# DR. ZAFAR ALI SHAH AND OTHERS v. THE ASSISTANT CUSTODIAN OF EVACUEE PROPERTY, JHANSI AND OTHERS

- **Citation:** [1962] 1 S.C.R. 749
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Writ Petition No. 96 of 1959
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Raj Agopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-zafar-ali-shah-and-others-v-the-assistant-custodian-of-evacuee-property-2078
- **Pages:** 4

## Headnote

Evacuee Property-Declaration of-If could be made without
issuing of notice-Administration of Evacuee Property Act, r950
(3r of r950), s. 7-Displaced Persons (Compensation and Rehabilitation) Act, r954 (44 of r954), s. 12-Constituiion of India, Art.
r9(r) (j).
The Custodian of evacuee properties m1de a declaration
that two houses were evacuee properties. Notice under s. 7
of the Administration of Evacuee Property Act, 1950, which
initiated the proceedings resulting in the declaration had been
served on t\V"O persons as owners. These persons did not appear
and contest the proceedings. The petitioners claimed to be entitled to certain shares in the houses. No notice under s. 7 of
the Act had at any time been served on them and they had
never been declared evacuees. One of the petitioners filed an
appeal under the Act to the Custodian-General which was dismissed as time barred. The petitioners then filed a petition
under Art. 32 of the Constitution of India on the ground that
they were being wrongfully deprived of their shares in the
houses.
Held, that as no notice under s. 7 of the Act had been served on the petitioners, their shares in the houses had never
become evacuee property nor vested in the Custodian. The
petitioner who had filed the appeal did not thereby lose his
rights in the houses either as the appeal did not decide any
question as to such rights but was dismissed on the sole ground
that it was filed beyond the time prescribed for it. Strictly, no
appeal by him lay as he was not a party to the proceeding
resulting in the df'c1aration.
Section 12 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954, only affects the rights of an evacnee
in his property. The notification made under that section did
not have the effect of extinguishing the petitioners' rights in
the houses as they had never been declared evacuees.
Ebrahim Aboobaker v. Tek. Chand Dolwani, [1953] S.C.R. 69r,
referred to.
ORIGINAL JURISDICTION:
Writ Petition No. 96 of
1959.
Petition under Art. 32 of the Constitution of India
for enforcement of Fundamental Rights.
I96I
750
SUPREME COURT REPORTS
[1962J
196 1
S. Shaukat Hussain and P. C. Aggarwala, for the
-
.petitioners.
Zafar Ali Shah
.
v.
N. S. Bindra, R. H. Dhebar and T. M. Sen, for the
Assistant
respondents.
E Custodipan po! t
1961.
April 4.
The Judgment of the Court .was
vacuee
ro er y d j'
d b
e ivere
y
Sarkar ] .
SARKAR, J.-This is a petition raising a, question of
violation of the fundamental right to hold property
guaranteed by Art. 19 (1) (f) of the Constitution. It
arises out of an order made under the Administration
of Evacuee Property Act, 1950, declaring two houses
to be evacuee property.
What had happened was that sometime in September, 1951, two notices were issued under s. 7 of the
Act addressed respectively to Nusrat Ali and Fateh
Ali, requiring them to show cause why they should not
be declared evacuees and their properties, being the
two houses in dispute, to be evacuee property. Neither
of these two persons having appeared, a declaration
was made by the Custodian on January IO, 1952,
under that section that Nusrat Ali and Fateh Ali were
evacuees and the houses were evacuee property. Upon
such declaration the houses vested in the Custodian
under the provision of s. 8 of the Act and he took
possession of them.
These houses were the property
of one Khadim Ali who had never been declared an
eva,cuee and had died on or about October I, 1950,
leaving three sons and five daughters, who thereupon
became entitled to them in certain shares. Nusrat Ali
and Fateh Ali were two of the sons of Khadim Ali.
The Petitioners are his other son and two of his
daughters. No notice under s. 7 had at any time been
issued to them nor were they ever declared to be
evaouees. These facts are not in dispute.
The petitioners contend that they have been wrongly
deprived of their rights in th.e houses by the action of
the Custodian. They say that for a long time they
had no knowledge of the proceedings

## Text

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..
l S:C.R. SUPREME COURT REPORTS
749
DR. ZAFAR ALI SHAH AND OTHERS
v.
THE ASSISTANT CUSTODIAN OF EVACUEE
PROPERTY, JHANSI AND OTHERS
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJ AGOPALA AYYANGAR and J. R. MUDHOLKAR, J J.)
Evacuee Property-Declaration of-If could be made without
issuing of notice-Administration of Evacuee Property Act, r950
(3r of r950), s. 7-Displaced Persons (Compensation and Rehabilitation) Act, r954 (44 of r954), s. 12-Constituiion of India, Art.
r9(r) (j).
The Custodian of evacuee properties m1de a declaration
that two houses were evacuee properties. Notice under s. 7
of the Administration of Evacuee Property Act, 1950, which
initiated the proceedings resulting in the declaration had been
served on t\V"O persons as owners. These persons did not appear
and contest the proceedings. The petitioners claimed to be entitled to certain shares in the houses. No notice under s. 7 of
the Act had at any time been served on them and they had
never been declared evacuees. One of the petitioners filed an
appeal under the Act to the Custodian-General which was dismissed as time barred. The petitioners then filed a petition
under Art. 32 of the Constitution of India on the ground that
they were being wrongfully deprived of their shares in the
houses.
Held, that as no notice under s. 7 of the Act had been served on the petitioners, their shares in the houses had never
become evacuee property nor vested in the Custodian. The
petitioner who had filed the appeal did not thereby lose his
rights in the houses either as the appeal did not decide any
question as to such rights but was dismissed on the sole ground
that it was filed beyond the time prescribed for it. Strictly, no
appeal by him lay as he was not a party to the proceeding
resulting in the df'c1aration.
Section 12 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954, only affects the rights of an evacnee
in his property. The notification made under that section did
not have the effect of extinguishing the petitioners' rights in
the houses as they had never been declared evacuees.
Ebrahim Aboobaker v. Tek. Chand Dolwani, [1953] S.C.R. 69r,
referred to.
ORIGINAL JURISDICTION:
Writ Petition No. 96 of
1959.
Petition under Art. 32 of the Constitution of India
for enforcement of Fundamental Rights.
I96I
750
SUPREME COURT REPORTS
[1962J
196 1
S. Shaukat Hussain and P. C. Aggarwala, for the
-
.petitioners.
Zafar Ali Shah
.
v.
N. S. Bindra, R. H. Dhebar and T. M. Sen, for the
Assistant
respondents.
E Custodipan po! t
1961.
April 4.
The Judgment of the Court .was
vacuee
ro er y d j'
d b
e ivere
y
Sarkar ] .
SARKAR, J.-This is a petition raising a, question of
violation of the fundamental right to hold property
guaranteed by Art. 19 (1) (f) of the Constitution. It
arises out of an order made under the Administration
of Evacuee Property Act, 1950, declaring two houses
to be evacuee property.
What had happened was that sometime in September, 1951, two notices were issued under s. 7 of the
Act addressed respectively to Nusrat Ali and Fateh
Ali, requiring them to show cause why they should not
be declared evacuees and their properties, being the
two houses in dispute, to be evacuee property. Neither
of these two persons having appeared, a declaration
was made by the Custodian on January IO, 1952,
under that section that Nusrat Ali and Fateh Ali were
evacuees and the houses were evacuee property. Upon
such declaration the houses vested in the Custodian
under the provision of s. 8 of the Act and he took
possession of them.
These houses were the property
of one Khadim Ali who had never been declared an
eva,cuee and had died on or about October I, 1950,
leaving three sons and five daughters, who thereupon
became entitled to them in certain shares. Nusrat Ali
and Fateh Ali were two of the sons of Khadim Ali.
The Petitioners are his other son and two of his
daughters. No notice under s. 7 had at any time been
issued to them nor were they ever declared to be
evaouees. These facts are not in dispute.
The petitioners contend that they have been wrongly
deprived of their rights in th.e houses by the action of
the Custodian. They say that for a long time they
had no knowledge of the proceedings taken under the
Act in respect of the houses and when they came to
know of the order of the Custodian, they took various
steps to protect their rights but were unsuccessful.
•
•
..
•
I KC.R. SUPREME COURT REPORTS
751
One of such steps appears to have been an appeal
'96'
·preferred by the male petitioner on behalf of all the Zafa' Ali shah
petitioners to the Custodian-General against the order
v.
of January 10, 1952. On this appeal being rejected,
Assistant
· they moved this Court by the present petition.
Custodian °!
The question is whether the Custodian was entitled Eva'"''_!:-"P"1Y
to declare the entirety of the two houses evacuee
·""'""' J.
property and deprive the petitioners of their rights in
them. It is well established and not di~puted, that no
property of any person can be declared to be evacuee
property unless that person had first been given a
notice under s. 7 of the Act: see Ebrahim Aboobaker v.
Tek Chand Dolwani (1).
Admittedly, no such notice
had been issued to the petitioners. Their interest in
the houses, therefore, could not have vested in the
Custodian.
Learned counsel for the respondents, the officers
concerned with evacuee properties, concedes that so
far as the female petitioners were concerned, their
interest could not in any way be affected by the order
made under s. 7 of the Act. He however contends
that the male petitioner, Zafar Ali, having filed the
appeal to the Custodian-General against the order of
January 10, 1952, he personally at least, is bound by
the order dismissing the appeal, that order being a
quasi-judicial decision. It is said that he cannot, therefore, maintain this petition.
.
We do not think that this contention is well founded.
Zafar Ali was not a party to the proceeding in which
the order in dispute had been. made. Strictly speaking
no appeal by him against that order lay or was neces'.
sary. Then again the appeal did not decide any
question as to the right of Zafar Ali to the houses for,
it was dismissed on the sole ground that it had· been
filed beyond the time prescribed for it. There was no
judicial determination by the Custodian-General of
any fact affecting Zafar Ali's right in the houses.
If,
as was conceded, Zafar Ali's share in the houses could
not vest in the Custodian without due notice to him,
then we are unable to appreciate how the position
becomes different because Zafar Ali filed an appeal
(1) [1953] S.C.R. 691, 7oz.
752
SUPREME COURT REPORTS
[1962]
r96r
which was dismissed as time barred and which he
need never have filed at all. The order of January 10,
Zafnr Ali Shah
v.
1952, was without jurisdiction so far as Zafar Ali's
Assistant
share in the house was concerned, and it remained so
Custodian of
in spite of the appeal.
Evacuee Projmtv
In our view, the appeal furnishes no answer to the
claim made in the petition. As no notice had been
Sarllar ],
.
d
J
d
h
ISsue to tie petitioners un er s. 7, t eir interest in
the two houses never vested in the Custodian. The
acts of the Custodian in so far as they deprive the
petitioners of their property cannot be upheld.
It was also said on behalf of the respondents that
the properties had already been acquired under the
Displaced Persons (Compensation and Rehabilitation)
Act, 1954, and therefore the petitioners had, no longer,
any claim to them. Sub-section (2) of s. 12 of this Act
provides that "On the publication of a notification
under sub-section (1), the right, title and interest of
any evacuee in the evacuee property specified in the
notification shall, on and from the beginning of the
date on which the notification is so published, be
extinguished and the evacuee property shall vest
absolutely in the Central Government free from all
encumbrances." It was said that a notification mentioned in this section had been issued. It seems to us
that this section does not affect the petitioners' rights.
It only affects the rights of an evacuee which the
petitioners, on the admitted facts, are not.
We may mention here that the petitioner Zafar Ali
claims that his father left a will giving him a larger
share in the houses than he would have got on intestacy. We are not concerned in this case with his
rights under the will, if any, and say nothing about
them.
In the result, we allow the petition and set aside
the order of January 10, 1952, in so far as it affected
the rights of the petitioners in the properties concerned.
There will be no order as to costs.
Petition allowed.
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