M/S. HAJJ ESMAIL NOOR MOHAMMAD & CO. AND ORS. versus THE COMPETENT OFFICER, LUCKNOW & ORS.

Citation: [1967] 3 S.C.R. 134 · Decided: 08-03-1967 · Supreme Court of India · Bench: K. SUBBA RAO

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

M/S. HAJJ ESMAIL NOOR MOHAMMAD & CO. AND ORS. 
A 
v. 
1HE COMPETENT OFFICER, LUCKNOW & ORS. 
March 8, 1967 
[K. SUBBA RAo, C.J., J. C. SHAH, J. M. SHELAT, V. BHARGAVA 
8 
AND G. K. MITTER, JJ.] 
U.P. Administration of Evacuee Property Ordinance, 1949. Adminis· 
tratlon of Evacuee Property Act (Central) 1950 and 
Evacuee Interest 
(Separation) Act (Central) 1951-Partner of firm 
declared 
'evacuee' 
under U.P. Ordinance-Fresh declaration under s. 7 of 1950 Act whether 
necessary-Proceedings under 1951 Act before 
Appellate Authority at 
Delhi-Appellate Authority appointed by U.P. State but of]ice situated at 
C 
Delhi-Allahabad High Court whether has jurisdiction under Art. 
226 
over Appellate Authority. 
Constitution of India, Part /II-Fundamental 
Rights of partners of 
firm whether affected by one of the partners being declared evacuee and 
his property being taken over by Custodian. 
A partnership firm carrying 
on business 
in Calcutta 
had also a 
branch in Kanpur. 
In 1948, 'A' one of its partners 
went 
away 
to 
Pakistan. 
Under the United Provinces Administration of Evacuee Pro• 
perty Ordinance 1949 all evacuee property situated in the United Pro-
vinces, vested in the Custodian 
of Evacuee 
Property. In 
September 
1949 the Deputy Custodian of Evacuee Property, Kanpur, took posses-
sion of the Kanpur property of the firm. 
The 
firm raised objections 
under s. 8 of the aforesaid Ordinance. On October 18, 1949 a Central 
Ordinance namely the Administration 
of Evacuee Property Ordinance 
1949 came into force; it was succeeded on April 17, 1950, by the Admi-
nistration of Evacuee Property Act, 1950. 
Under the ptovisions of the 
Central Ordinance as also the Act any property which had vested in the 
Custodian under the Provincial Ordinance would be deemed to continue 
being so vested. 
On May 31, 1950 the Deputy Custodian of Evacuee 
Property (Judicial) Allahabad Ci·rcle, Kanpur, dealing with the aforesaid 
objections raised by the firm held 'A' to be an evacuee and his share in 
the firm to be evacuee property. 
No appeal was filed against this order. 
On December 13, 1952 the Competent Officer, Kanpur sent separate 
notices under s. 6 of the Evacuee Interest Separation Act, 1951 to each 
of the partners of the firm calling upo!I them to file their claim for the 
purpose of determining the interest of the 
evacuee in the partnership 
business. The firm filed a claim under s. 7 of the Act and raised various 
objections contending that 'A' was not a member of the firm. 
The comA 
potent officer rejected all the objections. The firm's appeal to the Ap· 
pellate Officer failed; whereupon it filed petitions under Art. 226 of the 
Constitution before the High Court. The petitions were dismissed by a 
single Judge who took the view that the or~er of the Competent _Officer 
had merged in that of the Appellate Authority whose office was Sltua•~d 
in Delhi beyond the territorial jurisdiction of the High Court. 
Special 
appeals before the Division. Bench were also dismissed. 
Th~. firm 
and 
its partners appealed to this Court. They 
also filed a peht1on 
under 
Art. 32. · The Court had to consider (i) Whether a fresh notice 
and 
declaration under s. 7 of the Centfll Ordinance of 1949 or of th" Cen-
tral Act of 1950 was necessrrry. (ii) Whether any fundamental right of 
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NOOR MOHAMMAD"' co. v. COMPETENT OFFICER (Subba Rao, C.J.) 13 5 
A 
B 
c 
D 
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the partners of the firm had been affected, (ii') Whe~her the Appellate 
Authority was subject to the jurisdiction of the High Court of Allahabad. 
HELD : From the facts it was clear that 'A', in v;ew of disturbed 
conditions, went away to Pakistan in the year 1948 and therefore 
he 
was an 'evacuee' within the meaning of U.P. Ordinance 1 of 1949. 
His 
property i.e. his interest in the partnership business 
immediately vested 
under the Ordinance in the Custodian. 
This automatic vesting was con~ 
tin_ued by Central Ordinance 27 of 1949 and Central Act 31 of 1950 by 
the deeming provisions contained therein. 
Therefore 
no 
question 
of 
issuing further notice or making a declarat:on that the said interest was 
evacuee property under s. 7(1) of the Ordinance arose. Section 7 only 
applied to properties other than those which have vested automatically 
in the Custodian. Such a vesting cannot be reopened under the Cen-
tral Ordinance or the Central Act for it has already vested !hereunder 
by a fiction. [142 E-G] 
(ii) It followed that the partners

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