1. In this petition under Article 226 of the Constitution, certain orders made by the Deputy Custodian-General have been challenged. They were made in connection with the transfer of certain property to the petitioner company by the Custodian of Evacuee Property under the provisions contained in the Kapurthala State Evacuees (Administration or Property) Act, 1948. A number of points have been raised in the petition and were argued before me by Mr. B. R. Tuli, the learned counsel for the petitioner, but one of the material points on the decision of which the fate of this petition may ultimately depend is whether the property in dispute could be declared to be evacuee property by the Deputy Custodian-General alter 7th May 1954 owing to the prohibition contained in Section 7A of the Administration of Evacuee Property Act, 1950.
The position taken up on behalf of the respondents is that since the property in question was evacuee property, it vested automatically in the Custodian under the provisions contained In the Kapurthala State Evacuees (Administration of Property) Act, 1948, and that vesting continued under the provisions of Section 8(2) of the Administration of Evacuee Property Act, 1950. Mr. Tuli, however has placed reliance on a decision given by me in Darshan Lal v. R. L. Aggarwal, 1958-60 Pun LR 669. (AIR 1959. Punj 96). I had come to the conclusion that the provisions contained in Sections 7 and 1 of the Administration of Evacuee Property Act must be followed before 8 property could be declared to be an evacuee property or deemed to have been so declared, and that it was only when property had been declared to be evacuee property in accordance with the statute that it could be deemed to have vested in the Custodian. For the purpose of vesting, there must be something tangible and objective which the Custodian Department should have done, e.g., assumption of physical control, specification of a particular property as evacuee property, assumption of control by express notification and the like. Section 8(2) would have retrospective effect only in such cases in which some positive action had been taken under the relevant provisions or some effective decision had been given; otherwise the provisions of the Act were to apply and there would be no vesting unless a notice under Section 7 has been issued and a declaration has been made.
Tek Chand J. in Sham Singh v. Custodian-General etc., 1961-63 Pun LR 420 has dissented from my decision and the learned Additional Advocate-General has now relied mainly on that decision. Mr. Tuli's position is that Section 8(2) would not apply to his case but the Additional Advocate-General maintains that it will. Therefore, it is essential to resolve the conflict between the two views which had been taken in this Court.
In Jair Kaur v. Sher Singh, ILR 1960 (2) Punj 615: (AIR 1960 SC 1118), their Lordships of the Supreme Court made certain observations at page 626 (of 1LR Punj): (at pp. 1122-1123 of AIR) which are pertinent-
'We had recently occasion to disapprove of the action of a Division Bench in another High Court in taxing it upon themselves to hold that a contrary decision of another Division Bench on a question of law was erroneous and stressed the importance of the well-recognised judicial practice that when a Division Bench differs from a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision.'
Although these observations were made with regard to decisions cf Division Benches, with great respect I consider that the ratio would apply even to decisions of Single Bencnes. At any rate, in my opinion it would create a good deal of difficulty for tha subordinate Courts if conflicting decisions are given by Single Judges. I would accordingly direct that the orders of the Hon'ble the Chief Justice may be obtained for constituting a Division Bench for deciding this petition.
2. Mr. Tuli has pointed out that the Additional Custodianhas now assessed the. value of the property at about Rs. 92,000/- and that objections have been preferred byhim to that but sooner or later the Department will call uponhim to pay the difference between this amount and the amountwhich he had already paid at the time of the transfer. It isprayed that pending the decision of the Division Bench realisation of any extra amount that may be determined by theDepartment as payable by the petitioner company should bestayed. I consider it is a reasonable prayer and I grant thesame.