Appeal No 45758
Appeal from the Judgment and order dated September 12 1956 of the Punjab High Court in Letters Patent Appeal No 38 of 1955
N C Chatterjee and Naunit Lal for the appellants
Nanak Chand for the respondents Nos 4 to 9 1961
May 4
The Judgment of the Court was delivered by MUDHOLKAR J
In this appeal under article 133 1 c of the Constitution the question which arises for consideration is whether after July 22 1952 the Custodian of  Evacuee Property in the State of Punjab of the Custodian General hearing an appeal from an order made by the Custodian after July 22 1952 has the power to cancel an allotment of rural evacuee property on a quasi permanent basis except upon the grounds set out in r 14 6 of the Administration of Evacuee Property Rules 1950 as amended by notification No section R 0 1290 dated July 22 1952
The circumstances under which this question arises may now be briefly stated
The appellants and their father Nand Singh were displaced persons from West Pakistan and got allotment of some land in the village Raikot District Ludhiana on a temporary basis
Later each of the appellants 1 to 3 was allotted 8 13 standard acres of land on a quasi permanent basis while Nail Singh their father who was entitled to 41 standard acres and 7 units and to whom land to that extent had been temporarily allotted in the 740 village Raikot was allotted the same acreage of land in the village Hambran which is situate at a distance of 25 or 30 miles from Raikot
Nand Singh made an application for revising the order under which this was done but he died in the year 1951 during the pendency of that application
The appellants as his legal representatives continued the application
That application was rejected and revision application made against the order passed thereunder was also rejected on the ground that after July 22 1952 the Additional Custodian was not competent to cancel an allotment made in favour of any person except upon the grounds set out in r 14 6 of the Evacuee Property Rules
Respondents 4 to 9 owned lands in Chak No 127 G B Jaranwala District Lyallpur and are also displaced persons
They were therefore allotted certain lands in the village Karodian as quasi permanent allottees
Subsequently some revenue papers were received from Pakistan from which it appeared that they were entitled to urban allotment
They therefore brought this matter before the Deputy Commissioner exercising the powers of Deputy Custodian
Thereupon he cancelled the allotment in their favour sometime in the year 1952 and proposed to the Additional Custodian who was also acting as Director of Relief and Rehabilitation for the allotment of the lands which were originally allotted to the respondents to others
Appellant No 2 Gopal Singh on behalf of his father Nand Singh applied to the Director of Relief and Rehabilitation that the allotment in the name of his father Nand Singh might be shifted from the village Hambran  to the village Karodian
Additional Custodian not only allowed the Application of Gopal Singh and shifted the allotment of Nand Singh to the village Karodian but he also shifted the entire allotment of the appellants Nos 1 to 3 from the village Raikot to the village Karodian with 741 the result that the lands allotted to the family were consolidated in the same village
The appellants thereupon obtained possession of the Karodian lands
Respondents 4 to 9 were allotted urban lands which according to the appellants are more valuable and are of a superior quality
They did not prefer an application for review of the order of cancellation of their earlier allotment or of the order passed by the Additional Custodian allotting their lands to the appellants
Six months later however respondents 4 to 9 preferred an application before the Additional Custodian stating therein that the land abandoned by them in West Pakistan was rural and that their allotment should be shifted back to the village Karodian
To this application they did not make the appellants parties
The Additional Custodian held that he could not cancel the allotment in favour of the appellants in view of r 146 of the Evacuee Property Rules already referred to
He however recommended the case to the Custodian General of India by his memo dated October 14 1953 for taking appropriate action
The Deputy Custodian General who heard the case sent it back to the Additional Custodian observing therein that if the respondents 4 to 9 are restored to their original lands the persons to whom those lands had been allotted will have to be shifted elsewhere and this process may involve an interminable chain of cancellation of allotments
 He also observed that if the Additional Custodian could not cancel the allotment because of the coming into force of the amended r 14 6 the Custodian General also would be incompetent to cancel it
Thereafter the Additional Custodian heard the application of the respondents 4 to 9 on merits and dismissed it
Against his order dismissing the application respondents 4 to 9 preferred a revision application before the Custodian General
Curiously enough the Deputy Custodian General 742 who heard it this time granted the application and set aside the allotment in favour of the appellants
The appellants thereafter moved the High Court of Punjab under article 226 of the Constitution
The matter went up before a single Judge of the High Court who dismissed the petition observing as follows  If the order of cancellation against the present opposite parties was made after the 22nd July 1952 the order was inoperative in view of Rule 14 6 and if it be said that the order of allotment was after the date then Rule 14 6 is not bar to the cancellation of the order
In either case I am of the opinion that there is no error in the order of the Custodian General sufficient for the purpose of quashing his order 
 The appellants thereupon preferred an appeal under the Letters Patent which was also dismissed by a Division Bench of the High Court
The substance of the reasoning of the learned Judges is that the allotment in favour of respondents 4 to 9 was wrongly cancelled and it was the duty of the Custodian to restore to them the lands from which they were ousted
They also said that the provisions of r 14 6 lid not preclude the Deputy Custodian General from exercising the powers conferred upon him by section 27 of the or prevented him from cancelling the allotment made after July 22 1952
The view taken by the Division Bench to the effect that r 14 6 did not stand in the way of the Custodian General of the Custodian from restoring the lands to the respondents the allotment with respect to which was wrongly cancelled by the Custodian cannot be sustained
No doubt it is one of the highest duties of all courts to take care that the act of the court does not do injury to suitors but the court must have power to rectify the wrong
743 Such power may either inhere in the Court or may be expressly conferred by statute
The law does not confer any express power on the Custodian to make restitution
But we will assume that be had inherent power to do so
Just as power can be conferred expressly by statute it can also be taken away or restricted and where it is taken away or restricted then whether the power was statutory in its origin or was inherent in the court it will be either wholly unexercisable or exercisable only subject to the conditions laid down in the statute as the case may be
Here we have the notification dated July 22 1952 which substituted the present sub r 6 of r 14 for the original sub r 6
The amended sub rule has placed a limitation on the powers of the Custodian to cancel allotment of rural evacuee property on a quasi permanent basis
The result is that an allotment of such land can be cancelled only in the circumstances specified in that sub rule
Therefore subsequent to July 22 1952 the Custodian of Evacuee Property would have the power to cancel an allotment only upon a ground which falls within the exceptions enumerated in sub r 6
Making of restitution is not within the exceptions and therefore it will have to be said that the inherent power of the Custodian to cancel an allotment for making restitution has been abrogated by the amended sub rule
The other argument of the Division Bench is to the effect that the powers of the Custodian General under section 27 are untouched by sub r 6 of r 14 and that despite the making of this rule the Custodian General was not prevented from cancelling an allotment made after July 22 1952
Now section 27 of the Act provides that the Custodian General may call for the record of any proceeding in which 4 District Judge or a Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks At
The 744 District Judge or the Custodian can in any matter before him do only that which the act or the rules made thereunder permit or require him to do
If he fails to do what he is required to do or if he does something which he is not permitted to do or if he commits an error in doing an act which he is permitted to do the Custodian General has the power to order that to be done which the law requires the Custodian or the District Judge to do or to quash that which has illegally been done or to rectify the error which the Custodian or the District Judge has committed
He has no power to do something which the Custodian or District Judge could not have done or was prohibited from doing
Clearly therefore the High Court was in error in holding that the limitations placed by the present sub r 6 of r 14 did not affect the power of the Custodian General
The learned single Judge as well as the Division Bench have taken the view that where an allotment is made in favour of a displaced person subsequent to July 22 1952 the provisions of sub r
6 of r 14 did not preclude the Custodian from cancelling that allotment
This view is sought to be supported by Mr Nanak Chand on behalf of respondents 4 to 9 on what he says the language of sub r 6 of r 14
He says that according to this sub rule what the Custodian is precluded from doing is to cancel an allotment which had already been made that is made before the coming into force of the sub rule except upon certain grounds and does not place any further restrictions
We do not find any justification for placing such a restricted interpretation upon the plain language of the Sub rule
Learned counsel then referred to the second proviso to the sub rule and contended that it supported the interpretation which he was placing
The proviso reads thus  Provided that where an allotment is cancelled or varied under clause ii the allottee 745 shall be entitled to retain such portion of the land to which he would have been entitled under the scheme of quasi permanent allotment of land Provided further that nothing in this subrule shall apply to any application for revision made under section 26 or section 27 of the Act within the prescribed time against an order passed by a lower authority on or before 22nd July 1952
 How this proviso supports the argument of the learned counsel is difficult to appreciate
The proviso was not originally there when sub r 6 was amended on July 22 1952
It is possible that a doubt was entertained after the making of this subrule on the question whether the Custodian General or the Custodian before whom a revision application had been made against an order passed before July 22 1952 could make an order cancelling the allotment
Apparently to remove the doubt such as may have existed this proviso had been added
Then learned counsel contended that this subrule can not take away the wide powers conferred upon the Custodian by section 10 of the Act
No doubt section 10 confers wide powers on the Custodian but the opening words of the section show that the powers conferred thereby are subject to the provisions of ruler made under the Act and section 56 2 i enables the Central Government to make rules to provide for circumstances in which leases and allotments may be cancelled or terminated or the terms of any lease or agreement varied
 We have therefore no doubt that the High Court was in error in holding that sub r 6 of  r 14 was not a bar to the exercise by the Custodian General of the power to cancel an allotment after July 22 1952
Having failed on the point which alone finds a place in the statement of the cases of both the 746 parties Mr Nanak Chand raised a contention that the allotment in favour of the appellants was itself bad because the cancellation of the allotment in favour of the respondents 4 to 9 was in contravention of r 14 6 and that therefore the appellants were not entitled to the relief from the High Court under article 226 of the Constitution and accordingly are not entitled to any relief in this Court
Since the respondents have not relied upon this ground in the statement of their case we are not prepared to consider it
There may be more than one answer to the point urged by the respondents and had they specifically raised it in their statement of case the appellants would have been in a position to give an appropriate answer
Accordingly we allow the appeal with costs and quash the orders of the High Court as well as of the Deputy Custodian General
There is one more matter to which we must refer
It is this
During the hearing of the appeal learned counsel for the appellant brought to our notice the fact that on the records of the proceedings before the Deputy Custodian General there was a slip of paper from which it would appear that Deputy Custodian General had been approached by the then Speaker of the Punjab Assembly apparently on behalf of the respondents
We therefore asked for a report from the High Court
That report has come and it exonerates both the ex Deputy Custodian General as well as the ex Speaker
We are not satisfied with the report
However considering the fact that the matter has become quite stale and we have allowed the appeal we do not propose to examine the matter further
Appeal allowed


Summary:
Respondents Nos 4 to 9 who were displaced persons from Pakistan were allotted certain rural lands in village Karodian on a quasi permanent basis
On information being received from Pakistan that they were entitled to urban allotment their allotment in village Karodian was cancelled and they were allotted urban land
The land thus vacated in village Karodian was allotted to the appellants
On July 22 1952 r 146 of the Administration of Evacuee Property Rules was amended and the power of the custodian to cancel quasi permanent allotments of rural evacuee property was taken away except in certain enumerated circumstances
Thereafter respondents Nos 4 to 9 applied to the Custodian for shifting back their allotment to village Karodian on the ground that they were really  entitled to allotment of rural property
The Custodian dismissed the application holding that r 146 did not permit the cancellation of the allotment of the appellants
Respondents Nos 4 to 9 filed a revision application before the Custodian General who allowed the application and cancelled the allotment of the appellants
The appellants contended that the Custodian General had no power to cancel their allotment
The respondents replied that the wide powers of the Custodian General under s27 of  were not affected by the restrictions imposed by the amended r 14 6 on the power of the Custodian to cancel allotments
Held that the Custodian General had no power to cancel an allotment of rural property made on a quasi permanent basis in a revision application against an order of the Custodian made after July 22 1952
The power of the Custodian under section 10 of the Act to cancel allotments was subject to the rules
The amended r 146 restricted the power of the Custodian to cancel such an allotment to the circumstances mentioned therein and the present case did not fall within any of those excep 739 tions
Amended r 146 could not be resorted to for cancellation of allotments made before July 22 1952
The power of the Custodian General under section 27 of the Act was to see whether the order passed by the Custodian was legal and proper  he had no power to do something which the Custodian could not have done or which he was prohibited from doing