Ram Singh vs Custodian Rajasthan Alwar

Bapna, J.—This is a writ petition under Arts. 226 and 227 of the Constitution of India.

One Fakruddin, retired Guard, B.B. and C.I. Railway residing at Bandikui, migrated to Pakistan after the partition of the country. The Tehsildar of Bandikui in exercise of the powers of the Assistant Custodian took possession of the house belonging to Fakruddin situated at Bandikui holding it to be evacuee property under S. 8, Jaipur Evacuees'' "Administration of Property" Ordinance 1948 (IV of 1948) by an order dated 13-7-1948. One Ramsingh who is now petitioner before us filed objections that the said Fakruddin had mortgaged the property with him on 7-7-1947, for a sum of Rs. 5000/-. The claim was enquired into under S. 9 of the Jaipur Ordinance and the Tehsildar recommended that the property be released. The Collector of Jaipur purporting to exercise the powers of Custodian directed release of the property by an order dated 2-3-1950.

In the meanwhile the Central Ordinance for Administration of Evacuee Property No. XXVII of 1949 had come into force and the Collector was only authorised to exercise powers of a Deputy Custodian.

These proceedings were re-opened by the Custodian by an order dated 5-3-1952, on receipt of a report from the Deputy Custodian, Jaipur, dated 4-12-1951. The Deputy Custodian had made a fresh enquiry on information supplied by one Devi Singh. The Custodian of Evacuee Property of Rajasthan by an order dated 25-9-1952, held that the Collector as Deputy Custodian had no jurisdiction to pass the order which he did and on merits found that Fakruddin was an evacuee and the particular house left by him was evacuee property. He accordingly ordered that the Asstt. Custodian should take possession of the house again. Certain ancillary directions were also given with regard to the rent for the period during which Kr. Ramsingh was in possession and also in respect of certain movable property. Ramsingh now challenges the validity of order of the Custodian.

It is urged that the Custodian had no jurisdiction to revise an order of the Collector dated 2-3-1950 because proceedings before the Collector were not proceedings under Administration of Evacuee Property Act XXXI of 1950. The Collector was also not subordinate to the Custodian, it was further argued that if the Custodian did not consider the order of the Collector to be correct he should have instituted fresh proceedings under S. 7 of the Act XXXI of 1950.

Section 26, Administration of Evacuee Property Act permits the Custodian to call for the record of any proceedings under the Act which is pending before, or has been disposed of by, an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of the orders passed in the said proceedings and to pass such order as he may deem lit. According to the arguments of the learned counsel for the petitioner the order of the Collector was not passed under the Act but under the Ordinance No. XXVII of 1949. The argument is not correct because S. 58 of the Act while repealing Ordinance No. XXVII of 1949 lays down by sub-s. (3) that any act done or any action done (sic) in exercise of the power conferred by the Ordinance is to be deemed to have been done under the Act as if the Act was then in force. A similar provision is to be found under S. 8, General Clauses Act. The order passed by the Collector as Deputy Custodian will be deemed to have been passed under the provisions of Act No. XXXI of 1950. That order was, therefore, revisable under S. 26 of the Act. It may be pointed out that there was provision for revision by Custodian even under the Ordinance. The Collector could only act as Deputy Custodian and was undoubtedly an officer subordinate to the Custodian.

The second contention that proceedings should have been taken afresh under S. 7 is also not correct. Under S. 8, sub-s. (2) of the Act any property vested in the Custodian as evacuee property under the law repealed is to be deemed to be evacuee property within the meaning of the Act and the only limitation is that the ''evacuee'' and ''evacuee property'' are to be interpreted according to the meaning given in the Act even in proceedings pending at the commencement of the Act. The person to be called ''evacuee'' or the property to be called ''evacuee property'' must fulfil the requirements of the definition given in the Act. It is not disputed that Fakruddin was a person who was an evacuee according to the definition in Clause (i) and (ii) of Cl. (d) of S. 2. It is also not disputed that the property belonged to Fakruddin and therefore it was evacuee property within the meaning of Cl. (f). The only interest which Ramsingh claimed was as mortgagee and even in that respect, the alleged mortgage is not supported by any deed of transfer in accordance with law duly stamped and registered. If Ramsingh has any debt outstanding there are provisions in the Act for certain proceedings to be taken for recovery of the debt against the evacuee. In the circumstances there is nothing to show that the Custodian exercised a jurisdiction not vested in him or acted in excess of the jurisdiction or that there was an error apparent on the face of the record. This petition has no force and is dismissed with costs, counsel''s fee being assessed at Rs. 80/-.