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. 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
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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
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(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
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
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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
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
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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.