TMI Blog1955 (10) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 10 th 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 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 furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian-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 sections 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 bad 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 in regard thereto from time to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stodians. 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, was 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. (1) No sale, mortgage, pledge, lease, exchange 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 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 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 but there was no provision for revision of such an order. Under the Central Ordinance No. XXVII of 1949 the position was substantially different. Section 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement 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 to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one, action taken, penalty incurred or proceeding commenced . Ordinance No. XXVII of 1949 was in its turn repealed by Central Act XXXI of 1950. This Act was amended 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 Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) is hereby repealed. (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 action was 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 term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of it relating to the previous operation of the prior 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 as the positive portion is concerned-has to be judged as if the repealing Act were in force at the earlier relevant date. Therefore where, as in this case, the repealing section which purports to indicate 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 operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. v. Income Tax-Commissioner, Delhi, [1927] I. L.R. 9 Lahore 284 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 . It may be noticed that in the case in Delhi Cloth General Mills Co. Ltd. v. Income-Tax Commissioner, [1927] I. L.R. 9 Lahore 284 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, [1923] L.R. 50 I.A. 212 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, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to it on the 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. IncomeTax Commissioner, [1927] I.L.R. 9 Lahore 284. We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. v. Irving, [1905] A.C. 369 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 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 that can deal with it. The application can be dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be done, or action that may be taken, thereunder. The powers exercisable are to be gathered from various sections and broadly speaking fall under the following categories. 1. To make appointments-sections 5 and 6. 2. To make enquiries-sections 7, 16, 19 and 38 and to make declarations 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, 50, 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 ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 article was given, that the persons in possession at the time were only the previous tenants on the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 be construed as referring to matters ejusdem generis with clauses (a) and (b) 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 its 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 gather ..... X X X X Extracts X X X X X X X X Extracts X X X X
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