Case Note & Summary
The Supreme Court of India heard a writ petition under Article 32 of the Constitution alleging violation of the fundamental right to hold property under Article 19(1)(f). The dispute concerned two houses that had been declared evacuee property under the Administration of Evacuee Property Act, 1950. The original owner, Khadim Ali, had died on or about October 1, 1950, leaving three sons and five daughters. Two of his sons, Nusrat Ali and Fateh Ali, were served with notices under Section 7 of the Act in September 1951. They did not appear, and on January 10, 1952, the Custodian declared them evacuees and the two houses evacuee property. The houses vested in the Custodian under Section 8. The petitioners, who were the other son (Dr. Zafar Ali Shah) and two daughters of Khadim Ali, were never issued any notice under Section 7 and were never declared evacuees. They claimed that their shares in the houses had been wrongly taken. The petitioners alleged they had no knowledge of the proceedings for a long time; when they learned of the Custodian's order, the male petitioner filed an appeal to the Custodian-General, which was dismissed as time-barred. They then approached the Supreme Court under Article 32. The core legal issues were whether the Custodian could declare the entire properties evacuee property without notice to all co-sharers, whether the dismissal of the time-barred appeal barred the male petitioner from challenging the order, and whether a notification under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 extinguished the petitioners' rights. The petitioners argued that no notice under Section 7 was served on them, so their shares never vested in the Custodian, and the order was without jurisdiction. They contended that the appeal dismissal as time-barred did not preclude the writ petition, and Section 12 only affects evacuees. The respondents conceded that the female petitioners' interests were unaffected but argued that the male petitioner was bound by the dismissal of his appeal, which was a quasi-judicial decision. They also argued that the properties had been acquired under the Displaced Persons Act, so the petitioners had no remaining claim. The Court, per Sarkar J., held that it is well established that no property of any person can be declared evacuee property unless that person has first been given notice under Section 7 of the Act. Since no notice was issued to the petitioners, their interests never vested in the Custodian. The Court rejected the argument that the male petitioner was barred by his appeal, noting that he was not a party to the original proceeding and the appeal was dismissed solely as time-barred, thus no judicial determination of his rights occurred. The order of January 10, 1952 was without jurisdiction as to his share and remained so despite the appeal. Regarding Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, the Court held that it only affects the rights of an evacuee; the petitioners were not evacuees, so their rights were not extinguished. The Court allowed the petition and set aside the order of January 10, 1952 insofar as it affected the petitioners' rights in the properties, with no order as to costs.
Headnote
A) Constitutional Law - Right to Property - Article 19(1)(f), Constitution of India - Fundamental right to hold property cannot be deprived without due process - Petitioners were not issued notice under Section 7 and never declared evacuees; their shares in the two houses never vested in the Custodian - Held that Custodian's declaration dated 10.01.1952 was without jurisdiction insofar as petitioners' shares were concerned (Paras 1-4). B) Evacuee Property - Notice Requirement - Section 7, Administration of Evacuee Property Act, 1950 - Notice under Section 7 is mandatory before declaring a person an evacuee and property as evacuee property - No notice was issued to petitioners; therefore, their interests in the houses could not be affected by the declaration - Held that the entire declaration against petitioners was void (Paras 1-4). C) Administrative Law - Jurisdictional Error and Appeal - Order without jurisdiction cannot be validated by dismissal of time-barred appeal - The male petitioner was not a party to original proceedings and his appeal was dismissed solely as time-barred; no judicial determination of his rights occurred - Held that the appeal furnished no answer to the writ petition and the order remained without jurisdiction as to his share (Paras 2-4). D) Evacuee Property - Acquisition of Evacuee Property - Section 12, Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Section 12(2) extinguishes only rights of an evacuee in evacuee property - Petitioners were never declared evacuees, so notification under Section 12 did not extinguish their rights - Held that Section 12 does not affect the petitioners' rights (Para 5). E) Writ Jurisdiction - Article 32, Constitution of India - Enforcement of fundamental right to property - Supreme Court exercised original jurisdiction under Article 32 to set aside a quasi-judicial order that deprived petitioners of property without notice - Held that the Custodian's acts depriving petitioners of property could not be upheld and the order was set aside insofar as it affected their rights (Paras 1, 6).
Issue of Consideration
Whether the Custodian was entitled to declare the entirety of the two houses evacuee property and deprive the petitioners of their rights without issuing notice under Section 7 of the Administration of Evacuee Property Act, 1950; whether the dismissal of the appeal as time-barred precluded the male petitioner from challenging the declaration; and whether notification under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 extinguished the petitioners' rights in the properties.
Final Decision
Petition allowed. The order of January 10, 1952 was set aside insofar as it affected the rights of the petitioners in the properties concerned. No order as to costs.
Law Points
- No property can be declared evacuee property without notice under Section 7 of Administration of Evacuee Property Act
- 1950
- shares of non-evacuees do not vest in Custodian
- appeal dismissed as time-barred does not constitute judicial determination of rights
- Section 12 of Displaced Persons (Compensation and Rehabilitation) Act
- 1954 affects only evacuee's rights
- not non-evacuees
- Article 19(1)(f) protects right to property
- Article 32 writ maintainable to enforce fundamental right where Custodian order without jurisdiction
