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TMI Blog1962 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... 17th January 1950 the Deputy. Custodian of Evacuee Property entered into an arrangement with the lodgers to the detect that they should together pay him consolidated rent of ₹ 555-12-0 and an additional amount of 20 per cent, over the entire collections which the evacuees were collecting from these lodgers which came to a sum of ₹ 181, as, what he called, 'establishment charges'. The rest of the liabilities in the form of light Bills, gas bills and sweeper charges were to be disbursed directly by the lodgers. This arrangement seems to have continued up to end of about March 1955, when the plaintiff approached the Custodian of the Evacuee Property with a request war the entire business should be allowed to him. Some of the lodgers were in arrears which he undertook to pay. This letter was written on 31st March 1955. Ultimately the Custodian acceded to the request made by the plaintiff and assigned the entire business along with the tenancy rights to the plaintiff on 25th April 1955. In create on 30th April 1955 he made a declaration under section 12A of the Administration of Evacuee Property Act, 1950, then in force, absolving himself from all responsibility with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March 1955 he mentions that he was an occupant of two rooms in the hotel which was originally run by A. Rashid and since then the property was taken over by the Custodian under his management. In paragraph 3 of his letter he says, there were arrears of ₹ 3,750 of water tan payable by the hotel to the Custodian and the same were not paid, that he was prepared to pay the entire arrears of tax and also the arrears of rent which were due by any of the co-ledgers provided that the Custodian was prepared to transfer and hand over the management of the Hotel together with its licence and assets to him, with liberty to occupy the rooms himself whenever they fell vacant or to let them out to toners of his choice. He then refers to the income derived by the Custodian's office from the hotel which he says was ₹ 180 per month as administrative charges while the actual expense could not be more than ₹ 30 per month by way of wear and tear. He then says that the net profit obtained by the Custodian's Office was approximately ₹ 150 for the said premises. It is no doubt true that he mentions that he was paying a large amount for a small and prospective accommodation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff dated 23rd that he had transferred the management of the hotel together with its proprietary and tenancy lights to the plaintiff. On 29th April 1955 the Custodian made a further order, which is annexed as 'Ex. C' to the plaint and therein he said "In order to avoid the trouble of collecting taxes, rents etc. for the period 1st April 1955 to 16th April 1955 it is agreed by and between Dr. Maqsood (the plaintiff) and the Custodian that the possession and proprietorship of the Hotel shall be taken as transferred to him as from 1st April 1955 instead of 16th April 1955 and that for the period of 15 days ₹ 50 shall be taken, at the Custodian's profit in the hotel. He therefore asked him to pay that amount. Then comes the order dated sum April 1955 where the Custodian slated that he (Custodian) would stand absolved of all responsibility with respect to the tenancy rights described in the schedule of the property annexed therewith and the lease granted by him in respect of the property particulars whereof were mentioned in the schedule, in the schedule he refers to the tenancy nights of the evacuees in "business premises" in the hotel Manna. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises. Except his assertion that there was no licence, no evidence has been led by him in the present case. It would nave been very easy for him to establish that there was no licence issued by the municipal authorities in favour of the owners of the Marina Hotel by calling someone from that office. It would also have been easy for him to show that the police authorities had not issued any licence in their favour which is ordinarily required to be taken for running Hotels and Lodging Houses. Mr. Mehta contends that the opponents have not led any evidence what so ever to establish the contrary of his assertions. This argument does not take into accounted the basic rule of law that it is for the plaintiff to establish his case. He came to the Court with a case that this was not a business contrary to the admissions which he had made in the correspondence. The burden, therefore, lay upon him to show that the admissions were erroneous not merely by an assertion on oath but by such evidence as he could have led reasonably and properly. It is impossible to say that he has discharged the elementary burden which lay upon him to establish that his admissions were erroneous. The least that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;. The word "transfer" is a larger word and the word "sale" is a specific word. A transfer may be by means of lease, by means of a mortgage or by means of a sale or in any other mode. In effect, what is sought to be done by the Custodian is a sale of business and nothing else. It may be that the price that he has charged is a very small price or that he has made a free gut of it. The fact remains that he has not retained any control over the affairs of this business after the transfer. It must therefore be held to be a sale -- and that is made further clear when he says in his letter dated 31st March 1955 that ₹ 1,200 which the plaintiff was 1o pay in lump was consideration for his (Custodian's) agreeing to the proposal of the plaintiff. It is, therefore, dear that though the price may be inadequate, it in erect is a sale of Hotel Marina and not merely a transfer for mere running the hotel with retention of control in him. It this is so, the order is clearly invalid. 11. Section 12A moreover does not apply to any and every case, it only applies to those cases where the leasehold rights of the evacuee have vested in the Custodian and the Custodian ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Mehta argues that the Custodian has no power to review an order made by his predecessor. This argument divides itself into several branches. His first contention is that Section 26 as contained originally In the Act of 1950 was repealed by Act 91 of 1956 and therefore power of review was lost. Now, Section 26 was omitted by an ordinance, it sought to amend the Act of 1950 in several particulars and by Section 9 of the Act it omitted sections 25, 26, 29, 30, 31, 33, 35, 42 and 55(2) of the Act. This Ordinance was later on substituted by Article 91 of 1956. Mr. Mehta relies upon Section 16 of the amending Act wherein Sub-section (2) reads as under: Notwithstanding such repeal, ( i.e. repeal of the Ordinance) anything done or any action taken in that exercise of any powers conferred by or under the said Ordinance shall be deemed to have been done or taken in the exorcise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken. 14. It is argued that this section clearly shows that the right of review was not intended to be saved even in pending proceedings. Mr. Mehta enforces his arguments by referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om an application of review is made, it cannot be regarded as a vested right, in the present case the question is not whether it is vested fight from the date of the original application on which the order, of which review is sought, is made. If section 6 of the General Clauses Act applies, which I hold applies, it saves by clause (e) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. Now, in the present case, even assuming that mere making of an order dated 30th April 1955 would not have given Moshin Abdulla a right to make an application for review after the amendment of the ACT, since the application was already made and it was pending, when Ordinance 6 of 1956 was promulgated and Amending Act 91 of 1956 was enacted, that application is clearly saved. It is clearly a legal proceeding which was then pending and which cannot be affected by the amendment. Apart from it, Moshin Abdulla was already on the premises as a lodger and if an order was made prejudicial to him a remedy by review was available to him and I do not see why it could not be regarded as a remedy in respect of a right or w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpreted the warns "sufficient cause" to mean, cause at least analogous to that which preceded the use of that expression. I think that the analogy of the powers of Civil Court to authorities constituted by an Act like the present is not appropriate. (See Sita Rain Goel v. Municipal Board, Kanpur [1959] 1 SCR 1148). The history of reviews Charles Bright and Co., Ltd. v. Seliar, (1904) 1 KB 6 shows that originally in Chancery Courts opportunity to correct decision was afforded by a petition to rehear. The matter was heard by the same Judge or another Judge and rehearing does not seem to be limited to any particular ground. This could be done only if the order or decision was not enrolled. If the order or decision was sealed then it could be reviewed only on limited grounds of fresh evidence being found or error apparent on the face of the record. The limitation of the grounds on which a matter could be reheard depends on the fact of the order being sealed. There can be no reason to impose such limitation on the power of review in cases of orders made under this Act. 17. The ordinary meaning of the word "review" as given in Aiyar's Law Lexicon is as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed behind the back of a party interested in the passing of the order or by suppression of facts or for some other reason which shows that the order is clearly illegal in law. My conclusion on the validity of the order in the beginning of the judgment brings this case within this limit, and if that is so, the Custodian was entitled to set aside the order. 19. The second branch of the argument is that the power to review is available only to the officer who made the order and not to his successor. The words of section 26(2) are "The Custodian, Additional Custodian or Authorised Deputy Custodian (but not a Deputy or an Assistant) may, after giving notice to the parties concerned, review his own order". Mr. Mehta emphasis's me word "own" used in the last part of Section 26(2). He refers me to the provisions of Order 47 Rules 2 and 5 of the Civil Procedure Code which lay down limitations as the person who can hear a review application, it seems to me difficult to accede to this argument. The provisions contained in Rules 2 and 5 of Order 47 emphasize the fact that but for those provisions it would nave been possible for succeeding officer to deal with the review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to mean that the power could be exercised only if the officer acts suo motu, it may cause a great deal of injustice in many cases where the illegality or impropriety of an order cannot be discovered except when an application is made by a party who is affected by the order. Taking into account the purpose of enacting the section, it is impossible to limit its application either to one case or other, it must include both. I am not therefore prepared to hold that the powers must be exercised only suo motu and not on an application of a person aggrieved by the order. 21. Relying on his evidence, it has been argued on behalf of the plaintiff that Moshin Abdulla had no right to make an application for review. It is argued that the person, who is entitled to make an application in review, must be a person who is aggrieved by the order made by the officer. The plaintiff stated in his evidence that Moshin Abdulla was in arrears of payment of the lodging charges for the rooms occupied by him, that he did not pay the amount in spite of the demands made by the Custodian, that the Custodian took possession of the rooms occupied by Moshin Abdulla and that they were handed over to him by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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