THE CUSTODIAN OF EVACUEE PROPERTY, BANGALORE versus KHAN SAHEB ABDUL SHUKOOR, ETC.

3 S.C.R. SUPREME COURT REPORTS

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 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 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

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."

On September 21, 1949, the Custodian issued. 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.

Shukoor

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.

An order made in 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 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 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-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 Custodian of Evacuee Property for the State of Mysore and other officers subordinate to him for the purpose of administering evacuee property in that

Wanchao J.

[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 notification by v. the Custodian in the Mysore Gazette 0of evacuee pro-Khan Saheb Abdul perty vested in him. Section 8 provided that any Shukoor J . . . ht t . t . person 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 demand requiring surrender of possession had been made by the Custodian might preft>r 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 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 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.

'9[[6]]'

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 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 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 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

i96r into force on October 18, 1949. Further there was Evacuee usto ian Proputy, [. ]o·' 1 H" change 1gh Court in the the forum appeal of l ay appeals to the and Custodian-General instead . of the 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 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 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.

Property (Amendment) Act, No. LXVI of 1950, was

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 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

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. 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 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 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

The first point therefore which falls for considera-1961 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 'd II d. I . th Shukoor t o se t as1 ea su sequent procee mgs, eavmg 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 District Judge or 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

substituted, and shall Le deemed always to have

been substituted."

Custodian of

Evacuee Property, This clearly shows that Central Act LXVI was

amending s. 58 retrospectively from the date on which it came into force (namely, April 17, 1950). The new 58 h" · · s. w 1c was t us su st1tute Ill the · ct rom April 17, 1950,. contained sub-a. (2) which is as follows :-

Bangalore

v. K!iaft Saheb Sh k Abdul 00"'

W anchoo J.

"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 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 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.

has passed an order for the purpose of satisfying 1961 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·]G l Id t Shukoor respondents that t Custo 1an-h d[. ] 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 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 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

1961 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 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 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 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 considerationis 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 vested one and a.rising when the proceedings commenced, there would still be 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 '"

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 00u ' 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, person claiming any right to the property was entitled to make an application preferring claim before the Custodian. That application was dealt by the Custodian in 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 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,The argument of Mr. Sastri is that there is nothing z961 in the second Mysore Act which repealed the first . Mysore Act corresponding to Act and therefore m spite . . of s. the repea o t rst 8 of the l first Mysore fi Custoap•anpof1 i:acuee_ Bangalore ro er y, 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 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 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 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

1961 61 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 change in the v. procedure by which evacuee property is finally «nan5~ahkeb 5~ahkeb ~ahkeb nu OOY Abdu[1]M declared to be evacuee property. Under the first __ ysore ct t property ecame evacuee property wanchoo J. and the person had to go and file claim and establish that it was not. That claim was investigated and after investigation the Custodian had to come to 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 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 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 com-parison of the two procedures that though there is difference between the two, the difference is not of 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 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 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.

«nan5~ahkeb 5~ahkeb ~ahkeb nu OOY __ wanchoo J.

38.C.R.

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 . M Shukoo• first Mysore ct an y s. 5 m t 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 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.

'[[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 proceeding commenced under the first Mysore Act (which was equivalent to 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 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.

N.,Bubbiah' Ohoudhury ([1]);:'\Yhere . this Court, held.i that

.,.sz """'°""'•of s..,.i.,, ... Pr.,m:y.

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 Te held to be .similar to proceed in gs, under s, 5( 1 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 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 writ of certiorari a!Jts in

. · exer<Jise .of 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 writ of certiorari if l•l (1957J s.c.R. 488, (1) (1955J 1 s.c.R. 110~.

it is manifest error apparent on the face of the proceedings, e.g., when it is ba.s_ed on clear ignorance or disregard of the provisions of!a. w. In other words, it is pa.tent error which ca.n be corrected by certio. rari but not a. mere wrong decision.

c, .. 1.,,10., of E.,.,_ Prop.,1y,

S...,olore •· rari KAa. S•lllb Alnlul I th SAuA••• n --Wa#C4oa J.

I th t. . t.h t d' h· . . d' . n presen case, us CY 1a.n a. 1ur1s 1ct1ofi to decide the matter once it is held that the Cnato. 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 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.

3 S.C.R. SUPREME COURT REPORTS

We therefore allow the appeals, set aside the order 1961 of the High Court and restore that of the. Custodian Custodian of dated December ll, 1952 .. This of course will not take Evacuee Prop111y, 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 circumstances o · th' . 1s case we pass no or er as o t Shukoor costs. Wanchoo ].

Appeals allowed.

SARDA PRASAD AND OTHERS v.

F8bruary ao.

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.

decree dated September 2, 1938, in suit for partition of joint Hintlu family property awarded 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 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 partition decree and thats. 7 was no bar as J conld not have given 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 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 discharge of the liability under the decree as it was neither 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.