# RAJ BAHADUR KANWAR RAJ NATH AND OTHERS v. PRAMOD C. BHATT, CUSTODIAN OF EVACUEE PROPERTY

- **Citation:** [1955] 2 S.C.R. 977
- **Court:** Supreme Court of India
- **Decided:** 1954-04-13
- **Case number:** Civil Appeal No. 205 of 1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-bahadur-kanwar-raj-nath-and-others-v-pramod-c-bhatt-custodian-of-evacuee-1280
- **Pages:** 7

## Headnote

·~
2 S.C.R.
SUPREME COURT REPORTS
RAJ BAHADUR KANWAR RAJ NATH
AND OTHERS
v.
PRAMOD C. BHATT, CUSTODIAN OF
EVACUEE PROPERTY.
I
LB. K. MuKHERJEA C. J., VENKATARAMA AYYAR ana
JAFER IMAM JJ.]
977
Evacuee Property-Lease granted by Custodian-Notice to cancel-Custodian's
power-Administration of Evacuee Property Act,
1950 (XXXI of 1950), s. 12(1).
By s. 12, sub-s. 1, of the Administration of Evacuee Property
Act, 1950 (XXXI of 1950) as amended by Act XLII of 1954, "notwithst:;nding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate
any lease or ainend the terms of any lease or agreement under which
any evacuee property is held or occupied by a person, whether such
allotment, lease or agreement was granted or entered into before or
after the commencement of this Act".
The respondent who was the Custodian of evacuee
property
gratned a lease to the appellants and subsequently issued a notice to
them, among other things, calling upon them to show cause why the
lea:-c should not be cancelled for committing breaches of the conditions on which the prop~rties had
been leased to them. The appellants contended that the respondent had no
power to cancel the
lease on the ground that under s. 12( 1) of the Act the power of the
Custodian to cancel the lease could be exercised only so as to override a bar imposed by any law but not the contract ~nder which the
lease was held and relied on the language of the non-obstante clause
contained in the section.
Held, that the operative portion of the section which
confers
power on the Custodian to cancel a lease is unqualified and absolute
and could not be abridged by reference to the non-obstante clause
which was only inserted ex abundanti cautela with a view to repel a
oossible contention that the section does
not
by implication repeal
•tatutes conferring rights on lessees.
Observations in Aswini Kumar Chose v. Arabinda Bose ([1953]
».C.R.
I, 21,
24)
and Dominion of India v. Shrinbai A. Irani
([1955] I S.C.R. 206, 213), on the scope of a non-obstante clause.
•die•.! on.
C1v1L
APPELLATE
JURISDICTION ;
Civil
Appeal
No. 205 of 1954.
On appeal from the judgment and order dated the
1955
N001mber 10.
!955
Rai Bahatlur
Kanwar Rqj }lath
and olherJ
v.
Prarnod C. Bhatt,
CUJtodian of
Evacuee Prop.·rty
978
SUPREME COURT REPORTS
[1955]
13th April 1954 of the Bombay High Court in Appeal
No. 49 of 1954 arising out of the order dated the
31st day of March 1954 of the said High CoUrt exercising its Ordinary
Original Jurisdiction
in Misc.
Petitien No. 55 of 1954.
K. T. Desai, P. N. Bhagruati, Rameshwar Nath and
Rajinder Narain, for the appellants.
C. K. Daphtary, Silicitor-General of India, (Porus
A. Mehta and R. H. Dhebar, with him), for. the respondent.
1955.
November 10. The Judgment of the Court
was delivered by
VENKATARAMA
AYYAR J.-This
appeal
raises
a
question as to the powers of a Custodian of Evacuee
Property to cancel a lease
granted by him unrkr section 12 of
the
Administration of Evacuee
Property
Act (XXXI of 1950), hereinafter referred to as the
Act. Messrs Abdul Karim and Brothers owned, along
with certain other properties
which are not the
subject-matter of the
present appeal,
three mills
with
bungalows and chawls
at Ambernath in Thana District and the
Bobbin Factory at Tardeo in , Bombay.
They
have
migrated
to
Pakistan,
these
properties
were declared by a notification dated
12-9-1951
issued
under section . 7 of the Act as evacuee property, and
under section 8 ( 1) of the Act, they became vested in
the respondent as the
Custodian for
the
State. The
appellants
are displaced
persons,
and
on
JQ.:8-1952
the respondent entered into an agreement with them,
Exhibit A, which is,
as aptly characterised by learned
counsel for the appellants, of a composite character,
consisting of three distinct matters. There was, firstly,
a demise under which the mills and the factory in
question were leased to the appeallants for a period of
five years on the terms an

## Text

·~
2 S.C.R.
SUPREME COURT REPORTS
RAJ BAHADUR KANWAR RAJ NATH
AND OTHERS
v.
PRAMOD C. BHATT, CUSTODIAN OF
EVACUEE PROPERTY.
I
LB. K. MuKHERJEA C. J., VENKATARAMA AYYAR ana
JAFER IMAM JJ.]
977
Evacuee Property-Lease granted by Custodian-Notice to cancel-Custodian's
power-Administration of Evacuee Property Act,
1950 (XXXI of 1950), s. 12(1).
By s. 12, sub-s. 1, of the Administration of Evacuee Property
Act, 1950 (XXXI of 1950) as amended by Act XLII of 1954, "notwithst:;nding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate
any lease or ainend the terms of any lease or agreement under which
any evacuee property is held or occupied by a person, whether such
allotment, lease or agreement was granted or entered into before or
after the commencement of this Act".
The respondent who was the Custodian of evacuee
property
gratned a lease to the appellants and subsequently issued a notice to
them, among other things, calling upon them to show cause why the
lea:-c should not be cancelled for committing breaches of the conditions on which the prop~rties had
been leased to them. The appellants contended that the respondent had no
power to cancel the
lease on the ground that under s. 12( 1) of the Act the power of the
Custodian to cancel the lease could be exercised only so as to override a bar imposed by any law but not the contract ~nder which the
lease was held and relied on the language of the non-obstante clause
contained in the section.
Held, that the operative portion of the section which
confers
power on the Custodian to cancel a lease is unqualified and absolute
and could not be abridged by reference to the non-obstante clause
which was only inserted ex abundanti cautela with a view to repel a
oossible contention that the section does
not
by implication repeal
•tatutes conferring rights on lessees.
Observations in Aswini Kumar Chose v. Arabinda Bose ([1953]
».C.R.
I, 21,
24)
and Dominion of India v. Shrinbai A. Irani
([1955] I S.C.R. 206, 213), on the scope of a non-obstante clause.
•die•.! on.
C1v1L
APPELLATE
JURISDICTION ;
Civil
Appeal
No. 205 of 1954.
On appeal from the judgment and order dated the
1955
N001mber 10.
!955
Rai Bahatlur
Kanwar Rqj }lath
and olherJ
v.
Prarnod C. Bhatt,
CUJtodian of
Evacuee Prop.·rty
978
SUPREME COURT REPORTS
[1955]
13th April 1954 of the Bombay High Court in Appeal
No. 49 of 1954 arising out of the order dated the
31st day of March 1954 of the said High CoUrt exercising its Ordinary
Original Jurisdiction
in Misc.
Petitien No. 55 of 1954.
K. T. Desai, P. N. Bhagruati, Rameshwar Nath and
Rajinder Narain, for the appellants.
C. K. Daphtary, Silicitor-General of India, (Porus
A. Mehta and R. H. Dhebar, with him), for. the respondent.
1955.
November 10. The Judgment of the Court
was delivered by
VENKATARAMA
AYYAR J.-This
appeal
raises
a
question as to the powers of a Custodian of Evacuee
Property to cancel a lease
granted by him unrkr section 12 of
the
Administration of Evacuee
Property
Act (XXXI of 1950), hereinafter referred to as the
Act. Messrs Abdul Karim and Brothers owned, along
with certain other properties
which are not the
subject-matter of the
present appeal,
three mills
with
bungalows and chawls
at Ambernath in Thana District and the
Bobbin Factory at Tardeo in , Bombay.
They
have
migrated
to
Pakistan,
these
properties
were declared by a notification dated
12-9-1951
issued
under section . 7 of the Act as evacuee property, and
under section 8 ( 1) of the Act, they became vested in
the respondent as the
Custodian for
the
State. The
appellants
are displaced
persons,
and
on
JQ.:8-1952
the respondent entered into an agreement with them,
Exhibit A, which is,
as aptly characterised by learned
counsel for the appellants, of a composite character,
consisting of three distinct matters. There was, firstly,
a demise under which the mills and the factory in
question were leased to the appeallants for a period of
five years on the terms and conditions set out therein.
Secondly,
there was a sale of the stock of raw
materials,
unsold
finished
goods,
spare parts,
cars,
trucks and other movables which were in the mills
and
the factory,
with elaborate provisions for the
determination and payment of the price therefor in
2S.C.R.
SUPREME COURT REPORTS
979
due course. And thirdly, there was an agreement to
sell the mills and the factory to the appellants in
certain
events
and
subject
to
certain conditions.
There was also a clause for ref erring the disputes between the parties to arbitration.
In pursuance of this agreement, the appellants were
put in possession of the mills
and the factory on
31-8-1952.
On 12-2-1954
the
respondent
issued a
notice to the appellants, Exhibit C, wherein
he set
out that the appellants
had
systematically
committed
breaches of the various terms on which the properties
had been leased to them, and called upon them to show
cause why the lease should not be cancelled and why
they should not be evicted. The notice then went on
to state that the respondent considered
it necessary
to issue
certain directions for
the "preservation of
the demised premises and the goods and stock in
trade, etc., lying in the demised
premises", arid
the
appellants
were accordingly
required not
to
remove
the stock or raise any money on the security thereof,
and to send daily reports to the Custodian, of the
transactions
with
reference
thereto. Presumably,
these directions were given under section 10 of the
Act.
On
13-2-1954
the appellants appeared before
the respondent,
and contended that he had no authority to issue the notice in question under section 12,
and that it was therefore illegal. Apprehending that
the lease might be cancelled, and that they might be
evicted, the appellants filed on 16-2-1954 the application out of which the preseht appeal arises, for a writ
of certiorari for quashing the notice, Exhibit C, and
for a writ of
prohibition restraining the respondent
from taking any further action pursuant thereto.
In support of the petition, the appellants urged
that section 12 under which the respondent purported
to
act
authorised
the
cancellation
of
only
leases
granted by the evacuee and not by the Custodian
himself, and that no directions could be given under
section 10 as it applied only to properties of the evacuee, and that by reason of the sale, the movables
in question had become the property of the appel1955
Rai Bohadur
Aanwar Raj Nath
and otMrs
v.
Pramod C. Bhatt,
CttStodian of
E1JOCU11• Prop.rl.1
Venkatararna
,War].
1955
Roi ll1d1tul18
Kt111warRiijNa0
mu/ others
v.
Pranwd c. llha#,
Cwtodian of
11•-· Proper<]
V1nk<zlarama
JIJ!)'ar ].
9~0
SUPREME COURT REPORTS
[1955]
!ants. The petition was heard by Tendolkar, J., who
stated the points for determination thus :
( 1) "Whether the Custodian has power
under
section
12 of the Administration of Evacuee Property
Act, 1950, to terminate a lease granted
by himself,
and
(2) Whether the
directions given
by
the
Custodian are beyond the jurisdiction conferred upon him
by section 10 of the said Act ?"
On the first question, he held that section 12 applied
only to leases granted by the evacuee and not by the
Custodian, and that therefore the notice, Exhibit C,
was ultra vires the powers of
the
Custodian under
that section. On the second question, he held that
section 10 applied only to properties of the
evacuee,
and that the movables
in respect of which directions
were given, ceased to be the property of the evacuee
by reason of the sale in favour of the appellants, and
that in consequence, the directions with reference to
them were unauthorised. In the result, the application was allowed.
The respondent took the matter in appeal, and that
was heard
by
Chagla, C.J.
and Dixit, J.
By
their
judgment dated
13-4-1954, they held that on the
plain language of section 12 it would apply whenever
there was a lease, and that lease was in respect of
property belonging to the evacuee, that there was no
warrant for
imposing
a further limitation on that
section that that lease should also have been granted
by the evacuee, and that accordingly the
Custodian
had power to issue the notice, Exhibit C, for cancelling the lease. As regards movables, however, they
agreed with Tendolkar, J. that for the reasons given
by him the Custodian had no authority under section
10 to issue any directions with reference thereto. The
appeal was accordingly allowed in so far as it related
to the lease but dismissed as regards movables.
Against this judgment, the appellants have preferred this
appeal on a certificate granted by the
High Court under article 133(1) (b), and the only point
that arises for determination therein is as
to whether
the Custodian has the power under section
12 to
·.
I
2 S.C.R.
SUPREME COURT REPORTS
981
cancel a lease granted by himself and not by the evacuee. But that question is no longer open to argument, as there has been subsequent to the decision of
the court below legislation
which concludes
the matter.
Section 5 of the
Administration of Evacuee
Property
(Amendment)
Act,
1954
(XLII of
1954)
enacts the following Explanation to section
12 of Act
XXXI of 1950 :
"In
this
sub-section
'lease'
includes
a
lease
granted by
the Custodian and 'agreement'
includes
an agreement entered into by the Custodian·"
And it provides that the Explanation "shall be inserted and
shall be
deemed always to have bel'n
inserted" in the section.
Mr. Desai, learned counsel for the
appellant~, concedes
that this
amendment which is retrospective
in
operation would govern the rights of the parties in
the present appeal,
and that under the section as it
now stands,
the
Custodian
has the power-and had
always the power-to cancel leases created not merely
by the evacuees but also by himself. But he contends that this power could be exercised only so as
to override a bar imposed by any law but not the
contract under which the lease is held, and this result
flows according to him from the language of the nonobstante clause, which is limited to anything contained
in any other law for the time being in force", and does
not include "or any contract between the parties".
This was a contention which was open to the appellants on the terms of the section as it stood even before the amendment, but it was not put forward at
any stage prior to the hearing of this appeal and that
by itself would be sufficient ground for declining to
entertain it which it may be noted is now sought to
be raised by a supplemental proceeding under Order
16, rule 4 of the Supreme Court Rules. On thl' merits
also it is
without any substance.
The section
expressly authorises the custodian to vary the terms of
the lease, and that cannot be reconciled with the contention of the appellants that it confers no authority
on him to go back upon his own contracts. The operative portion of the section which confers power OD
1955
Rai Bahatlur
Kanwar Roj Noth
and othlrs
v.
Pramod C. BhlaJ,
Custodian of
Exacute Properly
V enkalarama
Ayyar}.
1955
.Rai BaiuidUT
Kanwar Rllj NaJh
and others
Y.
Pramod C. Bhatt,
Custodian of
Evacuee l'ToJMrl7
Ye nkatarama
Ayyar].
982
SUPREME COURT REPORTS
[1955)
the Custodian to caned
a lease or vary
the terms
thereof is unqualified and
absolute,
and
that power
cannot be abridged by reference to .the provision that
it could be exercised "·notwithstanding anything contained in any other law for the time being in force".
This provision is obviously intended to repel a possible ct>ntention that section
12 does not by implication repeal statutes
conferring rights on le~sees, and
cannot prevail as against them and has been inserted
ex abundanti cautela.
It cannot be construed
as cutting down the pbin meaning of the operative portion of the section. Vide the observations in Aswini
Kumar Ghosh v. Arabi11da Bose(1 )
and the Dominion
of India v. Shrinbai A. Irani(') on the scope of a
non-obstante clause.
We must
accordingly
hold
that
the respondent was
acting within his
authority in
issuing Exhibit C in so far as it concerned the lease
granted in favour of the appellants.
It was next contended by Mr. Desai that even if
the Custodian had the power under section 12 to
cancel the lease in favour of the appellants, he had
no power under that section to cancel the agreement
to sell the mills and the factory to them, which
was
one of the matters contained in Exhibit A, that the
notice, Exhibit C, was to that extent without jurisdiction, and that the
respondent should accordingly
be prohibited from cancelling that portion of Exhibit
A in pursuance of Exhibit C. But the notice in terms
refers firstly to the lease which it is proposed to cancel, and secondly to the movables in respect of which
certain directions were given. In their petition under
article 226, it was the validity of the notice, Exhibit
C, with reference to these two matters that the appellants
challenged. Tendolkar, J. stated
in his
judgment-and quite correctly-that these were the two
points that arose for determination. The question of
the rights of the appellants in so far as they related
to the purchase by them of the mills and the factory
was not raised in the petition, and no contentions
were put forivard in support thereof at any. stage of
the proceedings. It is for the first time in the argu-
(1) (1953] S.C R 1, 21, 24.
(2) (1955) 1 S.C.R. 206,213.
2S.C.R.
SUPREME COURT REPORTS
983
ment before us that those rights are sought to be
agitated. Under the
circumstances, we must decline
to consider them. It will be suflicient if we observe
that the rights of the appellants, if any, other than
those arising out of the lease, are left open to the
determinati9n
of
the
appropriate
authorities, and
that nothing in our decision should be taken as a
pronouncement on those rights.
In the result, the
ap~al fails and is dismissed with
costs.
SHRIMATI VIDYA VERMA, THROUGH NEXT
FRIEND R. V. S. MANI
v.
DR. SHIV NARAIN VERMA.
[S. R. DAs, VIVIAN BosE, BHAGWATI. fAGANNADHA·
oAs and B. P. SINHA JJ.l
Fundamental Ri[!ht, Infringement of-Detention by private person-ls.iue of writ-Power of Supreme Court-Constitution of [ndia,
Arts. 21, 3:t.
No question of infringement of any fundamental
right under
Art. 21 arises where the detention complained of is by a private per-
>On and not by a State or under the authority or orders of a State.
and the Supreme Court will not, therefore, entertain an application
for a writ of habeas corpus, under Art. 32 of the Constitution.
Consequently a petition under Art. 32 of the Constitution for a
writ of habeas corpus founded on
Art. 21 and directed against a
father for alleged detention of his daughter does not lie.
A. K. Gopalan v. The State of Madras ([1950] S.C.R. 88) and
P. D. Shamdasani v. Central Bank. of India ([1952] S.C.R. 391), relied on.
ORIGINAL
JuR1so1cT10N : Petition
No.
262 of 1955.
Under Article 32 of the Constitution for a Writ
in the nature of Habeds Corpus.
R. V. S. Mani. the next friend, in person.
M. C. Setal.vad, Attorney-General for India (G. N.
Joshi and Porus A. Mehta, with him).
N aunit Lal, for the respondent.
1955
Raj Bahadur
Kanwar Raj .Nath
and 0th.rs
v.
Pramod C. Bhatt.,
Custodian of
Evacuee Properey
Venkatarama
Ayyar ].
1955
.November 11