Porshotam Lal Dhawan v. Diwan Chaman Lal And Another

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 29-9-1954, setting aside the order dated 25-8-1952, of the Additional Custodian, Rural, Jullundur, confirming that of the Deputy Commissioner, Ambala, dated 12-5-1951.

2. The appellant belongs to a group of evacuees which may for convenience be described as Dhawan Group. Diwan Chaman Lal, Respondent 1, was a displaced person from West Pakistan where he owned considerable properties. On 1-9-1949, 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 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 14-11-1949, and 11-11-1949, 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 2-12-1949. 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 27-9-1950, praying for the restoration of his original allotment made on 1-9-1949. The Deputy Commissioner, Ambala, rejected that application on 12-5-1951. Against that order the first respondent preferred a revision to the Additional Custodian, who dismissed the same on 25-8-1952. Against that order of dismissal, the first respondent filed a revision before the Custodian-General on 30-10-1952. 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 25-8-1953. 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 appeal is preferred by Purshotam Lal Dhawan, a member of the Dhawan Group, against the said order.

3. 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.

4. To appreciate the first contention some relevant dates may be given. The order of the Additional Custodian was passed on 25-8-1952. The said order was communicated to the first respondent on 11-9-1952. The revision was filed on 10-10-1952. 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.

5. The first question for consideration is whether the revision was barred by limitation insofar 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 Section 56 of the Act, the Central Government made the following rules among others:

“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 Section 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 Section 56 of the Act. So the rule can only be read consistent with the power conferred on the Custodian-General under Section 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, 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 Section 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, a rule cannot say that it shall be filed within a particular time. The argument that the principle underlying Section 5 of the Limitation Act applies to a petition for revision under Section 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 Section 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 Section 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 of being heard within the meaning of the proviso to Section 27(1) of the Act, he made the order. The Custodian-General, therefore, acted reasonably within his powers. This objection is overruled.

6. 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 22-7-1952. 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 1-9-1949. There was re-allotment on 2-12-1949. The re-allotment was cancelled by the Deputy Custodian-General by his order dated 29-9-1954. The question is whether the Deputy Custodian-General can set aside the allotment made on 2-12-1949. The question raised falls to be decided on the relevant provisions of the Act and the rules made thereunder. Section 12 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 Section 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 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 22-7-1952.”

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. This sub-rule was substituted for the old sub-rule by S.R.O 1290 of 22-7-1952. 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 Section 26 or Section 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 26-8-1953 i.e efore 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 Section 27 of the Act, cancel an allotment made by a lower authority on or before 22-7-1952. 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 Section 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 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 22-7-1952, the Custodian-General was within his rights in cancelling the same.

7. 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 29-9-1954:

“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 7-8-1952, and 11-8-1952, 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 p. 129 of the record, a report by the Department dated 21-8-1952, shows that no order of allotment to Dhawan Group was forthcoming.”

These observations 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.

8. No other point was raised before us. In the result, the appeal fails and is dismissed with costs.