ABDUL SHAKOOR AND Vs. CUSTODIAN OF EVACUEE PROPERTY IN BANGALORE

JUDGEMENT

(1.) The above two appeals are by two brothers Khan Saheb Abdul Ghani and Khan Saheb Abdul Shacoor against a common order dated 2-12-1952 passed by the Revenue Commissioner and Custodian of Evacuee Property in Mysore in Evacuee Property Case No. 12/51-52. The two writ petitions are by the same parties and are made under Article 226 of the Constitution of India and therein they have prayed that the same order of the Custodian may be quashed by a suitable writ.

(2.) This case has had a chequered history to which it is necessary briefly to refer. Shortly after the partition between what is now known as the territory of India and Pakistan, the then Government of His Highness the Maharaja of Mysore being satisfied that circumstances existed which rendered it necessary to take immediate action to provide for the administration of evacuee property in Mysore and in exercise of the powers conferred by Sub-section (1) of Section 31 of the Government of Mysore Act of 1940. enacted Act No. 47 of 1949--The Mysore Administration of Evacuee Property (Emergency) Act of 1949. Thereafter the Custodian of evacuee property in Mysore, by virtue of his powers under Section 6 of that Act, notified in the Mysore Gazette dated 21-9-1949 the properties of the appellants as evacuee properties which had vested in him under the Act. The appellants then applied to him under Section 8 objecting to their properties being so treated and their applications were transferred for enquiry to the Deputy Commissioner and Deputy Custodian of Bangalore District. He overruled their objections and declared their properties as evacuee properties by an order dated 17-4-1950. Against that order the appellants appealed to the Custodian and that officer passed a long and considered order on 22-8-1950. He found that there was not sufficient evidence to treat the appellants as evacuees as denned in Section 2 (c) (i), (ii) and (iii) of the first (Emergency) Act and that consequently the properties in question belonging to the appellants could not be treated as evacuee properties. He, therefore, set aside the order of the Deputy Custodian and allowed the appeals. He made a reference to the first (Emergency) Act apparently because by that time in Mysore a second Act had been passed by the Government of His Highness the Maharaja of Mysore--Act 74 of 1948-- The Mysore Administration of Evacuee Property Second (Emergency) Act. Subsequent to that order the Custodian General issued notice to the appellants on 3-10-1950 calling upon them to show cause why the order of the Custodian should not be revised. That notice purported to be under Section 27 of Act 31 of 1950 which was an Act enacted by Parliament on 17-4-1950 called the Administration of Evacuee Property Act of 1950. The Custodian General, who was not the Custodian General who issued notice, then heard arguments and made an order on 13-9-52 setting aside the order passed by the Custodian and he sent the case back to him with a direction that he should proceed to dispose of the case in the light of the evidence already recorded before his predecessor and such other evidence as may be produced by the appellants. On receipt of the records the then Custodian made an interim order on 7-4-52 noting down certain points on which he thought evidence should be recorded. He also noted the names of certain witnesses who might be examined in addition to those who may be produced by the appellants and referred the matter to the Deputy Custodian of Bangalore for recording such evidence and re-submitting the file to himself for disposal. The Deputy Custodian accordingly recorded evidence and returned the records to the Custodian. The Custodian issued another notice on 10-7-52 calling upon the appellants to show cause why an order should not be passed declaring them as evacuees or in the alternative as intending evacuees and their properties as evacuee property under the provisions of Act 31 of 1950. The appellants objected to this notice by an application dated 4-8-52. They represented that the proceedings against them were started under Section 8 of the Mysore Act 47 of 1949 and their claims were filed under Section 8 of the same Act. The Deputy Custodian had passed orders dismissing their claim; but on appeal it had been decided by the Custodian that though meanwhile other Acts had come into force both in Mysore and in India relating to evacuee property, their case was governed by Act 47 of 1949 which was the law in force when the proceedings were taken, and he had found that there was not enough evidence to treat the appellants as evacuees as defined in Section 2 (c) (i), (ii) and (iii) of Act 47 Of 1949. He had therefore set aside the order of the Deputy Custodian, Bangalore, and allowed the appeal. The Custodian General while remanding the case to the Custodian had observed that the Custodian himself should dispose of the matter as that would give a chance to the appellants to appeal against any adverse decision and that having regard to the scope of the order of remand by the Custodian General the enquiry should be confined only to the narrow question as to whether the appellants were not evacuees within the meaning of Section 2 (c) of Act 47 of 1949; and they wanted the Commissioner to withdraw and cancel the notice issued to them. On this application the Custodian made a considered order on 6-9-1952. He held that while in law there could be no objection for proceedings being taken in terms of the notice issued to the appellants, yet having due regard to the representations made by them that they would thereby be deprived of the right of appeal they would have had if such proceedings were to be started by the Deputy Custodian instead of the Custodian he was inclined on grounds of equity to concede the point with regard to the present proceedings before him and to confine the enquiry to the issue as to whether the appellants were evacuees or not within the meaning of Section 2(c) (i). That order, he observed, should not however be taken as a bar to any action that may be taken against the appellants independently under Section 19 of the Evacuee Property Act of 1950 at a later stage if necessary. The Custodian, who was not the Custodian who passed the first order, then made a final order on 2-12-1952 holding that the appellants were to be treated as evacuees and their properties as evacuee properties; and it is against that order that the appellants have come up in appeal to this Court.

(3.) The appeals are made under Section 30 of Act 47 of 1949 under which any person aggrieved by an order made under Section 8 may prefer an appeal to the High Court whether the original order has been passed by the Custodian, the Additional Custodian or the authorized Deputy Custodian. A preliminary objection has been taken on behalf of the respondent to the maintainability of the appeals and it is urged that by the time the Custodian passed the first order of August 1950. Act 47 of 1949 had been repealed and superseded by Section 53 of Act 74 of 1949 and later by Section 58 of Act 31 of 1950 which provided for no appeal to the High Court but only for revision by the Custodian General under Section 27 against an order like the one with which we are concerned in this case. Reference has been made to the saving clause contained in those sections which provide that anything done or any action taken in exercise of any power conferred by the said Act 47 of 1949 shall be deemed to have been done or taken in the exercise of the powers conferred by these later Acts, and it is argued that the same means that the remedies open to a person aggrieved by an order of the Custodian can only be under Section 27 of Act 31 of 1950. It is also urged that the appellants have acquiesced in and submitted them selves to the jurisdiction of the Custodian General and cannot how challenge the revisional jurisdiction he has exercised in this case. In answer Mr. Rajah Iyer, learned Counsel for the appellants, has urged that the right of appeal which had been expressly granted under Section 30 of Act 47 of 1949 in respect of proceedings initiated under Section 5 of that Act was in the nature of a substantive right and not one which related merely to procedure, that such a right to which the appellants had become entitled could not and had not been taken away except expressly by the subsequent Act, that the first order of the Custodian of August 1950 became final and was not subject to any revision by any other higher authority and that the action taken and order made by the Custodian General revising that order was 'ultra vires' and without jurisdiction and not in accordance with law. He represents that his clients have all along been contending before the Custodian and Custodian General that the proceedings in these cases which were initiated under Act 47 of 1949 were to be conducted and are governed by that Act alone notwithstanding the changes made in the succeeding statutes. He further represents that even before the Custodian General this aspect was raised in the course of the arguments and an application was also made to that effect to the Custodian on 4-8-1952, which we have already noticed above. He has also relied on the terms of a notice dated 10-10-1952 issued by the Custodian which refers to the 'status quo ante' as having been restored as a result of the order of the Custodian General and the properties again vesting in the Custodian during the pendency of the case. He also urges that there can be neither acquiescence nor submission to a jurisdiction which did not exist and, that notwithstanding their objection, the Custodian General exercised his re visional powers, that in any event he has made no final order against the appellants but has merely directed a further enquiry by the Custodian, that even the Custodian in Mysore has in his first order conceded and recognised that the proceedings were to be governed by the old Act and that everyone concerned in this case has understood the proceedings as being governed by that Act alone.