No. 96 of 1959.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
750 section Shaukat Hussain and P. C. Aggarwala, for the petitioners N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents.
April 4.
The Judgment of the Court was delivered by SARKAR, J.
This is a petition raising a question of violation of the fundamental right to hold property guaranteed by article 19 (1) (f) of the Constitution.
It arises out of an order made under the , declaring two houses to be evacuee property.
What had happened was that sometime in September, 1951, two notices were issued under section 7 of the Act addressed respectively to Nusrat Ali and Fateh Ali, requiring them to show cause why they should not be declared evacuees and their properties, being the two houses in dispute, to be evacuee property.
Neither of these two persons having appeared, a declaration was made by the Custodian on January 10, 1952, under that section that Nusrat Ali and Fateh Ali were evacuees and the houses were evacuee property.
Upon such declaration the houses vested in the Custodian under the provision of section 8 of the Act and he took possession of them.
These houses were the property of one Khadim Ali who had never been declared an evacuee and had died on or about October 1, 1950, leaving three sons and five daughters, who thereupon became entitled to them in certain shares.
Nusrat Ali and Fateh Ali were two of the sons of Khadim Ali.
The Petitioners are his other son and two of his daughters.
No notice under section 7 had at any time been issued to them nor were they ever declared to be evacuees.
These facts are not in dispute.
The Petitioners contend that they have been wrongly deprived of their rights in the houses by the action of the Custodian.
They say that for a, long time they had no knowledge of the proceedings taken under the Act in respect of the houses and when they came to know of the order of the Custodian, they took various steps to protect their rights but were unsuccessful.
751 One of such steps appears to have been an appeal preferred by the male petitioner on behalf of all the petitioners to the Custodian General against the order of January 10, 1952.
On this appeal being rejected, they moved this Court by the present petition.
The question is whether the Custodian was entitled to declare the entirety of the two houses evacuee property and deprive the petitioners of their rights in them.
It is well established and not disputed, that no property of any person can be declared to be evacuee, property unless that person had first been given a notice under B. 7 of the Act: see Ebrahim Aboobaker vs Tek Chand Dolwani (1).
Admittedly, no such notice had been issued to the petitioners.
Their interest in the houses, therefore, could not have vested in the Custodian.
Learned counsel for the respondents, the officers concerned with evacuee properties, concedes that so far as the female petitioners were concerned, their interest could not in any way be affected by the order made under section 7 of the Act.
He however contends that the male petitioner, Zafar Ali, having filed the appeal to the Custodian General against the order of January 10, 1952, he personally at least, is bound by the order dismissing the appeal, that order being a quasi judicial decision.
It is said that be cannot, there fore, maintain this petition.
We do not think that this contention is well founded.
Zafar Ali was not a patty to the proceeding in which the order in dispute had been made.
Strictly speaking, no appeal by him against that order lay or was necessary.
Then again the appeal did not decide any question as to the right of Zafar Ali to the houses for, it was dismissed on the sole ground that it bad been filed beyond the time prescribed for it.
There was no judicial determination by the Custodian General of any fact affecting Zafar Ali 's right in the houses.
If, as was conceded, Zafar Ali 's share in the houses could not vest in the Custodian without due notice to him, then we are unable to appreciate how the position becomes different because Zafar Ali filed an appeal (1) ; , 702. 752 which was dismissed as time barred and which he need never have filed at all.
The order of January 10, 1952, was without jurisdiction so far as Zafar Ali 's share in the house was concerned, and it remained so in spite of the appeal.
In our view, the appeal furnishes no answer to the claim made in the petition.
As no notice had been issued to the petitioners under section 7, their interest in the two houses never vested in the Custodian.
The acts of the Custodian in so far as they deprive the petitioners of their property cannot be upheld.
It was also said on behalf of the respondents that the properties had already been acquired under the , and therefore the petitioners had, no longer, any claim to them.
Sub section (2) of section 12 of this Act provides that "On the publication of a notification under sub section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances.
" It was said that a notification mentioned in this section had been issued.
It seems to us that this section does not affect the petitioners ' rights.
It only affects the rights of an evacuee which the petitioners, on the admitted facts, are not.
We may mention here that the petitioner Zafar Ali claims that his father left a will giving him a larger share in the houses than he would have got on intestacy.
We are not concerned in this case with his rights under the will, if any, and say nothing about them.
In the result, we allow the petition and set aside the order of January 10, 1952, in so far as it affected the rights of the petitioners in the properties concerned.
There will be no order as to costs.
Petition allowed.


Summary:
The Custodian of evacuee properties made a declaration that two houses were evacuee properties.
Notice under section 7 of the , which initiated the proceedings resulting in the declaration had been served on two persons as owners.
These persons did not appear and contest the proceedings.
The petitioners claimed to be entitled to certain shares in the houses.
No notice under section 7 Of the Act had at any time been served on them and they had never been declared evacuees.
One of the petitioners filed an appeal under the Act to the Custodian General which was dismissed as time barred.
The petitioners then filed a petition under article 32 Of the Constitution of India on the ground that they were being wrongfully deprived of their shares in the houses.
Held, that as no notice under section 7 of the Act had been ser ved on the petitioners, their shares in the houses had never become evacuee property nor vested in the Custodian.
The petitioner who had filed the appeal did not thereby lose his rights in the houses either as the appeal did not decide any question as to such rights but was dismissed on the sole ground that it was filed beyond the time prescribed for it.
Strictly, no appeal by him lay as he was not a party to the proceeding resulting in the declaration.
Section 12 of the , only affects the rights of an evacuee in his property.
The notification made under that section did not have the effect of extinguishing the petitioners ' rights in the houses as they had never been declared evacuees.
Ebrahim Aboobaker vs Tek Chand Dolwani, ; , referred to.