Full Judgment Text
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PETITIONER:
BISHAMBAR NATH KOHLI AND OTHERS
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH AND OTHERS
DATE OF JUDGMENT:
11/10/1965
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
SIKRI, S.M.
CITATION:
1966 AIR 573 1966 SCR (2) 158
ACT:
Administration of Evacuee Property Act (31 of 1950) ss. 27
and 58(3)-Order passed by Deputy Custodian under repealed
Ordinance Jurisdiction of Custodian-General to revise-
Procedure to be followed in disposal of revision.
HEADNOTE:
Under s. 6 of Ordinance 12 of 1949, the Deputy Custodian of
Evacuee notified certain property to be evacuee property in
October 1949. No claim was preferred by any one in pursuance
of the notification and the Central Government acquired the
property under the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 and put it up for sale by Public
auction in 1957. The predecessor in title of the appellants
purchased the property. In 1961, the State of Uttar Pradesh
applied under s. 27 of the-Administration of Evacuee
Property Act, 1950, invoking the revisional jurisdiction of
the Custodian-General, claiming that the property belonged
to the State and not to the evacuee and that therefore, the
Deputy Custodian had no power to declare it as evacuee
property. The Custodian General upheld the plea of the
State.
In appeal to this Court, the jurisdiction of the Custodian-
General to entertan the petition was questioned.
HELD : (1) The Custodian-General had the power to entertain
the revision application filed. by the State.
By Ordinance 27 of 1949, which repealed Ordinance 12 of
1949, a Proceeding commenced or anything done or action
taken under the earlier Ordinance was to be deemed a
proceeding commenced, thing done and action taken under the
later Ordinance, as if it were in force on the date on which
the proceeding was commenced, thing was done or action was
taken. Sec. 58(3) of the Administration of Evacuee Property
Act, which repealed Ordinance 27 of 1949, contained a
similar deeming provision that anything done or action taken
in exercise of the power conferred under Ordinance 27 of
1949 is to be deemed to have been done or taken in exercise
of the power conferred by or under the Act, as if the Act
were in force on the day on which such thing was done or
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action was taken. By this chain of fictions, things done
and actions taken under Ordinance 12 of 1949 are to be
deemed to have been done or taken in exercise of the powers
conferred under the Act, as if the Act were in force on the
day on which such thing was done or action was taken. [164
B-E]
By the first part of s. 58(3) of the Act, the previous
operation of repealed status services the repeal. Thereby
matters and transactions past and closed remain operative.
But the saving of the previous operation of the repealed law
is not be read, as saving the future operation of the
previous law. The previous law stands repealed and it has
not for the future the practical operation as is prescribed
by s. 6 of the General
Clauses Act, 1897. The rule contained in s. of the General
Clauses Act applies only if a different intention does not
appear and by enacting
159
s. 58(3) of the Administration of Evacuee Property Act
Parliament has expressed a different intention. Under s.
58(3), all things done and actions taken under the repealed
statute are deemed to be done or taken in exercise of the
powers conferred by or under the repealing Act, as if that
Act were in force on the day on which the thing was done or
action was taken. [168 C; 167 H; 168 B]
The order made by the Deputy Custodian was declared final by
s. 30(6) of Ordinance 12 of 1949. If fictionally the order
is deemed to have been passed under the Administration of
Evacuee Property Act, as if the Act were in operation in
October, 1949, it is difficult to escape the conclusion that
the order would be subject to the appellate and revisional
jurisdiction of the authorities who have the appellate or
revisional power by virtue of the provisions conferring
those powers and which must also be deemed to have been in
force on the date when the impugned order was passed. The
use of the expression "subject thereto" in s. 58(3) cannot
attribute to the previous operation of the repealed statute
an overriding effect so as to deprive the authorities
constituted under the repealing Act of their power to
entertain appeals or revision applications, which they
possess by the express enactment. [169 A-C; 168 F]
Indira Sohanlal v. Custodian of Evacuee Property, [1955] 2
S.C.R. 1117 and Dafidar Niranjan Singh v. Custodian Evacuee
Property, [1962] 1 S.C.R. 214, explained.
(ii) The procedure followed by the Custodian-General was
however open to grave objection, because, he relied upon
copies of documents on which the title of the State was
founded without giving an opportunity to the appellants to
lead evidence in rejoinder, and therefore the order of the
Custodian-General should be set aside and the matter
remanded to him for fresh disposal according to law. [170 F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 659 of 1964.
Appeal by special leave from the judgment and order, dated
the September 11, 1962 of the Custodian General of Evacuee
Property, Department of Rehabilitation, Ministry of Works
Housing and Supply, New Delhi in Revision Petition No. 1209-
R/ UP/1961.
Gopal Singh, for the appellants.
S. T. Desai and O. P. Rana, for respondent No. 1.
N. S. Dindra, K. S. Chawla and R. N. Sachthey, for
respondents Nos. 2, 3 and 4.
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The Judgment of the Court was delivered by
Shah, J. House No. 11, Kaiserbagh at Lucknow, was since 1918
in the occupation of one Chowdhry Akbar Hussain. After the
partition of India, Chowdhry Akbar Hussain migrated to
Pakistan. By order dated October 12, 1949 the Deputy
Custodian of Evacuee Property, Lucknow, in exercise of power
"under s. 6
160
of the U. P. Administration of Evacuee Property Ordinance 1
of 1949 as continued in force by Central Ordinances 12 and
20 of 1949" declared No. 11, Kaiserbagh as "evacuee
property". No claim was preferred by any person in
pursuance of this notification, and management of the
property continued with the Custodian of Evacuee Property.
Acting under s. 12 of the Displaced Persons (Compensation
and Rehabilitation) Act 44 of 1954, the Central Government
by a notification dated May 27, 1955 acquired the property
for the Central pool constituted under that Act. On June 7,
1957 the property was put up for sale by public auction and
was purchased by one Ram Chand Kohli.
On September 27, 1961 the State of Uttar Pradesh applied
under s. 27 of the Administration of Evacuee Property Act 31
of 1950 invoking the revisional jurisdiction of the
Custodian-General against the order of the Deputy Custodian
notifying the property as evacuee property. The State of
Uttar Pradesh claimed that the property belonged to the
State and Chowdhry Akbar Hussain had no proprietary interest
in the property and accordingly the Deputy Custodian had no
power to declare it "evacuee property". It was submitted
that the State of Uttar Pradesh was not aware of the
notification declaring the property to be evacuee property,
nor of the subsequent proceedings and of the sale to Ram
Chand Kohli. The appellants who are the legal
representatives of Ram Chand Kohli contended, inter alia,
that the petition was belated, and that in any event the
property being of the ownership of Chowdhry Akbar Hussain it
was lawfully declared evacuee property. The Custodian-
Genral upheld the plea of the State of Uttar Pradesh, and
set aside the order of the Deputy Custodian. With special
leave, the heirs and legal representatives of Ram Chand
Kohli have appealed to this Court.
We propose in this appeal only to deal with the plea of the
appellants that the Custodian-General had no jurisdiction to
entertain the petition filed by the State of Uttar Pradesh.
If the appellants fail to establish that plea, the case must
be remanded to the Custodian-General for retrial, because we
are of the view that the trial of the petit-ion is vitiated
by gross irregularities and breach of the rules of natural
justice.
Section 27 of the Administration of Evacuee Property Act 31
of 1950 authorises the Custodian-General at any time, either
on his own motion or on application made to him in that
behalf, to call for the record of any proceeding in which
any Custodian has passed an order for the purpose of
satisfying himself as to
161
the legality or propriety of any such order, and to pass
such order in relation thereto as he thinks fit. Section 27
does not prescribe any limit of time within which the power
in revision may be exercised. The Custodian-General may
call for the record of any proceedings of a subordinate
officer at any time, and pass such order in relation thereto
as may be called for to do justice to the parties affected
by the proceeding. The powers of the Custodian-General are
unquestionably judicial and normally he may not be justified
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in entertaining a petition in revision which has been
instituted after great delay, especially when titles of
persons other than those directly concerned in the order
sought to be revised, have intervened. There was in this
case great delay in lodging the petition by the State of
Uttar Pradesh invoking the jurisdiction of the Custodian-
General. Notice of the order made on October 12, 1949, was
issued and thereafter also there were several proceedings
before the Custodian and the Settlement Commissioner in
regard to the property. The authorities of the State appear
to have betrayed gross negligence in protecting the public
interest, if their case about the title of the State be
true. But the Custodian-General appears to have been of the
view that in exercise of jurisdiction conferred by statute
the petition should be entertained and power under the Act
be exercised. Whether in a given case, the Custodian-
General may entertain a petition against an order passed by
a subordinate authority, notwithstanding gross delay in
instituting the proceeding is a matter within his
discretion. We do not think that in exercise of the
appellate jurisdiction of this Court under Art. 136 of the
Constitution, we would be justified in interfering with the
order of the Custodian-General in a matter which is
essentially within his competence and relates to the
exercise of his discretion, however much we may disagree
with him.
The question which then must be considered is whether the
Custodian-General had the power to entertain the petition
under s. 27 of the Administration of Evacuee Property Act 31
of 1950, challenging the order passed by the Deputy
Custodian on October 12, 1949. It may at once be observed
that the reference in the notification issued by the Deputy
Custodian to U.P. Ordinance 1 of 1949 has been made on
account of some inadvertence. The notification was issued
after the U.P. Ordinance expired and when Central Ordinance
12 of 1949 was applied to the United Provinces by Ordinance
20 of 1949. The U.P. Ordinance 1 of 1949 was promulgated by
the Governor of the United Provinces on June 22,1949.
Shortly before the promulgation of that Ordinance, the
162
’Governor-General had in exercise of the powers conferred by
S. 42 of the Government of India Act 1935 issued Central
Ordinance 12 of 1949 called "The Administration of Evacuee
Property (Chief Commissioners’ Provinces) Ordinance, 1949".
This Ordinance was applicable in the first instance to the
Chief Commissioner Provinces of Ajmer-Merwara and Delhi and
it would be -extended to any other Province by notification
issued by the Central Government. The Governor-General
issued on August 23, 1949 Ordinance 20 of 1949, by S. 4
whereof Ordinance 12 of 1949 was applied to the Provinces of
Madras and the United Provinces. By S. 6 of Ordinance 12 of
1949 the Deputy Custodian -was authorised to notify evacuee
properties which had vested in him under s. 5 of the
Ordinance. A person claiming any right to or interest in
any property notified under s. 6 could prefer a claim within
30 days, or such extended time as the Deputy Custodian
allowed, that the property is not evacuee property or that
his interest in the property is not affected by the
provisions of the Ordinance. The Deputy Custodian was
thereupon required to hold an inquiry in the prescribed
manner, and after taking such -evidence as may be produced,
to pass an appropriate order. An order passed by a Deputy
Custodian on inquiry in the prescribed manner was appealable
to the Custodian at the instance of a party aggrieved
thereby: S. 30 (1). The Custodian had also the power to
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call for the record of any proceeding which was pending or
had been disposed of, by an officer subordinate to him, for
the purpose of satisfying himself as to the legality or
propriety of the order passed therein, and to pass such
order in relation thereto as he deemed fit. By sub-s. (6)
of S. 30, subject to the provisions of sub-ss. (1) to (5) of
s. 30, any order passed by the Custodian, Deputy Custodian,
Additional Custodian, Assistant Custodian or Authorised
Deputy Custodian was declared final and not liable to be
called in question in any court by way of appeal or revision
or in any original suit, application or execution
proceeding.
On October 18, 1949 the Governor-General issued Ordinance 27
of 1949 called "The Administration of Evacuee Property Ordi-
nance, 1949". Under that Ordinance the Custodian could
under S. 7, after notice to the persons interested and after
holding such ’inquiry into the matter as the circumstances
of the case permitted, pass an order declaring any property
to be evacuee property, and on such declaration the property
vested in the Custodian. By S. 24, any person aggrieved by
an order made, amongst other sections, under s. 7, could
prefer an appeal to the authority specified in the section.
Section 27 invested the Custodian-General with
163
power at any time to call for the record of any proceeding
in which any custodian had passed an order in appeal under
the provisions of Ch. V for the purpose of satisfying
himself as to the legality or propriety of any such order
and to pass such order in relation thereto as he thought
fit, and every order made by the Custodian-General,
Custodian, Additional Custodian or Assistant Custodian was
by S. 28 declared final and not liable to be called in
question in any court by way of appeal or revision or in any
original suit, application or execution proceeding. By sub-
S. (1) of S. 55 Ordinance 12 of 1949 was repealed, and by
sub-s. (3) it was provided that notwithstanding the repeal
of Ordinance 12 of 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 Ordinance 27 of 1949, and any penalty incurred
or proceeding commenced under that Ordinance or law shall be
deemed to be a penalty incurred or proceeding commenced
under Ordinance 27 of 1949 as if Ordinance 27 of 1949 were
in force on the day on which such thing was done, action
taken, penalty incurred or proceeding commenced. This Ordi-
nance 27 of 1949 was repealed by the Administration of
Evacuee Property Act 31 of 1950. The scheme of this Act was
identical with the scheme of the Administration of Evacuee
Property Ordinance 27 of 1949. Section 7 conferred power
upon the Custodian to notify any property, after holding an
inquiry, to be evacuee property. Any person aggrieved by an
order under S. 7, could under S. 24 prefer an appeal to the
specified authority. By S. 27 revisional jurisdiction was
conferred upon the Custodian-General in terms similar to S.
27 of Ordinance 27 of 1949, and by S. 28 every order made by
the Custodian-General, Custodian, Additional Custodian,
Authorised Deputy Custodian, Deputy Custodian or Assistant
Custodian was, save as otherwise expressly provided in Ch.
V, declared final and not liable to be called in question in
any court by way of appeal or revision or in any original
suit, application or execution proceeding. By sub-s. (1) of
S. 58, the Administration of Evacuee Property Ordinance 27
of 1949 was repealed. Sub-section (3) of S. 58 read as
follows:
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Evacuee Property Ordinance, 1949 or the
Hyderabad Administration of Evacuee Property
Regulation or of any corresponding law shall
not affect the previous operation of that
Ordinance, Regulation or corresponding law,
and subject thereto, anything done or any
action taken in the exercise of any power
conferred by or under that
164
Ordinance, Regulation or corresponding law,
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."
By Ordinance 27 of 1949 a proceeding commenced under Ordi-
nance 12 of 1949 or anything done or action taken in the
exercise of the powers conferred under that Ordinance was to
be deemed a proceeding commenced, thing done and action
taken under the former Ordinance as if that Ordinance were
in force on the date on which the proceeding was commenced,
thing was done or action was taken. Section 58(3) of Act 31
of 1950 contained a similar deeming provision that an thing
done or action taken in exercise of the power conferred
under Ordinance 27 of 1949 is to be deemed to have been done
or taken in exercise of the power conferred by or under Act
31 of 1950, as if the Act were in force on the day on which
such thing was done or action was taken.
By this chain of fictions, things done and actions taken
under Ordinance 12 of 1949 are to be deemed to have been
done or taken in exercise of-the powers conferred under Act
31 of 1950, as if that Act were in force on the day on which
such thing was done or action taken. The order passed by
the Deputy Custodian under S. 6 of Ordinance 12 of 1949 was,
therefore, for the purpose of this proceeding, to be deemed
an order made in exercise of the power conferred by Act 31
of 1950 as if that Act were in force on the day on which the
order was passed.
But it was urged by counsel for the appellants that this
chain of fictions did not assist the State of Uttar Pradesh,
because by each of the successive statutes the operation of
the. fiction was subject to the finality of the orders made
under the earlier Ordinance. It was claimed that the repeal
of Ordinance 12 of 1949 by Ordinance 27 of 1949 did not
affect the previous operation of the repealed Ordinance,
including the finality of orders made under that Ordinance
and by s. 55(3) of Ordinance 27 of 1949 the finality of the
order of the Deputy Custodian under sub-s. (6) of s. 30 of
Ordinance 12 of 1949 was preserved. Similarly under Act 31
of 1950 things done or actions taken under Ordinance 27 of
1949 were to be deemed to have done or taken under the Act,
but thereby finality of orders declared by s. 28 of the
Ordinance was not trenched upon. It was submitted, that by
s. 58 (3 ) in a technical sense things done and actions
taken or deemed to be done or taken under Ordinance 27 of
1949 were to be deemed to have been done or taken under Act
31 of 1950, but finality of
165
the orders declared by s. 30(6) of Ordinance 12 of 1949 was
not affected, and the orders of the Deputy Custodian could
not be set aside by the Custodian-General in exercise of the
power under s. 27 of Act 31 of 1950. In support of this
contention reliance was placed upon certain dicta in two
decisions of this Court : Indira Sohanlal v. Custodian of
Evacuee Property, Delhi & Others(1) and Dafadar Niranjan
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Singh and Another v. Custodian, Evacuee Property (Pb.) and
Another(2). In our view no support is to be derived from
those cases for the claim made by counsel for the
appellants. In Indira Sohanlars case(3) an application to
sanction an exchange made under s. 5-A of the East Punjab
Evacuees’ (Administration of, Property) Act, 1947, as
amended in 1948, was decided on March 30, 1952 by the
Additional Custodian after Act 31 of 1950 was brought into
force. Exercising power under s. 27 of Act 31 of 1950 the
Custodian-General set aside the order of confirmation and
remanded the case to be reconsidered by the Custodian. In
appeal to this Court against that order, it was submitted
that the order of the Additional Custodian was not open to
revision by the Custodian-General, because the appellant had
a vested right to have the application for confirmation
determined under s. 5-A of the East Punjab Evacuees’
(Administration of Property) Act, and finality under s. 5-B
attached to such determination, repeal and reenactment of
those provisions notwithstanding. This Court held that the
application for confirmation of exchange was pending on the
date on which Act 31 of 1950 came into force and had to be
dealt with and disposed of under that Act; the order of
confirmation passed in 1952 was therefore subject to the
revisional jurisdiction of the Custodian-General under s. 27
of the Act. That decision can have no application to this
case. But counsel relied upon certain observations made by
Jagannadhadas, J., at p. 1136
"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
insofar as certain consequences have already
ensued or acts have been completed prior
thereto, to which it is the old law that will
apply."
These observations, in our judgment, lend no support to the
contention that the finality declared under s. 30 of the
Ordinance 1 of 1949 in respect of ’the orders passed or
proceedings taken
(1) [1955] 2 S.C.R. 11 17.
(2) [1962] 1 S.C.R. 214.
166
remains attached to the order of the Deputy Custodian so as
to prevent the Custodian-General from exercising his power
under s. 27 of Act 31 of 1950.
In Dafadar Niranjan Singh’s case(1), the Custodian of
Evacuee Property, Patiala, had taken possession of two
houses acting under the Patiala Evacuee (Administration of
Property) Ordinance of Samvat 2004. On a claim made by the
appellant that the houses belonged to him, the Custodian by
his order dated June 6, 1949 released the houses.
Thereafter several Ordinances relating to evacuee property
were passed one after another, the succeeding Ordinance
repealing the previous one and creating, except in the case
of repeal of Ordinance 9 of Samvat 2004, a chain of fictions
by which certain provisions of the repealed Ordinance were
deemed to continue under the repealing Ordinance. The last
Ordinance was replaced by the Administration of Evacuee
Property Act 31 of 1950. The Custodian-General exercising
powers under S. 27 of that Act set aside the order of the
Custodian which released the property in favour of the
appellant. In appeal against the order of the Custodian-
General, it was held that the order dated June 6, 1949
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passed by the Custodian under Ordinance 9 of Samvat 2004
could not be deemed to be an order passed under Act 31 of
1950 as the chain of fictions was broken, when Ordinance 13
of Samvat 2006 repealing the previous Ordinance 9 of Samvat
2004 was issued, and there was no scope for the exercise of
his power by the Custodian-General under S. 27 of Act 31 of
1950. The Court then proceeded to interpret S. 58(3) of Act
31 of 1951 on the assumption that the order of the Custodian
dated June 6, 1949, by a chain of fictions was to be deemed
an order made by the Custodian in exercise of the powers
conferred on ’him by Act 31 of 1950, and observed:
"Sub-section (3) of S. 58 is in two parts.
The first part says that the repeal by the Act
of the said Ordinance shall not affect the
previous operation of the said Ordinance ; and
the second part says that anything done or any
action taken in the exercise of any power con-
ferred 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
taken. The second part is expressly made
subject to the first part. If a case falls
under the first part, the second part does not
apply to it. In the present case under the
(1) [1962] 1 S.C.R. 214.
167
previous operation of the Ordinance the order
of the Custodian had become final. If so, the
fiction introduced in the second part could
only operate on that order subject to the
finality it had acquired under that
Ordinance."
In our view, the decision of the Court on the principal
ground that the chain of fictions was broken, and the
impugned order was not one which was to be deemed to have
been made under Act 31 of 1950, rendered consideration of
all other questions unnecessary. If by the observations set
out, it was intended to, lay down that the legal fiction
introduced by s. 58(3) of Act 31 of 1950 by which anything
done or action taken in exercise of the powers conferred by
the earlier Ordinance was to be deemed to have been done or
taken in exercise of the powers by or under the Act applies
only if under the earlier Ordinance anything. done or action
taken had not become final by virtue of the provisions of
that Ordinance, we are unable, with respect, to accept that
interpretation. By the first part of S. 58(3) repeal of the
statutes mentioned therein did not operate to vacate things
done or actions taken under those statutes. This provision
appears to, have been enacted with a view to avoid the
possible application of the rule of interpretation that
where a statute expires or is. repealed, in the absence of a
provision to the contrary, it is regarded as having never
existed except as to matters and transactions past and
closed: see Surtees v. Ellison(1). This rule was altered by
an omnibus provision in the General Clauses Act, 1897,
relating to the effect of repeal of statutes by any Central
Act or Regulation. By s. 6 of the General Clauses Act, it
is provided, insofar as it is material, that any Central Act
or Regulation made after the commencement of the General
Clauses Act repeals any enactment, the repeal shall not
affect the previous operation of’ any enactment so repealed
or anything duly done or suffered thereunder, or affect any
right, privilege, obligation or liability acquired, accrued
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or incurred under any enactment so repealed, or affect any
investigation legal proceeding or remedy in respect of any
such right, privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid; and any such
investigation legal proceeding or remedy may be instituted,
continued or enforced, any such penalty, forfeiture or
punishment may be imposed, as if the Repealing Act or
Regulation had not been passed. But the rule contained in
S. 6 applies only if a different intention does not appear,
and by enacting S. 58(3) the Parliament has expressed a
different intention, for whereas the General Clauses Act
keeps alive the previous operation of the enactment
repealed, ’and things.
(1) (1829) 9 B. & C. 752.
168
done and duly suffered, the rights, privileges, obligations
or liabilities acquired or incurred, and authorises the
investigation, legal proceeding and remedies in respect of
rights, privileges, obligations, liabilities, penalties,
forfeiture and punishment, as if the repealing Act or
Regulation had not been passed, S. 58(3) of Act 31 of 1950
directs that things done or actions taken in exercise of the
power conferred by the repealed statutes shall be deemed to
be done or taken under the repealing Act as if that latter
Act were in force on the day on which such thing was done,
or action was taken. The rule so enunciated makes a clear
departure from the rule enunciated in s. 6 of the General
Clauses Act, 1897. By the first part of s. 58(3) which is
in terms negative, the previous operation of the repealed
statutes survives the repeal. Thereby matters and
transactions past and closed remain operative : so does the
previous operation of the repealed statute. But as pointed
out by this Court in Indira Sohanlal’s case(1) at p. 1133,
the saying of the previous operation of the repealed law is
not to be read, as saving the future operation of the
previous law. The previous law stands repealed, and it has
not for the future the partial operation as is prescribed by
S. 6 of the General Clauses Act. All things done and
actions taken under the repealed statute are deemed to be
done or taken in exercise of the powers conferred by or
under the repealing Act, as if that Act were in force on the
day on which that thing was done or action was taken. It
was clearly the intention of the Parliament that matters and
transactions past and closed were not to be deemed vacated
by the repeal of the statute under which they were done.
The previous operation of the statute repealed was also
affirmed expressly but things done or actions taken under
the repealed statute are to be deemed by fiction to have
been done or taken under the repealing Act. The use of the
expression subject thereto" in the commencement of the
positive part of s. 58(3) cannot attribute to the previous
operation of the repealed statute an overriding effect so as
to deprive the authorities constituted under the repealing
Act of their power to entertain appeals or revision
applications, which they possess by the express enactment
that the acts done or actions taken are deemed to have been
done under the statute. To attribute to the positive part
of s. 58 (3) the meaning contended for by the appellants
would result in denying to the repealing statute the full
effect of the fiction introduced by the Parliament that is,
acts done or actions taken since the repealing Act would be
subject to the appellate jurisdiction of the authority
having power under the Act, but not the acts deemed to be
done or actions deemed to be taken. There is no warrant
(1) [1955] 2 S.C.R. 1117.
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for attributing to the fiction this qualified operation.
The Legislature has not expressed such a reservation in the
application of the fiction, and none can be implied. The
order made by the Deputy Custodian was declared final by
sub-s. (6) of s. 30 of Ordinance 12 of 1949, but the
finality was subject to the provisions of sub-ss. (1) to (5)
of S. 30. If, fictionally, the order is to be deemed. to
have been passed under Act 31 of 1950 as if the Act were in
operation -on October 12, 1949, it is difficult to escape
the conclusion that the order would be subject to the
appellate and revisional jurisdiction of the authorities who
have the appellate or revisional power by virtue of the
provisions conferring those powers and which must also be
deemed to have been in force at the date when the impugned
order was passed.
In the present case, it is said on behalf of the State of
Uttar Pradesh, that they were not aware of any proceeding
taken with regard to No. 11, Kaiserbagh, by the Deputy
Custodian of Evacuee Property and therefore they could raise
no objection. The order notifying the property was made
under the Central Ordinance 12 of 1949. If the notification
be deemed an order within the meaning of s. 30(6), the order
having been declared fictionally made under Act 31 of 1950,
remained subject to the revisional jurisdiction of the
Custodian. If any other view is taken, some startling
results may follow : for instance, if under an order passed
by the Custodian or action taken by him, the rights of a
person are infringed, and before he files an appeal or the
revising authority is moved, the Ordinance or the Act is
repealed and is substituted by a new Act or Ordinance, the
person aggrieved would, if the view contended for by the
appellants were to prevail, have no remedy at all, because
the finality of orders declared by the repealed statute
would operate. It may be noted that under s. 27 of Act 31
of 1950 which invests the Custodian-General with powers of
revision, an Explanation is incorporated by Act 1 of 1960
that the power conferred on the Custodian-General under s.
27 may be exercised by him in relation to any property,
notwithstanding that such property has been acquired under
s. 12 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954. This also indicates that even if
the evacuee property has been acquired under s. 12 of Act 44
of 1954, it is still open to the Custodian-General in
appropriate Cases to exercise his power in revision. We are
therefore of the view that the Custodian-General had the
power to entertain the revision application filed by the
State of Uttar Pradesh.
On the merits of the order, not much need be said. The pro-
cedure followed by the Custodian-General is in gross
violation of
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the rules of natural justice. As we have already observed,
acting under the powers conferred upon him by S. 6 of
Ordinance 12 of 1949, the Deputy Custodian had notified No.
11, Kaiserbagh, as evacuee property. What the evidence
before the Deputy Custodian in that behalf was, has not been
disclosed. Nearly twelve years after that order was passed,
the State of Uttar Pradesh moved the Custodian-General in
revision. The petition invoking the revisional jurisdiction
was competent, but the Custodian-General was not justified
in acting upon evidence which was sought to be brought on
the record for the first time before him without affording
to the persons affected thereby an opportunity of meeting
that evidence. It appears that in the petition filed by the
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State of Uttar Pradesh many new facts which were not on the
record were set out. The Custodian-General has in
appropriate cases the power to admit additional evidence and
to consider the same: Rule 31(9) of the Administration of
Evacuee Property Central Rules, 1950. But no party has a
right to tender additional evidence in appeal or before a
revising authority: it is for the revising authority to
decide whether having regard to all the circumstances and in
the interest of justice, additional evidence tendered by a
party should be admitted. It is unfortunate that the
Custodian-General did not record a formal order admitting
additional evidence tendered by the State of Uttar Pradesh
with its petition. But we would not be justified in the
circumstances of this case in assuming that the Custodian-
General was oblivious of the nature and extent of his powers
and restrictions thereon.
The procedure followed by the Custodian-General is however
open to grave objection, because he did not even give an
opportunity to the legal representatives of Ram Chand Kohli
to lead evidence in rejoinder to the evidence relied upon by
the State. It appears that only copies of documents on
which the title of the State of Uttar Pradesh was founded
were filled in the proceeding before the Custodian-General.
The revision petition was heard by the Custodian-General on
August 4, 1962, and thereafter the proceeding stood
adjourned till August 14, 1962 for further hearing. On
August 6, 1962, counsel for the appellants served a notice
upon counsel for the State of Uttar Pradesh calling upon him
to give inspection of the documents referred to in the
notice. No inspection was given, and the hearing took place
on August 14, 1962. It is true that counsel for the
appellants did attempt to meet the case sought to be raised
by the State of Uttar Pradesh on the merits, and submitted
that the property in dispute was owned by Chowdhry Akbar
Hussain. That, however, would not justify the procedure
followed by the Custodian-General, nor would it lead to
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the inference that the appellants had, in the circumstances
of this case, waived the irregularity in the trial. It is
common round before us that at no stage, originals of a
large number of documents, on which reliance was placed by
the State of Uttar Pradesh, and on which the Custodian-
General founded his conclusion, were produced before the
Custodian-General. The Custodian-General does not appear to
have even told the appellants that he had admitted copies of
those documents on the record. Nor did he give to the
appellants an opportunity to meet the case which the State
of Uttar Pradesh sought to make out. In our view the pro-
ceedings of the Custodian-General were so wholly
inconsistent with the procedure which may be followed in a
judicial trial, that his order must be set aside and the
proceedings remanded to the Custodian-General with a
direction that he do call upon the State of Uttar Pradesh to
formally tender in evidence such of the documents on which
they rely, and that he do give an opportunity to the
appellants in this appeal to tender such evidence as they
desire to tender in support of their case. Thereafter the
Custodian-General -shall hear both the parties on the
evidence properly brought on the record.
The appeal is allowed and the case is remanded to the
Custodian-General for disposal according to law. The
appellants will be entitled to their costs in this Court.
Appeal allowed.
LISup.C.I./66-12
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