# GORKHA RAM AND OTHERS v. THE CUSTODIAN GENERAL OF

- **Citation:** [1962] 2 S.C.R. 151
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 340of1958
- **Bench:** K. Subba Rao, Raghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gorkha-ram-and-others-v-the-custodian-general-of-2242
- **Pages:** 9

## Headnote

Evacuee Property-Moslem non-proprietor migrating to Pakistan-Village dwelling house, if vests in Custodian-· Administration
of Evacuee Property Act, r950 (]I of r950), s. I8(r)-V illage
wajib-u!-arz.
The wajib-ul-arz of village Buland, teshil and district
Rohtak, provided as follows:-
"No non-proprietor can settle in the village or build a
house without the consent of the owner of the estate. Whenever anybody settles, he obtains land or house from the proprietor of the same and he can live there so long as he pleases.
Whenever he abandons the village, if the house belongs to the
Shamlat of.. .......... lt falls into the possession of the proprietor ......... About the houses of non-proprietors ......... tbere is no
customary righ_t to ~ell or mortgage residential houses, remove
the material or build burnt brick house without the consent of
the proprietor ......... If any person dies heir less his house reverts
April 2z.
152
SUPREME COURT REPORTS
[1962]
1961
to the possession, of the proprietor of the estate in which it is
situate", and mentioned the mendicants as a type of non-proGorkha Ram
prietors settled in the village. One F, a Muslim belonging to
v.
that class, migrated to Pakistan. The appellants, who were
Custodian General proprietors, took possession of his dwelling house. The Custoof India, Delhi dian of Evacuee Property claimed it as evacuee property. The
appellants' objection was finally dismissed by the Custodian
General who held that the house was evacuee property and
vested in the Custodian. The High Court dismissed the appellants' petition under Art. 226 of the Constitution holding that
the right of a non-proprietor to occupy a village site was a right
in property and vested in the Custodian when the non-proprietor
became an evacuee. In this Court, while the appellants relied
on the wajib-ul-arz, on behalf of the respondents reliance
was placed on s. 18 of the Administration of Evacuee Property Act.
Raghubar
JJayal ].
Held, that s. 18(1) of the Administration of Evacuee Property Act, 1950, contemplated tenants, whether occupancy
tenants or tenants for a certain time and applied only to the
occupancy rights of a tenant. Under the wajib-ul-arz, however,
a non-proprietor could have no such right in the site occupied
by him as would make him a tenant of it.
Section l8(r) of the Act, therefore, had no application and
the house in question reverted to the proprietors under the provisions of the wajib-ul-arz when the non-proprietor abandoned
the village and migrated to Pakistan. It could not, therefore,
vest in the Custodian.
It was not correct to say that under the wajib-ul-arz that
F's interest in the house was that of a lessee.
· Associated Hotels of India v. R. N. Kapur, [1960] l S.C.R.
368, held inapplicable,
CIVIL
APPELLATE
JURISDICTION: Civil
Appeal
No. 340of1958.
Appeal by special leave from the Judgment and
Order dated July 3, 1953, of the Punjab High Court
in Civil Writ Application No. 256 of 1952.
Jwala Parshad Chopra and J. K. Hiranandani, for
the appellants.
Nanak Chand, R.H. Dhebar and T. M. Sen, for respondents Nos. 1 to 3.
1961. April 21. The Judgment of the Court was
delivered by
RAGHUBAR DAYAL, J.-This appeal, by special
leave, is against the order of the Punjab High Court
2 S.C.R. SUPREME COURT REPORTS
153
dismissing the petition of the appellants under
r96r
Ardt. 226fofhthCe Conds~itution praying for quashing
9
the
G°'kha Ram
or ers o t e usto tan General, dated June 17, 1 52.
v.
The appellants and respondents Nos. 4 and 5 are custodian General
residents of village Ealand, Tehsil and District Rohtak, of India, DetM
and are members of the body of proprietors of that
village.
The village Ealand is divided between three
Raghubar
Th
l
k
Dayal ].
estates.
e p ot in suit is in the estate nown as
'Earsan'. One Fakira, a mendicant and a non-proprietor, had his house on the plot in suit. In January,
1950, the Custodian of Evacuee Property issued a
notice under s. 7 of the Administration of Evacuee
Property

## Text

2 S.C.R. SUPREME COURT REPORTS
151
contains a non obstante clause on the same lines as
I96I
s. 38 of the Rent Control Act.
The result therefore
would be that the provisions of the special enactment, Jyoti Pershad
as the Act is, will in respect of the buildings in areas Adminis;;ator fo•
declared slum areas operate in addition to the Rent n, Union Terri·
Control Act. The argument therefore that the Act is
'°'Y of Delhi
inapplicable to buildings covered by the Rent Control
Act is without substance, particularly when it is seen
Ayyangar J.
that it is only when a decree for eviction is obtained
thats. 19 of the Act comes into play.
We therefore consider that none of the points urged
in support of the petition has any substance. The
petitions fail and are dismissed.
In the circumstances of the case there will be no order as to costs.
Petitions dismissed.
GORKHA RAM AND OTHERS
v.
THE CUSTODIAN GENERAL OF
INDIA, DELHI
(K. SUBBA RAO, RAGHUBAR DAYAL and
J. R. MUDHOLKAR, JJ.)
Evacuee Property-Moslem non-proprietor migrating to Pakistan-Village dwelling house, if vests in Custodian-· Administration
of Evacuee Property Act, r950 (]I of r950), s. I8(r)-V illage
wajib-u!-arz.
The wajib-ul-arz of village Buland, teshil and district
Rohtak, provided as follows:-
"No non-proprietor can settle in the village or build a
house without the consent of the owner of the estate. Whenever anybody settles, he obtains land or house from the proprietor of the same and he can live there so long as he pleases.
Whenever he abandons the village, if the house belongs to the
Shamlat of.. .......... lt falls into the possession of the proprietor ......... About the houses of non-proprietors ......... tbere is no
customary righ_t to ~ell or mortgage residential houses, remove
the material or build burnt brick house without the consent of
the proprietor ......... If any person dies heir less his house reverts
April 2z.
152
SUPREME COURT REPORTS
[1962]
1961
to the possession, of the proprietor of the estate in which it is
situate", and mentioned the mendicants as a type of non-proGorkha Ram
prietors settled in the village. One F, a Muslim belonging to
v.
that class, migrated to Pakistan. The appellants, who were
Custodian General proprietors, took possession of his dwelling house. The Custoof India, Delhi dian of Evacuee Property claimed it as evacuee property. The
appellants' objection was finally dismissed by the Custodian
General who held that the house was evacuee property and
vested in the Custodian. The High Court dismissed the appellants' petition under Art. 226 of the Constitution holding that
the right of a non-proprietor to occupy a village site was a right
in property and vested in the Custodian when the non-proprietor
became an evacuee. In this Court, while the appellants relied
on the wajib-ul-arz, on behalf of the respondents reliance
was placed on s. 18 of the Administration of Evacuee Property Act.
Raghubar
JJayal ].
Held, that s. 18(1) of the Administration of Evacuee Property Act, 1950, contemplated tenants, whether occupancy
tenants or tenants for a certain time and applied only to the
occupancy rights of a tenant. Under the wajib-ul-arz, however,
a non-proprietor could have no such right in the site occupied
by him as would make him a tenant of it.
Section l8(r) of the Act, therefore, had no application and
the house in question reverted to the proprietors under the provisions of the wajib-ul-arz when the non-proprietor abandoned
the village and migrated to Pakistan. It could not, therefore,
vest in the Custodian.
It was not correct to say that under the wajib-ul-arz that
F's interest in the house was that of a lessee.
· Associated Hotels of India v. R. N. Kapur, [1960] l S.C.R.
368, held inapplicable,
CIVIL
APPELLATE
JURISDICTION: Civil
Appeal
No. 340of1958.
Appeal by special leave from the Judgment and
Order dated July 3, 1953, of the Punjab High Court
in Civil Writ Application No. 256 of 1952.
Jwala Parshad Chopra and J. K. Hiranandani, for
the appellants.
Nanak Chand, R.H. Dhebar and T. M. Sen, for respondents Nos. 1 to 3.
1961. April 21. The Judgment of the Court was
delivered by
RAGHUBAR DAYAL, J.-This appeal, by special
leave, is against the order of the Punjab High Court
2 S.C.R. SUPREME COURT REPORTS
153
dismissing the petition of the appellants under
r96r
Ardt. 226fofhthCe Conds~itution praying for quashing
9
the
G°'kha Ram
or ers o t e usto tan General, dated June 17, 1 52.
v.
The appellants and respondents Nos. 4 and 5 are custodian General
residents of village Ealand, Tehsil and District Rohtak, of India, DetM
and are members of the body of proprietors of that
village.
The village Ealand is divided between three
Raghubar
Th
l
k
Dayal ].
estates.
e p ot in suit is in the estate nown as
'Earsan'. One Fakira, a mendicant and a non-proprietor, had his house on the plot in suit. In January,
1950, the Custodian of Evacuee Property issued a
notice under s. 7 of the Administration of Evacuee
Property Ordinance No. XXVII of 1949, stating that
the appellants were in unauthorised possession of the
house of Fakira, a Muslim evacuee, and that they
should either vacate the house or show cause to the
contrary. The appellants filed their objections to the
notice. The Deputy Custodian of Evacuee Property,
by his order dated September 3, 1950, rejected the
objections raised by the appellants and declared the
house to be 'evacuee property'. The Deputy Custodian
passed this order after he got an enquiry made through
the Revenue Assistant (Rehabilitation). The appellants went in appeal to the Additional Custodian,
Evacuee Property, who got further enquiry made to
ascertain whether Mumtaz, son of Fakira, evacuee,
had been in occupation of the house up to the date of
the migration of the Muslims as a result of the partition. This enquiry revealed that Mumtaz had continued to reside in the village Ealand and that a son
was born to him in July, 1947. The Additional Custodian therefore agreed with the report and the order of
the Deputy Custodian that the property in suit was
evacuee property. The appellants then filed a revision
before the Custodian General. It was dismissed on
June 17, 1952. The Custodian General observed that
there was mo~e than sufficient evidence to establish
that Mumtaz continued to be in possession of the house
in dispute up to July, 1947.
Thereafter, the appellants filed a writ petition in the
High Court "challenging the legality of the order of the
20
154
SUPREME COURT REPOliTS
[1962]
r96r
Deputy Custodian on the grounds that the Deputy
Gorkha Ram
Custodian gave no notice or opportunity to them to
v.
meet the case and that the Custodian had no jurisdicCustodian c,ne.aztion in the matter in view of the provisions of the wajibof India, Ddhi ul-arz accorr!ing to which the house of a non-proprietor,
Raghubar
Dayal J.
on his leaving tho village, vested in the proprietory
body. The learned Siugle Judge who heard the petition
held that the provisions of the Administration of the
Evacuee Property Act, 1950 (Act XXXI of 1950), had
been complied with throughout and referred the question whether tho site occupied by a non-proprietor
vested or not in the Custodian after the occupier had
abandoned it., to a larger Bench in view of his opinion
that the decision of a.nother Single Judge in Jot,:
Parshad v. Bhau·ani Lal required re-consideratim
The Division Bench then decided this question an«
held the right of a non-proprietor to occupy a village
site was a right in property, though it might not be
an interest in property and that this right vested in
the Custodian if the non-proprietor left the country
and became an evacuee. The writ petition was accordingly dismissed and it is against this order that this
appeal has been filed.
The sole question for determination in this case is
whether Fakira had any such right in the property in
suit which could vest in the Custodian on Fakira or
his son Mumta" becoming an evacuee. The case for
the appellants is that Fakira had no such right which
could vest in the Custodian both on account of the
terms of the wajib-ul-arz and on account of his being a
licensee. The respond<mts rely on s. 18 of the Administration of Evacuee Property Act to rebut this contention. It is necessary therefore to determine the scope
of s. 18 of the Act.
Section 18, as originally enacted, was substituted by
s. 8 of Act XI of 1953, which provided that the substituted section shall be deemed always to have been
substituted for the original section. Thus the present
section must be deemed to be the section existing from
the commencement of this Act. Sub-section (1) of
s. 18 is:
"(l) \Vhcre the rights of an evacuee in any land
••
2 S.C.R.
SUPREME COURT REPORTS
155
or in any house or other building consist or consisted
I96I
of occupancy rights, nothing contained in any law for
Gorhha Ram
the time being in force or in any instrument having
v.
the force of law or in any decree or order of any court, cu,todian General
shall extinguish or be deemed to have extinguished
01 India, Delhi
any such rights either on the tenant becoming an evaRaghubar
cuee within the meaning of this Act or at any time
Dayal j.
thereafter so as to prevent such rights from vesting
in the Custodian under the provision of this Act or
to prevent the Custodian from exercising all or any
of the powers conferred on him by this Act in
respect of any such rights, and, notwithstanding
anything containd in any such law, contract, instrument, decree, or order, neither the evacuee nor the
Custodian, whether as an occupancy tenant or as a
tenant for a certain time, monthly or otherwise, of
any land or house or other building shall be liable
to be ejected or be deemed to have become so liable
on any ground whatsoever for any default of
(a) the evacuee committed after he became an
evacuee or within a period of one year immediately
preceding the date of his becoming an evacuee; or
(b) the Custodian."
The expression 'occupancy rights' has not been defined
in the Act. It is these occupancy rights which are
not extinguished in spite of the provisions to the
contrary in any other law or in any instrument having
the force of law or in any decree or order of the Court.
The occasion when they will not be extinguished
would be when a tenant becomes an 'evacuee' within
the meaning of the Act, or thereafter. It follows that
sub-s. (1) of s. 18 provided for the non-extinguishment
of those occupancy rights which would have been
extinguished otherwise on the tenant's becoming an
evacuee and that therefore the person having such
rights must be a tenant. If he is not a tenant, then
the occasion contemplated by sub-s. (1) ofs. 18, for the
application of its provisions, does not arise. This is
further clear from the latter part of this sub-section
which provides that notwithstanding anything contained in any law etc., nPither the evacuee nor the
Custodian, whether as an occupancy tenant or as a
156
SUPREME COURT REPORTS
[1962]
x96x
tenant for a certain time, shall be liable to be ejected
or be deemed to have become so liable on any ground
Gorkha Raa\
h t
r
d f [
Th' 1
1
w a soever 1or any
e au t.
is atter part a so
Custodia: General makes it clear that the persons contemplated by the
of India, Delhi section are the tenants, whether occupancy tenants or
tenants for a certain time. We therefore hold that the
Raghnbar
provisions of s. 18 apply to the occupancy rights of a
Dayal 1·
tenant.
The next question to determine is whether Fakira
was a tenant of this house. It is clear that Fakira
who resided in the house in suit, was not a tenant of
it. He occupied the site and probably built the house
himself on getting the necessary permission from the
proprietors.
W"ith respect to non.proprietors, the wajib-ul-arz of
the village states:
"No non-proprietor can settle in the village or
build a house without the consent of the owner of
the estate. Whenever anybody settles, he obtains
land or house from the proprietor of the same and
he can live there so long as he pleases. Whenever
he abandons the village, if the house belongs to the
Shamlat of.. .... it falls into the possession of that
proprietor ...... About the houses of non-proprietors
...... there is no customary right to seU or mortgage
residential houses, remove the material or build
burnt brick house without the consent of the proprietor ...... If any person dies heirless his house
reverts to the possession of the proprietor of the
estate in which it is situate."
The mendicants are mentioned as one of the types of
non-proprietors settled in the Shamlat of the estate.
It is clear from these provisions that .Fakira, a nonproprietor, had no such right in the site as would
make him a tenant of it. He just had a right to
occupy it and build a house which was, however,
heritable and transferable only with the consent of
the proprietor.
It follows, therefore, that the provisions of sub-s.
(1) of.s. 18, do not apply to Fakira's rights in the plot
in suit and cannot therefore over-ride the provisions
of the wajib-ul-arz according to which his right to
1
2 S.C.R. SUPREME COURT REPORTS
157
reside in the house in suit came to an end when he
'96'
abandoned the village on his migrating to Pakistan.
Gorkha Ram
Learned counsel for the respondent has further conv.
tended that apart from s. 18 of the Act, Fakira's right Cus<odian General
to residence in the house in suit will vest in the of India, D1lhi
Custodian as his migrating from the village to Pakis-
.
d
b
d
Raghubar
tan on partition
oes not amount to a an onment
Dayal J.
contemplated by the provisions of the wajib-ul-arz.
It is submitted that the . wajib-ul-arz contemplates
voluntary abandonment and not abandonment under
force.
We find it difficult to accept this contention.
The abandonment is voluntary, though the volition to
abandon arises on account of circumstances over
which Fakira had no control. He left the village and
migrated to Pakistan because he thought that to be
the better thing to do.
This point was also not taken
before the High Court.
Reliance is placed on the case reported as Associated
Hotels of India v. R. N. Kapoor (1) for supporting the
contention that Fakira was a lessee of the land in
suit and not a licensee. . We do not think this case
supports the contention. The following propositions
were laid down in that case for determining whether
a document creates a licence or a lease:
(1) To ascertain whether a document creates a
licence or lease, the substance of the document must
be preferred to the form.
(2) The real test is the intention of the parties
whether they intended to create a lease or a licence.
(3) If the document creates an interest in the property, it is a lease, but, if it only permits another to
make use of the property, of which the legal possession continues with the owner, it is a licence, and
(4) If under the docnment a party gets exclusive
possession of the property, prima facie, he is considered to be a tenant, but circumstances may be
established which negative that intention to create
a lease.
The terms of the wajib-ul-arz, already mentioned,
make it clear that no interest in the site on which
Fakira was settled was given to Fakira by the proprietors of the village. He was just granted a heritable
(1) [1060]:1 S.C.R. 368, 385,
158
SUPREME COURT REPORTS
(1962]
'96'
right to occupy it for residence. The house reverted
Gorkha Ram
to the possession of the proprietors if he died heirless.
v.
Learned counsel for the respondent has drawn our
Custodian Gen•('" attention to the observation in the above case to the
of India, Delhi effect:
Raghubar
Dayal ].
"The right of the respondent to transfer his
interest under the document, although with the consent of the appellants, is destructive of any theory
of licence."
This observation does not help the respondent's case
because no interest was created in Fakira and therefore no question of his transferring that interest arises.
The wajib-ul-arz only expresses this much, that there
was no customary right to sell or mortgage residential
houses, remove the material or build burnt brick
houses without the consent of the proprietors. It does
not say that the non-proprietor can transfer his
residential right to any one with or without the consent of the proprietor. We therefore do not agree
with this contention.
It has also been contended for the respondent that
the licensee's rights which Fakira had, could vest in
the Custodian, as they come within the meaning of
the expression 'property'. Even if they do, those
rights get extinguished in view of the provisions of
the wajib-ul-arz and therefore there could be no vesting of those rights in the Custodian if the vesting of
those rights is not prevented on account of the applicability of s. 18 of the Act.
We have already held
that s. 18 does not apply as Fakira was not a tenant.
The expression 'evacuee property' as it stood in the
Act till its amendment in 1953, meant any property
in which an evacuee had any right or interest, whether personal or as a trustee or as a beneficiary or in
any other capacity and included any property etc.
Fakira had no right in any capacity in the property
in suit when the Administration of Evacuee Property
Act came into force in 1950, and. therefore the property in suit could not have been 'evacuee property'.
Lastly, we do not find any support in tha provisi?ns
of the wajib-ul-arz or in any law for the observat10n
in the judgment of the Court below:
.
'
2 s.c.tt. SUPREME COUR'I' REPORTS
159
"Were the evacuee to come back he could demand
196 1
to take possession of the site, and so it cannot be
G kh
8
said that the right has ceased to exist. The right
0
'
:.
am
ceases only if the OCC)lpier leaves the village perma. custodian Gen.,al
nently with no intention of returning,. .. "
of India. Delhi
It was nobody's case that Fakira and his son had left
Raghubat'
the village temporarily and were to return. lt was
Dayal ;.
said in paragraph 5 of the written statement of
respondents 1 to 3 that Fakira abandoned the house
only in 194 7 at the time of partition. The entire case
was that Fakira had migrated to Pakistan and had
abandoned the village.
We are therefore of opinion that Fakira did not
possess any such right in the land in suit which could
vest in the Custodian and that therefore the property
in suit is not 'evacuee property'. We therefore allow
the appeal with costs throughout and, setting aside
the order of the Court below, allow the petition and
quash the order of the Custodian General dated June
17, 1952, declaring the property in suit to be evacuee
property.
Appeal allowed.
SHAH BHOJRAJ KUVEI~JI.OIL MILLS
AND GINNING FACTORY
v.
SUBBASH CHANDRA YOGRAJ SINHA
(S. K. DAS, J. L. KAPUR, M. HIDAYATULLAH,
J. 0. SHAH and T. L. VENKATARAMA AIYAR, JJ.)
Rent Control-Landlord's right to recover possession-Statutory bar-If prospective or retrospective in operation -
Bombay
Rents. Hotel and Lodging House Ratvs Control Act, I947 (Bom. 57
of I947), SS. 6, I2(I).
On the expiry uf the appellant's tenancy for the occupation
of the premises-in dispute, the respondent who was the landlord
filed a suit for possession of the premises. Meanwhile under s. 6
of the Bombay Rents, Hotel and Lodging House Rates Control
Ig6I
Ap,.il 2I.