# THE CUSTODIAN OF EVACUEE PROPERTY, BANGALORE v. KHAN SAHEB ABDUL SHUKOOR, ETC

- **Citation:** [1961] 3 S.C.R. 855
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeals Nos. 101to104 of 1957
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. SuBBA Rao, K. N. Wanchoo, K. C. Das GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-custodian-of-evacuee-property-bangalore-v-khan-saheb-abdul-shukoor-etc-1934
- **Pages:** 21

## Headnote

Evacuee property-Order passed by Custodian-State law providing for appeal to the High Court-Later State Act and Central
Act repealing it and providing for appeal and power of revision to
Custodian-General-Proceedings taken under the earlier State ActCustodian-General setting aside the Custodian's Order under revision
-Validity-Appeal to High Court-Maintainability-The Mysore
Administration of Evacuee Property (Emergency) Act, .{949 (XLV II
of r949), ss. 5, 6, 8, 30-Evacuee Property (Second) (Emergency)
Act, z949 (LXXIV of r949), ss. 22, 23, 25-Administration of
Evacuee Property Act, r950 (XXXI of z950), s. 27-Constitution
of India, Art. 226.
On· July 7, 1949· the then State of Mysore passed the Mysore
Administration of Evacuee Property (Emergency) Act, I949·
providing, inter alia, for the appointment of a Custodian of
Evacuee Property for the State of Mysore for the purpose of
administering evacuee property in the State. By s. 6 all evacuee
property vested in the Custodian under s. 5 had to be notified by
him in the Mysore Gazette, while s. 8 provided that any person
claiming any right to any property notified under s. 6 might
prefer a claim to the Custodian on the ground that the property
was not evacuee property. Section 30 provided for an appeal to
the High Court where the original order under s. 8 had been
passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act was replaced by the Mysore
Administration of Evacuee Property (Second) (Emergency) Act,
1949· which came into force on November 29, 1949· Section 53(2)
of that Act provided that anything done or any action taken in the
exercise of any power conferred by the earlier Act shall be deemed
to have been done or taken in the exercise of the powers conferred by the later Act. Under the second Act, instead of the High
Court an appeal from the order of the Custodian lay to the
Custodian-General, appointed by the Government of India under
the provisions of the Administration of Evacuee Property
Ordinance, 1949, which had come into force on October 18, 1949 ;
and in addition, s. 25 of that Act. provided for revision by the
Custodian-General of orders passed by the Custodian. The
Administration of Evacuee Property Act, 1950, which was passed
by Parliament and which came into force on April 17, 1950, provided substantially for all matters contained in the second
I96I
February 10
856
SUPREME COURT REPORTS
[1961]
I96I
Mysore Act. Section 27 gave the Custodian-General powers of
revision against the orders of the Custodian, ands. 58 as amended
Custodian of
and given retrospective operation, provided that " if, immediateEvactm Propeity, ly before the commencement of this Act, tl,iere was. in force in
Bangalore
any State to which this Act extended any law which corresponded
v.
to this Act and which was not repealed ..... ; ... that corresponding
Khan Saheb Abdul law shall stand repealed."
Shukoor
On September 21, 1949, the Custodian issued. a notification
declaring
the properties of the
respondents
as
evacuee properties, and claims filed by them under s. 8 of the
earlier Mysore Act were investigated by the Deputy Custodian
who dismissed the same on April 17, 1950. Appeals were filed
against the said order before the Custodian and were allowed on
August 22, 1950, on the ground that there was not sufficient
evidence to prove the respondents as evacuees and consequently
the properties in question could not be treated as evacuee properties. On October 3, 1950, the Custodian-General gave notice to
the respondents under s. 27 of the Administration of Evacuee
Property Act, 1950, in respect of the order of the. Custodian dated
August 22, 1950, and asked them to. show cause why the said
order be not revised. On February II, 1952, the CustodianGeneral set aside the order and directed the Custodian to dispose
of the cases afresh. On December 2, 1952, the Custodian passed
an order by which he held that the respondents were evacuees
and that their properties wer

## Text

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3 S.C.R.
SUPREME COURT REPORTS
855
THE CUSTODIAN OF EVACUEE PROPERTY,
BANGALORE
v.
KHAN SAHEB ABDUL SHUKOOR, ETC.
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. SuBBA Rao, K. N. WANCHOO and
K. C. Das GUPTA, JJ.)
Evacuee property-Order passed by Custodian-State law providing for appeal to the High Court-Later State Act and Central
Act repealing it and providing for appeal and power of revision to
Custodian-General-Proceedings taken under the earlier State ActCustodian-General setting aside the Custodian's Order under revision
-Validity-Appeal to High Court-Maintainability-The Mysore
Administration of Evacuee Property (Emergency) Act, .{949 (XLV II
of r949), ss. 5, 6, 8, 30-Evacuee Property (Second) (Emergency)
Act, z949 (LXXIV of r949), ss. 22, 23, 25-Administration of
Evacuee Property Act, r950 (XXXI of z950), s. 27-Constitution
of India, Art. 226.
On· July 7, 1949· the then State of Mysore passed the Mysore
Administration of Evacuee Property (Emergency) Act, I949·
providing, inter alia, for the appointment of a Custodian of
Evacuee Property for the State of Mysore for the purpose of
administering evacuee property in the State. By s. 6 all evacuee
property vested in the Custodian under s. 5 had to be notified by
him in the Mysore Gazette, while s. 8 provided that any person
claiming any right to any property notified under s. 6 might
prefer a claim to the Custodian on the ground that the property
was not evacuee property. Section 30 provided for an appeal to
the High Court where the original order under s. 8 had been
passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act was replaced by the Mysore
Administration of Evacuee Property (Second) (Emergency) Act,
1949· which came into force on November 29, 1949· Section 53(2)
of that Act provided that anything done or any action taken in the
exercise of any power conferred by the earlier Act shall be deemed
to have been done or taken in the exercise of the powers conferred by the later Act. Under the second Act, instead of the High
Court an appeal from the order of the Custodian lay to the
Custodian-General, appointed by the Government of India under
the provisions of the Administration of Evacuee Property
Ordinance, 1949, which had come into force on October 18, 1949 ;
and in addition, s. 25 of that Act. provided for revision by the
Custodian-General of orders passed by the Custodian. The
Administration of Evacuee Property Act, 1950, which was passed
by Parliament and which came into force on April 17, 1950, provided substantially for all matters contained in the second
I96I
February 10
856
SUPREME COURT REPORTS
[1961]
I96I
Mysore Act. Section 27 gave the Custodian-General powers of
revision against the orders of the Custodian, ands. 58 as amended
Custodian of
and given retrospective operation, provided that " if, immediateEvactm Propeity, ly before the commencement of this Act, tl,iere was. in force in
Bangalore
any State to which this Act extended any law which corresponded
v.
to this Act and which was not repealed ..... ; ... that corresponding
Khan Saheb Abdul law shall stand repealed."
Shukoor
On September 21, 1949, the Custodian issued. a notification
declaring
the properties of the
respondents
as
evacuee properties, and claims filed by them under s. 8 of the
earlier Mysore Act were investigated by the Deputy Custodian
who dismissed the same on April 17, 1950. Appeals were filed
against the said order before the Custodian and were allowed on
August 22, 1950, on the ground that there was not sufficient
evidence to prove the respondents as evacuees and consequently
the properties in question could not be treated as evacuee properties. On October 3, 1950, the Custodian-General gave notice to
the respondents under s. 27 of the Administration of Evacuee
Property Act, 1950, in respect of the order of the. Custodian dated
August 22, 1950, and asked them to. show cause why the said
order be not revised. On February II, 1952, the CustodianGeneral set aside the order and directed the Custodian to dispose
of the cases afresh. On December 2, 1952, the Custodian passed
an order by which he held that the respondents were evacuees
and that their properties were evacuee properties. Against this
order the respondents filed two appeals to the High Court, and
also two writ petitions under Art. 226 of the Constitution as they
had doubts whether any appeal lay to the High Court. The High
Court took the view that the Custodian-General had no power
under s. 27 of the Act to revise the order of the Custodian and
that as the proceedings in these cases began under s. 8 of the
first Mysore Act and as there was nothing corresponding to that
section either in the second Mysore Act or in the Act of 1950, the
High Court was entitled to hear the appeal from the order of
December 2, 1952, as that order must be held to have been
passed in proceedings under the first Mysore Act. The High
Court then went into the matter as an appellate court and came
to the conclusion that the order of the Custodian dated December 2, 1952, was erroneous.
Held, that the High Court erred in holding that the order of
the Cust'odian-General dated February rr. 1952, was without
jurisdiction. Considering the purpose for which the Administration of Evacuee Property Act, 1950, was passed and the successive saving clauses in the second Mysore Act and in the Act, the
Custodian-General had the power under s. 27 to call for the
record of the proceeding in which the order of August 22, 1950,
was passed and consider :ts legality or propriety.
Held, further,,that the High Court was also in error in holding that appeals to it lay from the order of December 2, 1952.
"
3 S.C.R.
SUPREME COURT REPORTS
857
An order made in a proceeding commenced under s. 8 of the
r96r
first Mysore Act must be deemed to be an order made under
s. 5(1) of the second Mysore Act or under s. 7(1) of the Act, in
Custodian of
view of s. 53(2) of the second Mysore Act ands. 58(3) of the Act. Evacuee Prop"'Y·
Consequently, by necessary intendment, the legislature must have
Bangal01'e
intended that the provision as to appeals provided by subsequent
v.
legislation should supersede the provisior, as to appeals under the Khan SahebAbdul
first Mysore Act.
Shukoor
Garikapatti Veeraya v. N. Subbiah Choudhury [1957] S.C.R.
488, referred to.
Since the main question for decision in these cases was whether the respondents were evacuees, and as such a question was
one of fact, the High Court was not justified in looking into the
order of December 2, 1952, as an appellate court in dealing with
applications for a writ of certiorari under Art. 226 of the
Constitution.
Hari Vishnu Kamath v. Syed Ahmad Ishaque and Others
[1955] 1 S.C.R. 1104, applied.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeals
Nos. 101to104 of 1957.
Appeals from the judgment and order dated
February 4, 1954, of the Mysore High Court in Regular
Second Appeals Nos. 5 and 6of1953 and Writ Petitions Nos. 67 and 68 of 1953 respectively.
H. N. Sanyal, Additional Solicitor-General of India,
R. Ganapathy Iyer and D. Gupta for the appellant.
A. V.
Viswanatha Sastri, M. S. K. Sastri and
T. R. V. Sastri for A. G. Ratnaparkhi, for the respondents.
1961. February 20. The Judgment of the Court was
delivered by
WANCHOO, J.-These are four appeals on certifiWanchao J.
cates granted by the Mysore High Court. They will
be disposed of together as the points raised in them
are common. The facts of these cases are complicated and may be mentioned in some detail. On
July 7, 1949, the then State of Mysore passed The
Mysore Administration of Evacuee Property (Emergency) Act, No. XLVII of 1949 (hereinafter called the
first Mysore Act). It provided for the appointment,
of a Custodian of Evacuee Property for the State of
Mysore and other officers subordinate to him for the
purpose of administering evacuee property in that
858
SUPREME COURT REPORTS
[1961 J
'96'
State. Section 2(c) defined an "evacuee" and s. 2(d)
Custodian of
"evacuee pro pert}'. ". Se_ction 5 laid down th~t all
faacu" Propertv. evacuee property situate m Mysore would vest m the
Bangalore · Custodian. Section 6 provided for a notification by
v.
the Custodian in the Mysore Gazette of evacuee proKhan Saheb Abdul perty vested in him.
0Section 8 provided that any
Shukoor
J . .
. ht t
. t
.
person c a1mmg any ng
o or m erest m any proWauc!wo ;.
perty notiffed under s. 6 as evacuAe property or in
respect of which a demand requiring a surrender of
possession had been made by the Custodian might
preft>r a claim to the Custodian on the ground that
the property was not evacuee property or his interest
in the property had not been affected by th.e provisions of that Act. It was further provided that the
Custodian was to hold a summary inquiry in the
prescribed manner into such claims and after taking
such evidence as might be produced, pass an order
(stating the reasons therefor) either rejecting the claim
or allowing it wholly or in part. Finally, s. 30 provided for an appeal to the High Court where the
original order under s. 8 had been passed by the
Custodian, an Additional Custodian or an Authorised
Deputy Custodian. This Act remained in force till it
was replaced by the Mysore Administration of Evacuee Property (Second) (Emergency) Act, No. LXXIV
of 1949 (hereinafter called the second Mysore Act),
which came into force on November 29, 1949.
On September 21, 1949, the Custodian issued a
notification by which he declared the properties of
the two respondents as evacuee properties which had
vested in him, as the respondents had become ·evacuees. Thereupon two claims were filed under s. 8 of
the first Mysore Act separately by the two respondents. These claims were investigated by the Deputy
Custodian who dismissed the same on April 17, 1950,
declaring that the properties were evacuee properties.
It may be mentioned that in the meantime, the second
Mysore Act had come into force by which the first
Mysore Act was repealed. But s. 53(2) of the second
Mysore Act provided that. anything done or any action
taken in the exercise of any power conferred by the
first Mysore Act shall be deemed to have been done
3 S:C.R.
SUPREME COURT REPORTS
859
or taken in the exercise of the powers conferred by the
'96'
second Mysore Act. It was also provided that any
Custodian of
penalty incurred or proceeding commenced under the Evacu" Proporty,
first Mysore Act shall be deemed to be a penalty incurBangalore
red or proceeding commenced under the second Mysore
v.
Act as if the latter Act were in force on the day on Khan Saheb Abdul
which such thing was done, action taken, penalty
Shukoor
incurred or proceeding commenced. There was howwanchoo J.
ever one difference in the two Mysore Acts.
The
first Mysore Act had provided by s. 5 for the vesting
of all evacuee property situate in Mysore ipso facto in
the Custodian; s. 6 then provided for notific.ation by
the Custodian and s. 8 for preferring claims. The
second Mysore Act however made a departure from
this and s. 5 thereof provided that-
" where the Custodian is of opinion that any property is evacuee property within the meaning
of this Act he may, after causing not ice 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."
Section 6 then provided for vesting of any property
declared to be evacuee property in the Custodian.
Thus while under the first Mysore Act the evacuee
property vested in the Custodian and the person who
claimed that it was not evacuee property had to
make an application under s. 8 and to get it declared
that it was not evacuee property, under the second
Mysore Act there was no vesting in the Custodian and
the Custodian had to give a notice in the manner
prescribed (if he thought any property to be evacuee
property) and after hearing the persons interested to
declare the property to be evacuee property ; and it
was only thereafter that the property vested in him
as evacuee property. Further, the second Mysore Act
also defineq the "Custodian-General " as the Custodian-General of Evacuee Property in India appointed
by the Government of India under s. 5 of the
Administration of Evacuee Property Ordinance (Central Ordinance No. XXVII of 1949), which h11d come
110
860
SUPREME COURT REPORTS
[1961]
i96r
into force on October 18, 1949. Further there was a
C
d .
·'
change in the forum of appeals and instead of the
usto ian o1
H"
l
.
Evacuee Proputy,
1gh Court the appeal ay to the Custodian-General
Bangolore
from an order passed under s. 5 of the second Mysore
v.
Act where the original order had been passed by the
Khan Saheb Abdul Custodian, Additional Custodian or Authorised Deputy
Shukonr
Custodian and in some cases lo the District J ndge
Wanchoo J.
designated in this behalf by the Government under
ss .. 22 and 23 of the second Mysore Act. In addition,
provision was made by s. 25 of the second Mysore Act
for revision by the Custodian-General of orders passed
by the District ,Judge or the Custodian on appeal.
It may be mentioned that the Administration of
Evacuee Property Act, No. XXXI of 1950 (hereinafter called the Act), came into force on the day the
Deputy Custodian passed the order dated April 17,
1950. It may also be mentioned that in the meantime the Constitution of India had come into force on
January 26, 1950, and tho former. State of Mysore
had become the new Part B State of Mysore under the
Constitntion. The Act was to apply to the whole of
India except the States of Assam, West Bengal,
Tripura, Manipur and Jammu and Kashmir. Thus
the Act applied to the Part B State of Mysore on
April 17, 1950, and though there was no specific
provision then in the ·Act repealing the second
Mysore Act it is not seriously disputed that the
Act by necessary implication repealed the second
Mysore Act, as the Act substantially enacted . all
that was contained in the second Mysore Act. However that may be, appeals were filed against the
order of April 17, 1950, before the Custodian. These
appeals were allowed on August 22, 1950. The
Custodian held that there was not sufficient evidence
to prove the respondents as evacuees and consequently
the properties in question could not be treated aR
evacuee properties. On October 3, 1950, the Custodian.
General gave notices to the respondents under s. 27 of
the Act in respect of the order of the Custodian dated
August 22, 1950, and asked them to show cause why
the said order of the Custodian be not revised. On
December 7, 1950, the Administration of Evacuee
3 S.C.R.
SUPRBME COURT REPOI:tTS
861
Property (Amendment) Act, No. LXVI of 1950, was
1961
passed ?Y which i~er alias. _5_8_ of the_ Act was amendCustodia• of
ed and 1t w11s provided that ii unmed1ately before the Eva'"" p,0perty,
commencement of the Act there was in force in any
Bangalo"
State to which the Act extended any law which corresv.
ponded to the Act and which was not repealed by Khan _Saheb Abdul
sub-s. (1) it shall stand repealed.
This was made
Shukoo'
retrospective from the date from which the Act came
Wan,hoo J.
into force (namely, April 17, 1950) and so the repeal
of evacuee property laws which were in force in those
States to which the Act applied which was implicit in
it was made explicit from December 7, 1950, so that
frvm April 17, 1950, only the Act held the field~·
.,.,., .
On ·February 11, 1952, the Custodian-General set
aside the order of the Custodian dated August 22, '
1950, ttnd ordered that further prnceedings in these
cast"s should be taken before the Custodian as an
original matter and he was directed to dispose of the
cases afresh in the light of the. evidence already
recorded and such other evidence as might be produced
before him by the two respondents. When the matter
thus came back to the Custodian he ordered the
Deputy Custodian on April 7, 1952, to record the
evidence and then submit the record to him for final
disposal. Eventually, the matter came before the
Custodian for final disposal on December 2, 1952. He
held that the two respondents were evacuees and their
properties were evacuee properties. This was followed
by two appeals to the High C<mrt on January 2, 1953.
As, however, the respondents fdt some doubt whether
any appeal lay to the High Court two writ petitions
were also filed on September 7, 1953, against the order
of the Custodian. The two appeals as well as the two
writ petitions were disposed of by the High Court by
a common judgment on"February 4, 1954. The High
Court held that the appeals before it were competent.
It further seems to have held that the CustodianGeneral had no power under s. 27 of the Act to revise
the. orcfer passed by the Custodian on August 22, 1950.
Finally, as the High Court held that the appeals were
competent it went into the matter as an appellate
court, and came to the conclusion that the order of the
862
SDPR.li:M:E COURT REPORTS
[1961]
Custodian dated December 2, 1952, was erroneous. It,
custodian of
therefore, allowed the appeals as well as the writ
Evuuee Property, petitions and set aside the order of the Custodian
Bangalore
dated December 2, 1952, and restored the earlier order
Khan Sa:eb Abdul ~fllthe Cdustodlian ~ated bAuguhst c22, 19d50.
Tf hEereupon
Shukoor
io owe
app 10at10ns
y t. e
usto 1an o
vacuee
Property, Mysore, for certificates to file appeals to
Wanchoo J.
this Court on which the High Court granted the certificates, and that is how the four appeals have come
up before us.
The main contention of the learned Additional
Solicitor-General on behalf of the appellant is twofold.
He urges firstly that the High Court was in
error when it held that the Custodian-General had no
power to set aside the order of August 22, 1950, under
s. 27 of the Act. In the second place, his cont~ntion
is that the High Court was in error in holding that
an appeal lay to it from the order of the Custodian
dated December 2, 1952. Therefore, the High Court
could not deal with the matter before it as if it were
hearing an appeal; it could only consider the writ
petitions before it and in doing so it would not be
justified in issuing a writ of certiorari against the
order of December 2, 1952, because that order was nqt·
passed without jurisdiction and there was no error of
law apparent on the .face of the record to call for
interference with it. Mr. Sastri for the respondents in
reply submits that as the proceedings in these cases
began under s. 8 of the first Mysore Act and as th(lre
was nothing corresponding to that section either in
the second Mysore Act or in the Act, which replaced
smicessively the first Mysore Act, the High Court was
entitled to hear an appeal from the order of December 2, 1952, as that order must be held to have been
passed in a proceeding under the first Mysore Act,
even ifit be that the Custodian-General had the jurisdiction to set aside the order of August 22, 1950,
under s. 27 of the Act. Further, Mr. Sastri contends
that the Custodian-General had no jurisdiction to set
a.side the order of August 22, 1950, under s. 27 of
the Act.
3 S.C.R.
SUPREME COURT REPORTS
863
The first point therefore which falls for considera1961
tion is w?ether the Custodian-General had jurisdiction
Custodian of
to set aside the order of August 22, 1950, under s. 27; Evacuee P•operty,
for if he had no such jurisdiction the High Court may
Bangalore
be entitled after holding that the Custodian-General's
v.
order of February 11, 1952, was without jurisdiction, Khan Saheb Abdul
t
t
'd
II
b
d.
I
.
th
Shukoor
o se
as1 ea su sequent procee mgs, eavmg
e
order of August 22, 1950, operative and in full force
wanchoo J.
(assuming for this purpose that the High Court had
jurisdiction in writ proceedings to set aside the order
of the Custodian-General whose headquarters were in
New Delhi).
Now the first Mysore Act had no provision relating
to the Custodian-General. It was the second Mysore
Act which for the first time brought in the CustodianGenera.l and gave him powers of revision under s. 25
with respect to orders passed by the Custodian or the
District Judge in appeal. Then came the Act on
April 17, 1950, by which the Custodian-General was
given the power to call for the record of any proceeding in which any District Judge or Custodian had
passed an order for the purpose of satisfying 'himself
as to the legality or propriety of any such order and
to pass such order in relation thereto as he thought
fit.
This provision is wider than the provision in the
second Mysore Act and is not confined to orders
passed by a District Judge or a Custodian in appeal
and would apply even to original orders passed by the
Custodian, which term, according to the definition in
s. 2(c) includes any Additional, Deputy or Assistant
Custodian of evacuee property. We have already
pointed out that the Act provides substantially for a.II
matters contained in the second Mysore Act and
therefore must be held to have repealed the second
Mysore Act by implication.
But in any case the
question whether the second Mysore Act was repealed
by the Act when it came into force on April 17, 1950,
has been set at rest by the later Central Act, LXVI of
1950. That Act was passed on December 7, 1950, and
s. 2 thereof began thus:
"For section 58 of the Administration of Evacuee
Property Act, 1950, the following section shall be
864
SUPREME COURT REPORTS
[1961]
substituted, and shall Le deemed always to have
Custodian of
been substituted."
Evacuee Property, This clearly shows that Central Act LXVI was
Bangalore
amending s. 58 retrospectively from the date on which
v.
it came into force (namely, April 17, 1950).
The new
K!iaft Saheb Abdul
58
h" h
h
b ·
d ·
A
f
Sh k
s.
w 1c
was t us su st1tute Ill the · ct rom
"
00
'
April 17, 1950,. contained sub-a. (2) which is as
W anchoo J.
follows :-
"If, immediately before the commencement of
this Act, there is in force in any State to which Lhi8
Act extends any law which corresponds to this Act
and which is not repealed by sub-section (1), that
corresponding law shall stand repealed."
It is clear therefore that the second Mysore Act was
expressly repealed as from April 17, 1950, by the Act
in view of this substituted s. 58 put into it retrospectively by Act !;XVI, for the second Mysore Act was undoubtedly a law corresponding to the Act. The High
Court seems to have overlooked the fact that Act
LXVI gave retrospective operation to the new s. 58(2)
which was inserted in the Act. It seems to think that
the second Mysore Act was repealed on December 7,
1950, when Act LXVI came into force.
The High
Court was further in error in holding that the amended sub-s. (3) of s. 58 which was put into the Act also
came into force from December 7, 1950, while as a
matter of fact it c<1.me into force from April 17, 1950,
when the Act itself first came into force.
The position when the Custodian-Genera.I gave
notice in October, 1950, under s. 27 of the Act therefore was that the first Mysore Act had already been repealed by the second Mysore Act and the second Mysore
Act had been repealed by the Act as from April 17,
1950, and therefore in October, 1950, only the Act
held the field. The question then arises whether it
was open to the Custodian-Genera.I to revise the order
dated · August 22, 1950, under s. 27 of the Act in
February, 1952. Nows. 27 is very wide in terms and
gives power to the Custodian-Genera.I at any time
either on his own motion or on application made to
him in this behalf to call for the record of any
proceeding in which any District Judge or Cust.odian
3S.C.R.
SUPREME COURT REPORTS
865
has passed an order for the purpose of satisfying
1961
himself as to the legality or propriety of any order
Custodian of
and to pass such order in relation thereto as he thinks Evacuee Property.
fit.
Prima facie, therefore, these wide words give
Bangalore
power to the Custodian.General to revise any order
v.
Passed by the Custodian. It is urged on behalf of the J(han Saheb Abdul·
h
d.
G
l
Id
t
Shukoor
respondents that t e Custo 1an- enera
cou
no
revise the orc!rr dated August 22, 1950. We are not
wanchoo 1.
impressed by this argument. Now the Act was pasrnd
in 1950 to set up a central organisation for the
custody, management and control, etc., of property
declared by law to be evacuee property with the
Custodian-General at the head. It is also clear that
all si~ilar laws existing in various States on the date
the Act came into force (namely, April 17, 1950) were
repealed by it. The intention of the Legislature
obviously was to provide for the custody and management etc. of evacuee property in the manner provided
in the Act with the Cuetodian-General as the head of
the organisation. Further, action taken with respect
to evacuee property under the first Mysore Act was
deemed under s. 53 (2) of the second Mysore Act to
have been taken thereunder and finally any action
taken in the exercise of the power conferred by
the second Mysore Act was deemed to have been taken
in the exercise of the powers conferred by the Act.
Therefore, any action taken with respect to evacuee
property and any order passed by any Custodian in
any proceeding with respect to such property would
be subject to the revisory jurisdiction of the Custodian.
General under s. 27 in view of the wide language
thereof and the fact that proceedings started under
the first Mysore Act would not, in our opinion, make
any difference to the power of: the Custodian-General
under s. 27.
Obviously the order of August 22, 1950,
was passed when the Act was in force in a proceeding
relating to evacuee property by the Custodian and the
Custodian-General would be competent under s. 27 to
call for the record of that proceeding and satisfy
himself as to the legality or propriety of any such
order and thereafter pass such order in relation thereto
as be thou$ht fit.
\,Ve are, therefore, of opinion that
866
SUPREME COURT REPORTS
[1001]
1961
considering the purpose for which the Act was passed
Custodian of
and the s?ccessive saving clauses in the second Mysore
Evacuee Prop.,1y, Act and m the Act, the Custodian-General had the
Bangalore
power under s. 27 to call for the record of the proceedv.
ing in which the order of August 22, 19.50, was passed
Khan Saheb Abdul and consider its legality or propriety and nass such
Shukoor
order in relation thereto as he thought fit.· Even if
wan,hoo J.
the notice of October, 1950, may be open t.o question
as it was issued before Act LXVI of 1950 was passed,
there can be no doubt that the order of February, 1952,
under s. 27 was passed after hearing the parties and
would be valid and within the jurisdiction of the
Custodian-General when it was passed. Therefore, the
order of the Custodian-General dated February 11,
1952, being within his jurisdiction would not be liable
to be set aside on a writ of certiorari as if the
Custodian-General had acted without jurisdiction. The
subsequent proceedings, therefore, which took place
after the order of the Custodian-General would also be
with jurisdiction and would not be liable to be set
a.side on a writ of certiorari on the ground that they
were without jurisdiction. The High Court, therefore,
was in error in holding that the order of the Custodian.
General dated February 11, 1952, was without jurisdiction and therefore all subsequent proceedings taken
in pursuance thereof were also without jurisdiction,
with the result that the order of August 22, 1950,
stood fully operative
This brings us to the next question whether any
appeal lay to the High Court against the order of
December 2, 1952. There is no doubt that the proceedings in the present case commenced under the first
Mysore Act with a notification under s. 6 and claim
applications under s. 8. If the original proceedings had
finished when the first Mysore Act was in force and
the order of December 2, 1952, had been passed during
its operation there would undoubtedly have been an
appeal to the High Court under s. 30 thereof. But the
first Mysore Act was repealed lly the second Mysore
Act in November, 1949, and the second Mysore Act
was in its turn repealed by the Act as from April, 1950.
The question, therefore, that arises for consideration
38.C.R.
867
is whether after the repeal of the first Mysore Act an
1961
appeal would still lie to the High Court from the order
.
of December 2, 1952. The main contention of Mr. Sastri
Cusfod••n °1
in this behalf is that if the second Mysore Act or the Evacuee P,operty,
Bangal01'e
Act contained provisions which were similar to the
v.
provisions contained ins. 8 of the first Mysore Act, it [(kan Saheb Abdul
may have been possible to say that the remedy providShukoor
ed by the first Mysore Act under s. 30 had been
superseded by the remedy provided in the Act, that
Wanchoo f.
remedy being an appeal to the Custodian-General
under s. 24 of the Act. The argument further proceeds
that neither the second Mysore Act nor the Act
provides anything similar to what was provided by
s. 8 of the first Mysore Act. Therefore, even though
the first Mysore Act was repealed by the second
Mysore Act the proceedings in the present case must
be deemed to be still under the first Mysore Act which
must be deemed to be existing for this purpose and,
therefore, the right of appeal being a vested one and
a.rising when the proceedings commenced, there would
still be a right of appeal under s. 30 of the first Mysore
Act in spite of its being repealed. When the matter
ca.me before the Custodian in 1952 it was contended
before him that the proceedings should be taken to be
under the first Mysore Act. He accepted this contention, though he added that it was immaterial for the
purposes of the present cases as the definition of
"eva.cu"1l" in s. 2(c) of the first Mysore Act was
practically the same as in s. 2(d) of the Act. It is
urged that in view of the manner in which the
Custodian dealt with the case when he passed the
order dated December 2, 1952, the proceedings before
him must be taken to be under the first Mysore Act
and if so an appeal would lie to the High Court under
s. 30 of the first Mysore Act. This view has been
accepted by the High Court also and that is why it
held that the appeals before it were competent; and
it is the correctness of this view which has been
challenged before us.
Now there is no doubt that the right of appeal is a.
substantive right and a.rises when a. proceeding is
commenced and cannot be ta.ken a.way by subsequent
'"
868
SUPREME COURT REPORTS
[1961]
legislation, except by express provision or necessary
custodian of
intendment. There is no express provision in the
Evacuee Property. present case taking away the right of appeal conferred
Bangalo"
by the first Mysore Act.
We have therefore to see
v.
whether it can be said that the right of appeal conKhan s~·~•b Abdul ferred by the first Mysore Act has been taken away by
u
00
'
necessary intendment by the subsequent legislation;
wanckoo J.
and if so whether it has been completely taken away
or has been replaced by anuther right of appeal,
thongh not to the High Court. Under the first Mysore
Act, as we have already pointed out, evacuee property
ipso facto vested in the Custodian under s. 5. Thereafter the Custodian was expected to notify such
property under s. 6.
On such notification or where
the Custodian demanded surrender of possession, a
person claiming any right to the property was entitled
to make an application preferring a claim before the
Custodian.
That application
was dealt by the
Custodian in a summary manner and he had the
power either to reject the application or allow it in
whole or in part. An order passed by the Deputy or
the Assistant Custodian under s. 8 was appealable to
the Custodian ahd an order passed by the Custodian
or Additional Custodian or an authorised Deputy·
Custodian was appealable to the High Court. The
contention on behalf of the respondents is that when
the first Mysore Act was replaced by the second
Mysore Act, there was a vital change in the procedure
a.hd therefore cases in which proceedings had commenced under s. 8 could only be dealt with under 'the
first Mysore Act and for that purpose the first Mysore
Act would be deemed to be alive under s. 6 (e) of the
Mysore General Clauses Act, No. III of 1899, which
corresponds to s. 6 (e) of the General Clauses Act,
No. X of 1897. Now there is no doubt that the
proceedings in these cases commenced under the first
Mysore Act though they terminated when that Act
was no longer in force.
What we have to . see is
whether there is anything in the repealing legislation
whfoh by necessary intendment took a.way the right
of appeal provided by the first Mysore Act and substituted In its place another right of appeal provided by
the repealing Act,
3 S.C.R.
SUPREME COURT REPORTS
869
The argument of Mr. Sastri is that there is nothing
z961
in the second Mysore Act which repealed the first
.
Mysore Act corresponding to s. 8 of the first Mysore E Custoap•anpof1
.
.
l
f h fi
i:acuee_
ro er y,
Act and therefore m spite of the repea o t e rst
Bangalore
Mysore Act proceedings commenced under s. 8 of that
v.
Act would continue to be governed thereby, including Khan Sahib Abdul
the right of appeal. In this connection he urges that
Shukoor
the scheme of the second Mysore Act with respect to
~
Wanchao ].
evacuee property is vitally different from the scneme
which is to be found in the first Mysore Act. In the
second Mysore Act there is no provision corresponding to s. 5 of the first Mysore Act by which any
prnperty becomes ipso facto evacuee property and
vests· in the Custodian.
Under the second Mysore
Act the Custodian has first to form a tentative opinion
whether the property is evacuee property and after
he has formed such opinion he gives notice thereof to
the persons interested ; after such notice is given he
holds inquiry into the ma.tter and thereafter passes an
order declaring the property to be evacuee property.
Thus under the first Mysore Act the property became
evacuee property ipso facto and the person claiming
any interest in it had to proceed under s. 8 and make
a claim which had to be investigated and thereafter
the Custodian finally declared whether the property
which he had notified under s. 6 was evacuee property
or not. Under the second Mysore Act there being no
vesting ipso facto, the proceeding commences with a
notice by the Custodian to the person interested
f<;>llowed by an inquiry after which the Custodian
decides to declare. the property evacuee if he finds it
to be so under the law. Further under the second
Mysore Act when an order was passed declaring property to be evacuee property under s. 5 it was open
to the person aggrieved by such order to file an
appeal to the Custodian where the original order had
been passed by the Deputy Custodian or Assistant
Custodian and to the Custodian-General where the
original order had been passed by the Custodian, Additional Custodian or Authorised Deputy Custodian.
T.here was also in certain cases appeal to the District
Judge; but we a.re not concerned with that in the
c
870
SUPREME COURT REPORTS
[1961]
1961
present appeals.
The position under the Act was
Cuslolian of
also the same as under the second Mysore Act and
Evacuee Pyop .. 1y, the right of appeal was also similar.
Bangalor<
It is thus true that there has been a change in the
v.
procedure by which evacuee property is
finally
«nan5
~ahkeb Abdu1declared to be evacuee property. Under the first
nu OOY
M
A
h
b
__
ysore
ct t e property
ecame evacuee property
wanchoo J.
and the person had to go and file a claim and establish
that it was not. That claim was investigated and after
investigation the Custodian had to come to a final conclusion whether the property was evacuee or not. lf
he came to the conclusion that it was evacuee property, the vesting under s. 5 was confirmed. If on the
other hand he came to the conclusion that the property was not evacuee property the legal effect was
that there was no vesting under s. 5 of the first
Mysore Act.
Under the second Mysore Act the property did not ipso facto vest in the Custodian as
evacuee property but he formed a tentative opinion
as to whether it was evacuee property and then gave
notices to the persons interested. They appeared
before him and the matter was investigated. He then
had to come to a final conclusion whether the property
was evacuee property or not. If he came to the conclusion that it was evacuee property he declared it to
be such; if on the other hand he ca.me to the conclusion that it was not evacuee property the proceedings
came to an. end. It will be seen therefore on a comparison of the two procedures that though there is
difference between the two, the difference is not of a
vital or substantial nature. In the one case the law
started w!th the presumption that the property was
evacuee property and the person interested had to go
and make a claim and establish that it was not
evacuee property and the matter had to be investigated and the Custodian finally had to come to the
conclusion one way or the other. In the other case
the law did not start with the presumption but only a
tentative opinion was to be formed by the Custodian
who gave notice to the person interested and the
matter was then investigated and thereafter the
Custodian had to decide finally one way or the other.
38.C.R.
SUPREME COURT REPORTS
871
But in both cases the question whether the property
tf/61
was evacuee property or not was investigated and it
Custodian of
was only after investigation that it could be finally Ev0<u" p,0p.,1y,
said whether the property was evacuee property or
Bangalore
not. Therefore, though there may be an apparent .
v.
difference between what is provided by s. 8 in the Khan Sah•b Abdul
A
d b
.
h
d M
Shukoo•
first Mysore
ct an
y s. 5 m t e secon
ysore
Act as also by s. 7 in the Act, the difference is
Watrchoo J.
not material and it is only after investigation
whether under s. 8 of the first Mysore Act, or
under s. 5 of the second Mysore Act or under s. 7 of
the Act that the Custodian comes to the final conclusion whether the property is evacuee property or not.
Under the circumstances it would not in our opinion
be unreasonable to
say that the investigation
provided under s. 8 of the first Mysore Act and the
subsequent remedies following on an order under s. 8
a.re in substance the same as the investigation provided under s. 5 of the second Mysore Act or s. 7 of
the Act a.nJ the subsequent remedies following on an
order thereon. We cannot, therefore, agree with the
High Court that there is nothing in the second Mysore
Act to correspond to s. 8 of the first Mysore Act and
therefore these proceedings which began under the
first Mysore Act must continue to be governed by that
Act in spite of its repeal by the second Mysore Aot.
As we have pointed out above the proceedings under
s. 8 of the first Mysore Act are in substance equal to
proceedings under s. 5 of the second Mysore Act and
therefore proceedings commenced under the first
Mysore Act must in view of s. 53(2) of the second
Mysore Act, be deemed to be proceedings under s. 5
of the latter Act. Once that conclusion is rea.cheda.nd it seems to us that it is inevitable-it follows that
a.n order ma.de ,in a proceeding commenced under. s. 8
of the first Mysore Act must be deemed to be a.n order
ma.de under s. 5(1) of the second Mysore Act or under
s. 7(1) of the Aot.