Dismissed

Azimunissa and Others v. the Deputy Custodian, Evacuee Properties, District Deoria. and Others.

Supreme Court26 Oct 19601960 INSC 184 · [1961] 2 S.C.R. 911960 INSC 184

Case brief

AI extract

What is this about?

Petitioners sought restoration of family properties sold by public auction after separation proceedings against an evacuee co-owner's share. The court upheld vesting of the evacuee's share via the validating provision added by Act I of 1960 and found section 10(a)(iii) of the Separation Act constitutional; petition dismissed with costs.

What the court decided

AI extract

Azimunissa and Others versus the Deputy Custodian… — Property and Title | Supreme Court (1961)

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2 S.C.R. SUPREME COURT REPORTS 91

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Ig6o

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AZIMUNISSA AND OTHERS

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October 26.

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THE DEPUTY CUSTODIAN, EVACUEE PROPERTIES, DISTRICT DEORIA. AND OTHERS.

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(B. P. SINHA, C. J., J. L. KAPUR, P. B. GAJENDRAGADKAR, K. SUBBA RAO and K. N. WANCHOO, JJ.)

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Evacuee Property-Automatic vesting 1mder 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, r949 (U. P. Ordinance I of r949), ss. 2(c) and 5-Administration of Evacuee Property (Chief Commissioner's Provinces) Ordinance r949 (Ordinance XII of r949). s. 5-Administration af Evacuee Property (Chief Commissioner's Provinces) Amendment Ordinance r949 (Ordinance XX of r949), s. 8-Administration of Evacuee Property Ordinance I949 (Ordinance XXVII of r949), ss. 7 and 8-Administration of Evacuee Property (Amendment) Ordinance r950 (Ordinance IV of r950). s. 4--Administration of Evacuee Property Act, r950 (XXXI of r950), ss. 7 and 8-Administration of Evacuee Property (Amendment) Act, r960 (I of r960), s. 2-Evacuee Interest (Separation) Act, r95r (LXIV of r95r), s. IO-Constitution of India, Arts. r9(r)(f) and JI.

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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. IO of the Act was void as it contravened Arts. 31 and 19(1)(f) of the Constitution. The respondents urged that the interest of K in the property had automatically vested in the Custodian under U. P. Ordinance ! of ·1949 and this vesting was continued by Central Ordinance XII of 1949, by Central Ordinance XX VII of 1949 and Central Act XXXI of I950 and any legal defect in the vesting was cured by Central Act I of 1960, that the property was accordingly composi.te property and was properly auctioned under the Separation Act. The Petitioners replied that U. P. Ordinance I of 1949 and Central

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92 SUPREME COUHT REPORTS

[1961]

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Ordinance XII of 1949, were void for want of legislative competence and there could be no vesting in law under their pro- A zi11iu11tssa visions which could be continued by subsequent Ordinances and b Others Acts. v. Tl" Deputv GusHeld, that the property was composite property and was 1^d. i uee properly fauctioned under the Separation Act. As K was an 0 Pian, tac evacuee under s. 2(c) of the U. P. Ordinance, her property auto- D. t rop" . 1 D ies, . mat1ca y ves e · 11 t d · 1n th e us o C t d' 1an un er s. d 5 an I was cont1nu- d 't · ";'•h eoria ed under the Central Ordinance XII of 1949· Even if these "' two Ordinances were bad for legislative incompetence the purported vesting thereunder was continued under Central Ordinar.ce XXVII of 1949 and thereafter under Central Act XXXI of 1950 and any legal defect in such vesting was cured by Central Act I of 1960. ·

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Held, further that s. rn(a) of the Separation Act did not contravene Arts. 31 and 19(1)(!) 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.

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ORIGINAL JURISDICTION: Petition No. 56 of 1958. Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights.

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A. V. ViBwanatha Sastri and G. C. Mathur, for the petitioners.

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C. K. Daphtary, Solicitor-General of India, R. B. Nanak Chand and R. H. Dhebar, for respondents Nos. 1 to 3.

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C. K. Daphtary, Solicitor-General of India, Harnam Singh and I. N. Shroff, for the respondent No. 4.

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J. P. Goyal, for respondents Nos. 5 to 10.

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October 26. The Judgment of the Court was delivered by .

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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 :-

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t-:)
Hingan Mia.n 00
I h
I I
Moharram Main Shukrullah (d. 1945)
I I_ 00
1--- --- , ------- I d
I I I Ii:;
I Abdul Bashir Na.sir Nazir Majid !;d
tz'j
I Razzaq Ahmad Ahmad Ahmad ;s:
I tz'j
I --,
Khuda Bux Noori Mia.n=Rehma.t
d 0 0
Bibi (d. 1953)
!;d
I L. 1-3
I ~l~~-__,I
!;d
Azimunnisa Kha.toon Bibi Ta.ghma. Bibi (d) tz'j
=Ma.qbool Ahmad =Abdul Barkat I 0 Ii:;
I !;d
---1 1-3
I 00
I Shamsun Nisa Khuda.ija. Bibi
I <br>------r--- ---- --- --i- -- ------1
I I
Lutf Ahmad Md. Ahmad Aiysha. -Khatoon Qamar-un-Nisa Tehzib-un-Nisa. ~
c:.:i

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94 SUPREME COURT REPORTS [1961]

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79 60 The petitioners alleged that the properties in dis- Azimunissa pute were acquired bv J Noori Mian and after his death o;, Othm thero was some litigation but as a result of a comprov. mise between the members of the family the shares of · The Deputy Gus- the contestants were fixed as follows :-

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todian, Evacuee (a) Rehmat Bibi, Widow 0.1-6 Prop,,ties, (b) Tagh ma Bibi 0-1-5 Distdct Deoda &· Othus (c) Khatoon Bibi 0-1-9 (d) Azimunnissa 0-1-9 Kapur J. (e) Shukrullah 0-5-4 (f) Khuda Baksh 0-4-3

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On August 28, 1942, Shakru-ullah created a waqfalal-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.

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On November 22, 1949, a notice was issued to Khatoon Bibi, her manager and servants declaring her to be au 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 pasRed on those objections. On April 17, 1950, the Administration of Evacuee Property Act, 1950 (XXXI of 1950), hereinafter referred to as the Act, came into force. Another notice was issued to Khatoon Bibi by the Deputy Custodian of Evacuee Property, Dooria, 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 Barkat filed objections but by an order dated March 7,

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2 S.C.R. SUPREME COURT REPORTS

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1951, these objections were dismissed. The order was as follows :-

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r960

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A :imunissa &- Others v.

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" Objection dismissed. Admittedly Bibi Khatoon &- Others is an evacuee. The notice is hereby confirmed and v. the property (sufficiently although not thoroughly) The Deputy Cus- described in the notice is hereby declared to be todian, Evacuee evacuee property". Properties,.

¶38

No appeal or revision was _taken against this order. Dis;•t;;ria On January 8, 1953, a not10e under s. 7 of the Act was issued against Bashir Ahmad and Nasir Ahmad Kapur J. 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 theproperty was evacuee property but as it was composite property the exact shares were left to 9e 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.

¶39

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 a.uction. He gave directions as to how the propert.> which was the subject matter of waqf-al,al-aulad was t•o be separated. As regards the valuation of the property he referred to the valuation made by the Assistant Valuation Officer and Superintendent, Valuation Office, Khan Market, New Delhi, the former at Rs.·7,d,300 for the construction and lands and the hitter at Rs. 14,15,000 inclusive of machinery, lands

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96 SUPREME COURT REPORTS

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[1961]

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'9⁶⁰

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'9⁶⁰ and buildings and then tentatively fixed the valuation Azimunissa at Rs. 14,15,000 and again referred the matter to the c;. others Superintendent, Valuation Office for final valuation. v. He held Khatoon Bibi's share to be 0-2-3 and also The Deputy Gus- determined the interest of Bashir Ahmad and Na.sir todia... Evacuee Ahmad and ordered the entire property to be sold Properties, b t' A . t th" d I District Deoria y auc ion. ga.ms IS or er an appea was taken o;. Others to the Appellate Officer. On August 13, 1956, the property in dispute was sold to respondent No. 3 for Kapur J. Rs. 16,05,000. Against this objections were filed by the petitioner Azimunnissa. and Abdul W a.hid but they were dismissed by the Competent Officer on October 1, 1956. Against this order a revision was ta.ken 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 w hioh 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 !aches 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 or~ers 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.

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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 petitioners.

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(1) A.I.R. 1957 All. 561.

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2 S.C.R. SUPREME COURT REPORTS

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I9⁶⁰ Azimunissa .s. Others v. Tli• Deputy Custoaii1n, Evacuee Di~::;·;;~ia & Others

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Three questions were raised on behalf of the peti- I9⁶⁰ tioners: (1) that the property was not composite pro- Azimunissa perty within the Separation Act; (2) the shares of. .s. Others Khatoon Bibi and of Bashir Ahmad and Nasir Ahmad' v. were not validly declared to be evacuee interest under Tli• Deputy Cus- the various provisions of law and therefore the provi- toaii1n, Evacuee sions of the Separation Act did not apply ; (3) secDi~::;·;;~ia tion lO(a)(iii) of the Separation Act in so far as it & Others directed the sale of non-evacuee property contravenes arts. 19(l)(f) and 31 of the Constitution and was Kapvr J. therefore unconstitutional.

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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:

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S. 2(d) ""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-

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(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."

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and "evacuee interest" is defined ins. 2(e) as:

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S. 2(e) ""evacuee interest" in relation to a composite property, means the right, title and interest of an 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 13

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98 SUPREME COURT REPORTS

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r96o was promulgated on June 24, 1949. In this Ordinance evacuee and evacuee property had the definition Azi11zunissa which has been continued in the later Ordinances and &> Others v. Acts. By s. 5 of that Ordinance all evacuee property The Deputy Gus- situate in the United Provinces automatically vested todian, Evacuee in the Custodian and any person in possession of such Properties. . property was deemed to be holding on behalf of the D1stnct & Oth Deana C usto 1an d' ( 6(2)) s. . A s Kh a oon t B'b' 1 1 was an evacuee "' under s. 2(c) of the U. P. Ordinance her property Kapur J. 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 Gustodia,n (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 Govflrnor 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.

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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 :-

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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.

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(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".

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Section 8 of Ordinance XX added s. 41 to Ordinance XII of 1949 which was the saving provision.

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(1) A.I.R. 1957 All. 561.

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2 S.C.R. SUPREME COURT REPORTS

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Thus under s. 5 in spite of the expiry of the U. P. i96o Ordinance the property of Khatoon Bibi was deemed Azimunissa to have vested in the Custodian under the provisions & Otheis of Ordinaace XII 6f 1949. But this Ordinance (XII of v. 1949 as amended by Ordinance XX of 1949) suffered The Deputy Cus- from the same constitutional defect as the U. P. toc'ian, Evacuee Ordinance 1 of 1949. On 'August 25, 1949, item 31-B Properties, District .()eoria relating to "evacuees" was added to the concurrent & Others list by the Government of India Act (Third Amendment) Act of 1949 and thus this constitutional vacuum Kapur J. 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 :- ·

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S. 7(1) "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 ordt!r declaring any such property to be evacuee property ".

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S. 8 "Any property declared to be evacuee property under section 7 shall vest in the Custodian.

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(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".

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These provisions were materially different from that in the previous Ordinances as there was no automatic vesting in the Custodian.

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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

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100 SUPREME COURT REPORTS [1961]

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i96o Property (Amendment) Ordinance IV of 1950, s. 8 of MimuniS<a Ordinance xxvn of 1949 was substituted by a revis& others ed section s. 8. The relevant portion of this section v. provided :-

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The. Deputy Gus- S. 8(2) " Where immediately before the com- tod•••. faacute mencement of this Ordinance, any property in a pro- Properties • h d t d . Dist>ict Deo;;. vmce .. a vhes e as evfacueCe prod:r.erty mdany person & Others exermsmg t e powers o a usto 1an un er any 1 aw repealed hereby, the property shall, on the commence- Kopur J. ment 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.

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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 dispose~ of as if the definitions of 'evacuee property ' and • evacuee ' contained in section 2 of this Ordinance had become applicable thereto."

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Under this provision of the Ordinance the effect as to vesting was that it was deemed to be under this Ordinance.

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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.

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Therefore t.he consequence of s. 8(2) was that property vested under Ordinance XXVII was deemed to

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2 S.C.R. SUPREJ\IE COURT REPORTS

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be vested under the corresponding provision of the Act.

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1960

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A~~u:issa :. ers The Deputy custodian, Evacuee Properties, District Deoria & Others h'a/JUr J.

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On February 27, 1960, the Act was amended by the A~~u:issa Administlation of Evacuee Property (Amendment) :. ers Act, I of 1960. Sub-section (2-A) was added to s. 8 The Deputy cus- which was in the following terms:- todian, Evacuee

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(2-A) " Wit.bout prejudice to the generality of Properties, the provisions contained in sub-section (2) all property District Deoria & Others which under any law repealed hereby purports to have vested as evacuee property in any person exer- h'a/JUr J. cising 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 ta have been validly and lawfully made or taken".

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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. 1, page 384 (note):-

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" A statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment

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(1) [19.55] I S.C.R. 707, 728.

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' '

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102 SUPREME COURT REPORTS [1961]

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'96° of the Constitution removing the constitutional objection but must be reenacted " Azimunis;;a was held to be sound Jaw. & Others v. Reference was also made to M.P. V. Sundararamier 1'he Deputy Gus- & Co. v. The State of Andhra Pradesh (¹ ) where a todiau. faarna distinction was drawn between the unconstitutionality Prop"""·'· due to incompetency of the Legislature and disregard District J)i:o1'ia & Othm of constitutional prohibitions. · The respondents in reply contended that there was Kapur J. 110 defect in the notice issued to Khatoon Bibi and her property was properly and sufficiently d<>Hcribed 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 l::lperating 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 Htated 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(') (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 Yested as evacuee property in (1) [1958] S.C.R. i422, 1469. (2) A.LR. 1957 All. 561.

$ '

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2 S.C.R. SUPREME COURT REPORTS

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the Custodian was validated notwithstanding any r960 defect in or invalidity of such law and on the AziniUnissa commencement of that Act (Act 1 of 1960) the property & Others which purported to have vested in the Custodian was v. deemed to have been evacuee property declared as The Deputy Cus- such within the meaning of the Act and any order tudian, E~acuee made or action taken by the Custodian must be deem- Properties,. . d k District Deoria ed to have been vahdly ma e or ta en. ..,. Others

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-t

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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. Angerstein (¹ ). 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 l of 1949 the property of Khatoon Bibi who became an 'evacuee' under s. 2(c) and her property 'evacuee property' under s. 2(~) 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 8. 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 repeale9 by the Act which contained provisions as to vesting in · 8(2), w.hch was similarly worded as the correspond; mg provlBlon of the Ordinance and therefore by a fiction of law the original vesting was to be treated as

¶103

Kapur J.

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(1) (1876) 3 Ch. D. 6oo, 6o3.

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104 SUPREME C01JRT REPORTS (1961]

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i96o if the Act was in force when the first vesting took AzimHnissa & 01""'·' case P^lace. (¹ )^The held^High the vesting to e invalid because upto^Courtof b^{Allahabad in}^{Azimunnissa's} the v. time of Ordinance XII of 1949 and even Ordinance The Deputy Cus· XX of 1949 legislative competence was lacking, and todion, Evacuee even by the deeming provisions in s. 8(2) of Ordinance Proterlifs, xxvn of 1949 or Act XXXI of 1950 there was no District Deoria b h · 1 "' Others valid vesting, ecause t e origina vesting was bad. We think it unnecessary to decide as to whether tho Kapur J. deeming provision of s. 8(2) of the Act or ofOrdinanco xxvn 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 'purport' implies.

¶108

The effect of s. 8(2-A) is that what purported to have vest'ed under s. 8(2) of Ordinance XXVII of UJ49 and which is to be deemed to be vested un,der 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 ors. 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(") 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 (t) A.!.R. 1951 All. 561. (2) [1955] 1 S.C.R. 707.

¶109

~! S.C.R. SUPREME COURT REPORTS 105

¶110

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.

¶111

Azimunissa &- Others v. The Deputy Custodian, Evacuee Properties, District Deoria Properties, 6- Others Kapur ].

¶112

It was then argued that by the sale of the property The Deputy Cus- non-evacuees had been illegally deprived of their pro- todian, Evacuee perty and therefore s. 10, cl. (a) contravenes the provi- District Deoria Properties, s:ions of Arts. 31 and 19(l)(f). This contention is equally 6- Others upsubstantial. The relevent provision of s. 10 is as follows:- Kapur ].

¶113

" 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 beha;lf, tB1ke 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,-

¶114

(a) in the case of any claim of a co-sharer or pa.rtner,-

¶115

(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 Chril 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

¶116

(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

¶117

(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

¶118

(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."

¶119

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

¶120

106 SUPREME COURT REPORTS

¶121

[1961]

¶122

'96° to the non-evacuees; and (2) the payment to the Admunissa Custodian by the non-evacuees of the money value of - Ott.m the share of the evacuees were not available to him. v. The former in this case was neither claimed nor could The Deputy Gus-the Custodian be expected to pay such a large sum of todian. Evacuee money to the non-evacuees. The order of the Compe- Propedies. tent Officer of March 20, 1956, shows that the non- Dis1ric1 Deoria h & Others evacuee co-s arers were not prepared to pay to the Custodian the money value of the shares of the eva- Kap"' J. cuees. Of the remaining alternatives the third alternative was the partitioning of the property but that also was rnt 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 a vai!able mode of separation was the one adopted by the Custodian, i.e., by sale of the property and division of the ~ale proceeds. In the circumstances the action of the Competent Officer could not be termed unreasonable or violative of Art. 19(l)(f) nor does it violate Art. 31 because it cannot be said to be deprivation of the non-e.vacuees of their property without the authority of law. · In the result this petition fails and is dismissed with costs.

¶123

•

¶124

Petition· dismissed.

¶125

TOBACCO MANUFACTURERS (INDIA) LTD.

¶126

¶127

October 26,

¶128

THE COMMISSIONER OF SALES-TAX, BIHAR, PATNA.

¶129

(S. K. DAS, M. HIDAYATULLAH, K. c. DAS GUPTA, J.C. SHAH and N. RAJAGOPALA AYYANGAR, JJ.)

¶130

Sales Tax-Sale-Goods delivered outside State for consumption in the State of first delivery-Goods delivered for consumption in other States-Liability to tax-Constitution of India, Art. z86(r)(a) -Bihar Sales Tax Act.

Azimunissa and Others v. the Deputy Custodian, Evacuee Properties, District Deoria. and Others.

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Azimunissa and Others v. the Deputy Custodian, Evacuee Properties, District Deoria. and Others.

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