Appeal No 66 of 1959
Appeal by special leave from the judgment and order dated the February 1 1958 of the Deputy Custodian General Evacuee Property New Delhi in No 1017 R JudlPunj
Achhru Ram and M L Kapur for the appellants
N section Bindra and T M Sen for the respondents
March 8
The Judgment of the Court was delivered by 216 SUBBA RAO J
This is an appeal by special leave against the order of the Deputy Custodian General of Evacuee Property India dated February 1 1958 setting aside the order dated June 6 1949 passed by the Custodian of Evacuee Property Patiala and remanding the case for enquiry
The facts lie in a small compass and may be briefly stated
One Dafedar Niranjan Singh the first appellant herein owned houses Nos 915 and 916 situate in the town of Patiala
During the latter part of 1948 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 1949 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 6000
On June 21 1949 Ordinance IX of 2004 was repealed by the Patiala and East Punjab States Union Ordinance No XIII of Samvat 2006 hereinafter referred to as Ordinance No XIII of 2006 which was in its turn repealed by the Patiala and East Punjab State Union Ordinance No XVII of 2006 hereinafter referred to as Ordinance No XVII of 2006
On October 18 1949 Ordinance No XVII of 2006 was also repealed by Central Ordinance No XXVII of 1949 under which for the first time the office of Custodian General was created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 ie more than six years after the order of the Custodian the Litigation 217 Inspector of Evacuee Properties filed an application before the Custodian of Evacuee Property Patiala for review of the order of the Custodian dated June 6 1949
During the pendency of that application the powers of the Custodian and the Additional Custodian of Evacuee Property of review and revision under section 26 of the Act were taken away by the Administration of Evacuee Property Amendment Act XCI of 1956
On April 2 1957 the Additional Custodian submitted the case to the Custodian General of Evacuee Property to enable him to take action suo motu under section 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 issued 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 1 1958 after hearing the parties the Deputy Custodian General 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 section 583 of the Act apply only to things done 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 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 583 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 section 27 of the
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 28 218 therefore the said order was non est with the result the Custodian General could vacate it at any time under section 27 of the Act
Before considering the arguments advanced by learned counsel it would be convenient at the outset to give a short history of the legislation relevant to the present enquiry leading to the conferment of plenary powers of revision under the Act on the 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 section 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 section
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 an 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 section 16 decisions of the claims 219 officer and the Custodian were deemed to be decrees of court
It may be noticed at this stage as it may have some bearing on an argument for the first time  advanced on behalf of the State that none of the provisions of the said Ordinance expressly enabled the Custodian to decide himself at time first instance a claim set up by an evacuee in respect of his property proposed to be taken possession of by him
But it may 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 section 14 if he was appointed by the Prime Minister under section 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 section 10 of 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 section 9 might prefer such claim before the Custodian by an application within 30 day
 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 section 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 section
6 thereof any person aggrieved by an order made under sub section
4 or sub section
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 section 7 thereof all orders passed by the Claims Officer appointed under Ordinance IX of 2004 should be deemed to have been passed under sub section
4 of the said section of this Ordinance for the purpose of appeal or revision 220 and such appeal could be filed to the District Judge within whose jurisdictional limits the property was situate within one month after the commencement of this Ordinance or the period prescribed under sub section
6 whichever expired later
Sub section 8 conferred revisional jurisdiction on the High Court against orders made under sub section
4 5 or 6
Under sub section
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 section 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 be heard and decided by him in accord ance with the provisions of the aforesaid Ordinance
221 4 Any order passed under sub section 3 shall be appealable to or revisable by the Custodian with
in such time and in such manner as is laid down it the Ordinance referred to in sub section 3
Under this Ordinance anything done or an action taken under Ordinance XIIII of 2006 should be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance
If the order of the Custodian under Ordinance IX of 2004 could not be deemed to be an order made under Ordi nance XIII of 2006 sub section
2 of section 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 made under Ordinance XIII of 2006
Then came the Administration of Evacuee Property Ordinance 1949 No XXV 11 of 1949
This Ordinance came into force on October 18 1949
This Ordinance for the first time created the office of Custodian General
Under section 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 duties 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 1 The Custodian General may at any time either on his own motion or on application made to him in this behalf call for the record of any proceeding in which any District Judge or Custodian has passed an order 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 1 the Custodian General is 222 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 subsection 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 sections 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 section
3 there of 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 this 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 223 stated thus An order made under Ordinance No XVII of 2006 should be deemed to have been made in exercise of the powers conferred under this Ordinance any order so made if it had not become final under the earlier Ordinance would be subject to the appellate or revisional jurisdiction as the case may be in the manner prescribed by this Ordinance but if the said order was not made in appeal by the Custodian or the 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 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 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 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 section 27 of the Act and section 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 section
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 224 Property Regulation Hyderabad No XII of 1359 F 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 Re gulation or corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or tinder 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 section 583 of the Act is similar to that of section 553 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 if section 7A which was added by section 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 section 583 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 225 it in Indira Sohan Lal vs Custodian of Evacuee Property Delhi1
There on February 23 1948 and application was made to the Custodian of Evacuee s Property for confirmation of the transaction of exchange under section 5 A of the East Punjab Evacuees  Administration of Property Act 1947 as amended in 1948
That application was not disposed of until March 20 1952 on which date the Additional Custodian passed an order confirming the exchange
Meanwhile Act XXXI of 1950 was passed which conferred by section 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 aliathat 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 under 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 Custodian General under section 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 Custodian General under section 27 of the Act
But the history 1  29 226 of the legislation in the context of the facts of the present case shows that the said chain had broken even during the period when Ordinance No XIII of 2006 was in force
In the narration of facts we have pointed out that the order under Ordinance No IX of 2004 was made by the Custodian and not by the Claims Officer
Sub section
7 of section 10 only provided that orders passed by the Claims Officer under Ordinance No IX of 2004 should be deemed to have been passed under sub section
4 of section 10 of Ordinance No XIII of 2006 for the purpose of appeal 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 the 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 section 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 section 27
Subject to the said provision the order of the Custodian was final under section 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 section 28
To put it in other words by operation of the provisions of the said Ordinance the order of the Custodian 227 made under Ordinance No IX of 2004 but deemed to have been made under Ordinance No XXVII of 1949 had become final
What then was the effect of the Sin repeal of that Ordinance by the Act of 1950 We have already noticed the provisions of section 58 which repealed the said Ordinance and which also made certain savings in respect of acts done tinder the Ordinance
Sub section
3 of section 58 dealing with the said savings as we have 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 section 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 vs Incometax Commissioner Delhi 1 a similar question arose for consideration
There on references made to the High Court under section 66 of the Indian Income tax Act 1 Lah
228 1922 the High Court made orders before April 1 1926
On April 1 1926 the Income tax Amendment Act 1926 came into force and under that amendment a right of appeal was given to an aggrieved party against the order of a High Court subject to certain conditions to the Privy Council
The question was whether that Act could retrospectively confer a right 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 vs 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 provi sions 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 section 583 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 1 229 retroactivity
but also in express terms it saves the previous operation of that Ordinance
It is said that
this construction of section 583 is no longer open in view of the authoritative interpretation placed upon the said sub section by this Court in Indira Sohan Lal s case 1
We have carefully gone through that judgment and we are of the view that the said decision is not only not against the construction 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 section 27 of the Act of 1950 Bet 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 com mencement of the Act
With 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 vs Income tax Commissioner Delhi 2 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  2 927 ILR 230 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
 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 583 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 vs The Custodian Evacuee Property Jullundur 1
There an order confirming the sale effected by an evacuee was made by the Assistant Custodian on February 251949 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 him under section 26 of the Act of 1950
The learned Judges hold that by fiction the 1 Punjab 823
231 earlier order must be deemed to have been made under the Act of 1950 and therefore the Custodian would have power to review it under section 26 of the Act of 1950
We think with respect to the learned Judges that they have not correctly appreciated the scope of the provisions of section 583 of the Act of 1950
In our view for the reasons already mentioned that view of the Punjab High Court in the above decision is not correct
We therefore accept the third contention of learned 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 reenacted 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 reenactment
For this position reliance was placed upon a passage from Sutherland s Statutory Construction 3rd edn Vol 1 at p 514
Therefore it was contended that as there was no provision in the Act correspond
9 to the proviso to section 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 section 27 of the Act the Custodian General at any time can ignore that order and proceed with fresh inquiry in respect of the question whether the property was an evacuee property or not
This question was raised for the first time before us and it was not hinted even in the statement of case filed by the State
In the circumstances we would not be justified in allowing the respondents to sustain the order of the Custodian General on the said basis
Even otherwise itwould be of no avail to the respondent in the present case
We are not concerned in this case with the question whether the said order was made by the Custodian illegally or without jurisdiction
We are only concerned with the question whether the Custodian General can under section 27 of the Act set aside an
order made by the Custodian
We have pointed 
out that he has no such power to revise 232 orders that had become final before the Act came into force
Nor do we find any force in the argument of learned counsel for the State that under section 27 of the Act the Custodian General may at any time revise the order of any Custodian and therefore the Custodian General can revise without any limit of time any order made by any Custodian under any previous law
Section 27 of the Act can be given retrospective operation only to the extent permitted by section 583 of the Act
We have held that section 583 does not affect the previous operation of the law and therefore cannot affect the finality of the orders made under the Ordinance
So the words in the section any time or any Custodian 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
No other point was raised
In the result the order of the Custodian General is set aside and that of the Custodian dated June 6 1949 is restored
The respondents will pay the costs to the appellants
Appeal allowed


Summary:
The Abducted Persons Recovery and Restoration Act Act LXV of 1949 does Dot infringe article 14 article 16 article 19 1 d e and g article 21 or article 22 of the Constitution and is not unconstitutional on the ground that itcontravenes any of these provisions
The physical restraint Put upon an abducted person in the process of recovering and taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi criminal nature or of any act prejudicial to the State or the public interest and delivery of that person to the custody of the officer in charge of the nearest camp under section 4 of the Abducted Persons Recovery and Restoration Act LXV of 1949 is not arrest and detention within the meaning of article 22 1 and 2 of the Constitution
The said Act does not therefore infringe the fundamental right guaranteed by article 22 of the Constitution
255 The fundamental right conferred by article 22 gives protection against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has or is suspected to have
committed or is about or likely to commit an act of a criminal or quasi criminal nature or some activity prejudicial to the public or the State interest
There is indication in the language of article 22 1 and 2 that it was designed to give protection against the act of the exe cutive or other non judicial authority
The Blitz Case Petition No 75 of 1952 explained
Muslim abducted persons constitute a well defined class for the purpose of legislation and the fact that the Act is extended only to the several States mentioned in section 1 2 of the Act does not make any difference for a classification may well be made on a geographical basis
The Act does not therefore contravene article 14 of the Constitution
If the language of an article is plain and unambiguous and admits of only one meaning then the duty of the Court is to adopt that meaning irrespective of the inconvenience that such a construction may produce
If however two constructions are possible then the Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory