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PUNJAB & HARYANA HIGH COURT
Mehar Singh and A.N.Grover JJ.
Jagatjit Distilling And Allied Industries Ltd.Jagatjit Nagar
Versus
Deputy Custodian General, India
Civil Writ No. 1519 of 1961,
Decided On : JANUARY 4, 1963
EVACUEE PROPERTY - VESTING - AUTOMATIC VESTING - SECTION 8(2) OF THE ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - INTERPRETATION - EFFECT OF SECTION 7-A OF THE ACT - REVISION OF ORDERS - POWERS OF CUSTODIAN-GENERAL - DELEGATION OF POWERS - VALIDITY.
Fact of the Case:
The petitioner, a limited company, entered into negotiations with the erstwhile Kapurthala state for establishing a distillery. The company obtained certain concessions, including the transfer of 100 acres of land at half the price of acquisition. An agreement was entered into on 18th April 1948, and 47 acres of land were transferred to the company. In July/August 1948, pursuant to the order of the Chief Minister of the State, 53 acres of land, which had become evacuee property, were transferred to the company for which a sum of Rs. 39,356/11/6 was paid. The price was assessed by the Custodian of Evacuee Property at Rs. 52,476/- and the company was required to pay three-fourths (instead of one-half) of this price. The company made a representation that it was liable to pay only one-half of the price and asked for a refund of Rs. 13,119/- out of the amount of Rs. 39,356/11/6. On 30th April 1953, the Authorised Deputy Custodian (Judicial) of Evacuee Property, Pepsu, served the company with a notice under Section 7(1) of the Administration of Evacuee Property Act, 1950 (the Act) calling upon the company to show cause why 53 acres of land be not declared as evacuee property. The company defended the proceedings and gave evidence in support of its claim that the aforesaid land had been transferred in its favour in 1948. On 9th November 1953, the Deputy Custodian (Judicial) discharged the notice and held that the said land had already vested in the company under orders of the Government and the Custodian and no appeal or revision against that order had been filed, with the result that the transfer had become final. The mutations which had been made in favour of the company were sought to be reviewed under the order of the Collector, Kapurthala, dated 7th May 1958. The company filed a writ petition in the High Court challenging the proceedings taken by the Collector. The petition was dismissed as premature on the ground that the matter had yet to be finally decided by the Deputy Custodian-General. The Deputy Custodian-General made an order against the company holding that the property had not been properly transferred to the company under the orders of the Custodian and the state Government and that the price paid was not adequate. It was directed that the Additional Custodian should enquire into the proper value of the land in question and in case the deficiency in price was made up within the time prescribed by the Additional Custodian, the transfer of the disputed land would be considered to be valid but in the event of default the order of the Deputy Custodian (Judicial) would to set aside. The company filed a petition in the High Court impugning the orders made by the Deputy Custodian-General on 29th February 1960 and 9th October 1961.
Finding of the Court:
1. The land in dispute had vested in the Custodian under the provisions of the Kapurthala State Evacuees (Administration of Property) Act, 1948, and continued to vest under the provisions of Section 8(2) of the Administration of Evacuee Property Act, 1950. 2. The Deputy Custodian-General had jurisdiction to make orders in respect of the land in dispute. 3. Section 7-A of the Act did not apply to the present case as the land had already vested in the Custodian and the Deputy Custodian-General was only deciding that the sale or transfer was not valid. 4. The Deputy Custodian-General could revise the order of the Deputy Custodian (Judicial) in exercise of revisional powers after a lapse of a number of years. 5. The Deputy Custodian-General could delegate his powers to the Additional Custodian in the matter of assessing the price of the land.
Issues: 1. Whether the land in dispute had ever been declared to be evacuee property in accordance with law. 2. Whether the land vested in the Custodian and continued to vest later on so as to give jurisdiction to the Custodian Department to make orders with regard to it. 3. Whether the Deputy Custodian-General had jurisdiction to revise the order of the Deputy Custodian (Judicial) in exercise of revisional powers after a lapse of a number of years. 4. Whether the Deputy Custodian-General could delegate his powers to the Additional Custodian in the matter of assessing the price of the land.
Ratio Decidendi: 1. The provisions of Sections 7 and 1 of the Administration of Evacuee Property Act must be followed before a property could be declared to be an evacuee property or deemed to have been so declared. 2. Section 8(2) of the Administration of Evacuee Property Act, 1950, would have retrospective effect only in such cases in which some positive action had been taken under the relevant provisions or some effective decision had been given; otherwise the provisions of the Act were to apply and there would be no vesting unless a notice under Section 7 has been issued and a declaration has been made. 3. The theory of automatic vesting of evacuee property in the Custodian has received the imprimatur of the Supreme Court. 4. The words "at any time" in Section 27 of the Act, which confers powers on the Custodian-General, must be construed as meaning within a reasonable time. 5. Section 27 of the Act confers very wide and general powers on the Custodian-General and he can make such order as he thinks fit.
Final Decision: The petition was dismissed, but in the circumstances the parties were left to bear their own costs.
Grover, J.
1. In this petition under Article 226 of the Constitution, certain orders made by the Deputy Custodian-General have been challenged. They were made in connection with the transfer of certain property to the petitioner company by the Custodian of Evacuee Property under the provisions contained in the Kapurthala State Evacuees (Administration or Property) Act, 1948. A number of points have been raised in the petition and were argued before me by Mr. B. R. Tuli, the learned counsel for the petitioner, but one of the material points on the decision of which the fate of this petition may ultimately depend is whether the property in dispute could be declared to be evacuee property by the Deputy Custodian-General alter 7th May 1954 owing to the prohibition contained in Section 7-A of the Administration of Evacuee Property Act, 1950.
The position taken up on behalf of the respondents is that since the property in question was evacuee property, it vested automatically in the Custodian under the provisions contained In the Kapurthala State Evacuees (Administration of Property) Act, 1948, and that vesting continued under the provisions of Section 8(2) of the Administration of Evacuee Property Act, 1950. Mr. Tuli, however has placed reliance on a decision given by me in Darshan Lal V/s. R. L. Aggarwal, 1958-60 Pun LR 669. (AIR 1959. Punj 96). I had come to the conclusion that the provisions contained in Sections 7 and 1 of the Administration of Evacuee Property Act must be followed before 8 property could be declared to be an evacuee property or deemed to have been so declared, and that it was only when property had been declared to be evacuee property in accordance with the statute that it could be deemed to have vested in the Custodian. For the purpose of vesting, there must be something tangible and objective which the Custodian Department should have done, e.g., assumption of physical control, specification of a particular property as evacuee property, assumption of control by express notification and the like. Section 8(2) would have retrospective effect only in such cases in which some positive action had been taken under the relevant provisions or some effective decision had been given; otherwise the provisions of the Act were to apply and there would be no vesting unless a notice under Section 7 has been issued and a declaration has been made.
Tek Chand J. in Sham Singh V/s. Custodian-General etc., 1961-63 Pun LR 420 has dissented from my decision and the learned Additional Advocate-General has now relied mainly on that decision. Mr. Tulis position is that Section 8(2) would not apply to his case but the Additional Advocate-General maintains that it will. Therefore, it is essential to resolve the conflict between the two views which had been taken in this Court.
In Jair Kaur V/s. Sher Singh, ILR 1960 (2) Punj 615: (AIR 1960 SC 1118), their Lordships of the Supreme Court made certain observations at page 626 (of 1LR Punj): (at pp. 1122-1123 of AIR) which are pertinent- "We had recently occasion to disapprove of the action of a Division Bench in another High Court in taxing it upon themselves to hold that a contrary decision of another Division Bench on a question of law was erroneous and stressed the importance of the well-recognised judicial practice that when a Division Bench differs from a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision."
Although these observations were made with regard to decisions cf Division Benches, with great respect I consider that the ratio would apply even to decisions of Single Bencnes. At any rate, in my opinion it would create a good deal of difficulty for tha subordinate Courts if conflicting decisions are given by Single Judges. I would accordingly direct that the orders of the Hon ble the Chief Justice may be obtained for constituting a Division Bench for deciding this petition.
2. Mr. Tuli has pointed out that the A
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