Sham Singh and Another vs The Custodian General and Others

Tek Chand, J.—This is a writ petition under Article 226 of the Constitution of India praying that certain proceedings taken by Respondent No. 3. Assistant Custodian (General)-cum-District Rent and Managing Officer, Ludhiana should be struck down as ultra vires being beyond the scope of the evacuee law.

The facts alleged in this petition are that the two Petitioners are proprietors of a concern known as Bhoday Electric Engineering Company, Miller Ganj, Lachhman Nagar, Ludhiana and their premises are between two parallel streets Gobindpura street and Ahluwalia street, that they have been working there for the last about 20 years, that an official of the establishment of Respondent No. 3 visited their premises on 22nd of December, 1958 and made a report to Respondent No. 3 that the Petitioners had made encroachment on evacuee land. Consequently, a notice was sent on 29th of December, 1958 directing Sham Singh, Petitioner, to attend office of the Respondent No. 3 on 8th of January, 1959 in connection with an enquiry. The proceedings had been instituted at the instance of two complaints complaining that the Petitioner Sham Singh had occupied a vacant site adjoining the factory which originally belonged to a Muslim evacuee. Respondent No. 3 by his order dated 10th of February, 1959, held that portion ''B'' being an evacuee property, had been occupied by the Petitioner without authority and that he stated on oath before him that the said property belonged in fact to Meru, a Mohammedan and expressed his willingness to evacuate the premises. In view of the admission of Sham Singh, the property was treated as an evacuee property vested in the Custodian of Evacuee Property u/s 8(2) and (4) of the Administration of Evacuee Property Act XXXI of 1950, which was enacted by Parliament. The Petitioner was declared an unauthorised occupant and it was ordered that he should be evicted and the property be put to sale. The Additional Custodian, Punjab, Jullundur, Respondent No. 2, taking into consideration the admission of Sham Singh, dismissed his appeal. A petition of revision made to the Deputy Custodian-General, Delhi, was also dismissed on 20th of February, 1960, also on the ground that there was an unequivocal admission by Sham Singh, on the record that the land in dispute belonged to Meru. A notice was consequently issued by Respondent No. 3 to the Petitioner requiring him to surrender the possession of the property in favour of the Sub-Inspector within 15 days of the receipt of the notice failing which he would be evicted with such force as may be considered necessary. The Petitioners have felt aggrieved and have come up in a writ petition praying that the notice to surrender possession and the proceedings and orders which have led to it, are beyond the jurisdiction of the Respondents and violative of the Petitioners'' fundamental rights.

On a notice having been issued to the Respondents, a written statement has been filed on behalf of the Respondents. It is stated that on 8th of January, 1959, Sham Singh, Petitioner had admitted that the property in dispute belonged to Meru, an evacuee and that he had expressed his willingness to surrender possession of the property. It was also stated that this property was not entered in the register of evacuee property as its existence was not known when the register was prepared. The omission to include the property in the register in no way changed the character of the property which was automatically vested in the Custodian. It was maintained that the Petitioners were undoubtedly in unauthorised and illegal occupation of the property in question and the order for their eviction was rightly passed. Under the circumstances, no fundamental right of the Petitioners had been violated.

Mr. K.S. Thapar, on behalf of the Petitioners, argued that no enquiry had been made as to the alleged character of the evacuee property and no declaration had been made in respect of it. He maintained that there could be no automatic vestment of the property in the Custodian and in the main, placed his reliance upon Section 7-A of the Central Act XXXI of 1950. Before examining the arguments of the learned Counsel, it is necessary to give a brief resume of the relevant provisions. The Administration of Evacuee Property Act XXXI of 1950, came into force on 18th of April, 1950, and it extends to whole of India excepting certain States, namely Assam, West Bengal, Tripura, Manipur and Jammu and Kashmir. Section 4 gave to the Act, an over-riding effect over any other law inconsistent with it.

Section 7 so far as is relevant for purposes of this case runs as under:

Notification of evacuee property.--(1) Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice 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.

(2) * * *

(3) The Custodian shall, from time to time, notify, either by publication in the Official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under Sub-section (1).

Section 7-A which was inserted by the Amending Act, in so far as it has a bearing is reproduced below:

7-A. Property not to be declared evacuee property on or after 7th May, 1954.--Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after 7th day of May, 1954. Provided that nothing contained in this section shall apply to

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Section 8 has an important bearing and it is reproduced in extenso:

Vesting of evacuee property in the Custodian.--(1) Any property declared to be evacuee property u/s 7 shall be deemed to have vested in the Custodian for the State,--

(a) in the case of property of an evacuee as denned in Sub-clause (i) of Clause (d) of Section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India; (b) in the case of the property of an evacuee as defined in Sub-clause (ii) of Clause (d) of Section 2, from the 15th day of August, 1947; and

(b) in the case of the property of an evacuee as defined in Sub-clause (ii) of Clause (d) of Section 2, from the 15th day of August, 1947; and

(c) in the case of any other property, from the date of the notice given under Sub-section (1) of Section 7 in respect thereof.

(2) Where immediately before the commencement of this Act, any property in the State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby, the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meaning of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act, and shall continue to so vest:

Provided that where at the commencement of this Act, there is pending before the High Court, the Custodian or any other authority for or in any State any proceeding u/s 8 or Section 30 of the Administration of Evacuee Property Ordinance, 1949, (XII of 1949), or under any other corresponding law repealed by the Administration of Evacuee Property Ordinance, 1949, (XXVII of 1949), then notwithstanding anything contained in this Act or in any other law for the time being in force, such proceeding shall be disposed of as if the definitions of ''evacuee property'' and ''evacuee'' contained in Section 2 of this Act had become applicable thereto.

(3) Where any property in a State belonging to a joint stock company had vested in any person exercising the powers of a Custodian under any law previously in force, then nothing contained in Clause (f) of Section 2 shall affect the operation of Sub-section (2), but the Central Government may, by notification in the official gazette, direct that the Custodian shall be divested of any such property in such manner and after such period as may be specified in the notification.

(4) Where after any evacuee property has vested in the Custodian any person is in possession, thereof, he shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or to any other person duly authorised by him in this behalf.

Section 9 empowers the Custodian to take possession of the evacuee property vested in him and enables him to use or cause to be used such force as may be necessary for taking possession of such property.

Section 10 defines the powers and duties of the Custodian-General. Section 45 confers upon the Custodian for the purposes of holding any enquiry under this Act, the same powers as are vested in a civil Court under the Code of Civil Procedure, in respect of certain matters.

Section 46 provides that "Save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or * * *".

Section 58 which provides for repeals and savings is in the following terms:

Repeals and savings.--(1) The Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949), and the Hyderabad Administration of Evacuee Property Regulation (Hyderabad No. XII of 1359F), are hereby repealed.

(2) If, immediately before the commencement of this Act, there is in force in any State to which this Act extends any law which corresponds to this Act and which is not repealed by Sub-section (1), that corresponding law shall stand repealed.

(3) The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949), or the Hyderabad Administration of Evacuee Property Regulation (Hyderabad No. XII of 1359F), or of any corresponding law shall not affect the previous operation of that Ordinance, Regulation of corresponding law, and subject, thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance, Regulation or Corresponding law, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken.

I may now refer to the corresponding law which was applicable to this State.

The East Punjab Evacuees'' (Administration of Property) Act XIV of 1947, became law in the Province of East Punjab on 13th December, 1947. Section 2(b) and (c) define "evacuee" and "evacuee property", respectively in the following words:

(b) "Evacuee" means a person ordinarily resident in or owning property or carrying on business within the territories comprised in the Province of East Punjab, who on account of civil disturbances, or the fear of such disturbances or the partition of the country:

(i) leaves, or has since the first day of March, 1947, left the said territories for a place outside India, or

(ii) cannot personally occupy or supervise his property or business or watch his interests or enforce his rights;

(c) "Evacuee property" includes all property in which an evacuee has any right or interest, but does not include any movable property in his immediate physical possession;

Section 4 which has a important bearing on this case runs as under:

Vesting of evacuee property in the Custodian.--All evacuee property situated within the Province shall vest in the Custodian for the purposes of this Act and shall continue to be so vested until it is returned to the owner in accordance with the provisions of Section 12.

Sub-sections (1) and (2) of Section 6 are as follows:

Custodian to take possession of evacuee property.--(1) Subject to the provisions of this Act a Custodian may by general or special order with reference to the location or description of a specific or any class of evacuee property assume possession of or control over the property mentioned in the order which shall be published in the official Gazette. From the date of the order, the holder of such property, if any, shall be deemed to be holding it on behalf of the Custodian and shall on demand surrender possession of it to the Custodian or a person authorised by him in this behalf.

(2) If the holder of such property refuses or fails to vacate the property or, in case of movable property to surrender possession thereof, the Custodian may use all force necessary for securing compliance with his order, and may for this purpose after giving reasonable warning and facility to any woman not appearing in public to withdraw, remove or open any lock or bolt or break open any door or do any act necessary for taking possession.

u/s 7, any person claiming any right to or interest in any property of which the Custodian has taken possession or assumed control u/s 6 may prefer such claim to the Custodian by an application and the Custodian after summary inquiry may reject the application if he thought the claim was untenable or make such orders as he considers appropriate if he found that the applicant''s claim was well founded. Section 17 provided that no orders passed under this Act could be called into question in any Court and the civil Courts in respect of matters specified in the Section was barred.

The learned Counsel for the Petitioners has argued that in view of coming into force of Section 7-A of the Central Act, no property could be declared to be evacuee property on or after 7th of May, 1954, and that being so no steps can be taken by the Custodian u/s 7 of the Act. According to him, the Custodian even if he is of the opinion that the property in question is an evacuee property within the meaning of this Act, he cannot cause a notice to be given to the person interested and he cannot hold any inquiry and pass an order declaring any such property to be evacuee property. According to the contention of the Petitioners'' counsel, as property cannot be declared to be evacuee property now, it cannot be deemed to have vested in the Custodian for the State in accordance with the provisions of Section 8 Sub-section (1). He, therefore, contends that the property in dispute is not vested in the Custodian, and, therefore, possession of the Petitioners cannot be deemed to be on behalf of the Custodian, and that the Petitioners are not liable on demand by the Custodian, to surrender possession, as provided by Section 8 Sub-section (4). In support of this argument, reliance has been placed upon a decision of a learned single Judge in Darshan Lal v. R.L. Aggarwal and Ors. (1958) 60 P.L.R. 669, to the effect that the provisions contained in Sections 7 and 8 of the Administration of Evacuee Property Act, must be followed, before a property can be declared to be an evacuee property, or, deemed to have been so declared and that it is only when the property has been declared to be evacuee property under the provisions of Section 7 of the Act, that it can be deemed to have been vested in the Custodian. The learned single Judge further observed, "For the purpose of vesting, there must be something tangible and objective which the Custodian Department should have done, e.g., assumption of physical control, specification of a particular property as evacuee property, assumption of control by express notification and the like.... There can be little doubt that Section 8(2) could have retrospective effect only in such cases in which some positive action had been taken under the relevant provisions or some effective decision had been given; otherwise the provisions of the Act were to apply and there would be no vesting unless a notice u/s 7 has been issued and a declaration has been made."

On behalf of the Respondents, the learned Advocate-General contends that in view of the provisions of the Section 8(2) of the Central Act and the previous evacuee legislation it should be held that the property in dispute had vested in the Custodian notwithstanding the fact that the procedure u/s 7 of the Central Act had not been followed. This contention was also raised on behalf of the Respondents before the learned single Judge in Darshan Lal''s case referred to above and referring to this argument he said, "A similar contention was raised in Custodian, Evacuee Property, Punjab Vs. Gujar Singh and Others, before Weston C.J. who repelled the same. It has been held by him that a general proclamation cannot be taken as determination that any particular property which the Custodian chooses to name is evacuee property. There must be an enquiry by the Custodian in the case of specific items of property said to be evacuee property. Where the Custodian assumes physical possession or assumes control by express notification the enquiry is contingent upon objections raised by claimants. In those cases of property of which no possession is taken, no control assumed by express notification or no enquiry made, such as that contemplated by Section 7, there is no determination that the particular property is evacuee property".

The learned Advocate-General submits that on the strength of the decision of Weston C.J., in the decision referred to above, it cannot be contended that there cannot be any automatic vesting of property in the Custodian. He had laid emphasis on the following passage in the judgment of Weston C.J.:

The notification published in the Gazette on 4th May, 1948, however, did not attempt to particularise properties, and this notification cannot be construed as an assumption of possession of or control over all movable and immovable properties existing in the Punjab, requiring every owner of property to vindicate his title by application u/s 7 (East Punjab Act XIV of 1947). This notification and the vesting u/s 4 of the Act could do no more than ensure that the rights of the Custodian in property subsequently found to be evacuee property should not be affected by transfers made after the date of the coming into force of the Act.

The decision of Weston C.J., nowhere, indicates, that for the purposes of vesting there must be something tangible and objective which the Custodian Department should have done, e.g., assumption of physical control, specification of a particular property, etc. The learned Advocate-General has relied in the main on the provisions of Section 4 of the East Punjab Act of 1947, according to which an evacuee property situated within the province was vested in the Custodian for the purposes of the Act and shall continue to be so vested until it is returned to the owner in accordance with the provisions of Section 12 of that Act.

The procedure laid down in Section 7 and Section 8(1) of the Central Act of 1950, was not provided by the East Punjab Act of 1947. The essential distinction between the two provisions is that according to the East Punjab Act, all property within the province automatically vested in the Custodian without there being any previous claim, enquiry or declaration that the property was evacuee property. Enquiry into claims to the property, the possession or the control of which has been assumed by the Custodian, was to be instituted after an application had been made to that effect by the claimant u/s 7 of that Act. In other words, the property became automatically vested in the Custodian and any enquiry as to the claims or as to the character of the property followed the vestment. The procedure under the Central Act of 1950, was materially different in so far that Section 7 of the Central Act required the Custodian after causing a notice to be given that in his opinion any property was evacuee property, to hold an enquiry into the matter and then pass an order declaring any such property to be evacuee property. u/s 8(1), a property which had been declared to be avacuee property u/s 7, was deemed to have vested in the Custodian for the State. In this case, in view of the provisions of the Sub-section (2) of Section 8 of the Central Act, a reference to the earlier East Punjab Act of 1947, is necessary for determining the character of the property. u/s 4 of the East Punjab Act a property had already vested in the Custodian regardless of the fact whether any declaration with respect to its evacuee character had been made or not, or whether the Custodian by a general or special order had assumed possession of or control over the property or not as contemplated by Section 6 of the East Punjab Act. Holding of an enquiry into claims to evacuee property or the assumption of possession of or control over the property was not a condition precedent to the vesting of the evacuee property in the Custodian u/s 4. The position under the Central Act of 1950 had been, to a certain extent, reversed, as Section 7 required the Custodian to hold an enquiry after causing notice, thereof to the persons interested and then pass an order declaring any such property to be evacuee property. u/s 8(1) such property as had been declared to be evacuee property under the preceding sections shall be deemed to have vested in the Custodian for the State. Declaration as to the evacuee character of the property under the Central Act is, therefore, a condition precedent to its vesting in the Custodian for the State.

In certain States and in particular in East Punjab, Delhi, Bombay, the United Provinces and West Bengal, there were Acts passed by the provincial legislatures which were not on uniform pattern. Under Sub-section (2) of Section 8 of the Central Act, it was, therefore, provided that where before the commencement of the Act any property in a State had vested as evacuee property in a person exercising the powers of the Custodian under any law repealed hereby the property shall on the commencement of this Act be deemed to be evacuee property declared as such, within the meaning of this Act, and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act and shall continue to so vest. A proviso was added to which a reference is not necessary for purposes of this case. Section 8(2), therefore, gave the same effect to the evacuee property which had vested in the Custodian before the Commencement of his Act as if the vestment had taken place in accordance with the provisions of the Central Act. In other words, the vestment in the Custodian under the East Punjab Act of 1947, was to be treated as valid in spite of the fact, that no enquiry or declaration as Contemplated by Section 7 of the Central Act preceded such a vestment. In the case of Punjab, the East Punjab Act did hot Contain provisions similar to those in Sections 7 and 8 of the Central Act. Nevertheless, Sub-section (2) provided in effect, that the vestment which had taken place before the commencement of the Central Act would not suffer from any lacuna, and the evacuee property would be deemed to have been declared as such within the meaning of the Central Act. The East Punjab Act had provided automatic vestment of the evacuee property in the Custodian u/s 4, and in view of Section 8 Sub-Section 2 of the Central Act, the vesting continued to be valid despite non-compliance with the requirements as to notice, enquiry and declaration. There is nothing contained in Section 4 or any other provision of the East Punjab Act which militates against automatic vesting of the evacuee property in the Custodian as a result of the statutory enactments. I cannot, with utmost respect, persuade myself to agree with the view expressed in Darshan Lal''s case, that for the purposes of vesting, there must be something tangible and objective which the Custodian Department should have done. There is nothing in the meaning or connotation of the term "vest" which justifies the construction put in Darshan Lal''s case. According to Bouvier''s Law Dictionary, "vest" means, "to give an immediate fixed right of present or future enjoyment. An estate is vested in possession when there exists a right of present enjoyment; and an estate is vested in interest when there is a present fixed right of future enjoyment". The word "vest" signifies the fixation of the present right either to immediate or future enjoyment of the property. Vesting takes place when a right is conferred, accrues or takes effect. If a right is established, it is vested even though the enjoyment is deferred to a future date. The term vested is frequently used in a number of statutes, to indicate a present and immediate interest as distinguished from one that is contingent. Article 294 of the Constitution provides:

...from the commencement of this Constitution.... (a) all property and assets which immediately before such commencement are vested in His Majesty for the purposes of the Government of the Dominion of India and all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of each Governor''s Province shall vest, respectively, in the Union and the corresponding State, and (b)....

In Article 295 also, there are provisions as to the vesting of property and assets in the Union and in a State specified in Part B of the First Schedule. The object is that on coming into force of the Constitution vesting takes place with immediate effect and the enquiry as to property, assets, rights and liabilities, etc., then proceeds. In other words, vesting is automatic coming into existence contemporaneously with the statute. Darstan Lal''s case went up in appeal before the Letters Patent Bench and is reported in R.L. Aggarwal and Ors. v. Darshan Lal, Asa Ram and Anr. AIR 1960 P&H 612. The reasoning of the learned single Judge was not adopted by the Letters Patent Bench and the appeal was dismissed though on grounds different from those which prevailed with the learned single Judge. I am therefore, of the view that Section 7 of the Central Act does not apply to the property which had already vested under the State law and which u/s 8 Sub-section (2) is deemed to be evacuee property declared as such within the meaning of that Act. Section 7, therefore, does not apply to a case, where vestment has taken place under a former State Law. Section 7-A is in the nature of a proviso to Section 7 placing limitation on its operation.

Reliance has also been placed by the learned Counsel for the Petitioners on a decision of the Supreme Court in Ebrahim Aboobaker and Another Vs. Tek Chand Dolwani and Others, in which the following passage occurs:

Reading Sections 7 and 8 together, it appears that the Custodian gets dominion over the property only after the declaration is made. The declaration follows upon the inquiry made u/s 7, but until the proceeding is taken u/s 7, there can be no vesting of the property and consequently no right in the Custodian to take possession of it. Now if the alleged evacuee dies before the declaration, has the Custodian any right to take possession of the property? If he cannot take possession of the property of a living person before the declaration, by the same token he cannot take possession after the death of the alleged evacuee when the property had passed into the hands of the heirs. The inquiry u/s 7, is a condition precedent to the making of a declaration u/s 8 and the right of the Custodian to exercise dominion over the property does not arise until the declaration is made. There is no reason, therefore, why the heirs should be deprived of their property before the Custodian obtains dominion.

The question in that case was whether a person could be declared an evacuee after his death and whether the properties which upon his death vested in heirs under the Mohammedan law could be declared evacuee properties. The effect of Section 8(2) was not considered, as no question of the examination of this provision arose on the facts of that case. The instant case hinges upon the construction of Section 8(2) read with Section 4 of the East Punjab Act. In my view the decision of the Supreme Court does not in any way help the Petitioners.

Reference was next made on behalf of the Petitioners to the case of Azizun Nisa and Others Vs. Asst. Custodian and Others, It was held in that case that where the Custodian neither held any enquiry about the property in dispute being evacuee, nor gave any notice of such enquiry to the persons interested, nor passed an order declaring the property to be evacuee property, the Custodian could not avail himself of the provisions of Section 55(3) of Ordinance 27 of 1949, and therefore, nothing vested in him under Sub-section (2) and he had no jurisdiction to demand possession over the property in dispute under Sub-Section 4. Section 8(2) of the Ordinance corresponds to Section 8(2) of the Central Act and is in the following words:

Where immediately before the commencement of this Ordinance any evacuee property in the Province had vested in any person exercising the powers of the Custodian under any law repealed hereby, the evacuee property shall on commencement of the Ordinance, be deemed to have vested in the Custodian, appointed or deemed to have been appointed for the Province under this Ordinance and shall continue to so vest.

The reference to ''law repealed hereby'' has reference to what is contained in Section 55 of the Ordinance. That Section repealed the Administration of Evacuee Property Ordinance 12 of 1949, as in force in the United Provinces, Chief Commissioners'' Provinces and the Province of Madras, Section 5 Sub-section (2) of Ordinance 12 of 1949 provided, that where immediately before the commencement of this Ordinance any evacuee property in a Province had vested in any person exercising the powers of a Custodian under any corresponding law in force in that Province immediately before such commencement, the evacuee property shall on the commencement of this Ordinance be deemed to have vested in the Custodian appointed for the Province under this Ordinance. The law in force in the United Provinces was the United Provinces Administration of Evacuee Property Ordinance No. 1 of 1949, Section 5 Sub-Section 2 of which, in similar terms, saves the position of the Custodian held in accordance with the United Provinces Evacuee (Administration of Property) Act 10 of 1948.

This Act did not contain any provision similar to Section 4 of the East Punjab Act of 1947 relating to the vesting of the evacuee property in the Custodian. The observations made in the decision of the Allahabad High Court are, therefore, not comparable and are no guide for deciding the question which arises in this case.

The next question is whether the property in question is an evacuee property. Sham Singh made a statement on oath on 8th of January, 1959, admitting that the disputed property belonged to Meru, a Muslim and that he was prepared to remove his effects and the government could take possession of it. This statement was made on the report of the District Rent and Managing Officer Ludhiana, to the effect that Sham Singh had made an encroachment on the evacuee land. An enquiry was instituted and a notice was sent to Sham Singh. Nowhere during the proceedings, was an issue raised that the land was not evacuee property. This matter was not even taken in the grounds of appeal or grounds of revision. Even in this Court, the evacuee character of the property was not denied.

The next question is whether the Custodian could determine the evacuee character of this land. In view of admission of Sham Singh this matter is only of academic interest. u/s 46(a) of the Central Act, no civil or revenue Court has jurisdiction to entertain or to adjudicate upon any question whether any property or any right to or interest in any property is or is not an evacuee property. Section 7-A of the Act prohibited any property from being declared to be an evacuee property on or after 7th of May, 1954. This declaration is for purposes of Section 7(1). There is, however, no ban against the Custodian''s right to know or to find out what has vested in him u/s 8(2). Moreover, if Civil Courts have no jurisdiction, there is no tribunal left to determine the nature of the property. It cannot be reasonably argued that neither the Custodian nor the civil courts could determine the evacuee nature of the property. The object of Section 46 in taking away jurisdiction of civil or revenue courts was, that Custodian was empowered to institute an enquiry and to determine the evacuee character of the property and his jurisdiction for the purposes of this determination was exclusive under the Act. I do not think that the proceedings in this case have been vitiated by virtue of Section 7-A in respect of the property referred to in Section 8 Sub-section (2).

Mr. H.S. Wasu desired to be heard on behalf of the complainant Kehar Singh. I allowed him to address his arguments as an amicus curiae and not as counsel for the complainant, who to my mind had no locus standi. Mr. Wasu said that by means of notification No. S.R.O. 1189, which was published in Gazette of India (dated 4th June, 1955), Part II Section 3 at page 1016, the Central Government had acquired all urban evacuee property u/s 12 of the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954 and it thus became the owner. After the acquisition of this property by the Central Government, power has been conferred u/s 19(2)(b) and (3) upon the Managing Officer under the Displaced Persons Compensation Act. He also said that in this case action was taken against Sham Singh by Shri Madan Lal as District Rent and Managing Officer and not as a Custodian or an Assistant Custodian. u/s 19 of the Displaced Persons Compensation Act, it is not obligatory to institute an enquiry as the matter depends upon the subjective satisfaction of the Managing Officer. Remedy from the order of the Managing Officer is provided by Section 22 and thus has not been resorted to by the petitionees. The appeal should have been filed to the Settlement Commissioner u/s 22, but this was not done and an appeal was filed to the Additional Custodian, who had no jurisdiction to sit in judgment on the order of the Managing Officer. Again by filing revision to the Deputy Custodian General, resort was made to the wrong Tribunal. u/s 27 of the Displaced Persons Compensation Act, the order of the Managing Officer becomes final. For these reasons also this petition, in my view, does not deserve to succeed. In the result, the petition is dismissed, but in the circumstances of the case, I will leave the parties to bear their own costs.