Case: Sadhu Ram Vs. The Custodian-General Of Evacueeproperty

Jagannadhadas, J.1. This is an application under Art.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, 2159,2171,2204 and 2206 with Shamlat rights in village Kaithal, District Karnal, Punjab. The sale deed was executed on 6-9-1947, and registered on 9-9-1947, before Imam-ud-din left for Pakistan.The consideration therefore was Rs. 3,000 and as much as Rs. 2,700 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 23-1-1948. East Punjab Evacuees (Administration of Property) Act 1947 (East Punjab Act 14 of 1947) came into force on 12-12-1947. It was amended by East Punjab Evacuees (Administration of Property) Amendment) Ordinance, 1948 (East Punjab Ordinance 2 of 1948) which came into force on 16-1-1948.This gave place to East Punjab Evacuees (Administration of Property) (Amendment) Act, 1948 (East Punjab Act 26 of 1948) which came into force on 11-4-1948. By these amendments a new Section, S. 5-A, was inserted in the East Punjab Act 14 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 transter 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.(2) An application for confirming such transfer may be made by an 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 23-3-1948. The Assistant Custodian, Karnal, on being satisfied about the genuineness of the transaction, recommended confirmation. But the Additional Custodian, Jullundur, by his order dated 11-2-1953, rejected the application for confirmation acting on the Custodian-Generals circular dated 9-3-1950, under which a policy of not confirming transactions relating to agricultural property was enunciated. This was affirmed by the Assistant Custodian-General on an application to him for revision.2. 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 14 of 1947 was enacted and before the amendment therefore by insertion of S. 5-A came into operation. He contends that the retrospective operation of S. 5-A in such circumstances amounts to deprivation of his property, without any compensation and is, therefore, hit by Art.31 of the Constitution.Whethever may have been the position if this matter had to be dealth 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 27-4-1955. It is unnecessary, however, to base our decision on this ground.3. It appears to us clear that S. 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, it 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 Art. 19 of the Constitution and not under Art. 31.There can be no doubt that having regard to the purpose and policy underlying the law relating Evacuee Property and the abnormal conditions which arose from and after 15-8-1947, the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction. If this requirement was is 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 retrospectively being within the competence of the appropriate Legislature.The retrospectivity commencing from 15-8-1947, is 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 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.4. Learned counsel next urges that the action of the Custodian in basing his decision on some circular of the Custodian-General is illegal andthat it is not relevant material under S. 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.

Decision:
0[ds]Whethever may have been the position if this matter had to be dealth 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 onIt is unnecessary, however, to base our decision on this ground.3. It appears to us clear that S. 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, it 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 Art. 19 of the Constitution and not under Art. 31.There can be no doubt that having regard to the purpose and policy underlying the law relating Evacuee Property and the abnormal conditions which arose from and after 15-8-1947, the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction. If this requirement was is 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 retrospectively being within the competence of the appropriate Legislature.The retrospectivity commencing from 15-8-1947, is 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 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, beis 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.