Azimunissa And Others vs The Deputy Custodian, Evacuee Properties, District Deoria

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Petition No. 56 of 1958

Decision Date: 26 October 1960

Coram: J.L. Kapur, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.N. Wanchoo

In the case titled Azimunissa and Others versus the Deputy Custodian, Evacuee Properties, District Deoria, the Supreme Court of India delivered its judgment on 26 October 1960. The judgment was authored by Justice J L Kapur, and the bench comprised Justices J L Kapur, Bhuvneshwar P Sinha, P B Gajendragadkar and K N Wanchoo. The petitioner, identified as Azimunissa and others, contested the actions of the respondent, the Deputy Custodian of Evacuee Properties in the District of Deoria. The official record notes the date of the judgment as 26/10/1960 and again lists the bench as Justice Kapur, Justice Sinha, Chief Justice Bhuvneshwar P, Justice Gajendragadkar, Justice Subbarao P B and Justice K N Wanchoo. The case is reported in the 1961 volume of the All India Reporter at page 365 and in the Supreme Court Reports (Second Series) at page 91 of the 1961 edition. Additional citator references include F 1967 SC1244 (7), RF 1970 SC 413 (6) and F 1983 SC 259 (18). The primary statutory context involved the Evacuee Property legislation, specifically issues concerning automatic vesting under an Ordinance later declared invalid, the continuation of such vesting under subsequent enactments, and the validation of those continuations. The dispute also addressed the separation of evacuee interest, the concept of composite property, the sale of the non‑evacuee portion, and whether these actions infringed the fundamental rights guaranteed by Articles 19(1)(f) and 31 of the Constitution of India. The headnote summarises the factual backdrop: an individual referred to as K held a two‑thirds share in certain properties located in Uttar Pradesh and migrated to Pakistan in 1947. The competent officer, invoking the Evacuee Interest (Separation) Act of 1951, sought to separate K’s share; when the remaining claimants declined to purchase K’s portion, the officer auctioned the entire property under section 10 of that Act. The petitioners argued that K was not an evacuee, that the property did not qualify as composite property, that the proceedings under the Separation Act were void, and that section 10 of the Act contravened Articles 31 and 19(1)(f) of the Constitution. The respondents countered that K’s interest automatically vested in the Custodian under Uttar Pradesh Ordinance 1 of 1949, that this vesting was perpetuated by Central Ordinance XII of 1949, Central Ordinance XXVII of 1949 and the Central Act of 1950, and that any defect in the original vesting was cured by the Central Act of 1960. They further maintained that the property therefore constituted composite property and that the auction conducted under the Separation Act was proper. The petitioners responded that Uttar Pradesh Ordinance 1 of 1949 and Central Ordinance XII of 1949 were ultra vires because of lack of legislative competence, and consequently no legal vesting could arise from those provisions to be carried forward by later statutes. The Court held that the property was indeed composite property and that the auction carried out under the Separation Act was valid. The Court also affirmed that K qualified as an evacuee under section 2(c) of the Uttar Pradesh Ordinance, and consequently her interest vested automatically in the Custodian.

The Court observed that the property in question had vested in the Custodian of Evacuee Property pursuant to section 5 of the relevant legislation, and that this vesting was subsequently continued by Central Ordinance XII of 1949. The Court further explained that, even assuming that the two Ordinances of 1949 were constitutionally infirm because of legislative incompetence, the alleged vesting under those Ordinances was nevertheless carried forward by Central Ordinance XXVII of 1949, then by Central Act XXXI of 1950, and that any remaining defect in the chain of vesting was cured by Central Act 1 of 1960. In addition, the Court held that section 10(a) of the Separation Act did not infringe Articles 31 and 19(i)(f) of the Constitution and, consequently, the provision was not void. Because the petitioners declined to purchase the share belonging to K, the Court found that the Competent Officer acted lawfully in disposing of the property through a public auction.

The judgment originated in the original jurisdiction as Petition No. 56 of 1958, filed under Article 32 of the Constitution of India for enforcement of fundamental rights. Counsel for the petitioners were A. V. Viswanatha Sastri and G. C. Mathur. Representing respondents 1 to 3 were C. K. Daphtary, Solicitor‑General of India, together with R. B. Nanak Chand and R. H. Dhebar. Respondent 4 was represented by C. K. Daphtary, Solicitor‑General of India, Harnam Singh and A. T. Shroff. Respondents 5 to 10 were appeared for by J. P. Goyal. The judgment was delivered on 26 October 1960 by Justice Kapur. The petition was presented by six individuals seeking a writ of certiorari to call for the records containing certain orders and a mandamus directing the respondents to restore the disputed property. A pedigree table was provided to clarify the family relationships, listing ancestors such as Hingan Mian, Moharram Main, Shukrullah (deceased 1945), Abul Bashir, Nasir, Nazir, Majid, Razzaq, Ahamad, Khuda Bux, Noori Mian, Rehmat Bibi (deceased 1953), Azimunnisa, Khatoon Bibi, Taghma Bibi, Maqbool Ahamad, Abdul Barkat, Shamsun Nisa, Khudaija Bibi, Lutf Md. Ahamad, Aiysha, Qamar‑un‑Nisa, Tehzib‑un‑Nisa and Ahamad Khatoon. The petitioners alleged that the contested lands had been acquired by Noon Mian, and after his death a compromise among family members fixed the respective shares as follows: Rehmat Bibi, widow – 0‑1‑6; Taghma Bibi – 0‑1‑5; Khatoon Bibi – 0‑1‑9; Azimunnissa – 0‑1‑9; Shukrullah – 0‑5‑4; Khuda Baksh – 0‑4‑3. On 28 August 1942, Shakru‑ullah created a waqf‑al‑aulad in favour of his sons and appointed Abdul Razzaq as mutawalli (trustee). Shakru‑ullah died in 1945. In 1947, Khatoon Bibi, one of the petitioners, travelled to Karachi ostensibly to care for her husband’s ailing sister. On 22 November 1949, a notice was served on Khatoon Bibi, her manager and servants declaring her an evacuee and directing her to surrender possession of her property described as “Bhatni Noori (Chini Mills, zamindari and kashtkari land).” Her husband Abdul Barkat lodged objections, but no order appears to have been issued on those objections. Subsequently, on 17 April 1950, the Administration of Evacuee Property Act 1950 (XXXI of 1950) came into force.

The Administration of Evacuee Property Act, 1950, had come into force, and subsequently, on 5 July 1950, the Deputy Custodian of Evacuee Property for Deoria issued a notice to Khatoon Bibi requiring her to show cause why she should not be declared an evacuee and why her entire property should not be treated as evacuee property. It was alleged that the notice failed to describe the property and therefore was ineffective, a claim that the respondents expressly denied. In their sworn affidavit, the respondents asserted that the notice fully specified and identified the property and that the notice of 5 July 1950 was issued as a precaution; they further contended that Khatoon Bibi’s property had become evacuee property and had automatically vested in the year 1949. Objections raised against this notice, including those submitted by Abdul in 1951, were dismissed, and the order recorded stated: “Objection 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 filed against that order. On 8 January 1953, a notice under section 7 of the Act was served on Bashir Ahmad and Nasir Ahmad, and by an order dated 14 December 1955 both men were declared evacuees and their interests in the lands were declared evacuee property. That order, issued by the Assistant Custodian (Judicial), demonstrated that the properties were described in the notice and held that both Bashir Ahmad and Nasir Ahmad were evacuees whose interest in the property was evacuee property; however, because the property was composite, the precise shares were left to be determined by the Competent Officer. The two evacuees appealed to the Custodian of Evacuee Property, Uttar Pradesh, and that appeal remained pending. Thereafter, the Competent Officer initiated proceedings under the Evacuee Interest (Separation) Act (64 of 1951), hereinafter referred to as the Separation Act. Notices issued under section 6 of the Separation Act on 15 February 1954 were served on the persons named, and those persons filed separate claims asserting various shares in the property. By an order dated 20 March 1956, the Competent Officer declared the shares of the various evacuees and non‑evacuees and held that, since the claimants were not prepared to purchase the evacuees’ shares in the disputed property, the only possible mode of partition was a public auction. The Officer gave detailed directions on how the property constituting the waqf‑alal‑aulad should be separated. With respect to valuation, the Officer referred to the assessment made by the Assistant Valuation Officer, who placed the value of the construction and lands at Rs 7,41,300, and to the assessment made by the Superintendent of the Valuation Office, who placed the combined value of machinery, lands and buildings at Rs 14,15,000. The Officer tentatively fixed the overall valuation at Rs 14,15,000 and referred the matter back to the Superintendent for a final valuation. Finally, the Officer held that Khatoon Bibi’s share in the property was 0‑2‑3 and

The Competent Officer also determined the interests of Bashir Ahmad and Nasir Ahmad and, on that basis, ordered that the whole property be disposed of by public auction. An appeal against this order was lodged with the Appellate Officer. Subsequently, on 13 August 1956, the contested property was sold at auction to respondent number three for the sum of Rs 16,05,000. The petitioners, Azimunnissa and Abdul Wahid, filed objections to the sale; however, the Competent Officer dismissed those objections on 1 October 1956. The petitioners then sought a revision of the dismissal before the Appellate Officer, but both the original dismissal and the revision were rejected on 24 October 1957.

In the interim, the petitioners filed, on 27 September 1956, a writ petition under Article 226 before the High Court of Allahabad. In that petition they challenged the legality of the proceedings that had been carried out under the Separation Act as well as the order of the Competent Officer that had directed the sale. While the High Court ruled in favour of the petitioners on several of the issues raised, it ultimately dismissed the petition on the ground that the petitioners were guilty of laches. The Court observed that the petitioners had remained inactive for five years, had waited until no further notices could be issued under the Act, and had failed to take appropriate steps with respect to the various orders that had been passed.

Following the High Court’s decision in Azimunnissa and Ors. v. Assistant Custodian (1), the petitioners applied for special leave to the Supreme Court, also contesting the order of the Appellate Officer. Both applications for special leave were dismissed on 10 February 1958. The petitioners now approach this Court under Article 32 seeking a writ of certiorari on four specific grounds: (1) to set aside the order of the Assistant Custodian of Deoria dated 7 March 1951 that dismissed the objections of Khatoon Bibi; (2) to annul the order of the Competent Officer dated 20 March 1956 and the order of the Appellate Officer dated 24 October 1957; (3) to nullify the sale proceedings that culminated in the sale dated 13 March 1956; and (4) to issue a mandamus directing the respondents to restore possession of the property to the petitioners.

The petitioners framed three principal questions for consideration. First, they contended that the property in dispute did not constitute “composite property” within the meaning of the Separation Act. Second, they argued that the shares allotted to Khatoon Bibi, Bashir Ahmad and Nasir Ahmad had not been validly declared as evacuee interests under the applicable statutes, and consequently the provisions of the Separation Act were inapplicable. Third, they submitted that Section 10(a)(iii) of the Separation Act, insofar as it mandated the sale of non‑evacuee property, violated Articles 19(1)(f) and 31 of the Constitution and was therefore unconstitutional. The resolution of the case hinges primarily on whether the contested property qualifies as composite property. For this purpose, the Court examined the definition provided in Section 2(d) of the Separation Act, which defines “composite property” as any property in which an interest has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property.

In the judgment the Court first explained the meaning of “composite property” and “evacuee interest” as defined in the Property Act of 1950. Section 2(d) stated that composite property meant any property in which an interest had been declared to be evacuee property or had vested in the Custodian under the Administration of Evacuee Property Act. Section 2(e) clarified that an evacuee’s interest in a composite property comprised the right, title and interest of every evacuee in that property. Consequently, the Court held that once it was shown that any portion of the land in question had been declared evacuee property or had vested in the Custodian, the whole estate became a composite property. To decide whether any part of the disputed land qualified as evacuee property, the Court said it was necessary to examine the statutes that dealt with evacuee property. The land lay in the former United Provinces, and the first law applicable there was the United Provinces Administration of Evacuee Property Ordinance of 1949 (U.P. Ordinance No. 1 of 1949), issued on 24 June 1949. That ordinance contained definitions of “evacuee” and “evacuee property” that were later incorporated into subsequent statutes. Under section 5 of that ordinance, all evacuee property situated in the United Provinces automatically vested in the Custodian, and section 6(2) deemed any person holding such property to be holding it on behalf of the Custodian. Because Khatoon Bibi was classified as an evacuee by section 2(c) of the U.P. Ordinance, her share automatically vested in the Custodian pursuant to section 5. The petitioners successfully challenged the validity of this ordinance before the Allahabad High Court in the case of Azimunissa v. Assistant Custodian, arguing that the Seventh Schedule of the Constitution Act 1935 contained no entry for evacuee property and that the Governor‑General had not issued the public notification required by section 104 of that Constitution Act. The U.P. Ordinance therefore expired on 23 August 1949. Subsequently, on 13 June 1949 the Governor‑General promulgated the Administration of Evacuee Property (Chief Commissioners’ Provinces) Ordinance XII of 1949, which was extended to the United Provinces on 23 August 1949 by Ordinance XX of 1949 after the provincial legislature passed a resolution under section 103 of the Constitution Act. Section 5 of Ordinance XII provided that, subject to the ordinance’s terms, all evacuee property in a province would vest in the Custodian for that province, and that any property already vested in a person exercising Custodian powers under a previous law would, on the commencement of the ordinance, be deemed to have vested in the Custodian appointed for that province. Ordinance XX added section 41 to the earlier ordinance. Accordingly, despite the lapse of the U.P. Ordinance, Khatoon Bibi’s property was deemed vested in the Custodian under the provisions of Ordinance XII of 1949 as amended. However, the Court noted that this ordinance suffered from the same constitutional defect as the earlier U.P. Ordinance. On 25 August 1949 the Government of India Act (Third Amendment) Act inserted item 31‑B, relating to “evacuees,” into the concurrent list, thereby removing the constitutional vacuum. Thereafter, on 18 October 1949 the Governor‑General promulgated the Administration of Evacuee Property Ordinance XXVII of 1949, which repealed Ordinance XII. Section 7 of this new ordinance dealt with the declaration of evacuee property, and section 8 provided for the vesting of such property in the Custodian. The Court then proceeded to quote the relevant portion of section 7.

The Court observed that Section 8 of Ordinance XX inserted section 41 into the earlier Ordinance, as reported in A. I. R. 1957 All 561. Consequently, under Section 5, even though the Uttar Pradesh Ordinance had expired, the property belonging to Khatoon Bibi was treated as having vested in the Custodian pursuant to the provisions of Ordinance XII of 1949. However, the Court noted that Ordinance XII of 1949, as amended by Ordinance XX of 1949, suffered the same constitutional flaw that had afflicted the Uttar Pradesh Ordinance 1 of 1949. To remedy the constitutional gap, the Government of India Act (Third Amendment) Act 1949 added item 31‑B, relating to “evacuees,” to the concurrent list on 25 August 1949. Thereafter, on 18 October 1949, the Governor‑General issued the Administration of Evacuee Property Ordinance (XXVII of 1949), which expressly repealed Ordinance XII of 1949. Section 7 of this new Ordinance authorized the Custodian, after giving prescribed notice to interested parties and conducting an inquiry as circumstances required, to issue an order declaring any property to be evacuee property. Section 8 provided that any property so declared would vest in the Custodian. Moreover, Section 8(2) stipulated that if, immediately before the Ordinance’s commencement, any evacuee property in a Province had already vested in a person exercising Custodian powers under a repealed law, such property would, on the commencement of the Ordinance, be deemed to have vested in the Custodian appointed—or deemed to have been appointed—for that Province and would continue to vest therein. The Court emphasized that these provisions marked a material departure from the earlier Ordinances because they eliminated the automatic vesting mechanism. Accordingly, any vesting that had taken place under Ordinance XII of 1949 was to be treated as having occurred under Ordinance XXVII of 1949, as though the latter had been operative on the date of vesting. Further, by Section 4 of the Administration of Evacuee Property (Amendment) Ordinance IV of 1950, Section 8 of Ordinance XXVII of 1949 was replaced with a revised Section 8. The amended Section 8(2) clarified that where, immediately before the commencement of the Ordinance, any property in a Province had vested as evacuee property in a person exercising Custodian powers under any repealed law, that property would, on commencement, be deemed evacuee property declared within the meaning of the Ordinance and would be deemed to have vested in the Custodian appointed—or deemed to have been appointed—for the Province, and would continue to vest accordingly.

The provision continued to provide for vesting of property. It further stipulated that if, at the moment the Ordinance came into force, any claim was pending before the Custodian of a province regarding property that fell under section 8 of the Administration of Evacuee Property Ordinance 1949 (XII of 1949) or under any other law that was repealed by the new Ordinance, then, despite any other provision of the Ordinance or any other law then in force, such claim had to be dealt with as though the definitions of “evacuee property” and “evacuee” contained in section 2 of the Ordinance were applicable to it. Under this clause the effect on vesting was that the property was deemed to vest under the new Ordinance. On 18 April 1950 Parliament passed the Administration of Evacuee Property Act 1950 (XXXI of 1950), hereinafter referred to as the Act, which expressly repealed Ordinance XXVII of 1949. The Act retained the same definitions of “evacuee” and “evacuee property” as were contained in Ordinance XXVII. Likewise, section 7 of the Act and section 8 of the Act were drafted in identical terms to the corresponding provisions of the repealed Ordinance. The rules governing vesting of evacuee property in the Custodian were also unchanged, mirroring the amended section 8 of Ordinance XXVII. Section 58 of the Act dealt with repeals and savings. Consequently, the operation of section 8(2) meant that any property that had vested under Ordinance XXVII was to be treated as having vested under the equivalent provision of the Act.

Subsequently, on 27 February 1960 the Act was amended by the Administration of Evacuee Property (Amendment) Act 1 of 1960. This amendment introduced sub‑section (2‑A) to section 8, which read in full: “Without prejudice to the generality of the provisions contained in sub‑section (2), all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, notwithstanding any defect in or the invalidity of such law or any judgment, decree, order of any Court, be deemed for all purposes to have validly vested in that person, as if the provisions of such law had been enacted by Parliament; and such property shall, on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act; accordingly, any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken.” The petitioner argued that the Uttar Pradesh Ordinance 1 of 1949, Central Ordinance XII of 1949 and Central Ordinance XX of 1949 were constitutionally invalid because the Governor and the Governor‑General lacked legislative competence over evacuee and evacuee‑property matters. The petitioner further contended that sub‑section (2‑A) added by the 1960 amendment merely saved any vesting that had purportedly occurred under Ordinance XXVII and did not cure any underlying invalidity arising from the lack of constitutional authority.

The Court examined the contention that the statutes relating to evacuee property were unconstitutional because they were enacted without the required constitutional competence, and therefore any law made without such authority could not be validated. Reference was made to the decision in Saghir Ahmad v. The State of U. P. (1), where, at page 728, the Court quoted Cooley’s Constitutional Limitations, Vol. , page 384 (note), stating: “A statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be reenacted.” The Court regarded this statement as sound law. Reference was also made to M.P. V. Sundararamier & Co. v. The State of Andhra Pradesh (1), in which a distinction was drawn between unconstitutionality arising from legislative incompetence and unconstitutionality arising from a disregard of constitutional prohibitions. The respondents, in their reply, argued that there was no defect in the notice issued to Khatoon Bibi, contending that the notice described her property properly and sufficiently, and that Act 1 of 1960 validated the vesting and removed any defect or invalidity that might have arisen from the deficiencies in the various laws applicable to her case. The first notice to Khatoon Bibi had been issued under Ordinance XXVII dated 22 November 1949, against which her husband Abdul Barkat filed objections, but no order was recorded as having been passed on those objections. The second notice, dated 5 July 1950, was said to specify the property sufficiently. Abdul Barkat again raised objections to that notice, but those objections were dismissed by an order dated 7 March 1951. No further appeal, revision, or any other proceeding was taken against that order, and the Court noted that any defects or deficiencies, whether of law or otherwise, could not now be revived. That order expressly stated that the property was sufficiently, though not thoroughly, described and declared the property to be evacuee property. The appellants disputed the correctness of the description, relying on the Allahabad High Court judgment in Azimunnissa v. Assistant Custodian (2) (p. 568, para 10), which indicated that no description of the property had been made. The Court observed that, in the view it was taking, this controversy lost its vitality. The respondents advanced a second plea, asserting that the insertion of section 8(2‑A) by Act 1 of 1960 gave retrospective effect to the provisions of the Act and validated the vesting of any evacuee property that purported to have been vested in the Custodian, notwithstanding any defect or invalidity in the original law. Accordingly, on the commencement of Act 1 of 1960, property that purported to have vested in the Custodian was deemed to have been evacuee property within the meaning of the Act, and any order or action taken by the Custodian was to be deemed validly made or taken. The Court explained that the word “purport” has many shades of meaning; it can denote something fictitious or merely apparent on the face of an instrument, indicating that an act which purports to be done under a power is to be treated as done within that power even if, in law, the power is not exercisable.

The Court explained that the term “purport” refers to what is shown on the face of a document rather than its true legal effect. In other words, it denotes the apparent nature of an instrument even if, in law, that nature does not actually exist. Consequently, any act that is claimed to be performed under a statutory power is to be treated as if it were exercised within that power, despite the possibility that the power may, in fact, be unavailable. This principle was illustrated in the decision of Dicker v. Angerstein (1), where the court held that a purported exercise of power is deemed valid insofar as it appears to have been exercised, regardless of the underlying legal infirmity. The Court therefore concluded that when the 1960 Act, by inserting section 8(2‑A), gave retrospective effect to section 8(2), the vesting of the disputed property in the Custodian was to be regarded as having taken place under the authority of section 8(2) itself. As a result, any challenge based on the alleged invalidity of the original vesting could not succeed.

Turning to the legislative background, the Court noted that under section 5 of the Uttar Pradesh Ordinance 1 of 1949, the property of Khatoon Bibi, who qualified as an “evacuee” under section 2(c) and whose holdings were classified as “evacuee property” under section 2(d), was vested in the Custodian of Evacuee Property of the province. That Ordinance later lapsed. Subsequently, Central Ordinance XII of 1949, as amended, deemed the vesting of evacuee property to have occurred under its provisions; this Ordinance itself was later repealed by section 55 of Ordinance XXVII of 1949, which was a valid legislative instrument. Section 8(2) of Ordinance XXVII of 1949 declared that the earlier vesting under the previous Ordinance should be deemed to have happened under the newer Ordinance as if the latter had been in force at the time of the original vesting. Ordinance XXVII of 1949 was later repealed by the Act, which incorporated a similarly worded vesting provision in its own section 8(2). By a legal fiction, the original vesting was to be treated as if the Act had been operative at the moment of the first vesting. The Allahabad High Court, in Azimunnissa’s case (1), had held that the vesting was invalid because, up to the enactment of Ordinance XII of 1949 and even Ordinance XX of 1949, legislative competence was lacking, and the deeming provisions in section 8(2) of Ordinance XXVII of 1949 or Act XXXI of 1950 could not cure the defect since the original vesting was void. The Supreme Court found it unnecessary to resolve whether the deeming clause of section 8(2) of the Act or of Ordinance XXVII of 1949 could confer validity on the vesting. In its view, the insertion of section 8(2‑A) into the Act rendered the vesting valid because it conferred legitimacy on the vesting that had been purported to occur under Ordinance XXVII of 1949, even though that vesting was only apparent and not legally effective. The effect of section 8(2‑A) is therefore to treat the purported vesting under section 8(2) of Ordinance XXVII of 1949 as if it were a valid vesting under the Act.

The Court observed that the vesting of the property under section 8 of the Act, which had repealed the earlier Ordinance, was to be treated as if it were a valid vesting despite any flaw in the original transfer or any contrary decree or order of a court. Accordingly, the property was to be deemed evacuee property lawfully vested in the Custodian, and any order issued by the Custodian concerning that property was to be regarded as valid. In this way, the Act was given a retrospective operation that achieved several purposes: first, it confirmed the purported vesting; second, it eliminated every defect or invalidity that might have existed in the vesting or in the notional vesting created under section 8(2) of Ordinance XXVII of 1949 or under section 8(2) of the Act that had repealed that Ordinance; third, it rendered ineffective any court decree or judgment that had been passed contrary to the vesting; fourth, it converted the property into evacuee property by deeming it such; and fifth, it validated every order that the Custodian had passed in respect of the property.

Because the Act operated retrospectively and because its effect of validation was reinforced by the decision in Saghir Ahmad’s case, the Court held that the reasoning laid down in that case could not be applied here. The Court further concluded that the alternative issue raised by the respondents did not survive, and that the share belonging to Khatoon Bibi must be treated as evacuee property lawfully vested in the Custodian, citing authority (1) A.I.R. 1951 All. 561 and (2) [1955] 1 S.C.R. 707. Consequently, the land in dispute fell within the meaning of “composite property” as defined in section 2(d) and could not be declared invalid.

It was then contended by the petitioners that the sale of the property had unlawfully deprived non‑evacuees of their rights and that section 10, clause (a) of the Act violated Articles 31 and 19(1)(f) of the Constitution. The Court found this argument to be without merit. The relevant provision of section 10 was reproduced in full: “Notwithstanding anything to the contrary in any law or contract or any decree or order of a Civil Court or other authority, the competent officer may, subject to any rules that may be made in this behalf, take all such measures as he may consider necessary for the purpose of separating the interests of the evacuees from those of the claimants in any composite property, and in particular may—(a) in the case of any claim of a co‑sharer or partner—(i) direct the Custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a Civil Court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the Civil Court; or (ii) transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property; or (iii) sell the property and distribute the sale proceeds thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property; or (iv) partition the property according to shares of the evacuee.”

The order required that possession of the shares allotted to the evacuee be delivered to the Custodian and that possession of the shares allotted to the claimant be delivered to the claimant. Consequently, the Competent Officer had four possible courses of action. The first two options involved monetary transactions: (i) the Custodian could pay to the non‑evacuees the monetary value of the non‑evacuees’ share, and (ii) the non‑evacuees could pay to the Custodian the monetary value of the evacuees’ share. Both of these alternatives were unavailable. In the present case the non‑evacuees did not assert any claim for a monetary payment, and it was not reasonable to expect the Custodian to make a large cash payment to the non‑evacuees. The Competent Officer’s order dated 20 March 1956 recorded that the co‑sharers who were not evacuees were unwilling to pay the Custodian the monetary value of the evacuees’ shares. The third alternative was to partition the property, but that option could not be employed because the composite property consisted of a sugar mill, an undertaking that, by its very nature, could not be divided into separate portions. With the first two alternatives ruled out and partition impossible, the only practicable method of separating the interests of the evacuees and the non‑evacuees was the one actually adopted by the Custodian: to sell the entire property and to divide the proceeds of the sale between the parties in proportion to their respective shares. In the circumstances the Court held that the Competent Officer’s action was not unreasonable, did not offend Article 19(1)(f), and did not violate Article 31, because it did not amount to a deprivation of the non‑evacuees’ property without legal authority. Accordingly, the petition was dismissed, and the petitioner was ordered to pay costs.