Indira Sohanlal vs Custodian Of Evacuee Property, Delhi and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 195 of 1954

Decision Date: 28 October 1955

Coram: B. Jagannadhadas, Vivian Bose, Syed Jaffer Imam

In the matter of Indira Sohanlal versus the Custodian of Evacuee Property, Delhi and others, the Supreme Court rendered its judgment on 28 October 1955. The opinion was delivered by Justice B. Jagannadhadas, who was joined by Justices Vivian Bose, Syed Jaffer Imam, N. Chandrasekhar Das, Sudhi Ranjan Bose, and Justice Aiyar. The case was reported in 1956 AIR 77 and also appears in the 1955 edition of the Supreme Court Reports at page 1117. The statutes that formed the legal backdrop included the Evacuee Property (Custodian-General) Revitalisation Powers—Administration of Evacuee Property Act, 1950 (XXXI of 1950), specifically sections 2, 7 and 58(3); the East Punjab Evacuees’ (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), sections 5-A and 5-B; and the General Clauses Act, 1897 (section 6). The appellant, a displaced individual originally from Lahore, owned a house there and on 10 October 1947 arranged to exchange that house for certain lands situated in a village of the State of Delhi that were owned by an evacuee identified as “M.” On 23 February 1948 she filed an application with the Additional Custodian of Evacuee Property (Rural), Delhi, seeking confirmation of the exchange under section 5-A of the East Punjab Evacuees’ (Administration of Property) Act, 1947, as amended in 1948 and as it applied to Delhi. Section 5-B of the same Act provided that any order issued by the Custodian or Additional Custodian would be final, conclusive and not subject to appeal or revision. Nevertheless, the application remained pending for several years and was finally decided on 20 March 1952, when the Additional Custodian issued an order confirming the exchange. In the interval, the legislative framework governing evacuee property underwent substantial change: the East Punjab Act as applied to Delhi was repealed and reenacted, and subsequently the Central Act XXXI of 1950 was enacted, which, among other provisions, empowered the Custodian-General with revisional authority under section 27. Exercising this power, the Custodian-General served a notice under section 27 on the appellant, heard her arguments, set aside the earlier confirmation order, and directed that the matter be reconsidered by the Custodian.

The appellant contended that the confirmation order issued by the Additional Custodian could not be revisited because, at the time of filing her 1948 application, she had acquired a vested right to a determination that, by virtue of section 5-B, would possess the attributes of finality and conclusiveness. She argued that the later repeal and reenactment of the relevant provisions could not disturb this right, invoking section 6 of the General Clauses Act and section 58(3) of the 1950 Act, which she read as preserving the effect of the repealed law. The Court examined these contentions and held that section 6 of the General Clauses Act, 1897, was not applicable to the present dispute because section 58(3) of the 1950 Act functioned as a self-contained provision that expressly indicated an intention to exclude the operation of section 6. Accordingly, the Court concluded that the appellant’s claim to a vested right of finality could not be sustained, and the revisional power conferred on the Custodian-General by the 1950 Act was validly exercised.

The Court observed that the language of section 58(3) of Act XXXI of 1950 was clearly meant to exclude the operation of section 6 of the General Clauses Act; consequently, the provision did not invite the application of that general saving clause. The Court further held that a right to a determination described as having the attribute of finality could not be regarded as a vested right because such a right did not arise until the determination was actually made, at which point it became an existing right. In reaching this conclusion, the Court distinguished the earlier authorities Colonial Sugar Refining Co. Ltd. v Irving ([1905] A.C. 369) and Delhi Cloth & General Mills Co. Ltd. v Income-Tax Commissioner ([1927] I.L.R. 9 Lah. 284; 54 I.A. 421). The Court also explained that the expression “the repeal shall not affect the previous operation of the repealed law” in section 58(3) must not be interpreted to mean that the repeal does not affect the future operation of the earlier law. Rather, the scheme of section 58(3) dictates that any matter to which the new Act applies is to be treated as arising under the new law, except where certain consequences have already taken place or acts have been completed before the new Act came into force, in which case the old law continues to apply. Accordingly, because the appellant’s application for confirmation was pending when Act XXXI of 1950 became effective, the Court held that the application had to be dealt with and finally disposed of in accordance with that Act. The order of confirmation issued in 1952 therefore remained subject to the revisional power conferred on the Custodian-General by section 27 of the same Act. The Court further noted the question of whether a right of appeal involving a pending action could be treated as a substantive right vested in the litigant at the commencement of the action.

The judgment concerned a civil appeal (No. 195 of 1954) filed by special leave against the order dated 20 May 1953 of the Custodian-General of Evacuee Property, New Delhi, which had revised an earlier order of the Additional Custodian of East Punjab, Delhi, dated 20 March 1952. The matters for determination were twofold: first, whether the Custodian-General possessed the revisional authority that he claimed to exercise; and second, whether the merits of the Custodian-General’s order warranted interference by this Court. The appellant, identified as Mrs Indira Sohanlal, was a displaced person from Lahore who claimed ownership of a house in Lahore known as 5, Danepur Road. The respondent, 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. According to the record, an oral exchange of the house for the agricultural land took place on 10 October 1947, after which Malik Sir Firoz Khan Noon is said to have taken possession of the Danepur Road house and the appellant is said to have taken possession of the agricultural land, presumably by attornment of the tenants actually cultivating it. Under section 5-A of the East Punjab Evacuees’ (Administration of Property) Act, 1947, as amended in 1948 and applied to Delhi, such a transaction required confirmation by the Custodian. Consequently, the appellant filed an application on 23 February 1948 with the Additional Custodian of Evacuee Property (Rural), Delhi, seeking confirmation of the exchange and the resultant transfer of the agricultural land to her. The procedural history continued with the issuance of the revision and the subsequent appeal, which is now before this Court for determination.

According to the record, an oral exchange of the properties in question took place on 10 October 1947 between the two parties. Following that exchange, Malik Sir Firoz Khan Noon is said to have taken possession of the house situated on Danepur Road, while the appellant is said to have been placed in possession of the agricultural lands in Punjab Khore, apparently by way of attornment of the tenants who were then actually cultivating those lands. Under section 5-A of the East Punjab Evacuees’ (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), as amended in 1948 and applied to the State of Delhi, any such transaction required confirmation by the Custodian. In compliance with that statutory requirement, the appellant filed an application on 23 February 1948 with the Additional Custodian of Evacuee Property (Rural), Delhi, seeking confirmation of the exchange and the consequent transfer of the agricultural land to her. Subsequent to the issuance of certain rules that mandated a prescribed form and specific particulars, the appellant submitted an amended application on 14 August 1948 furnishing the required details. The record does not explain why the Additional Custodian failed to dispose of this application until 20 March 1952, when he finally issued an order confirming the exchange. In the interim, the Revenue Assistant to the Additional Custodian prepared a proposal to allot the agricultural lands of the village Punjab Khore, including those covered by the exchange, to a number of refugee-cultivators. The Additional Custodian approved this proposal on 12 June 1949, and on 27 October 1949 a detailed allotment was made to twenty-six individual allottees. A report of the Rehabilitation Patwari dated 27 February 1950, placed on the record, shows that the allottees entered into possession of their respective parcels, cultivated the land and settled in the village. After the confirmation order of 20 March 1952, the appellant filed another application on 5 May 1952 requesting that possession be handed over to her and that a warrant of delivery of possession be issued against the various allottees and tenants. The Naib Tehsildar recommended that possession be granted to the appellant and advised that the Patwari be informed to take appropriate action, although the record does not indicate whether such steps were actually taken or whether possession was ultimately delivered. At this juncture, a notice under section 27 of the Administration of Evacuee Property Act, 1950 (Central Act XXXI of 1950) appears to have been issued by the Custodian-General to the appellant, requiring her to show cause why the Additional Custodian’s order of 20 March 1952 confirming the exchange, together with the subsequent orders of 20 July 1952 and 28 July 1952 that sanctioned mutation and other consequential orders, should not be set aside.

The notice issued by the Custodian-General required the appellant to show cause on 4 May 1953. At the request of the appellant’s counsel the matter was adjourned to 12 May 1953. Subsequently a more detailed notice dated 14 May 1953 was served, in which the various grounds for setting aside the earlier orders were enumerated. On 20 May 1953 the learned Custodian-General delivered the order that is presently before the Court, whereby he set aside the earlier order of confirmation. In that order he also directed the Custodian to determine the case only after giving notice to every person who might be affected by the confirmation of the transaction. The earlier part of the order clarified that “persons affected” meant those who had been allotted the lands in dispute by virtue of the Additional Custodian’s order of 1949, which had been referred to earlier. The Court therefore needed to examine the first issue raised, namely whether the Custodian-General was authorised to exercise revisional powers in the circumstances described.

To understand that issue, the Court traced the legislative history that governed the administration of evacuee property. The massive and unprecedented movement of populations between West Punjab and East Punjab after Partition left large numbers of movable and immovable properties, both agricultural and non-agricultural, in the hands of the governments. Consequently the governments of the time felt compelled to enact broad legislation, establish administrative mechanisms, and formulate policies to address the situation as it evolved. The earliest relevant statute was the East Punjab Evacuees (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), which became effective on 12 December 1947. That Act was subsequently amended by the East Punjab Evacuees’ (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No. II of 1948) and later by the East Punjab Evacuees’ (Administration of Property) (Amendment) Act, 1948 (East Punjab Act XXVI of 1948). These amendments inserted sections 5-A and 5-B, which required confirmation of any transaction involving evacuee property and provided a right of appeal or revision from such confirmation. The provisions were expressly made applicable to transactions occurring on or after 15 August 1947. The Punjab legislation was extended to the State of Delhi through Central Government notifications issued under the Delhi Laws Act on 29 December 1947, 28 January 1948 and 22 April 1948. When these measures were applied to the Chief Commissioners’ Provinces, they were repealed by the Administration of Evacuee Property (Chief Commissioners’ Provinces) Ordinance, 1949 (Central Ordinance No. XII of 1949), which came into force for Delhi on 13 June 1949. That ordinance was later repealed and replaced by a fresh central ordinance applicable to the provinces, thereby setting the legislative context for the Custodian-General’s powers.

All provinces of India except Assam and West Bengal were brought within the scope of the Administration of Evacuee Property Ordinance, 1949 (Central Ordinance No XXVII of 1949). This ordinance became effective on 18 October 1949. Subsequently, the Central Ordinance No XXVII of 1949 was repealed and replaced by the Administration of Evacuee Property Act, 1950 (Central Act XXXI of 1950), which entered into force on 17 April 1950. It is important to note that prior to the enactment of Central Ordinance XXVII of 1949, the law relating to evacuee property was governed by separate provincial statutes and administered by the individual provincial governments. The 1949 ordinance introduced a uniform, centralized legal framework and a centralized system of administration, a structure that was continued under the 1950 Act. A key feature of this centralised administration was the creation of the post of Custodian-General, who was given the authority to hear appeals and to revise decisions made by the provincial custodians. Section 5 of Central Ordinance XXVII of 1949 empowered the Central Government to appoint a Custodian-General of Evacuee Property for India, tasking him with the duties imposed by the ordinance. By contrast, the appointment of provincial custodians, as well as additional, deputy or assistant custodians, remained the responsibility of the respective provincial governments. The same arrangement was preserved in Sections 5 and 6 of the Central Act XXXI of 1950, which reiterated the roles and powers of the Custodian-General and the provincial custodians.

The first legislative intervention that addressed transactions by evacuees concerning evacuee property in East Punjab and Delhi was made through the East Punjab Evacuees (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No II of 1948) and the East Punjab Evacuees’ (Administration of Property) (Amendment) Act, 1948 (East Punjab Act XXVI of 1948). These measures inserted two new provisions, numbered 5-A and 5-B, into the East Punjab Act XIV of 1947. The text of Section 5-A is reproduced below: “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. (3) The Custodian shall reject any application made after the thirty first day of March, 1948 or after the expiration of two months from the date the transaction was entered into, whichever is later. (4) The Custodian shall hold a summary enquiry into an application, which is not rejected under subsection (3) and may decline to confirm the transaction if it appears to the Custodian that- (a) the transaction was not a bona-fide one for valuable consideration; or (b)”.

The Custodian could refuse to confirm a transaction if, in his opinion, the transaction was prejudicial to the prescribed objects, or for any other reason that he set out in writing. If the Custodian chose to confirm the transaction, he was authorized to do so either without conditions or subject to such conditions and terms as he deemed appropriate. Where the Custodian issued an order under the relevant subsections and did not pronounce it in the presence of the applicant, the Custodian was required to give the applicant immediate written notice of the order. Section 5-B provided that when an Assistant or Deputy Custodian of Evacuee Property made an original order under section 5-A, any aggrieved person could appeal the order within sixty days from the date of the order. The appeal was to be made to the Custodian of Evacuee Property, who could either decide the appeal himself or refer it to the Additional Custodian of Evacuee Property for disposal. Subject to the decision on such an appeal, the order made by the Assistant or Deputy Custodian, as well as any original or appellate order made by the Custodian or Additional Custodian, was declared final and conclusive. The two sections together required that any transfer of property by an evacuee or a person intending to become an evacuee after 15 August 1947 be confirmed, and they provided a mechanism for appeal or revision of the confirmation orders while also making those orders final and conclusive once the appeal process was exhausted. This requirement of confirmation was later retained, with minor non-material modifications, in sections 25, 38 and 40 of subsequent legislative enactments. However, the rules governing the appealability or revisability of confirmation orders have evolved over time. Section 5-B of the East Punjab Act XIV 1947 made clear that an original order of the Custodian or Additional Custodian could not be appealed or revised and was expressly final. Central Ordinance No. XII of 1949, under section 30(1)(b), introduced a right of appeal to the High Court against an original order of a Custodian, Additional Custodian or authorised Deputy Custodian, but it did not provide for any revisional remedy. By contrast, Central Ordinance No. XXVII of 1949 altered the position substantially. Section 24 of that ordinance allowed any person aggrieved by an order made under section 38—corresponding to the earlier section 5-A of the East Punjab Act—to file an appeal, in the manner and within the time prescribed, to the Custodian-General when the original order had been issued by the Custodian, Additional Custodian or an authorised Deputy Custodian. Section 27 of the same ordinance conferred revisional powers on the Custodian-General.

The earlier statutory framework limited the jurisdiction of the Custodian-General to appellate orders only, and it expressly did not confer any authority to revise an original order that had been issued by the Custodian. However, when the Central Act XXXI of 1950 repealed and replaced the earlier ordinance, the legal position changed. Under the new Act the procedure for filing an appeal, contained in section 24, remained essentially the same as it had been under the previous law for the purposes of this case. The major alteration concerned the power of revision. Section 27 of the 1950 Act introduced a revisional jurisdiction for the Custodian-General, and the provision was drafted as follows: “27. (1) The Custodian-General may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding in which any district judge or Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit: Provided that the Custodian-General shall not pass an order under this sub-section prejudicial to any person without giving him a reasonable opportunity of being heard......................................” The issue before the Court related to whether the Custodian-General could validly exercise these revisional powers in the present dispute, given the statutory provisions just quoted.

It was not contested that Malik Sir Firoz Khan Noon was an evacuee and that the property situated in Punjab Khore, which formed the subject of the exchange, was evacuee property. Although the exchange was alleged to have occurred on 10 October 1947, a date at which there were no prohibitions preventing an evacuee from dealing with property left behind, the Court noted that section 5-A of the East Punjab Act XIV of 1947 had been made retrospective to 15 August 1947. Consequently, that provision applied to the transaction in question and required that the exchange be confirmed under the same section and under the corresponding provisions in later legislation. In compliance with this requirement, the appellant filed an application for confirmation on 23 February 1948, and a subsequently amended application was filed on 14 August 1948. Both applications were finally disposed of on 20 March 1952 by the Additional Custodian, Delhi, who issued an order confirming the exchange. That order was later revised by the Custodian-General on 20 May 1953. The appellant’s counsel principally argued that the revision powers granted to the Custodian-General by section 27 of the Central Act XXXI of 1950 should not apply to an order issued by the Custodian or Additional Custodian on an application that had been made long before the Custodian-General’s office was created and endowed with revisional authority. It was urged that on the date when the application for confirmation was first made on the 23rd February,

In this case, the appellant argued that an order issued on 23 February 1948 under section 5-A by the Custodian or Additional Custodian was a final and conclusive order pursuant to section 5-B. The appellant maintained that even though the statutory provisions governing such orders were later repealed and re-enacted, that subsequent legislative change could not disturb the appellant’s entitlement to a final order on her application for confirmation. To support this position, reliance was placed on section 6 of the General Clauses Act and on the Privy Council decision in Colonial Sugar Refining Co. Ltd. v. Irving(1). The court observed that to decide whether the contention was valid, it was necessary to trace the sequence of legislative measures that had superseded the earlier law. First, the East Punjab Act XIV of 1947 was replaced by Central Ordinance No. XII of 1949, which dealt with the Chief Commissioners’ Provinces. Section 40 of that ordinance expressly repealed the East Punjab Evacuee’s (Administration of Property) Act, 1947 as it applied to Ajmer-Merwara and Delhi, but it also provided that, notwithstanding the repeal, any action taken or penalty imposed under the earlier Act would be deemed to have been taken or imposed under the new ordinance as if the ordinance had been in force at the relevant time. Subsequently, Central Ordinance No. XXVII of 1949 repealed the Administration of Evacuee Property Ordinance, 1949 (XII of 1949) in the Chief Commissioners’ Provinces. Section 55 of that ordinance reiterated the same saving provision, stating that any act or penalty effected under the repealed ordinance would continue to be treated as if it were done under the new ordinance. Finally, Central Ordinance No. XXVII of 1949 itself was repealed by Central Act XXXI of 1950, which was later amended by an additional ordinance and by a further act in the same year. Section 58 of the amended act served as the repealing clause for the 1949 ordinance, and the court noted the specific language of that provision as relevant to the question of the continuation of earlier rights.

The court then turned to the wording of section 58 as it appeared in the amended Central Act XXXI of 1950. The material portion of that clause read: “58. (1) The Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) …”. Although the excerpt provided in the judgment stopped at this point, the court indicated that this clause, like the earlier repealing sections, contained a saving provision intended to preserve the legal effects of actions taken under the repealed ordinance. The court emphasized that the presence of such saving language in each successive repeal was a crucial factor in determining whether the appellant’s right to a final and conclusive order, originally granted under section 5-A, remained unaffected by the later legislative changes. Accordingly, the court indicated that a careful analysis of the continuity clauses in sections 40, 55 and 58 was essential to resolve the appellant’s claim that the later repeal and re-enactment of the governing statutes could not invalidate the earlier final order.

The provision declared that the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) was hereby repealed. Clause (2) was omitted in the text. Clause (3) stated that the repeal of that Ordinance shall not affect its previous operation, and that, subject to that, anything done or any action taken in the exercise of any power conferred by or under the Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred 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.

Thus, in the sequence of legislative changes governing evacuee property in Delhi, the law moved from the East Punjab Act XIV of 1947 to the present Central Act XXXI of 1950, and there were three successive repeals. The first two repealing provisions were almost identical in wording, while the third differed in two respects. First, the earlier repeals contained a clause providing that any penalty incurred or proceeding commenced under the repealed law would be deemed to be a penalty incurred or proceeding commenced under the new law as if the new law were in force at the time; this penalty clause was omitted in the third repeal. Second, the clause deeming that anything done or any action taken under the previous law would be treated as done under the new law was retained, but it was now expressly qualified by the statement that the repeal would not affect the previous operation of the repealed law, which in context refers specifically to the continuation of acts already performed.

The question before the Court was what legal result followed from these provisions. Before answering, the Court considered whether section 6 of the General Clauses Act could be invoked. The Court recalled its earlier decision in State of Punjab v. Mohar Singh, noting the passage: “Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining –whether they indicate a different intention.” (1955) 1 S.C.R. 893, 899. The Court explained that the inquiry is not whether the new Act expressly preserves old rights and liabilities, but whether it manifests an intention to destroy them. Accordingly, the Court proceeded to examine the language of subsection (3) of section 58 of Central Act XXXI of 1950, which attempted to give both a negative effect, drawn from section 6(b) of the General Clauses Act, and a positive deeming effect that seemed contrary to that section.

In this matter, the Court observed that the broad rule excluding the application of section 6 of the General Clauses Act where an enactment is repealed and subsequently replaced by fresh legislation cannot be accepted. The Court held that section 6 remains applicable even after a repeal followed by new legislation, unless the newer law clearly shows an intention that is incompatible with or contrary to the effect of section 6. Such incompatibility, the Court explained, must be discerned by examining all relevant provisions of the new statute. The Court noted that sub-section (3) of section 58 of Central Act XXXI of 1950 attempts to define the consequences of the repeal in both negative and positive terms. The negative part, concerning “the previous operation” of the earlier Ordinance, appears to have been derived from section 6(b) of the General Clauses Act. In contrast, the positive part introduces a “deeming” provision that runs counter to the purpose of section 6. Under the General Clauses Act, for matters within its scope, the position should be assessed as if the repealing Act had never been enacted; however, under section 58 of Central Act XXXI of 1950, the position—especially regarding the positive portion—must be evaluated as if the repealing Act were in force on the earlier relevant date. Consequently, when a repealing provision both partially preserves the operation of the old law in negative terms and simultaneously affirms the operation of the new law in positive terms, the provision may be regarded as self-contained and expressive of an intention to exclude the operation of section 6 of the General Clauses Act. The Court therefore concluded that section 6 could not be invoked in the present case. Turning to the meaning of section 58(3) of Central Act XXXI of 1950, the Court admitted that the provision is not free from difficulty and that such a clause in a repealing Act is rather unusual. Counsel for the appellant argued that the positive part of the provision—“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 the powers conferred 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”—should apply only to purely administrative matters, while the case at hand fell within the first part, which states that “the repeal… shall not affect the previous operation of the (repealed) Ordinance.” The appellant maintained that an application for confirmation filed in 1948, which remained pending until the commencement of Act XXXI of 1950, should be disposed of according to sections 5-A and 5-B of the East Punjab Act XIV of 1947, as amended in 1948, and that the order of confirmation issued by the Additional Custodian in that pending application was final and not subject to appeal or revision. The appellant further contended that the filing of the 1948 application vested a right to determination under section 5-A, with the finality and conclusiveness of section 5-B attaching to that determination, drawing upon the “previous operation” of the repealed law and relying on the principle articulated by the Privy Council in Colonial Sugar Refining Co. Ltd. v. Irving. The Court, however, found these contentions untenable, noting that the Privy Council decision dealt with the right of appeal in a pending action and did not support the appellant’s interpretation.

In the matter before the Court, the appellant argued that, under section 5-B of the East Punjab Act XIV of 1947, as amended in 1948, an order of confirmation issued by the Additional Custodian in respect of an application that remained pending was not subject to any further appeal or revision and therefore became final and conclusive. The appellant further contended that, because the application had been filed in 1948, a vested right arose for the determination of that application under section 5-A, and that the determination, once made, acquired the attributes of finality and conclusiveness provided by section 5-B. According to the learned counsel, this result followed from the “previous operation” of the repealed law and was consistent with the principle articulated by the Privy Council in the case of Colonial Sugar Refining Co. Ltd. v. Irving (1). The counsel relied on that authority to support the view that a right to appeal, if existing at the time a pending action is instituted, cannot be retrospectively taken away except by clear words or by necessary implication.

The Court, however, found these submissions untenable. It observed that the decision in Colonial Sugar Refining Co. Ltd. v. Irving (1) concerned the existence of a right of appeal against an order already made in a pending proceeding. In that case the Privy Council treated the appeal right as an existing right and held that the appellant could not be deprived of it retrospectively unless the statute expressly or necessarily implied such deprivation. The Court noted that the same doctrine was reaffirmed in Delhi Cloth & General Mills Co. Ltd. (1) [1905] A.C. 369, where the Privy Council explained that any provision applied retrospectively which would remove the existing finality of orders that were final when the new statute commenced would therefore affect existing rights. The Court further referred to the decision in Delhi Cloth & General Mills Co. Ltd. v. Income-Tax Commissioner (1), which illustrated that the orders of the High Court dated 6 January 1926 and 12 January 1926 were final at the time they were passed, and that a later amendment to the Income-Tax Act, which introduced section 66-A on 1 April 1926, could not revive a right of appeal to the Privy Council because the orders had already acquired finality. The Court emphasized that finality attached to those orders the moment they were issued, prior to the amendment.

Applying that reasoning to the present case, the Court observed that the factual situation differed. The action in question remained pending when Central Act XXXI of 1950 came into force, and no order had been rendered that could acquire the status of finality or conclusiveness under section 5-B of the East Punjab Act. Moreover, the Court pointed out that any possibility of finality was expressly negated by the repealing provision contained in the Central Ordinance No. XII of 1949 and Central Ordinance No. XXVII of 1949, which declared that a pending action would be treated as if it had been commenced under the new ordinance. Consequently, the Court concluded that the appellant’s reliance on the earlier authority was misplaced, and that the attribute of finality under section 5-B could not be said to exist in the present circumstances.

The Court observed that Central Ordinance No. XII of 1949 and Central Ordinance No. XXVII of 1949 each contained a specific provision stating that any action which was pending at the time the Ordinance came into force would be treated as if it had been started under the new Ordinance, as though the Ordinance had been in effect at the moment the action began, and therefore the pending action had to be continued under the new statutory scheme. Both Ordinances also contained clauses that authorised an appeal against an order made under the earlier law; the first Ordinance gave a right of appeal, and the second Ordinance additionally empowered a revisional authority to review an appellate order issued by the Custodian.

Counsel for the appellant argued that, even accepting those provisions, the finality and conclusiveness which would normally have attached to an order made under section 5-A of the East Punjab Act, had the order been issued before the promulgation of Ordinance XII of 1949, were only modified to the extent that the order became subject to appeal and not to revision. The Court, however, noted that once the attribute of finality attached to an order is altered by later legislation, it is immaterial that the alteration first arose through a provision for appeal and later through provisions for both appeal and revision. The Court found it difficult to regard those statutory changes as anything more than procedural modifications.

The Court further explained that, while one might theoretically view a right of appeal in a pending action as a substantive right that vests in the litigant at the moment the action commences, the Court did not adopt that view. Moreover, no vested right to obtain a final determination can be said to arise for a litigant merely by instituting the action. Section 5-B of the East Punjab Act XIV of 1947 expressly provides that finality attaches to an order only at the time the order is actually made. Even if the law were to recognise a right to a determination possessing the attribute of finality, such a right could not be described as vested or accrued until the determination is in fact rendered; only then does the right to finality become a present right, as explained in Delhi Cloth and General Mills Co. Ltd. v. Income-Tax Commissioner.1

Consequently, the Court held that the principle articulated in Colonial Sugar Refining Co. Ltd. v. Irving2 could not be invoked to support the appellant’s position in the present circumstances. The Court also rejected the attempt to fit the matter within the expression “previous operation of the repealed law”. According to the appellant’s counsel, the argument was not about the “previous operation of the repealed law” but rather about the “future operation of the previous law”. The Court found no justification for such an interpretation. Finally, the Court observed that if, with respect to the pending application in this case, the repealed law were to be held applicable by reason of the first part of section 58(3), a further question would arise concerning the effect of that continuation, a question that the Court would need to consider.

The Court observed that the authorities competent to consider the application were limited to the Custodian and, on appeal, to the Custodian-General, both of whom functioned only under the repealed law. Because the repeal eliminated those offices, only the second portion of section 58(3) of Act XXXI of 1950 persisted in treating them as if their appointments had been made under the new Act, a position that could scarcely be contested. The Court explained that any future operation of the repealed law could not give these officers any function. By comparing the language of section 58 of the 1950 Act with section 6 of the General Clauses Act, the Court noted that, had the legislature intended to allow pending proceedings to continue under the old law or to create a vested right of finality, the negative clause of section 58(3) would not have been limited to preserving only the “previous operation” of the repealed law. Instead, it would have incorporated provisions from sub-sections (c), (d) and (e) of section 6 and would have expressly provided for continuation of the old law in respect of pending matters. Since no such borrowing could be made without contradicting the positive portion of section 58(3), the Court concluded that the appellant could not rely on the principle set out in Colonial Sugar Refining Co. Ltd. v. Irving(1), nor could his case fall within the scope of the first part of subsection (3) of section 58 of the 1950 Act.

The Court then turned to the interpretation of the second, positive portion of section 58(3), which provides that any act or action taken under the repealed Ordinance shall be deemed to have been done under the powers conferred by the 1950 Act as if that Act had been in force at the time of the act or action. To understand this provision, the Court found it necessary to consider the overall scheme of the repealed Ordinance, the powers it conferred, and the nature of acts that might be taken under it. The powers under the Ordinance could be grouped into several broad categories. First, the Ordinance authorized the making of appointments, as set out in sections 5 and 6. Second, it empowered the authority to conduct enquiries and to issue declarations or notifications, covered by sections 7, 16, 19 and 38. Third, it allowed the issuance of various consequential or administrative orders under sections 9, 10, 11, 12 and 21. Fourth, it gave the authority to hear and dispose of appeals, reviews or revisions under sections 24, 25, 26 and 27. Finally, the Ordinance vested in the Central Government powers to grant exemptions, give directions, take action regarding evacuee property, delegate authority and make rules, as provided in sections 49, 50, 51, 52 and 53. The Court emphasized that this enumeration was illustrative rather than exhaustive, but it served to clarify the legislative framework within which section 58 of the Act must be read.

In the judgment, the Court listed the categories of powers that were contained in the repealed Ordinance. The first category authorised the making of appointments under sections five and six. The second category permitted the making of enquiries under sections seven, sixteen, nineteen and thirty-eight, and also allowed the issuance of declarations or notifications as a result of those enquiries. The third category covered the issuance of various consequential or administrative orders, which were found in sections nine, ten, eleven, twelve and twenty-one. The fourth category gave authority to hear and dispose of appeals, reviews or revisions under sections twenty-four, twenty-five, twenty-six and twenty-seven. The fifth category comprised powers of the Central Government to grant exemptions, issue directions, take action concerning evacuee property, delegate powers and make rules, as set out in sections forty-nine, fifty, fifty-one, fifty-two and fifty-three. In addition, the Court noted that other provisions created further consequences such as vesting property in the Custodian, the discharge of liability by payment to the Custodian, attachment and similar effects, which were provided for in sections seven (sub-section two), eight, eleven, thirteen, sixteen (sub-section three), nineteen (sub-section three), twenty and twenty-two, among others. The Court emphasized that this enumeration was not meant to be exhaustive; rather, it was intended only to illustrate the overall scheme of the Ordinance so that section fifty-eight of the later Act could be properly understood.

The Court then observed that rules had been framed under section fifty-three of the Ordinance, and those rules enabled the exercise of the various powers, the performance of acts and the taking of actions contemplated by the Ordinance. When interpreting section fifty-eight (sub-section three) of Central Act XXXI of 1950, which repealed the Ordinance, the Court held that the second part of that provision could not be limited merely to administrative actions, as the appellant’s counsel had suggested. Instead, the Court explained that the second part of section fifty-eight (sub-section three) referred to the entire range of things that could be done or actions that could be taken under the former Ordinance and its rules, while the first part dealt with the legal consequences that arose under the Ordinance or its rules from particular facts or completed acts. In general terms, the Court described the scheme of section fifty-eight (sub-section three) as meaning that every matter falling within the scope of the new Act must be treated as arising and dealt with under the new law, except to the extent that certain consequences had already occurred or acts had been completed before the new law came into force, in which case the old law would continue to apply.

Applying that interpretation, the Court concluded that the appellant’s application for confirmation, which was pending on the date when Central Act XXXI of 1950 became effective, had to be considered and decided under the new Act. Consequently, the confirmation order issued in 1952 was subject to the revisional authority of the Custodian-General under section twenty-seven of the same Act. The Court further noted the appellant’s contention that the revisional power could not be exercised because an appeal was provided for but none had been filed. The appellant argued that, in such circumstances, it should have been open to either the Assistant Custodian who appeared before the Custodian-General in support of the revision notice or the allottees of the property, whose interests the revisional order affected, to file an appeal as aggrieved persons.

Section 27 of the Act was described as having very wide terms, and the Court held that it could not be read as being subject to any limitation such as the requirement of a pending appeal or the existence of an aggrieved person. The Court further explained that the scope of the revisional power could not be confined solely to questions of jurisdiction or illegality, as the provision itself permits the Custodian-General to use his revisional authority “for the purpose of satisfying himself as to the legality or propriety of any order of the Custodian.” Accordingly, the Court was of the view that the argument advanced by counsel for the appellant—that the Custodian-General’s exercise of revisional powers in the present case was without jurisdiction or illegal—could not succeed. Turning then to the merits of the revisional order that was under appeal, counsel for the appellant challenged the order on several bases. He argued that the ground on which the Custodian-General set aside the Additional Custodian’s order—namely, the alleged failure to give notice to the prior allottees—was untenable. He maintained that the allottees did not possess any interest in the land that would enable them to contest the confirmation application; they were at most lessees for a three-year term that was about to end shortly after the confirmation order was issued by the Additional Custodian. He pointed out that when the application for confirmation was filed on 23 February 1948, a general notice was given by the beating of drums, the affixing of a notice in the locality, and the publication of a notice in the Indian News Chronicle. At that time, the persons in possession of the land were the former tenants, who either attorned to the appellant or left the village, while the allottees only entered possession much later and pending the disposal of the confirmation proceedings, presumably subject to its outcome. Counsel further observed that even after the rules under Act XXXI of 1950 came into force, the Custodian retained discretion to give notice to parties other than the transferor and transferee if he considered them to have an interest. Since the same officer, Shri R. Dayal, made both the allotment and the confirmation, counsel argued that he had properly exercised his discretion by not giving notice to the allottees, given the imminent expiry of their three-year possession term. He strongly urged that, in light of these considerations and the categorical finding by the Custodian-General that the transaction was perfectly bona fide, the setting aside of the confirmation order—against which no appeal had been filed—and the consequent disturbance of the appellant’s vested property rights amounted to a perverse exercise of the revisional power.

The learned Solicitor General appearing for the respondent contended that the finding of the Custodian-General about the bona fides of the transaction

The respondent argued that the Custodian-General’s finding that the transaction was bona-fide was only tentative. It was asserted that the allottees, although placed provisionally in possession for only three years, had acquired what is now recognised as a quasi-permanent interest in the land. The respondent maintained that the allottees possessed a genuine interest in opposing the confirmation sought, because the confirmation concerned a large tract of agricultural land whose allocation would diminish the pool of agricultural lands available for the rehabilitation of displaced cultivators. Accordingly, the respondent contended that confirming such a transaction was contrary to the Government’s policy and directives, and that under the circumstances the Additional Custodian should not have granted confirmation lightly, without giving notice to the allottees and without a proper consideration of the relevant policies and directives.

In response, counsel for the appellant submitted that the alleged policies or directives were not matters for the Custodian to consider in these quasi-judicial (if not judicial) proceedings, unless such policies or directives had been incorporated into rules made by the Central Government under section 56(2)(q). The appellant pointed out that no such rules had been prescribed by the relevant dates. Moreover, the appellant highlighted that the Custodian-General, in his order under appeal, had himself discounted the usefulness of any reference to notifications and directives for the purpose of the present case. The appellant further urged that the subjects which may be taken into account are those regulated by section 40(4) of Act XXXI of 1950, and that clause (c) of that section should be interpreted ejusdem generis with clauses (a) and (b).

The Court indicated that it would not express an opinion on the merits of these arguments. It observed that the order under appeal was issued by virtue of the wide powers of revision conferred on the Custodian-General by section 27 of the Act. Having found the jurisdiction of the Custodian-General to be valid, the Court noted that it would normally be reluctant to interfere with the order on its merits. Nevertheless, the Court found the Custodian-General’s order difficult to sustain. It observed that the learned Solicitor-General had been compelled to advance arguments in support of the order that could not be clearly discerned from the order itself. The Court also found it difficult to determine from the order whether the remand to the Additional Custodian for reconsideration, after notice, constituted a general, open remand requiring a fresh consideration of all merits, or a limited remand with specific constraints, and if limited, what those constraints were. If the remand was intended to be open, as the concluding portion of the order seemed to suggest, the Custodian-General’s definitive findings on points (1) and (2) and his expressed doubt about the utility of re-examining the various notifications and directives highlighted by the Assistant Custodian would make it difficult for any Custodian on remand to address those matters.

In this case, the Court observed that if the remand were limited only to a narrow set of issues, it would appear to serve no substantial purpose. Consequently, considering the interests of fairness to the learned Custodian-General, the Court concluded that the appropriate step was to set aside the order that had been appealed and to remit the entire matter back to him for fresh consideration. The Court directed that, on such fresh consideration, the Custodian-General must provide both parties with a full opportunity to present all of their respective points of view. If, after rehearing the matter, the Custodian-General decides that another remand to the Custodian is necessary, he must state clearly and expressly the precise matters that are to be examined by the Custodian. The Custodian-General may also evaluate whether he can finally dispose of the case himself, and, if he deems it appropriate, he may request a report from the Custodian on specific issues that have been identified. Such a report, if obtained, would be intended to prevent any further delay caused by additional appeals or revisions in a proceeding that had already become protracted. Accordingly, the Court allowed the appeal, set aside the order of the Custodian-General, and remanded the case to him for reconsideration and disposal in accordance with this judgment. Finally, the Court ordered that no costs would be awarded to either side.