RAJ BAHADUR KANWAR RAJ NATH v. PRAMOD C. BHATT, CUSTODIAN OF EVACUEE PROPERTY

Observations in Aswini Kumar Chose v. Arabinda Bose ([1953] and Dominion of India v. Shrinbai A. Irani the scope of a non-obstante clause. I, 21, 24) ».C.R. ([1955] I S.C.R. 206, 213), on •die•.! on. C1v1L No. 205 of 1954. APPELLATE JURISDICTION ; Civil Appeal On appeal from the judgment and order dated the !955 Rai Bahatlur Kanwar Rqj }lath and olherJ v. Prarnod C. Bhatt, CUJtodian of Evacuee Prop.·rty 978 SUPREME COURT REPORTS [1955] 13th April 1954 of the Bombay High Court in Appeal No. 49 of 1954 arising out of the order dated 31st day of March 1954 of the said High CoUrt exer in Misc. cising Petitien No. 55 of 1954. its Ordinary Original Jurisdiction K. T. Desai, P. N. Bhagruati, Rameshwar Nath and Rajinder Narain, for the appellants. C. K. Daphtary, Silicitor-General of A. Mehta and R. H. Dhebar, with him), for. pondent. India, (Porus

#1955. November 10. The Judgment of the Court was delivered by raises to as appeal referred to Pakistan, VENKATARAMA AYYAR J.-This a question as the powers of a Custodian of Evacuee Property to cancel a lease granted by him unrkr sec the Administration of Evacuee Property tion 12 of Act (XXXI of 1950), hereinafter Act. Messrs Abdul Karim and Brothers owned, along with certain other properties which are not the three mills with ject-matter of the present appeal, at Ambernath in Thana Dis bungalows and chawls in , Bombay. trict and the Bobbin Factory at Tardeo these properties They have migrated were declared by a notification dated 12-9-1951 issued the Act as evacuee property, and under section . 7 of they became vested in under section 8 ( 1) of the Act, the State. The the respondent as the Custodian for appellants are displaced persons, and on JQ.:8-1952 them, the respondent entered into an agreement with Exhibit A, which is, as aptly characterised by learned counsel for the appellants, of a composite character, consisting of three distinct matters. There was, firstly, factory in a demise under which the mills and the question were leased to the appeallants for a period of five years on the terms and conditions set out there in. Secondly, spare parts, cars, finished goods, materials, unsold trucks and other movables which were in the mills factory, with elaborate provisions therefor in determination and payment of the price there was a sale of the stock of 1955 Rai Bohadur Aanwar Raj Nath and otMrs v. Pramod C. Bhatt, CttStodian of E1JOCU11• Prop.rl.1 Venkatararna ,War]. 2S.C.R. SUPREME COURT REPORTS 979 there was an agreement due course. And thirdly, the appellants the mills and certain certain conditions. subject events There was also a clause for ref erring the disputes bet ween the parties to arbitration. the factory to respondent in the demised premises", arid respondent considered In pursuance of this agreement, the appellants were factory on the mills and put in possession of issued a 31-8-1952. On 12-2-1954 the appellants, Exhibit C, wherein he set notice systematically committed out that the appellants had breaches of the various terms on which the properties had been leased to them, and called upon them to show cause why the lease should not be cancelled and why they should not be evicted. The notice then went on to state it necessary the "preservation of to issue certain directions the demised premises and the goods and stock trade, etc., lying remove appellants were accordingly the stock or raise any money on the security thereof, and to send daily reports thereto. Presumably, reference transactions these directions were given under section 10 of the Act. On 13-2-1954 the appellants appeared before the respondent, and contended that he had no auth in question under section 12, ority to issue and that it was the lease might be cancelled, and that they might be evicted, filed on 16-2-1954 the applica tion out of which the preseht appeal arises, for a writ of certiorari for quashing the notice, Exhibit C, and for a writ of prohibition respondent restraining from taking any further action pursuant thereto. illegal. Apprehending the Custodian, of the appellants required not the notice therefore In support of the petition, the appellants urged that section 12 under which the respondent purported to act authorised leases granted by the evacuee and not by the Custodian himself, and that no directions could be given under the eva section 10 as the movables cuee, and that by reason of in question had become the appel- the sale, the property of it applied only to properties of cancellation of only 1955 Roi ll1d1tul18 Kt111warRiijNa0 mu/ others v. Pranwd c. llha#, Cwtodian of 11•-· Proper<] V1nk<zlarama JIJ!)'ar ]. 9~0 SUPREME COURT REPORTS [1955] !ants. The petition was heard by Tendolkar, J., who stated the points for determination thus : ( 1) "Whether the Custodian has power section 12 of the Administration of Evacuee Property Act, 1950, by himself, terminate a lease granted (2) Whether the directions given by the Cus jurisdiction conferred upon him todian are beyond by section 10 of the said Act ?" On the first question, he held that section 12 applied only to leases granted by the evacuee and not by the the notice, Exhibit C, Custodian, and that therefore was ultra vires the powers of the Custodian under that section. On section 10 applied only to properties of the evacuee, and that the movables in respect of which directions were given, ceased to be the property of the evacuee by reason of the sale in favour of the appellants, and that in consequence, the applica them were unauthorised. tion was allowed. the second question, he held the directions with reference result, In that on The respondent took the evacuee, and that accordingly the matter in appeal, and that was heard by Chagla, C.J. and Dixit, J. By they held 13-4-1954, judgment dated it would apply whenever plain language of section 12 there was a lease, and in respect of lease was there was no property belonging to the evacuee, limitation on imposing a further warrant for lease should also have been granted section the Custodian to issue the notice, Exhibit C, for cancel had power lease. As agreed with Tendolkar, J. that for the reasons given by him the Custodian had no authority under section 10 to issue any directions with reference thereto. The appeal was accordingly allowed in so far as it related to the lease but dismissed as regards movables. judgment, the appellants have pref erred this High Court under article 133(1) (b), and the only point that arises for determination therein to whether is as the power under section 12 to the Custodian has appeal on a certificate granted by regards movables, however, Against ·. 2 S.C.R. SUPREME COURT REPORTS I 981 is no cancel a lease granted by himself and not by the eva longer open to argu that question cuee. But to the decision of ment, as there has been subsequent the court below legislation which concludes the mat the Administration of Evacuee ter. (XLII of 1954) Property to section 12 of Act enacts XXXI of 1950 : (Amendment) Act, the following Explanation Section 5 of 1954 1955 Rai Bahatlur Kanwar Roj Noth and othlrs v. Pramod C. BhlaJ, Custodian of Exacute Properly V enkalarama Ayyar}. "In granted by an agreement entered And it provides serted and inserted" in the section. sub-section the Custodian and 'lease' includes 'agreement' the Custodian·" a includes into by the Explanation "shall be to have bel'n shall be deemed always the rights of law but not Mr. Desai, learned counsel for the appellant~, con that this amendment which is retrospective operation would govern the parties that under the section as it the present appeal, and the Custodian has the power-and had now stands, the power-to cancel leases created not merely always the evacuees but also by himself. But he con this power could be exercised only so as to override a bar imposed by any the lease is held, and this result contract under which flows according to him from the language of the non obstante clause, which is limited to anything contained in any other law for the time being in force", and does the parties". not include "or any contract between This was a contention which was open the appel lants on the terms of the section as it stood even be the amendment, but it was not put forward at any stage prior by itself would be sufficient ground for declining it may be noted is now sought entertain it which be raised by a supplemental proceeding under Order 16, rule 4 of the Supreme Court Rules. On thl' merits also it is without any substance. The section ex to vary the terms of pressly authorises the lease, and that cannot be reconciled with the con tention of the appellants that it confers no authority on him to go back upon his own contracts. The ope rative portion of the section which confers power OD to the hearing of this appeal and the custodian 1955 .Rai BaiuidUT Kanwar Rllj NaJh and others Y. Pramod C. Bhatt, Custodian of Evacuee l'ToJMrl7 Ye nkatarama Ayyar]. 982 SUPREME COURT REPORTS [1955) in any other law for is obviously the Custodian to caned a lease or vary thereof is unqualified and absolute, and that power cannot be abridged by reference to .the provision it could be exercised "·notwithstanding anything con the time being in force". tained This provision to repel a pos intended that section 12 does not by implica sible ct>ntention statutes conferring rights on le~sees, and tion repeal them and has been inserted cannot prevail as against It cannot be construed as cut ex abundanti cautela. the operative por ting down in Aswini tion of the section. Vide Kumar Ghosh v. Arabi11da Bose( 1 the Dominion the scope of a of India v. Shrinbai A. Irani(') on non-obstante clause. We must accordingly hold respondent was acting within his authority in issuing Exhibit C in so far as it concerned granted in favour of the appellants. the pbin meaning of the observations ) to cancel It was next contended by Mr. Desai that even the power under section 12 the Custodian had in favour of the appellants, he had cancel the agreement no power under that section to them, which was to sell the mills and the factory one of the matters contained in Exhibit A, notice, Exhibit C, was to that extent without respondent should accordingly diction, and that be prohibited from cancelling that portion of Exhibit A in pursuance of Exhibit C. But the notice in terms to can refers firstly in respect of which cel, and secondly certain directions were given. In their petition under the validity of the notice, Exhibit it was article 226, C, with reference to these two matters that the appel lants challenged. Tendolkar, ment-and quite correctly-that the two that arose for determination. The question of points they related the rights of the appellants them of the mills and the factory to the purchase by was not raised in the petition, and no contentions were put forivard in support thereof at any. stage of the argu- the proceedings. lease which it is proposed to the movables It is for the in so far as these were J. stated in his to the time in (2) (1955) 1 S.C.R. 206,213. (1) (1953] S.C R 1, 21, 24. 1955 Raj Bahadur Kanwar Raj .Nath and 0th.rs v. Pramod C. Bhatt., Custodian of Evacuee Properey Venkatarama Ayyar ]. 1955 .November 11 2S.C.R. SUPREME COURT REPORTS 983 rights are sought It will be suflicient ment before us agitated. Under to consider them. that the rights of the appellants, those arising out of determinati9n that nothing pronouncement on those to be the circumstances, we must decline if we observe if any, other lease, are left open to the authorities, and taken as a in our decision should be rights. appropriate In the result, the ap~al fails and is dismissed with costs. SHRIMATI VIDYA VERMA, THROUGH NEXT FRIEND R. V. S. MANI v. DR. SHIV NARAIN VERMA. [S. R. DAs, VIVIAN BosE, BHAGWATI. oAs and B. P. SINHA JJ.l fAGANNADHA· Fundamental Ri[!ht, Infringement of-Detention by private per son-ls.iue of writ-Power of Supreme Court-Constitution of [ndia, Arts. 21, 3:t. No question of infringement of any right under Art. 21 arises where the detention complained of is by a private per >On and not by a State or under the authority or orders of a State. and the Supreme Court will not, therefore, entertain an application for a writ of habeas corpus, under Art. 32 of the Constitution. fundamental Consequently a petition under Art. 32 of the Constitution for a writ of habeas corpus founded on Art. 21 and directed against a father for alleged detention of his daughter does not lie. A. K. Gopalan v. The State of Madras ([1950] S.C.R. 88) and P. D. Shamdasani v. Central Bank. of India ([1952] S.C.R. 391), re lied on. ORIGINAL Under Article 32 of in the nature of Habeds Corpus. JuR1so1cT10N : Petition No. 262 of 1955. the Constitution for a Writ R. V. S. Mani. the next friend, in person. M. C. Setal.vad, Attorney-General for India (G. N. Joshi and Porus A. Mehta, with him). N aunit Lal, for the respondent.