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PETITIONER: MOHD. FAISUDDIN KHAN

       Vs.

RESPONDENT: GOVT. OF INDIA & ORS.

DATE OF JUDGMENT25/11/1975

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SARKARIA, RANJIT SINGH

CITATION:  1976 AIR  361            1976 SCR  (2) 779  1976 SCC  (2) 139

ACT:      Displaced persons  (Compensation and Rehabiliation) Act (44 of 1954) ss. 12 and 13-scope of.

HEADNOTE:      When a  notification is published under s. 12(1) of the Displaced Persons  (Compensation  and  Rehabilitation)  Act, 1954, under  s. 12(2)  the right,  title and interest of the evacuee in  the evacuee  property is  extinguished  and  the property vests  absolutely in  the Central  Government  free from all  encumbrances. Section  13 of  the Act provides for the  payment   of  compensation   for  such  acquisition  in accordance with  the  principles  agreed  upon  between  the Government of  India and  Pakistan. No  such  principles  of compensation had,  however, been agreed upon between the two Governments.      The appellant  was declared an evacuee and his property as evacuee  property. When  the notification under s. 12 was issued, he  challenged it  but the  High Court dismissed his writ petition  holding  that  the  vesting  in  the  Central Government was  unconditional and  did not  depend upon  the fixation or payment of compensation under s. 13.      Dismissing the appeal to this Court, ^      HELD: (1)  In the  face of  the clear  provision in  s. 12(2), it  could not  be contended that the evacuee property did not  vest in  the Central  Government until compensation for its acquisition had been determined and paid. [781F]      (2) The appellant could not rely on Art. 31(2) because, Art. 31(5)  expressly provides  that it shall not affect the provisions of  any law  which the  State may  make either in pursuance of  an agreement  with the Government of any other country "or  otherwise".  So  even  in  the  absence  of  an agreement with the Government of Pakistan, it is permissible for the  State to make the Act, and its provisions would not be affected by anything contained in Art. 31(2). [781CD]      (3) Under  s. 13,  compensation would have been payable to the  appellant in  accordance with  any principles agreed upon  between   the  Government   of  India   and  Pakistan. Therefore,  in   the  absence  of  such  an  agreement,  the

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appellant would  not be  entitled to claim any compensation. [781-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2409 of 1969.      From the  Judgment and  order dated the 19th July, 1968 of the  Andhra Pradesh  High Court in Writ Petition No. 1994 of 1964.      K. Rajendra  Chowdhary and  Mrs. Surendra  Krishnan for the Appellant.      I.  N.   Sinha,  Sol.   General,  Girish   Chandra  for Respondents.      The Judgment of the Court was delivered by      SHINGHAL, J.This  appeal  by  certificate  is  directed against the  judgment of  the High  Court of  Andhra Pradesh dated July  19, 1968.  It is  not in  dispute that appellant Mohd. Faisuddin Khan is 780 a citizen  of India, and was declared an evacuee by an order of the  Deputy Custodian  of  Evacuee  Property,  Hyderabad, dated September  18, 1951.  His property,  consisting  of  a building and  350 acres  of land, was declared to be evacuee property. The  Custodian of Evacuee Property issued a notice to the  appellant on  April S,  1961  calling  upon  him  to surrender possession of the property. That was followed by a notification  dated   January  20,   1962,  of  the  Central Government,  under   s.  12   of   the   Displaced   Persons (Compensation and  Rehabilitation)  Act,  1954,  hereinafter referred to  as the  Act, by  which that government acquired all  properties  which  had  been  declared  to  be  evacuee properties, for  a purpose  connected with  the  relief  and rehailitation of  displaced persons,  including  payment  of compensation.  The   appellant,  challenged   the  aforesaid notification as  unconstitutional and  applied for  writ  of certiorarai on  a proper construction of ss.12 and 15 of the Act. In  its impugned judgment, the High Court has taken the view that  on publication of the notification under s. 12(1) of the Act, the right, title and interest of the evacuee was extinguished  in   the  evacuee   property  and   it  vested absolutely  in   the  Central   Government  free   from  all encumbrances. That,  in the  view of  the  High  Court,  was unconditional, and  was not made to depend upon the fixation or payment of compensation under section 13, notwithstanding the fact that the principles for payment of compensation had not been  agreed upon  between the  Governments of India and Pakistan and  had not therefore been fixed. It has also been held that  the words  "or otherwise"  in article  31(5)  (b) (iii) of  the Constitution  are sufficiently  wide  and  the protection of the article extends to the relevant provisions of the Act so that there could be no successful challenge on the basis  of article 31(2). The evacuee feels aggrieved and has filed the present appeal.      It has  been argued  by counsel  for the appellant that the view  taken by  the High  Court is not correct, and that acquisition of  the appellant’s property under  s. 12 of the Act was  not immune  from challenge  under article 31(5) (b) (iii) of  the Constitution because no compensation had been. paid or was proposed to be paid for the acquired property.      It will  be recalled  that a notification was issued by the Central Government under s. 12 of the Act to acquire the property of  the appellant  for rehabilitation  of displaced persons. That notification was published in the gazette and,

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by virtue  of sub-s.  (2) of  that section, the right, title and interest  of the  appellant in  that property (which was admittedly  evacuee   property)  was  extinguished  and  the property vested  "absolutely in  the Central Government free from all  encumbrances." Section  13 of the Act provides for the  payment   of  compensation  for  such  acquisition  "in accordance with such principles and in such manner as may be agreed upon  between the Governments of India and Pakistan." Section 14  of the  Act goes  further and  provides for  the constitution of  a compensation  pool.  The  appellant  has, however, been  deprived of  the benefit  of these provisions because it  is the  admitted case  of the  parties that  the agreement envisaged by section 12 has not been arrived at so far between the two 781 Governments. Even  so, that.  would  not,  in  our  opinion, justify the  argument of  counsel  for  the  appellant  that clause (2)  of article  31 of  the Constitution would become applicable, for clause 5 (b) (iii) of that article expressly provides as follows:           "(5) Nothing in clause (2) shall affect ....      ..................................      (b) the  provisions of any law which the State may here      after make..........................................           (iii) in  pursuance of  any agreement entered into      between the  Government of the Dominion of India or the      Government of  India and  the Government  of any  other      country,  or   otherwise,  with   respect  to  property      declared by  law to  be  evacuee  property."  (Emphasis      added).      It would thus appear that clause (2) of article 31 will not  avail   the  appellant  because  there  is  an  express provision in  clause  (5)  that  it  shall  not  affect  the provisions of  any law  which the  State Government may make either in  pursuance of  an agreement with the Government of any other  country "or otherwise". So even in the absence of an  agreement  with  the  Government  of  Pakistan,  it  was permissible  for   the  State  to  make  the  Act,  and  its provisions would  not be  affected by  anything contained in clause (2)  of article  31 of  the  Constitution.  It  would follow that  there is  nothing  wrong  with  the  view  that compensation would  have been payable to the appellant under sec. 13  of the  Act, in accordance with such Principles and in such  manner as  might have  been agreed upon between the Governments of  India and  Pakistan, but  not otherwise. The appellant  is   therefore  not   entitled  to   claim   such compensation in  the absence  of the agreement, and there is nothing wrong  with the  conclusion arrived  at by  the High Court in the impugned judgment.      The counsel  for the  appellant tried to argue that the evacuee property  in question  could not  have vested in the Central Government  until compensation  for its  acquisition had been  determined and paid. The argument is however quite futile in  face of the clear provision of sub-section (2) of section 12  of the  Act  that  on  the  publication  of  the notification under  sub-section (1),  the right,  title  and interest of the evacuee shall be extinguished in the evacuee property and  it  "shall  vest  absolutely  in  the  Central Government free from all encumbrances."      There is  thus no  force  in  this  appeal  and  it  is dismissed but, in the circumstances of the case, without any order as to the costs. V.P.S.    Appeal dismissed. 782

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