BABUBHAI MUSABHAI MITHANI THROUGH HIS HEIRS v. UNION OF INDIA
2013-07-22
N.V.ANJARIA
body2013
DigiLaw.ai
JUDGEMNT N.V. ANJARIA, J. 1. The appellant herein is the original plaintiff. The plaintiff one Bavabhai Musabhai, now represented through his heirs and legal representatives, instituted Regular Civil Suit No.127 of 1982 for declaration and permanent injunction. Learned Civil Judge (S.D.) Amreli by his judgment and decree dated 2nd May 1985 decreed the suit. It was declared that the plaintiffs were the absolute owners of the suit property. A further declaration was given that the suit property was not declared to be an evacuee property and had not acquired by or vested in the State Government, and that the defendant state had no power or jurisdiction to allot, transfer or alienated the suit property. Regular Civil Appeal No. 63 of 1985 preferred by the defendants-respondents herein came to be allowed and the judgment and decree of the trial court was set aside. 2. The appellants are aggrieved by the said judgment and order dated 30th December 1992 of the learned Assistant Judge, Amreli. They have therefore, presented this appeal under section 100 of the Code of Civil Procedure, 1908. 3. The facts involved may be summarised. It was the case of the appellant-plaintiff that he was absolute owner of the suit property which was open plot of land, fenced by wire, bearing Gala No. 40 admeasuring 1389 sq. yds., and which was situated near Khatri Boarding, Station Road, Amreli. It was the case that the said property was neither declared to be an evacuee property, nor was acquired by or vested in the Government under the provisions of Displaced Persons Compensation and Rehabilitation Act, 1954. It was contended by the plaintiff that the defendants were not competent to exercise any power or jurisdiction with respect to the suit property. It was next pleaded by the plaintiff that there was a partnership firm of the plaintiff Babubhai, his elder brother and his father brought into existence a partnership in year 1944 in the name and style of M/s. Bavabhai Musabhai; the firm was carrying oil business at Amreli and other places; a plot was purchased from the funds of the partnership firm through public auction in the name of the elder brother of the plaintiff, which was Bavabhai Musabhai. It was averred that the name of said Bavabhai was mutated in the revenue records and after his death the plaintiff and his father Musabhai Jivabhai became the owners.
It was averred that the name of said Bavabhai was mutated in the revenue records and after his death the plaintiff and his father Musabhai Jivabhai became the owners. When father Musabhai died, the plaintiff became the absolute owner of the property, which continue to remain in his exclusive possession and enjoyment. It was the case of the plaintiff that he was regularly paying revenue cess and other taxes. 3.1 It was further case of the plaintiff that he apprehended that defendant No.2 was contemplating to transfer the suit land on the erroneous basis that the owner of the property Bavabhai Musabhai had migrated to Pakistan and as a result the suit property had become an evacuee property vested in defendant No.1 State Government. As noted above, it was the claim and case of the plaintiff that the suit property never belonged to Bavabhai Musabhai individually, but it belonged to the partnership firm of Bavabhai Musabhai, who retired from the partnership in the year 1947. It was alternatively pleaded that even if it was to be presumed that the suit property vested in the Central Government, then also under the provisions of the Displaced Persons Compensation and Rehabilitation Act, 1954, and under the policy of defendant No.1 State Government, the plaintiff being in continuous possession of the property, he was entitled to retain the possession and to acquire the ownership. 3.2 It was also the case of the plaintiff that he had plans to construct residential building over the suit land and for that a written permission dated 30th March 1992 was granted by the Amreli Municipality; it was stated that in the event the construction was started and interfered with by the defendant authorities, the plaintiffs suit would be seriously prejudiced and irreparable loss would occasion on them. Therefore, the suit was instituted for the declaration and permanent injunction. The prayers in the suit are reproduced hereunder. 3.3 In the written statement (Exh. 21), the defendant contended inter alia that City survey in the area was undertaken in the year 1971 wherein the suit property was shown to be in the name of the Government, that in the revenue Khata, the property was shown in the name of Bavabhai Musabhai who had migrated to Pakistan. The defendants denied that there was a partnership firm as pleaded by the plaintiff or that it was doing oil business as alleged.
The defendants denied that there was a partnership firm as pleaded by the plaintiff or that it was doing oil business as alleged. It was the case of the defendants that said Bavabhai Musabhai having migrated to Pakistan in November 1947, he was an evacuee as per the provisions of the Administration of Evacuee Property Act, 1950. It was contended that as per section 8-2(A) of the said Act, the suit property automatically vested in the custodian of evacuee properties. It was the case that after the property was purchased in auction, it remained in the name of Bavabhai Musabhai in the Government records; that the story of partnership and the property belonging to partnership firm was concocted one and the entry was never amended in the name of partnership firm. According to the defendant, the plaintiff had no right to make any construction and the permission granted by the Municipality was inconsequential as the suit property was evacuee property over which the plaintiff could not have put forth any claim or right. 3.4 The trial court framed issues and concluded in favour of the plaintiff on various issues including that it was purchased by the partnership firm and subsequently became the property of the plaintiff who was found to be in exclusive possession of the suit property since last thirty years. It was held that the defendant had failed to prove that the suit property was an evacuee property. On the issue whether the civil court had jurisdiction to try the suit, the trial court held that it had jurisdiction. The trial court considered the provisions of section 2(d), section 7, section 7(a) of the Administration of Evacuee Property Act, 1950. It concluded that no proceedings were undertaken under section 7 of the Act. 3.5 The first appellate court disagreed with the reasoning of Trial Court. It relied on the definition of 'evacuee' under section 2(d) and the definition of 'evacuee property' under section 2(f) of the Act and reached a conclusion that Bavabhai Musabhai was an evacuee because he went to Karachi in Pakistan in November 1947, where he died.
3.5 The first appellate court disagreed with the reasoning of Trial Court. It relied on the definition of 'evacuee' under section 2(d) and the definition of 'evacuee property' under section 2(f) of the Act and reached a conclusion that Bavabhai Musabhai was an evacuee because he went to Karachi in Pakistan in November 1947, where he died. On the basis of the said facts, it held that despite there being no notification under section 7 of the Act, since the suit property was evacuee property within the meaning of section 2(f) of the Act, it automatically vested in the custodian under section 8 of the Act. 3.6 The following substantial questions of law were framed by this court for consideration and determination at the time of admission of this appeal. "(1) Whether the Id. Judge has committed an error of law in interpreting the provisions of section 2, 7 & 8 (of the Administration of Evacuee Property Act, 1950) and whether the said provisions will be applicable after the decision of the Custodian General? (2) Whether in absence of Notification declaring the property to be evacuee property under section 7, can the property be held to be evacuee property?" 4. Heard learned advocate Mr. Jinesh Kapadia for the appellant and learned advocate Mr. Y.V. Vaghela for the respondent. 4.1 Learned advocate for the appellant submitted that the first appellate court completely misinterpreted the provisions of Section 7 and Section 8 of the Act and further erred in applying the definition of evacuee property in true purport of the above provisions. He submitted that when there was no notification issued under Section 7, the property could not have been treated as an evacuee property. In support of his submissions, learned advocate relied on the decisions in (i) Dr. Rajendra Prakash Sharma v. Gyanchandra and others [ AIR 1980 SC 1206 ]; (ii) Haji Esmail Noor Mohammad and Company Vs Competent Officer, Lucknow [ AIR 1967 SC 1244 ] and the decision of this Court in (iii) Ahmedbhai Abdulkadar and others Vs The Custodian of Evacuee Property and Regional Settlement Commissioner, Bombay and others [AIR 1967 Gujarat 181]. 4.2 As against that, learned advocate submitted that the property had acquired the character of evacuee property. Bavabhai Musabhai had migrated to Pakistan in November, 1947 and he was an evacuee within the meaning of Section 2(d) of the Act.
4.2 As against that, learned advocate submitted that the property had acquired the character of evacuee property. Bavabhai Musabhai had migrated to Pakistan in November, 1947 and he was an evacuee within the meaning of Section 2(d) of the Act. In the facts and circumstances of the case, in his submission, the notification under Section 7 of the Act was not an indispensable requirement and the property had turned evacuee property by virtue of operation of provisions of the Act and in particular Section 8. He supported the reasoning of the first appellate court. Learned advocate for the respondent relied on the decision in Azimunnissa Vs Deputy Custodian, Evacuee Properties, District Deoria [ AIR 1961 SC 365 ]. 5. Before proceeding to consider whether the before adverting to the substantial questions of law, the contention raised by the learned advocate for the respondent that the jurisdiction of the civil court was barred under section 46 of the Act may be considered and disposed of. He submitted that the civil court had no jurisdiction to entertain the suit and consider the suit prayers as the jurisdiction was barred in view of provision of section 46 of the Act. Sec.46 of the Act reads as under. He contended that a substantial question arises on that score. 5.1 For examining whether there is any substance in the contention and whether any substantial question of law arises in this regard, the provision of section 46 may be examined. "46. Jurisdiction of Civil Courts barred in certain matters-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. (b) [Deleted] (c) To question the legality of any action taken by the Custodian-General or the Custodian under this Act. (d) In respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine." 5.2 As per provisions of section 46 above, it would be seen that the jurisdiction of the civil court is barred there under in respect of entertaining or adjudicating upon any question whether any property or any right to or interest in any property is or is not evacuee property.
The civil court's jurisdiction is also barred to question the liability of any action taken by the custodian general or the custodian under the Act. The third limb of ouster of jurisdiction of the civil court is in respect of the matter which the custodian general or the custodian is empowered by or under this court to determine. The above three kinds of embargoes are provided in clauses (a), (c) and (d) of section 46 of which clause (a) is relevant in the facts of this case. This is the nature of bar of civil courts jurisdiction prescribed under section 46. 5.3 In this context, the prayers in the suit may be noted: "(A) The honourable court may be pleased to grant a declaration that the plaintiff is the absolute owner of the suit property being open plot of land bearing gala no. 40, admeasuring 1389 sq. yds. and khata no. 630 in village form no. 84, situated near Katri boarding station road Amreli and that the said property has not been declared to be an evacuee property and has not been acquired by or vested in the defendants Governments under the provision of the Displaced Persons Compensation and Rehabilitation Act, 1954, and that the defendants have no power or jurisdiction to allot transfer or alienated the suit property in any manner whatsoever in favour of any body else except the plaintiff. (B) The honourable court may be pleased to issue a permanent injunction restraining the defendants or their agents and servants from in any way allotting transferring and/or alienation the suit property in favour of anybody else and from disturbing the plaintiff in any manner whatsoever in his enjoyment and possession of the suit property." 5.4 Now, if the prayers of the suit are seen they were for declaration that the plaintiff was an absolute owner of the suit property and further that the same had not been declared as an evacuee property and had not vested in the Government. The declaration prayed for did not attract a situation where any question whether any property or any right to or necessity in the property is or is not evacuee property was required to be adjudicated. The declaratory prayer of the kind and nature as above would not come within the compass of bar contemplated under section 46(a). 5.5 The Apex Court in Dr.
The declaratory prayer of the kind and nature as above would not come within the compass of bar contemplated under section 46(a). 5.5 The Apex Court in Dr. Rajendra Prakash Sharma (supra) considered the provisions of Section 7 and 8 of the Administration of Evacuee Property Act, 1950 and held that making of declaration after inquiry under Section 7 that the property is an evacuee property is sine qua non for giving the custodian dominion over the property. In that case the concerned person had migrated from India in 1963. No proceedings were taken under Section 7 of the Act to declare this property as evacuee property before 07.05.1954 and no such proceedings are pending on that date. It may be noted that under Section 7A of the Act after 07.05.1954, the property cannot be declared to be an evacuee property. In the circumstances, the Court held that the property could not be declared as evacuee property and the custodian has no jurisdiction to declare the property as evacuee property. While addressing the question, the Court considered the scope of Section 46 of the Act. What was observed and held in paragraph 27 may be pertinently reproduced: “The scope of Sections 28 and 46 of the 1950 Act came up for consideration before this Court in Jafran Begum's case (ibid) ( AIR 1968 SC 169 ). The facts of that case were that a person who was in possession of a house in India, migrated to Pakistan. Notice was issued to his son under S. 7 of the Administration of Evacuee Property Act, 1950, and after hearing him the Deputy Custodian declared the house to be evacuee property. Jafran Begum, who was the mother of the evacuee and on whom the notice under S. 7 of the Act was not served, started proceedings before the Custodian, claiming that the owner of the house had executed a will bequeathing the property to her and so the property could not be declared evacuee property. That application was dismissed by the Custodian. When she failed before the authorities constituted under the Act, she filed a suit in the civil court basing her case on the will and prayed for a permanent injunction restraining the authorities from evicting her from the house.
That application was dismissed by the Custodian. When she failed before the authorities constituted under the Act, she filed a suit in the civil court basing her case on the will and prayed for a permanent injunction restraining the authorities from evicting her from the house. On the question of jurisdiction being raised, the High Court held that determination of a complicated question of law relating to title by authorities under the 1950 Act was not final and could be reopened in the civil court, and section 46 did not bar the civil court's jurisdiction to entertain such a question. After examining the scheme of the 1950 Act, Wanchoo, C.J., speaking for the Bench constituted by three learned Judges, laid down the law, thus:- "(Where) the question whether certain properties are evacuee properties are evacuee properties has been decided under S. 7 etc., whether that decision is based on issues of fact or issues of law, jurisdiction of courts is clearly barred under S. 46 (a). It is difficult to see how a distinction can be drawn between decisions under S. 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issues of law or of fact by S. 28 and Section 46 bars the jurisdiction of civil and revenue courts in matters which are decided under S. 7whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicated." (Emphasis supplied) "S. 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in S. 4 (1) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of Civil Procedure on a combined reading of Ss. 4, 28 and 46.
This conclusion is reinforced by the provision contained in S. 4 (1) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of Civil Procedure on a combined reading of Ss. 4, 28 and 46. (But) S. 46 or S. 28 cannot bar the jurisdiction of the High Court under Article 226 of the Constitution." (Emphasis supplied) From the crucial words underlined in the above extract, it is clear that even according to the rule of the above decision Section 46 will not bar the jurisdiction of the civil court where the Custodian has never declared the property as evacuee property after taking proceedings under Section 7 of the 1950 Act.” (Para 27) (Emphasis supplied here) 5.5.1 The Court further observed:- “A Full Bench of the Allahabad High Court in Khalil Ahmad Khan v. Malka Mehar Nigar Begum, AIR 1954 All 362 ; held that where the matter as to whether a property is evacuee property or not, has never been adjudicated upon by the Custodian himself but he merely takes action on the basis of the judgment of the court of first instance, without deciding the matter for himself, that judgment being subject to correction by the court of appeal does not become final merely because the Custodian had taken action on the basis thereof. In such a case, the jurisdiction of the civil court of appeal to determine the correctness of an adjudication already made by the civil court is not barred. This decision was noticed by this Court in Jafran Begum (ibid) ( AIR 1968 SC 169 ), and it was observed that to some extent, "this case is in line with the view we have taken." (Para 28) 5.5.2 It was further explained as to how the jurisdiction of the Civil Court to determine the question whether a property was evacuee property would not be barred under Section 46, by stating:- “The matter can be looked at from another angle also. Clauses (a), (c) and (d) of Section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication, the power of the Custodian-General or the Custodian under this Act of 1950 to determine that question is subsisting.
Clauses (a), (c) and (d) of Section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication, the power of the Custodian-General or the Custodian under this Act of 1950 to determine that question is subsisting. That is to say, if at the point of time when the question arises, the power of the authorities constituted under this Act to adjudicate that question stands terminated or extinguished by the operation of S. 7A of 1954, none of the clauses (a), (c) and (d) of Section 46 will bar the jurisdiction of the civil court to determine that question, which had not been decided by the Custodian during the period he had the power to determine it.” (Para 29) 6. In view of above position of law, it could not be gainsaid that the Civil Court did not have the jurisdiction to entertain the suit and adjudicate upon the suit prayers. The contention that the Civil Court jurisdiction was barred under Section 46 of the Act was meritless and is liable to be only rejected. The law on this score being settled as above, no substantial question of law arises on that score. 7. In continuation of position of law noticed above from the Apex decision in Dr.Rajendra Prakash Sharma (supra), while adverting to the substantial question of law above, certain relevant provisions of the Act having bearing upon the questions to be addressed, may be usefully referred to. Section 6 of the Act deals with the appointment of custodians. Section 7 speaks of notification of evacuee property. The “evacuee property” is defined under Section 2(f) whereas the definition of “evacuee” is under Section 2(d). Section 7A says that notwithstanding anything contained in the Act, no property shall be declared to be evacuee property on or after 07.05.1954. However, under the proviso, operation of Section is excluded in the cases where the proceedings for such declarations on the said date were pending or in respect of a case falling under sub-clause (b). Section 8 provides for vesting of evacuee property in the custodian. Section 7 reads as under: "7.
However, under the proviso, operation of Section is excluded in the cases where the proceedings for such declarations on the said date were pending or in respect of a case falling under sub-clause (b). Section 8 provides for vesting of evacuee property in the custodian. Section 7 reads as under: "7. 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. (1A) Where during the pendency of any proceeding under sub-section (1) for declaring any property to be evacuee property any person interested in the property dies, the proceedings shall, unless the Custodian otherwise directs, be continued an disposed of as if such person were alive. (2) Where a notice has been issued under sub- section (1) in respect of any property, such property shall, pending the determination of the question whether it is evacuee property or otherwise, be incapable of being transferred or charged in any way, except with the leave of the Custodian, and no person shall be capable of taking any benefit from such transfer or charge except with such leave. (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)." Similarly, Section 8 is reproduced hereunder: "8. Vesting of evacuee property in the Custodian:- (1) Any property declared to be evacuee property under section 7 shall be deemed to have vested in the Custodian for the State:- (a) In the case of the property of an evacuee as defined 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 August, 1947.
(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 August, 1947. (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 a 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 under section 8 or section 30 of the Administration of Evacuee Property Ordinance, 1949 (12 of 1949), or under any other corresponding law repealed by the Administration of Evacuee Property Ordinance, 1949 (27 of 1949), then not withstanding 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. (2A) Without prejudice to the generality of the provisions contained in sub-section (2), all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, notwithstanding any defect in, or the invalidity of, such law or any judgment, decree or order of any Court, be deemed for all purposes to have validly vested in that person, as if the provisions of such law had been enacted by Parliament and such property shall, on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly, any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken." 8.
The first appellate court even after acceding to the undisputed position that the custodian had not declared the property in question to be the evacuee property and that there was no notification to that effect under Section 7 of the Act, proceeded to hold by construing the provisions of Section 2(d) and 2(f) and reading them with Section 8(2) of the Act, that the property was vested under Section 8(2) as provided in that Section. It reasoned that Bavabhai Musabhai who went to Pakistan in November, 1947 was an evacuee within the meaning of Section 2(d) and further concluded that till said Bavabhai migrated to Pakistan, the property was not entered in the name of firm. It was concluded that the property had automatically vested in the custodian under Section 8 of the Act and notification under Section 7 of the Act was not a necessary condition for such vesting. 8.1 The first appellate court proceeded in reasoning as under: "Notice under section 7 was necessary before any property could be declared evacuee property, but in section 8(2) thereof it was clearly provided that if immediately before the commencement of the Act any evacuee property had vested in the custodian under any law repealed hereby, it shall be deemed to have vested in the custodian appointed or deemed to have been appointed for the purpose of the Act, and shall continue to so vest. This provision makes it clear that in respect of evacuee property which had already vested in the custodian, no fresh action under section 7 was to be taken. In other words, therefore, the dispute shall be deemed to have vested in the custodian under section 8(2) in case it is evacuee property which had vested in the custodian under the earlier ordinance." 9. The true interpretation of Section 8(2) read with Section 7 and the position of law laid down with respect to the scope, purport and import of the provisions, which may now be considered, would immediately show that the first appellate court has totally misdirected itself in law in interpreting and applying the provisions in what it held. Section 8(2) of the Act provides a deeming fiction.
Section 8(2) of the Act provides a deeming fiction. It says that if any property in a State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed thereby, such property on the commencement of this Act, namely the Administration of Evacuee Property Act, 1950, shall be deemed to be the evacuee property declared within the meaning of 1950 Act and shall be deemed to have been vested in the Custodian and shall continue to so vest. Sub-section (2A) which was inserted in 1960 retrospectively provided that vesting contemplated under Sub-section (2) shall be notwithstanding any defect in or the invalidly of such law or judgment under which it had vested. 9.1 The purpose and object of the above provision in Section 8(2) and 8(2A) was highlighted in Ahmadbhai Abdulkadar (supra). Sub-section (2A) was inserted in special background with specific purpose. Prior to the enactment of Ordinance XXVII of 1949 which became Administration of Evacuee Property Act, 1950, there existed State Legislation in several States relating to the Administration of Evacuee Property. Validity of these State Ordinances was successfully challenged in the Allahabad High Court on the ground that there was no Entry in the List in the Seventh Schedule of the Constitution Act, 1935 and therefore, it was not competent for the State Legislature to make any enactment as regards the Administration of Evacuee Property. On 25.08.1949 Item 31B relating to the evacuees was added in the Concurrent List by the Government of India to fill-up the gap. Thereafter on 18.10.1949 the Governor General promulgated the Ordinance above-mentioned called Administration of Evacuee Property Ordinance, later converted into the Act. It appeared that a messy situation prevailed in different States having their own Legislation and on the vesting of the property. In order to iron out the creases and to set the situation uniform, sub-section (2A) was introduced with a view to validate the actions taken under the previous invalid acts and ordinances of the States. The vesting of the property even if was defective or invalid under the State Acts or Ordinances, by virtue of sub-section (2A) inserted by way of deeming fiction the vesting was provided to have taken validly and lawfully.
The vesting of the property even if was defective or invalid under the State Acts or Ordinances, by virtue of sub-section (2A) inserted by way of deeming fiction the vesting was provided to have taken validly and lawfully. 9.2 In Haji Esmail (supra), wherein the Apex Court considered the provision of Section 8(2) of Uttar Pradesh Administration of Evacuee Property Ordinance which corresponded to Section 8(2) of the Central Ordinance No.27 of 1949. In that case, one Abdul Latif Haji Esmail had gone to Pakistan in 1948 and he was therefore treated an evacuee within the meaning of U.P. Ordinance, and his property was automatically vested under the Ordinance in the Custodian. It was held that vesting under the U.P. Ordinance continued to be valid under the Central Act, which was enacted and held the field subsequently. It was held that there was no question of issuing any further notice or making a declaration under Section 7(1) of the Central Ordinance/Act. In other words, it was by deeming fiction that the property which was declared to be evacuee property under the U.P. law was continued in law to be covered under the Central Act to vest in the custodian there under as well. 9.3 In Ebrahim Aboobaker Vs Tek Chand Dolwani [ AIR 1953 SC 298 ], the Court held as under:- “Reading Ss. 7 and 8 together, if appears that the Custodian gets dominion over the property only after the declaration is made. The declaration follows upon the inquiry made under S. 7, but until the proceeding is taken under S. 7, there can be no vesting of the property and consequently no right in the Custodian to take possession of it. Where, therefore, the alleged evacuee dies before the declaration, the Custodian cannot take possession after the death of the alleged evacuee when the property had passed into the hands of the heirs. The inquiry under S. 7 is a condition precedent to the making of a declaration under S. 8 and the right of the Custodian to exercise dominion over the property does not arise until the declaration is made. Hence, the heirs cannot be deprived of their property before the Custodian obtains dominion.” (Para 17) 9.4 The decision in Azimunnissa (supra), lays down no different proposition.
Hence, the heirs cannot be deprived of their property before the Custodian obtains dominion.” (Para 17) 9.4 The decision in Azimunnissa (supra), lays down no different proposition. The Apex Court in that case considered the effect of insertion of Section 8(2A) and held that Section 8(2A) by giving retrospective effect to Section 8(2) of the Act makes vesting as if it was vested under Section 8(2) of the Act. It rejected the challenge to its invalidity. The decision did not render any help to the respondent, though relied on by learned advocate for the respondent, it only buttress the position of law contended on behalf of the appellant. 10. Turning to the facts of the present case, it is not the situation obtained here where the property was earlier declared to be an evacuee property under any other prevalent law and to which the provisions of the 1950 Act is to be applied. Nor it is the case of validating or legalising any defective vesting taken place earlier by applying the provisions of the Act. Section 8(2) of the Act and the deeming fiction contemplated therein does not apply in the case on hand. The first appellate court landed in clear error in holding that the property was deemed to have been vested as evacuee property. It was misdirected logic in law because the first appellate court presumed that the property was an evacuee property under Section 2(f) of the Act and then proceeded to erroneously apply the provisions of Section 8 of the Act. The suit property had never assumed the character of evacuee property. 10.1 In order to treat a property an evacuee property, procedure provided under Section 7 of the Act is a must. As already noticed, it is well settled that there has to be a notification under Section 7 and such a notification is sine qua non before a property is treated as an evacuee property. A custodian being of opinion that a particular property is an evacuee property, is required to hold inquiry into the matter to declare the property as evacuee property by issuing the necessary notification declaring such property to be the evacuee property, and the same shall be notified in the official gazette. Admittedly, there is no such declaration under Section 7 of the Act with regard to the suit property.
Admittedly, there is no such declaration under Section 7 of the Act with regard to the suit property. Therefore, it could not have been treated as an evacuee property. There was a manifest mis- interpretation of provisions of Sections 2, 7 and 8 of the Act. As is evident from the above discussion on the position of law, the said provisions would be applicable only after the decision of the custodian. In other words, the procedure and publication of notification under Section 7 of the Act declaring the property to be an evacuee property has to precede and is a condition precedent. 10.2 In Dr. Rajendra Prakash Sharma (supra), it was held:- “From a conjoint reading of Sections 7 and 8, it is clear that the making of a declaration after inquiry under Section 7 that the property is 'evacuee property” is a sine qua non for giving the Custodian dominion over the property. If no proceeding is taken under Section 7, there can be no vesting of the property in the Custodian. (See observations in Fazalbhoy v. Official Trustee of Maharashtra, (1979) 2 SCR 699 at p. 712: ( AIR 1979 SC 687 ).” (Para 19) 11. For the aforesaid reasons, the bar of jurisdiction under section 46 of the Act is not attracted and the suit for the prayers made therein was maintainable before the civil court. The impugned judgment and order dated 30th December 1992 passed by learned District Judge, Amreli in Regular Civil Appeal No.63 of 1985 is not sustainable in law. The same is hereby set aside. The appeal stands allowed.