Major Gopal Singh & Ors Vs.
Custodian, Evacuee Property, Punjab  INSC 99 (15 March 1961)
CITATION: 1961 AIR 1320 1962 SCR (1) 328
CITATOR INFO :
R 1962 SC 994 (4)
allotment-Cancellation ofCustodian General, powers of-Enactment vesting evacuee
Property in Central Government-If Custodian General still has power to cancel
allotment-Administration of Evacuee Property Act, 1950 (31 of 1950), SS. 10, 27
-Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954),
SS. 12, 19.
The appellants who are displaced persons from
West Pakistan, were granted quasi-permanent allotment of some lands in village
Raikot in 1949. On October 31, 1952, the Assistant Custodian cancelled the
allotment of 14 allottees in village Karodian, and also cancelled the allotment
of the Appellants in Raikot but allotted lands to them in village Karodian, and
allotted the lands of Raikot to other persons. The 14 allottees of village
Karodian as well as the appellants applied for review of the orders of
cancellation of their allotment. The application of the 14 allottees was
dismissed. They preferred a revision to the Custodian General who cancelled the
appellant's allotment (1) (1907) I.L.R. 34 Cal. 926.
329 in Karodian and restored the allotment of
the 14 allottees on December 17, 1954 Thereupon,, on January 6, 1955, the
appellants moved the Custodian General for calling up their review application
and for revising the order of October 31, 1952, cancelling their allotment-in
Raikot. The Custodian General refused to revise the order on the ground that
his power to revise had been taken away by the Displaced Persons (Compensation
and Rehabilitation) Act,, 1954. The appellants contended that the, Custodian
General had the power to revise the order.
Held, that after the enactment of the, Displaced
Persons (Compensation and Rehabilitation) Act, 1954, the Custodian General
ceased to have the power to cancel allotments. By, the issuing of a
notification under, S. 12(1) of this Act, the Fight, title or interest of the
evacuee in the property specified in the notification was extinguished and the
property vested absolutely in the Central. Government. The right of the
Custodian manage the property under the Administration of Evacuee Property Act,
1950, came to an end and the management vested in a new set of officers. Even
though no managing officer was appointed or a managing corporation, constituted
under the new Act to manage the property no one--else could' exercise the power
of cancellation of allotment.
Bal Mukund v. The State of Punjab, I.L.R. 1957
Punj. 712, approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 101 of 1959.
Appeal by special leave from the judgment and
order dated November 8, 1957, of the Deputy Custodian General, Evacuee
Property, Now Delhi Revision Petition No. 17-R/55 of 1955.
Achhru Ram and K. L. Mehta for the
B.K., Khanna and, T. M. Sen, for the
respondent No. 1.
N.S. Bindra and A. G. Ratnaparkhi, for the
respondents Nos. 2-4.
1961. March 15. The Judgment of the Court was
delivered by MUDHOLKAR J.-The appellants who are admittedly displaced persons
from West Pakistan were granted quasipermanent allotment of 24 standard acres
and 15 3/4 units in the village of Raikot in Ludhiana District in 1949. Their
father Sardar Nand Singh who was 42 330 found entitled to quasi-permanent
allotment of 40 standard acres and 5 1/4 units of land was given quasipermanent
allotment in another village named Humbran in the same district. The two
villages are, however, 25 miles or so distant from each other. Nand Singh,
therefore, made an application for consolidation of his lands with those of the
appellants in the village Raikot. During the pendency of this application he
died and after his death, the, application was continued by the appellants.
This application was rejected by the Assistant Custodian on July 23, 1951 on
the ground that no land was available in the village Raikot. A revision
petition preferred by the appellants against the order of the Assistant
Custodian was dismissed by the Additional Custodian on August 20, 1952.
On October 7, 1952 the appellants preferred a
revision application before the Custodian General.
During the pendency of the revision
application the Additional Custodian for the State of Punjab cancelled the
allotment of fourteen quasi-permanent allottees of the village Karodian in the
same district on the ground that these persons were entitled to allotment of
suburban land a had been wrongly fitted in the village Karodian. Acting suo
motu the Additional Custodian made an order on October 31, 1952 cancelling the
order of allotment of land in the village Raikot made in favour of the
appellants in the year 1949 and instead allotted to them land in Karodian in
substitution of :,the lands at Raikot and of the lands allotted to their
father. The land allotted was out of the land released upon the cancellation of
allotment of lands in favour of the aforementioned 14 allottees. These fourteen
allottees preferred an application for review of the order cancelling their
allotment on the ground that this cancellation was a result of misapprehension
of the actual facts and that they were not entitled to allotment of suburban
lands at all. The appellants also preferred an application for review of the
order cancelling their quasi permanent allotment in the village Raikot.
The Additional Custodian for the State of
Punjab recommended to the Custodian General the restoration 331 of the land to
the 14 allottees which had been taken away from them by reason of cancellation
of the allotment in their favour by the order dated October 31, 1952. The
Additional Custodian admitted that these persons were not entitled to allotment
of suburban land and that consequently their allotment had been wrongly made
but referred the matter back to the Additional Custodian for decision. The
application made by the appellants was kept pending till the decision of the
application of the 14 allottees of Karodian.
The Additional Custodian, however, dismissed
the application on the ground that r. 14(6) of the Evacuee Property Rules which
came into force on July 22, 1952, stood in the way of cancellation of the
allotment in favour of the appellant.
On December 17, 1954, the Deputy Custodian
General, before whom these allottees had preferred an application for revision,
revised the order of the Additional Custodian and restored to the 14 allottees
of Karodian the land which had been originally allotted to them. and allotment
of which had been cancelled earlier. As a result of this order the allotment of
Karodian land made in favour of the appellants automatically stood cancelled.
On January 6, 1955, the appellants moved the
Deputy Custodian General for calling up their review application and for
revising the order of October 31, 1952 passed by the Additional Custodian
cancelling the allotment of Raikot lands which had originally been made in
their favour in the year 1949.
Consequent upon the cancellation of the
appellants' allotment of the Raikot land they were allotted to respondents 2 to
4. These persons were, therefore, impleaded as parties to the proceedings
before the Deputy Custodian General. By the order dated November 8, 1957 the
Deputy Custodian General dismissed the appellants' application.
The appellants have, therefore, come up to
this Court by way of appeal with special leave.
The ground on which the appellants'
application was rejected by the Deputy Custodian General was that his
jurisdiction to revise the order has been 332 taken away by virtue of the
provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954, (44
of 1954) and the notification issued thereunder on March 24, 1955.
In taking this view he has relied upon the
decision in Bal Mukund v. The State of Punjab (1). In that case the Court has
held that the powers of the Custodian General to deal with matters of this kind
have been taken away by the Displaced Persons (Compensation and Rehabilitation)
Act, 1954, and that these powers now vest in another authority and that there
is no provision for continuing the proceedings which had been commenced under
the Administration of Evacuee Property Act., 1950, but had not been concluded.
Mr. Achhruram for the appellants challenged
the correctness of this decision.
There is no specific provision in this Act to
the effect that after its commencement the jurisdiction of the various
authorities created by the Administration of Evacuee Property Act, 1950, to
deal with the allotment or cancellation of allotment of evacuee property shall
What is urged by Mr. Khanna on behalf of the
Custodian General is that this is the effect of the provisions of ss. 12(2) and
19 of the Act.
Section 12 of the 1954 Act empowers the
Central Government to acquire evacuee property for rehabilitation of displaced
persons by publishing in the official gazette a notification to the effect that
it has decided to acquire such evacuee property in pursuance of this provision.
It is common ground that by notification S. R. 0. 697 dated March 24, 1955 the
Central Government decided to acquire all evacuee property allotted to
displaced persons by the Custodian under the "Conditions" contained
in the notification of the Government of Punjab in the Department of
Rehabilitation, No. 4892-6 dated July 8, 1949, except certain categories of
property specified in the schedule. The Raikot lands were allotted to the
appellants under the aforesaid notification of the Government of Punjab. It is
not disputed on their behalf that they do not fall within any of the excepted
categories of property, set out in the schedule. Subsection 2 of s. 12 of the
Act (1) I.L.R. 1957 Punj. 712.
333 provides that on the publication of the
notification under sub-s. 1 the right, title or interest of any evacuee in the
property specified in the notification shall immediately stand extinguished and
that property shall vest absolutely in the Central Government free from all
encumbrances. The power of the Custodian under the Administration of Evacuee Property
Act, 1950, to allot any property to a person or to cancel an allotment existing
in favour of a person rests on the fact that the property vests in him. But the
consequence of the publication of the notification by the Central Government
under s. 12(1) of the Displaced Persons (Compensation and Rehabilitation) Act
with respect to any property or a class of property would be to divest the
Custodian completely of his right in the property flowing from s. 8 of the Administration
of Evacuee Property Act, 1950, and vest that property in the Central
Government. He would, therefore, not be competent to deal with the property in
any manner in the absence of any provision in either of these two enactments
permitting him to do so. No provision was, however, pointed out to us in either
of these Acts whereunder despite the Vesting of the property in the Central
Government the Custodian was empowered to deal with it. Sub-s. 4 of s. 12 of
the 1954 Act provides that all evacuee property acquired under that section
shall form part of the compensation pool. Under s. 16(1) of this Act the
Central Government is empowered to take such measures as it considers necessary
or expedient for the custody, management and disposal of the compensation pool.
Sub-s. 2 of s. 16 empowers the Central Government to appoint such officers as
it deems fit or to constitute such authority or corporation as it deems fit for
the purpose of managing and disposing of the properties forming part of the
Section 19 of the Act provides that
notwithstanding anything contained in any contract or any other law for the
time being in force but subject to the rules that may be made under the Act the
managing officer or managing corporation may cancel any allotment etc., under
which any evacuee property acquired under the Act is held or 334 occupied by a
person whether such allotment or lease was granted before or after the
commencement of the Act. This provision thus confers the power to deal with
evacuee property acquired under the Act only on a managing officer appointed or
managing corporation constituted under the Act and makes no mention whatsoever
of the Custodian appointed under the Administration of Evacuee Property Act. No
doubt, under s. 10 of the Administration of Evacuee Property Act the Custodian
is empowered to manage evacuee property and in exercise of his power he will be
competent to allot such property to any person or to cancel an allotment or
lease made in favour of a person. Apart from the fact that subsequent to the
issue of the notification under s. 12(1) of the Displaced Persons (Compensation
and Rehabilitation) Act, the property would cease to be evacuee property, the
aforesaid powers of the Custodian would be in conflict with those conferred by
s. 19 of the 1954 Act on a managing officer or a managing corporation
constituted under that Act. In other words, to that extent the provisions of s.
10 of the 1950 Act and s. 19 of the 1954 Act cannot stand together. As already
stated the powers conferred by sub-s. (1) of s. 19 of the 1954 Act are to
prevail notwithstanding anything contained in any other law for the time being
in force. Therefore, they must prevail over the provisions of B. 10 of the Administration
of Evacuee Property Act. It is true that there, is nothing on record to show
that a managing officer was appointed with respect to the Raikot properties
acquired under the notification dated March 24, 1955. But it is not necessary
to ascertain that fact. The point is, who, after the coming into force of the
1954 Act could cancel an allotment. Section 10 says that only a managing
officer or a managing corporation can do so. This means that no one else can do
so even though some other law may have authorised another person or authority
to cancel an allotment.
Mr. Achhruram, however, contended that the
appellants' rights were protected by s. 10 of the Displaced Persons (Compensation
and Rehabilitation) Act. Section 10 runs as follows:
335 "Special procedure for payment of
compensation in certain cases.-Where any immovable property has been leased or
allotted to a displaced person by the Custodian under the conditions published(a)by
the notification of the Government of Pun. jab in the Department of
Rehabilitation No. 4892-S or 4892-S dated the 8th July, 1949, or (b)by the
notification of the Government of Patiala and East Punjab States Union in the
Department of Rehabilitation No. 8R or 9R, dated the 23rd July, 1949, and
published in the official Gazette of that State dated the 7th August, 1949, and
such property is acquired under the provisions of this Act and forms part of
the compensation pool, the displaced person shall, so long as the property
remains vested in the Central Government, continue in possession of such
property on the same conditions on which he held the property immediately
before the date of the acquisition, and the Central Government may, for the
purpose of payment of compensation to such displaced person, transfer to him
such property on such terms and conditions as may be prescribed." It is
followed by an explanation; but that explanation has no bearing upon the point
urged by Mr. Achhruram. It is no doubt true that the Raikot lands were allotted
to the appellants under the notification referred to in el. (a) of this section
and, therefore, they would be entitled to the benefits conferred by this
section provided they satisfied all the other requirements of this section,
express or implied. It is implicit in this section that the displaced person to
whom land was allotted "held" the land and was in possession of such
property at the date of the notification.
It is not disputed that the appellants ceased
to hold and had lost possession of the Raikot lands before the publication of
this notification. Even assuming that the order of the Custodian cancelling the
allotment in their favour was erroneous there will be no difference in the
result because what is essential is the facts of holding and possession of the
land on the date of the notification.
336 Mr. Achhruram then referred to the
"Conditions" on which allotments of land may be made under the
notification referred to in sub-s. 10(a) and pointed out that under condition
no. 6 the Custodian or rehabilitation authority would be competent to resume or
cancel an allotment only on one of the grounds set out in that condition. He
said that the cancellation of the allotment in favour of the appellants was
impermissible inasmuch as it was not based upon any of the grounds set out in
the 6th condition. That may or may not be so. We would repeat that the
appellants had lost their possession before the publication of the notification
and are thus not entitled to the protection of the section. Moreover, the
Custodian, by reason of the divesting of the property, as from March 24, 1955,
had become functus officio with respect to it and could not rectify any error
made by him in the past in the matter of cancellation of allotment. It is true
that had the appellants been in possession at the critical time they would have
had the right to obtain a permanent transfer in their favour of the Raikot
lands and by virtue of what happened and without any fault on their part they
have been deprived 'of that right. That is indeed unfortunate but none of the
authorities created by the Administration of Evacuee Property Act could rectify
the wrong that has been done by them to the appellant. The question whether it
could be rectified by any of the authorities constituted by the Displaced
Persons (Compensation and Rehabilitation) Act or not was not canvassed before
us and, therefore, there is no occasion for us to say anything about it.
Mr. Achhruram contended that r. 74 of the
Displaced Persons (Compensation and Rehabilitation) Rules, 1955 stood in the
way of the Custodian allotting the Raikot property to the respondents during
the pendency of the proceedings before the Custodian General. That rule reads
"Allotments which are the subject matter
of dispute.-No property in a rural area in respect of which any case is pending
in a Civil Court or before a Deputy Custodian, Custodian or Custodian General,
shall be transferred to the allottee".
337 The aforesaid rule is in Chapter X headed
"Payment of compensation under section 10 of the Act" and deals with
a transfer of property to an allottee by way of final settlement of his claim
to compensation and does not deal with the question of allotment on a quasi-permanent
Moreover, this rule applies to a proceeding
before an authority created by the Displaced Persons (Compensation and Rehabilitation)
Act and not to an authority created by the Administration of Evacuee Property
Act. There is, therefore, no substance in this argument.
Finally Mr. Achhruram referred to s. 17 of
the 1954 Act and to r. 102 of the Rules framed there under and said that the
powers of the managing officers appointed under the Act are confined only to
properties which are entrusted to them for management and not with respect to
any other property.
Section 17 deals with the function; and
duties of managing officers and managing corporation. Sub-s. (1) provides that
managing officers and managing corporations will perform such functions as may
be assigned to them under the Act.
Sub-s. (2) provides that subject to the
provisions of the Act and the rules made there under, a managing officer or a
managing corporation may, among other things, take such measures as he or it
considers it necessary or expedient for the purpose of securing, administering,
preserving, managing or disposing of any property in the compensation pool
entrusted to him or it... etc. The argument is that unless there is such
"entrustment" the managing officer or managing corporation has no function
to perform with respect to evacuee property. His contention appears to be that
there is nothing to show that this property was "entrusted" to a
managing officer. In the first place the section confers the particular powers
On managing officers or managing corporations only and no one else. Therefore,
even if no managing officer or managing corporation was appointed with respect
to that property no one else could exercise the power of cancellation of
allotment. Further, there is no ground in the special leave petition or in the
statement of the 43 338 case that there is no entrustment in fact of this
property or this class of properties to a managing officer or managing
corporation. He cannot, therefore, be permitted to make out a new case at this
stage of argument. That apart, this argument assumes that the property, despite
the publication of the notification under s. 12(1) of the Act continues to be
evacuee property. Again, this provision is a general provision and the
particular provision regarding cancellation of allotment is s. 19(1) of the Act
which does not refer to entrustment at all and it is this provision which must
prevail over the general provision. He then contends that the provisions of s.
19(1) of the Act being subject to rules made under the Act must be read along
with r. 102 which deals with cancellation of allotments of leases. That rule
"Cancellation of allotments and
leases---A managing officer or a managing corporation may sell any property in
the compensation pool entrusted to him or to it, cancel an allotment or
terminate a lease, or vary the terms of any such lease or allotment if the
allottee or lessee, as the case may be(a)has sublet or parted with the
possession of the whole or any part of the property allotted or leased to him
without the permission of a competent authority, or (b)has used or is using
such property for a purpose other than that for which it was allotted or leased
to him without the permission of a competent authority, or (c) has committed
any act which is destructive of or permanently injurious to the property, or
(d) for any other sufficient reason to be recorded in writing;
Provided that no action shall be taken under
this rule unless the allottee or the lessee, as the case may be, has been given
a reasonable opportunity of being heard." He points out that in the first
place, the rule speaks of land 'entrusted' to the manager and, therefore would
operate only if entrustment is established. What we have said in regard to s.
17 would apply 339 here also. He then says that this rule restricts the powers
of a managing officer or a managing corporation in the matter of cancellation
of allotment in the sense that it permits cancellation only on certain
specified grounds and, therefore, it cannot be said that s. 19(1) of the Act is
completely in conflict with s. 10 of the Administration of Evacuee Property Act
in so far as the question of cancellation of allotment is concerned. We cannot
accept the argument because, apart from the fact that the acquired properties
have ceased to be evacuee properties, el. (d) of r. 102 permits the managing
officer or managing corporation to cancel allotment "for any other
sufficient reason to be recorded in writing". The only effect of r. 102 is
to permit cancellation 'of an allotment for reasons stated.
That is all. In our opinion, therefore, this
rule does not help the appellants.
Mr. Khanna had raised three other points but
upon the view which we have taken as to the effect of ss. 12 and 19 of the Act,
it is not necessary to consider them.
The appeal is accordingly dismissed. We,
however, make no order as to costs because had there been no delay on the part
of the Custodian General in dealing with the revision application the present
situation would not have arisen.