UMAR YASHIR ASHIM Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution praying for an appropriate writ against the opposite party for quashing of an order passed against the petitioner declaring him an evacuee under Section 2(d)(ii) of the Evacuee Property Ordinance, and also for restraining the opposite party from interfering with his estate. This case was heard along with -- 'S. M. Zaki v. State of Bihar', AIR 1953 Pat 112 (A) because, the points involved were substantially common.

(2.) The Assistant Custodian by an order dated 29-6-1950, found that the petitioner was a resident of Pakistan and for that reason was unable to occupy or supervise or manage in person his property in India. On appeal, the Deputy Custodian affirmed the said order. These officers found that the petitioner had purchased about 15 kathas of land bearing a house in Dinaj-pur sometime in January, 1948. The petitioner tried to explain that ha was merely a name-lender in respect of that purchase, but this explanation was held to be false. In the sale deed relating to the purchase in question the petitioner was described as a resident of Dinaj-pur. It was also found that during the period from January, 1948 to July, 1949, the petitioner was admittedly away from his village and had executed a power of attorney in favour of a friend or relation of his who was in possession of the properties during this period. Here again the explanation of the petitioner that he had been staying at Lucknow for treatment of gout could not be substantiated, and the said officers pointed out that the purchase at Dinajpur significantly synchronised with the early part of this period. The agent of the petitioner during the period aforesaid settled several plots of land & sold a few others. It was urged that this power of attorney in favour of the agent was cancelled in July, 1949, but there was nothing to support this contention. In course of the arguments before this Court stress was also laid upon certain purchases of lands alleged to have been made by the petitioner in June and November, 1948. In dealing with an application for a writ it is usually unnecessary for us to go beyond the findings arrived at by the Assistant and the Deputy Custodians which are based upon evidence; but even these purchases do not help the petitioner because the purchases are not in the name of the petitioner himself. On the above materials the two officers clearly held that the petitioner was an evacuee within the meaning of the section. The Deputy Custodian emphatically came to the conclusion as follows : "All these facts leave no doubt in my mind that the appellant left the Indian Union and was living in Pakistan." It is true that the notices were served upon the petitioner personally at his original residence at Laheria-sarai in Darbhanga, but the Assistant Custodian observes that although the petitioner was residing in Pakistan, it was not difficult for him to make an appearance now and then at his native village with a view to avert if possible the consequences of the Evacuee Property Ordinance. These are pure questions of fact; and if after a consideration of the relevant materials, these authorities have come to a definite conclusion that the petitioner was resident of Dinajpur now forming part of Pakistan it is not for us to interfere with that decision which is entirely within the Jurisdiction of those authorities, and hold to the contrary.

(3.) Dr. Sultan Ahmad contends that the word "resident" in Clause (ii) of Section 2(d) connotes permanent stay in Pakistan disowning allegiance to India and acquiring a new domicile in Pakistan itself. In the absence of any such finding, he says the petitioner could not be declared an "evacuee". I have already examined in 'AIR 1953 Pat 112 (A)' the legal implications of this contention & have held that the word "resident" as used in Clause (ii) of Section 2(d) connotes some amount of permanence but it does not necessarily mean a change of domicile. Indeed, for the purpose of this case it would be unneces-sary to decide whether the petitioner has completely lost his right of citizenship in India. In my opinion, the authorities below have rightly held that the petitioner came within the ambit of Clause (ii) of Section 2(d), Evacuee Property Ordinance and were justified in declaring him an evacuee.