Case Note & Summary
This civil appeal by special leave arose from the judgment of the Patna High Court which dismissed a writ petition under Article 226 of the Constitution challenging an order of the Custodian of Evacuee Property, Bihar. The appellant, Md. Sharfuddin, owned holdings Nos. 326, 774 and 654 which were the subject matter of proceedings under the Administration of Evacuee Property Act, 1950 (Act 31 of 1950). The dispute centered on whether these properties were evacuee properties and whether an appeal by an Assistant Custodian against an order of another Assistant Custodian was maintainable. On information supplied by Qurban Ahmad, the Assistant Custodian, Giridih, issued a notice under Section 7(1) of the Act to the appellant to show cause why the holdings should not be declared evacuee properties. After inquiry, the Assistant Custodian held that the holdings were evacuee properties. The appellant filed a revision under Section 26 of the Act to the Deputy Custodian, Hazaribagh, who set aside the order and remanded the matter. On April 26, 1954, the Assistant Custodian, Giridih, after considering evidence, held that the properties were not evacuee properties and released them. Thereafter, the Custodian acting under Section 26(1) called for the records, and after hearing the appellant, by order dated January 27, 1955, dropped the proceedings. However, on February 22, 1955, the Assistant Custodian, Headquarters, Patna filed an appeal before the Custodian under Section 24(1)(a) of the Act against the order dated April 26, 1954, releasing the holdings. On August 4, 1955, the Custodian set aside the order of the Assistant Custodian, Giridih, and declared the shares of the appellant's brothers in the holdings to be evacuee properties, referring the matter for separation of their interest. The appellant challenged this order before the High Court under Article 226, but the High Court dismissed the application. Before the Supreme Court, four contentions were raised: (1) no appeal lay to the Custodian from the order of the Assistant Custodian, Giridih, at the instance of the Assistant Custodian, Headquarters, Patna; (2) under Section 7-A of the Act, the Custodian had no power after May 7, 1954 to declare any property evacuee unless proceedings were pending on that date, and the appeal was filed only on February 22, 1955; (3) the Custodian acted perversely in condoning delay without reasons; and (4) the notice under Section 7(1) was defective. The appellant's counsel seriously pressed only the first two contentions. The Supreme Court examined the scheme of the Act, noting that Section 2(c) defines 'Custodian' to include any Additional, Deputy or Assistant Custodian, and that Section 6 provides for their appointment and distribution of work under the general superintendence and control of the Custodian. The Court observed that all such officers are Custodians within the statutory definition, and the Act provides a hierarchy of tribunals with revisional jurisdiction under Sections 26 and 27 to correct errors. The Court held that the words 'any person aggrieved' in Section 24 cannot include any Custodian, because the Act does not contemplate one officer preferring appeals against the order of another officer; if a Custodian incorrectly declares or releases property, the remedy is by revision, not appeal by another Custodian. The decision in Ebrahim Aboobakar v. Custodian-General of Evacuee Property was distinguished because there the rules framed under the Ordinance specifically provided for a third party informant to participate as a party, which was not the case here. Accordingly, the Supreme Court held that the appeal filed by the Assistant Custodian, Headquarters was incompetent and allowed the appeal, setting aside the order of the Custodian.
Headnote
A) Appeal - Person Aggrieved - Assistant Custodian Not a 'Person Aggrieved' Under Section 24 - Administration of Evacuee Property Act, 1950, Section 24(1)(a) - The Assistant Custodian, Headquarters, Patna filed an appeal before the Custodian against an order of the Assistant Custodian, Giridih, which held certain properties not to be evacuee property and released them. The Supreme Court held that all Custodians, including Additional, Deputy and Assistant Custodians, fall within the definition of 'Custodian' under Section 2(c) of the Act and the statutory scheme does not contemplate one Custodian preferring an appeal against the order of another Custodian; the words 'any person aggrieved' in Section 24 cannot include any Custodian as defined in the Act. Held that the appeal filed by the Assistant Custodian, Headquarters was incompetent and the order passed by the Custodian declaring shares evacuee property was set aside.
Issue of Consideration
Whether an Assistant Custodian is a 'person aggrieved' within the meaning of Section 24(1)(a) of the Administration of Evacuee Property Act, 1950, and can prefer an appeal against an order of another Assistant Custodian releasing property as not evacuee property; also whether the Custodian had jurisdiction under Section 7-A to declare property evacuee after the prescribed date.
Final Decision
The Supreme Court held that the appeal filed by the Assistant Custodian, Headquarters, Patna was incompetent because he was not a 'person aggrieved' within the meaning of Section 24 of the Administration of Evacuee Property Act, 1950. The Court set aside the order of the Custodian dated August 4, 1955 declaring the shares of the appellant's brothers as evacuee property and allowed the appeal.
Law Points
- Section 24(1)(a) Administration of Evacuee Property Act
- 1950 - 'any person aggrieved' does not include a Custodian
- all categories of Custodians fall within statutory definition under Section 2(c)
- Act does not contemplate one Custodian appealing against order of another Custodian
- remedy for erroneous release of evacuee property is by revision under Sections 26 and 27
- not appeal by Custodian.
