N.D.Ojha, J. - (1.) ONE Qutub Uddin Ahmad was owner of certain houses in Sabzi Mandi. Allahabad. As a result of his leaving India for Pakistan the aforesaid houses were declared to be evacuee property under the Administration of Evacuee Property Act (Act XXXI of 1950). Qutub Uddin Ahmad sub sequently died in Pakistan. The respondents claiming to be his heirs made an application to the Central Government for restoration of the property in question to them under Sec tion 16 of the Administration of Evacuee Pro perty Act. The said application was, how ever, dismissed on 22nd March. 1956. A noti fication had, in the meantime, been published in the gazette of India dated 4th June. 1955 notifying the property aforesaid to have been acquired by the Central Government under Section 12 of the Displaced Persons (Compen sation and Rehabilitation) Act (Act XLIV of 1954). Subsequently, it appears that the Settlement Commissioner passed an order declaring that the notification aforesaid did not affect the property in question, inasmuch as an application under Section 16 of the Administration of Evacuee Property Act was pending on the date when the said 'notification was published. Thereafter on 16th of Octo ber, 1958 a fresh notification under Section 12 of Act XLIV of 1954 was issued acquiring the property aforesaid. In November, 1958 a notice was published that the aforesaid pro perty would be auctioned as acquired pro perty on 1-12-1958. The respondents instituted a writ petition in this Court with a prayer to restrain the appellants from selling the aforesaid property as acquired property. The writ petition was allowed by a learned Single Judge on the ground that Qutub Uddin Ahmad the evacuee having died before the. notification under Section 12 was issued, the said notification could not have the effect of extinguishing the rights of the respondents upon whom the interests of Qutub Uddia Ahmad had devolved on his death. The se cond ground of attack made by the respond ents, namely, that the property aforesaid could not be deemed to be evacuee property on the death of Qutub Uddin Ahmad was, however, repelled by the learned Single Judge. He came to the conclusion that the property involved in the present case is clearly an evacuee property. In view of his finding that the provisions of Section 12 of Act XLIV of 1954 could not be applied, he allowed the writ petition and issued a writ of mandamus directing the appellants not to sell the pro perty in question as a property which had been acquired by and had vested in the Cen tral Government under Section 12 of Act XLIV of 1954. The present special appeal has been filed against this judgment of the learned Single Judge.
(2.) IT was urged by the learned coun sel for the appellants that on the finding re corded by the learned Single Judge that the property in question continued to be evacuee property notwithstanding the death of Qutub Uddin Ahmad, the provisions of S. 12 of Act XLIV of 1954 were attracted. It would be useful to quote the relevant provisions of Sec tion 12 and Section 13 of Act XLVI of 1954 which have been relied upon by the learned single Judge. The relevant provision of Sec tion 12 reads:- "12. Power to acquire evacuee property for rehabilitation of displaced persons. (1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and re habilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decid ed to acquire such evacuee property in pur suance of this section. (2) On the publication of a notification under -sub-section (1). the right, title and in terest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the noti fication is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encum brances.'' (3) ..................... (4) ........................ Section 13 reads: "13. There shall be paid to an evacuee compensation in respect of his property acquired under Section 12 in accordance with such principles and in such manner as may be agreed upon between the Governments of India and Pakistan." The learned single Judge placed emphasis on the word evacuee used in S. 12 (2) and Sec. 13 referred to above and held that an evacuee property could be acquired under Section 12 only during the lifetime of the evacuee. He was of the opinion that Qutub Uddin Ahmad having died the interest which had devolved upon his heirs, namely, the respondents, could not be described as "right, title and interest of any evacuee."
(3.) HAVING heard learned counsel, we are of the opinion that on the finding record ed by the learned Single Judge that the pro perty in question continued to be evacuee property on the date when the notification under Section 12 of Act XLFV of 1954 was issued, the provisions of the said section were clearly applicable. Under sub-section (1) of S. 12 any evacuee property can be acquired by the Central Government by publishing in the Official Gazette a notification in this be half, if the Central Government is of opinion that it is necessary to do so for a public pur pose. Sub-section (2) of S. 12 provides for the extinguishment of the "right, title and in terest of any evacuee" in the evacuee property specified in the notification. Section 13 pro vides for payment of compensation to an evacuee in respect of the property acquired under Section 12.;