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PETITIONER: PURSHOTTAM LAL DHAWAN

       Vs.

RESPONDENT: DEWAN CHAMAN LAL AND ANOTHER

DATE OF JUDGMENT: 14/03/1961

BENCH: SUBBARAO, K. BENCH: 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 ordinarly 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

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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.

JUDGMENT: 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,  re- commended 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

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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 Custodian-  General  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  sub- section prejudicial to any  person without "giving  him   a reasonable opportunity of being heard.In  exercise of  the powers conferred by s. 56 of theAct,     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

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             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  CustodianGeneral’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  CustodianGeneral.   It  is within  the discretion of the CustodianGeneral 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 appel- lant  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 thereunder 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

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reasonable opportunity 303 of being heard within the meaning of the proviso to s. 27(1) of  the  Act,  he made  the  order.   The  CustodianGeneral, 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 thereunder.  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-

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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 CustodianGeneral.  By reason of the proviso, the CustodianGeneral 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. 39 306