1951 (2) TMI 25 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the declaration of evacuee property.
2. Validity of the declaration of intending evacuees.
3. Compliance with procedural requirements under the Ordinance.
4. Constitutionality of the Ordinance under Articles 14, 15, 19, and 31 of the Constitution.

Issue-wise Detailed Analysis:

1. Validity of the Declaration of Evacuee Property:
The application was filed under Article 226(1) of the Constitution to issue a writ of certiorari to quash the orders passed by the Assistant Custodian of Evacuee Property, Madras. The Assistant Custodian declared M.E. Namazi an evacuee under Section 2(d)(i) of the Administration of Evacuee Property Ordinance (XXVII of 1949) and his one-fourth share in Messrs. Gani & Sons as evacuee property under Section 2(f) of the same Ordinance. The declaration was based on the fact that M.E. Namazi had migrated to Pakistan after 1-3-1947. The Court accepted the findings of the Assistant Custodian and found no error of law in his conclusions, affirming that the circumstances justified the declaration.

2. Validity of the Declaration of Intending Evacuees:
The Assistant Custodian declared Gani Namazi, M.B. Namazi, and M.I. Namazi as intending evacuees under Section 19 of the Ordinance. The declaration was based on the transfer of assets to Pakistan and the acquisition of property in Pakistan (Keale & Co.). The Court upheld the finding that the alleged dissolution of the partnership was a sham and that the assets of the partnership had been transferred to Pakistan, thus justifying the declaration of intending evacuees.

3. Compliance with Procedural Requirements under the Ordinance:
The applicant raised technical objections regarding the non-publication of the order in the Gazette and the repeal of the Ordinance by Act XXXI of 1950. The Court found that the declaration by the custodian was the important factor, and the non-publication did not affect the validity of the order. Section 58 of Act XXXI of 1950 ensured that actions taken under the repealed Ordinance remained valid.

4. Constitutionality of the Ordinance under Articles 14, 15, 19, and 31 of the Constitution:
The applicant contended that the Ordinance was void as it violated Articles 14, 15, 19, and 31 of the Constitution. The Court analyzed the provisions separately for evacuees and intending evacuees:

- Article 14 (Equality Before Law): The Court held that the provisions did not violate Article 14 as they were intended to safeguard the rights and interests of evacuees and did not amount to unjust discrimination.

- Article 15 (Prohibition of Discrimination): The Court found no discrimination based on religion as the Ordinance applied equally to all persons falling within its definitions, regardless of religion.

- Article 19 (Right to Property): The Court found that the restrictions imposed by Sections 20 and 21 of the Ordinance were reasonable in the interests of the general public. However, Section 20, which required the Custodian's approval for any transfer of property by intending evacuees, was deemed an unreasonable restriction on the right to dispose of property.

- Article 31 (Right to Property): The Court held that the Ordinance did not deprive evacuees of their property but rather provided for its administration and management. The Custodian acted as a statutory agent, and there was no violation of Article 31.

Conclusion:
The application was dismissed as the declarations of evacuee and intending evacuees were found to be valid and in compliance with the Ordinance. The Court granted a certificate under Article 132(1) of the Constitution, acknowledging that the case involved a question of law regarding the interpretation of the Constitution.