In this case v. The Custodian

The appellant before us, one Mrs. Indira Sohanlal, 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 in a village called 766 the State of Delhi. An oral Punjab Khore within exchange two, of the said properties, on the 10th October, 1947. In pursuance of that exchange Malik Sir Firoz Khan taken possession of the Danepur Noon to have been Road House. The appellant put in possession of Punjab Khore presumably by way of attornment the said agricultural taken place between is also said to have is said to have is said • 1955 Indira Sohanlal v. Custodian of Evacute Property, Delhi and others JagannadhadaJ J. 1120 SUPREME COURT REPORTS [1955] in a set this section the appellant in agricultural tenants who were (Administration of the State of Delhi, required confirmation by the 23rd February, 1948, for confirmation of the above into force the application was to be in actual cultivating possession of the lands. Under section 5-A of the East Punjab Evacuees' Property) Act, 1947 (East Punjab Act XIV of 1947), as amended 1948 and applied such a the Custodian. transaction In compliance with the appellant made an application on Additional Custodian of Evacuee Property (Rural), transaction of Delhi, exchange and of the consequent transfer to her of the property land. In view of certain later and which pres rules which came cribed furnishing certain particulars, filed an the 14th August, 1948, amended application dated furnishing required particulars. This application· the Additional Custodian, for was not disposed of by reasons not clear on the record, until the 20th March, 1952. On that date he passed an order confirming the exchange. Meanwhile, however, a proposal was the Additional Custodian by his Revenue put up the village Assistant those covered by this ex Punjab Khore, change, to a number of refugee cultivators. The pro posal was approved by the Additional Custodian on the 12th June, 1949. thereof a detailed twenty six individual allot~ees allotment was made to on the 27th October, · 1949. There is a report of Rehabilitation Patwari dated the 27th February 1950, that the allottees entered into possession of the land and cultivated their respective lands and settled down in the· village. After the order the exchange was passed by the Additional confirming the appellant filed Custodian on the 20th March, 1952, to be an application on in possession, and for a warrant of delivery of placed the various allottees possession to be and tenants of the land. The Naib. Tehsildar to the appellant" mended that possession may be given and that the Patwari may be it does to allot agricultural including the necessary action in the matter. But the 5th May, 1952, asking informed accordingly the record showing issued against In pursuance lands of 1955 Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others Jagannadhadas J. 2S.C.R. SUPREME COURT REPORTS 1121 to be the appellant to have been fact delivered. At not appear from the record whether this was done or whether possession was st:ige, a notice under section 27 of the Administra (Central Act tion of Evacuee Property Act, 1950 XXXI of 1950), appears issued to have been appellant by show cause th:'. Custodian-General why the order of the Additional Custodian dated 20th March, 1952, confirming . the exchange and the 20th and 28th July, 1952, further orders dated and other consequential and sar.ct!oning mutation therewith be not incidental orders made in connection set aside. This notice appears issued asking to show cause on the 4th May, 1953. The case was adjourned to the 12th May, 1953, request of counsel for the appellant and there after a more detailed notice dated the 14th May, 1953, the various grounds on which was issued setting out the previous orders were sought set aside. The learned Custodian-General passed . the order now under the 20th May, 1953, setting aside the order appeal on of confirmation. He directed to decide those who might the case after giving notice transac be affected by the earlier part of his order shows, tion. As those who reference were allotted the lands ·Additional Custodian of the year 1949 order of the above referred to. To appreciate that has been raised the first question as to the validity of the exercise of revisional powers by the Custodian-General on necessary lative measures from time to time. the unprecedented situation of sudden To meet migration of vast to East Punjab and vice versa, leaving most of the properties which they had, and non moveable and agricultural, situation, necessary administrative machinery, policies legislative powers the concerned Governments had section of population on a the persons affected was to to set out the course of the the' Custodian to all to evolve and give effect in question by virtue of from West Punjab facts, relevant confirmation of to deal with immoveable, agricultural the above set up 1955 Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others Jagannadhadas J. 1122 SUPREME COURT REPORTS [1955] time to (Amendment) Act, transactions on or after the East Punjab Evacuees (Administration of Property) therefrom. These thereto legislature measures time. The earliest regard far as we are concerned, was (Adminis tration of Property) Act, 1947 (East Punjab Act XIV of 1947), which came into force on the 12th Decem ber, 1947. This Act was amended by the East Pun jab Evacuees' (Amend ment) Ordinance, 1948 (East Punjab Ordinance No. II (Admi of 1948) and later by East Punjab Evacuees' nistration of Property) 1948, inserted two (East Punjab Act XXVI of 1943), which require new sections, 5-A and 5-B, prescribing ment of confirmation of transactions to eva relating cuee property and providing a right of appeal or re sections were specifically vision made applicable the 15th August, 1947. The above Punjab Legislative measures were extended to the State of Delhi by Central GoY the Delhi Laws Act, ernment notifications under January, the 29th December, 1947, 1948, and the 22nd April, 1948, to Chief Commissioners' far as these measuces applied Provinces the Administration (Chief Commissioners' Prov Property (Central Ordinance No. XII of inces) Ordinance, 1949, into force so far as Delhi is con 1949) which came cerned on the 13th June, 1949. This Ordinance, repealed and a fresh Central Ordinance turn, was to all the ProY came into force in its place, applicable and West Bengal. inces of That was Administration of Evacuee Property Ordi (Central Ordinance No. XXVII of 1949), nance, 1949, force on the 18th October, 1949. which came into in its turn was repealed and This Central Ordinance replaced by the Administration of Evacuee Property Act, 1950 (Central Act XXX.I of 1950) which came into force on the 17th April, 1950. It is necessary to notice at that until the Central Ordinance XXVII of 1949 was passed, regulated by the res the Evacuee Property law was pective Provincial Acts and were under respec administrations. Central Ordinance the 28th respectively. except Assam repealed by this stage they were Provincial Evacuee India In 1955 Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others Jagannadhadas J. 2S.C.R. SUPREME COURT REPORTS 1123 for a centralised No. XXVII of 1949 provided and ce1tralised administration which was. continued by Central Act No. XXXI of 1950. One of the main such centralised administration was the office of Custodian-General with powers to create revision as against of appeal and the orders of Pro the Central Ordi vincial Custodians. Section 5 of nance No. XXVII of 1949 authorised the Central Government to appoint a Custodian-General of Eva cuee Property in India for the purpose of discharging the duties imposed on him by or under the Ordi nance, while appointment of Provincial Custo dians, Additional, Deputy or Assistant Custodians, to the various Provincial Governments. wa> still These provisions were continued by sections 5 and 6 of Central Act XXXI of 1950. As regards the to evacuee property, sactions by evacuees in East Punjab and to have been by virtue of East Punjab Delhi appears (Amendment) Evacuees' Ordinance, 1948 II of 1948) and the East Punjab Evacuees' (Administration of Property) (East Punjab Act XXVI of 1948) which inserted two new sections 5-A and 5-B into the East Punjab Act XIV of 1947. The said sections were as follows : (East Punjab Ordinance No. (Administration of Property) (Amendment) Act, 1948 relating interference legislative traasfer of any interest or right "5-A.(l) No sale, mortgage, pledge, lease, ex change or other or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the evacuee the agent, assign or attorney of fifteenth day of or such person, on or after August, 1947, shall be effective to confer any transfer or rights or on any person daiming under it is con firmed by the Custodian. (2) An application to such them unless remedies on the par!ies for confirming such so as transfer thereunder or may be made by any person claiming by any person lawfully authorised by him. (3) The Custodian made after the thirty reject any application first day of March, 1948 or after 1955 Indira Sohanlal v. Custodian of Eva.cue6 ProlJtrty, Delhi and others Jagannadhadas J. 1124 SUPREME COURT REPORTS I 1955] the expiration of two months from the date saction was entered into, whichever is later. ( 4) The Custodian shall hold a summary enquiry rejected under sub transac into an application, which section (3) and may decline tion if it appears to the Custodian that- to confirm is not ( a) the transaction was not a bona fide one for valuable consideration ; or (b) the Custodian prejudicial ( c) for Custodian confirmed. in writing, transaction the opinion of to the prescribed objects ; or any other reason, the transaction ought not to be to be given hy (5) If the Custodian confirms he may confirm it unconditionally or subject conditions and terms as he may consider proper. transaction, to such ( 6) The Custodian, is not pronounced in the presence of the applicant, shall forthwith give notice to the applicant of any order passed by him under sub-sections (3), (4) or (5). if the order in writing 5-B. if any, subject only the decision on person aggrieved by If the original order under section 5-A by an Assistant or Deputy Custodian of passed Evacuee Property, order may appeal within sixty days from the date of the order to the Custodian of Evacuee Property who it over for may dispose of the appeal himself or make disposal to the Additional Custodian of Evacuee Pro perty ; and appeal, the order passed by the Assistant or Deputy Custodian of Evacuee Property, or any origi the Custodian or nal or appellate order passed by Additional Custodian of Evacuee Property shall be final and conclusive". two sections enjoined that It will be seen transfers by an evacuee or intending evacuee relating to his property from and after the 15th August, 1947, appeal or required confirmation and provided revision from the orders passed on applications thereto, such orders were made final for and subject and conclusive. The to confirmation in more or less the has been substantially continued same form by sections 25, 38 and 40 respectively of requirement as 1955 Indira Sohanla<' v. Cu.rtodian of Evacuee Property, Delhi and others Jagannadhadas J, 2S.C.R. SUPREME COURT REPORTS 1125 the position was substantially different. Secti<:>n / thereof, is not subject for an appeal thereof provided for confirmation specifically declared inter alia, provided there was no provision there have been changes from the successive legislative measures with certain modi fications which are not material for this case. But so far as the appealability or revisability of an order passed on an application is con cerned, time to time. It will be seen from section 5-B of the East Punjab Act, XIV of 1947, as quoted above, that any origi nal order passed by the Custodian or Additional Custodian to appeal or revision and it final and conclusive. to be Central Ordinance No. XII of 1949 by section 30(1) (b) the High Court against an original order of a Custodian or Additional Custodian or authorised Deputy Custodian revision of such an order. Under the Central Ordinance No. XXVII of 1949 person 24 aggrieved by an order made under section 38 (which corresponds the East Punjab Act XIV of 1947) may prefer an appeal time as may be pres such manner and within such cribed, the original the Custodian-General where order has been passed by the Custodian, Additional Custodian or an Authorised Deputy Custodian. Sec for revisional powers of the tion 27 thereof provided Custodian-General but it was specifically confined appellate orders and there was no power given the Custodian-General of an original order passed by the Custodian. But under Central Act XXXI of 1950 which repealed and re placed the position became different. The provision for appeal under section 24 thereof was virtually is relevant here. But section 27 the revisional powers of the Custodian-General in the following terms : to the previous section 5-A of the Act provided for the same as before, revision, however, this Ordinance in so far as it revision by as regards "27. at any ( 1) The Custodian-General may time, either on his own motion or on application this behalf, call for the record of any proceeding judge or ~ustodian has passed an order for the purpose of satisfying him- in which any district to him in 1955 Indira Sohanlal v. Custodian of EvtUuu Property, Delhi and others Jagannadhadas J. 1126 SUPREME COURT REPORTS [1955] self as to the legality or propriety of any such order and may pass thereto as he thinks fit : Provided the Custodian-General such order in relation this sub-section prejudicial to any reasonable opportunity pass an order under person without giving him a of being heard. " relating The question powers exercised by present case arises with above mentioned. to the validity of the the Custodian-General revisional the provisions reference It it is to have Though evacuee property. in question was alleged is· not disputed that Malik Sir Firoz Khan Noon this property was an evacuee. Nor is it disputed in Punjab Khore which was the subject-matter of the exchange was taken place exchange the 10th October, 1947, at a time when there was no restriction against any evacuee dealing with property he left behind, indisputable that tion 5-A of the East Punjab Act XIV of 1947 which the 15th has been specifically made retrospective from August, 1947, operates saction requires confirmation also. the said section and under the corresponding sections in this behalf. require the appellant made an application for con ment that firmation on that a subsequent amended application was filed on the 14th August, 1948. that were dis these applications the Additional posed of on the 20th March, 1952, by Custodian, Delhi, by an order confirming the ex the Custo change, which has since been dian-General on the 20th May, 1953. the 23rd February, 1948, and in respect of the present legislative measures in compliance with revised by subsequent therefore, It was It is It, the powers which are vested The main contention of the learned counsel for the appellant is that Custodian-General the original orders of the Custodian or Additional Custodian under section 27 of the Central Act XXXI of 1950 are not applicable the Custodian or Additional to an order passed by to revise 1955 Indira Sohanlal v. Custodian of Eu'ac::ee Property, Delhi and others Jagannadhadas ]. 2S.C.R. SUPREME COURT REPORTS 1127 It is that on the office of the date when strongly urged first made on section 5-A by long prior Custodian on an application made time when the Custodian-General was revision. set up and he was clothed with powers of It is urged the application for the 23rd February, confirmation was 1948, an order passed under final and con Custodian or Additional Custodian clusive under section 5-B. repeal and re-enactment of these pro the subsequent the right vested in the appellant visions cannot affect to obtain a final and conclusive order from the Cus todian or Additional Custodian on her application for confirmation. Section 6 of the General Clauses Act in the Coionial Sugar Re and the Privy Council case fining Co. Ltd. v. lrving(1) were relied on in support of the validity of this this contention. To determine the course of the contention, various time which legisla tive measures and to determine the effec~ thereof. statutory provisions the prior corresponding relevant is necessary repealed The East Punjab Act XI\1 of 1947 was 'replaced by thereof the Central Ordinance No. XII of 1949 Chief Commissioners' which repealed the prior Act was as follows :- Provinces. Section 40 relating "40. (1) The East Punjab Evacuees' (Adminis (East Punjab Act XIV in Ajmer-Merwara and Delhi, is tration of Property) Act, 1947 of 1947), as in force hereby repealed. in relation (2) Notwithstanding such repeal, anything <lone in the exercise of any power con or any action taken ferred by the Act aforesaid shall, Provinces of Ajmer-Merwara and Delhi, be deemed to the powers have been done or taken in the exercise of conferred by curred or proceeding commenced under the said Act shall be deemed incurred, or proceed this Ordi ing commenced under this Ordinance as if thing was nance were in force on the day when such or proceeding done, action taken, penalty commenced". When this Ordinance, and any penalty this Ordinance was to be a penalty repealed by incurred (!) [1905] A.O. 369. 1955 Indira Sohanlal v. Custodian of Evacuee Proper!;P, Delhi and others Jagannadhadas ]. 1128 SUPREME COURT REPORTS [1955] Central Ordinance No. XXVII of 1949, section 55 was as follows : repealing "55. (1) The Administration of Evacuee Pro (XII of 1949), as perty Ordinance, 1949 the Chief Commissioners' Provinces ............ is here- by repealed. in force in· (2) ......................... . (3) Notwithstanding in the exercise of and any penalty the repeal by this Ordinance of the Administration of Evacuee Property Ordinance, 1949, or of any corresponding law, anything done or in ·the exercise of any power con any action taken law shall be deemed to ferred by that Ordinance or the powers have been done or taken conferred by this Ordinonce, that Ordi curred or proceeding commenced under nance or law shall be deemed this Ordi curred or proceeding commenced under the day nance as if this Ordinance were on which such thing was done, action taken, penalty incurred or proceeding com"menced". turn re Ordinance No. XXVII of 1949 was pealed by Central Act XXXI of 1950. This Act was amenqed by an Ordinance and later by an Act of the same year. Section 58 repealing provision of this Act as so amended. The material portion thereof is as follows : "58. to be a penalty Administration in force on 1949 (XXVII of 1949) of Evacuee Pro- is hereby ( 1) The perty Ordinance, repealed. (2) ............................. . (3) The thereof, and repeal by this Act of the Administra (XXVII of the previous ope- thereto, anything done or the exercise of any power con that Ordinance shall be deemed to in the exercise of the powers this Act were in the day on which such thing was done or tion of Evacuee Property Ordinance, 1949 1949) ................ shall not affect ration any action ferred by or under have been done or taken conferred by or under force on actio11 \Vas taken". this Act, as subject Thus in the transition of the Evacuee Property law 1955 Indira Sohanlal v. Custodian of Evatue< Properly, Dtlhi and othm Jagannadhadas ]. 2S.C.R. SUPREME COURT REPORTS 1129 identical terms but the three repeals. The first incurred or proceeding commenced" from the East Punjab Act XIV of relating to Delhi, to the present Central Act XXXI of 1950, there 1947 two repealing pro have been third is visions are in almost is in two respects. somewhat different. The difference the previous repealing sections ( 1) The provision that "any penalty incurred or proceeding commenced under the repealed law shall he deemed to be a penalty the new law incurred or proceeding commenced under as if the new law were in force on the day when the penalty was now omitted. (2) The provision that "anything done in exercise of any power con or any actiol1 to have law shall be deemed ferred by the previous been done or taken in exercise of the powers conferred law were in force on the by the new law as if the riew taken" day when such that this is .continued. But the "previous ope subiect to the repeal not affecting the context ration of the clearly means the repealed respect of "anything done or any action taken". The question thus for consideration is what is the result brought about by these provisions. thing was done or action it is specifically provided repealed the previous operation of law" which the General Clauses Act Before proceeding to determine it, it is desirable to consider whether section 6 of the General Clauses Act relied on. The position as regards section 6 can be in the case of repeal and re-enactment has been considered by this Court in State of Puniab v. Mohar Singh(') and laid down as follows at page 899 : "Whenever the consequences ral Clauses Act will follow unless, as of a simple repeal pression of a contrary opinion. But when we would undoubtedly have to took of the new Act, but only for mining whether is a repeal of an enactment, the Gene the section it the case there is scarcely any room for ex repeal legislation on the same subject the provisions the purpose ·of deter intention. laid down in section 6 of they indicate a different intention appears. says, a different followed by In (I) [1955] 1 S.C.R. 1393, 899. 1955 lttdira Sohanlal v. Custodian of Et· acute ProP.,'T{1, Delhi and others JagannadharfaJ ]. 1130 SUPREME COURT REPORTS [1955] therefore subscribe to indicate the present case sub-section ( 3) of the section. Such rights and intention in such cases also unless there is legislation. Section 6 would line of enquiry would be, not whether the new The liabilities Act expressly keeps alive old to destroy but whether it manifests an to the broad them. We cannot that section 6 of the General Clauses Act proposition repeal of an enactme!]J' is ruled out when followed by a fresh applicable the new legisla tion manifests an intention incompatible with or con trary to the provisions of to be ascertained from a con patibility would have sideration of all relevant provisions of the new law ...... ". section 58 of In Central Act XXXI of 1950 . purports in negative and in positive effect of that repeal, both to "the relating terms. The negative portion o.f previous operation" of the pnor Ordinance appears to have been taken from section 6(b) of the General adopts a Clauses Act, while is con "deeming" provision quite contrary the General section. Under templated in respect of matters covered Clauses Act the position, by it, would have repeal ing Act had not been passed, while under section 58 of Central Act XXXI of 1950, the position-so far a• judged the pos1t1ve portion is concerned-has to be if the repealing Act were the earlier relevant <late. Therefore where, as this case, to indicat~ the effect repealing section which purports of the repeal on previous matters, provides the previous law in part and in negative operation of terms, as also for in the the said prov1s1on other part and may well be taken indicative the application of section of the intention 6 of therefore, of the said section cannot be called in the opinion aid in this case. to exclude the General Clauses Act. We are, terms, to be self-contained and the operation of the new law to be determined as if the the positive portion in force at in positive to what Now, as to the meaning of section 58(3) of Central ;, in a from difficulty. This kind of provision Act XXXI of 1950, not free it must be admitted 1955 Indira Sohanla/ v. Custodian of Evacuee Property, Delhi and others JagannadhadlJI ], 2S.C.R. SUPREME COURT REPORTS 1131 legislation in 1948 ; the application the appellant urges the powers conferred repeal ...... shall not affect rather unusual. Learned coun repealing Act appears the positive portion sel for of this provision, i.e., "anything done or any action taken in exercise of any power conferred by or under the Ordinance shall be deemed to have been done or taken in the exercise of by or under this Act as if this Act were in force on the day on which such thing was done or action was taken" to purely administrative matters and applies only that his case falls within the scope of the first portion, viz., the previous "the (repealed) Ordinance". His conten operation of the tion is. that for confirmation which in 1948 and which remain was made by the appellant ed pending until Act XXXI of 1950 came and superseded in this behalf, the earlier had to be disposed of in accordance with sections 5-A and 5-B of the East Punjab Act XIV of 1947, as the order of confirmation amended such a passed pending appeal It is urged 1948, to have it determined under the attri bute of finality and conclusiveness under section 5-B attaching to such determination. According learned counsel from the "previous ope law and is in consonance with ration" of the repealed the principle Colonial Sugar Refining Co. Ltd; v. Irving (1) relates these contentions are unsustainable. pears to us Colonial Sugar Refining Co. Ltd. v. Irving( 1 relates the case of a right of appeal against an order passed . or in a pending action. Their to a superior LorJ:;hips tribunal right and held that retrospectively de prived of it except by express words or by necessary implication. This doctrine was in Delhi Cloth & General Mills Co. Ltd. Privy Council conclusive. filing of the application but became final in a pending action as an existing the Additional Custodian m the Privy Council section 5-A with suitor cannot be application was right of appeal laid down by got a vested to be passed this follows appellant that on affirmed revision treated ) [\] [1905] A.C. 369. I 7-35 S. C. India/59 1955 Indira Sohan/al v. Custodian of Evacutt Property, Delhi and others Jagannadhada! J. 1132 SUPREME COURT REPORTS [1955] to the if applied their existing in its applica into force, were the Privy Council v. Income Tax-Commissioner, Delhi(') tion to the converse case in the following terms : "Their Lordships can have no doubt interpretation of section 66 finality orders which, when that provi retrospectively; would deprive final, are provisions sions which, statute - came which touch existing rights". General Mills Co. Ltd. v. Income-Tax Commissioner (1), General Mills Co. Ltd. v. Income-Tax Commissioner('), the High Court from which appeals the orders of the Privy Council were to be filed were sought dated the 6th January, 1926 and 12th January, 1926. .Indian Income-tax Act stood at the time and As according in Tata Iron & Steel Co. v. of by Chief Revenue Authority, Bombay (2) there was no ap peal to the Privy Council. The legislature by an amend Income-tax Act, which came into force on ment of the the 1st April, 1926, inserted therein section 66-A and gave a right of appeal against such orders as provid ed therein. the Privy Council repelled himself the contention of the new provision by pointing out the finality of to be appealed against and refer the orders sought ring to it as an existing right. This is obviously so the moment orders because were passed, prior the present is different. The action was still case, the position pending when Central Act XXXI .of 1950 came force. No order was passeJ '•which could attract 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 in Central Ordinance No. by the repealing provision XII of 1949 and Central Ordinance No. XXVII 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 and therefore required to be continued under the new Ordinances. Each of these Ordinances provided to them, the new Act. the litigant could avail finality attached In this situation In [!] [1927] l.L.R. 9 Lahore 284. [2] [1923] L.R. 50 I.A. 212. 1955 Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others Jagannadhadas J. 2S.C.R. SUPREME COURT REPORTS 1133 that, even so, appeal against such an 6rder and the second of them the exercise of revisional power against provided for an appellate order of the Custodian. Learned coun the fina sel for the appellant contends lity and conclusiveness, which would have attached to an order made under section 5-A, if made before Ordinance XII of 1949 was promulgated, was affected only to to an appeal the attribute of finality and not is affected by subsequent in respect of such an order to be of consequence legislation, for appeal It revision. and later by provisions in those cir is difficult cumstances, are anything more than alterations m procedure. first by a provision appeal and that such provisions, the extent of its being subject to revision. But once it does not appear it was affected to see • a the very substantive it appears litigant on · However this may be, the commencement of to obtain a determination with to be clear that while a right of appeal in respect of a pending action may conceivably be treated as vesting in the action-though we do not so decide-no such vested the attribute of in favour of a litigant on the finality can be predicated institution of the action. By terms of sec tion 5-B of East Punjab Act XIV of 1947, finality the order. Even if to it on thf making of attaches in law, any such right at all as the right to there be, a determination with it can in no sense be a vested or accrued right. It does not accrue until the determination in fact made, when finality becomes an existing right in Delhi Cloth and General Mills Co. Ltd. v. lncome Tax Commissioner(1). We the principle of Colonial Sugar Refining ·opinion Co. Ltd. v. lrving( 2 in support of ) a case of the kind we are dealing with. the attribute of finality, therefore, of cannot be the right invoked are, Nor can· the ambit of this be brought under the phrase "previous operation of the law". repealed learned counsel for the appellant con What in effect, tends for the "previous operation of the re pealed law" but the "future operation of the previous is not {I) [1927] l.L.R. 9 Lahore 284. [2] [1905] A.C. 369. 1955 Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others Jagannadhadas J. 1134 SUPREME COURT REPORTS [1955J though function. if any, of the previous the previous repealed law the Custodian-General only as to be applicable by virtue of the extent of repealed law Indeed, a comparison of is no justification for such a construc law". There tion. Besides, if in respect of the pending application in the present case, is to continue the question arises as to who portion of section 58(3) are the authorities tMt. can deal with it. The appli cation can be dealt with by the Custodian and on appeal by functioning law. But as such Custodian or they have disappeared by virtue of Custodian-General It is only the second portion of section repeal. them as 58(3) which continues the appoint the new Act-a position which ments were made under could scarcely be controverted. To future operation, can have no wording of section 58 of Act XXXI of 1950 with the wording of section 6 of the General Clauses Act would legislature intended either pending proceedings were to be continued under the law or that anything in the nature of vested previous right of finality of determination or some right akin thereto was in respect of such pending pro ceedings, the negative portion of section 58(3) would not have stopped short with saving only the "previous operation" of the repealed law. It would have borrowed from out of some portions· of the remaining sub-sec tions ( c), ( d )'and ( e) of section 6 of the General Clauses Act, and provided the continu ance of the previous in respect of pending pro ceedings. Obviously no particular sub-section of sec tion 6 of the General Clauses Act could be borrowed in toto as that would contradict the positive portion of section 58(3) of Act XXXI of 1950 and would be inconsistent with it. We are, therefore, clearly of the view that the appellant can not call in aid in Colonial Sugar Refining Co. Ltd. v. Irving('), nor can his case the first portion of sub-sec fall within the ambit of tion (3) of section 58 of Act XXXI of 1950. in express idea underlying the principle of terms for the case to arise The next question for consideration is how· the (!) [1905] A.G. 369. 1955 Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others Jagannadhadas J, 2S.C.R. SUPREME COURT REPORTS 1135 second and positive portion of section 58(3) of Act XXXI of 1950 to be understood, This portion that "anything done· or any action exercise of any power conferred by or under (repealed) Ordinance, shall be deemed to have been in the exercise of the powers conferred done or by or under this Act as if this Act were in force on the day on which such thing was done or action was is desir taken". To appreciate repealed Ordinance, under, and the nature of thereunder. The done or action from vanous powers exercisable are sections and broadly speaking fall under the follow ing categories. the scheme of exercisable idea of the powers the meaning of this it to have a general to be gathered that may be that may things taken,

#1. To make appointments-sections S and 6. 2. To make enquiries-sections 7, 16, 19 and 38 and to make dedarations or issue notifications as a result thereof. · 3. To make various kinds of consequential or those under sections 9, administrative order such as 10, 11, 12 and 21.

#4. To hear and dispose of appeals, reviews or revisions-sections 24, 25, 26 and 27. take action with to delegate powers and

#5. Power of the Central Government, to exempt, regard to make to give directions, evacuee property, rules-sections 49, SO, 51, 52 and 53. there are provisions which bring about In addition various consequences such as vesting in the Custodian, valid discharge by payment to the Custodian, attach ment, and so forth, sections 7(2), 8, 11, 13, 16(3), 19(3), 20 and 22, etc. The above enumeration is by no means intended to be exhaustive but illustrate the scheme of the Ordi nance with reference the Act has to be understood. There are also rules framed by the Ordinance under which virtue of section 53 of various powers may be exercised, thihgs done, and action taken. to which section 58 of is merely the various provisions If section 58(3) of Central Act XXXI of 1950 which 1955 Indira Sohanlal v. Custodian of Evacute Property, Delhi and others Jagannadhadas J. 1136 SUPREME COURT REPORTS [1955] refers the operation of thereunder, while the prior Ordinance to the above scheme, things taken, under that may be done, or action the appellant. Broadly speaking, repealed erence 58(3) counsel second portion of section 58(3) range of, is understood with ref there is no reason to con the second portion . of section to administrative action as suggested by learned to the whole · may be the previous Ordinance and the framed first portion of section 58(3) relates to the legal consequences result ing under the Ordinance or the rules from certain facts or from completed acts or things done there under. Without attempting to be meticulously accu stated rate, terms, scheme underlying section 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 .certain consequences have new law except already ensued or acts. have been completed prior thereto, to which law that will apply. In the old this view of section 58, the application of the appel the date when Central Act XXXI of 1950 came into force had to be this Act and the dealt with and disposed of under order of confirmation passed in 1952 would clearly be the Custodian revisional power of subject General under section 27 of the said Act. for confirmation pending on in- so far as in general it may be it is It is next contended that the revisional power can not be exercised when there was an appeal provided but no appeal was it was open to the the Cus Assistant Custodian who appeared before revision todian-General in support of interest the revisional order appears the notice for in whose to have been passed, to the allottees of the property filed, Section 27 however is very wide in · cannot be construed as being subject I file an appeal under the Act as persons aggrieved. terms and it to any such limitations, Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality the Cus- todian-General can exercise "for the purpose of satisfying himself as to the legality or is contended, because under section 27, revisional powers • 2S.C.R. SUPREME COURT REPORTS 1137 propriety of any order of the Custodian". We are the contention of the thus clearly of the opinion learned counsel the exercise of revisional powers the Custodian illegal, must is without General fail. the appellant jurisdiction or this case by 1955 Indira Sohan/al v. Custodian of Evacuee Property, Delhi and others ·JagannadhadaJ ]. to contest to be considered appellant The next question the ground on which is wholly untenable. He contended is as regards the Custodian the merits of the revisional order of is under appeal before us. Learned General which it on various attacked counsel grounds. He urged the Additional learned Custodian-General set aside to the prior Custodian's order, viz., absence of notice allottees the allottees had no kind of interest in the land which the application for confirma entitled they were at best only lessees for three years tion, which was due to expire very shortly after the order of confirmation was passed by the Additional Custo dian. He pointed out that as soon as the application for confirmation was filed on the 23rd February, 1948, general notice by beat of drum and affixture Indian News locality and by publication in possession Chronicle was given, to the appellant or left the land, who either attorned the allottees came into possession much village, the confirmation later and pending its result. He proceedings and presumably subject in this be also pointed out it was half c.ame discretionary with persons other he considered the same officer, Shri R. Dayal, made the allot the• confirmation, he must be taken to ment as also have exercised his discretion properly in not giving any notice in view of the imminent expiry them, they were put of the that having regard possession. the categorical findings of to give notice transferor and transferee, interested, and urged into force under Act XXXI of 1950, three years It the above considerations and to term for which strongly urged the Custodian-General himself that even when the rules time were only the disposal of the Custodian the previous the persons to be tenants on pg55 Indira Sokanlal v. Custodian of Evacuee Property, Dtlhi and others Jagannadhadas J• 1138 SUPREME COURT REPORTS [1955} placed to such though provisionally the appellant, was in transaction was only revisional power. The tract of agricultural the pool of agricultural 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 nature of perverse exercise of learned Solicitor General appearing for the respondent contended the Custodian-General about the bona the finding of tentative, that the fides of in possession allottees, three years had, what has come to be recognised interest, as, a quasi-permanent that they had a genuine the confirmation sought, which interest in opposing to a large related land, and which lands available would reduce for rehabilitation of displaced agriculturists and confirmation of transactions land was relating to the policy and directives of the Govern opposed ment and the confirmation should not, circumstances, have been lightly granted by the Addi- · the allottees and tional Custodian without notice a proper consideration of the policies and directives in this behalf. learned counsel the appellant m ged that the alleged policies or direc tives are not for consideration by these proceedings which must he the Custodian judicial, unless such policies or directives are embodied in rules made by the Central Government under section 56(2) ( q) and that no such rules were prescribed by the relevant dates and that even the usefulness of his order under appeal discounted purposes of matters which could be into consideration are regulated by section 40( 4) of Act XXXI of 1950 and that clause '( c) thereof must he construed as referring to matters ejusdem gen eris with clauses (a) and (h ). in the view we take of the order under appeal and But the course we propose express any opinion on the merits of the above argu ments. relevant matters to he quasi-judicial, to notifications and directives It was also urged the Custodian-General himself to adopt, we do not wish this case. reference In reply thereto if not 1955 Indira Sohanlal v. Custodian of Evacuee Property, Delhi and others Jagannadhadas J. 2 S.C.R. SUPREME COURT REPORTS 1139 to put in support of interfere with the Act':-;. The to the It is also difficult If it was meant forward arguments the merits are to be the Custodian-General, The order under appeal to gather from it whether is. one· passed by virtue of in the Custodian the wide powers of revision vested General under section 27 of jurisdic tion which has been challenged having been found in this Court would favour of the order on hs normally be slow learned Custodian merits. But with respect General, his order is such is difficult to main tain it. The learned Solicitor-General himself has been obliged the order it which cannot be clearly gathered from self. reconsidera remand to the Additional Custodian remand tion, after notice was a general and open where all que'stions on sidered or was only a limited remand and if so what to be an open the limitations are. general remand, as the concluding portion of his order ( 1) to indicate, his definite findings on points and (2) which he formulated for himself and the doubt he has expressed ·in his order about the usefulness of the various notifications and direc examining afresh to which his attention was drawn by the Assistant it difficult for any Custodian Custodian, would render If so, on remand to consider any of those matters. to serve no substantial pur remand would appear pose. learned Custodian-General, proper course would be to set aside his order under appeal and to to him for fresh consideration. On such fresh consideration he will give full opportu respective nity to both sides points of view. the Custodian, he will clearly remand to be considered by indicate what are learned Custodian-General may also con him. The the matter feasibility of his dealing with if need be, finally by himself, calling for a report, in order to the Custodian on specified matters, obviate any further delay by appeal and revision this already protracted matter. for presentation of their the circumstance!, and rehearing, he decides the matter back If on the matters the case fairness In 1955 Indira Solumlal v. Custodian of Evacute Propm,, Delhi and others Jagannadhadas J. 1955 October 31. 1140 SUPREME COURT REPORTS [1955] The appeal is allowed and the order of the Custodian General is set aside. The case is remanded to him so that he may reconsider and dispose of the same in the light of this judgment. There will be no order as to costs. WILLIE (WILLIAM) SLANEY v. THE STATE OF MADHYA PRADESH. [S. R. DAs, Acrrna C.J., V1vrAN BosE, }AGANNADHA· DAS, }AFER IMAM and CHANDRASEKHARA AIYAR JJ.] Sessions Trial-Charge under s. 304 read evith s. 34 of the Indian Penal Code against tevo persons-Acquittal of one-Omission to frame alternative charge against the other-Conviction under s. 302 simpliciter-Validity-Code of Criminal Procedure (Act V of ~898), ss. 225, 226, 227, 228, 232, 233, 237, 238, 535, 537-lndian · Penal Code (Act XLV of 1860), ss. 34, 149, 302. intention. There was evidence to show The appellant and his brother were put up for trial on charges under s. 302 read with s. 34 of the Indian Penal Code. The appel lant was specifically charged with murder in prosecution of the com that he and not his brother had struck the fatal blow. The brother was acquitted and sentenced to trans the appellant was convicted under s. 302 and portation for life. The High Court upheld the convietion and sen tence and dismissed the appeal. The question was whether the omission to frame an alternative charge under s. 302 simpliciter was an illegality that vitiated the trial and invalidated the conviction and whether there was a conflict of decisions of this Court on the matter in controversy. Held per curiam, that the omission frame an alternative charge under s. 302 in the facts and circumstances of the case was not an illegality that vitiated the trial bUt was a curable irregularity as it had not occasioned any prejudice to the appellant and the con viction was not liable to be set aside. That s. 34 of the Indian Penal Code by itself does not create any offence and where, as in the present case, it is possible to ascer tain who struck the fatal blow, the fact that· another was also sought to be made liable does not invalidate a conviction for murder unless there was prejudice. That 'illegality' used in Nanak Chand'i case must be read with reference to the facts of that case where the court· the expression