Case Note & Summary
The appeals before the Supreme Court arose from a dispute over evacuee property exchanged between individuals who migrated to Pakistan and Indian residents. Bharoomal and Padma Devi, the appellants, entered into agreements in April 1948 with Nanan Begum and Tahir Ali respectively to exchange properties in Sukkar, Pakistan for properties in Lucknow, India. Possession was exchanged pursuant to the agreements, but the deeds of exchange were never executed within the stipulated two years. In 1950, Bharoomal and Padma Devi instituted suits for specific performance, which were decreed, and sale deeds conveying the properties were executed by the court in February 1952. Meanwhile, in October 1949, the U.P. Administration of Evacuee Property Ordinance, 1949 was promulgated, followed by the Central Ordinance No. XII of 1949, which extended to the United Provinces and replaced the U.P. Ordinance. After Nanan Begum and Tahir Ali migrated to Pakistan, their properties in India vested in the Custodian of Evacuee Property. The appellants applied under clause 25(2) of the Central Ordinance for confirmation of the exchanges, and the Deputy Custodian granted confirmation in 1950. However, in 1951, the Custodian suo motu revised those orders, set aside the confirmation, held that the agreements did not amount to transfers and the court deeds were not confirmed, and therefore the appellants' possession of the evacuee properties was unauthorised. The Custodian ordered that possession be taken back and that the appellants be required to account for rents and profits realised from the properties. Revisions filed before the Custodian General were rejected by order dated March 12, 1954. In the Supreme Court, the only ground pressed was that the Custodian had no jurisdiction to pass an order requiring the appellants to render accounts of rents and profits. The appellants conceded that the orders setting aside the confirmation were rightly passed. The respondent argued that the property automatically vested in the Custodian under clause 5(1) of the U.P. Ordinance and continued to vest under the Central Ordinance, and that section 8(2) of the Administration of Evacuee Property Act, 1950 deemed such property to be vested in the Custodian. The respondent relied on section 10 of the Act and rule 10 of the Central Rules, contending that these provisions conferred power to recover rents and profits from an unauthorised occupant. The Court examined section 10 and rule 10 and held that the words "for the purposes of securing, administering, preserving and managing any evacuee property" did not confer a power to determine and recover rents and profits in a summary manner. Sub-section (2) of section 10 enumerated specific powers but none related to recovery of rents and profits from unlawful occupants. Rule 10(1) only authorised the Custodian to recover possession of property from persons not having lawful title; it did not entitle the Custodian to determine and recover rents and profits. Rule 10(2) applied to tenants or licensees whom the Custodian could not or did not want to eject, and it did not apply to unauthorised occupants, nor did it confer power to determine rents or recover rent summarily. Consequently, the Court quashed the portion of the Custodian's order requiring the appellants to pay rents and profits, leaving both parties at liberty to take steps at law for their respective claims. The appeals were allowed, with costs borne by the respondents.
Headnote
A) Evacuee Property - Custodian's Powers - Recovery of rents and profits from unauthorised occupant - Administration of Evacuee Property Act, 1950 (31 of 1950), Section 10; Administration of Evacuee Property (Central) Rules, 1950, Rule 10 - The Custodian passed an order requiring appellants in unauthorised possession of evacuee property to render accounts of rents and profits without filing a suit. The Court examined Section 10 and Rule 10 and held that neither provision conferred power to determine and recover rents and profits in a summary manner from an unauthorised occupant. Held that the Custodian had no power to direct rendering of accounts and must resort to ordinary remedy by way of suit; the impugned portion of the order was quashed.
Issue of Consideration
Whether the Custodian of Evacuee Property had jurisdiction under the Administration of Evacuee Property Act, 1950 or the Rules to direct a person in unauthorised possession of evacuee property to render accounts of rents and profits thereof without resorting to a suit.
Final Decision
Appeals allowed; portion of Custodian's order confirmed by Custodian General requiring appellants to pay rents and profits in respect of properties of Nanan Begum and Tahir Ali was quashed and set aside; both parties at liberty to take steps at law for establishing or enforcing their respective claims; costs of appeal borne by respondents; only one hearing fee.
Law Points
- Custodian under Administration of Evacuee Property Act
- 1950 has no power to direct unauthorised occupant to render accounts of rents and profits without resorting to suit
- Section 10 does not confer power to recover rents and profits from unlawful occupant
- Rule 10 only permits recovery of possession
- not summary determination and recovery of rents and profits
- summary power must be expressly conferred
