Tej Ram vs Custodian General and Others

S. Murtaza Fazl Ali, J.—This is an application for an appropriate writ in order to quash an order of the Custodian General by which on a

review petition filed by Respondent No. 2, he set aside is previous order dated 21-12-1964.

It appears that the house in dispute was allotted to the Petitioner as far back as in 1958 along with some agricultural lands. Subsequently,

however, one Inder Singh father in-law of Respondent No. 2 came into wrongful possession of the house and did not vacate possession of the

house in spite of the orders of the authorities concerned Subsequently the matter was taken before the Custodian who by his order dated 11-8-

1963 cancelled the Petitioner's allotment but on revision to the Custodian General this order was set aside and the allotment in favor of the

Petitioner was confirmed. Against this order, Respondent No. 2 filed a review petition before the Custodian General, who accepted the review

petition and cancelled the allotment of the Petitioner. Hence this petition before this Court.

Mr. Mahajan appearing for the Petitioner submitted that the Custodian General had committed a serious error of law in accepting the review

petition beyond the grounds laid down by Order 47 Rule 1 of the Code of Civil Procedure. The learned Counsel for the Petitioner further

submitted that the Custodian General was influenced by extra-judicial information in setting aside his own order which was passed on legal

materials on the record.

The petition has been contested by the Respondents firstly, on the ground that the Petitioner has no right to maintain this petition as he was a

mere allottee and secondly. it was contended that the Custodian General had ample jurisdiction to review his previous order.

I would first take up the contention regarding the maintainability of the writ petition.

Mr. Sehgal appearing for the Respondent strenuously relied on State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, in order

to urge that the Petitioner allotter had no' right to maintain this petition. Reliance was also placed on AIR 1956 J & K 33 I have gone through State

of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo, . The facts in that case appear to be quite different from those in the present case.

In that case. the Petitioner was doubtless a grantee and a clear question of title was involved. Their Lordships in those circumstances held that

since the grant made to the Petitioner before them was a resumable grant and the question of title of the Petitioner was not at all clear, no writ

could be maintained by him.

In the instant case, however, the Petitioner is an allotter under the statutory provisions of the Jammu and Kashmir State Evacuee's (Administration

of Property) Act, 2006. It is true that an allotter has no right to property as held by the Supreme Court in Amar Singh Vs. Custodian, Evacuee

Property, Punjab, but at the same time it cannot be denied that a quasi permanent allottee has undoubtedly a legal right and such a right must be

protected. In a later case reported in State of Punjab Vs. Suraj Parkash Kapur etc., , their Lordships clearly held that a quasi permanent allottee

had a valuable right in the property allotted to him and the said right is entitled to protection of the constituted authorities and the courts.

In this connection, their Lordships have observed as follows:

The existence of a right and infringement thereof are the foundations of the exercise of the jurisdiction of the court under Article 226 of the

Constitution. The right that can be enforced under Article 226 of the Constitution shall ordinarily be the persona] or individual right of the applicant.

It may first be considered whether the Respondents had such a right on the date when they filed the petition under Article 226 of the Constitution

They filed the petition on November 9. 1955 i.e. after the Central Govt. issued the notification acquiring all the evacuee properties and before It

issued the sand conferring proprietary rights on the Respondents in respect of the lands allotted to them. The nature of interest of a displaced

person in the properties allotted to him under the evacuee law has been authoritatively decided by this Court in Amar Singh Vs. Custodian,

Evacuee Property, Punjab, . There Jagannadhadas J. speaking for the court after an elaborate survey of the law on the subject came to the

conclusion that the interest of a quasi permanent allotter was not property within the meaning of Article 19 (1)(f) and Article 31(2) of the

Constitution. But the learned Judge made it clear that notwithstanding the said conclusion an allotter had a valuable right in the said Interest.

The observations of this Court indicate that notwithstanding such; notification an evacuee has a valuable right in the property allotted to him and

that the said right is entitled to the protection of the constituted authorities and the courts.

It is manifest from the observations of their Lordships that it cannot be laid down as a universal rule of law that an allotter in all cases is a licensee

and has no legal right Even if an allotter does not have a right to property as contemplated by, Article 31 of the Constitution of India it is sufficient

for him to prove that he has some sort of a legal right to the pro party. In view of the observations of their Lord ships in the aforesaid case, the

authority reported in AIR 1956 J & K 33 (FB) is considerably weakened. Moreover in AIR 1956 J & K 33 (FB) the position was essentially

different. In my opinion, however, the status of an allotter has to be determined with reference to the provisions of the statute which confers the

right of allotment on him. In the instant case, the allotment having been made under the Jammu and Kashmir Evacuee (Administration of Property)

Act, we have to analyze the provisions of this Act in order to see whether the allottee has a legal right within the four corners of the statute or not.

u/s 9 of the Act, the Custodian has been given powers to take such measures as he considers necessary or expedient for the purpose of

administering, imposing, preserving and managing any evacuee property. Similarly Section 10 of the Act lays down that an lodgment made by the

Custodian or a lease granted by him could be cancelled, amended or terminated by him. Proviso to Section 10 however imposes a duty on the

Custodian not to cancel any allotment except as provided for in the Rules framed by the Government in this behalf. Para 14 Rule 3 (as amended by

Order No 121 of 1960 dated 14-4-1960) lays down the grounds on which an allotment of an allotter can be cancelled. The second proviso to this

Sub-section makes it obligatory on the Custodian to give a reasonable notice to an allotter before canceling his allotment This proviso runs as

follows:

Provided also that in all other cases referred to above a reasonable notice shall be given to an allotter before an order for the cancellation of the

allotment is made by the Custodian.

Furthermore, Sub-rule 3a applies the provisions of Sub-rule 3 mutatis mutandis to leases granted by the Custodian.

It would thus appear that the statute treats an allotter and a lessee more or less on the same footing. In these circumstances, there fore, it cannot be

said that an allotter has no legal right whatsoever to maintain the petition and I do not see any reason why the Petitioner cannot be allowed to

maintain this petition for the limited purpose of showing that the order by which his allotment has been cancelled is either without Jurisdiction or

suffers from a legal infirmity. In other words the right conferred .on the allotter by the Act is doubtless a legal right to be exercised subject to the

conditions laid down in the Statute. The allotted, therefore, has a right to remain in possession of the property allotted to him so long as his

allotment is not cancelled in accordance with the provisions of the Act. Where, however, his allotment is cancelled by a statutory authority; under

the Act, without complying with the conditions of the Statute or in direct contravention thereof, there is a direct invasion of the legal right conferred

on the allotted by the Statute and the allotted can certainly approach this Court for correcting the error of law committed by the said authority in

order to keep it within the bounds of law. In doing so, the allotted is not asking the court to en force a fundamental right but as an interested person

affected by the order, he is trying to show to the court that the order passed against him is without jurisdiction and is in direct contravention of the

statutory provisions of law.

In this view of the matter, the petition cannot be thrown out on the ground that the Petitioner has no locus stand to maintain this petition. For these

reasons, therefore, the contention of the learned Counsel for the Respondents that the Petitioner has no locus stand to maintain this petition is

rejected.

I would now come to the second point which relates to the merits of the order passed by the Custodian General. Section 30 sub Clause 5 of the

Act, runs as follows:

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.

There is, no doubt, that the Custodian General has been given; power to review his own order.. The grounds of review have not been specified

in the Section, but it is well settled that when a Statute uses a term of welt known legal significance. the Legislature must, be presumed to have the

intention of attaching to that term that known legal significance under Order 47 Rule 1 CPC a review lies only on certain specified grounds namely,

when- there is an error of fact apparent on the face of the record or where there is some discovery of new and certain matters or the like. Reading

the order impugned in this case, it seems to me that the Custodian General has set aside his previous order without there being any error of fact

apparent on the face of the record or there being any discovery of new and important matter. The', main ground taken by the Custodian General in

his order under review was that the Petitioner had three more house in his possession in village Baroda. It would appear from his original order

dated 21-12-1964 that this defense was taken by the Respondent before him at that time also, but at that time, the Custodian General did not think

it necessary to hold a local inspection.

While reviewing the order, however, the Custodian General visited the spot in presence of the parties and made oral enquiries and on being

informed by some persons that the Petitioner had got other houses he came to the conclusion that the allotment in favour of the Petitioner should be

cancelled Mr. Sehgal appearing for the Respondent has not urged that the order of the Custodian General is covered by the provisions of Order

47 Rule 1 Code of CPC On the other hand, Mr. Sehgal has submitted that as the Statute does not prescribe any limitations on the power of

review to be exercised by the Custodian General, the said power cannot be confined to the grounds mentioned in Order 47 Rule 1 Code of CPC I

am, however, unable to agree with this contention. An identical question was considered by a Division Bench of the Pant High Court reported in

Bibi Nazma Khatoon and Another Vs. R.P. Sinha, Custodian, Evacuee Properties and Another, , where their Lordships observed as follows:

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 Lewis Pugh Evans Pugh v. Ashutosh Sen, AIR 1929 PC 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 CPC If this view is right, it follows that Mr. R.P. Singh had no jurisdiction to review the order

of his predecessor, Mr. S.N. Ray. in absence of any fresh material or in the absence of any mistake or error apparent on the face of the record. In

this view of the matter, the Petitioners would be entitled to a writ of certiorari for quashing the order of M.R.P. Singh dated 18-12-52 on the

ground that he acted in excess of his jurisdiction.

The same view has been taken by a Single Bench of this Court in AIR 1960 J& K 125 The Privy Council in AIR 1929 PC 69 took also the same

view. In other words, where the word ""review"" is used by a Statute, it must be presumed that the exercise of the powers must be limited to the

grounds laid down in Order 47 Rule 1 CPC The Custodian General has thus committed a serious error of law apparent on the face of the record,

in exercising his powers of review by traveling beyond the grounds mentioned In Order 47 Rule 1 Code of Civil Procedure.

The order of the Custodian General suffers from another serious Infirmity. When the Custodian General went for spot inspection, he appears to

have acted solely on the information given to him by certain persons at the spot and gave no opportunity to the Petitioner to rebut the Information

given to him by the persons whom he met in the village. There can be, no doubt, that the Custodian General while passing an order of review is

acting as a quasi judicial Tribunal and it is against the elementary tenets of nature justice that such a Tribunal should act on extra-judicial information

furnished to him. Furthermore, even Section 30 Sub-clause 5 makes it obligatory on the authority concerned to review its own order only after

giving notice to the parties concerned if the Custodian General wanted to act on some evidence, which was not on the record, he should have

allowed the Petitioner an opportunity to meet that evidence. The Petitioner, however, has submitted that the houses which were shown to the

Custodian General did not in fact belong to him but belonged to somebody else. He has also filed some documents in support of his contention. It

is not necessary for me to go into this question, because I am satisfied that the Custodian General had no jurisdiction to review his own order on

the basis of the evidence, to rebut which no opportunity to the Petitioner was given. Thus the order of the Custodian General is contrary to the

mandatory provisions of Section 30 Sub-clause 5 of the Jammu and Kashmir State Evacuee's (Administration of Property) Act. 2006.

Having regard to these circumstances, therefore, I am satisfied that the order of the Custodian General reviewing his order dated 21-12-1964

being completely without jurisdiction must be quashed.

The application is allowed and by a writ of Certiorari the order of the Custodian General, by which he has set aside his previous order dated

21-12-1964 is hereby quashed.

In the circumstances of the case. I make no order as to costs.