be made to G. Veeraya v. N. Subbiah Choudhry, 1957 SCR 488  : ( (S) AIR 1957 SC 540 ) where this Court held that the vested right of appeal was a substantive right and was governed by the law prevailing at the time of the commencement of the suit and comprised all successive rights of appeal from court to court which really constituted one proceeding but added that such right could be taken away expressly or by necessary intendment. In the present cases we are of opinion that once proceedings under S. 8(1) of the first Mysore Act are held to be similar to proceedings under S. 5(1) of the second Mysore Act or S. 7(1) of the Act, it must necessarily follow that the legislature intended that all subsequent proceedings in the nature of appeal, after the first Mysore Act came to an end, must be in the forum provided by the subsequent legislation. We are therefore of opinion that the High Court was in error in holding that appeals to it lay from the order of December 2,y point out that this is not a case where the right of appeal disappears altogether; all that happens is that where the order is passed by the Custodian the appeal lies to the Custodian-General instead of to the High Court. The legislature has provided another forum where the appeal will lie and in the circumstances it must be held that by necessary intendment the legislature intended that forum alone to be the forum where the appeal will lie and not the forum under the first Mysore Act. Reference in this connection may be made to G. Veeraya v. N. Subbiah Choudhry, 1957 SCR 488  : ( (S) AIR 1957 SC 540 ) where this Court held that the vested right of appeal was a substantive right and was governed by the law prevailing at the time of the commencement of the suit and comprised all successive rights of appeal from court to court which really constituted one proceeding but added that such right could be taken away expressly or by necessary intendment. In the present cases we are of opinion that once proceedings under S. 8(1) of the first Mysore Act are held to be similar to proceedings under S. 5(1) of the second Mysore Act or S. 7(1) of the Act, it must necessarily follow that the legislature intended that all subsequent proceedings in the nature of appeal, after the first Mysore Act came to an end, must be in the forum provided by the subsequent legislation. We are therefore of opinion that the High Court was in error in holding that appeals to it lay from the order of December 2,the present case, the Custodian had jurisdiction to decide the matter once it is held that the Custodian-General had jurisdiction to set aside the order of August 22, 1950. the main question for decision in these cases was whether the respondents were evacuees within the meaning of S. 2(c) of the first Mysore Act. The questions that fall for decision under S. 2(c) are questions of fact and as pointed out in Hari Vishnu Kamaths case, 1955-1 SCR 1104  : ( (S) AIR 1955 SC 233 ) it is not open on a writ praying for certiorari to review findings of fact reached by an inferior court or tribunal even though they may be erroneous. Further, unless there is a patent error of law there can be no interference by a writ of certiorari. While dealing with the writ petitions the main argument that appealed to the High Court was that the Custodian-General had no jurisdiction in revision to reopen the earlier proceedings and in consequence all subsequent proceedings were null and void. The High Court was further aware of the fact that the ordinary remedy of the respondents in these cases against the order of December 2, 1952, was to appeal to the Custodian-General under S. 24 of the Act; but as it was of the view that the order of the Custodian-General under S. 27 was without jurisdiction it held that it should interfere and set aside the order of December 2, 1952, which was also without jurisdiction and restore that of August 22, 1950. In the view we have taken, the order of the Custodian-General was with jurisdiction and therefore there was in our opinion no reason for the High Court to interfere in the exercise of its jurisdiction under Art. 226 of the Constitution with the order of December 2, 1952, as this is a case where only a writ of certiorari could issue and that is not justified in view of the decision in Hari Vishnu Kamaths case, 1955-1 SCR 1104  : ( (S) AIR 1955 SC 233 ).