W.Broome, J. - (1.) This writ petition challenges a demand made in September 1957 by the Assistant Custodian of Evacuee Property for arrears of rent in respect of the premises at No. 30 Elgin Road, Allahabad; and the petitioner asks for a writ of mandamus to be issued, requiring the Assistant Custodian not to treat any share or interest in the aforesaid premises as evacuee property and not to realise any amount from him by way of arrears of rent in respect thereof.
(2.) The house in question was purchased by the petitioner and his brother Mohammad Mohmood Husain in the year 1941 in equal shares. In 1947 the petitioner's brother went off to Pakistan; and on 26-8-1952 he was killed there in an air-crash. According to the respondent, Mohammad Mahmood Husain had migrated to Pakistan and his share of the property vested in the Custodian of Evacuee Property under U. P. Ordinance No. 1 of 1949. The petitioner did not initially challenge the vesting order but agreed to deposit with the Custodian the net rent accruing on his brother's half share of the house. After the death of his brother, however, he claimed that the half share in question had devolved on his brother's heirs (including himself) and accordingly he along with the other heirs made an application asking for the property to be restored to them under Section 16 of the Administration of Evacuee Property Act. This application was rejected by the Assistant Custodian (Judicial) on 5-6-1953, by the Deputy Custodian on 28-12-1956 and by the Central Government on the administrative side on 21-6-1957; and with the conclusion of those proceedings, the Assistant Custodian began to take steps for the realisation of the arrears of rent, which had been stayed while the application under Section 16 was being decided. On 26-9-1957 an order was passed for attachment; and this writ petition was filed the next day.
(3.) The petitioner puts forward two main contentions. In the first place he asserts that by reason of the invalidity of Ordinance No. 1 of 1949, there was no legal vesting of his brother's property in the Custodian and it could not be treated as evacuee property at all. And secondly, assuming that it was evacuee property and had vested as such, it ceased to be evacuee property and the vesting came to an end after his brother's death in 1952, when it devolved by inheritance on the petitioner and other members of the family, none of whom had ever migrated to Pakistan or ceased to be Indian citizens. It is further argued in this connection that Section 43 of the Administration of Evacuee Property Act (which provides that the death of an evacuee shall not affect the vesting of his property in the Custodian) is ultra vires and void for infringement of the fundamental right guaranteed by Article 19 (1) (f) of the Constitution, in so far as it seeks to deprive heirs who are Indian citizens of their right to hold and dispose of property.;