JUDGMENT S.N. Singh, J.
1. This petition under Article 226 of the Constitution is directed against an order of the Assistant Custodian General, U. P. dated 7-11-1963 with the prayer that the said order Annexure '6' to the writ petition be quashed.
2. Brief facts giving rise to the present petition are that one Tafazzul Hussain executed a mortgage on 15th December 1947, in respect of house No. 474 situate in mohalla Keraiganj Rajvan Bazar, Meerut City in favour of the petitioner for a consideration of Rs. 1,000. This Tafazzul Husain migrated to Pakistan in July 1949. The petitioner thereafter moved an application on 17th December 1949 under Section 38 of Ordinance No. 27 of 1949 before the Deputy Custodian, Evacuee Property, Meerut, for the confirmation of the aforesaid mortgage. The Deputy Custodian by his order dated 5th March 1951 allowed the application of the petitioner and confirmed the mortgage deed.
3. It appears that later on it was brought to the notice of the Evacuee Department that Tafazzul Husain had no title in the house mortgaged which really belonged to Smt. Mahboobul Nissa, wife of Tafazzul Hussain. The Assistant Custodian, Meerut sent a notice dated 4th October, 1962, to the petitioner to show cause why necessary action to set aside the confirmation dated 5th March, 1951, be not taken. The Petitioner filed an objection to the aforesaid notice and contended that the order dated 5th March, 1951, had become final and could not be legally set aside. The petitioner thereafter was directed to appear before the Opposite Party No. 1, the Assistant Custodian General, Evacuee Property, U. P., Lucknow. Before the Opposite Party No. 1 evidence was led on behalf of the petitioner as well as the Department. The case of the Department was that although the house in dispute originally belonged to Tafazzul Hussain, Tafazzul Husain had sold the house to Smt. Mahboobul Nisa by registered sale deed dated 20th March, 1947, as such she had become the owner of the house and in proof thereof the Department produced a registered sale deed of the same date and it was contended that Tafazzul Husain not being the owner of the house in dispute the mortgage dated 15th. December, 1947, executed by him in favour of the petitioner Smt. Roori Devi was null and void and was wrongly confirmed by the order dated 5th March, 1951. The petitioner's case was that the sale deed dated 20th March, 1947, was a fictitious document and was never given effect to and the confirmation order dated 5th March, 1951, having become final could not be reopened.
4. On a consideration of the case of the parties and the evidence on the record the Opposite Party No. 1 came to the conclusion that the property in dispute belonged to Smt. Mahboobul Nisa which became evacuee property after her migration to Pakistan in February 1948 and the same vested in the Custodian. It was further held that Tafazzul Husain had no title to the property on the date of the mortgage and the revisional power under Section 27 of the Administration of Evacuee Property Act, Act No. 31 of 1950 being very wide it was competent to the Opposite Party No. 1 to set aside the order of confirmation even though that order was an appealable one. Accordingly the Opposite Party No. 1 exercising its power of revision under Section 27 of Act No. 31 of 1950 by his Order dated 7th November, 1963 (Annexure '6' on the record) set aside the order dated 5th March, 1951, passed by the Deputy Custodian, Meerut confirming the mortgage and directed the Assistant Custodian to recover compensation from the petitioner for use and occupation of the house in dispute and then to dispose of the property in accordance with law.
5. Aggrieved with the above order the petitioner has come to this Court, and has prayed for the issuance of a writ of certiorari for quashing the above order, Sri Bashir Ahmad learned Counsel for the petitioner raised the following points:
(1) No action having been taken by the Custodian under U. P. Ordinance No. 1 of 1949 or Ordinance No. 12 of 1949 the property in dispute alleged to belong to Smt. Mahboobul Nisa could not vest in the Custodian and it could not be held to be an evacuee property by the order of the Assistant Custodian General, Opposite Party No. 1.
(2) The property in dispute could not be declared as evacuee property after 7th May, 1954.
(3) The order dated 5th March, 1951, confirming the mortgage transaction in favour of the petitioner mortgagee became final before the passing of Act 31 of 1950; hence Opposite Party No. 1 had no jurisdiction to take any, action under Section 27 of Act No. 81 of 1950.
(4) That there is no finding that Smt. Mahboobul Nisa was an evacuee and in absence of such a finding the property in dispute could not be held to be an evacuee property.
(5) Sri A. P. Agarwal, Assistant Custodian General had no jurisdiction to take suo motu action under Section 27 of Act No. 31 of 1950.
6. In order to appreciate the contentions of the learned Counsel for the petitioner it is necessary to consider the provisions of the relevant Ordinances and the Act. U. P. Ordinance No. 1 of 1949 was promulgated on 24th June, 1949:
Section 2(c) "evacuee" means any person,
(i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has on or after the 1st day of March, 1947, left any place in the United Provinces for any place outside the territories now forming part of India, or
(ii) 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 Provinces or whose property in the Province has ceased to be occupied, supervised or managed by any person, or is being occupied, supervised or managed by an unauthorised person, or X X X X X
(d) "evacuee property" means any property in which an evacuee has any right or interest.
(e) "property" includes any property, right or interest, but does not include a mere right to sue or a cash deposit in a bank.
Section 5. Vesting of evacuee property in the Custodian.
(1) Subject to the provisions of this Ordinance, all evacuee property situated in the United Provinces shall vest in the Custodian.
Section 6. Notification of evacuee property.
The Custodian may from time to time, notify by publication in the official Gazette or in such other manner as may be prescribed, evacuee properties which have vested in him under this Ordinance.
(2) Where after the vesting of any evacuee property in the Custodian any person is in possession of any such property, he shall be deemed to be holding it on behalf of the Custodian and shall on being so required, surrender possession thereof to the Custodian or any person appointed by him in this behalf. Under this Ordinance 'property of an evacuee' as defined in Section 2(c) automatically vests in the Custodian under Section 5. Thereafter any person in possession of the said property holds it only on behalf of the Custodian, who can take necessary steps to take possession from him.
The Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance No. 12 of 1949.
(5) This Ordinance was extended to the United Provinces by the Administration of Evacuee Property (Chief Commissioners' Provinces) Amendment Ordinance, No. 20 of 1949. It came into force on August 23, 1949.
Section 5. Vesting of evacuee property in the Custodian:--
(1) Subject to the provisions of this Ordinance, all evacuee properties situate in a Province shall vest in the Custodian of that Province.
(2) Where immediately before the commencement of this Ordinance any evacuee property in a Province had vested in any person exercising the powers of a Custodian under any corresponding law in force in that Province immediately before such commencement, that evacuee property shall, on the commencement of this Ordinance, be deemed to have' vested in the Custodian appointed for the Province under this Ordinance.
7. Sections 7 and 8 of this Ordinance correspond to Sections 7 and 8 of the U. P. Ordinance No. 1 of 1949; the former confers power on the Custodian to take possession of any evacuee property vested in him and the latter provides for filing of claims by interested persons. Under this Ordinance the evacuee property which automatically vested in the Custodian was deemed to have vested in the custodian for the Province concerned. Central Ordinance No. 27 of 1949.
(6) This Ordinance came into force on October 18, 1949.
Section 55.
(1) The Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949), as in force in the Chief Commissioners' Provinces and the Province of Madras and the United Provinces is hereby repealed.
(2) x x x x x (3) Notwithstanding the repeal by this Ordinance of the Administration of Evacuee Property Ordinance, 1949, or of any corresponding law, anything done or any action taken in the exercise of any power conferred by that Ordinance or law shall be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty incurred or proceeding commenced under that Ordinance or law shall be deemed to be a penalty incurred or proceeding commenced under this Ordinance as if this Ordinance were in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced.
Section 8.
(1) X X X X X (2) Where immediately before the commencement of this Ordinance any evacuee property in a Province had vested in any person exercising the powers of a Custodian under any law repealed hereby, the evacuee property shall, on the commencement of this Ordinance, be deemed to have vested in the Custodian appointed or deemed to have been appointed for the Province under this Ordinance, and shall continue to so vest.
8. It is clear from the said provisions that the Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance, No. 12 of 1949, was repealed and under "Section 8 (2) the evacuee property, automatically vested under U. P. Ordinance No. 1 of 1949 and thereafter deemed to have been vested in the Custodian under the Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance, No. 12 of 1949, as amended by the Administration of Evacuee Property (Chief Commissioners' Provinces) Amendment Ordinance, 1949, Ordinance No. 20 of 1949, was deemed to have been vested in the Custodian appointed under this Ordinance. Under the saving clause thing done or action taken under the previous Ordinance was deemed to have been taken or done under this Ordinance Central Act 31 of 1950.
Section 58(1) The Administration of Evacuee Property Ordinance, 1949 .....
are hereby repealed.
operation of that Ordinance, Regulation or corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance, Regulation or corresponding law, shall be deemed to have been done or taken in the exercise of the power conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken.
9. Section 8(2) of this Act corresponds to Section 8 (2) of the Central Ordinance No. 27 of 1949. This Act repeals the Ordinance and practically enacts its provisions.
Under this Act also the automatic vesting of the evacuee property in the Custodian under the U. P. Ordinance No. 1 of 1949 deemed to have continued to vest in the Custodian appointed under the Central Ordinance No. 27 of 1949 is continued, by fiction, under this Act.
10. A Division Bench of this Court in Azizunnissa v. Asstt. Custodian, AIR 1957 All 561 held that there was no valid vesting under Ordinance XII of 1949 or even under Ordinance XX of 1949 for lack of legislative competence and, that, therefore, the deeming clause in Ordinance XXVII of 1949 or Act XXXI of 1950 would not continue the vesting. This defect was cured by Act I of 1960 retrospectively validating the vesting under the earlier laws. After the passing of this Act this aspect was considered by the Supreme Court in Azimunnissa v. Dy. Custodian, Evacuee Properties, AIR 1961 SC 365 wherein it was held that "the effect of Section 8(2-A) is that what purported to have vested under Section 8(2) of (the Administration of Evacuee Property Act) Ordinance XXVII of 1949 and which is to be deemed to be vested under Section 8 of the Act which repealed that Ordinance, notwithstanding any invalidity in the original vesting or any decree or order of the Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested: (2) removes all defects or invalidity in the vesting or fictional vesting under Section 8 (2) of Ordinance XXVII of 1949 or Section 8(2) of the Act which repealed the Ordinance; (3) makes the decrees and judgments to the contrary of any Court in regard to the vesting ineffective; (4) makes the property evacuee property by its deeming effect; and (5) validates all orders passed by the Custodian in regard to the property."
11. It was further held in this case that "the word "purport" has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable. Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so. This means that at the time when the Act purported to vest the property in dispute in the Custodian even though the power was not exercisable, Section 8(2-A) by giving a retrospective effect to Section 8(2) of the Act makes the vesting as if it was vesting under Section 8(2) of the Act and therefore the attack on the ground of invalidity cannot be sustained."
12. In the present case on the finding of fact recorded by the Opposite Party No. 1 it is clear that Smt. Mahboobul Nisa who owned the property in dispute migrated to Pakistan in February, 1948. Therefore, she was an evacuee within the meaning of the U. P. Ordinance No. 1 of 1949 and her interest in the property in dispute automatically vested under the Ordinance in the Custodian. This automatic vesting was con-tinned by Amendment Ordinance No. 20 of 1949 and Ordinance No. 27 of 1949 and finally by Act 31 of 1950. The defect that was pointed out by this Court in Azizun Nisa's case, AIR 1957 AH 561 was cured by Act 1 of 1960 retrospectively validating the vesting under the earlier laws with the result that the property in dispute would be deemed to have vested in the Custodian even under Act 31 of 1950.
13. It is contended by Sri Bashir Ahmad learned counsel for the petitioner that in the instant case no action was taken or overt act done by the Custodian in respect of the property in dispute under U. P. Ordinance No. 1 of 1949 or Ordinance No. 12 of 1949 or Ordinance No. 27 of 1949 or Act 31 of 1950 as such the property in dispute cannot be held to have vested in the Custodian. Learned counsel referred to Sections 5 and 6 of Ordinance 1 of 1949 and submitted that these two sections should be read together and unless the Custodian notified by publication about the vesting of the property or did some overt act in respect of that property the property continued to be owned and possessed by the original owner. In support of this contention of his he placed reliance on a Division Bench case of Madhya Pradesh High Court in Rubab Bai v. Asstt. Custodian of Evacuee Property, AIR 1962 Madh Pra 38 and on a Single Judge decision of this Court in Smt. Israr Fatima v. Custodian Evacuee Property, U. P., AIR 1968 All 232.
14. In AIR 1962 Madh Pra 38 certain muslims migrated to Pakistan, no action, whatever had been taken either under the Administration of Evacuee Property Act 1950, or before its promulgation either under Central Ordinance No. 27 of 1949 or Madhya Bharat Ordinance No. 56 of 1949 or under any prior State Ordinance or enactment, until 1-4-1955.
Held that in spite of the provisions of automatic vesting in the Madhya Bharat Ordinance, in the absence of any action taken, the property did not vest in the Custodian under the Ordinance No. 27 of 1949."
15. It is difficult to accept this view of the Madhya Pradesh High Court in face of the clear provision of Section 5 of Ordinance No. 1 of 1949 which provides for automatic vesting and also in view of the Supreme Court decision in AIR 1961 SC 365. Once it is held that there is automatic vesting it is contradiction in terms to say that there will be no vesting unless certain conditions are fulfilled. Section 6 of Ordinance No. 1 of 1949 merely speaks of the procedure to be followed after vesting. It is something subsequent to vesting. Therefore, it cannot be said that unless there is notification there is no vesting. In our opinion as soon as there is a determination of the fact that a certain person in terms of Section 2 (c) of the Ordinance is an evacuee and has migrated to Pakistan before the coming into force of Ordinance No. 1 of 1949 his property will be deemed to have vested in the Custodian by virtue of Section 5 of Ordinance 1 of 1949. The Division Bench view of the Madhya Pradesh High Court referred to above was not followed by the same High Court in a later Division Bench decision in Union of India v. Ismail Abdul Shukoor, AIR 1968 Madh Pra 159. Two Muslim partners of a Firm in India were doing business at Karachi since 1946 and they continued to remain there even after the partition of India, they were treated as evacuees and the interest held by them in the partnership property in India was held to be evacuee property within the meaning of these terms as defined in Section 3 of the State Ordinance. It was held that such a property automatically vested in the Custodian and the vesting was not dependent on any notification being issued by the Custodian, This latter Division Bench case rightly held that the earlier Division Bench case was not binding on them in view of the decision of the Supreme Court in AIR 1961 SC 365.
16. In AIR 1968 All 232 it was held, that "the word 'may' used in Sub-section (1) of Section 6 of Ordinance I of 1949 has the force of 'shall' and does not make it optional for the Custodian whether to notify by publication the property that has vested in him or not. Sub-section (1) of Section 5, no doubt vests the evacuee property in the Custodian automatically without its being notified, but it must be determined as to what that property actually is and such property cannot be determined without a notification being made and objections being invited from interested persons." This authority also does not help the petitioner. It does not say that if there is no notification the property will not vest in the Custodian.
17. Sri Bashir Ahmad also argued that Section 55(3) of the Central Ordinance No. 27 of 1949 did not save the previous operation of Act No. 12 of 1949 and Act I of 1949, but saved only anything done or any action taken under the Ordinance and since admittedly no overt act was done and no action was taken by the Custodian under the first two Ordinances even if the property of Smt. Mahboobul Nisa vested in the Custodian under U. P. Ordinance No. 1 of 1949 or Ordinance No. 12 of 1949 which stood repealed by Section 55 (1) and (2) of the Central Ordinance No. 27 of 1949 it was not saved by Section 55 (3) of the Central Ordinance No. 27 of 1949. According to the learned counsel Section 8 (2) of the Ordinance No. 27 of 1949 was subject to the provision under Section 55 (3) of the said Ordinance. This argument cannot be accepted. Section 8 (2) of the Central Ordinance and Section-55 (3) of the said Ordinance contemplated two different situations. Section 8 (2) saved the vesting of evacuee property in the Custodian under any law repealed by the Central Ordinance No. 27 of 1949 whereas Section 55 (3) saved anything done or any action taken in the exercise of any power conferred by Ordinance or law which stood repealed by the Central Ordinance No. 27 of 1949. The two provisions are complementary to one another. The provision under Section 8 (2) cannot be regarded to be subject to the provision under Section 55 (3).
18. In view of the above discussion the first contention raised fails.
19. Re: 2 -- It was next contended that the property in dispute could not be declared as evacuee property after 7th May, 1954. There is no question of any declaration in the instant case. What has been found by the Opposite Party No. 1 is that the property in dispute belonged to Smt. Mahboobul Nisa who migrated to Pakistan in February, 1948 as such the property automatically vested in the Custodian. He has given no declaration as contemplated by Section 7(1) of Act 31 of 1950. He has merely determined the fact that Smt. Mahboobul Nisa was such an evacuee whose property automatically vested in the Custodian. Section 7A by virtue of which no property can be declared to be evacuee property on or after the 7th of May, 1954, applies to a case which is covered by Section 7 of the said Act and Section 7 only applies to properties other than those which have been vested automatically in the Custodian under Ordinance No. 1 of 1949.
Such a vesting cannot be re-opened under the Central Ordinance or the Central Act for it has already vested thereunder by a fiction, vide Haji Esmail Noor Mohammad and Co. v. Competent Officer, AIR 1967 SC 1244 at p. 1249 para 7. The determination of the fact that certain property automatically vested under Ordinance No. 1 of 1949 is not barred by Section 7A of Act 31 of 1950.
20. Re: 3 -- Sri Bashir Ahmad further argued that the order of confirmation dated 5th March, 1951, was appealable and no appeal having been filed the order of confirmation became final and could not be reviewed. He placed reliance on a Supreme Court decision in Defedar Niranjan Singh v. Custodian, Evacuee Property, AIR 1961 SC 1425. Section 27 of Act 31 of 1950 confers very wide powers of revision on the Custodian General. This power in our view can be exercised even in those cases in which appeal lay but was not availed of. The mere fact that the order was not appealed against can be no ground for not exercising the power of revision under Section 27 of the said Act. This plea was also raised before the Assistant Custodian General and was rightly repelled. The decision relied on by the learned counsel is distinguishable on facts. That decision interpreted certain orders made by the Custodian under the Patiala Evacuee Administration of Property Ordinance 9 of 2004 which was held not to be continued under the repealing Pepsu Ordinance 13 of 2006. In that case it was held that the chain of fictions created by the successive Ordinances was broken by the Pepsu Ordinance 13 of 2006 under which no order made by Custodian under Ordinance 9 of 2004 was deemed to continue under the Pepsu Ordinance. In the present case it has been held that the chain of fictions had not been broken. To the facts of the present case the case of Bishambar Nath Kohli v. State of Uttar Pradesh, AIR 1966 SC 573 applies which has interpreted the U. P. Act and Ordinance vide head-note 'b' which reads as follows :--
"A was in the occupation of the house at Lucknow since 1918 -- After partition of India, A migrated to. Pakistan. On 12-10-1949 the Deputy Custodian of Evacuee Property in exercise of power under Section 6 of U. P. Administration of Evacuee Property Ordinance 1 of 1949 as continued in force by Central Ordinances 12 and 20 of 1949 declared the house as evacuee property. No claim was preferred by any person in pursuance of this notification and management of the property continued with the Custodian of Evacuee Property; the Central Government by a notification, dated 27-5-1965 acquired the house for the central pool. On 7-6-1957 the house was purchased by one R in public auction. On 27-9-1961, State Government applied under Section 27 of Administration of Evacuee Property Act before the Custodian General against the order of Deputy Custodian notifying the house as evacuee property. It was submitted that the State Government was not aware of the notification and of the subsequent proceedings and of the sale to R. The Custodian. General set aside the order of the Deputy Custodian. On appeal by special leave to Supreme Court by heirs and legal representatives of R:
Held that the Custodian General had the power to entertain the revision application filed by the State of Uttar Pradesh.
By Ordinance 27 of 1949 a proceeding commenced under Ordinance 12 of 1949 or anything done or action taken in the exercise of the powers conferred under that Ordinance must be deemed to be a proceeding commenced, thing done and action taken under the former Ordinance as if that Ordinance was in force on the date on which the proceeding was commenced, thing was done or action was taken. Under Section 58 (3) anything done or action taken in exercise of the power conferred under Ordinance 27 of 1949 is similarly to be deemed to have been done or taken in exercise of the power conferred by or under Act 31 of 1950, as if the Act were in force on the day on which such thing was done or action, was taken.
By this chain of fictions, things done and actions taken under Ordinance 12 of 1949 are to be deemed to have been done or taken in exercise of the powers conferred under Act 31 of 1950, as if that Act were in force on the day on which such thing was done or action taken. The order passed by the Deputy Custodian under Section 6 of Ordinance 12 of 1949 was, therefore, for the purpose of this proceeding, to be deemed an order made in exercise of the power conferred by Act 31 of 1950 as if that Act were in force on the day on which the order was passed."
This decision has also doubted the correctness of AIR 1961 SC -1425.
21. It was also contended by the learned counsel that the order of confirmation in the instant case had been passed by the Deputy Custodian General and not by the Custodian as such it was not amenable to revision under Section 27 of Act 31 of 1950. Reliance was placed on a, decision of the Supreme Court in Md. Sharfuddin v. R. P.
Singh, AIR 1961 SC 1312. This contention has no force in view of Section 2(c) of the Administration, of Evacuee Property Act which reads as follows: "Custodian" means the Custodian for the State, and includes any Additional, Deputy or Assistant Custodian of Evacuee property in that State. The case of AIR 1961 SC 1312 (supra) has absolutely no application to the facts of this case. This case has interpreted Section 24 along with Section 2(c) of Act 31 of 1950 as is clear from the head-note which reads as follows:
"Though for the purpose of convenience of management or judicial determination of dispute the Act provides different categories of Custodians, all of them fall within the definition of "Custodian" in the Act. The Act further provides a hierarchy of tribunals under the superintendence and control of the Custodian General, It would be anomalous were it to be held that a Custodian could prefer an , appeal against the order of a Custodian. The act does not contemplate one officer preferring appeals against the orders of another officer.
In the premises the words "any person aggrieved" in Section 24 of the Act can only mean a person whose properties have been declared to be evacuee properties by the Custodian, or a person who moved the Custodian to get the properties so declared or any other such aggrieved person. The words "any person aggrieved" in the context of the Act cannot include any Custodian as defined in the Act.
22. Re: 4 -- The argument of Sri Bashir Ahmad that there is no finding that Smt. Mahboobul Nisa was an evacuee and in the absence of such a finding the property in dispute could not be held to be evacuee property has no force. The Assistant Custodian General has clearly found that Smt. Mahboobul Nisa migrated to Pakistan in February 1948 and that the property in question belonged to Smt. Mahboobul Nisa and became evacuee property after her migration to Pakistan. On the findings of fact recorded by the Assistant Custodian General there can be no doubt that Smt. Mahboobul Nisa was an evacuee and the house in dispute vested in the Custodian.
23. Re: 5 -- The last contention of Sri Bashir Ahmad about the jurisdiction of Sri A. P. Agarwal to exercise power under Section 27 also cannot be accepted. No such ground was taken in the grounds of appeal. The question of jurisdiction was not raised before the opposite party No. 1. Whether Sri A. P. Agarwal could exercise jurisdiction under Section 27 of Act 31 of 1950 is dependent on investigation of certain facts. This not being a pure question of law cannot be allowed to be raised for the first time in proceedings under Article 226 of the Constitution.
24. None of the contentions raised by the learned Counsel has any force as such the petition has to be dismissed.
25. In the result this petition fails and is hereby dismissed with costs.