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PETITIONER: AZIMUNISSA AND OTHERS

       Vs.

RESPONDENT: THE  DEPUTY CUSTODIAN, EVACUEE PROPERTIES,  DISTRICT  DEORIA

DATE OF JUDGMENT: 26/10/1960

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1961 AIR  365            1961 SCR  (2)  91  CITATOR INFO :  F          1967 SC1244  (7)  RF         1970 SC 413  (6)  F          1983 SC 259  (18)

ACT: Evacuee  Property-Automatic vesting under invalid  Ordinance Continuance  of  vesting  under   subsequent   enactments- Validation  of--Separation  of  evacuee   interest-Composite Property-Sale  of non-evacuee  interest-Whether   violates fundamental   rights--U.   P.  Administration   of   Evacuee Property  Ordinance, 1949 (U.  P. Ordinance 1 of 1949),  ss. 2(c)   and  5-Administration  of  Evacuee  Property   (Chief Commissioner’s  Provinces) Ordinance 1949 (Ordinance XII  of 1949),  s.  5-Administration  of  Evacuee  Property   (Chief Commissioner’s    Provinces)   Amendment   Ordinance    1949 (Ordinance  XX  of  1949), s.  8-Administration  of  Evacuee Property Ordinance 1949 (Ordinance XXVII of 1949), ss. 7 and 8-Administration  of Evacuee Property (Amendment)  Ordinance 1950 (Ordinance IV of 1950, S. 4--Administration of  Evacuee Property   Act,   1950  (XXXI  of  19.50)  ss.  7   and   8- Administration of Evacuee Property (Amendment) Act, 1960  (1 of 1960), s. 2-Evacuee Interest (Separation) Act, 1951 (LXIV of  1951), S. 10--Constitution of India, Arts. 19(1)(f)  and 31.

HEADNOTE: One  K who had a 0-2-3 share in certain properties in  Uttar Pradesh  went  to Pakistan in 1947.  The  competent  Officer took  proceedings  under the Evacuee  Interest  (Separation) Act, 1951, to separate the share of K in the property and as the. claimants were not prepared to purchase the share of K, he auctioned the entire property under s.10 of the Act.  The petitioners  contended that K was not an evacuee,  that  the property  was not composite property, that  the  proceedings under  the Act were void and that s. 10 of the Act was  void as it contravened Arts. 31 and 19(i)(f) of the Constitution. The respondents urged that the interest of K in the property had  automatically  vested  in the  Custodian  under  U.  P. Ordinance  1  of  1649 and this  vesting  was  continued  by

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Central Ordinance XII of 1949, by Central Ordinance XXVII of 1949  and Central Act XXXI of 1950 and any legal  defect  in the  vesting  was cured by Central Act 1 of 1960,  that  the property was accordingly composite property and was properly auctioned under the Separation Act.  The Petitioners replied that U. P. Ordinance 1 of 1949 and Central 92 Ordinance  XII  of 1949, were void for want  of  legislative competence and there could be no vesting in law under  their provisions which could be continued by subsequent Ordinances and Acts. Held,  that  the  property was composite  property  and  was properly  auctioned under the Separation Act.  As K  was  an evacuee  under S. 2(C) of the U. P. Ordinance, her  property automatically vested in the Custodian under s. 5 and it  was continued under the Central Ordinance XII of 1949.  Even  if these  two Ordinances were bad for legislative  incompetence the purported vesting thereunder was continued under Central Ordinance  XXVII  of 1949 and thereafter under  Central  Act XXXI of 195o and any legal defect in such vesting was  cured by Central Act 1 of 1960. Held,  further that s. 10(a) of the Separation Act  did  not contravene Arts. 31 and 19(i)(f) of the Constitution and was not void.  As the petitioners were not prepared to  purchase the  share  of K, the Competent Officer  acted  properly  in selling the property by public auction.

JUDGMENT: ORIGINAL JURISDICTION :Petition No. 56 of 1958. Petition  under Article 32 of the Constitution of India  for enforcement of Fundamental rights. A.   V.  Viswanatha  Sastri  and  G.  C.  Mathur,  for   the petitioners. C.   K.  Daphtary, Solicitor-General of India, R.  B.  Nanak Chand and R. H. Dhebar, for respondents Nos.  1 to 3. C.   K.  Daphtary, Solicitor-General of India, Harnam  Singh and  AT.  Shroff, for the respondent No. 4. J. P. Goyal, for respondents Nos. 5 to 10. 1960.  October 26.  The Judgment of the Court was  delivered by KAPUR.   J.-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:- 93                        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 94 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

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members  of the family the shares of  the  contestants  were fixed as follows:- (a)  Rehmat Bibi, Widow..0-1-6 (b)  Taghma Bibi....0-1-5 (c)  Khatoon Bibi...0-1-9 (d)  Azimunnissa....0-1-9 (e)  Shukrullah.....O-5-4 (f)  Khuda Baksh....0-4-3 On  August 28, 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. On  November 22, 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  April  17.  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 July 5, 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 that  the  property was fully specified and  identified  and that  the  notice of July 5, 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 95 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 January  8, 1953, a notice under s. 7 of the Act was  issued against  Bashir Ahmad and Nasir Ahmad and by an order  dated December  14, 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 February 15, 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 March 20, 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

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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 Assis- tant Valuation Officer and Superintendent, Valuation Office, Khan  Market, New Delhi, the former at Rs. 7,41,300 for  the construction  and  lands  and the latter  at  Rs.  14,15,000 inclusive of machinery, lands 96 and  buildings and then tentatively fixed the  valuation  at Rs.   14,15,000  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 August 13, 1956,  the property in dispute was sold to respondent No.  3 for  Rs. 16,05,000.  Against this objections were  filed  by the  petitioner  Azimunnissa and Abdul Wahid but  they  were dismissed  by  the  Competent Officer on  October  1,  1956. Against  this  order a revision was taken to  the  Appellate Officer but both of them were dismissed on October 24, 1957. in  the  meanwhile the petitioners, on September  27,  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 & 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 February 10, 1958. The  petitioners have now come to this court under  Art.  32 for  a  writ  of certiorari (1) to quash the  order  of  the Assistant  Custodian, Deoria, dismissing the  objections  of the  petitioner Khatoon Bibi on March 7, 1951; (2) to  quash the order of the Competent Officer dated March 20, 1956  and of the Appellate Officer dated October 24, 1957 and (3)  for quashing  the  sale proceedings ending in the  sale  of  the property  dated  March  13,  1956 and  (4)  for  a  mandamus directing  the  respondents to restore the property  to  the petitioners. 97 Three  questions were raised on behalf of  the  petitioners: (1) that the property was not composite property within  the Separation Act; (2) the shares of Khatoon Bibi and of Bashir Ahmad  and  Nasir  Ahmad were not  validly  declared  to  be evacuee  interest  under the various provisions of  law  and therefore the provisions of the Separation Act did not apply ; (3) section 10(a)(iii) of the Separation Act in so far  as it  directed  the sale of non-evacuee  property  contravenes arts.  19(1)(f)  and  31  of  the.   Constitution  and   was therefore unconstitutional. The decision of the case mainly depends upon the decision as to  whether the property in dispute was composite  property. Under  s. 2(d) of the Separation Act composite property  has been defined: S.   2(d) " 66 composite property " means any property which

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or any property in which an interest has been declared to be evacuee  property or has vested in the Custodian  under  the Administration  of Evacuee Property Act 1950 (XXXI of  1950) and-  (i) in  which  the interest of the evacuee consists  of  an undivided  share in the property held by him as a  co-sharer or partner of any other person, not being an evacuee." S.   2(e) " " evacuee interest " in relation to a  composite property, means the right, title and interest of ail evacuee in that property." Therefore  if  it is established that any  interest  in  the property  has  been declared to be evacuee property  or  has vested in the Custodian under the Act then the whole will be composite  property.  For the determination of the  question whether  any portion of the property in dispute was  evacuee property it becomes necessary to refer to the provisions  of the  various  laws which were passed in  regard  to  evacuee property.   The property in dispute is situate in  what  was the  United  Provinces  and the first  legislation  in  that province   as  it  then  was,  was  the   United   Provinces Administration  of Evacuee Property Ordinance, 1949 (U.   P. Ordinance No. 1 of 1949), which 98 was promulgated on June 24, 1949.  In this Ordinance evacuee and  evacuee  property  had the definition  which  has  been continued in the later Ordinances and Acts.  By s. 5 of that Ordinance  all  evacuee  property   situate  in  the  United Provinces  automatically  vested in the  Custodian  and  any person  in  possession  of such property was  deemed  to  be holding  on behalf of the Custodian (s. 6(2)).   As  Khatoon Bibi was an evacuee under s. 2(c) of the U. P. Ordinance her property  automatically vested in the Custodian under s.  5. But   the  validity  of  this  Ordinance  was   successfully challenged by the petitioners in the Allahabad High Court in Azimunissa  v. Assistant Custodian (1).  The ground for  the challenge  was that there was no entry in the lists  in  the Seventh Schedule of the Constitution Act, 1935, dealing with evacuee property and there was no public notification by the Governor  General as required by s. 104 of the  Constitution Act, 1935.  This Ordinance, i.e., U. P. Ordinance 1 of  1949 expired on August 23, 1949. On  June  13,  1949, the Governor  General  promulgated  the Administration  of  Evacuee Property  (Chief  Commissioners’ Provinces)  Ordinance XII of 1949 and it was extended to  U. P.  on  August  23, 1949, by Ordinance XX of  1949  after  a resolution was passed by the U. P. Legislature under s.  103 of  the Constitution Act.  Section 5 of the former  provides for the vesting of property in the Custodian as follows:- S.   5(1) " Subject to the provisions of this Ordinance  all evacuee  property  situate in a Province shall vest  in  the Custodian for that Province. (2)  Where,  immediately  before the  commencement  of  this Ordinance any evacuee property. in a Province had vested  in any  person exercising the powers of a Custodian  under  any corresponding  law  in force in  that  Province  immediately before such commencement, the evacuee property shall, on the commencement of this Ordinance, be deemed to have vested  in the   Custodian  appointed  for  the  Province  under   this Ordinance ". Section 8 of Ordinance XX added s. 41 to Ordinance (1) A. I. R. 1957 All 561. 99 Thus  under  s.  5  in spite of the  expiry  of  the  U.  P. Ordinance  the property of Khatoon Bibi was deemed  to  have vested  in the Custodian under the provisions  of  Ordinance

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XII of 1949.  But this Ordinance (XII of 1949 as amended  by Ordinance XX of 1949) suffered from the same  constitutional defect  as  the U. P. Ordinance 1 of 1949.   On  August  25, 1949,  item 31-B relating to " evacuees " was added  to  the concurrent list by the Government of India Act (Third Amend- ment)  Act of 1949 and thus this constitutional  vacuum  was filled  up.   On  October 18,  1949,  the  Governor  General promulgated the Administration of Evacuee Property Ordinance (XXVII  of  1949).   It  repealed  Ordinance  XII  of  1949. Section  7  of this Ordinance provided  for  declaration  of evacuee property and s. 8 for vesting of evacuee property in the Custodian.  The relevant portions of s. 7 are :- S.7 "Where the Custodian is of opinion that any property  is evacuee  property within the meaning of this  Ordinance,  he may, after causing notice thereof to be given in such manner as  may be prescribed to the persons interested,  and  after holding such inquiry into the matter as the circumstances of the  case permit, pass an order declaring any such  property to be evacuee property" S.   8 " Any property declared to be evacuee property  under section 7 shall vest in the Custodian. (2)  Where  immediately  before  the  commencement  of  this Ordinance  any evacuee property in a Province had vested  in any  person exercising the powers of a Custodian  under  any law  repealed  hereby, the evacuee property shall,  on  the commencement  of the Ordinance, be deemed to have vested  in the Custodian appointed or deemed to have been appointed for the Province under this Ordinance, and shall continue to  so vest ". These provisions were materially different from that in  the previous Ordinances as there was no automatic vesting in the Custodian. Thus  any vesting under Ordinance XII of 1949 was deemed  to be  under Ordinance XXVII of 1949 as if the latter had  been in  force  on  the  date  of the  vesting.  By  s.4  of  the Administration of Evacuee 100 Property (Amendment) Ordinance IV of 1950, s. 8 of Ordinance XXVII of 1949 was substituted by a revised section s. 8. The relevant portion of this section provided:- S.   8(2) "Where immediately before the commencement of this Ordinance, any property in a province bad vested as  evacuee property in any person exercising the powers of a  Custodian under  any law repealed hereby, the property shall,  on  the commencement  of  this  Ordinance be deemed  to  be  evacuee property  declared  as  such  within  the  meaning  of  this Ordinance  and  shall  be  deemed  to  have  vested  in  the Custodian appointed or deemed to have been appointed for the Province  under  this Ordinance, and shall  continue  to  so vest. Provided that where, at the commencement of this  Ordinance, there  is pending before the Custodian for any province  any claim  preferred  to him in respect of  any  property  under section   8  of  the  Administration  of  Evacuee   Property Ordinance,   1949  (XII  of  1949),  or  under   any   other corresponding  law  repealed hereby,  then,  notwithstanding anything contained in this Ordinance or in any other law for the  time being in force such claim shall be disposed of  as if  the definitions of I evacuee property ’ and I evacuee  ’ contained  in  section  2  of  this  Ordinance  had   become applicable thereto." Under  this  provision  of the Ordinance the  effect  as  to vesting was that it was deemed to be under this Ordinance. On  April 18, 1950, the Administration of  Evacuee  Property Act, 1950 (XXXI of 1950), which has been referred to as  the

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Act  was passed by Parliament.  It repealed Ordinance  XXVII of  1949.  The definitions of evacuee and  evacuee  property are  the same as in Ordinance XXVII.  Section 7 of  the  Act and  s.  8  also  are in the  same  terms.   The  provisions regarding vesting of evacuee property in the Custodian  were also  same  as  in  the amended s.  8  of  Ordinance  XXVII. Section 58 deals with repeals and savings. Therefore  the  consequence  of s. 8(2)  was  that  property vested under Ordinance XXVII was deemed to 101 be vested under the corresponding provision of the Act. On   February  27,  1960,  the  Act  was  amended   by   the Administration  of  Evacuee Property (Amendment)  Act  1  of 1960.   Sub-section (2-A) was added to s. which was  in  the following terms:- (2-A) "Without prejudice to the generality of the provisions contained  in sub-section (2) all property which  under  any law  repealed  hereby  purports to have  vested  as  evacuee property in any person exercising the powers of Custodian in any  State  shall,  notwithstanding any  defect  in  or  the invalidity  of, such law or any judgment, decree,  order  of any Court, be deemed for all purposes to have validly vested in  that person, as if the provisions of such law  had  been enacted  by  Parliament  and such property,  shall,  on  the commencement  of  this Act, be deemed to have  been  evacuee property declared as such within the meaning of this Act and accordingly,  any  order made or other action taken  by  the Custodian  or  any  other  authority  in  relation  to  such property  shall be deemed to have been validly and  lawfully made or taken ". The argument raised on behalf of the petitioner was that  U. P.  Ordinance 1 of 1949, Central Ordinance XII of  1949  and Central Ordinance XX of 1949 were invalid as the legislative competence  of the Governor and of the  Governor-General  in regard to evacuee and evacuee property matters was wanting ; and all that sub-s. (2-A) of s. 8 added by Act 1 of 1960 did was to save any vesting which purported to have taken  place under  Ordinance  XXVII but it did not purport to  cure  any invalidity  due to constitutional incompetence and that  the law  made  without  constitutional authority  could  not  be validated.  Reference was made to Saghir Ahmad v. The  State of U. P. (1) where at page 728 the following statement  from Cooley’s Constitutional Limitations, Vol  , page 384 (note) :- " A statute void for unconstitutionality is dead and  cannot be vitalised by a subsequent amendment (1)  [1955] 1 S.C.R. 707, 728. 102 of  the Constitution removing the  constitutional  objection but must be reenacted "  was held to be sound law. Reference was also made to M.P. V. Sundararamier    & Co. v. The  State  of Andhra Pradesh(1) where a    distinction  was drawn between the unconstitutionality due to incompetency of the    Legislature   and   disregard    of    constitutional prohibitions. The respondents in reply contended that there was no  defect in  the notice issued to Khatoon Bibi and her  property  was properly  and sufficiently described therein and that Act  1 of  1960 validated the vesting and removed all  defects  and invalidity, if any, arising as a result of the  deficiencies in the various laws operating on her case. The  first notice to Khatoon Bibi was under Ordinance  XXVII dated  November  22, 1949, against which her  husband  Abdul Barkat  filed objections. but evidently no order was  passed

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on  it.  The second notice which was given on July 5,  1950, sufficiently  specified the property.  Against  this  notice objections  were  again  raised by  Abdul  Barkat  but  were dismissed  by the order dated March 7, 1951, and no  further appeal or revision or any other proceeding was taken against that  order and any defects and deficiencies whether of  law or  otherwise  cannot now be raised.   It  was  specifically stated  in  that order that the property  was  sufficiently, though  not  thoroughly,  described and  that  property  was declared  to be evacuee property.  The appellants  contested the  correctness of the fact that the property was  properly described and referred to the judgment of the Allahabad High Court in Azimunnissa v. Assistant Custodian(2) (p. 568, para 10)  which  indicates that there was no description  of  the property.   In the view that we are taking this  controversy loses its vitality. The  second  plea taken by the respondents was that  by  the insertion  of  s.  8(2A)  in  the  Act  by  Act  1  of  1960 retroactive  effect was given to the provisions of  the  Act and  the vesting of any evacuee property which purported  to have been vested as evacuee property in  (1) [1958] S.C.R. 1422, 1469. (2) A.I.R. 1957 All. 561. 103 the Custodian was validated notwithstanding any defect in or invalidity  of such law and on the commencement of that  Act (Act 1 of 1960) the property which purported to have  vested in  the Custodian was deemed to have been  evacuee  property declared  as,  such within the meaning of the  Act  and  any order  made or action taken by the Custodian must be  deemed to have been validly made or taken. The  word " purport " has many shades of meaning.  It  means fictitious, what appears on the face of the instrument;  the apparent  and  not the legal import and  therefore  any  act which  purports to be done in exercise of a power is  to  be deemed to be done within that power notwithstanding that the power   is  not  exercisable;  Dicker  v.  Angerstein   (1). Purporting  is therefore indicative of what appears  on  the face of it or, is apparent even though in law it may not  be so.   This means that at the time when the Act purported  to vest  the property in dispute in the Custodian  even  though the  power  was  not  exercisable, s.  8(2-A)  by  giving  a retrospective effect to s. 8(2) of the Act makes the vesting as if it was vesting under s. 8(2) of the Act and  therefore the attack on the ground of invalidity cannot be  sustained. By s. 5 of U. P. Ordinance 1 of 1949 the property of Khatoon Bibi who became an  evacuee’ under s. 2(c) and her  property ’  evacuee  property’  under  s.  2(d)  was  vested  in  the Custodian of Evacuee Property of the province of U. P.  That Ordinance was allowed to lapse.  By Central Ordinance XII of 1949 as subsequently amended the vesting of evacuee property was deemed to be under that Ordinance, which in its turn was repealed under s. 55 of Ordinance XXVII of 1949 which was  a valid  piece of legislation.  By s. 8(2) of  that  Ordinance the  vesting under the previous Ordinance was deemed  to  be under  that Ordinance as if it was in force on the  date  of the  vesting.  Ordinance XXVII of 1949 was repealed  by  the Act  which  contained provisions as to vesting in  s.  8(2), which was similarly worded as the corresponding provision of the Ordinance and therefore by a fiction of law the original vesting was to be treated as (1)  (1876) 3 Ch.  D. 600, 603. 104 if  the Act was in force when the first vesting took  place. The High Court of Allahabad in Azimunnissa’s

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case (1) held the vesting to be invalid because upto the time of Ordinance XII of 1949 and even Ordinance XX of  1949 legislative competence was lacking, and even by the  deeming provisions in s. 8(2) of Ordinance XXVII of 1949 or Act XXXI of  1950  there was no valid vesting, because  the  original vesting  was bad.  We think it unnecessary to decide  as  to whether  the deeming provision of s. 8(2) of the Act  or  of Ordinance  XXVII of 1949 was sufficient to give validity  to the vesting.  Section 8(2-A) as introduced into the Act,  in our  opinion,  makes  the vesting valid,  because  it  gives validity to the vesting which purported to have taken  place as  a result of Ordinance XXVII of 1949 even though  it  was only  apparently so and was not so in law, because  that  is what I purport’ implies. The  effect  of  s. 8(2-A) is that what  purported  to  have vested under s. 8(2) of Ordinance XXVII of 1949 and which is to  be  deemed  to be vested under s. 8  of  the  Act  which repealed  that Ordinance, notwithstanding any invalidity  in the  original  vesting or any decree or order of  the  Court shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the  property shall be deemed to be valid.  Thus  retrospec- tive  effect  is  given  to the Act  to  validate  (1)  what purports to be vested; (2) removes all defects or invalidity in  the  vesting  or  fictional vesting  under  s.  8(2)  of Ordinance  XXVII  of  1949  or s. 8(2)  of  the  Act which repealed the Ordinance; (3) makes the decrees and  judgments to  the  contrary  of any court in  regard  to  the  vesting ineffective; (4) makes the property evacuee property by  its deeming  effect; and (5) validates all orders passed by  the Custodian  in  regard  to  the  property.   Because  of  the retrospective  effect  given to the Act and  the  validating effect  of Act 1 of 1960 Saghir Ahmad’s case (2) would  have no  application.   In  the  view we  have  taken  the  other question does not survive and the share of Khatoon Bibi must be held to be evacuee property validly (1) A.I.R. 1951 All. 561 (2) [1955] 1 S.C.R. 707. 105 vested in the Custodian.  Therefore the property in  dispute does  fall  within the definition of composite  property  as given in s. 2(d) and cannot be held to be invalid. It  was  then argued that by the sale of the  property  non- evacuees  had been illegally deprived of their property  and therefore s. 10, cl. (a) contravenes the provisions of Arts. 31 and 19(1)(f).  This contention is equally  unsubstantial. The relevant provision of s. 10 is as follows:-- "Notwithstanding  anything  to the contrary in  any  law  or contract  or any decree or order of a Civil Court  or  other authority,  the competent officer may, subject to any  rules that  may be made in this behalf, take all such measures  as he may consider necessary for the purpose of separating  the interests of the evacuees from those of the claimants in any composite property, and in particular may,- (a)  in the case of any claim of a co-sharer or partner,- (i)  direct the Custodian to pay to the claimant the  amount of  money assessed in respect of his share in the  composite property  or  deposit  the  same in  a  Civil  Court  having jurisdiction  over such property and deliver  possession  of the property to the Custodian and the claimant may  withdraw the amount in deposit in the Civil Court; or (ii) transfer the property to the claimant on payment by him of  the amount of money assessed in respect of the share  of the evacuee in the property ; or (iii)  sell the property  and distribute the  sale  proceeds

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thereof between the Custodian and the claimant in proportion to  the  share  of the evacuee and of the  claimant  in  the property ; or (iv) partition  the  property  according to  shares  of  the evacuee  and  the  claimant and deliver  possession  of  the shares  allotted  to  the evacuee and the  claimant  to  the Custodian and the claimant respectively." Thus  the  alternatives open to the Competent  Officer  were four: of these (1) the payment by the Custodian of the money value of the share of the non-evacuees 14 106 to the non-evacuees; and (2) the payment to the Custodian by the  non-evacuees  of the money value of the  share  of  the evacuees were not available to him.  The former in this case was  neither claimed nor could the Custodian be expected  to pay  such  a large sum of money to  the  non-evacuees.   The order of the Competent Officer of March 20, 1956, shows that the  nonevacuee co-sharers were not prepared to pay  to  the Custodian the money value of the shares of the evacuees.  of the  remaining  alternatives the third alternative  was  the partitioning of the property but that also was not  possible in  the present case because of the nature of the  composite property  which comprised of a sugar mill which in the  very nature of things could not be partitioned.  Consequently the only available mode of separation was the one adopted by the Custodian’.  i.e., by sale of the property and  division  of the  sale proceeds.  In the circumstances the action of  the Competent  Officer  could  not  be  termed  unreasonable  or violative  of  Art.  19(1)(f) nor does it  violate  Art.  31 because  it  cannot be said to be deprivation  of  the  non- evacuees of their property without the authority of law. In  the  result this petition fails and  is  dismissed  with costs. Petition dismissed.