# Md. SHARFUDDIN v. R. P. SINGH AND OTHERS

- **Citation:** [1962] 1 S.C.R. 239
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 458 of 1958
- **Bench:** K. SuBBA RAO, Raghubar Dayal, R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/md-sharfuddin-v-r-p-singh-and-others-2004
- **Pages:** 7

## Headnote

Appeal-Person aggrieved-Property held to be not evacuee property-Whether Assistant Custodian can prefer appeal against order
-Administration of Evacuee Property Act, r950 (Jr of r950),
s. 24(r)(a).
The Assistant Custodian, Giridih, passed an order holding
that the properties of the appellant were not evacuee properties.
The Custodian, acting under s. 26(1) of the Administration of
Evacuee Property Act, 1950, called for the records of the case,
and after hearing the appellant dropped the proceedings. Subsequently, the Assistant Custodian, Head-quarters, Patna, filed an
appeal before the Custodian under s. 24(1)(a) of the Act, against
the order of the Assistant Custodian, Giridih. In appeal the
Custodian declared the shares of the brothers of the appellant in
the property to be evacuee property and referred the matter for
separation of their shares. The appellant contended that no
appeal lay under s. 24(1)(a) at the instance of the Assistant
Custodian, Head-quarters.
Held, that the appeal filed by the Assistant Custodian, Headquarters was incompetent. The Assistant Custodian, Headquarters, was not a 'person aggrieved' within the meaning of s. 24
of the Act, by the order of the Assistant Custodian, Giridih, and
he could not prefer an appeal.
Ebrahim Aboobakar v. Custodian-General of Evacuee Property,
[1952] S.C.R. 696, distinguished.
.
Crvn. APPELLATE JURISDICTION:
Civil Appeal No.
458 of 1958.
Appeal by special leave from the judgment and
decree dated September 3, 1956, of the Patna High
Court in M. J. No. 603 of 1955.
M. K. Ramamurthi, R. K. Garg, S. 0. Agarwal and
D. P. Singh, for the appellant.
R. O. Prasad, for the respondents.
1961. March 10. The Judgment of the Court was
delivered by
March IO,
SUBBA RAO, J.-This appeal by special leave is
Subb• Rao J.
directed against the order of the High Court of Judicature at Patna dismissing the application filed by the
1961
Md. Sharfuddin
v.
R. P. Singh
& Others
Subba Rao ].
240
SUPREME COURT REPORTS
[1962]
appellant under Art. 226 of the Constitution to quash
the order dated August 4, 1955, passed by Shri R. P.
Singh, Custodian of Evacuee Property, Bihar.
.
The facts relevant to the question raised in this
appeal may be briefly stated.
On information supplied by one Qurban Ahmad, the Assistant Custodian,
Giridih, issued a notice under s. 7(1) of the Administration of Evacuee Property Act, 1950 (Act 31 of
1950), (hereinafter called the Act), to the appellant to
show cause why he should not declare holdings Nos.
326, 77 4 and 654 in his possession as evacuee properties.
Tho Assistant Custodian, after making the
necessary 'inquiry, held that the said holdings were
evacuee properties.
The appellant filed a revision
petition under s. 26 of the Act against the said order
to the Deputy Custodian, Hazaribagh, who set aside
the order of the Assistant Custodian and remanded
the matter to him for disposal in accordance with
law. On April 26, 1954, the Assistant Custodian,
Giridih, on a consideration of the evidence placed
before him, held that the said properties were not
evacuee properties, and on that finding he released
them. Thereafter, the Custodian, acting under s. 26(1)
of the Act, called for the records of the case and, after
hearing the appellant, by his order dated January 27,
1955, dropped the proceedings. On February 22, 1955,.._
the Assistant Custodian, Head-quarters, Patna filed an
appeal before the Custodian, under s. 24(l)(a) of the
Act, against the order of the Assistant Custodian,
Giridih, dated April 26, 1954, releasing the holdings of
the appellant.
On August 4, 1955, the Custodian set
aside the order. of the Assistant Custodian, Giridih,
and declared the shares of the brothers of the appellant in the holdings to be evacuee properties and
referred the matter to the appropriate authority for
the separation of their interest.
Thereafter, the
appellant filed an application to the High Court
under Art. 226 of the Constitution to quash the said
order, but that was dismissed.
Hen

## Text

P_.
·-
l S.C.R. SUPREME COURT REPORTS
239
Md. SHARFUDDIN
v.
R. P. SINGH AND OTHERS.
(K. SuBBA RAO, RAGHUBAR DAYAL and
J, R. MUDHOLKAR, JJ.)
Appeal-Person aggrieved-Property held to be not evacuee property-Whether Assistant Custodian can prefer appeal against order
-Administration of Evacuee Property Act, r950 (Jr of r950),
s. 24(r)(a).
The Assistant Custodian, Giridih, passed an order holding
that the properties of the appellant were not evacuee properties.
The Custodian, acting under s. 26(1) of the Administration of
Evacuee Property Act, 1950, called for the records of the case,
and after hearing the appellant dropped the proceedings. Subsequently, the Assistant Custodian, Head-quarters, Patna, filed an
appeal before the Custodian under s. 24(1)(a) of the Act, against
the order of the Assistant Custodian, Giridih. In appeal the
Custodian declared the shares of the brothers of the appellant in
the property to be evacuee property and referred the matter for
separation of their shares. The appellant contended that no
appeal lay under s. 24(1)(a) at the instance of the Assistant
Custodian, Head-quarters.
Held, that the appeal filed by the Assistant Custodian, Headquarters was incompetent. The Assistant Custodian, Headquarters, was not a 'person aggrieved' within the meaning of s. 24
of the Act, by the order of the Assistant Custodian, Giridih, and
he could not prefer an appeal.
Ebrahim Aboobakar v. Custodian-General of Evacuee Property,
[1952] S.C.R. 696, distinguished.
.
Crvn. APPELLATE JURISDICTION:
Civil Appeal No.
458 of 1958.
Appeal by special leave from the judgment and
decree dated September 3, 1956, of the Patna High
Court in M. J. No. 603 of 1955.
M. K. Ramamurthi, R. K. Garg, S. 0. Agarwal and
D. P. Singh, for the appellant.
R. O. Prasad, for the respondents.
1961. March 10. The Judgment of the Court was
delivered by
March IO,
SUBBA RAO, J.-This appeal by special leave is
Subb• Rao J.
directed against the order of the High Court of Judicature at Patna dismissing the application filed by the
1961
Md. Sharfuddin
v.
R. P. Singh
& Others
Subba Rao ].
240
SUPREME COURT REPORTS
[1962]
appellant under Art. 226 of the Constitution to quash
the order dated August 4, 1955, passed by Shri R. P.
Singh, Custodian of Evacuee Property, Bihar.
.
The facts relevant to the question raised in this
appeal may be briefly stated.
On information supplied by one Qurban Ahmad, the Assistant Custodian,
Giridih, issued a notice under s. 7(1) of the Administration of Evacuee Property Act, 1950 (Act 31 of
1950), (hereinafter called the Act), to the appellant to
show cause why he should not declare holdings Nos.
326, 77 4 and 654 in his possession as evacuee properties.
Tho Assistant Custodian, after making the
necessary 'inquiry, held that the said holdings were
evacuee properties.
The appellant filed a revision
petition under s. 26 of the Act against the said order
to the Deputy Custodian, Hazaribagh, who set aside
the order of the Assistant Custodian and remanded
the matter to him for disposal in accordance with
law. On April 26, 1954, the Assistant Custodian,
Giridih, on a consideration of the evidence placed
before him, held that the said properties were not
evacuee properties, and on that finding he released
them. Thereafter, the Custodian, acting under s. 26(1)
of the Act, called for the records of the case and, after
hearing the appellant, by his order dated January 27,
1955, dropped the proceedings. On February 22, 1955,.._
the Assistant Custodian, Head-quarters, Patna filed an
appeal before the Custodian, under s. 24(l)(a) of the
Act, against the order of the Assistant Custodian,
Giridih, dated April 26, 1954, releasing the holdings of
the appellant.
On August 4, 1955, the Custodian set
aside the order. of the Assistant Custodian, Giridih,
and declared the shares of the brothers of the appellant in the holdings to be evacuee properties and
referred the matter to the appropriate authority for
the separation of their interest.
Thereafter, the
appellant filed an application to the High Court
under Art. 226 of the Constitution to quash the said
order, but that was dismissed.
Hence the appeal.
Though many questions were raised before the
High Court, only the following four questions were
pressed before us by learned counsel for the_appellant·
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r
\
1 s.c.R. SUPREME COURT REPORTS
241
(1) No appeal lay to the Custodian from the order of
r96z
the Assistant Custodian, Giridih, at the instance of Md 5-;-1
dd.
the Assistant Custodian, Headquarters, Patna. (2)
· :.' u
rn
Uμder s. 7-A of the Act the Custodian has no power
R. P. Singh
after May 7, 1954, to declare any property to be
& Othm
evacuee property unless proceedings are per.ding on
the said date for declaring such property as evacuee
Subba Rao J.
property, and. that in the present case, as the appeal
against the order of the Assistant Custodian was filed
only on February 22, 1955, no proceeding was pending on the prescribed date and, therefore, the Custodian illegally made the order in direct contravention
of the provisions of s. 7-A of the Act. (3) The Custo.
diari acted perversely in condoning the delay in filing
the·.llppeal to him without assigning llny reasons. (4)
The notice issued to the appellant under s. 7(1) of the
Act was defective and, therefore, the proceedings
taken pursuant thereto were void.
The appellant lost before the High Court on all the
four points. Though learned counsel for the appellant raised all the four contentions before us, he
seriously pressed only the first two contentions.
To appreciate the first contention and to give a
satisfactory answer thereto, it would be necessary to
consider the scope of the relevant provisions of the
Act. Section 2(c) defines "Custodian" to mean the
Custodian for the State and to include any Additional,
Deputy or Assistant Custodian of evacuee property in
, that State. Section 6 authorizes the Central Government to appoint for any State a Custodian and as
many Additional, Deputy or Assistant Custodians of
Evaicuee Property as may be necessary for the purpose of discharging the duties imposed on the Custo-
"dian by or under the Act. By sub-s. (3) of that section, the Additional, Deputy and Assistant Custodians
of Evacuee Property shall discharge the duties imposed on them by or under the Act under the general
superintendence and control of the Custodian of the
State, but the Central Government may, by general or
special order, provide for the distribution of work
among them. The said provisions indicate that whatever the designations of the said officers be they are
3• .
Md. Sharfuddin
v.
R. P. Singh
6' Others
Subba Rao ].
242
SUPREME COURT REPORTS
(1962]
all Custodians within the definition of "Custodian" in
the Act, though for convenience their duties are
either statutorily or administratively defined. Under
s. 7 a Custodian-it may be noted that the Custodian
may be any one of the aforesaid categories-if he is of
opinion that any property is evacuee property within
the meaning of the 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. Sub-s. (3) thereof
enjoins on him the duty to publish in the Official
Gazette all properties declared by him to be evacuee
properties. After such declaration the said properties
vest in the Custodian for the State. Section 9 empowers the Custodian to take possession of evacuee
property vested in him. Section 10 confers powers on
the Custodian to take such measures as he considers
necessary or expedient for the purposes of securing,
administering, preserving and managing any p>:operty.
Section 24 confers a right on any person aggrieved by
an order made under s. 7 to prefer an appeal to. the
Custodian where the original order has been passed
by a Deputy or Assistant Custodian and the amount
or value of the property which is the subject-matter ·
of the order does not exceed two thousand rupees,
and to the Custodian-General in any other case.
Section 26, which was deleted from the Act by s. 8 of
Act 91 of 1956, conferred a revisional jurisdiction on
the Custodian, Additional Custodian or Authorized
Deputy Custodian against the orders of subordinate
officers. Section 27 gives to the Custodian-General a
plenary power of revision to correct the orders of any
Custodian at any time. The scheme of the foregoing
provisions may be briefly stated thus: A Custodian,
as defined ·in the Act, after necessary inquiry, may
declare a property to be evacuee property; on such
declaration the property vests in him; after such
vesting, the Custodian manages the said property; if a
Custodian wrongly or illegally declares a property to
be evacuee property, the person aggrieved by his
< -.
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1
J " >
•
••
,.
...
1 S.C.R. SUPREME COURT REPORTS
243
order can prefer an appeal to the appropriate authority
prescribed under s. 24; the Custodian or the Custodian.
General, as the case may be, in appropriate cases, can
also, in exercise of his revisional jurisdiction, set aside
that •order; if a Custodian illegally or improperly
releases a property on the ground that it is not
evacuee property, it is liable to be revised by the
Custodian or the Custodian-General, as the case may
be, under s. 26 or s. 27 of the Act.
Learned counsel for the respondents contends that
the words "any person aggrieved" under s. 25 of the
Act are comprehensive enough to include a Custodian
and, therefore, a Custodian can prefer an appeal
against an order of a Custodian releasing properties
under s. 7 of the Act. Realizing that an obvious
anomaly is implicit in the argument, learned counsel
concedes that an appeal can be filed only by a Custodian other than the Custodian who made the order
releasing the properties. It is said that the Central
Government may, under s. 6 of the Act, provide for
the distribution of work among the various Custodians,
namely, Additional, Deputy and Assistant Custodians,
and in such allocation the power to inquire whether a
property is an evacuee property or not may be conferred on one Custodian and the power to manage it on
another, and that, in that event, the Custodian on
whom the power to manage is conferred will be a
person aggrieved within the meaning of s. 24 of the
Act. In our view this argument is not consistent with
the scheme of the Act. Though for the purpose of
convenience of management or judicial determination
of dispu~es the Act provides different categories of
Custod;ans, all of them fall within the definition of
"Custodi.i.n" in the Act.
The Act further provides a
hierarchy of tribunals under tho superintendence and
control of the Custodian-General. It would be anomalous were it to be held that a Custodian could prefer
an appeal against the order of a Custodian. The Act
does not contemplate one officer preferring appeals
against the orders of another officer. If an Assistant
Custodian or a Custodian went wrong in the matter of
declaring a property to be an evacuee property, the
Md. Sharfuddin
v.
R. P. Singh
& Others
Subba Rao ].
Md. Sharfuddin
v.
R. P. Singh
&
OJh~rs
~ubba Rao ].
244
SUPREME COURT REPORTS
[1962]
Act provides that the Custodian or the CustodianGeneral, as the case may be, before 1956, and the
Custodian-General thereafter, may set right the wrong.
In the premises the words "any person aggrieved" in
s. 24 of the Act can only mean a person whose
properties have been declared to be evacuee properties
by the Custodian, or a person who moved the Custodian to get the properties so declared or any other
such aggrieved person. The words "any person aggrieved" in the context of the Act cannot include any
Custodian as defined in the Act.
Strong reliance is placed upon the decision of this
Court in Ebrahim Aboobaker v. Custodian-General of
Evacuee Property (1) in support of the contention of
the respondents. In that case, on information supplied by one Tek Chand Dolwani to the Additional
Custodian of Evacuee Property, the latter started proceedings under the Bombay Evacuees (Administration
of Property) Act, 1949, against one Aboobaker. The
Additional Custodian, after recording the statement
of A boo baker and examining the evidence produced by
Tek Chand Dolwani, held that the said Aboobaker
was not an evacuee. Tek Chand Dolwani filed an
appeal against the said order to the Custodian-General
of India. One of the questions raised was whether
the said Tek Chand Dolwani was a person aggrieved
by the order of the Additional Custodian within the
meaning of s. 24 of the Cen.tral Ordinance XXVII of
1949, and was entitled to appeal against the said
order. This Court held that the said person was a
person aggrieved within the meaning of the said section. It was provided in rule 5(5) of the rules made
under the Ordinance that any person or persons claiming to be interested in the inquiry or in the property
"being declared as evacuee property, might file a written statement in reply to the written statement filed
by the persons interested in the property claiming
that the property should not be declared as an evacuee
property; and that the Custodian should proceed to
hear the evidence, if any, which the party appearing
to show cause might produce and also the evidence
which the party claiming to be interested as mentioned
{I) [1952] S.C.R. 696.
-
1 S.C.R. SUPREME COURT REPORTS
245
above might adduce. The rule, therefore, autho-
'96'
rized the Additional Custodian to adjudicate between Md Sha•fuddin
the person moving the Custodian to declare a property
·
v.
as evacuee property and the person denying that fact.
R. P. Singh
In that context, this Court held that the person mov-
& Others
ing the Custodian was a person aggrieved within the
meaning of s. 24. This decision or the decisions relied
Subba Rao f.
upon by this Court in the aforesaid case in coming to
the said conclusion are not relevant to the present
enquiry. Where a statute or rules framed thereunder
provide for a dispute between two parties to be decided by a tribunal, it is implicit in that provision that the
defeated party is one aggrieved by that decision. But
the same cannot be said of a Custodian and the party
in whose favour he gave a decision; nor can another
subordinate officer of the Custodian, who made the
decision and who has no statutory duty to appear
before the Custodian to put forward the case of the
department or lead evidence in support thereof, be
equated to a party in a lis. We, therefore, hold, having regard to the scheme of the Act, that the Assistant Custodian, Headquarters, Patna, is not a person
aggrieved within the meaning of s. 24 of the Act.
The appeal to the Custodian, therefore, was not competent.
In this view, the second quest.ion does not fall to be
considered. In the result, the order of the High Court
is set aside and we direct the issue of a writ of certiorari to quash the order of the Custodian of Evacuee
Property, Bihar, dated April 26, 1954 setting aside
the order of the Assistant Custodian, Giridih, releasing the holdings Nos. 326, 774 and 654 in Giridih belonging to the appellant. The appeal is allowed with
costs throughout.
Appeal allowed.