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Judgment
Chopra, J.—In these petitions (Nos. 126, 147 and 148 of 1951) under Article 226 of the Constitution of India for writ of certiorari or other appropriate direction to the respondents to forbear to evict the Petitioners from land allotted to them, identical questions of law are involved and they have, therefore, been heard together and I propose to decide them by this order. Different plots of land at Sanaur were allotted to the Petitioners in petitions Nos. 126 and 147 by the orders of the A.C.R., Patiala dated 5th and 6th March 1950, and lands at village Khuda, were allotted to the Petitioners of Petition No. 148 by order of the same authority dated 24-2-50. The Petitioners in the three petitions originally belonged to village Tal-wandi-Rai-Wali in District Gujranwala, now in West Pakistan, which at the time of the allotments was reckoned in grade No. 1. Villages Sanaur and Khuda, in Patiala District, also fell in the same grade and the Petitioners were, therefore, allotted lands at those villages and possession thereof was also delivered to the Petitioners. On a subsequent readjustment, village Talwandi Rai-wali was down graded to No. 2 and information of this fact was given by the Registrar Land Claims Department of Rehabilitation, JuTmndur, to the Director Rehabilitation Pepsu, by his letter dated 28-6-50.
As a result of this down grading, the A.C.R. District Patiala, vide his orders dated 17-4-1951, cancelled the allotments in favour of the Petitioners of Sanaur and directed that allotments according to the new grtide to which they were entitled, should be made afresh. In case of the allottees of village Khuda, the A.C.R., vide his order dated 31-7-1951, issued them a notice to appear before him on 4-8-51 and show cause why the allotments in their favour be not cancelled. This notice was personally served on three of the Petitioners (of petition No. 148) and with respect to others, the process-server reported that they had refused to accept the notice. On the date fixed viz., 4-8-51, the A.C.R. held the Petitioners to be no longer entitled to the land at Khuda, a village of grade No. 1, and, therefore, cancelled the allotments previously made in their favour. The orders of the A.C.R., cancelling the allotments are challenged before us as without jurisdiction and also illegal because of no notice of the contemplated cancellation having been issued to them.
On the first of the objections, which was however, not raised in so many words in the petitions, reliance is placed on Clause 3(b) of Notification No. 7-R, dated 23-7-49 issued by the Rehabilitation Department which provided that in case of lease or allotment of agricultural land or village immovable property, a Rehabilitation Authority not lower than the rank of a Deputy Commissioner would be competent to pass an order of cancellation or modification of the lease or allotment. It is urged that an A.C.R. being of lower rank than a Deputy Commissioner was not authorised under the law to cancel the allotments already made in favour of the Petitioners. Clause 1 of these rules provided that they would come into force immediately and Clause 2 described the conditions under which an allotment could be terminated, cancelled or modified. The learned Counsel for the respondents on the other hand placed their reliance on another notification issued by the same Department on behalf of the Custodian on that very day, viz., 23-7-1949. This is number 9-R, and contains the statement of conditions on which the Custodian would grant allotment of land vested in him to displaced persons.
Clause 6 of this rule reiterates the conditional of resumption of an allotment given in Clause 2 of 7-R, and further provides that the Custodian''-'' or the Rehabilitation Authority, as the case maybe, under those conditions shall be competent to resume, amend, withdraw or cancel the allotment. The Rehabilitation Authority is meant to include an A.C.R. by Ordinance No.1 13 of 2006 under which these rules were framed and the term, as provided by Clause. 2 of Notification No. 9-R, is to have the same meaning form the purposes of those rules as assigned to it by the Ordinance. It is, therefore, urged that t the A.C.R. was competent to resume, withdraw or cancel the allotments in these cases. It may here be observed that both the Notifications No 7-R & 9-R were issued on 23-7-1949, in exercised of the powers conferred by Section 31, Patiala State Rehabilitation (Administration of Property) Ordinance, 13 of 2006, and were published in the Patiala Government Gazette dated 23-l-2006 (7-8-1949). Ordinance 13 of 2006 was, however repealed by Section 40, Pepsu Administration of Evacuee Ordinance No. 17 of 2006, which was published in the Government Gazette dated 16th Sawan 2006 (31-7-1949). Rules No. 7-R and 9-R were thus published after the Ordinance under which they were framed had ceased to exist.
The position taken by the learned Counsel for the Petitioners is that since Rules 7-R (sic) were to come into force at once i.e. on 23rd day of July, 1949, the date of the notification they were saved by Sub-section 2 of Section 40 of the Repealing Ordinance 17. With respect to Notification No. 9-R, on the other hand, it is contended that it was to take effect on the day it was published in the State Gazette and since it was so published on a date before which the Ordinance which authorised the issue of such, notification had ceased to exist, it was without the necessary sanction and authority and was, therefore, ultra vires and could not be saved by Section 40(2) of the Ordinance. The argument is that Sub-section 2 of Section 40 of the said Ordinance could save actions take or orders made in exercise of the powers conferred by the repealed Ordinance only if the action was taken and order made at the time that Ordinance; was still in farce.
With respect to this Notification (No.9-R) it is further submitted that it was issued by the Custodian and contained only the statement of conditions on which he was prepared to grant allotment of land vested in him to displaced persons and that it was not meant to and also could not confer authority to cancel an allotment to an officer who otherwise was not so competent. Similar arguments with respect to the enforceability of Notification No. 7-R wore advanced on behalf of the respondents and it was urged that the provisions in the rules that they were to come into force immediately could not create any difference, since Section 31 of Ordinance .13 of 2000 authorised the Government to frame the rules "by Notification in the official .gazette" and so long as they were not so published they could not be considered to have come into existence and have the force of law.
We have been addressed at length by the learned Counsel of the parties on these and some such other points, but to me a discussion of these points in these cases appears to be entirely unnecessary. I do not think here we need adjudicate upon the legality and enforceability of these law and rules, or otherwise. This is for the simple reason that the objections raised in these petitions are fully covered by the Administration of Evacuee Property Act (31 of 50), which had been promulgated before the orders canceling the allotments in question were made .and which over-rides all previous central as well as State laws and Ordinances on the subject. Sub-section 1 of Section 12 of the Act, which gives authority to the Custodian to cancel an allotment already made, reads as follows:
Notwithstanding anything contained in any other law for the time being in force, the Custodian may cancel any allotment or terminate any lease or amend the terms of any lease or agreement under which any evacuee property is held or occupied by a person, where such allotment, lease or agreement has ''been granted or entered into after the 14th day of August, 1947.
Section 2(c) of the Act provides that the term ''Custodian'' wherever used in the Act means Custodian in the State and includes any Additional. Deputy or Assistant Custodian of Evacuee Property appointed in the State.
By virtue of this definition, a Deputy Custodian in any State also is authorised to take faction u/s 12 and cancel an allotment which was granted after the specified date. The allotments in the present cases were admittedly made after that date and are, therefore, covered by this provision of the law. Section 6 of the Act makes provision for the appointment of Custodians, etc., and authorises the State Governments by notification in the Official Gazette to appoint for the State a Custodian & as many Additional Deputy or Assistant Custodians of, Evacuee Property as may be necessary for the purposes of discharging the duties imposed on the Custodian by or under the Act. In the exercise of the powers so conferred, the Pepsu Government by notification No. 36 of 11-9-50, published in the Union Government Gazette dated 17-9-1950, appointed all the Assistant Commissioners Rehabilitation to act as Deputy Custodians within their respective jurisdiction it may be remembered that the orders of cancellation of allotments in these cases were made by A.C.R. Patiaia after the publication of this Notification in the Official Gazette. It consequently follows'' that the orders, if they were made u/s 12 of the Act, cannot be said to be without jurisdiction or authority.
It is also further evident that the law does not require that a notice shall be given to the person in possession of the property or its allottee before an order canceling the allotment is made. Reference in this connexion has been made to Sub-clause 4 of Rule 14, Administration of Evacuee Property (Central) Rules, 1950, which is to the following effect:
Before canceling, or varying the terms of a lease or before evicting any lessee the Custodian shall serve the person or the persons concerned with a notice to show cause against the order proposed to be made and shall afford him a reasonable opportunity of being heard.
This rule explicitly enjoins upon the Custodian to give notice to the persons concerned to show cause against the proposed order and to afford him an opportunity to be heard before canceling or varying the terms of a ''lease'' or before evicting a ''lessee''. There is no provision in the Act or in the Rules framed thereunder, which explicitly requires such notice to be given in the case of an order canceling allotment. Rule 14, referred'' to above, does not apply to such a case, for the simple reason that an allotment is not the same thing as lease and as defined by Section 2(A), it means
the grant by a person duly authorised in this behalf of a right of use or occupation of any immovable evacuee property to any other person, but does not include a grant by way of lease.
This point is fully covered by a Division Bench decision of this Court dated 12-2-52 in - ''Sant Sajjan Singh v. Custodian General Muslim Evacuee Property'' C.M. No. 179 of 1951. In that case also, the legality of the order of the Custodian canceling an allotment was challenged on the ground that no notice of the, contemplated cancellation had been issued to the allottee and reliance in this connexion was placed on Rule 14(4) referred to above. Kesho Ram. Passey J., while refuting the contention'' of the Petitioner''s, counsel, made the following, observations:
Lease is thus distinct from an allotment and Sub-clause 4 of Rule 14, mentioned above, relates to leases only and had no applicability to allotments. Although I am of the view that an allotment once made should not be lightly or arbitrarily cancelled and that no order of cancellation should ordinarily be made at the back of the allottee, 1 am, because of the absence of specific provision in the relevant, law prescribing issue of notice before cancellation of allotment, unable to hold that the Custodian in the present case, acted illegally or without jurisdiction in canceling the allotment in favour of Sajjan Singh, which existed on paper only and had not been given effect to by delivery of possession of the house to him.
My learned brother, Hon''ble the Chief Justice, who was also a member of that Bench concurred with the decision and I am in respectful agreement with the observations reproduced above. The further fact that the allotment in favour of the Petitioner of that case was only a paper transaction and had not been given effect to by delivering possession of the allotted house, does not create any difference so far as the applicability of the Rule is concerned. Our attention has also been drawn to a Single Bench judgment of this Court dated 6-5-52, delivered by Gurnam Singh J. in - ''Barkat Singh v. Custodian Muslim Evacuees Property'' C.M. No. 251 of 1951. The facts of that case were these. A house in Patiala was allotted to Barkat Singh Petitioner by order of the Assistant Custodian, Patiala. When the house was about to be vacated by the then occupant of it, the Petitioner on 6-12-1951, applied to the Custodian for its possession being delivered to him. The Petitioner on this application was directed to appear before the Custodian on 11-12-1951, but on that date he was informed that the order of allotment of the house in his favour had been cancelled by the Custodian on 7-12-1951. This was done at the back of the Petitioner on the application of some other claimant to the house and only a day prior to the suspension orders of the Custodian. The allegations o� the Petitioner that the order canceling the allotment was mala fide and was made after the Custodian had come to know of his suspension orders with a view to help a favorite of his, was accepted by the Court and the order was held to be illegal on that ground.
It was also observed that the order in context was made under Sub-section (1) of Section 26, Administration of Evacuee Property Act (31 of 50), which relates to the powers'' of revision of Custodian and provides that the officer shall not pass an order under that sub-section revising or modifying any order of an officer subordinate to him, prejudicial to any person without giving such person a reasonable opportunity of being heard. Obviously this was a case in which the Custodian revised the order of allotment made by a subordinate officer and cancelled it on the application of a supposed, better claimant ,and it, therefore, fell u/s 26(1) of the Act. The position of the Petitioners in the present cases, the facts of which are widely different, is that they fall under Sub-section (2) of Section 26, and the above decision, therefore, is of no help to the Petitioners. ''Sardara Singh v. Custodian Muslim Evacuees Property'' AIR 1952 Pepsu 12 was a case of lease. A vacant piece of land in Patiala was leased out to the Petitioner in that case for a period of three years and the rent was fixed at Rs. 20/- p.m. The Petitioner got possession of the plot and set up therein a workshop for service and repairs of Automobiles and Tractors. Later on, the Custodian cancelled the Petitioner''s lease in respect of a part of the plot and leased it out to another applicant with a view to enable him to set up a petrol pump and service-station. The question raised in the petition for writ before the High Court was that the order of the Custodian canceling the Petitioner''s lease so far as it related to a part of the plot was illegal and without jurisdiction, because no notice of the Custodian''s intention to vary the terms of the original lease before the expiry of the period for which it was granted, was given to the Petitioner.
The case was undoubtedly covered by Rule 14(4), Administration of Evacuee Property (Central) Rules, 1950, and my learned brother Hon''ble the Chief Justice, white emphasising the importance of the provision of law as embodied in the rule, observed as follows:
Though a Custodian of Evacuee Property appointed under the Act cannot be described as a court of law, his functions are ''quasi judicial'' and it is incumbent upon him to follow the provisions of law as well as the rules that have the force of law. Consequently when he ignores the mandatory rule i.e., Rule 14(4) and cancels or varies an allotment without giving notice to the persons likely to be evicted by his order, he acts without jurisdiction and his order must be quashed under Article 226 of the Constitution.
The Petitioner had described the lease in his favour as an allotment, though for all intents and purposes it was in fact a lease for a particular period and on a fixed rent. It was probably for this reason that the term ''allotment'' instead of ''lease'' was used in the observation reproduced above. But this is of no significance and does not mean that the learned Judge intended to hold that the rule was applicable to cases of allotment as well, although it expressly refers only to a lease and the eviction of a lessee. If may be remembered that Act 31 of 1950 creates a clear distinction between the two terms and its Section 2 expressly provides that an allotment does not include a grant by way of lease. Every case is to be regarded as decided on its own facts. This case also, therefore, does not support the Petitioner''s contention.
Now Section 26(2) of the Act on which reliance is placed, reads as follows:
The Custodian, Additional Custodian or Authorised Deputy Custodian (but not a. Deputy or an Assistant Custodian) may, after giving notice to the parties concerned, review his own order.
It is contended that it was by way of review of his own prior orders by which the allotments were made in favour of the Petitioners, that the A.C.R. cancelled the allotments and that the orders of cancellation, therefore, were made and fall under this Sub-section of Section 26. For this reason, it is, urged, firstly that the A.C.R. being not an Authorised Deputy Custodian could not review his own orders or those of his predecessor-in-office and cancel the allotments; and secondly, that it could not be done without giving proper notice to the Petitioners, who were ''the parties concerned. It is consequently, stressed that the subsequent orders oil the A.C.R. were without jurisdiction and illgal. The argument is that while Section 12 of the Act gives authority to the Custodian to cancel allotment already made, Section 26 provides the procedure that is to be followed before an allotment is cancelled. It is correct that if the orders in question are regarded, as made u/s 26(2) they would be illegal and. without jurisdiction inasmuch as they were not made by an Authorised Deputy Custodian and were also made without giving any opportunity to the previous allottees for being heard.
But I cannot help thinking that the law does not enjoin that every order canceling an allotment can only be made by way of revision or review of the order granting the allotment. My own view is that Section 26 does not cover all cases in which an allotment can be cancelled by the Custodian u/s 12 of the Act. The two sections are to be, read, interpreted and applied separately and one cannot be said to over-ride or govern the other. There appears to be no force in the argument of the Petitioners'' counsel that Section 12 only gives the authority while Section 26 provides the procedure for cancelling an allotment. The Act does not say so expressly and the indications are just the other way. As already observed, Deputy Custodian is authorised by Section 12 of the Act to cancel an allotment, but u/s 26(2) it is only an Authorised Deputy Custodian who can review his own orders. If in every case, the order of cancellation of allotment were to amount to a review of the previous order of allotment, a Deputy Custodian, without being so authorised, would not be competent to make such an order. Such an interpretation would render a part of Section 12 nugatory and ineffective and bring it in conflict with Section 26(2). This can never be regarded the intention of the Legislature and such an interpretation of a Statute has always to be avoided.
I can, however, conceive of a case where an order canceling an allotment may amount to review of the previous order of allotment, but , to say that in every case it is so, would not be correct. Review is a proceeding which exists by virtue of statute. It is in the nature of new trial of the issue previously tried between the parties, the cause of action being brought into'' the court or before the officer again for trial by a new petition. The proceeding in some respect resembles a writ of error. Review means to re-examine or to see again on facts that already existed and to correct the mistake, if any was committed, on those facts. But where an order, which was right when it was made, can and is set aside by a later order on the ground of the happening of some subsequent event, it cannot be regarded to have been done by way of review of the previous order. To put it in other words, if an order is found to have'' been based oh misapprehension of the true state of circumstances existing at the time when it was made and is subsequently set aside, cancelled, corrected or rectified it would surely be by way of review of that order, but if because of something that happens subsequently it becomes necessary to rescind the previous order, the second order cannot be regarded as one reviewing the first order. In such a case it would be a fresh, separate and original order standing by itself. Thus, an order canceling an allotment on the ground of some mistake, irregularity or illegality committed when the allotment was made would be by way of review of the previous order, but if the cancellation is necessitated because of the happening of some subsequent event the order canceling the allotment would be an original order by itself, falling u/s 12 of the Act.
For instance, an allotment is validly made subject to certain terms and conditions, but at some subsequent stage it is found that the. allottee has not fulfilled or acted according to those terms and conditions and it becomes necessary to vacate the allotment. Authority to cancel an allotment is expressly vested in the Custodian by Section 12 of the Act and the general power to review his own order is also given to him by Section 26(2) of the Act. The order canceling the allotment in such a case would be one u/s 12 and it would not amount to a review of his previous, order u/s 26(2). Even if I were to accept the argument of the learned Counsel for the Petitioners that Section 26 is a general provision and Section 12 deals with particular cases, it would not create any difference. When on the same subject two incompatible provisions are in force, one general and the other particular, the particular provision must be taken to be an exception to the general one. My own view, therefore, is that the orders of cancellation in the present cases, based as they are on the necessity that had subsequently arisen because of the down grading of village Talwandi-rai-wali, were and could be made under the authority given to the. A.C.R., by Section 12 read with Section 2(c) of the Act. The mere fact that the A.C.R. in two of the cases (Nos. 126 and 147) described; the proceedings before him as those of review does not make any difference, .We have to see to the legality of the orders and not to the name given to the proceedings. It has already been observed that the law does not require notice of the contemplated order to be issued before an order canceling an allotment is made u/s 12 of the Act. It may further be observed that in petition No. 148 a notice was in fact issued to the Petitioners of that case. The fact that it was not personally served, on all of them is of no significance.
Natural justice, no doubt, requires - and that is the general rule as well that an order prejudicial to any person should not be made at his back and without affording him reasonable opportunity to be heard, and. that the Defendant should not be condemned without giving him a hearing. But the cases before us are not to be decided merely on the principles of natural justice or of some general rule. The question is one of interpretation and application of a particular statute. The law itself makes a distinction between an allotment and a lease, and while providing for a notice in case of the proposed cancellation of a lease, it does not make any such provision where an allotment is to be cancelled. The law is to be-interpreted as it is and not in the light of what the Courts think it ought to be. The intention of an enactment is to be gathered from the language employed by it and where the words-used are clear and unambiguous it is the duty of the Court to give effect to them according to their plain meaning, neither adding to or subtracting from them. For all these reasons I do not see any illegality in the orders in question.
In the result these petitions are dismissed, but in view of all the circumstances of the case the parties are left to bear their own costs.
Teja Singh, C.J.
I concur in the order proposed.