Assistant Custodian v. Qazi Abdul Ghafoor — 1965 DIGILAW 284 (ALL)

JUDGMENT Jagdish Sahai, J. - This special appeal by the Assistant Custodian, Evacuee Property, Varanasi is direct,d against the judgment of S. N. Dwivedi, J. dated 23-9-1960 allowing writ petition No. 1656 of 1957 filed by the respondents Qazi Abdul Ghafoor son of Qazi Mohammad Ali and Smt. Rabia Khatoon daughter of Qazi Mahfw Ali. 2. One Qazi Mahfooz Ali, the brother of the respondent, Qazi Abdul Ghafoor, and the father of the respondent, Smt. Rabia Khatoon, was possessed of certain proper ties situate in the town of Bhadohi in Varanasi district. Qazi Mahfooz Ali who was an employee in the postal department oI the Union of India opted for Pakistan and left for that country on 16th December 1947. In August .1949, after obtaining leave preparatory to retirement from the Pakistan Government, he came back to India. On 22nd May 1953 he died at Allahabad leaving behind as his heirs the two respondents. 3. Two months before his death, that is, on 4th of March 1953, a notice under Section 7 of the Administration of Evacuee Property Act, 1950 (hereinafter called the Act) was issued to Qazi Mahfooz Ali calling upon him to show cause why his properties should not be declared as evacuee properties. In view of the death of Qazi Mahfooz Ali on 22nd May 1953, the Assistant Custodian (Judicial), Allahabad, following the decision in Ebrahim Aboobaker v. Tek Chand Dolwani, A.I.R. 1953 S.C. 298 discharged the notice by means of the order dated the 14th September 1953. 4. The Administration of Evacuee Property (Amendment) Act, 1954 (hereinafter called the amendment Act), after being passed by the Parliament, received the assent of the President on 8th October 1953. Pursuant to the enforcement of the amendment Act, the Additional Custodian Evacuee Property, U.P., by means of the order dated 30th March 1955 Suo moto revised the order of the Assistant Custodian (Judicial) dated 14th of September 1953, discharging the notice under Section 7 against the deceased Qazi Mahfooz Ali, and directed the Assistant Custodian (Judicial) to determine whether the properties of Qazi Mahfooz Ali were evacuee properties. The respondents filed a revision application before the Deputy Custodian General which was dismissed. Thereafter the As. The respondents filed a revision application before the Deputy Custodian General which was dismissed. Thereafter the As. sistant Custodian (Zonal), Varanasi, revived the proceedings and proceeded to hear and determine the case in respect of the properties of Qazi Mahfooz Ali on the basis of the notice dated 4th of March 1953. It is the admitted case of the parties that no fresh notice was issued. By means of the order dated 26th May 1956 the Assistant Custodian (Zonal) held that Qazi Mahfooz Ali was an evacuee and declared that the properties left by him were evacuee properties. The respondents filed an appeal against the order of the Assistant Custodian (Zonal) dated 26th May, 1956, but the Custodian, Evacuee Property, U.P. dismissed the same by his order dated 11th February 1957. 5. On these facts writ petition no. 1656 of 1957 was filed by the respondents. Dwivedi J. allowed the writ petition firstly on the ground that no proceeding was pending when the Additional Custodian Evidence Property, purporting to act in exercise of his revisional powers, pa the order dated 30th of March 1955; and secondly that no proceeding under the Act was pending on 7th of May 1954 in respect of the properties of Qazi Mahfooz Ali. In the appeal before us Mr. N. D. Pant has placed reliance upon Sections 3 and 4 of the amendment Act which read as follows : "3. Amendment of Section T. Act XXXl of 1950 - In Section 7 of the principal Act, after sub-Sec. (1), the following sub-section shall be inserted and shall be deemed always to have been inserted, namely : "(IA) Where during the pendency of any proceeding under sub-Sec. (1) for declaring any property to be evacuee property any person interested in the property dies, the proceeding shall, unless the Custodian otherwise directs, be continued and disposed of as if such person were alive." 4. Insertion of new Section 7A in Act XXXI of 1950-After Section 7 of the principal Act, the following section shall be inserted, namely : "7A. Insertion of new Section 7A in Act XXXI of 1950-After Section 7 of the principal Act, the following section shall be inserted, namely : "7A. Property not to be declared evacuee property on or after' 7th May, 1954.- Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954 : Provided that nothing contained in this section shall apply to (a) any property in respect of which proceedings are pending on the 7th day of May, 1954 for declaring such property to be evacuee property; and ................................................................................" 6. Mr. Pant contends that inasmuch as the Additional Custodian, Evacuee Property, U.P. purporting to act under Section 26 of the Act started proceedings for revising the order passed by the Asstt. Custodian (Judicial) dated 14th of September 1953 in respect of the properties of Qazi Mahfooz Ali, proceedings became pending and the Additional Custodian General justifiably interfered and passed the order dated 30th of March 1955 setting aside the order of the Assistant Custodian (Judicial) dated 14th of September, 1953 and asking him to determine whether the properties of Qazi Mahfooz Ali were evacuee properties. Mr. Pant contends that the language of Section 3 of the amendment Act warrants the conclusion that its provisions were made retrospective and consequently the properties of Qazi Mahfooz Ali could be declared to be evacuee properties. 7. Having given the matter our anxious consideration we are of the opinion that the submissions made by Mr. Pant are based upon a misconception of the provisions of Sections 3 and 4 of the amendment Act. Section 3 is a provision which declares that notwithstanding the death of a person whose property is sought to be declared evacuee property, the proceedings would not abate and can be continued as if he were still alive. In other words the only object of Section 3 is to avoid abatement. The necessity for such an amendment arose because of the fact that normally the death of a party results in the abatement of proceedings, as for example under the provisions of Section 431, Cr. In other words the only object of Section 3 is to avoid abatement. The necessity for such an amendment arose because of the fact that normally the death of a party results in the abatement of proceedings, as for example under the provisions of Section 431, Cr. P. C. and Order XXII, Civil Procedure Code The amendment became urgent in view of the decision of Supreme Court in Ebrahint Aboobaker v. Tek Chand Dolwanil, where their Lordships held that if the proceedings cannot be continued against the heirs upon the death of the alleged evacuee, it is logical to hold that they cannot be initiated against them. Their Lordships proceeded to say "we hold, therefore, that the proceedings must lapse upon the death of such person". The necessity for introducing Section 4 (a) of the amendment Act in the Act was to save pending proceedings. The amendment Act was passed because the Evacuee Property Law was enacted to meet an extraordinary. situation and when the Government decided to acquire the right, title and interest of evacuee owners in their properties in India and utilise such properties for payment of part compensation to displaced persons, the for continuance of the evacuee property law in its existing form lost much of its force. In the aims and objects of the bill it is stated that "Government have accordingly decided that the evacuee property law should cease to operate except in cases where the cause of action arose before 7th May, 1954. That is to say clauses (d) (i) . (d) (ii), (d) (iii), (d) (iv) and (d) (v) of Section 2 of the Administration of Evacuee Property Act, 1950 will be rendered inoperative for the future". The idea was to take 7th of May, 1954 as the dead-line and to enforce the evacuee property law only in cases where the cause of action arose before the 7th of May, 1954. This is also apparent from the preamble of the amendment Act which reads: "An Act to abrogate the evacuee property law in respect of persons who have done or do any act on or after the 7th day of May, 1954 which if done before that date would have rendered them subject to that law and to amend the Administration of Evacuee Property Act, 1950 for that purpose and certain other purposes". 8. 8. The preamble clearly states that in respect of the matters, the cause of action of which arose subsequent to the 7th day of May, 1954, the evacuee law stood abrogated. The opening words of Section 7A "notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954" clearly go to show that 7th day of May, 1954 was the dead-line and that only in respect of matters for which the cause of action ensued before that date, the provisions of the Act could be made applicable and in respect of others the same stood abrogated. We find support for this view from the circumstance that Section 8 of the amendment Act provides that "in Section 40 of the principal Act, in sub-sec. (1), after the words and figures 14th day of August, 1947,' the words and figures 'but before the 7th day of May, 1954', shall be inserted. Section 40 as it stands after the amendment reads as follows: "No transfer made after the 14th day of August, 1947, but before the 7th day of May, 1954 by or on behalf of any person in any manner whatsoever of any property belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them, if at any time after the transfer, the transferor becomes an evacuee within the meaning of Section 2 or the property of the transferor is declared or notified to be evacuee property within the meaning of this Act, unless the transfer is confirmed by the Custodian in accordance with the pro. visions of this Act". 9. The object and the purpose of the amendment Act, therefore, was to create the 7th of May, 1954 as the dead-line and to make the provisions of the Act operative only for those cases where the cause of action arose before the 7th of May, 1954. Section 7A (a) inserted by Section 4 of the amendment Act is an exception to the general rule in so far that it provides that notwithstanding the clear mandate of the legislature that 7th of May, 1954 was to be the dead-line, all pending proceedings shall be saved and shall be continued. Section 7A (a) inserted by Section 4 of the amendment Act is an exception to the general rule in so far that it provides that notwithstanding the clear mandate of the legislature that 7th of May, 1954 was to be the dead-line, all pending proceedings shall be saved and shall be continued. Therefore, the object of clause (a) of Section 7A (inserted by Section 4 of the amendment Act) is to preserve pending proceedings. 10. Mr. Pant has placed reliance upon Ald. Sharifuddin v. R.P. Singh, AIR 1957 Patna 235 In the first place that decision was reversed by the I Supreme Court (though on another point) in Md. Sharifuddin v. R.P. Singh, A.I.R. 1961 S.C. 1312 and secondly that decision has been recorded on its own facts. At the time when the amendment Act came into force on the 8th of October, 1954, an appeal was already pending against the order of the Assistant Custodian discharging the notice and the learned judges of the Patna High Court, invoking the legal principle that the proceedings in the appellate court are a continuance of original proceedings, held that there was a case pending within the meaning of clause (a) of Section 7A of the Act. In our case no appeal was pending, consequently the Patna case can be no authority for the facts before us. We would like to point out that there is a clear distinction between the exercise of revisional and appellate powers and even though for some purposes it may be said that proceedings in an appellate court are a continuation of the original proceedings, that principle cannot be extended to proceedings pending before a revising authority. The reason is obvious, for whereas an appeal is a remedy which a party has a right to avail of, a revision is a power conferred upon a court or a tribunal and no party as of right can insist upon its being availed of. 11. Mr. Bashir Ahmad has cited a number of cases in order to support: his contention,that the word 'pending' means pendency in the original court. In what sense a word has been used in a particular statute can not be decided on the basis of reported cases decided on different facts. Its correct meaning can be gathered only from the context and setting in which the word is used in a particular statute. In what sense a word has been used in a particular statute can not be decided on the basis of reported cases decided on different facts. Its correct meaning can be gathered only from the context and setting in which the word is used in a particular statute. Reading the provisions of Section 7A of the Act, we are of the opinion that the word 'pending' as used in that section could not be stretched to mean pending before the revising authority. (Since the case before us is not one of appeal, we are not expressing any opinion whether it would include proceedings pending before the appellate authority) . We find support for this conclusion from the circumstance that no period of limitation has been provided for the exercise of revisional powers conferred by Sections 26 and 27 of the Act. So far as we know, and the learned counsel has not placed any authority to the contrary, it has never been held that proceedings pending before a revising authority are deemed to be a continuation of the original proceedings. If we were to extend the word 'pending' to proceedings pending before the revising authority, the result would be that the dead-line of 7th May, 1954, which the legislature in all solemnity has created by means of the passing of the amendment Act, can easily and at any time be crossed by the revising authority and there being no period of limitation provided for revising an order, even a decade after the 7th of May, 1954 the revising authority may suo moto start proceedings and pass orders which would result in the provisions of Section 4 of the amendment Act (Sec. 7A of the Act) being defeated. No Act can be interpreted in a manner so as to destroy its very purpose. This consideration also supports the conclusion that the word 'pending' as used in Section 7A (inserted by Section 4 of the amendment Act) does not include proceedings pending before the revising authority. In any case the revision proceedings were started suo moto long after the order dated 14th September, 1953 was passed by the Assistant Custodian (Judicial) and only after the amendment Act was enforced. It is, therefore, clear that no proceedings were pending even in revision. In any case the revision proceedings were started suo moto long after the order dated 14th September, 1953 was passed by the Assistant Custodian (Judicial) and only after the amendment Act was enforced. It is, therefore, clear that no proceedings were pending even in revision. It could never be the intention of the -legislature that the device of starting revisional proceedings could be adopted to defeat the object of the amendment Act and the provisions of Section 7A of the Act. The Custodian General or the Additional Custodian General has a dual role to play. They are in a way the agents of the Government and their duty is to secure property so that the Government may pay compensation from the sale proceeds of the same; but they are also Tribunals who have to perform judicial functions and decide disputes between the citizens and the State. 12. In view of the order dated 14th September, 1953 the rights of the respondents, who are the heirs of Qazi Mahfooz Ali, became secure in the property in dispute. It is well settled that rights once vested can only be divested by express provisions of a statute. In Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner, Delhi A.I.R. 1927 P.C. 242 it was held by the judicial Committee "that provisions which, if applied retrospectively, would deprive of their existing finality orders, which, when the statute came into force, were final, are provisions which touch existing rights". The Privy Council further held that "if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided". The same view was taken in Garikapati Veeraya v. N. Subbiah Choudhry, A.I.R. 1957 S.C. 540 where at page 553 their Lordships observed as follows: "In construing the articles of the Constitution we must bear in mind certain cardinal rules of construction. It has been said in Hough v. Windus, 1884-12 Q.B.D. 224 at p. 237 (V), that "statutes should be interpreted, if possible, so as to respect vested right". The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. Leeds and County Bank Ltd. v. Walker, (1883) 11 Q.B.D. 84 at p. 91 (W); Moon v. Durden, (1848) 2 Ex. 22-76 R.R. 479 at p. 495 (X). The following observation of Rankin C. J. in Sadar Ali v. Dalimuddin (K) (Supra) at p. 520 (of I.L.R. Cal.): at p. 643 of (A.I.R.), is also apposite and helpful: "Unless the contrary can be shown, the provision which takes away the jurisdiction in itself subject to the implied saving of the litigant's right". 13. We find no provisions either in the amendment Act or the Act as amended expressly providing for the reopening of proceedings already closed by orders which became final. 14. For the reasons mentioned above we are satisfied tit there are no merits in this special appal. We, therefore, dismiss the appeal with costs.