Judgement

ALAGIRISWAMI, J :- Mrs. Zohra Naqvi the wife of Police official of the then United Provinces (Now Uttar Pradesh) was in Teheran in the year 1947 along with her husband. She purchased a property from the Improvement Trust Lucknow for a sum of Rs. 6,400/-. It appears that Mrs. Naqvi did not come to India at all till 1962 when she sold this property to the sons of respondent No. 1 and one Mrs. Jain. On 24-6-1949 the United Provinces Adminsistration of Evacuee Property Ordinance, 1949 came into force.

2. This would be a proper stage at which the relevant provisions of the Ordinance should be noticed. Under that Ordinance evacuee property" means any property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument and an "unauthorised person", means any person (whether empowered in his behalf by the evacuee or otherwise) who after the 15th day of August 1947 has been occupying supervising or managing the property of an evacuee without the approval of the Custodian. Under Section 5 of that Ordinance all evacuee property situate in the United Province shall vest in the custodian.

3. We may now continue the narration of events. Before the purchase of this property the 1st respondent had applied to the 1st Appellant to be informed whether the property in question is an evacuee property and received a reply in the negative. But on 25-3-1963 the 1st appellant passed an order declaring the property as an evacuee property. It should be noticed that an evacuee property. It should be noticed that an evacuee property automatically vests in the Custodian under Section 5 and the notification under Section 6 of the Ordinance is not a necessary condition for such vesting. Section 6 only enables the Custodian to notify the properties which have already vested in him under the Ordinance. On 7.3.1964 a notification was issued acquiring the disputed plot under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The 1st respondent filed a revision petition to the Assistant Custodian General who directed that the property should be handed over to the 1st respondent but that the sum of Rs. 42,000/- being the sale price of the property, which had been deposited with the Allahabad Bank, Lucknow could be taken by the Custodian. The 1st respondent s application to the 1st appellant to issue a sale certificate in his favour not having produced any result he filed a writ petition out of which this appeal arises. The petition was dismissed by a learned Judge of the Allahabad High Court but on appeal a Division Bench of the High Court allowed the respondents appeal. This appeal has been filed on the basis of a certificate granted by the High Court.

4. The learned Single Judge took the view that Mrs. Vaqvi was an evacuee because she had left Uttar Pradesh after the 1st day of March 1947 to a place outside the territories of India. The Assistant Custodian General had also taken a similar view when the revision petition was filed by 1st respondent before him. The Division bench on the other hand took the view that as Mrs. Naqvi had not left the United Provinces on or after 1st march 1947 but her husband had been posted in Teheran since some time in 1942 and she had migrated to Pakistan from Teheran after 1st March 1947 it would not make her evacuee under Section 2 (c) (i) of the Ordinance. It was urged before the Bench that she would be an evacuee under Section 2 (c) (ii) of the Ordinance but the Bench refused to consider that question.

5. Thus the first question to be decided is whether Mrs. Naqui was an evacuee. As it is clear that she left the United provinces even before the 1st March 1947 and was in Teheran till she left for Pakistan from there, clause 2 (c) (i) would not apply to her but clearly clause 2 (c) (ii) would apply to her. There is no doubt that she was resident in Pakistan after the partition of India and she was therefore unable to occupy supervise or manag