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PETITIONER:

BEHARI KUNJ SAHKARI AWAS SAMITI & ANR.

Vs.

RESPONDENT:

STATE OF U.P. & ORS.

DATE OF JUDGMENT: 14/08/1997

BENCH:

S. B. MAJMUDAR, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majmudar, J.

Leave granted.

By consent of learned advocates, all these appeals are

heard finally. Short question involved in these appeals is

indicated by order dated 04th October 1996 while issuing

notice in the main S.L.P. The order reads as under :

"Application for substitution

allowed.

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.

No stay."

Consequently, we will be concerned only with this short

question. Few relevant facts leading to these appeals

deserve to be noted to appreciate the nature of the

controversy posed for our consideration.

By an order dated 11th November, 1982, the Custodian of

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 Evacuee Property for his approval on

the same 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 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

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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 writ petition of the State of U.P. and all the three

were heard together by a 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 first authority, namely, the Custodian and

consequently, the proceedings in revision were remanded for

fresh decision on merits. Certain 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 original order, he was exercising his

jurisdiction under Section 10 of the Act, sub-Sections (1)

and (2) (o) of which read as under :

"10. 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 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 imposed

on him any of the duties imposed on

him by or under this Act and may,

for any such purpose as aforesaid,

do all acts and incur all expenses

necessary or incidental thereto.

(2) Without prejudice to the

generality of the provisions

contained in sub-section (1), the

Custodian may, for any of the

purposes aforesaid-

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

(o) 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 other

undertaking of the evacuee, except

with the previous approval of the

Custodian-General;"

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 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 of 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

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Custodian General as 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:

"27. Powers of revision of

Custodian-General.-(1) The

Custodian-General may at any time,

either on his own motion or on

application made to him in this

behalf, call for the record of any

proceeding in which any Custodian

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:

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."

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

undertaken for the purposed 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 Custodian was already approved by the

Custodian-General's delegate, the very same delegating

authority, namely, the Custodian-General's delegate, the

very same delegating 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 or an exercise of review power

which does not flow from the four corners of Section 27 of

the Act.

Under these circumstances. the revision 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 the scheme of the Act, such a conclusion is

clearly unsustainable.

In this connection, we may 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, J., for the majority had to consider whether the

appellate jurisdiction conferred on the State Government

under Section 42 of the East Punjab Holdings (Consolidation

and Prevention of Fragmentation) Act, 194B, could be invoked

for challenging the order passed by a delegate of the powers

of the State who as a delegate 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 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

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41(1). That the words 'any order passed .... by an officer

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. Consequently, it must be held that the proceedings in

revision as filed before the Custodian General under Section

27 of the Act by the State of U.P. were clearly incompetent.

Once this conclusion is reached, the result becomes obvious.

The original order dated 11.11.1982 could not be revised by

the Custodian General.

However, in the writ petition filed by the State of

U.P. before the 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

consequential 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

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 prayer, the only proper 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 justified on merits

or not.

In the 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 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 preferable within a period of 4 months from the

receipt of a copy of this order at the end of the High

Court.