Azimunissa & Ors Vs. The Deputy
Custodian, Evacuee Properties  INSC 179 (26 October 1960)
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
CITATION: 1961 AIR 365 1961 SCR (2) 91
CITATOR INFO :
F 1967 SC1244 (7) RF 1970 SC 413 (6) F 1983
SC 259 (18)
Evacuee Property-Automatic vesting under
invalid Ordinance Continuance of vesting under subsequent enactments-
Validation of--Separation of evacuee interest-Composite Property-Sale of
non-evacuee interest-Whether violates fundamental rights--U. P. Administration
of Evacuee Property Ordinance, 1949 (U. P. Ordinance 1 of 1949), ss. 2(c) and
5-Administration of Evacuee Property (Chief Commissioner's Provinces) Ordinance
1949 (Ordinance XII of 1949), s. 5-Administration of Evacuee Property (Chief
Commissioner's Provinces) Amendment Ordinance 1949 (Ordinance XX of 1949), s.
8-Administration of Evacuee Property Ordinance 1949 (Ordinance XXVII of 1949),
ss. 7 and 8-Administration of Evacuee Property (Amendment) Ordinance 1950
(Ordinance IV of 1950, S. 4--Administration of Evacuee Property Act, 1950 (XXXI
of 19.50) ss. 7 and 8- Administration of Evacuee Property (Amendment) Act, 1960
(1 of 1960), s. 2-Evacuee Interest (Separation) Act, 1951 (LXIV of 1951), S.
10--Constitution of India, Arts. 19(1)(f) and 31.
One K who had a 0-2-3 share in certain
properties in Uttar Pradesh went to Pakistan in 1947. The competent Officer
took proceedings under the Evacuee Interest (Separation) Act, 1951, to separate
the share of K in the property and as the. claimants were not prepared to
purchase the share of K, he auctioned the entire property under s.10 of the
Act. The petitioners contended that K was not an evacuee, that the property was
not composite property, that the proceedings under the Act were void and that
s. 10 of the Act was void as it contravened Arts. 31 and 19(i)(f) of the
The respondents urged that the interest of K
in the property had automatically vested in the Custodian under U. P. Ordinance
1 of 1649 and this vesting was continued by Central Ordinance XII of 1949, by
Central Ordinance XXVII of 1949 and Central Act XXXI of 1950 and any legal
defect in the vesting was cured by Central Act 1 of 1960, that the property was
accordingly composite property and was properly auctioned under the Separation
Act. The Petitioners replied that U. P. Ordinance 1 of 1949 and Central 92
Ordinance XII of 1949, were void for want of legislative competence and there
could be no vesting in law under their provisions which could be continued by
subsequent Ordinances and Acts.
Held, that the property was composite
property and was properly auctioned under the Separation Act. As K was an
evacuee under S. 2(C) of the U. P. Ordinance, her property automatically vested
in the Custodian under s. 5 and it was continued under the Central Ordinance
XII of 1949. Even if these two Ordinances were bad for legislative incompetence
the purported vesting there under was continued under Central Ordinance XXVII
of 1949 and thereafter under Central Act XXXI of 195o and any legal defect in
such vesting was cured by Central Act 1 of 1960.
Held, further that s. 10(a) of the Separation
Act did not contravene Arts. 31 and 19(i)(f) of the Constitution and was not
void. As the petitioners were not prepared to purchase the share of K, the
Competent Officer acted properly in selling the property by public auction.
ORIGINAL JURISDICTION :Petition No. 56 of
Petition under Article 32 of the Constitution
of India for enforcement of Fundamental rights.
A. V. Viswanatha Sastri and G. C. Mathur, for
C. K. Daphtary, Solicitor-General of India,
R. B. Nanak Chand and R. H. Dhebar, for respondents Nos. 1 to 3.
C. K. Daphtary, Solicitor-General of India,
Harnam Singh and AT. Shroff, for the respondent No. 4.
J. P. Goyal, for respondents Nos. 5 to 10.
1960. October 26. The Judgment of the Court
was delivered by KAPUR. J.-This is a petition by six persons under article 32
of the Constitution praying for a writ of certiorari for calling the records in
which certain orders were passed and for the issue of a mandamus directing the
respondents to restore the property in dispute. The following pedigree table
will assist in understanding the case:- 93 Hingan Mian Moharram Main
Shukrullah(d.1945) Abul Bashir Nasir Nazir Majid Razzaq Ahamad Ahamad Ahamad
Khuda Bux Noori Mian=Rehmat Bibi (d.1953) Azimunnisa Khatoon Bibi Taghma Bibi
(d) = Maqbool Ahamad =Abdul Barkat Shamsun Nisa Khudaija Bibi Lutf Md. Ahamad
Aiysha Qamar-un-Nisa Tehzib-un-Nisa Ahamad Khatoon 94 The petitioners alleged
that the properties in dispute were acquired by Noon Mian and after his death
there was some litigation but as a result of a compromise between the members
of the family the shares of the contestants were fixed as follows:- (a) Rehmat
Bibi, Widow..0-1-6 (b) Taghma Bibi....0-1-5 (c) Khatoon Bibi...0-1-9 (d)
Azimunnissa....0-1-9 (e) Shukrullah.....O-5-4 (f) Khuda Baksh....0-4-3 On
August 28, 1942, Shakru-ullah created a waqf-alal-aulad in favour of his sons
and nominated Abdul Razzaq as Mutwali (Trustee). Shakr-ullah died in 1945. In
the year 1947, Khatoon Bibi, one of the petitioners, went away to Karachi and
the ostensible reason stated by her :Is that she went to look after the ailing
sister of her husband who was in Karachi.
On November 22, 1949, a notice was issued to
Khatoon Bibi, her manager and servants declaring her to be an evacuee and
calling upon her to surrender possession of her property which was described as
" Bhatni Noori (Chini Mills, zamindari and kashtkari land ". Her
husband Abdul Barkat filed objections but it does not appear that any order was
passed on those objections. On April 17. 1950, the Administration of Evacuee
Property Act, 1950 (XXXI of 1950), hereinafter referred to as the Act, came
Another notice was issued to Khatoon Bibi by
the Deputy Custodian of Evacuee Property, Deoria, on July 5, 1950, to show
cause why she should not be declared an evacuee and why all her property be not
declared evacuee property. It is alleged that the notice did not contain any
description of the property and was therefore ineffective. This fact is denied
by the respondents. In their affidavit it was stated that the property was
fully specified and identified and that the notice of July 5, 1950, was by way
of abundant caution; the property of Khatoon Bibi had become evacuee property and
had automatically vested in the year 1949.
Against this notice also Abdul 95 1951, these
objections were dismissed. The order was as follows:- "I Objection
dismissed. Admittedly Bibi Khatoon is an evacuee. The notice is hereby
confirmed and the property (sufficiently although not thoroughly) described in
the notice is hereby declared to be evacuee property No appeal or revision was
taken against this order. On January 8, 1953, a notice under s. 7 of the Act
was issued against Bashir Ahmad and Nasir Ahmad and by an order dated December
14, 1955, both of them were declared evacuees and their interests in the
properties were declared evacuee property. This order by the Assistant
Custodian (Judicial) shows that in the notice the properties were described and
it was held that both Bashir Ahmad and Nasir Ahmad were evacuees and their
interest in the property was evacuee property but as it was composite property
the exact shares were left to be determined by the Competent Officer. An appeal
was taken by these two evacuees to the Custodian of Evacuee Property, U. P.,
but it has not yet been decided.
Proceedings were then taken by the Competent
Officer under Evacuee Interest (Separation) Act (64 of 1951), hereinafter
called the Separation Act. Notices were issued under s. 6 of the Separation Act
on February 15, 1954, and the persons to whom notices were issued filed
separate claims claiming various shares in the property. The Competent Officer
by his order of March 20, 1956, declared the shares of the various evacuees and
non-evacuees and also held that as the claimants were not prepared to purchase
the shares of the evacuees in the property in dispute the only mode available
for partition was by a public auction. He gave directions as to how the
property which was the subject matter of waqf-alal-aulad was to be separated.
As regards the valuation of the property he referred to the valuation made by
the Assis- tant Valuation Officer and Superintendent, Valuation Office, Khan
Market, New Delhi, the former at Rs. 7,41,300 for the construction and lands
and the latter at Rs. 14,15,000 inclusive of machinery, lands 96 and buildings
and then tentatively fixed the valuation at Rs. 14,15,000 and again referred
the matter to the Superintendent, Valuation Office for final valuation. He held
Khatoon Bibi's share to be 0-2-3 and also determined the interest of Bashir
Ahmad and Nasir Ahmad and ordered the entire property to be sold by auction.
Against this order an appeal was taken to the Appellate Officer. On August 13,
1956, the property in dispute was sold to respondent No. 3 for Rs. 16,05,000.
Against this objections were filed by the petitioner Azimunnissa and Abdul
Wahid but they were dismissed by the Competent Officer on October 1, 1956.
Against this order a revision was taken to
the Appellate Officer but both of them were dismissed on October 24, 1957.
in the meanwhile the petitioners, on
September 27, 1956, filed a petition under Art. 226 in the High Court of
Allahabad in which they attacked the validity of the proceedings taken under
the Act and also the order of the Competent Officer ordering sale. Some of the
points raised by the petitioners were decided in their favour but the petition
was dismissed because the petitioners had been guilty of laches as they had
slept over their rights for five years and had applied to the High Court when
no further notices could be issued under the Act and as no proper action was
taken by the petitioners as regards the various orders passed. against this
judgment of the Allahabad High Court in Azimunnissa & Ors. v. Assistant
Custodian (1) and against the order of the Appellate Officer, the petitioners
applied for special leave to this court but both these petitions were dismissed
on February 10, 1958.
The petitioners have now come to this court
under Art. 32 for a writ of certiorari (1) to quash the order of the Assistant
Custodian, Deoria, dismissing the objections of the petitioner Khatoon Bibi on
March 7, 1951; (2) to quash the order of the Competent Officer dated March 20,
1956 and of the Appellate Officer dated October 24, 1957 and (3) for quashing
the sale proceedings ending in the sale of the property dated March 13, 1956
and (4) for a mandamus directing the respondents to restore the property to the
97 Three questions were raised on behalf of
(1) that the property was not composite
property within the Separation Act; (2) the shares of Khatoon Bibi and of
Bashir Ahmad and Nasir Ahmad were not validly declared to be evacuee interest
under the various provisions of law and therefore the provisions of the
Separation Act did not apply ; (3) section 10(a)(iii) of the Separation Act in
so far as it directed the sale of non-evacuee property contravenes arts.
19(1)(f) and 31 of them. Constitution and was therefore unconstitutional.
The decision of the case mainly depends upon
the decision as to whether the property in dispute was composite property.
Under s. 2(d) of the Separation Act composite
property has been defined:
S. 2(d) " 66 composite property "
means any property which or any property in which an interest has been declared
to be evacuee property or has vested in the Custodian under the Administration
of Evacuee Property Act 1950 (XXXI of 1950) and- (i) in which the interest of
the evacuee consists of an undivided share in the property held by him as a
co-sharer or partner of any other person, not being an evacuee." S. 2(e)
" " evacuee interest " in relation to a composite property,
means the right, title and interest of ail evacuee in that property."
Therefore if it is established that any interest in the property has been
declared to be evacuee property or has vested in the Custodian under the Act
then the whole will be composite property. For the determination of the
question whether any portion of the property in dispute was evacuee property it
becomes necessary to refer to the provisions of the various laws which were
passed in regard to evacuee property. The property in dispute is situate in
what was the United Provinces and the first legislation in that province as it
then was, was the United Provinces Administration of Evacuee Property
Ordinance, 1949 (U. P. Ordinance No. 1 of 1949), which 98 was promulgated on
June 24, 1949. In this Ordinance evacuee and evacuee property had the
definition which has been continued in the later Ordinances and Acts. By s. 5
of that Ordinance all evacuee property situate in the United Provinces
automatically vested in the Custodian and any person in possession of such
property was deemed to be holding on behalf of the Custodian (s. 6(2)). As
Khatoon Bibi was an evacuee under s. 2(c) of the U. P. Ordinance her property
automatically vested in the Custodian under s. 5.
But the validity of this Ordinance was
successfully challenged by the petitioners in the Allahabad High Court in
Azimunissa v. Assistant Custodian (1). The ground for the challenge was that
there was no entry in the lists in the Seventh Schedule of the Constitution
Act, 1935, dealing with evacuee property and there was no public notification
by the Governor General as required by s. 104 of the Constitution Act, 1935.
This Ordinance, i.e., U. P. Ordinance 1 of 1949 expired on August 23, 1949.
On June 13, 1949, the Governor General
promulgated the Administration of Evacuee Property (Chief Commissioners' Provinces)
Ordinance XII of 1949 and it was extended to U. P. on August 23, 1949, by
Ordinance XX of 1949 after a resolution was passed by the U. P. Legislature
under s. 103 of the Constitution Act. Section 5 of the former provides for the
vesting of property in the Custodian as follows:- S. 5(1) " Subject to the
provisions of this Ordinance all evacuee property situate in a Province shall
vest in the Custodian for 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, the evacuee
property shall, on the commencement of this Ordinance, be deemed to have vested
in the Custodian appointed for the Province under this Ordinance ".
Section 8 of Ordinance XX added s. 41 to
Ordinance (1) A. I. R. 1957 All 561.
99 Thus under s. 5 in spite of the expiry of
the U. P. Ordinance the property of Khatoon Bibi was deemed to have vested in
the Custodian under the provisions of Ordinance XII of 1949. But this Ordinance
(XII of 1949 as amended by Ordinance XX of 1949) suffered from the same
constitutional defect as the U. P. Ordinance 1 of 1949. On August 25, 1949,
item 31-B relating to " evacuees " was added to the concurrent list
by the Government of India Act (Third Amend- ment) Act of 1949 and thus this
constitutional vacuum was filled up. On October 18, 1949, the Governor General
promulgated the Administration of Evacuee Property Ordinance (XXVII of 1949).
It repealed Ordinance XII of 1949.
Section 7 of this Ordinance provided for
declaration of evacuee property and s. 8 for vesting of evacuee property in the
Custodian. The relevant portions of s. 7 are :- S.7 "Where the Custodian
is of opinion that any property is evacuee property within the meaning of this
Ordinance, he may, after causing notice thereof to be given in such manner as
may be prescribed to the persons interested, and after holding such inquiry into
the matter as the circumstances of the case permit, pass an order declaring any
such property to be evacuee property" S. 8 " Any property declared to
be evacuee property under section 7 shall vest in the Custodian.
(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 the 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 ".
These provisions were materially different
from that in the previous Ordinances as there was no automatic vesting in the
Thus any vesting under Ordinance XII of 1949
was deemed to be under Ordinance XXVII of 1949 as if the latter had been in
force on the date of the vesting. By s.4 of the Administration of Evacuee 100
Property (Amendment) Ordinance IV of 1950, s. 8 of Ordinance XXVII of 1949 was
substituted by a revised section s. 8. The relevant portion of this section
provided:- S. 8(2) "Where immediately before the commencement of this
Ordinance, any property in a province bad vested as evacuee property in any
person exercising the powers of a Custodian under any law repealed hereby, the
property shall, on the commencement of this Ordinance be deemed to be evacuee
property declared as such within the meaning of this Ordinance and shall 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.
Provided that where, at the commencement of
this Ordinance, there is pending before the Custodian for any province any
claim preferred to him in respect of any property under section 8 of the
Administration of Evacuee Property Ordinance, 1949 (XII of 1949), or under any
other corresponding law repealed hereby, then, notwithstanding anything
contained in this Ordinance or in any other law for the time being in force
such claim shall be disposed of as if the definitions of I evacuee property '
and I evacuee ' contained in section 2 of this Ordinance had become applicable
thereto." Under this provision of the Ordinance the effect as to vesting was
that it was deemed to be under this Ordinance.
On April 18, 1950, the Administration of
Evacuee Property Act, 1950 (XXXI of 1950), which has been referred to as the
Act was passed by Parliament. It repealed Ordinance XXVII of 1949. The
definitions of evacuee and evacuee property are the same as in Ordinance XXVII.
Section 7 of the Act and s. 8 also are in the same terms. The provisions
regarding vesting of evacuee property in the Custodian were also same as in the
amended s. 8 of Ordinance XXVII.
Section 58 deals with repeals and savings.
Therefore the consequence of s. 8(2) was that
property vested under Ordinance XXVII was deemed to 101 be vested under the
corresponding provision of the Act.
On February 27, 1960, the Act was amended by
the Administration of Evacuee Property (Amendment) Act 1 of 1960. Sub-section
(2-A) was added to s. which was in the following terms:- (2-A) "Without
prejudice to the generality of the provisions contained in sub-section (2) all
property which under any law repealed hereby purports to have vested as evacuee
property in any person exercising the powers of Custodian in any State shall,
notwithstanding any defect in or the invalidity of, such law or any judgment,
decree, order of any Court, be deemed for all purposes to have validly vested
in that person, as if the provisions of such law had been enacted by Parliament
and such property, shall, on the commencement of this Act, be deemed to have
been evacuee property declared as such within the meaning of this Act and accordingly,
any order made or other action taken by the Custodian or any other authority in
relation to such property shall be deemed to have been validly and lawfully
made or taken ".
The argument raised on behalf of the
petitioner was that U. P. Ordinance 1 of 1949, Central Ordinance XII of 1949
and Central Ordinance XX of 1949 were invalid as the legislative competence of
the Governor and of the Governor-General in regard to evacuee and evacuee
property matters was wanting ;
and all that sub-s. (2-A) of s. 8 added by
Act 1 of 1960 did was to save any vesting which purported to have taken place
under Ordinance XXVII but it did not purport to cure any invalidity due to
constitutional incompetence and that the law made without constitutional
authority could not be validated. Reference was made to Saghir Ahmad v. The
State of U. P. (1) where at page 728 the following statement from Cooley's
Constitutional Limitations, Vol , page 384 (note) :- " A statute void for
unconstitutionality is dead and cannot be vitalised by a subsequent amendment
(1)  1 S.C.R. 707, 728.
102 of the Constitution removing the
constitutional objection but must be reenacted " was held to be sound law.
Reference was also made to M.P. V.
Sundararamier & Co. v. The State of Andhra Pradesh(1) where a distinction
was drawn between the unconstitutionality due to incompetency of the
Legislature and disregard of constitutional prohibitions.
The respondents in reply contended that there
was no defect in the notice issued to Khatoon Bibi and her property was
properly and sufficiently described therein and that Act 1 of 1960 validated
the vesting and removed all defects and invalidity, if any, arising as a result
of the deficiencies in the various laws operating on her case.
The first notice to Khatoon Bibi was under
Ordinance XXVII dated November 22, 1949, against which her husband Abdul Barkat
filed objections. but evidently no order was passed on it. The second notice
which was given on July 5, 1950, sufficiently specified the property. Against
this notice objections were again raised by Abdul Barkat but were dismissed by
the order dated March 7, 1951, and no further appeal or revision or any other
proceeding was taken against that order and any defects and deficiencies
whether of law or otherwise cannot now be raised. It was specifically stated in
that order that the property was sufficiently, though not thoroughly, described
and that property was declared to be evacuee property. The appellants contested
the correctness of the fact that the property was properly described and
referred to the judgment of the Allahabad High Court in Azimunnissa v.
Assistant Custodian(2) (p. 568, para 10) which indicates that there was no
description of the property. In the view that we are taking this controversy
loses its vitality.
The second plea taken by the respondents was
that by the insertion of s. 8(2A) in the Act by Act 1 of 1960 retroactive
effect was given to the provisions of the Act and the vesting of any evacuee
property which purported to have been vested as evacuee property in (1) 
S.C.R. 1422, 1469.
(2) A.I.R. 1957 All. 561.
103 the Custodian was validated
notwithstanding any defect in or invalidity of such law and on the commencement
of that Act (Act 1 of 1960) the property which purported to have vested in the
Custodian was deemed to have been evacuee property declared as, such within the
meaning of the Act and any order made or action taken by the Custodian must be
deemed to have been validly made or taken.
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; Dicker v.
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, s. 8(2-A)
by giving a retrospective effect to s. 8(2) of the Act makes the vesting as if
it was vesting under s. 8(2) of the Act and therefore the attack on the ground
of invalidity cannot be sustained.
By s. 5 of U. P. Ordinance 1 of 1949 the
property of Khatoon Bibi who became an evacuee' under s. 2(c) and her property
' evacuee property' under s. 2(d) was vested in the Custodian of Evacuee
Property of the province of U. P. That Ordinance was allowed to lapse. By
Central Ordinance XII of 1949 as subsequently amended the vesting of evacuee
property was deemed to be under that Ordinance, which in its turn was repealed
under s. 55 of Ordinance XXVII of 1949 which was a valid piece of legislation.
By s. 8(2) of that Ordinance the vesting under the previous Ordinance was
deemed to be under that Ordinance as if it was in force on the date of the
vesting. Ordinance XXVII of 1949 was repealed by the Act which contained
provisions as to vesting in s. 8(2), which was similarly worded as the
corresponding provision of the Ordinance and therefore by a fiction of law the
original vesting was to be treated as (1) (1876) 3 Ch. D. 600, 603.
104 if the Act was in force when the first
vesting took place.
The High Court of Allahabad in Azimunnissa's
case (1) held the vesting to be invalid because upto the time of Ordinance XII
of 1949 and even Ordinance XX of 1949 legislative competence was lacking, and
even by the deeming provisions in s. 8(2) of Ordinance XXVII of 1949 or Act
XXXI of 1950 there was no valid vesting, because the original vesting was bad.
We think it unnecessary to decide as to whether the deeming provision of s.
8(2) of the Act or of Ordinance XXVII of 1949 was sufficient to give validity to
the vesting. Section 8(2-A) as introduced into the Act, in our opinion, makes
the vesting valid, because it gives validity to the vesting which purported to
have taken place as a result of Ordinance XXVII of 1949 even though it was only
apparently so and was not so in law, because that is what I purport' implies.
The effect of s. 8(2-A) is that what
purported to have vested under s. 8(2) of Ordinance XXVII of 1949 and which is
to be deemed to be vested under s. 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 s. 8(2) of Ordinance XXVII of 1949 or
s. 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. Because
of the retrospective effect given to the Act and the validating effect of Act 1
of 1960 Saghir Ahmad's case (2) would have no application. In the view we have
taken the other question does not survive and the share of Khatoon Bibi must be
held to be evacuee property validly (1) A.I.R. 1951 All. 561 (2)  1
105 vested in the Custodian. Therefore the
property in dispute does fall within the definition of composite property as
given in s. 2(d) and cannot be held to be invalid.
It was then argued that by the sale of the
property non- evacuees had been illegally deprived of their property and
therefore s. 10, cl. (a) contravenes the provisions of Arts.
31 and 19(1)(f). This contention is equally
The relevant provision of s. 10 is as
follows:-- "Notwithstanding anything to the contrary in any law or
contract or any decree or order of a Civil Court or other authority, the
competent officer may, subject to any rules that may be made in this behalf,
take all such measures as he may consider necessary for the purpose of
separating the interests of the evacuees from those of the claimants in any
composite property, and in particular may,- (a) in the case of any claim of a
co-sharer or partner,- (i) direct the Custodian to pay to the claimant the
amount of money assessed in respect of his share in the composite property or
deposit the same in a Civil Court having jurisdiction over such property and
deliver possession of the property to the Custodian and the claimant may
withdraw the amount in deposit in the Civil Court; or (ii) transfer the
property to the claimant on payment by him of the amount of money assessed in
respect of the share of the evacuee in the property ; or (iii) sell the
property and distribute the sale proceeds thereof between the Custodian and the
claimant in proportion to the share of the evacuee and of the claimant in the
property ; or (iv) partition the property according to shares of the evacuee
and the claimant and deliver possession of the shares allotted to the evacuee
and the claimant to the Custodian and the claimant respectively." Thus the
alternatives open to the Competent Officer were four: of these (1) the payment
by the Custodian of the money value of the share of the non-evacuees 14 106 to
the non-evacuees; and (2) the payment to the Custodian by the non-evacuees of
the money value of the share of the evacuees were not available to him. The
former in this case was neither claimed nor could the Custodian be expected to
pay such a large sum of money to the non-evacuees. The order of the Competent
Officer of March 20, 1956, shows that the non-evacuee co-sharers were not
prepared to pay to the Custodian the money value of the shares of the evacuees.
of the remaining alternatives the third alternative was the partitioning of the
property but that also was not possible in the present case because of the
nature of the composite property which comprised of a sugar mill which in the
very nature of things could not be partitioned. Consequently the only available
mode of separation was the one adopted by the Custodian'. i.e., by sale of the
property and division of the sale proceeds. In the circumstances the action of
the Competent Officer could not be termed unreasonable or violative of Art.
19(1)(f) nor does it violate Art. 31 because it cannot be said to be
deprivation of the non- evacuees of their property without the authority of
In the result this petition fails and is
dismissed with costs.