AZIMUNISSA AND OTHERS versus THE DEPUTY CUSTODIAN, EVACUEE PROPERTIES, DISTRICT DEORIA. AND OTHERS.

Citation: [1961] 2 S.C.R. 91 · Decided: 26-10-1960 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed
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Judgment (excerpt)

2 S.C.R. SUPREME COURT REPORTS 
91 
AZIMUNISSA AND OTHERS 
v. 
THE DEPUTY CUSTODIAN, EVACUEE 
PROPERTIES, DISTRICT DEORIA. 
AND OTHERS. 
(B. P. SINHA, C. J., J. L. KAPUR, 
P. B. GAJENDRAGADKAR, K. SUBBA RAO and 
K. N. WANCHOO, JJ.) 
Evacuee Property-Automatic vesting 1mder invalid Ordinance 
-Continuance of vesting under subsequent enactments-Validation 
of-Separation of evacuee interest-Composite Property-Sale of 
non-evacuee interest-Whether violates fundamental rights-U. P. 
Administration of Evacuee Property Ordinance, r949 (U. P. Ordi-
nance I of r949), ss. 2(c) and 5-Administration of Evacuee Pro-
perty (Chief Commissioner's Provinces) Ordinance r949 (Ordinance 
XII of r949). s. 5-Administration af Evacuee Property (Chief 
Commissioner's Provinces) Amendment Ordinance r949 (Ordinance 
XX of r949), s. 8-Administration of Evacuee Property Ordinance 
I949 (Ordinance XXVII of r949), ss. 7 and 8-Administration of 
Evacuee Property (Amendment) Ordinance r950 (Ordinance IV of 
r950). s. 4--Administration of Evacuee Property Act, r950 (XXXI 
of r950), ss. 7 and 8-Administration of Evacuee Property (Amend-
ment) Act, r960 (I of r960), s. 2-Evacuee Interest (Separation) Act, 
r95r (LXIV of r95r), s. IO-Constitution of India, Arts. r9(r)(f) 
and JI. 
One K who had a 0-2-3 share in certain properties in Uttar 
Pradesh went to Pakistan in 1947· 
The competent Officer 
took proceedings under the Evacuee Interest (Separation) Act, 
1951, to separate the share of K in the property and as the 
claimants were not prepared to purchase the share of K, he 
auctioned the entire property under s. 10 of the Act. The peti-
tioners contended that K was not an evacuee, that the property 
was not composite property, that the proceedings under the Act 
were void and that s. IO of the Act was void as it contravened 
Arts. 31 and 19(1)(f) of the Constitution. The respondents 
urged that the interest of K in the property had automatically 
vested in the Custodian under U. P. Ordinance ! of ·1949 and 
this vesting was continued by Central Ordinance XII of 1949, 
by Central Ordinance XX VII of 1949 and Central Act XXXI of 
I950 and any legal defect in the vesting was cured by Central 
Act I of 1960, that the property was accordingly composi.te pro-
perty and was properly auctioned under the Separation Act. 
The Petitioners replied that U. P. Ordinance I of 1949 and Central 
Ig6o 
October 26. 
A zi11iu11tssa 
b Others 
92 
SUPREME COUHT REPORTS 
[1961] 
Ordinance XII of 1949, were void for want of legislative com-
petence and there could be no vesting in law under their pro-
visions which could be continued by subsequent Ordinances and 
Acts. 
v. 
Tl" Deputv Gus-
Held, that the property was composite property and was 
1 d. 
i 
uee properly fauctioned under the Separation Act. As K was an 
0 Pian, 
t~ac 
evacuee under s. 2(c) of the U. P. Ordinance, her property auto-
rop" ies, 
· 
11 
t d · th C t d' 
d 
d 't 
· 
D. t . 1 D 
. 
mat1ca y ves e 1n 
e us o 1an un er s. 5 an I was cont1nu-
";'~•h eoria ed under the Central Ordinance XII of 1949· Even if these 
"' 
two Ordinances were bad for legislative incompetence the pur-
( 
ported vesting thereunder was continued under Central Ordin-
ar.ce XXVII of 1949 and thereafter under Central Act XXXI 
I 
of 1950 and any legal defect in such vesting was cured by 
\-
Central Act I of 1960. 
· 
,T
Held, further that s. rn(a) of the Separation Act did not 
contravene Arts. 31 and 19(1)(!) of the Constitution and was 
not void. As the petitioners were not prepared to purchase 
the share of K, the Competent Officer acted properly in selling 
the property by public auction. 
ORIGINAL JURISDICTION: 
Petition No. 56 of 1958. 
Petition under Article 32 of the Constitution of 
India for enforcement of Fundamental rights. 
A. V. ViBwanatha Sastri and G. C. Mathur, for the 
petitioners. 
C. K. Daphtary, Solicitor-General of India, R. B. 
Nanak Chand and R. H. Dhebar, for respondents 
Nos. 1 to 3. 
C. K. Daphtary, Solicitor-General of India, Harnam 
Singh and I. N. Shroff, for the respondent No. 4. 
J. P. Goyal, for respondents Nos. 5 to 10. 
1960. October 26. The Judgment of the Court 
was delivered by . 
KAPUR J.-This is a petition by six persons under 
article 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. 
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