ABDUL KARIM Vs. DEPUTY CUSTODIAN JAIPUR
LAWS(RAJ)-1952-5-23
HIGH COURT OF RAJASTHAN
Decided on May 13,1952

ABDUL KARIM Appellant
VERSUS
DEPUTY CUSTODIAN JAIPUR Respondents

JUDGEMENT

Ranawat, J. - (1.)THIS is an application of one Abdul Karim under Art. 226 of the Constitution of India for issue of a writ of certiorari and prohibition or for any other directive against the Deputy Custodian of Evacuee Property, Jaipur. .
(2.)IT has been stated by the petitioner that Abdul Rahim, who was his brother, owned a Soda Water Factory at Kishanpol Bazar, Jaipur City, which was purchased by the petitioner on the 16th January 1948 for Rs, 7003/- and after making some improvements in the factory the petitioner sold it to one Bachmal Thawardas on or about the 6th April 1948 for Rs. 11,00*)/ -. Abdul Rahim migrated to Pakistan and consequently the Deputy Custodian of Evacuee Property initiated proceedings regarding the property left by Abdul Rahim. The Deputy Custodian, on the 25th of December 1950, declared 2/7th share of Abdul Rahim in a house as evacuee property and by the same order the Soda Water Factory was also declared to be the evacuee property and the petitioner was ordered to refund Rs. 11,500/- on account of the price of the factory received by him. The Tehsildar of Jaipur was also requested by the Deputy Custodian to attach the property of the petitioner in order to recover the aforesaid amount. The notice served by the Deputy Custodian on the petitioner under sec. 7 of the Administration of Evacuee Property Act (hereinafter called the Act) it is said did not specify the Soda Water Factory or the sale proceeds thereof • and the notice was therefore bad in law. Since a notice under sec. 7 was indispensable, before the Deputy Custodian could exercise his jurisdiction, the entire proceedings in the court of the Deputy Custodian, it is added, were illegal. The property left by any evacuee could only be declared to be the evacuee property under the Act and under no circumstance would the sale proceeds of the factory be regarded as evacuee property and the applicant should not be legally asked to refund the amount of the sale proceeds. IT was therefore prayed that a writ of certiorari and prohibition or any other direction be issued setting aside the order of the Deputy Custodian by which the Soda Water Factory was declared to be the evacuee property and by which the petitioner was ordered to deposit Rs. 11,500/ -. IT was also prayed that the Deputy Custodian be prohibited from taking any action for the realisation of Rs. 11. 500/- from the petitioner and from taking any action to attach the property of the petitioner.
The petition was opposed by the Deputy Custodian and a written statement was filed. It was said that a notice under sec. 7 was served ' on the petitioner regarding property of Abdul Rahim who had migrated to Pakistan, including 2/7th share in a house and the Soda Water Factory, which were declared to be evacuee property. It was denied that the petitioner purchased the Soda Water Factory from Abdul Rahim or that the petitioner made any improvements in the factory. It was also stated that the petitioner sold the factory to Bachmal Thawardas for Rs. 11500/ -. A notice under sec. 7 (1) of the Act was issued on the 18th July 1950 to Abdul Rahim and the petitioner regarding the whole of the property left by Abdul Rahim. Notices were served personally on the petitioner on the 22nd of July 1950. In course of the enquiry the Field Inspector on the 17th of November 1950 reported that the Soda Water Factory in Kishan-pol Bazar in Jaipur City was owned by Abdul Rahim and that it had been sold by the petitioner for Rs. 11,500/- after Abdul Rahim had left for Pakistan. On this report of the Field Inspector the Assistant Custodian of Evacuee Property issued a fresh notice under sec. 7 (1) of the Act to the petitioner which could not be served personally but a copy thereof was affixed on the premises of the factory. A second notice was then issued under sec. 7 (1) on the 13th of December 1950 which was tendered personally to the petitioner but the petitioner refused to take it. On the 21st of December 1950 the petitioner appeared before the Assistant Custodian, Jaipur, through his Advocate Shri Kripashanker and applied for adjournment of the proceedings. The request regarding adjournment was disallowed and a declaration under sec. 7 (1) was made regarding property left by Abdul Rahim including the Soda Water Factory. The petitioner was also asked to deposit the amount of Rs. 11,500/- which he had received as sale proceeds of the factory. The petitioner did not file an appeal against the order of the 21st December 1950 which thus became final. It was further pleaded that the petitioner is not entitled to any relief under Art. 226 of the Constitution of India as he did not choose to pursue the remedy by way of an appeal under the provisions of the Act.

Mr. Bhandari, who appeared on behalf of the petitioner laid stress on two points: - - (1) that the notice, if any, issued by the office of the Deputy Custodian under sec. 7 (1) was not in accordance with law, in so far as detailed description of the property was not mentioned therein and also for the reason that it was not properly served on the petitioner, and (2) that the Custodian could not in any event lay his hands on the sale proceeds of the factory which would not in any sense be termed evacuee property.

As regards point No. 1 Mr. Bhandari has based his argument on the language of sec. 7 (1) of the Act, which lays down that - "where the 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. "

It is urged that notice should be in respect of certain property and secondly, if no details of property are specified in the notice such notice would not be in accordance with the provisions of sec. 7 (1) of the Act. The name of the factory which appears in the 2nd or 3rd notices of the 30th of November and 30th of December 1950 respectively is intended for the purpose of the petitioner's address only. The second notice, it was contended, was not affixed on the premises of the factory, as in the report of the serving officer no mention was given regarding the premises on which the notice was affixed by him. As regards the third notice, it is said that it had not been tendered to the petitioner.

As regards the second point, the case of the petitioner is that the sale proceeds of the factory which had been declared to be the evacuee property cannot be recovered by the Deputy Custodian, because the amount of the sale proceeds was not declared by him to be the evacuee property and no notice whatsoever as regards the sale proceeds of the factory had been given to the petitioner under sec. 7 (1) of the Act. The action of the Deputy Custodian to recover the sale proceeds from the petitioner was therefore claimed to be without jurisdiction.

Mr. Rastogi who appeared on behalf of the opposite side con-tended that all the three notices issued under sec. 7 (1) had been served properly in accordance with the provisions of law and it was not necessary to specify the details of the property in such notices more than what had been contained therein. The sale proceeds of the factory could be recovered from the petitioner under sec. 13 of the Act, wherein it has been provided that any amount due to any evacuee in respect of the property which has vested in the Custodian or in respect of any transaction entered into by the evacuee, should be paid to the Custodian by the person liable to pay the same. The sale proceeds are in respect of the evacuee property and the Custodian under sec. 13 can give a valid discharge.

Mr. Rastogi has further urged that the petitioner is not entitled to any relief in exercise of the ordinary powers of this court as he was negligent in not preferring an appeal against the order of the Deputy Custodian under sec. 24 of the Act, which it was open to him to file, in case he had any grievance from the order of the Deputy Custodian.

(3.)IT has been conceded on behalf of the petitioner that he did not go in appeal under the provisions of secs. 24 and 25 of the Act against the order of the Deputy Custodian, but it is argued that the order of the Deputy Custodian relating to recovery of the sale proceeds was not an order under sec. 7 of the Act and was not appealable under the provisions of secs. 24 and 25 of the Act.
It is admitted on either side that the first notice which was issued by the Deputy Custodian under sec. 7 (1) on 18th July 1950 was served personally on the petitioner and the notice was given in the prescribed manner. The only objection as regards this notice is that the details of the property were not mentioned in it. It may be pointed out that by that notice the petitioner was called upon to show cause why orders should not be passed declaring all Abdul Rahim's property as evacuee property under the provisions of the Act. The form of the notice is exactly the same which is prescribed by the rules made under the Act. The description of the property as the property of Abdul Rahim ordinarily should be regarded as sufficient in the eye of law and it is not open to the petitioner to challenge the validity of the notice simply on the ground of there being no detailed description of the property. Under sec. 7 detailed description of the property is not required to be given in the notice. Sec. 7 (1) simply requires that a notice relating to any property which is in the opinion of the Custodian, evacuee property, within the meaning of the Act, has to be given in the prescribed manner to a person interested in such property. Description of property as belonging to Abdul Rahim is ordinarily sufficient to signify the property renting to which a notice under sec. 7 (1) of the Act had been issued. In form No. 1 Rule 6 (1) description of the property required to be given is no more than what has been given in the notice in the present case. The law therefore did not require any detailed description of the property to be given and the notice given to the petitioner by the Deputy Custodian cannot be regarded as invalid on the ground that detailed description of the property did not appear therein. The objection of the petitioner that notice was not properly served on him also is not well-founded. The first notice was personally served upon him and the second notice appears to have been affixed on the premises of the factory though in the report or the serving officer the name of the factory has not been clearly mentioned. The serving officer simply reported that he had affixed a copy of the order on the premises and the address given in the notice was that of the factory. Reading the report of the serving officer along with the address of the petitioner given in the notice it becomes clear that the premises stated in the report are none other than the factory itself The third notice was tendered personally to the petitioner but he refused to take it. The report of the serving officer in this behalf is very clear. It may however be pointed out that the first notice alone was sufficient to give jurisdiction to the Deputy Custodian in the matter and it was not necessary for him to issue any fresh notices in respect of the property left by Abdul Rahim. The factory was one of the properties left by Abdul Rahim and in the description of the property in the first notice it should have been regarded as included in the property in respect of which that notice had been given. The Deputy Custodian came to know about the factory after he had issued the first notice and probably he thought it safe to issue a fresh notice in respect of the factory and he issued the second and the third notice to the petitioner which were also served in accordance with the provisions of the rules made under the Act. According to the rules affixing of notice under sec. 7 on the premises which are to be declared as evacuee property and tendering of such notice is good service. We are, therefore, of opinion that all the three notices were served in accordance with the provisions of law and the objection that notices were not served is not well-founded. These notices were sufficient to lay the foundation of the jurisdiction of the Deputy Custodian to proceed with the enquiry and to declare the property of Abdul Rahim to be evacuee property.

As Wards 2/7th share of Abdul Rahim in the house, the petitioner has no grievance. His case is confined simply to the factory and the sale proceeds thereof. As regards the factory it is obvious that it belonged to Abdul Rahim and when a notice under sec. 7 (1) had been issued by the Deputy Custodian relating to the property of Abdul Rahim, the Deputy Custodian had jurisdiction to declare the factory to be evacuee property. The learned counsel of the petitioner also did not lay much stress on the case of the factory itself and he argued that the Deputy Custodian could take possession of the factory from the person, in whose possession, it had gone subsequently by means of transfer. His main grievance relates to the recovery by the Deputy Custodian of the amount of Rs. 11500/- which purports to be the sale proceeds of the factory in the hands of the petitioner. It may be observed that the Deputy Custodian declared the factory to be evacuee property under sec. 7 (1) of the Act and the petitioner, if he had any grievance against such declaration, could go in appeal under sec. 24 of the Act. Having failed to file an appeal against the order of the Deputy Custodian declaring the factory to be evacuee property the petitioner cannot be allowed to come to this court under Art. 226 of the Constitution of India for issue of a writ of certiorari in this favour.

In Hafiz Abdul Rahim vs. Deputy Custodian [1952 Rajasthan Law Weekly 154] it has been observed as follows: - "lastly, it has been urged that the applicant was negligent in allowing his appeal to be dismissed in default on the 28th of October 1950. This charge, if correct, is certainly serious and a person who allows an appeal to be dismissed for default and takes no further steps thereafter cannot come to this court and ask it to exercise its extraordinary powers in his favour. Reference in this connection was made to Khurshed Mody vs. Rent Controller, Bombay [a. I. R. 1947 Bom. 46 ]. In that case the applicant had a right of appeal and did not file any. He then came to the High Court under sec. 45 of the Special Relief Act and wanted issue of a writ of certiorari. It was held that where a party has a remedy given to him by law and does not avail himself of that opportunity owing to his own default the High Court would not interfere by means of a high prerogative writ. With due respect we agree with this view where the prayer, as in that case, is for a writ of certiorari. "



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