Judgment

SARKAR, J. : One Abdul Hai died about 1943. He left certain immovable properties. He had three wives and children by each. One of his wives predeceased him. On his death the wives and children, surviving him, succeeded to these properties in certain shares. One of the surviving wives and a daughter died subsequently.

2. In appears that the remaining wife of Abdul Hai and his six children by her, went to Pakistan but the time when they did so does not appear. It is not however disputed that they had become evacuees and their shares in the properties could be properly declared evacuee property. A notice under S. 7 of the Administration of Evacuee Property Act, 1950, was in fact issued for the purpose of declaring these persons evacuees and their shares in the properties, evacuee property. Proceedings were taken pursuant to the notice and on August14, 1952, an order was made declaring the migrants evacuees and a 4/7th share in certain properties, evacuee property as belonging to them. Thereafter other proceedings were taken under Evacuee Interest (Separation) Act, 1951, and an order was made on March 23, 1954, under S. 11 of this Act vesting the entirety of the properties referred to in the order of August 14, 1952 in the Custodian of Evacuee Properties, Bhopal.

3. This petition under Art. 32 of the Constitution challenges the validity of the orders of August 14, 1952, and March 23, 1954, as violating the petitioners fundamental right to hold property, to wit, their shares in the properties covered by the orders. It is presented by the surviving children of abdul Hai by his two deceased wives, excepting Abdul Aziz. Abdul Aziz however has been made a respondent to the petition but is not opposing it. It is not in dispute that the petitioners and Abdul Aziz never became evacuees and are entitled to undivided shares in the properties declared to have vested in the custodian in their entirety. The petition is opposed by the other respondents, namely, the Government of India and various officers concerned with the Acts, and it will be convenient to describe them alone as the respondents.

4. The first question raised is as to the validity of the order dated August 14, 1952, made under the Act of 1950. It is said that order is a nullity as the notice under S. 7 of this Act on which it was based, was bad for the reason that it was issued to Abdul Aziz who was, admittedly, not an evacuee. It seems to us that it is unnecessary to decide this question for it is not a matter with which the petitioners are in any way concerned. The proceedings under that Act did not purport to affect their interest in the properties and they cannot, therefore, challenge the order made under it. Further, as we have earlier said, it is not in dispute that the shares of the surviving wife of Abdul Hai and her children in the properties could properly be declared evacuee property under the Act since they had migrated to Pakistan. The order of August 14, 1952 only declared what purported to be their shares, to be evacuee property. By such a declaration no right of the petitioners is affected.

5. The second question raised concerns the order of March 23, 1954, made under the Act of 1951. This order vests the entirety of certain properties left by Abdul Hai including the petitioners shares in them, as evaucee property and, therefore, clearly affects the petitioners. We think that the petitioners grievance against this order is of substance and the order as it stands cannot be sustained.

6. This order was made under S. 11 of the Act of 1951. This Act was passed "to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons are also interested": see the preamble to the Act. It creates an officer called the "Competent Officer for effecting such separation. The disputed order was made by such an officer. Section 2(d) defines "composite property", which, so far as is material, is in t