http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: JOGINDER SINGH AND OTHERS

       Vs.

RESPONDENT: THE DEPUTY CUSTODIAN GENERAL OF EVACUEE PROPERTY

DATE OF JUDGMENT: 04/05/1961

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1967 AIR  145            1962 SCR  (2) 738  CITATOR INFO :  R          1979 SC1328  (16)

ACT: Evacuee   Property--Quasi-permanent   allotment   of   rural property-Cancellation  of-Custodian General-Power to  cancel allotment  after  July  22,1952-Administration  of   Evacuee Property Act, 1950 (31 of 1950) ss. 26 and 27-Administration of Evacuee Property Rules, r. 14 (6).

HEADNOTE: Respondents  Nos.  4 to 9 who were  displaced  persons  from Pakistan,  were  allotted  certain rural  lands  in  village Karodian  on a quasi-permanent basis.  On information  being received  from  Pakistan that they were  entitled  to  urban allotment their allotment in village Karodian was  cancelled and they were allotted urban land.  The land thus vacated in village  Karodian was allotted to the appellants.   On  July 22, 1952, r. 14(6) of the Administration of Evacuee Property Rules  was amended and the power of the custodian to  cancel quasi-permanent  allotments  of rural evacuee  property  was taken  away  except  in  certain  enumerated  circumstances. Thereafter respondents Nos. 4 to 9 applied to the  Custodian for shifting back their allotment to village Karodian on the ground that they were really’ entitled to allotment of rural property.   The Custodian dismissed the application  holding that  r.  14(6)  did  not permit  the  cancellation  of  the allotment of the appellants.  Respondents Nos. 4 to 9  filed a  revision  application before the  Custodian  General  who allowed  the application and cancelled the allotment of  the appellants.   The  appellants contended that  the  Custodian General  had  no  power  to  cancel  their  allotment.   The respondents  replied that the wide powers of  the  Custodian General under s.27 of Administration of Evacuee Property Act 1950,  were not affected by the restrictions imposed by  the amended  r. 14 (6) on the power of the Custodian  to  cancel allotments. Held,  that the Custodian General had no power to cancel  an allotment of rural property made on a quasi-permanent  basis in a revision application against an order of the  Custodian made after July 22, 1952.  The power of the Custodian  under s.  10  of the Act to cancel allotments was subject  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

rules.   The  amended r. 14(6) restricted the power  of  the Custodian  to cancel such an allotment to the  circumstances mentioned  therein and the present case did not fall  within any of those excep-                             739 tions.   Amended  r.  14(6) could not  be  resorted  to  for cancellation of allotments made before July, 22, 1952.   The power of the Custodian General under s. 27 of the Act was to see whether the order passed by the Custodian was legal  and proper ; he had no power to do something which the Custodian could not have done or which he was prohibited from doing.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 457/58. Appeal from the Judgment and order dated September 12, 1956, of the Punjab High Court in Letters Patent Appeal No. 38  of 1955. N.   C. Chatterjee and Naunit Lal, for the appellants. Nanak Chand, for the respondents Nos. 4 to 9. 1961.  May 4. The Judgment of the Court was delivered by MUDHOLKAR,  J.-In this appeal under Art. 133 (1) (c) of  the Constitution the question which arises for consideration  is whether  after  July  22, 1952  the  Custodian  of’  Evacuee Property  in  the State of Punjab of the  Custodian  General hearing an appeal from an order made by the Custodian  after July 22, 1952 has the power to cancel an allotment of  rural evacuee property on a quasi-permanent basis except upon  the grounds  set  out  in r. 14 (6)  of  the  Administration  of Evacuee Property Rules, 1950 as amended by notification  No. S. R. 0. 1290 dated July 22, 1952. The  circumstances under which this question arises may  now be  briefly  stated.  The appellants and their  father  Nand Singh  were  displaced persons from West  Pakistan  and  got allotment  of  some  land in the  village  Raikot,  District Ludhiana   on  a  temporary  basis.   Later,  each  of   the appellants 1 to 3 was allotted 8-1/3 standard acres of  land on a quasi-permanent basis while Nail(] Singh, their  father who  was  entitled to 41 standard acres and 7 units  and  to whom  land to that extent had been temporarily  allotted  in the 740 village Raikot was allotted the same acreage of land in  the village  Hambran which is situate at a distance of 25 or  30 miles  from  Raikot.   Nand Singh made  an  application  for revising the order under which this was done but he died  in the year 1951, during the pendency of that application.  The appellants  as  his  legal  representatives  continued   the application.   That  application was rejected  and  revision application  made  against the order passed  thereunder  was also  rejected  on the ground that after July 22,  1952  the Additional   Custodian  was  not  competent  to  cancel   an allotment  made  in  favour of any person  except  upon  the grounds set out in r. 14 (6) of the Evacuee Property Rules. Respondents  4  to  9 owned lands in Chak  No.  127,  G.  B. Jaranwala, District Lyallpur and are also displaced persons. They were, therefore, allotted certain lands in the  village Karodian  as quasi-permanent allottees.   Subsequently  some revenue  papers  were received from Pakistan from  which  it appeared that they were entitled to urban allotment.   They, therefore,   brought   this   matter   before   the   Deputy Commissioner  exercising  the powers  of  Deputy  Custodian. Thereupon  he  cancelled  the  allotment  in  their   favour sometime  in  the year 1952 and proposed to  the  Additional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

Custodian,  who  was also acting as Director of  Relief  and Rehabilitation,  for the allotment of the lands  which  were originally allotted to the respondents to others. Appellant  No. 2, Gopal Singh, on behalf of his father  Nand Singh  applied to the Director of Relief and  Rehabilitation that  the  allotment in the name of his  father  Nand  Singh might  be shifted from the village Hambran’ to  the  village Karodian.   The.  Additional Custodian not only allowed  the Application of Gopal Singh and shifted the allotment of Nand Singh to the village Karodian but he also shifted the entire allotment  of the appellants Nos.  1 to 3 from  the  village Raikot to the village Karodian with                             741 the  result  that  the lands allotted  to  the  family  were consolidated in the same village.  The appellants  thereupon obtained possession of the Karodian lands. Respondents  4  to  9  were  allotted  urban  lands,   which according  to the appellants are more valuable and are of  a superior  quality.  They did not prefer an  application  for review  of  the  order  of  cancellation  of  their  earlier allotment or of the order passed by the Additional Custodian allotting their lands to the appellants. Six  months later, however, respondents 4 to 9 preferred  an application before the Additional Custodian stating  therein that  the land abandoned by them in West Pakistan was  rural and  that  their  allotment should be shifted  back  to  the village Karodian.  To this application they did not make the appellants  parties.  The Additional Custodian held that  he could  not cancel the allotment in favour of the  appellants in  view of r. 14(6) of the Evacuee Property  Rules  already referred  to.   He,  however, recommended the  case  to  the Custodian  General of India by his memo, dated  October  14, 1953,  for taking appropriate action.  The Deputy  Custodian General  who heard the case sent it back to  the  Additional Custodian  observing therein that if the respondents 4 to  9 are  restored  to their original lands the persons  to  whom those  lands  had  been allotted will  have  to  be  shifted elsewhere  and  this process may  involve  "an  interminable chain of cancellation of allotments." He also observed  that if  the Additional Custodian could not cancel the  allotment because  of the coming into force of the amended r. 14  (6), the  Custodian General also would be incompetent  to  cancel it.    Thereafter   the  Additional  Custodian   heard   the application  of  the  respondents  4  to  9  on  merits  and dismissed it.  Against his order dismissing the  application respondents  4 to 9 preferred a revision application  before the   Custodian  General.   Curiously  enough   the   Deputy Custodian General, 742 who  heard  it, this time granted the  application  and  set aside  the  allotment  in favour  of  the  appellants.   The appellants  thereafter moved the High Court of Punjab  under Art.  226 of the Constitution.  The matter went up before  a single  Judge of the High Court who dismissed  the  petition observing as follows :               "If  the  order of  cancellation  against  the               present  opposite parties was made  after  the               22nd July, 1952, the order was inoperative  in               view of Rule 14 (6) and if it be said that the               order  of  allotment was after the  date  then               Rule 14 (6) is not bar to the cancellation  of               the order.  In either case I am of the opinion               that  there is no error in the order of -  the               Custodian  General sufficient for the  purpose               of quashing his order ."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

The  appellants  thereupon  preferred an  appeal  under  the Letters Patent which was also dismissed by a Division  Bench of  the High Court.  The substance of the reasoning  of  the learned   Judges  is  that  the  allotment  in   favour   of respondents 4 to 9 was wrongly cancelled and it was the duty of  the Custodian to restore to ’them the lands  from  which they were ousted.  They also said that the provisions of  r. 14  (6) (lid not preclude the Deputy Custodian General  from exercising  the  powers conferred upon him by s. 27  of  the Administration of Evacuee Property Act or prevented him from cancelling the allotment made after July 22, 1952. The  view taken by the Division Bench to the effect that  r. 14 (6) did not stand in the way of the Custodian General  of the  Custodian from restoring the lands to  the  respondents the allotment with respect to which was wrongly cancelled by the  Custodian cannot be sustained.  No doubt it is  one  of the  highest duties of all courts to take care that the  act of  the court does not do injury to suitors; but  the  court must have power to rectify the wrong. 743 Such  power  may  either  inhere in  the  Court  or  may  be expressly conferred by statute.  The law does not confer any express power on the Custodian to make restitution.  But  we will  assume that be had inherent power to do so.   Just  as power  can be conferred expressly by statute it can also  be taken  away  or  restricted and where it is  taken  away  or restricted  then,  whether the power was  statutory  in  its origin  or  was  inherent in the court, it  will  be  either wholly  unexercisable  or exercisable only  subject  to  the conditions  laid  down in the statute, as the case  may  be. Here  we  have the notification dated July  22,  1952  which substituted  the present sub-r. 6 of r. 14 for the  original sub-r.  6. The amended sub-rule has placed a  limitation  on the  powers  of the Custodian to cancel allotment  of  rural evacuee property on a quasi-permanent basis.  The result  is that an allotment of such land can be cancelled only in  the circumstances   specified  in  that  sub-rule.    Therefore, subsequent  to  July  22,  1952  the  Custodian  of  Evacuee Property  would have the power to cancel an  allotment  only upon  a ground which falls within the exceptions  enumerated in  sub-r.  6.  Making  of restitution  is  not  within  the exceptions and, therefore, it will have to, be said that the inherent  power of the Custodian to cancel an allotment  for making  restitution has been abrogated by the  amended  sub- rule. The  other argument of the Division Bench is to  the  effect that  the  powers of the Custodian General under s.  27  are untouched  by sub-r. 6 of r. 14 and that despite the  making of  this rule the Custodian General was not  prevented  from cancelling an allotment made after July 22, 1952.  Now s. 27 of the Act provides that the Custodian General may call  for the record of any proceeding in which 4 District Judge or  a 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 At. The 744 District Judge or the Custodian can in any matter before him do  only  that which the act or the  rules  made  thereunder permit  or require him to do.  If he fails to do what he  is required  to  do  or if he does something which  he  is  not permitted  to do or if he commits an error in doing  an  act which  he is permitted to do, the Custodian General has  the power  to order that to be done which the law  requires  the Custodian or the District Judge to do or to quash that which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

has  illegally been done or to rectify the error  which  the Custodian  or the District Judge has committed.  He  has  no power to do something which the Custodian or District  Judge could not have done or was prohibited from doing.   Clearly, therefore,  the High Court was in error in holding that  the limitations placed by the present sub-r. 6 of r. 14 did  not affect the power of the Custodian General. The learned single Judge as  well as the Division Bench have taken the view that where an allotment is made in favour  of a  displaced  person  subsequent  to  July  22,  1952,   the provisions  of  sub-r.  6  of r. 14  did  not  preclude  the Custodian  from  cancelling that allotment.   This  view  is sought  to  be  supported by Mr. Nanak Chand  on  behalf  of respondents 4 to 9 on, what he says, the language of  sub-r. 6 of r. 14.    He says that according to this sub-rule  what the  Custodian  is  precluded  from doing is  to  cancel  an allotment which had already been made, that is, made  before the  coming into force of the sub-rule except  upon  certain grounds and does not place any further restrictions.  We  do not  find  any justification for placing such  a  restricted interpretation  upon  the plain language  of  the  Sub-rule. Learned  counsel then referred to the second proviso to  the sub-rule and contended that it supported the  interpretation which he was placing.  The proviso reads thus :               "Provided that where an allotment is cancelled               or varied under clause (ii) the allottee                                    745               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  subrule               shall  apply to any application for  revision,               made  under s. 26 or s. 27 of the Act,  within               the  prescribed time, against an order  passed               by  a lower authority on or before 22nd  July,               1952." How  this  proviso  supports the  argument  of  the  learned counsel  is  difficult to appreciate.  The proviso  was  not originally there when sub-r. 6 was amended on July 22, 1952. It is possible that a doubt was entertained after the making of  this  subrule  on the  question  whether  the  Custodian General or the Custodian before whom a revision  application had been made against an order passed before July 22,  1952, could make an order cancelling the allotment.  Apparently to remove  the doubt such as may have existed this proviso  had been added. Then  learned  counsel contended that this subrule  can  not take away the wide powers conferred upon the Custodian by s. 10  of the Act.  No doubt s. 10 confers wide  powers on  the Custodian but the opening words of the section show that the powers  conferred thereby are subject to the  provisions  of ruler,  made  under the Act and s. 56 (2)  (i)  enables  the Central   Government   to   make  rules   to   provide   for "circumstances  in  which  leases  and  allotments  may   be cancelled  or  terminated  or the terms  of  any  lease,  or agreement  varied." We, have, therefore, no doubt  that  the High  Court was in error in holding that sub-r. 6 of’ r.  14 was  not a bar to the, exercise by the Custodian General  of the power to cancel an allotment after July 22, 1952. Having failed on the point which alone finds a place in  the statement of the cases of both the 746 parties,  Mr.  Nanak  Chand raised  a  contention  that  the allotment in favour of the appellants was itself bad because

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

the   cancellation  of  the  allotment  in  favour  of   the respondents  4  to 9 was in contravention of r. 14  (6)  and that,  therefore,  the appellants were not entitled  to  the relief   from  the  High  Court  under  Art.  226   of   the Constitution and accordingly are not entitled to any  relief in  this Court.  Since the respondents have not relied  upon this  ground  in  the statement of their  case  we  are  not prepared to consider it.  There may be more than one  answer to  the  point  urged  by  the  respondents  and  had   they specifically  raised  it  in their statement  of  case,  the appellants  would  have  been  in  a  position  to  give  an appropriate answer. Accordingly  we  allow the appeal with costs and  quash  the orders of the High Court as well as of the Deputy  Custodian General. There  is  one more matter to which we must  refer.   It  is this.  During the hearing of the appeal learned counsel  for the  appellant  brought to our notice the fact that  on  the records  of  the  proceedings before  the  Deputy  Custodian General there was a slip of paper from which it would appear that  Deputy  Custodian General had been approached  by  the then Speaker of the Punjab Assembly apparently on behalf  of the respondents.  We, therefore, asked for a report from the High Court.  That report has come and it exonerates both the ex-Deputy  Custodian General as well as the ex-Speaker.   We are not satisfied with the report.  However, considering the fact  that  the matter has become quite stale  and  we  have allowed  the appeal we do not propose to examine the  matter further. Appeal allowed.                             747