1. This is a reference under Section 27(2) of the Administration of Evacuee Property Act (Act No. XXXI of 1950), 1950 (hereinafter to be referred to as the Act) by the Deputy Custodian General under his order dated 28-4-1956.
2. The facts of the case are simple and not disputed.
3. Proceedings under Section 19 of the Administration of Evacuee Property Ordinance of 1949 (hereinafter to be referred to as the Ordinance) had been initiated against the respondent Dr. Mohd. Saeed of Jaipur, and by an order of 1-4-1950 he was declared to be an intending evacuee by the Deputy Custodian, Jaipur. By the same order it was directed that notice be issued to the respondent to show cause as to why he be not declared to be an evacuee under Ss, 2(d)(i) and 2(d)(iii) of the Act and as to why his property be not declared to be evacuee property under Section 22(b) of the Act.
4. The ground for the issue of notice under Section 22(b) of the Act was that he had remitted to Pakistan a sum of Rs. 84,700/- between 14-8-1947 and 18-10-1949 which amount represented a substantial portion of his assets situated in India.
5. Dr. Mohd. Saeed in response to the notice under Section 22(b) of the Act admitted that he remitted to Pakistan a sum of Rs. 81,500/-between the aforesaid dates, but explained that he had done so in order to meet the marriage expenses of his children, and that out of the aforesaid amount a sum of Rs. 17,500/- had been brought back to India, and that after his visit to Pakistan, he had returned to India under a permit for permanent settlement and invested a huge sum in his business of practising medicine, purchased a car worth about Rs. 10,000/- in India and effected improvements in his house at Jaipur at some cost.
It was pleaded that he was an Indian national and intended to settle in India and as such his property should not be declared as evacuee. He admitted that a sum of Rs. 10,000/-was in his current account with the Imperial Bank of Hyderabad (Sind) and that a sum of Rs. 40,000/- was in deposit with the Lahore Bank in Pakistan in his name and his aunt jointly.
6. The Deputy Custodian by order of 16-11-1951 among other things declared the proper-ty of Dr, Mohd. Saeed as evacuee property un-der 13. 22(b) of the Act as it then stood. Dr. Saeed filed an appeal to the District Judge under Section 25(b) of the Act against the said order(wrongly mentioned in the ground of appeal to be dated 19-11-1951). The learned District Judge, Jaipur City who was the District Judge authorised to hear appeals, allowed the appeal and set aside the declaration under Section 22(b) of the Act of the property of Dr. Saeed as an evacuee property. The rest of his order, which relates to another matter, is not relevant for the purposes of this reference.
7. The Custodian of Evacuee Property, Rajasthan moved the Custodian General in revision under Section 27(1) of the Act. The matter was heard by the Deputy Custodian General, who was of opinion that the learned District Judge had committed an error in holding that the property of Dr. Saeed could not be declared evacuee property, and accordingly made this reference by his order dated 28-4-1956.
8. The view of the learned District Judge was that the remittance of Rs. 81,500/- to Pakistan was remittance of a substantial portion of his assets by Dr. Saeed, but the remittance had been so done prior to promulgation of the Ordinance (Ordinance No. XXVII of 1949 promulgated on 18-10-1949), 1949 and could not form the basis of declaration of the property of Dr. Saeed to be an evacuee property. According to the learned District Judge if an intending evacuee, after his being so declared by the Custodian, does any act as may be prescribed as constituting a preparation for his migrating to Pakistan, then only the consequence of his property being declared to be evacuee property can follow.
He also observed that even if at an earlier stage the appellant seemed to have been making preparation for his migrating to Pakistan, it seems that he had changed his mind already before 18-10-1949 inasmuch as he brought back some of the money remitted by him to Pakistan, and that the court could take into consideration all those circumstances which existed on the date when the Deputy Custodian was to give his decision as to whether the property of Dr. Saeed should or should not be declared evacuee property.
9. In the opinion of the Deputy Custodian General, this interpretation of Section 22(b) of the Act was erroneous. His view is that the very act of a person, which may cause him to be declared an intending evacuee, will further entail the consequence of his property being declared to be evacuee property if that act of his is the transfer to Pakistan of his assets or any part thereof situated in India, and the assets so transferred are a substantial portion of his assets, although he may have only done so between 14-8-1947 and 18-10-1949.
The Deputy Custodian General was of opinion that the transfer to Pakistan of a substantial portion of his assets was a circumstance prescribed under Clause (b) of Section 22 of the Act as constituting a preparation for his migrating to Pakistan and must be so construed notwithstanding any other circumstances which may have come into existence later on and that the subsequent circumstances, if any, were not suffi-cient to take out the case from the purview of Section 22(b) of the Act.
10. As the Deputy Custodian General differed with the learned District Judge substantially on a question of law, the present reference is made to this Court.
11. In our opinion the view taken by the learned Deputy Custodian General is correct.
12. It may be stated at once that the case arose under the Act prior to its amendment by Act No. II of 1953, which, however, provided that any proceeding pending under Section 22 of the Act (No. XXXI of 1950) may be continued as if the amending Act No. II of 1953 had not been passed, and, therefore, for the purposes of this reference, the Act prior to its amendment of 1953 will alone have to be considered. According to the scheme of the Ordinance No. XXVII of 1949, a person was liable to be declared an intending evacuee in circumstances mentioned, in Section 19 of the Ordinance.
Section 20 laid down the consequences of declaration that a person was an intending evacuee. Section 21 laid down the powers of Custodian General in respect of the property of an intending evacuee. Section 22 permitted the Custodian to declare the property of an intending evacuee to be evacuee property if there was contravention of the provisions of Section 20 or of any order made under clauses (c) and (d) of Section 21. These acts of contravention obviously could come into existence after the person had been declared an intending evacuee.
Any acts done prior to the declaration of the person as intending evacuee could not be taken into consideration for the purpose of declaring his property to be evacuee property, unless the case could come under some other provisions of the Act. The Act amended the provisions of the Ordinance with respect to intending evacuees in certain respects and clause (b) of Section 22 was newly enacted. A plain reading of that section is to bring under control the property of such persons, who may have acquired Pakistan nationality or intended to acquire it, and of persons who may have transferred a substantial portion of their assets to Pakistan. Leaving aside surpluses and substituting the relevant acts, Section 22(b) can be restated as under:
'If the Custodian is satisfied (after such enquiry as may be prescribed) that the circumstances relating to any person, who has been declared an intending evacuee on the ground that after 14-8-1947 and before 18-10-1949 he had transferred to Pakistan his assets or any part thereof situated in India, are such as may be prescribed as constituting a preparation for his migrating to Pakistan, the Custodian may declare any property situated in the State in which such person has any right or interest to be evacuee property'.
13. One of the prescribed circumstances as constituting a preparation for migrating to Pakistan is stated in the Explanation to Section 22 under clause (b) and it is as follows:
'(i) the transfer to Pakistan by any person referred to in that clause of a substantial por-tion of his assets situated in any part of the territories to which this Act extends.'
14. It means that the act of transfer of the assets, which has led to the declaration of a person as an intending evacuee, comes to be a circumstance which may constitute as a preparation for his migrating to Pakistan, and in such case his property may be declared to be evacuee property. The law did not leave it to the officers administering the law to decide what circumstances shall or shall not constitute a preparation for migrating to Pakistan, but prescribed circumstances firstly in the explanation and later on under the rules.
One of such circumstance is the transfer to Pakistan of a substantial portion of his assets situated in India. In the present case, this circumstance is fully proved to have existed. It was admitted by Dr. Saeed that he had made a transfer of Rs. 81,500/- to Pakistan between the period from 14-8-1947 to 18-10-1949. That this is the transfer of a substantial portion of his assets does not admit of any doubt for the transfer of assets obviously relates to assets which are transferable.
Houses and other properties are not trans-ferable to Pakistan and, therefore, that property cannot be taken into account in considering whether the assets transferred to Pakistan are a substantial portion of his assets. What other transferable assets were with Dr. Saeed at the time when he transferred this large amount of money is not stated by him either in his reply or in his statement.
15. His plea is that he subsequently spent some money in purchasing movable property or in doing repairs of immovable property, but it has not been stated to have come from any transferable assets remaining in his hands after transfer of the aforesaid amount to Pakistan.
The finding that the transfer of Rs. 81,500/-by Dr. Saeed during the period from 14-8-1947 to 18-10-1949 therefore amounts to the transfer of a substantial portion of his assets situated in any part of the territories of India to which this Act extends is correct and under the law this constituted a preparation for his migrating to Pakistan which entailed the declaration by the Custodian of his property situated in this State and in which Dr. Saeed has a right or interest to be evacuee property.
16. The Ordinance was enacted with a view to take under supervision and control the property of persons who had acquired Pakistan nationality or were intending to do so or who were trying to deprive the Dominion of India of its national wealth. The subsequent conduct of a person whose property could be declared evacuee property, has been provided for consideration in proceedings under Section 16 of the Act, but it has no relevance in proceedings under S, 22(b) of the Act.
17. Elaborate arguments were advancedby learned counsel for Dr. Saeed that such aninterpretation would lead to retrospective opera-tion of the Act. A law can be retrospective ifon the language of that law it has to be givena retrospective operation.
18. It was contended that the circumstances as to transfer of a substantial portion of his assets should relate to an act done by any person after he was declared an intending evacuee. The contention has no force for the definition of evacuee property in Section 2(f) of the Act makes it clear that the property of any person, who after 18th day of October, 1949 has done or does any of the acts specified in Clause (e) of Section 2 of the Act, became evacuee property. One of the circumstances mentioned in Clause (e) of Section 2 is the transfer to Pakistan of assets or any part thereof situated in India. It would not require therefore the assistance of Section 22(b) of the Act for declaration of his property as evacuee property.
19. It was contended that Section 22(b) of the Act may perhaps relate to a case in which any assets may be transferred by a person while proceedings are pending under Section 19 of the Act. This contention is also incorrect for Section 2(f)(ii) would again apply in the case of such person.
So that even a transfer of the least portion of his assets by any person could make his property to be declared evacuee property if he has done so or does so after 18th day of October, 1949. Section 22(b) of the Act could only have meant to bring under control the property of a person who has transferred his assets between the 14th day of August, 1947 and 18th day of October, 1949.
This is a period from the date of partition of India till the date of the promulgation of the Ordinance. After the promulgation of the Ordinance, the transfer of assets led to the property of the person being declared evacuee property and the Legislature could not have intended to whittle down that provision when the case of an intending evacuee, who was in a worse position in many respects, came to be considered.
20. It was argued that Section 21(d) of theAct authorised the Custodian by order in writing to prohibit the transfer of Pakistan of any sum of money belonging to any such person or permit such transfer subject to such conditions and restrictions as the Custodian may think fit to impose, and that if the Custodian did not prohibit or impose any condition and the intending evacuee came to transfer money to Pakistan, action could be taken against him under Section 22(b) of the Act if such transfer was of a substantial portion of his assets. This again begs the question for the transfer of even a portion of the assets would entail the property of any person to be an evacuee pro-perty and the intending evacuee could not have greater powers of transfer of his assets to Pakistan. Section 21(d) of the Act authorises the imposition of further restriction on the transfer of assets to Pakistan beyond permissible limits in the case of an ordinary person which are mentioned in the proviso to Clause (1) (e) of Section 2 of the Act. The contention raisedby learned counsel for the respondent has no force.
21. It was finally argued that Section 22(b) of the Act speaks of circumstances in the plural while the act proved against the respondent only amounts to one circumstance and it did not fulfil the requirement of law which required more than one circumstance to be proved against the respondent. The contention has no force for the General Clauses Act provides that the words used in singular shall mean plural and vice versa, according to the context in which they appear. The use of the plural number in Section 22(b) of the Act includes the singular number and the one circumstance prov-ed is sufficient for laying the foundation for order of declaration of the property of the respondent to be evacuee property.
22. It was faintly argued that it would be a hardship if the property of the respondent, who is not declared to be an evacuee, could be declared evacuee property. The Act permits such a course. An instance thereof is provided in Section 2(f)(i) or 2(e)(ii) and 2(e)(iii) read with Section 2(f)(ii) of the Act. It may further be mentioned that the Act deals with the control of the property and not control Lover persons and, therefore, there is nothing incongruous if the property of a person is declared an evacuee property without his being declared an evacuee.
23. The learned Advocate, who appeared for the Custodian General, drew our attention to Rule 18 framed under the Act, which clearly lays down that the circumstance of transfer of a substantial portion of the property between 14th day of August, 1947 and 18th day of October, 1949 could be the foundation for declaring the property of such person to be evacuee property.
24. Learned counsel for the respondent urged that this rule was ultra vires as being in excess of the provisions of the Act. As already held above, the section clearly means that the acts done by the person declared as an intending evacuee between 14th day of August, 1947 and 18th day of October, 1949 could not only be the foundation for declaring him as an intending evacuee, but also in the circumstances narrated above be the foundation of declaring his property to be evacuee property. The rule is in consonance with Section 22 of the Act.
25. The opinion of the Deputy CustodianGeneral is correct. The decision of the learned District Judge dated 10th February, 1954 isset aside and the record will go back to theCustodian General or the Deputy CustodianGeneral if authorised to deal with it for disposal of the proceedings in accordance withthe decision of this Court. The respondentwill pay cost to the Custodian.