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Judgment
Mehar Singh, J.—This is a petition under Article 226 of the Constitution by Kehar Singh against the Assistant Commissioner, Rehabilitation (Deputy Custodian), respondent 1, and the Director Rural Rehabilitation (Additional Custodian), respondent 2.
The petitioner and one Wazir Singh, who are settled in village Dhanasu, are refugees from what is now Pakistan. There were two houses in the village No. 10 and 22 and the question of their allotment was confined between these two. The Assistant Custodian allotted house No. 10 to the petitioner on 13-12-1952, on the ground that he is of the two the biggest allottee of agricultural land. Wazir Singh went in appeal to the Deputy Custodian, respondent 1, who found that he was the biggest allottee of the two and so reversed the order of the Assistant Custodian, the result of which was that house No. 10 was allotted to Wazir Singh.
The order of the Deputy Custodian is dated 18-9-1953. Against that order the petitioner went in revision before the Additional Custodian, respondent 2, who also came to the conclusion that Wazir Singh is of the two the biggest allottee and therefore by his order, dated 16-7-1954, dismissed the revision petition.
In this petition the petitioner prays that the order of the Deputy Custodian be quashed and a writ of prohibition be issued against the respondents directing them not to evict him from house No. 10. The grounds urged by the petitioner are (a) that the Deputy Custodian passed the order against him without notice to him, and (b) that neither the Deputy Custodian nor the Additional Custodian had jurisdiction to pass the orders as they did.
In his affidavit the Additional Custodian affirms that due notice was served upon the petitioner by the Deputy Custodian and in spite of service he did not appear. So the Deputy Custodian proceeded ex parte against him. He further affirms tint the question of want of jurisdiction was never raised by the petitioner either before him or before the Deputy Custodian. It is stated in the affidavit that of the two Wazir Singh is the biggest allottee as compared to the petitioner.
In the orders of the Deputy Custodian and the Additional Custodian it is clearly stated that the petitioner had been duly served and upon his non-appearance ex parte proceedings were taken against him before the Deputy Custodian. This is supported by the affidavit of the Assistant Custodian. I see no reason not to accept the affidavit of the Additional Custodian or to go behind the finding of the respondents that Use petitioner was duly served and in spite of service he did not choose to appear before the Deputy Custodian. The first ground urged on behalf of the petitioner is unfounded.
The only other ground urged against the orders of the respondents is that those orders are without jurisdiction. This ground was never taken before either of the respondents and it cannot be allowed to be raised for the first time in a petition under Art. 226.
It is conceded on both sides that the Deputy Custodian has neither appellate nor revisional powers to interfere with the orders of the Assistant Custodian. Obviously the order of the Deputy Custodian is without jurisdiction. If the matter stood there, the petitioner ought to succeed in obtaining writ quashing the order of the Deputy Custodian.
The Additional Custodian, however, under S. 26(1), Administration of Evacuee Property Act, 1950 (31 of 1950) has power to call for the record of any proceeding under the Act that has been disposed of by an officer subordinate to him-
for the purpose of satisfying himself as to the legality or propriety of any orders passed in the said proceeding, and may pass such order in relation thereto as he thinks fit.
So that the Additional Custodian could revise the order of the Assistant Custodian under these powers. The Learned Counsel for the petitioner contends that the Additional Custodian did not purport to exercise revisional powers under S. 26 (1) as he did not say in his order that the order of the Deputy Custodian is without jurisdiction and he is reversing the order of the Assistant Custodian in exercise of his revisional powers, but what he has done is that he has rejected the revision petition of the petitioner against the appellate order of the Deputy Custodian.
There is no particular form in which the Additional Custodian is to make an order while exercising he revisional powers. All that is to be seen is whether in substance he has exercised those powers under S. 26(1). Even if in his order he has not stated that the order of the Deputy Custodian is without jurisdiction and he himself is taking up the case under S. 26(1), still as he has exercised the powers under that section, so his order must be considered under the provisions of that section. Under S. 26(1) the proceeding may come before the Additional Custodian anyhow, whether called by himself or brought before him by a party.
Once the case is before him he has power to pass an order within, the scope of sub-s. (1) of S. 26. Thus the order of the Additional Custodian is an order under S. 26(1), and even if the appellate order of the Deputy Custodian is without jurisdiction, that does not make the order of the Additional Custodian without jurisdiction simply because when he was exercising the revisional powers under S. 26(1), he was doing so in consequence of a revision petition made by the petitioner against the appellate order of the Deputy Custodian. Therefore on this score the order of the Additional Custodian is not without jurisdiction.
The Learned Counsel for the petitioner then urges that the order of the Additional Custodian even considered under S. 26(1) is without jurisdiction because it amounts to cancellation of the allotment in favour of the petitioner and cancellation of an allotment can only be made according to the provisions of sub-rule (6) of R. 14 of the Administration of Evacuee Property (Central) Rules, 1950, and to the present case sub-rule (6) docs not apply. There is no doubt that the present case does not fall within the scope of that sub-rule.
But the argument proceeds on a misconception. That sub-rule envisages a valid and legal order of allotment and its subsequent cancellation. It is only in such circumstances that that sub-rule comes into play and must be complied with before allotment is cancelled. The Custodian, which term includes Additional Custodian, has power to cancel an allotment of evacuee property under S. 12 of Act 31 of 1950. Section 56(1)(i) of that Act provides, inter alia, for powers of the Central Government to make rules as regards the circumstances in which allotments may be cancelled. It is in exercise of this power that sub-rule (6) of R. 14 has been made by the Central Government.
That sub-rule, therefore, prescribes the circumstances in which a Custodian or an Additional Custodian has power under S. 12 to cancel an allotment, but it is obvious that that is when a valid and legal allotment is already in existence and is to be cancelled under S. 12. When that happens the cancellation can only take place in accordance with sub-rule (6) of R. 14 and not otherwise. The provisions of S. 12 and sub-rule (6) of R. 14 do not restrict the revisional powers of the Custodian or the Additional Custodian under S. 26(1). The provisions in section 26(1) are independent of those provisions and are in no way subject to those provisions.
The powers of the Custodian or the Additional Custodian under S. 12 are exercised in one set of circumstances and those under S. 26(1) in another set of circumstances. In the first case a valid and a legal allotment may be set aside but then subject to the rules, and in the second case in exercise of the revisional powers the legality and propriety of the order of a subordinate may be gone into and if the order is found illegal or not made with propriety, a legal and a proper order may be made, which order will then take the place of the original order.
In the second case the order made in revision will not be an order amounting to cancellation of allotment, but will be an order correcting the order of allotment. It would in fact be an original order of allotment. The revisional powers of the Custodian or Additional Custodian under S. 26(1) are exactly, word for word, the same as the revisional powers of the Custodian General under S. 27(1).
In - Hafiz Mohammad Yusuf Vs. The Custodian General, Evacuee Properties, New Delhi and Others, it has been held that under S. 27 the powers of the Custodian General are very wide and for all practical purposes are indistinguishable from those of an appellate authority under the Act. Upon the general principles that the order of a Court merges in that of an appellate authority, the order of the Assistant Custodian merges in the order of the Additional Custodian and that order in its turn merges in the order passed by the Custodian General.
The legal position with regard to an order of the Additional Custodian under S. 26(1) qua the order of the Assistant Custodian is exactly the same. So that the revisional powers of the Additional Custodian are something akin to the appellate powers and when he makes an order under S. 26(1), that order stands substituted for the original order of the Assistant Custodian. This view finds support from - ''Rangaswami Kavundan v. Alagayammal'', AIR 1915 Mad 1133 (B), in which at p. 1134 the learned Judges have observed that-
an appeal is only a continuation of the original proceedings and the, appellate judgment dates hack to and stands in the place of the original judgment for all legal purposes.
Therefore the order of the Additional Custodian in this case under S. 26(1) stands in the place of the original order of the Assistant Custodian for all legal purposes. It is not an order of cancellation of the allotment of the petitioner. It is original order of the allotment. The Learned Counsel for the petitioner then argues that there is no illegality or impropriety in the order of the Assistant Custodian and that is the only ground upon which the Additional Custodian could interfere with that order under S. 26(1). Ordinarily, even if it was so in a case, that would not justify interference by this Court under Art. 226, because when exercising powers under that Article this Court is not a Court of appeal.
But it is said that this makes the order of the Additional Custodian without jurisdiction. It is not denied that there is no question of the illegality of the order of the Assistant Custodian in this case, but the Learned Counsel for the respondents contends that it was open to the Additional Custodian to see to the propriety of the order of the Assistant Custodian, which is correct. At page 226 of the Land Re-settlement Manual, 1952 edition, is given a summary of principles of allotment of rural evacuee houses for the guidance of local officers and committees and para 6(9) of that says-
Houses will be allotted taking into consideration the size of holdings of allotters in that village. The biggest allottee will be entitled to the best house in the village, provided he owned equally good house in the West Punjab.
The same principle has been applied in this State by the authorities. It is in the wake of this principle that the Additional Custodian has found the order of the Assistant Custodian to be not proper, because as a fact he has found that Wazir Singh is the biggest allottee as compared to the petitioner. Now, I cannot go behind this finding of fact by the Additional Custodian. Upon consideration of this finding of fact the order of the Assistant Custodian was against the said principle and the Additional Custodian when looking into the propriety of the order of the Assistant Custodian was justified in reversing that order under S. 26(1) making an order consistent with that principle. That is what has been done in the present case. So that the order of the Additional Custodian is a valid order under S. 26(1).
However, the Learned Counsel for the petitioner points out that the principle referred to above is not the only principle that is to be taken into consideration in making allotment of rural, house-property, which is correct, but in the present case, it is nobody''s case that any other factors are also involved in the question of allotment of house No. 10. The Learned Counsel further contends that if the Additional Custodian had informed the petitioner by a proper notice that he was considering the revision petition before him under sub-s. (1) of S. 26, it would then have been possible for the petitioner to come forward to urge other principles in his favour which would have entitled him to this house as against Wazir Singh, but I do not see why he could not have done that when he himself went in revision before the Additional Custodian. I see no substance in this argument.
In consequence, the petition fails and is dismissed with costs. Counsel fee Rs. 32/-.
G.M.J. Petition dismissed.