# [1958] 1 S.C.R. 816

- **Citation:** [1958] 1 S.C.R. 816
- **Court:** Supreme Court of India
- **Decided:** 1955-07-09
- **Case number:** Civil Appeal No. 144 of 1956
- **Bench:** Bhagwati, Jafer Imam, Gajendragadkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1958-1-s-c-r-816-1433
- **Pages:** 7

## Headnote

Evacuee pTOperty, Notificatwn of-Issue of notice by
Custodian on person interestec!.--Propriety, if can be determined by Court-Refusal of copies of materials by Custo-
. dia11r-Legality-Administration of Evacuee Property Act,
1950 (XXXI of 1950), s. 7.
The appellant and his brother owned certain properties
inherited from their father. The brother died and the
appellant claimed to have become the sole heir. The respondent issued a notice under s. 7 of the Administration of
Evacuee Property Act, 1950, in respect of the share of the
brother on the ground that the brother had left a widow
and a son who had migrated to Pakistan. The appellant,
desiring to know on what materials the notice was issued,
applied for copies of the materials on the basis of which
the respondent had formed his opinion. The application
was rejected by the respondent. The appellant filed a petition under Art. 226 of the Constitution in the High Court
which was also dismissed. The appellant obtained special
leave and contended that the notice was issued without
jurisdiction as there was no material before the respondent
to justify his issuing of the notice and that the application
for the copies had been improperly rejected by the respondent.
Held, that it was for the Custodian to form his opinion
on such material as was before him and on such information which he possessed. It is not for any Court to determine whether the information in the possession of the Custodian _was adequate to justify the issue of a notice under
s. 7 of the Act:
Held further, that the application for copies had been
rightly rejected. There are two stages in the process whereby any property can be declared to be evacuee property
under the Act. One is the issuing of the notice to persons
interested and the other is the inquiry under s. 7. The
proceedings ·commence after issue of the notice and not
S.C.R.
SUPREME COURT REPORTS
817
prior to it. A party to the proceedings will be entitled to
1957
copies of the record and evidence from the stage of the
lnayat UUalt
issuing of the notice until the conclusion of the enquiry but
v.
not previous to the issue of the notice.
The Custodian
. •
.
Evacuee Property

## Text

816
SUPREME COURT REPORTS
[19581
I9S1
the said trucks, additional proportionate costs both in
Dhian Singh sobha the Trial Court as well as in the High Court as also
Singh & Another the costs of this appeal, subject of course to the pay17ie Unlo~· of India ment of additional court-fee for the excess amount
BharwauJ.
awarded hereby. The whole of the decretal amount
as above will-carry further interest at the rate of 6%
per annum from this date till payment.
1957
October, 30
Appeal allowed.
INAYAT ULLAH
'V.
THE CUSTODIAN, EVACUEE PROPERTY
(BHAGWATI, JAFER IMAM and
GAJENDRAGADKAR "JJ.)
Evacuee pTOperty, Notificatwn of-Issue of notice by
Custodian on person interestec!.--Propriety, if can be determined by Court-Refusal of copies of materials by Custo-
. dia11r-Legality-Administration of Evacuee Property Act,
1950 (XXXI of 1950), s. 7.
The appellant and his brother owned certain properties
inherited from their father. The brother died and the
appellant claimed to have become the sole heir. The respondent issued a notice under s. 7 of the Administration of
Evacuee Property Act, 1950, in respect of the share of the
brother on the ground that the brother had left a widow
and a son who had migrated to Pakistan. The appellant,
desiring to know on what materials the notice was issued,
applied for copies of the materials on the basis of which
the respondent had formed his opinion. The application
was rejected by the respondent. The appellant filed a petition under Art. 226 of the Constitution in the High Court
which was also dismissed. The appellant obtained special
leave and contended that the notice was issued without
jurisdiction as there was no material before the respondent
to justify his issuing of the notice and that the application
for the copies had been improperly rejected by the respondent.
Held, that it was for the Custodian to form his opinion
on such material as was before him and on such information which he possessed. It is not for any Court to determine whether the information in the possession of the Custodian _was adequate to justify the issue of a notice under
s. 7 of the Act:
Held further, that the application for copies had been
rightly rejected. There are two stages in the process whereby any property can be declared to be evacuee property
under the Act. One is the issuing of the notice to persons
interested and the other is the inquiry under s. 7. The
proceedings ·commence after issue of the notice and not
S.C.R.
SUPREME COURT REPORTS
817
prior to it. A party to the proceedings will be entitled to
1957
copies of the record and evidence from the stage of the
lnayat UUalt
issuing of the notice until the conclusion of the enquiry but
v.
not previous to the issue of the notice.
The Custodian
. •
.
Evacuee Property
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
144 of 1956.
Appeal by special leave from the judgment and
order dated the 9th July, 1955, of the former Madhya
Bharat High Court.in Civil Misc. Case No. 27 of 1954.
M. A. Khan and Ratanaparkhi, for the appellant.
S. N. Bindra and R. H. Dhebar, for the respondent.
1957. October 30. The following Judgment of the
Court was delivered by
IMAM J.-This is an appeal by special leave against
the order of the Madhya Bharat High Court dated·
July 9, 1955, rejecting an application filed by the
appellant under Art. 226 of the Constitution.
According to the appellant, his father Habibullah
died more than twenty years ago leaving behind the
appellant and his brother Bashirullah as his sole heirs.
Habibullah, on his death, left immovable properties in
the city of Indore. Bashirullah, who was unmarried,
went mad in 1942 and died in 1950 without any issue.
On his death, the appellant became the sole owner of
all the properties left by his father Habibullah. On
September 21, 1954, the respondent purported to serve
on the appellant a notice under s. 7 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950),
hereinafter referred to as the Act. This notice was not
served on him and was never pasted on the property
concerned. Service of the notice was, according to the
appellant, not proper and therefore illegal.
The appellant desiring to know on what material
the notice under s. 7 of the Act was issued against him
applied on October 1, 1954, for copies of the record and
the evidence in the possession of the respondent on
the basis of which he formed the opinion that Bashirullah, at his death, had left behind a son Iqbal and a
wife Kamrunnissa who had migrated to Pakistan in
consequence of which the estate inherited by them
from Bashirullah became evacuee property. The
application was rejected by the respondent.
L2SC/61/PVI-6
Imam J.
818
SUPREME COURT REPORTS
U958l
1957
The appellant filed a petition under Art. 226 of the
J11ayat Ullah
Constitution in the Madhya Bharat High Court, which
Th c •·, d'
was dismissed by that Court. The High Court was of
Eva:.,."~~.;~~iy the opinion that two questions fell to be decided in the
Jmam J.
proceedings before it-(1) was the notice dated
September 21, 1954, issued by the respondent under
s. 7 of the Act, illegal and (2) was the refusal of the
respondent to supply to the appellant copies of the
record and the evidence in possession of the respondent
prior to the issue of notice under s. 7 of the Act unlawful ? Both these questions were decided against
the appellant.
The notice dated September 21, 1954, was issued
under s. 7 of the ·Act in accordance with the Rules
framed under s. 56 of the Act. Under s. 7 of the Act
the notice has to be given to persons interested in the
prescribed manner. Rule 6 of the Rules framed under
the Act requires the notice to be in Form I to be served
on persons interested in the property proposed to be
declared evacuee property. We have compared the
notice issued in the present case with Form I of the
Rules and can find no difference between them in
essential particulars. It was said that the notice in the
present case does not state the grounds upon which
the property concerned was proposed to be declared
evacuee property and Iqbal and Kamrunnissa
evacuees.
This
contention is without foundation
because the notice in question definitely states under
the heading "Grounds" that Iqbal and Kamrunnissa
migrated to Pakistan after March 1, 1947, on account
of the creation of the Dominions. The notice specifies
with sufficient clarity the particulars of the property
proposed to be declared evacuee property. There was
no reliable material to prove the assertion of the appellant that the notice was not properly served. We are,
accordingly, of the opinion that the notice in question
has not been proved to be illegal on account of contravention of any of the provisions of the Act or the
Rules made thereunder.
It was next contended that there was no material
before the respondent to justify his issuing the notice
and, therefore, the notice was issued without juris-
SUPREME COURT REPORTS
819
diction. Section 7 of the Act provides that where the
1957
Custodian is of the opinion that any property is an.
Inayat Ullah
evacuee property within the meaning of the. Act he
The c!;todiwi,
may, after causing notice thereof to be given in the Evacuee Property
prescribed manner to the persons interested and after
Imam J ..
holding such enquiry in the matter, as the circumstances of the case permitted, pass an order declaring
any such property to be evacuee property. It is for
the Custodian to form his opinion on such material, as
was before him, and on such information which he
possessed. The notice which he issued was in Form I
of the Rules framed under the Act and it stated clearly
that there was credible information in possession of
the respondent that Iqbal and Kamrunnissa were
evacuees and that the property specified in the notice
was evacuee property. It was for the respondent to
decide whether, on the information in his possession,
he should issue a notice under s. 7 of the Act. It is not
for this Court or any oth~r Court to determine whether
the information in possession of the respondent was
adequate· to justify the issuing of the notice.
The
contention on behalf of the appellant in this respect
cannot be supported on any valid ground.
It was next contended on behalf of the appellant
that when bona fides of the respondent had been
challenged in the High Court, that Court should have
sent for the record and seen for itself as to whether
there was any justification for the issue of the notice
under s. 7 of the Act. In our opinion, this contention
cannot prevail as there is no material on the record to
justify the accusation that the respondent acted with
mq.la fides in issuing the notice. The respondent was
free to believe or not to believe the information in his
possession. The mere issue of a not.ice would not make
the persons named therein evacuees or the property
mentioned therein evacuee property. That stage could
only be reached after the notice had been issued and
after the holding of such enquiry, as the circumstances of the case permitted, when an order declaring
the property to be evacuee property could be made in
respect of a person who was an evacuee, as defined in
820
SUPREME COURT REPORTS
Cl958J
1957
the Act. In our opinion, it was unnecessary for the
Jnayat Ullah
High Court to have called for the record and to have
77r• c=;rodlan, examined it for itself in order to ascertain whether
Evac""• Property the respondent was justified in issuing the notice.
Imam J.
We have now to consider whether the application
for copies filed by the appellant was improperly
rejected. On his behalf, it was contended that the
application for copies should have. been allowed as
s. 7 of the Act contemplates only one proceeding, from
the commencement to the end, including the stage
prior to the issue of notice, regarding the declaration
of any property as evacuee property and that that
proceeding is a judicial proceeding. Since the appellant was a party to the proceedings under s. 7 of the
Act, he was entitled to have copies of the record including the evidence which constituted the proceedings.
Reliance was placed on s. 49 of the Act, which states
that all records prepared or registers maintained under
the Act shall be deemed tg be public documents
within the meaning of the Indian Evidence Act
and shall be .Presumed to be genuine until the
contrary is proved. Reference was also made to s. 45
of . the Act which states that for the purpose of
holding an enquiry under the Act, the Custodian shall
have the same powers as are vested in a civil court
under the Code of Civil Procedure when trying a suit,
in respect of the following matters :
(a) enforcing the attendance of any person and
examining him on oath;
(b) compelling the discovery and production
of documents;
(c) any precribad matter;
and the enquiry by the Custodian shall be deemed .to
be· a judicial proceeding within the meaning of
ss. 193 and 228 of the Indian Penal Code and the
Custodian shall be deemed to be a court within the
meaning of ss. 480 and 482 of the Code of Ciminal
Procedure.
There can be little doubt that the
Custodian, while holding an enquiry under s. 7 of the
·Act is acting in a judicial capacity and that, by virtue
of Rule 35 of the Rules, any party to the enquiry
would be entitled to copies of any application,
S.C.R.
SUPREME COURT REPORTS
821
objection, petition, affidavit, or statement made by a
1957
party or a witness · and any other document. He
Inayat Ullah
would also be entitled to copies of the final original
The c".:stodian,
order passed by the Custodian or an order passed in Evacuee Proptrty
appeal, revision or review. The position, however, is
1,;;;;;J.
quite different with respect to the material in possession of the Custodian on which he formed his opinion
and on which he issued notice under s. 7, because at
that stage he was not holding an enquiry and was,
therefore, not acting in a judicial capac~ty. It is a
mis-conception . of the entire scheme of the Act to
suppose that an enquiry under s. 7 of the Act and
the issuing of a notice previous to the holding of that
enquiry is a single proceeding. When issuing a notice
under s. 7 the Custodian merely has some credible
information which, in his opinion, justifies him in
issuing it and thereafter to enquire into the matter
before making a declaration that the property is
evacuee property. That information may, after the
enquiry has· been concluded, turn out to be entirely
insufficient for making the required' declaration. In
our opinion, there are two stages in the process whereby any property can be declared to be evacuee property
under the Act. One. is the issuing of the notice to
persons interested and the other ·an enquiry under
s. 7 of the Act. The proceedings commence after the
issue of a notice and not previous to it. At the second
stage, a party to the proc.eedi11gs would be entitled
to copies of the record and the evidence from the
stage of the issuing of the notice until the conclusion
of the enquiry but not previous to the issue of the
notice.
In our opinion, the appellant would have
been well advised to have responded to the notice
issued to him and assisted the respondent in holding
the enquiry. The respondent would have had to consider all the material before him at the enquiry before
he declared the property in question evacuee property.
If the material in the enquiry was insufficient to justify such a declaration, the appellant had the right of
appeal against the order of the respondent. In our
opinion, the application of the respondent for copies
was rightly rejected by the respondent as he was not
822
SUPREME COURT REPORTS
[19581
1957
entitled to copies of the material before the respondent
lnayat Ullah
previous to the issuing of the notice under s. 7 of the
__ c'· d'
Act. The appeal, accordingly, fails and is dismissed
'ne usto oan,
'th
ts
EMl:ttee Property Wl
COS
.
Imam J.
1957
October, 31
Appeal dismissed.
LEO ROY FREY
v.
THE SUPERINTENDENT, DISTRICT JAIL,
AMRITSAR, AND ANOTHER
(and connected petition)
(S. R. DAS. C. J., VENKATARAMA AIYAR, S. K. DAS,
A. K. SARKAR and VIVIAN BosE JJ.)
Sea Customs_;_Award of confiscation and penaity-Ij a
bar to prosecution for criminal conspiracy-Sea Customs
Act, 1878 (VIII of 1878), ss. 167 (8), 186-Indian Penal Code
(Act XLV of 1860), s. 120B-Constitution of India, Art. 2()
(2).
•
The petitioners were found guilty under s. 167 (8) of the
Sea Customs Act and the currency and other goods recovered from their possession were confiscated and heavy personal penalties imposed on them by the Collector of Central Excise and Land Customs. Complaints were thereafter
lodged against them by the Customs authorities before the
Additional District Magistrate under s. 120B of the Indian
Penal Code, read with s. 23/23B of the Foreign Exchange
Regulations Act, 1947, and s. 167 (81) of the Sea Customs
Act, as also under other sections of the two latter Acts.
The Magistrate granted bail but they could not furnish the
requisite security and were, therefore, kept in judicial
custody. By two petitions under Art. 32 of the Constitution
they prayed for the issue of writs of certiorari and/or prohibition for quashing the proceedings pending against them
in the Court of the Magistrate as also for the issue of writs
of habeas corpus. It was contended on their behalf that in
view of the provision of Art. 20 (2) of the ~nstitution they
could not be prosecuted and punished twice over for the
same offence and the proceedings pending. before the Additional Magistrate violated the protection afforded by Art.
20 (2) of the Constitution.
He!d, that the contention was without substance and the
petitions must be dismissed.
The fact that in imposing confiscation and penalties
under s. 167 (8) of the Sea Customs Act, the Collector of