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PETITIONER: BEHARI KUNJ SAHKARI AWAS SAMITI & ANR.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       14/08/1997

BENCH: S. B. MAJMUDAR, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J.      Leave granted.      By 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 :           "Application for  substitution      allowed.           Issue 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.           No 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.      By an 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. 61,000/-.  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. filed 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

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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 special leave.      Now it  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 :      "10. 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.      (2)  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) ... ... ... ...      (o)  transfer   in    any    manner      whatsoever  any   evacuee  property      notwithstanding  anything   to  the      contrary contained  in any  law  or      agreement relating thereto:           Provided  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

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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:      "27. 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:           Provided 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.      Under these  circumstances.  the  revision  application moved before  the Custodian General was clearly incompetent. It was  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.      In 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  State. Answering 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

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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).      An 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. Once this conclusion is reached, the result becomes obvious. The original  order dated 11.11.1982 could not be revised by the Custodian General.      However, 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 position. Once 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.      In  the  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. As  the   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.