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PETITIONER: BISHAMBAR NATH KOHLI AND OTHERS

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH AND OTHERS

DATE OF JUDGMENT: 11/10/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SIKRI, S.M.

CITATION:  1966 AIR  573            1966 SCR  (2) 158

ACT: Administration  of Evacuee Property Act (31 of 1950) ss.  27 and  58(3)-Order passed by Deputy Custodian  under  repealed Ordinance  Jurisdiction  of  Custodian-General  to   revise- Procedure to be followed in disposal of revision.

HEADNOTE: Under s. 6 of Ordinance 12 of 1949, the Deputy Custodian  of Evacuee notified certain property to be evacuee property  in October 1949. No claim was preferred by any one in pursuance of the notification and the Central Government acquired  the property  under  the  Displaced  Persons  (Compensation  and Rehabilitation)  Act, 1954 and put it up for sale by  Public auction in 1957.  The predecessor in title of the appellants purchased the property.  In 1961, the State of Uttar Pradesh applied  under  s.  27  of  the-Administration  of   Evacuee Property Act, 1950, invoking the revisional jurisdiction  of the  Custodian-General, claiming that the property  belonged to the State and not to the evacuee and that therefore,  the Deputy  Custodian  had  no power to declare  it  as  evacuee property.   The  Custodian General upheld the  plea  of  the State. In appeal to this Court, the jurisdiction of the  Custodian- General to entertan the petition was questioned. HELD : (1) The Custodian-General had the power to  entertain the revision application filed. by the State. By  Ordinance  27 of 1949, which repealed  Ordinance  12  of 1949,  a  Proceeding commenced or anything  done  or  action taken  under  the  earlier  Ordinance was  to  be  deemed  a proceeding commenced, thing done and action taken under  the later Ordinance, as if it were in force on the date on which the  proceeding was commenced, thing was done or action  was taken.  Sec. 58(3) of the Administration of Evacuee Property Act,  which  repealed  Ordinance 27  of  1949,  contained  a similar deeming provision that anything done or action taken in  exercise  of the power conferred under Ordinance  27  of 1949 is to be deemed to have been done or taken in  exercise of  the power conferred by or under the Act, as if  the  Act were  in  force on the day on which such thing was  done  or

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action  was taken.  By this chain of fictions,  things  done and  actions  taken  under Ordinance 12 of 1949  are  to  be deemed to have been done or taken in exercise of the  powers conferred under the Act, as if the Act were in force on  the day  on which such thing was done or action was taken.  [164 B-E] By  the  first  part of s. 58(3) of the  Act,  the  previous operation  of repealed status services the repeal.   Thereby matters  and transactions past and closed remain  operative. But the saving of the previous operation of the repealed law is  not  be  read, as saving the  future  operation  of  the previous  law.  The previous law stands repealed and it  has not for the future the practical operation as is  prescribed by s. 6 of the General Clauses Act, 1897.  The rule contained in s. of the  General Clauses  Act applies only if a different intention does  not appear and by enacting                             159 s.   58(3)  of  the Administration of Evacuee  Property  Act Parliament  has expressed a different intention.   Under  s. 58(3), all things done and actions taken under the  repealed statute  are deemed to be done or taken in exercise  of  the powers  conferred by or under the repealing Act, as if  that Act were in force on the day on which the thing was done  or action was taken. [168 C; 167 H; 168 B] The order made by the Deputy Custodian was declared final by s. 30(6) of Ordinance 12 of 1949.  If fictionally the  order is  deemed to have been passed under the  Administration  of Evacuee  Property  Act, as if the Act were in  operation  in October, 1949, it is difficult to escape the conclusion that the  order would be subject to the appellate and  revisional jurisdiction  of the authorities who have the  appellate  or revisional  power  by virtue of  the  provisions  conferring those  powers and which must also be deemed to have been  in force  on the date when the impugned order was passed.   The use  of the expression "subject thereto" in s. 58(3)  cannot attribute to the previous operation of the repealed  statute an  overriding  effect  so as  to  deprive  the  authorities constituted  under  the  repealing Act  of  their  power  to entertain  appeals  or  revision  applications,  which  they possess by the express enactment. [169 A-C; 168 F] Indira  Sohanlal v. Custodian of Evacuee Property, [1955]  2 S.C.R. 1117 and Dafidar Niranjan Singh v. Custodian  Evacuee Property, [1962] 1 S.C.R. 214, explained. (ii) The  procedure  followed by the  Custodian-General  was however  open  to grave objection, because, he  relied  upon copies  of  documents on which the title of  the  State  was founded  without giving an opportunity to the appellants  to lead  evidence in rejoinder, and therefore the order of  the Custodian-General  should  be  set  aside  and  the   matter remanded to him for fresh disposal according to law. [170 F]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 659 of 1964. Appeal  by special leave from the judgment and order,  dated the  September 11, 1962 of the Custodian General of  Evacuee Property,  Department of Rehabilitation, Ministry  of  Works Housing and Supply, New Delhi in Revision Petition No. 1209- R/ UP/1961. Gopal Singh, for the appellants. S.   T. Desai and O. P. Rana, for respondent No. 1. N.   S.  Dindra,  K.  S.  Chawla and  R.  N.  Sachthey,  for respondents Nos. 2, 3 and 4.

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The Judgment of the Court was delivered by Shah, J. House No. 11, Kaiserbagh at Lucknow, was since 1918 in the occupation of one Chowdhry Akbar Hussain.  After  the partition  of  India,  Chowdhry Akbar  Hussain  migrated  to Pakistan.   By  order  dated October  12,  1949  the  Deputy Custodian of Evacuee Property, Lucknow, in exercise of power "under s. 6 160 of the U. P. Administration of Evacuee Property Ordinance  1 of  1949 as continued in force by Central Ordinances 12  and 20  of  1949"  declared  No.  11,  Kaiserbagh  as   "evacuee property".   No  claim  was  preferred  by  any  person   in pursuance  of  this  notification,  and  management  of  the property  continued with the Custodian of Evacuee  Property. Acting  under s. 12 of the Displaced  Persons  (Compensation and  Rehabilitation) Act 44 of 1954, the Central  Government by  a notification dated May 27, 1955 acquired the  property for the Central pool constituted under that Act.  On June 7, 1957 the property was put up for sale by public auction  and was purchased by one Ram Chand Kohli. On  September  27, 1961 the State of Uttar  Pradesh  applied under s. 27 of the Administration of Evacuee Property Act 31 of   1950  invoking  the  revisional  jurisdiction  of   the Custodian-General against the order of the Deputy  Custodian notifying  the property as evacuee property.  The  State  of Uttar  Pradesh  claimed that the property  belonged  to  the State and Chowdhry Akbar Hussain had no proprietary interest in the property and accordingly the Deputy Custodian had  no power  to declare it "evacuee property".  It  was  submitted that  the  State  of  Uttar Pradesh was  not  aware  of  the notification declaring the property to be evacuee  property, nor  of  the subsequent proceedings and of the sale  to  Ram Chand   Kohli.    The   appellants   who   are   the   legal representatives  of Ram Chand Kohli contended,  inter  alia, that  the  petition was belated, and that in any  event  the property being of the ownership of Chowdhry Akbar Hussain it was  lawfully  declared evacuee  property.   The  Custodian- Genral  upheld the plea of the State of Uttar  Pradesh,  and set  aside the order of the Deputy Custodian.  With  special leave,  the  heirs and legal representatives  of  Ram  Chand Kohli have appealed to this Court. We propose in this appeal only to deal with the plea of  the appellants that the Custodian-General had no jurisdiction to entertain the petition filed by the State of Uttar  Pradesh. If the appellants fail to establish that plea, the case must be remanded to the Custodian-General for retrial, because we are of the view that the trial of the petit-ion is  vitiated by  gross irregularities and breach of the rules of  natural justice. Section 27 of the Administration of Evacuee Property Act  31 of 1950 authorises the Custodian-General at any time, either on  his  own motion or on application made to  him  in  that behalf,  to call for the record of any proceeding  in  which any  Custodian  has  passed  an order  for  the  purpose  of satisfying himself as to                             161 the  legality  or propriety of any such order, and  to  pass such order in relation thereto as he thinks fit.  Section 27 does not prescribe any limit of time within which the  power in  revision  may be exercised.  The  Custodian-General  may call  for  the record of any proceedings  of  a  subordinate officer at any time, and pass such order in relation thereto as  may be called for to do justice to the parties  affected by the proceeding.  The powers of the Custodian-General  are unquestionably judicial and normally he may not be justified

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in  entertaining  a  petition in  revision  which  has  been instituted  after  great delay, especially  when  titles  of persons  other  than those directly concerned in  the  order sought  to be revised, have intervened.  There was  in  this case  great  delay in lodging the petition by the  State  of Uttar  Pradesh invoking the jurisdiction of  the  Custodian- General.  Notice of the order made on October 12, 1949,  was issued  and thereafter also there were  several  proceedings before  the  Custodian and the  Settlement  Commissioner  in regard to the property.  The authorities of the State appear to  have betrayed gross negligence in protecting the  public interest,  if  their case about the title of  the  State  be true.  But the Custodian-General appears to have been of the view  that in exercise of jurisdiction conferred by  statute the  petition should be entertained and power under the  Act be  exercised.   Whether  in a given  case,  the  Custodian- General may entertain a petition against an order passed  by a  subordinate  authority, notwithstanding  gross  delay  in instituting   the   proceeding  is  a  matter   within   his discretion.   We  do  not  think that  in  exercise  of  the appellate  jurisdiction of this Court under Art. 136 of  the Constitution, we would be justified in interfering with  the order  of  the  Custodian-General  in  a  matter  which   is essentially  within  his  competence  and  relates  to   the exercise  of  his discretion, however much we  may  disagree with him. The  question which then must be considered is  whether  the Custodian-General  had the power to entertain  the  petition under s. 27 of the Administration of Evacuee Property Act 31 of  1950,  challenging  the  order  passed  by  the   Deputy Custodian  on October 12, 1949.  It may at once be  observed that the reference in the notification issued by the  Deputy Custodian  to  U.P.  Ordinance 1 of 1949 has  been  made  on account  of some inadvertence.  The notification was  issued after the U.P. Ordinance expired and when Central  Ordinance 12 of 1949 was applied to the United Provinces by  Ordinance 20 of 1949.  The U.P. Ordinance 1 of 1949 was promulgated by the  Governor  of  the United  Provinces  on  June  22,1949. Shortly before the promulgation of that Ordinance, the 162 ’Governor-General had in exercise of the powers conferred by S.  42  of the Government of India Act 1935  issued  Central Ordinance  12 of 1949 called "The Administration of  Evacuee Property (Chief Commissioners’ Provinces) Ordinance,  1949". This  Ordinance was applicable in the first instance to  the Chief Commissioner Provinces of Ajmer-Merwara and Delhi  and it would be -extended to any other Province by  notification issued  by  the Central  Government.   The  Governor-General issued  on  August 23, 1949 Ordinance 20 of 1949,  by  S.  4 whereof Ordinance 12 of 1949 was applied to the Provinces of Madras and the United Provinces.  By S. 6 of Ordinance 12 of 1949 the Deputy Custodian -was authorised to notify  evacuee properties  which  had  vested  in him under  s.  5  of  the Ordinance.   A person claiming any right to or  interest  in any property notified under s. 6 could prefer a claim within 30  days,  or  such extended time as  the  Deputy  Custodian allowed,  that the property is not evacuee property or  that his  interest  in  the  property  is  not  affected  by  the provisions  of  the  Ordinance.  The  Deputy  Custodian  was thereupon  required  to hold an inquiry  in  the  prescribed manner, and after taking such -evidence as may be  produced, to  pass an appropriate order.  An order passed by a  Deputy Custodian on inquiry in the prescribed manner was appealable to  the  Custodian  at the instance  of  a  party  aggrieved thereby:  S.  30 (1).  The Custodian had also the  power  to

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call  for the record of any proceeding which was pending  or had been disposed of, by an officer subordinate to him,  for the  purpose  of satisfying himself as to  the  legality  or propriety  of  the order passed therein, and  to  pass  such order  in relation thereto as he deemed fit.  By sub-s.  (6) of S. 30, subject to the provisions of sub-ss. (1) to (5) of s. 30, any order passed by the Custodian, Deputy  Custodian, Additional  Custodian,  Assistant  Custodian  or  Authorised Deputy  Custodian  was declared final and not liable  to  be called in question in any court by way of appeal or revision or   in   any  original  suit,  application   or   execution proceeding. On October 18, 1949 the Governor-General issued Ordinance 27 of 1949 called "The Administration of Evacuee Property Ordi- nance,  1949".   Under that Ordinance  the  Custodian  could under S. 7, after notice to the persons interested and after holding  such ’inquiry into the matter as the  circumstances of the case permitted, pass an order declaring any  property to be evacuee property, and on such declaration the property vested in the Custodian.  By S. 24, any person aggrieved  by an  order  made, amongst other sections, under s.  7,  could prefer an appeal to the authority specified in the  section. Section 27 invested the Custodian-General with 163 power  at any time to call for the record of any  proceeding in  which any custodian had passed an order in appeal  under the  provisions  of  Ch.  V for the  purpose  of  satisfying himself  as to the legality or propriety of any  such  order and  to  pass such order in relation thereto as  he  thought fit,   and  every  order  made  by  the   Custodian-General, Custodian,  Additional Custodian or Assistant Custodian  was by  S.  28  declared final and not liable to  be  called  in question in any court by way of appeal or revision or in any original suit, application or execution proceeding.  By sub- S.  (1) of S. 55 Ordinance 12 of 1949 was repealed,  and  by sub-s.  (3) it was provided that notwithstanding the  repeal of  Ordinance  12  of  1949 or  of  any  corresponding  law, anything  done  or any action taken in the exercise  of  any power conferred by that Ordinance or law shall be deemed  to have  been  done  or taken in the  exercise  of  the  powers conferred by Ordinance 27 of 1949, and any penalty  incurred or proceeding commenced under that Ordinance or law shall be deemed  to  be a penalty incurred  or  proceeding  commenced under  Ordinance 27 of 1949 as if Ordinance 27 of 1949  were in  force  on the day on which such thing was  done,  action taken, penalty incurred or proceeding commenced.  This Ordi- nance  27  of  1949 was repealed by  the  Administration  of Evacuee Property Act 31 of 1950.  The scheme of this Act was identical  with the scheme of the Administration of  Evacuee Property  Ordinance 27 of 1949.  Section 7  conferred  power upon the Custodian to notify any property, after holding  an inquiry, to be evacuee property.  Any person aggrieved by an order under S. 7, could under S. 24 prefer an appeal to  the specified  authority.  By S. 27 revisional jurisdiction  was conferred upon the Custodian-General in terms similar to  S. 27 of Ordinance 27 of 1949, and by S. 28 every order made by the  Custodian-General,  Custodian,  Additional   Custodian, Authorised  Deputy Custodian, Deputy Custodian or  Assistant Custodian  was, save as otherwise expressly provided in  Ch. V, declared final and not liable to be called in question in any  court by way of appeal or revision or in  any  original suit, application or execution proceeding.  By sub-s. (1) of S.  58, the Administration of Evacuee Property Ordinance  27 of  1949  was repealed.  Sub-section (3) of S.  58  read  as follows:

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             Evacuee   Property  Ordinance,  1949  or   the               Hyderabad  Administration of Evacuee  Property               Regulation  or of any corresponding law  shall               not  affect  the previous  operation  of  that               Ordinance,  Regulation or  corresponding  law,               and  subject  thereto, anything  done  or  any               action  taken  in the exercise  of  any  power               conferred by or under that               164               Ordinance,  Regulation or  corresponding  law,               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." By  Ordinance 27 of 1949 a proceeding commenced under  Ordi- nance  12  of 1949 or anything done or action taken  in  the exercise of the powers conferred under that Ordinance was to be  deemed  a proceeding commenced, thing  done  and  action taken  under the former Ordinance as if that Ordinance  were in force on the date on which the proceeding was  commenced, thing was done or action was taken.  Section 58(3) of Act 31 of 1950 contained a similar deeming provision that an  thing done  or  action taken in exercise of  the  power  conferred under Ordinance 27 of 1949 is to be deemed to have been done or taken in exercise of the power conferred by or under  Act 31 of 1950, as if the Act were in force on the day on  which such thing was done or action was taken. By  this  chain of fictions, things done and  actions  taken under  Ordinance  12 of 1949 are to be deemed to  have  been done or taken in exercise of-the powers conferred under  Act 31 of 1950, as if that Act were in force on the day on which such  thing was done or action taken.  The order  passed  by the Deputy Custodian under S. 6 of Ordinance 12 of 1949 was, therefore, for the purpose of this proceeding, to be  deemed an  order made in exercise of the power conferred by Act  31 of 1950 as if that Act were in force on the day on which the order was passed. But  it  was urged by counsel for the appellants  that  this chain of fictions did not assist the State of Uttar Pradesh, because by each of the successive statutes the operation  of the. fiction was subject to the finality of the orders  made under the earlier Ordinance.  It was claimed that the repeal of  Ordinance  12 of 1949 by Ordinance 27 of  1949  did  not affect  the  previous operation of the  repealed  Ordinance, including  the finality of orders made under that  Ordinance and by s. 55(3) of Ordinance 27 of 1949 the finality of  the order  of the Deputy Custodian under sub-s. (6) of s. 30  of Ordinance 12 of 1949 was preserved.  Similarly under Act  31 of  1950 things done or actions taken under Ordinance 27  of 1949 were to be deemed to have done or taken under the  Act, but  thereby  finality of orders declared by s.  28  of  the Ordinance was not trenched upon.  It was submitted, that  by s.  58  (3 ) in a technical sense things  done  and  actions taken  or deemed to be done or taken under Ordinance  27  of 1949 were to be deemed to have been done or taken under  Act 31 of 1950, but finality of 165 the orders declared by s. 30(6) of Ordinance 12 of 1949  was not  affected, and the orders of the Deputy Custodian  could not be set aside by the Custodian-General in exercise of the power  under  s. 27 of Act 31 of 1950.  In support  of  this contention  reliance  was placed upon certain dicta  in  two decisions  of this Court : Indira Sohanlal v.  Custodian  of Evacuee  Property,  Delhi & Others(1) and  Dafadar  Niranjan

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Singh  and Another v. Custodian, Evacuee Property (Pb.)  and Another(2).   In our view no support is to be  derived  from those   cases  for  the  claim  made  by  counsel  for   the appellants.   In Indira Sohanlars case(3) an application  to sanction  an exchange made under s. 5-A of the  East  Punjab Evacuees’  (Administration  of,  Property)  Act,  1947,   as amended  in  1948,  was decided on March  30,  1952  by  the Additional  Custodian after Act 31 of 1950 was brought  into force.   Exercising power under s. 27 of Act 31 of 1950  the Custodian-General  set aside the order of  confirmation  and remanded  the case to be reconsidered by the Custodian.   In appeal  to this Court against that order, it  was  submitted that  the order of the Additional Custodian was not open  to revision by the Custodian-General, because the appellant had a  vested  right to have the  application  for  confirmation determined  under  s.  5-A  of  the  East  Punjab  Evacuees’ (Administration of Property) Act, and finality under s.  5-B attached  to such determination, repeal and  reenactment  of those provisions notwithstanding.  This Court held that  the application for confirmation of exchange was pending on  the date  on which Act 31 of 1950 came into force and had to  be dealt  with  and disposed of under that Act;  the  order  of confirmation  passed  in 1952 was therefore subject  to  the revisional jurisdiction of the Custodian-General under s. 27 of  the Act.  That decision can have no application to  this case.  But counsel relied upon certain observations made  by Jagannadhadas, J., at p. 1136               "Without   attempting   to   be   meticulously               accurate,  it may be stated in general  terms,               that  the  scheme  underlying  section   58(3)               appears  to be that every matter to which  the               new Act applies has to be treated as  arising,               and to be dealt with, under the new law except               insofar  as certain consequences have  already               ensued  or  acts  have  been  completed  prior               thereto, to which it is the old law that  will               apply." These observations, in our judgment, lend no support to  the contention  that  the finality declared under s. 30  of  the Ordinance  1  of 1949 in respect of ’the  orders  passed  or proceedings taken (1) [1955] 2 S.C.R. 11 17. (2) [1962] 1 S.C.R. 214. 166 remains attached to the order of the Deputy Custodian so  as to  prevent the Custodian-General from exercising his  power under s.  27 of Act 31 of 1950. In  Dafadar  Niranjan  Singh’s  case(1),  the  Custodian  of Evacuee  Property,  Patiala,  had taken  possession  of  two houses  acting under the Patiala Evacuee (Administration  of Property) Ordinance of Samvat 2004.  On a claim made by  the appellant that the houses belonged to him, the Custodian  by his   order  dated  June  6,  1949  released   the   houses. Thereafter  several Ordinances relating to evacuee  property were  passed  one after another,  the  succeeding  Ordinance repealing the previous one and creating, except in the  case of repeal of Ordinance 9 of Samvat 2004, a chain of fictions by  which certain provisions of the repealed Ordinance  were deemed to continue under the repealing Ordinance.  The  last Ordinance  was  replaced by the  Administration  of  Evacuee Property  Act 31 of 1950.  The Custodian-General  exercising powers  under S. 27 of that Act set aside the order  of  the Custodian  which  released  the property in  favour  of  the appellant.   In appeal against the order of  the  Custodian- General,  it  was  held that the order dated  June  6,  1949

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passed  by  the Custodian under Ordinance 9 of  Samvat  2004 could  not be deemed to be an order passed under Act  31  of 1950 as the chain of fictions was broken, when Ordinance  13 of Samvat 2006 repealing the previous Ordinance 9 of  Samvat 2004 was issued, and there was no scope for the exercise  of his power by the Custodian-General under S. 27 of Act 31  of 1950.  The Court then proceeded to interpret S. 58(3) of Act 31 of 1951 on the assumption that the order of the Custodian dated June 6, 1949, by a chain of fictions was to be  deemed an  order  made by the Custodian in exercise of  the  powers conferred on ’him by Act 31 of 1950, and observed:               "Sub-section  (3)  of S. 58 is in  two  parts.               The first part says that the repeal by the Act               of  the  said Ordinance shall not  affect  the               previous operation of the said Ordinance ; and               the second part says that anything done or any               action taken in the exercise of any power con-               ferred  by  or under that 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               taken.   The  second part  is  expressly  made               subject  to the first part.  If a  case  falls               under the first part, the second part does not               apply to it.  In the present case under the               (1)   [1962] 1 S.C.R. 214.                167               previous operation of the Ordinance the  order               of the Custodian had become final.  If so, the               fiction  introduced in the second  part  could               only  operate  on that order  subject  to  the               finality   it   had   acquired   under    that               Ordinance." In  our  view, the decision of the Court  on  the  principal ground  that  the  chain of fictions  was  broken,  and  the impugned  order was not one which was to be deemed  to  have been  made under Act 31 of 1950, rendered  consideration  of all other questions unnecessary.  If by the observations set out,  it  was intended to, lay down that the  legal  fiction introduced  by s. 58(3) of Act 31 of 1950 by which  anything done or action taken in exercise of the powers conferred  by the earlier Ordinance was to be deemed to have been done  or taken in exercise of the powers by or under the Act  applies only if under the earlier Ordinance anything. done or action taken  had not become final by virtue of the  provisions  of that Ordinance, we are unable, with respect, to accept  that interpretation.  By the first part of S. 58(3) repeal of the statutes mentioned therein did not operate to vacate  things done or actions taken under those statutes.  This  provision appears  to,  have  been enacted with a view  to  avoid  the possible  application  of the rule  of  interpretation  that where a statute expires or is. repealed, in the absence of a provision  to the contrary, it is regarded as  having  never existed  except  as  to matters and  transactions  past  and closed: see Surtees v. Ellison(1).  This rule was altered by an  omnibus  provision  in the General  Clauses  Act,  1897, relating to the effect of repeal of statutes by any  Central Act  or Regulation.  By s. 6 of the General Clauses Act,  it is provided, insofar as it is material, that any Central Act or  Regulation  made after the commencement of  the  General Clauses  Act  repeals any enactment, the  repeal  shall  not affect the previous operation of’ any enactment so  repealed or anything duly done or suffered thereunder, or affect  any right, privilege, obligation or liability acquired,  accrued

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or  incurred under any enactment so repealed, or affect  any investigation  legal proceeding or remedy in respect of  any such  right,  privilege,  obligation,  liability,   penalty, forfeiture   or  punishment  as  aforesaid;  and  any   such investigation legal proceeding or remedy may be  instituted, continued  or  enforced,  any such  penalty,  forfeiture  or punishment  may  be  imposed, as if  the  Repealing  Act  or Regulation  had not been passed.  But the rule contained  in S. 6 applies only if a different intention does not  appear, and  by  enacting S. 58(3) the Parliament  has  expressed  a different  intention,  for whereas the General  Clauses  Act keeps   alive  the  previous  operation  of  the   enactment repealed, ’and things. (1)  (1829) 9 B. & C. 752. 168 done and duly suffered, the rights, privileges,  obligations or  liabilities  acquired or incurred,  and  authorises  the investigation,  legal proceeding and remedies in respect  of rights,  privileges,  obligations,  liabilities,  penalties, forfeiture  and  punishment,  as if  the  repealing  Act  or Regulation  had not been passed, S. 58(3) of Act 31 of  1950 directs that things done or actions taken in exercise of the power conferred by the repealed statutes shall be deemed  to be  done or taken under the repealing Act as if that  latter Act  were in force on the day on which such thing was  done, or  action was taken.  The rule so enunciated makes a  clear departure  from the rule enunciated in s. 6 of  the  General Clauses  Act, 1897.  By the first part of s. 58(3) which  is in  terms negative, the previous operation of  the  repealed statutes   survives   the  repeal.   Thereby   matters   and transactions past and closed remain operative : so does  the previous operation of the repealed statute.  But as  pointed out  by this Court in Indira Sohanlal’s case(1) at p.  1133, the saying of the previous operation of the repealed law  is not  to  be  read, as saving the  future  operation  of  the previous law.  The previous law stands repealed, and it  has not for the future the partial operation as is prescribed by S.  6  of  the General Clauses Act.   All  things  done  and actions  taken under the repealed statute are deemed  to  be done  or  taken in exercise of the powers  conferred  by  or under the repealing Act, as if that Act were in force on the day  on which that thing was done or action was  taken.   It was clearly the intention of the Parliament that matters and transactions  past and closed were not to be deemed  vacated by  the  repeal of the statute under which they  were  done. The  previous  operation of the statute  repealed  was  also affirmed  expressly but things done or actions  taken  under the  repealed  statute are to be deemed by fiction  to  have been done or taken under the repealing Act.  The use of  the expression  subject  thereto"  in the  commencement  of  the positive  part of s. 58(3) cannot attribute to the  previous operation of the repealed statute an overriding effect so as to  deprive the authorities constituted under the  repealing Act  of  their  power  to  entertain  appeals  or   revision applications,  which they possess by the  express  enactment that the acts done or actions taken are deemed to have  been done  under the statute.  To attribute to the positive  part of  s.  58 (3) the meaning contended for by  the  appellants would  result in denying to the repealing statute  the  full effect of the fiction introduced by the Parliament that  is, acts done or actions taken since the repealing Act would  be subject  to  the  appellate jurisdiction  of  the  authority having  power under the Act, but not the acts deemed  to  be done or actions deemed to be taken.  There is no warrant (1)  [1955] 2 S.C.R. 1117.

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169 for  attributing  to the fiction this  qualified  operation. The Legislature has not expressed such a reservation in  the application  of the fiction, and none can be  implied.   The order  made  by the Deputy Custodian was declared  final  by sub-s.  (6)  of  s.  30 of Ordinance 12  of  1949,  but  the finality was subject to the provisions of sub-ss. (1) to (5) of  S. 30.  If, fictionally, the order is to be  deemed.  to have been passed under Act 31 of 1950 as if the Act were  in operation  -on October 12, 1949, it is difficult  to  escape the  conclusion  that  the order would  be  subject  to  the appellate and revisional jurisdiction of the authorities who have  the  appellate or revisional power by  virtue  of  the provisions  conferring those powers and which must  also  be deemed  to have been in force at the date when the  impugned order was passed. In  the present case, it is said on behalf of the  State  of Uttar  Pradesh, that they were not aware of  any  proceeding taken  with  regard  to No. 11, Kaiserbagh,  by  the  Deputy Custodian of Evacuee Property and therefore they could raise no  objection.   The order notifying the property  was  made under the Central Ordinance 12 of 1949.  If the notification be deemed an order within the meaning of s. 30(6), the order having been declared fictionally made under Act 31 of  1950, remained  subject  to  the revisional  jurisdiction  of  the Custodian.   If  any  other view is  taken,  some  startling results may follow : for instance, if under an order  passed by  the  Custodian or action taken by him, the rights  of  a person  are infringed, and before he files an appeal or  the revising  authority  is moved, the Ordinance or the  Act  is repealed  and is substituted by a new Act or Ordinance,  the person  aggrieved  would, if the view contended for  by  the appellants  were to prevail, have no remedy at all,  because the  finality  of orders declared by  the  repealed  statute would  operate.  It may be noted that under s. 27 of Act  31 of  1950 which invests the Custodian-General with powers  of revision,  an Explanation is incorporated by Act 1  of  1960 that  the power conferred on the Custodian-General under  s. 27  may  be exercised by him in relation  to  any  property, notwithstanding  that such property has been acquired  under s.   12   of  the  Displaced   Persons   (Compensation   and Rehabilitation) Act, 1954.  This also indicates that even if the evacuee property has been acquired under s. 12 of Act 44 of  1954,  it  is still open  to  the  Custodian-General  in appropriate Cases to exercise his power in revision.  We are therefore  of  the view that the Custodian-General  had  the power  to  entertain the revision application filed  by  the State of Uttar Pradesh. On the merits of the order, not much need be said.  The pro- cedure  followed  by  the  Custodian-General  is  in   gross violation of 170 the rules of natural justice.  As we have already  observed, acting  under  the  powers conferred upon him  by  S.  6  of Ordinance 12 of 1949, the Deputy Custodian had notified  No. 11,  Kaiserbagh,  as evacuee property.   What  the  evidence before the Deputy Custodian in that behalf was, has not been disclosed.  Nearly twelve years after that order was passed, the  State of Uttar Pradesh moved the  Custodian-General  in revision.  The petition invoking the revisional jurisdiction was  competent, but the Custodian-General was not  justified in  acting upon evidence which was sought to be  brought  on the  record for the first time before him without  affording to  the persons affected thereby an opportunity  of  meeting that evidence.  It appears that in the petition filed by the

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State of Uttar Pradesh many new facts which were not on  the record   were  set  out.   The  Custodian-General   has   in appropriate cases the power to admit additional evidence and to  consider the same: Rule 31(9) of the  Administration  of Evacuee  Property Central Rules, 1950.  But no party  has  a right  to tender additional evidence in appeal or  before  a revising  authority:  it is for the  revising  authority  to decide whether having regard to all the circumstances and in the  interest of justice, additional evidence tendered by  a party  should  be  admitted.  It  is  unfortunate  that  the Custodian-General  did not record a formal  order  admitting additional  evidence tendered by the State of Uttar  Pradesh with  its  petition.  But we would not be justified  in  the circumstances  of this case in assuming that the  Custodian- General was oblivious of the nature and extent of his powers and restrictions thereon. The  procedure followed by the Custodian-General is  however open  to  grave objection, because he did not even  give  an opportunity to the legal representatives of Ram Chand  Kohli to lead evidence in rejoinder to the evidence relied upon by the  State.   It appears that only copies  of  documents  on which  the title of the State of Uttar Pradesh  was  founded were filled in the proceeding before the  Custodian-General. The revision petition was heard by the Custodian-General  on August   4,  1962,  and  thereafter  the  proceeding   stood adjourned  till  August 14, 1962 for  further  hearing.   On August  6, 1962, counsel for the appellants served a  notice upon counsel for the State of Uttar Pradesh calling upon him to  give  inspection  of the documents referred  to  in  the notice.  No inspection was given, and the hearing took place on  August  14,  1962.   It is true  that  counsel  for  the appellants did attempt to meet the case sought to be  raised by  the State of Uttar Pradesh on the merits, and  submitted that  the  property in dispute was owned by  Chowdhry  Akbar Hussain.   That,  however, would not justify  the  procedure followed by the Custodian-General, nor would it lead to 171 the inference that the appellants had, in the  circumstances of  this case, waived the irregularity in the trial.  It  is common  round  before us that at no stage,  originals  of  a large  number of documents, on which reliance was placed  by the  State  of Uttar Pradesh, and on  which  the  Custodian- General  founded  his conclusion, were produced  before  the Custodian-General.  The Custodian-General does not appear to have even told the appellants that he had admitted copies of those  documents  on  the record.  Nor did he  give  to  the appellants  an opportunity to meet the case which the  State of  Uttar Pradesh sought to make out.  In our view the  pro- ceedings   of   the   Custodian-General   were   so   wholly inconsistent  with the procedure which may be followed in  a judicial  trial,  that his order must be set aside  and  the proceedings   remanded  to  the  Custodian-General  with   a direction that he do call upon the State of Uttar Pradesh to formally  tender in evidence such of the documents on  which they  rely,  and  that  he do give  an  opportunity  to  the appellants  in this appeal to tender such evidence  as  they desire  to tender in support of their case.  Thereafter  the Custodian-General  -shall  hear  both  the  parties  on  the evidence properly brought on the record. The  appeal  is  allowed and the case  is  remanded  to  the Custodian-General  for  disposal  according  to  law.    The appellants will be entitled to their costs in this Court.                       Appeal allowed. LISup.C.I./66-12 172

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