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 pro­

viding 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 Act­

Custodian-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

Authoris­

ed 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

confer­

red 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, pro­

vided 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, immediate­

Evactm 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 notifi-

cation 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 pro­

perties.

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 Custodian­

General 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 Decem­

ber 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 Administra­

tion

of Evacuee Property Act,

1950, was passed and the succes­

sive 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 hold­

ing

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 whe­

ther 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

Peti­

tions 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 respond­

ents.

1961.

February

20. The Judgment of the Court was

delivered by

WANCHOO, J.-These are four appeals on certifi- Wanchao 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 compli-

cated and may be mentioned in some detail. On

July 7, 1949, the then State of Mysore passed The

Mysore Administration of Evacuee Property (Emerg-

ency) 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

'9

6

' 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 pro-

Khan Saheb Abdul perty vested in him.

0

Section 8 provided that any

Shukoor J . . . ht t . t .

person c a1mmg

any ng o or

m erest m any pro-

Wauc!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 provi­

sions

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 pro­

vided 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 Eva­

cuee 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

·eva­

cuees. Thereupon two claims were filed under s. 8 of

the first Mysore Act separately by the two respond­

ents. 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 '9

6

'

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 incur- Bangalore

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 how- wanchoo 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 pro­

perty 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 Custo­

dian-General of Evacuee Property in India appointed

by the Government of India under s. 5 of the

Administration of Evacuee Property Ordinance (Cen­

tral 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 (herein­

after 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 mean­

time 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.

How­

ever 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

1

961

passed

?Y which i~er alias. _5_8_ of the_ Act was amend- Custodia• 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 corres- v.

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 Custodian­

General 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 certi­

ficates, 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

two­

fold. 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

Decem­

ber 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

juris­

diction 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 considera-

1

96

1

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 Custodian­

Genera.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

proceed­

ing 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 retrospect­

ively by Act !;XVI, for the second Mysore Act was un­

doubtedly 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 amend­

ed 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 there­

fore was that the first Mysore Act had already been re­

pealed 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

1

9

61

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.

P

assed 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 manage-

ment 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]

1

96

1

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 proceed-

v. 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

juris­

diction 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

proceed­

ings 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 provid-Shukoor

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 conten-

tion, 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 con-

Khan 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.

There­

after 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 com­

menced 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 substi­

tuted 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•anpof

1 . . 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 correspond-

ing 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 pro-

perty 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, Ad-ditional 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]

1

961

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

«nan

5

~ahkeb Abdu

1

declared 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

con­

clusion whether the property was evacuee or not. lf

he came to the conclusion that it was evacuee pro­

perty, the vesting under s. 5 was confirmed. If on the

other hand he came to the conclusion that the pro­

perty 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 pro­

perty 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 con­

clusion that it was evacuee property he declared it to

be such; if on the other hand he ca.me to the conclu­

sion that it was not evacuee property the proceedings

came

to an. end. It will be seen therefore on

a com­

parison 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

investigat­

ed 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/6

1

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 conclu-

sion 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 pro-

vided 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.ched-

a.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. In this connection it is relevant to

point out that it could not have been the intention of

the Legislature to keep the first Mysore Act a.live for

certain purposes for all

time; the whole object of pass-

ing

the subsequent Acts is plainly against such

an

assumption.

872 SUPREME COURT REPORTS [1961]

'

941

The next question that arises is whether the second

C•sJodi•uof Mysore Act and the Act took away theright of appeal

E-.1?,operiy, which lay to the High Court under the first Mysore

B°""""'• Act and substituted for it another right of appeal by

v. necessary intendment. As we have already pointed

KA"";:!o.Abdul out, there is no express provision either in the second

Mysore Act or in

the Act in this behalf. But once W•••<AooJ. it is held that proceedings which commenced under

s. 8 of the first Mysore Act must, when the second

Mysore Act

ca.me into force, be deemed under s. 53(2)

thereof to be proceeding under s. 5(1) or when

the

Act ca.me into force be deemed under s. 58(3) thereof

to be proceeding under s. 7(1) and must be continued

under those provisions,

it follows that the

legis•

la.ture necessarily intended that a.II subsequent

action following an order under s. 5(1) ors. 7(1) must

be t:iken under the second Mysore Act or under

the Act as the case may be. It could not have been

intended by

the legislature when it was expressly

providing for appeal from an order

undet s. 5(1)

of the second Mysore Act or under s. 7(1) of the

Act that

a proceeding commenced under the first

Mysore Act (which was equivalent to a proceed­

ing under s. 5(1) or s. 7(1) should continue .to be

governed in

the matter of appeal by the first

My~ore

Act. This is therefore in our view a case where by

necessary intendment (though not by express provi­

sion) the legislature intended that the provision as to

appeals provided by subsequent legislation should

supersede

the provision as to appeals under the

firat

Mysore Act. We may point out that this is not a.

case. where the right of appeal disappears altogether;

all that hs.ppens is that where the order is passed by

the Custodian the appeal lies to the Custodian-General

in.stead of to the High Court. The legislature has pro­

vided another forum where the appeal will lie and in.

the circumstances it must be held that by necessary,

iutendment the legislature intended that forum almie

to be. the forum where the appeal will lie and not the.

forttm under the first Mysore Act. Reference in this

C;)QQeetion may be ma.de to Garikapatti Veeraya. v.

I"'

;,

'

_,

~ ;g;C.R. SUPREMEfCOURTi REPORTS AT3

N.,Bubbiah' Ohoudhury (

1

);:'\Yhere . this Court, held.i that .,.sz

the·vested ·right of a.ppeal•was a. ~ubstantive .right •ll:nd """'°""'•of

:was governed by the .faw .preva1lmg1at.the .tirue of the E.-... Pr.,m:y.

commencement of· the ·suit and comprised all succes-s..,.i.,,

sive rights of appeal from.court to .court which really v.

constituted one proceeding but added that such ,right K,,.• :::,::.,AWul

oould ·be .. t:J.kenawayexpresslyor by necessary;in~nd~

ment. In the present cases we ,1ue . of. opin~OI).; that. w-. J.

once proceedings under s. sn) of the first :Mysore .Act

a Te held to be .similar to proceed in gs, under s, 5( 1 f of

the.second Mysore Act ors. 7(1) .. of.the ~ct"it mu.st

necessarily. follow. that. the legislature intend~d that

all subsequent proceedings .in the nature of. l!-ppeal,

after the first Mysore Act pame to an end;. mµst. be.,_in

the, forum provided. by the . subsequent . legislation.

We.,are therefore of opinion, that the High Court was,

in error in holding, that, appeals to it lay from .the

order

of December 2,.

11952. .,

.. The result.of.the vie.'\'., .we ,have taken .. is that the

High .Court Was not justified in looking into ,the order

of December 2, 1952, !1-8 an app¢11at~ court, though •i.t

would be .. justified in scrutinizing that 9rder as· if it

was brought.before it.under,Art. 226 of ~he Con.stitu­

tion for :issue of a writ1 of cei;tiorari. The . .limit ofthe

jur~diction.,of,the .High Cqurt .in is~uing writsof

certiorari.'was consider,ed ,by this Court, in Ha:r,i fishn,u

Karnath y. Syed Ahmed ~shaque ,and Others(') and, tlie

following .four propositions were laid dow.n :-· · ·

(1) Certiorari will be issued for correcting errors

of jurisdiction ;

{2) Certiorari will .also be issued when the Court

, or Tribunal acts. illegally. in tlie exercise of. its un­

doubted· jurisdiction, as whe~ it decides withollt

,· ,giving an opportunity to the. parties to be hba.rd, or

violates the principles of natural justice; · . ·

· (3). The court .issuing a writ of certiorari a!Jts in

. · exer<Jise .of a supervisory ,a.n<,l not appellate juris­

, dic,tion. One c9nsequen9e of this is that the 11aurt

.. will not review findings of fact reached ·by the

·inferior court or tribunal, e.ven if they be erroneous;

( 4) An error in the decision or determination

itself may also be amenable to a writ of certiorari if

l•l (1957J s.c.R. 488, (1) (1955J 1 s.c.R. 110~.

874 SUPREME COU:ll.T REPORTS t1D61]

1

¢

1

it is a manifest error apparent on the face of the

c, ..

1

.,,

10

., of proceedings, e.g., when it is ba.s_ed on clear ignorance

E.,.,_ Prop.,1y, or disregard of the provisions of!a. w. In other words,

S...,olore it is a pa.tent error which ca.n be corrected by certio.

•· rari but not a. mere wrong decision.

KAa. S•lllb Alnlul I th t. . t.h C t d' h· d . . d' .

SAuA••• n e presen case, e us CY 1a.n a. 1ur1s 1ct1ofi

--to decide the matter once it is held that the Cnato.

Wa#C4oa J. dian-Genera.l ha.d jurisdiction to eet a.side the oder of

August 22, l!l50. The ma.in question for decision in

these

ca.sea

wa.s whether the respondents were eva.­

cueed within the meaning of s. 2(c) of the first Mysore

Aot. The questions that fall for decision under s. 2(c)

are questions of fa.ct a.nd a.a pointed out in Hari

Vishnu Kamath's case(') it is not open on a.writ pray.

ing for certiorari to review findings of fa.ct i'ea.ched by

an inferior court or tribunal even though they ma.y

be erroneous. Further, unless there is a. pa.tent error

of law there can be no interference by a writ of

certiorari. While dealing with the writ petitions the

main argument

that

appealed to the High Court wa.s

that the Custodian-Genera.I . had no jurisdiction in

revision to reopen the earlier proceedings a.nd in

consequence

a.ll subsequent proceedings

were null 11.fid

void. The High Court wa.s further aware of the fa.ct

that the ordinary remedy of the respondents in these

oases against the order of December 2, 1952, wa.s to

appeal to the Custodia.n-Genet_a.l ufider s. 24 of the

Act ; but a.s it wa.s of the view that the order of the

Custodian-Genera.I under s. 27 wa.s without jurisdio.

tion it held that it should interfere a.nd set aside the

order of December 2, 19u2, which was also without

jurisdiction a.nd restore that of August 22, 1950.. In

the view we have lie.ken, the order of the Custodi&.n·

Genera.l was with jurisdiction a.nd therefore there .wa.s

in our opinion no reason for the High Court to inter­

fere in the exercise of its jurisdiction under Art. 226

of the Constitution with the order of December 2,

1952, a.s this is a. case where only a. writ of certiOrari

could issue a.nd that is not justified in view of ~he

deoieion in Hari Vi.shnu Kamath's case(').

(!I [•95'1 I $.C.R. 1104.

'

'

't·

I

L

,

3 S.C.R. SUPREME COURT REPORTS 875

We therefore allow the appeals, set aside the order

1

961

of the High

Court and restore that of the. Custodian Custodian of

dated December ll, 1952 .. This of course will not take Evacuee Prop 111y,

a.way the right if any of the. respondents to approach Bangalore

the Custodian-General, for we ha-ve not <JOn~dered v.

the merits of the order of December 2, 1952. In the KhanSahebAbdul

· f th' d t Shukoor

circumstances o . 1s case we pass no or er as o

costs. Wanchoo ].

Appeals allowed.

SARDA PRASAD AND OTHERS

v.

LALA JUMNA PRASAD AND OTHF.RS.

(P. B. GAJENDRAGADKAR and K. C. DAs GuP'rA, JJ.)

Limitation-Execution-Decrre for joint possessic;i in favour of

Hindu father and minor sons-Failure of father to exewte within the

period of limitation-Right of sons; if barred-Indian Limitation

Act, I908 (9 of z908), s. 7-Code of Civil Procedure, 1908 (5 of 1908);

0. ,3a, rr. 6, 7.

A decree dated September 2, 1938, in a suit for partition of

joint Hintlu family property awarded a house to

the share of one

J and his lour minor sons. J failed to execute the decree.

On

November 23, 1949, an application wa; made by the appellants,

the four sons of J, for execution of the decree stating that throe of

them had been minors till then and one of them was still a minor

and so no question of limitation arose. The respondent objected

that the application was barred under s. 7 of the Indian

Limita­

tion Act. The appellants contended that s. 7 did not apply to a

partition decree

and thats. 7 was no bar as J conld not have given

a valid discharge of the liability under

the decree in view of

the provisions of

0. 32 of the Code of Civil Procedure.

Hel1, that the application for execution was barred by limita­

tion. J, the managing member of the family could have given a

discharge of the liability under the partition decree by accepting

JA)Ssession on behalf of his minor sons without their conseP.t and

so time ran against them under s. 7 from the date of the decree.

Order 32, rr. 6 and 7 were no bar to J giving a discharge of the

liability under the decree as it was neither a case of receipt of any

money or movable property nor was there any question· of enter­

ing into

an agreement or compromise on behalf of the minors.

Ganesha Row v. Tuljaram Row,

(1913) L.R. 40 I.A. 132,

Parm.shwari Singh v. Ranjit Singh, A.LR. 1939 Pat. 33 and

Letchmana Chetty v. Subbiah Chetty, (1924) I.L.R. 47 Mad. 920,

referred to.

1961

F8bruary ao.