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Union of India and ors. Vs. Maqsood Ahmed - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 495 of 1960
Judge
Reported inAIR1963Bom110; (1962)64BOMLR683; ILR1963Bom158; 1963MhLJ60
ActsAdministration of Evacuee Property Act, 1950 - Sections 9, 10(1), 10(2), 12A, 25, 26, 26(1), 26(3), 27, 28, 28(2), 29, 30, 31, 33, 35, 42, 46, 55(2) and 58(3); Evidence Act, 1872 - Sections 31 and 102; Administration of Evacuee Property (Amendment) Act, 1956 - Sections 16 and 16(2); ;Administration of Evacuee Property Ordinance, 1956 - Ordinance 6; General Clauses Act - Sections 6; Code of Civil Procedure (CPC), 1908 - Sections 26 - Order 47, Rules 1, 2 and 5; Administration of Evacuee Property Ordinance, 1949
AppellantUnion of India and ors.
RespondentMaqsood Ahmed
Appellant AdvocateM.A. Rane, Asst. Govt. Pleader
Respondent AdvocatePorus Mehta, ;Vijay R. Desai, ;S.B. Khoja, ;A.A. Omer, ;A.A. Bhojani and ;A.M. Salik, Advs.
Excerpt:
administration of evacuee property act (xxxi of 1950), section 26(2) - administration of evacuee property (amendment) ordinance (6 of 1956), section 9--administration of evacuee property (amendment) act (xci of 1956), section 16(2)--general clauses act (x of 1897), section 6--civil procedure code (act v of 1908), order xlvii, rule 1--application for review under a. 26(2) of act xxxi of 1950 pending at date of promulgation of ordinance no. 6 of 1956 whether competent after passing of ordinance and act--whether remedy of review under section 26(2) of act limited to circumstances mentioned in order xlvii, rule 1 of code--power to review under section 25(2) whether available to officer succeeding officer who had passed order--whether such power could be exercised only suo motu.;an application.....1. this appeal raises questions under the administration of evacuee property act, 1950. the short facts necessary to appreciate the questions in issue are as follows;2. after the partition of the country, various states had enacted laws for the custody and the administration of evacuee property. under the bombay act the deputy custodian of evacuee property declared abdul rashid khan and s. a. quraishi evacuees and on 10th january 1950, took charge of the business, the tenancy rights and stock-in-trade of 'marina hotel' belonging to them. it seems that at the relevant time in the suit premises the evacuees had about five lodgers, from these lodgers the evacuees were recovering a sum of rs. 905 though they were paying actual rent of rs. 555-12-0 per month, on 17th january 1950 the deputy......
Judgment:

1. This appeal raises questions under the Administration of Evacuee Property Act, 1950. The short facts necessary to appreciate the questions in issue are as follows;

2. After the partition of the country, various States had enacted laws for the custody and the administration of evacuee property. Under the Bombay Act the Deputy Custodian of Evacuee Property declared Abdul Rashid Khan and S. A. Quraishi evacuees and on 10th January 1950, took charge of the business, the tenancy rights and stock-in-trade of 'Marina Hotel' belonging to them. It seems that at the relevant time in the suit premises the evacuees had about five lodgers, from these lodgers the evacuees were recovering a sum of Rs. 905 though they were paying actual rent of Rs. 555-12-0 per month, On 17th January 1950 the Deputy. Custodian of Evacuee Property entered into an arrangement with the lodgers to the detect that they should together pay him consolidated rent of Rs. 555-12-0 and an additional amount of 20 per cent, over the entire collections which the evacuees were collecting from these lodgers which came to a sum ot Rs. 181, as, what he called, 'establishment charges'. The rest of the liabilities in the form of light Bills, gas bills and sweeper charges were to be disbursed directly by the lodgers. This arrangement seems to have continued up to end of about March 1955, when the plaintiff approached the Custodian of the Evacuee Property with a request war the entire business should be allowed to him. Some of the lodgers were in arrears which he undertook to pay. This letter was written on 31st March 1955. Ultimately the Custodian acceded to the request made by the plaintiff and assigned the entire business along with the tenancy rights to the plaintiff on 25th April 1955. increate on 30th April 1955 he made a declaration under section 12A of the Administration of Evacuee Property Act, 1950, then in force, absolving himself from all responsibility with respect to the tenancy rights in respect of the properly which he mentioned in the Schedule.

3. Immediately after this order v/as made, one Moshin Abdulla, who was then a lodger along with the plaintiff, made an application for revision of this order to the same authority and also a review application of this order. At this time it may be mentioned that the then Custodian had retired and a new one came in his place. Immediately this application was made, Mr. Godbole, who was then the Custodian, issued an order directing the landlord not so give effect to the order made on 30th April 1955 by his predecessor. Ultimately the Custodian decided the review application on 18th January 1957 in which he held that the order made by his predecessor was invalid and therefore he set it aside. Against this order in review, the plain-tiff went in revision to the Custodian General under Section 27 of the Act. His application was rejected on 11th February 1958 after hearing the plaintiff, Mohsin Abdulla and all the other lodgers who were lodging in the premises.

4. After this failure, on 20th August 1958, the plaintiff instituted the present suit out of which this appeal arises for a declaration that the order under Section 12A of the Administration of Evacuee Property Act dated 30th April 1955 was valid and binding on the Custodian and that the plaintiff was the lawful tenant of the suit premises, secondly that the orders dated 18th January 1957 and 11th February 1958 of the Custodian and the custodian General were ultra vires, illegal, null and void and ot no effect and prayed that they should be set aside and thirdly he prayed for consequential relief of injunction.

5. The learned trial Judge held that the orders made in the review petition were without jurisdiction and that the order under Section 12A dated 30th April 1955 was valid. In consequence he issued injunction against the defendants.

6. It will be desirable to take up first the question as to whether or not the order dated 30th April 1955 under Section 12A of the Act is a valid order, as a great deal will depend upon its validity. Now, it is significant to note that in the application which the plaintiff made for the allotment of these premises to him, he clearly mentioned that it was a hotel and that the whole business including the licence and the assets should be allotted to him. In his letter dated 31st March 1955 he mentions that he was an occupant of two rooms in the hotel which was originally run by A. Rashid and since then the property was taken over by the Custodian under his management. In paragraph 3 of his letter he says, there were arrears of Rs. 3,750 of water tan payable by the hotel to the Cusiodian and the same were not paid, that he was prepared to pay the entire arrears of tax and also the arrears of rent which were due by any of the co-ledgers provided (hat the Cusiodian was prepared to transfer and hand over the management of the Hotel together with its licence ana assets to him, with liberty to occupy the rooms himself whenever they fell vacant or to let them out to toners of his choice. He then refers to the income derived by the Custodian's office from the hotel which he says was Rs. 180 per month as administrative charges while the actual expense could not be more than Rs. 30 per month by way of wear and tear. He then says that the net profit obtained by the Custodian's Office was approximately Rs. 150 tor the said premises. It is no doubt true that he mentions that he was paying a large amount for a small and prospective accommodation 'which may or may not be available for months and years to come but being in desperate need of space for my residence and professional work, I nave no other alternative but make this offer'. He then again reiterates that he was an old occupant in that hotel and that his request should be considered sympathetically, to this letter the Custodian made a reply on 15th April 1955. It also seems that he had deposited the amount with the Custodian which he was prepared to pay. The custodian expressed his agreement with the proposal on consideration that the plaintiff paid a sum of Rs. 2186-5-0 in addition to the amount of Rs. 3750 already deposited by him. Tne Custodian stated that the amount of Rs. 2185-5-0 was made up of Rs. 986-5-0 which were further arrears on account of faxes and water charges and arrears of rent over and above RS. 3750, and Rs. 1200 which the plaintiff had to pay in lump as further consideration for his agreeing to the plaintiff's proposal. He also clearly mentioned therein that he realised the difficulty of the plaintiff in running the hotel without furniture and he therefore permitted him to utilise the furniture till such time as it was required to be returned to the original owner in pursuance of the movable property agreement between India and Pakistan. A condition was made that the furniture should be returned at a month's notice. He then stated that the plaintiff was entitled to keep the telephone and licence and deal with them as he pleased. What is more important is, he further said 'You ate hereby hand-ed over the management of the hotel together with its licence, furniture, telephone etc., with effect from 16th April 1955. You are permitted to occupy the rooms of the hotel yourself whenever they fall vacant or you may let them out !g others at your choice'. He was also prevented from evicting the present lodgers who were occupants in the hotel.

7. In a letter dated 23rd April 1955 the plaintiff again mentions Hotel Marina together with its licence, furniture, telephone etc. He also mentions therein mat it was clearly understood between them that the Custodian was transferring the management of the hotel together with its proprietary and tenancy tights to him. Then comes the letter of the 26th April 1955 by the Custodian to the plaintiff wherein he says in answer to the letter of the plaintiff dated 23rd that he had transferred the management of the hotel together with its proprietary and tenancy lights to the plaintiff. On 29th April 1955 the Custodian made a further order, which is annexed as 'Ex. C' to the plaint and therein he said 'In order to avoid the trouble of collecting taxes, rents etc. for the period 1st April 1955 to 16th April 1955 it is agreed by and between Dr. Maqsood (the plaintiff) and the Custodian that the possession and proprietorship of the Hotel shall be taken as transferred to him as from 1st April 1955 instead of 16th April 1955 and that for the period of 15 days Rs. 50 shall be taken, at the Custodian's profit in the hotel. He therefore asked him to pay that amount. Then comes the order dated sum April 1955 where the Custodian slated that he (Custodian) would stand absolved of all responsibility with respect to the tenancy rights described in the schedule of the property annexed therewith and the lease granted by him in respect of the property particulars whereof were mentioned in the schedule, fn the schedule he refers to the tenancy nights of the evacuees in 'business premises' in the hotel Manna.

8. Now, if the statements in all this correspondence, which contains title admissions of the plaintiff, are taken into account, the order would clearly seem to be one which is without the powers of the Custodian. Section 10(1) of the Administration of Evacuee Property Act gives powers to the Custodian to take such measures as he deems proper or expedient for securing, administering, preserving and managing any evacuee property. Sub-section (2) of section 10 defines those powers without prejudice to the generality of the provisions contained in Sub-section (1). Sub-section (2) so far as is relevant, says that the custodian may for any of the purposes aforesaid transfer in any manner whatsoever any evacuee property, notwithstanding 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 otner undertaking of the evacuee, except with the previous approval of the Custodian General. Now, if what is transferred to the plaintiff is a business and it is transferred as a matter of sale, then certainly it being admitted mat the Custodian had not obtained sanction of the Custodian General, the order must be treated as without his powers ana . invalid.

9. It is, however, argued by Mr. Mehta that the Custodian has large powers of management and transfer as shown by this section including the transfer contained in clause (o) of Section 10(2). According to him, there is in fact no sale of the running business in favour of the plain-tiff and therefore it cannot be said that the order is invalid. He also says that according to the plaintiff's evidence, there was in fact no business done though it was termed a 'Hotel' and therefore also the order does not fall within the proviso to clause (o) of Section 10(2). One cannot forget that the evidence in the present case is given after years of the happening of the events, though it is true that the admissions in the letters written by the plaintiff himself must be treated as mere admissions ana cannot be said to be conclusive in the sense that tna plaintiff is entitled to show that those admissions are erroneously made. It is indeed true that the plaintiff has asserted in his evidence that there was no board at any time, that there was no licence for the hotel and that he and the others were merely lodgers in the premises. Except his assertion that there was no licence, no evidence has been led by him in the present case. It would nave been very easy for him to establish that there was no licence issued by the municipal authorities in favour of the owners of the Marina Hotel by calling someone from that office. It would also have been easy for him to show that the police authorities had not issued any licence in their favour which is ordinarily required to be taken for running Hotels and Lodging Houses. Mr. Mehta contends that the opponents have not led any evidence what so ever to establish the contrary of his assertions. This argument does not take into accounce the basic rule of law that it is for the plaintiff to establish his case. He came to the Court with a case that this was not a business contrary to the admissions which he had made in the correspondence. The burden, therefore, lay upon him to show that the admissions were erroneous not merely by an assertion on oath but by such evidence as he could have led reasonably and properly. It is impossible to say that he has discharged the elementary burden which lay upon him to establish that his admissions were erroneous. Tne least that can be said is that there were lodgers, that they were paying a total amount of Rs. 905 to the evacuees which amount continued to be collected for some time at least, by the Custodian and that the evacuees were making profit out of the lodging of the occupants in these premises. At several places in the correspondence, Rs. 180 is described as a profit of the Custodian and the 20 per cent, that was charged by him was on the total collections which were made by the evacuees as the part of the profit. Nothing is pointed out from which it can be inferred that the Custodian was entitled to charge 20 per cent, as administrative charges tor the purposes of his employees. 20 per cent, clearly represents the profit out of the collections which were apparently made by the evacuees. Apart from this, the plaintiff admits at page 28 of the Paper-book in his cross-examination that he was paying to Moshin Abdulla every month the lodging charges that were agreed upon between him and Moshin Abdulla, that he was not paying any amount separately for electric, gas, telephone charges and salaries of sweepers and the staff and that those charges were borne by Moshin Abdulla art behalf of Khan and Qureshi. Even alter those two were declared evacuees, Moshin Abdulla continued to collect at the same rate as before. Even after the notification declaring them evacuees, the lodgers continued to use the same furniture and the amenities as before. He also says that by his letter he meant the transfer of Marina Hotel. Lastly he admitted that it was his impression that the business of Hotel Marina was carried on in flats Nos. 2 and 13 and therefore, he haa asked for the transfer of the management of the business in his favour by his letters dated 31st March and 23rd April 1955. These admissions clearly show that he has not discharged the burden which lay upon him to show that his admissions made in the correspondence were made through any error or were mistaken. It must, therefore, be held that what was transferred to the plamliu was a running business. As to whether it made any substantial profit or toss is a different matter.

10. The argument that this is an ordinary transfer and that it does not come within the proviso to clause (o) of Section 10(2) of the Act also don not appeal to me. There is no particular charm in the word 'sate' or in the word 'transfer'. The word 'transfer' is a larger word and the word 'sale' is a specific word. A transfer may be by means of lease, by means oi a mortgage or by means of a sale or in any other mode. In effect, what is sought to be done by the Custodian is a sale of business ana nothing else. It may be that the price that he has charged is a very small price or that he has made a free gut of it. The fact remains that he has not retained any control over the affairs of this business after the transfer. It must therefore be held to be a sale -- and that is made further clear when he says in his letter dated 31st March 1955 that Rs. 1,200 which the plaintiff was 1o pay in lump was consideration for his (Custooian's) agreeing to the proposal of the plaintiff. It is, therefore, dear that though the price may be inadequate, it in erect is a sale of Hotel Marina and not merely a transfer for mere running the hotel with retention of control in him. It this is so, the order is clearly invalid.

11. Section 12A moreover does not apply to any and every case, it only applies to those cases where the leasehold rights of the evacuee have vested in the Custodian and the Custodian has granted a lease to another. It is only in such cases that he can make a declaration. In the present case it is true that the order dated 30th April 1955 recites that lease has .been grant so by him but the statement is not true. As the correspondence shows all the occupants were lodgers. The Business was transferred to the plaintiff as from 1st April 1955. At no time was any lease granted by the Custodian to the plaintiff. There is not one order nor even one piece of document either produced by the plaintiff or called tor from the custody of the defendants to show that In fact there was any lease whatsoever by the Custodian in favour of the plaintiff. No one can assume, jurisdiction or validate his orders by making an incorrect recital in the order. The condition for exercise of power under Section 12A is not satisfied and on this ground also the order ought to be held to be invalid.

12. It is argued by Mr. Mehta that the validity of the order dated 30th April 1955 Is not a matter In question. It is difficult to agree with this submission, if the order Is Invalid in the sense that it Is without authority or jurisdiction of the Custodian, that order can always be disregarded and subsequent arrangement could be made by another officer. Now, the order that is sought to be challenged as being ultra vires not only purports to set aside the order dated 30th April 1955 but also purports to make a further order showing the manner in which the Custodian intended to dispose of this property, the Custodian in his order dated 18th January 1957 clearly says that it was proposed to take action under section 10(2)(o) of the Act recommending permanent allotment of the respective shares in the business to all the lodgers of the Marina Hotel and that the valuation ot their shares would be made in accordance with the latest instructions on the subject contained in Government's order Wo. 9106/P.M./56 dated 24th December 1956. In this few of the matter, if the order date 30th April 1955 is held to be invalid as being without authority, even assuming that the Custodian had no jurisdiction to review the order, this part of the order must be held to be valid.

13. Though it is not necessary to consular the other points in view ot what I have stated above, I will shortly deal with the points which have been considered by the Court below and which have been argued before me. Mr. Mehta argues that the Custodian has no power to review an order made by his predecessor. This argument divides itself into several branches. His first contention is that Section 26 as contained originally In the Act of 1950 was repealed by Act 91 Of 1956 and therefore power ot review was lost. Now, Section 26 was omitted by an ordinance, it sought to amend the Act of 1950 in several particulars and by Section 9 of the Act it omitted sections 25, 26, 29, 30, 31, 33, 35, 42 and 55(2) of the Act. This Ordinance was later on substituted by Article 91 of 1956. Mr. Mehta relies upon Section 16 of the amending Act wherein Sub-section (2) reads as under:

'Notwithstanding such repeal, (i.e. repeal of the Ordinance) anything done or any action taken in tha exercise of any powers conferred by or under the said Ordinance shall be deemed to have been done or taken in the exorcise of the powers conferred by or under this Act, as it tma Act were in force on the date on which such thing was done or action was taken.'

14. It is argued that this section clearly shows that the right of review was not intended to be saved even in pending proceedings. Mr. Mehta enforces his arguments by reference to the observations of the Supreme court to the case of Indira Sohanlal v. Custodian of Evacuee Property, Delhi, : [1955]2SCR1117 ll)f in respect of similar'words In Section 58(3) of tha Act or 1950. It is undoubtedly true that the words used in sub- section (3) of Section 58 of the Act and the would used to Section 16(2) in the amending Act are simile to the extent of the latter part of Sub-section (3) of Section 58 Now, in the case before the Supreme Court, the question was whether the right to go in revision to the Custodian General was available to the party In a case where the application was made before Act 31 of 1950 was enacteo. While considering, that question, their Lordships emphasise the provisions of Section 55 of the Ordinance in questions which provided that notwithstanding any repeal By the Ordinance of the Administration of Evacuee Property Ord-nance, 1949, or of any corresponding law, anything done or any action taken In the exercise of any power confreres by that Ordinance or law shall be deemed to haw been done or taken In the exercise of the powers comer red by the Ordinance, etc. In view of that provision the Court held that whatever was done under the provisions or the previous law was to be deemed to be done under the Ordinance and if that was so, this provision being a sen-contained provision Section 6 of the General Clauses Act-had no application. In the result they upheld the right of revision in the Custodian General, This authority would be applicable only in respect of anything dons under Ordinance 6 of 1956 and no more. Neither in the ordinance 6 of 1956 nor in the Amending Act 91 Of 1956 any special provision is made in respect of pending matters, and that being so, ordinary rule contained in Section 6 of the General Clauses Act must necessarily apply. If that is so, review would be competent.

15. It is, however, argued that a right to review or right to make an application for review is not a vested right, and if it is not a vested right any amendment must necessarily apply in respect of such a proceeding. mR. Mehta has cited before me cases of Sawaldas Madhavdas v. Arti Cotton Mills, : AIR1955Bom332 , and Sipahimalani v. Fidahussein, 58 Bom LR 344, wherein it has been observed that a review is an independent proceeding and that inasmuch as large amount ot discretion is vested in the Court or in the authority to whom an application of review is made, it cannot be regarded as a vested right, in the present case the question is not whether it is vested fight from the date of the original application on which the order, of which review is sought, is made. If section 6 of the General Clauses Act applies, which I hold applies, it saves by clause (e) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. Now, in the present case, even assuming that mere making of an order dated 30th April 1955 would not have given Moshin Abdulla a right to make an application for review after the amendment of the ACT, since the application was already made and it was pending, when Ordinance 6 of 1956 was promulgated and Amending Act 91 of 1956 was enacted, that application is clearly saved. It is clearly a legal proceeding which was then pending and which cannot be affected by the amendment. Apart from it, Moshin Abdulla was already on the premises as a lodger and if an order was made prejudicial to him a remedy by review was available to him and I do not see why it could not be regarded as a remedy in respect of a right or wrong which is saved. The observations in cases were made in a different context and can have no application to the wording of Section 6 of the General Clauses Act.

16. It is then contended that in any case, remedy or review could be available to the applicant only on grounds which are defined in Order 47 Rule 1 of the Civil Procedure Code i.e. if there is a discovery of new fact or matter which was not brought before the Court by excusable mistake or on account of some mistake or error apparent on the face of the record or for any other sufficient reason which the Court may deem proper. He is supported In his contention by the decision of the Patna High Court in BIDI Nazma v. R. P. Sinha, AIR 1954 Pat 43, where the learned Judges took the view that the expression 'review' must lie construed in the context and background of the code of Civil Procedure where the same expression has been used. At page 45 they observed:

'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. .... In our opinion the expression 'review 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, Civil Procedure Code'.

I may point out, with respect, that it is not possible to hold that the word 'review' has been the subject-matter of construction by Courts in India and that it has acquired a restricted meaning. No authority has been cited where this word has been interpreted and given 3 restricted meaning either narrower than that contained in the Civil Procedure Code or larger. Apparently the framers of the Code realised that mere use of the word 'review' might enable a Court to reconsider its decision without any limitations and it Is for that reason that the scope of a review application has been limited in Order 47 of the code. Even with the limiting words which were used in Order 47, Interpretations placed upon these words were varied a no divergent until the Privy Council stepped in in the case of Chhajju Ram v. Neki, 49 Ind App 144: AIR 1992 PC 112. It is only on the ground of diversion in the judicial inter Interpretations that the Privy Council interpreted the warns 'sufficient cause' to mean, cause at least analogous to that which preceded the use of that expression. I think that the analogy of the powers of Civil Court to authorities constituted by an Act like the present is not appropriate. (See Sita Rain Goel v. Municipal Board, Kanpur : [1959]1SCR1148 ). The history ot reviews Charles Bright and Co., Ltd. v. Seliar, (1904) 1 KB 6 shows that originally in Chancery Courts opportunity to correct decision was afforded by a petition to renear. The matter was heard by the same Judge or another Judge and rehearing does not seem to be limited to any particular ground. This could be done only if the order or decision was not enrolled. If the order or decision was sealed then it could be reviewed only on limited grounds cf fresh evidence being found or error apparent on the face of the record. The limitation of the grounds on which a matter could be reheard depends on the fact of the order being sealed. There can be no reason to impose such limitation on the power of review in cases of orders made under this Act.

17. The ordinary meaning of the word 'review' as given in Aiyar's Law Lexicon is as follows:

'A review is a proceeding which exists by virtue of statute. It is in its nature a new trial of the issue previously tried between the parties. The cause of action being brought into Court again for trial by new petition. The proceeding in some respects resembles a writ of error and also a new trial.'

In considering the scope of this word, one must also remember that this was an Act which was passed in an emergency. Moreover, most of the hearings would be any in the presence of one party and sometimes by inexperienced officers. Mistakes were therefore likely to be committed in large numbers. Sametime orders may be passed on ex parte representations and inadequate legal aw. It may therefore be that the Legislature thought that larger power of review must be vested in the others concerned to set the matters right where injustice was caused to any party. One must also bear in bind the ordinary fume ot construction that 'when a word is capable of being construed either in its popular sense or as a word ot art, it is for those who assert that it is used in a technical, and not in a popular sense, to establish the tact.' (see Halsbury's Laws of England, 2nd Ed., Vol. 31, page 481). In view of the circumstances which obtained at the time when this Act was enacted, it is very likely that larger powers of review were intended to be given to the officers concerned and unless there were substantial reasons to hold that the review was intended to be limited only to the circumstances mentioned in the Civil Procedure Coae, the meaning of the word cannot be cut down. As station above, there is nothing, in the first place, to show that the word 'review' by itself has acquired a technical sense and looking to the provisions of the Act there can b'e no reason to give it a limited meaning only. In that view of the matter it is not necessary for me to consider as to whether or not in the present case there was art error apparent on the face of the record or it was a latent or patent error. I have shown above while considering tie order of 30th April 1955 that the order is clearly invalid.

18. Though I have given comparatively wider meaning to the word 'review', it does not mean that merely because a succeeding officer takes a contrary view that he is entitled to set aside that order. It might for example include cases where an order is obtained behind the back of a parly interested in the passing of the order or by suppression of facts or for some other reason which shows that the order is clearly illegal in law. My conclusion on the validity of the order in the beginning of the judgment brings this case within this limit, and if that is so, the Custodian was entitled to set aside the order.

19. The second branch of the argument is that the power to review is available only to the officer who made the order and not to his successor. The words of section 26(2) are 'The Custodian, Additional Custodian or Authorised Deputy Custodian (but not a Deputy or an Assistant) may, after giving notice to the parties con-cerned, review his own order'. Mr. Mehta emphasis's me word 'own' used in the last part of Section 26(2). He refers me to the provisions of Order 47 Rules 2 and 5 of the Civil Procedure Code which lay down limitations as the person who can hear a review application, it seems to me difficult to accede to this argument. The provisions contained in Rules 2 and 5 of Order 47 emphasize the fact that but for those provisions it would nave been possible for succeeding officer to deal with the review application. The word 'own' has been necessary since the power is given to several officers of varying authority to review the order. In the absence of the word 'own', the Deputy Custodian might be called upon to review the order of a Custodian and an Additional Custodian may be called upon to review the order either of a Deputy Custodian or a Custodian -- a thing which was likely to introduce chaos in the administration of law. In order to confine each one within his own authority, the word 'own' has been usea. I am supported in this view by a decision of the Pepsu High Court in Kartar Singh v. Custodian Muslim Evacuee Properly, Pepsu, AIR 1952 Pepsu 82.

20. It is then contended that the language of section 26 taken in its context must necessarily indicate that review could only he suo motu and not on an application of a third party. Mr. Mehta refers to Section 26(1) and Section 26(3) and Section 27 of the Act where the Legislature has indicated that the powers could be exercised by any of these officers either on his own motion or on an application made to him in that behalf. How, Section 26(1) gives power to the Custodian, Additional custodian or Authorised Deputy Custodian to revise an order made by an officer subordinate to him. Sub-section (3) deals with a special subject and that is in respect of an intending evacuee. It is possible that so far as Sub-section (3) is concerned, the words 'on application made to him in this behalf have been used because special provision had to be made as a proviso in respect of certain matters. Even otherwise, merely because these words are absent in Sub-section (2) It is impossible to hold that the decision could be reviewed only suo motu. It may be that the draftsman did not want to repeat the same language, while dealing with different subject-matters. (See Maxwell on inter Interpretations of Statutes, 9th Ed., 326-327 and cases cued therein). I do not see any reason why the words 'suo motu' should be added in Sub-section (2) in preference to the words 'application of the party'. In this case it fs convenient for Mr. Mehta to argue that review could be made suo motu, though in another case he may argue that the words 'on the application of a party' must be inlerpolated. There is no justification made out for adding only one cf them. If it is construed to mean that the power could be exercised only if the officer acts suo motu, it may cause a great deal of injustice in many cases where the illegality or impropriety of an order cannot be discovered except when an application is made by a party who is affected by the order. Taking into account the purpose of enacting the section, it is impossible to limit its application either to one case or other, it must include both. I am not therefore prepared to hold that the powers must be exercised only suo motu and not on an application of a person aggrieved by the order.

21. Relying on his evidence, it has been argued on behalf of the plaintiff that Moshin Abdulla had no right to make an application for review. It is argued thai the person, who is entitled to make an application in review, must be a person who is aggrieved by the order made by the officer. The plaintiff stated in his evidence that Moshin Abdulla was in arrears of payment of the lodging charges for the rooms occupied by him, that he did not pay the amount in spite of the demands made by the Custodian, that the Custodian took possession ot the rooms occupied by Moshin Abdulla and that they were handed over to him by the Custodian and that this happened prior to the order dated 30th April 1955. It was at the instance of Godbole, the succeeding officer, that he handed over one room back to Moshin Abdulla. viewed from the point of view of this evidence, the argument may no doubt appear to be attractive since there is no evidence in conflict with this evidence. In the first place, the plaintiff ought not to have been allowed to travel beyond his own pleadings. In his plaint, which is a very long document, he has not raised this ground for invalidating the order of review. On the contrary, in paragraph 13 he clearly mentions that the allotment in favour ot Monsin Abdulla was cancelled on 30th April 1955 i.e. on the same day on which the purported order was made in favour of the plaintiff but alter the order of transfer of the business. It is argued by Mr. Mehta that the plaintiff is not required to give the reasons in the plaint for the invalidity ot an order. It is difficult to appreciate the contention made. The invalidity is not by reason of law but by reason of the incapacity of Moshin Abdulla to make the application of review on the ground that he was not in occupation of the property and that none of nis rights was affected as the Custodian had evicted him De-fore the suit premises were granted to him. This is cieany a fact which would entitle the plaintiff to the relief which he claimed and if that is so, he was clearly bound to allege in the plaint the facts which showed that Moshin Abdulla could not make an application for review. Even otherwise, paragraph 13 of the plaint clearly shows that both these orders were simultaneous and Moshin Abdulla's right to continue in the property as a lodger on behalf ot the Custodian or to get the properly assigned to him were clearly affected and he was entitled to make the application which he made.

22. Mr. Rane has argued that in any case the order of Mr. Verma, the Custodian, at Exhibit E has merged in the order made by the Custodian General at Exhibit G ana unless the plaintiff pressed that that order be also set aside, it is not possible for him to get any relief in this suit. In the view that I have taken, it is not necessary to deal with this point.

23. Mr. Rane has urged a further point that under Sections 28 and 46 of the Act, the orders made by the Custodian and also by the Custodian General must be treated as final and the Civil Court would have no jurisdiction to question the validity or legality of those orders. I find it difficult to uphold this contention, in cases where the order made by a tribunal or authority of a limited jurisdiction is without jurisdiction or a nullity, the order can be always challenged in a Civil Court. See Abdul Majid v. Nayak : AIR1951Bom440 ; Abdulmiyan Abdul Rehman v. Govt. of Bombay : AIR1942Bom257 and Husein Miya v. Chanounnai : AIR1954Bom239 . mere is, therefore, no substance in this contention of Mr. Rane.

24. It is undoubtedly true that the plaintiff has paid a large amount and .has been inconvenienced a great deal because of the orders made by the officers. Taking into account all these facts, it would te desirable to direct the parties to bear their own costs.

25. In the result, I allow the appeal, set aside the order made by the learned trial Judge and dismiss the suit. Parties to bear their own costs. Status quo to be maintained for one month 'from to-day.

26. Appeal allowed.


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