Sadhu Ram Vs. The Custodian-General of
Evacuee Property [1955] INSC 58 (28 October 1955)
JAGANNADHADAS, B.
AIYAR, N. CHANDRASEKHARA DAS, SUDHI RANJAN
BOSE, VIVIAN IMAM, SYED JAFFER
CITATION: 1956 AIR 43 1955 SCR (2)1113
ACT:
Fundamental Rights, Infringement of-Transfer
of evacuee property-Requirement of confirmation by Custodian- Retrospective
effect, if amounts to deprivation of property- If a reasonable
restriction-Refusal of confirmation by quasi-judicial order based on irrelevant
material- Application under Art. 32, if maintainable-Constitution of India,
Arts. 19, 31, 32-East Punjab Evacuees' Administration of Property) Act, 1947
(East Punjab Act XIV of 1947) as amended by East Punjab Evacuees'
(Administration of Property) (Amendment) Act, 1948 (East Punjab Act XXVI of
1948), s. 5-A.
HEADNOTE:
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, s.
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 s. 5-A of the Act was in effect a deprivation of property without
compensation and was hit by Art. 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 Art. 32 of the Constitution.
ORIGlNAL JURISDICTION:
Petition No. 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.
1955. 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.
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