Case: Joginder Singh And Others Vs. The Deputy Custodian General Of Evacuee Property

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. 8. The other argument of the Division Bench is to the effect that the powers of the Custodian-General under S. 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 S. 27 of the Act provides that he Custodian General may call for the record of any proceeding in which a District Judge or a Custodians 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 fit. The 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. 9. 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 he 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 entitled or varied under Cl. (ii) the allottee 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 sub-rule shall apply to any application for revision, made under S. 26 or S. 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 sub-rule on the question whether the Custodian-Genera1 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. 10. Then learned counsel contended that this sub-rule cannot take away the wide powers conferred upon the Custodian by S. 10 of the Act. No doubt S. 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 rules made under the Act and 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. 11. Having failed on the point which alone finds a place in the statement of the cases of both the 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 Art. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. The view taken by the Division Bench to the effect that R. 14 (6) did not stand in the way of the Custodian-General or the Custodian from restoring the land 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. 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 he 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-rule8. The other argument of the Division Bench is to the effect that the powers of the Custodian-General under S. 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 S. 27 of the Act provides that he Custodian General may call for the record of any proceeding in which a District Judge or a Custodians 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 fit. The 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. We do not find any justification for placing such a restricted interpretation upon the plain language of the sub-ruleHow 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 sub-rule on the question whether the Custodian-Genera1 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 addedNo doubt S. 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 rules made under the Act and 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, 195211. Having failed on the point which alone finds a place in the statement of the cases of both the 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 Art. 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. 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. 6 of R. 14 did not preclude the Custodian from cancelling that allotment. This view is sought to he supported by Mr. Nanak Chand on behalf of respondents 4 to 9 on, what he says the language of. 6 of R. 14. He says that according to thise 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 thee except upon certain grounds and does not place any further