Mohd. Sultan Zargar vs Custodian General E.P. and Others

K.V. Gopalakrishnan Nair, J.—The Petitioner prays in the main for a writ of certiorari and also for certain consequential directions or orders

in the nature of prohibition and Mandamus.

The Petitioner has been in occupation of a house situate in Mohalla Said Sahib, Srinagar. This house belongs to one Hasan Shah who for the last

several years has been residing in Pakistan. The Asstt. Custodian of the Evacuees' Property declared this house, at the instance of the third

Respondent, to be evacuee property and called upon the Petitioner to vacate it. The Petitioner appealed to the Custodian who affirmed the order

of the Asstt. Custodian that the house was evacuee property, but permitted the Petitioner to remain in possession on his executing a lease deed to

the Custodian and paying rent to him. Not satisfied with this order, the Petitioner moved the Custodian General who came to the conclusion that

the house was not evacuee property. The third Respondent thereupon preferred an application to the Custodian General for review of his order;

the Custodian General allowed the application and held the house to be evacuee property. The Petitioner now seeks to get the order passed in

review quashed on certiorari.

The first ground urged by the learned Counsel for the Petitioner is that the third Respondent had no locus standi to move the Custodian General

to review his order. It is admitted that the third Respondent is not the owner of the house in question, but he is a relative of Hasan Shah who is

admittedly the owner of the house. It is urged that the mere circumstance of his being a relative of the owner of the house is insufficient to clothe the

third Respondent with competence to initiate review proceedings before the Custodian General. The argument is that the third Respondent is in

truth and effect only a stranger and not an aggrieved person and, therefore, the Custodian General had no jurisdiction to entertain his application.

I am not satisfied that this contention ought to prevail. It was at the instance of the third Respondent that the Assistant Custodian, as early as 1954,

took proceedings to declare the house evacuee property., The Petitioner had impleaded the third Respondent as a party in his appeal to the

Custodian. The Petitioner also impleaded the third Respondent as a party before the Custodian General who passed the original order. All along

the third Respondent had contended that the house in question was evacuee property. For the first time this contention of his was negatived by the

Custodian General who held that the house was not evacuee property. The third Respondent was, therefore, legitimately aggrieved by this order.

He was therefore, entitled to seek to get the order reviewed.

When a person is allowed to raise a contest in a certain matter and his contention is negatived, he is certainly a person aggrieved by the order

disallowing his contention: much more so in a case where he is deliberately impleaded as a party to the proceedings and an order is sought against

his contention in those proceedings. The Petitioner himself regarded the third Respondent as the main contestant and impleaded him in the appeal

before the Custodian and in the revision before the Custodian General and the third Respondent put forward his case against the Petitioner before

both those tribunals. It is, therefore, difficult to appreciate the present stand of the Petitioner that the third Respondent was not entitled to move the

Custodian General in review.

The test to determine who is an aggrieved person in a case more or less similar to the present was pointed out by the Supreme Court in Ebrahim

Aboobakar and Another Vs. Custodian General of Evacuee Property, . On principle as well as on authority I am satisfied that the third

Respondent was competent to move the Custodian General to review his order. Besides, the ground that the third Respondent had no locus standi

to apply for review was not taken by the present Petitioner in the review proceedings. I do not think he can successfully urge at this stage that the

third Respondent was incompetent to apply to the Custodian General for review.

The second ground urged by the Petitioner's learned Counsel is that the Custodian General exceeded his powers in reviewing his previous

order, I may mention here that the Custodian General who passed the original order had demited office after the review application was presented.

His successor-in-office heard the review application on merits and passed the impugned order. This circumstance has no importance in deciding

whether or not the order passed in review was in excess of the powers of the Custodian General. The power of review is conferred on the

Custodian General by Sub-section (5) of Section 30 of the Evacuees Property Administration Act. It runs:

The Custodian General, Custodian, Additional Custodian or Authorized Deputy Custodian, but not a Deputy or an Assistant Custodian, may, after

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

The warding of this provision does not restrict the power of review as the provisions of Order 47 Rule 1 of the CPC do. It is therefore, argued by

the learned Advocate General on behalf of the Custodian General (first Respondent) that Section 30(5) confers unrestricted powers of review on

the Custodian General and that he is not circumscribed by any of the limitations prescribed by Order 47 Rule 1. On the other hand, the learned

Counsel for the Petitioner has urged that the Custodian General in exercising his powers of review is as much controlled by the provisions of Order

47 Rule 1 as any civil court. For this proposition he has relied on Bibi Nazma Khatoon and Another Vs. R.P. Sinha, Custodian, Evacuee

Properties and Another, . The scope of the expression 'review' used in Section 26(2) of the Administration of Evacuee Property Act, 1950 fell to

be construed in that case. The Division Bench stated at page 45:

It is manifest, therefore that the expression 'review' has a well known legal significance and Section 26(2), Administration of Evacuee Property Act

must be construed in the context and background of the CPC where the same expression has been used. It is a familiar rule of construction that

when the legislature has deliberately used a term which has a known legal significance in law it must be taken that the legislature has attached to that

term that known legal significance (see -- L.P.E. Pugh v. Ashutosh Sen AIR 1929 P.C. 69). In our opinion the expression ""review"" used in Section

26(2). Administration of Evacuee Property Act, must be construed not in a grammatical sense but it must be construed to have the same legal

meaning as in Order 47 Rule 1, Code of Civil Procedure.

In AIR 1929 P.C. 69, Lord Warrington of Clyffe accepted the view which Das J. had expressed in the following words in Lodna Colliery Co.

Ltd. v. Bepin Behari Bose 55 Ind Cas 113 : AIR 1920 Pat 383 (2):

It must be presumed that when the legislature has deliberately used a term which has a known legal significance in law it has attached to that term

that known legal significance.

No doubt, the Privy Council in AIR 1929 P.C. 69 was dealing with Article 48 of the Limitation Act and the scope of the expression

'conversion' occurring in that Article; but the principle of construction which was accepted and adopted by their Lordships of the Judicial

Committee is of general application and can well be extended to the instant case. I am, therefore, inclined to accept the contention of the

Petitioner's learned Counsel that the Custodian General can review his own order only on one of the grounds mentioned in Order 47 Rule 1.

The question then is whether the Custodian General has, in the present case, travelled beyond the limits permitted to him by Order 47 Rule 1 of

the Code of Civil Procedure. This takes us to an examination of the grounds on which the Custodian General reviewed his previous order. This

ground is stated by the Custodian General himself in the impugned order as follows:

The order passed by my learned predecessor in office is based on the assumption that the property is not an evacuee property which according to

the facts admitted by the parties is not correct. There is an error in the judgment of my predecessor in office apparent on the face of the record.

The result is that I accept the review petition....

This makes it clear that the Custodian General purported to confine himself to the limits prescribed by Order 47 Rule 1 which authorizes a review

of judgment, if there is some mistake or error apparent on the face of the record. But it is strenuously contended for the Petitioner that, as a matter

of fact, the order passed in review was erroneous. The main question that fell for determination was whether the house in question is evacuee

property which is defined as a ""property in which an evacuee has any right or interest."" The Custodian General had, therefore, to ascertain whether

Hasan Shah who is the owner of the house is an evacuee. The definition of an evacuee for the present purpose is as follows:

'Evacuee' means any person who is resident in any place now forming part of Pakistan or in any such part of the territory of Jammu and Kashmir

State as is under the operational control of the Pakistan armed forces, and who for that reason is unable to occupy, supervise or manage in person

his property in the State.

It is common ground that Hasan Shah has been permanently residing in Pakistan for a number of years now. If by reason of his being in Pakistan

he has been unable to occupy, supervise or manage in person his property in this State, he will squarely fall within the definition of ""evacuee"" and

his property will consequently be ""evacuee property."" It was not the case of the Petitioner at any time that something other than his being in

Pakistan prevented Hasan Shah from occupying, supervising or managing his property in the State. Nor did the Petitioner at any stage of the

protracted proceedings before the authorities constituted by the Evacuees' Property Administration Act contend that Hasan Shah, notwithstanding

his residence in Pakistan, could occupy, supervise or manage in person his property in the State.

On the other hand, the admitted residence of Hasan Shah in Pakistan could legitimately have raised the inference that because of such residence,

he is unable to occupy, supervise or manage in person his properly in the State. Indeed, the counsel for the Petitioner who appeared before the

Custodian General in the review proceedings appears to have conceded that Hasan Shah is an evacuee by virtue of the definition already adverted

to. In his first order, the Custodian General, however, does not appear to have devoted sufficient attention to the implications of Hasan Shah being

resident in Pakistan. This was perhaps the most important aspect of the matter and should have been dealt with by the Custodian General at much

greater length. Instead, he disposed of it as follows:

Assuming that he (Hasan Shah) is in Pakistan, as Custodian states in his order under appeal, there is no reliable evidence to show that he is for that

reason unable to occupy, supervise or manage the house in question in the State in person.

As I already stated, it was nobody's case that: Hasan Shah was not in Pakistan. The only question was whether, in spite of his being resident in

Pakistan, he could occupy, supervise or manage in person his house in Srinagar. As a matter of fact the answer could only have been in the

negative. As such, an obvious finding.on practically admitted facts was not recorded by the Custodian General in the first instance and as this

important aspect of the matter was almost ignored by him, an application for review came to be preferred. In the circumstances, the statement in

the review order that there is an error apparent on the face of the record appears to me to be justified.

It is next argued for the Petitioner that a review on the ground of an error of fact, however apparent it be on the face of the record, cannot be

supported under Order 47 Rule 1 CPC I think this proposition is wholly incorrect. There is nothing in Order 47 Rule 1 to confine its application to

apparent errors of law and not of fact. In AIR 1949 112 (Privy Council) a judgment of the Judicial Committee was reviewed by it because it

proceeded on an erroneous assumption that certain Police Rules were operative on a specified date when, as a matter of fact, it did not come into

operation on that day. In Jamna Kuer v. Lal Bahadur AIR 1950 F.C. 131, a mistake of fact was made in the judgment with regard to the nature of

certain Immovable properties and the Federal Court forcefully pointed out that it was a clear case for review of judgment.

It is unnecessary to multiply authorities on this point, If an obvious error of material fact appears on the face of the record, it can be a valid

ground for review. So also if a judgment or order did not effectively deal with and determine an important point on which the decision in the case

was to depend and the omission appeared on the face of the judgment or order, the judgment or order could well be reviewed. (Please see

M.M.B. Catholicos v. M.P. Athanasius AIR 1954 SC 526 at p. 540).

It appears on the face of the first order of the Custodian General that proper account was not taken of the fact that Hasan Shah has been a

resident of Pakistan; an inference which almost automatically flowed from this fact was also ignored in the first order. These errors were not only

material but also self-evident.

Considering all the aspects of the case, I am of the view that the Custodian General was justified in reviewing his previous order, in the present

case. He did not act without jurisdiction in exercising his powers of review; nor did he act in excess or jurisdiction. There is no question in this case

of any illegality in the exercise of jurisdiction. No principle of natural justice has been violated.

The last ground however on which the learned Counsel for the Petitioner asks me to quash the impugned order is that there is an error of law

apparent on the face of the order. I am wholly unable to see any error of law apparent on the face of the impugned order. Errors of the kind which

might be corrected by a court of appeal are not errors which would be amenable to correction by a writ of certiorari. In Hari Vishnu Kamath Vs.

Syed Ahmad Ishaque and Others, , it is pointed out:

It must therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something

more than a mere error; it must be one which must be manifest on the face of the record.

It is also well settled that a certiorari will not issue as ""the cloak of an appeal in disguise""; it cannot be used in order to bring an order or decision

for re-hearing of an issue raised in the proceedings. Writ jurisdiction is essentially of a supervisory character and writ proceedings cannot partake

of the nature and character of an appeal. Nor can the court sitting in writ seek to substitute its own decision or discretion for that of the inferior

tribunal whose order is brought up before it.

If these principles are adhered to in the present case. I should feel constrained to disallow the writ asked for. The Petitioner's learned Counsel

has advanced elaborate arguments going into meticulous details in a effort to show that on merits the Custodian General ought not to have

reviewed his previous order. But this effort is appropriate only to an appeal and not to writ proceedings. In an attempt to show that the impugned

order is erroneous on the face of it, the learned Counsel sought to urge doubtful points of law and fact and sought to employ a long drawn process

of rather farfetched reasoning and roundabout inferences. If all this effort is required to bring to light what he himself would call an error of law

apparent on the face of the record, one should say that there is really no such error. In this context it is well to refer to the observations of the

Supreme Court in a recent decision in Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, , at pp. 141 and 142:

An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be

said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is

far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can

be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.

It follows from the foregoing that the Petitioner is not entitled to a writ of certiorari. As the other reliefs claimed in the petition are of an ancillary

nature and cannot conceivably be granted if the main relief of a writ of certiorari is refused, it is unnecessary to consider them.

The petition accordingly fails and is dismissed. The Petitioner will pay a sum of Rs. 50/ - as costs to the Respondents.