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TMI Blog1961 (2) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... rty in that State. Section 2(c) defined an " evacuee " and s. 2(d) evacuee property ". Section 5 laid down that all evacuee property situate in Mysore would vest in-the custodian.. Section 6 provided for a notification by the Custodian in the Mysore Gazette of evacuee property vested in him. Section 8 provided that any person claiming any right to or interest in any property notified under s. 6 as evacuee property or in respect of which a demand requiring a surrender of possession had been made by the Custodian might arefer a claim to the Custodian on the ground that he property was not evacuee property or his interest in the property had not been affected by the provisions of that Act. It was further provided that the Custodian was, to hold a summary inquiry in the prescribed manner into such claims and after taking such evidence as might be produced, pass an order stating the reasons there for) either rejecting the claim :or allowing it wholly or in part. Finally, s. 30 provided for an appeal to the High Court where the original order under s. 8 had been passed by the Custodian, an Additional Custodian or an Authorised Deputy Custodian. This Act remained in force t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s. 8 and to get it declared that it was not evacuee property, under the second Mysore Act there was no vesting in the Custodian and the Custodian had to give a notice in the manner prescribed (if he thought any property to be evacuee property) and after hearing the persons interested to declare the property to be evacuee property; and it was only thereafter that the property vested in him as evacuee property. Further, the second Mysore Act also defined the " Custodian-General " as the Custodian-General of Evacuee Property in India appointed by the Government of India under s. 5 of the Administration of Evacuee Property Ordinance (Central Ordinance No, XXVII of 1049), which had come into force on October 18, 1949. Further there was a change in the forum of appeals and instead of the High Court the appeal lay to the Custodian-General from an order passed under s. 5 of the second -Mysore Act where the original order had been passed by the 'Custodian, Additional Custodian or Authorised Deputy Custodian and in some cases to the District Judge designated in this behalf by the Government under ss. 22 and 23 of the second Mysore Act. In addition, provision was made by s. 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugust 22, 1950, and ordered that further proceedings in these cases should be taken before the Custodian as an original matter and be was directed to dispose of the cases afresh in the light of the evidence already recorded and such other evidence as might be produced before him by the two respondents. When the matter thus came back to the Custodian he ordered the Deputy Custodian on April 7, 1952, to record the evidence and then submit the record to him for final disposal. Eventually, the matter came before the Custodian for final disposal on December 2, 1952. He held that the two respondents were evacuees and their properties were evacuee properties. This was followed by two appeals to the High Court on January 2, 1953. As, however, the respondents felt some doubt whether any appeal lay to the High Court two writ petitions were also filed on September 7, 1953, against the order of the Custodian. The two appeals as well as the two writ petitions were disposed of by the High Court by a common judgment on February 4, 1954. The High Court held that the appeals before it were competent. It further seems to have 'held that the CustodianGeneral had no power under s. 27 of the Act to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to set aside the order of August 22,1950, under s. 27; for if he had no such jurisdiction the High Court may be entitled after holding that the Custodian-General's order of February 11, 1952, was without jurisdiction, to set aside all subsequent proceedings, leaving:the order of August 22, 1950, operative and in full force (assuming for this purpose that the High. Court had jurisdiction in writ proceedings to set aside the order of the Custodian-General whose headquarters were in New Delhi). Now the first Mysore Act had no provision relating to the Custodian-General. It was the second Mysore Act which for the first time brought in the CustodianGeneral and gave him powers of revision under s. 25 with respect to orders passed by the Custodian or the District Judge in. appeal. Then came the Act on April 17, 1950, by which the Custodian- General was given the power to call for the record of any procee in which any District Judge or Custodian had passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and to pass such order in relation thereto as he thought fit. This provision is wider than the provision in the second Mysore Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Mysore Act had been repealed by the Act as from April 17, 1950, and therefore in October, 1960, only the Act held the field. The question then arises whether it was open to the Custodian-General to revise the order dated August 22, 1950, under s. 27 of the Act in February, 1952. Now s. 27 is very wide in terms and gives power to the Custodian-General at any. time either on his own motion or on application made to him in this behalf., to call for the record of any proceeding in which any District Judge or Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any order and to pass such order in relation thereto as he thinks fit. Prima facie, therefore, these wide words give power to the Custodian- General to revise any order passed by the Custodian. It is urged on behalf of then respondents that the Custodian- General could; not revise the order dated August 22, 1950. We are not impressed by this argument. Now the Act was passed in 1950 to set up a central organisation for the custody, management and control, etc., of property declared by law to be evacuee property with the Custodian-General at the head. It is also clear that all sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout jurisdiction. The subsequent proceedings, therefore, which took place after the order of the Custodian-General would also be with jurisdiction and would not be liable to be set aside on a writ of certiorari on the ground that they were without jurisdiction. The High Court, thereforewas in error in holding that the order of the Custodian, General dated February 11, 1952,was without juries diction and therefore all subsequent proceedings taken in pursuance thereof were also without jurisdiction, with the result that the order of August 22, 1950 stood fully operative. This brings us to the next question whether any appeal lay to the High Court against the order of December 2, 1952. There is no,doubt that the proceedings in the present case commenced under the first, Mysore Act with a notification under - is. 6 and claim applications under s. 8. If the original proceeding had finished when the first Mysore Act was in force and the order of December 2, 1952, had been passed during its operation there would undoubtedly have been as appeal to the High Court under s. 30 thereof. But the, first Mysore Act, was repealed by the second Mysore Act in. November, 1949, and the second Mysore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case taking away the right of appeal conferred by the first Mysore Act. We have therefore to see whether it can be said that the right of appeal conferred by the first Mysore Act has been taken away by necessary intendment by the subsequent legislation ; and if so whether it has been completely taken away or has been replaced by another right of appeal, though not to the High Court. Under the first Mysore Act, as we have already pointed out, evacuee property ipso facto vested in the Custodian under s. 5. There. after the Custodian was expected to notify such property under s. 6. On such notification or where the Custodian demanded surrender of possession a person claiming any right to the property was entitled to make an application preferring a claim before the Custodian. That application was dealt by the Custodian in a summary manner and he had 'the power either to reject the application or allow it in whole or in part. An order passed by the Deputy or the Assistant Custodian under s. 8 was appealable to the Custodian and an order passed by the Custodian or Additional Custodian or an authorized Deputy Custodian was appealable to the High Court. The contention on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an inquiry after which the Custodian decides to declare the property evacuee if he finds it to be so under the law. Further under the second Mysore Act when an order was passed declaring property to be evacuee property under a. 5 it was open to the person aggrieved by such order to file an appeal to the Custodian where the original order had been passed by the Deputy Custodian or Assistant Custodian and to the Custodian-General where the original order had been passed by the Custodian, Additional Custodian or Authorised Deputy Custodian. There was also in certain cases appeal to the District Judge; but we are not concerned with that in the present appeals. The position under the Act was also the same as under the second Mysore Act and the right of appeal was also similar. It is thus true that there has been a change in the procedure by which evacuee property is finally declared to be evacuee property. Under the first Mysore Act the property became evacuee property and the person had to go and file a claim and establish that it was not. That claim was investigated and after investigation the Custodian had to come to a final conclusion whether the property was evacuee or not. ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and the subsequent remedies following on an order under s. 8 are in substance the same as the investigation provided under s. 5 of the second Mysore. Act ores. 7 of the Act and the subsequent remedies following on an order thereon. We cannot, therefore, agree with the High Court that there is nothing in the second Mysore. Act to correspond to s. 8 of the first Mysore Act and therefore these proceedings which began under the first Mysore Act must continue to be governed by that Act in spite of its repeal by the second Mysore Act. As we have pointed out above the proceedings under s. 8 of the first Mysore Act are in substance equal to proceedings under s. 5 of the second Mysore Act and therefore proceedings commenced under the first Mysore Act must in view of a. 53(2) of the second Mysore Act, be deemed to be proceedings under s. 5 of the latter Act. Once that conclusion is reached and it seems to us that it is inevitable-it follows that an order made in a proceeding commenced under s. 8 of the first Mysore Act must be deemed to be an order made under s. 5(1) of the second Mysore Act or under s. 7(1) of; the Act. In this connection it is relevant to point out that; it could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a substantive right and was governed by the law prevailing at the time of the commencement of the suit and comprised all successive rights of appeal from court to court which really constituted one proceeding but added that such right could be taken away expressly or by necessary intendment. In the present cases we are of opinion that once proceedings under s. 8(1) of the first Mysore Act are held to be similar to proceedings under s. 5(1) of the second Mysore Act or s. 7(1) of the Act, it must necessarily follow that the legislature intended this all subsequent proceedings in the nature of appeal after the first Mysore Act came to an end, must being the forum provided by the subsequent legislation We are therefore of opinion that the High Court was in error in holding that appeals to it lay from the order of December 2, 1952. The result of the view we have taken is that the High Court was not justified in looking into the order of December 2, 1952, as an appellate court,, though I would be justified in scrutinizing that order as if it was brought before it under Art. 226 of the Constitutional for issue of a writ of certiorari. The limit of th jurisdiction of the High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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