DR. ZAFAR ALI SHAH AND OTHERS versus THE ASSISTANT CUSTODIAN OF EVACUEE PROPERTY, JHANSI AND OTHERS

Citation: [1962] 1 S.C.R. 749 · Decided: 04-03-1961 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Case Allowed

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Judgment (excerpt)

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l S:C.R. SUPREME COURT REPORTS 
749 
DR. ZAFAR ALI SHAH AND OTHERS 
v. 
THE ASSISTANT CUSTODIAN OF EVACUEE 
PROPERTY, JHANSI AND OTHERS 
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR, 
N. RAJ AGOPALA AYYANGAR and J. R. MUDHOLKAR, J J.) 
Evacuee Property-Declaration of-If could be made without 
issuing of notice-Administration of Evacuee Property Act, r950 
(3r of r950), s. 7-Displaced Persons (Compensation and Rehabili-
tation) Act, r954 (44 of r954), s. 12-Constituiion of India, Art. 
r9(r) (j). 
The Custodian of evacuee properties m1de a declaration 
that two houses were evacuee properties. Notice under s. 7 
of the Administration of Evacuee Property Act, 1950, which 
initiated the proceedings resulting in the declaration had been 
served on t\V"O persons as owners. These persons did not appear 
and contest the proceedings. The petitioners claimed to be en-
titled to certain shares in the houses. No notice under s. 7 of 
the Act had at any time been served on them and they had 
never been declared evacuees. One of the petitioners filed an 
appeal under the Act to the Custodian-General which was dis-
missed as time barred. The petitioners then filed a petition 
under Art. 32 of the Constitution of India on the ground that 
they were being wrongfully deprived of their shares in the 
houses. 
Held, that as no notice under s. 7 of the Act had been ser-
ved on the petitioners, their shares in the houses had never 
become evacuee property nor vested in the Custodian. The 
petitioner who had filed the appeal did not thereby lose his 
rights in the houses either as the appeal did not decide any 
question as to such rights but was dismissed on the sole ground 
that it was filed beyond the time prescribed for it. Strictly, no 
appeal by him lay as he was not a party to the proceeding 
resulting in the df'c1aration. 
Section 12 of the Displaced Persons (Compensation and 
Rehabilitation) Act, 1954, only affects the rights of an evacnee 
in his property. The notification made under that section did 
not have the effect of extinguishing the petitioners' rights in 
the houses as they had never been declared evacuees. 
Ebrahim Aboobaker v. Tek. Chand Dolwani, [1953] S.C.R. 69r, 
referred to. 
ORIGINAL JURISDICTION: 
Writ Petition No. 96 of 
1959. 
Petition under Art. 32 of the Constitution of India 
for enforcement of Fundamental Rights. 
I96I 
750 
SUPREME COURT REPORTS 
[1962J 
196 1 
S. Shaukat Hussain and P. C. Aggarwala, for the 
-
.petitioners. 
Zafar Ali Shah 
. 
v. 
N. S. Bindra, R. H. Dhebar and T. M. Sen, for the 
Assistant 
respondents. 
E Custodipan po! t 
1961. 
April 4. 
The Judgment of the Court .was 
vacuee 
ro er y d j' 
d b 
e ivere 
y 
Sarkar ] . 
SARKAR, J.-This is a petition raising a, question of 
violation of the fundamental right to hold property 
guaranteed by Art. 19 (1) (f) of the Constitution. It 
arises out of an order made under the Administration 
of Evacuee Property Act, 1950, declaring two houses 
to be evacuee property. 
What had happened was that sometime in Septem-
ber, 1951, two notices were issued under s. 7 of the 
Act addressed respectively to Nusrat Ali and Fateh 
Ali, requiring them to show cause why they should not 
be declared evacuees and their properties, being the 
two houses in dispute, to be evacuee property. Neither 
of these two persons having appeared, a declaration 
was made by the Custodian on January IO, 1952, 
under that section that Nusrat Ali and Fateh Ali were 
evacuees and the houses were evacuee property. Upon 
such declaration the houses vested in the Custodian 
under the provision of s. 8 of the Act and he took 
possession of them. 
These houses were the property 
of one Khadim Ali who had never been declared an 
eva,cuee and had died on or about October I, 1950, 
leaving three sons and five daughters, who thereupon 
became entitled to them in certain shares. Nusrat Ali 
and Fateh Ali were two of the sons of Khadim Ali. 
The Petitioners are his other son and two of his 
daughters. No notice under s. 7 had at any time been 
issued to them nor were they ever declared to be 
evaouees. These facts are not in dispute. 
The petitioners contend that they have been wrongly 
deprived of their rights in th.e houses by the action of 
the Custodian. They say that for a long time they 
had no knowledge of the proceedings taken under the 
Act in respect of the houses and when they came to 
know of the order of the Custodian, they took various 
steps to protect their rights but

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