Case: Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi &amp; Others

Custodian-General which is under appeal before us. Learned counsel for the appellant attacked it on various grounds. He urged that the ground on which the learned custodian-General set aside the Additional Custodians order, viz., absence of notice to the prior allottees is wholly untenable.28. He contended that the allottees had no kind of interest in the land which entitled them to contest the application for confirmation, that they were at best only lessees for three years which was due to expire very shortly after the order of confirmation was passed by the Additional Custodian.He pointed out that as soon as the application for confirmation was filed on 23-2-1948, general notice by beat of drum and affixture in the locality and by publication in the Indian News Chronicle was given, that the persons impossession at the time were only the previous tenants on the land, who either attorney to the appellant or left the village, that the allottees came into possession much later and pending the disposal of the confirmation proceedings and presumably subject to its result.He also pointed out that even when the rules in this behalf came into force under Act 31 of 1950, it was discretionary with the Custodian to give notice to persons other than the transferor and transferee, if he considered them to be interested, and urged that since the same officer, Shri R. Dayal made the allotment as also the confirmation, he must be taken to have exercised his discretion properly in not giving any notice to them, in view of the imminent expiry of the three years term for which they were put in possession.29. It is strongly urged that having regard to the above considerations and to the categorical findings of the Custodian-General himself that the transaction which was confirmed, was perfectly bona fide, the setting aside of the order of confirmation against which no appeal was filed by any one, and the consequential disturbance of the vested property rights of the appellant, was in the nature of perverse exercise of revisional power.30. The learned Solicitor-General appearing for the respondent contended that the finding of the Custodian-General about the bona fides of the transaction was only tentative, that the allottees, though provisionally placed in possession of three years had, what has come to be recognised as a quasi-permanent interest that they had a genuine interest in opposing the confirmation sought, which related to a large tract of agricultural land, and which would reduce the pool of agricultural lands available for rehabilitation of displaced agriculturists and that confirmation of transactions relating to such land was opposed to the policy and directives of the Government and that the confirmation should not, in the circumstances, have been lightly granted by the Additional Custodian without notice to the allottees and a proper consideration of the policies and directives in this behalf.31. In reply thereto learned counsel for the appellant urged that the alleged policies or directive are not relevant matters for consideration by the Custodian in these proceedings which must be taken to be quasi judicial, if not judicial, unless such policies or directives are embodied in rules made by the Central Government under S. 56 (2) (q) and that no such rules were prescribed by the relevant dates and that even the Custodian-General himself in his order under appeal discounted the usefulness of any reference to notifications and directives for the purposes of this case.32. It was also urged that the matters which could by taken into consideration are regulated by S. 40 (4) of Act 31 of 1950 and that Cl. (c) thereof must be construed as referring to matters ejusdem generis with Cls. (a) and (b). But in the view we take of the order under appeal and the course we propose to adopt, we do not wish to express any opinion on the merits of the above arguments.33.The order under appeal is one passed by virtue of the wide powers of revision vested in the Custodian-General under S. 27 of the Act.The jurisdiction which has been challenged having been found in favour of the Custodian-General, this Court would normally be slow to interfere with the order on its merits. But with respect to the learned Custodian-General, his order is such that it is difficult to maintain it.34. The learned Solicitor-General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself. It is also difficult to gather from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all questions on the merits are to be reconsidered or was only a limited remand and if so what the limitations are.35. If it was meant to be an open general remand, as the concluding portion of his order seems to indicate his definite findings on points (1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directive to which his attention was drawn by the Assistant Custodian, would render it difficult for any Custodian on remand to consider any of those matters.If so, the remand would appear to serve no substantial purpose. In the circumstances, and in fairness to the learned Custodian-General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration. One such fresh consideration he will give full opportunity to both sides for presentation of their respective points of view.36. If on the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him. The learned Custodian-General may also consider the feasibility to his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revisional in this already protracted matter.37.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It appears to us that these contentions are unsustainable. (1905) AC 369 (A), relates to the case of a right of appeal against an order passed or to be passed in a pendinglegislature by an amendment of the Income-tax Act, which came into force on the 1-4-1926, inserted therein S. 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 litigation, 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 31 of 1950 came into force. No order was passed which could attract the attribute of finality and conclusiveness under S. 5-B of the East Punjab Act 14 of 1947.Further the possibility of such finality was definitely affected by the repealing provision in Central Ordinance No. 12 of 1949 and Central Ordinance No. 27 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 Ordinance provided for appeal against such an order and the second of them provided for the exercise of revisional power against an appellate order of theappears 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 theare, therefore, of the opinion that the principle of (1905) AC 369 (A), cannot be invoked in support of a case of the kind we are dealing with.13. 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 S. 58 (3) the question arises as to who are the authorities that can deal withapplication 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 S. 58 (3) which continues them as though the appointments were made under the new Act - a position which could scarcely bethe extent of the future operation, if any, of the repealed law they can have on function. Indeed, a comparison of the wording of S. 58 of Act 31 of 1950 with the wording of S. 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, arise in respect of such pending proceedings, the negative portion of S. 58 (3) would not have stopped short with saving only the "previous operation" of the repealedare, therefore, clearly of the view that the appellant cannot call in aid the principle of the case in (1905) AC 369 (A), nor can his case fall within the ambit of the first portion of sub-s. (3) of S. 58 of Act 31 ofattempting to be meticulously accurate, it may be stated in general terms, that the scheme underlying S. 58 (3) appears to be that every matter to which the new Act applies has to be treated as arising, and to be dealt with, under the new law except in so far as certain consequences have already ensued or acts have been completed prior to the appeal, to which it is the old law that withthis view of S. 58, the application of the appellant for confirmation pending on the date when Central Act 31 of 1950 came into force had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 would clearly be subject to the revisional power to the Custodian-General under S. 27 of the said27 however is very wide in its terms and it cannot be construed as being subject to any such limitations. Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality as is contended, because under S. 27, the Custodian-General can exercise revisional powers "for the purpose of satisfying himself as to the legality or propriety of any order of theare thus clearly of the opinion that the contention of the learned counsel for the appellant that the exercise of revisional powers in this case by the Custodian-General is without jurisdiction or is illegal mustjurisdiction which has been challenged having been found in favour of the Custodian-General, this Court would normally be slow to interfere with the order on its merits. But with respect to the learned Custodian-General, his order is such that it is difficult to maintainlearned Solicitor-General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself. It is also difficult to gather from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all questions on the merits are to be reconsidered or was only a limited remand and if so what the limitationsit was meant to be an open general remand, as the concluding portion of his order seems to indicate his definite findings on points (1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directive to which his attention was drawn by the Assistant Custodian, would render it difficult for any Custodian on remand to consider any of those matters.If so, the remand would appear to serve no substantial purpose. In the circumstances, and in fairness to the learned Custodian-General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration. One such fresh consideration he will give full opportunity to both sides for presentation of their respective points ofon the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him. The learned Custodian-General may also consider the feasibility to his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revisional in this already protracted matter.