Jagat Singh and Others vs The Custodian General and Others

K.V. Gopalakrishnan Nair, J.—The Petitioners ask for a writ of certiorari and also a writ of Mandamus. The facts leading up to this petition

are succinctly as follows:

One Devi Ditta was allotted certain lands in village Sunderpur Tehsil R.S. Pura. The Petitioners were allotted certain lands in some other village.

As they did not like the lands allotted to them, they approached the Custodian Jammu with the request that the lands allotted in Sunderpur village

to Devi Ditta be cancelled on the ground that he held proprietary lands in village Gulabgarh. The Custodian accordingly cancelled the allotment in

favour of Devi Ditta and gave the lands to the Petitioners. Devi Ditta went up in revision to the Dy. Custodian General Jammu against the

Custodian's order cancelling his allotment. The Petitioners were made parties to that revision.

The Dy. Custodian General dismissed the revision. Subsequently, Kalyan Singh, raspondent No. 2 preferred a revision to the Custodian General

on 8-10-58 challenging, the correctness and validity of the order of the Custodian allotting the lands in Sunderpur village to the Petitioners. This

revision was based, in the main, on Paragraph 9 of the Cabinet Order 578-C of 1954 which embodied certain rules relating to allotment of lands

to displaced persons. The Custodian General allowed the revision, thereby setting aside the allotment made by the Custodian in favour of the

Petitioners. An attempt to get this order reviewed by the Custodian General having failed, the Petitioners have come up with the present writ

petition asking the order of the Custodian General to be quashed by certiorari.

One of the main grounds urged on behalf of the Petitioners is that the Custodian General had no jurisdiction to entertain the revision when the

Deputy Custodian General, to whom the powers of revision had already been delegated by the Custodian General, had dismissed the revision filed

by Devi Ditta. This contention does not appear to me to be well-founded. First, the Custodian General did not entertain any revision against the

orders passed by the Deputy Custodian General. It cannot, therefore, be said that the Custodian General sought to exercise revisional jurisdiction

over an authority who had concurrent jurisdiction with him.

True, Devi Ditta approached the Deputy Custodian General and asked him to set aside the order of the Custodian cancelling his allotment. But

Kalyan Singh who preferred the revision before the Custodian General was not a party to those proceedings, nor was he a party to the

proceedings which culminated in the order of the Custodian cancelling the allotment of Devi Ditta. The truth of the matter is that the second

Respondent was taking an independent action to get rid of the order passed by the Custodian in this case. He was not trying to canvass the

correctness of the order passed by the Deputy Custodian General. The Custodian General who entertained the revision of the second Respondent

was, therefore, not seeking to sit in judgment over the orders passed by the Deputy Custodian General.

It is urged for the Petitioners that the order of the Deputy Custodian General dismissing the revision of Devi Ditta amounted in truth and

substance to his confirming the allotment in favour of the Petitioners. I am not satisfied this is a precise statement of the correct position. Devi Ditta

was concerned only with getting rid of the order by which his allotment was cancelled. Once the cancellation of his allotment was to stand, it was a

matter of no consequence to him as to whom the land he lost came to be allotted.

It may be that the consequence of refusing to set aside the order of cancellation passed against Devi Ditta was to keep the Petitioners in possession

of the land which had once been allotted to him (Devi Ditta). But this, is not the same as saying that Devi Ditta in any manner attacked or was

concerned to attack the allotment to the Petitioners as such. This attack was made really by the second Respondent before the Custodian General,

and the second Respondent was concerned only with the new allotment to the Petitioners who did not constitute ""camp displaced families"" within

the meaning of paragraph 9, of the Cabinet Order 578-C of 1954. This position will be made clear when paragraph 9 aforesaid is notified. This

paragraph enjoins that ""such camp displaced families as have settled on units of land less in size than that prescribed in para 2 shall be allotted such

land as may be available in the Patwar circles of the land in which they are settled at the moment and no further allotment shall be made.

It is common ground that the second Respondent represents a Camp displaced family. He purported to prefer the revision before the Custodian

General not only for himself but also for other Camp displaced families who were ""settled on units of land less in size than that prescribed in

paragraph 2"" in Sunderpur village. If these Camp displaced families could not be given lands in the Patwar circles in which they had already been

settled, they could not -- in view of para 9 already adverted to -- get further allotment of land to supply their deficiency in an outside area. It

follows that the camp displaced families in Sunderpur village were, therefore, vitally interested in seeing that the land which were available in that

village were utilized for adding to their units of land so as to enable them to have the full quota to which they were entitled under the rules. If they

did not get land in the Sunderpur village itself, the position would have been that they would not be entitled to get any additional lands anywhere

else.

In view of this limitation prescribed by para 9 of the Cabinet Order, the second Respondent had a real grievance that the lands, available to be

allotted to him and others similarly situated were being allotted to the Petitioners who are admittedly not Camp displaced persons. He, therefore,

moved the Custodian General to quash the order of allotment made in favour or the Petitioners. He cannot in the circumstances, be said to have

moved the Custodian General to set aside the orders passed by the Deputy Custodian General in the revision preferred to him by Devi Ditta.

Under, Section 30-A, of the Evacuees Property Administration Act, the Custodian General is undoubtedly entitled to revise the orders passed

by the Custodian. In exercising this power, the Custodian General does not appear to have exceeded his jurisdiction; nor can he be said to have

acted illegally in the exercise of that jurisdiction. Notice was duly given to the Petitioners by the Custodian General and they were heard before the

orders were passed by him. Neither the procedure prescribed in Section 30-A nor the rules of natural justice have been violated by the Custodian

General. Nor can it be said that there is any error apparent on the face of his order. Section 30-A authorises the Custodian General at any time

either on his own motion or on an application made to him in that behalf to call for the record of any proceeding in which the Custodian has passed

an order for the purpose of satisfying himself as to the legality or propriety of such order and to pass any order in relation thereto as he thinks fit.

It will be seen that this Section is very widely drawn, conferring upon the Custodian General what may be called plenary powers of revision. Even

if we take it that the second Respondent could not file a revision on his own behalf or on behalf of the other camp displaced families nothing could

prevent the Custodian General from exercising his powers u/s 30-A on the information furnished to him by the second Respondent. The express

power granted to the Custodian General under the Section to act on his own motion would unquestionably embrace the power to take action on

the information which he may obtain from any source.

It has however, been pressed upon me by the Petitioners' learned Counsel that the Custodian General, after having delegated his powers of

revision to the Deputy Custodian General, was not competent to exercise those powers. In other words, the argument is that once the Custodian

General had delegated powers of revision to the Deputy Custodian General, he could not himself exercise those powers. This contention pre-

supposes that a delegation of powers means a complete parting with those powers, that is to say a permanent denudation of the powers. I do not

think this contention represents the true position of law. I would first refer to the language of Sub-section (2) of Section 38 of the Evacuees'

Property Administration Act under which delegation to the Deputy Custodian General is admittedly made. It reads:

Subject to the provisions of this Act and of the rules and orders made thereunder, the Custodian General may delegate all or any of his powers

under this Act to a Deputy Custodian General.

I think the words 'subject to the provisions of this Act' occurring in Section 38(2) admit of the possibility of the Custodian General exercising in a

given case powers delegated by him to the Deputy Custodian General who has not exercised those powers in the particular case. This

interpretation seems to be reasonable in view of the scheme of the Act and the hierarchy of authorities set up thereunder to perform quasi-judicial

functions like hearing appeals and revisions. While Section 38(2) enables the Custodian General as a matter of convenience to authorise the

Deputy Custodian General to exercise certain powers which he could not otherwise exercise, it does not seem to contemplate the Custodian

General completely depriving himself of the powers which he seeks to delegate to the Deputy Custodian General. If it were otherwise, we would

have to hold that the Act contemplates the Custodian General completely surrendering all his statutory powers and quasi-judicial functions by a

process of delegation. Such an interpretation would make the Custodian General, who is the highest authority set up under the Act, wholly non-

existent for the purposes of the Act. Such a drastic result does not appear to me to be intended by Section 38(2) as a matter of fair and reasonable

interpretation.

It is also well-settled on authority that a delegation of powers does not amount to a denudation of powers of the delegator. The decision in Huth

v. Clarke (1890) 25 QBD 391, is apposite in this context. There a duly appointed executive committee of a county council made a valid order

delegating to a local sub-committee its powers under the Rabies Order, 1887. By virtue of the delegation, the local sub-committee was

empowered to pass orders as to the muzzling of dogs and keeping them under control. The sub-committee did not however, pass any order or

regulation under the Rabies Order relating to the muzzling or the keeping under control of dogs. While the delegation was subsisting, and without its

being revoked the executive committee of the county council itself passed certain regulations relating to the muzzling and keeping under control of

dogs.

Huth, the Appellant, was charged with permitting his dog to be at large without being effectively muzzled or kept under control, in contravention of

the order passed by the executive committee under the Rabies Order, 1887, and was convicted. On appeal before the Queen's Bench Division, he

admitted that his dog was neither muzzled or kept under proper control by him; but he contended that the regulation of the executive committee

relating to the muzzling and keeping under control of dogs was bad on the ground that such order could be made only by the sub-committee to

which it had delegated its powers. Dealing with this contention, Lord Coleridge C.J., said at p. 394:

It is suggested, however, that, because there was another authority which might (had it chosen) have violated good sense by making an inconsistent

order, the executive committee had no power to make the regulation in question. But delegation does not imply a denudation of power and

authority; the 6th schedule of the Act provides that the delegation may be revoked or altered and the powers resumed by the executive committee.

The word 'delegation' implies that powers are committed to another person or body which are as a rule always subject to resumption by the power

delegating, and many examples of this might be give. Unless, therefore, it is controlled by statute, the delegating power can at any time resume its

authority. Here the executive committee has exercised the power which the sub-committee might have exercised --but did not --and no question of

conflict of jurisdiction arises.

Wills, J., at p. 395 observed:

Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the

conferring of an authority to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afforded

by the maxim, delegatus non, potest delegare, as to the meaning of which it is significant that it is dealt with in Broom's Legal Maxims under the law

of contracts: it is never used by legal writers, so far as I am aware, as, implying that the delegating person parts with his power in such a manner as

to denude himself of his rights. If it is correct to use the word in the way in which it is used in the maxim, as generally understood, the word

delegate"" means little more than an agent. The notion, therefore, that the use of the word ""delegate"" implies that the executive committee parted

with their own authority is misconceived.

This decision is the leading authority on the scope and effect of delegation of statutory powers and has been cited with approval in Gordon,

Dadds and Co. v. Morris (1945) 2 All ER 616. and also in Manton v. Brighton Corporation (1951) 2 All ER 101.

A Division Bench of the Madras High Court in P. Ramiah v. Chief Secretary AIR 1950 Mad 100 followed the dicta in (1890) 25 QBD 391

(supra).

I, therefore, think that the proposition that by delegating his revisional powers to the Dy. Custodian General the Custodian General did not

denude himself of those powers, is well-founded on principle as well as authority.

The learned Counsel for the Petitioners next contended that the revision preferred by the second Respondent to the Custodian General was

barred by limitation and that consequently the Custodian General was not competent to entertain it. This ground was not taken by the Petitioners

before the Custodian General, and it cannot be permitted to be urged by this writ proceeding, more especially so when the question of limitation,

as in the present case, is a mixed question of law and fact. But as this point has been urged with considerable vigour and insistence I should

consider it at some length. The period of limitation for a revision is prescribed by Sub-rule (5) of Rule 27 of the Rules under the Jammu and

Kashmir State Evacuee's (Administration of Property) Act. The relevant portion of it reads:

Any petition for revision when made to the Deputy Custodian General shall ordinarily be filed within thirty days of the order sought to be revised,

while a petition for revision when made to the Custodian General shall ordinarily be made within sixty days of such date

The order of the Custodian, Jammu in the present case was passed on 8-10-58 and the revision before the Custodian General was presented on

17-2-59 much after the expiry of a period of 60 days from the date of the Custodian's order. But it has to be noticed that Sub-rule (5) of Rule 27

says that a revision shall ordinarily be made within sixty days. The use of the word 'ordinarily' seems to suggest that it is not an invariable or

inflexible rule. Sub-rule (7) of Rule 27 makes the provisions of Section 5 of the Limitation Act applicable in computing the period of limitation

prescribed by Sub-rule (5). If the point of limitation had been raised before the Custodian General, it would have been possible for the Petitioner

before him to make an application u/s 5 of the Limitation Act and the Custodian General might perhaps have condoned the delay.

By their conduct the Petitioner precluded the possibility of any such step being taken or order toeing passed in the proceeding in revision before

the Custodian General. This is not all. Sub-rule (7) of Rule 27 also makes Sections 4 and 12 of the Limitation Act applicable in computing the

period of limitation in respect of revisions to the Custodian General. The applicability of Sections 4 and 12 depends upon facts and in the absence

of those facts, it is not possible to say whether the revision which the second Respondent preferred to the Custodian General was within time or

not. Even in these writ proceedings, the Petitioners have not indicated what period of time falls to be excluded in the present case under Sections 4

and 12 of the Limitation Act.

There is also another aspect. The second Respondent who preferred the revision was not a party to the proceedings in which the order sought

to be revised was passed by the Custodian. It is, therefore, doubtful whether the period of limitation prescribed by Rule 27(5) would apply to him.

The reasonable interpretation of that sub-rule seems to me to be that it applies only to parties to the proceedings in which the order sought to be

revised was passed. Even if it be assumed that a stranger to the proceedings will also fall within the mischief of Rule 27(5), it will be unreasonable

to hold that limitation should apply to him from the date of the order irrespective of when he came to know of that order. The true interpretation, to

my mind, is that the period of limitation can be computed only from the date when a person applying in revision had knowledge or reasonable

possibility of knowledge of the order sought to be revised.

In Swaminathan alias Chidambaram Pillai Vs. Lakshmanan Chettiar and Another, , a Division Bench of the Madras High Court was dealing

with the application to Registrars u/s 73(1) of the Registration Act 16 of 1908. The learned Judges pointed out the distinctions between an order

made of which the party affected has notice and an order of which the party concerned is wholly ignorant. It was contended in that case by the

learned Advocate-General that the making of the order meant nothing more than what the words literally indicated. Venkatasubba Rao, J. in

repelling this contention said:

The very word 'order' by necessary implication means in law that the party affected has had reasonable notice of it. Not a single case in India has

been brought to our notice which takes a different view. On the contrary, every decision on the point seems to recognise the principle I have

stated.

In Muthiah Chettiar v. Commr. of Income Tax, Madras AIR 1951 Mad 204 Section 33-A (2) of the Income Tax Act fell to be interpreted.

After referring to the decisions in Swaminathan alias Chidambaram Pillai Vs. Lakshmanan Chettiar and Another, , Rajamannar C.J., observed:

We consider that the rule laid down by the learned Judges in the above two decisions, is based upon a salutary and just principle, namely, that if a

person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date

earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be

presumed to have had knowledge of the order.

The principle enunciated in the above decisions must, in my opinion, apply to the interpretation of Sub-rule (5) of Rule 27 of the Rules under

the Jammu and Kashmir State Evacuees' (Administration of Property) Act. The Petitioners have not even faintly suggested nor is there anything on

the record to show that if the date of the second Respondent's knowledge of the Custodian's order is taken to be the starting point of limitation, the

revision preferred by him will be time barred under Rule 27(5). The entire question of the limitation could be steered clear of. If the proceedings

before the Custodian General are regarded to have been taken by him suo motu u/s 30-A. As I have already indicated, it will be only reasonable

to consider that in the present case the Custodian General took action suo motu on the information furnished to him by the second Respondent.

Apart from anything else, this view of the matter would render the point of limitation unavailable to the Petitioners.

It is lastly contended by the Petitioners that the order passed by the Custodian General in revision amounts to an order of allotment in favour of

Respondent 2 and that he has no power to do so. It is pointed but that only the Custodian could make the allotment and not the Custodian

General. This argument is based on a mis-reading of the order of the Custodian General. He has not made an allotment to any person by his order;

he has only stated that according to para 9 of Cabinet Order 578-C of 1954 the deficiency in the allotments to camp displaced persons must first

be supplied from out of the lands available in the concerned. Patwar circle and that the question of allotment to a non-camp displaced person

should be taken up only thereafter.

This is not to allot land to anybody, but only to lay down the correct principle to be adopted in making the allotments and give direction to the

subordinate authority to act accordingly. The wide powers of revision conferred by Section 30-A on the Custodian General to make such ""order

as he thinks fit"" also militate against the argument advanced on behalf of the Petitioners.

I may also notice that the Custodian General has provided expressly or by necessary implication in his order that land surplus to what is

required to supply the deficiency of camp displaced families in the area may be allotted to the Petitioners or that if the land which was originally

allotted to the Petitioners is still available, it may be allotted to them, and that if neither of these is possible, the Petitioners may be considered for

fresh allotment of land. I consider that this order of the Custodian General is quite just. If I am to consider the interest of justice in the present case,

I am decidedly of the view that it will be served by maintaining the order of the Custodian General and that by quashing that order it would only be

denying justice to the camp displaced families and conferring on the Petitioners an unmerited advantage at the expense of the persons who are

legitimately entitled to be provided out of the lands in question under paragraph 9 of Cabinet Order 578-C of 1954. Considerations of justice,

therefore, demand that the impugned orders should not be quashed.

It follows from the foregoing that a writ of certiorari cannot be issued in the present case. A writ of Mandamus is claimed only as more or less

consequential on the issue of a writ of certiorari. As the main relief cannot be granted, there can be no question of granting an ancillary and

consequential relief. I am thus unable to see any ground to support the prayer for a writ of Mandamus.

The result is that the petition fails and is dismissed, but without making any order as to costs in the somewhat peculiar circumstances of this

case.