BAWA HARIGIR versus ASSISTANT CUSTODIAN, EVACUEE PROPERTY, BHOPAL

L S.C.R. SUPREME COURT REPORTS

have become final, because no appeal was filed against z96r that determination. But it appears that the proce. -d tax ure Officer has 1 a1 ['d ][d ]own to y notify to s. . 24(3) un er w the assessee by order in h' IC th ncome-I The ~:adh~·~/ [[1 ]]c. mmi.<Sion" 0";~;.~:;h 1 writing the amount of the loss as computed by him v. for the purposes of that section was not followed. No Seth Khushal doubt, under s. 30 an appeal lies, if the assessee ob-Chand Daga jects to the amount of loss computed and notified under s. 24; but inasmuch as the Income-tax Officer Hidayatullah f. had not notified the loss computed by him by order in writing, an appeal could not be taken on that point. In our opinion, the assessee was, therefore, entitled to have the loss re-determined in subsequent year. Learned counsel for the Commissioner stated that the Department was not very anxious for the decision, because this particular assessee has had only losses in the years following, and no loss would be occasioned to the Revenue, if the losses brought forward be re-determined. But that is matter, with which we are not concerned. In our opinion, the judgment of the High Court impugned before us was correct in the circumstances of the case.

-The c. mmi.<Sion" ~:adh~·~/ [[1 ]]0";~;.~:;h 1 v.

The appeals fail, and are dismissed with costs. One hearing fee.

.A.Ji:peals dismissed.

BAWA HARIGIR

v. ASSISTANT CUSTODIAN, EVACUEE PROPERTY, BHOPAL.

(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,

N. RAJAGOPALA AYYANGAR and

J. R. MUDHOLKAR, JJ.)

Evacuee Property-Provisions regarding declaration of property •s evacuee property-Confirmation of sale-Power of Custodian to refuse-Constitutionality of-Administration of Evacuee Pro-perty Act. r950 (JI of r950), ss. 2(d). 40(4)(a)-Constitution of India, Arts. JI(Z), JI(S)(b)(iii).

I96I March 7.

z961 The petitioner purchased some land from R. R. was declared to be an intending evacuee and he left for Pakistan. The Assis-nawa llarigir tant Custodian issued notice to the petitioner to show cause v. why the land should not be declared to be evacuee property, and Assistant Custo- after hearing the petitioner he declared the land to be evacuee dian, Evacuee property. An appeal and revision against the order were Property, Bhopal unsuccessful. The petitioner also applied to the Custodian under s. 40 of the Administration of Evacuee Property Act, r950, 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 thats. 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 with-out the authority of law.

Held, that the provisions of ss. 2(d) and 40(4) were not affect-

ed by Art. 31(2) in view of Art. 3r(5)(b)(iii) of the Constitution. The protection of Art. 31(5)(b)(iii) was not limited to law which itself declared any property to be evacuee property but extended to law which empowered an authority to declare any property as evacuee property and laid down the criteria for the declara-tion. 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 judicial power and the absence of standard for the determination of the question could not render the provision unconstitutional.

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. MUDHOLKAR, J.-In this petition under Art. 32 of the Constitution the petitioner contends that the pro-visions 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

1 S.C.R. SUPREME COURT REPORTS

property without the authority of law. He further con-r96r tends that the order of the Custodian amounts to dis-. . . . . . Th Bawa liarigir crimmation m practice agamst t pet1t10ner. ese v. are the two main heads under which the arguments Assistant Gusto· advanced before us could be classified. dian, Evacuee

Bawa liarigir v. Assistant Gusto· dian, Evacuee Mudhothar J.

The relevant facts may now be stated. The peti- Property, Bhopal tioner purchased 195·51 acres of land in the former Bhopal State from one Babu Rehmatullah on June Mudhothar J. 23, 1950, for consideration of Rs. 3,500. Rehmatullah was declared to be an intending evacuee by the Assi-stant 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 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. writ petition preferred by him before the Judicial Commissioner, Bhopal, was dismissed in limine on July 14, 1954. He has, there-fore, come up to this Court under Art. 32 of the Cons-titution.

The first point pressed before us by Mr. B. D. Sharma, on behalf of the petitioner is that the provi-sions of the Evacuee Property Act and particnlarly those of ss. 2 (d) and 40 (4) are unconstitutional, be-cause they enable the State to take away property without paying any compensation therefor as required by Art. 31 (2) of the Constitution. The short answer to this contention is that the provisions of 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 runs thus: "Nothing in clause (2) shall affect-..................................................................

Bawa l-larigir v. Assistant Custo-dian, Evacuee PropertJ', Bhopal lvl udltolkar .J.

{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 pro. perty declared by law to be evacuee property."

Mr. Sharma, however, contends that the protection afforded by the aforesaid clause must be limited ttJ law which itself declares any property to be ~vacuee property and not to law which empowers an ·autho. rity to declare any property as evacuee property. We cannot accept the contention. The words "property declared by law to be evacuee property" would neces. sarily include property which could be declared as evacuee property. law relating to evacuee property would concern itself with laying down the crite'ria 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 law which provides for the determina-tion 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 bar against taking it away. It is difficult to appre. ciate 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 la,w 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 els. (a) and (c) of s. 40, sub-s. (4) are ultra vires because

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they confer arbitrary power upon the Custodian. The 196I . reason for raising the contention is that an applica-tion made by the petitioner to the Custodian under Bawa ~a•igir s. 40 for confirming the sale in his favour was reject-Assistant custo-ed by him on thy ground that the evacuee did not act dian, Evacuee in· good faith in effecting the sale. Sub-s. (4) of s. 40 Property, lihopal reads thus: ,

Bawa ~a•igir Assistant custo-dian, Evacuee Property, lihopal , Mudholkar J.

"The Custodian shall hold an inquiry into the application in the prescribed manner and may reject the application, if he 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, m

(o) 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. ( ). \.Ve .would; therefore, limit our remarks to cl. (a). Sub-. section ( 4) of s. 40 enables the Custodian to hold an inquiry regarding the genuineness or validity of transaction sought to be confirmed and cl. (a) empowers him to refuse to confirm it if he find$ that it was not entered iuto in good faith. According to learned counsel the words "good faith" are vague and "slippery" and do not furnish any standard or norm which has to be conformed to by the Custodian. Apart from the fact that the words "good faith" occur in number of statutes and have acquired definite mean-ing 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 judicial power and, therefore, the absence of standard for. the 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 transferor-was not sufficient and could not be regarded as 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

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.

Bawa Harigir v. Assistant Gusto· dian, Evacuee Property, Bhopal

Property, Bhopal The last contention of learned counsel is that he has been discriminated against by .the Custodian in the Mudholkar ]. matter of confirmation of the transaction. He said that prior to the sale of the land to him by Rehmatul-lah, the latter had sold house to some nurses and that that sale was found to be for inadequate con-sideration 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 cpnfirmed. We would repeat that the order of the Custodian is 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.

THE STATE OF ANDHRA .PRADESH

March 8, KANDIMALLA SUBBAIAH AND ANOTHER

(B. P. SINHA, C. J., J. R. MUDHOLKAR and

T. L. VENKATARAMA AYYAR, JJ.)

Criminal Trial-Accused persons charged with more than three offences in the course of the same transaction, if could be jointly tried-Large number of charges spread over long period-Framing of-Duty of Judge or Magistrate-Conspiracy if distinct from abet-ment-Special Judge appointed under Criminal Law Amendment Act, if could try offences under Criminal ·Procedure Code, at the same trial-Indian Penal Code, I86o (Act XLV of 1860), ss. rn9, I2oB, 463-Code of Criminal Procedure, 1898 (Act V of 1898), ss. 234, 239-Criminal Law Amendment Act (46 of 1952), ss. 6, 7-Prevention of Corruption Act, 1947 (II of 1947), s. 5·

(1) [1961] 3 S.C.R. 448.