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Bawa Dalip Singh Vs. the Government of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 810D of 1962
Judge
Reported in6(1970)DLT161
ActsAdministration of Evacuee Property Act, 1950 - Sections 54
AppellantBawa Dalip Singh
RespondentThe Government of India and ors.
Advocates: R.L. Sambhar and; O.P. Malhotra, Advs
Excerpt:
.....regulating the administration of any property which has vested in the custodian pass such order, as in its opinion, the circumstances of the case require. as a matter of fact it was precisely on this presumption that the exchange was sanctioned by the authorised deputy custodian and the custodian general. his contention is that impugned order of the deputy secretary to government of india clearly shows that it was greatly influenced by the report given by the inquiry conducted by shri s......exchange. it is alleged that the deputy commissioner, hoshiarpur, in his capacity as authorised deputy custodian sanctioned the exchange on 29th may, 1951 and the said exchange was affirmed and sanctioned by the custodian general vide his order dated 18th july, 1953. it is further stated in the petition that the order of custodian general dated 18th july, 1953 has been passed after taking into account the complaint filed by one mohinder singh in the year 1952. it is further alleged that the central government after a lapse of 11 years passed the impugned order dated 3rd may, 1962 by which the said exchange sanctioned by the authorised deputy custodian and the custodian general has been cancelled.(3) written statement has been filed by mr. m. j. srivastava, settlement commissioner on.....
Judgment:

Rajinder Sachar, J.

(1) This is a petition under Articles 226 and 227 of the Constitution of India for the issuance of a writ of certiorari or any other writ praying for quashing the order of the Deputy Secretary to Government of India dated May 3, 1962 by which he cancelled the exchange granted by the Authorised Custodian by his order dated 29th May, 1951 and also sanctioned by the Custodian Genera] of India by his order dated 18th July, 1953 by which the petitioner's land comprising of khasra Nos. 57, 94, 141, 4582 measuring 7 kanals and 14 marlas situate in village Darapur Dharamkot, District Hoshiarpur. was allowed to be exchanged with evacuee land bearing khas. Nos. 961/@, 201 to 204 M, 963/247, 96/197, 984/215, 937/197 situate in the same village.

(2) It is alleged in the petition that after the petitioner had applied for the said exchange the Patwari and the kanugo supported the proposed exchange on the ground that the land to be surrendered by the petitioner was of superior quality as compared to the land sought in the exchange. It is alleged that the Deputy Commissioner, Hoshiarpur, in his capacity as Authorised Deputy Custodian sanctioned the exchange on 29th May, 1951 and the said exchange was affirmed and sanctioned by the Custodian General vide his order dated 18th July, 1953. It is further stated in the petition that the order of Custodian General dated 18th July, 1953 has been passed after taking into account the complaint filed by one Mohinder Singh in the year 1952. It is further alleged that the Central Government after a lapse of 11 years passed the impugned order dated 3rd May, 1962 by which the said exchange sanctioned by the Authorised Deputy Custodian and the Custodian General has been cancelled.

(3) Written statement has been filed by Mr. M. J. Srivastava, Settlement Commissioner on behalf of the Government of India. The written statement admits that the sanction of the exchange was made by the Deputy Commissioner as well as Custodian General by his order dated 18th July, 1953. It is however, maintained that another complaint was made in 1957 and that the matter was then got investigated by Shri S. L. Malhotra, the then Officer in charge (Complaints). It is stated in the written reply that the said evidence revealed that the area surrendered by the petitioner was rural and was very inferior and that the land obtained in exchange was evacuee urban land. It is further stated that as the order sanctioning the land was obtained by the petitioner fraudulently, by suppressing the fact and in collusion with the local Revenue Officials, action was taken by the Central Government under Section 51 of the Administration of Evacuees' Property Act (XXXI) of 1950 (hereinafter referred to as the Act) and revised the order of the Custodon General. It was, thereforee maintained that the order of the Deputy Secretary to Government of India dated 3rd May, 1962 was within the jurisdiction and was just.

(4) A rejoinder was filed by the petitioner. In the said rejoinder it was stated that it was wrong that the Deputy Commissioner, Hoshiarpur, had not been authorised by the Custodian General to pass the order of exchange. It was also denied that the land of the petitioner was inferior to the land which he had got in exchange. It was mentioned that the schedule of prices prepared by the department from the Mutation register, the price per kanal of the evacuee land with a-premium of 12' % worked out to Rs. 236 while that of the petitioner land worked out to Rs 343/1 1/6 per kanal. It was also denied that the village Darapur was ever included in the municipal limits of Urmar Tanda. It was also strongly denied that the exchange was got in collusion with any revenue official or other official In para 3 of the preliminary objection objection was taken to the use having been made of the secret report of Mr. Malhotra behind the back of the petitioner. As I shall be dealing with this aspect, para 3 of the preliminary objections is reproduced and it is as under:-

'PARANo 3 as stated is incorrect. The secret report of Shri S. L. Malhotra obtained behind the back of the petitioner was never shown to the petitioner. Consequently its use was prejudicial to the interest of the petitioner and was against all cannone of justice and equity.'

(5) Mr Roshan Lal. the learned counsel for the petitioner has attacked the findings of the Deputy Secretary to the Central Government on three points.

(6) His first point is that the order sanctioning the exchange passed by the Custodian General on 18th July, 1953 was final and that. thereforee, the Central Government had no power under Section 54 of the Act to reopen the said decision- He has in this connection referred me to Chapter V. Sections 24 to 28 of the Act. He has specifically referred to Section 28 of the Act and according to him this section makes final the order passed by the Custodian General and thereforee, the Central Government cannot by virtue of power under Section 54 of the Act revive the same. His argument is that it is only the general instructions that can be issued under Section 54 of the Act and that it is not within the jurisdiction of the Central Goveroment to revive the order passed by the Custodian General. I regret my inability to accept this contention. Section 54 of the Act is worded in wide terms and clearly provides that the Central Government may for the purpose of regulating the administration of any property which has vested in the Custodian pass such order, as in its opinion, the circumstances of the case require. It is not disputed that the property which was the subject matter of the exchange was vested with the custodian. As a matter of fact it was precisely on this presumption that the exchange was sanctioned by the Authorised Deputy Custodian and the Custodian General. The fact whether the property was got exchanged by colluding with the official and, thereforee, a fraud was played on the department are matters which are relevant on which if the Central Government so feels it can take action under Section 54 of the Act. It cannot be gain said that if as a matter of fact a fraud has been played on the department by under valuing the evacuee property and if such a fact comes to the notice of the Central Government it cannot be in the fitness of things to revise such an order. The power of revision given in the statute is not necessarily to be so stated in explicit terms. The Supreme Court in a case reported as The State of Punjab and another v. Hari Krishan Sharma while dealing with the word 'control' to be found in Section 5(2) of the Punjab Cinemas (Regulations) Act opined that having regard to the scheme of the section, it may not be unreasonable to hold that such a provision gives power of revising the order of the licensing authority. The ratio of the said case would also apply to the present case and I thereforee, hold that the Central Government is competent to revise the order of the Custodian General, if in its opinion, the circumstances so demand.

(7) The second contention of Mr. Roshan Lal is that the order of the Central-Government has been passed after a period of Ii years and that even assuming the Central Government can exercise power under Section 54 of the Act, yet it cannot do so after lapse of so many years. He has, however, conceded that there is no time limit mentioned in Section 54 of the Act He pays that on some equitable principles it should be held that the Central Government though not barred by statute from exercising its power after lapse of so many years should however, be held to be barred from exercising its powers when number of years have elapsed from the order of exchange. I regret I cannot accept this contention because there is nothing in the statute barring the Central Government from exercising its power within a particular period. If the statute does not lay down the time within which the Central Government is to exercise its revisional power the court cannot fix a period on the assumption that anything beyond this particular time will be unreasonable one. It is true that it is very harsh that transactions which have taken place years before should be reopened after such a long time but the remedy if a.ny must be with the legislature and the court cannot supply this lacuna.

(8) The next point urged by Mr. Roshan Lal is very formidable one and has great force. His contention is that impugned order of the Deputy Secretary to Government of India clearly shows that it was greatly influenced by the report given by the inquiry conducted by Shri S. L. Malhotra. A perusal of the finding of Deputy Secretary shows that he lias reproduced copiously from the said report of Shri Malhotra the effect that the property of the petitioner was of low valuation than the property which he got in exchange. It is thus quite clear that the decision of the Deputy Secretary was mainly influenced by the adverse comments made by Shri Malhotra in his report. The petitioner had alleged in his rejoinder in para 3 which has been reproduced above that this report of Shri Malhotra was never shown to the petitioner and consequently he has been greatly prejudiced by its user by the Government: No counter to this rejoinder was sought to be filed by the Government. It must, thereforee, be accepted as correct that the petitioner was never given an opportunity to rebut the allegations made in the report of Shri Malhotra. It is an elementary rule of natural justice that the material or a report which is to be used against a person, the same must be made available to lim so that he can controvert it . if an action is taken against a person on the basis of a material which has not been supplied to him, he is greatly prejudiced and any decision which is arrived at by relying on ex-parte report cannot be accepted I thereforee. agree with Mr. Roshan Lal that the order of the Deputy Secretary dated 3rd May, 1962 (Annexure B) deserves to he quasted as it has relied on a material which his never been supplied to the petitioner I, thereforee, quash the order dated 3rd May 1962 (Annexure B )

(9) I, however, in exercise of my power under.article 226 of the Constitution send the case back to the Central Government with a direction that if they wish to exercise power under section 54 of the Act they must do so after giving notice to the patitioner and after making avialable to him the report of Shri Malhotra and any other evidence that they wish to use against him.

(10) Mr. Koshan Lal has also drawn my attention to the allegations made in the petition in clanse (viii) of para 11 in which it is stated that the land surrendered by the : etitioner had been a lotte I to several other persons in the consolidation proceedings and that it cannot be restored without upsetting the entire repartition of the village, it is stated in clause (ix) of para 11 of the petition that the petitioner has spent more than Rs. 80,000 on the land which he has got in exchange. These are points for consideration which will have to be weighed by the Central Government while disposing of this revision petition. I must, however, make, it clear that until the Central Government is in a position to restore back the land of the petitioner it will not be proper for it to proceed to recover the said lard which is at present with the petitioner. The Central Government will, thereforee, not dispossess the petitioner from the land which is with him unless they first resore to him the land which originally belonged to him.

(11) In the result, I allow the writ petition and quash the order of the Deputy Secretary dated 3/5/1962 (Annexure B). The Central Government will dispose of the matter in the light of the directions given above. The petition is, thereforee, allowed with costs.


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