In the absence of any action taken under the relevant laws prior to the issuance of a notice under Section 7 of the Administration of Evacuee Property Act, 1950, the property in question did not vest in the Custodian, and the provisions of Section 8 (2) of the Act could not have retrospective effect in the absence of any positive action taken or effective decision given under the relevant provisions.

( 1 ) THIS is a petition under Article 226 of the Constitution and is directed against the Custodian 'and Assistant Custodian, Evacuee Property, Indore.

( 2 ) THE petitioners are four in number, Petitioners Nos. 1, 3 and 4 claim to be the joint owners of House No. 1/163 situated in Kasaiwada and No. 689, Chowk Bazar of Shajapur while petitioner No. 2 claims to have an interest of a mortgagee thereon. The circumstances in which the petitioners seek to quash the orders of the opponents with reference to the above mentioned house tire as under: the house initially belonged to one Sharafali who died leaving behind his widow, daughters and sons. Three of his sons namely Alimohammad, Abbas and Fida hussain were, on Credible information, believed to have migrated to Pakistan. Notices were issued by the Assistant Custodian Evacuee Property under Section 7 of the Administration of Evacuee Property Act on 1-4-1955. The petitioners objected to the declaration of the said property as evacuee property. However the assistant Custodian by his order dated 19-2-1956 declared the aforesaid three sons of Sharafali as evacuees under Section 2 (d) (ii) of the Act and their property as evacuee property. Appeal preferred by two of the petitioners named Hatimali and Rubabbai against the order of Assistant Custodian dated 19-2-1956 was dismissed on 29-9-1956. A revision petition was preferred against this decision to the Deputy Custodian general Evacuee Property who by his order dated 4-1-1957 held that in view of the Administration of Evacuee Property (Amendment) Act No. 42 of 1954 the three sons of Sharafali could not have been declared as evacuees and their property could not have been declared evacuee property after 7-5-1954 under Section 2 (d) (ii) of the Act. The Deputy Custodian General however observed:

"it is, however, to be noted that according to the evidence led and the findings given, the above mentioned persons went before 1947 to karachi and were carrying on business there at the date of partition. They would therefore be residing in West Pakistan at that time. They would be evacuees according to the present definition as given in section 2 (d) (ii) and if there were corresponding provisions under the old Madhya Bharat Law, then the property can be taken to have automatically vested. This aspect of the case has not been examined, and the petitioners' plea is that they had no opportunity of meeting the same. I would accordingly accept this revision petition and send back the case to the Assistant Custodian with the direction that the petitioners may be allowed to file written statements raising such objections as they may like and the case may then be disposed of according to law".

On remand an objection was raised on behalf of the petitioners before the assistant Custodian that Ordinance No. 27 of 1949 was ultra-vires the powers of governor-General of India so far as erstwhile Madhya Bharat Region was concerned. This objection. Was not considered on the ground that it was outside the ambit of enquiry permitted by the Deputy Custodian General in his order of remand. The Assistant Custodian then referred to Ordinance No. 56 of 1949 which came in force in the Madhya Bharat Region on 9-8-1949 and remained in force until it was repealed by Ordinance No. 27 of 1949 on 18-10-1949. According to him by Section 2 of Ordinance No. 50 of 1949Alimohammad and fidahussain sons of Sharafali were evacuees they having become residents of karachi since last 20 years and that their property automatically vested in the custodial Evacuee Property under Clause 5 of the Ordinance and the same continued so to vest under Section 8 (2) of the present Act. He accordingly declared by his order dated 31-10-1957 that steps in respect of the management of the properties would be taken under Section 8 of the Act. An appeal preferred against that decision was rejected by the Custodian by his order dated 2-4-1958 on the ground that it was incompetent. The rea