# BAWA HARIGIR v. ASSISTANT CUSTODIAN, EVACUEE

- **Citation:** [1962] 1 S.C.R. 189
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bawa-harigir-v-assistant-custodian-evacuee-1988
- **Pages:** 6

## Headnote

Evacuee Property-Provisions regarding declaration of property
•s evacuee property-Confirmation of sale-Power of Custodian
to refuse-Constitutionality of-Administration of Evacuee Property Act. r950 (JI of r950), ss. 2(d). 40(4)(a)-Constitution of
India, Arts. JI(Z), JI(S)(b)(iii).
I96I
March 7.
190
SUPREME COURT REPORTS
(1962)
z961
The petitioner purchased some land from R. R. was declared
to be an intending evacuee and he left for Pakistan. The Assisnawa llarigir tant Custodian issued a notice to the petitioner to show cause
v.
why the land should not be declared to be evacuee property, and
Assistant Custo- after hearing the petitioner he declared the land to be evacuee
dian, Evacuee property. An appeal and a revision against the order were
Property, Bhopal unsuccessful. The petitioner also applied to the Custodian under
s. 40 of the Administration of Evacuee Property Act, r950, for
confirmation of the sale but his application was rejected under
s. 40(4)(a) on the ground that the evacuee did not act in good
faith in effecting the sale. The petitioner contended thats. 2(d)
of the Act defining evacuee property and s. 40(4) empowering
the custodian to reject an application for confirmation violated
Art. 31(2) as they enabled the State to take away property without the authority of law.
Held, that the provisions of ss. 2(d) and 40(4) were not affected by Art. 31(2) in view of Art. 3r(5)(b)(iii) of the Constitution.
The protection of Art. 31(5)(b)(iii) was not limited to a law which
itself declared any property to be evacuee property but extended
to a law which empowered an authority to declare any property
as evacuee property and laid down the criteria for the declaration. Section 40(4)(a) of the Act which empowered the Custodian
to reject an application for confirmation on the ground that the
transaction had not been entered into in good faith could not be
challenged as conferring arbitrary powers on the Custodian. The
power was in the nature of a judicial power and the absence of
a standard for the determination of the question could not
render the provision unconstitutional.
ORIGINAL JURISDICTION:
Petition No. 87 of 1957.
Petition under Art. 32 of the Constitution of India
for enforcement of fundamental rights.
B. D. Sharma, for the petitioner.
N. S. Bindra, R.H. Dhebar and T. M. Sen, for the
respondents.
1961. March 7.
The Judgment of the Court was
delivered by
Mudholkar J.
MUDHOLKAR, J.-In this petition under Art. 32 of
the Constitution the petitioner contends that the provisions of the Administration of Evacuee Property
Act, 1950 (XXXI of 1950) and in particular those of
s. 2 (d) and sub-s. (4) of s. 40 are unconstitutional.
According to him the effect of the order passed against
him by the Custodian of Evacuee Properties under
sub-s. (4) of s. 40 of the Act is to take away his
1 S.C.R. SUPREME COURT REPORTS
191
property without the authority of law. He further conr96r
tends that the order of the Custodian amounts to dis-
.
.
.
.
h
. .
Th
Bawa liarigir
crimmation m practice agamst t e pet1t10ner.
ese
v.
are the two main heads under which the arguments Assistant Gusto·
advanced before us could be classified.
dian, Evacuee
The relevant facts may now be stated. The peti- Property, Bhopal
tioner purchased 195·51 acres of land in the former
Bhopal State from one Babu Rehmatullah on June
Mudhothar J.
23, 1950, for a consideration of Rs. 3,500. Rehmatullah
was declared to be an intending evacuee by the Assistant Custodian of Evacuee Property. Eventually
he left India for Pakistan on June 20, 1951.
On June 12, 1951, the Assistant Custodian of
Evacuee Property issued a notice to the petitioner to
show cause why the land which he had purchased
from Rehmatullah should not be declared to be
"evacuee property".
After hearing the petitioner
the property was declared to be evacuee property on
August 8, 1951.
The petitioner challenged that order
in appeal as well as in revision as provided in the Act
but was unsuccessful. A writ petition

## Text

L S.C.R. SUPREME COURT REPORTS
189
have become final, because no appeal was filed against
z96r
that determination. But it appears that the proce.
-
d
1 'd d
b
24(3)
d
h' h th I
The c. mmi.<Sion"
ure a1
own
y s. .
un er w IC
e ncome-
/ 1
1
tax Officer has to notify to the assessee by order in ~:adh~·~
0
";~;.~:;h
writing the amount of the loss as computed by him
v.
for the purposes of that section was not followed. No
Seth Khushal
doubt, under s. 30 an appeal lies, if the assessee obChand Daga
jects to the amount of loss computed and notified
under s. 24; but inasmuch as the Income-tax Officer Hidayatullah f.
had not notified the loss computed by him by order in
writing, an appeal could not be taken on that point.
In our opinion, the assessee was, therefore, entitled
to have the loss re-determined in a subsequent year.
Learned counsel for the Commissioner stated that the
Department was not very anxious for the decision,
because this particular assessee has had only losses in
the years following, and no loss would be occasioned
to the Revenue, if the losses brought forward be redetermined. But that is a matter, with which we
are not concerned. In our opinion, the judgment of
the High Court impugned before us was correct in the
circumstances of the case.
The appeals fail, and are dismissed with costs. One
hearing fee.
.A.Ji:peals dismissed.
BAWA HARIGIR
v.
ASSISTANT CUSTODIAN, EVACUEE
PROPERTY, BHOPAL.
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
Evacuee Property-Provisions regarding declaration of property
•s evacuee property-Confirmation of sale-Power of Custodian
to refuse-Constitutionality of-Administration of Evacuee Property Act. r950 (JI of r950), ss. 2(d). 40(4)(a)-Constitution of
India, Arts. JI(Z), JI(S)(b)(iii).
I96I
March 7.
190
SUPREME COURT REPORTS
(1962)
z961
The petitioner purchased some land from R. R. was declared
to be an intending evacuee and he left for Pakistan. The Assisnawa llarigir tant Custodian issued a notice to the petitioner to show cause
v.
why the land should not be declared to be evacuee property, and
Assistant Custo- after hearing the petitioner he declared the land to be evacuee
dian, Evacuee property. An appeal and a revision against the order were
Property, Bhopal unsuccessful. The petitioner also applied to the Custodian under
s. 40 of the Administration of Evacuee Property Act, r950, for
confirmation of the sale but his application was rejected under
s. 40(4)(a) on the ground that the evacuee did not act in good
faith in effecting the sale. The petitioner contended thats. 2(d)
of the Act defining evacuee property and s. 40(4) empowering
the custodian to reject an application for confirmation violated
Art. 31(2) as they enabled the State to take away property without the authority of law.
Held, that the provisions of ss. 2(d) and 40(4) were not affected by Art. 31(2) in view of Art. 3r(5)(b)(iii) of the Constitution.
The protection of Art. 31(5)(b)(iii) was not limited to a law which
itself declared any property to be evacuee property but extended
to a law which empowered an authority to declare any property
as evacuee property and laid down the criteria for the declaration. Section 40(4)(a) of the Act which empowered the Custodian
to reject an application for confirmation on the ground that the
transaction had not been entered into in good faith could not be
challenged as conferring arbitrary powers on the Custodian. The
power was in the nature of a judicial power and the absence of
a standard for the determination of the question could not
render the provision unconstitutional.
ORIGINAL JURISDICTION:
Petition No. 87 of 1957.
Petition under Art. 32 of the Constitution of India
for enforcement of fundamental rights.
B. D. Sharma, for the petitioner.
N. S. Bindra, R.H. Dhebar and T. M. Sen, for the
respondents.
1961. March 7.
The Judgment of the Court was
delivered by
Mudholkar J.
MUDHOLKAR, J.-In this petition under Art. 32 of
the Constitution the petitioner contends that the provisions of the Administration of Evacuee Property
Act, 1950 (XXXI of 1950) and in particular those of
s. 2 (d) and sub-s. (4) of s. 40 are unconstitutional.
According to him the effect of the order passed against
him by the Custodian of Evacuee Properties under
sub-s. (4) of s. 40 of the Act is to take away his
1 S.C.R. SUPREME COURT REPORTS
191
property without the authority of law. He further conr96r
tends that the order of the Custodian amounts to dis-
.
.
.
.
h
. .
Th
Bawa liarigir
crimmation m practice agamst t e pet1t10ner.
ese
v.
are the two main heads under which the arguments Assistant Gusto·
advanced before us could be classified.
dian, Evacuee
The relevant facts may now be stated. The peti- Property, Bhopal
tioner purchased 195·51 acres of land in the former
Bhopal State from one Babu Rehmatullah on June
Mudhothar J.
23, 1950, for a consideration of Rs. 3,500. Rehmatullah
was declared to be an intending evacuee by the Assistant Custodian of Evacuee Property. Eventually
he left India for Pakistan on June 20, 1951.
On June 12, 1951, the Assistant Custodian of
Evacuee Property issued a notice to the petitioner to
show cause why the land which he had purchased
from Rehmatullah should not be declared to be
"evacuee property".
After hearing the petitioner
the property was declared to be evacuee property on
August 8, 1951.
The petitioner challenged that order
in appeal as well as in revision as provided in the Act
but was unsuccessful. A writ petition preferred by
him before the Judicial Commissioner, Bhopal, was
dismissed in limine on July 14, 1954. He has, therefore, come up to this Court under Art. 32 of the Constitution.
The first point pressed before us by Mr. B. D.
Sharma, on behalf of the petitioner is that the provisions of the Evacuee Property Act and particnlarly
those of ss. 2 (d) and 40 (4) are unconstitutional, because they enable the State to take away property
without paying any compensation therefor as required
by Art. 31 (2) of the Constitution. The short answer
to this contention is that the provisions of a law made
in pursuance of any agreement entered into between
the Government of India and the Government of any
other country or otherwise with respect to property
declared by law to be evacuee property will not be
affected by the provisions of cl. 2 of Art. 31. This is
clear from the provisions of Art. 31(5)(b)(iii) which
runs thus:
"Nothing in clause (2) shall affect-
..................................................................
Bawa l-larigir
v.
Assistant Custodian, Evacuee
PropertJ', Bhopal
lvl udltolkar .J.
192
SUPREME COURT REPORTS
[1962]
{b) the provisions of any law which the State
may hereafter make-
....................................................... ; ......... .
(iii) in pursuance of any agreement entered into .,
between the Government of the Dominion of India
or the Government of India and the Government of
any other country, or otherwise, with respect to pro.
perty declared by law to be evacuee property."
Mr. Sharma, however, contends that the protection
afforded by the aforesaid clause must be limited ttJ a
law which itself declares any property to be ~vacuee
property and not to a law which empowers an ·autho.
rity to declare any property as evacuee property. We
cannot accept the contention. The words "property
declared by law to be evacuee property" would neces.
sarily include property which could be declared as
evacuee property. A law relating to evacuee property
would concern itself with laying down the crite'ria for
determining what property is to be considered as
evacuee property and could not be expected to specify
the particular properties which are to be treated as
evacuee properties. The protection afforded by the
constitutional provision which we have quoted above
is not restricted as suggested by Mr. Sharma but
extends to a law which provides for the determination of the criteria for declaring property to be
evacuee property.
The next argument of .learned counsel is that the
property in question is not evacuee property and that
the provisions of Art. 31(1) of the. Constitution are a
bar against taking it away. It is difficult to appre.
ciate the argument. What Art. 31(1) prohibits is
"deprivation of property save by authority of law".
No doubt the petitioner can say that he is deprived of
his property because of the declaration made by the
Custodian that it is evacuee property. But then this
declaration has been made in pursuance of a la,w
enacted by Parliament. If, as contended by him, we
had held that the law is unconstitutional the position
would have been different.
The next contention of learned counsel is that els.
(a) and (c) of s. 40, sub-s. (4) are ultra vires because
J
"
'
:·'
.,, .. ,
\
"
. /'
••
--- ........
1 S.C.R. SUPREME COURT REPORTS
193
they confer arbitrary power upon the Custodian. The
196I
. reason for raising the contention is that an application made by the petitioner to the Custodian under
Bawa ~a•igir
s. 40 for confirming the sale in his favour was rejectAssistant custoed by him on thy ground that the evacuee did not act
dian, Evacuee
in· good faith in effecting the sale. Sub-s. (4) of s. 40 Property, lihopal
reads thus:
,
"The Custodian shall hold an inquiry into the
Mudholkar J.
application in the prescribed manner and may reject
the application, if he is of opinion that:
.
(a) the transaction has not been entered into in
good·faith or for valuable consideration, or
(b} the transaction is prohibited under any law
for the time being in force, m
(o) the transaction ought not to be confirmed for
any other reason."
We are concerned here only with cl. (a) of s. 40(4) to
which the Custodian resorted and not with cl. ( c ). \.Ve
.would; therefore, limit our remarks to cl. (a).
Sub-
. section ( 4) of s. 40 enables the Custodian to hold an
inquiry regarding the genuineness or validity of a
transaction sought to be confirmed and cl. (a)
empowers him to refuse to confirm it if he find$ that it
was not entered iuto in good faith.
According to
learned counsel the words "good faith" are vague and
"slippery" and do not furnish any standard or a norm
which has to be conformed to by the Custodian. Apart
from the fact that the words "good faith" occur in a
number of statutes and have acquired a definite meaning in courts of law, it may be pointed out that the
power conferred by sub-s. (4) of s. 40 is in the nature
of a judicial power and, therefore, the absence of a
standard for. the determination of the question would
not render the provision unconstitutional.
Learned counsel wanted to contend that the absence
·of good faith on the part of the transferor-was not
sufficient and could not be regarded as a ground for
refusing recognition to the transfer and that unless it
is shown that the transferee was also lacking in good
faith the transfer had to be confirmed under sub-s. (4)
of s. 40.
He, however, did not press the contention
25
Bawa Harigir
v.
Assistant Gusto·
dian, Evacuee
Property, Bhopal
Mudholkar ].
1961
March 8,
194
SUPREME COURT REPORTS
[1962]
when it was pointed out to him that in Rabia Bai v.
The Custodian-General of Evacuee Property (1), this
Court has upheld the order of the Custodian refusing
to confirm the transfer on the ground that the evacuee
had effected it in bad faith.
The last contention of learned counsel is that he has
been discriminated against by .the Custodian in the
matter of confirmation of the transaction. He said
that prior to the sale of the land to him by Rehmatullah, the latter had sold a house to some nurses and
that that sale was found to be for inadequate consideration but in spite of that it was confirmed by the
Custodian while the sale in his favour, though found to
be for an adequate consideration was not cpnfirmed.
We would repeat that the order of the Custodian is a
judicial order and merely because he may have gone
wrong in dealing with one case we cannot hold that
the petitioner has been discriminated against. The
petition is wholly without basis and is accordingly
dismissed without costs.
Petition dismissed.
THE STATE OF ANDHRA .PRADESH
v.
KANDIMALLA SUBBAIAH AND ANOTHER
(B. P. SINHA, C. J., J. R. MUDHOLKAR and
T. L. VENKATARAMA AYYAR, JJ.)
..
•
Criminal Trial-Accused persons charged with more than three
I!
offences in the course of the same transaction, if could be jointly
tried-Large number of charges spread over long period-Framing
of-Duty of Judge or Magistrate-Conspiracy if distinct from abetment-Special Judge appointed under Criminal Law Amendment
Act, if could try offences under Criminal ·Procedure Code, at the
same trial-Indian Penal Code, I86o (Act XLV of 1860), ss. rn9,
I2oB, 463-Code of Criminal Procedure, 1898 (Act V of 1898),
ss. 234, 239-Criminal Law Amendment Act (46 of 1952), ss. 6, 7Prevention of Corruption Act, 1947 (II of 1947), s. 5·
(1) [1961] 3 S.C.R. 448.