Mohd. Fazlur Rahman and Others vs Custodian of Evacuee Property and Another

Palnitkar and Srinivasachari, JJ.—Three persons viz., Mohamed Fazlur Rahman, Ibrahim and Abdur Razack have filed a petition for a Writ of Certiorari against the Custodian of Evacuee Property for a declaration that the possession of certain joint property taken over by the Custodian is unlawful as being in excess of his jurisdiction and that the property in question be released from his possession in favour of the Petitioners.

The allegations of the Petitioners are that in the joint properties which are ancestral, Petitioner 2 and 3 each has one-third share and Petitioner 1 with his two other brothers Salamatullah and Fazlullah the remaining one-third. The two brothers of Petitioner 1 went to Karachi in Dai 1358F and therefore the Custodian declared the properties specified in Schedule "A" to the petition to be evacuee properties.

The Petitioners claimed before the Custodian that his order be vacated on the ground that in the property each of the two persons named above had only one-ninth share. But the Deputy Custodian while accepting the property to be joint refused to exempt the shares of the Petitioners on the ground that the applicants 2 and 3 were only entitled to Rs. 150/- per month and that the share of applicant 1 was only one-sixth.

The Deputy Custodian directed the payment of their respective shares in cash. On appeal the Custodian opined that because the shares of the evacuees were more than 50 per cent the property could not be released.

There are several allegations in the petition but the main point is that the Custodian cannot take possession of the property however small which does not belong to the persons covered by the definition of the word "evacuee" under the Administration of Evacuee Property Act 31 of 1950.

The reply of the Custodian is that the properties in question belong to partnership under which Petitioners 2 and 3 were entitled only to a fixed share of Rs. 150/- each per month, that the two evacuees together with applicant 1 were managing the factory, their share being two-thirds i.e., more than half, that the possession of the properties can be taken under the proviso to Rule 9 of the Evacuee Property Rules, and that the jurisdiction and the merits of the decision rest with the Deputy Custodian and the Custodian.

The argument of the learned Counsel for the Petitioners is that the proviso to Rule 9 is ultra vires as it is beyond the authority conferred by the Legislature and contrary to the provisions in the Act; and that it contravenes the fundamental rights conferred in Part (iii) of the Constitution if it is held that the said proviso authorises the vesting of property of persons who are not evacuees.

Counsel filed a copy of the judgment of the High Court of Bombay in - P.R. Nayak Vs. Ebrahim Aboobaker and Another, in support of his contention. A copy of the judgment in the same case delivered on 5-10-1950 by the learned Judge on the original side of the same High Court has also been filed.

The first question to be decided is whether the Administration of Evacuee Property Act (which will hereinafter be mentioned as the Act), is a valid law. It is, in the appellate judgment of the Bombay High Court referred to above, held that Parliament has authority to enact a piece of legislation which may permit the Custodian to encroach upon the rights of strangers. We agree with this view.

A reference was made to Article 31 Clause (ii) of the Constitution and it was argued that the property of non-evacuees cannot be taken possession of without paying compensation to them. In our opinion, the possession mentioned in Article 31(ii) refers to the taking of possession of any property for public purpose thereby destroying the ownership.

The possession of the properties of strangers or non-evacuees which the Custodian has taken over is not outright possession, nor does it destroy their ownership, but it is incidental for the purposes of the administration of the property belonging to the evacuees. Whether the Custodian has such a right under the Evacuee Property Act is a different question which shall be dealt with later, but it has nothing to do with the compulsory acquisition of property for public purposes referred to in Article 31 of the Constitution.

When property is taken over under Article 31 for public purposes, the right, title or interest as the case may be of the owner of the property is extinguished to that extent. Such will not be the case if it is held that the Custodian of Evacuee Property can take possession of the property of the strangers for the purposes of administering the property belonging to the evacuees.

The right, title or interest of the non-evacuees will still be alive only the physical possession will not be with them and the Custodian will manage the property on their behalf while they will be entitled to the benefits accruing from the property in possession of the Custodian.

5-A. Now, we will refer to certain Sections of the Administration of Evacuee property Act. Section 2 Clause (d) defines what is meant by an "evacuee" and Clause (f) defines what is meant by "evacuee property". Clause (f) reads as follows:

Evacuee property means any property in which an evacuee has any right or interest whether personally or as a trustee or as a beneficiary or in any other capacity.

Under Section 8 any property declared to be evacuee property shall be deemed to have vested in the Custodian. Section 9 gives power to the Custodian to take possession of the evacuee property vested in him, and authorises him to uses or cause to be used such force as may be necessary for taking possession of such property. Section 10 narrates in detail the powers and duties of the Custodian.

The question to be decided is whether the Custodian can take possession of any evacuee property in which besides the evacuee some other persons may have joint interest.

Section 10(1) of the Act gives very wide powers to the Custodian to take such measures as he considers necessary or expedient for the purpose of securing, administering, preserving and managing any evacuee property.

It is argued before us that the intention of the Legislature while enacting the said Act was to protect the property of the evacuee and take possession of any evacuee property, but not to take possession of the property of strangers or non-evacuees, and therefore if strangers have any joint share with an evacuee or evacuees their possession cannot be disturbed.

In this connection besides Section 10, Section 56(1)(d) has been cited. Now, it is clear from the enactment that the intention was to protect the evacuee property and vest the same in the Custodian who has been empowered to take possession of the property and take such other measures as he considers necessary and expedient for the purpose; of securing, administering, preserving and managing any evacuee property.

There is no reference in the Act to the property of strangers or non-evacuees, nor does Section 10 expressly prohibit the Custodian from taking such measures if the evacuee property is a joint property in which strangers have some share.

It is argued that as the enactment does not expressly entitle the Custodian to use his powers u/s 10 when strangers have a share in evacuee property it must be presumed that the Legislature did not intend to affect the right, title or interest of the strangers in the joint property. Now this becomes a case clearly of ascertaining the intention of the Legislature.

The question to be decided is whether the Legislature intended while securing and protecting and safeguarding evacuee property to affect the interests of strangers in evacuee property, if it is otherwise impossible to safeguard the property of the evacuee or whether the Legislature intended to leave evacuee property unprotected and often uncared for possibly to be wasted, if it was joint undivided property in which strangers have some interest.

The object or purpose of all construction or interpretation is to ascertain the intention of the law makers and to make effective. Crawford in his Treatise on Statutory Construction 1940 Edn. page 244 Section 158 states that the basic principle is that if the statute is plain, certain and free from ambiguity, a bare reading suffices, and interpretation is unnecessary. Or stated conversely that if the statute is ambiguous or its meaning uncertain, interpretation is required in order to ascertain what the legislators meant. - ''Raymond v. Thomas (1876) 91 US 712 (B) and - ''Jones v. New York Guaranty and Indemnity Co. (1880) 101 US 622 (C).

We have to find out what is the essence of the Act.

As the language of the Act with regard to matter in issue is not plain nor free from ambiguity, interpretation is called for. It is clear from the preamble of the Act that the essence of the Act under consideration is to provide for the administration of evacuee property and for certain matters connected therewith.

It is evident that the purpose of the Legislature is to provide for the administration of evacuee property be it joint and undivided, or separate and divided. It does not in specific terms exclude joint property and it does not limit itself only to the separate and divided property of the evacuee.

Thus, it is clear that the intention of the Legislature was to administer also such evacuee property in which an evacuee may have right, title or interest jointly with non-evacuees. If a contrary intention is to be attributed, the result will be to defeat the purpose of the law and leave property belonging to the evacuee, unprotected and unadministered in the case of evacuee property jointly held with strangers.

The preamble of the Act cited above is useful in finding out the meaning and intention of the Legislature - See - ''Manoharlal v. Emperor AIR 1943 Lah 1 (D). The object and reason of the Act in short is to provide for the efficient management and administration of evacuee property which was left behind by a large number of people (evacuees) who migrated from one Dominion to another on account of the setting up of the two Dominions of India and Pakistan or on account of civil disturbances or for fear of such disturbances (see the objects and reasons as appended to the Act).

Thus, it is clear that all kinds of properties joint or separate were intended to be efficiently managed and administered by the Custodian under the provisions of the Act. Crawford in his learned book cited above, states on page 240 Section 161 that "when construing a statute the reason for its enactment should be kept in mind". He also states on page 247 Section 161 that

the Legislative purpose is the reason why the particular enactment'' was passed by the Legislature. Perhaps the reason was to remedy some existing evil or to correct some defect in existing law or to create a new right or a new remedy. Consequently, in seeking to ascertain the legislative purpose, the Court will resort to the circumstances existing at the time of the law''s enactment, to the necessity for the law, and the evil intended to be cured by it, (and) to the intended remedy....

Judging from the tests laid down above, it is clear that the Act was intended for the efficient management of evacuee property left behind by large number of migrating evacuees. The evil intended to be cured was that property belonging to the evacuees was left behind without any satisfactory arrangement for the management of such property, and the remedy intended by the Act is that such property should vest in the Custodian and that it should be managed and administered by him.

Hence any construction which would defeat this said purpose cannot be accepted therefore. Hence Joint property of an evacuee cannot be exempted from the operation of the Act. Thus, the spirit and object of the law is clear. If any right, title or interest of any stranger is affected it will be as a necessary incident and implication arising out of the operation of the statute.

It is clear that the implications and intentions arising from the language of a statute are as much a part of it as if they had been expressed - See "United States v. Sischo (1922) 262 US 165 (E). In our opinion, this is a reasonable construction of the Act. To hold contrary to it would be improbable and absurd - see - ''Gilbert v. Cradock''.

Thus, if we are to hold that because a stranger has 1/1000 share or infinitesimal share in a joint house with an evacuee having the rest the Custodian cannot manage or take possession or repair the house though the stranger while not an evacuee may be living in some far-off land and may not actually be caring for the upkeep or management of the property; such a conclusion will lead to an absurd result. As has been mentioned by Crawford page 267-

the reason for allowing the Court to give effect to necessary implications is quite apparent. Many matters of minor detail are often omitted from legislation. If these details could not be inserted by implication the drafting of legislation would be an interminable process, and the legislative intent would likely be defeated by a most insignificant omission. Consequently these minor details are regarded as actually intended by the Legislature.

The Court in ascertaining necessary implication is simply determining and making effective the legislative will. Thus, where a statute deals with a genus, species thereof may be intended to be included therein. Here the genus "property" includes the species "joins property".

Consequently, we are of the opinion that if for the efficient management and administration of evacuee property any right, title or interest of any stranger is affected thereby or the stranger has to be dispossessed, that is a necessary corollary and due to the operation of the Evacuee Property Act.

It is not from the point of view of the benefit of the stranger that the Act was enacted. It was enacted for the efficient management and administration of the property of an evacuee. Moreover, taking possession of joint property by the Custodian has got to be looked from various points of view.

So far as the property of the evacuee is concerned, it will vest in the Custodian when possession and management is taken over by him; but so far as the right, title or interest of the stranger in a joint property is concerned it is not a case of vesting. The possession of the Custodian will be on behalf of the stranger and will enure to his benefit. His possession will to a certain extent be in the nature of possession by a receiver appointed in judicial proceedings.

If u/s 10 the Custodian can without recourse to a Court of law take possession by dispossessing the person in de facto possession of any separate and distinct property belonging to the evacuee, there is no reason why he should be held incapable of taking such possession under this Section if the property is joint.

Under Section 10(2) the Custodian is entitled to carry on the business of the evacuee. In this particular case how is the Custodian to carry on the partnership business of manufacturing certain articles and parts of bicycles if he cannot take possession of the factory and if applicant 1 does not also carry on the business? Even supposing that applicant 1 is actually carrying on the business why should the Custodian be prohibited from taking possession from him if u/s 10 he feels that he cannot satisfactorily discharge the duties imposed on him without taking over actual possession.

In this case, the two evacuees Mohamed Fazlulla and Salamatulla who hold 2/3rd share have not applied for the issue of a Writ. Moreover, it is not correct to say that the right, title or interest of the strangers will be adversely affected when they are to be dispossessed as a necessary process of the law. Such process will always be of a judicial nature-and subject to judicial control.

Maxwell in his book on "Interpretation of Statutes" Chapter XII, pages 368 and 369 has discussed the Implications of a statute and has observed that if powers are given under a statute by implication to affect prejudicially the rights of person or property, such powers must be used Judicially. It is not alleged before us that the Custodian while taking possession from applicant 1 contravened any fundamental rules of judicial procedure.

Maxwell also refers in details to the various principles already referred to in his book by Crawford and is also of the same opinion. In, Chapter XII page 355 (Maxwell) IXth Edn. it is stated that

although as already stated (page 85) the Legislature is presumed to intend no alteration in the law beyond the immediate and specific purposes of the Act; these are considered as including all the incidents or consequences strictly resulting from the enactment.

This passage supports our above view. It is a fundamental principle that where an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employ such means, as are essentially necessary to its execution (Maxwell page 360).

Thus when the Act in question has conferred Jurisdiction upon the Custodian to secure and administer evacuee property it impliedly also grants powers to take possession in proper cases of evacuee property though it be joint property. Otherwise his jurisdiction will be illusory. When powers, privileges or property are granted by statute every thing indispensable to their exercise or enjoyment is also impliedly granted (Maxwell page 361).

In view of the above reasoning, we cannot agree with due respect, with the view taken by the Bombay High Court. We are of the opinion that Section 10 empowers the Custodian to use his powers conferred therein even in the case of joint property and if strangers are in any way affected thereby it is a necessary implication of the Act, and that was also the intention of the Legislature.

In this connection Section 56(d) of the Act which empowers the Government to make rules with regard to the manner in which possession of any evacuee property may be taken by the Custodian cannot be regarded as prohibiting the possession of joint property.

The proviso to Rule 9 is not in our opinion contrary to the purpose of the Act nor does it go beyond the scope of the Act. On the contrary, it limits to a certain extent the wide powers given to the Custodian u/s 10. It is therefore in our opinion intra vires.

A detailed discussion of Article 19(f) is unnecessary as we hold that when strangers are affected it is by necessary implication and that the powers exercised by the Custodian in such a case are of a judicial nature, and are reasonable.

In the result, this petition for the issue of a Writ of Certiorari fails and is dismissed with costs.

Mohd. Ahmed Ansari, J.

Because of the difference of opinion with my learned brothers, recording of detailed reasons for my allowing this application has become necessary. The facts of the case are simple: the legal points arising therefrom are of considerable difficulty.

The three applicants have prayed for the Writ of Certiorari to set aside an order passed by the Deputy Custodian of the Evacuee Property, for surrendering possession of certain properties.

The allegations in the application for issuing the Writ are that the properties from which the applicants are about to be dispossessed are ancestral; each of the two applicants, Ibrahim and Abdur Razak, has one-third share and the remaining one-third belongs to the other applicant. Fazlur Rahman with his two brothers, Salamatullah and Fazlullah, who went to Karachi in Dal 1358 Fasli: November 1948; thereupon the properties were declared to be evacuee properties; the three applicants who have never left the Country appeared before the Deputy Custodian and claimed the shares of the two evacuees to be only one-ninth; but the Deputy Custodian while accepting the properties to be joint, held the two applicants Ibrahim and Abdur Razak to be entitled only to the allowance of Rs. 150/- per mensem and the share of the other applicant Fazlullah to be one sixth; he accordingly directed payments of their shares in cash; and rejected their prayer for release; and on appeal, the Custodian came to the conclusion that as the shares of the two evacuees were morn than fifty per cent the properties cannot be released, hence the application.

The reply of the Custodian to the application for the Writ is that the properties belong to a partnership, two of the applicants are under the agreement entitled only to a fixed allowance of Rs. 150/- per mensem, and as the shares in the business of the evacuee-brothers come to two-third, i.e., more than half, the possession can be taken under the proviso to Rule 10 framed u/s 56, Administration of Evacuee Property Act.

The main argument for the granting of the Writ is that the proviso to the rule is ultra vires; for taking possession of property which does not come under the words ''evacuee property'' as defined in the Act is not permitted by the enactment. The authorisation contained in proviso to Rule 10 is as follows:

Provided that where the share of the evacuee in such property exceeds one-half of the whole property, the possession of the whole property may be taken in the manner provided in Sub-rule (1) or Sub-rule (2) whichever is applicable.

In order to appreciate the arguments, it is necessary to give a brief summary of certain Sections of the Evacuee Property Act. By Section 2, Clauses (d) and (1), the words ''evacuee'' and ''property'' are defined.

Then Clause (f) of the Section defines "evacuee property'' to mean any property in which the evacuee has any right or Interest whether personally as a trustee or as a beneficiary or in any other capacity; and includes transfers to other persons which have been without Custodian''s confirmation from the evacuee after 14-8-1947, or which belongs to any person who has after 18-10-1949, done any acts specified in Clause (e), or in which any such person has any right or interest to the extent of such right or interest.

Under Section 7, where the Custodian is of opinion that any property is evacuee''s within the meaning of this Act, he may after notice and inquiry pass an order declaring it to be such. Section 8 says that the property shall be deemed to have vested in the Custodian for the State and by Clause (4) of this Section, the possession of persons of such properties shall be deemed to be that of the Custodian, such persons being bound on demand to surrender the possession.

In case of refusal or failure to surrender, Section 9 of the Act authorises the Custodian to take possession. Section 12 gives him power to vary or cancel leases, as well as to allot the property and Section 13 makes payment to the Custodian a valid discharge of the liability to the evacuee. In addition to these powers, Section 10, Sub-section (1) says:

Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purposes of enabling him satisfactorily to discharge any of the duties, imposed on him by or under this Act and may for any such purposes as aforesaid do all acts and incur expenses necessary or incidental thereto.

Then Sub-section (2) preserving the generality of Sub-section (1) authorises the Custodian to do certain acts. Finally, powers to frame rules are conferred on the Central Government u/s 56 to carry out the purposes of the Act and among other things authorises framing of rules as to the manner in which possession of any evacuee property is to be taken by the Custodian. The rules including the proviso in controversy were framed by the Central Government under the authority conferred by Section 56.

It is obvious that u/s 8, only the evacuee property as defined in the Act vests in the Custodian; and by Clause (4) of the Section, he can only claim possession of the property vested in him. The power to enforce surrender of possession u/s 9 also relates to the property vested in him.

There is, therefore, no express authorisation to the Act about vesting, taking, or compelling surrender of possession of any property which is not covered by the definition of ''evacuee property'' as given by Section 2, Clause (f). Any reference to Section 10 of the Act for purposes of conferring such powers appears to me to be unjustified. That Section, in my opinion, contains only incidental or necessary powers.

It cannot be denied that the grant of powers draws after it others which are consequential and incidental. That is so even though no such powers be expressly conferred. But the incidental and necessary powers cannot be substantive and independent.

The scope of such authority has been defined in several Australian cases, because the words ''matters incidental'' appear in the placitum (xxxix) of the Australian Constitution which is as follows:

... Matters incidental to the execution of any power vested by this Constitution in the Parliament or in other Houses thereof, or in the Government of the Commonwealth or in the Federal Judicature or in any department or officer of the Commonwealth....

The High Court of Australia in the case of -''Australian Boot Trade Employees'' Federation v. Whybrow and Company 11 CW LR 311 (F): had to consider the legality of an award made under the Commonwealth Conciliation and Arbitration Act of 1904. It was urged in the case that certain Sections of the Act were intra vires having regard to the words ''matters incidental'' contained in the placitum. Isaacs J. at page 333 observes:

The case is quite different when it is found that a given power, though fully and completely exercised and enforced, is not effectual to attain all the results desired or expected. The matter is then one for the consideration of the authority in whom resides the right of granting a power more extensive.

It is not open to the grantee of the power actually bestowed to add to its efficacy, as it is called, by some further means outside the limits of the power conferred, for the purposes of more effectively coping with the evils intended to be met.

Where an instrument of expressly limited, length or nature is designated for use, but found, in practice insufficient to reach the point intended, then, however just or desirable such a course may appear to those whose duty it is to employ that instrument, there is no legal principle which, warrants its lengthening or transformation merely because the expected result has not been achieved.

Where both end and means are strictly marked out, there is no right either to use other means to attain the specified end, or to use the specified means for unauthorised ends.....

The authority must be taken as it is created, taken to the full, but not exceeded, in other words, in the absence of express statement to the contrary, you may complement, but you may not supplement a granted power.

Then again, in Ex Parte Waish Etc. 37 CW L.R. 36 (G), Higgins J., at page 121 observes:

There is also by Section 51(xxxix) a power to make laws with respect to matters incidental, Etc. Though the incidental power would have been exercisable without this express grant the Sub-section makes assurance doubly sure.... But there is no ground for the notion that where power A is granted to, the Federal Parliament and power B is not, power B may be exercised because the exercise of it may be helpful to the carrying out of power A or the law under power A.

These reasons are, in my opinion, applicable to all Acts where certain limited powers are expressly conferred. General powers contained in any subsequent section mean such as are not inconsistent with those already given by the earlier Section.

Even in absence of Section 10, the Custodian of the Evacuee property would have powers necessary, or incidental to those expressly conferred by the earlier sections and the enactment of the Section only makes assurance doubly sure. The Section, in my opinion, should not be construed as supplying independent power of demanding possession of property which is not covered by the definition of ''evacuee property'' and which has not vested in the Custodian.

To demand possession of such other property as has not vested in the Custodian or to compel its surrender would be inconsistent with the earlier Sections of the Act. It is a substantive and independent right, and not consequential to the possession of evacuee property. The result is that the Act contains no, authorisation for creating such power.

I shall now deal with the legality of the Proviso to Rule 10. The tendency of modern legislation is to lay down general principles and to avoid going into administrative detail. But the delegated authority must be exercised strictly in accordance with the powers created by the Act. Even under the American Constitution where there is the separation of the legislative and executive functions, powers to promulgate Rules and Regulations are permitted provided certain conditions are fulfilled. Crawford on Statutory Construction at page 29 says.

The Legislature can... under certain circumstances, delegate to executive officers and administrative boards, the authority to adopt and promulgate rules and regulations. Before such a delegation is lawful, however, the Legislature must declare the policy of the law and fix the legal principles which are to control in given cases that is, a definite or primary standard must be provided to guide those empowered to execute the law.

So long as a policy is laid down and a proper standard established by statute, there is no unconstitutional delegation of legislative power when the Legislature leaves to selected instrumentalities, the duty of making subordinate rules within the prescribed limits, even though there is conferred upon the officer or board a large measure of discretion.

As can be readily seen there is a distinction between the delegation of power to make a law and the conferring of an authority or discretion to be exercised under and in pursuance of the law, as the power to make law necessarily involves a discretion as to what it shall be... The rules and regulations adopted and promulgated, however, must not subvert nor be contrary to existing statutes.

This view is supported by the majority decision of the Supreme Court of United States in - ''Schechter v. United States (1934) 295 US 495 (H); where the Chief Justice Hughes delivering the opinion of the Court at (U.S. 530 : (L.Ed.) 1580 says:

We have repeatedly recognized the necessity of adapting legislation to complex conditions involving a host of details with which the National legislature cannot deal directly. We pointed out in - ''Panama Refining Co. v. Ryam (1934) 293 US 388 (I) that the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply.

The Administration of Evacuee Property Act (31 of 1950) has certainly declared the policy and fixed the legal principles of evacuee property vesting in the Custodian; authorising him to take possession of such property; adding what he considers necessary and expedient for its security, administration and management, varying its leases and allotting such property.

In these circumstances, the power to frame rules u/s 56 cannot be considered as delegation to legislate. But the Act has at the same time fixed the limits of the exercise of these powers in each section to the evacuee property and the rules framed must not exceed the limit. The proviso to Rule 10 in authorising taking of property which is not covered by the definition of ''evacuee property'' appears to me to be going beyond the limits.

Any Regulation under an Act is valid only when it is found to be within the framework of the policy laid down by the Legislature. In (1934) 293 US 388 (I) the Chief Justice Hughes delivering the judgment of the Supreme Court at paga 429 observes:

Such regulations become, indeed, binding rules of conduct, but they are valid only as subordinate rules and when found to be within the framework of the policy which the Legislature had sufficiently defined.

The authorisation, to take property which is not covered by the definition of the words ''evacuee property'' therefore can neither be within the framework of the policy laid down by the Act, nor be strictly in accordance with, the Act. Therefore, the proviso is of no legal validity.

The different powers under the Sections may not be effectual to attain all the results desired. It is for the consideration of the Parliament in whom resides the right of granting a more extensive power. The rules framing authority, certainly, cannot add further means outside the limits laid down by the Act.

I am considerably fortified in this view by an unreported decision of the Division Bench of the Bombay High Court in the case of - ''P.R. Naik v. Ibrahim Abu Baker (A)'', where the Chief Justice of the High Court, sitting with Tendolkar J. and dismissing an appeal against a judgment of Shah J. of the same Court observes:

... as we have already stated the Act, far from using any language that would compel us to hold that such a power was contemplated to be given to the Custodian, on the contrary makes it clear that the scope of the Act is only with regard to the securing, administering preserving and managing the evacuee property, and that no power is conferred upon the Custodian to take possession of the property which, does not belong to the evacuee....

I would refrain from expressing any view on the Constitutional objection about the proviso being ultra vires because of the alleged infringement of the guarantee of property contained in Article 19, Clause (1)(f) of Part III of the Constitution, for in my opinion, its being ultra vires, Administration of Evacuee Property Act justifies Allowing of this application for CERTIORARI and I have already held in Abdur Rahim''s case (A) that Courts should refrain from pronouncing upon the Constitutionality of any Act or regulation unless such decision be inevitable for disposing of the case.

I therefore, allow the application on the ground of the proviso relied by the authority being of no legal validity and quash the order directing surrender of possession of property.