1957 Supreme(All) 115

HIGH COURT OF ALLAHBAD
DESAI, BEG, JJ.
Azizun Nisa
Versus
Custodian
Civil Misc. Writ No. 2872 of 1956
Decided On : 11-04-1957

Headnote:

The petition is filed challenging the declaration of the property as evacuee property, the order of sale of the property, and the sale held by the Competent Officer. The Court held that the Ordinances declaring the property as evacuee property were unconstitutional and void. The Court also held that the Act authorizing the Competent Officer to sell the property was constitutional. The Court further held that the applicants were guilty of laches and the petition was mala fide. The Court dismissed the petition.

Fact of the Case:

The property in dispute is the Noori Sugar Mills together with the appurtenant buildings and land situated in village Bhatni; it belonged to the family of Moharram Mian and Shukrulla. According to a compromise arrived at between the parties in 1922 Shukrulla got five annas and four pies share and Rahmat Bibi, Khatoon Bibi, Azizun Nisa and Taghma Bibi, about one anna and seven pies share each. Shukrulla made a waqf alal-aulad in respect of his five annas and four pies share in 1941 and named Abdul Razzaq as the first mutwalli and his four sons as the beneficiaries. Khatoon Bibis father and forefathers were born in India; she also was born in India. In December, 1947, she went to Karachi to see her husbands sister Sayeeda Bibi who was said to be seriously ill, leaving her husband Abdul Barkat in India. Before she could return to India restrictions were imposed upon entry into India and a permit system was introduced. On 22-11-1949 the Assistant Custodian, Evacuee Properties, opposite party No. 1, published a declaration that all the property of Khatoon Bibi was evacuee property and called upon the persons in possession to hand it over to the Custodian and Abdul Barkat filed an objection against it. On 5-7-1950 the Assistant Custodian issued a notice to Khatoon Bibi asking her to show cause why she be not declared an evacuee and her property be not declared as evacuee property under the Ordinance. Abdul Barkat filed an objection as his wife was still in Pakistan; on 7-3-1951 the Assistant Custodian dismissed it and declared the property as evacuee property. Khatoon Bibi then came to India on a temporary passport issued by the Pakistan Government. On 20-3-1956 the Competent Officer, Faizabad (opposite party No. 2) held that the share of six pies in the property in dispute claimed by Azizun Nisa as an heir of Rahmat Bibi was evacuee property. Nazir Ahmad and Bashir Ahmed and their father Shukrulla and forefathers also were born in India; they were also declared to be evacuees and their shares in the property in dispute as evacuee property on 14-12-1955. On 15-2-1954 a notice under S. 6 of the Evacuee Interest (Separation) Act (No. LXIV of 1951) (to be referred to as Act No. LXIV) was issued by the Competent Officer to Azizun Nisa inviting her claim to an interest in the Noori Sugar Works, Bhatni, the land on which it stands and a grove standing on certain plots. Similar notices were issued to other co-sharers in the Noori Sugar Works. Several claims were filed and the Competent Officer decided them on 20-3-1956. He held that Azizun Nisa had two annas and nine pies share, Khudaija and Shamshun Nisa eight and a half pies share each. Abdul Majeed two annas and five pies share, Abdul Wahid three annas and five pies share, Khatoon Bibi, two annas and three pies share and Bashir Ahmad and Naisir Ahmad, one anna and four pies share each as beneficiaries. Since Bashir Ahmad and Nasir Ahmad had preferred appeals against their being declared evacuees and the appeal was pending, the Competent Officer ordered that their two annas and eight pies share in the income would vest in the Custodian as evacuee property so long as their appeal was not allowed. Coming to the mode of separation of the interest of the evacuees from that of the non-evacuees in the property in dispute he observed that partition of the Sugar Works was out of question, that the non-evacuees were not prepared to purchase the shares of the evacuees and that sale of the Sugar Works by public auction was the only course left open. He, therefore, ordered sale of the property in dispute by public auction. The auction took place on 13-8-1956 and opposite party No. 3 purchased the property in dispute.

Finding of the Court:

1. The Ordinances declaring the property as evacuee property were unconstitutional and void. 2. The Act authorizing the Competent Officer to sell the property was constitutional. 3. The applicants were guilty of laches and the petition was mala fide.

Issues: 1. Whether the Ordinances declaring the property as evacuee property were constitutional? 2. Whether the Act authorizing the Competent Officer to sell the property was constitutional? 3. Whether the applicants were guilty of laches and the petition was mala fide?

Ratio Decidendi: 1. The Ordinances were unconstitutional and void as they were ultra vires the Governor-General. The Governor-General had no power to make an ordinance in respect of evacuees and evacuee property unless he first brought those matters within the legislative field of the Central Legislature. 2. The Act authorizing the Competent Officer to sell the property was constitutional as it was enacted in order to mitigate the hardship suffered by the non-evacuees; far from their being prejudiced by it they are to be benefited by it. 3. The applicants were guilty of laches and the petition was mala fide as they have been guilty of great laches; they have slept over their rights for five years. They took no steps to have the orders of the Custodian set aside on the ground of the illegality of the Ordinances and of the notices issued under the Act No. XXXI.

Final Decision: The petition is dismissed.