2S.C.R.

SUPREME COURT REPORTS 1101

neither the Act nor the rules framed thereunder define those departments.

If the nomenclature only matt- ered, then there is no escape from the conclusion that whatever articles and commodities were purchased by the Indian Stores Department or its later substitutes, of whatever magnitude and value, would be within the mischief of the exemption clause in question. But that, in my opinion, was not the intention of the framers of the Act. They knew what the activities of the Government through those departments were and the exemption was granted only in respect of those functions of the Government, as already indicated.

For the aforesaid reasons I would allow these appeals, set aside the orders of the Letters Patent Bench and restore the orders passed by the Single Judge of the Calcutta High Court, with costs throughout.

BY THE COURT.

in accordance with the Judgment of the majority the appeals are dismissed with costs.

P. L. LAKHANPAL v.

THE STATE OF JAMMU AND KASHMIR. ls. R. DAS, ACTING C.J.,

BHAGWATI, }AGANNADHA-

DAS, B. P. SINHA and }AFER IMAM JJ.]

Constitution of .India, Arts. 13, 21, 22 and 35(c)-/ammu and Kashmir Preventive Detention Act, 2011 (Act VI of 2011), s. 3(1) (a )(i) and s. 8(1) Proviscr-Constitution (Application to /am mu and Kashmi,.) 01der, 1954-Detention order under the provisions of ss. 3 (J)(a)(i) and 8(1) Proviso of the Act-Whether violates fundamental .-ights guaranteed under Arts. 21 and 22 of the Constitution-Nonsupply of grounds of detention to Detenu-Whether violates his fundamental right-Addition of clause (c) to Art. 35 of the Constitution- Effect of.

The petitioner was detained in Kothibagh sub-jail in Srinagar by the order of Jammu and Kashmir Government under the provisions of s. 3(1)(a) (i) of the Jammu and Kashmir Preventive Detention Act, 2011. ·

The UniMi of l•dia

Tiu CatRmucia Tax Ojfiar, Wis B•ngal and othtTJ

Sinha J

D1ctmher 20.

P. L. Lakhanpal

The Stat1 of Jammu and

Kashmir

The petitioner challenged the order of detention on the grounds,. inter alia, (i) that it cncroacheJ on his fundamental right to life an<l personal liberty guaranteed to hi1n under 1\rt. 21 of the Consti tution as extended to the State of Jam1nu and Kash1nir, (ii) that it \'i_olated his fundamental right guaranteed to him under clause (5) to Art. 22 cf the Constitution as extended to Jammu and Kashmir State inas:nuch as the petitioner \Vas not supplied \Vith the grounds on 'vhich the order of detention \Vas based.

It \Vas contended that s. S( 1) Proviso, of Ja111mu and l<.ashmir Preventive Detention Act, 2011, under \vhich the grounds of detention were not supplied to hin1, \Vas unconstitutional as being inconsistent with Arts. 21 and 22 of: the Constitution and thus void to the extent of that inconsistency in Yie,;;,.· of the provisions of ,\rt. 13 of the Constitution.

Held (overruling the contention) that s. ti(l) Proviso is not unconstitutional in vie\V of the provisions of Constitution (Applicatic:1 t"J j:.J.111111u and Kashrnir) Order, 195-lwhich supersedes the Con stitution (Jan1mu and Kashmir) ()rder, 1950, and of clause (..::) which has been .:id<l..::<l to Art. 35 of the Consti.tution.

The effect of the modification of Art. 35 by the addition of chtu!>C ( c) thereto is that su...:h of the provisions of the 1\ct <lS are inconsistent with Part III of the Constitution shall he valid until the cxpiration of fiye years fron1 the commencemnt of the Order.

ORIGINAL 1955.

J UR!SD!CT!ON : Petition No. 396 of

Under Article 32 of the Constitution for a writ m the nature of Habeas Corpus.

R. Patnaik, for the petitioner.

M. C. Setaivad, Attorney-General of India,

C. K.

Daphtary, Solicitor-Genera! of India, Raja faswant Singh, Advocatc-Gncrn!, fammu and Kashmir

(P. A.

Mehta and R. H. Dheb11r, with them) for the respondent.

M. C. Seta/wad, Attorney-General of fodia (P. A.

Mehta and R. H. Dhebar, with him) for the Intervener.

1955. December 20. The Judgment of the Court was delivered by

SI':IH ! --This application for a writ of habeas corpi1s is directed against the State of Jammu and Kashmir which has by its order dated the 4th October, 1955, directed the detention of the petitioner under section 3 of the J ammu and Kashmir Preventive Detention Act, (Jammu and Kashmir Act IV of 2011 ), hereinafter to be referred to as "the Act".

Originally the sole respondent impleaded was the State of Jammu and Kashmir. After a rule nisi was issued to the respondent, fhe Union of India intervened because the petitioner had challenged the validity of the Constitution (Application to Jammu and Kashmir) Order, 1954.

The petitioner, P. L. Lakhanpal, aged approximately 28 years, describing himself as the Chairman, End Kashmir Dispute Committee, has moved this Court against the order of the State detaining him in Kothi Bagh sub-jail in Srinagar.

The application is based on the following allegations.

The petitioner is normally a resident of 9821, Nawabganj, Delhi 6.

He went to Kashmir on a permit on the 24th September this year "on a study-cum-pleasure trip". He has been evincing keen interest in Kashmir politics since the year 1946, when as General Secretary of the Co:igress Socialist Party, Lahore, he was closely associated with the "Quit Kashmir movement".

Last year he wrote a book entitled "Communist Conspiracy in Kashmir", copies of which had been seized by the Delhi Police but were subsequently released.

The petitioner in the book aforesaid, as also elsewhere in the press and on the platform, claims to have been making "trenchant criticism of the Kashmir cabinet headed by Bakshi Ghulam Mohammed and also of the Government of India's policy in regard to Kashmir".

He claims to be known as the supporter of Sheikh Mohd. Abdullah; the former Prime Minister of Kashmir, and to have expressed the opinion that he "has been the victim of a heinous conspiracy motivated by lust for power between the communists and the rightists on the one hand and Bakshi Ghulam Mohammed, the present Kashmir Prime Minister, on the other".

He also claims to have been advocating the cause of the ex-Prime Minister aforesaid of Kashmir whose detention has been severely criticized by him.

He has "also publicly exposed and denounced tlh' brntal excesses committed by the police and auth.irities under the Bakshi Government throughout

P, L. Lakhanpal v.

TluStak of ]ammu and

Kas/tmjr

Sinha ].

P. L. Lalcha'flpal

TJr. Stau of Jammu ar1d

Ktultmir

Sinha].

the State".

He has characterized the State Constituent Assembly as having forfeited the confidence of the people.

He claims to have "declared that the Bakshi cabinet, which in his view is dominated by the communists, is the corruptest, the most tyrannical and the most hated Government that the State has ever had". Similar views were expressed by him in telegrams said to have been sent to the Sadar-i- Riyasat of Jammu and Kashmir, to the President of India and to the Prime Minister of India. He claims to have organized a "persistent campaign to secure support .for his views on Kashmir among the public and leaders of political thought".

The aforesaid activities of the petitioner, he further claims, have "provoked a bitter controversy between him and the Indian Prime Minister". In this connection he makes reference to certain statements said to have been made by the Prime Minister of India which it is not necessary to detail here. except the following :-

"During the last few months, however, I have become aware of his (the petitioner's) activities and have inquired into them. These inquiries led me to the conclusion that these activities are of a most objectionable character which can only help the enemies of our country".

The petitioner also claims to be the General Secretary of the World Democratic Peace Congress. In this connection he makes certain other allegations against the Prime Minister of India which are not relevant to the case.

He also makes a grievance that it was reported in a daily newspaper of Srinagar called Khidmat that the present Prime Minister of Jammu and Kashmir had described him as "a traitor and an enemy of the nation".

He then describes his activities during three days in Srinagar meeting people from various walks of life, including editors of the newspapers and members of the State Assembly.

On the 29th September, he says, he left Srinagar for Anantnag in the company of the alleged leader of the opposition in the Assembly and President of the Jammu and Kashmir Plebiscite Front, named Mirza Afzal Mohd. Beg, who, it may be added, has also

been in detention under the orders of the Jammu and Kashmir Government, as stated by the Advocate- General of that State. At Anantnag he claims to have spent two days as the guest of Mr. Beg meeting people of the town and neighbouring areas "listening to their harrowing tales of woe".

On the 30th September he "addressed an informal meeting of the Plebiscite Front Workers at Mr.

Beg's residence".

He came back to Srinagar on the 1st October and left for Sopore on the 2nd October.

There he addressed an informal gathering of a few hundred workers on the same lines as he had done at Anantnag.

On the 3rd October he personally handed to the P.A. to the Chief Secretary of J ammu and Kashmir an application seeking permission for an interview with Sheikh Abdullah in the Kud jail where he has been in detention. During his stay in Srinagar, he states, he made unsuccessful attempts to contact the State Prime Minister for a meeting. In the afternoon of the 4th October he held a press conference at which he "made a written statement" complaining of "such barbaric brutalities, such insecurity of life, property and honour and such callousness on the part of the administration as are evidenced in your valley only go to show rhat the Bakshi Government is just another name for legalized lawless, disorder, corruption and nepotism". In the early hours of the morning of the 5th October the Superintendent of Police, Srinagar, read out to him the order of detention passed by the Cabinet and took him into .custody and detained him in the sub-jail Kothi Bagh. The order of detention (Annexure "D" at page 20 of the paperbook) is in these terms :-

"GOVERNMENT OF JAMMU AND KASHMIR

CHIEF SECRETARIAT

(GENERAL DEPARTMENT) Subject :-Detention of P. L. Lakhanpal, Chairman, End Kashmir Dispute Committee at present residing in Kashmir Guest House, Lal Chowk, Amira Kadal, Srinagar, under section 3(1)(a)(i) of the Jammu and Kashmir Preventive Detention Act, 2011.

Thi State of Jammu and Kashmir

Sinha J.

P. /,. IAkharipal

v. 'FhtStait of .7ammu and

f:ashmir

Sinha J.

Read :-Memorandum No.

IS-164-0/55 dated 4-10-1955, from the Minister Order.

Incharge, Law and

Order No. 1644-C of 1955 T)ated 4th October, 1955.

The Government having considered the facts stated in the memo of the Minister Incharge, Law and Order are satisfied that it is necessary to detain P. L. Lakhanpal, Chairman, End Kashmir Dispute Committee at present residing in Kashmir Guest House, Lal Chowk, Amira Kadal, Srinagar, with a view to preventing him from acting in any manner prejudicial to the security of the State. Acwrdingly the Government hereby accord sanction to the Order annexed hereto and authorize the Chief Secretary to Go•:ernment to issue the ame over his signature.

By Order of the Cabinet,

Sd. G. M. Bakshi

Prime Minister".

The order actually served on the petitioner is an annexure to the cabinet order ( Annexure 'E' at page 21 of the paper-book) which is in these terms :

"GOVERNMENT OF JAMMU AND KASHMIR.

Annexure to Cabinet Order No. 1644-C of 1955, dated 4-10-1955.

0 rd er.

Whereas the Government are satisfied with respect to P. L. Lakhanpal, Chairman, End Kashmir Dispute .Committee, at present residing in Kashmir Guest House, Lal Chowk, Amirakadal, Srinagar that with a view to preventing him from acting in a manner prejudicial to the security of the State it is necessary to make an order directing that the said P. . L.

Lakhanpal be detained ; Now, therefore, in exercise of the powers conferred by sub-section (I) of section 3 of the Jammu and Kashmir Preventive Detention Act, 2011, the Government are pleased to order that the said P. L.

I ',.

Lakhanpal be detained in sub-jail, Kothibagh, Srinagar; Notice of this Order shall be given to the said P. L. Lakhanpal by reading over the same to him.

By order of Government.

Sd. Ghulam Ahmad Chief Secretary to Government".

It is this order which the petitioner challenges as "malicious, mala fide, vague and capricious, illegally depriving the petitioner of his fundamental right to life and personal liberty guaranteed under article 21

of the Constitution as extended to the State of Jammu and Kashmir". The order of the petitioner's detention is also challenged as unwarranted and illegal as the order sent to the jail authorities does not bear the signature of the Prime Minister of Jammu and Kashmir and also because the petitioner has not been suprilied, in spite of demands made by him, with the grounds on which the order of his detention is based, "in clear violation of his fundamental rights guapnteed under clause (5) of article 22 of the Constitution as extended to the State of Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Order, 1954".

The State has filed an answer to the petitioner's affidavit in support of his petition. The affidavit filed on behalf of the State is sworn to by Shri Pirzada Ghulam Ahmad, Chief Secretary to the Government.

In this affidavit he denies that the petitioner had come to Kashmir on a study-cum-pleasure trip as alleged by him. He further states that the petitioner during his stay in Kashmir "actually_ engaged himself in activities prejudicial to the security of the State" and that the Government was "satisfied that it is not in the public interest to communicate to the petitioner the grounds of the said detention order".

The affidavit further states that the petitioner's "detention was ordered by the Cabinet not for any collateral purpose but because the Government was satisfied that the activities of the petitioner were calculated to prejudice the security of the State".

T"8Stau Jammu and

Kashmir

Sinha ].

T/reStal4 of ]ammu and

Kashmir

Sinha :f.

The allegations of improper motive and mala fides made by the petitioner are denied as wholly "unfounded and baseless". It is also denied that the petitioner's detention was illegal or that the provisions of the Act under which the order had been passed were unconstitutional.

The affidavit ends by stating that it is apprehended that if the petitioner were to be released, he is 'likely to indulge further in activities which would greatly jeopardize the security of the State" and that the detention order had been made solely with a view to preventing the petitioner from doing any further mischief.

The Act impugned in this case provides that it shall remain in force for a period of five years from the date of its commencement. The relevant portion of section 3 is in these terms :-

" ( 1) The Government may- ( a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-

(i) the security of the State ; or ...... it is necessary so to do, make an order directing that such per. son be detained".

The main attack against the orders served upon the petitioner is against the following paragraph in the order dated the 7th October 1955 :-

"Now, therefore, the Government, in exercise of the powers conferred by the proviso to sub-section ( 1) of section 8 bf the said Act, hereby declare that it would be against the public interest to communicate to the said P. L. Lakhanpal the grounds on which the detention order has been made".

That part of the order of detention passed against the petitioner is in consonance with section 8 of the Act which is in these terms :-

" ( 1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government ;

Provided that nothing contained. in this sub-section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State if the Government by order issued in this behalf declares that it would be against the public interest to communicate to him the grounds on which the detention order has been made.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose".

The proviso to the section just quoted makes provision for such cases as come within the purview of section 3(1)(a)(i) of the Act; that is to say, a person in the position of the petitioner who has been detained for preventing him from acting in any manner prejudicial to the security of the State of Jammu and Kashmir is outside the general rule laid down in section 8 ( 1) if the Government declares, as it has done in this case, that it would be against the public interest to communicate to him the grounds on which the detention order has been made.

It is not contended that the orders served upon the petitioner are not justified by the terms of the section quoted above.

But it has been argued by the learned counsel for the petitioner that the terms of the section are unconstitutional inasmuch as they are inconsistent with the provisions of articles 21 and 22 of the Constitution and are therefore to the extent of such inconsistency void in view of the provisions of article 13 of the Constitution.

This argument presupposes that the petitioner can invoke the aid of those articles. It has not been contended on behalf of the petitioner that apart from the provisions of Part III of the Constitution the petitioner has any fundamental rights guaranteed to him. Therefore, if articles 21 and 22 are out of the way, as will presently appear, the argument is without any force.

The Constitution does not apply to the State of Jammu and Kashmir in its entirety. On the 14th May, 1954, the President of India in exercise of the powers conferred by clause ( 1) of article 370 of the Constitution made and promulgated with the concur-

"· The Stall of Jammu and

Kashmir

Sinha J.

P. L. LaJ./wnpal

The Slat1 of Jammu and

Kaslimir

Sinha ].

rence of the Government of the State of Jammu and . Kashmir, the Constitution (Application to Jammu and Kashmir) Order, 1954 (which shall be described hereinafter as "The Order"). It came into force on the same <lay and superseded the Constitution (Application to Jammu and Kashmir) Order, 1950.

By its terms the Order provides that in addition to articles 1 and 370, the specified provisions of the Constitution shall apply to the State of Jammu and Kashmir subject to the exceptions and modifications indicated therein.

In so far as those exceptions and modifications are relevant to our present purpose, it is provided that in clauses ( 4) and (7) of article 22 "The Legislature of the State of Jammu and Kashmir" shall be substituted for "Parliament", so that the Legislature of the State of Jammu and Kashmir is competent to legislate in respect of preventive detention. In article 35, clause ( c) has been added, which is in these terms :-

"No law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution. (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof".

The effect of this modification in article 35 of the Constitution is that such of the provisions of the Act as are inconsistent with Part III of the Constitution shall be valid until the expiration of five years from the commencement of the Order. This is an exception which has been engrafted on the Constitution in respect of fundamental rights relating to personal liberty for the limited period of five years. The Act itself has a limited life of five years. Thus the exception aforesaid is co-extensive with the life of the Act itself.

Hence, so long as the Act continues in force in its present form, the provisions of articles 21 and 22 in

so far as they are inconsistent with the Act are out of the way of the respondent and the petitioner cannot take advantage of those provisions.

Therefore, there is no question of the provisions of section 8 of the Act being unconstitutional by reason of their being inconsistent with articles 21 and 22 of the Constitution ; ancl consequently article 13 is of no assistan.ce to the petitioner.

Wt:. hae assumed that article 32 of the Constitution under which this application has been made to this Court is available to the petitioner, though the Attorney-General who appeared to show cause on behaif of the respondents, went to the length of suggesting that even the benefit of article ~2 of the Constitution is not available to the petitioner. As he did not raise this point by way of a preliminary objection and as we did not hear the petitioner's counsel on this aspect of the case, because in our view clause ( c) added to article 35 of the Constitution by the President's Order was enough to deprive the petitioner of the benefit of articles 21 and 22 at least, we have not thought it necessary to examine and pronounce upon that extreme proposition.

Realizing the difficulty in the petitioner's way in view of the provisions of clause ( c) added as aforesaid to article 35 of the Constitution, the learned counsel for the petitioner faintly suggested that clause

(c) of article 35 added by the President's Order was itself bad inasmuch as, so the argument further ran, that provision was in excess of the powers conferred on the President by article 370 of the Constitution.

No attempt was mde on behalf of the petitioner to show how the Order promulgated by the President was in excess of his powers under article 370 of the Constitution. It was not contended that that article did not authorise the President to promulgate the Order. What was suggested was that in promulgating the Order which the P1esident was authorised to make under article 370 he had exceeded his powers. Beyond saying so, no tangible reason was adduced in support of this extreme position. It is manifest that article 370 ( 1) ( c) and ( d) authorizes the President by Order

I'. L. Lakhanpal v.

TluStt111 of Jammu and

Kashmir

Sinha J.

P. L. lA/chanpal

TM Slal1 ef , Jammu and

Kashmir

to specify the exceptions and modifications to the provisions of the Constitution (other than articles 1 and 370) subject to which the Constitution shall apply to the State of Jammu and Kashmir. Clause (c) as indicated above has been added to article 35 of the Constitution only so far as the State of . Jammu and Kashmir is concerned. Section 8 of the Act is not in excess of or inconsistent with the provisions of clause ( c) so added to article 35 of the Constitution. That being so the orders as served upon the petitioner arc not inconsistent with or in excess of such provisions of Part III of the Constitution as apply to the State of Jammu and Kashmir. It must therefore be held that the petitioner was not entitled to know the grounds upon which he had been detained beyond what is disclosed in the order itself.

It was argued that the order of detention served on the petitioner or the oqler sent to the officer in charge of the jail where he was detained, did not bear the signature of the Prime Minister of J ammu and Kashmir. But no provisions of any law have been brought to our notice which require that the Prime Minister himself should have signed the copy of the order to be served on the detenu or the copy of the order which was forwarded to the officer in charge of the jail. Even the long petition submitted by the petitioner which is not characterized by sobriety of language or strict accuracy does not contain any the least suggestion to that effect ; and no material in support of it has been shown to us. We cannot, therefore, take notice of such an irresponsible and unfounded suggestion.

It must therefore be held that all the grounds of law urged or suggested in support of the petition are without any substance. We may add that we did not call upon the Attorney-General who appeared on behalf of the respondents to show cause with reference to the allegations of the order impugned being malicious or wanting in bona fides because no foundation had been laid in the petition on the facts stated in the affidavit which could lead us even remotely to make such an inference.

For the reasons aforesaid it must be held that there ts no merit in the application and the rule is accordingly discharged, and the application is dismissed.

SADHU RAM v.

THE CUSTODIAN-GENERAL OF EVACUEE

PROPERTY.

[S. R. DAs, ACTING C.J., VIVIAN BosE, JAGANNADHA-

DAS, JAFER IMAM and CHANDRASEKHARA AIYAR JJ.]

Fundamental Rights, Infringement of-Transfer of evacuee property-Requirement of confirmation by Custodian-Retrospective effect, if amounts to deprivation of property-If a reasonable restriction-Refusal of confirmation by quasi-judicial order based on irrelevant material-Application under Art. 32, if maintainable-Constitution of India, Arts. 19, 31, 32-East Punjab Evacuees' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947) as amended by East Punjab Evacuees' (Administration of Pr'bperty)

(Amendment) Act, 1948 (East Punjab Act XXVI of 1948), s. 5-A.

The applicant purchased certain agricultural lands from a Muslim evacuee. The sale deed was executed, registered and possession was delivered to the applicant in September, 1947, before the East Punjab Evacuees' (Administration of Property) Act of 1947 came into operation on the 12th of December, 1947.

By subsequent amendments a new section, s. 5-A, was inserted into the Act with retrospective effect from the 15th of August, 1947, render ing transactions in respect of evacuee property ineffective unless confirmed by the Custodian. The applicant applied for confirmation.

The Assistant Custodian recommended such confirmation but the Additional Custodian, acting in terms of a circular issued by the Custodian-General enunciating a policy of non-confirmation with regard to agricultural lands, refused to confirm the applicant's purchase and this order was affirmed by the Assistant Custodian- General in revision.

It was contended on behalf of the applicant, inter alia, that the retrospective oper; ition of s. 5-A of the Act was in effect a deprivation of property without compensation and was hit by Art. 31 of the Constitution.

Held that s. 5-A of the East Punjab Evacuees' (Administration of Property) Act though retrospective in operation does not amount to deprivation of property in respect of past transactions and is valid.

In respect of future transactions the requirement of con-

P. L. Laklianpal

T"4 Stale of Jammu and

Kashmir

Sinha J.

Oclob.r 28.

Indian Stores Department

Calcutta High Court

P. L. LAKHANPAL

THE STATE OF JAMMU AND KASHMIR

BHAGWATI

B. P. SINHA

AFER IMAM JJ.

Arts. 13, 21, 22 and 35(c)

Kashmir Preventive Detention Act, 2011

s. 3(1)

s. 8(1)

ss. 3

Arts. 21 and 22

Art. 35

s. 3(1)(a)

Sinha

P. L. Lakhanpal

Art. 22

Arts. 21 and 22

Art. 35

Art. 35

Article 32

R. Patnaik

M. C. Setaivad

C. K.

Daphtary

Raja faswant Singh

A.

Mehta

R. H. Dheb11r

M. C. Seta

P. A.

Mehta

R. H. Dhebar

State of Jammu and Kashmir

section 3

Kashmir Preventive Detention Act

Jammu and Kashmir Act

State of Jammu and Kashmir

Union of India

P. L. Lakhanpal

Srinagar

Kashmir

Co:igress Socialist Party, Lahore

Delhi Police

Bakshi Ghulam Mohammed

Government of India

Sheikh Mohd. Abdullah

P. L. Lalcha'flpal

Jammu and Kashmir

India

World Democratic Peace Congress

Jammu

Anantnag

Jammu and Kashmir Plebiscite Front

Mirza Afzal Mohd. Beg

Jammu and Kashmir Government

Beg

Sopore

J ammu and Kashmir

Sheikh Abdullah

Bakshi Government

GOVERNMENT OF JAMMU

P. L. Lakhanpal

section 3(1)(a)(i)

State of Jammu and Kashmir

G. M. Bakshi

GOVERNMENT OF JAMMU AND KASHMIR

section 3

Lakhanpal

Ghulam Ahmad

article 21

article 22

Pirzada Ghulam Ahmad

section 3

7th October 1955

section 8

section 8

section 3(1)(a)(i)

State of Jammu and Kashmir

section 8

articles 21 and 22

article 13

articles 21 and 22

14th May, 1954

article 370

articles 1 and 370

article 22

article 35

article 35

articles 21 and 22

section 8

articles 21 and 22

article 13

article 32

article 35

articles 21 and 22

article 35

article 35

article 370

article 370

article 370

article 370

articles 1 and 370

article 35

Section 8

article 35

S. R. DAs

VIVIAN BosE

JAGANNADHA-

DAS

JAFER IMAM

CHANDRASEKHARA AIYAR

Art. 32

Constitution of India

Arts. 19, 31, 32

East Punjab Act

East Punjab Act

s. 5

12th of December, 1947

s. 5

15th of August, 1947

s. 5

Art. 31

s. 5


2S.C.R.

SUPREME COURT REPORTS 1113

For the reasons aforesaid it must be held that there ts no merit in the application and the rule is accordingly discharged, and the application is dismissed.

SADHU RAM v.

THE CUSTODIAN-GENERAL OF EVACUEE

PROPERTY.

[S. R. DAs, ACTING C.J., VIVIAN BosE, JAGANNADHA-

DAS, JAFER IMAM and CHANDRASEKHARA AIYAR JJ.]

Fundamental Rights, Infringement of-Transfer of evacuee property-Requirement of confirmation by Custodian-Retrospective effect, if amounts to deprivation of property-If a reasonable restriction-Refusal of confirmation by quasi-judicial order based on irrelevant material-Application under Art. 32, if maintainable-Constitution of India, Arts. 19, 31, 32-East Punjab Evacuees' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947) as amended by East Punjab Evacuees' (Administration of Pr'bperty)

(Amendment) Act, 1948 (East Punjab Act XXVI of 1948), s. 5-A.

The applicant purchased certain agricultural lands from a Muslim evacuee. The sale deed was executed, registered and possession was delivered to the applicant in September, 1947, before the East Punjab Evacuees' (Administration of Property) Act of 1947 came into operation on the 12th of December, 1947.

By subsequent amendments a new section, s. 5-A, was inserted into the Act with retrospective effect from the 15th of August, 1947, render ing transactions in respect of evacuee property ineffective unless confirmed by the Custodian. The applicant applied for confirmation.

The Assistant Custodian recommended such confirmation but the Additional Custodian, acting in terms of a circular issued by the Custodian-General enunciating a policy of non-confirmation with regard to agricultural lands, refused to confirm the applicant's purchase and this order was affirmed by the Assistant Custodian- General in revision.

It was contended on behalf of the applicant, inter alia, that the retrospective oper; ition of s. 5-A of the Act was in effect a deprivation of property without compensation and was hit by Art. 31 of the Constitution.

Held that s. 5-A of the East Punjab Evacuees' (Administration of Property) Act though retrospective in operation does not amount to deprivation of property in respect of past transactions and is valid.

In respect of future transactions the requirement of con-

P. L. Laklianpal

T"4 Stale of Jammu and

Kashmir

Sinha J.

Oclob.r 28.

J95li

Sadhu Ram

Tire Cuslodian- Gmual of Eoacue1

Proper!,]

firmation is clearly a restriction and not a deprivation.

Such restriction \Vas also reasonable having regard to the purpose and policy of the Evacuee Property Law. The requirement of confirmation being thus in essence only a restriction and not a deprivation, retrospectivity in the operation of that restriction does not make it deprivation.

That the applicant's loss \Vas occasioned not by any unconstitutional la\V but by a quasi-judicial order of the Custodian refusing confirmation ari_d~ consequently, his contention that any fundamental right had been violated must be rejected.

'['hat even if the contention that the order was itself illegal being based on irrelevant material be correct, that did not by itself raise any question of violation of any fundamental right and would be no ground for an application under Art. 32 of the Constitution.

ORIGINAL JuR1so1cT10N : Petition No. 306 of 1954.

U ndcr Article 32 of the Constitution for the enforcement of Fundamental Rights.

Kundan Lal Mehta and B.RL. Iyengar, for the petitioner.

C. K. Daphtary, Solicitor-General of India (Porus A. Mehta and R. H. Dhebar, with him) for the respondent.

1955. October 28. The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an application under article 32 of the Constitution which arises under the following circumstances. The pet1t1oner, Sadht1 Ram, purchased from one lmam-ud-Din, a muslim evacuee, 43 Bighas 14 Biswas of agricultural land comprised in Khasra Nos. 2135 to 2139, 2158, 2159, 2171, 2204 and 2206 with Sham/at rights in village Kaithal, District Karna!, Punjab. The sale deed was executed on the 6th September, 1947, and registered on the 9th September, 1947, before lmam-ud-Din left for Pakistan. The cons1deration therefore was Rs. 3,000 and as much as Rs. 2,700 thereof appears to have been paid by the petitioner to the vendor before the Sub-Registrar.

Possession also was transferred on the execution of the sale-deed.

Mutation was made by the revenue authorities on the 23rd January, 1948.

East Punjab

Evacuees' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947) came into force on the 12th of December, 1947. It was amended by East Punjab Evacuees' (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No. II of 1948) which came into force on the 16th January,

1948. This gave place to East Punjab Evacuees' (Administration of Property) (Amendment) Act, 1948 (East Punjab Act XXVI of 1948) which came into force on the 11th April, 1948.

By these amendments a new section, section 5-A, was inserted in the East Punjab Act XIV of 1947. It will be seen

hat these amendments were subsequent to the date of the execution and registration of the sale-deed and the transfer of possession thereof.

Section

5-A, so far as it is relevant for our present purpose, is in the following terms :

"5-A. ( 1) No sale, mortgage, pledge, lease, ex- .change or other transfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent, assign or attorney of the evacuee or such person on or after the fifteenth day of August, 1947, shall be, effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian.

(2) An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him".

This section purports to be retrospective.

Hence an application for confirmation was made by the petitioner on the 23rd March, 1948. The Assistant Custodian, Karna], on being satisfied about the genuineness of the transaction, recommended confirmation.

But the Additional Custodian, Jullundur, by his order dated the 11th February, 1953, rejected the application for confirmation acting on the Custodian- General's circular dated the 9th March, 1950, under which a policy of not confirming transactions relating to agricultural property was enunciated. This was 16-85 S. C. India/59.

Sadhu Ram v.

The Custodian- General of Evacuee

Property

Jatannaahadas ].

Satfhu Ram v.

Tht Custodian- Gennal of Evacuee

Property

Jagannadhad as J.

affirmed by the Assistant Custodian-General on an application to him for revision.

Learned counsel for the petitioner relies on the fact that his transaction which, on enquiry, was held to be genuine, was entered i, nto before the East Punjab Act XIV of 1947 was enacted and before the amendment thereof by insertion of section 5-A came into operation.

He contends that the retrospective operation of section

5-A in such circumstances amounts to deprivation of his property, without any compensation and is, therefore, hit by article 31 of the Constitution. Whatever may have been the position if this matter had to be dealt with much earlie<, it seems doubtful whether any such contention can be raised by the petitioner before us, on this date, in view of the recent Constitution (Fourth /,::iendment) Act, 1955, which has come into force on the 27th April, 1955. It is unnecessary, however, to base our decision on this ground.

It appears to us clear that section 5-A cannot be read as a legislative provision depriving the owner of his property. The; e can be no doubt that so far as transactions subsequent to the date of amendment are concerned, it is nothing more than a restriction on the transfer of propert;· by the owner thereof.

Any transferee in such a situation takes the property subject to the requirement of confirmation. The case would, then, be one which falls under article 19 of the Constitution and not nnder article 31. There can be no doubt that having regard to the purpose and policy underlying the hw relating to Evacuee Property and the abnormal conditions which arose from and after the 15th August, 1947, th' requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonble restriction. If this requirement was in essence not a deprivation but a .restriction in respect of future transactions, thero?. is no reason for treating it as deprivation hy virtue of its having been given retrospective effect, such retrospectivity being within the competence of the 3ppropriate legislature. The retrospectivity commencin~ from the 15th August, 1947, is

also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property laws.

In this case the petitioner is deprived of his bargain and incurs consequential loss, not by virtue of any unconstitutional law but by reason of the quasijudicial order of the Custodian declining to confirm the transaction. The contention of the learned counsel for the petitioner that any fundamental right of his has been violated must, therefore, be reiected.

Learned counsel next urges that the action of the Custodian in basing his decision on some circular of the Custodian-General is illegal and that it is not relevant material under section 5-A. It is enough to say that even if this contention be correct, this does not raise any question of violation of fundamental rights. If this is the sole ground, this application is misconceived. ·

This petition accordingly fails and is dismissed but in the circuqistances without costs.

INDIRA SOHANLAL

ti.

CUSTODIAN OF EVACUEE PROPERTY,

DELHI & OTHERS.

[S. R. DAs, AcTING C. J., VIVIAN BosE, JAGANNADHA-

DAS, JAFER IMAM and CttANDRASEKHARA AIYAR JJ.]

Evacuee Pt'Dperty-Custodian-General-Revisional powers- Administration of Evacuee Property Act, 1950 (XXXI of 1950), ss. 27, 58(3)-Transaction before the passing of the Act-Application for confirmation-East Punjab Evacttees' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), ss. 5-A, 5-B-Order of confirmation .afte1 passing of Act XXXI of 1950-Revision-Validity-General Clauses Act (X of 1897), s. 6-Applicability.

The appellant, a displaced person from Lahore, was the owner o( a house there and on the 10th of October, 1947, she arranged to have it exchanged with certain lands in a village in the State of Delhi, belonging to M, an evacuee. On the 23rd of February, 1948, she made an application to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the transaction of ex-

Sadhll Ram v.

The Custodian- Gentral of Evacuee

Property

JagannadhadaJ ].

Octob<r 28.

SADHU RAM

S. R. DAs

VIVIAN BosE

JAFER IMAM

CHANDRASEKHARA AIYAR JJ.

Art. 32

Constitution of India

Arts. 19, 31, 32

East Punjab Act

East Punjab Act

s. 5

12th of December, 1947

s. 5

15th of August, 1947

s. 5

Art. 31

s. 5

Sadhu Ram

Art. 32

Article 32

Kundan Lal Mehta

B.RL. Iyengar

C. K. Daphtary

Porus A. Mehta

R. H. Dhebar

JAGANNADHADAS

article 32

Kaithal

Punjab

9th September, 1947

Pakistan

23rd January, 1948

East Punjab Act

East Punjab Ordinance

16th January,

1948

East Punjab Act

section 5

Punjab Act XIV of 1947

Section

5

fifteenth day of August, 1947

Sadhu Ram

Satfhu Ram

Punjab Act XIV of 1947

section 5

section

5

article 31

27th April, 1955

section 5

article 19

article 31

15th August, 1947

section 5

INDIRA SOHANLAL

JAGANNADHA-

CttANDRASEKHARA AIYAR

ss. 27, 58(3)

East Punjab Act

ss. 5

Revision-Validity-General Clauses Act

s. 6

Lahore

10th of October, 1947

Delhi

23rd of February, 1948


2S.C.R.

SUPREME COURT REPORTS 1117

also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property laws.

In this case the petitioner is deprived of his bargain and incurs consequential loss, not by virtue of any unconstitutional law but by reason of the quasijudicial order of the Custodian declining to confirm the transaction. The contention of the learned counsel for the petitioner that any fundamental right of his has been violated must, therefore, be reiected.

Learned counsel next urges that the action of the Custodian in basing his decision on some circular of the Custodian-General is illegal and that it is not relevant material under section 5-A. It is enough to say that even if this contention be correct, this does not raise any question of violation of fundamental rights. If this is the sole ground, this application is misconceived. ·

This petition accordingly fails and is dismissed but in the circuqistances without costs.

INDIRA SOHANLAL

ti.

CUSTODIAN OF EVACUEE PROPERTY,

DELHI & OTHERS.

[S. R. DAs, AcTING C. J., VIVIAN BosE, JAGANNADHA-

DAS, JAFER IMAM and CttANDRASEKHARA AIYAR JJ.]

Evacuee Pt'Dperty-Custodian-General-Revisional powers- Administration of Evacuee Property Act, 1950 (XXXI of 1950), ss. 27, 58(3)-Transaction before the passing of the Act-Application for confirmation-East Punjab Evacttees' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), ss. 5-A, 5-B-Order of confirmation .afte1 passing of Act XXXI of 1950-Revision-Validity-General Clauses Act (X of 1897), s. 6-Applicability.

The appellant, a displaced person from Lahore, was the owner o( a house there and on the 10th of October, 1947, she arranged to have it exchanged with certain lands in a village in the State of Delhi, belonging to M, an evacuee. On the 23rd of February, 1948, she made an application to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the transaction of ex-

Sadhll Ram v.

The Custodian- Gentral of Evacuee

Property

JagannadhadaJ ].

Octob<r 28.

Indirtl Sohonlal v.

Cust.Jian of &acuu Property,

Delhi and othtrs

change under s. 5-A of the East Punjab Evacuees' {Administration of Property) Act, 1947, as amended in 1948 and applied to the State of Delhi. Under s. 5-B of the Act an order if passed by the Custodian or Additional Custodian would not be subject to appeal or revision, and would become final and conclusive.

But the application \.Vas not disposed of until the 20th of March, 1952, and on that date the Additional Custodian passed an order confirming the exchange.

In the 1neanwhile~ there were changes in the la\v relating to evacuee property by \Vhich the East Punjab Act as applied to the State of Delhi v1as repealed and re-enacted, and ultimately Central Act XXXI of 1950 was passed which, among other things, conferred by s. 27 revisional powers on the Custodian-General. The Custodian-General issued a notice under s. 7.7 to the appellant and, after hearing her, set aside the order of confirmation and directed the matter to be reconsidered by the Custodian, It was contended for the appellant that the order of confirmation by the Additional Custodian was not open to revision, on the ground that on the filing of the application in 1948 the appellant got a vested right to have it determined under s. 5-A, with the attribute of finality and conclusiveness under s. 5-B attaching to such determination, and that the subsequent repe3l and re-enactment of these provisions cannot affect such a right, in view of s. 6 of the General Clauses Act, and s. 58(3) of Act XXXI of 1950.

Held, (i) that s. 6 of~ General Clauses Act (X. oj 1897) was not applicable to the case, as s. 58(\) ~\ Act XXXI 'of 1950 was a self-contained provision indicative "f the intention to e:icclude the operatic n of s. 6 ;

(ii) that the right to a determination with the attribute of finality, assuming that such a right exists, is not a vested right and it does not accrue until the determination is in fact made, ~1hen alone it becon1es an existing right.

Colonial Sugar Refining Co. Ltd. v. Irving ([1905] A.C. 369) and Delhi Cloth & General Mills Co. Ltd. v. Income-tar Commissioner ( [ 1927] J.L.R. 9 Lah. 284 ; 54 I.A. 421 ), distinguished;

(iii) that the words "the repeal shall not affect the previous operation of the repealed law" in s. 58(3) of Act XXXI of 1950 cannot be construed 3.s meaning "the repeal shall not affect the future operation of the previous law" ; and

(iv) that the scheme underlying s. 58(3) is that every matter to which the new Act applies has to be treated as arising, and to dealt with, under the new la\v except in so far as certain consequences have already ensured or acts have been completed prior to the new Act, to \Vhich it is the old law that wi!J pply.

In view of s. 58, the application of the appellant for confirmation pending on te date when Act XXXI of 1950 came into force, had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 was subject to the revisional power of the Custodian-General under s. 27 of the said Act.

Quaere.-Whether a right of. appeal in respect of a pending action can be treated as a substantive right vesting in the litigant on the commencement of the action.

CIVIL

APPELLATE JURISDICTION : Civil Appeal :No. 195 of 1954.

Appeal by special leave from the judgment and order dated the 20th May, 1953 of the Custodian- General of Evacuee Property, New Delhi in Revision No. 387-R/Judl/53.

Achhru Ram, (Ganpat Rai, with him) for the appellant.

C. K. Daphtary, Solicitor-General of India, (Porus A. Mehta and R. H. Dhebar, with him) for respondents Nos. 1 & 2.

1955.

October 28.

The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an appeal by special leave against the order of the Custodian-General 0£ Evacuee Property dated the 20th May, 1953, revi~ ing an order of the Additional Custodian of East Punjab, Delhi, elated the 20th March, 1952. The two questions raised before us on the facts and circumstances, to be stated, are (1) whether the Custodian- General had the revisional power which he purported to exercise, and (2) was the order of the Custodian- General on its merits such as to call for interference by this Court.

The appellant before us, one Mrs. Indira Sohanlal, is a displaced person from Lahore. She was the owner of a house at Lahore known as 5, Danepur Road.

Malik Sir Firoz Khan Noon of West Pakistan owned 766 'bighas of agricultural land in a village called Punjab Khore within the State of Delhi. An oral exchange is said to have taken place between these two, of the said properties, on the 10th October, 1947.

In pursuance of that exchange Malik Sir Firoz Khan Noon is said to have taken possession of the Danepur Road House. The appellant is also said to have been put in possession of the said agricultural lands in Punjab Khore presumably by way of attornment

Indira Sohanlal v.

Gus to di an of Evacuee Property,

Delhi and others

Indira Sohanlal v.

Custodian of Evacute Property,

Delhi and others

JagannadhadaJ J.

of tenants who were in actual cultivating possession of the lands. Under section 5-A of the East Punjab Evacuees' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), as amended in 1948 and applied to the State of Delhi, such a transaction required confirmation by the Custodian.

In compliance with this section the appellant made an application on the 23rd February, 1948, to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the above transaction of exchange and of the consequent transfer to her of the property in agricultural land.

In view of certain rules which came into force later and which prescribed that the application was to be in a set form furnishing certain particulars, the appellant filed an amended application dated the 14th August, 1948, furnishing the required particulars.

This application was not disposed of by the Additional Custodian, for reasons not clear on the record, until the 20th March,

1952. On that date he passed an order confirming the exchange.

Meanwhile, however, a proposal was put up to the Additional Custodian by his Revenue Assistant to allot agricultural lands of the village Punjab Khore, including those covered by this exchange, to a number of refugee cultivators. The proposal was approved by the Additional Custodian on the 12th June, 1949. In pursuance thereof a detailed allotment was made to twenty six individual allotees on the 27th October, 1949. There is a report of the Rehabilitation Patwari dated the 27th February 1950, on the record showing that the allottees entered into possession of the land and cultivated their respective lands and settled down in the village. After the order confirming the exchange was passed by the Additional Custodian on the 20th March, 1952, the appellant filed an application on the 5th May, 1952, asking to be placed in possession, and for a warrant of delivery of possession to be issued against the various allottees and tenants of the land. The Naib. Tehsildar recommended that possession may be given to the appellant" and that the Patwari may be informed accordingly to take the necessary action in the matter. But it does

not appear from the record whether this was done or whether possession was in fact delivered.

At this st:ige, a notice under section 27 of the Administration of Evacuee Property Act, 1950 (Central Act XXXI of 1950), appears to have been issued to the appellant by th:'.

Custodian-General to show cause why the order of the Additional Custodian dated the 20th March, 1952, confirming . the exchange and the further orders dated the 20th and 28th July, 1952, sar.ct!oning mutation and other consequential and incidental orders made in connection therewith be not set aside.

This notice appears to have been issued asking the appellant to show cause on the 4th May,

1953. The case was adjourned to the 12th May, 1953, at the request of counsel for the appellant and thereafter a more detailed notice dated the 14th May, 1953, was issued setting out the various grounds on which the previous orders were sought to be set aside. The learned Custodian-General passed . the order now under appeal on the 20th May, 1953, setting aside the order of confirmation. He directed the' Custodian to decide the case after giving notice to all those who might be affected by the confirmation of this transaction.

As the earlier part of his order shows, the reference to the persons affected was to those who were allotted the lands in question by virtue of the order of the Additional Custodian of the year 1949 above referred to.

To appreciate the first question that has been raised as to the validity of the exercise of revisional powers by the Custodian-General on the above facts, it is necessary to set out the course of the relevant legislative measures from time to time.

To meet the unprecedented situation of sudden migration of vast section of population on a large scale from West Punjab to East Punjab and vice versa, leaving most of the properties which they had, moveable and immoveable, agricultural and nonagricultural, the concerned Governments had to take wide legislative powers to deal with the situation, to set up the necessary administrative machinery, and to evolve and give effect to their policies

Indira Sohanlal v.

Custodian of Evacuee Property,

Delhi and others

Jagannadhadas J.

Indira Sohanlal

Custodian of Evacuee Property,

Delhi and others

Jagannadhadas J.

in regard thereto from time to time. The earliest of these legislature measures so far as we are concerned, was the East Punjab Evacuees (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), which came into force on the 12th December, 1947. This Act was amended by the East Punjab Evacuees' (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No. II of 1948) and later by East Punjab Evacuees' (Administration of Property) (Amendment) Act, 1948, (East Punjab Act XXVI of 1943), which inserted two new sections, 5-A and 5-B, prescribing the requirement of confirmation of transactions relating to evacuee property and providing a right of appeal or revision therefrom.

These sections were specifically made applicable to transactions on or after the 15th August,

1947. The above Punjab Legislative measures were extended to the State of Delhi by Central GoYernment notifications under the Delhi Laws Act, dated the 29th December, 1947, the 28th January, 1948, and the 22nd April, 1948, respectively.

In so far as these measuces applied to Chief Commissioners' Provinces they were repealed by the Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance, 1949, (Central Ordinance No. XII of

1949) which came into force so far as Delhi is concerned on the 13th June, 1949. This Ordinance, in its turn, was repealed and a fresh Central Ordinance came into force in its place, applicable to all the ProYinces of India except Assam and West Bengal.

That was Administration of Evacuee Property Ordinance, 1949, (Central Ordinance No. XXVII of 1949), which came into force on the 18th October, 1949.

This Central Ordinance in its turn was repealed and replaced by the Administration of Evacuee Property Act, 1950 (Central Act XXX.I of 1950) which came into force on the 17th April, 1950.

It is necessary to notice at this stage that until the Central Ordinance XXVII of 1949 was passed, the Evacuee Property law was regulated by the respective Provincial Acts and were under the respective Provincial administrations.

Central Ordinance

No. XXVII of 1949 provided for a centralised law and ce1tralised administration which was. continued by Central Act No. XXXI of 1950. One of the main steps taken for such centralised administration was to create the office of Custodian-General with powers of appeal and revision as against the orders of Provincial Custodians. Section 5 of the Central Ordinance No. XXVII of 1949 authorised the Central Government to appoint a Custodian-General of Evacuee Property in India for the purpose of discharging the duties imposed on him by or under the Ordinance, while the appointment of Provincial Custodians, Additional, Deputy or Assistant Custodians, wa> still left to the various Provincial Governments.

These provisions were continued by sections 5 and 6 of Central Act XXXI of 1950. As regards the transactions by evacuees relating to evacuee property, the first legislative interference in East Punjab and Delhi appears to have been by virtue of East Punjab Evacuees' (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No. II of 1948) and the East Punjab Evacuees' (Administration of Property) (Amendment) Act, 1948 (East Punjab Act XXVI of 1948) which inserted two new sections 5-A and 5-B into the East Punjab Act XIV of 1947.

The said sections were as follows :

"5-A.(l) No sale, mortgage, pledge, lease, exchange or other traasfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent, assign or attorney of the evacuee or such person, on or after the fifteenth day of August, 1947, shall be effective so as to confer any rights or remedies on the par!ies to such transfer or on any person daiming under them unless it is confirmed by the Custodian.

(2) An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him.

(3) The Custodian shall reject any application made after the thirty first day of March, 1948 or after

Indira Sohanlal v.

Custodian of Evacuee Property, Delhi and others

Jagannadhadas J.

Indira Sohanlal v.

Custodian of Eva.cue6 ProlJtrty,

Delhi and others

Jagannadhadas J.

the expiration of two months from the date the transaction was entered into, whichever is later. ( 4) The Custodian shall hold a summary enquiry into an application, which is not rejected under subsection (3) and may decline to confirm the transaction if it appears to the Custodian that- ( a) the transaction was not a bona fide one for valuable consideration ; or

(b) the transaction is in the opinion of the Custodian prejudicial to the prescribed objects ; or ( c) for any other reason, to be given hy the Custodian in writing, the transaction ought not to be confirmed.

(5) If the Custodian confirms the transaction, he may confirm it unconditionally or subject to such conditions and terms as he may consider proper. ( 6) The Custodian, if the order is not pronounced in the presence of the applicant, shall forthwith give notice in writing to the applicant of any order passed by him under sub-sections (3), (4) or (5). 5-B. If the original order under section 5-A is passed by an Assistant or Deputy Custodian of Evacuee Property, any person aggrieved by such order may appeal within sixty days from the date of the order to the Custodian of Evacuee Property who may dispose of the appeal himself or make it over for disposal to the Additional Custodian of Evacuee Property ; and subject only to the decision on such appeal, if any, the order passed by the Assistant or Deputy Custodian of Evacuee Property, or any original or appellate order passed by the Custodian or Additional Custodian of Evacuee Property shall be final and conclusive".

It will be seen that these two sections enjoined that transfers by an evacuee or intending evacuee relating to his property from and after the 15th August, 1947, required confirmation and provided for appeal or revision from the orders passed on applications therefor and subject thereto, such orders were made final and conclusive. The requirement as to confirmation has been substantially continued in more or less the same form by sections 25, 38 and 40 respectively of

the successive legislative measures with certain modifications which are not material for this case. But

Indira Sohanla<'

v. so far as the appealability or revisability of an order passed on an application for confirmation is concerned, there have been changes from time to time.

It will be seen from section 5-B of the East Punjab Act, XIV of 1947, as quoted above, that any original order passed by the Custodian or Additional Custodian is not subject to appeal or revision and it

Cu.rtodian of Evacuee Property,

Delhi and others

is specifically declared to be final and conclusive.

Central Ordinance No. XII of 1949 by section 30(1)

(b) thereof provided for an appeal to the High Court against an original order of a Custodian or Additional Custodian or authorised Deputy Custodian

Jagannadhadas J,

but there was no provision for revision of such an order. Under the Central Ordinance No. XXVII of 1949 the position was substantially different.

Secti<:>n / 24 thereof, inter alia, provided that any person aggrieved by an order made under section 38 (which corresponds to the previous section 5-A of the East Punjab Act XIV of 1947) may prefer an appeal in such manner and within such time as may be prescribed, to the Custodian-General where the original order has been passed by the Custodian, Additional Custodian or an Authorised Deputy Custodian. Section 27 thereof provided for revisional powers of the Custodian-General but it was specifically confined to appellate orders and there was no power given thereunder for revision by the Custodian-General of an original order passed by the Custodian. But under Central Act XXXI of 1950 which repealed and replaced this Ordinance the position became different.

The provision for appeal under section 24 thereof was virtually the same as before, in so far as it is relevant here.

But as regards revision, however, section 27 of the Act provided for the revisional powers of the Custodian-General in the following terms :

"27. ( 1) The Custodian-General may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding in which any district judge or ustodian has passed an order for the purpose of satisfying him-

Indira Sohanlal

Custodian of EvtUuu Property,

Delhi and others

Jagannadhadas J.

self as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit :

Provided that the Custodian-General shall not pass an order under this sub-section prejudicial to any person without giving him a reasonable opportunity of being heard.

" The question relating to the validity of the revisional powers exercised by the Custodian-General in the present case arises with reference to the provisions above mentioned.

It is not disputed that Malik Sir Firoz Khan Noon was an evacuee. Nor is it disputed that this property in Punjab Khore which was the subject-matter of the exchange was evacuee property.

Though the exchange in question was alleged to have taken place on the 10th October, 1947, at a time when there was no restriction against any evacuee dealing with the property he left behind, it is indisputable that section 5-A of the East Punjab Act XIV of 1947 which has been specifically made retrospective from the 15th August, 1947, operates in respect of the present transaction also.

It, therefore, requires confirmation under the said section and under the corresponding sections in the subsequent legislative measures in this behalf. It was in compliance with this requirement that the appellant made an application for confirmation on the 23rd February, 1948, and that a subsequent amended application was filed on the 14th August, 1948. It is these applications that were disposed of on the 20th March, 1952, by the Additional Custodian, Delhi, by an order confirming the exchange, which has since been revised by the Custodian-General on the 20th May, 1953.

The main contention of the learned counsel for the appellant is that the powers which are vested in the Custodian-General to revise the original orders of the Custodian or Additional Custodian under section 27 of the Central Act XXXI of 1950 are not applicable to an order passed by the Custodian or Additional

Custodian on an application made long prior to the time when the office of the Custodian-General was set up and he was clothed with powers of revision.

It is urged that on the date when the application for confirmation was first made on the 23rd February, 1948, an order passed under section 5-A by the Custodian or Additional Custodian is final and conclusive under section 5-B. It is strongly urged that the subsequent repeal and re-enactment of these provisions cannot affect the right vested in the appellant to obtain a final and conclusive order from the Custodian or Additional Custodian on her application for confirmation. Section 6 of the General Clauses Act and the Privy Council case in the Coionial Sugar Refining Co. Ltd. v. lrving(1) were relied on in support of this contention.

To determine the validity of this contention, it is necessary to trace the course of the various relevant statutory provisions from time to time which repealed the prior corresponding legislative measures and to determine the effec~ thereof.

The East Punjab Act XI\1 of 1947 was 'replaced by the Central Ordinance No. XII of 1949 relating to Chief Commissioners' Provinces.

Section 40 thereof which repealed the prior Act was as follows :-

"40. (1) The East Punjab Evacuees' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), as in force in Ajmer-Merwara and Delhi, is hereby repealed.

(2) Notwithstanding such repeal, anything <lone or any action taken in the exercise of any power conferred by the Act aforesaid shall, in relation to the Provinces of Ajmer-Merwara and Delhi, be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty incurred or proceeding commenced under the said Act shall be deemed to be a penalty incurred, or proceeding commenced under this Ordinance as if this Ordinance were in force on the day when such thing was done, action taken, penalty incurred or proceeding commenced".

When this Ordinance was in turn repealed by

(!) [1905] A.O. 369.

Indira Sohanlal

Custodian of Eu'ac::ee Property, Delhi and others

Jagannadhadas ].

Indira Sohanlal

Custodian of Evacuee Proper!; P,

Delhi and others

Jagannadhadas ].

Central Ordinance No. XXVII of 1949, the repealing section 55 was as follows :

"55. (1) The Administration of Evacuee Property Ordinance, 1949 (XII of 1949), as in force in the Chief Commissioners' Provinces ............ is hereby repealed.

(2) ......................... .

(3) Notwithstanding the repeal by this Ordinance of the Administration of Evacuee Property Ordinance, 1949, or of any corresponding law, anything done or any action taken in the exercise of any power conferred by that Ordinance or law shall be deemed to have been done or taken in the exercise of the powers conferred by this Ordinonce, and any penalty incurred or proceeding commenced under that Ordinance or law shall be deemed to be a penalty incurred or proceeding commenced under this Ordinance as if this Ordinance were in force on the day on which such thing was done, action taken, penalty incurred or proceeding com"menced".

Ordinance No. XXVII of 1949 was in its turn repealed by Central Act XXXI of 1950.

This Act was amenqed by an Ordinance and later by an Act of the same year. Section 58 is the repealing provision of this Act as so amended. The material portion thereof is as follows :

"58. ( 1) The perty Ordinance, repealed.

Administration of Evacuee Pro- 1949

(XXVII of 1949) is hereby

(2) ............................. .

(3) The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of

1949) ................ shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or actio11 \Vas taken".

Thus in the transition of the Evacuee Property law

relating to Delhi, from the East Punjab Act XIV of 1947 to the present Central Act XXXI of 1950, there have been three repeals. The first two repealing provisions are in almost identical terms but the third is somewhat different. The difference is in two respects. ( 1) The provision in the previous repealing sections that "any penalty incurred or proceeding commenced under the repealed law shall he deemed to be a penalty incurred or proceeding commenced under the new law as if the new law were in force on the day when the penalty was incurred or proceeding commenced" is now omitted. (2) The provision that "anything done or any actiol1 taken in exercise of any power conferred by the previous law shall be deemed to have been done or taken in exercise of the powers conferred by the new law as if the riew law were in force on the day when such thing was done or action taken" is .continued. But it is specifically provided that this is subiect to the repeal not affecting the "previous operation of the repealed law" which in the context clearly means the previous operation of the repealed law in respect of "anything done or any action taken". The question thus for consideration is what is the result brought about by these provisions.

Before proceeding to determine it, it is desirable to consider whether section 6 of the General Clauses Act can be relied on. The position as regards section 6 of the General Clauses Act in the case of repeal and re-enactment has been considered by this Court in State of Puniab v. Mohar Singh(') and laid down as follows at page 899 :

"Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion.

But when repeal is followed by fresh legislation on the same subject we would undoubtedly have to took to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.

(I) [1955] 1 S.C.R. 1393, 899.

Indira Sohanlal v.

Custodian of Evatue< Properly,

Dtlhi and othm

Jagannadhadas ].

lttdira Sohanlal v.

Custodian of Et acute ProP.,'T{1,

Delhi and others

JagannadharfaJ ].

The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them.

We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactme!]J' followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law ...... ".

In the present case sub-section ( 3) of section 58 of Central Act XXXI of 1950 . purports to indicate the effect of that repeal, both in negative and in positive terms. The negative portion o.f it relating to "the previous operation" of the pnor Ordinance appears to have been taken from section 6(b) of the General Clauses Act, while the positive portion adopts a "deeming" provision quite contrary to what is contemplated under that section.

Under the General Clauses Act the position, in respect of matters covered by it, would have to be determined as if the repealing Act had not been passed, while under section 58 of Central Act XXXI of 1950, the position-so far a• the pos1t1ve portion is concerned-has to be judged as if the repealing Act were in force at the earlier relevant <late. Therefore where, as in this case, the repealing section which purports to indicat~ the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said prov1s1on may well be taken to be self-contained and indicative of the intention to exclude the application of section 6 of the General Clauses Act. We are, therefore, of the opinion that the said section cannot be called in aid in this case.

Now, as to the meaning of section 58(3) of Central Act XXXI of 1950, it must be admitted that this ;, not free from difficulty. This kind of provision in a

repealing Act appears rather unusual. Learned counsel for the appellant urges that the positive portion of this provision, i.e., "anything done or any action taken in exercise of any power conferred by or under the Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken" applies only to purely administrative matters and that his case falls within the scope of the first portion, viz., "the repeal ...... shall not affect the previous operation of the

(repealed) Ordinance". His contention is. that the application for confirmation which was made by the appellant in 1948 and which remained pending until Act XXXI of 1950 came into force and superseded the earlier legislation in this behalf, had to be disposed of in accordance with sections 5-A and 5-B of the East Punjab Act XIV of 1947, as amended in 1948 ; that the order of confirmation passed by the Additional Custodian m such a pending application was not open to appeal or revision but became final and conclusive.

It is urged that on the filing of the application in 1948, the appellant got a vested right to have it determined under section

5-A with the attribute of finality and conclusiveness under section 5-B attaching to such determination.

According to the learned counsel this follows from the "previous operation" of the repealed law and is in consonance with the principle laid down by the Privy Council in Colonial Sugar Refining Co. Ltd; v. Irving (1) relates pears to us that these contentions are unsustainable.

Colonial Sugar Refining Co. Ltd. v. Irving( 1) relates to the case of a right of appeal against an order passed . or to be passed in a pending action. Their LorJ:; hips treated the right of appeal to a superior tribunal in a pending action as an existing right and held that the suitor cannot be retrospectively deprived of it except by express words or by necessary implication.

This doctrine was affirmed by the Privy Council in Delhi Cloth & General Mills Co. Ltd.

[\] [1905] A.C. 369.

I 7-35 S. C. India/59

Indira Sohanla/ v.

Custodian of Evacuee Property, Delhi and others

JagannadhadlJI ],

Indira Sohan/al v.

Custodian of Evacutt Property, Delhi and others

Jagannadhada! J.

v. Income Tax-Commissioner, Delhi(') in its application to the converse case in the following terms :

"Their Lordships can have no doubt that provisions which, if applied retrospectively; would deprive of their existing finality orders which, when the statute - came into force, were final, are provisions which touch existing rights".

General Mills Co. Ltd. v. Income-Tax Commissioner (1),

General Mills Co. Ltd. v. Income-Tax Commissioner('), the orders of the High Court from which appeals were sought to be filed to the Privy Council were dated the 6th January, 1926 and 12th January, 1926.

As the .Indian Income-tax Act stood at the time and according to the interpretation of section 66 thereof by the Privy Council in Tata Iron & Steel Co. v.

Chief Revenue Authority, Bombay (2) there was no appeal to the Privy Council. The legislature by an amendment of the Income-tax Act, which came into force on the 1st April, 1926, inserted therein section 66-A and gave a right of appeal against such orders as provided therein. In this situation the Privy Council repelled the contention that the litigant could avail himself of the new provision by pointing out the finality of the orders sought to be appealed against and referring to it as an existing right. This is obviously so because finality attached to them, the moment orders were passed, prior to the new Act. In the present case, the position is different. The action was still pending when Central Act XXXI .of 1950 came into force. No order was passeJ '•which could attract the attribute of finality and conclusiveness under section 5-B of the East Punjab Act XIV of 1947. Further the possibility of such finality was definitely affected by the repealing provision in Central Ordinance No.

XII of 1949 and Central Ordinance No. XXVII of 1949, which specifically provided that a pending action was to be deemed to be an action commenced under the new Ordinance as if it were in force at the time and therefore required to be continued under the new Ordinances.

Each of these Ordinances provided for [!] [1927] l.L.R. 9 Lahore 284.

[2] [1923] L.R. 50 I.A. 212.

appeal against such an 6rder and the second of them provided for the exercise of revisional power against an appellate order of the Custodian. Learned counsel for the appellant contends that, even so, the finality and conclusiveness, which would have attached to an order made under section 5-A, if made before Ordinance XII of 1949 was promulgated, was affected only to the extent of its being subject to an appeal and not to revision. But once the attribute of finality in respect of such an order is affected by subsequent legislation, it does not appear to be of consequence that it was affected first by a provision for appeal and later by provisions for appeal and revision. It is difficult to see that such provisions, in those circumstances, are anything more than alterations m procedure.

 However this may be, it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action-though we do not so decide-no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action. By the very terms of section 5-B of East Punjab Act XIV of 1947, finality attaches to it on thf making of the order. Even if there be, in law, any such right at all as the right to a determination with the attribute of finality, it can in no sense be a vested or accrued right. It does not accrue until the determination is in fact made, when alone the right to finality becomes an existing right as in Delhi Cloth and General Mills Co. Ltd. v. lncome- Tax Commissioner(1).

We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. v. lrving( 2 ) cannot be invoked in support of a case of the kind we are dealing with.

Nor can this be brought under the ambit of the phrase "previous operation of the repealed law".

What in effect, learned counsel for the appellant contends for is not the "previous operation of the repealed law" but the "future operation of the previous

{I) [1927] l.L.R. 9 Lahore 284.

[2] [1905] A.C. 369.

Indira Sohanlal v.

Custodian of Evacuee Property,

Delhi and others

Jagannadhadas J.

Indira Sohanlal v.

Custodian of Evacuee Property,

Delhi and others

Jagannadhadas J.

law". There is no justification for such a construction.

Besides, if in respect of the pending application in the present case, the previous repealed law is to continue to be applicable by virtue of the first portion of section 58(3) the question arises as to who are the authorities tMt. can deal with it. The application can be dealt with by the Custodian and on appeal by the Custodian-General only as functioning under the previous law. But as such Custodian or Custodian-General they have disappeared by virtue of the repeal.

It is only the second portion of section 58(3) which continues them as though the appointments were made under the new Act-a position which could scarcely be controverted. To the extent of the future operation, if any, of the repealed law they can have no function.

Indeed, a comparison of the wording of section 58 of Act XXXI of 1950 with the wording of section 6 of the General Clauses Act would show that if the legislature intended either that pending proceedings were to be continued under the previous law or that anything in the nature of vested right of finality of determination or some right akin thereto was to arise in respect of such pending proceedings, the negative portion of section 58(3) would not have stopped short with saving only the "previous operation" of the repealed law. It would have borrowed from out of some portions of the remaining sub-sections ( c), ( d )'and ( e) of section 6 of the General Clauses Act, and provided in express terms for the continuance of the previous law in respect of pending proceedings. Obviously no particular sub-section of section 6 of the General Clauses Act could be borrowed in toto as that would contradict the positive portion of section 58(3) of Act XXXI of 1950 and would be inconsistent with the idea underlying it. We are, therefore, clearly of the view that the appellant cannot call in aid the principle of the case in Colonial Sugar Refining Co. Ltd. v. Irving('), nor can his case fall within the ambit of the first portion of sub-section (3) of section 58 of Act XXXI of 1950.

The next question for consideration is how the

(!) [1905] A.G. 369.

second and positive portion of section 58(3) of Act XXXI of 1950 is to be understood, This portion says that "anything done or any action taken in exercise of any power conferred by or under the

(repealed) Ordinance, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken". To appreciate the meaning of this it is desirable to have a general idea of the scheme of the repealed Ordinance, the powers exercisable thereunder, and the nature of the things that may be done or action that may be taken, thereunder. The powers exercisable are to be gathered from vanous sections and broadly speaking fall under the following categories.

1. To make appointments-sections S and 6.

2. To make enquiries-sections 7, 16, 19 and 38 and to make dedarations or issue notifications as a result thereof. ·

3. To make various kinds of consequential or administrative order such as those under sections 9, 10, 11, 12 and 21.

4. To hear and dispose of appeals, reviews or revisions-sections 24, 25, 26 and 27.

5. Power of the Central Government, to exempt, to give directions, to take action with regard to evacuee property, to delegate powers and to make rules-sections 49, SO, 51, 52 and 53.

In addition there are provisions which bring about various consequences such as vesting in the Custodian, valid discharge by payment to the Custodian, attachment, and so forth, sections 7(2), 8, 11, 13, 16(3), 19(3), 20 and 22, etc. The above enumeration is by no means intended to be exhaustive but is merely to illustrate the scheme of the various provisions in the Ordinance with reference to which section 58 of the Act has to be understood. There are also rules framed by virtue of section 53 of the Ordinance under which various powers may be exercised, thihgs done, and action taken.

If section 58(3) of Central Act XXXI of 1950 which

Indira Sohanlal v.

Custodian of Evacuee Property,

Delhi and others

Jagannadhadas J,

Indira Sohanlal v.

Custodian of Evacute Property,

Delhi and others

Jagannadhadas J.

repealed the prior Ordinance is understood with reference to the above scheme, there is no reason to confine the operation of the second portion . of section 58(3) to administrative action as suggested by learned counsel for the appellant.

Broadly speaking, the second portion of section 58(3) refers to the whole range of, things that may be done, or action that may be taken, under the previous Ordinance and the rules framed thereunder, while the first portion of section 58(3) relates to the legal consequences resulting under the Ordinance or the rules from certain facts or from completed acts or things done thereunder. Without attempting to be meticulously accurate, it may be stated in general terms, that the scheme underlying section 58(3) appears to be. that every matter to which the new Act applies has to be treated as arising, and to be dealt with, under the new law except inso far as .certain consequences have already ensued or acts. have been completed prior thereto, to which it is the old law that will apply. In this view of section 58, the application of the appellant for confirmation pending on the date when Central Act XXXI of 1950 came into force had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 would clearly be subject to the revisional power of the Custodian- General under section 27 of the said Act.

It is next contended that the revisional power cannot be exercised when there was an appeal provided but no appeal was filed, that it was open to the Assistant Custodian who appeared before the Custodian-General in support of the notice for revision or to the allottees of the property in whose interest the revisional order appears to have been passed, to I

file an appeal under the Act as persons aggrieved.

Section 27 however is very wide in its terms and it cannot be construed as being subject to any such limitations, Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality as is contended, because under section 27, the Custodian-General can exercise revisional powers "for the purpose of satisfying himself as to the legality or

propriety of any order of the Custodian". We are thus clearly of the opinion that the contention of the learned counsel for the appellant that the exercise of revisional powers in this case by the Custodian- General is without jurisdiction or is illegal, must fail.

The next question to be considered is as regards the merits of the revisional order of the Custodian- General which is under appeal before us. Learned counsel for the appellant attacked it on various grounds. He urged that the ground on which the learned Custodian-General set aside the Additional Custodian's order, viz., absence of notice to the prior allottees is wholly untenable.

He contended that the allottees had no kind of interest in the land which entitled them to contest the application for confirmation, that they were at best only lessees for three years which was due to expire very shortly after the order of confirmation was passed by the Additional Custodian. He pointed out that as soon as the application for confirmation was filed on the 23rd February, 1948, general notice by beat of drum and affixture in the locality and by publication in the Indian News Chronicle was given, that the persons in possession at the time were only the previous tenants on the land, who either attorned to the appellant or left the village, that the allottees came into possession much later and pending the disposal of the confirmation proceedings and presumably subject to its result. He also pointed out that even when the rules in this behalf c.ame into force under Act XXXI of 1950, it was discretionary with the Custodian to give notice to persons other than the transferor and transferee, if he considered them to be interested, and urged that since the same officer, Shri R. Dayal, made the allotment as also the• confirmation, he must be taken to have exercised his discretion properly in not giving any notice to them, in view of the imminent expiry of the three years term for which they were put in possession. It is strongly urged that having regard to the above considerations and to the categorical findings of the Custodian-General himself that the

Indira Sohan/al v.

Custodian of Evacuee Property,

Delhi and others

JagannadhadaJ ].

pg55

Indira Sokanlal v.

Custodian of Evacuee Property,

Dtlhi and others

Jagannadhadas J•

transaction which was confirmed, was perfectly bona fide, the setting aside of the order of confirmation against which no appeal was filed by any one, and the consequential disturbance of the vested property rights of the appellant, was in the nature of perverse exercise of revisional power. The learned Solicitor- General appearing for the respondent contended that the finding of the Custodian-General about the bona fides of the transaction was only tentative, that the allottees, though provisionally placed in possession for three years had, what has come to be recognised as, a quasi-permanent interest, that they had a genuine interest in opposing the confirmation sought, which related to a large tract of agricultural land, and which would reduce the pool of agricultural lands available for rehabilitation of displaced agriculturists and that confirmation of transactions relating to such land was opposed to the policy and directives of the Government and that the confirmation should not, in the circumstances, have been lightly granted by the Addi- tional Custodian without notice to the allottees and a proper consideration of the policies and directives in this behalf. In reply thereto learned counsel for the appellant m ged that the alleged policies or directives are not relevant matters for consideration by the Custodian in these proceedings which must he taken to he quasi-judicial, if not judicial, unless such policies or directives are embodied in rules made by the Central Government under section 56(2) ( q) and that no such rules were prescribed by the relevant dates and that even the Custodian-General himself in his order under appeal discounted the usefulness of any reference to notifications and directives for the purposes of this case. It was also urged that the matters which could be taken into consideration are regulated by section 40( 4) of Act XXXI of 1950 and that clause '( c) thereof must he construed as referring to matters ejusdem gen eris with clauses (a) and (h ).

But in the view we take of the order under appeal and the course we propose to adopt, we do not wish to express any opinion on the merits of the above arguments.

The order under appeal is. one passed by virtue of the wide powers of revision vested in the Custodian- General under section 27 of the Act':-;. The jurisdiction which has been challenged having been found in favour of the Custodian-General, this Court would normally be slow to interfere with the order on hs merits.

But with respect to the learned Custodian- General, his order is such that it is difficult to maintain it. The learned Solicitor-General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself. It is also difficult to gather from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all que'stions on the merits are to be reconsidered or was only a limited remand and if so what the limitations are. If it was meant to be an open general remand, as the concluding portion of his order seems to indicate, his definite findings on points ( 1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directives to which his attention was drawn by the Assistant Custodian, would render it difficult for any Custodian on remand to consider any of those matters. If so, the remand would appear to serve no substantial purpose. In the circumstance!, and in fairness to the learned Custodian-General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration.

On such fresh consideration he will give full opportunity to both sides for presentation of their respective points of view. If on the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him. The learned Custodian-General may also consider the feasibility of his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revision in this already protracted matter.

Indira Sohanlal v.

Custodian of Evacuee Property,

Delhi and others

Jagannadhadas J.

Indira Solumlal

Custodian of Evacute Propm,,

Delhi and others

Jagannadhadas J.

October 31.

The appeal is allowed and the order of the Custodian- General is set aside. The case is remanded to him so that he may reconsider and dispose of the same in the light of this judgment. There will be no order as to costs.

WILLIE (WILLIAM) SLANEY

THE STATE OF MADHYA PRADESH.

[S. R. DAs, Acrrna C.J., V1vrAN BosE, }AGANNADHA

DAS, }AFER IMAM and CHANDRASEKHARA AIYAR JJ.]

Sessions Trial-Charge under s. 304 read evith s. 34 of the Indian Penal Code against tevo persons-Acquittal of one-Omission to frame alternative charge against the other-Conviction under s. 302 simpliciter-Validity-Code of Criminal Procedure (Act V of

~898), ss. 225, 226, 227, 228, 232, 233, 237, 238, 535, 537-lndian Penal Code (Act XLV of 1860), ss. 34, 149, 302.

The appellant and his brother were put up for trial on charges under s. 302 read with s. 34 of the Indian Penal Code. The appellant was specifically charged with murder in prosecution of the common intention. There was evidence to show that he and not his brother had struck the fatal blow. The brother was acquitted and the appellant was convicted under s. 302 and sentenced to transportation for life. The High Court upheld the convietion and sentence and dismissed the appeal.

The question was whether the omission to frame an alternative charge under s. 302 simpliciter was an illegality that vitiated the trial and invalidated the conviction and whether there was a conflict of decisions of this Court on the matter in controversy.

Held per curiam, that the omission to frame an alternative charge under s. 302 in the facts and circumstances of the case was not an illegality that vitiated the trial bUt was a curable irregularity as it had not occasioned any prejudice to the appellant and the conviction was not liable to be set aside.

That s. 34 of the Indian Penal Code by itself does not create any offence and where, as in the present case, it is possible to ascertain who struck the fatal blow, the fact that another was also sought to be made liable does not invalidate a conviction for murder unless there was prejudice.

That the expression 'illegality' used in Nanak Chand'i case must be read with reference to the facts of that case where the court

section 5

INDIRA SOHANLAL

S. R. DAs

VIVIAN BosE

JAFER IMAM

CttANDRASEKHARA AIYAR JJ.

ss. 27, 58(3)

East Punjab Act

ss. 5

Revision-Validity-General Clauses Act

s. 6

Lahore

10th of October, 1947

Delhi

23rd of February, 1948

Indirtl Sohonlal

s. 5

s. 5

20th of March, 1952

Vhich the East Punjab Act

Central Act XXXI of 1950

s. 27

s. 7

s. 5

s. 5

s. 6

General Clauses Act

s. 58(3)

s. 6

General Clauses Act

s. 58(\)

s. 6

s. 58(3)

s. 58(3)

s. 58

s. 27

Achhru Ram

Ganpat Rai

C. K. Daphtary

A. Mehta

R. H. Dhebar

JAGANNADHADAS

Indira Sohanlal

Malik Sir Firoz Khan Noon

West Pakistan

Punjab Khore

10th October, 1947

JagannadhadaJ

section 5

East Punjab Act

23rd February, 1948

14th August, 1948

20th March,

1952

12th June, 1949

27th October, 1949

27th February 1950

20th March, 1952

5th May, 1952

section 27

Central Act XXXI of 1950

14th May, 1953

20th May, 1953

West Punjab

East Punjab

Indira Sohanlal

Jagannadhadas

East Punjab Act

12th December, 1947

East Punjab Ordinance

East Punjab Act

15th August,

1947

29th December, 1947

28th January, 1948

22nd April, 1948

13th June, 1949

India

Assam

West Bengal

18th October, 1949

17th April, 1950

Section 5

Central Government

sections 5 and 6

Central Act XXXI of 1950

East Punjab Ordinance

East Punjab Act

sections 5

Punjab Act XIV of 1947

section 5

15th August, 1947

sections 25, 38 and 40

Indira Sohanla

section 5

section 30(1)

section 38

section 5

Punjab Act XIV of 1947

Section 27

Central Act

section 24

section 27

section 5

Punjab Act XIV of 1947

section 27

Central Act XXXI of 1950

section 5

section 5

Section 6

General Clauses Act

Section 40

East Punjab Act

Ajmer-Merwara

Indira Sohanlal

section 55

Central Act XXXI of 1950

Section 58

Punjab Act XIV of 1947

Central Act XXXI of 1950

section 6

General Clauses Act

section 6

General Clauses Act

section 6

General Clauses Act

[1955] 1 S.C.R. 1393

section 6

General Clauses Act

Section 6

section 58

Central Act XXXI of 1950

section 6(b)

General Clauses Act

General Clauses Act

section 58

Central Act XXXI of 1950

section 6

General Clauses Act

section 58(3)

Central Act XXXI of 1950

sections 5

Punjab Act XIV of 1947

section

5

section 5

Indira Sohan

6th January, 1926

12th January, 1926

Indian Income-tax Act

section 66

Income-tax Act

1st April, 1926

section 66

section 5

Punjab Act XIV of 1947

L.R. 50 I.A. 212

section 5

section 5

East Punjab Act

section 58(3)

section 58(3)

section 58

section 6

General Clauses Act

section 58(3)

section 6

General Clauses Act

section 6

General Clauses Act

section 58(3)

section 58

section 58(3)

sections 7, 16, 19 and 38

sections 9, 10, 11, 12 and 21

sections 24, 25, 26 and 27

sections 49

section 58

section 53

section 58(3)

Central Act XXXI of 1950

section 58(3)

section 58(3)

section 58(3)

section 58(3)

section 58

Central Act XXXI of 1950

section 27

Section 27

section 27

R. Dayal

section 56(2)

section 40( 4)

section 27

Indira Solumlal

WILLIE (WILLIAM) SLANEY

STATE OF MADHYA PRADESH

Acrrna C.J.

V1vrAN BosE

AGANNADHA

AFER IMAM

CHANDRASEKHARA AIYAR

s. 304

s. 34

Indian Penal Code

s. 302

Code of Criminal Procedure

Penal Code

ss. 34, 149, 302

s. 302

s. 34

Indian Penal Code

s. 302

s. 302

s. 302

s. 34

Indian Penal Code

Nanak Chand'i