{"id":190733,"date":"1961-05-04T00:00:00","date_gmt":"1961-05-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/joginder-singh-and-others-vs-the-deputy-custodian-general-of-on-4-may-1961"},"modified":"2017-07-01T03:03:04","modified_gmt":"2017-06-30T21:33:04","slug":"joginder-singh-and-others-vs-the-deputy-custodian-general-of-on-4-may-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/joginder-singh-and-others-vs-the-deputy-custodian-general-of-on-4-may-1961","title":{"rendered":"Joginder Singh And Others vs The Deputy Custodian General Of … on 4 May, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Joginder Singh And Others vs The Deputy Custodian General Of … on 4 May, 1961<\/div>\n
Equivalent citations: 1967 AIR 145, \t\t 1962 SCR (2) 738<\/div>\n
Author: M R.<\/div>\n
Bench: Mudholkar, J.R.<\/div>\n
           PETITIONER:\nJOGINDER SINGH AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nTHE DEPUTY CUSTODIAN GENERAL OF EVACUEE PROPERTY\n\nDATE OF JUDGMENT:\n04\/05\/1961\n\nBENCH:\nMUDHOLKAR, J.R.\nBENCH:\nMUDHOLKAR, J.R.\nSUBBARAO, K.\nDAYAL, RAGHUBAR\n\nCITATION:\n 1967 AIR  145\t\t  1962 SCR  (2) 738\n CITATOR INFO :\n R\t    1979 SC1328\t (16)\n\n\nACT:\nEvacuee\t  Property--Quasi-permanent   allotment\t  of   rural\nproperty-Cancellation  of-Custodian General-Power to  cancel\nallotment  after  July\t22,1952-Administration\tof   Evacuee\nProperty Act, 1950 (31 of 1950) ss. 26 and 27-Administration\nof Evacuee Property Rules, r. 14 (6).\n\n\n\nHEADNOTE:\nRespondents  Nos.  4 to 9 who were  displaced  persons\tfrom\nPakistan,  were\t allotted  certain rural  lands\t in  village\nKarodian  on a quasi-permanent basis.  On information  being\nreceived  from\tPakistan that they were\t entitled  to  urban\nallotment their allotment in village Karodian was  cancelled\nand they were allotted urban land.  The land thus vacated in\nvillage\t Karodian was allotted to the appellants.   On\tJuly\n22, 1952, r. 14(6) of the Administration of Evacuee Property\nRules  was amended and the power of the custodian to  cancel\nquasi-permanent\t allotments  of rural evacuee  property\t was\ntaken  away  except  in\t certain  enumerated  circumstances.\nThereafter respondents Nos. 4 to 9 applied to the  Custodian\nfor shifting back their allotment to village Karodian on the\nground that they were really' entitled to allotment of rural\nproperty.   The Custodian dismissed the application  holding\nthat  r.  14(6)\t did  not permit  the  cancellation  of\t the\nallotment of the appellants.  Respondents Nos. 4 to 9  filed\na  revision  application before the  Custodian\tGeneral\t who\nallowed\t the application and cancelled the allotment of\t the\nappellants.   The  appellants contended that  the  Custodian\nGeneral\t had  no  power\t to  cancel  their  allotment.\t The\nrespondents  replied that the wide powers of  the  Custodian\nGeneral under s.27 of Administration of Evacuee Property Act\n1950,  were not affected by the restrictions imposed by\t the\namended\t r. 14 (6) on the power of the Custodian  to  cancel\nallotments.\nHeld,  that the Custodian General had no power to cancel  an\nallotment of rural property made on a quasi-permanent  basis\nin a revision application against an order of the  Custodian\nmade after July 22, 1952.  The power of the Custodian  under\ns.  10\tof the Act to cancel allotments was subject  to\t the\nrules.\t The  amended r. 14(6) restricted the power  of\t the\nCustodian  to cancel such an allotment to the  circumstances\nmentioned  therein and the present case did not fall  within\nany of those excep-\n\t\t\t    739\ntions.\t Amended  r.  14(6) could not  be  resorted  to\t for\ncancellation of allotments made before July, 22, 1952.\t The\npower of the Custodian General under s. 27 of the Act was to\nsee whether the order passed by the Custodian was legal\t and\nproper ; he had no power to do something which the Custodian\ncould not have done or which he was prohibited from doing.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 457\/58.
\nAppeal from the Judgment and order dated September 12, 1956,
\nof the Punjab High Court in Letters Patent Appeal No. 38  of
\n1955.\n<\/p>\n
N.   C. Chatterjee and Naunit Lal, for the appellants.
\nNanak Chand, for the respondents Nos. 4 to 9.
\n1961.  May 4. The Judgment of the Court was delivered by
\nMUDHOLKAR,  J.-In this appeal under Art. 133 (1) (c) of\t the
\nConstitution the question which arises for consideration  is
\nwhether\t after\tJuly  22, 1952\tthe  Custodian\tof’  Evacuee
\nProperty  in  the State of Punjab of the  Custodian  General
\nhearing an appeal from an order made by the Custodian  after
\nJuly 22, 1952 has the power to cancel an allotment of  rural
\nevacuee property on a quasi-permanent basis except upon\t the
\ngrounds\t set  out  in r. 14 (6)\t of  the  Administration  of
\nEvacuee Property Rules, 1950 as amended by notification\t No.
\nS. R. 0. 1290 dated July 22, 1952.\n<\/p>\n
The  circumstances under which this question arises may\t now
\nbe  briefly  stated.  The appellants and their\tfather\tNand
\nSingh  were  displaced persons from West  Pakistan  and\t got
\nallotment  of  some  land in the  village  Raikot,  District
\nLudhiana   on  a  temporary  basis.   Later,  each  of\t the
\nappellants 1 to 3 was allotted 8-1\/3 standard acres of\tland
\non a quasi-permanent basis while Nail(] Singh, their  father
\nwho  was  entitled to 41 standard acres and 7 units  and  to
\nwhom  land to that extent had been temporarily\tallotted  in
\nthe
\n740<\/span>
\nvillage Raikot was allotted the same acreage of land in\t the
\nvillage\t Hambran which is situate at a distance of 25 or  30
\nmiles  from  Raikot.   Nand Singh made\tan  application\t for
\nrevising the order under which this was done but he died  in
\nthe year 1951, during the pendency of that application.\t The
\nappellants  as\this  legal  representatives  continued\t the
\napplication.   That  application was rejected  and  revision
\napplication  made  against the order passed  thereunder\t was
\nalso  rejected\ton the ground that after July 22,  1952\t the
\nAdditional   Custodian\twas  not  competent  to\t cancel\t  an
\nallotment  made\t in  favour of any person  except  upon\t the
\ngrounds set out in r. 14 (6) of the Evacuee Property Rules.
\nRespondents  4\tto  9 owned lands in Chak  No.\t127,  G.  B.
\nJaranwala, District Lyallpur and are also displaced persons.
\nThey were, therefore, allotted certain lands in the  village
\nKarodian  as quasi-permanent allottees.\t  Subsequently\tsome
\nrevenue\t papers\t were received from Pakistan from  which  it
\nappeared that they were entitled to urban allotment.   They,
\ntherefore,   brought   this   matter   before\tthe   Deputy
\nCommissioner  exercising  the powers  of  Deputy  Custodian.
\nThereupon  he  cancelled  the  allotment  in  their   favour
\nsometime  in  the year 1952 and proposed to  the  Additional
\nCustodian,  who\t was also acting as Director of\t Relief\t and
\nRehabilitation,\t for the allotment of the lands\t which\twere
\noriginally allotted to the respondents to others.
\nAppellant  No. 2, Gopal Singh, on behalf of his father\tNand
\nSingh  applied to the Director of Relief and  Rehabilitation
\nthat  the  allotment in the name of his\t father\t Nand  Singh
\nmight  be shifted from the village Hambran’ to\tthe  village
\nKarodian.   The.  Additional Custodian not only allowed\t the
\nApplication of Gopal Singh and shifted the allotment of Nand
\nSingh to the village Karodian but he also shifted the entire
\nallotment  of the appellants Nos.  1 to 3 from\tthe  village
\nRaikot to the village Karodian with
\n\t\t\t    741<\/span>
\nthe  result  that  the lands allotted  to  the\tfamily\twere
\nconsolidated in the same village.  The appellants  thereupon
\nobtained possession of the Karodian lands.
\nRespondents  4\tto  9  were  allotted  urban  lands,   which
\naccording  to the appellants are more valuable and are of  a
\nsuperior  quality.  They did not prefer an  application\t for
\nreview\tof  the\t order\tof  cancellation  of  their  earlier
\nallotment or of the order passed by the Additional Custodian
\nallotting their lands to the appellants.\n<\/p>\n
Six  months later, however, respondents 4 to 9 preferred  an
\napplication before the Additional Custodian stating  therein
\nthat  the land abandoned by them in West Pakistan was  rural
\nand  that  their  allotment should be shifted  back  to\t the
\nvillage Karodian.  To this application they did not make the
\nappellants  parties.  The Additional Custodian held that  he
\ncould  not cancel the allotment in favour of the  appellants
\nin  view of r. 14(6) of the Evacuee Property  Rules  already
\nreferred  to.\tHe,  however, recommended the  case  to\t the
\nCustodian  General of India by his memo, dated\tOctober\t 14,
\n1953,  for taking appropriate action.  The Deputy  Custodian
\nGeneral\t who heard the case sent it back to  the  Additional
\nCustodian  observing therein that if the respondents 4 to  9
\nare  restored  to their original lands the persons  to\twhom
\nthose  lands  had  been allotted will  have  to\t be  shifted
\nelsewhere  and\tthis process may  involve  “an\tinterminable
\nchain of cancellation of allotments.” He also observed\tthat
\nif  the Additional Custodian could not cancel the  allotment
\nbecause\t of the coming into force of the amended r. 14\t(6),
\nthe  Custodian General also would be incompetent  to  cancel
\nit.    Thereafter   the\t Additional  Custodian\t heard\t the
\napplication  of\t the  respondents  4  to  9  on\t merits\t and
\ndismissed it.  Against his order dismissing the\t application
\nrespondents  4 to 9 preferred a revision application  before
\nthe   Custodian\t General.   Curiously  enough\tthe   Deputy
\nCustodian General,
\n742<\/span>
\nwho  heard  it, this time granted the  application  and\t set
\naside  the  allotment  in favour  of  the  appellants.\t The
\nappellants  thereafter moved the High Court of Punjab  under
\nArt.  226 of the Constitution.\tThe matter went up before  a
\nsingle\tJudge of the High Court who dismissed  the  petition
\nobserving as follows :\n<\/p>\n
\t      “If  the\torder of  cancellation\tagainst\t the
\n\t      present  opposite parties was made  after\t the
\n\t      22nd July, 1952, the order was inoperative  in
\n\t      view of Rule 14 (6) and if it be said that the
\n\t      order  of\t allotment was after the  date\tthen
\n\t      Rule 14 (6) is not bar to the cancellation  of
\n\t      the order.  In either case I am of the opinion
\n\t      that  there is no error in the order of –\t the
\n\t      Custodian\t General sufficient for the  purpose
\n\t      of quashing his order .”\n<\/p><\/blockquote>\n
The  appellants\t thereupon  preferred an  appeal  under\t the
\nLetters Patent which was also dismissed by a Division  Bench
\nof  the High Court.  The substance of the reasoning  of\t the
\nlearned\t  Judges  is  that  the\t allotment  in\t favour\t  of
\nrespondents 4 to 9 was wrongly cancelled and it was the duty
\nof  the Custodian to restore to ‘them the lands\t from  which
\nthey were ousted.  They also said that the provisions of  r.
\n14  (6) (lid not preclude the Deputy Custodian General\tfrom
\nexercising  the\t powers conferred upon him by s. 27  of\t the
\nAdministration of Evacuee Property Act or prevented him from
\ncancelling the allotment made after July 22, 1952.
\nThe  view taken by the Division Bench to the effect that  r.
\n14 (6) did not stand in the way of the Custodian General  of
\nthe  Custodian from restoring the lands to  the\t respondents
\nthe allotment with respect to which was wrongly cancelled by
\nthe  Custodian cannot be sustained.  No doubt it is  one  of
\nthe  highest duties of all courts to take care that the\t act
\nof  the court does not do injury to suitors; but  the  court
\nmust have power to rectify the wrong.\n<\/p>\n
743<\/span><\/p>\n
Such  power  may  either  inhere in  the  Court\t or  may  be
\nexpressly conferred by statute.\t The law does not confer any
\nexpress power on the Custodian to make restitution.  But  we
\nwill  assume that be had inherent power to do so.   Just  as
\npower  can be conferred expressly by statute it can also  be
\ntaken  away  or\t restricted and where it is  taken  away  or
\nrestricted  then,  whether the power was  statutory  in\t its
\norigin\tor  was\t inherent in the court, it  will  be  either
\nwholly\tunexercisable  or exercisable only  subject  to\t the
\nconditions  laid  down in the statute, as the case  may\t be.
\nHere  we  have the notification dated July  22,\t 1952  which
\nsubstituted  the present sub-r. 6 of r. 14 for the  original
\nsub-r.\t6. The amended sub-rule has placed a  limitation  on
\nthe  powers  of the Custodian to cancel allotment  of  rural
\nevacuee property on a quasi-permanent basis.  The result  is
\nthat an allotment of such land can be cancelled only in\t the
\ncircumstances\tspecified  in  that  sub-rule.\t  Therefore,
\nsubsequent  to\tJuly  22,  1952\t the  Custodian\t of  Evacuee
\nProperty  would have the power to cancel an  allotment\tonly
\nupon  a ground which falls within the exceptions  enumerated
\nin  sub-r.  6.\tMaking\tof restitution\tis  not\t within\t the
\nexceptions and, therefore, it will have to, be said that the
\ninherent  power of the Custodian to cancel an allotment\t for
\nmaking\trestitution has been abrogated by the  amended\tsub-
\nrule.\n<\/p>\n
The  other argument of the Division Bench is to\t the  effect
\nthat  the  powers of the Custodian General under s.  27\t are
\nuntouched  by sub-r. 6 of r. 14 and that despite the  making
\nof  this rule the Custodian General was not  prevented\tfrom
\ncancelling an allotment made after July 22, 1952.  Now s. 27
\nof the Act provides that the Custodian General may call\t for
\nthe record of any proceeding in which 4 District Judge or  a
\nCustodian has passed an order for the purpose of  satisfying
\nhimself\t as to the legality or propriety of any\t such  order
\nand may pass such order in relation thereto as he thinks At.
\nThe
\n744<\/span>
\nDistrict Judge or the Custodian can in any matter before him
\ndo  only  that which the act or the  rules  made  thereunder
\npermit\tor require him to do.  If he fails to do what he  is
\nrequired  to  do  or if he does something which\t he  is\t not
\npermitted  to do or if he commits an error in doing  an\t act
\nwhich  he is permitted to do, the Custodian General has\t the
\npower  to order that to be done which the law  requires\t the
\nCustodian or the District Judge to do or to quash that which
\nhas  illegally been done or to rectify the error  which\t the
\nCustodian  or the District Judge has committed.\t He  has  no
\npower to do something which the Custodian or District  Judge
\ncould not have done or was prohibited from doing.   Clearly,
\ntherefore,  the High Court was in error in holding that\t the
\nlimitations placed by the present sub-r. 6 of r. 14 did\t not
\naffect the power of the Custodian General.
\nThe learned single Judge as  well as the Division Bench have
\ntaken the view that where an allotment is made in favour  of
\na  displaced  person  subsequent  to  July  22,\t 1952,\t the
\nprovisions  of\tsub-r.\t6  of r. 14  did  not  preclude\t the
\nCustodian  from\t cancelling that allotment.   This  view  is
\nsought\tto  be\tsupported by Mr. Nanak Chand  on  behalf  of
\nrespondents 4 to 9 on, what he says, the language of  sub-r.
\n6 of r. 14.    He says that according to this sub-rule\twhat
\nthe  Custodian\tis  precluded  from doing is  to  cancel  an
\nallotment which had already been made, that is, made  before
\nthe  coming into force of the sub-rule except  upon  certain
\ngrounds and does not place any further restrictions.  We  do
\nnot  find  any justification for placing such  a  restricted
\ninterpretation\tupon  the plain language  of  the  Sub-rule.
\nLearned\t counsel then referred to the second proviso to\t the
\nsub-rule and contended that it supported the  interpretation
\nwhich he was placing.  The proviso reads thus :\n<\/p>\n
\t      “Provided that where an allotment is cancelled
\n\t      or varied under clause (ii) the allottee
\n\t\t\t\t   745<\/span>
\n\t      shall  be entitled to retain such\t portion  of
\n\t      the land to which he would have been  entitled
\n\t      under the scheme of quasi-permanent  allotment
\n\t      of land:\n<\/p><\/blockquote>\n
\t      Provided further that nothing in this  subrule
\n\t      shall  apply to any application for  revision,
\n\t      made  under s. 26 or s. 27 of the Act,  within
\n\t      the  prescribed time, against an order  passed
\n\t      by  a lower authority on or before 22nd  July,
\n\t      1952.”\n<\/p><\/blockquote>\n
How  this  proviso  supports the  argument  of\tthe  learned
\ncounsel\t is  difficult to appreciate.  The proviso  was\t not
\noriginally there when sub-r. 6 was amended on July 22, 1952.
\nIt is possible that a doubt was entertained after the making
\nof  this  subrule  on the  question  whether  the  Custodian
\nGeneral or the Custodian before whom a revision\t application
\nhad been made against an order passed before July 22,  1952,
\ncould make an order cancelling the allotment.  Apparently to
\nremove\tthe doubt such as may have existed this proviso\t had
\nbeen added.\n<\/p>\n
Then  learned  counsel contended that this subrule  can\t not
\ntake away the wide powers conferred upon the Custodian by s.
\n10  of the Act.\t No doubt s. 10 confers wide  powers on\t the
\nCustodian but the opening words of the section show that the
\npowers\tconferred thereby are subject to the  provisions  of
\nruler,\tmade  under the Act and s. 56 (2)  (i)\tenables\t the
\nCentral\t  Government   to   make  rules\t  to   provide\t for
\n“circumstances\tin  which  leases  and\tallotments  may\t  be
\ncancelled  or  terminated  or the terms\t of  any  lease,  or
\nagreement  varied.” We, have, therefore, no doubt  that\t the
\nHigh  Court was in error in holding that sub-r. 6 of’ r.  14
\nwas  not a bar to the, exercise by the Custodian General  of
\nthe power to cancel an allotment after July 22, 1952.
\nHaving failed on the point which alone finds a place in\t the
\nstatement of the cases of both the
\n746<\/span>
\nparties,  Mr.  Nanak  Chand raised  a  contention  that\t the
\nallotment in favour of the appellants was itself bad because
\nthe   cancellation  of\tthe  allotment\tin  favour  of\t the
\nrespondents  4\tto 9 was in contravention of r. 14  (6)\t and
\nthat,  therefore,  the appellants were not entitled  to\t the
\nrelief\t from  the  High  Court\t under\tArt.  226   of\t the
\nConstitution and accordingly are not entitled to any  relief
\nin  this Court.\t Since the respondents have not relied\tupon
\nthis  ground  in  the statement of their  case\twe  are\t not
\nprepared to consider it.  There may be more than one  answer
\nto  the\t point\turged  by  the\trespondents  and  had\tthey
\nspecifically  raised  it  in their statement  of  case,\t the
\nappellants  would  have\t been  in  a  position\tto  give  an
\nappropriate answer.\n<\/p>\n
Accordingly  we\t allow the appeal with costs and  quash\t the
\norders of the High Court as well as of the Deputy  Custodian
\nGeneral.\n<\/p>\n
There  is  one more matter to which we must  refer.   It  is
\nthis.  During the hearing of the appeal learned counsel\t for
\nthe  appellant\tbrought to our notice the fact that  on\t the
\nrecords\t of  the  proceedings before  the  Deputy  Custodian
\nGeneral there was a slip of paper from which it would appear
\nthat  Deputy  Custodian General had been approached  by\t the
\nthen Speaker of the Punjab Assembly apparently on behalf  of
\nthe respondents.  We, therefore, asked for a report from the
\nHigh Court.  That report has come and it exonerates both the
\nex-Deputy  Custodian General as well as the ex-Speaker.\t  We
\nare not satisfied with the report.  However, considering the
\nfact  that  the matter has become quite stale  and  we\thave
\nallowed\t the appeal we do not propose to examine the  matter
\nfurther.\n<\/p>\n
Appeal allowed.\n<\/p>\n
\t\t\t    747<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Joginder Singh And Others vs The Deputy Custodian General Of … on 4 May, 1961 Equivalent citations: 1967 AIR 145, 1962 SCR (2) 738 Author: M R. Bench: Mudholkar, J.R. PETITIONER: JOGINDER SINGH AND OTHERS Vs. RESPONDENT: THE DEPUTY CUSTODIAN GENERAL OF EVACUEE PROPERTY DATE OF JUDGMENT: 04\/05\/1961 BENCH: MUDHOLKAR, J.R. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-190733","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJoginder Singh And Others vs The Deputy Custodian General Of ... on 4 May, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/joginder-singh-and-others-vs-the-deputy-custodian-general-of-on-4-may-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Joginder Singh And Others vs The Deputy Custodian General Of ... on 4 May, 1961 - 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