BEHARI KUNJ SAHKARI AWAS SAMITI AND ANR.versusSTATE OF U.P. AND ORS.

                                                                                  c
                                                                                  (

A                BEHAR! KUNJ SAHKARI A WAS SAMIT!
                             ANDANR.
                                       v.
                         STATE OF U.P. AND ORS.

                               AUGUST 14, 1997
B
             [S.B. MAJMUDAR AND S. SAGHIR AHMAD, .TJ.]


          Administration of Evacucee Property Act, 1950-Sections 10, 27,
    55--Exercise of Revisional jurisdiction-Order passed by delegate of Cus-
C   todian General-Whether, revisi_on lies before Custodian General-Held, no,
    as it would amount to review.

          The custodian Evacucee Property U.P., under the Administration of
    Evacuee Property Act, 1950 ordered transfer of a property in favour of one
D   Harnath Chaturvedi. The said order got proved by the Assistant Cus-
    todian General, U.P. in whose favour, the Custodian General, U.P. had
    delegated his powers under section 55 of the Act. Against the said order,
    the State of U.P. filed Revision Application before the Custodian General
    of Evacucee property. The Custodian General held that as his delegate had
    already approved the order sought to be revised, he could not exercise the
E   revisional jurisdiction against the same order and dismissed the applica-
    tion as not maintainable. On a Writ Petition filed by Respondent State of
    U.P., the Division Bench of the High Court held that the revisional juris-
    diction under section 27 could be exercised by the Custodian General
    against the Custodian and consequently the proceedings in revision were
F   remanded for fresh decision on merits. Hence this appeal.

          Allowing the Appeals, this Court

          HELD : 1. When the impugned order of the Custodian was already
    approved by the Custodian General's delegate, the very same delegating
G   authority, namely, the custodian General could not undertake the exercise
    of being satisfied whether such an approved order of his delegate was legal
    or proper as that would amount to an exercise of review power which does
    not flow from the four corners of section 27 of the Act. [464-B]

H         Roop Chand v. State of Punjab, (1963] Supp. 1 SCR 539, referred to.
                                       460
      B.K. SAHKARI AWAS SAMIT! v. STATE (S. B. MAJMUDAR, J.]            461

      2. The revision application moved before the Custodian General is        A
clearly incompetent. It was rightly held not maintainable by the Custodian
General. The view of the High Court that the Custodian General could still
revise the order is unsustainable. The proceedings in revision as filed
before the Custodian General under section 27 of the Act by the State were
clearly incompetent. [464-C, H; 465-A]
                                                                               B
      3. The common order passed by the High Court is set aside and all
the writ petitions are restored to the file of the High Court with a request
to consider the legality and propriety of the impugned order passed by the
Custodian of Evacucee Property. [465-F]

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5631-                    C
5633 of 1997.

     From the Judgment and Order dated 16.1.96 of the Allahabad High
Court in C.M.W.P. Nos. 16775/85, 9162 and 9386 of 1987.

     K. Parasaran, P.R. Tiwary, M.P. Shorawala, Satish Agnihotri and           D
M.C. Dhingra for the appearing parties.

     The Judgment of the Court was delivered by

      S.B. MAJMUDAR, J. Leave granted.
                                                                               E
      By consent of learned advocates, all these appeals are heard finally.
Short question involved in these appeals is indicated by order dated 4th
October 1996 while issuing notice in the main S.L.P. The order reads as
under:

            "Application for substitution allowed.                             F
            Issue notice limited to the question of the interpretation of
        Section 27 read with Section 55 of the Administration of Evacuee
        Property Act, 1950, returnable on December 6, 1996 indicating that
        the matters may be finally disposed of on the miscellaneous stage
        itself.                                                                G
            No stay."

      Consequently, we will be concerned only with this short question.
Few relevant facts leading to these appeals deserve to be noted to ap-
preciate the nature of the controversy for our consideration.                  H
    462                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A       By an order dated 11th November, 1982, the Custodian or Evacuee
  Property, U .P. functioning under the provisions of Administration of
  Evacuee Property Act, 1950 (hereinafter referred to as 'the Act') ordered
  that Kothi No. 183, Civil Lines, Agra be transferred in favour of Shri
  Harnath Chaturvedi, son of Shri Kanhaiya Lal at auction price of Rs.
  61,000. That order was submitted to the Assistant Custodian General of
B Evacuee Property for his approval onfhe day. The said order got approved
  by the Assistant Custodian General, U.P. Against this order the State of
  U.P. filed a Revision Application under Section 27 of the said Act before
  the Custodian General of Evacuee Property. The Custodian General after
  hearing the parties concerned took the view that as his delegate had
C already approved the order sought to be revised, he could not exercise his
  revisional jurisdiction against the same order. In the result, the Revision
  Application was dismissed as not maintainable. It was thereafter that the
  State of U .P. filed a writ petition before the High Court of Allahabad being
  Civil Miscellaneous Writ Petition No. 16775 of 1985. Two other writ
  petitions filed by the other contesting parties were clubbed with the said
D with petition of the State of U.P. and all the three were heard together by
  the Division Bench of the High Court and by the impugned judgment, the
  Division Bench took the view that the revisional jurisdiction under Section
  27 of the Act could be exercised by the Custodian General against the
  order of the authority, namely, the Custodian and consequently, the
   proceedings in revision were remanded for fresh decision on merits. Cer-
E lain other observations were made and directions were given in the said
  common order. It is thereafter that the aggrieved parties have challenged
  the said common order in these appeals by special leave.

          Now it is to be appreciated that when the Custodian passed the
F original order, he was exercising his jurisdiction under Section 10 of the
    Act, sub-Section (1) and (2)(o) of which read as under :

             "JO. Powers and duties of the Custodian generally. (1) Subject to the
             provisions of any rules that may be made in this behalf, the
             Custodian may take such measures as he considers necessary or
G
             expedient for the purposes of securing, administering, preserving
             and managing any evacuee property and generally for the purpose
             of enabling him satisfactorily to discharge any of the duties im-
             posed on him by or under this Act and may, for any such purpose
             as aforesaid, do all acts and incur all expenses necessary or
H            incidental thereto.
      BX SAHKARIAWAS SAMITiv. STAIB [S. B. MAJMUDAR,J.]                 463

        (2) Without prejudice to the generality of the provisions contained A
        in sub-section (1), the Custodian may, for any of the J:lUrposes
        aforesaid -

        (a) to (n) ........... .

        (o) transfer in any manner whatsoever any evacuee property not-        B
        withstanding anything to the contrary contained in any law or.
        agreement relating thereto :

           Provided that the Custodian shall not sell any immovable
        property or any business or other undertaking of the evacuee,
        except with the previous approval of the Custodian- General;"          C

      It must, therefore, be held that the original order dated 11.11.1982
passed by the Custodian which got approval of the Assistant Custodian
General could operate only because of such approval. It is also not in
dispute that the Custodian General had already delegated his powers            D
under the Act to the Assistant Custodian General as per Section 55 of the
Act, Sub-section (3) of Section 55 provides that 'subject to the provisions
of this Act and of the rules and orders made thereunder, the Custodian-
General may delegate all or any or his powers under this Act to any Deputy
or Assistant Custodian-General'. Consequently, the original order of the
Custodian which was approved by the Assistant Custodian General as             E
delegate of the Custodian General must be treated to be an order which
had got imprimatur of the Custodian General himself acting through his
delegate. Once that happened the moot question arises whether such an
order can be revised by the Custodian General in exercise of his revisional
powers under Section 27 of the Act which reads as under :
                                                                               F
        "27. Powers of revision of Custodian-Genera/. - (1) The Custodian-
        General may at any time, either on his own motion or on applica-
        tion made to him in this behalf, call for the record of any
        proceeding in which any Custodian has passed as order for the
        purpose of satisfying himself as to the legality or propriety of any   G
        such order and may pass such order in relation thereto as he thinks
        fit

            Provided that the Custodian-General shall not pass an order
        under this sub-section prejudicial to any person without giving him
        a reasonable opportunity of being heard."                           H
                         0


    464                      SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A         A mere look at this Section shows that Custodian-General can call
    for any record of proceeding in which any Custodian has 'passed an order
    and that exercise has to be undertaking for the purpose of satisfying the
    Custodian-General about the legality or propriety of such an order sought
    to be revised. It is axiomatic that when the impugned order of the Cus-
    todian was already approved by the Custodian-General's delegate, the very
B   same delegating authority, namely, the Custodian-General could not un-
    dertake the exercise of being satisfied whether such an approved order of
    his delegate was legal or proper as that would amount to an exercise of
    review power which does not flow from the four corners of Section 27 of
    the Act.
c         Under these circumstances, the revisions application moved before
    the Custodian-General was clearly incompetent. It was rightly held not
    maintainable by the Custodian-General and consequently, it is not possible
    to agree with the view which appealed to the High Court in the impugned
    judgment that the Custodian-General could still revise such an order. On
D   the scheme of the Act, such a conclusion is clearly unsustainable.

         In this connection, we way refer to a decision of this Court to which
  our attention was invited by Shri K. Parasaran, learned senior counsel for
  the appellant. In the case of Roop Chand v. State of Punjab, [1963] Supp.
  1 SCR 539, a Constitution Bench of this Court speaking through Sarkar,
E J., for the majority had to consider whether the appellate jurisdiction
  conferred on the State Government under Section 42 of the East Punjab
  Holding (Consolidation and Prevention of Fragmentation) Act, 1948, could
  be invoked for challenging the order passed by a delegate of the powers
  of the State who as a delegate of the powers of the State who as a _delegate
F had exercised the very same jurisdiction under Section 41(1) on behalf of
  the State. Answering this question in the negative, it was held by majority
  of the Constitution Bench that Section 42 did not empower the State
  Government to interfere with an order passed by an officer to whom the
  power to hear appeals filed under Section 21( 4) had been delegated by it
  under Section 41(1). That the words 'any order passed .... by an officer
G under this Act', in Section 42 did not include an order passed by an officer
  in exercise of powers delegated to him by the Government under Section
  41(1).

           An almost parallel situation obtains in the present case. Consequent-
H   ly, it must be held that the proceedings in revision as filed before the
       B.K. SAHKARI AWAS SAMITI v. STAIB (S. B. MAJMUDAR, J.)         465

Custodian General under Section 27 of the Act the State of U.P. were        A
clearly incompetent. Once this conclusion is reached, the result becomes
obvious. The original order date 11.11.1982 could not be revised by th
Custodian Ge.'.leral.

        However, in the writ petition filed by the State of U .P. before the B
High Court not only the order of the Custodian-General taking the view
that revision application was not maintainable was challenged, but the
original order of 11.11.1982 was also challenged along with the consequen-
tial order. That challenge was obviously in the alternative. Our attention
was invited to the prayer clause in the writ petition which clearly reflected
this position. Once we take the view that the Division Bench of the High C
Court was not justified in treating the revision before Custodian-General
to be maintainable and consequently remanding the same to the Custodian
General for a fresh decision, the grievance of the State of U .P. in the writ
petition flowing from the alternative prayer would immediately become
live .. As no decision was rendered by the High Court on this alternative D
prayer, the only order which can be passed in the interest of justice is to
remand these writ petitions for a fresh decision of the High Court on the
alternative prayer, namely, whether the original order dated 11.11.1982 and
the consequential order of 18.11.1982 passed by the Custodian were jus-
tified on merits or not.
                                                                            E
       In th(; result, these appeals are allowed to the aforesaid extent only
and the common order passed by the High Court is set aside and all the
three writ petitions are restored to the file of the High Court with a request
to consider the legality and propriety of the impugned orders dated
11.11.1982 and 18.11.1982 passed by the Custodian of Evacuee Property F
and as approved by the Assistant Custodian-General of Evacuee Property.
It is made clear that we express no opinion on the merits of these orders.
They will have to be examined by the High Court on their own merits. As
the remanded proceedings would obviously be old proceedings of 1985 and
1987, the High Court is requested to dispose them of in accordance with
law as expeditiously as possible preferably within a period of 4 months from G
the receipt of a copy of this order at the end of the High Court.

V.M.                                                    Appeals allowed.