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TMI Blog1957 (4) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... ewal which also adjoins the area of village Lambra. Of the two appellants Parduman Singh was allotted land, on temporary basis, in village Begewal, and Bam Narain Singh in villages Beroon Kangri and Ba-gewal, and their third brother Kartar Singh in villages Begewal and Tajpur Kalan. The appellants and their brother were allot- ted lands on quasi-permanent basis in village Bagewal, but before the allotments could be conveyed to them and made effective, upon the application of some third persons those allotments were cancelled and the appellants and their third brother were then allotted lands in villages Lambra, including in the area of be-chiragh village Beroon Kangri, and Bagewal, that is, partly in one village and partly in the other. It is not necessary to give exact area of allotment in each one of these two villages. This was done under the orders, dated January 13, 1950, of Mr. M. S. Randhawa, who was then the Additional Custodian. The appellants and their brother were issued sanads of allotments and it appears they were put in possession of the lands allotted. 3. An application was made some time in March, 1950, by Singha Mal, respondent No. 5, to the then Minister of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was on a Policy File. No such order of the Deputy Commissioner has actually been traced on the file but the reply given on behalf of the respondents is significant for in para. No. 12 of the reply what is stated is that no application for supply of a copy of the order was found on the file. This appears to me not to be a straight reply. In any case, the allegation of the appellants has been that they applied for a copy of the order of the Minister but met with refusal on the ground that the matter related to a Policy File . 5. The appellants and their brother continued making representations to the Minister concerned and also to the Chief Minister but it appears to no purpose. In the end they made an application on June 9, 1951, to Mr. P. N. Thapar, then Financial Commissioner, Relief and Rehabilitation and Custodian, who after some inquiry and treating the application as a revision petition, rejected the application on July 24, 1951, remarking that Eeroon Kangri is a separate revenue estate and has a separate had bast number that is, is not their home village. 6. It was after that that the appellants filed a joint petition under Articles 226 and 227 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the learned Single Judge but there is no appeal by their third brother Kartar Singh. The learned counsel for the appellants has urged - (i) that the order of June 23, 1950, was the order of the Minister cancelling the allotments of the appellants and mere signature under it by Mr. M. S. Randhawa, the Additional Custodian, did not make it his order and that that order is without jurisdiction, (ii) that the order of allotment, dated January 13, 1950, of the Additional Custodian could not be revised by the Custodian and so whatever order the Custodian passed on the application of the appellants does not affect the merits of the case. (iii) that at no stage were the appellants given notice before cancellation of their allotments and the order has been passed at their back and without hearing them and so is invalid. (iv) that Singha Mal, respondent No. 5, did not in fact want an allotment of land in Hoshiarpur District, (v) that respondent No. 5 was not a temporary allottee in Beroon Kangri, (vi) that respondent No. 5 was out of allocation, and (vii) that the appellants had been consolidated with other members of their family in village Lambra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and so the Custodian had to accept the order of the Minister, and (iii) that the brother of the appellants has not appealed from the judgment and order of the learned Single Judge, though his petition and the petition of the appellants were disposed of by the same judgment and order, so the appeal is barred by res judicata. 11. There is no question of res judicata in this case simply because the brother of the appellants has not appealed from the judgment and order of the learned Single Judge in regard to cancellation of his allotment. There is no substance in the argument of the learned counsel for respondent No. 5 that if this appeal results in reversal of the Judgment and order of the learned Single Judge, there will be conflict of decisions, for the appellants are not affected by the omission of their brother to pursue his own case. It may be that the questions for decision in both the petitions were the same but they related to separate properties and were for Bill practical purposes between different parties. This argument is, to say the least, misconceived. 12. It has been pointed out that the original order of allotments was made by the Additional Custodian (Mr. M. S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or terminated or the terms of any lease or agreement varied ; and in pursuance of this power the Central Government has made Rule 14 in the Administration of Evacuee Property (Central) Rules. 1950, and, in so far as that rule is relevant to this case, it reads thus - 14. Cancellation or variation of leases and allotments. -- (1) ..... (2) In case of a lease or allotment granted by the Custodian himself, the Custodian may evict a person on any ground justifying eviction of a tenant under any law relating to the Control of Rents for the time being in force in the State concerned or for any violation of the conditions of the lease or the allotment. (3) The Custodian may evict a person who has secured an allotment by mis-representation or fraud or if he is found to be in possession of more than one evacuee property or in occupation of accommodation in excess of his requirements. (4) ..... (5) ..... (6) Notwithstanding anything contained in this rule, the Custodian of Evacuee Property in each of the States of Punjab and Patiala and East Punjab States Union shall not exercise the power of cancelling any allotment of rural evacuee property on a quasi-permane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a construction does not appear to be reasonable and sound, for the harmonious construction of the sub-section would be to hold that both in considering the legality or propriety of an allotment on revision the Custodian must act according to law for the Legislature could not have intended that in one case he must conform to the provision of law and give what may be described as a judicial or quasi-judicial decision and in another case his decision should take the form of an administrative or executive act. The sub-section is dealing with one subject and the construction suggested gives incongruous meaning to it, and the Legislature could hardly have Intended it to have such meaning. However, the law has not left this matter merely to be settled by an argument. In the first place, Rule 31 (9) provides that any authority hearing any appeal or an application for revision may admit additional evidence before its final disposal or may remand the case for admission of additional evidence and report or for a fresh decision, as such authority may deem fit. and it follows that if, when considering the propriety of a decision of a lower authority under Section 26(1), the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment has delegated its powers either under Section 54 or under sub-r. 6 (iii) (d) of B. 14 to the State Government in regard to cancellation of allotments. Even if all these considerations were to be ignored, the second proviso to Sub-rule (6) of Rule 14 is conclusive that Sub-rule (6) applies even in the case of a revision application under Section 26 of the Act, for the proviso specifically exempts from the application of this sub-rule certain revision applications pending before a given date, it is apparent that even on revision under Section 26(1) the Custodian can only cancel an allotment according to Sub-rule (6) of Rule 14. Once this is clear, the nature of the order in exercise of revisional power under Section 26(1) cannot be substantially different from the nature of the order under Section 12 for under both the provisions cancellation of an allotment cannot take place except in accordance with Sub-rule (6) of Rule 14. It has already been pointed out that the learned Advocate General has conceded that because the Custodian in cancelling an allotment under Section 12 has to comply with Rule 14, so he cannot take the advice or order of a Minister in doing so. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature has used the term 'review', which is of known legal significance, and must be taken to have used it not in its grammatical sense, out to have the same legal meaning as in Order XLVII, Rule 1 of the Civil Procedure Code. However, in this case it is not necessary to decide upon preference between these two views, but the reason why I have referred to these cases is that judicial opinion tends to the view that the power of review under Section 26(2) is in the nature of judicial power. This only supports what has already been said that the power of review under that provision must necessarily be of the same nature and character as the proceeding or decision sought to be reviewed. Emphasis has been laid on the nature and character of the power of review for the reason that, in this case, the original order of allotment was made by the Additional Custodian and it has been suggested on behalf of the respondents that it was the Additional Custodian who cancelled the allotments. He could not have cancelled the allotments made under his own order in exercise of the powers of revision under Section 26(1) and he could only have done so either exercising original powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Aid Committee, (1952) 2 QB 413 (G), at p. 429, Lord Goddard C. J., observes : If, in order to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, then there is the duty to act judicially in the course of that inquiry. The same learned Lord Chief Justice in Regina v. Statutory Visitors to St. Lawrence's Hospital, Caterham, (1953) l WLR 1158 (H), at p. 1162, has made the following observation on the subject : It is not easy to give a definition of exactly what is meant by 'act judicially', but, in my opinion, for this purpose the expression refers to a body which is bound to hear evidence from both sides. Although there need not be anything strictly called a lis, it must be a body which has to hear submissions and evidence and come to a judicial decision in approximately the way that a court must do. And In Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 (I), at pp. 259 and 260, Das J., (now C. J.), after review of the authorities, explains the law in these words : The principles, as I apprehend them, are: (1) that if a statute empowers an authority, not -being a Court in the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects his rights or imposes liability on him Just as effectively as a quasi-judicial act does. The exercise of an administrative or executive act may well be and is frequently made dependent by the Legislature upon a condition or contingency which may involve a question of fact, but the question of fulfilment, of which may, nevertheless, be left to the subjective opinion or satisfaction of the executive authority, as was done in the several ordinances, regulation and enactments considered and construed in the several cases referred to above. This observation of the learned Chief Justice brings out close similarity between a judicial or quasi-judicial act, on the one hand, and an administrative or executive act, on the other, and the question that immediately arises is what then is in substance the distinguishing feature of the two types of acts or decisions? 18. In (1952) 2 QB 413 (G), at pp. 423 and 429, Lord Goddard C. J. while considering the scope of the words 'to act judicially' points out the difficulty of giving a precise meaning to these words and observes : The true view, as It seems to us, is that the duty to act judicially may arise in widely dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration. . But may it not be asked that a Minister in doing an administrative or executive act has also duty to act fairly and justly? This question has been considered by Lord Greene M. R. In B. Johnson v. Ministry of Health, (1947) 2 AH ER 395 (L) at p. 400. The learned Master of the Rolls says : ...... every Minister of the Crown is under a duty, constitutionally, to the King to perform his functions honestly and fairly and to the best of his ability, but his failure to do so, speaking generally, is not a matter with which the courts are concerned. As a Minister, if he acts unfairly, his action may be challenged and criticised in Parliament. It cannot be challenged and criticised in the courts unless he has acted unfairly in another sense, viz., in the sense of having, while performing quasi-judicial functions acted in a way which no person performing such functions, in the opinion of the court, ought to act. On the assumption, for instance, that the respondents are wrong in their contention and that there was no obligation to disclose these documents, I can well understand some people might say : 'Well, unless there was some other objection, the Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion other materials obtained dehors the inquiry, he was only entitled to be guided by them if he had communicated them to the objectors so as to give them an opportunity of dealing with them. In dealing with this argument, the learned Master of the Rolls observes : There are, as it appears to me, a variety of grounds on which this argument should be rejected. It imports an objective test into a matter to which such a test is entirely inappropriate, since It leaves it to the Court to decide what matters are and what are not sufficient to justify a conclusion as to requisiteness. This is necessarily so, since the question which, according to the argument the Court has to propound to itself will be : Was the evidence before the Minister such as to entitle him to be satisfied on the point of requisiteness? and this is to substitute a test formulated, in some unexplained manner and according to some unascertainable principle, by the Court itself for the opinion of the Minister to which the language of the sub-section commits the decision. So that the act or decision to be judicial must be amenable to an objective test, and if it is left to the subjective determination of an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his very aspect of the matter in Southeastern Greyhound Lines v. Georgia Public Service Commission, (1935) 181 South Eastern Re 834 (O), at P. 846, Bel] J. observes : It seems to be fairly well settled that judicial action is an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some decision or judgment is rendered. . It implies impartiality, disinterestedness, a weighing of adverse claims, and is inconsistent with discretion on the one hand for the tribunal must decide according to law and the rights of parties or with dictation on the other; for in the first instance it must exercise its own judgment under the law, and not act under a mandate from another power. The tribunal is not always surrounded with the machinery of a court nor will such machinery necessarily make its action judicial ..... What is a judicial function does not depend solely upon the mental operation by which it is performed or the importance of the act ..... Wherever an act determines a question of right or obligation, or of property, as the foundation upon which it proceeds, such an act is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the facts. When a decision satisfies the fourth requisite in the definition as given above, it at once satisfies the two tests postulating 'judicial approach' as given above: it at once shows that the authority is bound to act fairly and justly and also to act on basis to which objective test can be applied. 21. It has already been shown that the Custodian in cancelling an allotment whether originally under Section 12 or on revision under Section 26(1) or on review under Section 26(2) has to give a decision upon the evidence led by the parties and having regard to the facts and. circumstances of the case and further upon the application of the provisions of the Act and Rule 14 of the Rules. This not only satisfies the fourth requisite in the above definition but also satisfies the test for judicial approach to the case, The Custodian has, therefore, to decide the question of cancellation of allotment with a judicial approach and it follows that his decision or act in so doing is a judicial decision or act and not an administrative or executive decision or act. To such a case the dictum of their Lordships Of the Supreme Court in AIR 1952 SC 16 (A), the case reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Custodian of Evacuee Property, Delhi Province, AIR 1951 Simla 171 (U), and Sardara Singh v. Custodian Muslim Evacuee's Property, AIR 1952 Pepsu 12 (V), a case of cancellation under Rule 14. In Dulari v. Additional Custodian, Evacuee Property, AIR 1953 All 718 (W), in regard to an order under Section 40 of the Act on review under Section 26(2)) the learned Judges have held that the Custodian is a judicial or a quasi-judicial authority. Similarly with regard to the powers of the Custodian under Section 7 of the Act in Ebrahim Abookaker v. Tek Chand, AIR 1953 SC 298 (X), it has been held that the Custodian is not a court though the proceedings held by him are of a quasi-judicial nature. So that the proceedings before the Custodian under the various Sections of the Act, including his proceeding in regard to cancellation of an allotment, are quasi-judicial in nature and his functions are quasi-judicial, according to these cases. In Advani's case, AIR 1950 SC 222 (I), at p. 225, Kania C. J., observes that the word 'quasi-judicial' itself necessarily implies the existence of the judicial element in the process leading to the decision , and again at p. 226, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. S. Randhawa never made the order of the Minister as his own order. He did not say a word of his own in passing any order cancelling the allotments of the appellants, He merely signed what was received from the Minister and passed it on to his subordinates for compliance. It has already been shown that in the allotment-cancellation chits it is clearly stated that the cancellation took place under the orders of the Minister. We have no manner of doubt at all that in this case there has been nothing of the sort as the adoption of the order of the Minister by Mr. Randhawa as his own order in the capacity of the Additional Custodian. There is nothing at all to justify such a conclusion. Upon this consideration the order of the Minister cancelling the allotments of the appellants is unquestionably without Jurisdiction for under the Act the Minister has no power to cancel an allotment. In this respect I may consider for a moment the argument of the learned counsel for respondent No. 5 that according to Section 6 the Custodiants under the control of the State Government, but Section 6 says nothing of the sort for Sub-section (1) of that section only relates to the appointment of a C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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