Full Judgment Text
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PETITIONER:
PURSHOTTAM LAL DHAWAN
Vs.
RESPONDENT:
DEWAN CHAMAN LAL AND ANOTHER
DATE OF JUDGMENT:
14/03/1961
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1961 AIR 1371 1962 SCR (1) 297
ACT:
Evacuee Property--Revision application to Custodian
General--Limitation for filing--Custodian General, powers
of--Cancellation of allotment in revision--Administration of
Evacuee Property Act, 1950 (31 of 1950), ss. 27,
56--Administration of Evacuee Property (Central) Rules,
1950, rr. 14, 31(5).
HEADNOTE:
The appellant and the respondent, who were displaced persons
from West Pakistan, were allotted lands in the same village.
At the instance of certain persons, the first allotment was
cancelled and there was a re-allotment. The respondent was
aggrieved by this order and on September 27, 195o, he filed
a review application before the Deputy Commissioner for
restoration of the original allotment but it Was dismissed
on May 12 , 1951 Against this order the respondent preferred
a revision application to the Additional Custodian. who
dismissed the same on August 25, 1952. Thereupon, the
respondent filed a revision application before the Custodian
General on October 30, 1952. To this revision on the
Custodian was made a party; but the appellant was made a
party by order of the Custodian General on August 25, 1953.
After bearing the parties the Custodian General on September
29, 1954, cancelled part of the re-allotment made in favour
of the appellant. The. appellant contended: (i) that the
revision application to the Custodian General was barred by
time, and (ii)that the’ Custodian General had no power to
cancel the allotment.
Hold, that the revision application was not barred by time.
Rule 31(5) provides that :a revision petition to the
Custodian General "shall ordinarly be made within sixty days
of the 38
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order sought to be revised". This rule is only a rule of
guidance and not one of limitation and in law a revision can
be entertained even after sixty days if the Custodian
General in his discretion thinks fit to entertain it. In
the present case the revision was filed within the time but
the appellant was impleaded after the period of sixty days
had expired. But it could not be said that the Custodian
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General acted perversely or unreasonably in entertaining the
revision.
Held, further, that the Custodian General had the power to
cancel the allotment made on December 2, 1949. Under r.
14(6) the Custodian could not, after July 22, 1952, cancel
an allotment except under certain specified circumstances;
but the second proviso to r. 14(6) permitted the Custodian
General, in exercise of his powers of revision under s. 27
Administration of Evacuee Property Act, 1950, to cancel an
allotment made by a lower authority on or before July 22,
1952.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 754 of 1957.
Appeal by special leave from the judgment, and order dated
September 29, 1954, of the Deputy Custodian General, Evacuee
Property, in Revision Petition No. 321 R/ADCG/53.
Achhru Ram and K. L. Mehta, for the appellant.
Bishan Narain, T.N. Sethia A. N. Arora and K. R. Choudhury,
for respondent No. 1
1961. March 14. The Judgment of the Court was delivered by
SUBBA RAO, J.-This appeal by special leave is directed
against the order of the Additional Deputy Custodian-General
of Evacuee Property, New Delhi, dated ’September 29, 1954,
setting aside the order dated August 25, 1952 of the
Additional Custodian, Rural, Jullundur, confirming that of
the Deputy Commissioner, Ambala, dated May 12, 1951.
The appellant belongs to a group of evacuees which may for
convenience be described as Dhawan Group. Diwan Chaman Lal,
respondent No. 1, was a displaced person from West Pakistan
where he owned considerable properties. On September 1,
1949, in lieu of land left behind in Pakistan, he was
allotted 152.9 acres of land in village Kharwan in Tehsil
Jagadhri, District Ambala. The appellant and his
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group also owned large extents of properties in West
Pakistan. Each one of that group was allotted different
extents of land in the same village. Before possession was
taken by the allottees, two persons, namely, Hari Chand and
Khilla Ram, filed applications dated November 14, 1949, and
November 11, 1949, respectively for re-allotment on the
ground that the soil of the village was not of uniform
quality and the allotment on the basis of blocks was not
justified. The Additional Deputy Commissioner, Ambala, re-
commended the splitting of the land into four blocks and the
said recommendation was accepted by the Director-General,
Rural Rehabilitation, by his order dated December 2, 1949.
Thereupon the village was divided into four blocks and was
re-allotted. On account of the re-allotment, the 1st
respondent could not get his entire allotment in village
Kharwan in one block and he was given instead land in
different blocks and different villages. Aggrieved by this
order, the first respondent filed a review application
before the Deputy Commissioner, Ambala, on September 27,
1950, praying for the restoration of his original allotment
made on September 1, 1949. The Deputy Commissioner, Ambala,
rejected that application on May 12, 1951. Against that
order the first respondent preferred a revision to the
Additional Custodian, who dismissed the same on August 25,
1952. Against that order of dismissal, the first respondent
filed a revision to the Custodian-General on October 30,
1952. To that revision only the Custodian was made party;
but the appellant and the members of his group were
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subsequently made parties by an order of the Deputy
Custodian-General dated August 25, 1953. Thereafter notices
were issued to them. The appellant and others on their
being made parties raised various contentions. The Deputy
Custodian-General cancelled the allotment made in favour of
the Dhawan Group in respect of the excess area allotted to
them and directed the land obtained by means of this
cancellation to be utilised for the consolidation of the
allotment of the first respondent in village Kharwan. He
also gave further consequential directions. The present
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appeal is preferred by Purshotam Lal Dhawan, a member of the
Dhawan Group, against the said order.
Learned counsel for the appellant raised before us the
following two points: (1) The revision to the Deputy
Custodian-General was barred by time. (2) On the date when
the allotment made to the appellant was cancelled, the
Deputy Custodian-General had no power to cancel the
allotment.
To appreciate the first contention some relevant dates may
be given. The order of the Additional Custodian was passed
on August 25, 1952. The said order was communicated to the
first respondent on September 11, 1952. The revision was
filed on October 10, 1952. On the date of the filing of the
revision only the Deputy Custodian was made a party,, but
later on the Dhawan Group was impleaded in the revision in
October 1953. No application for excusing delay in
preferring the revision against the said persons was made.
It was contended before the Deputy Custodian-General that
the revision petition was barred by time against the Dhawan
Group, but the Deputy Custodian- General rejected that
argument and disposed of the petition on merits.
The first question for consideration is whether-the revision
was barred by limitation in so far as the Dhawan Group was
concerned. Some of the relevant provisions regulating the
power of revision of the Custodian-General may be noticed.
Section 27 of the Act says, "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". Under the proviso to that section, "the
Custodian-General shall-not pass an order under the sub-
section prejudicial to any person without "giving him a
reasonable opportunity of being heard.In exercise of the
powers conferred by s. 56 of theAct, the Central
Government made the following rules among others:
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Rule 31. (5) Any petition for revision when
made to the Custodian-General shall ordinarily
be made within sixty days of the date of the
order sought to be revised. The petition
shall be presented in person or through a
legal practitioner or a recognized agent or
may be sent by registered post. The petition
shall be accompanied by a copy of the order
sought to be revised and also by a copy of the
original order unless the Revising Authority
dispenses with the production of any such
copy.
In contrast to the said provisions, rule 31(1)
dealing with appeals says,
"All appeals under the Act shall when they lie
to the Custodian, be filed within thirty days
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of the date of the order appealed against and
when they lie to the Custodian-General, within
sixty days of such date".
Section 27 of the Act confers a plenary power of revision on
the Custodian-General and it empowers him to exercise his
revisional powers either suo motu or on application made in
that behalf at any time. The phrase "at any time" indicates
that the power of the Custodian-General is uncontrolled by
any time factor, but only by the scope of the Act within
which he functions. The Central Government cannot obviously
make a rule unless s. 56 of the Act confers on it an express
power to impose a time fetter on the CustodianGeneral’s
power. We do not find any such power conferred on the
Central Government under s. 56 of the Act. So the rule can
only be read consistent with the power conferred on the
Custodian-General under s. 27 of the Act. That must have
been the reason why rule 31(5) does not prescribe any
limitation on the Custodian-General to exercise suo motu his
revisional power. Even in the case of an application for
revision filed before him it is said that ordinarily it
shall be filed within sixty days. The use of the word
"ordinarily" indicates that the period of sixty days is not
a period of limitation but only a rule of guidance for the
petitioners as well as for the CustodianGeneral. It is
within the discretion of the CustodianGeneral to entertain
revision petitions after sixty days,
302
but the rule indicates to him that the reasonable period for
entertaining a revision is sixty days. The difference in
the phraseology of sub-rules (1) and (5) of rule 31 of the
Rules also leads to the same conclusion, for in the matter
of appeals a period of limitation of thirty days when made
to the custodian and sixty days when it lies to the
Custodian-General is prescribed whereas no such rigid period
has been laid down in the case of a revision. If rule 31(5)
is so read, its provisions will not conflict with those of
s. 27 of the Act; and in that event they would be valid.
The construction suggested by learned counsel for the appel-
lant may lend scope to the argument that the rule is ultra
vires the statute, for when a section says that there is no
time limit for entertaining a revision, s. rule cannot say
that it shall be filed within a particular time. The
argument that the principle underlying s. 5 of the
Limitation Act applies to a petition for revision under s.
27 of the Act has no force. Section 5 of the Limitation Act
applies to an appeal for which a period of limitation is
prescribed and it empowers the court to admit the appeal
after the period of limitation, if the applicant satisfied
it that he has sufficient reason for not preferring the
appeal within the prescribed time. The principle thereunder
cannot be made applicable to a revision petition under s. 27
of the Act in respect of which no period of limitation is
prescribed. At the same time we must make it clear that the
powers of the Custodian-General under s. 27, read with rule
31(5), are not intended to be exercised arbitrarily. Being
a judicial power, he shall exercise his discretion
reasonably and it is for him to consider whether in a
particular case he should entertain a revision beyond the
period of sixty days stated in rule 31(5). In this case we
cannot say that the Custodian-General had acted perversely
or unreasonably in entertaining the revision. The revision
was filed in time. The Dhawan Group was made party at the
subsequent stage as the Custodian-General rightly thought
that any order he would make in favour of the appellant
might prejudice the Dhawan Group. After giving them a
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reasonable opportunity
303
of being heard within the meaning of the proviso to s. 27(1)
of the Act, he made the order. The CustodianGeneral,
therefore, acted reasonably within his powers.
This objection is overruled.
The second contention of learned counsel for the appellant
is that the Custodian-General had no power to cancel an
allotment made on or before July 22, 1952. Let us
recapitulate the relevant facts. The original order of
allotment was made in favour of the appellant’s group and of
the first respondent on September 1, 1949. There *as re-
allotment on December 2,1949. There allotment was cancelled
by the Deputy Custodian-General by his order dated September
29, 1954. The question is whether the Deputy Custodian-
General can set aside the allotment made on December 2,
1949. The question raised falls to be decided on the
relevant provisions of the Act and the rules made
thereunder. Section 11 of the Act confers on the Custodian
the power to cancel any allotment made by him, whether such
allotment was made or entered into before or after the
commencement of the Act. Rule 14 of the Rules narrates the
grounds on which an allotment can be cancelled and also the
procedure to be followed for cancelling such an allotment.
If a custodian makes an order either cancelling or refusing
to cancel an allotment, the Custodian-General can, under s.
27 of the Act, set aside that order, if he is satisfied that
it is not legal or proper, and he may pass such order in
relation thereto as he thinks fit. But it is said that rule
14(6) limits the power of the Custodian-General in respect
of allotments made under the Act. As the argument turns
upon that rule, it would be convenient to read the material
parts of it.
Rule 14. (6) "Notwithstanding anything
contained in this rule, the Custodian of
Evacuee Property in the State of Punjab shall
not exercise the power of cancelling any
allotment of rural evacuee property on a
quasi-permanent basis, or varying the terms of
any such allotment, except in the following
circumstances:................................
).
After narrating the circumstances, with which
we are
304
not now concerned, the sub.rule contains a
proviso which reads,
"Provided further nothing in this sub-rule
shall apply to any application for revision,
made under section 26 or section 27 of the
Act, within the prescribed time, against an
order passed by the lower authority on or
before 22nd July, 1952."
Under this sub-rule there is a ban on the exercise of the
power of the Custodian to cancel an allotment of a rural
evacuee property on a quasi-permanent basis except under
certain circumstances. his sub-rule was substituted for the
old sub-rule by S.R.O. 1290 of July 22, 1952. A Custodian
under the Act cannot set aside an allotment except under
the.circumstances mentioned in the sub-rule. But the second
proviso to that sub-rule lifts the ban in the case of an
application made for revision under s. 26 or s. 27 of the
Act. It may be mentioned that the words "or section 27"
after the words "section 26" were added in the sub. rule on
August 26, 1953 i.e., before the order of the Custodian-
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General in the present case. Section 26 of the Act, as it
then stood, conferred revisional jurisdiction on the
Custodian, Additional Custodian or Authorized Deputy
Custodian against the orders of subordinate officers.
Section 27, as we have already noticed, confers a similar
power of revision on the CustodianGeneral. By reason of the
proviso, the CustodianGeneral can, in exercise of his powers
under s. 27 of the Act, cancel an allotment made by a lower
authority on or before July 22, 1952. The only limitation
on that power is that he must do so in a revision filed
within the prescribed time. What is the prescribed time for
a revision under s. 27 of the Act? "Prescribed" has been
defined in the Act to mean " prescribed by rules made under
this Act". Rule 31(5) prescribes that a revision to the
Custodian-General shall ordinarily be made within sixty days
of the order sought to be revised. In considering the first
point, we have explained the scope of the rule and we have
held that the said rule is only a rule of guidance and that
in law a revision can be entertained at any time even after
sixty days if the Custodian-General in his discretion thinks
fit to entertain it. The prescribed time in
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the context of a revision to the Custodian-General can only
mean sixty days or such other time within which the
Custodian-General in his discretion thinks fit to entertain
the revision. As the allotment in the present case was made
before July 22, 1952, the Custodian-General was within his
rights in cancelling the same.
Before we close, it is necessary to notice another
contention raised by learned counsel for the respondents.
The argument was that there was no allotment made in favour
of the appellant and, therefore, there was no scope for
invoking the provisions of rule 14 of the Rules. The basis
of the argument is the following observations of the Deputy
Custodian-General in his order dated September 29, 1954:
"The petitioner has rightly contended that the
Dhawan Group had no verified claim for the
allotment of this excess area and in spite of
an opportunity afforded by me to them to
produce the copies of their Parcha Claim, they
have failed to do so. The reports of the Land
Claims Officer dated 7th August 1952, and 11th
August 1952, on pages 147 and 151 of the
record, show that although the allotment had
been made to Dhawan Group but a search had
been made for their claims which were not
traceable. On page 129 of the record, a
report by the Department dated 21st August,
1952, shows that no order of allotment to
Dhawan Group was forthcoming."
These observation do not record a clear finding that there
was no allotment in favour of the appellant. Indeed the
factum of allotment to the appellant was never questioned
throughout the proceedings. In the circumstances, we must
dispose of this appeal on the basis that there was an
allotment in favour of the appellant. This contention, is,
therefore, rejected.
No other point was raised before us. In the result, he
appeal fails and is dismissed with costs.
Appeal dismissed.
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