# JOGINDER SINGH AND OTHERS v. THE DEPUTY CUSTODIAN GENERAL OF EVACUEE PROPERTY

- **Citation:** [1962] 2 S.C.R. 738
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** 1\. Subba Rao, Raghubar Dayal, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/joginder-singh-and-others-v-the-deputy-custodian-general-of-evacuee-property-2290
- **Pages:** 9

## Headnote

Rvacuee
Property-Quasi-permanent al.lotment of rural
property-Cancdla.tion of-Custodian General-Power to cancel
allotment after July 22,1952-Ad-ainistration of Evacuee Proper•
ty Act, 1.950 (31 of 1950) ss. 26 and
27-Administration of
Evacuee Prop rty Rules, r. 14 ( 6).
Respondents Nos. 4 to 9 who were displaced persons from
Paki~.tan, 'vere allotted certain
rural
lands
in
village
Karodian on a quasi.permanent basis.
On information being
received
from
Pakistan that they
were
entitled
to
urban allotment their allotment in village
Karodian
was
cancelled and they were allotted urban land. The land thus
vacat~d in village Karodian was allotted to the appellants. On
July 22, 1952, r. 14(6) of the Administration of Evacuee
Property Rules was amended and the power of the custodian
to cancel quasi-permanent allotments of rural evacuee property
\\'as taken away except in certain enumerated c.:ircumstances.
Thereafter respondents Nos. 4 to 9 applied to the Custodian for
shifLing back their allotment to village Karodian on the ground
that they were really entitled to allotment of rural property.
The Custodian dismissed the application holding that r. 14(6)
did not pennit the cancellation of the allotment of the appellants.
Respondents Nos. 4 to 9 filed a revision application before the
Custodian General who allowed the application and cancelled
the allotment of the appel!ants. The appellants contended
that the Custodian General had no power to cancel their
allotment. The respondents replied that the wide powers of
the Custodian General under s.27 of Administration of Evacuee
Property Act 1950, were not affected by the restrictions i~pos
...
ed by the amended r. 14 (6) on the power of the Custodian to
cancel allotrnents.
Il eld, that the Custodian General had no power to cancel
an allotment of rural property made on a quasi·permanent bai;is
in a revi<;ion application against an order of the Custodian
made after July 22, 1952. The power of the Custodian under
s. JO of the Act to cancel allotments was subject to the rules.
The amended r. 14(6) restricted the power of the Custodian to
cancel such an allotment to the circumstances mentioned therein and the present case did not fall within any of those excep-
2 s.c.R. SUPREME COURT REPORTS
739
tions. Amended r. 14(6) could not be resorted to for cancellation of allotments made before July, 22, 1952.
The power of
the Custodian General under s. 27 of the Act was to see whether the order passed by the Custodian was legal and proper ;
he had no power to do something which the Custodian could
not have done or which he was prohibited from doing.

## Text

1961
738
SUPREME COURT REPORTS
(1962
JOGINDER SINGH AND OTHERS
v.
THE DEPUTY CUSTODIAN GENERAL OF
EVACUEE PROPERTY
(1\. SUBBA RAO, RAGHUBAR DAYAL AND J. R.
MuDHOLKAR, JJ.)
Rvacuee
Property-Quasi-permanent al.lotment of rural
property-Cancdla.tion of-Custodian General-Power to cancel
allotment after July 22,1952-Ad-ainistration of Evacuee Proper•
ty Act, 1.950 (31 of 1950) ss. 26 and
27-Administration of
Evacuee Prop rty Rules, r. 14 ( 6).
Respondents Nos. 4 to 9 who were displaced persons from
Paki~.tan, 'vere allotted certain
rural
lands
in
village
Karodian on a quasi.permanent basis.
On information being
received
from
Pakistan that they
were
entitled
to
urban allotment their allotment in village
Karodian
was
cancelled and they were allotted urban land. The land thus
vacat~d in village Karodian was allotted to the appellants. On
July 22, 1952, r. 14(6) of the Administration of Evacuee
Property Rules was amended and the power of the custodian
to cancel quasi-permanent allotments of rural evacuee property
\\'as taken away except in certain enumerated c.:ircumstances.
Thereafter respondents Nos. 4 to 9 applied to the Custodian for
shifLing back their allotment to village Karodian on the ground
that they were really entitled to allotment of rural property.
The Custodian dismissed the application holding that r. 14(6)
did not pennit the cancellation of the allotment of the appellants.
Respondents Nos. 4 to 9 filed a revision application before the
Custodian General who allowed the application and cancelled
the allotment of the appel!ants. The appellants contended
that the Custodian General had no power to cancel their
allotment. The respondents replied that the wide powers of
the Custodian General under s.27 of Administration of Evacuee
Property Act 1950, were not affected by the restrictions i~pos
...
ed by the amended r. 14 (6) on the power of the Custodian to
cancel allotrnents.
Il eld, that the Custodian General had no power to cancel
an allotment of rural property made on a quasi·permanent bai;is
in a revi<;ion application against an order of the Custodian
made after July 22, 1952. The power of the Custodian under
s. JO of the Act to cancel allotments was subject to the rules.
The amended r. 14(6) restricted the power of the Custodian to
cancel such an allotment to the circumstances mentioned therein and the present case did not fall within any of those excep-
2 s.c.R. SUPREME COURT REPORTS
739
tions. Amended r. 14(6) could not be resorted to for cancellation of allotments made before July, 22, 1952.
The power of
the Custodian General under s. 27 of the Act was to see whether the order passed by the Custodian was legal and proper ;
he had no power to do something which the Custodian could
not have done or which he was prohibited from doing.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 457/58.
Appeal from the Judgment and order dated
September 12, 1956, of the Punjab High Court in
Letters Patent Appeal No. 38 of 1955.
N. 0. Ohatwrjee and Naunit Lal, for the
appellants.
Nanak Chand, for the respondents Nos. 4 to 9.
1961. May 4. The Judgment of the Court was
delivered by
1961
Joginder Singh
v.
The Deputy
Ou8tod·ian
General ~f
Evacuee
Property
MuDHOLKAR, J.-In this ~.ppeal under Art. 133
Mudholkal' J.
(1) (c) of the Constitution the question which
arises for consideration is whether after July 22,
1952 the Custodian of Evacuee Property in the
State of Punjab or the Custodian General hearing
an appeal from an order made by the Custodian
after July 22, 1952 has the power to cancel an
allotment of rural evacuee property on a quasipermanent basis except upon the grounds set out
in r. 14 (6)
of the Administration of Evacuee
Property Rules, 1950 as amended by notification No. S. R. 0. 1290 dated July 22, 1952 .
. The circumstances under which this question
arises may now be briefly stated. The appellants
and their father Nand Singh were displaced persons
from West Pakistan and got allotment of some land
in the village Raikot, _District Ludhiana.
on
a
temporary
basis.
Later,
each
of
the
appellants 1 to 3 was allotted 8-1/3 standard
acres
of land
on
a
quasi-permanent basis
while Nand Singh, their father who was entitled to
41 standard acres and 7 units and to whom land
to that extent had been temporarily allotted in the
1961
J ogi nder Singh
v.
1'lte l!eputy
Cu.<todian
Gemral of
Evacuee
Proptrly
Mudholkar J.
740
SUPREME COURT REPOR'l'S
[1962]
yillage Raikot was allotted the same acreage of
·land in the village Hambran which is situate at a
distance of25 or 30 miles from Raikot. Nand Singh
made an application for revising the order under
which this was done but he died in the year 1951,
during the pendency of that application. The appellants as his legal representatives continued the
application. That application was rejected and a
revision application made against the order passed
thereunder was also rejected on the ground that
after July 22, 1952 the Additional Custodian was
not competent to cancel an allotment made in
favour of any person except upon the grounds set
out in r. 14 (6) of the Evacuee Property Rules.
Respondents 4 . to 9 owned lands in Chak
No. 127, G. B. Jaranwala, District Lyallpur and are
also displaced persons. They were, therefore,
allotted certain lands in the village Karodian as
quasi-permanent
allottees. Subsequently
some
revenue papers were received from Pakistan f:r:om
which it appeared that they were entitled to urban
allotment. They., therefore, brought this matter
before the Deputy Commissioner exercising the
powers of Deputy Custodian. Thereupon he cancelled the allotment
in
their favour sometime
in
the
year
1952
and
proposed
to
the
Additional Custodian, who was also acting as
Director of Relief and Rehabilitation, for the allot.
ment of the lands which were originally allotted to
the respondents to others.
Appellant No. 2, Gopal Singh, on behalf of his
father Nand Singh applied to the Director of Relief
and Rehabilitation that the allotment in the name
of his father Nand Singh might be shifted from the
village Hambran to the village Karodian. The
Additional Custodian not only allowed the Application of Gopal Singh and shifted the allotment of
Nand Singh to the village Karodian but he also shifted the entire allotment of the appellants Nos. I to 3
from the vitlage Raikot to the village Karodian with
2 S.C.R. SUPREME COURT REPORTS
741
the result that the lands allotted to the family were
consolidated in the same village. 'The appellants
thereupon obtained possession of the Karodian
lands.
Respondents 4 to 9 were allotted urban lands,
which according to the appellants are more valuable
and are of a superior quality. They did not prefer
an application for review of the order of cancellation of their earlier allotment or of the order passed
by the Additional Custodian allotting their lands
to the appellants.
Six months later, however, respondents 4 to 9
preferred an application before the Additional Custodian stating therein that the land abandoned by
them in West Pakistan was rural and that their
allotment should be shifted back to the village
Karodian. To this application they did not make
the appellants parties. The Additional CuRtodian
held that he could not cancel the allotment in favour of the appellants in view ofr. 14(6) of the Evacuee
Property Rules already referred to. He, however,
recommended the case to the Custopian General of
India by his mf,mo, dated October 14, 1953, for
taking appropriate action. The Deputy Custodian
General who heard the case sent it back to the
Addit,ional Custodian observing therein that. if
the respondents 4 to 9 are restored to their
original lands the persons to whom those lands
had been
allotted
will have
to be
shifted
elsewhere and this process
may involve "an
interminable chain
of cancellation of allotments." He also observed that if the Additional
Custodian could not cancel the allotment because of
the coming into force of the amended r. 14 (6), the
Custodian General also would he incompetent to
cancel it. Thereafter the Adrlitional Cnstodian heard
the application of the respondPnts 4 to 9 on merits
and dismisser!
it.
Aga.i1rnt his order
dismissing the a pplica ti on respondents 4 to 9 preferred
a revision application before the Custodian General.
Curiously enough the Deputy
Cu~todian General,
1§61
Joginder Singh
v.
Tht Deputy
Ou•tolian
General of
Evacuee
Property
Mudhalkar J.
1961
J oginder Singh
v.
The Deputy
Custodian
Genera.I of
Evacuf'.e
Property
Mudholkar J.
742
SUPREME COURT REPORTS
[1962]
who heard it, this time granted the application
and set aside the allotment in favour of the appel-.
lants. The appellants thereafter moved the High
Court of Punjab under Art. 226 of the Constitution.
The matter went up before a single Judge of the
High Court who dismissed the petition observing as
follows:
"If the order of cancellation against the
present opposite parties was made after the
22nd July, 1952, the order was inoperative in
view of Rule 14 (6) and if it be said that the
order of allotment was after the date then
Rule 14 (6) is not bar to the cancellation of
the order. In either case I am of the opinion
that there is no error in the order of the
Custodian General sufficient for the purpose
of quashing his order . "
The appellants thereupon preferred an appeal
under the Letters Patent which was also dismissed
by a Division Bench of the High Court. The substance of the reasoning of the learned Judges is that
the allotment in favour of respondents 4 to 9 was
wrongly cancelled and it was the duty of the Custodian to restore to them the lands from which
they were ousted. They also said that the provisions
of r. 14 (6) did not preclude the Deputy Custodian
General from exercising the powers conferred upon
him by s. 27 of the Administration of EYacuee Property Act or prevented him from cancelling the
allotment made after July 22, 1952.
The view taken by the Division Bench to the
effect that r. 14 (6) did not stand in the way of tlw
Custodian General or the Custodian from restoring
the lands to the respondents tlw allotment with
respect to which was wrongly cancelled liy the Custodian cannot be sustai1wd.
No doubt it is one of
the highest duties of all eotll'ts to tak0 rare that tht>
act of the court <loes not do injury to rnitors; hut
the court must ·have power to rectify the wrong.
2 S.C.R. SUPREME COURT REPORTS
743
Such power may either inhere in the Court or. may
be expressly conferred by statute. The law does
not confer any express power on the Custodian to
make restitution. But we will assume that he had
inherent power to do so. Just as power can be conferred expressly by statute it can also be taken
away or restricted and where it is taken away or
restricted then, whether the power was statutory in
its origin or was inherent in the court, it will be
either wholly unexercisable or exercisable only subject to the conditions laid down in the statute, as
the case may be.
Here we have the notification
dated July 22, 1952 which substituted the present
sub-r. 6 of r. 14 for the original sub-r. 6. The amended
sub-rule has placed a limitation on the powers of
the Custodian to cancel allotment of rural evacuee
property on a quasi-permanent basiR.
The result is
that an allotment of such land can be cancelled
only in the circumstances specified in that sub-rule.
Therefore, subsequent to July 22, 1952 the Custodian of Evacuee Property would have the power to
cap.eel an allotment only upon a ground which falls
within the exceptions enumerated in sub·r. 6. Making
of restitution is not within the exceptions and,
therefore, it will have to be said that the inherent
power of the Custodian to cancel an allotment for
making restitution has been abrogated by the amended sub-rule.
The other argument of the Division Bench is
to the effect that the powers of the Custodian General under s. 27 are untouched by sub-r. 6 of r. 14
and that despite the making of this rule the Custodian General was not prevented from cancelling an
allotment made after July 22, 1952. Now s. 27 of
the Act provides that the Custodian General may
call for the record of any proceeding in which a
District Judge or a 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.
The
1961
Joginder 8i11{1h
v.
The Deputy
0'1J8wd;an
General of
Evatuee
Properly
Mudholkar J
1961
Jcginder Singh
v.
The Deputy
Cuatcdian
Gen<ral of
Evacuee
Property
Mvdlwlkar J,
744
SUPREME COURT REPORTS
(1962]
District Judge or the Custodian can in any matter
before him do only that which the act or the rules
made thereunder permit or require him to do.
If he fails to do what he is required to do or if he
does something which he is not permitted to do or
if he commits an error in doing an act which he is
permitted to do, the Custodian General has the
power to order that to be done which the law requires the Custodian or the District Judge to do or to
quash that which has illegally been done or to
rectify the error which the Custodian or the District
Judge has committed. He has no power to do something which the Custodian or District Judge could
not have done or was prohibited from doing. Clearly, therefore, the High
Court was in error in
holding that the limitations placed by the present
sub-r. 6 of r. 14 did not affect the power of the
Custodian General.
The learned single Judge as well as the Division Bench have taken the view that where an
allotment is made in favour of a dispbt'ccl person
subsequent to July 22, 1952, the provisions of sub-r. 6
of r. 14 did not preclude the Custodian from cancelling that allotment. This view is sought to be
supported by Mr. Nanak Chand on behalf of respondents 4 to 9 on, what he says, the language of subr. 6 of r. 14.
He says that according to this subrule what the Custodian is precluded from doing is
to cancel an allotment which had already been
made, that is, made before the coming into force of
the sub-rule except upon certain grounds and does
not place any further restrictions. We do not find
any justification for placing such a restricted interpretation upon the plain language of the Sub-rule.
Learned counsel then referred to the second proviso
to the sub-rule and contended that it supported the
interpretation which he was placing. The proviso
reads thus:
"Provided that where an allotment is cancelled or varied under clause (ii) the allottee
2 S.C.R.
SUPREME COURT REPORTS
745
shall be entitled to retain such portion of
the land to which he would have been
entitled under the scheme of quasi-permanent allotment of land:
Provided further that nothing in this subrule shall apply to any application for
revision, made under s. 26 or s. 27 of
the Act, within the prescribed time, against
an order passed by a lower authority on or
before 22nd July, 1952."
How this proviso supports the argument of the
learned counsel is difficult to appreciate. The proviso was not originally there when sub-r. 6 was
amended on July 22, 1952. It is possible that a
doubt w~s entertained after the making of this subrule on the question whether the Custodian General
or the Custodian before whom a revision application
had been made against an order passed before July
22, 1952, could make an order c"<ncelling the allotment. Apparently to remove the doubt such as
may have existed this proviso had been added.
Then learned counsel contended 'that this subrule can not take away the wide powers conferred
upon the Custodian bys. 10 of the Act.
No doubt
s. 10 confers wide powers on the Custodian but the
opening words of the section show that the powers
conferred thereby ar!l subject to the provisions of
rules made under the Act and s. 56 (2) (i) enables
the Central Government to make rules to provide
for "circumstances in which leases and allotments
may be cancelled or terminted or the terms of any
lease, or agreement varied." We have, therefore,
no doubt that the High Court was in error in holding that sub-r. 6 of r. 14 was not a bar to the
exercise by the Custodian General of the power to
cancel an allotment after July 22, 1952.
Having failed on the point which alone finds
a place in the statement of the cases of both the
1961
Joginder Singh
v.
The Deputy
ou.todian
General of
Evacuee
Proputy
Mu4holkar J.
1961
Joginder Singh
v.
The Deputy
Ou•todian
General of
Evacuee
Property
Mudholkar J.
746
::>UPREME COURT REPORTS
[1962]
parties, Mr. Nanak Chand raised a contention that
the allotment iu favour of the appellants was itself
bad because the cancellation of the allotment in
favour of the respondents 4 to 9 was in contravention of r. 14 (6) and that, therefore, the appellants
were not entitled to the relief from the High Court
under Art. 226 of the Constitution and accordingly
are not entitled to any relief in thi8 Court. Since
the respondents have not relied upon this ground
in the statement of their case we are not prepared
to consider it. There may be more than one .inswer
to the point urged by the respondents and had they
specifically raised it in their statement of case, the
appellants would have been in a position to give an
appropriate answer.
Accordingly we allow the appeal with costs
and quash the orders of the High Court as well as
of the Deputy Custodian General.
There is one more matter to which we must .
refer. It is this. During the hearing of the appeal
!earned counsel for the appellant brought to our
notice the fact that on the records of the proceedings before the Deputy Custodian General there
was a slip of paper from which it would appear that
Deputy Custodian General had been approached by
the then Speaker of the Punjab Assembly apparently ou behalf of the respondents. We, therefore,
asked for a report from the High Court. That
report has come and it exonerates both the
ex-Deputy Custodian General as well as the
ex-Speaker. We are not satisfied with the report.
However, considering the fact that the matter has
become quite stale and we have allowed the appeal
we do not propose to examine the matter further.
Appeal allowed.