C.D. Khosla, C.J.
1. The facts which have given rise to this appeal under Clause 10 of the Letters Patent are briefly as follows: The petitioner, who is the respondent^ before us, was running a cinema known as the Empire Talkies at Pathankot in partnership with one Rafique Ahmad. This partnership continued till September 1947 when the Custodian stepped in, because Rafique Ahmad had left the country as an evacuee. The Custodian ran the Cinema till February 1950 and on 10-2-1951 the Custodian leased one-half share in the concern to Jewan Lal respondent at a rental of Rs. 200/- per mensem.
2. Thereafter the Custodian issued a notice under Section 6 of the Evacuee Interest (Separation; Act. Jewan Lal appealed and it was held that the Custodian was competent to go into the matter of what was evacuee's interest in the business. The Custodian was of the opinion that a sum of money was due to him on account of the evacuee's interest and so on 2-4-1957, the Asistant Custodian issued a notice to the respondent asking him to produce his account-books before him on 15-4-1957, so that he (the Assistant Custodian) could make an enquiry into the extent of the amount due to the Custodian.
Jewan Lal respondent resisted this notice and filed an appeal to the Additional Custodian and then to the Custodian-General. Both these appeals were dismissed. Therefore, there were against him three subsisting orders--(1) the order of the Assistant Custodian dated 27-4-1957 to which 1 have just made a reference, (2) the order of the Additional Custodian dated 24-6-1957 dismissing Jewan Lal's appeal against the Assistant Custodian's order and (3) the order of the Custodian-General made on 20-12-1957 deciding the matter against Jewan Lal.
3. Jewan Lal brought a petition for a writ to this Court challenging the validity of all these three orders and, in the main, the argument urged on his behalf was two-fold-- (1) the Custodian could not call upon Jewan Lal to render accounts, because he was not empowered to do so under Section 48 c the Administration of Evacuee Property Act and (2) the notice having been issued to him on 2-4-1957, whatever claim the Custodian may have had against Jewan Lal, was not barred by time and so the Custodian could not make an enquiry into the matter. The matter came before Gosain J. and he decided the first point in favour of Jewan Lal.
He took the view that all that the Custodian could do was to make a demand for a specific sum and that the only objection, which could be taken by the debtor (in this case Jewan Lal) was to say that the amount was not payable. Therefore, when the Custodian endeavoured to make an enquiry into the matter and called upon the debtor to render acounts, he had acted beyond the powers conferred upon him by Section 48 of the Act. With regard to limitation, Gosain J. observed that limitation was specifically saved by the Act as at now stands after the amendment made by Central Act No. 91 of 1956.
4. This is how thc matter was dealt with by Gosain J. :
'All the three sub-sections of Section 48 envisage only a case where a definite sum is sought to be recovered and a dispute arises with regard to the sum being due or not, or with regard to the period of limitation during which the sum could be recovered. The present case is not covered by any of the sub-sections of this section because of the simple reason that the Custodian is neither seeking to recover any particular sum nor has a dispute arisen with regard to the said sum. The Custodian in this particular case wishes to become a judge in his own cause and to enter on a fishing enquiry to find out the state of affairs of the accounts of the partnership. There is no provision in the Administration of Evacuee Property Act which enables him to do this, and his action is obviously beyond the Act.'
5. With great respect to the learned Judge, I find myself unable to take this view of the provisions of Section 48. The reasoning given by Gosain J. would lead to the absurd conclusion, a conclusion which, I am sure, Gosain J. would not favour, that the Custodian can make a demand for an outrageously large sum but cannot make an enquiry in order to find out whether any sum is due to him or not. If a person is given the power to make an enquiry with regard to a sum which he considers due to him from an individual, then surely the enquiry can only mean that he has a right to determine what sum is due to him. Section 48, as it now stands amended by Act No. 91 of 1956, stands as follows:
'48. Recovery of certain sums as arrears of land revenue. (1) Any sum payable to the Government or to the Custodian in respect of any evacuee property, under any agreement, express or implied, lease or other document or otherwise howsoever, may be recovered in the same manner as an arrear of land revenue,
(2) If any question arises whether a sum is payable to the Government or to the Custodian within the meaning of Sub-section (1), the Custodian shall, after making such inquiry as he may deem fit, and giving to the person by whom the Bum is alleged to be payable an opportunity of being heard, decide the question, and the decision of the Custodian shall, subject to any appeal or revision under this Act, be final and shall not be called in question by any Court or other authority.
(3) For the purposes of this section, a sum shall be deemed to be payable to the Custodian, notwithstanding that its recovery is barred by the Indian Limitation Act, 1908, or any other law for the time being in force relating to limitation of actions.'
6. Sub-section (2) set out above leaves no doubt whatsoever regarding the powers of the Custodian to enquire into the whole question of indebtedness. Supposing the Custodian made a demand for a sum of, say Rs. 10,000/-, the debtor could obviously object to this demand and say that the money was not due from him. Can he not say that an amount less than Rs. 10,000/- is due to him and cannot the Custodian make an enquiry as to the exact amount due after giving the debtor an opportunity of being heard?
I find it impossible to construe Sub-section (2) in any other manner. Gosain J. had, on a previous occasion, expressed the view which he has now expressed in Sat Narain Beli Ram v. Custodian Evacuee Property, Jullundur, AIR 1959 Punj 417, and he has obviously followed the line of consistency in not departing from his previous view, but with great respect to Gosain J., it seems to me that the enquiry which the Custodian can make under Sub-section (2) is exactly the sort of enquiry which was contemplated by the Custodian in the case before us.
It is not a fishing enquiry, nor is it a direction calling upon Jewan Lal to render accounts. It is only a legal way of making the enquiry which the Custodian is empowered to do. If the view express-ed by Gosain J. were adopted, then the Custodian could have said to Jewan Lal, that a sum of Rs. 10,000/- was due to him from Jewan Lal, and whatever objections Jewan Lal raised, the Custodian would have dismissed them and recovered the amount as arrears of land revenue. This inequitous result would have followed logically upon the restricted meaning which Gosain J. has placed upon this section.
7. Gosain J. has observed that the Custodian becomes a judge in his own cause, but this result would follow if he were making a demand for a specific sum and after overruling the debtor's objections he were to proceed to recover the amount as arrears of land revenue. It is far more just and equitable to give the Custodian the power to make an enquiry and to place an obligation Upon him to hear the debtor before he passes final orders. It is somewhat unfair to say that the Custodian becomes a Judge in his own cause.
The amount is due to Government, and the mere fact that the Custodian is a Government official, does not deprive him of the right to enquire into what amount is due to Government. All Departments of Government work in this way. Income-tax Officers are empowered to determine the income-tax due from an assessee, tax collectors can determine the amount of tax due to Government and there are enough safeguards provided to ensure that no capricious or arbitrary decision is made. The whole object of giving this power to the Custodian was to expedite disputes and bring to conclusion matters which had been pending for so many years.
8. I am, therefore, of the opinion that the Custodian had the power under Section 48 of the Act to make an enquiry and as a preliminary to make this enquiry, the notice which he issued to the respondent was perfectly valid and legal.
9. The second point raised before us was the question of limitation. It was argued on behalf of the respondent that although Gosain J. had expressed a view adverse to him, the dues claimed by the Custodian, having become barred by time, could not be recovered under Section 48. It was submitted that Sub-section (3), which saved limitation, applied only to those cases in which the amount became recoverable after the amending Act was passed. A careful reading of the section, however, makes it quite clear that what the section is dealing with is the amounts found due irrespective of when the liability was incurred.
As long as a sum is found due to the Custodian, the Custodian can take action for its recovery even though the claim may be barred by time under ordinary law. This conclusion is inevitable from the wording of the section. The section speaks of sums payable to Government, and Sub-section (3) says that a sum is to be deemed to be payable despite the fact that its recovery is barred by limitation. Therefore, it is clear that this section was intended to cover those dues which had become barred before the Act came into force.
10. Our attention was drawn to a decision of the Patna High Court, Bansidhar LaL v. Assistant Custodian Evacuee Property Sasaram, AIR 1960 Pat 306, in which the view taken was that the section did not save debts which had become barred before the 22nd of October 1956. The learned Judges referred to the fact that the Act came into force with effect from the 22nd of October, 1956 although it received the assent of the President on the 28th of December 1956. Adverting to this matter, this is what the learned Judges observed :
'It is, therefore, manifest that the amending Act has been made expressly retrospective with effect from 22-10-1956. *****
It is clear therefore, that on the date the amending Act came into force the right of the Certificate authorities to proceed against the petitioner for recovery of the arrears of rent beyond three years of the date of the requisition was barred.'
11. It does not appear to have been, brought to the notice of the learned Judges that the date 22-10-1956 was chosen because upon that date Central Ordinance No. 6 of 1956 was promulgated. Parliament was not at that time sitting and so the necessity of issuing Ordinance No. 6 of 1956 was felt. As soon as Parliament met, Act No. 91 o 195.6 was passed, and this Act is precisely in the same terms as Ordinance No. 6 of 1956.
Therefore, the Act merely took the place of the Ordinance. Out of abundant caution, the Legislature provided that the Act must be deemed to come into force on the 22nd of October 1956, although there was no need for saying that because the period between the 22nd of October 1956 and the passing of the Act on the 28th of December 1956 was adequately covered by the provisions of the Ordinance.
12. Be that as it may, the result is simply this. With effect from the 22nd of October 1956 any sums found payable to the Custodian under Section 48 of the parent Act could be recovered despite the bar of limitation. It was not a case of a statute having been enforced retrospectively as removing a bar which stood in the way of the Custodian.
13. Our attention was drawn to some decisions relating to Section 34 of the Income-tax Act. This section was amended and the period during which a notice could validly issue was extended. A close analogy, however, does not exist between the provisions of Section 34 of the Income-tax Act as subsequently amended and Section 48 of the Administration of Evacuee Property Act. Gosain J. has himself taken the view that if a specific sum had been demanded by the Custodian, its recovery would not have been barred by limitation.
14. In this view of the matter, this appeal must be allowed and I would allow it I would, however, make no order as to costs.
S.S. Dulat, J.
15. I agree.