Case: Azimunissa And Others Vs.  The Deputy Custodian, Evacuee Properties, District Deoria And Others

2. The petitioners alleged that the properties in dispute were acquired by Noori 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) Shakrullah ... ... ... 0-5-44. 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 lands". 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 into force. 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 Barkat filed objections but by an order dated March 7, 1951, these objections were dismissed. The order was as follows :-"Objections 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. 8 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 decided5. 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 Assistant 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 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 Bibis 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 Azizunnissa v. Assistant Custodian, (S) AIR 1957 All 561   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.

Court's reasoning:
10. 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 provision 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 Amendment) Act of 1949 and thus this constitutional vaccum 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 Custodian20. 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, 3 Ch D 600 at p. 603. Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not to 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 the 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 if the Act was in force when the first vesting took place. The High Court of Allahabad in Azizunnissas case, (S) AIR 1957 All 561   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 purport implies21. 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 judgment 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 Ahmads case, (1955) 1 SCR 707   : (AIR 1954 SC 728  ) 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 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 invalidThus 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 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, 1958, 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 law.