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1960 Supreme(SC) 252
SUPREME COURT OF INDIA
26th October 1960
B.P. SINHA, C.J.I., J.L. KAPUR, P.B. GAJENDRAGADKAR, K. SUBBA RAO, AND K.N. WANCHOO, JJ.
Azimunnissa and others, Petitioners
Versus
The Deputy Custodian, Evacuee Properties, District Deoria and others, Respondents.
Petition No. 56 of 1958.
Advocates Appeared
Mr. A. V. Viswanatha Sastri, Sr. Advocate (Mr. G. C. Mathur, Advocate, with him), for Petitioners; Mr. C. K. Daphtary, Solicitor-General of India, (R. B. Nanak Chand and Mr. R. H. Dhebar, Advocates, with him), for Respondents Nos. 1 to 3; Mr. C. K. Daphtary, Solicitor-General of India and Mr. Harnam Singh, Sr. Advocate (Mr. I. N. Shroff, Advocate, with them), for Respondent No. 4 Mr. J. P. Goyal, Advocate, for Respondents Nos. 5 to 10.
A.V.VISHWANATHA SASTRI, C.K.DAFTARY, G.C.MATHUR, HAMAM SINGH, I.M.SHROFF, I.P.GOYAL, R.B.NANAK CHAND, R.H.Dhebar
Retrospective legislation using the term "purport" can validate previous acts that appeared valid on their face but were legally invalid due to constitutional incompetence. Additionally, the sale of indivisible composite property to separate evacuee and non-evacuee interests is constitutionally permissible.
Headnote:(A) Administration of Evacuee Property Act, 1950 - Sections 7, 8, 58; Evacuee Interest (Separation) Act, 1951 - Sections 2(d), 2(e), 10(a); Constitution of India - Articles 19(1)(f), 31, 32 - Validation of retrospective legislation - Interpretation of "purport" - The word "purport" indicates what appears on the face of an instrument or act, even if in law it may not be so. Retrospective legislation that validates acts which "purported" to be done in exercise of a power can cure previous invalidity or constitutional incompetence, making the vesting of property valid and ineffective against prior contrary court judgments. (Paras 20, 21)
(B) Evacuee Interest (Separation) Act, 1951 - Section 2(d) - Composite Property - If any interest in a property has been declared to be evacuee property or has vested in the Custodian, and the evacuee's interest consists of an undivided share held as a co-sharer or partner with a non-evacuee, the property is defined as composite property. (Para 8)
(C) Evacuee Interest (Separation) Act, 1951 - Section 10(a)(iii) - Sale of composite property - Where a composite property is indivisible by nature, such as a mill, and other alternatives like payment of money value are not feasible, the sale of the property and distribution of proceeds between the Custodian and the claimant is a reasonable measure for separating interests and does not violate the right to property under the Constitution. (Para 22)
Facts of the case:
Property held by several co-sharers was declared evacuee property after one co-sharer migrated. The property was subsequently treated as composite property under the law. The Competent Officer ordered the sale of the property by auction because it consisted of a sugar mill which was indivisible. The petitioners challenged the validity of the vesting of the property, arguing that the original ordinances used for vesting were constitutionally invalid, and further contended that the sale of the property violated their constitutional rights.
Findings of Court:
The court found that the retrospective amendment introducing Section 8(2-A) to the Administration of Evacuee Property Act validated the previous purported vesting of the property, regardless of any prior legal defects or court decrees. Consequently, the property was correctly classified as composite property. The sale was held to be the only available mode of separation given the nature of the property.
Issues: (1) Whether the property in dispute constituted "composite property" under the Separation Act; (2) Whether the declaration of evacuee interest was valid despite the alleged constitutional incompetence of the original ordinances; (3) Whether the sale of non-evacuee property under Section 10(a)(iii) of the Separation Act contravened Articles 19(1)(f) and 31 of the Constitution.
Ratio Decidendi: The court ruled that the term "purport" in the validating amendment allows for the legalization of acts that were apparently performed but legally invalid at the time. By retrospective effect, the amendment cured the constitutional incompetence of previous ordinances. Since the property was a sugar mill and indivisible, the sale and distribution of proceeds was the only viable method of separation, thus not constituting a deprivation of property without the authority of law.
Result: Petition dismissed.
KAPUR, J. : This is a petition by six persons under Art. 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 :
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 ... ... ... 0-5-4
(f) Khuda Baksh ... ... ... 0-4-3
3. On August 28, 1942, Shakru-ullah created a waqf-alal-aulad in favour of his sons and nominated Abdul Razzaq as Mutwali (Trustee). Shukr-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.
4. 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 decided.
5. 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
