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PETITIONER: DR. MOHAMMAD SAHEB MAHBOOB MEDICO

       Vs.

RESPONDENT: THE DEPUTY CUSTODIAN-GENERAL ANDANOTHER(And Connected Petiti

DATE OF JUDGMENT: 25/04/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1657            1962 SCR  (2) 371  CITATOR INFO :  R          1974 SC2349  (10)

ACT: Evacuee Property-Two groups of Persons, transferring  assets to Pakistan during two different periods-Equal Protection of laws  -Declaration  of evacuee Property, when  to  be  made- Administration  of  Evacuee  Property  Ordinance,  1949,  s. 2(d)(iii)-Administration  of Evacuee Property Act, 1950,  s. 22(b).

HEADNOTE: The  appellant was held to be an evacuee under S.  2(d)(iii) of  the Administration of Evacuee Property Ordinance,  1949, and  his property was declared to be evacuee property  under S.  22  (b) of the Administration of Evacuee  Property  Act, 950,  on  the ground that he had transferred  a  substantial portion of his assets to Pakistan.  The relevant portion  of s. 22(b) runs thus:- 372 "If the Custodian is satisfied, after such enquiry as may be prescribed,  that the circumstances relating to any  person, in respect of whom a declaration has been made on the ground that after the 14th day of August, 1947, and before the 18th day  of  October, 1949, he has transferred to  Pakistan  his assets  or  any  part thereof situated in any  part  of  the territories  to which this Act extends, are such as  may  be prescribed as  constituting a preparation for his  migration to Pakistan, the Custodian may declare any property situated in the State in which such person has any right or  interest to be evacuee property.........." The contentions, inter alia, of the appellant were that  (1) S.  22(b)  contravened Art. 14 of the Constitution  and  (2) that  the circumstances as to the transfer of a  substantial portion of his assets should relate to an act done after  he was declared as an intending evacuee. Held,  that the two groups of persons who transferred  their assets between the 14th August, 1947, and the 18th  October, 1949 and persons who transferred their assets after the 18th October,  1949  were  not similarly  circumstanced  and  the

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denial  of  equal  benefits to the two  groups  was  not  an infringement  of equal protection of laws under Art.  14  of the Constitution. The  circumstance  of transfer of a substantial  portion  of assets was available for consideration for the purpose of an order under S, 22(b) whether or not the transfer took  place before  the person was declared as an intending  evacuee  or afterwards.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 456 of 1958. Appeal  by special leave from the judgment and  order  dated May 10, 1957, of the Rajasthan High Court (Jaipur Bench)  at Jaipur in D. B. Civil Reference No. 17 of 1956.                             WITH PETITION No. 87 of 1961. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental rights. Bishan   Narain,   and   Govind   Saran   Singh,   for   the appellant/petitioner. N. S. Bindra and T. M. Sen, for the respondents. 1961.  April 25.  The Judgment of the Court was delivered by 373 DAS  GUPTA,  J.-On  April 1,  1950,  the  Deputy  Custodian, Jaipur, made an order in proceedings instituted under s.  19 of   the  Administration  of  Evacuee   Property   Ordinance declaring  the  appellant  Dr.  Mohammad  Saeed  a   medical practitioner  of Jaipur to be an intending evacuee.  By  the same  order  a  notice  was directed to  be  issued  to  the respondent to show cause why he should not be declared to be an  evacuee  under  s.  2(d)(i)  and  s.  2(d)(iii)  of  the Ordinance.   When thereafter the Administration  of  Evacuee Property Act, 1950 (Act XXXI of 1950), came into force  ano- ther  notice was issued on the appellant under s.  22(b)  of the  Act  to  show  cause why his  property  should  not  be declared  evacuee  property  on  the  ground  that  he   had transferred a substantial portion of his assets to Pakistan. On November 16, 1951, the Deputy Custodian, Jaipur held  Dr. Mohammad  Saeed to be an evacuee under s. 2(d)(iii)  of  the Administration of Evacuee Property Ordinance, 1949.  He also held  Dr. Mohammad Saeed’s property to be  evacuee  property under s. 7 of the Ordinance and also under s.     22(b)   of the Administration of Evacuee Property Act,  1950. On   appeal  the  District  Judge, Jaipur,  set  aside  this declaration  of  the  appellant  as  an  evacuee  under   s. 2(d)(iii) of the Ordinance and remanded the case for a fresh decision  in the light of the observations made by him.   As regards the order under s. 22(b) the learned District  Judge agreed with the Deputy Custodian that Dr. Mohammed Saeed had transferred a substantial portion of his assets to  Pakistan between November 1947 and September 1948.  Being of  opinion however that not only this act of transfer which took  place before   the   18th  day  of  October,   1949,   but   other circumstances   including  the  appellant’s  conduct   after October  18,  1949,  have to be,  taken  into  consideration before  action  under section 22(b) can be taken,  he  found that  it  was difficult to say that the appellant  had  been making   preparations   for  his  migration   to   Pakistan. Accordingly  he  set  aside the order  made  by  the  Deputy Custodian under s. 22(b).  The 48 374 Custodian   of  Evacuee  Property,  Rajasthan,   moved   the

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Custodian-General  of Evacuee Property for revision of  this order.  The Deputy Custodian-General of Evacuee Property who heard this petition in revision was unable to agree with the District  Judge’s  findings on the question as  regards  the order under s. 22(b) and accordingly made a reference  under s.   27(2)  of the Administration of Evacuee  Property  Act, 1950,  to  the  High Court of  Rajasthan.   The  High  Court rejected  the contention raised on behalf of this  appellant that  the circumstances as to the transfer of a  substantial portion  of his assets should relate to an act done  by  any person, after, he was declared as an intending evacuee.   It further  held  that  the fact that Dr.  Mohammad  Saeed  had during the period from August 14, 1947 to October 18,  1949, transferred a substantial portion of his assets in India  to Pakistan  constituted  under the law a preparation  for  his migration to Pakistan and that this justified a  declaration by  the Custodian of his property situated in  Rajasthan  in which  Dr.  Mohammad Saeed has a right or  interest,  to  be evacuee property.  Accordingly, the High Court set aside the decision  of  the  District  Judge  in  respect  of   Deputy Custodian-General’s  orders under s. 22(b) and directed  the Custodian-General   or  the  Deputy  Custodian-General,   if authorised to deal with it, to dispose of the proceedings in accordance  with  the  decision  of  the  High  Court.    In accordance with this direction the Deputy  Custodian-General on August 10, 1957, held that the property of the petitioner was  rightly declared to be evacuee property under s.  22(b) by the Deputy Custodian.  The appeal has been filed  against this decision by special leave granted by this Court. After the appeal was heard in part on January 23, 1961,  the hearing was adjourned to enable the appellant to make a writ petition.  A petition under Art. 32 of the Constitution  was then  filed  on  February 14, 1961, praying for  a  writ  of certiorari  and/or mandamus or direction to quash the  order made under s. 22(b).  The appeal and the petition have  come up for hearing together.                             375 As  the writ petition challenges the validity of the law  as enacted in s. 22(b) it will be proper and convenient to take up that petition for decision first.  Of the several grounds urged in the petition against the validity of S. 22(b)  only one,  viz.,  that  s.  22(b)  contravenes  Art.  14  of  the Constitution  has been pressed before us.  While however  in the  grounds as stated in the petition the attack  was  that discrimination  had  been made between persons  declared  as intending  evacuee in respect of whose property  proceedings had  been  started before the commencement of  the  Act  and those  in respect of whose property no such proceedings  had yet  been started and further that Art. 14  was  contravened because a person declared to be an intending evacuee who had done   one  of  the  acts  prescribed  as   constituting   a preparation for migration to Pakistan, was denied the  right to show that he had, in fact, no intention so to migrate and had made no preparation for the purpose and by imposing upon him a very grave penalty, neither of those contentions  were urged at the hearing. The  only argument on the question of contravention of  Art. 14 which Mr. Bishan Narain urged on behalf of the petitioner was that in two matters there was discrimination between  an intending  evacuee  whose  property  was  declared   evacuee property under s. 22(b) and an evacuee whose property  might be declared to be an evacuee property, where the evacuee had done practically the same thing for which another person has been declared as an intending evacuee.  Learned Counsel  has pointed out that under s. 2(d)(iv) of the Administration  of

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Evacuee Property Act, 1950, as it stood after its  amendment by  Act 11 of 1953, a person who has after the 18th  day  of October, 1949, transferred to Pakistan without the  previous approval  of  the Custodian his assets or any  part  of  his assets situated in any part of the territories to which  the Act  extends is an evacuee; so that any property of  such  a person  is evacuee property within the meaning of  the  Act. When  in respect of property of such a person an  order  has been  made under s. 7 of the Act declaring it to be  evacuee property the evacuee or his heir will be entitled to make 376 an  application for restoration of the property under s.  16 of  the  Act, and after due inquiry the  Central  Government may, subject to the conditions specified in the section make an  order restoring the property to the applicant.   Another benefit  which  a  person who   is  an  evacuee  within  the meaning  of  s. 2(d)(iv) is entitled to,  along  with  other evacuees,  is  that  of  s.  13  of  the  Displaced  Persons (Compensation and Rehabilitation) Act (XLIV of 1954),  under which  when  any property of an evacuee  has  been  acquired under  s. 12 there shall be paid to an evacuee  compensation in   respect  of  his  property........................   in accordance with such principles and in such manner as may be agreed upon between the Governments of India and Pakistan. Take  however  the  case  of  a  person,  like  the  present petitioner  who  after  the 14th day of  August,  1947,  and before the 18th day of October, 1949, transferred his assets or  any  portion  thereof  to  Pakistan.   He  would  be  an "intending evacuee" within the meaning of s. 2(e)(i) of  the Act and once a declaration had been made under s. 19 that he was an intending evacuee his property would be liable to  be declared  evacuee property under s. 22(b).  Even so  however he would not get the benefit of s. 16 of Act XXXI of 1950 or of  s.  13  of  the  Displaced  Persons  (Compensation   and Rehabilitation) Act, 1954. The  result  of  the  several  provisions  of  law  of   the Administration  of Evacuee Property Act, 1950, after it  was amended  in 1953 therefore is that if a  person  transferred his assets or any part of his assets to Pakistan without the previous  approval  of the Custodian after the 18th  day  of October,  1949,  he  would  be an evacuee  in  law  and  his property will be liable to be declared an evacuee  property, but he will still be entitled to restoration of the property under  s. 16 of the Administration of Evacuee  Property  Act 1950,  and  also to the benefit of s. 13  of  the  Displaced Persons  (Compensation  and  Rehabilitation)  Act  (XLIV  of 1954); but if a person transferred his assets or part of his assets to Pakistan between the 14th day of August, 1947, and the 18th day of October, 1949, he was liable 377 to  be declared an intending evacuee at any date before  the Amended  Act  of  1953  came into  force  and  if  that  has happened,  any  property belonging to him was liable  to  be declared evacuee property under s. 22 of the Act at any time before  Chapter IV of that Act was repealed by the 1953  Act and  even after that date if any proceeding under s. 22  was pending  on the’ date of the commencement of the  1953  Act. But  such a person would not be entitled to the  benefit  of either s. 16 of the Administration of Evacuee Property  Act, 1950,  or compensation under s. 13 of the Displaced  Persons (Compensation and Rehabilitation) Act (XLIV of 1954).   This denial  of benefits under section 16 of the 1950 Act and  s. 13 of the 1954 Act to one who has been declared an intending evacuee  on  the ground of transfer of  assets  to  Pakistan amounts, it is urged by the learned counsel, to be a  denial

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of  equal  protection of laws and it is  contended  that  s. 22(b)  of the Administration of Evacuee Property Act  as  it stood before the section war, repealed along with other sec- tions of Chapter IV should be held to be void. In our judgment, this contention is not well founded. In the first  place  it  is to be pointed out  that  a  person  who transferred  assets between the 14th August, 1947,  and  the 18th October, 1949, and a person who transferred such assets after the 18th October, 1949, cannot properly be  considered to  be similarly circumstanced.  It has to be borne in  mind that political relations between India and Pakistan were  in a  fluid  and  disturbed state immediately  after  the  14th August,  1947, but the position improved to  a  considerable extent  by the 18th October, 1949, which it may  be  noticed was  the  date when the Administration of  Evacuee  Property Ordinance,  1949,  was made.  Persons  who  had  transferred assets between the 14th August, 1947, and the 18th  October, 1949,  may therefore reasonably have been considered by  the legislature  to  form  a class distinct in  respect  of  the application  of  the law to their property  from  those  who transferred assets after the 18th October, 1949.  We are not however  concerned  with the reasons or the  wisdom  of  the policy which underlay the denial of the 378 benefits of s. 16 of the Administration of Evacuee  Property Act  and  s. 13 of the Displaced Persons  (Compensation  and Rehabilitation) Act (XLIV of 1954) to those persons who  had been   declared   intending  evacuees  because   of   having transferred  assets between the 14th August, 1947,  and  the 18th  October, 1949, while granting these benefits to  those who were evacuees under the law as amended in 1953,  because of  transfer of assets to Pakistan after the  18th  October, 1949.   What is clear is that the two groups of persons  are not  similarly  circumstanced  and so the  denial  of  equal benefits  to  the two groups is not an infringement  of  the guarantee of equal protection of laws. Next it is important to note that this differenceviz.,  that one  group  of persons is entitled to the  benefits  of  the sections mentioned above while another group is not-does not flow  directly  or  necessarily  from  s.  22(b).   What  is characterised  as discrimination between an evacuee  and  an intending  evacuee is the consequence of  the  legislature’s omission to extend to the intending evacuees the benefits of s. 16 of the 1950 Act and s. 13 of the 1954 Act as mentioned above  and not of the provisions under s. 22(b)  that  under certain circumstances as specified therein the Custodian may declare  the property of an intending evacuee to be  evacuee property. We do not think that it is possible to say therefore that s. 22(b)   of  the  Administration  of  Evacuee  Property   Act contravenes Art. 14 of the Constitution. The  petition  under Art. 32 of the  Constitution  therefore fails and is dismissed with costs. The  appeal  raises  the  question  of  the  effect  of  the application  of  s.  22(b) of the Act to the  facts  of  the present  case.  Section 22(b), substituting therein for  the words "he had done any of the acts specified in  sub-clauses (i) and (iii) of clause (e) of s. 2" the words of only cluse 2(e)(i), reads thus:-               "If  the  Custodian is satisfied,  after  such               enquiry   as  may  be  prescribed,  that   the               circumstances  relating  to  any  person,   in               respect of whom a declaration has been so made               on the ground that after the 14th               379

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             day  of August, 1947, and before the 18th  day               of  October,  1949,  he  has  transferred   to               Pakistan  his  assets  or  any  part   thereof               situated  in  any part of the  territories  to               which  this  Act extends are such  as  may  be               prescribed  as constituting a preparation  for               his  migration to Pakistan, the Custodian  may               declare any property situated in the State  in               which such person has any right or interest to               be  evacuee property and on the issue of  such               notification  any  property specified  in  the               notification  shall  be deemed to  be  evacuee               property  which  has vested in  the  Custodian               within the meaning of this Act." It  is  important to notice the explanation to  the  section which runs thus:-               "Explanation:-The following shall be deemed to               be some of the circumstances prescribed  under               clause (b), namely-               (i)   the  transfer to Pakistan by any  person               referred  to in that clause of  a  substantial               portion of his assets situated in any part  of               the territories to which this Act extends, or               (ii)  the  acquisition of, or the  declaration               of   an   intention   to   acquire,   Pakistan               nationality by any such person."               It  need only be mentioned that a  declaration               has  been "so made" means that  a  declaration               has been made under section 19 of the Act that               he is an intending evacuee. It  is  no longer in dispute that Dr.  Mohammad  Saeed  had, before  the  order appealed from was  made,  transferred  to Pakistan  a  substantial portion of his assets  situated  in Jaipur  which is part of the territories to which  this  Act extends.   It is further not in dispute that  this  transfer was made before he was declared an intending evacuee. The  first contention raised on behalf of the appellant  was that  this transfer having been made before the  declaration was made is not available for consideration for the  purpose of  an  order  under s. 22(b).  The  contention  is  clearly unwarranted.   On a normal grammatical construction  of  the words  used by the legislature it is abundantly  clear  that the transfer to 380 Pakistan  of  a substantial portion of the assets  shall  be deemed  to  be  one of the  circumstances  prescribed  under clause  (b) irrespective of whether the transfer took  place before  the  declaration as intending evacuee  was  made  or after  such  declaration.   What is necessary  is  that  the circumstance must relate to any person in respect of whom  a declaration  that he is an intending evacuee has been  made. There  is  nothing  to  justify  the  conclusion  that   the circumstances   in  order  that  they  may  be  taken   into consideration  must  also  come  into  existence  after  the declaration was made.  Indeed the scheme of the  legislation appears  to be that the fact that any portion of a  person’s assets  has  been transferred to Pakistan is  sufficient  to make  him  liable to a declaration that he is  an  intending evacuee;  but he becomes liable to the  further  declaration that his property is evacuee property, where it appears that what  was  transferred forms a substantial  portion  of  his assets.   In  some  cases  it  may  happen  that  what   was transferred  before his declaration as an intending  evacuee formed a small part of his assets.  In such a case if  later on other portions of his assets were transferred to Pakistan

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and  the  two transfers together amount to a transfer  of  a substantial  portion  of his assets, his  property  will  be liable  to  be  declared as evacuee  property:  It  will  be difficult  to find any logic in the argument that when  what was transferred before his declaration as intending  evacuee was  itself  a  substantial  portion  of  his  assets,  such liability  should not fasten.  Quite apart however from  the question  of logic or reasonableness it is quite clear  from the  language used in the section that the  legislature  in. tended  such  circumstance  of  transfer  of  a  substantial portion of assets to be available for consideration for  the purpose  of  an  order under s. 22(b)  whether  or  not  the transfer  took  place before the person was declared  as  an intending evacuee or afterwards. It  was next urged that in any case it would be  proper  for the  Custodian  to take other  circumstances  including  the later conduct of the intending evacuee to decide whether  or not  he should declare his property to be evacuee  property. It is unnecessary for 381 us  to  consider  whether it is open  to  the  Custodian  to consider  such  other circumstances.   The  section  however gives a Custodian the authority to declare the property of a person  who  has been declared an intending  evacuee  to  be evacuee  property  whenever  the existence  of  any  of  the circumstances  prescribed as constituting a preparation  for his migrating to Pakistan is established.  Where, as in  the present case, a Custodian in exercise of such authority  has given such a declaration there is no reason for saying  that the declaration has been improperly made. In  our opinion, the High Court was right in  setting  aside the  order  of  the  District Judge  and  in  directing  the Custodian-General or the Deputy Custodian-General to dispose of the matter in accordance with the views expressed by  the High  Court that on the facts proved in the case  the  order made by the Deputy Custodian declaring Dr. Mohammad  Saeed’s property  as evacuee property was right.  The order made  by the   Deputy  Custodian-General  in  compliance   with   the directions  given  by  the High Court  cannot  therefore  be assailed. The appeal is accordingly dismissed with costs. Appeal dismissed. 49 382