Purshottam Lal Dhawan Vs. Dewan Chaman
Lal & ANR [1961] INSC 95 (14 March 1961)
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 ordinarily be made within sixty days of
the 38 298 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 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.
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 299 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, recommended 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 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 300 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 CustodianGeneral 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 subsection prejudicial to
any person without "giving him a reasonable opportunity of being heard. In
exercise of the powers conferred by s. 56 of the Act, the Central Government
made the following rules among others:
301 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 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 Custodian General'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 Custodian General. It is within the discretion of the Custodian General
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 appellant 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 there under
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 reasonable opportunity 303 of being heard within the meaning of
the proviso to s. 27(1) of the Act, he made the order. The Custodian General,
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 there
under. 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 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 Custodian General. By reason of the
proviso, the Custodian General 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 305 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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