(1.)THE following Judgment of the court was delivered by
(2.)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. The following pedigree table will assist in understanding the case:Hingan Mian Moharram Main Shukrullah(d.1945) Abul Bashir Nasir Nazir Majid Razzaq Ahamad Ahamad Ahamad Khuda Bux Noori Mian=Rehmat Bibi (d.1953) Azimunnisa Khatoon Bibi Taghma Bibi (d) = Maqbool Ahamad =Abdul Barkat Shamsun Nisa Khudaija Bibi Lutf Md. Ahamad Aiysha Qamar-un-Nisa Tehzib-un-Nisa Ahamad Khatoon
The petitioners alleged that the properties in dispute were acquired by Noon Mian and after his death there was some litigation but as a result of a compromise between the members of the family the shares of the contestants were fixed as follows:
On 28/08/1942, Shakru-ullah created a waqf-alal-aulad in favour of his sons and nominated Abdul Razzaq as Mutwali (Trustee). Shakr-ullah died in 1945. In the year 1947, Khatoon Bibi, one of the petitioners, went away to Karachi and the ostensible reason stated by her :Is that she went to look after the ailing sister of her husband who was in Karachi.
(3.)ON 22/11/1949, a notice was issued to Khatoon Bibi, her manager and servants declaring her to be an evacuee and calling upon her to surrender possession of her property which was described as ' Bhatni Noori (Chini Mills, zamindari and kashtkari land '. Her husband Abdul Barkat filed objections but it does not appear that any order was passed on those objections. ON 17/04/1950, the Administration of Evacuee Property Act, 1950 (XXXI of 1950), hereinafter referred to as the Act, came into force. Another notice was issued to Khatoon Bibi by the Deputy Custodian of Evacuee Property, Deoria, on 5/07/1950, to show cause why she should not be declared
an evacuee and why all her property be not declared evacuee property. It is alleged that the notice did not contain any description of the property and was therefore ineffective. This fact is denied by the respondents. In their affidavit it was stated thatthe property was fully specified and identified and that the notice of 5/07/1950, was by way of abundant caution; the property of Khatoon Bibi had become evacuee property and had automatically vested in the year 1949. Against this notice also Abdul 1951, these objections were dismissed. The order was as follows:- 'I 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 taken against this order. ON 8/01/1953, a notice under s. 7 of the Act was issued against Bashir Ahmad and Nasir Ahmad and by an order dated 14/12/1955, both of them were declared evacuees and their interests in the properties were declared evacuee property. This order by the Assistant Custodian (Judicial) shows that in the notice the properties were described and it was held that both Bashir Ahmad and Nasir Ahmad were evacuees and their interest in the property was evacuee property but as it was composite property the exact shares were left to be determined by the Competent Officer. An appeal was taken by these two evacuees to the Custodian of Evacuee Property, U. P., but it has not yet been decided.
Proceedings were then taken by the Competent Officer under Evacuee Interest (Separation) Act (64 of 1951), hereinafter called the Separation Act. Notices were issued under s. 6 of the Separation Act on 15/02/1954, and the persons to whom notices were issued filed separate claims claiming various shares in the property. The Competent Officer by his order of 20/03/1956, declared the shares of the various evacuees and non-evacuees and also held that as the claimants were not prepared to purchase the shares of the evacuees in the property in dispute the only mode available for partition was by a public auction. He gave directions as to how the property which was the subject matter of waqf- alal-aulad was to be separated. As regards the valuation of the property he referred to the valuation made by the Assistant Valuation Officer and Superintendent, Valuation Office, Khan Market, New Delhi, the former at Rs. 7,41,300.00 for the construction and lands and the latter at Rs. 14,15,000.00 inclusive of machinery, lands and buildings and then tentatively fixed the valuation at Rs. 14,15,000.00 and again referred the matter to the Superintendent, Valuation Office for final valuation. He held Khatoon Bibi's share to be 0-2-3 and also determined the interest of Bashir Ahmad and Nasir Ahmad and ordered the entire property to be sold by auction. Against this order an appeal was taken to the Appellate Officer. On 13/08/1956, the property in dispute was sold to respondent No. 3 for Rs. 16,05,000.00. Against this objections were filed by the petitioner Azimunnissa and Abdul Wahid but they were dismissed by the Competent Officer on 1/10/1956. Against this order a revision was taken to the Appellate Officer but both of them were dismissed on 24/10/1957. in the meanwhile the petitioners, on 27/09/1956, filed a petition under Art. 226 in the High court of Allahabad in which they attacked the validity of the proceedings taken under the Act and also the order of the Competent Officer ordering sale. Some of the points raised by the petitioners were decided in their favour but the petition was dismissed because the petitioners had been guilty of laches as they had slept over their rights for five years and had applied to the High court when no further notices could be issued under the Act and as no proper action was taken by the petitioners as regards the various orders passed. against this judgment of the Allahabad High court in Azimunnissa and Ors. v. Assistant Custodian (1) and against the order of the Appellate Officer, the petitioners applied for special leave to this court but both these petitions were dismissed on 10/02/1958.