28 October 1955
Supreme Court


Case number: Appeal (civil) 195 of 1954






DATE OF JUDGMENT: 28/10/1955


CITATION:  1956 AIR   77            1955 SCR  (2)1117

ACT: Evacuee    Property-Custodian-General-Revisional     powers- Administration of Evacuee Property Act, 1950 (XXXI of 1950), ss.  2 7, 58(3)-Transaction before the passing of  the  Act- Application    for   confirmation-East   Punjab    Evacuees’ (Administration of Property) Act, 1947 (East Punjab Act  XIV of  1947), ss. 5-A, 5-B-Order of confirmation after  passing of Act XXXI of 1950-Revision-Validity-General Clauses Act (X of 1897), s. 6-Applicability.

HEADNOTE: The appellant, a displaced person from Lahore, was the owner of  a  house  there and on the 10th of  October,  1947,  she arranged  to  have  it exchanged with  certain  lands  in  a village  in the State of Delhi, belonging to M, an  evacuee. On  the 23rd of February, 1948, she made an  application  to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the transaction of ex- 1118 change   under   s.  5-A  of  the  East   Punjab   Evacuees’ (Administration  of Property) Act, 1947, as amended in  1948 and applied to the State of Delhi.  Under s. 5-B of the  Act an order if passed by the Custodian or Additional  Custodian would not be subject to appeal or revision, and would become final and conclusive.  But the application was not  disposed of  until  the  20th of March, 1952, and on  that  date  the Additional   Custodian  passed  an  order   confirming   the exchange.   In the meanwhile, there were changes in the  law relating to evacuee property by which the East Punjab Act as applied  to  the  State of Delhi witness  repealed  and  re- enacted, and ultimately Central Act XXXI of 1950 was  passed which,  among  other things, conferred by s.  27  revisional powers  on  the  Custodian-General.   The  Custodian-General issued  a  notice under s. 27 to the  appellant  and,  after hearing  her,  set  aside  the  order  of  confirmation  and directed the matter to be reconsidered by the Custodian.  It was   contended  for  the  appellant  that  the   order   of confirmation  by  the Additional Custodian was not  open  to revision,   on  the  ground  that  on  the  filing  of   the



application in 1948 the appellant got a vested right to have it  determined under s. 5-A, with the attribute of  finality and   conclusiveness   under  s.  5-B  attaching   to   such determination,  and  that  the  subsequent  repeal  and  re- enactment of these provisions cannot affect such a right, in view of s. 6 of the General Clauses Act, and s. 58(3) of Act XXXI of 1950. Held  (i) that s. 6 of the General Clauses Act (X  of  1897) was  not applicable to the case, as s. 58(3) of Act XXXI  of 1950  was  a  self-contained  provision  indicative  of  the intention to exclude the operation of s. 6; (ii)that the right to a determination with the attribute  of finality,  assuming  that such a right exist,.;,  is  not  a vested right and it does not accrue until the  determination is in fact made, when alone it becomes an existing right. Colonial Sugar Refining Co. Ltd. v. Irving ([1905] A.C. 369) and Delhi Cloth & General Mills Co. Ltd. v. Income-Tax  Com- missioner   ([1927]  I.L.R.  9  Lah.  284;  54  I.A.   421), distinguished; (iii)that  the  words  "the  repeal  shall  not  affect  the previous  operation of the repealed law" in s. 58(3) of  Act XXXI  of  1950 cannot be construed as  meaning  "the  repeal shall not affect the future operation of the previous  law"; and (iv)that the scheme underlying s. 58(3) is that every matter to  which the new Act applies has to be treated as  arising, and to be dealt with, under the now law except in so far  as certain  consequences have already ensued or acts have  been completed  prior to the new Act, to which it is the old  law that will apply. In view of s. 58, the application of the appellant for  con- firmation  pending  on the date when Act XXXI of  1950  came into force, had to be dealt with and disposed of under  this Act and the order of confirmation passed in 1952 was subject to the revisions -power of the Custodian-General under s, 27 of the said Act, 1119 Quaere.-  Whether a right of appeal in respect of a  pending action can be treated as a substantive right vesting in  the litigant on the commencement of the action.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 195 of 1954. Appeal  by special leave from the judgment and  order  dated the  20th  May,  1953 of  the  CustodianGeneral  of  Evacuee Property, New Delhi in Revision No. 387-R/Judl/53. Achhru Ram, (Ganpat Rai, with him) for the appellant. C.   K. Daphtary, Solicitor-General of India, (Porus A.Mehta and R. H. Dhebar, with him) for respondents Nos. 1 & 2. 1955.  October 28.  The Judgment of the Court was  delivered by JAGANNADHADAS J.-This is an appeal by special leave  against the order of the Custodian-General of Evacuee Property dated the  20th  May, 1953, revising an order  of  the  Additional Custodian of East Punjab, Delhi, dated the 20th March, 1952. The two questions raised before us on the facts and  circum- stances, to be stated, are (1) whether the Custodian-General had the revisional power which he purported to exercise, and (2)  was  the order of the Custodian-General on  its  merits such as to call for interference by this Court. The  appellant  before us, one Mrs. Indira  Sobanlal,  is  a displaced person from Lahore.  She was the owner of a house. at  Lahore known as 5, Danepur Road.  Malik Sir  Firoz  Khan



Noon of West Pakistan owned 766 bighas of agricultural  land in a village called Punjab Khore within the State of  Delhi. An  oral exchange is said to have taken place between  these two.,  of the said properties, on the 10 th  October,  1947. In  pursuance of that exchange Malik Sir Firoz Khan Noon  is said  to  have taken possession of the Danepur  Road  House. The appellant is also said to have been put in possession of the  said agricultural lands in Punjab Khore  presumably  by way of attornment 1120 of tenants who were in actual cultivating possession of  the lands.   Under  section  5-A of the  East  Punjab  Evacuees’ (Administration of Property) Act, 1947 (East Punjab Act  XIV of  1947),  as amended in 1948 and applied to the  State  of Delhi,  such  a  transaction required  confirmation  by  the Custodian.   In compliance with this section  the  appellant made  an  application  on the 23rd February,  1948,  to  the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the above transaction of exchange and of the consequent  transfer to her of the property in  agricultural land.  In view of certain rules which came into force  later and which prescribed that the application was to be in a set form furnishing certain particulars, the appellant filed  an amended application dated the 14th August, 1948,  furnishing the required particulars.  This application was not disposed of by the Additional Custodian, for reasons not clear on the record, until the 20th March, 1952.  On that date he  passed an  order confirming the exchange.  Meanwhile,  however,  a, proposal  was  put  up to the Additional  Custodian  by  his Revenue Assistant to allot agricultural lands of the village Punjab Khore, including those covered by this exchange, to a number of refugee-cultivators.  The proposal was approved by the  Additional  Custodian  on  the  12th  June,  1949.   In pursuance  thereof a detailed allotment was made  to  twenty six  individual allottees on the 27th October, 1949.   There is  a  report of the Rehabilitation Patwari dated  the  27th February  1950,  on the record showing  that  the  allottees entered  into  possession of the land and  cultivated  their respective lands and settled down in the village.  After the order  confirming the exchange was passed by the  Additional Custodian  on the 20th March, 1952, the appellant  filed  an application  on  the 5th May, 1952, asking to be  placed  in possession,  and for a warrant of delivery of possession  to be  issued against the various allottees and tenants of  the land.  The Naib Tehsildar recommended that possession may be given to the appellant and that the Patwari may be  informed accordingly to take the necessary action in the matter.  But it does 1121 not appear from the record whether this was done, or whether possession  was in fact delivered.  At this stage, a  notice under  section 27 of the Administration of Evacuee  Property Act,  1950 (Central Act XXXI of 1950), appears to have  been issued  to  the appellant by the Custodian-General  to  show cause  why the order of the Additional Custodian  dated  the 20th  March, 1952, confirming the exchange and  the  further orders  dated  the  20th and 28th  July,  1952,  sanctioning mutation and other consequential and incidental orders  made in  connection  therewith  be not set  aside.   This  notice appears  to  have been issued asking the appellant  to  show cause  on the 4th May, 1953.  The case was adjourned to  the 12th May, 1953, at the request of counsel for the  appellant and  thereafter a more detailed notice dated the  14th  May, 1953,  was issued setting out the various grounds  on  which the  previous  orders  were sought to  be  set  aside.   The



learned Custodian-General passed the order now under  appeal on   the  20th  May,  1953,  setting  aside  the  order   of confirmation.  He directed the Custodian to decide the  case after  giving notice to all those who might be  affected  by the  confirmation of this transaction.  As the earlier  part of  his order shows, the reference to the  persons  affected was  to  those who were allotted the lands  in  question  by virtue of the order of the Additional Custodian of the  year 1949 above referred to. To appreciate the first question that has been raised as  to the  validity  of the exercise of revisional powers  by  the Custodian-General on the above facts, it is necessary to set out  the  course of the relevant legislative  measures  from time to time. To  meet the unprecedented situation of sudden migration  of vast  sections  of  population on a large  scale  from  West Punjab  to East Punjab and vice versa, leaving most  of  the properties   which  they  had,  moveable   and   immoveable, agricultural and nonagricultural, the concerned  Governments bad  to  take  wide  legislative powers  to  deal  with  the situation, to set up the necessary administrative machinery, and to evolve and give effect to their policies in regard thereto from time to time.  The earliest of  these legislative  measures  so far as we are concerned,  was  the East Punjab Evacuees (Administration of Property) Act,  1947 (East Punjab Act XIV of 1947), which came into force on  the 12th December, 1947.  This Act was amended by the East  Pun- jab  Evacuees’  (Administration  of  Property)   (Amendment) Ordinance,  1948 (East Punjab Ordinance No. II of 1948)  and later by East Punjab Evacuees’ (Administration of  Property) (Amendment) Act, 1948, (East Punjab Act XXVI of 1948), which inserted  two  new sections, 5-A and 5-B I  prescribing  the requirement of confirmation Of transactions relating to eva- cuee  property and providing a right of appeal  or  revision therefrom.  These sections were specifically made applicable to  transactions  on or after the 15th  August,  1947.   The above Punjab Legislative measures were extended to the State of Delhi by Central Government notifications under the Delhi Laws  Act, dated the 29th December, 1947, the 28th  January, 1948, and the 22nd April, 1948, respectively.  In so far  as these  measures  applied to Chief  Commissioners’  Provinces they were repealed by the Administration of Evacuee Property (Chief  Commissioners’ Provinces) Ordinance, 1949,  (Central Ordinance  No. XII of 1949) which came into force so far  as Delhi is concerned on the 13th June, 1949.  This  Ordinance, in its turn, was repealed and a fresh Central Ordinance came into force in its place, applicable to all the Provinces  of India except Assam and West Bengal.  That was Administration of Evacuee Property Ordinance., 1949, (Central Ordinance No. XXVII  of 1949), which came into force on the 18th  October, 1949.   This Central Ordinance in its turn was repealed  and replaced by the Administration of Evacuee Property Act, 1950 (Central Act XXXI of 1950) which came into force on the 17th April, 1950. It  is  necessary  to notice at this stage  that  until  the Central  Ordinance  XXVII of 1949 was  passed,  the  Evacuee Property law was regulated by the respective Provincial Acts and  were -under the respective Provincial  administrations. Central Ordinance 1123 No.  XXVII  of  1949  provided for  a  centralised  law  and centralised  administration which was continued  by  Central Act No. XXXI of 1950.  One of the main steps taken for  such centralised  administration  was  to create  the  office  of Custodian-General  with  powers of appeal  and  revision  as



against  the orders of Provincial Custodians.  Section 5  of the  Central  Ordinance  No. XXVII of  1949  authorised  the Central Government to appoint a Custodian-General of Evacuee Property in India for the purpose of discharging the  duties imposed  on  him  by  or  under  the  Ordinance,  while  the appointment of Provincial Custodians, Additional, Deputy  or Assistant   Custodians,  was  still  left  to  the   various Provincial Governments.  These provisions were continued  by sections  5 and 6 of Central Act XXXI of 1950.   As  regards the  transactions by evacuees relating to evacuee  property, the first legislative interference in East Punjab and  Delhi appears  to  have  been by virtue of  East  Punjab  Evacuees (Administration  of Property) (Amendment’)  Ordinance,  1948 (East  Punjab Ordinance No. II of 1948) and the East  Punjab Evacuees’ (Administration of Property) (Amendment) Act, 1948 (East  Punjab  Act  XXVI of 1948)  which  inserted  two  new sections  5-A and 5-B into the East Punjab Act XIV of  1947. The said sections were as follows: "5-A.  (1)  No sale, mortgage, pledge,  lease,  exchange  or other  transfer  of  any interest or right in  or  over  any property made by an evacuee or by any person in anticipation of  his  becoming  an evacuee, or by the  agent,  assign  or attorney  of  the evacuee or such person, on  or  after  the fifteenth  day of August, 1947, shall be effective so as  to confer  any  rights  or  remedies on  the  parties  to  such transfer  or on any person claiming under them unless it  is confirmed by the Custodian. (2)  An application for confirming such transfer may be made by any person claiming thereunder or by any person  lawfully authorised by him. (3)  The  Custodian shall reject any application made  after the thirty first day of March, 1948 or after 142 1124 the  expiration of two months from the date the  transaction was entered into, whichever is later. (4)  The  Custodian  shall hold a summary  enquiry  into  an application, which is not rejected under subsection (3)  and may decline to confirm the transaction if it appears to  the Custodian that- (a) the transaction was not a bona fide one for valuable consideration; or (b)  the  transaction  is in the opinion  of  the  Custodian prejudicial to the prescribed objects; or (c) for any  other reason,  to  be  given  by the  Custodian  in  writing,  the transaction ought not to be confirmed. (5)If the Custodian confirms the transaction, he may confirm it  unconditionally or subject to such conditions and  terms as he may consider proper. (6)The  Custodian,  if the order is not  pronounced  in  the presence  of the applicant, shall forthwith give  notice  in writing  to the applicant of any order passed by  him  under sub-sections (3), (4) or (5). " 5-B.  If the original order under section 5-A is passed by an  Assistant or Deputy Custodian of Evacuee  Property,  any person aggrieved by such order may appeal within sixty  days from  the  date of -the order to the Custodian  of  ]Evacuee Property  who may dispose of the appeal himself or  make  it over  for  disposal to the Additional Custodian  of  Evacuee Property;  and subject only to the decision on such  appeal, if  any,  the  order  passed by  the  Assistant  or  ’Deputy Custodian of Evacuee Property, or any original or  appellate order  passed  by the Custodian or Additional  Custodian  of Evacuee Property shall be final and conclusive". It  will  be  seen that  these  two  sections-enjoined  that



transfers by an evacuee or intending evacuee relating to his property  from  and after the 15th  August,  1947,  required confirmation  and provided for appeal or revision  from  the orders passed on applications therefor and subject  thereto, such orders were made final and conclusive.  The requirement as to confirmation has been substantially continued in  more or less the same form by sections 25, 38 and 40 respectively of 1125 the  successive  legislative  measures  with  certain  modi- fications which are not material for this case.  But so  far as  the appealability or revisability of an order passed  on an  application for confirmation is concerned.,  there  have been  changes  from:  time to time.  It will  be  seen  from section  5-B of the East Punjab Act, XIV of 1947, as  quoted above,  that any original order passed by the  Custodian  or Additional  Custodian is not subject to appeal  or  revision and it is specifically declared to be final and  conclusive. Central  Ordinance  No.  XII of 1949 by  section  30(1)  (b) thereof provided for an appeal to the High Court against  an original  order  of a Custodian or Additional  Custodian  or authorised  Deputy Custodian but there was no provision  for revision of such an order.  Under the Central Ordinance  No. XXVII  of  1949 the position  was  substantially  different. Section  24 thereof, inter alia, provided that.  any  person aggrieved   by  an  order  made  under  section  38   (which corresponds  to the previous section 5-A of the East  Punjab Act  XIV of 1947) may prefer an appeal in ,such  manner  and within  such  time as may be prescribed, to  the  Custodian- General  where  the original order has been  passed  by  the Custodian,  Additional  Custodian or  an  Authorised  Deputy Custodian.   Section  27  thereof  provided  for  revisional powers  of  the Custodian-General but  it  was  specifically confined  to appellate orders and there was no  power  given thereunder  for  revision  by the  Custodian-General  of  an original  order passed by the Custodian.  But under  Central Act XXXI of 1950 which repealed and replaced this  Ordinance the  position  became different.  The provision  for  appeal under  section 24 thereof was virtually the same as  before, in so far as it is relevant here.  But as regards  revision, however,  section 27 of the Act provided for the  revisional powers of the Custodian-General in the following terms: "27.  (1) The Custodian-General may at any time,  either  on his own motion or on application made to him in this behalf, call for the record of any proceeding in which any  district judge  or Custodian has passed an order for the  purpose  of satisfying him- 1126 self  as to the legality or propriety of any such order  and may pass such order in relation thereto as he thinks fit: Provided that the Custodian-General shall not pass an  order under  this  sub-section prejudicial to any  person  without giving him a reasonable opportunity of being heard.     ....................................." The  question  relating to the validity  of  the  revisional powers  exercised  by the Custodian-General in  the  present case   arises  with  reference  to  the   provisions   above mentioned. It  is  not disputed that Malik Sir Firoz Khan Noon  was  an evacuee.   Nor is it disputed that this property  in  Punjab Khore  which  was  the subject-matter of  the  exchange  was evacuee  property.   Though  the exchange  in  question  was alleged to have taken place on the 10th October, 1947, at  a time  when  there  was no restriction  against  any  evacuee dealing with the property he left behind, it is indisputable



that  section 5-A of the East Punjab Act XIV of  1947  which has  been  specifically  made retrospective  from  the  15th August, 1947, operates in respect of the present transaction also.   It, therefore, requires confirmation under the  said section   and  under  the  corresponding  sections  in   the subsequent  legislative measures in this behalf.  It was  in compliance with this requirement that the appellant made  an application for confirmation on the 23rd February. 1948, and that a subsequent amended application was filed on the  14th August,  1948.  It is these applications that were  disposed of  on  the 20th March, 1952, by the  Additional  Custodian, Delhi, by an order confirming the exchange, which has  since been revised by the Custodian-General on the 20th May, 1953. The main contention of the learned counsel for the appellant is to  the powers which are vested in the  Custodian-General to revise the original orders of the Custodian or Additional Custodian  under section 27 of the Central Act XXXI of  1950 are  not applicable to an order passed by the  Custodian  or Additional 1127 Custodian on an application made long prior to the time when the  office of the Custodian-General was set up and  he  was clothed  with powers of revision.  It is urged that  on  the date when the application for confirmation was first made on the  23rd February, 1948, an order passed under section  5-A by  the Custodian or Additional Custodian is final and  con- clusive  under section 5-B.  It is strongly -urged that  the subsequent  repeal  and  re-enactment  of  these  provisions cannot affect the right vested in the appellant to obtain  a final and conclusive order from the Custodian or  Additional Custodian on her application for confirmation.  Section 6 of the  General Clauses Act and the Privy Council case  in  the Colonial Sugar Refining Co. Ltd. v. Irving(1) were relied on in support of this contention.  To determine the validity of this contention, it is necessary to trace the course of  the various  relevant  statutory provisions from  time  to  time which repealed the prior corresponding legislative  measures and to determine the effect thereof. The East Punjab Act XIV of 1947 was replaced by the  Central Ordinance  No. XII of 1949 relating to Chief  Commissioners’ Provinces.  Section 40 thereof which repealed the prior  Act was as follows:- "40.  (1)  The  East  Punjab  Evacuees’  (Administration  of Property)  Act,  1947 (East Punjab Act XIV of 1947),  as  in force in Ajmer-Merwara and Delhi, is hereby repealed. (2)Notwithstanding such repeal, anything done or any  action taken  in  the exercise of any power conferred  by  the  Act aforesaid  shall,  in relation to the  Provinces  of  Ajmer- Merwara  and Delhi, be deemed to have been done or taken  in the exercise of the powers conferred by this Ordinance,  and any penalty‘ incurred or proceeding commenced under the said Act shall be deemed to be a penalty incurred, or  proceeding commenced under this Ordinance as if this Ordinance were  in force  on  the day when such thing was done,  action  taken, penalty incurred or proceeding commenced". When this Ordinance was in turn repealed by (1)  [1905] A.C. 369. 1128 Central  Ordinance No. XXVII of 1949, the repealing  section 55 was as follows: "55.  (1) The Administration of Evacuee Property  Ordinance, 1949 (XII of 1949), as in force in the Chief  Commissioners’ Provinces is here by repealed. (2)............................ (3)Notwithstanding  the  repeal  by this  Ordinance  of  the



Administration  of Evacuee Property Ordinance, 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 this Ordinance, and any  penalty incurred or proceeding commenced under that Ordinance or law shall  be  deemed  to be a penalty  incurred  or  proceeding commenced under this Ordinance as if this Ordinance were  in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced". Ordinance  No.  XXVII of 1949 was in its  turn  repealed  by Central  Act  XXXI  of 1950.  This Act  was  amended  by  an Ordinance and later by an Act of, the same year.  Section 58 is  the repealing provision of this Act as so amended.   The material portion thereof is as follows: "58.  (1) The Administration of Evacuee Property  Ordinance, 1949 (XXVII of 1949) is hereby repealed. (2)............................. (3)The  repeal by this Act of the Administration of  Evacuee Property  Ordinance, 1949 (XXVII of 1949).......  shall  not affect the previous operation thereof, and subject  thereto, anything  done  or any action taken in the exercise  of  any power  conferred 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  was taken". Thus in the transition of the Evacuee Property law 1129 relating  to Delhi, from the East Punjab Act XIV of 1947  to the present Central Act XXXI of 1950, there have been  three repeals.   The first two repealing provisions are in  almost identical  terms but the third is somewhat  different.   The difference  is  in two respects. (1) The  provision  in  the previous  repealing sections that "any penalty  incurred  or proceeding commenced under the repealed law shall be  deemed to  be a penalty incurred or proceeding commenced under  the new law as if the new law were in force on the day when  the penalty  was  incurred  or  proceeding  commenced"  is   now omitted. (2) The provision that "anything done or any action taken in exercise of any power conferred by the previous law shall  be deemed to have been done or taken in  exercise  of the  powers conferred by the new law as if the new law  were in  force  on  the day when such thing was  done  or  action taken"  is continued.  But it is specifically provided  that this  is subject to the repeal not affecting  the  "previous operation of the repealed law" which in the context  clearly means the previous operation of the repealed law in  respect of  "anything done or any action taken".  The question  thus for  consideration  is what is the result brought  about  by these provisions. Before  proceeding  to  determine it,  it  is  desirable  to consider whether section 6 of the General Clauses Act can be relied on.  The position as regards section 6 of the General Clauses Act in the case of repeal and re-enactment has  been considered  by  this  Court  in State  of  Punjab  v.  Mohar Singh(’) and laid down as follows at page 899: "Whenever   there   is  a  repeal  of  an   enactment,   the consequences  laid down in section 6 of the General  Clauses Act  will  follow  unless, as the  section  itself  says,  a different intention appears.  In the case of a simple repeal there  is  scarcely any room for expression  of  a  contrary opinion.    But  when  the  repeal  is  followed  by   fresh legislation on the same subject we would undoubtedly have to look  to  the provisions of the new Act, but  only  for  the



purpose  of determining -whether they indicate  a  different intention. (1)  [1955] 1 S.C.R. 893, 899. 1130 The  line  of  enquiry would be, not  whether  the  new  Act expressly keeps alive old rights and liabilities but whether it  manifests  an  intention to  destroy  them.   We  cannot therefore subscribe to the broad proposition that section  6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation.  Section  6 would  be  applicable  in such cases  also  unless  the  new legislation manifests an intention incompatible with or con- trary  to  the  provisions  of  the  section.   Such  incom- patibility would have to be ascertained from a consideration of all the relevant provisions of the new law...............". In the present case sub-section (3) of section 58 of Central Act  XXXI  of 1950 purports to indicate the effect  of  that repeal,  both  in  negative  and  in  positive  terms.   The negative portion of it relating to "the previous  operation" of  the  prior  Ordinance appears to have  been  taken  from section 6(b) of the General Clauses Act, while the  positive portion adopts a "deeming" provision quite contrary to  what is  contemplated  under  that section.   Under  the  General Clauses  Act the position, in respect of matters covered  by it, would have to be determined as if the repealing Act  had not been passed, while under section 58 of Central Act  XXXI of  1950,  the position-so far as the  positive  portion  is concerned-has  to be judged as if the repealing Act were  in force at the earlier relevant date.  Therefore where, as  in this case, the repealing section which purports to  indicate the  effect of the repeal on previous matters, provides  for the  operation of the previous law in part and  in  negative terms, as also for the operation of the new law in the other part  and in positive terms, the said provision may well  be taken  to be self-contained and indicative of the  intention to  exclude  the  application of section 6  of  the  General Clauses  Act.   We are, therefore, of the opinion  that  the said section cannot be called in aid in this case. Now, as to the meaning of section 58(3) of Central Act  XXXI of  1950,  it must be admitted that this is  not  free  from difficulty.  This kind of provision in a 1131 repealing  Act appears rather unusual.  Learned counsel  for the  appellant  urges  that the  positive  portion  of  this provision,  i.e.,  "anything  done or any  action  taken  in exercise  of any power conferred by or under, the  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  was  taken" applies only  to  purely  administrative matters  and  that his case falls within the  scope  of  the first  portion,  viz.,  "the  repeal............  shall  not affect the previous operation of the (repealed)  Ordinance". His  contention  is that the application  for,  confirmation which  was made by the appellant in 1948 and which  remained pending  until  Act  XXXI  of  1950  came  into  force   and superseded the earlier legislation in this behalf, had to be disposed  of in accordance with sections 5-A and 5-B of  the East  Punjab Act XIV of 1947, as amended in 1948;  that  the order of confirmation passed by the Additional Custodian  in such  a  pending  application  was not  open  to  appeal  or revision but became final and conclusive.  It is urged  that on the filing of the application in 1948, the appellant  got a vested right to have it determined under section 5-A  with



the  attribute of finality and conclusiveness under  section 5-B  attaching  to  such determination.   According  to  the learned  counsel this follows from the "previous  operation" of the repealed law and is in consonance with the  principle laid  down by the Privy Council in Colonial  Sugar  Refining Co.  Ltd.  v.  Irving(1).   It  appears  to  us  that  these contentions  are unsustainable. Colonial Sugar Refining  Co. Ltd.  v. Irving(1) relates to the case of a right of  appeal against an order passed or to be passed in a pending action. Their  Lordships treated the right of appeal to  a  superior tribunal  in a pending action as an existing right and  held that  the  suitor cannot be retrospectively deprived  of  it except  by express words or by necessary implication.   This doctrine was affirmed by the Privy Council in Delhi Cloth  & General Mills Co. Ltd. (1)  [1905] A.C. 369. 143 1132 v.Income  Tax-Commissioner, Delhi(1) in its  application  to the converse case in the following terms: "Their Lordships can have no doubt 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". It may be noticed that in the case in Delhi Cloth &  General Mills Co. Ltd. v. Income-Tax Commissioner(1), the orders  of the High Court from which appeals were sought to be filed to the Privy Council were dated the 6th January, 1926 and  12th January,  1926.  As the Indian Income-tax Act stood  at  the time  and  according  to the interpretation  of  section  66 thereof  by  the Privy Council in Tata Iron & Steel  Co.  v. Chief  Revenue Authority, Bombay(2) there was no  appeal  to the  Privy Council.  The legislature by an amendment of  the Income-tax  Act,  which came into force on  the  1st  April, 1926,  inserted  therein section 66-A and gave  a  right  of appeal  against  such orders as provided therein.   In  this situation the Privy Council repelled the contention that the litigant  could  avail  himself  of  the  new  provision  by pointing  out  the  finality  of the  orders  fought  to  be appealed  against and referring to it as an existing  right. This is obviously so because finality attached to them., the moment  orders  were passed, prior to the new Act.   In  the present  case,  the position is different.  The  action  was still pending when Central Act XXXI of 1950 came into force. No  order  was passed which could attract the  attribute  of finality  and conclusiveness under section 5-B of  the  East Punjab  Act  XIV of 1947.  Further the possibility  of  such finality was definitely affected by the repealing  provision in  Central Ordinance No. XII of 1949 and Central  Ordinance No.  XXVII  of  1949, which  specifically  provided  that  a pending  action was to be deemed to be an  action  commenced under  the new Ordinance as if it were in force at the  time and  therefore  required  to  be  continued  under  the  new Ordinances.  Each of these Ordinances provided for (1)   [1927] I. L.R. 9  Lahore 284. (2)  (1923] L.R. 50 I.A. 212. 1133 appeal against such an order and the second of them provided for  the exercise of revisional power against  an  appellate order  of the Custodian.  Learned counsel for the  appellant contends  that,  even so, the finality  and  conclusiveness, which would have attached to an order made under section  5- A, if made before Ordinance XII of 1949 was promulgated, was affected  only  to  the extent of its being  subject  to  an appeal  and  not  to revision.  But once  the  attribute  of



finality  in  respect  of  such  an  order  is  affected  by subsequent  legislation,  it  does  not  appear  to  be   of consequence  that it was affected first by a  provision  for appeal and later by provisions for appeal and revision.   It is  difficult  to see that such provisions,  in  those  cir- cumstances, are anything more than alterations in procedure. However  this  may be, it appears to be clear that  while  a right  of  appeal  in  respect  of  a  pending  action   may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action-though we do  not so  decide-no  such vested right to obtain  a  determination with  the attribute of finality can be predicated in  favour of a litigant on the institution of the action.  By the very terms  of  section  5-B  of East Punjab  Act  XIV  of  1947, finality attaches to it on the making of the order.  Even if there  be, in law, any such right at all as the right  to  a determination  with the attribute of finality, it can in  no sense  be  a vested or accrued right.  It  does  not  accrue until  the  determination is in "fact made, when  alone  the right  to  finality becomes an existing right  as  in  Delhi Cloth   and   General   Mills   Co.   Ltd.   v.    IncomeTax Commissioner(1).  We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co.  Ltd. v.  Irving(2) cannot  be invoked in support of a case of the kind  we  are dealing with. Nor  can  this  be brought under the  ambit  of  the  phrase "previous  operation of the repealed law".  What in  effect, learned  counsel for the appellant contends for is  not  the "previous  operation  of the repealed law" but  the  "future operation of the previous (1) [1927] I.L.R. 9 Lahore 284, (2) [1905] A.C. 369. 1134 law".   There is no justification for such  a  construction. Besides,  if  in respect of the pending application  in  the present case, the previous repealed law is to continue to be applicable  by virtue of the first portion of section  58(3) the  question arises as to who are the authorities that  can deal  with  it.  The application can be dealt  with  by  the Custodian  and  on appeal by the Custodian-General  only  as functioning  under the previous law.  But as such  Custodian or Custodian-General they have disappeared by virtue of  the repeal.   It  is only the second portion  of  section  58(3) which  continues them as though the appointments  were  made under  the  new  Act  a position  which  could  scarcely  be controverted.   To  the extent of the future  operation,  if any, of the repealed law they can have no function.  Indeed, a  comparison  of the wording of section 58 of Act  XXXI  of 1950  with the wording of section 6 of the  General  Clauses Act would show that if the legislature intended either  that pending -proceedings were to be continued under the previous law  or  that  anything in the nature  of  vested  right  of finality of determination or some right akin thereto was  to arise  in respect of such pending proceedings, the  negative portion  of section 58(3) would not have stopped short  with saving  only the "previous operation" of the  repealed  law. It  would  have borrowed from out of some  portions  of  the remaining sub-sections (c), (d) and (e) of section 6 of  the General  Clauses Act, and provided in express terms for  the continuance  of the previous law in respect of pending  pro- ceedings.  Obviously no particular sub-section of section  6 of the General Clauses Act could be borrowed in toto as that would  contradict the positive portion of section  58(3)  of Act  XXXI  of 1950 and would be inconsistent with  the  idea underlying  it.  We are,therefore, clearly of the view  that



the  appellant cannot call in aid the principle of the  case in  Colonial Sugar Refining Co. Ltd.  V. Irving(1), nor  can his case fall within the ambit of the first portion of  sub- section (3) of section 58 of Act XXXI of 1950. The next question for consideration is how the (1)  [1903] A.C. 369. 1135 second and positive portion of section 58(3) of Act XXXI  of 1950 is to be understood.  This portion says that  "anything done or any action taken in exercise of any power  conferred by  or  under the (repealed) 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  was taken".   To appreciate the meaning of this it is  desirable to  have  a  general  idea of the  scheme  of  the  repealed Ordinance, the powers exercisable thereunder, and the nature of the things that may be done, or action that may be taken, thereunder.  The powers exercisable are to be gathered  from various sections and broadly speaking fall under the follow- ing categories. 1.   To make appointments-sections 5 and 6. 2.   To make enquiries-sections 7, 16, 19 and 38  and  to make declarations or issue  notifications  as  a result thereof. 3.   To    make   various   kinds   of   consequential    or administrative order such as those under sections 9, 10, 11, 12 and 21. 4.   To  hear and dispose of appeals, reviews or  revisions- sections 24, 25, 26 and 27. 5.Power  of  the  Central Government,  to  exempt,  to  give directions, to take action with regard to evacuee  property, to delegate powers and to make rules-sections 49, 50, 51, 52 and 53. In  addition there are provisions which bring about  various consequences  such  as  vesting  in  the  Custodian,   valid discharge  by payment to the Custodian, attachment,  and  so forth, sections 7 (2), 8, 11, 13, 16 (3), 19 (3), 20 and 22, etc.   The above enumeration is by no means intended  to  be exhaustive  but  is merely to illustrate the scheme  of  the various provisions in the Ordinance with reference to  which section 58 of the Act has to be understood.  There are  also rules framed by virtue of section 53 of the Ordinance  under which  various  powers may be exercised,  things  done,  and action taken. If section 58 (3) of Central Act XXXI of 1950 which 1136 repealed the prior Ordinance is understood with reference to the  above  scheme,  there  is  no  reason  to  confine  the operation  of  the  second  portion  of  section  58(3)   to administrative  action as suggested by learned  counsel  for the  appellant.   Broadly speaking, the  second  portion  of section 58(3) refers to the whole range of, things that  may be  done,  or action that may be taken, under  the  previous Ordinance  and the rules framed thereunder, while the  first portion  of section 58(3) relates to the legal  consequences resulting  under  the Ordinance or the  rules  from  certain facts  or  from completed acts or  things  done  thereunder. 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 in so far as certain  consequences have  already  ensued  or acts  have  been  completed  prior thereto to which it is the old law that will apply.  In this



view  of  section 58, the application of the  appellant  for confirmation  pending on the date when Central Act  XXXI  of 1950  came into force had to be dealt with and  disposed  of under this Act and the order of confirmation passed in  1952 would  clearly  be subject to the revisional  power  of  the Custodian-General under section 27 of the said Act. It  is  next contended that the revisional power  cannot  be exercised  when there was an appeal provided but  no  appeal was  filed, that it was open to the Assistant Custodian  who appeared  before  the Custodian-General in  support  of  the notice  for revision or to the allottees of the property  in whose  interest  the revisional order appears to  have  been passed,  to  file  an  appeal  under  the  Act  as   persons aggrieved.  Section 27 however is very wide in its terms and it  cannot  be  construed  as  being  subject  to  any  such limitations.   Nor  can the scope of  revisional  powers  be confined only to matters of jurisdiction or illegality as is contended,  because under section 27, the  Custodian-General can   exercise  revisional  powers  "for  the   purpose   of satisfying himself as to the legality or 1137- propriety  of  any  order of the Custodian".   We  are  thus clearly  of the opinion that the contention of  the  learned counsel  for the appellant that the exercise  of  revisional powers  in  this case by the  Custodian-General  is  without jurisdiction or is illegal, must fail. The next question to be considered is as regards the  merits of  the revisional order of the Custodian-General  which  is under  appeal before us.  Learned counsel for the  appellant attacked it on various grounds.  He urged that the ground on which the learned Custodian-General set aside the Additional Custodian’s  order,  viz., absence of notice  to  the  prior allottees  is  wholly  untenable.   He  contended  that  the allottees had no kind of interest in the land which entitled them to contest the application for confirmation, that  they were  at best only lessees for three years which was due  to expire  very  shortly after the order  of  confirmation  was passed by the Additional Custodian.  He pointed out that  as soon  as the application for confirmation was filed  on  the 23rd  February,  1948, general notice by beat  of  drum  and affixture  in the locality and by publication in the  Indian News  Chronicle  article  was given,  that  the  persons  in possession at the time were only the previous tenants on the land,  who  either  attorned to the appellant  or  left  the village, that the allottees came into possession much  later and pending the disposal of the confirmation proceedings and presumably subject to its result.  He also pointed out  that even when the rules in this behalf came into force under Act XXXI  of  1950, it was discretionary with the  Custodian  to give  notice  to  persons other,  than  the  transferor  and transferee,  if  he considered them to  be  interested,  and urged  that since the same officer, Shri R. Dayal, made  the allotment as also the confirmation, he must be taken to have exercised  his discretion properly in not giving any  notice to  them, in view of the imminent expiry of the three  years term for which they were put in possession.  It is  strongly urged that having regard to the above considerations and  to the  categorical findings of the  Custodian-General  himself that the                             1138 transaction  which was confirmed, was perfectly  bona  fide, the setting aside of the order of confirmation against which no  appeal  was  filed by any  one,  and  the  consequential disturbance of the vested property rights of the  appellant, was in the nature of perverse exercise of revisional  power.



The  learned Solicitor General appearing for the  respondent contended that the finding of the CustodianGeneral about the bona  fides of the transaction was only tentative, that  the allottees,  though  provisionally placed in  possession  for three years had, what has come to be recognised as, a quasi- permanent  interest,  that they had a  genuine  interest  in opposing  the confirmation sought, which related to a  large tract of agricultural land, and which would reduce the  pool of  agricultural  lands  available  for  rehabilitation   of displaced   agriculturists   and   that   confirmation    of transactions relating to such land was opposed to the policy and  directives of the Government and that the  confirmation should not, in the circumstances, have been lightly  granted by the Additional Custodian without notice to the  allottees and a proper consideration of the policies and directives in this  behalf.   In  reply thereto learned  counsel  for  the appellant urged that the alleged policies or directives  are not  relevant matters for consideration by the Custodian  in these proceedings which must be taken to be  quasi-judicial, if  not  judicial, unless such policies  or  directives  are embodied  in  rules  made by the  Central  Government  under section 56(2) (q) and that no such rules were prescribed  by the  relevant  dates  and that  even  the  Custodian-General himself in his order under appeal discounted the  usefulness of  any  reference to notifications and directives  for  the purposes  of this case.  It was also urged that the  matters which  could  be taken into consideration are  regulated  by section  40(4)  of  Act XXXI of 1950  and  that  clause  (c) thereof  must be construed as referring to  matters  ejusdem generis with clauses (a) and (b) But in the view we take  of the  order under appeal and the course we propose to  adopt, we  do not wish to express any opinion on the merits of  the above arguments. 1139 The  order under appeal is one passed by virtue of the  wide powers  of  revision vested in the  Custodian-General  under section  27  of the Act.  The jurisdiction  which  has  been challenged  having  been found in favour of  the  Custodian- General, this Court would normally be slow to interfere with the  order on its merits.  But with respect to  the  learned CustodianGeneral, his order is such that it is difficult  to maintain it.  The learned Solicitor-General himself has been obliged  to  put forward arguments in support  of  it  which cannot  be  clearly gathered from the order itself.   It  is also  difficult together from it whether the remand  to  the Additional Custodian for reconsideration, after notice was a general  and open remand where all questions on  the  merits are  to be reconsidered or was only a limited remand and  if so what the limitations are.  If it was meant to be an  open general remand, as the concluding portion of his order seems to  indicate,  his definite findings on points (1)  and  (2) which  he  formulated  for  himself and  the  doubt  he  has expressed  in  his order about the usefulness  of  examining afresh the various notifications and directives to which his attention  was  drawn  by the  Assistant  ,Custodian,  would render it difficult for any Custodian on remand to  consider any  of  those matters.  If so, the remand would  appear  to serve no substantial purpose.  In the circumstances, and  in fairness  to the learned Custodian-General, the only  proper course  would be to set aside his order under appeal and  to remit  the matter back to him for fresh  consideration.   On such  fresh consideration he will give full  opportunity  to both  sides for presentation of their respective  points  of view.  If on the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters



to be considered by him.  The learned Custodian-General  may also consider the feasibility of his dealing with the matter finally  by himself, calling for a report, if need be,  from the Custodian on specified matters, in order to obviate  any further  delay  by  appeal  and  revision  in  this  already protracted matter. 144 1140 The appeal is allowed and the order of the  CustodianGeneral is  set aside.  The case is remanded to him so that  he  may reconsider  and  dispose of the same in the  light  of  this judgment.  There will be no order as to costs,