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TMI Blog1951 (2) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ere declared to be intending evacuees under Section 19 of the same Ordinance. 2. The undisputed facts are as follows: There was a firm known as Gani & Sons doing business for several years in the City of Madras. From 1943 the firm consisted of four partners, M. A. Gani (the father) & his three sons, M.I. Namazi, M.E. Namazi & M.B. Namazi. From 1946 the share of each partner was fixed at one fourth. In September 1948 one of the partners M.E. Namazi left for Karachi where he was married & he has since been residing at Karachi. Sometime in 1949, the business of a company in Karachi known as Keale & Co. was purchased by M.A. Gani, the father. All these facts are admitted. The applicant further states that though it is true that M.E. Namazi has settled in Karachi i.e., in Pakistan, he has an intention of returning to India after the lifetime of his mother-in-law at whose instance he stayed away in Karachi. It is further stated that there was a dissolution of the partnership from 1-4-1949 when M.E. Namazi ceased to be a partner & took away the moneys representing his share in the partnership & it was with these moneys & for his sole benefit that the business of Keale & Co. was purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleged dissolution in April 1949 was sham & was only put forward to circumvent the provisions of the Ordinance, that at the time of purchasing Keale & Co. the firm had not been dissolved & M. E. Namazi continued to be a partner & therefore the assets of the company had been transferred to Pakistan. He therefore declared on this ground that the partners of Gani & Sons namely M.A. Gani, M.B. Namazi & M.I. Namazi were intending evacuees under Section 19 of the Ordinance. 5. In the connected matter (A. C. No. 224 A) the Assistant Custodian declared M.E. Namazi an evacuee under Section 2 (d) (i) of the Ordinance & his share of Messrs. Gani & Sons as evacuee property under Section 2 (f) of the Ordinance. Section 2 (d) (i) is in the following terms: " 'Evacuee' means any person......... (i) who, on account of the setting up of the Dominions of India & Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after 1-3-1947, left, any place in a Province for any place outside the territories now forming part of India.' 6. In this application we must accept the findings of fact arrived at by the Assistant Custodian. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on A. C. No. 224 of 1949 though passed on 10-4-1950, had not been published in the Gazette. Under Section 19 (2) of the Ordinance, any declaration made under Sub-section (1) of that section shall be published in the Official Gazette. Assuming that it had not been published before the application was filed before us, we do not see what follows. The important thing was the declaration by the custodian & this application was directed against that order. The learned Advocate General on instructions said that the notification was not published as in the meanwhile this Court admitted the application for a writ & called for the papers & directed 'interim' stay. Whatever be the reason, the point is whether the applicant does or does not feel aggrieved by the order of the 10-4-1950 which he seeks to have quashed. If he is, it does not matter if it had not been published. 11. Something was sought to be made out of the fact that on 17-4-1950, Act XXXI (31) of 1950 came into force & this Act repealed Ordinance No. XXVII (27) of 1949. The declaration regarding M.E. Namazi was published in the Gazette of 25-4-1950. It was contended that the date of publication was the important date a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... migrated to Pakistan after 1-3-1947. It is true that a person does not lose his domicile merely by migration. The presumption in the case of fugitive from his country on account of disturbances therein is that he has still at abandoned his intention of returning to it, & therefore still retains his domicile in his native land (see Phillimore's International Law, Edn. 3, Vol. IV, p. 138). But we are not concerned with general rules of International law as we have specific provisions in the Constitution on this subject. Article 5 declares that every person who has his domicile in the territory of India at the commencement of this Constitution who was born or either of whose parents was born in the territory of India, or who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India. But Article 7 expressly makes an exception. It says, "Notwithstanding anything in Articles 5 & 6 a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India." The proviso Is not mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a provision for the custody & administration of such property & not for confiscation. The evacuee's title as such is never affected. Even the rights of a heir are recognised. Restoration of the property is contemplated. The Custodian acts practically as a statutory agent with large powers, but under a duty to keep accounts. Article 14 of the Constitution runs as follows: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". This Article has recently come up so much for discussion that it is unnecessary to repeat what has been said before by this Court & by the Supreme Court. No doubt, this article applies to aliens also. It has been held time & again in the United States that aliens are entitled to the protection of both the due process clause & the equality clause, see Willis Constitutional Law, p. 583; Weaver's Constitutional Law, p. 403. But it has also been held that there can be a certain amount of discrimination so far as aliens are concerned which would be justified under the police power of the state, e.g. "An auctioneer's licence may be refused to an alien. He may be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory agent or manager. The position of the Court of Wards under the Court of Wards Act is analogous. We cannot describe a statute which provides for possession through a special kind of agent as an enactment which deprives the owner of his constructive possession. I am therefore of opinion that Article 31 does not come into the picture at all. There is no deprivation of the property of the evacuee within the meaning of Article 31(1). Nor is there any taking possession or acquisition falling under Article 31(2). An Act, for instance, like the Court of Wards Act, which provides for the Court of Wards assuming management of the properties of a proprietor who is declared to be disqualified cannot be described as an Act depriving the ward of his property or as contemplating an acquisition of his property by the State. I cannot understand how any compensation can be given to the evacuee when the Custodian keeps accounts of all receipts & disbursements relating to his property & there is provision for restoration at a subsequent date. 15. I do not therefore think it necessary to embark on a discussion of what is meant by "public purpose" & what is included in the words "s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is, however, one thing about which I am not quite clear. The Ordinance no doubt declares the order of the Custodian declaring any property to be evacuee property as final. That might be so in one sense, i.e., if any property belongs to a person who has been declared to be an evacuee within the meaning of the definition in the Ordinance, then the custodian's order would be final. But, does the finality amount to an adjudication on title in case there is any dispute? Take for instance the case where a property is declared to be evacuee property on the assumption that it belongs to A who is an evacuee. Does it mean that some one else cannot say that the property really does not belong to the evacuee but belongs to himself who is not an evacuee? I am inclined to hold that the order of the Custodian or the notification under Section 7 of the Ordinance is not final, in case of disputed title. 18. Then we come to the case of intending evacuees. Obviously a mere declaration under Section 19 of the Ordinance that a person is an intending evacuee does not in any way injure that person. The question is whether the consequences of such declaration inflict on him any injury & if so w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant though declared to be an intending evacuee is still a citizen of India. There can be no doubt about that & the learned Advocate General did not contest the position. The applicant falls within the definition of a citizen under Article 5 of the Constitution as he has not migrated to Pakistan. He will therefore be entitled to all the fundamental rights declared in Part III of the Constitution. In particular he invokes Articles 15 & Article 19(1)(f). 20. The contention based on Article 15(1) may be briefly disposed of. The argument is that a discrimination has been made against persons of a particular religion, namely, Muslims. It may be that actually most of the persons to whom the provisions of the Ordinance may apply are likely to be Muslims, but there is nothing in the Act which necessarily leads to any discrimination. If a non-Muslim falls within the definition of an evacuee or an intending evacuee then the Ordinance would apply equally to him. Reference was made to the well-known case of 'Yick Wo v. Hopkins', (1886) 118 US 356. In that case the Supreme Court of the United States declared the general doctrine thus, "Though the law be fair on its face & i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated on what grounds the Custodian may refuse to approve any transfer by an intending evacuee, but I was told that there was no rule in regard thereto. The result is that as the section stands, the Custodian can arbitrarily refuse to approve any transfer by an intending evacuee. The words "transfer in any manner" are wide enough to include even an ordinary lease. The learned Advocate General was unable to convince me why & how the interests of the general public demanded a restriction on the power of an intending evacuee to lease his property or to sell or to make a gift of it. It may be said that the Custodian would not ordinarily refuse to approve any transfer unless for proper grounds. But surely that would be gambling on the reasonableness of the Custodian. As the section stands, there is nothing to prevent the Custodian from most unreasonably refusing to approve of any transfer by an intending evacuee. I can understand a provision giving power to the Custodian, to prohibit a transfer to an evacuee. I can well understand previous intimation to the Custodian being made a condition, because the Custodian would then take steps to prohibit the transfer to Pakistan of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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