LexBAWA HARIGIR versus ASSISTANT CUSTODIAN, EVACUEE PROPERTY, BHOPAL
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L S.C.R. SUPREME COURT REPORTS 189 have become final, because no appeal was filed against z96r that determination. But it appears that the proce. - d 1 'd d b 24(3) d h' h th I The c. mmi.<Sion" ure a1 own y s. . un er w IC e ncome- / 1 1 tax Officer has to notify to the assessee by order in ~:adh~·~ 0 ";~;.~:;h writing the amount of the loss as computed by him v. for the purposes of that section was not followed. No Seth Khushal doubt, under s. 30 an appeal lies, if the assessee ob- Chand Daga jects to the amount of loss computed and notified under s. 24; but inasmuch as the Income-tax Officer Hidayatullah f. had not notified the loss computed by him by order in writing, an appeal could not be taken on that point. In our opinion, the assessee was, therefore, entitled to have the loss re-determined in a subsequent year. Learned counsel for the Commissioner stated that the Department was not very anxious for the decision, because this particular assessee has had only losses in the years following, and no loss would be occasioned to the Revenue, if the losses brought forward be re- determined. But that is a matter, with which we are not concerned. In our opinion, the judgment of the High Court impugned before us was correct in the circumstances of the case. The appeals fail, and are dismissed with costs. One hearing fee. .A.Ji:peals dismissed. BAWA HARIGIR v. ASSISTANT CUSTODIAN, EVACUEE PROPERTY, BHOPAL. (B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR, N. RAJAGOPALA AYYANGAR and J. R. MUDHOLKAR, JJ.) Evacuee Property-Provisions regarding declaration of property •s evacuee property-Confirmation of sale-Power of Custodian to refuse-Constitutionality of-Administration of Evacuee Pro- perty Act. r950 (JI of r950), ss. 2(d). 40(4)(a)-Constitution of India, Arts. JI(Z), JI(S)(b)(iii). I96I March 7. 190 SUPREME COURT REPORTS (1962) z961 The petitioner purchased some land from R. R. was declared to be an intending evacuee and he left for Pakistan. The Assis- nawa llarigir tant Custodian issued a notice to the petitioner to show cause v. why the land should not be declared to be evacuee property, and Assistant Custo- after hearing the petitioner he declared the land to be evacuee dian, Evacuee property. An appeal and a revision against the order were Property, Bhopal unsuccessful. The petitioner also applied to the Custodian under s. 40 of the Administration of Evacuee Property Act, r950, for confirmation of the sale but his application was rejected under s. 40(4)(a) on the ground that the evacuee did not act in good faith in effecting the sale. The petitioner contended thats. 2(d) of the Act defining evacuee property and s. 40(4) empowering the custodian to reject an application for confirmation violated Art. 31(2) as they enabled the State to take away property with- out the authority of law. Held, that the provisions of ss. 2(d) and 40(4) were not affect- ed by Art. 31(2) in view of Art. 3r(5)(b)(iii) of the Constitution. The protection of Art. 31(5)(b)(iii) was not limited to a law which itself declared any property to be evacuee property but extended to a law which empowered an authority to declare any property as evacuee property and laid down the criteria for the declara- tion. Section 40(4)(a) of the Act which empowered the Custodian to reject an application for confirmation on the ground that the transaction had not been entered into in good faith could not be challenged as conferring arbitrary powers on the Custodian. The power was in the nature of a judicial power and the absence of a standard for the determination of the question could not render the provision unconstitutional. ORIGINAL JURISDICTION: Petition No. 87 of 1957. Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights. B. D. Sharma, for the petitioner. N. S. Bindra, R.H. Dhebar and T. M. Sen, for the respondents. 1961. March 7. The Judgment of the Court was delivered by Mudholkar J. MUDHOLKAR, J.-In this petition under Art. 32 of the Constitution the petitioner contends that the pro- visions of the Administration of Evacuee Property Act, 1950 (XXXI of 1950) and in particular those of s. 2 (d) and sub-s. (4) of s. 40 are unconstitutional. According to him the effect of the order passed against him by the Custodian of Evacuee Properties under sub-s. (4) of s. 40 of the Act is to take away his 1 S.C.R. SUPREME COURT REPORTS 1
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