Full Judgment Text
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PETITIONER:
INDIRA SOHANLAL
Vs.
RESPONDENT:
CUSTODIAN OF EVACUEE PROPERTY,DELHI & OTHERS.
DATE OF JUDGMENT:
28/10/1955
BENCH:
JAGANNADHADAS, B.
BENCH:
JAGANNADHADAS, B.
AIYAR, N. CHANDRASEKHARA
DAS, SUDHI RANJAN
BOSE, VIVIAN
IMAM, SYED JAFFER
CITATION:
1956 AIR 77 1955 SCR (2)1117
ACT:
Evacuee Property-Custodian-General-Revisional powers-
Administration of Evacuee Property Act, 1950 (XXXI of 1950),
ss. 2 7, 58(3)-Transaction before the passing of the Act-
Application for confirmation-East Punjab Evacuees’
(Administration of Property) Act, 1947 (East Punjab Act XIV
of 1947), ss. 5-A, 5-B-Order of confirmation after passing
of Act XXXI of 1950-Revision-Validity-General Clauses Act (X
of 1897), s. 6-Applicability.
HEADNOTE:
The appellant, a displaced person from Lahore, was the owner
of 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-
1118
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 was not disposed
of until the 20th of March, 1952, and on that date the
Additional Custodian passed an order confirming the
exchange. In the meanwhile, there were changes in the law
relating to evacuee property by which the East Punjab Act as
applied to the State of Delhi witness repealed and re-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. 27 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
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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 repeal 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 the General Clauses Act (X of 1897)
was not applicable to the case, as s. 58(3) of Act XXXI of
1950 was a self-contained provision indicative of the
intention to exclude the operation of s. 6;
(ii)that the right to a determination with the attribute of
finality, assuming that such a right exist,.;, is not a
vested right and it does not accrue until the determination
is in fact made, when alone it becomes an existing right.
Colonial Sugar Refining Co. Ltd. v. Irving ([1905] A.C. 369)
and Delhi Cloth & General Mills Co. Ltd. v. Income-Tax Com-
missioner ([1927] I.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 as 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 be dealt with, under the now law except in so far as
certain consequences have already ensued or acts have been
completed prior to the new Act, to which it is the old law
that will apply.
In view of s. 58, the application of the appellant for con-
firmation pending on the 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 revisions -power of the Custodian-General under s, 27
of the said Act,
1119
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.
JUDGMENT:
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 CustodianGeneral 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 of Evacuee Property dated
the 20th May, 1953, revising an order of the Additional
Custodian of East Punjab, Delhi, dated the 20th March, 1952.
The two questions raised before us on the facts and circum-
stances, 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 Sobanlal, is a
displaced person from Lahore. She was the owner of a house.
at Lahore known as 5, Danepur Road. Malik Sir Firoz Khan
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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 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
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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 allottees 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
1121
not appear from the record whether this was done, or whether
possession was in fact delivered. At this stage, 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 the 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, sanctioning
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
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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 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 time. The earliest of these
legislative 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 Pun-
jab 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 1948), which
inserted two new sections, 5-A and 5-B I prescribing the
requirement of confirmation Of transactions relating to eva-
cuee 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 Government 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 measures 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 Provinces 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 XXXI 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
1123
No. XXVII of 1949 provided for a centralised law and
centralised 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
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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, 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 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.
(3) The Custodian shall reject any application made after
the thirty first day of March, 1948 or after
142
1124
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 by 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
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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
1125
the successive legislative measures with certain modi-
fications 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 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 Custodian has passed an order for the purpose of
satisfying him-
1126
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
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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 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
1127
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 con-
clusive 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
Colonial Sugar Refining Co. Ltd. v. Irving(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 effect thereof.
The East Punjab Act XIV 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 done 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
(1) [1905] A.C. 369.
1128
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 here by repealed.
(2)............................
(3)Notwithstanding the repeal by this Ordinance of the
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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 Ordinance, 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 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
1129
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 be 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 action
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 new 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 subject 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 Punjab 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 the repeal is followed by fresh
legislation on the same subject we would undoubtedly have to
look to the provisions of the new Act, but only for the
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purpose of determining -whether they indicate a different
intention.
(1) [1955] 1 S.C.R. 893, 899.
1130
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 enactment followed by a fresh legislation. Section 6
would be applicable in such cases also unless the new
legislation manifests an intention incompatible with or con-
trary to the provisions of the section. Such incom-
patibility 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 operation of the new law in the other
part and in positive terms, the said provision 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 is not free from
difficulty. This kind of provision in a
1131
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 in
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
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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). It appears 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 Lordships 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.
(1) [1905] A.C. 369.
143
1132
v.Income Tax-Commissioner, Delhi(1) 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(1), 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 fought 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 passed 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
(1) [1927] I. L.R. 9 Lahore 284.
(2) (1923] L.R. 50 I.A. 212.
1133
appeal against such an order 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
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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 cir-
cumstances, are anything more than alterations in 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 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(1). We are, therefore, of the opinion that the
principle of Colonial Sugar Refining Co. Ltd. v. Irving(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
(1) [1927] I.L.R. 9 Lahore 284,
(2) [1905] A.C. 369.
1134
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 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 pro-
ceedings. 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
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the appellant cannot call in aid the principle of the case
in Colonial Sugar Refining Co. Ltd. V. Irving(1), 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
(1) [1903] A.C. 369.
1135
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
various sections and broadly speaking fall under the follow-
ing 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
rules framed by virtue of section 53 of the Ordinance under
which various powers may be exercised, things done, and
action taken.
If section 58 (3) of Central Act XXXI of 1950 which
1136
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 in so 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
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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 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
1137-
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 article 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 came 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
1138
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.
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The learned Solicitor General appearing for the respondent
contended that the finding of the CustodianGeneral 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 Additional 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 urged that the alleged policies or directives are
not relevant matters for consideration by the Custodian in
these proceedings which must be taken to be 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 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.
1139
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
CustodianGeneral, 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 together from it whether the remand to the
Additional Custodian for reconsideration, after notice was a
general and open remand where all questions 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 circumstances, 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
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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.
144
1140
The appeal is allowed and the order of the CustodianGeneral
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,