ASSTT. CUSTODIAN, E.P. & ORS. versus BRIJ KISHORE AGARWALA & ORS

ASSTT. CUSTODIAN, E.P. & ORS.

BRIJ KISHORE AGARWALA & ORS. October 7, 1974

[K. K MATHEW AND A. ALAGIR!SWAMI, JJ.]

U. P. Administration of Evacuee Property Ordinance 1949 s.2(c)(i) & (i{)-Scope of. Custodian first stated that the property was not evacuee property and the respon· dent acted on it-later acquired it as evacuee property-whether Custodian bound by the earlier statement. ,

• The disputed property belonged to Muslim who left"India in 1942. After the partition of the country she migrated to Pakistan in 1948, without coming to India. In 1962 she came to India and sold the property to respondent no. 1 for sum of Rs. 42,000. Respondent no. I purchased the property after ascertaining from appellant no. I Custodian of Evacuee Property that the property was not evacuee property. Later, however, the appellant passed an order declarini: the prope~ to be evacuee property. On petition by respondent no. I the Assistant Custodian General directed that the property be handed over to the respondent no. 1 and the sale price deposited in the bank could be taken by the Custodian. Since the CustodiM did not issue sale certificate in his favour respondent no. 1 filed writ petition in the High Court which was dismissed by single Judge on the ground that the seller was an evacuee. The Division Bench on the other hand held that the seller was not an evacuee under s.2 (c)(i) of the United ProvincesAdmi· nistration of Evacuee Property Ordinance 1949 but refused to consider whether the seller was an evacuee under s. 2(c)(ii) thereof. According to s. 2(c)(i) of the ordi· nance "evacuee" means any person who leaves or has on or after the 1st de>' of March . 1947, left any place in the United Provinces for any place outside the temtories now forming part of India while according to sub clause (ri) "evacuee" means any person who is resident in any place now forming part of Pakistan and is for that reason unable to occupy, supervise or manage in person his property in the United Pro-vinces. ·

Allowing the appeal,

(1) There could be no doubnhat the seller was an evacuee within the meaning of that word under s. ~c)(il) and the J?roperty in question was. evacuee property. As it is clear that she left the United Provmces even before the tst March 1947 and was in Teheran till she left for Pakistan from there cl. 2(c)(i) would not apply but cleatly cl. 2(c)(ii) would. Thero was no doubt that she was resident in PalciStan after the piirtition of India and WI!$, therefore unable to oocupy, supervise or manage her property in the United Provinces. (361 O; C-DJ

(2) The fact that the first respondent had made an inquiry from the Assistant Custodian whether the property was evacuee property and was told that it was not, did not make any difference to this questio'1· (362 Al

Howell v. Falmouth Boat Construction Co. Ltd., {19511 A.C. 837 at 845, Ebra~ him Abbobaker and Another _y, 'fek Chand Dolwani [ 9531 S.C.R. 691 .Zafar A/1 Shah v. Assistant Custodian of Evacuee Property [1962] 1 SCR 749 referred to.

. (3) Onbe it is declared that the property was evacuee property, the sum of Rs. 42,000 paid by respondent no. 1 to the seller and deposited in the bank could not also be evacuee property. Either the one or the other could be evacuee property, This sum must be held to be in trust for tho first respondent. [363 F]

CIVIL APPELLATE JuRJSD1ar10N : Civil Appeal No. 170of1969.

Appeal from the Judgment and Order dated .the 15~ April, 196S of the Allahabad High Court (Lucknow Bench) in Special Appeal No. 258 of 1966.

SUPRBME COURT RBPOR'fS

G. L. Sanghi and S. P. Nayar, for the appellants.

O. P. Lal, for respondent No. 1.

The Judgment of the Court was delivered by

ALA01Rl$WAM1, J.-Mrs. Zohra Naqvi, the wife of Police official of the then United Provinces (now Uttar Pradesh) was in Teheran in the year 1947 alongwith her husband. She purchased property from the Improvement Trust, Lucknow for sum of Rs. 6,400/·. It appears that Mrs. Naqvi did not come to India at all till 1962 when she sold this property to the sons of respondent No. 1 and one Mrs. Jain. On 24-6-1949 the United Provinces Adm.inis· tration of Evacuee Property Ordinance, 1949 came into force.

This would be proper stage at which the relevant provisions of the Ordinance should bo 11oticed. Under that Ordinance "eva1cuee property" means any property in which an evacuee has any right or interest, or which is held by him under any deed of trust or other instrument, and an "unauthorised perso11" means any person (whether empowered in this behalf by the evacuee or otherwise) who, otherwise) who, who, after .the 15th day of Augu!1t, 1947, has been occupying, supervising or managing the propert) of' an evacuee without the approval of the the Custodian. Under section S of that Ordinance all evacuee prope1ty situate in the U11ited Provinces shall vest in the Custodian.

means any person or otherwise) who, otherwise) who, who, occupying, supervising the approval of the the

We may now continu~ the narration of events. Before the pur-chase of this property the ht respondent h!\d applied to the ht appel-lant to be informed whether the property in question is an evacuee property ~nd received IL reply in the, negative. But on 25-3·1963 · the 1st appellant passed an order declaring the property as an evacuee prol"'rtY. It should be noticed that an evacuee property automati-cally vests in the Custodian under sectfon S and the notification under section 6 of the Orclinance is not necessal')' oondition for such vesting. Section 6 only enables the Custodian to notify the properties which have already \'ested in him under the Ordinanco. On 7·3·1964 notification was issued acquir· ing the disp11ted plot under nection 12 of the Displaced Persons (Com· pensation & Rehabilitation) A.ct, 1954. Tlie lst respondent filed revision petition to the Assistant Custodian General who directed that the property should be' handed over to the 1st respondent but that tho sum of Rs. 42,000/- being the sale price of the property, which had been deposited with the Alliihabad Bank, Lucknow could be taken by the Custodian. The 1st respondent's application to the 1st appellant to isSU\'l sale certificate in his. favour not having pro· duced ny result he filed writ petition out of wb.ich this appeai arises. The peution was dismissed by learned Judge of the Allahabad High Court but 011 appeal Division Bench of the High Court allowed the respondents' appeal. This appeal has been file({ on the basis of . certificate granted by the High Court.

The learned Single Judge took the view that,Mrs. Naqvi was an evacuee because she had left Uttar Pradesh after the 1st day of

March, 1947 to place outside the territories of India. The Assis-tant Custodian General had also taken a· similar view when the revi· sion petition was filed by 1st respondent before him. The Divisicn Bench on the other hand took the view 1hat as Mrs. Naqvi had not left the United Provinces on or after 1st March 1947 but her hus· band had been posted in Teheran since some time Jn 1942 and she had migrated to Pakistan from Teheran after 1st March, 1947 it wculd not make her evacuee under sertion 2( c)(i) of the OrdiilP.nce. It was urged before the Bench that she would be an evacuee under sccticn 2.(c)(ii) of the Ordinance butthe Bench refused to ccmider tht qns-tlon. .

Thus the first question to be decided is whether Mrs. Nz.qvi was an evacuee. As it is clear that she left the United Provinces even before the 1st March, 1947 and was in Teheran till she left for Paki· stan from there, clause 2(c)(i) would not apply to her but cle2.rly clause 2(c)(ii) would apply to her. There is no doubt that sbe was resident in Pakistan after the partition of India and she was, therefore, unable to occupy, supervise or manage here property in the United Pre vinces. We do not think _that the learned Judges of the Division Bench who heard the appeal were right in refusing to consider this aspect of the matter. The 1st respondent in his writ petition clearly averred that as Mrs. Naqvi migrated to Pakistan from Persia she could not be trea- · ted as an evacuee. The order passed by the 1st appellant also pro-ceeded on the. basis that Mrs. Naqvi had migrated to Pakistan from Persia in 1948 and Wl1S still living there .. He also referred to the fact that she had sent the money from Teheran in 1947 and the possession of the property had been taken by her son who cP.me to India . in 1948 for that purpose specili.cally whereas Mrs. Naqvi continued to reside in Pakistan till she came to India in 1962 for selling the plot and that she was· Pakistani national. In the -revisicn peti-tion filed before the Assistant Custodi2.n General by the I st resrrr,dent also it is admitted that Mrs. Naqvi migrated to P2.kistan from Teheran as was held by the Assistant Custodian. Therefore, merefy because in his order in revision the Assistant Custcdian General h2.d relied upon section ?.(c)(i) to hold that Mrs. Naqvi was an evacuee that cannot prevent the consideration of the fact whether sl:-.e was an evacuee under section 2( )(ii) .

. There can be no doubt that she was an eva"uee wHhin the rr.ean-ing of that word under section 2(c)(ii) and the property in question was an evacuee property. The property automatically vested in the Custodian by virtue of the provision of section 5 _of the United Provinces Ordinance No. I of 1949. The U. P. Ordinance. N:o. I of 1949 was repealed b) section 58 of the Central Administratirn of Evacuee Property Act, 1950. The result of snch repeal and re-en-actment was. that the property in question whicr had vested in the Custodian continued to vest in him notwithstanding the repeal of the Ordinance and there was no need to take any action _under sec· tion 7 of that Act. Such action is necessary only in cases where the property had not already vested under the provisions of the rerealed Ordinance. We do not consider that the fact that the 1st respondent

had made an enquiry from the Assistant Custodian whether th~ pro-perty in question was an evacuee property and was told that 1t was not makes any difference to this question.

We do not think that the reliance placed on behalf of the respon-dents on the decision in Robertson v. Minister of Pensions(!) where Lord Denning observed :

"I come therefore to the most difficult question in the case. Is the Minister of Pensions bound by the Wa1: Office letter ? I think he is. The appellant thought, no doubt, that, as he WM servinit in the army. his claim to attributability would be dealt with by or through the War Office. So he wrote to the War Office. The War.Office did not refer him to the Minister of Pen-sions. They a~sumed authority over the matter and assured the appellant that his disability had been accepted as attri-c butable to military service. He was entitled to assume that they had consulted any other departments that might be concerned, such as the Ministry of Pensions, before they ~ave him the assurance. He was entitled to assume that the board of medi· cal officers who examined him were recognised by the Minister of Pensions for .the purpose of giving certificates as to attri· butability. Can it be seri.ously suggerted that, having got that assurance, he wa!1 not entitled to rely on it I In my opinion if government department in its dealings with sub· ject takes it upon itself to assume authority upon matter with which he Is concerned, he is entitled to rely upon having the authority which it assumes. H~ does not know, and cannot be expected to know, the limits of its authority. The department itself is clearly bound, and as it is but an a11ent for the Crown, It binds the Crown also, and as the Crown is bound, so are the other departments, for they also are but agents of the Crown: The War Office letter therefore binds the CrC1wn and, through the Crown, it binds the Minister of PensiC1ns. The function of the Minister of Pension is to administer the royal warrant issuedi by the Crown, and he must so administer it as to honour all assurances given by or on be-F half of the Crown." can help the respondents. That decision has been di~approv~ by the House of Lords in Howell v. Falmouth Boat Constrnction Co. Ltd.(2) Lord simonds referred to the observation of Lord Denning in Robertson v. Minister of Pensions(3) and observe.d :

"My Lords, I know of no such principle iii our law nor was any authority for it cited. The illegality of an act is the same whether or not the actor has been mi~lr.d by an assumption of authority on the part of government officer however high or low in the hierarchy. I do not doubt that in criminal proceedings it would be material factor that tl1e actor had. been thus misled . if knowledge was necessary elr.ment of the offence, and in any ~Jc it would have bearing on the sentence to be imposed. But

(I) {1949) 1 K. B. 22,.

(2) [1951) A.C. 837 at 845.

(3) [1949] 1 K. B. 227.

that is not the question. The question is whether the. character of an act done in face of statutory prohibition is affected 1'y the fact that it has been induced by misleadin? assumpfon of autho-rity. In my opinion the answer is clearly No. Such an answer may make more difficult the task of the citizen who is anxious to walk in the narrow way; but that does not justify different answer being ghen." ·

.Lord Normand in dealing with this question observed at page €49 after referring to the statement of law by Lord Denning:

"As I understand this statement, the rr.spondent~ were, in the opinion of the learned Lord Justice, entitled to say that the Crown was barred by representations made by Mr. Thompson and acted on by them from alleging aJtainst them breach of the statutory order, and further that the mpondent~ were r:qually entitled to say in question with the appellant that there had been no breach. But it is certain that neither ministe:r nor any subordinate officer· of the Crown can by any conduct or represen-tation bar the Crown from enforcinp: statutor'y prohibition or entitle the subject to 'maintain that there has bten no breach of it.''

We are of opinion tha~ the view taken by the House of Loras is the correct one and not the one taken by Lo·rd Denning. ·

We see nothing in the decisions of this Court in Ebrahim Abbo-baker and Another v. Tek Chand Dolwani (1) or Zafar Ali Shafi v. Assistant Custodian of Evacuee Property(2) which can be of any help to the respondents. This appeal, therefore, would have to be alfowed.

But there is one (urther question to be decided. Once it is declared that this property is an evacuee property it is obvious that the sum of Rs. 42,000/- paid by the 1st respondent to Mrs. Naqvi and deposited by her in the Allahabad. Bank, Lucknow cannot also be an evacuee property. Either the one or the other can be an evacuee propert~. This sum must he held to be in trust for the 1st respondent. This principle is not disputed by Mr. G. L. Sanghi appearing on behalf of the appellants. Whi.le the appeal would be allowed there would be an order directing that the Jst respondent would be entitkd to withdraw the sum of Rs. 42,000/- deposited by Mrs. ~aqvi in the Allahabad Bank, Lucknow along with any interest that. might have accrued on it. In the circumstances of this case there will. be no order as to costs. ·

Appeal allowed.