judgement:
Civil Appeal Nos.
708 to 710 Of 1978.
Appeals by Special Leave from the Judgment and order dated 18 2 1978 of the Bombay High Court in Special Civil Application Nos.
2564/74, 5997/78 and 5999/78.
V.M. Tarkunde, C.K Ratnaparkhi, V.N. Ganpule, Mrs. Veena Devi Khanna and Miss Manik Tarkunde for the Appellants in all the appeals.
Soli J. Sorabjee, S.K Mehta, P.N. Puri and E.M.S. Anam for the Respondents 1 to 6 in CAs 708 to 710/1978.
P.H. Parekh, C.B. Singh, B.L. Verma, Miss V. Caprihan, Hemant Sharma and Raian Karanjawala for the Respondent No. 5 in CA 710/78.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The respondents in Civil Appeal No. 708 of 1978, Mamanchand Ratilal Agarwal and others, who are the landlords of premises bearing door No. 16 in Nawa Bazar Area Kirkee Cantonment, filed civil suit No. 1730 of 1964 against the appellant tenant for recovery of possession and arrears of rent under the provisions of the Bombay Rents, Hotel and Lodging House Rate Control Act, 1947.
The suit was decreed.
There was an appeal by the tenant.
It resulted in a compromise decree dated July 12, 1967 by which some time was given to the tenant to vacate the premises.
As the tenant failed to vacate the premises within the time given to him, the landlords were compelled to take out execution.
On April 29, 1969, in the case of Indu Bhusan Bose vs Rama Sundari Devi & Anr this Court held that Parliament alone had and the State Legislature did not have the necessary competence to make a law in any regard to the "regulation of house accommodation in Cantonment . areas".
The expression "regulation of house accommodation" was interpreted as not to be confined to allotment only but as extending to other incidents, such as termination of existing tenancies and eviction of persons in possession of house accommodation etc.
To get over the situation created by Indu Bhusan Bose vs Rama Sundari Devi & Anr.
on December 29, 1969, the Central Government issued a notification under Section 3 of the , extending the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, to the Kirkee and other Cantonment areas.
On June 2, 1972, the Parliament also 228 enacted Act 22 of 1972 amending the Cantonments (Extension of Rent Control Law;) Act, 1957, purporting to enable the Central Government to make the rent control laws in the several States applicable to Cantonment areas from dates anterior to the dates of notification and further purporting to validate certain pre existing decrees.
In the meanwhile taking advantage of the decision in the case of Indu Bhusan vs Rama Sundari Devi & Anr.
(supra), the appellant tenant filed Miscellaneous Application No. 597 of 1970 for a declaration that the decree obtained against him was a nullity and incapable of being executed.
This application was allowed by the Court on November 15, 1971.
But, after the enactment of Act 22 of 1972, on January 11, 1973, the landlords filed Darkhast No. 104 of 1973 to execute the decree in their favour.
The tenant raised various objections.
One of the objections was that subsequent to the compromise decree there was a fresh agreement of lease between the landlords and himself.
This was denied by the landlords.
Another objection was that the provisions of the Amending Act 22 of 1972 were not extensive enough to save the decree dated July 12, 1967.
The third objection was that in any case the decision in miscellaneous application No. 597 of 1970 holding the decree to be a nullity operated as res judicata between the parties.
The first of the objections was left open by all the Courts for future adjudication.
The second and third objections alone were considered, for the time being.
In the judgment under appeal, the High Court over ruled the second and third objections of the tenant and hence this appeal by special leave.
The first question for our consideration is whether the compromise decree dated July 12, 1967 is saved by Amending Act 22 of 1972? Before the decision of this Court in Indu Bhusan Bose vs Rama Sundari Devi & Anr. (supra), there was a conflict of views on the question whether Entry 3 of List I of Schedule VII to the Constitution which enabled Parliament to legislate in regard to "the regulation of housing accommodation (including the control of rents)" in Cantonment areas was wide enough to include the subject of relationship of landlord and tenant of buildings situated in Cantonment areas.
The High Courts of Bombay, Nagpur and Patna had taken the view that regulation of the relationship of landlord and tenant did not fall within Entry 2 of List I of the Seventh Schedule to the Govt.
Of India Act, 1935 (which corresponded to Entry 3 of List I of Seventh Schedule to the Constitution and that the Provincial Legislature was competent to legislate even in regard to the regulation of the relationship between landlord and tenant in Cantonment areas by virtue of Entry 21 of List II of the 229 Seventh Schedule to the Govt.
Of India Act, 1935(which corresponded to Entry 18 of the List II of the Seventh Schedule to the Constitution).
On the other hand the High Courts of Calcutta and Rajasthan held that the power of the State Legislature to legislate in respect of landlord and tenant of buildings was to be found not in Entry 18 of List II but in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and that such power was circumscribed by the exclusive power of Parliament to legislate on the same subject under Entry 3 of List I. The view expressed by the Calcutta and Rajasthan High Courts was accepted as correct by this Court in Indu Bhusan Bose vs Rama Sundari Devi & Anr.
(supra), But even before the decision of this Court in Indu Bhusan Bose vs Rama Sundari Devi & Anr.
(supra), Parliament appeared to take view of the Calcutta and Rajasthan High Courts as the correct view and proceeded to enact the , by Section 3 of which the Central Government was enabled, by notification in the official Gazette, to extend to any Cantonment with such restrictions and modifications as it thought fit.
Any enactment relating to the control of rent and regulation of house accommodation which was in force on the date of the notification in the State in which the Cantonment was situated.
Though this Act came into force on December 18, 1957, no notification was issued extending the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, to Kirkee and other Cantonment areas within the State of Bombay until 1969.
Apparently such a notification was thought unnecessary in view of the fact that the Bombay Act was supposed to operate within the said Cantonment areas because of the consistent view taken by the Bombay High Court, regarding the applicability of the Bombay Act to such areas.
But the position was upset as a result of the decision of this Court in Indu Bhusan Bose vs Rama Sundari Devi & Anr.
(supra).
Thereafter it became necessary that a notification under section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957, should be issued.
It was accordingly done on December 29, 1969.
But it was soon realised that the entire problem was not thereby solved since all such notification as the one issued on December 29, 1969 could only be prospective and could not save decree which had already been passed.
Amending Act 22 of 1972 was, therefore, enacted for the express purpose of saving decrees which had already been passed.
The statement of objects and reasons of the amending act stated: ". .
But these notifications could be issued only prospectively and could not save the decrees already passed.
A number of representations had been received 230 from and on behalf of tenants and tenants ' associations, ventilating their grievances in this regard.
It was accordingly proposed to amend section 3 to empower the Government to extend to any Cantonment any enactment relating to the control of rent and regulation of house accommodation in force in the State in which the Cantonment was situated either from the commencement of such enactment or from 26 1 1950, the date when the Constitution came into force, whichever was later, and to save decrees already passed under the enactment deemed to have been in force in the Cantonment before such extension.
" By section 2 of the Amending Act of 1972 the Principal Act of 1957 was itself deemed to have come into force on January 26, 1950.
Original section 3 was renumbered as sub. section 1 and the words "on the date of the notification" were omitted and "were deemed always to have been omitted".
New sub. sections 2, 3 and 4 were introduced and they are as follows: "(2) The extension of and enactment under sub section (1) may be made from such earlier or future date as the Central Government may think fit: Provided that no such extension shall be made from a date earlier than (a) the commencement of such enactment, or (b) the establishment of the cantonment, or (c) the commencement of this Act, whichever is later.
(3) Where any enactment in force in any State relating to the control of rent and regulation of house accommodation is extended to a cantonment from a date earlier than the date on which such extension is made (hereafter referred to as the "earlier date"), such enactment, as in force on such earlier date, shall apply to such cantonment, and where any such enactment, has been amended at any time after the earlier date but before the commencement of the Cantonments (Extension of Rent Control Laws Amendment Act 1971, such enactment, as amended, shall apply to the cantonment on and from the date on which the enactment by which such amendment was made, came into force.
(4) Where, before the extension to a cantonment of any enactments, relating to the control of rent and regula 231 tion of house accommodation therein (hereafter referred to as the "Rent Control Act"): (i) any decree or order for the regulation of, or for eviction from, any house accommodation in that cantonment, or (ii) any order in the proceedings for the execution of such decree or order, or (iii) any order relating to the control of rent or other incident of such house accommodation, was made by any court, tribunal or other authority in accordance with any law for the control of rent and regulation of house accommodation for the time being in force in the State in which such cantonment is situated, such decree or order shall, on and from the date on which the Rent Control Act is extended to that cantonment, be deemed to have been made under the corresponding provisions of the Rent Control Act, as extended to that cantonment, as if the said Rent Control Act, as so extended, were in force in that Cantonment, on the date on which such decree or order was made".
The effect of the provisions of the Amending Act appear to us lo be very clear.
Under section 3 of the unamended Act, a notification could be issued extending a State Legislation to a Cantonment area with effect from the date of the notification.
As a result of the introduction of sub. section 2 of section 3 the notification can be given effect from an anterior date or a future date, but it cannot be made effective from a date earlier than the commencement of the State Legislation or the establishment of the Cantonment or the commencement of the Cantonment (Extension of Rent Control Laws) Act, 1957.
section
3 is merely consequential to sub.
section
2 in that it provides that a State Legislation when extended to a Cantonment area from an anterior date, such legislation is to stand extended with all the amendments to such State Legislation made after such anterior date but before the commencement of the 1972 Amending Act, the amendments being applicable as and when they come into force.
Sub .s. 4 makes provision for the saving of decrees or orders for the regulation of or for eviction from any house accommodation in a Cantonment made before the extension of the State Legislation to the Cantonment provided certain conditions are fulfilled.
One condition is that the decree or order must have been made by any Court, Tribunal or other authority in accordance with a law for the control of rent and regula 232 tion of house accommodation for the time being in force in the State in which such Cantonment is situated.
In other words the decree or order must have been made by the wrong application of the State legislation to the Cantonment area.
If a decree or order has been made by such wrong application of the State Legislation to the Cantonment area, it shall be deemed, with effect from the date of the notification, to have been properly made under the relevant provisions of the State Legislation.
Shri V.M. Tarkunde, learned Counsel for the appellant urged that sub. section
4 had to be read in the context of sub. section 2 and 3 and that it was to be applied only to cases where a notification issued under sub. section 1 was given retrospective effect under the provisions of sub. section 2.
We see no justification for confining the applicability of sub. section 4 to cases where notifications are issued with retrospective effect under sub.
section
Sub. section 4 in terms is not as confined.
It applies to all cases of decrees or orders made before the extension of a State Legislation to a Cantonment area irrespective of the question whether such extension is retrospective or not.
The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was not so in force.
In our view sub.
section
4 is wide enough to save all decrees and orders made by the wrong application of a State rent control and house accommodation legislation to a Cantonment area, though such State Legislation could not in law have been applied to Cantonment areas at the time of the passing of the decrees or order.
We, therefore, hold that the decree obtained by the respondents is saved by the provisions of section 3, 4 sub. section 4 of the Cantonment (Extension of Rent Control Laws) Act of 1957.
as amended by Act 22 of 1972.
The second submission of the learned counsel for the appellant was that the decision of the executing Court in Miscellaneous Application No. 597 of 1970 declaring the decree to be a nullity separated as res judicata between the parties.
The learned counsel relied upon the following observations of this Court in Mathura Prasad Bajoo Jaiswal & ors.
vs Dessibai N.B. Jeejeebhoy(1) "The matter in issue, if it is one purely of act, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened.
A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the reason, be questioned in a subsequent proceeding between 233 the same parties.
But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression 'the matter in issue ' in section 11 Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue.
Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of ( ' res judicata, for a rule of procedure cannot supersede the law of the land.
In the very observations relied upon by the learned counsel for the appellant the last sentence is clearly against the appellant.
The matter becomes clear if certain observations made earlier in the very judgment are considered.
They are: "A question relating to the Jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court.
If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, lin our judgment, operate as res judicata.
Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise".
In that case the appellant who had a lease of an open land for construction of buildings had applied for determination of standard rent under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The application was rejected on the ground that the Act did not apply to open land let for construction.
The view was confirmed by the High Court.
Later in another case, the view taken by the High Court was over ruled by the Supreme Court and it was held that the Act applied to open land let out for construction The appellant once again filed an application for determination of standard rent.
The lower Courts and the High Court held that the previous decision operated as res judicata between the parties.
The Supreme Court reversed the view of the lower courts and the High Court.
It 16 189SCI/80 234 was held that the earlier decision that the Civil Judge had no jurisdiction to entertain the application for determination of standard rent ? was wrong in view of the judgment of the Supreme Court.
If the decision in the previous proceeding was to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature.
The situation in the present case is analogous.
The executing Court had refused to exercise jurisdiction and to execute the decree on the ground that the decree was a nullity as the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no application to buildings in Cantonment areas.
That defect having been removed and all decrees obtained on the basis that the Bombay rent law applied to the Kirkee Cantonment area having been validated by Act 22 of 1972, it cannot be said that the earlier decision holding that the decree was a nullity operated as res judicata.
As pointed out by this Court in Mathura Prasad Bajoo Jaiswal & Ors.
I vs Dassibai N.B. Jeejeebhoy (supra) if the earlier decision in the Miscellaneous Application is to be regarded as res judicata it would assume the status of a special rule of jurisdiction applicable to the parties in derogation of the law declared by the legislature.
We, therefore, see no substance in the second submission.
Civil Appeal No. 708 of 1978 is accordingly dismissed with costs.
In Civil Appeal No. 709 of 1978, the only question is about the validity of a decree obtained before the date of the notification issued under section 3 of the .
In view of what we have said above, this question has to be decided against the appellant.
This appeal is also dismissed with costs.
In Civil Appeal No. 718 of 1978, special leave was granted under a misapprehension that the appeal raised the same questions as were raised in Civil Appeal No. 708 of 1978.
It is now stated that it is not so.
This appeal is also dismissed with costs.
S.R. Appeals dismissed.

summary/full:
The respondents in Civil Appeal No. 708/78 Mamanchand Ratilal Agarwal and others, who are the landlords of premises bearing door No. 16 in Nawa Bazar Area Kirkee Cantonment, filed a civil suit No. 17,0 of 1964 against the Appellant tenant for recovery of possession and arrears of rent under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The suit was decreed.
There was an appeal by the tenant.
It resulted in a com promise decree dated July 12, 1967 by which some time was given to the tenant to vacate the premises.
On April 29, 1969, in the case of Indu Bhushan Bose vs Rama Sundari Devi and Anr.
; , this Court held that Parliament alone had and the State Legislature did not have the necessary competence to make a law in regard to the "regulation of house accommodation in Cantonment Areas.
" The expression "regulation of house accommodation" was interpreted as not to be confined to allotment only but as extending to other incidents, such as termination of existing tenancies and eviction of persons in possession of house accommodation etc.
To get over the situation created by the said decision, on December 29, 1969, the Central Government issued a notification under section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957 extending the pro visions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, to the Kirkee and other cantonment areas.
In June 2, 1972, the Parliament also enacted Act 22 of 1972 amending the Cantonment (Extension of Rent Control laws) Act 1957, purporting to enable the Central Government to make the Rent Control Laws in the several States applicable to Cantonment areas from dates anterior to the dates of notification and further purporting to validate certain pre existing decrees.
In the meanwhile, taking advantage of the decision in the case of Indu Bhushan Bose vs Rama Sundari Devi and Anr., the appellant tenant filed Miscellaneous Application No. 597/70 for a declaration that the decree obtained against him was a nullity and incapable of being executed.
This application was allowed by the Court on November, 19, 1971.
But, after the enactment of Act 22 of 1972, on January 11, 1973 the landlords filed Darkhast No. 104 of 1973 to execute the decree in their favour.
The appellant tenant raised three objections, namely, (i) subsequent to the compromise decree there was a 225 fresh agreement of lease between the landlords and himself; (ii) the provisions of the amending Act 22 of 1972 were not extensive enough to save the decree dated July 12, 1967; ,(iii) in any case, the decision in Miscellaneous Application No. 597/70 holding the decree to be a nullity operated as res judicata between the parties.
The first objection was left open by all the Courts for future adjudication, as the landlord denied the existence of any fresh agreement.
The second and third objections alone were considered.
In the judgment under appeal, the High Court overruled them and hence this appeal by special leave and two other similar appeals.
Dismissing the appeals the Court, ^ HELD: 1.
In Indu Bhushan Bose vs Rama Sundari and Anr., [1970 ] 1 S.C.R. 443, the Supreme Court agreed with the view of the Calcutta and Rajasthan High Courts and held that the power of the State Legislature to legislate in respect of landlord and tenant of buildings was to be found not in Entry 18 of the List II, but in Entries 6, 7 and 13 of List III of the Seventh Schedule to the Constitution and that such power was circumscribed by the exclusive power of Parliament to legislate on the same subject under Entry 3 of List I.
But even before this decision Parliament took the view of the Calcutta Rajasthan High, Courts as the correct view and proceeded to enact the Cantonment (Extension of Rent control Laws) Act, 1957, by section 3 of which the Central Government was enabled, by notification in the official Gazette to extend to any cantonment with such restrictions and modifications as it thought fit, any enactment relating to the control of rent and regulation of house accommodation which was in force on the date of the notification in the State in which the Cantonment was situated.
Though this Act came into force on December 18, 1957, no notification was issued extending the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, to Kirkee and other Cantonment areas within the State of Bombay until 1969.
Apparently such a notification was thought unnecessary in view of the fact that the Bombay Act was supposed to operate within the said Cantonment areas because of the consistent view taken by the Bombay High Court regarding the applicability of the Bombay Act to such areas.
In view of the Supreme Court decision in Indu Bhushan 's case, it became necessary that a notification under section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957, should be issued.
It was accordingly done on December 29, 1969.
But it was realised that the entire problem was not thereby solved since all such notifications as the one issued on December 29, 1969 could only be prospective and could not save decrees which had already been passed.
Therefore, Amending Act 22 of 1972 was enacted for the express purpose of saving decree which had already been passed.
By section 2 of the Amending Act of 1972 the Principal Act of 1957 was itself deemed to have come into force on January 26, 1950.
Original Section 3 was renumbered as subsection 1 and the words "on the date of the notification" were omitted and "were deemed always to have been omitted." [229 B G & 230 C D] 2.
Under section 3 of the unamended Act, 1957, a notification could be issued extending a State Legislation to a Cantonment area with effect from the date of notification.
As a result of the introduction of sub section 2 of section 3 the notification can be given effect from an anterior date or a future late but it cannot be made effective from a date earlier than the commencement 226 of the State Legislation or the establishment of the Cantonment or the commencement of the Cantonment (Extension of Rent Control Laws) Act, 1957.
Sub section 3 is merely consequential to sub section 2, in that it provides that a State Legislation when extended to a Cantonment area with effect from the date of the notification from an anterior date, such legislation is to stand extended with all the amendments to such State Legislation made after such anterior date but before the commencement of the 1972 Amending Act, the amendments being applicable as and when they come into force.
Sub section
4 makes provision for the saving of decrees or orders for the regulation of or for eviction from any house accommodation in a Cantonment made before the extension of the State Legislation to the Cantonment provided certain conditions are fulfilled.
One condition is that the decree or order must have been made by any Court, Tribunal or other authority in accordance with a law for the control of rent and regulation of house accommodation for the time being in force in the State in which such Cantonment is situated.
In other words the decree or order must have been made by the wrong application of the State Legislation to the Cantonment area.
If a decree or order has been made by such wrong application of the State Legislation to the Cantonment area it shall be deemed, with enact from the date of the notification to have been properly made under the relevant provisions of the State Legislation.
1231 A H, 232 A BI 3.
The applicability of sub section 4 cannot be confined to cases where notifications are issued with retrospective effect under sub section 2.
Sub section 4 is not so confined.
It applies to all cases of decrees or orders made before the extension of a State Legislation to a Cantonment area irrespective of the question whether such extension is retrospective or not.
The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although.
strictly speaking, it was not so in force.
Subsection 4 is wide enough to save all decrees and orders made by the wrong application of State rent control and house accommodation legislation to a Cantonment area, though such State Legislation could not in law have been applied to cantonment areas at the time of the passing of the decrees or order.
The decree obtained by the respondent is saved by the pro visions of section 3, sub section 4 of the Cantonment (Extension of Rent Control Laws) Act 22 of 1957, as amended by Act 22 of 1972.
[232 E F] 4.
If the decision in the previous proceeding was to be regarded as res judicata it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature.
[234 A] In the present case, the executing Court had refused to exercise jurisdiction and to execute the decree on the ground that the decree was a nullity as the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, had no application to buildings in Cantonment areas.
That defect having been re moved and all decrees obtained on the basis that the Bombay rent law applied to the Kirkee Cantonment area having been validated by Act 22 of 1972, it cannot be said that the earlier decision holding that the decree was a nullity operated as res judicata.
[234 B D] Mathura Prasad Bajoo Jaiswal and ors.
vs Dessibai N. B. Jeejeebhoy, (@) 836: followed.


judgement:
Civil Appeal No. 512 of 1979.
Appeal from the Judgment and order dated 18 5 1965 of the Allahabad High Court in Civil Writ No. 2945 of 1964.
Danial Latifi and Mrs. Urmila Sirur for the Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by D GUPTA, J.
A notice issued under section 7 of the (hereinafter called the Act) gives rise to this appeal brought on a certificate granted by the Allahabad High Court on August 18, 1969 under Article 133(1)(a) of the Constitution of India.
Sub section (1) of section 7 states: E "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.
" Rule 6 of the Administration of Evacuee Property (Central) Rules, 1950 (hereinafter called the Rules) which lays down the manner of inquiry under section 7 provides in sub rule (1) that where the Custodian is satisfied from information in his possession or otherwise that any property or an interest therein is prima facie evacuee property, he shall cause a notice to be served in the prescribed form on the person claiming title to such property or interest and on any other person or persons whom he considers to be interested in the property.
Sub rule (2) of rule 6 says that the notice "shall, as far as practicable, mention the grounds on which the property is sought to be declared evacuee property and shall specify the provision of the Act under which the person claiming any title to, or interest in, such property is alleged 17 189 SCI/80 250 to be an evacuee".
"Evacuee" has been defined in section 2(d) of the Act to include several categories of persons, but for the purpose of this case it is necessary to refer only to first three of them.
The relevant part of the definition is as follows: "2(d) "evacuee" means any person, (i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day of March, 1947, left, any place in a State for any place outside the territories now forming part of India, or (ii) who is resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property in any part of the territories to which this Act extends, or whose property in any part of the said territories has ceased to be occupied, super vised or managed by any person or is being occupied, supervised or managed by an unauthorised person, or (iii) who has, after the 14th day of August, 1947, obtained, otherwise than by way of purchase or exchange, any right to, interest in or benefit from any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan.
" The appellant was declared an evacuee by the Assistant Custodian (Judicial), Deoria.
Having failed to have the declaration set aside by the appellate and the revisional authorities under the Act, the appellant moved the High Court by a writ petition challenging the notice under s section 7 and the subsequent proceedings based on it.
This appeal is from the order of the High Court dismissing the writ petition in limine.
The notice in question was issued by the Assistant Custodian, Evacuee Property, Deoria, to the appellant and his brother Bashir Ahmad on March 11, 1954 stating that there was "credible information in possession of the Custodian" that they were evacuees under clause (iii) of section 2(d) of the Act and calling upon them to show cause why orders should not be passed declaring them evacuees and their property as evacuee property.
The notice purports to have been issued in accordance with rule 6 which requires a statement of the tactual grounds on which the notice is based.
The notice in this case 251 appears to be merely a copy of the prescribed form without particulars.
The ground stated in the notice reproduces only what the form contains and that is as follows: "Acquisition of any rights to, interest in or benefit from any evacuee or abandoned property in Pakistan, otherwise than by way of purchase or exchange." By this order dated December 14, 1955, the Assistant Custodian (Judicial), Deoria, declared the appellant and his brother evacuees under clauses (i), (ii) & (iii) of section 2(d) though in the notice issued it was alleged that the information in possession of the Custodian was that they were evacuees under clause (iii) only.
An appeal preferred under section 24 of the Act was dismissed by the Authorised Deputy Custodian on August 30, 1963 who upheld the order of the Assistant Custodian (Judicial).
The Authorised Deputy Custodian, however, found that the ground based on clause (iii) of section 2(d) of the Act was "very vague" and that the notice was "defective to that extent".
It has been stated already that the notice issued under rule 6(1) was based only on that ground and clauses (i) and (ii) of section 2(d) were not mentioned at all in that notice.
The Assistant Custodian General, Evacuee Property, U.P. to whom the appellant and his brother preferred a revision found no merit in the applicants ' case.
The Court dismissed in limine the writ petition made by the appellant and his brother Bashir Ahmad on the view that the order of the Assistant Custodian General did not suffer from any error.
Bashir Ahmad died after the High Court had disposed of the writ petition, and the appeal before us is by Nasir Ahmad alone.
It is necessary to state a few more facts.
It appears that several years before the present notice under section 7 of the Act was issued, on November 22, 1949 when the Administration of Evacuee Property ordinance, 1949, replaced by the Act in 1950 was in force, a notice was issued to the appellant and his brothers including Bashir Ahmad by Deputy Custodian of Evacuee Property, Deoria, Uttar Pradesh, .
alleging that they were transferring their movable and immovable ; properties to Pakistan and stating that for this reason they were being considered as evacuees and their property was being treated as evacuee property.
The notice invited objections from them, if any, within 30 days.
At the instance of District Magistrate, Deoria, a similar notice was issued to the appellant and his brothers by the authority in District Chapra in the State of Bihar where also they had some properties, asking them to show cause why they should not be declared or intending evacuees.
The Act had then come into force and this notice was issued under section 19 of the Act.
Section 19 provided 252 for issue of notice to a person before declaring him an "intending evacuees".
The Act as originally passed contained in clause (e) of section.
2 a definition of "intending evacuee" as meaning a person who had transferred after August 14, 1947 any of his assets to Pakistan.
Section 19 was repealed and clause (e) of section 2 was deleted in 1953.
On enquiry it was found that there was no reliable evidence to justify a declaration that the appellant and his brothers were intending evacuees and the Deputy Custodian, Chapra, dropped the proceeding on May 24, 1952.
On November 29, 1952 the Deputy Custodian, Deoria, also dropped the proceeding started upon the notice issued by him, but on the same day he initiated a proceeding under section 7 of the Act against the appellant and his brother Bashir Ahmad that ended in the declaration challenged in this appeal.
The facts stated above clearly show that the notice and the declaration that followed are both invalid.
The notice called upon the appellant and his brother to show cause why they should not be declared evacuees under clause (iii) of section 2(d) of the Act and the ground mentioned in the notice was also based on that clause, yet the Assistant Custodian found that they were evacuees under clauses (i) and (ii) as well.
The Authorised Deputy Custodian held that the ground given in the notice in support of the case based on clause (iii) was vague and the notice was defective so far as that ground was concerned, but that was the only case the appellant was called upon to answer.
The foundation of a proceeding under section 7 is a valid notice and an inquiry which travels beyond the bounds of the notice is impermissible and without jurisdiction to that extent.
Therefore the declaration that the appellant was an evacuee under clauses (i) and (ii) of section 2(d) of the Act must be held invalid.
Under rule 6 the notice under section 7 must be issued in the prescribed form and contain the grounds on which the property is sought to be declared evacuee property.
As stated earlier, the notice that was issued in this case merely reproduced the form without mentioning the particulars on which the case against the appellant was based.
It was.
essential to state the particulars to enable the appellant to answer the case against him.
Clearly therefore the notice did not comply with rule 6 and could not provide a foundation for the proceedings that followed.
What is said in the preceding paragraph makes it plain that the authority concerned did not apply his mind to the relevant material before issuing the notice.
The same thing is apparent from another fact.
It has been stated that on November 29, 1952 the Deputy Custodian, Deoria, dropped the proceeding seeking to declare the appellant 253 an intending evacuee and that on the same day he directed the initiation of a proceeding under section 7.
Section 7 required the Custodian to form an opinion that the property in question is evacuee property within the meaning of the Act before any action under that section is taken.
Also, under rule 6 the Custodian has to be satisfied from information in his possession or otherwise that the property is prima facie evacuee property before a notice is issued.
On November 29, 1952 no evidence was found to support a declaration that the appellant was an intending evacuee.
There is no material on record to suggest that on that very day the authority had before him any evidence to justify the initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property.
The notice under section 7 thus appears to have been issued without any basis.
The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case.
We are therefore unable to agree with the High Court that the Assistant Custodian General 's order did not suffer from any error.
We allow this appeal and quash the notice issued to the appellant on March 11, 1954 and all subsequent proceedings based on it.
The respondents have not appeared to contest the appeal; there will be no order as to costs.
P.B.R. Appeal allowed .

dataset_name: IN-Abs

summary/full:
A notice under section 7 of the , was Issued by the Assistant Custodian of Evacuee Property to the appellant and his brother (since deceased) stating that there was "credible information in possession of the Custodian" that they were evacuees under clause (iii) of section 2(d) of the Act and calling upon them to show cause why they would not be declared evacuees and their property as evacuee property The Assistant Custodian eventually declared the appellant and his brother as evacuees under clauses (i), (ii) & (iii) of section 2(d) of the Act.
The Authorised Deputy Custodian, although he dismissed the appellant ' appeal under section 24 of the Act, pointed out that the ground based on clause (iii) of section 2(d) was "very vague" and that the notice was "defective to that extent".
The Assistant Custodian General Evacuee Property dismissed the appellant 's review petition and the High Court dismissed the writ petition in limine.
Allowing the appeal, ^ HELD: The notice and the declaration that followed stating that the appellant was an evacuee under clauses (i) and (ii) of section 2(d) of the Act are invalid.
[252E, F] 1.
The notice called upon the appellant and his brother to show cause why they should not be declared evacuees under clause (iii) of section 2(d) and the ground mentioned in the notice was also based on that clause, yet the Assistant Custodian found that they were evacuees under clauses (i) and (ii) as well.
The Authorised Deputy Custodian held that the ground given in the notice in support of the case based on clause (iii) was vague and the notice was defective so far as that ground was concerned, but that was the only case the appellant was called upon to answer.
The foundation of a proceeding under section 7 is a valid notice and an inquiry which travels beyond the bounds of the notice is impermissible and without jurisdiction to that extent.
[252D E 2.
From the facts stated above, it would appear that the Authority concerned did not apply his mind to the relevant material before issuing the notice.
The same thing is apparent from another fact.
On November 29, 1952 the Deputy Custodian dropped the proceeding seeking to declare the appellant an intending evacuee and that on the same day directed initiation of a proceeding under section 7.
Section 7 required the Custodian to form an opinion that the property in question was evacuee property within the meaning of the Act 249 before any action under that section was taken.
Under rule 6 of the Administration of Evacuee Property (Central) Rules 1950 the Custodian had to be satisfied from information in his possession or otherwise that the property was prima facie evacuee property before a notice was issued.
On November 29, 1952 no evidence was found to support a declaration that the appellant was an intending evacuee.
There was no material on record to suggest on that very day the authority had before him any evidence to justify initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property.
The notice under section 7 appears to have been issued without any basis.
The Assistant Custodian General, who found no merit in the reversional application preferred by the appellant, overlooked these aspects of the case.
[252H, 253 A B]