P.N. Khanna, J.
1. This is an appeal under Clause 10 of Letters Patent by Mst. Fatima Bi and her husband Modh. Sayeed against the order dated May 27, 1966, of the learned Single Judge who dismissed the appellant's petition under Articles 226 and 227 of the Constitution of India. It came up for hearing before the Division Bench consisting of my Lord the Chief Justice (I.D. Dua, C.J. as he then was) and my learned brother S. Rangarajan, J. As it was considered desirable to re-examine two bench decisions of the Punjab High Court viz., Jagajit Distilling and Allied Industries Ltd., v. Deputy Custodian General India,
and Custodian of Evacuee Property v. Jamil-ur-Rehman, L.P.A. No 92-D of 1961, D./- 13-1-1965 (Punj) the appeal was directed to be placed for hearing before a large bench. It was under these circumstances that this bench was constituted.
2. Briefly stated the facts of the case are that the appellants Mst. Fatima Bi, the owner of Property No. 1053/2283, Ward No. 111 situate in Gali Hinga Beg, Phatak Habash Khan, Delhi, claims to have been residing in India after the partition of the country in the year 1947. Some time before November 25, 1953, a notice under Section 7(1) of the Administration of Evacuee Property Act, 1950, hereinafter referred to as "The Act", was issued to her. As personal service was not effected, service by affixation was considered sufficient. It was stated that she had migrated to Pakistan. By an ex parte order dated November 25, 1953, the Assistant Custodian (Judicial) declared her evacuee and the above property evacuee property. On May 25, 1955, she filed an appeal agsinst the said ex parte order, which was accpeted and the ex parte order was set aside, by the Authorised Deputy Custodian, who by his order dated June 28, 1955, remanded the caes to the Assistant Custodian (Judicial) to decide on merits after hearing the appellant. By an order dated January 11, 1956, the Assistant Custodian (Judicial) held that as the appellant, Mst. Fatima Bi was a non-evacuee owner of the said property, the notice issued earlier under Section 7 was discharged.
3. It appears that on some complaint being made, the local police investigated her case and moved the Custodian General for the grant of sanction under Section 195, Cr. P.C. for prosecuting Mst. Fatima Bi and others for having played fraud and obtained release orders of her property by suppressing real facts of her migration to Pakistan in 1947. A photostat copy of her application dated August 14, 1959, for the grant of visa on the basis of a Pakistani Passport, purporting to having been signed by her, with her photograph pasted thereon, another photostat copy of which has been placed on this record also, was filed before the Custodian General, wherein Mst. Fatima Bi has declared that she had migrated to Pakistan on or about November 10, 1947. On April 29, 1964, a notice was issued to the appellant, Fatima Bi, by the Custodian General of Evacuee Property informing her that he intended to suo motu revise under Section 27 of the Act, the order dated January 11, 1956, passed by the Assistant Custodian (Judicial)with a view to examine the propriety and legality of the said order, She was asked to show cause as to why the said order should not be revised and proper orders passed on the following amongst other grounds:-
"1. That Smt. Bi had left for Pakistan in 1947, and it was fraudulently averred that she was a non-evacuee and was residing at Calcutta with Shri Mohd. Sayeed.
2. That in order to establish her non-evacuee status as well as to secure the release of the property forged documents and perjured evidence was tendered before the Assistant Custodian (J).
3. That the impugned order is illegal and improper and is against facts and is liable to be set aside."
4. The appellant, Mst. Fatima Bi, in reply controverter the allegations of fact and raised certain preliminary objections questioned the jurisdiction of the Custodian General to review the order of the Assistant Custodian and to declare her property as evacuee property. On September 28, 1964, the appellant filed an application before the Deptuty Custodian General praying that her preliminary objections raised certain issues of law which should be decided first as preliminary issues. This prayer was granted. Before the Deputy Custodian General the following three objections were pressed:
1. As the Department did not file any appeal against the order dated 11-1-1956 passed by the Assistant Custodian (Judicial) the same had become final and could not be re-opened by virtue of Section 28 of the Act.
2. Fresh proceedings were barred under SEction 7-A inserted inpursuance of the Amendment Act 42 of 1954.
3. The proceedings under Section 27 of the Act were barred by time.
5. The learned Deputy Custodian General by his order dated february 1, 1965, decided the said objections against the appellant holding that at any rate the grounds on which suo motu powers were being invoked were not within the knowledge of the Department earlier and, therefore, there was no force, according to him, in the preliminary objections. He, therefore, directed the Authorised Deputy Custodian to record evidence in the case and submit his report expeditiously. It was against this order that the appellant filed a petition under Article 226 and 227 of the Constitution and prayed that the said order dated Feburary 1, 1965, of the Deputy Custodian General of Evacuee Property be quashed and he be restrained from interfering in any manner with the rights of the petitioner in the property. The three preliminary objections raised before the Deputy Custodian General were again pressed before the learned single judge who by his order dated May 27, 1966 dismissed the petition as already stated. Aggrieved by this order the present appeal was filed.
6. Mr. A. N. Aroroa, the learned counsel for the appellant has urged mainly the same objections before us. He submitted that the order dated January 11, 1956, of the Assistant Custodian (Judicial) declaring the appellant non-evacuee had become final. The learned counsel conceded that as held by the Supreme Court in Sharfuddin's case, the Assistant Custodian cannot be said to be
aggrieved person and, therefore no appeal by him was competent. All the same, the order dated January 11, 1956, of the Assistant Custodian (Judicial) must be deemed to have become final, according to the learned counsel, in terms of Section 28 of the Act which reads as follows:-
"Save as otherwise expressly provided in this Chapter, every order made by the Custodian-General, Custodian, Additional Custodian, Authorised Deputy Custodian, Deputy Custodian or Assistant Custodian, shall be final and shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceedings."
7. The very opening words of the Section, however, expressly save the power of revision under Section 27 (which occurs in the same Chapter) vested in the Custodian General. Although the seal of finality attaches to the order passed by the Assistant Custodian, the power of revision vested in the Custodian General under Section 27 is not ousted. The argument raised, therefore, is of no avail to the appellant.
8. Mr. Aurora, then submitted that the issue of notice for the intended exercise of suo motu revisional powers after a lapse of about nine years was clearly unreasonable and arbitrary. The argument of the learned counsel, however attractice, lacks merit. Section 27 of the Act confers on the Custodian General the absolute discretion in the matter of entertaining an application for revision or moving the matter by way of suo motu revision. This power is not intented to be curtailed by time. In thgis connection reference may be made to S. 56 of the Act, which part from conferring general rule-making powers on the Central Government for carrying out the purposes of the Act, gives, (vide sub-section (2)) a list of particular spheres, where the said rule -making power is specifically permitted to be exercised. Significantly enough, time within which applications for revisions may be preferred has been particularly mentioned in Clause (r), but not the time within which suo motu revisional powers are to be exercised. Rule 31(5) of the Rules framed by the Central Government under the said rule-making power merely lays down, as held by the Supreme Court, in Purshotam Lal Dhawan's case, , a rule of guidance for preferring an application for revision. Even there it leaves the matter still in the discretion of the Custodian General. Mr. Aurora, however, contended that in Purshotam Lal Dhawan's case, the Supreme
Court, while holding that Section 27 of the Act confers a discretionary power of revision on the Cusodian General and empowers him to exercise such powers either suo motu or on an application made in that behalf at any time, and although the power of the Custodian General were held to be uncontraolled by any time factor and the period of 60 days for filing of application for revision by the aggrieved party was rules to be only a rule of guidance, observed that the powers under Section 27 were not intended to be exercised arbitrarily. Being a judicial power he had to exercise his discretion judicially. The learned counsel, on the basis of this, argued that in the instant case, the issue of notice for the intended exercise of the suo motu revisional powers was unreasonable. But these powers have by the Act, been left uncontrolled and even rules have (not) been framed for imposing limitations of time for the exercise of suo motu powers. The discretion of the Custodian General in such matters, (e.g. what is reasonable) therefore, cannot be called in question while the matter is being dealt with by this Court in exercise of its writ jurisdiction, more especially, when allegations of fraud and suppression of facts supported by prima facie documentary evidence (in respect of which we are not expressing any opinioin) are made, as has been done in this case. It will be observed that if principles enshrined in Section 17 of the Limitation Act are applied the period of limitation does not begin to run until the other party discovers the fraud or with reasonable diligence could have discovered the same. The challenge against the exercise of the suo motu powers by the Custodian General, therefore, is futile. Mr. Justice J.C. Shah, speaking for the Supreme Court in Bishambhar Nath Kohli v. State of Uttar Pradesh, while dealing with the question of
limitation in connection with the case of an application filed by an aggrieved party about twelve years after the property was declared evacuee property, observed thus:-
"Whether in a given case, the Custodian Gneral may entertain a petition against an order passed by a subordinate authority, notwithstanding gross delay in instituting the proceeding, is a matter within his discretion. We do not think that in exercise of the appellate jurisdiction of this Court under Article 136 of the Constitution, we would be justified in interfering with the order of the Custodian General in a matter which is essentially within his competence and relates to the exerciseof his discretion, however much we may disagree."
9. In that case before the Supreme Court the revisional jurisdiction was invoked at the instance of the aggrieved party (the State of Uttar Pradesh). Here the matter has been taken up suo motu by the Custodian General. It, therefore, cannot be urged that these powers were being exercised in the instant case after the lapse of an unsual time or that the discretion proposed to be exercised by the Custodian General which prima facie appears to be not unreasonable, could be interfered with in these proceedings.
10. The appellant's learned counsel next contended that it was the order of the 'Custodian' which could be revised under Section 27 and not of the Assistant Custodian, which was sought to be revised in the present case. The contention has no merits in view of Section 2(c) of the Act, which defines the expression 'Custodian' as including any Additional, Deputy or Assistant Custodian.
11. Mr. Aurora then urged that the revisional powers cannot be exercised in this case as they would, if allowed to be exercised, come in conflict with Section 7-A of the Act. The argument of the learned counsel is that in case of the order dated January 11, 1956 of the Assistant Custodian (Judicial) is set aside in revision it would amount to declaring the property evacuee, which under Section 7-A of the Act cannotbe done after May 7, 1954. The relevant portion of Section 7-A of the Act runs as follows:-
"Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954:
Provided that nothing contained in this section shall apply to-
(a) any property in respect of which proceedings are pending on the 7th May, 1954, for declaring such property to be evacuee; and
(b) the property of any person who, on account of the setting up of the Dominions of India and Pakistan or on account of Civil disturbances or the fear of such disturbances had left on or after the 1st day of March, 1947, any place now forming part of India, and who on the 7th day of May, 1954, was resident of Pakistan;
Provided further that no notice under Section 7 for declaring any property to be evacuee property with reference to Clause (b) of the preceding proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment) Act, 1954."
12. The learned counsel for the appellants submitted that the case is not covered by the exception incorporated in proviso (b) to Section 7-A of the Act and proviso (a) was not applicable to this case, as was held by the learned single judge, as no proceedings were pending on May 7, 1954, for declaring such property to be evacuee property. It was, therefore, a case, urged the learned counsel, where the absolute bar created by Section 7-A operated and the property could not be declared to be evacuee property even by setting aside the order dated January 11, 1956, of the Assistant Custodian (Judicial) in revision.
13. The argument of the learned counsel, however, cannot survive a close examination. Proviso (a) to Section 7-A of the Act speaks of proceedings which were pending on May 7, 1954, for declaring the property to be evacuee property. It is, therefore, necessary to examine the position as it was on the said crucial date (May 7, 1954).
14. It could be wothwhile, at this stage to be clear about the import of the word 'proceedings'. The 'instituting or carrying on of an action at law', and 'any step taken in a case by either party' would according to the Shorter Oxford English Dictionary be included within the meaning of the Punjab High Court in Kapur Singh's cse, it was observed:
"But what a civil proceeding is may be defined as a judicial process to enforce a right and includes any remedy employed in vindicate that right. It covers every step in an action and is equivalent to an action. It is a prescribed course of action for enforcing a legal action and embraces the requisite steps by which judicial action is invoked."
15. The word 'proceedings' thus covers every step taken in a cause, and the act of 'instituting or initiating' would be a step in a cause. In the instant case the first step for declaring the property to be evacuee property, was taken by the issuance of a notice under Section 7 of the Act. Mr. Sabharwal, the learned counsel for respondent No. 2, urged that even before the issue of the notice under Section 7, the Custodian has to form an opinion that the property is an evacuee property within the meaning of the act. This, according to him, would be the first step and a start of the proceedings. In any case, there can be no doubt that by the issue of the notice at least, the proceedings get started and continue till the matter is finally decided.
16. Mr. Aurora contended that the proceedings cannot be deemed to have been started with the notice under Section 7 issued before November, 1953, as the said notice was not served on the appellant. Rule 28 of the Administration of Evacuee Property (Central) Rules prescribed the manner of service of notice and lays down that service may be affected in one of four given modes. The fourth mode reads:-
"by affixing the notice, summons or order on some conspicuous part of the premises concerned or..............."
Service in this case being effected by affixtion on the premises concerned, was sufficient. The ex parte order dated November 25, 1953, was set aside not because service was not complete but because it was considered, that in the absence of personal service, the appellant was not perhaps aware of it, and it was considered just to have the decision made on mertis after hearing her. Moreover, a reading of Section 7 under which the notice was issued makes it clear that it is the issue of notice and not its service, which is material for the purpose of the section because under sub-section (2) of this Section, it is on the issue of the notice that the property concerned pending the determination of the question whether it is evacuee proeprty or otherwise, becomes incapable of being transferred or charged in any way, except with the leave of the Custodian. It is, therefore, the issue of the notice and not its service, which sets in motion the proceedings in respect of the property concerned.
17. The order dated January 11, 1956, of the Assistant Custodian (Judicial) discharged the notice under Section 7 of the Act, which was no other than the one, issued before November 25, 1953, and whereby, as already stated, the proceedings for declaring the property concerned as evacuee property, were initiated and in pursuance of which the ex parte order was made on Novemeber 25, 1953. According to Mr. Aurora and said order dated Novemebr 25, 1953, declaring the appellant's property as evacuee property, had the effect of discharging the notice under Section 7, which should be considered to have been exhausted. This is a totally unacceptable argument. The said order did not discharge the notice. On the other hand in the absence of cause being shown against the intended action, which the notice had called upon the appellant to show, the proposal to declare the appellant evacuee had become absolute and confirmed. The notice was confirmed by the said order and not exhausted or discharged. If the said order is tobe taken as final and termination of the proceedings started by the notice, then the property remains evacuee property, but the appellant herself challenged the finality of the said order and moved to set it aside; and it was set aside. As a result, the notice under Section 7 which had not been discharged continued to hold the field. On May 7, 1954, in any case the appellant's property was an evacuee property. The setting aside of that ex parte order remvoed the declaration of the property as evacuee property, but did not remove the fetters that had been clamped on the property on the issue of the notice under Section 7, by virtue of Section 7(2) of the Act. The proceedings in respect of the appellant's property which ultimately came to an end by the order dated January 11, 1956, of the Assistant Custodian (Judicial) had thus been on the run from before November, 1953, and were pending on May 7, 1954. The learned single Judge, therefore, was in error when he observed that no appeal was pending on the specified date and that "the case may not thus fall under proviso (a) to Section 7-A". The case on the other hand, was actually covered by the proviso (a) to Section 7-A of the Act. The declaration of the property as an evacuee property even after May 7, 1954, was thus not barred. In this view of the matter the setting aside of the order dated January 11, 1956 of the Assistant Custodian (Judicial) if it be set aside and even if it ultimate results in the declaration of the property to be evacuee property would not conflict with Section 7-A of the Act as that declaration would be as a consequence of the notice issued before November, 1953.
18. The setting aside of the order dated January 11, 1956, even otherwise cannot be said to have the effect of declaring Mst. Ahmad Bi, an evacuee or non-evacuee. It will merely bring the case back to the order dated June 28, 1955, according to which the investigation which had started with the notice under Section 7 issued before November, 1953, was to be proceeded with. No new proceedings are to be initiated.
19. The learned counsel then submitted that under the garb of exercising revisional powers, a fresh enquiry cannot be instituted to admit new evidence. Support was sought from the Bench decision of the Circuit Bench of the Punjab High Court at Delhi in (L.P.A. NO. 92-D of 1961, D/- 13-1-1965 (Punj)). One Jamil-ur-Rehman the respondent in that case, had been declared non-evacuee in 1951. The notice issued under Section 7 of the Act was discharged by the order of Assistant Custodian made on 26th March, 1951, and the properties were resumed by the respondent. It was then in March, 1955, that the Authorised Deptuy Custodian issued a fresh notice presumably under Section 26 informing him that the order of the Assistant Custodian was liable to be revised and set aside. A second notice dated April 6, 1955, was issued presumably under Section 7 to the effect that the respondent was an evacuee and was called upon to show cause why he should not be declared as such and his property be declared as evacuee. It was under these circumstances that the Bench held that there was no proceeding for declaring the property to the evacuee property which was pending when the said two notices were issued. The argument that the power to review could be "used to reopent proceedings concluded long before may 7, 1954, so as to evade the provisions of Section 7-A" was repelled, by the learned Single Judge before whom the case came first for hearing and whose decision was approved and upheld by the Bench. It was held that this would amount to ignoring the opening words of that section 'that notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after May 7, 1954'." The learned single judge did not consider that "under Section 26 anything more than a review of the case on record as it stood was intended and it was never intended to start altogether new inquiry under this provisions." Falshaw, C. J., delivering the judgment of the Bench quoted this passage from the judgment of the single judge with approval. The ratio of their Lordships' decision wasw that "property in dispute could not be declared to be (evacuee property in proceedings instituted in 1955 in spite of the ban imposed by Section 7-A on the declaration of any property to be evacuee property after May 7, 1954, the case not falling under either of the exceptions (a) or (b)." In the case before us, the notice issued before November, 1953, unlike the case before the Punjab Bench was not discharged before January 11, 1956. Proceedings were, therefore, not instituted after May 7, 1954, but were pending on the said crucial date and exception in proviso (a) to Section 7-A prevented the said Sec, 7-A from creating the bar to the declarationof the appellant as an evacuee. In the case of Jamil-ur-Rehman, the property was not evacuee and has been resumed by him and nothing further was required to be done on May 7, 1954. In the case before us, however, the property concerned was not free from the mischief of Section 7 of the Act. The said judgment of the Punjab High Court, therefore, has no application to the facts of the present case.
20. In certain land had been transfered to the
petitioner-company by the Custodian of Evacuee Property under the provisions of Kapurthala State Evacuees (Administration of Property) Act, 1948, and in pursuance of an agreement between the petitioner and the Government of His Highness the Maharaja of Kapurthala, by which the Government had agreed to acquire and transfer to the petitioner-company full proprietary rights in the land. After the merger of the State with the Patiala and East Punjab States Union, the Authorised Deputy Custodian (Judicial) of Evacuee Property Pepsu served a notice dated April 30, 1953, under Section 7(1) of the Act calling upon the company to show cause why the land be not declared evacuee property. By order dated November 8, 1953, the Deputy Custodian (judicial) discharged notice and held that the land had already vested in the company under orders of the government of Kapurthala and the Custodian. On July 13, 1959, the Custodian General served a notice on the petitioner-company, to show cause why the order dated November 8, 1953, of the Deputy Custodian discharging the said notice under Section 7(1) be not set aside. By order dated October 9, 1961, the Deputy Custodian General decalred that the land had not been properly transferred to the company and directed the Additional Custodian to enquire into the proper value of the land; and if the deficiency inprice, which may be discovered, was made within the prescribed time, the transfer of the land was ordered to be considered valid, otherwise the order of the DeputyCustodian (Judicial) was to be set aside. The High Court came to the conclusion that the sale of land to the company was not proved to havebeen made in accordance of the then prevailing law and, therefore, the order of the Deputy Custodian General was not wrong. Considering the effect of Section 7-A of the Act, A. N. Grover, J., (as he then was) spoke for the Bench and observed:-
"......... No fresh declaration or proceedings were being initiated for declaring it to be evacuee and all that the Deputy Custodian Geneal had to decide on the revisional side was whether the order made by the Deputy Custodian (Judicial) was legal or proper. Once the finding was set aside, the land had to be treated as evacuee property, but by so doing the Deputy Custodian General wsa not making any order contrary to Section 7-A. He was only deciding that the sale or transfer was not valid, with the result that the order of the Deputy Custodian (Judicial) releasing the property stood reversed."
21. Against the aforesaid order of the HighCourt, the petitioner-company took up the matter to the Supreme Court in appeal; and the order of the High Court was set aside, vide judgment D/- 2-4-1968 in Jagatjit Distilling & Allied Industries v. Deputy Custodian, Civil Appeal No. 671 of 1966 (SC). The effect of Section 7-A of the Act, however, was not considered. Their Lordships of the Supreme Court on the other hand reviewed the evidence and held that the Custodian of Evacuee Property in thom the land stood vested in 1948 had validly transferred in to the company. The Deputy Custodian General, therefoe, was held to have no jurisdiction to call upon the company to pay the price of land as assessed by the Additional Custodian. Nothing was said about the observation of A. N. Grover, J., cited abvoe regarding the applicability or non-applicability of Section 7-A of the Act.
22. It is thus manifest that Section 7-A of the Act imposes a ban on the initiation of fresh proceedings for declaring a given property as evacuee property. It does not come in the way, if such proceedings had been initiated prior to May 7, 1954. The case before us, therefore, remains unaffected by the provisions of Section 7-A.
23. Regarding fresh evidence at the stage of revision, Rule 31(9) of the Administration of Evacuee Property Central Rules, allows admission of additional evidence in a case where powers of revisinoare being exercised on an application for revision by an aggrieved party. It does not deal with the case of suo moto revisions. In the present case the evidence has to be led not directly on the mertis of the case, but inorder to find out if a fraud had been committed and material facts have been suppressed. The enquiry, by its very nature therefore, cannot be confined to the record as it is. The facts which have been suppressed and kept away from record by fraud, have to be proved and for this purpose evidence has to be led which is not already on record; and there is no bar to the admission of such evidence. The Custodian General on certain facts coming to his notice, has to satisfy himself as to the legality or propriety of the order intended to be revised. For this purpose, observing the principles of natural justice, he has to call upon the appellant to show cause against the proposed action. The proviso to Section 27 of the Act, specifically enjoins upon the Custodian General not to pass any order prejudicial to any person without giving him reasonable opportunity of being heard. For that purpose show cause notice under Section 27 was issued to the appellant in this case. She put in appearance before the Deputy Custodian General and as is mentioned in the order dated August 20, 1964, of the Deputy Custodian General of Evacuee Property, both parties made a request to be permitted to produce oral as well as documentary evidence in support of their respective contentions. Permission having been granted, evidence has to be recorded. There is nothing wrong, in the circumstances of this case, therefore, to admit evidence for deciding the question whether there was any justification for the exercise of suo moto revisional powers. The objections of the learned counsel for the appellant, therefore, cannot be sustained.
24. The learned counsel for the appellant then contended that declaration which was once made about the appellant being a non evacuee, prevented any fresh trial being conducted in order to upset the said finding. The earlier order, according to him, was binding and conclusive in all subsequent proceedings before the parties. This objection, however, was never urged before the learned single judge and for that reason it is not permissible to go into that question at this stage. Even otherwise if the allegations of fraud and of suppression of facts by the appellant are proved and established, the earlier order, if any, would be vitiated. The question of the applicability of principles of res judicata in this case would not arise. The deciding factor has to be established whether fraud has or has not been committed. Once fraud is established there would be no bar to the exercise of the revisional powers conferred on the Custodian General under Section 27 of the Act.
25. The learned Single Judge was, under the circumstances right in reaching the conclusion which he did although on somewhat different grounds. The appellant has not been able to establish her case. The appeal, therefore, fails and is dismissed with costs.
26. Appeal dismissed.