Bapna, J - (1.) THESE two petitions have been filed under Art. 226 of the Constitution and raise identical points.
(2.) THE case of the petitioners is that in the town of Ajmer there were three house properties, Nos. A. M. C. IV/395, IV/596 and IV/556. THEse were owned and possessed by Syed Sher Mohammed and his brothers Syed Mukhtar Mohd. , Syed Siraj Mohammed, Syed Zahoor Mohammed and Syed Akhtar Mohammed. These properties were notified as evacuee properties in the year 1948 but by an order of the Assistant Custodian, dated 31st January, 1950, were declared as non evacuee properties and released in favour of the aforesaid Syed brothers. Of these properties the Syed brothers sold A. M. C. IV/395 to Pt. Durga Pershad in December, 1955. In the month of March, 1956, the Syed brothers received a letter from the Custodian of Evacuee Property, Ajmer, No. CEP-7692/96 dated 9th March, 1956, intimating his intention to revise the release order dated 31st January, 1950. An objection was raised by the Syed brothers bat on 17th April, 1956, the Custodian set aside the order of release, dated the 31st January, 1950, passed by the Assistant Custodian and remanded the case for enquiry to the Assistant Custodian of Evacuee Property Ajmer. Syed Sher Mohammed filed a writ petition before the Judicial Commissioner questioning the jurisdiction of the Custodian to revise the order of 31st of January. 1950 and causing further action to be taken by the Custodian. The learned Judicial Commissioner allowed the petition on the 28th of August, 1956. He held that the Custodian had the power to revise the order of the Assistant Custodian dated the 31st January, 1950, but that the order of the Custodian directing the Assistant Custodian to make afresh enquiry was without jurisdiction. This order of the Judicial Commissioner was interpreted by the Custodian as upholding his order of the 17th April, 1956, to the extent of setting aside the order of the Assistant Custodian dated 31st January, 1950. The Custodian was of opinion that the order of release having been thus set aside, the property reverted to its original position as evacuee property and, therefore, came to be vested in the Custodian. He accordingly gave notice to the Syed brothers on the 10/11th September, 1956, to show cause why the actual possession of the property be not taken from them under sec. 8 (4) of the Evacuee Property Act. The Syed brothers submitted objections contending inter-alia that the setting aside of the order of the 31st January, 1950 did not amount to a declaration of the properties as evacuee properties, as no fresh proceedings were taken under sec. 7 of the Administration of Evacuee Property Act and it was contended that the decision of the learned Judicial Commissioner had not been properly understood by the Custodian The Custodian recorded an order dated 24/25th September, 1956, wherein upholding his previous interpretation of the order of the Judicial Commissioner he said that it was not necessary to draw up any proceedings under sec. 7 of the Act. By order of )5/16th October, 1956, the Custodian directed the Syed brothers and also by another letter of the same date to Pt. Durga Pershad that the three properties referred to in the earlier part of the judgment were evacuee properties and that possession thereof 6hould be surrendered to Wazirani, Field Inspector, authorised by the Custodian to receive possession upto 25th October, 1956, failing which they will be evicted with such force as may be necessary for the purpose. The letter addressed to the Syed brothers is No 29743-47 dated 15/i6th October, 195b and that addressed to Durga Pershad is No. 29748-49 dated 15/16th October, 1956. Syed Sher Mohammed has filed this writ petition No. 240 of of 1956 in respect of properties A. M. C. IV/596 and 1v/556 Pt. Durga Pershad has filed writ petition No. 243 of 1956 and is in respect of property No. A. M. C. 1v/395. It is contended on behalf of the petitioners that the Custodian had not property understood the order of the Judicial Commissioner. The release of the properties by the Assistant Custodian on the 31st of January, 1950 amounted to a declaration that they were not evacuee properties. If the Custodian wanted to take these properties in his possession he could only do so after they were declared to be evacuee properties. It was urged that the Administration of Evacuee Property (Amendment) Act of 1954 did not permit any fresh action to be taken by the Custodian in respect of any property in as much as the present case was not pending and the period of limitation permitted for such action had also expired long before the Custodian decided to take action in the matter. The first enactment in respect of administration of evacuee property was the East Punjab Evacuees' (Administration of Property) Act, 1947, which was extended to Ajmer on the 31st of December, 1947. This was replaced by the Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance, No. XII of 1949 and brought into force from 18th June, 1949. This Ordinance was replaced by Ordinance No. XXVII of 1949 called the Administration of Evacuee Property Ordinance issued by the Central Government. This was brought into force from the 18th October, 1949. Thereafter Act XXXI of 1950 of the Administration of Evacuee Property Act 1950 was brought into force on the 17th of April, 1950. It was amended in October, 1954 by the Administration of Evacuee Property (Amendment) Act, 1954. By notification in the gazette of India, dated 9th June, 1948, 13th November, 1948 and 15th July, 1948, the three properties, A. M. C. 1v/596, 1v/556 and 1v/395 were taken into possession and control of the Custodian of Evacuee Property, Ajmer. The aid notifications were issued under sec. 6 (1) of the East Punjab Act XXIV of 1947, as applied to the province of Ajmer Merwara. The Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance No. XII of 1949 then came into force and the Syed brothers put forward their claim under sec. 8 of that Act. These petitions' were separately submitted in respect of each one of aforesaid properties and the Syed brothers claimed the properties as their own and stated that four of the brothers were living in Ajmer and the 5th one was in Government service at Mount Abu and that all of them were non-evacuees. The Assistant Custodian Mr. Jaisinghani recorded an order on the 31st January, 1950. This order is important and is reproduced below : "this is an application filed on 3rd August 1955 by one Sher Mohammad and his four brothers Mukhtar Mohammed, Zahur Mohammed, Akhtar Mohammad and Siraj Mohammed sons of Shri Lal Mohammed, owners of properties Nos. A. M. C. IV/556, 395 and 596 under sec. 8 of Ordinance No. XII of 1949. Possession of these properties was assumed by the Custodian by Gazette Notification dated 8 10 48 and 9. 6. 56 respectively. (There is some discrepancy about the dates but it is not material.) From the statement of the applicant Siraj Mohammed and other enquiries, I am satisfied that the applicants are not evacuees within the meaning of clause (c) of sec. 2 of Ordinance No. XII of 1949 and consequently their above mentioned properties are also not evacuee properties. I accordingly order that these properties be released and possession thereof delivered to the applicants subject to the conditions that the present refugee occupants will be treated as legal tenants and the Custodian will remain absolved of all the responsibilities in respect of the property or lease granted by him, with effect from the date of this order. Notice of this order be given to the applicant. " The Order passed by the Custodian in revision is dated 17th April, 1956 is in the following terms: - "properties Nos. A. M. C IV/596, 395 and 556 were notified as evacuee properties under sec. 6 of the East Punjab Evacuee Property Act of 1947 by a gazette notification dated 9ch June, 1948, 15th July, 1948 and 8th October, 1948 respectively. I hey were subsequently released by the then Assistant Custodian Shri Jaisinghani in favour of Sher Mohammed and his four brothers by an order dated 31st January, 1950. On information having been received that the above property No. A. M. C. IV/596 did not belong to the above persons it was seen from record that property No. A. M. C. IV/596, alongwith the other two properties A. M. C. IV/395 and 556 had been released by Shri Jaisinghani only on the basis of statement of one of the opponents Siraj Mohammed and there was no other evidence on record in proof of their title. Accordingly a notice under sec. 26 of the Evacuee Property Act of 1950 was issued by me to Sher Mohammed and is four brothers to show cause as to why the above order of release be not set aside by me and the matter be enquired afresh. During the course of proceedings it was found out that property No. A. M. C. IV/395 had been sold away to one Pandit Durga Prasad. He was, therefore, also made a party to the proceedings. In response to the above notice, opponents have appeared. No cogent reasons have been shown by them against the notice. I, therefore, set aside the order passed by Assistant Custodian Shri Jaisinghani referred above and remand the matter to Assistant Custodian Shri M. N. Mathur to inquire into the case afresh and dispose it of according to law. " The operative para of the order of the Judicial Commissioner, dated 28th August. 1956, has already been set out. The contention of the learned counsel for the Custodian is that the Central Act XXI of 1950 makes provision for the exercise of powers of revision under sec. V7 and this power can be exercised not only in respect of the orders passed after the commencement of the Act XXXI of 1950 but also in respect of the orders passed the under previous laws In this connection reference has been made to sec. 58 (3) which while repealing the Administration of Evacuee Property Ordinance, 1947 (XXVII of 1949) declares that any action taken in the exercise of the power under the Ordinance shall be deemed to have been taken in exercise of the powers conferred by or under the Act, as if the Act was in force on the date such thing was done or taken Sec. 55 of Ordinance XXVII of 1949 similarly while repealing the Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance, 1949 (XII of 1949) laid down that anything done or any action taken in exercise of powers conferred by the previous Ordinance shall be deemed to have been done or taken in exercise of the powers conferred by Ordinance XXVII of 1949. It was urged that in this manner the order passed by Mr. Jaisinghani under sec. 8 of the Administration of Evacuee Properly (Chief Commissioners' Provinces) Ordinance No. XII of 1949, became by fiction of law an order pissed under the Central Act XXXI of 1950 and became subject to revision. It was contended that if therefore, the custodian had the powers to revise the order passed by Mr. Jaisinghani he had jurisdiction to set aside that order. It was urged that the setting aside of that order brought into existence the previous state of things which was that the properties were held to be evacuee properties and were under the possession and control of the Custodian by virtue of the noti- fications in the gazette of India tinder sec. 6 of the East Punjab Evacuees' (Administration of Property) Act, 1947. It may be mentioned that the learned Judicial Commissioner while accepting the arguments of the Custodian that the previous orders were also revisable under sec. 26 of the Act XXXI of 1950, was of opinion that sec 7 of the Act XL1i of 1954 (Administration of Evacuee Property Amendment Act) prevented any proceedings being taken for declaring the properties to be Evacuee Properties as neither any case in respect of them was pending nor the action was taken within six months of the enforcement of that amendment. It was observed that the mere fact that the previous order was subject to revision by the Custodian did not mean that any proceedings were pending on 7th May. 1954 He held that any further inquiry by which the properties Could be put in jeopardy was without jurisdiction. It was in view of the provisions of Act XLII of 1954 that that learned Judicial Commissioner held that the Assistant Custodian had no jurisdiction to make any inquiry as directed by the Custodian and he accordingly issued a writ directing the Assistant Custodian not to make inquiry into the matter given to him by the Custodian by his order dated the 17th April, 1956.
(3.) IT is apparent from the above that the learned Judicial Commis-sioner was definitely of the opinion that the properties hiving been released On 31st January, 1950, no longer remained evacuee properties and the proceedings for declaring them Evacuee Properties could not be taken in view of the Amending Act XLII of 1954. The view taken by the learned Custodian that the order passed in revision directing the Assistant Custodian to make further enquiries having been held by the learned Judicial Commissioner to be beyond jurisdiction, while the order setting aside the order of release being held to be within his jurisdiction the property became evacuee property is erroneous The Custodian in his order accepting the revision did not declare the properties to be evacuee properties. What he said was that he had information that the said property or properties did not belong to the Syed brothers and an inquiry afresh as to ownership of property was required to be made. IT was left to the result of the inquiry whether the properties were to be declared evacuee properties or otherwise If the learned Custodian was then of opinion that the property was evacuee property he would have said so. The previous state of affairs could not also come into existence because Mr. Jaisinghani had not only declared the property to be non-evacuee property but had also directed its possession to be made over to the Syed brothers and that order seems to have been then carried out. The property did not remain in the possession or control of the Custodian authorities. When this was so, the property could only vest in the Custodian according to the provision of Act, 1950, that is, by declaration of the property as evacuee property under sec. 7. The Amendment Act, 1954, however, stood in the way of any proceeding being taken after the period mentioned in that Act excepting in the case of pending proceedings, and as observed by the learned Judicial Commissioner in his order of 28th August, 1956, the mere fact that order of Mr. Jaisinghani was liable to be reviewed did not make the proceedings pending. Any other interpretation would not carry out the intention of the Amendment Act which was to afford a certain sense of security among a section of the public and relieve them of a nightmare of having to answer the Custodian in respect of their acts and doings after the lapse of several years of the creation of the two dominions, India and Pakistan. The effect of the Amending Act of 1954 was rightly pointed out by the learned Judicial Commissioner as prohibiting the declaration of any property to be evacuee property except in the circumstances mentioned in the Amending Act. In the present circumstances the learned Custodian has in our opinion committed an error in coming to the conclusion that the aforesaid three properties A. M. C. IV/556, 1v/596 and IV/395 became evacuee properties by the simple process of the order of Mr. Jaisinghani having been set aside. The order of Mr. Jaisinghanee purported to declare the properties to be non-evacuee properties and after the passing of the Act XXXI of 1950, the properties could only be declared as evacuee properties in accordance with the procedure laid down in sec 7 but the action is now barred in view of the Amendment Act of 1954. The learned counsel for the Custodian raised certain technical objections that there was an alternative remedy to the petitioners to go in revision to the Custodian General under sec. 27. It is doubtful whether that kind of remedy was open to the petitioners after the order of the Judicial Commissioner. The only question that could be agitated was the interpretation of that order. The learned Custodian understood it in one way while the petitioners understood it in another way. It was at one stage urged by the learned counsel for the Custodian that the Custodian only wanted a further inquiry in the matter which may show in what manner the petitioners could claim the properties for themselves and since further inquiry was prevented by the writ of the Judicial Commissioner there was no other alternative except to take possession of the property. This contention is again based on misconstruction of the order of the Judicial Commissioner, as discussed above. It was at one stage urged that Mr. Jaisinghani had no jurisdiction to release the properties. This argument is based on a contention that the officer authorised to entertain claims was the Custodian himself. The definition of the Custodian given in sec. 2 (b) of Ordinance XII of 1949, however, included any Additional, Deputy or Assistant Custodian appointed for the province and the contention has no force. At one stage there was a doubt as to whether the petitioners had any subsisting right to come to this Court. On behalf of the applicants certain documents were, however, produced which show that they were in possession of the properties atleast in 1947 and property No. A. M. C. IV/395 was sold to Pandit Durga Pershad by sale-deed dated 24th December, 1955. In any case the release by Mr. Jaisinghani was in favour of the petitioners and they were obviously in possession of it when notice was issued to them to show cause why the order of Mr. Jaisinghani may not be revised. The petitioners had a possessory title if not more and were, therefore, interested in setting aside the order of the Custodian which threatened them of eviction by force. ;