# AZIMUNISSA AND OTHERS v. THE DEPUTY CUSTODIAN, EVACUEE PROPERTIES, DISTRICT DEORIA. AND OTHERS

- **Citation:** [1961] 2 S.C.R. 91
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** B. P. Sinha, J. L. Kapur, P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/azimunissa-and-others-v-the-deputy-custodian-evacuee-properties-district-deoria-1921
- **Pages:** 16

## Headnote

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.
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
Ig6o
October 26.
A zi11iu11tssa
b Others
92
SUPREME COUHT REPORTS
[1961]
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.
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,
t~ac
evacuee under s. 2(c) of the U. P. Ordinance, her property autorop" ies,
·
11
t d · th C t d'
d
d 't
·
D. t . 1 D
.
mat1ca y ves e 1n
e us o 1an un er s. 5 an I was cont1nu-
";'~•h eoria ed under the Central Ordinance XII of 1949· Even if these
"'
two Ordinances were bad for legislative incompetence the pur-
(
ported vesting thereunder was continued under Central Ordinar.ce XXVII of 1949 and thereafter under Central Act XXXI
I
of 1950 and any legal defect in such vesting was cured by
\-
Central Act I of 1960.
·
,T
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.
ORIGINAL JURISDICTION:
Petition No. 56 of 1958.
Petition under Article 32 of the Constitution of
India for enforcement of Fundamental rights.
A. V. ViBwanatha Sastri and G. C. Mathur, for the
petitioners.
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 I. N. 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

## Text

2 S.C.R. SUPREME COURT REPORTS
91
AZIMUNISSA AND OTHERS
v.
THE DEPUTY CUSTODIAN, EVACUEE
PROPERTIES, DISTRICT DEORIA.
AND OTHERS.
(B. P. SINHA, C. J., J. L. KAPUR,
P. B. GAJENDRAGADKAR, K. SUBBA RAO and
K. N. WANCHOO, JJ.)
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.
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
Ig6o
October 26.
A zi11iu11tssa
b Others
92
SUPREME COUHT REPORTS
[1961]
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.
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,
t~ac
evacuee under s. 2(c) of the U. P. Ordinance, her property autorop" ies,
·
11
t d · th C t d'
d
d 't
·
D. t . 1 D
.
mat1ca y ves e 1n
e us o 1an un er s. 5 an I was cont1nu-
";'~•h eoria ed under the Central Ordinance XII of 1949· Even if these
"'
two Ordinances were bad for legislative incompetence the pur-
(
ported vesting thereunder was continued under Central Ordinar.ce XXVII of 1949 and thereafter under Central Act XXXI
I
of 1950 and any legal defect in such vesting was cured by
\-
Central Act I of 1960.
·
,T
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.
ORIGINAL JURISDICTION:
Petition No. 56 of 1958.
Petition under Article 32 of the Constitution of
India for enforcement of Fundamental rights.
A. V. ViBwanatha Sastri and G. C. Mathur, for the
petitioners.
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 I. N. 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 :-
/•
"
-
Hingan Mia.n
I
I
I
Moharram Main
Shukrullah (d. 1945)
I
Khuda Bux
I
I
I
I
Lutf Ahmad
I
I
I
I
I
1------ , -------
I
Abdul
Bashir
Na.sir
Razzaq
Ahmad
Ahmad
--,
Noori Mia.n=Rehma.t
Bibi (d. 1953)
L.
I
~l~~-__,I
I~_
I
Nazir
Ahmad
Azimunnisa
Kha.toon Bibi
Ta.ghma. Bibi (d)
=Ma.qbool Ahmad
=Abdul Barkat
I
I
I
Shamsun Nisa
---1
Khuda.ija. Bibi
I
Majid
I
------r--- ---- --- --i- -- ------1
Aiysha. -Khatoon
Qamar-un-Nisa
Tehzib-un-Nisa.
Md. Ahmad
t-:)
00
h
~
00
d
Ii:;
!;d
tz'j
;s:
tz'j
0 0 d
!;d
1-3
!;d
tz'j
Ii:;
0
!;d
1-3
00
\
~
c:.:i
94
SUPREME COURT REPORTS
[1961]
'
79 60
The petitioners alleged that the properties in dispute were acquired bv Noori Mian and after his death
Azimunissa
J
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 :-
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
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.
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,
•
2 S.C.R. SUPREME COURT REPORTS
95
1951, these objections were dismissed. The order was
r960
as follows :-
A :imunissa
" Objection dismissed.
Admittedly Bibi Khatoon
&- Others
is an evacuee. The notice is hereby confirmed and
v.
the property (sufficiently although not thoroughly) The Deputy Cusdescribed in the notice is hereby declared to be todian, Evacuee
evacuee property".
Properties,.
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.
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
96
SUPREME COURT REPORTS
[1961]
'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.
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.
(1) A.I.R. 1957 All. 561.
2 S.C.R. SUPREME COURT REPORTS
97
Three questions were raised on behalf of the petiI960
tioners: (1) that the property was not composite proAzimunissa
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 Custhe various provisions of law and therefore the provitoaii1n, 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.
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) ""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."
and "evacuee interest" is defined ins. 2(e) as:
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
98
SUPREME COURT REPORTS
[1961]
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 Deana C
d'
( 6(2))
A Kh t
B'b'
& Oth
usto 1an s.
.
s
a oon
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
I
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.
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
XII of 1949 which was the saving provision.
(1) A.I.R. 1957 All. 561.
•
2 S.C.R. SUPREME COURT REPORTS
99
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 Cusfrom 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 :-
·
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 ".
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 Custodian.
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
SUPREME COURT REPORTS
[1961]
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 :-
The. Deputy GusS. 8(2) " Where immediately before the comtod•••. faacute mencement of this Ordinance, any property in a proProperties
•
h d
t d
.
Dist>ict Deo;;. vmce .. a vhes e
as evfacueCe prod:r.erty mdany per
1
son
& Others
exermsmg t e powers o a
usto 1an un er any aw
repealed hereby, the property shall, on the commenceKopur J.
ment of this Ordinance be deemed to be evacuee
property declared as such within the meaning of this
I
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 dispose~ of as if the definitions of 'evacuee property ' and • 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 t.he consequence of s. 8(2) was that property vested under Ordinance XXVII was deemed to
2 S.C.R. SUPREJ\IE COURT REPORTS
101
;:::
be vested under the corresponding provision of the
1960
Act.
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 cuswhich was in the following terms:-
todian, Evacuee
(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
::1
have vested as evacuee property in any person exerh'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".
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):-
' '
" A statute void for unconstitutionality is dead
and cannot be vitalised by a subsequent amendment
(1) [19.55] I S.C.R. 707, 728.
102
SUPREME COURT REPORTS
[1961]
'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.
' $
-t
./
2 S.C.R. SUPREME COURT REPORTS
103
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 Cussuch within the meaning of the Act and any order tudian,
E~acuee
made or action taken by the Custodian must be deemProperties,.
.
d
k
District Deoria
ed to have been vahdly ma e or ta en.
..,. Others
The word " purport " has many shades of meaning.
It means fictitious, what appears on the face of the
Kapur J.
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.h~ch 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
(1) (1876) 3 Ch. D. 6oo, 6o3.
104
SUPREME C01JRT REPORTS
(1961]
i96o
if the Act was in force when the first vesting took
Place. The High Court of Allahabad in Azimunnissa's
AzimHnissa
b
& 01""'·'
case (1) held the vesting to e invalid because upto 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.
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.
•
~! S.C.R. SUPREME COURT REPORTS
105
vested in the Custodian. Therefore the property in
dispute does fall within the definition of composite
Azimunissa
property as given in s. 2(d) and cannot be held to be
&- Others
invalid.
v.
It was then argued that by the sale of the property The Deputy Cusnon-evacuees had been illegally deprived of their pro- todian, Evacuee
Properties,
District Deoria
6- Others
perty and therefore s. 10, cl. (a) contravenes the provis:ions of Arts. 31 and 19(l)(f). This contention is equally
upsubstantial. The relevent 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 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,-
(a) in the case of any claim of a co-sharer or
pa.rtner,-
(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
(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
Kapur ].
106
SUPREME COURT REPORTS
[1961]
'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 CompePropedies.
tent Officer of March 20, 1956, shows that the nonDis1ric1 Deoria
h
& Others
evacuee co-s arers were not prepared to pay to the
Custodian the money value of the shares of the evaKap"' J.
cuees. Of the remaining alternatives the third alternative was the partitioning of the property but that also
was
rn~t 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 authoOctober 26,
rity of law.
·
In the result this petition fails and is dismissed with
costs.
Petition· dismissed.
TOBACCO MANUFACTURERS (INDIA) LTD.
v.
THE COMMISSIONER OF SALES-TAX,
BIHAR, PATNA.
(S. K. DAS, M. HIDAYATULLAH, K. c. DAS GUPTA,
J.C. SHAH and N. RAJAGOPALA AYYANGAR, JJ.)
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.