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Judgment
Grover, J.—This is a petition under Article 226 of the Constitution directed against an order made by the Deputy Custodian-General on 24th September 1960.
It is alleged in the petition that an area measuring 3 bighas comprised in khasra No. 1865/826 situate at Patiala was given as muafi by the erstwhile Patiala Government to the petitioner which is a religious institution sometime in the year 1967 Bk. A copy of the order of the Settlement Commissioner, Patiala, dated 13th Jeth 1967 Bk has been attached as Annexure "A". After the partition of the country in 1947 the Custodian of Evacuee Property, Patiala, took possession of the aforesaid land as evacuee property, although, according to the petitioner, it was the property of the Mandir and no Muslim evacuee had ever any interest in it. The petitioner filed a claim petition before the Claims Officer under the provisions contained in the Patiala Evacuees (Administration of Property) Ordinance No. IX. of 2004 Bk. (to be referred to as Ordinance IX of 2004 Bk.). The Claims Officer held on 14-3-2006 Bk. (27th June 1949) that the land in question was attached to the Mandir but the machinery alone, which was lying therein, was Muslim evacuee property. The petitioner was granted a decree for possession of khasra No. 1866/826 as according to the provisions of the Ordinance the Claims Officer had to pass a decree. The machinery was to be taken over by the Custodian. It is mentioned in the order of the Claims Officer (Annexure "B") that the Government Pleader had admitted the petitioner''s claim before him, but in spite of the admission, the Claims Officer decided to examine the evidence and based his decision on it. On 3rd August 1950 the Custodian wrote a letter to the Assistant Custodian, Patiala, on the subject of execution of the decree passed by the Claims Officer in favour of the petitioner, that "Rs. 40/- per mensem is quite reasonable as proposed by the Deputy Custodian (Judicial). Please take action accordingly". This probably had reference to the rent which was payable on account of the use of the land. This was followed by an order by the Deputy Custodian (Judicial) on. 12-10-2006 Bk. (Annexure "C-I") in which it was stated that the land in question had been found to be non-evacuee property and was to be restored to the right owner but the articles belonging to the evacuee were to (sic) out or allotted. On 18th December 1950 the Custodian made another order (Annexure "D") as follows:-
I have considered the case again. The site is more valuable than the machinery on it. Moreover the rent will be utilised for public utility purposes. I order that a sum of Rs. 80/- p.m. be paid to the owner of the site with effect from the date of order of the Claims Officer. * *.
It is alleged in the petition that the petitioner went on realising the rent for the aforesaid land as fixed by the Custodian from the lessee to whom the evacuee machinery had been leased out by the Department. No appeal or revision was preferred against the order of the Claims Officer, referred to before, and it was only in the year 1959 that for the first time two revision petitions were filed before respondent No. 1. One was by Jagat Singh respondent No. 4 and the other was by the Custodian of Evacuee Property that the land should be declared evacuee property. That is how the order, which has been impugned, came to be passed.
The main argument of Mr. J.N. Kaushal, the learned counsel for the petitioner, is based on the decision of the Supreme Court in Dafedar Niranjan Singh and Another Vs. Custodian, Evacuee Property (PB.) and Another, and indeed it has been contended that the matters arising for decision in this petition stand concluded by the law laid down in that case as also the observations made therein. The attack is really directed against the power and the jurisdiction of the Deputy Custodian-General to revise the order made by the Claims Officer on 27th June 1949. The second point that has been canvassed, is that in any event it was not open to the Deputy Custodian-General to declare the property in dispute as evacuee property after 7th May 1954 on account of the amendment of the Administration of Evacuee Property Act, 1950 (to be referred to as Act 31 of 1950).
Although their Lordships have referred to the evacuee legislation in the erstwhile Pepsu territories, it would be necessary to set out the various Ordinances and Acts which were in force there at the material time as also refer to the relevant provisions of those enactments. The earliest was Ordinance IX of 2004 Bk. Section 5 of this Ordinance provided that the Custodian would take possession of evacuee property and take all measures he considered necessary and expedient for preserving or safeguarding such property. Section 6 dealt with the modes of taking possession of various kinds of property. The second proviso to sub-section (2) of that section laid down that if at any time after the publication of notice and before possession had been taken the owner of the property objected to the proposed action, the Custodian was to stay proceedings and was to send the record of the case to the Claims Officer for decision. Section 12 deserves to be reproduced in so far as it is material-
12(1) All claims of any kind against the evacuees or their property shall be entertained and decided by a Claims Officer appointed for the purpose by the Ijlas-i-khas and the claims shall he signed and verified by the claimant in accordance with the provisions of the Civil Procedure Code, 190ft in force in the State mutalis mutandis.
(2) The appeal against the decision of the Claims Officer shall within 60 days of the date of decision, lie to the Custodian. Urban Areas who shall enjoy the powers of a Judge of the High Court under the Patiala Judicature Firman, 1999: for the purpose of this Ordinance.
(3) The Claims Officer shall enjoy all the powers of a District Judge under the Civil Procedure Code, 1908 in force in the State mutatis mutandis.
(4) The decision of the Claims Officer, and where an appeal has been filed against such decision, the decision of the Appellate Authority shall be final and conclusive and shall not be called in question in any Court, by way of appeal or revision or in any original suit, execution of application or other petition.
* * * *
According to section 16, the decision of the Claims Officer and the Appellate Authority was to be deemed to be a decree within the meaning of section 2(2) of the CPC and was to be executable by the Custodian. Moreover the proceedings before him were to be deemed to be proceedings before the Court under the Code. Ordinance IX of 2004 Bk. was repealed on 21st June 1949 by section 33 of the Patiala & East Punjab States Union Evacuees (Administration of Property) Ordinance, 2006 Bk. (to be referred to as Ordinance XIII of 2008 Bk.). By section 3 of this Ordinance a Custodian was appointed in whom all evacuee properties were to vest u/s 4. Section 10(7) was as follows:-
All Orders passed by the Claims Officer appointed under the Patiala Evacuees (Administration of Property) Ordinance, 2004, shall be deemed to have been passed under sub-section (4) above for purposes of appeal or revision and an appeal in respect of any such order may be made to the District Judge within whose jurisdictional limits the property is situated within one month after the commencement of this Ordinance or the period prescribed under sub-section (6) whichever expires later.
There was no saving clause in section 33 of Ordinance XIII of 2006 Bk. Another Ordinance called the Patiala and East Punjab States Union Administration of Evacuee Property Ordinance, 2006 Bk. (Ordinance No. XVII of 2006 Bk.) was enacted which came into force on 31st July 1949. Section 40 of this Ordinance which contained the repealing and saving provisions was in the following terms:-
40(1) The Patiala and East Punjab States Union Evacuees (Administration of Property) Ordinance, 2006 is hereby repeated.
(2) Notwithstanding such repeal, anything done or any action taken in the exercise of any power conferred by the Ordinance aforesaid 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 the repealed Ordinance 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.
(3) Notwithstanding anything contained in this Ordinance or in any other law relating to the1 administration of evacuee property in force in the Union before the commencement of this Ordinance all Claims pending in the Court of the Claims Officer appointed under the provisions of the Patiala Evacuees (Administration of Property) Ordinance, 2004, shall be heard and decided by him in accordance with the provisions of the aforesaid Ordinance.
(4) Any order passed under sub-section (3) shall be appealable to or revisable by the Custodian within such time and in such manner as is laid down in the Ordinance referred to in sub-section (3).
The last of these enactment''s was the Patiala and East Punjab States Union Administration of Evacuee Property (Supplementary) Act, 2007 Bk. (Act No. VI of 2007 Bk.). Section 2 defines the word "claim" as meaning any proceedings in respect of any claim pending at the commencement of the Act before any Claims Officer or the Custodian appointed under the Patiala Evacuees (Administration of Property) Ordinance, 2004 Bk. Section 3(1) provided that no Claims Officer after the commencement of the Act was to hear, decide or pass any decree or order in respect of any claim preferred by any person u/s 12 of the Ordinance, nor was any Custodian to execute any decree or order passed by any Claims Officer after the commencement of the Act. Section 5 may next be set out:-
(1) Notwithstanding anything contained in any law for the time being in force-
(a) the Custodian shall have the power to revise any decree or order of the Claims Officer made or passed by such Officer before the commencement of this Act and the order of the Custodian passed on revision shall be final and have the same effect as if the same had been passed under the Administration of Evacuee Property Act, 1950;
(b) the Custodian shall have power to review in any manner whatsoever any appellate order of the Custodian passed before the commencement of this Act under the Patiala Ordinance and the order passed on review shall have the same effect as the order of revision referred to in clause (a).
(2) Any order passed by the Custodian under sub-section (1) shall be subject to the provisions of section 27 of the Administration of Evacuee Property Act, 1950.
It is only necessary further to mention about the enactment of the Administration of Evacuee Property Ordinance, 1949 (No. 27 of 1949) and the Administration of Evacuee Property Act, 1950 (No. 31 of 1950). In Dafedar Niranjan Singh and Another Vs. Custodian, Evacuee Property (PB.) and Another, their Lordships have discussed the relevant provisions of these enactments as also the effect of the saving clauses contained therein and it will be useful at this stage to refer in greater detail to that decision. Niranjan Singh owned certain houses in Patiala. During the latter part of 1948 the Custodian of Evacuee Property, Patiala, took possession of these houses under the provisions of Ordinance No. 9 of 2004 Bk. on the ground that they were evacuee properties. In January, 1949 Niranjan Singh filed a claim petition before the Custodian alleging that the properties belonged to him. The Custodian made an order on 6th June, 1949 allowing the claim and releasing those properties. Niranjan Singh sold a part of those properties in 1955 to Major Bhagwant Singh. In May, 1957 the Deputy Custodian General issued notice to Niranjan Singh and Bhagwant Singh to show cause why the order of the Custodian of Evacuee Property dated 6th June, 1949 be not revised. On 1st February, 1958, after hearing the parties, the Deputy Custodian General set aside that order of the Custodian and remanded the case to him for further inquiry. Appeal by special leave was brought before their Lordships. Three points were raised on behalf of the appellant out of which we are concerned only with points Nos. 2 and 3. It may be mentioned that the whole challenge on behalf of the appellants was to the jurisdiction of the Deputy Custodian General to revise the order made on 6th June, 1949. The Deputy Custodian General, who exercised the powers of the Custodian General in that case, found "an unbroken chain of fiction leading to the conclusion that the order dated June 6, 1949, made by the Custodian must be deemed to be an order made by the Custodian in an exercise of the powers conferred on him under the Act and, therefore, was subject to the reyisional jurisdiction of the Custodian General u/s 27 of the Act." The decision of their Lordships on this point may be reproduced in their own words-
But the history of the legislation in the context of the facts of the present case shows that the said chain had broken even during the period when Ordinance No. XIII of 2006 was in force. In the narration of facts we have pointed out that the order under Ordinance No. IX of 2004 was made by the Custodian and not by the Claims Officer. Sub-section (7) of section 10 only provided that orders passed by the Claims Officer under Ordinance No. IX of 2004 should be deemed to have been passed under sub-section (4) of section 10 of Ordinance No. XIII of 2006 for the purpose of appeal or revision. This sub-section, therefore, had introduced a fiction with two limitations-one limitation was that the original order should have been made by the Claims Officer and the other was that it was only for the purpose of appeal or revision. The result was that the said order of the Custodian could not be deemed to be an order made under the said Ordinance, as he was not the Claims Officer and that, even if he was the Claims Officer, his order must be deemed to be an order made under the later Ordinance only for the limited purpose, namely, for the purpose of appeal or revision. If this be so, it follows that the said order could not be deemed to have been passed under the successive Ordinances and the Act. We, therefore, accept this contention.
The third contention that has been raised was based on the premises that the order of the Custodian dated 6th June, 1949 was to be deemed to be an order made by him in exercise of the powers conferred fey Ordinance No. 27 of 1949. It was held that by operation of the provisions of Ordinance No. 27 the order of the Custodian made under Ordinance No. 9 of 2004 Bk. had become final and that its finality was not affected by the provisions contained in section 58(3) of Act No. 31 of 1950. On behalf of the respondents a contention was raised for the first time before their Lordships that the order of the Custodian dated 6th June, 1949, for the reasons indicated in para 29 of the judgment, should be deemed to be non est with the result that the Custodian General u/s 27 of Act No. 31 of 1950 could ignore it and proceed with a fresh inquiry in respect of the question whether the property was an evacuee property or not. This matter was disposed of in the following words:-
We are not concerned in this case with the question whether the said order was made by the Custodian illegally or without jurisdiction. We are only concerned with the question whether the Custodian General can, u/s 27 of the Act, set aside an order made by the Custodian. We have pointed out that he has no such power to revise orders that had become final before the Act came into force.
The learned counsel for the petitioner has submitted that the present case is covered by the decision on the above points of their Lordships. The learned counsel on behalf of the respondents says that it is distinguishable and the distinction that has been sought to be made is primarily this. In the case decided by the Supreme Court an order had been made by the Custodian and not by a Claims Officer and further that in the present case the Claims Officer had made the order on 27th June, 1949 which was after the repeal of Ordinance No. 9 of 2004 Bk. by Ordinance No. 13 of 2006 Bk. As there was no saving clause with regard to pending proceedings in section 33 of the later Ordinance, the Claims Officer had ceased to have any jurisdiction to pass orders under Ordinance No. IX of 2004 Bk. It is also urged that the petition which was filed by the petitioner before the Claims Officer u/s 12 of Ordinance No. IX of 2004 Bk. was incompetent as no such petition lay under that provision.
The essential question which arises out of the submissions made on behalf of the respondents is whether the order of the Claims Officer dated 27th June, 1949 in the present case was with or without jurisdiction. It is true that section 33 of the repealing Ordinance No. XIII of 2006 Bk. did not contain in express words any saving clause with respect to the pending proceedings. But the Full Bench decision of this Court in National Planners v. Contributories etc. AIR 1958 P&H. 230, which has been pressed into service on behalf of the respondents and in which it has been laid down that when an action is brought under a statute which is afterwards repealed, the Court loses jurisdiction of the suit pending under the repealed Act and is unable to deliver judgment thereon, further contains the exceptions to this in the form of saving clauses expressly inserted in the repealing enactment or contained in the provisions of the General Clauses Act. To the legislation under consideration in the present case section 6 of the Patiala General Clauses Act 2002 Bk. would apply which is practically in the same terms as section 6 of the Central Act (No. 10 of 1897). By virtue of this section whenever any Act repeals any enactment, unless a different intention appears, the repeal shall not, apart from any other matters, affect any legal proceeding or remedy in respect of any such right, privilege, obligation etc. and such legal proceeding or remedy may be continued as if the repealing Act had not been passed. Section 30 of this Act makes its provisions applicable to Ordinance also. Thus when Ordinance No. XIII of 2006 Bk. repealed Ordinance No. IX of 2004 Bk. all legal proceedings which were pending would be saved and could be continued and disposed of finally under Ordinance No. 9 of 2004 Bk. The Claims Officer, therefore, had jurisdiction to dispose, of the claim petition under that Ordinance except after enactment of Act VI of 2007 Bk.
The learned counsel for the respondents maintained that the intention of the provisions in Ordinance No. 13 of 2006 Bk. was to deprive the Claims Officer of any jurisdiction after the repeal of the previous Ordinance. He has, however, not been able to persuade me to accede to this contention. On the contrary, it would appear that when Ordinance No. 17 of 2006 Bk. was enacted the matter was left in no doubt by sub-section (3) of section 40 which has already been reproduced before.
As regards the objection raised on behalf of the respondents that the petition filed before the Claims Officer u/s 12 of Ordinance No. 9 of 2004 Bk. was not competent, reliance has been placed on the language of the second proviso to section 6(2) of the Ordinance. It is pointed out that before possession had been taken by the Custodian, if the owner of the'' property objected to the proposed action he had to move the Custodian who then was bound to send the records of the case to the Claims Officer. In the present case, however, this procedure could not be invoked as possession had been taken by the Custodian. Next it is said that u/s 12(1), all claims of any kind against the evacuees or their property had to be entertained and decided by the Claims Officer. According to the respondents, the claim of the petitioner that the property belonged to the Mandir was not a claim against the evacuees or their property. It is admitted, however, that there is no other provision in the Ordinance under which the petitioner could move either the Custodian or the Claims Officer. The language employed in section 12(1) is not happy but there appears to be no doubt that after possession had been taken by the Custodian, the only section under which any person claiming to be the real owner of that property could agitate the matter was section 12. At any rate, throughout the material period it was no body''s case that the Claims Officer could not entertain and decide the application of the petitioner on the ground that has now been sought to be raised and I find no force in it. Even if it be assumed for the sake of argument that the order of the Claims Officer was without jurisdiction and was to be treated as non est the view expressed by their Lordships in Niranjan Singh''s case would nevertheless apply, namely, that we are not concerned with the question whether the Claims Officer acted illegally or without jurisdiction but with the question whether the Custodian General could u/s 27 of Act 31 of 1950 set aside an order made by the Claims Officer. The answer given by their Lordships was that he had no such power to revise.
It is now to be seen whether the respondents are justified in saying that since in the present case the order was made by the Claims Officer and not by the Custodian, the decision in Niranjan Singh''s case would be distinguishable. While deciding the second point, the observations at page 431 leave no room for doubt that in their Lordships'' view even if the decision had been by the Claims Officer under Ordinance 9 of 2004 Bk. it would have made no difference in the conclusion, at which their Lordships arrived. In this connection, an additional reason can be given for holding that the order of the Claims Officer made in the present case had become final. Reference has been made already to section 5 of Act No. 6 of 2007 Bk. The Custodian was given the power to revise any decree or order of the Claims Officer made or passed by such officer before the commencement of that Act and the order of the Custodian passed on revision would be final and was to have the same effect as if it had been passed, under Act 31 of 1950. Any order passed by the Custodian was to be subject to the provisions of section 27 of the latter Act. In the present case, the Custodian never revised the decree made by the Claims Officer on 27th June, 1949. If he had exercised his power of revision which he was empowered to do, then alone the Custodian General could subject his order to review or revision u/s 27 of Act 3l of 1950. It is quite clear that the Custodian-General had no power to revise an order of the Claims Officer, and, therefore, so far as any order made by him was concerned, it became final in the absence of any exercise of power interfering with it by the Custodian.
It is unnecessary to refer to the other points agitated on behalf of the petitioner with regard to the effect of the amendment introduced in Act 31 of 1950 to the effect that after 7th May, 1954, no property could be declared to be evacuee property in view of the decision that has been given relating to the Deputy Custodian-General having no jurisdiction to revise the order of the Claims Officer.
Lastly, an objection which was more of preliminary nature raised on behalf of the respondents may be noticed. It has been pointed out, that when the suo motu revision was entertained by the Deputy Custodian-General in the present case, no objection was raised to his jurisdiction to revise the order of the Claims Officer. It is submitted that there is no mention of any such objection in the order dated 24th September, l960, nor is there anything to indicate that any such objection was ever pressed. It is true that an objection even with regard to the jurisdiction should be raised before a Tribunal when the matter is heard by it, but if a reasonable explanation has been given either for not raising it or this Court is satisfied that it was raised but the Tribunal either failed or omitted to decide it, then this Court will not decline to exercise'' the extraordinary power conferred by Article 226 merely because there is nothing in the order to indicate that such an objection was raised or pressed.
Alongwith the petition, an affidavit (Annexure E) was filed by Shri Lajpat Rai Advocate, who appeared as counsel before the Deputy Custodian-General, Delhi, on 2nd September 1960. According to this affidavit preliminary objections were taken on that date to the effect that the Deputy Custodian-General was not competent to declare the property as evacuee property after the passing of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and that the revision petition filed by Jagat Singh against the order of the Claims Officer was not competent and that no notice had been given regarding the suo motu revision by the Custodian Jullundur or by the Deputy Custodian-General, Delhi, and that the proceedings before the Custodian-General were barred by limitation. In the affidavit of Jagat Sipgh, it is stated that the only objection raised by the counsel was that he had no locus standi to file a revision and the Deputy Custodian-General said that he was seized of both the revisions. Although no direct objection appears to have been raised with regard to the lack of jurisdiction to entertain suo motu revision, but an objection had been taken to revising the order of the Claims Officer in the revision petition filed by Jagat Singh. If the Deputy Custodian General did not have jurisdiction to revise the order of the Claims Officer at all he could not have any wider powers if the revision had been entertained suo motu or at the instance of the Custodian. The objection, therefore, had in substance been raised though not as clearly and cogently as it should have been. This is, however, not a case in which the present petition should be thrown out on the aforesaid ground as even otherwise the order of the Deputy Custodian-General suffers from an apparent error inasmuch as he has held that the order made by the Claims Officer after the repeal of Ordinance No. 9 of 2004 Bk. was without jurisdiction. I have already held that he had the jurisdiction to make the order which he passed on 27th June, 1949. For this reason also the order of the Deputy Custodian-General deserves to be set side.
In the result, I allow this petition and quash the order of the Deputy Custodian-General dated 24th September, 1960. In the circumstances, however, I leave the parties to bear their own costs.