Judgment Case ID: 365

Judgment:
306 of 1954. Under Article 32 of the Constitution for the enforcement of Fundamental Rights. Kundan Lal Mehta and B.R.L. Iyengar	 for the petitioner. C.K. 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. 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 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. (2)An 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.