Das, J.
1. This is an application under Article 226 of the Constitution for issue of an appropriate Writ, declaring the proceedings under Ordinance No. XXVII of 1949 as void and not binding upon the petitioner, in respecj of a house in the town of Sambalpur.
2. The short facts leading upto the petition are : Dr. Muhammad Hussian Khan who is a uterine brother of the husband of the petitioner, before leaving for Pakisthan, on 5-3-47 executed a registered deed of gift in favour of his minor son Mohsin Khan represented by his mother guardian Salimunnissa Begum. Salimunnissa Begum on behalf of her minor son, in her turn, sold the house in question to the petitioner by a registered deed of sale for a sum of Rs. 7,500/- on 10-2-49. She thus came in possession of the house standing on Nazul plot no. 1617/2 with an area of 1160 sqr. ft., bearing Municipal holding no. 253 in Ward No. 2 in the town of Sambalpur, through her tenant Sree S. S. Das, District Engineer.
3. The Orissa Administration of Evacuee Property Ordinance, 1949 (Orissa Ordinance No. I of 1949) was promulgated on 18-6-49, which was subsequently repealed by the Administration of Evacuee Property Ordinance, 1949 (Central Ordinance No. XXVII of 1949). The Central Ordinance No. XXVII of 1949 came into force on 24-10-49. Accordingly, it is alleged by the petitioner that on 30-12-49, in accordance with the Central Ordinance, she was served with a notice under Sub-section (4) of Section 8 of the said Ordinance in Form No. 3 to surrender possession of the disputed house since it had vested in the custodian. The petitioner, it is alleged, under protest surrendered the house on 2-1-50.
She filed a petition subsequently questioning the validity of the aforesaid notice and submitted that no notice under Form No. 1 as prescribed in Central Rule 5 (1) had ever been served on her. This notice, she stated, was mandatory under Section 7 (1) of the Central Ordinance. According to her, she addressed a petition on 11-1-50 under Section 38 of the aforesaid Central Ordinance, to the Custodian for confirmation of sale of the house in her favour, and filed it in the office of the Assistant Custodian, Sambalpur.
In that petition, she alleged that there wasneither any notice to her, nor any enquiry, nor adeclaration by the Custodian as provided underSection 7 of the Central Ordinance, and accordingly, the property in question has not legallyvested in the Custodian. On the following day,her husband Mr. Muhammad Hussain Khan adduced evidence on her behalf, and an enquiry washeld by the Assistant Custodian, Sambalpur, whoby his order dated 28-1-50 declared the propertyto be evacuee property which was subsequentlynotified in the official gazette sometime in April,1950. The petitioner carried an appeal to theCustodian, Evacuee Properties, Orissa, against theaforesaid order which stood dismissed.
The Custodian by his order dated 27-12-61 held that it was established beyond any doubt that Dr. Mahammad Hussain Khan of Sambalpur, with his wife Salimunnissa Begum and his son Mahasin Khan is an evacuee, and that he made up his mind to migrate to Pakisthan in or about March, 1947 from which time he began to dispose of his house properties in the town of Sambalpur. The disputed house was the third and the last transfer made by them. The Custodian further held that the transfer in favour of Zaibunnissa Begum was neither in good faith nor for valuable consideration.
With regard to the notice, he held that the petitioner was not entitled to any notice under the Orissa Ordinance No. 1 of 1949, and the property vested automatically in the Custodian by virtue of Section 5 of the said Ordinance. Against this Order, the petitioner in due course, filed a revision petition before the Custodian-General, who, after hearing the petitioner, rejected the said petition by his order dated 16-2-54. The petitioner, thus being aggrieved by the aforesaid order of the Custodian-General presented a petition under Article 226 of the Constitution before this Court on 6-9-54 which was numbered as O. J. C. No 163 of 1954.
That application came up before a Division Bench of this Court consisting of Panigrahi, C. J. and my learned brother, and their Lordships by their order No. 4 dated 30-9-54, allowed the then learned counsel of the petitioner to withdraw the said petition. In O. J. C. No. 163 of 1954, I find that the self-same point of notice was taken in ground Nos. 2 and 3. However, ten months after the disposal of the aforesaid O. J. C. No. 163 of 1954, the present petition was filed on 4-7-55, and a rule was issued by Panigrahi C. J. sitting with Hon'ble Bao, J. on 3-10-53.
4. The only point that was canvassed at the bar was that the very initiation of the proceeding was illegal and invalid inasmuch as the notice in Form No. 1 as contemplated under Rule 5 of the Central Rules for notice under the mandatory provisions of Section 7 (1) of ordinance No. XXVII of 1949 was not given, and thus no notice having been served under Sub-section (1) of section 7 of the Central Ordinance of the petitioner, the whole proceeding is vitiated and ought to be quashed by this Court.
5. Before dealing with the sole contention raised by Mr. Chatterjee, I would like to state that the Orissa Administration of Evacuee Property Ordinance, (Ordinance No. 1 of 1949, hereinafter referred to as 'The Orissa Ordinance') as I have stated earlier, came into force on 18-6-49. Under Section 5 of the said Ordinance, all evacuee properties situated in the Province shall vest in the Custodian subject of course to its provisions. 'Evacuee property' was defined in Section 2 (d) in following terms.
'Evacuee property' means any property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument .....' Then comes Section 6 which makes the provision for notification of the evacuee property thus vested in the Custodian in the gazette or in such other manner as may be prescribed. 'Prescribed' means prescribed by rules made under the Orissa Ordinance (Vide Section 2 (e) ). Section 7 thereafter provides that if any person in possession of any evacuee property refuses or fails on demand to surrender possession. thereof to the custodian or any person duly authorised by him in this behalf, the Custodian may use-such force as is necessary for taking possession of such property. Section 8 however, provides that :
'Any person claiming any right to, or interest, in any property which has been notified under Section 6 as evacuee property or in respect of which a demand requiring surrender of possession has been made by the Custodian may prefer a claim to the Custodian on the ground that,
(a) the property is not evacuee property or
(b) his interest in the property has not been affected by the provisions of this Ordinance'.
Sub-section (2) of Section 8 provides that,
'If any claim under Sub-Section (1) shall be preferred by the application made within thirty days from the date on which the notification was issued or the demand requiring surrender of possession was made by the Custodian..... The Custodian shall hold a summary enquiry in the prescribed manner and take such evidence as may be produced and pass an order either rejecting the application or allowing it wholly or in part Section 25 puts restrictions on transfers by the evacuees subsequent to 18-6-49.
The transfers after 18-6-49. however shall not be effective unless it is confirmed by the Custodial on an application made within two months from the date of registration of the deed of transfer or within two months from the commencement of this Ordinance whichever is later. Now this ordinance was superseded by the Administration of Evacuee Property Ordinance of 1949 (Ordinance No. XXVII of 1949, hereinafter referred to as the 'Central Ordinance'), which came into force on 24-10-49. By Clause (2) of Section 55 of the Central Ordinance,' a provision was made that if imme-diately before the commencement of this Ordinance, there is in force in any Province other than any of the Provinces specified in Sub-section (1) or in any Acceding State any law corresponding to the Administration of Evacuee Property Ordinance, 1949, that law also shall stand repealed
Accordingly, the Orissa Ordinance stood repealed on 24-10-49. With a slight modification, 'Evacuee Property' has been defined under Section 2 (f) of the Central Ordinance. It runs as follows. 'Evacuee Property means any property in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in any other capacity and includes any property ;
(1) Which has been obtained by any person from an evacuee after the 14th day of August, 1947, by any mode of transfer, unless such transfer has been confirmed by the Custodian, or
(2) belonging to any person who, after the commencement of this Ordinance, does any of the acts specified in Clause (e) of Section 2, or in which any person has any right or interest, to the extent of such right or interest..... Thereafter,Section 7 of the Central Ordinance deals with the procedure regarding the notification of the evacuee property, and provides for notice to the persons interested, and for enquiry into the matter as the circumstances of the case permit, before declaring any such property to be evacuee property.
At this stage, it would be pertinent to mention that in exercise of . the powers conferred by Section 53 of the Central Ordinance, the Central Government made the Administration of Evacuee Property Rule (Central Rules 1949) which came into force on 16-12-49. Rule 5 of the said Rules makes a provision with regard to the manner of enquiry under Section 7(1) of the Central ordinance. Mr. Chatterjee based his entire argument on Rule 5(1). I would, therefore quote the said rule hereunder:
5 (1) 'After a survey of any property is made and the Custodian is satisfied that his information and the survey prima facie disclose that the pro-perty or any interest therein is evacuee property, he shall cause a notice to be served, in Form No.1 on the person claiming title to such property or interest and on any other person or persons whom he considers to be Interested in the property.' Form No. 1 under Rule 5(1) is in the following terms:
'Notice
..... ..... ..... ..... ..... ..... ..... ..... ..... 'Whereas there is credible information in possession of the Custodian that you are an evacuee under Clause (iii) of Section 2(d) of the Administration of Evacuee Property Ordinance on account of the grounds mentioned below: And, whereas it is desirable to hear you in person now, therefore, you are hereby called upon to show cause (with 'all material evidence on which you wish to rely) why orders should not be passed declaring you an evacuee and all your property as evacuee property under the provisions of the said Ordi-nance.
The hearing of your case is fixed before the undersigned in Room No. .....on .....19 at .....Grounds: Acquisition of evacuee property by way of allotment in Pakisthan (as an illustration).'
It is apparent from this Form No. 1 that it is intended for the evacuee himself and not for his transferee. Section 6 of the Central Ordinance provides for the vesting of the evacuee property in the Custodian. Mr. Chatterjee for the purposes of his argument, thereafter strongly relied upon Sub-section (4) of Section 8 of the Central Ordinance. The Central Rules under Rule No. 7 make provision of notice to surrender possession underSub-section (4) to Section 8. This notice should be in form No. 3 and shall be signed by an officer not below the rank of an Assistant Custodian. The only other Section that I need refer to is Section 55 of the Central Ordinance.
Sub-section (3) of that section provides that 'notwithstanding the repeal by this Ordinance of the Administration of Evacuee Property Ordinance 1949, or of any corresponding law, anything dona 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.'
6. The Central Ordinance was extended to the District of Sambalpur which is a partially ex-chicled area on 11-11-49.
7. Thus it is abundantly clear that under Section 5 of the Orissa Ordinance any property in which an evacuee has any right or interest shall vest in the custodian. There is no provision in the said Ordinance for any notice to the transferee. Accordingly, the property of the evacuee with the promulgation of the Ordinance vests automatically in the Custodian. The definition of evacuee property in the Orissa Ordinance appears to be wider than the definition in the Central Ordinance. Therefore, the disputed property is an 'evacuee property' within the meaning of the Orissa Ordinance and as such had vested in the Custodian long before the Central Ordinance came into force in the District of Sambalpur. However, a notice under Sub-section (1) of Section 7 of the Central Ordinance was given to the petitioner on 30-12-49. The said notice was in the following terms:
'Whereas, the undermentioned properties have vested in the Custodian under Section 8 of the Administration of Evacuee Property Ordinance No. XXVII of 1949, I hereby demand that the possession of the said property be surrendered by you to me on or before the 6th January, 1950 failing which you will be evicted from the undermentioned premises with such force as may be necessary for the purpose.' The description of the property in full was appended to the notice quoted above. Mr. Chatterjee undoubtedly laid great stress upon the use of Section 8 in the body of the notice while the notice itself is purported to have been issued under Section 7(1) of the Central Ordinance. His main contention, therefore, was that the notice not having been served in Form no. 1 as contemplated under Central R. 5 (1), the whole poreeeding is vitiated.
As I have already stated. Form No. 1 under, R. 5 (1) is Intended for the evacuee himself and not for the, transferee. There being no form for the transferee prescribed, the authorities concerned have substantially complied with the requirements under Section 7 of the Central Ordinance. I am supported in this view of mine by a decision of the Bombay High Court reported in Allaudin Alla-bux v. M.B. Meher, AIR 1952 Bom 213 (A), wherein Tendolkar J., held that Form No. 1 provided by the rules does not cover the case of a transferee from an evacuee who is entitled to notice, nor does it cover the case of a person who claims adversely to the evacuee. There is therefore no form prescribed for notice to such persons, whoare none the less entitled to notice by virtue of the mandatory provisions of Section 7 (1).
8. Mr. Chatterjee strongly relied upon a decision of the Bombay High Court reported in Abdul Majid Haji Mohomed v. P. R. Nayak, AIR 1951 Bom 440 (B). That was a case under the Central Ordinance the constitutionality of which was challenged on the ground that it had violated the fundamental rights guaranteed by our Constitution and that the orders made thereunder were in excess of jurisdiction conferred upon the Custodian and thus violated the fundamental prin- ciples of natural justice.
In that case their Lordships were mainly concerned with the provision under Section 2 (d) (iii) which was necessary for the issue of a notice under Section 7 (1). What was held in that case was that the authorities concerned must first hold that the person is an evacuee within the meaning of the Act and must conform to the two substantive conditions before issuing a notice under Section 7 (1) of the Central Ordinance. Thus that being not a case of transferee, does not help the contention of Mr. Chatterji. Mr. Chatterjee then referred us to a decision reported in Ebrahim Aboobaker v. Tek Chand, AIR 1953 SC 298 (C).
The main question that engaged the attention of their Lordships was whether the heir of an evacuee is an 'evacuee' within the meaning of the Administration of the Evacuee Property Act (1950); the Central Ordinance having by that time been merged in an Act. There, the Supreme Court took into consideration Sections 8 and 40 of the Act and held that Section 40 prohibits transfers inter vivos, but cannot affect devolution by operation of law such as on death. The Estate of a deceased Muhammadan devolves on his heirs in specific shares at the moment of his death, and the devolution is neither suspended by reason of debts due from the deceased, nor is the distribution of the shares inherited postponed till the payment of the debts.
Further, the property vests in the heirs under the Muhammadan Law, unlike the Indian Suc- cession Act without the intervention of an Admi- nistrator. Hence, I do not see how this decision is of any avail to the contention of Mr. Chatterjee. Reliance was also placed upon a decision reported in Khalil Ahmad Khan v. Malta Mehar Nigar Begum, AIR 1954 All 362 (FB) (D). in that case, the question whether or not the jurisdiction of the Civil Court was barred under the Adminis-tration of Evacuee Property Act, 1950, was considered, and it was held that where the Custodian has not given any nolicc as prescribed in Section 7 he has no jurisdiction to determine whether the property in dispute is or is not evacuee property, and in a case of dispute, whether the property has vested in the Custodian, it is the Civil Court which must determine the question as the Act does not give the Custodian the power to determine such a question.
Therefore in such a case Clauses (a) and (d) of Section 46 do net bar the jurisdiction of the Civil Court. Nobody disputes the proposition laid down by the Allahabad Full Bench. But in the present case, the property in dispute having been vested under the Orissa Ordinance and saved by the Central Ordinance, the question does not arise.
9. The learned Government Advocate appearing on behalf of the opposite parties, however, contended that under the Orissa Ordinance, any property belonging to an evacuee under the management of an unauthorised person is an evacuee property and automatically vests in the Custodian. it must be remembered here that the Orissa Ordinance was promulgated in the interest of the evacuees to provide for the better administration of their properties and other ancillary matters.
Section 2 (c) (ii) provides that an evacuee is a person '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.' Section 2 (g) defines 'unauthorised person' which means : 'any person (whether duly empowered in this behalf by the evacuee or otherwise) who after the 15th day of August, 1947, has been occupying, supervising or managing the property of an evacuee without the approval of the Custodian.' Thus, the petitioner being an unauthorised person within the meaning of the Ordinance, the disputed property in her possession belonging to the evacuee, vested under Section 5 of the. said Ordinance automatically after its promulgation.
Section 25 of the Orissa Ordinance does not apply to this case, since it merely restricts the transfers by an evacuee, after 18-6-49. Thus, the simple ground of opposition by the learned Gov-ernment Advocate was that the disputed property having been vested in the custodian under the Orissa Ordinance, the same should be deemed to have vested under the Central Ordinance. Inthis connection, reliance was placed upon Sub-section (2) of Section 8 of the Central Ordinance which runs as follows :
'Where immediately before the commencement of this Ordinance, any evacued 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.'
Therefore, the learned Government Advocate contended that the house in question having been vested in the Custodian by virtue of the Orissa Ordinance, continued to be so vested in him under Section 8 (2) of the Central Ordinance. Thus, it is clear that in addition to the provisions in Sub-section (3) of Section 55 of the Central Ordinance, Sub-section (2) of Section 8 provided for the continuance of the vesting which had already taken place under the Orissa Ordinance. Reliance was then placed on a case reported in Haji Sulaiman v. Custodian of Evacuee Property, AIR 1954 Madh-B 173 (E).
In that case their Lordships hold that under Section 7 (1) three conditions were to be satisfied before the property can be declared an evacuee property: (1) The Custodian must be of opinion that the property is an evacuee property within the meaning of the Act; (2) He must cause a notice to be given ; and (3) He must hold an enquiry. If any of the conditions had not been complied with the order would be without jurisdiction. This case being a case under the Administration of Evacuee Property Act of 1950, it does not apply to the present case.
Undoubtedly, the provisions of the Act are mandatory and must be complied with by the authority taking recourse to it ; the violation of which would mean abridgement of a fundamentalright of the citizen, but in this case, as I have stated earlier, the Orissa Ordinance did not provide for any such notice to the transferee or for an enquiry before the evacuee property was vested in the Custodian.
10. Thus, we are satisfied that notice was not necessary under the provisions of the Orissa Ordinance and the disputed property, being a property of an evacuee, vested automatically in the Custodian and continued as such under the Central Ordinance and the Assistant Custodian, as a measure of abundant caution, did issue a notice under Section 7 (1) of the Central Ordinance and gave an opportunity to the petitioner to be heard and after fully considering the matter declared the property to be an evacuee property on 28-1-50. Hence, there has been substantial compliance with the provisions of law.
11. Thus, the only contention raised by Mr. Chatterjee having failed, we see no reason to issue a writ in this case.
12. The Rule is accordingly discharged, and the petition is dismissed with costs. Hearing fee Rs. 100.
Mohapatra, J.
13. I agree.