Inayat Ullah vs The Custodian, Evacuee Property

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 144 of 1956

Decision Date: 30 October 1957

Coram: Syed Jaffer Imam, Natwarlal H. Bhagwati, P.B. Gajendragadkar

In the case Inayat Ullah versus The Custodian, Evacuee Property, decided on 30 October 1957, the Supreme Court of India, bench comprising Syed Jaffer Imam, Natwarlal H. Bhagwati and P.B. Gajendragadkar, considered a petition filed by Inayat Ullah against the Custodian of Evacuee Property. The appellant and his brother had inherited certain immovable properties from their father. After the brother’s death, the appellant claimed to be the sole heir. The respondent, invoking section 7 of the Administration of Evacuee Property Act, 1950, issued a notice concerning the deceased brother’s share on the ground that the brother left a widow and a son who had migrated to Pakistan. The appellant sought to know the material on which the notice was founded and consequently applied to the Custodian for copies of those materials. The Custodian rejected the application. The appellant then approached the High Court under article 226 of the Constitution; that application was also dismissed. The appellant obtained special leave to appeal to this Court, arguing that the notice had been issued without jurisdiction because the Custodian possessed no material justifying the notice and that the denial of the copy request was improper. The Court held that it is the Custodian’s responsibility to form an opinion based on the material and information in his possession, and that a court does not review whether the Custodian’s information is sufficient to justify a notice under section 7. The Court further affirmed that the denial of the copy request was correct. The Court explained that the procedure for declaring property as evacuee under the Act involves two stages: first the issuance of a notice to interested persons, and second the inquiry under section 7. Proceedings commence only after the notice is issued. A party to the proceedings is entitled to obtain copies of the record and evidence from the stage of issuing the notice until the inquiry concludes, but not to materials predating the notice. The judgment arose from Civil Appeal No. 144 of 1956, an appeal by special leave from the order dated 9 July 1955 of the former Madhya Bharat High Court in Civil Miscellaneous Case No. 27 of 1954. Counsel for the appellant and counsel for the respondent appeared for the respective sides.

The appeal was filed by special leave against the order of the Madhya Bharat High Court dated 9 July 1955, which had dismissed an application made by the appellant under article 226 of the Constitution. The appellant asserted that his father, Habibullah, had died more than twenty years earlier, leaving only the appellant and his brother Bashirullah as his heirs. Habibullah’s death left immovable property situated in the city of Indore. Bashirullah, who remained unmarried, became mentally ill in 1942 and died in 1950 without leaving any issue. Consequently, the appellant claimed to have become the sole owner of all property bequeathed by his father. On 21 September 1954, the respondent attempted to serve a notice on the appellant under section 7 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950). The appellant contended that the notice was never actually served upon him and that it had not been affixed to the concerned property, rendering the service improper and the notice illegal. Seeking clarification of the material on which the notice was based, the appellant applied on 1 October 1954 for copies of the respondent’s records and evidence, alleging that the respondent’s opinion was that Bashirullah’s death had produced a son, Iqbal, and a wife, Kamrunnissa, who had migrated to Pakistan, thereby causing the estate inherited by them to become evacuee property. The respondent rejected the application for copies. The appellant then instituted a petition under article 226 before the Madhya Bharat High Court, which dismissed the petition. The High Court identified two questions for determination: first, whether the notice dated 21 September 1954 issued under section 7 of the Act was illegal; and second, whether the respondent’s refusal to provide the appellant with copies of the record and evidence existing prior to the issuance of the notice was unlawful. The High Court answered both questions against the appellant, holding that the notice had been validly issued and that the refusal to disclose the pre‑notice material was not unlawful.

The High Court observed that the notice of 21 September 1954 had been issued in accordance with section 7 of the Act and the rules framed under section 56 of the Act. Section 7 requires that a notice be served on persons interested in the prescribed manner, and Rule 6 of the Rules mandates that the notice be in Form I when served on interested parties concerning property proposed to be declared evacuee property. The Court compared the notice in the present case with Form I and found no material difference in the essential particulars. The appellant had argued that the notice failed to state the grounds for proposing the property as evacuee property and for declaring Iqbal and Kamrunnissa evacuees. The Court noted that this contention lacked merit because the notice expressly contained a heading titled “Grounds” stating that Iqbal and Kamrunnissa migrated to Pakistan after 1 March 1947 due to the creation of the Dominions, and it clearly identified the property in question. Accordingly, the Court concluded that the notice had not been shown to be illegal by any breach of the Act or the Rules, and therefore the respondent’s issuance of the notice was deemed lawful.

It was held that the allegation that the notice failed to state the grounds for proposing the property as evacuee property was without basis, because the notice expressly contained a heading called “Grounds” under which it declared that Iqbal and Kamrunnissa had migrated to Pakistan after 1 March 1947 due to the creation of the Dominions. The document also set out the description of the property in a manner that was clear enough to identify the estate that was intended to be declared evacuee property. No reliable evidence was produced to support the appellant’s claim that the notice had not been served in the proper manner, and therefore the Court concluded that the notice could not be shown to be illegal or to contravene any provision of the Act or the Rules made thereunder. The appellant further argued that the respondent possessed no material that justified the issuance of the notice, contending that the notice had been issued without jurisdiction. Section 7 of the Act was cited, which authorises the Custodian, when he is of the opinion that property falls within the definition of evacuee property, to cause a notice to be given in the prescribed form to interested persons, to hold an enquiry as the circumstances permit, and finally to pass an order declaring the property evacuee. The responsibility for forming that opinion lies with the Custodian, based on the material and information that are before him. The notice issued by the respondent was in Form I of the Rules made under the Act and it clearly stated that credible information in the respondent’s possession identified Iqbal and Kamrunnissa as evacuees and that the property described therein was therefore evacuee property. It was therefore for the respondent, on the basis of the information he held, to decide whether to issue a notice under Section 7. The Court emphasized that it is not the function of this Court or any other Court to evaluate whether the respondent’s information was sufficient to justify the notice, and that the appellant’s contention on this point could not be sustained on any valid ground. The appellant also contended that when the respondent’s bona fides were challenged before the High Court, that Court should have ordered the production of the record to examine for itself whether there was any justification for the notice. The Court rejected that submission, observing that the record contained no material that would substantiate an accusation of malafides on the part of the respondent. The respondent was at liberty to accept or reject the information in his possession, and the mere issuance of a notice does not, by itself, render the named persons evacuees or the property evacuee property. Such a determination can only be made after the notice has been served and an enquiry, as permitted by the circumstances, has been conducted, at which point an order may be passed declaring the property to be evacuee property.

The Court noted that the matter related to a person who was classified as an evacuee under the definition contained in the Act. It held that it was unnecessary for the High Court to summon the record and examine it in order to determine whether the respondent was justified in issuing the notice. The next issue for consideration was whether the appellant’s application for copies of the material had been wrongly rejected. On behalf of the appellant it was submitted that the application should have been allowed because section 7 of the Act envisions a single proceeding that runs from its commencement through to its conclusion, and that this proceeding includes the stage before a notice is issued. The appellant argued that the whole process, which culminates in a declaration that any property is evacuee property, is a judicial proceeding. Since the appellant was a party to the proceeding under section 7, the Court reasoned that he was therefore entitled to obtain copies of the record, including the evidence that formed the substance of the proceeding. The appellant relied upon section 49 of the Act, which declares that all records prepared or registers maintained under the Act are deemed public documents within the meaning of the Indian Evidence Act and are presumed genuine until the contrary is proved. Reference was also made to section 45 of the Act, which provides that, for the purpose of holding an enquiry under the Act, the Custodian possesses the same powers as a civil court under the Code of Civil Procedure when trying a suit. Those powers include, in respect of (a) enforcing the attendance of any person and examining him on oath, (b) compelling the discovery and production of documents, and (c) any prescribed matter. The enquiry conducted by the Custodian is deemed a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code, and the Custodian is deemed a court within the meaning of sections 480 and 482 of the Code of Criminal Procedure.

The Court further observed that there is little doubt that while the Custodian is conducting an enquiry under section 7, he is acting in a judicial capacity. Accordingly, under Rule 35 of the Rules, any party to such an enquiry is entitled to copies of every application, objection, petition, affidavit, or statement made by a party or a witness, as well as any other document. The party is also entitled to copies of the final original order issued by the Custodian, or of any order passed on appeal, revision or review. However, the Court distinguished this situation from the material that was in the Custodian’s possession at the time he formed his opinion and issued the notice under section 7. At that stage, the Custodian was not yet conducting an enquiry and therefore was not acting in a judicial capacity. The Court warned that it is a misunderstanding of the entire scheme of the Act to assume that the enquiry under section 7 and the issuance of a notice prior to that enquiry constitute a single, continuous proceeding.

The Court noted that the holding of the enquiry under section 7 of the Act constituted a single proceeding. It explained that when the Custodian issued a notice under section 7, he possessed only such credible information that, in his judgment, justified the issuance of the notice and the subsequent enquiry before he could make a declaration that the property was evacuee property. The Court observed that the information on which the notice was based might, after the enquiry is completed, prove to be wholly inadequate for the required declaration. Accordingly, the Court identified two distinct stages in the process by which any property may be declared evacuee property under the Act. The first stage is the issuance of the notice to interested persons; the second stage is the enquiry conducted under section 7. The Court held that the proceedings began only after the notice had been issued and did not commence prior to that issuance. At the second stage, the Court stated that any party to the proceedings is entitled to obtain copies of the record and of the evidence from the point when the notice was issued until the enquiry is concluded, but not to material that existed before the notice was issued. The Court further observed that the appellant would have been well advised to have responded to the notice that was served upon him and to have assisted the respondent in conducting the enquiry. The Court explained that the respondent was required to consider all material placed before him during the enquiry before deciding to declare the subject property evacuee property. If, after the enquiry, the material was found insufficient to support such a declaration, the appellant possessed a right of appeal against the respondent’s order. The Court concluded that the respondent’s application for copies of material that existed before the notice was correctly rejected, because the respondent was not entitled to those pre‑notice documents. Consequently, the Court held that the appeal failed, dismissed it with costs, and entered an order of appeal dismissed.