DESAI, J. - (1.) THIS is an application for a writ of certiorari, order or direction to quash the declaration dated 7 -3 -1953 (wrongly mentioned as 17 -3 -1953 in the application) under section 7 of the Administration of Evacuee Property Act (No. XXXI of 1950) (to be referred to as Act No. XXXI) the order of the Competent Officer, Faizabad (opposite party No. 2) for sale of the property in dispute dated 20 -34.956 and the sale held by the Competent Officer on 13 -8 -1956 of the property in dispute in favour of Sri Mahabir Prasad Jhunjhunwala (opposite party No. 3). There is the ubiquitous prayer for any other and further relief as the Court may deem fit. The applicants are related to one another as would appear from the following pedigree : Abdul Wahid |_ Applicants Abdul Majid | Rahmat Bibi (d.1953) Azizun Nisa (Applicant) Moharram Mian| Noori Mian - - - -| -Khatoon (w/o Abdul arkat)(Applicant) Taghma Bibi Shamshun Nisa(Applicant) Wazir Khudabux -|(Sons & daughters)| -Khudaija Bibi (Applicant) Abdul Razzaq Shukrulla -Bashir Ahmad Nair Ahmad Nazir Ahmad The property in dispute, is the Noori Sugar Mills together with the appurtenant buildings and land situated in village Bhatni; it belonged to the family of Moharram Mian and Shukrulla. According to a compromise arrived at between the parties in 1922 Shukrulla got five annas and four pies share and Rahmat Bibi, Khatoon Bibi, Azizun Nisa and Taghma Bibi, about one anna and seven Dies share each. Shukrulla made a waqf alalaulad in respect of his five annas and four pies share in 1941 and named Abdul Razzaq as the first mutwalli and his four sons as the beneficiaries. Khatoon Bibi's father and forefathers were born in India and she also was born in India. In December, 1947, she went to Karachi to see her husband's sister Sayeeda Bibi who was said to be seriously ill, leaving her husband Abdul Barkat in India. Before she could return to India restrictions were imposed upon entry into India and a permit system was introduced. On 22 -11 -1949 the Assistant Custodian, Evacuee Properties, opposite party No. 1, published a declaration that all the property of Khatoon Bibi was evacuee property and called upon the persons in possession to hand it over to the Custodian and Abdul Barkat filed an objection against it. On 5 -7 -1950 the Assistant Custodian issued a notice to Khatoon Bibi asking her to show cause why she be not declared an evacuee and her property be not declared as evacuee property under the Ordinance. Abdul Barkat filed an objection as his wife was still in Pakistan; on 7 -3 -1951 the Assistant Custodian dismissed it and declared theproperty as evacuee property. Khatoon Bibi then came to India on a temporary passport issued by the Pakistan Government. On 20 -3 -1956 the Competent Officer held that the share of six pies in the property in dispute claimed by Azizun Nisa as an heir of Rahmat Bibi was evacuee property. Nazir Ahmad and Bashir, Ahmed and their father Shukrulla and forefathers also were born in India; they were also declared to be evacuees and their shares in the property in dispute as evacuee property on 14 -12 -1955. On 15 -2 -1954, a notice under Section 6 of the Evacuee Interest (Separation) Act (No. LXIV of 1951) (to be referred to as Act No. LXIV) was issued by the Competent Officer to Azizun Nisa inviting her claim to an interest in the Noori Sugar Works, Bhatni, the land on which it stands and a grove standing on certain plots. Similar notices were issued to other co -sharers in the Noori Sugar Works. Several claims were filed and the Competent Officer' decided them on 20 -3 -1958. He held that Azizun Nisa had two annas and nine pies share, Khudaija and Shamshun Nisa eight and a half pies share each, Abdul Majeed two annas and five pies share, Abdul Wahid three annas and five pies share, Khatoon Bibi, two annas and three pies share and Bashir Ahmad and Naisir Ahmad, one anna and four pies share each as beneficiaries. Since Bashir Ahmad and Nasir Ahmad had preferred appeals against their being declared evacuees and the appeal was pending, the Competent Officer ordered that their two annas and eight pies share in the income would vest in the Custodian as evacuee property so longas their appeal was not allowed. Coming to the mode of separation of the interest of the evacuees from that of the non -evacuees in the property in dispute he observed that partition of the Sugar Works was out of question, that the non -evacuees were not prepared to purchase the shares of the evacuees and that sale of the Sugar Works by public auction was the only course left open. He, therefore, ordered sale of the property in dispute by public auction. The auction Look place on 13 -8 -1956 and opposite party No. 3 purchased the property in dispute. An objection against the auction was dismissed on 1 -10 -1956 and an appeal is pending before the Appellate Officer, New Delhi,
(2.) THE applicants to this petition are Khatoon Bibi, who has been declared to be an evacuee, and five other co -sharers in the property in dispute. Bashir Ahmad and Nasir Ahmad evacuees have not joined in the application. The applicants contend that the orders declaring Khatoon Bibi, Bashir Ahmad and Nasir Ahmad as evacuees are invalid and of no effect, that they are not evacuees at all, that the Act No. LXIV is unconstitutional, that the property in dispute includes a mosque and grave -yards, which being waqf property cannot be sold, and that the entire property in dispute should not have been put to auction by the Competent Officer. The application is opposed by the opposite parties. The Assistant Custodian in his affidavit admits that the property in dispute is owned by various persons in accordance with the compromise of 1922 and that Shukrullah made a waqf of his share naming his four sons as the beneficiaries. He asserted that Khatoon Bibi, Bashir Ahmad and Nasir Ahmad are evacuees; he admitted that Khatoon Bibi once came to India on a passport issued by the Pakistan Government but asserted that she returned to Pakistan and is now there. He claimed that her property vested in the Custodian under the U.P. Administration of Evacuee Property Ordinance (No. 1 of 1S49) (to be referred to as Ordinance No. I) automatically, that the so -called notice of 22 -11 -1849 was only a demand to the persons in possession of her property to surrender possession to the Deputy Custodian, that the notice issued by him on 5 -7 -1950 was only by way of abundant cautela and did not affect the vesting that had already taken place under the Ordinance No. I, chat Khatoon Bibi never filed any objection that her property was not evacuee property and Abdul Barkat could not file an objection on her behalf, and that the entire Sugar Works formed one composite property within the meaning of the Act No. LXIV. As regards the proceedings before the Competent Officer, it was affirmed in the counter affidavit that there was no irregularity attending the sale of the property in dispute, that the bid of the opposite party, No. 3, of Rs 16,05,000/ - was quite reasonable, that the Competent Officer had offered to sell the shares of the evacuees to the claimants on the basis of their own valuation of rupees twenty lakhs but they had refused to buy them, that the property in dispute could not be partitioned conveniently, that partition between the evacuees and the claimants was not claimed by any of the claimants, that the mosque and the graveyards are not affected by the auction sale, that it was not pointed out before the Competent Officer that the property in dispute included a mosque and graveyards that the Act. No. LXIV does not infringe any of the fundamental rights, that the applicants had an alternative remedy by way of an appeal, that they all except Azizun Nisa failed to avail themselves of it, that Azizun Nisa's appeal was pending, that it was conceded by the claimants that Khatoon, Bibiwas an evacuee, that the application was filed after inordinate delay and that they had lost their remedy, if any, on account of estoppel and acquiescence. Opposite Party No. 3 also filed a counter -affidavit; it is more or less on the same lines as that of the Assistant Custodian. He referred to an affidavit filed by Abdul Wahid on 2 -3 -1956 in the court of the Competent Officer to the effect that Rahmat Bibi just before her death in 1953 had said that she was bequeathing to Azizun Nisa her property and also the share of Khatoon Bibi because she had migrated to Pakistan, and asserted that she went away to Pakistan in December, 1947, permanently leaving her husband behind in India and giving up her Indian nationality.
(3.) THE first law applicable to evacuees was the U.P. Ordinance, No. 1, which came into force on 24 -6 -1949 and was repealed impliedly on 23 -8 -1949, on which date the Administration of Evacuee Property (Chief Commissioners Provinces) Ordinance No. XII of 1949 (to be referred to as Ordinance No. XII) was extended to this State by the Central Administration of Evacuee Property (Chief Commissioners Provinces) Amendment Ordinance No. XX of 1949 (to be referred to as Ordinance No. XX). The Ordinance, No. I, defined 'evacuee' as a person 'who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has on or after the first day of March, 1947, left any place in the United Provinces for any place outside ...... India', 'evacuee property' as 'any property in which an evacuee has any right or interest' excluding movables and any property belonging to a joint stock company, having its registered office in Pakistan, and 'property' as ''any property, right or interest'. Section 5 laid down that 'all evacuee property situate in the United Provinces shall vest in the Custodian' and Section 6 provided that 'the Custodian may, from time to time, notify by publication in the official gazette .... evacuee properties which have vested in him' and required any person in possession of any evacuee property after the vesting of it in the Custodian to surrender possession of it to him on receipt of a notice from him. Any person who claimed any right to, or interest in, the property notified as evacuee property or required to be handed over to the Custodian, was allowed by Section 8 to prefer a written claim, to the Custodian on the ground that the property was not evacuee property or that the Ordinance did not affect his interest is it. The Custodian was authorised to hold a summary inquiry and dispose of the claim, A remarkable feature of the Ordinance was that the property of an evacuee vested automatically in the Custodian, that no declaration that the owner had become an evacuee was required at all and that even a notification that the property had vested in the Custodian was not mandatory; a notice was mandatory only if the Custodian required possession to be surrendered to him by the person in actual occupation. No action was taken by the Custodian under the Ordinance; no notice was published regarding any property of the alleged evacuees (Khatoon Bibi, Abdul Wahid and Abdul Majid) having vested in the Custodian nor did he issue any notice to the persons in possession to surrender possession to him. In reply to the contention of the opposite parties that the property of the evacuees vested automatically in the Custodian it was contended on behalf of the applicants that the Ordinance was unconstitutional. They took the plea through a supplementary petition. The Ordinance was made by the Governorof the United Provinces in exercise of the powers conferred by Section 88 of the Government of India Act. 1935, which was then in force and in pursuance of the instructions received from the Governor -General. Under Section 88 the Governor could not provide in an ordinance for and matter in respect of which the Provincial Legislature could not make a law. The Provincial Legislature could make laws in respect of the matters enumerated in Lists II and III of Schedule VII of the Government of India Act. Evacuees as defined in the Ordinance, No. I, and evacuee property were not included among the matters in the two Lists. Therefore, Section 88 of the Government of India Act did not authorize the Governor to make an ordinance like the Ordinance, No. I. The Constituent Assembly passed the Government of India (IIIrd Amendment) Act No. IV of 1949 adding in List III the matter 'custody, management and disposal of property declared by law to be evacuee property'. The Act came into force on 25 -8 -1949; with effect from that date the Provincial Legislature became empowered to make laws in respect of custody, management and disposal of evacuee property. It was not given retrospective effect and it did not validate the Ordinance, No. I, that was ultra vires the Governor before it came into force. 'A statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of 'the Constitution removing the constitutional objections but must be re -enacted,'; See Cooley's Constitutional Limitations, Volume I. page 384, and Saghir Ahmad v. State of U.P : [1955]1SCR707 . The Ordinance, No. I, therefore, remained void even after 25 -8 -49 and there did not come into existence any vesting of any property in the Custodian.;