Joginder Singh And Others vs The Deputy Custodian General Of Evacuee Property

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 457/58

Decision Date: 4 May 1961

Coram: J.R. Mudholkar, Raghubar Dayal

In this case the Supreme Court of India recorded a petition filed by Joginder Singh and others against the Deputy Custodian General of Evacuee Property. The judgment was delivered on 4 May 1961 by a bench consisting of Justice J. R. Mudholkar and Justice Raghubar Dayal. The decision is reported as 1967 AIR 145, 1962 SCR (2) 738 and also as R 1979 SC1328 (16). The statutory framework relied upon was the Administration of Evacuee Property Act, 1950 (31 of 1950), specifically sections 26 and 27, together with rule 14(6) of the Administration of Evacuee Property Rules.

The respondents identified as numbers 4 to 9 were displaced persons from Pakistan who had been allotted certain rural lands in the village of Karodian on a quasi‑permanent basis. Subsequent information received from Pakistan indicated that they were entitled to an urban allotment; consequently their rural allotment in Karodian was cancelled and they were allotted urban land instead. The vacated rural land in Karodian was then allotted to the appellants. On 22 July 1952 rule 14(6) of the Rules was amended, removing the custodian’s power to cancel quasi‑permanent rural allotments except in a few expressly listed circumstances. After that amendment the respondents 4‑9 applied to the Custodian for restoration of their original rural allotment, claiming they were truly entitled to rural property. The Custodian dismissed the application, holding that the amended rule 14(6) did not authorize cancellation of the appellants’ allotment. The respondents then filed a revision before the Custodian General, who allowed the revision and cancelled the appellants’ allotment.

The appellants contended that the Custodian General lacked authority to cancel their allotment. The respondents replied that the broad powers of the Custodian General under section 27 of the Act were not curtailed by the restrictions introduced by the amended rule 14(6). The Court held that the Custodian General had no power to cancel a rural allotment made on a quasi‑permanent basis in a revision proceeding after the amendment of rule 14(6). It explained that the Custodian’s power to cancel under section 10 of the Act was subject to the Rules, and the amended rule 14(6) limited cancellation to the enumerated circumstances, none of which applied to the present case. Moreover, the amended rule could not be used to cancel allotments that had been made before 22 July 1952. The Court further clarified that the power of the Custodian General under section 27 was confined to examining whether the Custodian’s order was legal and proper; it did not extend to actions that the Custodian himself was prohibited from undertaking.

The judgment was rendered in a civil appellate jurisdiction. The appeal was designated Civil Appeal No 457 of 1958 and was taken from the judgment and order dated 12 September 1956 of the Punjab High Court in Letters Patent Appeal No 38 of 1955. Counsel N C Chatterjee and Naunit Lal appeared for the appellants, while Nanak Chand represented respondents numbered four to nine. The judgment was pronounced on 4 May 1961, and the opinion was delivered by Justice Mudholkar. The matter was placed before the Court under Article 133(1)(c) of the Constitution, raising the question whether, after 22 July 1952, the Custodian of Evacuee Property in the State of Punjab, or the Custodian General hearing an appeal from an order made by the Custodian after that date, possessed the authority to cancel a quasi‑permanent allotment of rural evacuee property except on the grounds enumerated in rule 14(6) of the Administration of Evacuee Property Rules, 1950, as amended by notification S R 0 1290 dated 22 July 1952. The factual backdrop to this issue may be set out briefly. The appellants and their father, Nand Singh, were displaced persons from West Pakistan who originally received a temporary allotment of land in the village of Raikot, District Ludhiana. Subsequently, each of the three appellants was allotted eight‑and‑one‑third standard acres on a quasi‑permanent basis, while their father, who was entitled to forty‑one standard acres and seven units, was allotted an equivalent area of land in the village of Hambran, situated approximately twenty‑five to thirty miles from Raikot. Nand Singh filed an application seeking revision of the order that effected these settlements; however, he died in 1951 while the application was still pending. The appellants, as his legal representatives, continued the proceedings. Their application for revision was rejected, and a further revision application challenging the order that had been passed was also dismissed on the ground that, after 22 July 1952, the Additional Custodian was not competent to cancel any allotment except on the specific grounds set out in rule 14(6) of the Evacuee Property Rules. Accordingly, the Custodian General could not act in a manner that was prohibited to him.

Respondents numbered four to nine owned land in Chak No 127, G B Jaranwala, District Lyallpur, and they too were displaced persons. They were therefore allotted certain parcels of land in the village of Karodian as quasi‑permanent allottees. Later, revenue documents received from Pakistan indicated that they were entitled to urban allotments. Acting on this information, the respondents approached the Deputy Commissioner, who was exercising the powers of the Deputy Custodian. The Deputy Custodian cancelled the respondents’ allotments sometime in 1952 and forwarded a proposal to the Additional Custodian, who simultaneously held the office of Director of Relief and Rehabilitation, seeking to re‑allot the lands originally granted to the respondents to other persons. In response to these developments, Appellant No 2, Gopal Singh, on behalf of his father Nand Singh, filed an application before the Director of Relief and Rehabilitation requesting that the allotment made in Nand Singh’s name be shifted from the village of Hambran to the village of Karodian.

In the matter before the Additional Custodian, Gopal Singh applied for the transfer of the allotment that had been made in the name of his father, Nand Singh, from the village of Hambran to the village of Karodian. The Additional Custodian granted Gopal Singh’s request, thereby moving Nand Singh’s allotment to Karodian. In addition, the Additional Custodian also transferred the entire allotments of appellants numbered one through three from the village of Raikot to Karodian, resulting in the consolidation of all lands belonging to that family within a single village. Following these adjustments, the appellants took possession of the lands situated in Karodian. Respondents numbered four through nine, on the other hand, had been allotted urban lands that the appellants claimed were of higher value and superior quality. The respondents did not file any application seeking review of the order that cancelled their earlier rural allotment, nor did they challenge the order by which the Additional Custodian allocated their lands to the appellants. Six months after the cancellation, respondents four to nine filed an application before the Additional Custodian asserting that the land they had abandoned in West Pakistan was rural in character and that their allotment should therefore be shifted back to the village of Karodian. In that application, the respondents did not name the appellants as parties. The Additional Custodian examined the request and held that, in view of rule 14(6) of the Evacuee Property Rules, he was not competent to cancel the allotment that had been made in favour of the appellants. Nevertheless, the Additional Custodian forwarded the matter to the Custodian General of India by a memorandum dated 14 October 1953, seeking appropriate action. The Deputy Custodian General, who considered the memorandum, returned the file to the Additional Custodian, observing that if respondents four to nine were restored to their original lands, the persons who had already been allotted those lands would have to be displaced, potentially creating “an interminable chain of cancellation of allotments.” He further noted that if the Additional Custodian could not cancel the allotment because of the amended rule 14(6), then the Custodian General would likewise lack authority to do so. After this exchange, the Additional Custodian heard the respondents’ application on its merits and dismissed it. The respondents subsequently filed a revision application before the Custodian General challenging the dismissal. In a surprising turn, the Deputy Custodian General hearing the revision granted the respondents’ request and set aside the earlier allotment in favour of the appellants. The appellants then approached the High Court of Punjab under article 226 of the Constitution. A single judge of that High Court dismissed the petition, holding that if the cancellation order against the present opposite parties had been made after 22 July 1952, the order was inoperative under rule 14(6); and even if the order of allotment had been made after that date, rule 14(6) did not bar cancellation. In either scenario, the judge concluded that no error was evident in the cancellation.

In this case the appellants filed an appeal under the Letters Patent after the High Court had dismissed their petition, and that appeal was also rejected by a Division Bench of the High Court. The learned judges explained that the allotment of land made in favour of respondents 4 to 9 had been cancelled incorrectly and that the Custodian was obligated to return the land to those respondents from whom they had been removed. The judges further observed that the provisions of rule 14 (6) did not forbid the Deputy Custodian General from using the powers granted to him by section 27 of the Administration of Evacuee Property Act, nor did it stop him from cancelling an allotment that had been made after 22 July 1952. The Division Bench held that rule 14 (6) did not obstruct the Custodian General from restoring the land to the respondents whose allotment had been wrongly cancelled. The Supreme Court, however, found this view untenable. It noted that while every court must guard against causing injury to litigants, it must also possess the authority to correct a mistake, a power that may arise from statute or be inherent in the court. The Court explained that a power, whether statutory or inherent, can be expressly granted, withdrawn, or limited by legislation, and that where it is withdrawn or limited the power becomes either unavailable or usable only under the conditions set by the statute. The Court pointed out that a notification dated 22 July 1952 had replaced the earlier sub‑rule 6 of rule 14 with a new sub‑rule 6, thereby imposing a restriction on the Custodian’s ability to cancel allocations of rural evacuee property on a quasi‑permanent basis. Consequently, after that date the Custodian could cancel an allotment only for grounds enumerated in the new sub‑rule 6. The act of making restitution was not among those enumerated exceptions, leading the Court to conclude that the Custodian’s inherent power to cancel an allotment for the purpose of restitution had been removed by the amended sub‑rule. The Division Bench had also argued that the powers of the Custodian General under section 27 were unaffected by sub‑rule 6 of rule 14 and that the rule did not prevent the Custodian General from cancelling an allotment made after 22 July 1952. The Supreme Court rejected this argument, holding that the amendment to rule 14 (6) placed a clear limitation on the Custodian’s authority, and that the Custodian General could not lawfully cancel the allotment in question.

In this case, the Court explained that section 27 of the Act empowers the Custodian General to request the record of any proceeding in which a District Judge or a Custodian has issued an order, so that the Custodian General may determine whether that order was legal or proper. The Custodian General may then issue any order he considers appropriate in relation to that proceeding. The Court further stated that a District Judge or a Custodian may act only in accordance with what the Act or the rules made thereunder specifically permit or require. If either fails to perform a duty that the law imposes, or performs an act that the law does not authorize, or commits an error while carrying out a permitted act, the Custodian General has the authority to direct the performance of the required act, to set aside an illegal action, or to correct the error committed. However, the Custodian General does not possess authority to order something that the District Judge or the Custodian himself was never entitled to do or that was expressly prohibited. The Court therefore concluded that the High Court erred in holding that the limitations introduced by sub‑rule 6 of rule 14 did not affect the Custodian General’s power. Both the learned single Judge and the Division Bench had adopted the view that, for an allotment made in favour of a displaced person after 22 July 1952, sub‑rule 6 of rule 14 did not prevent the Custodian from cancelling that allotment. This view was advocated on behalf of respondents 4 to 9 by counsel who relied on the wording of sub‑rule 6 of rule 14. He argued that the sub‑rule merely barred the Custodian from cancelling an allotment that had been made before the rule came into force, except on the limited grounds enumerated therein, and that it imposed no additional restrictions. The Court found no justification for giving such a narrow construction to the plain language of the sub‑rule. Counsel then turned to the second proviso to the sub‑rule, asserting that it supported his interpretation. The proviso states: “Provided that where an allotment is cancelled or varied under clause (ii) the allottee shall be entitled to retain such portion of the land to which he would have been entitled under the scheme of quasi‑permanent allotment of land: Provided further that 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 a lower authority on or before 22 July 1952.” The Court expressed difficulty in seeing how this proviso bolstered the counsel’s argument.

It was observed that the proviso under discussion had not been part of the rule when sub‑rule 6 was amended on 22 July 1952. The Court considered that after the amendment a doubt might have arisen concerning whether the Custodian General, or the Custodian before whom a revision application was filed against an order issued before that date, possessed the authority to cancel an allotment. To eliminate any such uncertainty, the proviso appeared to have been inserted subsequently. Counsel for the petitioners contended that the sub‑rule could not curtail the extensive powers granted to the Custodian by section 10 of the Act. While acknowledging that section 10 indeed confers broad powers on the Custodian, the Court noted that the introductory wording of that section makes clear that those powers are subject to rules made under the Act. Further, section 56(2)(i) empowers the Central Government to frame rules specifying the circumstances in which leases and allotments may be cancelled, terminated, or varied, and to alter the terms of any lease or agreement. Accordingly, the Court concluded that the High Court was incorrect in holding that sub‑rule 6 of rule 14 did not bar the Custodian General from exercising the power to cancel an allotment after 22 July 1952. Having resolved the sole point that featured in the parties’ statements of case, the petitioner's counsel, Mr Nanak Chand, raised an additional contention that the original allotment to the appellants was itself invalid because the cancellation of the allotments to respondents 4 to 9 had breached rule 14(6). He argued that, on that basis, the appellants could not have obtained relief from the High Court under article 226 of the Constitution and therefore were not entitled to any relief in this Court. The Court observed that the respondents had not relied on this ground in their pleadings and therefore the Court would not consider it. It further noted that had the respondents expressly raised the issue, the appellants would have been afforded an opportunity to answer. Consequently, the appeal was allowed with costs, and the orders of the High Court and of the Deputy Custodian General were set aside.

The Court then turned to another matter that arose during the hearing. Counsel for the appellant pointed out that a slip of paper in the record of the proceedings before the Deputy Custodian General seemed to indicate that the Deputy Custodian General had been approached by the then Speaker of the Punjab Assembly, apparently on behalf of the respondents. The Court directed that a report be obtained from the High Court on this allegation. The report that was received cleared both the former Deputy Custodian General and the former Speaker of the Assembly of any wrongdoing. Although the Court was not fully satisfied with the content of the report, it noted that the issue had become considerably stale and, in view of the appellate relief already granted, the Court chose not to pursue the matter further. The appeal was thereby allowed, and the Court refrained from any additional examination of the allegation concerning the Speaker’s involvement.

In its consideration, the Court observed that the question which had been brought to its notice was now considerably aged, describing it as quite stale. The Court further noted that, having already decided in favour of the appellant by allowing the appeal, there was no reason to reopen or investigate that particular point any further. Accordingly, the Court stated that it would not undertake any additional examination of the matter that had become obsolete with the passage of time. On the basis of this assessment, the Court confirmed that the appeal was allowed, thereby granting the relief sought by the appellant and bringing the proceedings to a conclusion without further inquiry into the stale issue.