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Judgment
Teja Singh, C.J.—This order will dispose of the two petitions, Civil Miscellaneous No. 1 of 1951 (Kartar Singh v. The Custodian) and Civil Miscellaneous No. 2 of 1951 (Kartar Singh v. The Custodian).
Both the petitions are made by Kartar Singh and facts giving rise to them are as follows: The Assistant Custodian of Muslim Evacuee Property by his order dated 6-1-1948 allotted shop No. 39 situate in ward No. 4 of Patiala City to one Hira Singh on the ground that he had been occupying it as a tenant for long. On 1-10-1949 Kartar Singh applied to the Assistant Custodian for setting aside Hira Singh''s allotment and praying that the shop be allotted to him. He challenged the correctness of the fact that Hira Singh was an old tenant of the shop and contended that he being a refugee had a better right to the shop. The Assistant Custodian rejected Kartar Singh''s application. Against this order of the Assistant Custodian Kartar Singh preferred an appeal to the Custodian who had a fresh inquiry made into the matter by the Deputy Custodian. The report of the Deputy Custodian was against Hira Singh. On this the Custodian accepted Kartar Singh''s appeal by his order dated 27-2-1950 and ordered Hira Singh to be evicted from the shop and the same to be given to Kartar Singh. In execution of this order, the possession of the shop was taken from Hira Singh and was given to Kartar Singh on 11-4-1950. Hira Singh made a representation to the Minister of Rehabilitation against the Custodian''s order. The Minister forwarded the representation to the Custodian with the direction that he should hold further inquiry into the allegations and at the same time ordered that Hira Singh''s possession should not be disturbed. In compliance with this order the Custodian forwarded the papers to the Deputy Custodian (Judicial) to hold the Inquiry and at the same time started proceedings for taking back the possession of the shop from Kartar Singh with a view to restoring the same to Hira Singh, while those proceedings were still pending Kartar Singh made a petition to this Court (Civil Miscellaneous No. 18 of 1950) for issue of an order to the Custodian restraining him from disturbing his possession. This petition was dismissed by our order dated 20th July, 1950. On 14-12-1950 the Custodian reviewed the previous order dated 27-2-1950, held that Hira Singh was entitled to retain the possession of the shop and directed that the same be restored to him. That order of his has given rise to the two petitions. The first petition is under Cl. 60 of Ordinance X of 2005 and under Art. 226 of the Constitution of India and it is prayed therein that writs of certiorari and mandamus be issued against the respondent quashing his illegal order and prohibiting him from carrying them into effect. The second petition is under Art. 227 of the Constitution of India for setting aside the Custodian''s order of 14-12-1950. Hira Singh has been made a party to both the petitions.
Two points were urged on behalf of the petitioner in the first petition: (i) that the order of 27-2-1950 having been made by S. Gobindar Singh who was then the Custodian of Muslim Evacuee Property could not be set aside or modified on review by Sodhi Surjit Singh who was his successor in office, that is to say, the order of 14-12-1950 whereby Sodhi Surjit Singh reviewed the order of 27-2-1950 was made without jurisdiction, and (ii) that the proceedings relating to the review were vitiated by an illegality and material irregularity inasmuch as Hira Singh was allowed to produce additional evidence which was opposed to the provisions of law. As regards the first, it is definitely laid down in S. 26 of the Central Ordinance (No. 27 of 1949) which was in force in this State, as it was in the rest of India, at the time the order of 27-2-1950 was made that the Custodian might after giving notice to the parties concerned review his own order. To the same effect is S. 26 (2) of the Administration of Evacuee Property Act (No. 31 of 1950) which replaced the said Ordinance on the 17th April, 1950. The petitioner''s counsel argued that though the word "Custodian" was used in sub-s. (2) of s. 26, what it really meant was the particular person who was holding the Custodian''s office. According to him if A who was at one time the Custodian had passed an order it was not within the power of his successor B to review that order. The learned counsel was, however, not able to quote any authority in support of this argument of his. The following are the exact words of the sub-section:
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.
The force of the words "his own" appearing at the end of the clause is that a Custodian can review the order made by the Custodian and not that made by an addition Custodian or Deputy Custodian, and the same is the case with additional Custodian and authorized Deputy Custodian; but so long as the officer who reviewed the order occupied the same office as was done by. the one who had made the order the fact that the officer who had originally made had been succeeded by some one else would not make any difference. Had the intention of the legislature been to confine the power of review to the officer who made the original order, there was nothing to prevent them from saying so clearly by using some such sort of words as were used in O. 47, R. 2, C.P. Code. In addition it may be mentioned that review proceedings were In this case started by Capt. Gobindar Singh himself who was responsible for the order of 27-2-1950 after Hira Singh''s representation to the Minister had been forwarded to him. The order of the Minister on the representation is dated 11-4-1950. It appears that the papers were received by S. Gobindar Singh on the same day and there and then he sent them to the Deputy Custodian (Judicial) with the direction that he should start the inquiry. It is true that he did not say in so many words that the proceedings were by way of review, but there can be no doubt that this must have been his intention, otherwise there would have been no point in re-opening the matter and in conducting an inquiry afresh into Hira Singh''s allegations.
So far as the second point is concerned, counsel drew our attention to R. 31, sub-r. (9) of the rules framed by the Government under S. 56 of the Administration of Evacuee Property Act of 1950 and notified on 28th September, 1950. Rule 31 relates to appeals, review and revisions and lays down the procedure in respect thereof. Sub-r. (9) is to the effect that any authority hearing any appeal or an application for revision may admit additional evidence before its final disposal or may remand the case for admission of additional evidence and report or for a fresh decision as such authority may deem fit. The position taken up by the counsel was that according to sub-r. (9) of R. 31 additional evidence could be admitted in an appeal or in an application for revision and since no such provision was made regarding a review petition the inference is that it was not competent for an authority hearing a review petition to take additional evidence. In the first place, it may be mentioned that these rules did not exist at the time review proceedings were started by Captain Gobindar Singh on 11-4-1950. In fact even the Act under which the rules were made received the assent of the President and was published in the Gazette of India many days after the fresh inquiry was ordered. Secondly,sub-R. (9) of R. 30 is only a permissive provision and it would not be correct to infer that by implication it prohibited taking of additional evidence in review proceedings. Thirdly, as I read sub-s. (2) of S. 26 of the Ordinance (No. 27 of 1949) and the corresponding provisions of Act 31 of 1950 they appear to me to confer very wide powers of review on the Custodian, additional Custodian and the authorized Deputy Custodian and to hold that they had no power to take additional evidence in review proceedings even if it be very vital to the facts of the case, would amount to placing considerable limitations on their power.
Now, supposing for the sake of argument that the Custodian had no such power and that he erred in taking additional evidence. The question would arise whether it would nullify the Custodian''s final order of review and would justify an issue of writ by this Court quashing that order. On giving careful consideration to the matter, I have come to the conclusion that the answer to the question must be In the negative. As T have already held notwithstanding the fact that the original order had been made by the predecessor-in-office of the Custodian who reviewed it he had full powers of review. In addition, I have shown that the review proceedings were started by the very Custodian who had made the original order. Consequently, it cannot be said that the review proceedings were without Jurisdiction and this being the case the taking of additional evidence even if it was not legal could not vitiate the proceedings, nor can it be said that the final order of review was without Jurisdiction. This disposes of the first petition.
Now as regards the second petition. Clause (2) of Art. 227 reads as follows:
Every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
Clause (2) enumerates the things that the High Court may do without prejudice to the generality of the foregoing provisions, in respect of the Courts, while Cl. (3) empowers the High court to settle tables of fees to be allowed to the sheriffs etc. Clause (4) excepts Courts and tribunals constituted by or under any law relating to armed forces from the operation of the Article. The word "tribunal" is used only in Cl. (1) and Cl. (4). Three points, therefore, fall for determination in regard to this petition: (i) whether a Custodian can be regarded a tribunal for the purposes of the Article; whether power of superintendence given by the Article to the High Court; includes the power to set. aside or modify the order of a tribunal on merits; and (iii) whether this is a fit case in which such a power should be exercised. The Custodian''s counsel naturally joined issues with the petitioner''s counsel on all these points. I shall deal with them in the order given above.
The term ''tribunal'' is not defined in the Constitution In addition to Art. 227 another Article of the Constitution in which the term occurs is Art. 136 which gives the Supreme Court
power, in its discretion, to grant special leave to appeal from any judgment, decree, determination, sentence or order in any case or matter passed or made by any Court or tribunal in the territory of India.
Courts or tribunals constituted by or under any law relating to the armed forces are not amenable to the jurisdiction of the Supreme Court under this Article either. Evidently, the term ''tribunal'' is used in the same sense in both these articles, but what is its exact meaning is difficult to say as tar as I am aware no effort has so far been made to define it. Wharton in his well-known Law Lexicon gives the following meanings of the term; the seat of a Judge, a Court of Justice. The former is out of question here. In view of the fact that the Articles use the word ''tribunals'' as well as "Courts'', I do not think that even the latter meaning can be adopted. If tribunal means nothing more than a Court of Justice it is synonymous with Court and the words "and tribunals'''' that occur after the word Courts, both in Art. 227, Cl. (1) and Art. 138 would be redundant, but according to the well-known canons of construction the presumption is that no words used by a legislature in an enactment should be regarded as redundant and superfluous. According to Webster''s International Dictionary (Edition 2nd) a tribunal means a Court or forum of justice; a person or body of persons having authority to hear and decide disputes so as to bind the disputants. From this, it will be clear that tribunal is a general term and it includes a Court of justice, or in other words, every Court of Justice or a Court can be described as a tribunal, but every tribunal is not necessarily a Court. Since the legislature has used both the words together their intention appears to be that the tribunal should have a wider meaning than Court or Court of justice. Probably it would be permissible to think that it is used in the popular sense, meaning in the words of Webster, a person or body of persons having authority to hear and decide disputes so as to bind the disputants.
In Municipal Commissioner of the Budge Budge Municipality Vs. P.R. Mukherjee and Another, , it was held that an industrial tribunal constituted under the Industrial Disputes Act is a tribunal within the meaning of Art. 227. No arguments were given in support of this finding, but it would be clear from the perusal of the judgment of Harries C.J. that what weighed with him was that the tribunal has to decide disputes between the employees and the labors. The position of a Custodian is quite different from that of an industrial tribunal but the perusal of different provisions of the Administration of Evacuee Property Act of 1950 would snow that though very wide powers of executive nature have been vested in him he has also been given powers to adjudicate upon important matters involving rights of different persons. Section 45 of the Act lays down that when he is engaged in holding an inquiry under the Act, for purposes of the inquiry he has the same powers as are vested in a civil Court under the CPC when trying a suit in respect of enforcing the attendance of any person and examining him on oath and compelling the discovery and production of documents. The Act further lays down that the inquiry by the Custodian shall be deemed to be a judicial proceeding within the meaning of Ss. 193 and 228 of the Indian Penal Code and the Custodian shall be deemed to be a Court within the meaning of Ss. 480 and 4S2 of the Code of Criminal Procedure. From all this the opinion that I form is that apart from the administrative and executive function that the Custodian is to perform it is also a par of his duty to work as a tribunal in the sense mentioned above and accordingly in respect of what he does as a tribunal he is amenable to the jurisdiction of the High Court under Art. 227. In ''Autar Singh v. Custodian, Evacuees Property, Patiala'', CMA No. 573 of 1950 recently decided by us it has been held that though the Custodian does not constitute a Court, his functions are quasi-judicial.
As regards the second point, it is not denied that the power of superintendence over Courts and tribunals does involve power to interfere with their decisions in appropriate cases, but it is urged that it is quite different from the power that is possessed by an appellate Court and further, being an extraordinary power it should be exercised most sparingly. This contention is supported by the following observations made by Harries C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, :
Though this Court has a right to interfere with decisions of Courts and tribunals under its power of superintendence, it appears to me that that right must be exercised most sparingly and only in appropriate cases. The matter was considered by a bench of this Court in Manmatha Nath Biswas Vs. Emperor, . In that case over which Sir George Rankin C.J. presided held that S. 107 Government of India Act (which roughly corresponds to Art. 227 of the Constitution) does not vest the High Court with limitless power which may be exercised at the Court''s discretion to remove the hardship of particular decisions. The power of superintendence it confers is a power of a known and well recognised character and should be exercised on those judicial principles which give it its character. In general words, the High Court''s power of Superintendence is a power to keep subordinate Courts within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner.
Later on, the learned Chief Justice observed that:
The power of superintendence is not a power given to the Court to correct errors, otherwise it would be tantamount to a right to entertain appeals on law and fact and that the rights should be exercised only in cases where the Courts have clearly done something which they were not entitled to do, and that it must be used to keep the Courts below within the bounds prescribed by law for such Courts.
With these observations, I respectfully agree.
As regards the third point, the petitioner'' counsel has not been able to convince us mat this is one of the exceptional cases in which we should quash the Custodian''s order in exercise of our power or superintendence. Both the Deputy Custodian on whose report the Custodian acted and the Custodian himself went into the matter thoroughly and with care and came to the conclusion that Hira Singh was an old tenant of the shop. Some of the witnesses produced by Hira Singh were such whose statements could not be lightly disregarded. Kartar Singh who had been given a notice of these proceedings refused to produce any evidence in rebuttal. In the circumstances it cannot even be urged that the finding of the Custodian was not correct. The petitioner''s counsel argued that since Hira Singh was not a displaced person and belonged to Patiala, his lease stood automatically cancelled by virtue of the notification issued by the Custodian under S. 14 of Ordinance No. XIII of 2005, but he conveniently forgot that that Ordinance was later on superseded by Ordinance No. XVII of 2006 which promulgated on 31-7-1949. It may here be mentioned that Kartar Singh appeared on the scene for the first time on 1-10-1949, i.e., after Ordinance XVII of 2006 had taken place of Ordinance No. XIII of 2005. It may further be pointed out that Ordinance No. XVII of 2006 was repealed by the Central Ordinance No. XXVIII of 1949 and by virtue of R. 13 of the rules framed under the latter Ordinance the rights of old tenants were protected. Evidently, it was because of this that Hira Singh''s right to remain In occupation of the shop was recognized. This means that the Custodian''s order, apart from being supported by facts, was lawful. In the circumstances, I do not think it can be quashed by us under S. 227.
The result is that the petition must be dismissed, but there will be no order as to costs.
Passey, J.
I entirely agree.