judgement:
Appeal No. 66 of 1959.
Appeal by special leave from the judgment and order dated the February 1, 1958, of the Deputy Custodian General, Evacuee Property, New Delhi, in No. 1017 R/ Judl/Punj.
Achhru Ram and M. L. Kapur, for the appellants.
N. section Bindra and T. M. Sen, for the, respondents.
March 8.
The Judgment of the Court was delivered by 216 SUBBA RAO, J.
This is an appeal by special leave against the order of the Deputy Custodian General of Evacuee Property, India, dated February 1, 1958, setting aside the order dated June 6, 1949, passed by the Custodian of Evacuee Property, Patiala, and remanding the case for enquiry.
The facts lie in a small compass and may be briefly stated.
One Dafedar Niranjan Singh, the first appellant herein, owned houses Nos. 915 and 916 situate in the town of Patiala.
During the latter part of 1948, the Custodian of Evacuee Property, Patiala, took possession of the said houses under the provisions of the Patiala Evacuees (Administration of Property) Ordinance of Samvat 2004 (No. IX of 2004) (hereinafter referred to as Ordinance IX of 2004), on the ground that they were evacuee properties.
On January 27, 1949, Dafedar Niranjan Singh filed a claim petition before the said Custodian alleging that the said properties belonged to him by inheritance.
The Custodian by order dated June 6, 1949, allowed the claim and released the said properties.
This order was communicated to the Assistant Custodian on June 7, 1949, and pursuant to that order the said houses were released.
On June 9, 1955, the first appellant sold a part of the said properties to Major Bhagwant Singh, the second appellant herein, for Rs. 6,000.
On June 21, 1949, Ordinance IX of 2004 was repealed by the Patiala and East Punjab States Union Ordinance No. XIII of Samvat 2006 (hereinafter referred to as Ordinance No. XIII of 2006) which was in its turn repealed by the Patiala and East Punjab State Union Ordinance No. XVII of 2006 (hereinafter referred to as Ordinance No. XVII of 2006).
On October 18, 1949, Ordinance No. XVII of 2006 was also repealed by Central Ordinance No. XXVII of 1949, under which for the first time the office of Custodian General was created.
This Central Ordinance was replaced by the Administration of Evacuee Property Act (No. XXXI of 1950).
The said Act was amended from time to time.
Nothing turns upon the said amendments in the present appeal.
On December 24, 1955, i.e., more than six years after the order of the Custodian, the Litigation 217 Inspector of Evacuee Properties filed an application before the Custodian of Evacuee Property, Patiala, for review of the order of the Custodian dated June 6, 1949.
During the pendency of that application, the powers of the Custodian and the Additional Custodian of Evacuee Property of review and revision under section 26 of the Act were taken away by the Administration of Evacuee Property (Amendment) Act XCI of 1956.
On April 2, 1957, the Additional Custodian submitted the case to the Custodian General of Evacuee Property to enable him to take action suo motu under section 27 of the Act.
On May 24, 1957, the Deputy Custodian General, to whom the powers of the Custodian General in that behalf had been delegated, issued notice to the appellants to show cause why the order of the Custodian of Evacuee Property, Patiala, dated June 6, 1949, be not revised.
On February 1, 1958, after hearing the parties, the Deputy Custodian General, set aside the order of the Custodian dated June 6, 1949, and remanded the case to the Custodian for further enquiry.
The present appeal by special leave was directed against the said order.
Learned counsel for the appellants raised before us the following three points: (1) The deeming provisions of the repealing.
Ordinances and Acts culminating in section 58(3) of the Act apply only to things done or action taken by the Custodian in exercise of his administrative powers and not to orders made by him in exercise of his judicial powers.
(2) The order passed by the Custodian under Ordinance IX of 2004 cannot be deemed to be an order passed under the Act, as the chain of 'fiction was broken when Ordinance No. XIII of 2006 was issued.
(3) Section 58(3) of the Act expressly saves the previous operation of Ordinance XXVII of 1949 or any corresponding law, and, therefore, the orders that had become final under the said Ordinance could not be revised under section 27 of the.
Learned counsel for the State in addition to countering the said arguments, further submitted that the Custodian under Ordinance IX of 2004 had no jurisdiction to allow the claim of the first appellant and, 28 218 therefore, the said order was non est; with the result, the Custodian General could vacate it at any time under section 27 of the Act.
Before considering the arguments advanced by learned counsel, it would be convenient at the outset to give a short history of the legislation relevant to the present enquiry leading to the conferment of plenary powers of revision under the Act on the Custodian General.
The earliest Ordinance was the Patiala Evacuee (Administration of Property) Ordinance No. IX of 2004.
It extended to the whole of Patiala State.
Section 3 thereof enabled the appointment of Custodian of Evacuee Property and also the appointment of one or more Deputy Custodians and Assistant Custodians for such local areas as might be specified.
Section 5 enjoined on the Custodian within the area placed in his charge to take possession of evacuee property and to take all measures he considered necessary or expedient for preserving or safeguarding such property.
Under the proviso to section 6, the said Custodian, if any owner objected to his taking possession, after the issue of notice for taking possession and before taking possession thereof, should stay proceedings forthwith and should send the record of the case to the claims officer for decision.
Section 12 provided for preferring of claims of any kind against evacuees or their property before the claims officer appointed for that purpose.
Sub section (2) thereof conferred a right of appeal within 60 days of the date of decision of the said officer to the Custodian, urban areas; and under sub section
(4) the decision of the claims officer, and, where an appeal had been filed, the decision of the appellate authority, should be final and conclusive and should not be called in question in an court by way of appeal or revision or in any original suit, execution application or other petition.
Section 14 enabled the Custodian, urban areas, either suo motu or on application of any claimant to transfer on sufficient grounds any claim from the claims officer to any other officer appointed in this behalf by the Prime Minister Under section 16, decisions of the claims 219 officer and the Custodian were deemed to be decrees of court.
It may be noticed at this stage, as it may have some bearing on an argument for the first time ' advanced on behalf of the State, that none of the provisions of the said Ordinance expressly enabled the Custodian to decide himself at time first instance a claim set up by an evacuee in respect of his property proposed to be taken possession of by him.
But it may be contended that such a power was implicit in the power conferred on the Custodian to take possession of an evacuee property.
When he could take possession of an evacuee property, if he had reason to believe that it was an evacuee property, he could equally release it if he was satisfied that he made a mistake in that regard.
It may also be that the Custodian could withdraw the case to himself under section 14, if he was appointed by the Prime Minister under section 14 of the Ordinance to make an enquiry.
Ordinance IX of 2004 was repealed by Ordinance XIII of 2006 which came into force on June 21, 1949.
Under section 10 of the said Ordinance, any person claiming any right to or interest in any property of which the Custodian had taken possession or assumed control under section 9 might prefer such claim before the Custodian by an application within 30 day.
,.; from the date on which the possession of the property was taken.
The Custodian was empowered to make a summary inquiry and to make an order on the application.
Sub section (5) of section 10 conferred a power of revision on the Custodian against the order of an Assistant or Deputy Custodian for the purpose of satisfying himself as to the legality or propriety of any order passed by the said officer.
Under sub section
(6) thereof, any person aggrieved by an order made under sub section
(4) or sub section
(5) could prefer an appeal to the District Judge within whose ' jurisdictional limits the property was situate within one month of the date of the said order.
Under sub section (7) thereof, all orders passed by the Claims Officer appointed under Ordinance IX of 2004 should be deemed to have been passed under sub section
(4) of the said section of this Ordinance for the purpose of appeal or revision, 220 and such appeal could be filed to the District Judge within whose jurisdictional limits the property was situate within one month after the commencement of this Ordinance or the period prescribed under sub section
(6) whichever expired later.
Sub section (8) conferred revisional jurisdiction on the High Court against orders made under sub section
(4), (5) or (6).
Under sub section
(9), subject to the decision of the District Judge on appeal or the High Court in revision, the order of the Custodian would be final and 'conclusive.
One thing that may be noticed in this Ordinance is that no order made by the Custodian under Ordinance IX of 2004 was deemed to continue under this Ordinance.
Sub section (7) of section 10 applied only to orders made by a Claims Officer appointed under the earlier Ordinance.
Ordinance No. XVII of 2006, which came into force on July 31, 1949, repealed the earlier Ordinance XIII of 2006.
Section 40 of this Ordinance read as follows: (1) The Patiala and East Punjab States Union Evacuees ' (Administration of Property) Ordinance, 2006, is hereby repealed.
(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 the 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 Evacuee (Administration of Property) Ordinance, 2004 , shall be heard and decided by him in accord ance with the provisions of the aforesaid Ordinance.
221 (4) Any order passed under sub section (3) shall be appealable to or revisable by the Custodian with.
in such time and in such manner as is laid down it the Ordinance referred to in sub section (3).
Under this Ordinance anything done or an action taken under Ordinance XIIII of 2006 should be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance.
If the order of the Custodian under Ordinance IX of 2004 could not be deemed to be an order made under Ordi nance XIII of 2006, sub section
(2) of section 40 of this Ordinance could not obviously operate on the said order, for the condition necessary for invoking the deeming provision was that the order should have been made under Ordinance XIII of 2006.
Then came the Administration of Evacuee Property Ordinance, 1949 (No. XXV 11 of 1949).
This Ordinance came into force on October 18, 1949.
This Ordinance for the first time created the office of Custodian General.
Under section 5 of this Ordinance, "The Central Government may, by notification in the Official Gazette, appoint a person to be the Custodian General of Evacuee Property in India for the purpose of discharging the duties imposed on the Custodian General by or under this Ordinance.
" Section 27 of this Ordinance which dealt with powers of revision of the Custodian General, read as follows: "(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 in appeal under the provisions of this Chapter for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit." "(2) Notwithstanding anything contained in subsection (1), where in respect of any proceeding called for under sub section (1), the Custodian General is 222 of opinion that the District Judge is in error in holding any person not to be an evacuee or any property not to be evacuee property, he shall not pass any order in relation thereto but shall refer the matter, with his own opinion thereon, to the High Court to which the District Judge is otherwise subordinate." "(3) Any reference made under subsection (2) shall be heard by a Bench of the High Court consisting of not less than two Judges, and the Custodian General shall dispose of the proceeding in accordance with the decision of the High Court.
" Section 28 read: "Save as otherwise expressly provided in this Chapter, every order made by the Custodian General, District Judge, Custodian, Additional Custodian, Authorized Deputy Custodian, Deputy Custodian, or Assistant Custodian shall be final and shall not be called in question in any original suit, application or execution proceeding." A combined reading of sections 27 and 28 indicates that the Custodian General 's revisional jurisdiction was confined only to appellate orders of the District Judge or the Custodian; and, subject to the provisions of the Ordinance, the orders of the respective authorities were made final.
Section 55 repealed the Ordinances of the various Provinces and provided under sub section
(3) there of as follows: "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.
" The effect of the provisions of this Ordinance may be 223 stated thus: An order made under Ordinance No. XVII of 2006 should be deemed to have been made in exercise of the powers conferred under this Ordinance; any order so made, if it had not become final under the earlier Ordinance would be subject to the appellate or revisional jurisdiction, as the case may be, in the manner prescribed by this Ordinance; but if the said order was not made in appeal by the Custodian or the District Judge, it would not be subject to the revisional jurisdiction of the Custodian General, with the result that, under this Ordinance, even if the said order had not become final under the earlier Ordinance, it would become final under this Ordinance, if no further proceedings as provided under this Ordinance were taken in respect of the said order.
Ordinance No. XXVII of 1949 was repealed by the (No. XXXI of 1950) (hereinafter called the Act), which came into force on April 17, 1950.
This Act enlarged the revisional jurisdiction of the Custodian General.
Section 27 is in the following terms: "(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 proceedings in which any Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit: The main difference between section 27 of the Act and section 27 of the Ordinance repealed by the Act is that under the.
Act the Custodian General may exercise his revisional powers in respect of any proceedings in which any Custodian had passed an order, while under the Ordinance his revisional jurisdiction was confined only to an appellate order made by the Custodian or the District Judge, as the case may be.
Section 58 of the Act, which repealed the ordinance provided in sub section
(3) as follows: "The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949), or the, Hyderabad Administration of Evacuee 224 Property Regulation (Hyderabad No. XII of 1359 F.) or of any corresponding law shall not affect the previous operation of that Ordinance, Regulation or corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance, Re gulation or corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or tinder this Act as if this Act were in force on the day on which such thing was done or action taken.
" The second part of section 58(3) of the Act is similar to that of section 55(3) of the Ordinance.
But there is an essential difference between the first part of the said sub section in the Act and that in the Ordinance.
The difference lies in the fact that under the Act the repeal of the Ordinance or of any corresponding law was not to affect the previous operation of that Ordinance or the corresponding law.
Only subject to this qualification, anything done or any action taken in exercise of any power conferred by the Ordinance shall be deemed to have been done or taken in exercise of the powers conferred by or under the Act.
One of the questions raised in this appeal turns upon the interpretation of ' the words "previous operation of that Ordinance".
This Act was amended from time to time and the latest of the amendments was by Act 91 of 1956.
As nothing turns upon the provisions of the ' amending Acts, we need not consider all of them; it would be enough if section 7A which was added by section 4 of Act 52 of 1954 was noticed.
Under that section, "Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May. 1954".
There is also a proviso to that section, but that does not concern us here.
With this background we shall proceed to consider the arguments advanced by learned counsel.
The first argument of learned counsel for the appellant, namely, that the operation of section 58(3) of the Act shall be confined only to administrative acts done by the Custodian under the earlier Ordinances, was specifically raised before this Court and negatived by 225 it in Indira Sohan Lal vs Custodian of Evacuee Property, Delhi(1).
There, on February 23, 1948, and application was made to the Custodian of Evacuee s Property for confirmation of the transaction of exchange under section 5 A of the East Punjab Evacuees ' (Administration of Property) Act, 1947, as amended in 1948.
That application was not disposed of until March 20, 1952, on which date the Additional Custodian passed an order confirming the exchange.
Meanwhile Act XXXI of 1950 was passed which conferred by section 27 revisional powers on the Custodian General.
The Custodian General, in exercise of his powers under that section, set aside the order of confirmation and directed the matter to be reconsidered by the Custodian.
It was contended, inter alia,that the positive operation of the provision that "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 taken" applied only to purely administrative matters.
But this contention was rejected by this Court which held that the said provision applied to the order in question which was admittedly a judicial order.
It was further held in that decision that the said application had to be dealt with and disposed of under the said Act and, therefore, the order of confirmation passed in 1952 was subject to the revisional power of the Custodian General under section 27 of the said Act.
In view of this decision nothing further need be said on the first point and it is, therefore, rejected.
There is force in the second contention.
The Custodian General 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 exercise of the powers conferred on him under the Act and, therefore, was subject to the revisional jurisdiction of the Custodian General under section 27 of the Act.
But the history (1) ; 29 226 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 is based upon the assumption that the order of the Custodian dated June 6, 1949, by the process of fiction shall be deemed to be an order made by the Custodian in exercise of the powers conferred on him by Ordinance No. XXVII of 1949.
As we have already indicated at an earlier stage of our judgment, the order of a Custodian under that Ordinance was subject to an appeal under section 25 thereof to the District Judge designated in that behalf by the Provincial Government.
The order of the District Judge on appeal was subject to revision by the Custodian General under section 27.
Subject to the said provision, the order of the Custodian was final under section 28.
In the present case, no appeal was filed against the order of the Custodian to the District Judge and, therefore, the said order had become final under section 28.
To put it in other words, by operation of the provisions of the said Ordinance the order of the Custodian 227 made under Ordinance No. IX of 2004 but deemed to have been made under Ordinance No. XXVII of 1949 had become final.
What then was the effect of the Sin repeal of that Ordinance by the Act of 1950? We have already noticed the provisions of section 58 which repealed the said Ordinance and which also made certain savings in respect of acts done tinder the Ordinance.
Sub section
(3) of section 58 dealing with the said savings, as we have stated when considering the history of the legislation, is in two parts.
The first part says that the repeal by the Act of the said Ordinance shall not affect the previous operation of the said Ordinance; and the second part says that 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 taken.
The second part is expressly made subject to the first part.
If a case falls under the first part, the, second part does not apply to it.
In the present case under the previous operation of the Ordinance the order of the Custodian had become final.
If so, the fiction introduced in the second part could only operate on that order subject to the finality it had acquired under that Ordinance.
Looking at the section from a different perspective, the same result would flow therefrom.
The section does not expressly affect a vested right of a person in whose favour there was a final determination under the Ordinance.
Nor does the section imply such retroactivity by necessary intendment.
An order which had become final under the Ordinance could be deemed to be an order under the Act without disgorging itself of the attribute of finality acquired by it under the repealed Ordinance.
The first part of the section definitely precludes any implication of such intendment.
In Delhi Cloth and General Mills vs Incometax Commissioner Delhi (1), a similar question arose for consideration.
There, on references made to, the High Court under section 66 of the Indian Income tax Act, (1) Lah.
228 1922, the High Court made orders before April 1, 1926.
On April 1, 1926, the Income tax (Amendment) Act, 1926, came into force and under that amendment a right of appeal was given to an aggrieved party against the order of a High Court, subject to certain conditions, to the Privy Council.
The question was whether that Act could retrospectively confer a right of appeal against orders which became final before the amendment came into force.
The Judicial Committee restated the principle laid down by them in Colonial Sugar Refining Co. Ltd. vs Irving (1) thus at p. 290: " While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." After stating the principle, the Judicial Committee made the following remarks in respect of the question that arose in that case: "Their Lordships can have no doubt that provi sions 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.
Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided.
Their Lordships cannot find in the section even an indication to that effect.
" We respectfully accept the said principle as laying down the correct law on the subject.
If so, by the same parity of reasoning, we must hold in the present case that the order of the custodian which had become final under Ordinance No. XXVII of 1949, could not be affected retrospectively under section 58(3) of the Act so as to deprive the order of the Custodian of the finality it had acquired under the said Ordinance.
Not only the said provision does not contain any positive indication giving it such (1) 229 retroactivity.
but also in express terms it saves the previous operation of that Ordinance.
It is said that.
this construction of section 58(3) is no longer open in view of the authoritative interpretation placed upon the said sub section by this Court in Indira Sohan Lal 's case (1).
We have carefully gone through that judgment and we are of the view that the said decision is not only not against the construction placed by us on the said sub section but also the observations therein support the, same construction.
There, unlike here, an application made to the Additional Custodian of Evacuee Property on March 20, 1948, was not disposed of until March 20, 1952 that is, till after the Act of 1950 came into force.
The Additional Custodian made the order in that application on March 20, 1952.
The Custodian General, in exercise of his powers under section 27 of the Act of 1950, Bet aside the order of the Additional Custodian and directed the matter to be reconsidered by the Custodian.
In the present case the order made by the Custodian, as we have earlier pointed out, had become final before the Act of 1950 came into force and no proceeding in respect thereof was pending at the com mencement of the Act.
With this difference in mind if one reads the observations of Jagannadhadas, J., at p. 1132 of the above judgment, the legal position will be clear.
After considering the decision of the Judicial Committee in Delhi Cloth and General Mills Co. Ltd. vs Income tax Commissioner, Delhi (2) the learned Judge proceeded to observe thus at p. 1132: "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, (1) ; (2) (927) I.L.R. 230 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.
" These observations are certainly in accord with our view.
The same distinction can also be discerned in the observations made by the learned Judge at p. 1133: "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 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.
" In that case, therefore, the repealed law could not operate on the subsequent stages of a pending application, for the previous law was repealed; whereas in the present case by operation of the "previous law, the order had become final.
We are, therefore, of the opinion that the decision of this Court does not touch the point that arises for consideration in the present case.
Reliance is placed by learned counsel for the respondents on a judgment of a division bench of the Punjab High Court in Janki Prasad vs The Custodian, Evacuee Property, Jullundur (1).
There, an order confirming the sale effected by an evacuee was made by the Assistant Custodian on February 25,1949, and the said order was confirmed by the Additional Custodian on February 28, 1949. 'the question was whether under the provisions of the East Punjab Act XIV of 1947, the order of the Assistant Custodian could be reviewed by the Additional Custodian in exercise of the powers conferred on him under section 26 of the Act of 1950.
The learned Judges hold that by fiction the (1) Punjab 823.
231 earlier order must be deemed to have been made under the Act of 1950 and, therefore, the Custodian would have power to review it under section 26 of the Act of 1950.
We think, with respect to the learned Judges, that they have not correctly appreciated the scope of the provisions of section 58(3) of the Act of 1950.
In our view, for the reasons already mentioned, that view of the Punjab High Court in the above decision is not correct.
We, therefore, accept the third contention of learned counsel.
Then remains the point that was raised for the first time before us by learned counsel appearing for the State.
The argument was that Ordinance No. XXVII of 1949 was repealed and reenacted by the Act of 1950 in substantially the same terms, and, therefore, a repeal by implication was effectuated only of those provisions which were omitted from reenactment.
For this position reliance was placed upon a passage from Sutherland 's Statutory Construction 3rd edn., Vol. 1, at p. 514.
Therefore, it was contended that, as there was no provision in the Act correspond.
9 to the proviso to section 6 of the Ordinance No. IX of 2004, that proviso must be deemed to have been repealed; and an order made illegally under that proviso was non est.
It is said that under section 27 of the Act, the Custodian General, at any time can ignore that order and proceed with fresh inquiry in respect of the question whether the property was an evacuee property or not.
This question was raised for the first time before us and it was not hinted even in the statement of case filed by the State.
In the circumstances, we would not be justified in allowing the respondents to sustain the order of the Custodian General on the said basis.
Even otherwise it.would be of no avail to the respondent in the present case.
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, under section 27 of the Act set aside an.
order made by the Custodian.
We have pointed '.
out, that he has no such power to revise 232 orders that had become final before the Act came into force.
Nor do we find any force in the argument of learned counsel for the State that under section 27 of the Act, the Custodian General may at any time revise the order of any Custodian and, therefore, the Custodian General can revise without any limit of time any order made by any Custodian under any previous law.
Section 27 of the Act can be given retrospective operation only to the extent permitted by section 58(3) of the Act.
We have held that section 58(3) does not affect the previous operation of the law and therefore cannot affect the finality of the orders made under the Ordinance.
So the words in the section "any time" or "any Custodian" must necessarily be confined only to orders of any one of the Custodians defined in the Act and to orders of Custodians deemed to have been made under the Act but had not become final before the Act came into force.
No other point was raised.
In the result, the order of the Custodian General is set aside and that of the Custodian dated June 6, 1949, is restored.
The respondents will pay the costs to the appellants.
Appeal allowed.

summary:
The Custodian of Evacuee Property, Patiala, took possession of two houses under the provisions of the Patiala Evacuees (Administration of Property) Ordinance of Samvat 2004 (No. IX of 2004) but on the appellant claiming the houses as belonging to him they were released in his favour by the Custodian by an order dated June 6, 1949.
Thereafter several Ordinances relating to evacuee property were passed one after another, the later one repealing the previous one and creating a chain of fictions by which certain provisions of the repealed Ordinance were deemed to continue under the repealing Ordinance.
The last Ordinance was replaced by the Administration of Evacuee Property Act No. XXXI of 1950) under the provisions of which the Deputy Custodian General set aside the order of Custodian dated Julie 6, 1949, after giving notice to the present appellants.
On appeal by special leave the appellants contended that (1) the deeming provisions of the repealing Ordinances and Acts culminating in section 58(3) of the Act apply only to things or action taken by the Custodian in exercise of his administrative powers and not to orders made by him in exercise of his judicial powers, (2) the order dated June 6, 1949 passed by the Custodian under Ordinance IX of 2004 could not be deemed to be an order passed under the, Act as the chain of fictions was broken when Ordinance No. XIII of 2006, repealing the previous Ordinance IX of 2004 was issued, (3) section 58 (3) of the Act expressly saves the previous operation of Ordinance XXVII of 1949 or any corresponding law and, therefore, the orders that had become final under the said Ordinance could not be revised under section 27 of the Act.
Held, that the operation of section 58(3) of the (No. XXXI of 195o) was not confined only to administrative acts done by the Custodian under the earlier Ordinances but the provisions of that section applied also to judicial orders passed by him.
215 Indira Sohan Lal vs Custodian of Evacuee Property, Delhi, , followed.
The order dated June 6, 1949, releasing the property in dis pute was passed under Ordinance No. IX of 2004 by the Custodian and not the Claims Officer as provided in the successive Ordinance No. XIII of 2006 and therefore that order could not be deemed to have been passed under the successive Ordinances and the Act.
The alleged chain of fiction was broken during the period when Ordinance No. XIII of 2006 was in force.
Even if the Custodian was the Claims Officer, his order must be deemed to be an order made under the later Ordinance only for the limited purpose of appeal or revisions.
Under section 25 of the last Ordinance namely Ordinance No. XXVII of 1949 the order of the Custodian was appealable but no appeal having been filed it had become final under section 28.
The order of the Custodian which had become final under the said Ordinance, could not be affected retrospectively under section 58(3) of the Act so as to deprive the order of the Custodian of the finality it had acquired under the said Ordinance.
Section 58(3) does not contain any positive indication giving it such retroactivity but in express terms it saves the previous operation of that Ordinance.
Colonial Sugar Refining Co. Lid.
vs Irving, , followed.
Indira Sohan.
Lal vs Custodian of Evacuee property, Delhi; , , considered.
Delhi Cloth and General.
Mills vs Income tax Commissioner, Delhi, (1027) I.L.R. , referred to.
janki Prasad vs The Custodian Evacuee Properly, Jullundur, Punj.
823, disapproved.
The words "any time" or "any Custodian" in section 27 of the Act must necessarily be confined only to orders of any one of the Custodians defined in the Act and to orders of Custodians deemed to have been made under the Act but had not become final before the Act came into force.


judgement:
Appeal No. 490 of 1957.
Appeal from the judgment and decree dated March 22,1954, of the Allahabad High Court in Civil Misc.
Writ No. 7854 of 1951.
G. section Pathak, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant.
C. B. Agarwala, G. C Mathur and C. P. Lal, for respondents Nos. 1 and 3.
March 6.
The Judgment of section K. Das, M. Hidayatullah, J. C. Shah and N. Rajagopala Ayyangar, JJ. was delivered by J. C. Shah, J. K. C. Das Gupta, J. delivered a separate, Judgment.
SHAH, J.
In 1981, the appellant was admitted to the police force of the United Provinces and was appointed a Sub Inspector of Police.
He was later promoted to the rank of Inspector, and in 1946 was transferred to the Anti corruption department.
In 1947, he was appointed, while retaining his substantive rank of Inspector, to the officiating rank of Deputy Superintendent of Police.
Shortly thereafter, complaints were received by the Chief Minister and Inspector General of Police ' U. P. charging the appellant with immorality, corruption and gross dereliction of duty.
In a preliminary confidential enquiry, the Inspector General of Police came to the conclusion that "a prima facie case" was made out against the 20 154 appellant.
He then directed that a formal enquiry be held against the appellant and passed orders reverting the appellant to his substantive rank of Inspector and placing him under suspension.
An enquiry was held into the conduct of the appellant by the Superintendent of Police, Anti corruption department.
The report of the Superintendent of Police was forwarded to the Government of U. P., and the Governor acting under r. 4 of the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 herein after called the Tribunal Rules referred the case for enquiry to a Tribunal appointed under r. 3 of the Tribunal Rules on charges of corruption, personal immorality and failure to discharge duties properly.
The Tribunal framed three charges against the appellant, and after a detailed survey of the evidence recommended on February 4, 1950, that the appellant be dismissed from service.
The Governor then served a notice requiring the appellant to show cause why he should not be dismissed from service and after considering the explanation submitted by the appellant, the Governor ordered that the appellant be dismissed with effect from December 5, 1950.
The appellant challenged this order by a petition instituted in the High Court of Judicature at Allahabad under article 226 of the Constitution for a writ of certiorari quashing the proceedings of the Tribunal and for a writ of mandamus directing the State of Uttar Pradesh to hold an enquiry under section 55 of the Civil Services (Classification, Control and Appeal) Rules.
In support the order dismissing the appellant from High Court dismissing his petition, the appellant has raised three contentions: 1. that the order dismissing the appellant from the police force was unauthorised, because the Governor had no power under section 7 of the Police Act and the regulations framed thereunder to pass that order; 2. that even if the Governor was invested with power to dismiss a police officer, out of two alternative modes of enquiry, a mode prejudicial to the appellant having been adopted the proceedings of the Tribunal which enquired into the charges against him 155 were void, as the equal protection clause of the Con stitution was violated; and 3. that the proceedings of the Tribunal were vitiated because of patent irregularities which resulted in an erroneous decision as to the guilt of the appellant.
To appreciate the first two contentions, it is necessary briefly to set out the relevant provisions of the laws procedural and substantive in force, having a bearing on the tenure of service of members of the police force in the State of Uttar Pradesh.
The appellant was admitted to the police force constituted under Act V of 1861.
By section 3 of that Act, superintendence throughout a general police district vests in and is exercised by the State Government to which such district is subordinate and except as authorised by the Act, no person, officer or court may be empowered by the State Government to supersede or control any police functionary.
By section 4, the administration of the police throughout a general police district is vested in the Inspector General of Police.
By section 7, it is provided that subject to the provisions of article 311 of the Constitution and to such rules as the State Government may from time to time make under the Act, the Inspector General, Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspend or reduce any police officer of the subordinate rank whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same, or may award any one or more of the punishments (set out therein) to any police officer of the subordinate rank who discharges his duty in a careless or negligent manner or who by any act of his own renders himself unfit for the discharge thereof.
Section 46 sub section(2) authorises the State Government to make rules for giving effect to the provisions of the Act, and also to amend, add to or cancel the rules framed.
The Government of Uttar Pradesh has framed rules called the Police Regulations under the Indian Police Act.
Chapter 32 containing Regulations 477 to 507 deals with departmental punishment and 156 criminal prosecution of police officers and Ch.33 containing Regulations 508 to 516 deals with appeals, revisions, petitions etc.
By Regulation 477, it is provided that no officer appointed under section 2 of the Police Act shall be punished by executive order otherwise than in the manner provided in the chapter.
Regulation 478A provides that the punishment of dismissal or removal from the force or reduction as defined in Regulation 482 may be awarded only after departmental proceedings.
By Regulation 479 cl.(a), "full power" is reserved to the Governor to punish all police officers, and by cl.(b), the Inspector General is authorised to punish Inspectors and ill police officers of "lower ranks".
Regulation 489 provides for the departmental trials of police officers and Regulation 490 provides that the departmental trials of police officers must be conducted in accordance with the rules set out therein.
Regulation 490 in its various clauses makes provisions about oral and documentary evidence, framing of charges, explanation of the delinquent police officer, recording of statement of defence witnesses, recording of findings by the Superintendent of Police and the making of a report by the enquiry officer if he is of the view that the delinquent Police officer should be dismissed or removed from the force.
Clause (9) provides that the police officer may not be represented by counsel in any proceeding instituted against him under the rules.
By Regulation 508, every police officer against whom an order of dismissal or removal is passed is entitled to prefer one appeal against an order of dismissal from the police force to the authorities prescribed in that behalf, but against the order of the Governor in exercise of authority reserved under Regulation 479 cl.(a), no appeal is provided.
By section 96B of the Government of India Act,, 1915, the tenure of all civil officers including police officers was at the pleasure of the Sovereign.
In exercise of the powers conferred by sub.s.(2) of section 96B, classification rules were framed by the local Governments.
In the Government of India Act, 1935, ch. 2 of Part X dealt with civil services, their tenure, recruitment and 157 conditions of service.
The section corresponding to section 96B of the Government of India Act, 1915, in the later Act was section 240(1) and thereunder all members of the civil service held office during the pleasure of the Sovereign.
By the Government of India Act, 1935, to every civil servant a two fold protection was guaranteed by cls.(2) and (3) of section 240(1) that he shall not be dismissed from service by any authority sub.ordinate to that by which he was appointed and that he shall not be dismissed or reduced in rank until be has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
But these provisions did not apply to police officers for whom a special provision was enacted in section 243.
That section provided: "Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Act relating to those forces respectively.
" The conditions of service of the police force of the subordinate ranks were under the Government of India Act, 1935 therefore only such as were prescribed by rules framed under section 7 and section 46(2) of the Police Act.
By the Constitution of India, the distinction between police officers and other civil servants in the matter of protection by constitutional guarantees is abolished and as from January 26, 1950, the recruitment and conditions of service of all persons serving the Union or the State are now governed by article 309 and their tenure by article 310 of the Constitution.
By Article 311, the protection granted under section 240 cls.(2) and (3) of the Government of India Act is extended to members of the police force as well.
By Article 309, the conditions of service of public servants are made subject to the provisions of the Constitution and the Acts of the appropriate Legislature.
By Article 310, except as expressly provided by the Constitution, (i.e., except in cases where there is an express provision for dismissal of certain public servants e.g., Judges of the Supreme Court and of the High Courts, Comptroller and Auditor General of India, Chief Election Commissioner) 158 all civil servants who hold office under the Union of India hold office during the pleasure of the 'President and all civil servants who hold office under the State hold it during the pleasure of the Governor.
By virtue of article 313 of the Constitution, until other provision is made, all laws in force immediately before the Constitution and applicable to any public service which continues to exist under the Union or a State shall continue in force so far as consistent with the Constitution: the power of the police functionaries to dismiss police officers is therefore preserved.
On November 4, 1947, the Governor of U. P. in exercise of, the powers conferred inter alia by section 7 of the Police Act, published the Tribunal Rules.
By r. 1 el.(3), these rules apply "to all Government servants under the rule making control of the Governor" and are applicable to any acts, omissions or conduct arising before the date of commencement of the rules as they are applicable to those arising after that date.
Clause (e) of r. 2 defines "corruption", el.(d) defines "failure to discharge duties properly" and el.(e) defines " personal immorality".
Rule 4 authorises the Governor to refer to a Tribunal constituted under r. 3, cases relating to an individual Government servant or class of Government servant or servants in a particular area only in respect of matters involving (a) corruption, (b) failure to discharge duties properly.(e) irremediable general inefficiency in a public servant of more than ten years ' standing, and (d) personal im. morality.
By cl. 2, the Governor is also authorised in respect of a gazetted Government servant on his own request to refer his case to the Tribunal in respect of matters referred to in sub.r.
By r. 7, the proceedings of the Tribunal are to be conducted in camera and neither the prosecution nor the defense has the right to be represented by counsel.
Rule 8 prescribes the procedure to be followed by the Tribunal and r. 9 deals with the record to be maintained by the Tribunal.
Rule 10 states that the Governor shall not be bound to consult the Public Service Commission on the Tribunal 's recommendations and shall paw an order of punishment in the terms recommended by the Tribunal, provided "the Governor may for 159 sufficient reasons, award a lesser punishment".
Rule 1 2 provides that nothing in the rules shall be deemed to affect the conduct of disciplinary proceedings 'in ' oases other than those specifically covered by the provisions of the Tribunal Rules.
Rule 13 authorises the Governor to delegate the power to refer cases to gazetted officers,in charge of districts and to pass an order of punishment under r. 10 to heads of departments.
Enquiry against the appellant, though commenced before the Constitution was concluded after the Constitution, and the order dismissing him from the police force was passed in December, 1950.
Under Police Regulation 479(a), the Governor had the power to dismiss a police officer.
The Tribunal Rules were framed in exercise of various powers vested in the Governor including the power under section 7 of the Police Act, and by those rules, the Governor was authorised to pass appropriate orders concerning police officers.
By virtue of Article 313, the Police Regulations as well as the Tribunal Rules in so far as they were not inconsistent with the provisions of the Constitution remained in operation after the Constitution.
The authority vested in the Inspector General of Police and his subordinates by section 7 of the Police Act was not exclusive.
It was controlled by the Government of India Act, 1935, and the Constitution which made the tenure of all civil servants of a Province during the pleasure of the Governor of that Province.
The plea that the Governor had no power to dismiss the appellant from service and such power could only be exercised by the Inspector General of Police and the officers named in s.7 of the police Act is therefore without substance.
But it is urged that the enquiry held by the Tribunal against the appellant and the order consequent upon that enquiry deprived the appellant of the equal protection of the laws and were therefore void as infringing article 14 of the Constitution.
It is true that when proceedings were started against the appellant for an enquiry for his alleged misdemeanors, one of two distinct procedures for holding an enquiry, was open for selection by the authorities.
The police 160 authorities could direct an enquiry under the Police Regulations under the procedure prescribed by Regulation 490; it was also open to the Governor to direct an enquiry against the appellant, and as the charges against him fell within r. 4 of the Tribunal Rules, the procedure for enquiry was the one prescribed by r. 8 of the Tribunal Rules.
Relying upon the existence of these two sets of rules simultaneously governing enquiries against police officers either ' of which could be resorted to at the option of the authorities in respect of charges set out in r. 4 of the Tribunal Rules, it was urged that in directing an enquiry against the appellant under the Tribunal Rules, discrimination was practiced against him, and he was deprived of the guarantee of equal protection of the laws.
That an enquiry against the appellant could have been made under the procedure prescribed by Regulation 490 of the Police Regulations appears to be supported by rr.1(3), 4 and 12 of the Tribunal Rules.
Rule 1 subr.(3) provides that the Tribunal Rules shall apply to all Government servants under the rule making control of the Governor, and by r. 4, the Governor is authorised to refer cases to the Tribunal, but he if; not obliged to do so.
By r. 12, nothing in the Tribunal Rules is to affect the conduct of disciplinary proceedings in oases other than those specifically dealt with under the rules.
But the order of the Governor directing an enquiry against the appellant was passed before the Constitution, and article 14 has no retrospective operation: it does not vitiate transactions even if patently discriminatory which were completed before the commencement of the Constitution.
In Syed Qasim Razvi vs The State of Hyderabad (1), this court was called upon to decide whether a trial of an offender commenced before the Constitution under the Special Tribunal Regulation promulgated by the Military Governor of the Hyderabad State was, since the Constitution, invalid in view of article 14.
Mukherjea J. speaking for the majority of the court observed: (1) 161 is not to obliterate the entire operation of the inconsistent laws or to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess.
Such laws must be hold to be valid for all past transactions and for enforcing rights and liabilities accrued before the advent of the Constitution.
On this principle, the order made by the Mlitary Governor referring this case to the Special Tribunal cannot be impeached and consequently the Special Tribunal must be deemed to have taken cognizance of the case quite properly, and its proceedings up to the date of the coming in of the Constitution would also have to be regarded as valid." Similarly, Das, J. in Lachhmandas Kewalram Ahuja vs The State of Bombay (1) in dealing with the validity of proceeding before a Special Judge holding a trial before the Constitution observed: "As the Act was valid in its entirety before the date of the Constitution, that part of the proceeding before the Special Judge, which, up to that date, had been regulated by this special procedure cannot be questioned, however discriminatory it may have been. . ".
Selection by the authorities of one of two alternative procedures at a time when article 14 was not in operation, does not therefore enable the appellant to contest the validity of the enquiry on the plea of denial of equal protection of the laws.
It was also observed in Syed Qasim Razvi 's case(2) by Mukherjea J. at p. 606: "In cases of the type (where the trial commenced before the Constitution) Which we have before us where part of the trial could not be challenged as bad and the validity of the other 'part depends on the question as to whether the accused has been deprived of equal protection in matters of procedure, it is incumbent upon the court to consider, firstly, whether the discriminatory or unequal provisions of law could be separated from the rest and even without them a fair measure of equality in the matter (2) ; (2) 162 of procedure could be secured to the accused.
In the second place, it has got to consider whether the procedure actually followed did or did not proceed upon the basis of the discriminatory provisions.
In our opinion, a mere threat or possibility of unequal treatment is not sufficient.
If actually the accused has been discriminated against, then and then only he can complain, not otherwise.
We may mention here that the impossibility of giving the accused the substance of a trial according to normal procedure at the subsequent stage may arise not only from the fact that the discriminatory provisions were not severable from the rest of the Act and the court consequently had no option to continue any other than the discriminatory procedure; or it may arise from something done at the previous stage which though not invalid at that time precludes the adoption of a different procedure subsequently."
The proceedings of the Tribunal prior to the commencement of the Constitution are therefore not open to challenge except to the limited extent indicated by Mukherjea J.
The question which falls to be considered is whether the procedure followed by the Tribunal after the Constitution was discriminatory and operated to the prejudice of the appellant.
Regulation 490 of the Police Regulations sets out the procedure to be followed in an enquiry by the police functionaries, and rr. 8 and 9 of the Tribunal Rules set out the procedure to be followed by the Tribunal.
There is no substantial difference between the procedure prescribed for the two forms of enquiry.
The enquiry in its true nature is quasi judicial.
It is manifest from the very nature of the enquiry that the approach to the materials placed before the enquiring body should be judicial.
It is true that by Regulation 490, the oral evidence is to be direct, but even under r. 8 of the Tribunal Rules, the Tribunal is to be guided by rules of equity and natural justice and is not bound by formal rules of procedure relating to evidence.
It was urged that whereas the Tribunal may admit on record evidence which is hearsay, the oral 163 evidence under the Police Regulations must be direct evidence and hearsay is excluded.
We do not think that any such distinction was intended.
Even though the Tribunal is not bound by formal rules relating to procedure and evidence, it cannot rely on evidence which is purely hearsay, because to do so in ' and enquiry of this nature would be contrary to rules of equity and natural justice.
The provisions for maintaining the record and calling upon the delinquent public servant to submit his explanation are substantially the same under Regulation 490 of the Police Regulations and r. 8 of the Tribunal Rules.
It is urged that under the Tribunal Rules, there is a departure in respect of important matters from the Police Regulations which render the Tribunal Rules prejudicial to the person against whom enquiry is held under those rules.
Firstly it is submitted that there is no right of appeal under the Tribunal Rules as is given under the Police Regulations; secondly that the Governor is bound to act according to the recommendations of the Tribunal and thirdly, that under the Tribunal Rules, even if the complexity of a case under enquiry justifies engagement of counsel to assist the person charged, assistance by counsel may not be permitted at the enquiry.
These three variations, it is urged, make the Tribunal Rules not only discriminatory but prejudicial as well to the person against whom enquiry is held under these Rules.
In our vie," , this plea cannot be sustained.
The Tribunal Rules and the Police Regulations in so far as they deal with enquiries against police officers are promulgated under section 7 of the Police Act, and neither the Tribunal Rules nor the Police Regulations provide an appeal against an order of dismissal or reduction in rank which the Governor may pass.
The fact that an order made by a police authority is made appealable whereas the order passed by the Governor is not made appealable is not a ground on which the validity of the Tribunal Rules can be challenged.
In either case, the final order rests with the Governor who has to decide the matter himself.
Equal protection of the laws does not postulate equal treatment of all persons without 164 distinction:it merely guarantees the application of the same laws alike and without discrimination to all persons similarly situated.
The power of the Legislature to make a distinction between persons or transactions based on a real differentia is not taken away by the equal protection clause.
Therefore by providing a right of appeal against the order of police authorities acting under the Police Regulations imposing penalties upon a member of the police force, and by providing no such right of appeal when the order passed is by the Governor, no discrimination inviting the application of article 14 is practiced.
under r. 10 of the Tribunal Rules, the Governor is enjoined to pass an order of punishment in terms recommended by the Tribunal, whereas no such obligation is cast upon the police authority who is competent to dismiss a police officer when an enquiry is held under Regulation 490 of the Police Regulations.
To the extent that r. 10 requires the Governor to accept the recommendation of the Tribunal, the rule may be regarded as inconsistent with the Constitution, because every police officer holds office during the pleasure of the Governor, and is entitled under article 311(2) to a reasonable opportunity to show cause to the satisfaction of the Governor against the action proposed to be taken in regard to him.
The partial invalidity of r. 10 however does not affect the remaining rules: that part of the rule which requires the Governor to accept the recommendation of the Tribunal as to the guilt of the public servant concerned is clearly severable.
We may observe that in considering the case of the appellant, the Governor exercised his independent judgment and passed an order of dismissal and did not act merely on the recommendation of the Tribunal.
The difference between the two sets of rules on the matter under consideration does not relate to the procedure of the enquiring bodies, but to the content of reasonable opportunity guaranteed by article 311 of the Constitution.
The rules relating to appearance of lawyers at enquiries under the Police Regulations and under the Tribunal Rules are also not different.
Under cl.(9) 165 of Regulation 490 of the Police Regulations, an accused police officer may not be represented by counsel in any proceeding instituted under those Regulations, ' and by r. 7 of the Tribunal Rules, neither the prosecution nor the defence have the right to be represented by counsel.
Both the rules deny to the police officer the right to be represented by counsel.
The procedure provided in the Police Regulations is substantially the same as the procedure prescribed by the Tribunal Rules, and by continuing the enquiry after the Constitution under the Tribunal Rules and not under the Police Regulations, a more onerous procedure prejudicial to the appellant was not adopted.
The Governor appointed the Tribunal for enquiry against the appellant before the Constitution, but the order of dismissal was passed after the Constitution came into force.
The appellant was entitled to the protection of article 311(2) of the Constitution.
Since the Constitution was enacted, the distinction which was made between members of the police force and other civil servants under sections 240, 241 and 243 of the Government of India Act has disappeared and all civil servants including the police officers are entitled to the protection of article 311(2).
The content of the guarantee was explained by this court in Khem Chand vs The Union of India (1).
It was observed by "To summarise: the reasonable opportunity envisaged by the provisions under consideration includes (a)an opportunity to deny his guilt and establish his innocence which he can only do if he is told what the charges leveled against him are and the allegations on which such charges are based; (b)an opportunity to defend himself by cross examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (c)an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after (1) ; , 1096.166 applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant".
To a police officer charged with misdemeanor, opportunity in all the three branches set out in Khemchand 's case (1)is provided under the Tribunal Rules.
There is opportunity to the police officer against whom an enquiry is made to deny his guilt and to establish his innocence; there is opportunity to defend himself by cross examination of witnesses produced against him and by examining himself and other witnesses in support of his defence, and there is also opportunity to make his representation as to why the proposed punishment should not be inflicted.
The discrimination which is prohibited by article 4 is treatment in a manner prejudicial as compared with another person similarly circumstanced by the adoption of a law, sub stantive or procedural, different from the one applicable to that other person.
In Sardar Kapur Singh vs The Union of India (1), this court held that by directing an enquiry against a member of the Indian Civil Service who was charged with misdemeanor under, the and not under r. 55 of the Civil Services (Classification, Control and Appeal) Rules when there was no substantial difference between the material provisions, discrimination was not practiced.
It was observed (at p. 581): "Does the holding of an enquiry against a public servant under the , 18,50 violate the equal protection clause of the Constitution? The appellant submits that the Government is invested with authority to direct an enquiry in one of two alternative modes and by directing an enquiry under the which Act it is submitted contains more stringent provisions when against another public servant similarly circumstances an enquiry under r. 55 may be directed, article 14 of the Constitution is infringed.
" After considering the ,,special protection given to (1) ; 1096 (2) ; 167 members of the Indian Civil Service and the essential characterised of the procedure for making enquiries under the public Servants (Inquiries) Act,1850, it was observed at p.584.
"The primary constitutional guarantee, a member of the Indian Civil Service is entitled to is one of being afforded a reasonable opportunity of the content set out earlier, in an enquiry in exercise of powers conferred by either the or r. 55 of the Civil Services (Classifi. cation, Control and Appeal) Rules, and disorimination is not practised merely because resort is had to one of two alternative sources of authority, unless it is shown that the procedure adopted operated to the prejudice of the public servant concerned.
In the case before us, the enquiry held against the appellant is not in manner different from the manner in which an enquiry may be held consistently with the procedure prescribed by r. 55, and therefore on a plea of inequality before the law, the enquiry held by the Enquiry Commissioner is not liable to be declared void because it was held in a manner though permissible in law, not in the manner, the appellant says, it might have been held.
" In Syed Qasim Razvi 's case (1), it was held that if the substance of the special procedure followed after the Constitution in an enquiry or trial commenced before the Constitution is the same as in the case of a trial by the normal procedure, the plea of discrimination invalidating a trial must fail, Counsel for the appellant in support of his plea that the enquiry by the Tribunal was vitiated because it was held under a discriminatory procedure relied judgment of this Bench in the State of Orissa Dhirendranath Das (2).
In that case, a lower Division Assistant in the Secretariat of the Orissa Government was found guilty of certain misdemeanor by a Tribunal appointed under rules framed by the Orissa Government after an enquiry held in that behalf and was ordered to be dismissed from service.
In a petition by the public servant under article 226 of the Constitution praying for a writ declaring illegal the order (1) (2) A.LR.168 of dismissal it was held by the Orissa High Court that ad on the date on which enquiry was directed against the petitioner there were two sets of rules in operation, the Tribunal Rules and the Bihar and Orissa Subordinate Services Discipline and Appeal Rules and it was open to the Government of Orissa to select either set of rules for enquiry against any public servant against whom a charge of misdemeanor was made and that selection of one in, preference to the other set of rules was violative of the guarantee of article 14 of the Constitution.
The High Court accordingly declared the order of dismissal inoperative and further declared that the disciplinary proceedings be restored to the stage which they had reached when the case was referred to the Tribunal.
Against that order, the State of Orissa preferred an appeal to this court.
The relevant rules were not in that case incorporated in the paper book prepared for the hearing nor did counsel for the@ State produce for our consideration those rules.
Counsel also conceded that by the adoption of the procedure prescribed by the Tribunal Rules in preference to the procedure in an enquiry under the Service Rules, discrimination would be practiced because there were substantial differences in the protection to which the public servants were entitled under the Service Rules and the Tribunal Rules.
The only ground pressed in support of the appeal was that the Service Rules were not in operation at the time when the enquiry in question was directed and by directing an enquiry under the Tribunal Rules, discrimination was not practiced.
But this argument raised for the first time questions which were never investigated and this court declined to allow counsel to raise them.
It was observed in that case: "If the two sets of rules were in operation at the material time when the enquiry was directed against the respondent and by order of the Governor, the enquiry was directed under the Tribunal Rules which are "more drastic" and prejudicial to the interest of the respondent, a clear case of discrimination arises and the order directing enquiry 169 against the respondent and the subsequent proceedings are liable to be struck down as infringing article 14 of the Constitution."
Before us, counsel for the appellants has produced a printed copy of the Disciplinary Proceedings (Administrative Tribunal) Rules, 1951 published by the Government of Orissa.
A perusal of these rules may apparently suggest that subject to certain minor differences, these rules are substantially the same as the Tribunal Rules framed by, the State of U. P.
We have however not been supplied with a copy of the Bihar and Orissa Subordinate Services Discipline and Appeal Rules, 1935.
The judgment of this court in The State of Orissa vs Dhirendranath Das can have no application to this case, because in that case, the order of the High Court was.
assailed on the limited ground that the High Court erred in assuming that there were two sets of rules simultaneously in operation, and it was open to the Executive Government to select one or the other for holding an enquiry against a delinquent public servant.
That contention was negatived and the judgment of the High Court was confirmed.
We do not think that there is any substance in the plea that discrimination was practiced by continuing the enquiry under the Tribunal Rules after the Constitution was brought into force.
This appeal is filed with a certificate under article 132 of the Constitution.
By ' el.(3) of article 132 the appellant is entitled to appeal to this court only on the ground that the High Court has wrongly decided a substantial question as to the interpretation of the Constitution and unless this court grants leave to him, on no other.
Counsel for the appellant has challenged the regularity of the proceedings of the Tribunal and we have heard him to assure ourselves that the proceeding of the Tribunal has not been vitiated by any serious irregularity, or that the appellant was net deprived of the protection under article 311 of the Constitution.
We proceed to consider briefly the arguments advanced in support of that plea.
It was urged 170 in the first instance that the appellant was not permitted to appear at the enquiry before the Tribunal by a lawyer whereas the State Government was represented by a lawyer.
It was averred in paragraph 14 of the affidavit of the appellant that the case for the prosecution was conducted by Jwala Prasad, Deputy Superintendent of Police and Legal Advisor to the Anti corruption Department, and that the Tribunal was told that such a course would be contrary to the Tribunal Rules and in any case contrary to rules of equity and natural justice, because he the appellant was not permitted to appear by counsel.
In reply, Hari Shankar Sharma, Deputy Superintendent of Police stated in his affidavit that it was not true that before the Tribunal prosecution was conducted by Jwala Prasad.
Ho also, stated that the Tribunal had required the presence of Sri Krishna who had made enquiries, but as Sri Krishna could not remain present, Jwala Prasad attended the sitting of the .Tribunal only on one day as Deputy Superintendent of Police, C.I.D., but he did not take any part in the proceedings, and "examination of witnesses and the cross examination was all done by the members of the Tribunal" and the appellant.
It does not appear that Jwala Prasad was a practicing lawyer: he was not in any case permitted to appear as a lawyer and on the affidavit of Hari Shankar Sharma, it is clear that he did not take any part in the examination of witnesses or cross examination.
It was then urged that the explanation submitted by the appellant was not considered because the Governor felt bound by the recommendations of the Tribunal.
But in para 25 of the affidavit, Hari Shankar Sharma stated that the explanation of the appellant was submitted to the Government by the Inspector General of Police and the Governor duly considered the explanation and was of opinion that the appellant was unable to clear his conduct and therefore under r. 10(1) of the Tribunal Rules the Governor ordered dismissal of the appellant from service after considering the merits of his defence.
It was then urged that the application submitted by the appellant for summoning witnesses and 171 calling for certain records was not considered and the appellant had on that account been prejudiced.
In para 15 of his affidavit, the appellant stated that the Tribunal refused to call for certain records and though he wanted to summon certain defence witnesses, his application in that behalf was also refused.
In answer P to this averment, Hari Shankar Sharma stated that the appellant had given a long list of defence witnesses and the Tribunal asked him to select those witnesses whose evidence in the opinion of the appellant would be relevant and thereupon the appellant " reduced his list to a much smaller number" and all those witnesses were summoned.
Then it was urged that the assessor who is required under the rules to assist the Tribunal not having remained present at the hearing, the enquiry was vitiated.
In paragraph 16 of the affidavit, the appellant has stated that during the enquiry section N. Agha the assessor was absent on many days on which the case was heard and the evidence was recorded.
In reply, Hari Shankar Sharma stated that the contents of paragraph 16 of the affidavit were not correct, that it was true that Agha could not attend on certain dates "due to unavoidable circumstances", but the appellant was specifically asked if he had any objection to the recording of evidence in Agha 's absence and the appellant having stated that he has no objection, the proceedings were continued with his written consent.
He further stated that the assessor was explained of the proceedings held on the days on which he had remained absent.
The averments made in the affidavit of Hari ShankarSharma were not controverted by the appellant.
On the materials placed on record, there is no substance in any of the pleas raised by the appellant relating to the regularity of the proceedings of the Tribunal.
It may be pertinent to note that even though the appellant challenged before the High Court the regularity of the proceedings of the Tribunal, no argument was, it appears, advanced before the High Court in support thereof.
The judgment of the High Court which is fairly detailed does not refer to any 172 ground on which the contention was sought to be sustained.
The appeal fails and is dismissed with costs.
DAS GUPTA, J.
I have had the advantage or reading the judgment prepared by Shah J.; but while I respectfully agree with the conclusions on all other points, I regret my inability to agree with the conclusion reached there on the main question in controversy, viz. whether the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 are void as being in contravention of article 14 of the Constitution, in so far as they do not provide for any appeal against a decision by the Governor under Rule 10.
The facts have been fully stated by my learned Brother and need not be repeated, especially as the facts in this particular case do not arise for consideration in the decision of the question of law, whether article 14 is contravened by the above provisions of the Tribunal Rules.
Under these rules the Governor may refer to the Tribunal constituted in accordance with rule 3 "cases relating to an individual government servant or class of government servants or government servants in a particular area only in respect of matters involving (a) corruption; (b) failure to discharge duties properly; (c) irremediable general ineffi ciency in a public servant of more than ten year 's standing; and (d) personal immorality." Under cl. 3 of rule 1 these rules apply to all government servants under the rule making control of the Governor.
It is not disputed that these rules apply to every member of the police service in Uttar Pradesh and that the Governor may refer to the Tribunal the cases relating to any individual government servant belonging to the police department in respect of any of the matters mentioned 'in cl.
(1) of Rule 4.
It is also not disputed that if the Governor "does not make any such refe rence, the case of any such member of the police service in respect of any of these matters may be inquired into under the Uttar Pradesh Police Regulations.
The co existence of the provisions of Police Regulations on 173 the question of departmental punishment of police officers with the Tribunal Rules, thus results in the position that of two members of the police service holding the same post and rank, one may be proceeded against in respect of any of the matters mentioned in Rule 4(1) of the Tribunal Rules, under the Tribunal Rules and another may be proceeded against for the self same matter under the Police Regulations.
Where the inquiry is held under the Tribunal Rules, the Tribunal has to make a record of the charges, the explanation, its own findings and the views of the assessor and where satisfied that punishment be imposed, also formulate its recommendations about punishment.
Under Rule 10 the Governor will then decide the case and no appeal shall lie against the order so passed by the Governor.
Where the action is taken under the Police Regulations procedure, a police officer against whom an order of dismissal, removal, suspension or reduction is passed has a right of appeal to the authority prescribed in Regulation 508.
The question is whether the existence of the right of appeal under the Police Regulation Procedure and the absence of the right, appeal against the decision by the Governor in the Tribunal Rules ' procedure amounts to unequal treatment.
On behalf of the respondent it has been urged that there is no unequal treatment as in one case it is the order of the Governor which is made not appealable and in the other case it is the order of a police functionary which is made appealable.
The argument seems to be that only if in the Police Regulations an order made by the Governor had been made appealable while under the Tribunal Rules the order made by the Governor was not appealable there could be any scope for a complaint of unequal treatment.
With great respect to my learned brethren who have taken the contrary view, I am of the opinion that this argument misses the realities of the position and is really an attempt to slur over the difficulty.
The real Position that requires examination appears to me to be this: Suppose A and B are two police officers holding the same rank and post and A is proceeded against under the 174 Tribunal Rules on a charge of corruption while B is proceeded against on a similar charge of corruption under the Police Regulations procedure.
In the first case if the Tribunal finds A guilty and recommends, say, dismissal; and the Governor makes an order of dismissal, against this order there is no appeal.
Suppose in B 's case also the punishing authority makes an order of dismissal but against this B has a right of appeal.
It is obvious that while in the latter case B has some chance of the appellate authority taking a different view either about his guilt or about the quantum of punishment and setting aside or modifying the order, A has no such chance at all.
It will be little consolation to A that the order in his case has been passed by such an high authority as the Governor.
He can, it seems to me, legitimately complain that there is a real difference between the way he is treated and B is treated because of this existence of B 's right of appeal against the punishing authority 's order while he has no such right.
Unless one assumes that the right of appeal is only in name, I do not see how one can deny that there is a legitimate basis for this complaint.
I cannot agree that the right of ap.
peal is a right without substance.
Whenever one authority sits in appeal over another authority there is always a chance that the appellate authority may take a different view of facts or of law and as regards the quantum of punishment requisite, from the authority whose decision is under appeal.
It is this chance which is denied, if a right of appeal is taken away.
I am therefore of opinion that the absence of the right of appeal under Rule 10 of the Tribunal Rules while a right of appeal is given to a police officer under the Police Regulations, results in unequal treatment in a substantial matter, as between a police officer proceeded against under the Tribunal Rules and an officer who is proceeded against under the Police Regulations procedure.
Nor is it possible to discover any principle to guide the discretion of the Government to select some police officers to be proceeded against under the Tribunal Rules while leaving out other police officers to be proceeded against, in respect 175 of similar matters, under the Police Regulations procedure.
I have therefore come to the conclusion that the Tribunal Rules in so far as they provide that no appeal shall lie against the decision of the Governor is ultra vires the Constitution, being in contravention of article 14 of the Constitution.
As has been noticed by Shah J. a somewhat similar question fell to be considered by us in Civil Appeal No. 103 of 1959 (State of Orissa vs Dhirendranath Das).
Comparing the Disciplinary Proceedings (Administrative Tribunal) Rules., 1951 of the Orissa Government under which Dhirendranath Das had been proceeded against and dismissed from service with the Bihar and Orissa Subordinate Service Discipline and Appeal Rules, 1935 this Court held that inasmuch as there was a right of appeal to the authority immediately superior to the punishing authority under the Service Rules.
while there is no such appeal against the findings and recommendations of the Tribunal, the pre proeedings were substantially different.
The court further pointed out that as inquiries could be directed according to procedures substantially different at the, discretion of the executive authority "exercise whereof is not governed by any principle,% having any rational relation to the purpose to be achieved by the inquiry, the order selecting a prejudicial procedure, out of the two open for selection, is hit by article 14 of the Constitution.
" I cannot find anything here that would justify a revision of the view taken by us in that case.
As in my judgment the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 are hit by article 14 of the Constitution I would allow the appeal and set aside the order of dismissal passed against the appellant By Court.
In view of the majority Judgment of the Court, the appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
There were certain charges of immorality, corruption and gross dereliction of duty against the appellant who was a police officer.
After an enquiry, the Governor of U. P. referred the case under section 4 Of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, to a Tribunal.
The Tribunal recommended on February 4, 1950, that the appellant be dismissed from service.
The Governor then served a notice on the appellant to show cause why he should not be dismissed from service and after considering the explanation submitted by him dismissed him with effect from December 5, 1950.
The appellant challenged the order of dismissal, inter alia, on the grounds: (i) that the Governor had no power under section 7 of the Police Act and the U. P. Police Regulations framed thereunder to dismiss a police officer and (ii) that the enquiry held by the Tribunal violated 152 article 14 Of the Constitution as of the two parallel procedures available under the Tribunal Rules and under the U. P. Police Regulations, the mode prejudicial to the appellant under the Tribunal Rules was adopted.
Held (per Das, Hidayatullah, Shah and Ayyangar, JJ.) that the enquiry by the Tribunal and the order of dismissal passed by the Governor were legal and valid.
Under para.
479(a) of the U. P. Police Regulations, framed under section 7 Of the Police Act, the Governor bad the power to dismiss a police officer.
Under the Tribunal Rules also, which were framed in exercise of the various powers vested in the Governor including the power under section 7 Of the Police Act, the Governor was authorised to dismiss a police officer.
By virtue of article 313 Of the Constitution these provisions remained in operation even after the coming into force of the Constitution.
The authority vested in the Inspector General of Police and his subordinates by section 7 of the Police Act, was not exclusive; it was controlled by the Government of India Act, 1935, and the Constitution which made the tenure of all civil servants of a province or state during the pleasure of the Governor.
The procedure adopted did not violate article 14 Of the Con stitution.
Though at the time when proceedings were started against the appellant two distinct procedures for holding the enquiry were open for selection by the authorities, the order by the Governor referring the case under the Tribunal Rules having been passed before the Constitution, article 14 could have no application to it even if it was discriminatory.
The procedure ire scribed in the Police Regulations is substantially the same as the procedure prescribed by the Tribunal Rules, and by continuing the enquiry after the Constitution under the Tribunal Rules and not under the Police Regulations, a more onerous procedure prejudicial to the appellant was not adopted.
The fact that an order made by a police authority under the Police Regulations is made appealable whereas an order passed by the Governor under the Tribunal Rules is not made appealable does not amount to discrimination within the meaning of article 14.
The Tribunal Rules provide for the giving of reasonable opportunity to a public servant in ill its aspects, viz., opportunity to deny his guilt, opportunity to defend himself and opportunity ,to make his representation against the proposed punishment.
The mere existence of two sets of parallel procedures is not discriminatory unless it was shown that one set is more onerous than the other.
Syed Qasim Rozvi vs The State of Hyderabad and Lackhmandas Kewalram.
Abuja vs The State of Bombay, ; , applied.
Khem Chand vs The Union of India and others, [1954] S.C. R. 1080 and Sardar Kapur Singh V: Union of India, (1960) 2 S.C. R. 569, referred to.
153 State Of Orissa vs Dhirendranath Das, A.I.R. 1961 S.C. 1715, distinguished.
Per Das Gupta, J. The U.P., Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, are hit by article 14 Of the Constitution.
The absence of the right of appeal under the Tribunal Rules while a right of appeal is given to a police officer under the Police Regulations, results in unequal treatment in a substantial matter between police officers proceeded against under the two procedures.
Further, there is no principle.
to guide the Government in selecting which of the two procedures is to be applied in a particular case.