Passey, C.J. - (1.) THIS is a petition under Art. 226 of the Constitution for a writ of certiorari quashing the order of the competent officer, Patiala dated 20 -12 -1952 and a writ of prohibition restraining the Custodian Muslim Evacuee Property, Pepsu from taking possession of 3 bighas and 15 biswas of agricultural land (Khasra No. 73) in village Suhron of the Rajpura Tehsil.
(2.) THE land in question belonged to one Karam Bux evacuee and had been held in usufructuary mortgage by the petitioners for a period of over 20 years. The Competent Officer respondent 1 acting under Cl. (2) of S. 9 of the Evacuee Interest (Separation) Act, 1951 (Act 64 of 1951) (hereinafter called the Act) has held the mortgage to have extinguished and respondent 2 (Custodian, Muslim Evacuee Property) to be entitled to the immediate possession of the land without paying anything to the mortgagees. There are 40 other similar petitions in which the lands have been subject to usufructuary mortgages and the mortgages have, due to the mortgagees having been in possession and enjoyment of profits for the period specified in the mortgage deed, or 20 years, whichever was less, been extinguished; and where the agreed period or 20 years had not yet expired, the mortgage debt due has been determined keeping in mind the proportion which the unexpired portion of that period bore to the total of that Period. In one of these 41 petitions the present mortgagee is the transferee from the original mortgagee but that cannot distinguish him from the other petitioners who are original mortgagees as he having stepped into the -shoes of his transferor, has become entitled to all the rights and subject to all the obligations that arose from the original contract. Section 9 of the Act deals with usufructuary mortgages in possession irrespective of whether the mortgagee is an original mortgagee or a transferee from him. As in all these petitions the same points of law are involved they can easily be disposed of together. The owners of the land involved in these petitions were Muslims who due to the partition of India in 1947 and the terrible communal frenzy that flared up in the wake of that partition left for Pakistan or other places outside the territories now forming India. The evacuee owners had mortgaged their lands with possession to non -evacuees and the mortgagees had been deriving profits from those lauds and appropriating those -profits from the dates of the mortgages. The value of the right to redeem represents the equity of redemption and the extent of the interest of the evacuee in his land. That equity of redemption vests in the Custodian by virtue of the operation of S. 8, Administration of Evacuee Property Act (31 of 1950) and the interest of the mortgagee in possession is evidently immovable property. Because of the admixture of the interest of the evacuee mortgagors and the rights of the non -evacuee mortgagees in one and the same property, the mortgaged lands constitute 'composite property' as the term is defined in cl. (d) of S. 2 of Act 31 of 1950. Composite properties presented complex problems not easy of solution with the help of the provisions of the Administration of Evacuee Property Act (31 of 1950), because of the intertwining of evacuee and non -evacuee interests. As it was felt necessary that no doubt might remain regarding the nature or value of the property that had become vested in the Custodian, measures had to be adopted to determine the individual extent of the two interests. With that object in view Act 64 of 1951 was enacted and it came into force from 29 -10 -1951, the date it received the assent of the President. By cl. (1) of S. 9 of that Act no mortgaged property of an evacuee can be liable to pay interest at a rate higher than 5 per cent p.a. on the principal and according to cl. (2) usufructuary mortgages of agricultural land are to be extinguished without any payment on the termination of the period for which the mortgage was effected or 20 years whichever is earlier from the date of the execution of the mortgage deed. In cases in which the agreed period of mortgage has not expired or 20 years have not passed, the Competent Officer has been authorized to fix the mortgage debt having regard to the proportion which the unexpired portion of the period bears to the total of that period. To know the precise reparative scope of the section it may be useful to reproduce it together with its marginal headings: (9) Certain Relief's In Respect of Mortgaged Property of Evacuees: (1) Notwithstanding anything to die contrary in any law or contract or any decree or order of a civil court or other authority, where the claim is made by a mortgagee, no mortgaged property of an evacuee shall, subject to the provisions of sub -S. (2), be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced or deemed to have been advanced. (2) Where a mortgagee has taken possession on any terms whatsoever of any agricultural land and is entitled to receive profits accruing from the land and to appropriate the same, every such mortgage shall be deemed to have taken effect as a complete usufructuary mortgage and shall be deemed to have been extinguished on the expiry of the period mentioned in the mortgage deed or twenty years, whichever is less, from the date of the execution of the mortgage deed; and if the aforesaid period has not expired and the mortgage debt has not been extinguished, the competent officer shall determine the mortgage debt due having regard to the proportion which the unexpired portion of that period bears to the total of that period. It may be stated at once that it is not the case of the petitioners that the Act is ultra vires of the Constitution. The attack is confined to the vires of S. 9 of the Act alone, the contention being that it (S. 9) goes beyond the purpose for which the law embodied in Act 64 of 1951 was made.
(3.) AS the preamble would show the Act was brought on the statute book for it was deemed expedient by the Parliament to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons were also interested and for matters connected therewith. The object of the Act apparently, therefore, was not only the separation of the interests of the evacuees from those of the non -evacuees but also to deal with other matters that were closely connected with the separation of those interests. The words 'other matters connected therewith' in my view, cover and include, although not very directly, the effectuation of separation of the evacuees interest through the mode prescribed in cl. (2) of S. 9. Section 9 devises a practicable method of separating and assessing the two interests in composite property by doing which it becomes possible to make evacuee interest available for a pool, which might be used for the implementation of an appropriate compensation scheme for the benefit of the displaced persons. The Act lays down certain rules for dealing with certain problems connected with the administration of evacuee property not directly regulated by the provisions of Act 31 of 1950 and it aims at separating evacuee, interest from non -evacuee interest so that the evacuee interest may be managed more effectively. In that sense the aim of the Act is in continuation of the aim with which Act 31 of 1950 was passed by the legislature and it will, therefore, be not wrong to regard the Act to be virtually an addendum to Act 31 of 1950 as the Act in the context of administration of evacuee property, provides a method by which evacuee interest is to be extricated out of composite property and managed or dealt with separately.;