Judgement

Ghulam Hasan, J. - In order to understand and appreciate the point arising for consideration in this case, it will be necessary to set out a few preliminary facts :

2. One Aboobaker Abdul Rehman, a resident of Bombay, received on 16-12-1949, from the Additional Custodian, Bombay, a notice under S. 7 of Ordinance No. 27 of 1949 calling upon him to show cause why his interest in certain specific property should not be declared to be evacuee property. A further notice issued on 11-1-1950, required him to show cause why he should not be declared an evacuee and all his properties declared to be evacuee properties. On 8-2-1950, the Additional custodian decided that Aboobaker was not an evacuee, but at the same time issued a fresh notice to him under S. 19, requiring him to show cause why he should not be declared an "intending evacuee" and on the following day, February 9 he declared Aboobaker as an "intending evacuee" upon the same evidence. Aboobaker does not appear to have contested this order, but one Tek Chand Dolwani, first informant, carried the matter in appeal to the Custodian General, praying that Aboobaker be declared an evacuee and that the Imperial Cinema, one of his properties, be allotted to him.

3. The Ordinance expired on 18-10-1949, and was replaced by Act 31 of 1950 (The Administration of Evacuee Property Act) which came into operation on 17-4-1950. It is not denied that although the Ordinance was repealed by S. 58, the proceedings taken in the exercise of any powers conferred by the Ordinance shall be deemed to have been taken in the exercise of the powers conferred by the Act as if the Act were in force on the day the proceedings were taken.

4. The appeal was heard on 13-5-1950, when the preliminary objections in regard to the maintainability of the appeal were argued and the appeal was adjourned to May 15 for orders. On May 14, Aboobaker died leaving him surviving three sons and a daughter as heirs under the Mohammedan law, the sons taking 2/7th share each and the daughter 1/7th. On May 15, the Custodian General pronounced the order which was, however, dated May 13. By this order he dismissed the preliminary objections and directed that further enquiries should be made and that Aboobaker be examined further on 19-8-1950. The hearing of the appeal was adjournd from time to time and was fixed for final disposal on 7-3-1951. Notice of this hearing was issued to Ebrahim Aboobaker (son ) and Hawabai Aboobaker (daughter) who owned between themselves 3/7th share to appear as the heirs and legal representatives of the deceased. The petitioners, who are residents of India - their two brothers are said to have migrated to Pakistan-filed on 26-2-1951, Misc. Petn. No. 15 of 1951, in the Punjab High Court for a writ of prohibition or for directions or order directing the Custodian General to forbear from proceeding with the hearing of the appeal or making any order in the said appeal or form declaring the properties left by the deceased as evacuee properties. The petitioners contended inter alia that after the death of Aboobaker the Custodian General had no jurisdiction to proceed with the appeal. The petition was dismissed on 24-5-1951, the High Court holding that the Custodian General had jurisdiction. Leave to appeal was granted but the High Court did not stay the hearing of the appeal by the Custodian General which was fixed for 3-7-1951, and directed that the Custodian General should not pass final orders until 23-7-1951. On July 3, the Custodian General heard the appeal and on July 30 which was the date fixed for final orders he declared Aboobaker to be an evacuee and his properties to be evacuee properties.

5. On 6-8-1951, the petitioners filed a petition (Misc. Petn. No. 191 of 1951) under Art. 226 of the Constitution in the Bombay High Court against the Custodian General and the Custodian Bombay for a writ of certiorari for quashing and setting aside the said order and for an order directing the Custodian Gene