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

. The appellantbefore us, one Mrs. Indira Shohanlal, 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, onpursuance of that exchange Malik Sir Firoz Khan Noon is said to have taken possession of the Danepur Roadis also said to have been put in possession of the said agricultural lands in Punjab Khore presumably by way of attornment of tenants who were in actual cultivating possession of theS. 5-A of the East Punjab Evacuees (Administration of Property) Act, 1947 (East Punjab Act 14 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 23-2-1948, 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 14-8-1948, furnishing the required particulars.This application was not disposed of by the Additional Custodian, for reasons not clear on the record, untilOn 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 onIn pursuance thereof a detailed allotment was made to twenty-six individual allottees onThere is a report of the Rehabilitation Patwari dated 27-2-1950, 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 20-3-1952, the appellant filed an application on 5-5-1952, 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 not appear from the record whether this was done, or whether possession was in fact delivered.At this stage a notice under S. 27, Administration of Evacuee Property Act, 1950 (Central; Act 31 of 1950), appears to have - been issued to the appellant by the Custodian-General to show cause why the order of the Additional Custodian dated 20-3-1952 confirming the exchange and the further orders dated 20 and 28-7-1952, sanctioning, 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 4-5-1953. The case was adjourned to 12-5-1953, at the request of counsel for the appellant and thereafter a more detailed notice dated 14-5-1953, 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 20-5-1953 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.

Reasoning:
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.