Kunj Sahkari Awas Samiti & ANR Vs. State of U.P. & Ors  INSC 667
(14 August 1997)
MAJMUDAR, S. SAGHIR AHMAD
consent of learned advocates, all these appeals are heard finally. Short question
involved in these appeals is indicated by order dated 04th October 1996 while issuing notice in the main
S.L.P. The order reads as under :
for substitution allowed.
notice limited to the question of the interpretation of Section 27 read with
Section 55 of the Administration of Evacuee Property Act, 1950, returnable on December 6, 1996 indicating that the matters may be
finally disposed of on the miscellaneous stage itself.
stay." Consequently, we will be concerned only with this short question.
Few relevant facts leading to these appeals deserve to be noted to appreciate
the nature of the controversy posed for our consideration.
order dated 11th
November, 1982, the
Custodian of Evacuee Property, U.P. functioning under the provisions of
Administration of Evacuee Property Act. 1950 (hereinafter referred to as 'the
Act') ordered that Kothi No. 183. Civil Lines, Agra be transferred in favour of Shri Harnath Chaturvedi, son of
Shri Kanhaiya Lal at auction price of Rs.
That order was submitted to the Assistant Custodian General of Evacuee Property
for his approval on the same day. The said order got approved by the Assistant
Custodian General, U.P. Against this order the State of U.P.
a Revision Application under Section 27 of the said Act before the Custodian
General of Evacuee Property. The Custodian General after hearing the parties
concerned took the view that as his delegate had already approved the order
sought to be revised, he could not exercise his revisional jurisdiction against
the same order. In the result, the Revision Application was dismissed as not
maintainable. It was thereafter that the State of U.P. filed a writ petition before the High Court of Allahabad
being Civil Miscellaneous Writ Petition No. 16775 of 1985. Two other writ
petitions filed by the other contesting parties were clubbed with the said writ
petition of the State of U.P. and all the three were heard together by a
Division Bench of the High Court and by the impugned judgment, the Division
Bench took the view that the revisional jurisdiction under Section 27 of the
Act could be exercised by the Custodian General against the order of the first
authority, namely, the Custodian and consequently, the proceedings in revision
were remanded for fresh decision on merits. Certain other observations were
made and directions were given in the said common order. It is thereafter that
the aggrieved parties have challenged the said common order in these appeals by
is to be appreciated that when the Custodian passed the original order, he was
exercising his jurisdiction under Section 10 of the Act, sub-Sections (1) and
(2) (o) of which read as under :
Powers and duties of the Custodian generally.-(1) Subject to the provisions of any
rules that may be made in this behalf, the Custodian may take such measures as
he considers necessary or expedient for the purposes of securing,
administering, preserving and managing any evacuee property and generally for
the purpose of enabling him satisfactorily to discharge any of the duties
imposed on him any of the duties imposed on him by or under this Act and may,
for any such purpose as aforesaid, do all acts and incur all expenses necessary
or incidental thereto.
Without prejudice to the generality of the provisions contained in sub-section
(1), the Custodian may, for any of the purposes aforesaid- (a) to (n) ... ... ...
in any manner whatsoever any evacuee property notwithstanding anything to the
contrary contained in any law or agreement relating thereto:
that the Custodian shall not sell any immovable property or any business or
other undertaking of the evacuee, except with the previous approval of the
Custodian-General;" It must, therefore, be held that the original order
dated 11.11.1982 passed by the Custodian which got approval of the Assistant
Custodian General could operate only because of such approval. It is also not
in dispute that the Custodian General had already delegated his powers under
the Act to the Assistant Custodian General as per Section 55 of the Act.
Sub-section (3) of Section 55 provides that 'subject to the provisions of this
Act and of the rules and orders made thereunder, the Custodian-General may
delegate all or any of his powers under this Act to any Deputy or Assistant
Custodian-General'. Consequently, the original order of the Custodian which was
approved by the Assistant Custodian General as delegate of the Custodian
General must be treated to be an order which had got imprimatur of the
Custodian General himself acting through his delegate. Once that happened the
moot question arises whether such an order can be revised by the Custodian
General in exercise of his revisional powers under Section 27 of the Act which
reads as under:
Powers of revision of Custodian-General.-(1) 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 proceeding 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:
that the Custodian- General shall not pass an order under this sub-section
prejudicial to any person without giving him a reasonable opportunity of being
heard." A mere look at this Section shows that Custodian General can call
for any record of proceeding in which any Custodian has passed an order and
that exercise has to be undertaken for the purposed of satisfying the Custodian
General about the legality or propriety of such an order sought to be revised.
It is axiomatic that when the impugned order of the Custodian was already
approved by the Custodian-General's delegate, the very same delegating
authority, namely, the Custodian-General's delegate, the very same delegating
authority, namely, the Custodian- General could not undertake the exercise of
being satisfied whether such an approved order of his delegate was legal or
proper as that would amount or an exercise of review power which does not flow
from the four corners of Section 27 of the Act.
these circumstances. the revision application moved before the Custodian
General was clearly incompetent.
rightly held not maintainable by the Custodian General and consequently, it is
not possible to agree with the view which appealed to the High Court in the
impugned judgment that the Custodian General could still revise such an order.
On the scheme of the Act, such a conclusion is clearly unsustainable.
this connection, we may refer to a decision of this Court to which our
attention was invited by Shri K. Parasaran, learned senior counsel for the
appellant. In the case of Roop Chand v. State of Punjab [1963 Supp. 1 SCR 539],
a Constitution Bench of this Court speaking through Sarkar, J., for the
majority had to consider whether the appellate jurisdiction conferred on the
State Government under Section 42 of the East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Act, 194B, could be invoked for challenging
the order passed by a delegate of the powers of the State who as a delegate had
exercised the very same jurisdiction under Section 41(1) on behalf of the
this question in the negative, it was held by majority of Constitution Bench
that Section 42 did not empower the State Government to interfere with an order
passed by an officer to whom the power to hear appeals filed under Section
21(4) had been delegated by it under Section 41(1). That the words 'any order
passed .... by an officer under this Act', in Section 42 did not include an
order passed by an officer in exercise of powers delegated to him by the
Government under Section 41(1).
almost parallel situation obtains in the present case. Consequently, it must be
held that the proceedings in revision as filed before the Custodian General
under Section 27 of the Act by the State of U.P.
were clearly incompetent.
this conclusion is reached, the result becomes obvious.
original order dated 11.11.1982 could not be revised by the Custodian General.
in the writ petition filed by the State of U.P.
before the High Court not only the order of the Custodian General taking the
view that revision application was not maintainable was challenged, but the
original order of 11.11.1982 was also challenged along with the consequential
order. That challenge was obviously in the alternative. Our attention was
invited to the prayer clause in the writ petition which clearly reflected this
we take the view that the Division Bench of the High Court was not justified in
treating the revision before Custodian General to be maintainable and
consequently remanding the same to the Custodian General for a fresh decision,
the grievance of the State of U.P. in the
writ petition flowing from the alternative prayer would immediately become
live. As no decision was rendered by the High Court on this alternative prayer,
the only proper order which can be passed in the interest of justice is to
remand these writ petitions for a fresh decision of the High Court on the
alternative prayer, namely, whether the original order dated 11.11.1982 and the
consequential order of 18.11.1982 passed by the Custodian were justified on
merits or not.
result, these appeals are allowed to the aforesaid extent only and the common
order passed by the High Court is set aside and all the three writ petitions
are restored to the file of the High Court with a request to consider the
legality and propriety of the impugned orders dated 11.11.1982 and 18.11.1982
passed by the Custodian of Evacuee Property and as approved by the Assistant
Custodian General of Evacuee Property. It is made clear that we express no
opinion on the merits of these orders. They will have to be examined by the
High Court on their own merits.
remanded proceedings would obviously be old proceedings of 1985 and 1987, the
High Court is requested to dispose them of in accordance with law as
expeditiously as possible preferable within a period of 4 months from the
receipt of a copy of this order at the end of the High Court.