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PETITIONER: BAWA HARIGIR

       Vs.

RESPONDENT: ASSISTANT CUSTODIAN, EVACUEE PROPERTY, BHOPAL.

DATE OF JUDGMENT: 07/03/1961

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. SARKAR, A.K. AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1257            1962 SCR  (1) 189

ACT: Evacuee   Property-Provisions   regarding   declaration   of property as evacuee property  Confirmation of sale-Power  of Custodian  to refuse-Constitutionality of Administration  of Evacuee Property Act, 1950 (31 of 1950), ss. 2(d),  40(4)(a) Constitution of India, Arts. 31(2), 3x(5)(b)(iii). 190

HEADNOTE: The  petitioner purchased some land from R. R. was  declared to  be an intending evacuee and be left for  Pakistan.   The Assistant  Custodian issued a ’notice to the  petitioner  to show cause why the land should not be declared to be evacuee property,  and after hearing the petitioner he declared  the land  to  be  evacuee property.  An appeal  and  a  revision against  the order were unsuccessful.  The  petitioner  also applied  to the Custodian under s. 40 Of the  Administration of Evacuee Property Act, 1950, for confirmation of the  sale but  his application was rejected under S. 40(4)(a)  on  the ground  that  the  evacuee  did not act  in  good  faith  in effecting  the sale.  The petitioner contended that S.  2(d) of the Act defining evacuee property and S. 40(4) empowering the  custodian  to reject an  application  for  confirmation violated  Art. 31(2) as they enabled the State to take  away property without the authority of law. Held,  that  the provisions Of SS. 2(d) and 40(4)  were  not affected by Art. 31(2) in view of Art. 31(5)(b)(iii) of  the Constitution.  The protection of Art. 31 (5)(b)(iii) was not limited  to a law which itself declared any property  to  be evacuee  property but extended to a law which  empowered  an authority  to declare any property as evacuee  property  and laid  down  the  criteria  for  the  declaration.    Section 40(4)(a) of the Act which empowered the Custodian to  reject an  application  for  confirmation on the  ground  that  the transaction  had not been entered into in good  faith  could not  be  challenged as conferring arbitrary  powers  on  the Custodian.  The power was in the nature of a judicial  power and  the absence of a standard for the determination of  the question could not render the provision unconstitutional.

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JUDGMENT: ORIGINAL JURISDICTION: Petition No. 87 of 1957. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of fundamental rights. B.   D. Sharma, for the petitioner. N.   S.  Bindra,  R  H.  Dhebar  and  T.  M.  Sen,  for  the respondents. 1961.  March 7. The Judgment of the Court was delivered by MUDHOLKAR,  J.-In  this  petition  under  Art.  32  of   the Constitution the petitioner contends that the provisions  of the  Administration of Evacuee Property Act, 1950  (XXXI  of 1950) and in particular those of s. 2 (d) and sub-s. (4)  of s. 40 are unconstitutional.  According to him the effect  of the  order  passed against him by the Custodian  of  Evacuee Properties  under sub-s. (4) of s. 40 of the Act is to  take away his 191 property without the authority of law.  He further  contends that the order of the Custodian amounts to discrimination in practice  against  the petitioner.  These are the  two  main heads under which the arguments advanced before us could  be classified. The  relevant  facts  may now  be  stated.   The  petitioner purchased  195-51 acres of land in the former  Bhopal  State from   one  Babu  Rehmatullah  on  June  23,  1950,  for   a consideration of Rs. 3,500.  Rehmatullah was declared to  be an  intending evacuee by the Assistant Custodian of  Evacuee Property.  Eventually he left India for Pakistan on June 20, 1951. On  June  12,  1951,  the  Assistant  Custodian  of  Evacuee Property issued a notice to the petitioner to show cause why the land which he had purchased from Rehmatullah should  not be  declared  to be "evacuee property".  After  hearing  the petitioner the property was declared to be evacuee  property on August 8, 1951.  The petitioner challenged that order  in appeal as well as in revision as provided in the Act but was unsuccessful.   A writ petition preferred by him before  the Judicial  Commissioner, Bhopal, was dismissed in  limine  on July  14,  1954.  He has, therefore, come up to  this  Court under Art. 32 of the Constitution. The  first point pressed ’before us by Mr. B. D. Sharma,  on behalf  of  the  petitioner is that the  provisions  of  the Evacuee Property Act and particularly those of ss. 2 (d) and 40  (4) are unconstitutional, because they enable the  State to  take  away  property  without  paying  any  compensation therefore  as required by Art. 31 (2) of  the  Constitution. The  short answer to this contention is that the  provisions of  a  law made in pursuance of any agreement  entered  into between  the Government of India and the Government  of  any other country or otherwise With respect to property declared by  law to be evacuee property will not be affected  by  the provisions  of  cl. 2 of Art. 31.  This is  clear  from  the provisions of Art. 31(5)(b)(iii) which rules is thus:               "Nothing in clause (2) shall affect               192               (b) the provisions of any law which the State               may hereafter make-               (iii)  in pursuance of any  agreement  entered               into between the Government of the Dominion of               India  or  the  Government of  India  and  the               Government of any other country, or otherwise,               with respect to property declared by law to be

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             evacuee property. Mr.  Sharma, however, contends that the protection  afforded by  the  aforesaid  clause must be limited to  a  law  which itself declares any property to be evacuee property and  not to a law which empowers an authority to declare any property as evacuee property.  We cannot accept the contention.   The words  "property  declared by law to  be  evacuee  property" would  necessarily include property which could be  declared as  evacuee  property.  A law relating to  evacuee  property would  concern  itself  with laying down  the  criteria  for determining  what  property is to be considered  as  evacuee property and could not be expected to specify the particular properties  which are to be treated as  evacuee  properties. The  protection  afforded by  the  constitutional  provision which we have quoted above is not restricted as suggested by Mr.  Sharma  but  extends to a law which  provides  for  the determination of the criteria for declaring property to be evacuee property. The next argument of learned counsel is that the property in question is not evacuee property and that the provisions  of Art.  31(1) of the Constitution are a bar against taking  it away.   It  is difficult to appreciate the  argument.   What Art.  31(1)  prohibits is "deprivation of property  save  by authority of law".  No doubt the petitioner can say that  he is deprived of his property because of the declaration  made by the Custodian that it is evacuee property.  But then this declaration  has been made in pursuance of a law enacted  by Parliament.   If, as contended by him, we had held that  the law  is  unconstitutional  the  position  would  have   been different. The next contention of learned counsel is that cls. (a) and (c) of s. 40, sub-s. (4) are ultra vires because 193 they confer arbitrary power upon the Custodian.  The  reason for  raising the contention is that an application  made  by the  petitioner to the Custodian under s. 40 for  confirming the  sale  in his favour was rejected by him on  the  ground that  the evacuee did not act , in good faith  in  effecting the sale.  Sub-s. (4) of s. 40 P.reads thus:               "The Custodian shall hold an inquiry into  the               application  in the prescribed manner and  may               reject  the application, if the is of  opinion               that:               (a)   the  transaction  has not  been  entered               into   in   good   faith   or   for   valuable               consideration, or               (b)   the transaction is prohibited under  any               law for the time being in force, or               (c)   the   transaction   ought  not   to   be               confirmed for any other reason." We are concerned here only with cl. (a) of s. 40(4) to which the  Custodian  resorted and not with cl.  (c).   We  would, therefore, limit our remarks to el. (a).  Subsection (4)  of s. 40 enables the Custodian to hold an inquiry regarding the genuineness  or  validity  of a  transaction  sought  to  be confirmed  and cl. (a) empowers him to refuse to confirm  it if  he  finds that it was not entered into  in  good  faith. According  to  learned counsel the words  "good  faith"  are vague  and "slippery" and do not furnish any standard  or  a norm  which has to be conformed to by the Custodian.   Apart from the fact that the words "good faith" occur in a  number of  statutes and have acquired a definite meaning in  courts of  law, it may be pointed out that the power  conferred  by sub-s.  (4)  of S. 40 is in the nature of a  judicial  power and,   therefore,  the  absence  of  a  standard   for   the

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determination of the question would not render the provision unconstitutional. Learned  counsel wanted to contend that the absence of  good faith  on the part of the transferee was not sufficient  and could  not be regarded as a ground for refusing  recognition to  the  transfer  and  that unless it  is  shown  that  the transferee  was also lacking in good faith the transfer  had to be confirmed under sub-s. (4) of s. 40.  He, however, did not press the contention 194 when  it  was pointed out to him that in Rabia  Bai  v.  The Custodian-General  of Evacuee Property (1), this  Court  has upheld  the order of the Custodian refusing to  confirm  the transfer  on the ground that the evacuee had effected it  in bad faith. The  last contention of learned counsel is that he has  been discriminated  against  by the Custodian in  the  matter  of confirmation of the transaction.  He said that prior to  the sale of the land to him by Rehmatullah, the latter had  sold a  house  to some nurses and that sale was found to  be  for inadequate  consideration  but  in  spite  of  that  it  was confirmed  by  the Custodian while the sale in  his  favour, though  found  to be for an adequate consideration  was  not confirmed.  We would repeat that the order of the  Custodian is  a  judicial order and merely because he  may  have  gone wrong  in  dealing  with one case we cannot  hold  that  the petitioner has been discriminated against.  The petition  is wholly  without basis and is accordingly  dismissed  without costs. Petition dismissed.