Bakru and Others vs Badaruddin

Jaswant Singh, J.—The short question that has been referred for decision to the Full Bench by a Division Bench of this Court in Civil

Miscellaneous Appeals Nos. 8 of 1965 and 86 of 1966 is whether an appeal lies to the High Court from an order of the Custodian- General

passed by him in revision against an order made by the Custodian, an Additional Custodian or an authorised Deputy Custodian u/s 8, Section 14

or Section 25 of the Evacuees' (Administration of Property) Act, 2006, hereinafter referred to as 'the Act'.

At the hearing of the reference, the learned Counsel for the Appellants have urged that a comparison of Clause (c) with Clauses (a) and (b) of

Sub-section (1) of Section 30 of the Act would show that under Clause (c) it is not necessary for an appeal to lie to the High Court that the order

appealed against should have been passed by the Custodian-General in exercise of his appellate powers. They submit that the qualifications

attached to the orders by Clauses (a) and (b) being absent in Clause (c) of Section 30(1) of the Act, the High Court's jurisdiction to entertain

appeals against the orders passed by the Custodian-General in revision is not barred.

They have further contended that the only restriction against an appeal to the High Court: from the order of the Custodian-General is that

contained in the proviso to Clause (c) which lays down that no appeal shall lie to the High Court against concurrent finding of the Custodian, and

the Custodian-General.

The learned Counsel have further urged that the area of jurisdiction exercised by the High Court in appeal and revision is the same, and a person

cannot oust the jurisdiction of the High Court by filing a revision instead of an appeal before the Custodian-General. They have strenuously argued

that such a construction should be put on Clause (c) of Section 30(1) of the Act as would suppress the mischief and advance the remedy.

Mr. Malik, on the other hand, has submitted that the use of the word ""the"" in Clause (c) of Sub-section (1) of Section 30 of the Act is very

significant. He submits that the word ""the"" particularises the order passed by the Custodian-General and refers only to the order passed by him on

the appellate side and not on the revisional side. According to Mr. Malik, it is only the appellate order made by the Custodian-General that is

made appealable to the High Court.

We have heard the learned Counsel for the parties at length and have given our anxious consideration to the point involved in this reference. For

the purpose of this reference we consider it unnecessary to set out the facts of the aforementioned appeals.

To appreciate the question that has been referred to us and to give a satisfactory answer thereto, it would be necessary to consider the scope of

Section 30 of the Act which reads as under:

Any person aggrieved by an order made u/s 8, Section 14 or Section 25 may prefer an appeal-

(a) to the Custodian, where the original order has been passed by a Deputy or an Assistant Custodian;

(b) to (the Custodian-General) where the original (or appellate) order has been-passed by the Custodian, an additional Custodian, or an

authorised Deputy Custodian;

(c) to the High Court against the order of the Custodian-General:

Provided that no appeal shall lie to the High Court against concurrent finding of the Custodian and the Custodian-General.

The appeal shall be presented in such manner and within such time as may be prescribed.

The Custodian to whom the appeal is preferred under Clause (a) of Sub-section (1) may dispose of it, himself or may make it over for disposal

to an Additional Custodian or to a Deputy Custodian authorised by the Custodian in writing in this behalf (in this section referred to as 'the

authorised Deputy Custodian):

Provided that no appeal from an order of a Deputy Custodian shall be made over for disposal to the authorised Deputy Custodian.

The (Custodian-General), Custodian, Additional Custodian or authorised Custodian 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 under this Act which is pending before or has been disposed of by an officer

subordinate to him for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding and may pass such

order in relation thereto as he thinks fit. Provided that the (Custodian-General), the Additional Custodian or the authorised Deputy Custodian shall

not, under this Sub-section, pass an order revising or modifying any order affecting any person without giving such person (a reasonable)

opportunity of being heard:

Provided further that if one of the officers aforesaid takes action under this subsection, it shall not be competent for any other officer to do so.

The (Custodian-General), Custodian, Additional Custodian or authorised Deputy Custodian but not a Deputy or an Assistant Custodian may,

after giving notice to the parties concerned, review his own order.

Subject to the foregoing provisions of this section, any order made by the (Custodian-General), Custodian, Additional Custodian, authorised

Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or

revision or in any original suit, application or execution proceeding.

A comparative study of Clauses (b) and (c) of Sub-section (1) of Section 30 of the Act would show that whereas Clause (b) allows an appeal

only from the ""original' or ""appellate' order passed by the Custodian, an Additional Custodian or an authorised Deputy Custodian, no such

restriction is imposed by Clause (c) which is couched in very wide terms. The intention of the Legislature obviously was to confer on the High

Court the power to entertain and hear appeals from all orders passed by the Custodian-General, whether on his appellate or |revisional side. It

would be pertinent in this connection to observe that the area of jurisdiction exercised by the Custodian-General in revision is very wide and is for

all practical purposes the same as the area of appellate jurisdiction. In Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi and Others, , their

Lordships of the Supreme Court who had occasion to examine the scope of Section 27 of the Administration of Evacuee Property Act which is

pari materia with Section 30 of our Act, observed as follows:

It is next contended that the revisional power cannot be exercised when there was an appeal provided but no appeal was filed, that it was open to

the Assistant Custodian who appeared before the Custodian-General in support of the notice for revision or to the allottees of the property in

whose interest the revisional order appears to have been passed, to file an appeal under the Act as persons aggrieved.

Section 27, however, is very wide in its terms and it cannot be construed as being subject to any such limitations. Nor can the scope of revisional

powers be confined only to matters of jurisdiction or illegality as is contended because u/s 27 the Custodian-General can exercise revisional

powers for the purpose of satisfying himself as to the legality or propriety of any order of the Custodian.

Again in Badrul Sharma v. Custodian of Evacuee Property AIR 1957 Madh Pra 32, it has been held that the revisional powers of the Custodian-

General are very wise and for all practical purposes indistinguishable from his appellate powers. From the aforesaid authorities, it is clear that the

Custodian-General exercises unfettered powers while hearing a revision and can pass any order that he may deem to be proper and warranted by

the facts and circumstances of a case. We are, therefore, unable to accede to the contention of Mr. Malik that an appeal, from an order passed by

the Custodian-General in revision against an order made by the Custodian, an Additional Custodian or an authorised Deputy Custodian u/s 8,

Section 14 or Section 25; of the Act, is not maintainable.

The contention of Mr. Malik with, respect to the use of the word ""the"" occurring in Clause (c) of Section 30 also appears to us to be

unsustainable. As Clause (c) is couched in words of wide amplitude and the Legislature has not linaited the right of appeal to the High Court"" from

an order of the Custodian-General by providing that an appeal would lie only against appellate orders of the Custodian-General and as the area of

two jurisdictions, appeal and revision, is indistinguishable and in fact co-extensive, we think that the use of the word ""the"" should not deter us from

holding that the jurisdiction of the High Court to entertain an appeal against an order of the Custodian-General is comprehensive so as to include

within its sweep the order passed by the Custodian-General in exercise of his appellate as well as revisional powers. Any other construction, in our

opinion, would lead to absurd results and leave the door open to any litigant to oust the jurisdiction of the High Court by styling his remedy before

the Custodian-General as a revision instead of an appeal. The use of the word ""the"" instead of the word ""an"" cannot, therefore, alter the

construction that is to be put on Clause (c) of Section 30 of the Act. It would be advantageous in this Dictionary and Concise ""Encyclopaedia"" has

observed as follows:

Grammatical niceties should not be resorted to without necessity.

Reference in this connection may also be made to another authority reported in Mt. Mewa Kunwari Vs. Bourey and Another, , where it was held

that the, rules of grammar may be departed from and construction in conformity with the main object and intention of the statute may be put.

The legislative history of the law relating to evacuee property also seems to lend support to our opinion. We have had so far two principal Acts

relating to this subject in our State, the first being the Jammu and Kashmir Evacuees' (Administration of Property) Act, 2005 (Act No. 10 of 2005)

and the second being the Jammu and Kashmir Evacuees' (Administration of Property) Act, 2005 (Act No. 6 of 2006) which repealed the earlier

Act of 2005. Section 7 of the Act No. 10 of 2005 conferred only a limited right of appeal. It entitled only a person aggrieved by an original order

of an Assistant or Deputy Custodian of an evacuee property passed u/s 6 of the Act (i.e., an order passed on an application seeking confirmation

of a sale, mortgage, pledge, lease, or other transfer of any interest or right in or over any property made by an evacuee or an intending evacuee) to

go up in appeal within sixty days from the date of the order to the Custodian of Evacuee Property. Section 30 of the latter Act as originally enacted

and as it stood before the 1st of Phagan 2007, (Bikrami) ran as under:

Appeal, review or revision: 30. Any person aggrieved by an order made u/s 8, Section 14, or Section 25 may prefer an appeal-

(a) to the Custodian where the original order has been passed by a Deputy or an Assistant Custodian;

(b) to the High Court where the original order has been passed by the Custodian, an Additional Custodian or an authorised Deputy Custodian.

The appeal shall be presented in such manner and within such time as may be prescribed.

The Custodian to whom the appeal is preferred under Clause (a) of Sub-section (1) may dispose of it himself or may make it over for disposal

to an Additional Custodian or to a Deputy Custodian authorised by the Custodian in writing in this behalf (in this section referred to as the

authorised Deputy Custodian): Provided that no appeal from an order of a Deputy Custodian snail be made over for disposal to the authorised

Deputy Custodian.

The Custodian, Additional Custodian or authorised Deputy Custodian 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 under this Act, which is pending before or has been disposed of by an officer subordinate to

him for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding and may pass such order in

relation thereto as he thinks fit:

Provided that the Custodian, the Additional Custodian or the authorised Deputy Custodian shall not, under this Sub-section, pass an order revising

or modifying any order affecting any person without giving such person an opportunity of being heard:

Provided further that, if one of the officers aforesaid takes action under this subsection, it shall not be competent for any other officer to do so.

The Custodian, Additional Custodian or authorised Deputy Custodian but not a Deputy or an Assistant Custodian may, after giving notice to the

parties concerned, review his own order.

Subject to the foregoing provisions of this section, any order made by the Custodian, Additional Custodian, Deputy Custodian, or Assistant

Custodian, shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution

proceeding.

It will be noticed that Section 30 of the Act, as it stood before the 1st Phagan 2007, provided that any person aggrieved by an order made u/s 8

(i.e., an order made on a claim preferred by any person in respect of any right to or interest in any property which is notified u/s 6 as evacuee

property or in respect of which a demand regarding surrender of possession is made by the Custodian), Section 14 an order made on an

application by an evacuee or an heir of an evacuee for restoration of an evacuee property) or Section 25 (i.e., an order made on an application

seeking confirmation of the Custodian to a transfer of a right or interest in any evacuee property by an evacuee or any person on his behalf) could

prefer an appeal (a) to the Custodian when the original order was made by a Deputy or an Assistant Custodian, and (b) to the High Court when

the original order was passed by the Custodian, an Additional Custodian or an authorised Deputy Custodian. Both under Act 10 of 2005 and Act

6 of 2006, as it stood before 1st Phagan 2007, the Custodian-General did not figure in the heirarchy of officers which were to be appointed by the

Government for the performance of the duties under the Act. It was only by the Amending Act No. 23 of 2007, that a new functionary by the

name of the Custodian-General was created for the first time in our State and Section 30 of the principal Act 6 of 2006 was substituted by a new

section which has been reproduced at the beginning of this opinion. It is manifest that whereas u/s 30, as it originally stood, the right of appeal to

the High Court was limited to the original order made u/s 8, Section 14 or Section 25 by the Custodian, Additional Custodian or authorised

Deputy Custodian, by Section 30(1)(c) as amended by the amending Act 23 of 2007, not only wide powers of appeal and revision were

conferred on the Custodian but trammels on the appellate jurisdiction of the High Court were removed to a large extent and any order passed by

the Custodian-General in appeal or revision from the order made by the Custodian, an Additional Custodian or an authorised Deputy Custodian

u/s 8, Section 14 or Section 25 of the Act, was made amenable to the appellate jurisdiction of the High Court with one condition only that the

order of the Custodian-General should not have affirmed the findings of the Custodian.

We are, therefore, clearly of the opinion that on a true interpretation of Section 30 of the Act, an appeal from an order of the kind aforesaid

passed by the Custodian-General on revisional side is maintainable and would lie to the High Court provided the findings of the Custodian and the

Custodian-General are not concurrent.

The reference is answered accordingly.

The files shall go back to the Bench concerned for decision of the appeals on merits.

S.M. Fazl Ali, C.J.

I agree.

R.N. Gurtu, J.

I agree.