# Indirtl Sohonlal v. Cust.Jian of &acuu Property, Delhi and othtrs

- **Citation:** [1955] 2 S.C.R. 1117
- **Court:** Supreme Court of India
- **Decided:** 1953-05-20
- **Case number:** Civil Appeal :No. 195 of 1954
- **Bench:** S. R. DAs, AcTING C. J, VIVIAN BosE, Jagannadhadas, Jafer Imam, CttANDRASEKHARA AIYAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indirtl-sohonlal-v-cust-jian-of-acuu-property-delhi-and-othtrs-1238
- **Pages:** 24

## Headnote

Evacuee
Pt'Dperty-Custodian-General-Revisional
powersAdministration of Evacuee Property Act, 1950 (XXXI of 1950), ss.
27, 58(3)-Transaction before the passing of the Act-Application for
confirmation-East Punjab Evacttees'
(Administration of Property)
Act, 1947 (East Punjab Act XIV of 1947), ss. 5-A, 5-B-Order of
confirmation .afte1· passing of Act XXXI of 1950-Revision-Validity-General Clauses Act (X of 1897), s. 6-Applicability.
The appellant, a displaced person from Lahore, was the owner
o( 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 ex1955
Sadhll Ram
v.
The CustodianGentral of Evacuee
Property
JagannadhadaJ ].
1955
Octob<r 28.
1955
Indirtl Sohonlal
v.
Cust.Jian of
&acuu Property,
Delhi and othtrs
1118
SUPREME COURT REPORTS
[1955]
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
\.Vas not disposed of until the 20th of March, 1952, and on that date
· the Additional Custodian passed an order confirming the exchange.
In the 1neanwhile~ there were changes in the la\v relating to evacuee
property by \Vhich the East Punjab Act as applied to the State of
Delhi v1as repealed and re-enacted, and ultimately Central Act XXXI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. 7.7 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 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 repe3l 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~ General Clauses Act (X. oj 1897) was
not applicable to the case, as s. 58(\) ~\ Act XXXI 'of 1950 was a
self-contained provision
indicative "f the intention to e:icclude the
operatic n of s. 6 ;
(ii) that the right to a determination with the attribute of finality, assuming that such a right exists, is not a vested right and it
does not accrue until the determination is in fact made, ~1hen alone
it becon1es an existing right.
Colonial Sugar Refining Co. Ltd. v. Irving ([1905] A.C. 369)
and Delhi Cloth & General Mills Co. Ltd. v. Income-tar Commissioner ( [ 1927] J.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 3.s 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 ~
dealt with, under the new
la\v except in so far as certain
consequences have already ensured or acts have been
completed prior to
the new Act, to \Vhich it is the old law that wi!J ~pply.
In view of s. 58, the application
of
the
appellant for
confirmation pending ·on t~e 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
revisional
power of the Custodian-General under

## Text

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2S.C.R.
SUPREME COURT REPORTS
1117
also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property laws.
In this case the petitioner is deprived of his bargain
and incurs consequential loss, not by virtue of any
unconstitutional law
but by reason of the
quasijudicial order of the Custodian declining to confirm
the transaction. The contention of the learned counsel for the petitioner that any fundamental right of
his has been violated must, therefore, be reiected.
Learned counsel next urges that the action of the
Custodian in basing his decision on some circular of
the Custodian-General is illegal and that it is not relevant material under section 5-A. It is enough to
say that even if this contention be correct, this does
not raise
any
question of violation of fundamental
rights. If this is the sole ground, this application is
misconceived.
·
This petition accordingly fails and is dismissed but
in the circuqistances without costs.
INDIRA SOHANLAL
ti.
CUSTODIAN OF EVACUEE PROPERTY,
DELHI & OTHERS.
[S. R. DAs, AcTING C. J., VIVIAN BosE, JAGANNADHADAS, JAFER IMAM and CttANDRASEKHARA AIYAR JJ.]
Evacuee
Pt'Dperty-Custodian-General-Revisional
powersAdministration of Evacuee Property Act, 1950 (XXXI of 1950), ss.
27, 58(3)-Transaction before the passing of the Act-Application for
confirmation-East Punjab Evacttees'
(Administration of Property)
Act, 1947 (East Punjab Act XIV of 1947), ss. 5-A, 5-B-Order of
confirmation .afte1· passing of Act XXXI of 1950-Revision-Validity-General Clauses Act (X of 1897), s. 6-Applicability.
The appellant, a displaced person from Lahore, was the owner
o( 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 ex1955
Sadhll Ram
v.
The CustodianGentral of Evacuee
Property
JagannadhadaJ ].
1955
Octob<r 28.
1955
Indirtl Sohonlal
v.
Cust.Jian of
&acuu Property,
Delhi and othtrs
1118
SUPREME COURT REPORTS
[1955]
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
\.Vas not disposed of until the 20th of March, 1952, and on that date
· the Additional Custodian passed an order confirming the exchange.
In the 1neanwhile~ there were changes in the la\v relating to evacuee
property by \Vhich the East Punjab Act as applied to the State of
Delhi v1as 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. 7.7 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 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 repe3l 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~ General Clauses Act (X. oj 1897) was
not applicable to the case, as s. 58(\) ~\ Act XXXI 'of 1950 was a
self-contained provision
indicative "f the intention to e:icclude the
operatic n of s. 6 ;
(ii) that the right to a determination with the attribute of finality, assuming that such a right exists, is not a vested right and it
does not accrue until the determination is in fact made, ~1hen alone
it becon1es an existing right.
Colonial Sugar Refining Co. Ltd. v. Irving ([1905] A.C. 369)
and Delhi Cloth & General Mills Co. Ltd. v. Income-tar Commissioner ( [ 1927] J.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 3.s 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 ~
dealt with, under the new
la\v except in so far as certain
consequences have already ensured or acts have been
completed prior to
the new Act, to \Vhich it is the old law that wi!J ~pply.
In view of s. 58, the application
of
the
appellant for
confirmation pending ·on t~e 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
revisional
power of the Custodian-General under s. 27 of the said ·Act.
•
2S.C.R.
SUPREME COURT REPORTS
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.
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 0£
Evacuee Property dated
the 20th
May,
1953,
revi~
ing an order of the Additional Custodian of East
Punjab, Delhi, elated the 20th March, 1952. The two
questions
raised before
us on the facts
and
circumstances, to be stated, are (1) whether the CustodianGeneral had the revisional power which he purported
to exercise, and (2)
was the order of the CustodianGeneral · on its merits such as to call for interference
by this Court.
The appellant before us, one Mrs. Indira Sohanlal, is
a displaced person from Lahore. She was the owner
of a house at Lahore known as 5, Danepur Road.
Malik Sir Firoz Khan 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 10th 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
1955
Indira Sohanlal
v.
Gus to di an of
Evacuee Property,
Delhi and others
1955
Indira Sohanlal
v.
Custodian of
Evacute Property,
Delhi and others
JagannadhadaJ J.
1120
SUPREME COURT REPORTS
[1955]
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
allot~ees
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
2S.C.R.
SUPREME COURT REPORTS
1121
not appear from the record whether this was done or
whether
possession
was
in fact
delivered.
At this
st:ige, 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
th:'.
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,
sar.ct!oning
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
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
section
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 had 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
1955
Indira Sohanlal
v.
Custodian of
Evacuee Property,
Delhi and others
Jagannadhadas J.
1955
Indira Sohanlal
v.
Custodian of
Evacuee Property,
Delhi and others
Jagannadhadas J.
1122
SUPREME COURT REPORTS
[1955]
in regard thereto from
time to time. The earliest
of
these
legislature
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 Punjab 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 1943), which inserted two
new sections, 5-A and 5-B, prescribing the requirement of
confirmation of transactions relating to evacuee 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 GoYernment
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 measuces 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 ProYinces 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 XXX.I
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
2S.C.R.
SUPREME COURT REPORTS
1123
No. XXVII of 1949 provided for a centralised law
and ce1tralised 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 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,
wa> 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.(l)
No sale,
mortgage,
pledge,
lease,
exchange or other traasfer 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 par!ies to such transfer or
on any person daiming 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
1955
Indira Sohanlal
v.
Custodian of
Evacuee Property,
Delhi and others
Jagannadhadas J.
1955
Indira Sohanlal
v.
Custodian of
Eva.cue6 ProlJtrty,
Delhi and others
Jagannadhadas J.
1124
SUPREME COURT REPORTS
I 1955]
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 hy
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
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
2S.C.R.
SUPREME COURT REPORTS
1125
the successive legislative measures with certain modifications which are not material for this case. But
1955
Indira Sohanla<'
v.
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
Cu.rtodian of
Evacuee Property,
Delhi and others
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
Jagannadhadas J,
but there was no provision for revision of such an
order. Under the Central Ordinance No. XXVII of
1949
the position was substantially
different.
Secti<:>n /
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
~ustodian
has passed an order for the purpose of satisfying him-
1955
Indira Sohanlal
v.
Custodian of
EvtUuu Property,
Delhi and others
Jagannadhadas J.
1126
SUPREME COURT REPORTS
[1955]
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 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 that 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
2S.C.R.
SUPREME COURT REPORTS
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 conclusive under section 5-B. It is strongly urged that
the subsequent repeal and re-enactment of these provisions cannot affect the right vested in 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 Coionial Sugar Refining Co. Ltd. v. lrving(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 effec~ thereof.
The East Punjab Act XI\1 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
<lone
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
(!) [1905] A.O. 369.
1955
Indira Sohanlal
v.
Custodian of
Eu'ac::ee Property,
Delhi and others
Jagannadhadas ].
1955
Indira Sohanlal
v.
Custodian of
Evacuee Proper!;P,
Delhi and others
Jagannadhadas ].
1128
SUPREME COURT REPORTS
[1955]
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 hereby repealed.
(2) ......................... .
(3) 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
Ordinonce,
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 com"menced".
Ordinance No. XXVII of
1949 was in its turn repealed by Central Act XXXI of 1950.
This Act was
amenqed 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
perty
Ordinance,
repealed.
Administration
of Evacuee
Pro1949
(XXVII
of
1949)
is hereby
(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
actio11 \Vas taken".
Thus in the transition of the Evacuee Property law
2S.C.R.
SUPREME COURT REPORTS
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 he 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 actiol1 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 riew 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
subiect 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 Puniab 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 repeal
is followed by fresh legislation on the same subject
we would undoubtedly have to took to the provisions
of the new Act, but only for the purpose ·of determining whether
they indicate a different intention.
(I) [1955] 1 S.C.R. 1393, 899.
1955
Indira Sohanlal
v.
Custodian of
Evatue< Properly,
Dtlhi and othm
Jagannadhadas ].
1955
lttdira Sohanlal
v.
Custodian of
Et· acute ProP.,'T{1,
Delhi and others
JagannadharfaJ ].
1130
SUPREME COURT REPORTS
[1955]
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 enactme!]J'
followed by a fresh legislation. Section 6 would
be
applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of
the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new
law ...... ".
In the present case sub-section ( 3) of section 58 of
Central Act XXXI of 1950 . purports
to indicate the
effect of that repeal, both in negative and in positive
terms. The negative portion
o.f
it relating to "the
previous operation"
of the
pnor
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 a•
the
pos1t1ve
portion is
concerned-has to
be
judged
as if the repealing Act were in force at the earlier
relevant <late. Therefore where, as in this case, the
repealing section which purports to indicat~ 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 prov1s1on
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 ;,
not free from difficulty. This kind of provision in a
2S.C.R.
SUPREME COURT REPORTS
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
m
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 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) relates
pears 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
LorJ:;hips 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.
[\] [1905] A.C. 369.
I 7-35 S. C. India/59
1955
Indira Sohanla/
v.
Custodian of
Evacuee Property,
Delhi and others
JagannadhadlJI ],
1955
Indira Sohan/al
v.
Custodian of
Evacutt Property,
Delhi and others
Jagannadhada! J.
1132
SUPREME COURT REPORTS
[1955]
v. Income Tax-Commissioner, Delhi(')
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".
General Mills Co. Ltd. v. Income-Tax Commissioner (1),
General Mills Co. Ltd. v. Income-Tax Commissioner('),
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 sought 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 passeJ '•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
[!] [1927] l.L.R. 9 Lahore 284.
[2] [1923] L.R. 50 I.A. 212.
•
2S.C.R.
SUPREME COURT REPORTS
1133
appeal against such an 6rder 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 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 circumstances,
are anything
more
than
alterations
m
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 thf 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. lncomeTax Commissioner(1).
We
are,
therefore, of the
·opinion that the principle of Colonial Sugar Refining
Co. Ltd. v. lrving( 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
{I) [1927] l.L.R. 9 Lahore 284.
[2] [1905] A.C. 369.
1955
Indira Sohanlal
v.
Custodian of
Evacuee Property,
Delhi and others
Jagannadhadas J.
1955
Indira Sohanlal
v.
Custodian of
Evacuee Property,
Delhi and others
Jagannadhadas J.
1134
SUPREME COURT REPORTS
[1955J
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 tMt. 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 proceedings. 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 the appellant cannot call in aid the principle of the case in Colonial
Sugar Refining Co. Ltd. v.