306 of 1954
Under Article 32 of the Constitution for the enforcement of Fundamental Rights
Kundan Lal Mehta and BRL Iyengar for the petitioner
CK Daphtary Solicitor General of India Porus A Mehta and R H Dhebar with him for the respondent
October 28
The Judgment of the Court was delivered by JAGANNADHADAS J
This is an application under article 32 of the Constitution which arises under the following circumstances
The petitioner Sadhu Ram purchased from one Imam ud Din a muslim evacuee 43 Bighas 14 Biswas of agricultural land comprised in Khasra Nos
2135 to 2139 2158 2159 21715 2204 and 2206 with Shamlat rights in village Kaithal District Karnal Punjab
The sale deed was executed on the 6th September 1947 and registered on the 9th September 1947 before Imam ud Din left for Pakistan
The consideration therefor was Rs 3000 and as much as Rs 2700 thereof appears to have been paid by the petitioner to the vendor before the Sub Registrar
Possession also was transferred on the execution of the sale deed
Mutation was made by the revenue authorities on the 23rd January 1948
East Punjab 1115 Evacuees  Administration of Property Act 1947 East Punjab Act XIV of 1947 came into force on the 12th of December 1947
It was amended by East Punjab Evacuees  Administration of Property Amendment Ordinance 1948 East Punjab Ordinance No II of 1948 which came into force on the 16th January 1948
This gave place to East Punjab Evacuees Administration of Property Amendment  Act 1948 East Punjab Act XXVI of 1948 which came into force on the 11th April 1948
By these amendments a new section section 5 A was inserted in the East Punjab Act XIV of 1947
It will be seen that these amendments were subsequent to the date of the execution and registration of the sale deed and the transfer of possession thereof
Section 5 A so far as it is relevant for our present purpose is in the following terms 5 A 1 No sale mortgage pledge lease exchange or other transfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee or by the agent assign or attorney of the evacuee or such person on or after the fifteenth day of August 1947 shall be effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian
2An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him
This section purports to be retrospective
Hence an application for confirmation was made by the petitioner on the 23rd March 1948
The Assistant Custodian Karnal on being satisfied about the genuineness of the transaction recommended confirmation
But the Additional Custodian Jullundur by his order dated the 11th February 1953 rejected the application for confirmation acting on the Custodian General s circular dated the 9th March 1950 under which a policy of not confirming transactions relating to agricultural property was enunciated
This was 1116 affirmed by the Assistant Custodian General on an application to him for revision
Learned counsel for the petitioner relies on the fact that his transaction which on enquiry was held to be genuine was entered into
before the East Punjab Act XIV of 1947 was enacted and before the amendment thereof by insertion of section 5 A came into operation
He contends that the retrospective operation of section 5 A in such circumstances amounts to deprivation of his property without any compensation and is therefore hit by article 31 of the Constitution
Whatever may have been the position if this matter had to be dealt with much earlier it seems doubtful whether any such contention can be raised by the petitioner before us on this date in view of the recent Constitution Fourth Amendment Act 1955 which has come into force on the 27th April 1955
It is unnecessary however to base our decision on this ground
It appears to us clear that section 5 A cannot be read as a legislative provision depriving the owner of his property
There can be no doubt that so far as transactions subsequent to the date of amendment are concerned if is nothing more than a restriction on the transfer of property by the owner thereof
Any transferee in such a situation takes the property subject to the requirement of confirmation
The case would then be one which falls under article 19 of the Constitution and not under article 31
There can be no doubt that having regard to the purpose and policy underlying the law relating to Evacuee Property and the abnormal conditions which arose from and after the 15th August 1947 the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction
If this requirement was in essence not a deprivation but a restriction in respect of future transactions there is no reason for treating it as deprivation by virtue of its having been given retrospective effect such retrospectivity being within the competence of the appropriate legislature
The retrospectivity commencing from the 15th August 1947 is 1117 also not only reasonable but called for in the circum stances which occasioned the Evacuee Property laws
In this case the petitioner is deprived of his bargain and incurs consequential loss Dot by virtue of any unconstitutional law but by reason of the quasi judicial 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 rejected
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 circumstances without costs


Summary:
The applicant purchased certain agricultural lands from a Muslim evacuee
The sale deed was executed registered and possession was delivered to the applicant in September 1947 before the East Punjab Evacuees  Administration of Property Act of 1947 came into operation on the 12th of December 1947
By subsequent amendments a new section section 5 A was inserted into the Act with retrospective effect from the 15th of August 1947 rendering transactions in respect of evacuee property ineffective unless confirmed by the Custodian
The applicant applied for confirmation
The Assistant Custodian recommended such confirmation but the Additional Custodian acting in terms of a circular issued by the Custodian General enunciating a policy of non confirmation with regard to agricultural lands refused to confirm the applicant s purchase and this order was affirmed by the Assistant Custodian General in revision It was contended on behalf of the applicant inter alia that the retrospective operation of section 5 A of the Act was in effect a deprivation of property without compensation and was hit by article 31 of the Constitution
Held that 9
5 A of the East Punjab Evacuees  Administration of Property Act though retrospective in operation does not amount to deprivation of property in respect of past transactions and is valid
 In respect of future transactions the requirement of con 1114 firmation is clearly a restriction and not a deprivation
Such restriction was also reasonable having regard to the purpose and policy of the Evacuee Property Law
The requirement of confirmation being thus in essence only a restriction and not a deprivation retrospectivity in the operation of that restriction does not make it deprivation
That the applicant s loss was occasioned not by any unconstitutional law but by a quasi judicial order of the Custodian refusing confirmation and consequently his contention that any fundamental right had been violated must be rejected
That even if the contention that the order was itself illegal being based on irrelevant material be correct that did not by itself raise any question of violation of any fundamental right and would be no ground for an application under article 32 of the Constitution