S M ZAKI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner S.M. Zaki, has been declared an evacuee under Section 2(d)(i) of the Administration of Evacuee Property Ordinance, 1949, (Ordinance 27 of 1949) by the Assistant Custodian. The ground for declaring him an evacuee is that he left India due to the setting up of the Dominions of India and Pakistan. As a result of the declaration the properties of the petitioner have been declared to be 'evacuee' properties and have vested in the Custodian. The said order of the Assistant Custodian has been upheld on appeal by the Deputy Custodian by an order dated 9-6-1950. The petitioner has consequently moved for a writ of certiorari for quashing the orders aforesaid, and also for a mandamus restraining the opposite party the State of Bihar, and the Assistant Custodian and the Deputy Custodian of Evacuee properties from interfering with his possession and enjoyment of the properties belonging to the petitioner.

(2.) The petitioner claims that he is a citizen of India having his domicile and residence in the territory of this dominion. At the time of the partition of the country he was in service as a railway employee of the then East Indian Railway. Prior to the partition, he was given an option as to whether he intended to serve in India or Pakistan, and he opted for service in the latter dominion. He, however, states that he never abandoned his domicile or residence in India, and that his wife and children continued to stay here in village Alianagar Pali Police station Jehanabad in the District of Gaya. He further says that off and on he visited his family and looked after his properties but was compelled to stay in Pakistan merely because of the exigencies of service. He, therefore, submits that he never left the territory of India either before or after the 1st day of March 1947, for any place outside it, and the order declaring him an evacuee was entirely illegal and without jurisdiction. In a supplementary affidavit filed alter his application for the aforesaid writ, he stated that when he learnt that proceedings were pending against him, he addressed a petition dated 10-4-1950, to the Assistant Custodian Jehanabad, and forwarded copies of the petition to the District Magistrate of Gaya, the District Mechanical Engineer, East Indian Railway, Lalmanirhat, where he was serving, the General Manager, East Bengal Railway, Chittagong, the District Magistrate of Rangpur and the Assistant Secretary to Government East Bengal. He says he did send a copy of the petition to the railway authorities and the Government of East Bengal in order to apprise them of the fact that he never had or has any intention of giving up his domicile in India, and that his slay in Pakistan was only temporary and for the period of his service. A copy of the petition formed an annexure to the supplementary affidavit. In the petition he recited that he had reliably learnt of his being treated as an evacuee; and that accordingly notices had been served to show cause as to why all his properties moveable and immovable should not be seized under the Bihar Evacuee Ordinance or Act. He then proceeds to explain in the petition that he was a railway employee and had gone to serve in Pakistan on option in ordinary course, and then to retire to his native place; and that he had not purchased any property in Pakistan with a view to settle down there or sold any of his belongings in India. On these facts, it is urged on behalf of the petitioner that he was not an evacuee at all but a national and citizen of India, and the Evacuee Property Ordinance or the Evacuee Property Act had no application to him. It may be observed that the Evacuee Property Ordinance was later substituted by an Act being the Administration of Evacuee Property Act (Act 31 of 1950) -- hereinafter called the Evacuee Property Act.

(3.) The orders of the Assistant Custodian and that of the Deputy Custodian affirming it show that he was declared an evacuee under Section 2(d) (i) of the Ordinance because he had left India after the setting up of the two dominions having opted for service in Pakistan as a railway employee. The question, therefore, which arises for consideration is whether on this ground alone the said authorities were competent to declare him an evacuee within the meaning of the Evacuee Property Ordinance or Act. Dr. Sultan Ahmad on behalf of the petitioner contended firstly that the petitioner was ,not an evacuee but an Indian National and could not be declared an evacuee merely because in ordinary course he had opted for service in Pakistan, and secondly, that if the ordinance or the Act intended to declare an Indian citizen an evacuee it was ultra vires the Constitution. He also suggested that in any case it would be unfair on the part of the Government of India to impose the restrictions contemplated by the Ordinance or the Act after having given the petitioner the choice to serve in Pakistan. To deal with these contentions it would be necessary to examine the relevant provisions of the Evacuee Property Ordinance or Act and the Constitution.