1. This appeal under Clause 10 of the Letters Patent raises the question whether the learned Single Judge was justified in setting aside an order passed by the Deputy Custodian-General.
2. Arjan Singh appellant was allotted 34 standard acres 8 1/2 units of land in village Kirtowal and Kehr Singh respondent was allotted 33 standard acres 12 1/4 units in the same village. On the 6th November 1951 the Authorised Deputy Custodian directed that the appellant who was a bigger of the two allottees should be ousted from the village and the order of the Authorised Deputy Custodian was upheld by the Additional Custodian notwithstanding the fact that during the pendency of the appeal the respondent was allotted an additional 1 standard acre 1 1/2 units and had thus become the bigger of the two allottees. The appellant sought the intervention of the Deputy Custodian-General under section 27 of the Administration of Evacuee Property Act. The latter allowed the petition, set aside the order of the Additional Custodian and directed that the respondent who was the bigger of the two allottees should be ousted from the village. The respondent presented a petition under Article 227 and secured a reversal of the order of the Deputy Custodian-General. The concluding portion of the order of the learned Single Judge was in the following terms:-
'In the matter of ousting it must be that the biggest allottee is ousted and it cannot be said 'that merely because one man has allotments in several villages he should be taken to be the biggest allottee because if that was so he would be ousted from every village. It would be an absurd interpretation to be put on the rupee of allotment. Merely because after Arjan Singh was ousted and some more land was allotted to Kehr Singh is no ground for holding that he becomes the biggest allottee. In my opinion the Deputy Custodian General has misdirected himself and I would therefore allow this petition and quash the order of the Deputy Custodian General'.
3. The instruction which requires the biggest allottee to be ousted appears in paragraph 9 at page 84 of the Resettlement Manual and runs as follows:
'If in a village the area available was not sufficient to meet the claims of all the temporary allottees, then in the descending order of the size of holdings those with the largest holdings would be moved from that village until the point was reached at which the area available balanced the demand.'
4. Although this Court has power to compel a judicial or a quasi-judicial tribunal to perform a function imposed upon it by law, it has no power to correct the decision of a tribunal which is erroneous in point of law or to control the discretion and judgment of such tribunal acting within the scope of its judicial or quasi-judicial power. It can require the tribunal to act but not how to act. It has no power to alter, reverse, or modify a decision already reached, either interlocutory or final, for even though the tribunal has come to an erroneous decision on questions of fact or law, this decision has been arrived at in the exercise of its legitimate functions.
5. It is contended on behalf of the respondent that there was an error apparent on the face of the record, for the Deputy Custodian-General had ordered the eviction of the respondent in defiance of the general instructions issued by Government and in spite of the fact that the appellant was the bigger of the two allottees. This contention appears to me to be wholly devoid of force. In the first place there is no error on the face of the record for neither a statute nor a statutory rule imposes an obligation on the Custodian or any other officer to oust the biggest allottee. The obligation, if any, has been imposed only by an executive instruction which has been issued by Government purely for the guidance of executive officers. This executive instruction cannot override the provisions of Section 27 of the Administration of Evacuee Property Act. Dunichand Hakim v. Deputy Commr. (Deputy Custodian Evacuee Property) Karnal State of Punjab, AIR 1954 SC 150 (A) or limit or abridge the wide powers conferred on the Custodian-General to call for the record of any proceeding in which any District Judge or Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and to pass such order in relation thereto as he thinks fit.
6. Secondly, it seems to me that in any case the Deputy Custodian-General complied with the executive instructions issued by Government, for when the case came up before the Deputy Custodian-General on 4-2-1954 the respondent was the bigger of the two allottees. I am of the opinion that it was within the competence of the Deputy Custodian-General to set aside the order evicting the appellant from the village and to direct that the respondent should be evicted instead. The Deputy Custodian-General did not decline to assume juris, diction in the case or to pronounce upon the matters in controversy between the parties. He did, not exceed the jurisdiction vested in him by law. He did not act in violation of the principles of natural Justice. He merely embodied the reasons for his decision in the order passed by him and those reasons cannot be regarded as bad in law. The order was passed in exercise of the discretion vested in him and having regard to all the circumstances of the case the discretion cannot be said to have been exercised in contravention of recognised judicial principles.
7. For these reasons I would accept the appeal and set aside the order of the learned Single Judge. There will be no order as to costs.
Tek Chand, J.
8. I agree.