# DAFEDAR NIRANJAN SINGH AND ANOTHER CUSTODIAN v. EVACUEE PROPERTY (PB.) AND ANOTHER

- **Citation:** [1962] 1 S.C.R. 214
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 66 of 1959
- **Bench:** K. Subba Rao, Raghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dafedar-niranjan-singh-and-another-custodian-v-evacuee-property-pb-and-another-1998
- **Pages:** 19

## Headnote

Evacuee
Property-Custodian-Power of revision-Patiala
Evacuees (Administration of Property) Ordinance of Samvat 2004
(No. IX of 2004)-Patiala and East Punjab States Union Ordinance No. XIII of Samvat 2&06-Patiala and East Punjab State
Union Ordinance No. XV II of 2006-Central Ordinance No.
XXV II of r949-Administration of Evacuee Property Act (No.
XXXI of r950) ss. 27 and 58(3).
The Custodian of Evacuee Property, Patiala, took possession of two houses under the provisions of the Patiala Evacuees
(Administration of Property) Ordinance of Samvat 2004 (No. IX
of 2004) but on the appellant claiming the houses as belonging to
him they were released in his favour by the Custodian by an
order dated June 6, r949. Thereafter several Ordinances relating to evacuee property were passed one after another, the later
one repealing the previous one and creating 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by which certain provisions of the repealed Ordinance were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 (No. XXXI of r950) under the provisions of which the
Deputy Custodian General set aside the order of Custodian dated
June 6, r949, after giving notice to the present appellants. On
appeal by special leave the appellants contended that (r) the
deeming
provisions of the repealing Ordinances and Acts
culminating in s. 58(3) of the Act apply only to things or action
taken by the Custodian in exercise of his administrative powers
and not to orders made by him in exercise of his judicial powers,
(2) the order dated June 6, -.:949 passed by the Custodian under
Ordinance IX of 2004 could not be deemed to be an order passed
under the Act as the chain of fictions was broken when Ordinance No. XIII of 2006, repealing the previous Ordinance IX of
2004 was issued, (3) s. 58 (3) of the Act expressly saves the previous operation of Ordinance XXVII of r949 or any corresponding law, and, therefore, the orders that had become final under
the said Ordinance could not be revised under s. 27 of the Act.
Held, that the operation of s. 58(3) of the Administration
of Evacuee Property Act, 1950 (No. XXXI of r950) was not
confined only to administrative acts done by the Custodian under
the earlier Ordinances but the provisions of that section applied
also to judicial orders passed by him.
' ..
.t
1 S.C.R. SUPREME COUR'l' REPORTS
215
Indira Sohan Lal v. Custodian of Evacuee Property, Delhi,
1961
[ 1955] 2 S.C.R. III], followed.
The order dated June 6, 1949, releasing the property in dis-D~fedar Niranjan
pute was passed under Ordinance No. IX of 2004 by the Custodian Singh 6 Another
and not the Claims Officer as provided in the successive Ordiv.
nance No. XIII of 2006 and therefore that order could not be
Custodian.
deemed to have been passed under the successive Ordinances Evacuee Prop1tty
and the Act.
The alleged chain of fiction was broken during the
(Pb.) 6 Another
period when Ordinance No. XIII of 2006 was in force.
Even if
the Custodian was the Claims Officer, his order must be deemed
to be an order made under the later Ordinance only for the
limited purpose of appeal or revisions.
Under s. 25 of the last
Ordinance namely Ordinance No. XXVII of 1949 the order of
the Custodian was appealable but no appeal having been filed it
had become final under s. 28.
The order of the Custodian which
had become final under the said Ordinance, could not be affected
retrospectively under s. 58(3) of the Act so as to deprive the
order of the Custodian of the finality it had acquired under the
said Ordinance. Section 58(3) does not contain any positive
indication giving it such retroactivity but in express terms it
saves the previous operation of that Ordinance.
Colonial Sugar Refining Co. Ltd. v. Irving, (1905) A. C. 69,
followed.
Indira Sohan Lal v. Custodian of Evacuee Property. Delhi,
[1955] 2 S.C.R. n17, considered.
Delhi Cloth and General Mills v. Income-tax Commissioner,
Delhi, (1927) I.L.R. 9 Lah. 284, referred t

## Text

_Characters 0–39,995 of 42,614. This is a partial read: ask again with offset=39995 for what follows._

March 8.
214
SUPREME COURT REPORTS
[1962]
DAFEDAR NIRANJAN SINGH AND ANOTHER
CUSTODIAN,
v.
EVACUEE PROPERTY (PB.) AND
ANOTHER.
(K. SUBBA RAO, RAGHUBAR DAYAL and
J. R. MUDHOLKAR, JJ.)
Evacuee
Property-Custodian-Power of revision-Patiala
Evacuees (Administration of Property) Ordinance of Samvat 2004
(No. IX of 2004)-Patiala and East Punjab States Union Ordinance No. XIII of Samvat 2&06-Patiala and East Punjab State
Union Ordinance No. XV II of 2006-Central Ordinance No.
XXV II of r949-Administration of Evacuee Property Act (No.
XXXI of r950) ss. 27 and 58(3).
The Custodian of Evacuee Property, Patiala, took possession of two houses under the provisions of the Patiala Evacuees
(Administration of Property) Ordinance of Samvat 2004 (No. IX
of 2004) but on the appellant claiming the houses as belonging to
him they were released in his favour by the Custodian by an
order dated June 6, r949. Thereafter several Ordinances relating to evacuee property were passed one after another, the later
one repealing the previous one and creating 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 (No. XXXI of r950) under the provisions of which the
Deputy Custodian General set aside the order of Custodian dated
June 6, r949, after giving notice to the present appellants. On
appeal by special leave the appellants contended that (r) the
deeming
provisions of the repealing Ordinances and Acts
culminating in s. 58(3) of the Act apply only to things or action
taken by the Custodian in exercise of his administrative powers
and not to orders made by him in exercise of his judicial powers,
(2) the order dated June 6, -.:949 passed by the Custodian under
Ordinance IX of 2004 could not be deemed to be an order passed
under the Act as the chain of fictions was broken when Ordinance No. XIII of 2006, repealing the previous Ordinance IX of
2004 was issued, (3) s. 58 (3) of the Act expressly saves the previous operation of Ordinance XXVII of r949 or any corresponding law, and, therefore, the orders that had become final under
the said Ordinance could not be revised under s. 27 of the Act.
Held, that the operation of s. 58(3) of the Administration
of Evacuee Property Act, 1950 (No. XXXI of r950) was not
confined only to administrative acts done by the Custodian under
the earlier Ordinances but the provisions of that section applied
also to judicial orders passed by him.
' ..
.t
1 S.C.R. SUPREME COUR'l' REPORTS
215
Indira Sohan Lal v. Custodian of Evacuee Property, Delhi,
1961
[ 1955] 2 S.C.R. III], followed.
The order dated June 6, 1949, releasing the property in dis-D~fedar Niranjan
pute was passed under Ordinance No. IX of 2004 by the Custodian Singh 6 Another
and not the Claims Officer as provided in the successive Ordiv.
nance No. XIII of 2006 and therefore that order could not be
Custodian.
deemed to have been passed under the successive Ordinances Evacuee Prop1tty
and the Act.
The alleged chain of fiction was broken during the
(Pb.) 6 Another
period when Ordinance No. XIII of 2006 was in force.
Even if
the Custodian was the Claims Officer, his order must be deemed
to be an order made under the later Ordinance only for the
limited purpose of appeal or revisions.
Under s. 25 of the last
Ordinance namely Ordinance No. XXVII of 1949 the order of
the Custodian was appealable but no appeal having been filed it
had become final under s. 28.
The order of the Custodian which
had become final under the said Ordinance, could not be affected
retrospectively under s. 58(3) of the Act so as to deprive the
order of the Custodian of the finality it had acquired under the
said Ordinance. Section 58(3) does not contain any positive
indication giving it such retroactivity but in express terms it
saves the previous operation of that Ordinance.
Colonial Sugar Refining Co. Ltd. v. Irving, (1905) A. C. 69,
followed.
Indira Sohan Lal v. Custodian of Evacuee Property. Delhi,
[1955] 2 S.C.R. n17, considered.
Delhi Cloth and General Mills v. Income-tax Commissioner,
Delhi, (1927) I.L.R. 9 Lah. 284, referred to.
]anki Prasad v. The Custodian Evacuee Property, ]ullundur,
(1955) I.L.R. 8 Punj. 823, disapproved.
The words "any time" or "any Custodian" in s. 27 of the
Act must necessarily be confined only to orders of any one of the
Custodians defined in the Act and to orders of Custodians deemed
to have been made under the Act but had not become final before the Act came into force.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
66 of 1959.
Appeal by special leave from the judgment and
order dated the February l, 1958, of the Deputy
Custodian-General, Evacuee Property, New Delhi, in
No. 1017-R/ Judl./Punj.
Achhru Ram and M. L. Kapur, for the appellants,
N. S. Bindra and T. M. Sen, for the respondents.
• •
1961. March 8.
The Judgment of the Court was
delivered by
216
SUPREME COURT REPORTS
[1962]
1961
SUBBA RAO, J.-This is an appeal by special leave
D j d
N .
. against the order of the Deputy Custodian-General of
a ' ar
"an1an E
P
I d"
d
d F b
Singh & Another
va:cuee . roperty,
n ia,
ate
e ruary l, 1958,
v
settmg aside the order dated June 6, 1949, passed by
Custodian,
the Custodian of Evacuee Property, Patiala, and
Evacuee Property remanding the case for enquiry.
(Pb.) & A not her
The fants lie in a small compass and may be briefly
stated.
One Dafedar Niranjan Singh, the first appelSubba Rao f. !ant herein, owned houses Nos. 915 and916 situate in
the town of Patiala. During the latter part ofl948, the
Custodian of Evacuee Property, Patiala, took possession of the said houses under the provisions of the
Patiala Evacuees (Administration of Property) Ordinance of Samvat 2004 (No. IX of 2004) (hereinafter
referred to as Ordinance IX of 2004), on the ground
that they were evacuee properties. On January 27,
1949, Dafedar Niranjan Singh filed a claim petition
before the said Custodian alleging that the said properties belonged to him by inheritance. The Custodian
by order dated June 6, 1919, allowed the claim and
released the said properties. This order was communicated to the Assistant Custodian on June 7, 1949, and
pursuant to that order the said houses were released.
On June 9, 1955, the first appellant sold a part of the
said properties to Major Bhagwant Singh, the second
appellant herein, for Rs. 6,000. On June 21, 1949,
Ordinance IX of 2004 was repealed by the Patiala
and East Punjab States Union Ordinance No. XIII of
Sam vat 2006 (hereinafter referred to as Ordinance
No. XIII of 2006) which was in its turn repealed by
the Patiala and East Punjab State Union Ordinance
No. XVII of 2006 (hereinafter referred to as Ordinance.
No. XVII of 2006).
On October 18, 1949, Ordinance
No. XVII of 2006 was also repealed by Central Ordinance No. XXVII of 1949, under which for the first
time the office of Custodian-General was created. This
Central Ordinance was replaced by the Administration of Evacuee Property Act (No. XXXI of 1950).
The said Act was amended from time to time.
Nothing turns upon the said amendments in the present appeal. On December 24, 1955, i.e., more than six
years after the order of the Custodian, the Litigation
•
-
_ .. --1
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l S.C.R. SUPREME COURT REPORTS
217
Inspector of Evacuee Properties filed an application
x96x
before the Custodian of Evacuee Property, Patiala, for
.
.
review of the order of the Custodian dated June 6, D5af'dha: NAiranthJ•n
.
,
.
ing
<.!>'
no er
1949.
Durmg the pendency of that apphcat1on, the
v.
powers of the Custodian and the Additional Custodian
custodian,
of Evacuee Property of review and revision under Eva"'" Property
s. 26 of the Act were taken away by the Administra-
(Pb.) &- Another
tion of Evacuee Property (Amendment) Act XCI of
1956. On April 2, 1957, the Additional Custodian
Subba Rao f.
submitted the case to the Custodian-General of
Evacuee Property to enable him to take action suo
motu under s. 27 of the Act. On May 24, 1957, the
Deputy Custodian-General, to whom the powers of the
Custodian-General in that behalf had been delegated,
issned notice to the appellants to show cause why the
order of the Custodian of Evacuee Property, Patiala,
dated June 6, 1949, be not revised. On February l,
1958, after hearing the parties, the Deputy CustodianGeneral, set aside the order of the Custodian dated
June 6, 1949, and remanded the case to the Custodian
for further enquiry. The present appeal by special
leave was directed against the said order.
Learned counsel for the appellants raised before us
the following three points: (1) The deeming provisions
of the repealing Ordinances and Acts culminating in
s. 58(3) of the Act apply only to things done or
action taken by the Custodian in exercise of his
administ.rative powers and not to orders made by
him in exercise of his judicial powers. (2) The order
passed by the Custodian under Ordinance IX of 2004
cannot be deemed to be an order passed under the
Act, as the chain of fiction was broken when Ordinance No. XIII of 2006 was issued. (3) Section 58(3)
of the Act expressly saves the previous operation of
Ordinance XXVII of 1949 or any corresponding law,
and, therefore, the orders that had become final under
the said Ordinance could not be revised under s. 27
of the Act.
Learned counsel for the State in addition to countering the said arguments, further submitted that the
Custodian under Ordinance IX of 2004 had no jurisdiction to allow the claim of the first appellant and,
28
21S
SUPREME COURT REPORTS
[1962]
r96r
therefore, the said order was non est; with the result,
-
the Custodian-General could vacate it at any time
Dajedar Niranja1i
d
27 f h A
Singh & Another un er s.
o
~ e . ct.
v.
Before cons1dermg the arguments advanced by
Custodia••,
learned counsel, it would be convenient at the outset
Evacuee Prnpertv to give a short history of the legislation relevant to
(Pb. l & Another the present enquiry leading to the conferment of
plenary powers of revision under the Act on the
Subba Rao J. Custodian-General. The earliest Ordinance was the
Patiala Evacuee (Administration of Property) Ordinance No. IX of 2004. It extended to the whole of Patiala
State. Section 3 thereof enabled the appointment of
Custodian of Evacuee Property and also the appointment of one or more Deputy Custodians and Assistant
Custodians for such local areas as might be specified.
Section 5 enjoined on the Custodian within the area
placed in his charge to take possession of evacuee
property and to take all measures he considered necessary or expedient for preserving or safeguarding such
property. Under the proviso to s. 6, the said Custodian, if any owner objected to his taking possession,
after the issue of notice for taking possession and
before taking possession thereof, should stay proceedings forthwith and
should send the record
of the case to the claims officer for decision. Section 12 provided for preferring of claims of any
kind against evacuees or their property before the
claims officer appointed for that purpose. Sub-section
(2) thereof conferred a right of appeal within 60 days
of the date of decision of the said officer to the Custodian, urban areas; and under sub-s. (4) the decision of
the claims officer, and, where an appeal had been filed,
the decision of the appellate authority, should be final
and conclusive and should not be called in question in
any court by way of appeal or revision or in any
original suit, execution application or other petition.
Section 14 enabled the Custodian, urban areas, either
suo motu or on application of any claimant to transfer
on sufficient grounds any claim from the claims officer
to any other officer appointed in this behalf by the
Prime Minister. Under s. 16, decisions of the claims
I.-.. "'"-
•
.•
•
•
1 S.C.R. SUPREME COURT REPORTS
219
officer and the Custodian were deemed to be decrees
I96r
of court. It may be noticed at this stage, as it may D 1
d -N.
.
c
fi
.
a e ar
iran;an
have some bearing on an argument ior the rst time Singh,;;, Another
advanced on behalf of the State, that none of the
v.
provisions of the said Ordinance expressly enabled
Custodian,
the Custodian to decide himself at the first instance Evacu" Property
a claim set up by an evacuee in respect of his property (Pb.) & Another
proposed to be taken possession of by him. But it may Subba Rao J.
be contended that such a power was implicit in the
power conferred on the Custodian to take possession
of an evacuee property.
When he could take possession of an evacuee property, if he had reason to believe
that it was an evacuee property, he could equally
release it if he was satisfied that he made a mistake in
that regard. It may also be that the Custodian could
withdraw the case to himself under s. 14, if he was
appointed by the Prime Minister under s. 14 of the
Ordinance to make an enquiry.
Ordinance IX of 2004 was repealed by Ordinance
XIII of 2006 which came into force on June 21, 1949.
Under s. 10 9f the said Ordinance, any person claiming any right to or interest in any property of which
the Custodian had taken possession or assumed control under s. 9 might prefer such claim before the
Custodian by an application within 30 days from the
date on which the possession of the property was
taken. The Custodian was empowered to make a
summary inquiry and to make an order on the application. Sub-section (5) of s. 10 conferred a power of
revision on the Custodian against the order of an
Assistant or Deputy Custodian for the purpose of
satisfying himself as to the legality or propriety of
any order passed by the said officer.
Under sub-s. (6)
thereof, any person aggrieved by an order made under
sub-s. (4) or sub-s. (5) could prefer an appeal to the
District Judge within whose jurisdictional limits the
property was situate within one month of the date of
the said order.
Under sub-s. (7) thereof, all orders
passed by the Claims Officer appointed under Ordinance IX of 2004 should be deemed to have been
passed under sub-s. (4) of the said section of this
Ordinance for the purpose of appeal or revision,
220
SUPREME CdURT REPORTS
(1962]
196 1
and such appeal could be filed to the District
D f d -N--;.
. Judge within whose jurisdictional limits the property
a e ar
iran1an
't t
'th'
h
f
h
Singh & Another was s1 ua e w1
m one mont
a ter t e commencev.
ment of this Ordinance or the period prescribed under
Custodian,
sub-s. (6) whichever expired later.
Sub-section (8)
Evacu" Prope>ty conferred revisional jurisdiction on the High Court
{Pb.) & Annth". against orders made under sub-s. (4), (5) or (6). Under
Subba Rao J. sub-s. (9), subject to the decision of the District Judge
on appeal or the High Court in revision, the order of
the Custodian would be final and conclusive. One
thing that may be noticed in this Ordinance is that
no order made by the Custodian under Ordinance IX
of 2004 was deemed to continue under this Ordinance.
Sub-section (7) of s. 10 applied only to orders made
by a Claims' Officer appointed under the earlier Ordinance.
Ordinance No. XVII of 2006, which came into
force on July 31, 1949, repealed the earlier Ordinance
XIII of 2006.
Section 40 of this Ordinance read as
follows:
(1) The Patiala and East Punjab States Union
Evacuees' (Administration of Property) Ordinance,
2006, is hereby repealed.
(2) Notwithstanding such repeal, anything done
or any action taken in the exercise of any power
conferred by the Ordinance aforesaid 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
the repealed Ordinance 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.
(3) Notwithstanding anything contained in this
Ordinance or in any other law relating to the
administration of evacuee property in force in the
Union before the commencement of this Ordinance,
all claims pending in the court of the Claims Officer
appointed under the provisions of the Patiala
Evacuee (Administration of Property) Ordinance,
2004, shall bo heard and decided by him in accordance with the provisions of the aforesaid Ordinance.
.
..
't -)
••
1 S.C.R. SUPREME COURT REPORTS
221
(4) Any order passed under sub-section (3) shall
r96r
be appealable to or revisable by the Custodian with-
--
in such time and in such mani-ier as is laid down in ~~fe~a~ N~'";{an
the Ordinance referred to in sub-section (3).
ing
v. nu "
Under this Ordinance anything done or any action
custodian,
taken under Ordinance XIII of 2006 should be Evacuee P•op,,ty
deemed to have been done or taken in the exercise !Pb.) &- Another
of the powers conferred by this Ordinance. If the
order of the Custodian under Ordinance IX of 2004
Subb.i Rao J.
could not be deemed to be an order made under Ordinance XIII of 2006, sub-s. (2) of s. 40 of this Ordinance could not obviously operate on the said order,
for the condition necessary for invoking the deeming
provision was that the order should have been ma.de
under Ordinance XIII of 2006.
Then came the Administration of Evacuee Property
Ordinance, 1949 (No. XXVII of 1949).
This Ordina,nce came into force on October 18, 1949. This
Ordinance for the first time created the office of Custodian-General. Under s. 5 of this Ordinance,
"The Central Government may, by notification
in the Official Gazette, appoint a person to be
the Custodian-General of Evacuee Property in
India for the purpose of discharging the du ties
imposed on the Custodian-General by or under this
Ordinance."
Section 27 of this Ordinance which dealt with
powers of revision of the Custodian-General, read as
follows:-
"(l) 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 in appeal under the provisions
of this Chapter for the purpose of satisfying himself as to the legality or propriety of any such
order and may pass such order in relation thereto
as he thinks fit."
"(2) Notwithstanding anything contained in subsection (1), where in respect of any proceeding called
for under sub-section (l), the Custodian-General is
Dafedar Niranjan
Singh 6- Another
v.
Custodian,
Evacuee Property
(Pb.) 0- Another
Subba Rao J.
222
SUPREME COURT REPORTS
[1962]
of opinion that the District Judge is in error in
holding any person not to be an evacuee or any property not to be evacuee property, he shall not pass
any order in relation thereto but shall refer the
matter, with his own opinion thereon, to the High
Court to which the District .Judge is otherwise subordinate."
"(3) Any reference made under sub-section (2)
shall be heard by a Bench of the High Court consisting of not less than two Judges and the Custodian-General shall dispose of the proceeding in
accordance with the decision of the High Court."
Section 28 read:
"Save as otherwise expressly provided in this
Chapter, every order made by the Custodian-General, District Judge, Custodian, Additional Custodian, Authorized Deputy Custodian, Deputy Custodian, or Assistant Custodian shall be final and shall
not be called in question in any original suit, application or execution proceeding."
A combined reading of ss. 27 and 28 indicates that
the Custodian-General's revisional jurisdiction was
confined only to appellate orders of the District Judge
or the Custodian; and, subject to the provisions of the
Ordinance, the orders of the respective authorities
were made final.
Section 55 repealed the Ordinances
of the various Provinces and provided under sub-s. (3)
thereof as follows:
"Notwithstanding the repeal by this Ordinance
of the Administration of Evacuee Property Ordinance, 1949, or of any corresponding law, anything
done or any action taken in the exercise of any
power conferred by that Ordinance or law shall be
deemed to have been done or taken in the exercise
of the powers conferred by this 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 th is Ordinance were in force on
the day on which such thing was done, action taken,
penalty incurred or proceeding commenced."
The effect of the provisions of this Ordinance may be
' . -
'
1
_
• '
)
•
1 S.C.R. SUPREME COURT REPORTS
223
stated thus: An order made under Ordinance No. XVII
i96r
of 2006 should be deemed to have been made in D f
-N.
.
.
-"
. O d'
a edar
iran;an
exer01se of the powers con1erred under this r mance; Singh & Another
any order so made, if it had not become final under
v.
the earlier Ordinance would be subject to the appellate
Custodian,
or revisional jurisdiction, as the case may be, in the Evacuee Property
manner prescribed by this Ordinance; but if the said (Pb.) & Another
order was not made in appeal by the Custodian or the
Subba Rao ].
District Judge, it would not be subject to the revisional jurisdiction of the Custodian-General, with the
result that, under this Ordinance, even if the said
order had not become final under the earlier Ordinance, it would become final under this Ordinance, if
no further proceedings as provided under this Ordinance were taken in respect of the said order.
Ordinance No. XXVII of 1949 was repealed by the
Administration of Evacuee Property Act, 1950 (No.
XXXI of 1950) (hereinafter called the Act), which
came into force on April 17, 1950. This Act enlarged
the revisional jurisdiction of the Custodian-General.
Section 27 is in the following terms:
"(l) 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 proceedings in which any Custodian has passed an
order for the purpose of satisfying himself as to the
legality or propriety of any such order and may
pass such order in relation thereto as he thinks fit:
"
The main difference between s. 27 of the Act and
s. 27 of the Ordinance repealed by the Act is that
under the Act the Custodian-General may exercise his
revisional powers in respect of any proceedings in
which any Custodian had passed an order, while under
the Ordinance his revisional jurisdiction was confined
only to an appellate order made by the Custodian or
the District Judge, as the case may be.
Section 58 of
the Act, which repealed the Ordinance provided in
sub-s. (3) as follows :
"The repeal by this Act of the Administration of
Evacuee Property Ordinance, 1949 (XXVII of 1949),
or the Hyderabad Administration of Evacuee
r961
Daftdar NiranJan
Singh&· Another
v.
Custodian,
Evacuee Propert_v
(Pb.) b Another
Subba Rao ].
224
SUPREME COURT REPORTS
(1962]
Property Regulation (Hyderabad No. XII of 1359 Ji'.)
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 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 taken."
The second part of s. 58(3) of the Act is similar to
that of s. 55(3) of the Ordinance. But there is an
essential difference between the first part of the said
sub-section in the Act and that in the Ordinance. The
difference lies in the fact that under the Act the repeal
of the Ordinance or of any corresponding law was not
to affect the previous operation of that Ordinance or
the corresponding law. Only subject to this qualification, anything done or any action taken in exercise of
any power conferred by the Ordinance shall be deemed
to have been done or taken in exercise of the powers
conferred by or under the Act. One of the questions
raised in this appeal turns upon the interpretation of
the words "previous operation of that Ordinance".
This Act was amended from time to time and the
latest of the amendments was by Act 91 of 1956.
As
nothing turns upon the provisions of the amending
Acts, we need not consider all of them; it would be
enough ifs. 7A which was added bys. 4 of Act 52 of
1954 was noticed. Under that section, "Notwithstanding anything contained in this Act, no property shall
be declared to be evacuee property on or after the 7th
day of May, 1954". There is also a proviso to that
section, but that does not concern us here.
With this background we shall proceed to consider
the arguments advanced by learned counsel.
The first argument of learned counsel for the appellant, namely, that the operation of s. 58(3) of the Act
shall be confined only to administrative acts done by
the Custodian under the earlier Ordinances, was
specifically raised before this Court and negatived by
'"-·• -
..
'
1 s.c.R. SUPREME COURT REPORTS
225
it in Indira Sohan Lal v. Custodian of Evacuee Property, Delhi (1).
There, on February 23, 1948, an Dafeda-;;franjan
application was made to the Custodian of Evacuee Singh & Another
Property for confirmation of the transaction of exv.
change, under s. 5-A of the East P tmjab Evacuees'
Custodian,
(Administration of Property) Act, 1947, as amended E";;"" ~rop~rty
in 1948, That application was not disposed of until ( .) :'.:__ "
01 er
Maroh 20, 1952, on which date the Additional CustoSubba Rao J.
dian p;i.ssed an order confirming the exchange. Meanwhile Act XXXI of 1950 was passed which conferred
by s. 27 revisional powers on the Custodian-General.
The Custodian-General, in exercise of his powers
under that section, set aside the order of confirmation
and directed the matter to be reconsidered by the
Custodian. It was contended, inter alia, that the positive operation of the provision that "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 nuder this Act as if this
Act were in force on the day on which such thing
was done or action taken" applied only to purely
administrative matters.
But this contention was
rejected by this Court which held that the said provision applied to the order in question which was
admittedly a judicial order. It was further held in
that decision that the said application had to be dealt
with and disposed of under the said Act and, therefore, the order of confirmation passed in 1952 was
subject to the revisional power of the CustodianGeneral under. s. 27 of the said Act. In view of this
decision nothing further need be said on the first point
and it is, therefore, rejected.
There is force in the second contention. The Custodian-General found an unbroken chain of fiction
leading to the conclusion that the order dated June 6,
1949, made by the Custodian must be deemed to be
an order made by the Custodian in exercise of the
powers conferred on him under the Act and, therefore,
was subject to the revisional jurisdiction of the Custo.
d\\\Tt-Of'lYl(lrll.\ under s. 27 of the Act. But the history
(1) [1955] 2 S.C.R. m7.
226
SUPREME COURT REPORTS
[1962]
1961
of the legislation in the context of the facts of the
-. . present case shows that the said chain had broken
Dafedar Niran1an
d .
h
· d
h
0 d.
N
XIII f
Singh o;. Anoth" even
unng t e per10 w en r mance
o.
o
v.
2006 was in force.
In the narration of facts we have
Custodian,
pointed out that the order under Ordinance No. IX of
Evacu" Prop"ty 2004 was made by the Custodian and not by the
(Pb.) & Another Claims Officer.
Sub-s. (7) of s. 10 only provided that
Subba Rao J. orders passed by the Claims Officer under Ordinance
No. IX of 2004 should be deemed to have been passed
under sub-s. (4) of s. 10 of Ordinance No. XIII of 2006
for the purpose of appea1 or revision. This sub-section,
therefore, had introduced a fiction with two limitations-one limitation was that the original order
should have been made by ths Claims Officer and the
other was that it was only for the purpose of appeal
or revision. The result was that the said order of the
Custodian could not be deemed to be an order made
under the said Ordinance, as he was not the Claims
Officer and that, even if he was the Claims Officer, his
order must be deemed to be an order made under the
later Ordinance only for the limited purpose, namely,
for the purpose of appeal or revision. If this be so,
it follows that the said order could not be deemed to
have been passed under the successive Ordinances and
the Act.
We, therefore, accept this contention.
The third contention is based upon the assumption
that the order of the Custodian dated June 6, 1949,
by the process of fiction shall be deemed to be an order
made by the Custodian in exercise of the powers conferred on him by Ordinance No. XXVII of 1949.
As
we have. already indicated at an earlier stage of our
judgment, the order of a Custodian under that Ordinance was subject to an appeal under s. 25 thereof to
the District Judge designated in that behalf by the
Provincial Government. The order of the District
Judge on appeal was subject to revision by the
Custodian-General under s. 27.
Subject to the said
provision, the order of the Custodian was final under
s. 28. In the present case, no appeal was filed against
· the order Of the Custodian to the District Judge and,
therefore, the said order had become final under s. 28.
To put it in other words, by operation of the provisions of the said Ordinance the order of the Custodian
'.
_, ..
1 S.C.R. SUPREME COURT REPORTS
227
made under Ordinance No. IX of 2004 but deemed to
1 96z
have been made under Ordinance No. XXVII of 1949 D 1
d -;.
•
had become fina~. What then was the effect of the s~n::~ ;::;~::
repeal of that Ordmance by the Act of 1950? We have
v.
already noticed the provisions of s. 58 which repealed
custodian,
the said Ordinance and which also made certain savings Evacuee Property
in respect of acts done under the Ordinance. Sub-s. (3) (Pb.) & Another
of s. 58 dealing with the said savings, as we have Subba Rao J.
stated when considering the history of the legislation,
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 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 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 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.
Looking at the section from a different perspective,
the same result would flow therefrom. The section
does not expressly affect a vested right of a person in
whose favour there was a final determination under
the Ordinance. Nor does the 8ection imply such retroactivity by necessary intendment. An order which
had become final under the Ordinance could be deemed to be an order under the Act without disgorging
itself of the attribute of finality acquired by it under
the repealed Ordinance. The first part of the section
definitely precludes any implication of such intendment. In Delhi Cloth and General Mills v. Income-
- tax Commissioner, Delhi (1), a similar question arose
for consideration. There, on references made to the
High Court under s. 66 of the Indbn Income-tax Act,
(I) (1927) I.L.R. 9 Lah. 28-1.
228
SUPREME COURT REPORTS
[1962]
z96z
1922, the High Court made orders before April l, 1926.
D f d
N .
. On April 1, 1926, the Income-tax (Amendment) Act,
a e at
iranJan 926
.
Singh & Another 1
, came mto force and under that amendment a
v.
right of appeal was given to an aggrieved party
Custodian,
against the order of a High Court, subject to certain
Evacuee P.operty conditions, to the Privy Council.
The question was
(Pb.) & Another whether that Act could retrospectively confer a right
Subba Rao ;. of appeal against orders which became final before the
amendment came into force.
The Judicial Committee
restated the principle laid down by them in Colonial
Sugar Refining Co. Ltd. v. Irving (1) thus at p. 290:
"While provisions of a statute dealing merely
with matters of procedure may properly, unless that
construction be textually inadmissible, have retrospective effect attributed to them, provisions which
touch a right in existence at the passing of the
statute are not to be applied retrospectively in the
absence of express enactment or necessary intendment."
After stating the principle, the Judicial Committee made the following remarks in respect of the question that arose in that case:
"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.
Accordingly, if
the section now in question is to apply to orders
final at the date when it came into force, it must be
clearly so provided. Their Lordships cannot find
in the section even an indication to that effect."
We respectfully accept the said principle as laying down the correct law on the subject.. If so, by
the same parity of reasoning, we must hold in the
present case that the order of the custodian which
had become final under Ordinance No. XXVII of
1949, could not be affected retrospectively under
s. 58(3) of the Act so as to deprive the order of the
Custodian of the finality it had acquired under the
said Ordinance. Not only the said provision does -
not contain any positive indication giving it such
(J) (1905) A.C. 69.
.4
_./ .....
-
1 S.C.R. SUPREME COURT REPORTS
229
retroactivity but also in express terms it saves the
1961
previous operation of that Ordinance.
D 1
d
N.
.
I .
'd h t
h'
t
t'
f
58(3 .
" e "'
uan;an
t IS sa1
t a
t IS cons rue 10n o s.
) IS no Singh 6 . Another
longer open in view of the authoritative interpretav.
tion placed upon the said sub-section by this Court in
custodian,
Indira Bohan Lal's case(').
We have carefully gone Evacuee Prop,,ty
through that judgment and we are of the view that (Pb.1 & Another
the said decision is not only not against the construeSnl,ba Rao 1.
tion placed by us on the said sub-section but also the
observations therein support the same construction.
There, unlike here, an application made to the Additional Custodian of Evacuee Property on March 20,
1948, was not disposed of until March 20, 1952, that
is, till after the Act of 1950 came into force.
The
Additional Custodian made the order in that application on March 20, 1952. The Custodian-General, in
exercise of his powers under s. 27 of the Act of 1950,
set aside the order of the Additional Custodian and
directed the matter to be reconsidered. by the Custodian. In the present case the order made by the
Custodian, as we have earlier pointed out, had become
final before the Act of 1950 came into force and no
proceeding in respect thereof was pending at the commencement of the Act.
\Vith this difference in mind
if one reads the observations of Jagannadhadas, J.,
at p. 1132 of the above judgment, the legal position
will be clear. After considering the decision of the
Judicial Committee in Delhi Cloth and General Mills
Co. Ltd. v. Income-tax Commissioner, Delhi(') the
learned Judge proceeded to observe thus at p. 1132:
"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,
(1) [1955] z S.C.R. 1u7.
(2) (1927) I.L.R. 9 Lah. 284.
196r
Dafedar l"lif'anjan
Singh & Another
v.
Custodian,
Evacuee Property
(Pb.) & Another
Subba Rao j.
230
SUPREME COURT REPORTS
[1962]
which specifically provided that a pending action
was to be deemed to be an ac~ion commenced under
the new Ordinance as if it were in force a.t the time
and therefore required to be continued under the
new Ordinances."
These observations are certainly in accord with our
view. The same distinction can also be discerned in
the observations made by the learned Judge at
p.1133:
"Nor can this be brought under the ambit of the
phrase 'previous operation of the repealed law'.
What in effect, learned counsel for the appellant
contends for is not the 'previous operation of the
repealed law' but the •future operation of the previous law'. There is no justification for such a construction. Besides, if in respect of the pending
application in the present case, the previous repealed law is to continue to be applicable by virtue of
the first portion of section 58(3) the question arises
as to who are the authorities that can deal with it."
In that case, therefore, the repealed law could not
operate on the subsequent stages of a pending application, for the previous law was repealed; whereas in
the present case by operation of the previous law, the
order had become final.
We are, therefore, of the
opinion that the decision of this Court does not touch
the point that arises for consideration in the present
case.
Reliance is placed by learned counsel for the respondents on a judgment of a division bench of the Punjab
High Court in Janki Prasad v. The Custodian, Evacuee
Property, Jullundur (1).
There, an order confirming
the sale effected by an evacuee was made by the
Assistant Custodian on February 25, 1949, and the
said order was confirmed by the Additional Custodian
on February 28, 1949.
The question was whether
under the provisions of the East Punjab Act XIV of
1947, the order of the Assistant Custodian could be
reviewed by the Additional Custodian in exercise of
the powers conferred on h; m under s. 26 of the Act of -
1950. The learned Judges held that by fiction the
(I) (1955) I.L.R. 8 Punjab 823.
.4
..
\ ..
•
1 S.C.R. SUPREME COURT REPORTS
.231
earlier order must be deemed to have been made under
1961
the Act of 1950 and, therefore, the Custodian would
-
have power to review it under s. 26 of the Act of 1950. D5afedha~ NAir••1
1h·an
.
.
ing
<.!.>'
no er
We think, with respect to the learned Judges, that
v.
they have not correctly appreciated the scope of the
Custodian,
provisions of s. 58(3) of the Act of 1950. In our view, Evacuee P•operty
for the reasons already mentioned, that view of the \Pb.1 '"' Anuther
Punjab High Court in the above decision is not correct.
We, therefore, accept the third contention of learned
Subba Rao J ·
counsel.
Then remains the point that was raised for the first
time before us by learned counsel appearing for the
State. The argument was that Ordinance No. XXVII
of 1949 was repealed and re-enacted by the Act of
1950 in substantially the same terms, and, therefore,
a repeal by implication was effectuated only of
those provisions which were omitted from re-enactment. For this position reliance was placed upon a
passage from Sutherland's Statutory Construction, 3rd
edn., Vol. I, at p. 514. Therefore, .it was contended
that, as there was no provision in the Act corresponding to the proviso to s. 6 of the Ordinance No. IX of
2004, that proviso must be deemed to have been repealed; and an order made illegally under that proviso
was non est. It is said that under s.