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SUPREME COURT OF INDIA
28th October 1955.
S.R. DAS, ACTG. C.J.I., BOSE, JAGANNADHA DAS, IMAM AND CHANDRASHEKHARA AIYAR, JJ.
Sadhu Ram, Petitioner,
Versus
The Custodian-General of Evacuee Property, Respondent.
Pent.No. 306 of 1954.
Anno: AIR Com, Const. Ind, Arts. 226 and 32 No.10, 16.
Advocates appeared
Mr. Kundan Lal Mehta and Mr. B.R. L. lyengar, Advocates for Petitioner; Mr. C. K. Daphtary, Solicitor-General of India (Mr. Porus A. Mehta and Mr. R. H. Dhebar, Advocates, with him), for Respondent.
A purchased from B, a muslim evacuee, certain land in District Kamal, Punjab. The sale deed was executed on 6-9-1947, and registered on 9-9-1947, before B left for Pakistan. Possession was transferred on the execution of the sale-deed, and mutation was made by the revenue authorities on 23-1-1948. East Punjab Evacuees (Administration of Property) Act 1947 (E. P. Act 14 of 1947) came into force on 12-12-1947, and it was subsequently amended by the East Punjab Evacuees (Administration of Property) (Amendment) Ordinance, 1948 which came into force on 16-1-1948. This Ordinance gave place to the East Punjab Evacuees (Administration of Property) (Amendment) Act, 1948 (East Punjab Act 26 of 1948) which came into force on 11-4-1948. Section 5-A of t he Act as thus amended provided:
"(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 lawfuIly authorised by him."
The section thus purported to be retrospective. "A made an application for confirmation of the transfer but it was rejected. In an application for a writ under Art. 32 of the Constitution, A contended that on inquiry his transaction had been found to be genuine by the official concerned and that the retrospective operation of S. S-A in such circumstances amounted to deprivation of his property without any conpensation and was, therefore, hit by Art. 31 of the Constitution ..
Held (dismissing the petition) : (1) Section S-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, it 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 Art. 19 of the Constitution and not under Art. 31.
(2) 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 15-8-1947, 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.
(3) The retrospectivity commencing from 15-8-1947, is also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property laws. - Articles 31, 19, 32-East Punjab Evacuees (Administration of Property) Act (14 of 1957) as amended by Act 26 of 1948, Section S-A- Validity-Whether application under Art. 32 lies.
S. purchased from a muslim evacuee certain land in Punjab by a registered sale• deed executed on 6-9-1947, and registered on 9-9-1947. Mutation was made by the revenue authorities on 23-1-1948. East Punjab Evacuees (Administration of Property) Act 1947 (East Punjab Act 14 of 1947) came into force on 12-12-1947. It was amended by the East Punjab Evacuees (Administration of Property) (Amendment) Act, 1948 (East Punjab Act 26 of 1948) which came into force on 11-4-1948. By this a new section 5-A was inserted in the East Punjab Act 14 of 1947 which provided as follows:
"(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."
An application for confirmation was made by the petitioner on 23-3-1948. The Assistant Custodian, Karnal, on being satisfied about the genuineness of the transaction, recommended confirmation. But the Additional Custodian, Jullundur, by his order dated 11-2-1953, rejected the application for confirmation acting on the Custodian-Generals circular dated 9-3-1950, under which a policy of not confirming trans- actions relating to agricultural property was enunciated. This was affirmed by the Assistant Custodian-General on an application to him for revision.
Held: (1) 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, it 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 Art. 19 of the Constitution and not under Art. 31.
(2) 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 15-8-1947, the requirements 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 retrospectively being within the competence of the appropriate legislature.
The retrospectively commencing from 15-8-1947 is also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property Laws. (3) The contention 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 S. 5-A of the Act, is not sufficient for application under Art. 32. Even if this contention be correct, this does not raise any question of violation of fundamental rights. - Article 32-Application under- Maintainability-East Punjab Evacuees (Administration of Property) Act (14 of 1947) as amended by Act 26 of 1948, S. 5-A.
Judgement
JAGANNADHADAS, J.: This is an application under Art.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, 2159,2171,2204 and 2206 with Shamlat rights in village Kaithal, District Karnal, Punjab. The sale deed was executed on 6-9-1947, and registered on 9-9-1947, before Imam-ud-din left for Pakistan.
The consideration therefore 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 23-1-1948. East Punjab Evacuees (Administration of Property) Act 1947 (East Punjab Act 14 of 1947) came into force on 12-12-1947. It was amended by East Punjab Evacuees (Administration of Property) Amendment) Ordinance, 1948 (East Punjab Ordinance 2 of 1948) which came into force on 16-1-1948.
This gave place to East Punjab Evacuees (Administration of Property) (Amendment) Act, 1948 (East Punjab Act 26 of 1948) which came into force on 11-4-1948. By these amendments a new Section, S. 5-A, was inserted in the East Punjab Act 14 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 transter 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 an 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 23-3-1948. The Assistant Custodian, Karnal, on being satisfied about the genuineness of the transaction, recommended confirmation. But the Additional Custodian, Jullundur, by his order dated 11-2-1953, rejected the application for confirmation acting on the Custodian-General s circular dated 9-3-1950, under which a policy of not confirming transactions relating to agricultural property was enunciated. This was affirmed by the Assistant Custodian-General on an application to him for revision.
2. 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 14 of 1947 was enacted and before the amendment therefore by insertion of S. 5-A came into operation. He contends that the retrospective operation of S. 5-A in such circumstances amounts to deprivation of his property, without any compensation and is, therefore, hit by Art.31 of the Constitution.
Whethever may have been the position if this matter had to be dealth 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 27-4-1955. It is unnecessary, however, to base our decision on this ground.
3. It appears to us clear that S. 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, it 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 confirmat
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