Patna High Court
Bibi Nazma Khatoon And Anr. vs R.P. Sinha, Custodian, Evacuee ... on 16 July, 1953
Equivalent citations: 1953(1)BLJR494, AIR 1954 PATNA 43
ORDER
1. In these two applications, which were heard together, a common question of law arises, namely, whether the Custodian, Mr. R. P. Singh, acted in excess of his jurisdiction in setting aside the order of his predecessor, Mr. S. N. Ray, dated 29-9-1950.
2. On 12-8-1949, the petitioners purchased a house, namely, holding No. 98, of Ward No. 3 of Gaya town, from Mt. Bibi Akbari Khatoon and her sister Mt. Asghari Khatoon. The Sale deed was executed on behalf of Bibi Asghari Khatoon by Maulivi Abdul Rashid, her father-in-law, who had a general power of attorney on her behalf. The power of attorney was executed by Bibi Asghari Khatoon on 7-7-1949. It is material to state that on 21-6-1949, the Bihar Administration of Evacuee Property Ordinance, 1949, came into force. Section 25 of the Ordinance imposed certain restrictions on the right of transfer of evacuee properties made on behalf of evacuees after 31-3-1947, and Section 26 of the Ordinance granted power to the Provincial Government to prohibit transfer of immovable properties or any part thereof in certain specified areas. On 24-8-1949, a notification was published by the Provincial Government, under Section 26 of the Ordinance, prohibiting transfer of any immovable property belonging to a Muslim and situated in the province but not in the rural areas of Chota Nagpur for a period of three months except with the previous approval in writing of the Collector of the district in which the property or the greater part thereof was situated.
On 21-9-1949, the petitioners applied, under Section 25 of the Ordinance, to the Custodian for confirmation of the sale of the house so far as the share of Bibi Asghari Khatoon was concerned. The application was rejected by the Deputy Custodian, Mr. Aikat, who was under the wrong impression that the application was for permission to sell the interest of Bibi Asghari Khatoon. On 29-9-1949, Mt. Bibi Asghari Khatoon was declared to be an evacuee. A fresh application was made on 7-10-1949, by the petitioners for confirmation of the sale. Mr. S. P. Singh who was the Deputy Custodian at the time refused confirmation of the sale on the ground that the sale deed was executed after Bibi Asghari Khatoon had gone over to Pakistan. Mr. S. P. Singh also considered that, the earlier petition having been rejected by the Deputy Custodian, a second petition was not maintainable on the same point. An appeal was taken on behalf of the petitioners to the Custodian who by his order dated 29-9-1950, set aside the order of Mr. S. P. Singh and confirmed the sale so far as the eight annas share of Bibi Asghari Khatoon was concerned.
In course of his order, the Custodian, Mr. S. N. Ray, stated:
"The principles for consideration in the matter of confirming a transaction are whether the transaction is bona fide and is for valuable consideration. In the present case Rs. 25000/- in cash which is certainly a valuable consideration was paid as the consideration money in presence of " the Sub-Registrar before whom the sale deed was executed and registered. The appellant has also produced pass books which support the fact of payment. Vendors and vendees are admittedly not related. Mr. B. B. Singh, Additional District Magistrate, Gaya who was also acting as District Magistrate for some time made a personal enquiry into the matter and by his order dated 24-10-1949 he held this transaction as bona fide. In view of the above facts I am of opinion that the transaction in question was bona fide, and was for valuable consideration."
3. On 10-12-1952, after lapse of. more than two years, Mr. R. P. Singh, who had become Custodian, ssued a, notice to one of the petitioners to show cause why the order of his predecessor, Mr. S. N. Ray, should not be reviewed, and the order of confirmation of the sale should not be set aside. It is important to state that no notice was given to the petitioner Bibi Nazma Khatoon. The other petitioner appeared before the Custodian on 18-12-1952, and, after hearing his lawyer, Mr. R. P. Singh set aside the order of his predecessor on the ground that the transaction of sale was 'mala fide'.
4. In this state of facts, the question arises whether Mr. R. P. Singh acted in excess of his jurisdiction in setting aside the order of his predecessor dated 29-9-1950. The argument of Mr. Baldeva Sahay, who appears on behalf of the petitioners, is that, upon a reconsideration of the same material, Mr. R. P. Singh, had no jurisdiction to review and set aside the order of Mr. S. N. Ray. The objection taken by learned counsel is that the power of review conferred by Section 26 (2), Administration of Evacuee Property Act cannot be exercised by the Custodian unless there is discovery of new and important matter or evidence or there is some mistake or error apparent on the face of the record or for any other analogous reason. The contention on behalf of the petitioners is that Mr. R. P. Singh had not acted on any new and fresh matter or evidence, but considered the very same materials which were the basis of the order of his predecessor, Mr. S. N. Ray, dated 29-9-1950.
On a reconsideration of the same material, Mr R. P. Singh had come to a different conclusion, namely, that the transaction of sale on behalf of Bibi Asghari Khatoon was a transaction vitiated by 'mala fides'.
It was pointed out by the learned counsel that Mr. S. N. Ray based his order on the ground that there was full consideration paid for the transaction and that the consideration money was paid before the Sub-Registrar at the time of the registration of the sale-deed and further that the petitioners had produced evidence to support the fact of payment. Mr. S, N. Ray referred to the circumstance that Mr. B. B. Singh, Additional District Magistrate of Gaya, had made personal enquiry into the matter and had concluded that the transaction was bona fide. There was also the admitted fact that the parties to the transaction were not related in any way. In view of these circumstances, Mr. S. N. Ray held that the transaction of sale was bona fide and for valuable consideration and the transaction must, therefore, be confirmed. By his order dated 18-12-1952, Mr. R. P. Singh has set aside the order of Mr. S. N. Ray but there was no fresh material before Mr. R. P. Singh upon which he could reach the finding that the transaction was mala fide. The argument of Mr. Baldeva Sahay is that, upon the same materials, Mr. R. P. Singh was not entitled to re-open the order of his predecessor and to come to a different conclusion of fact.
The opposite view is maintained by the Advocate General who contended that the power of review was unrestricted and Custodian was entitled to exercise the power of review even when there was no fresh material or even when there was no mistake or error apparent on the face of the record. In other words, the argument is that the expression "review" must be construed in the plain or grammatical sense. The question at issue depends upon the true interpretation of S. 26 (2), Administration of Evacuee Property Act which states, "The Custodian Additional Custodian or Authorised Deputy Custodian (but not a Deputy or an Assistant Custodian) may, after giving notice to parties concerned, review his own order."
Section 26 (3) confers the power of review in case of a declaration made with respect to an intending evacuee. Section 26 (3) states:
"The Custodian, Additional Custodian or Authorised Deputy Custodian may from time to time, on application made to him in this behalf, review any declaration made by him in relation to any intending evacuee:" The conditions in which the power of review should be exercised are not expressly mentioned in Section 26 (2) or Section 26(3). Administration of Evacuee Property Act. But there are important considerations which support the view that the power of review is not unrestricted. Chapter V, Administration of Evacuee Property Act is entitled "Appeals, Review and Revision." There are provisions in this Chapter which relate to these three modes of proceedings. The Statute therefore, contemplates a procedure by way of review by the Court which has already given judgment to be different from a procedure by way of appeal or revision to a different Court. The same distinction appears in the Code of Civil Procedure wherein Order 47, Rule 1, prescribes
in what circumstances an application for review of judgment may be made. Order 47, Rule 1, provides that an application for review may be made if there is discovery of new and important matter or evidence or if there is mistake or error apparent on the face of the record or for any other sufficient reason. It has been pointed out by the Judicial Committee in -- 'Chhajju Ram v. Neki', AIR 1922 PC 112 (A) that the power of review given to the Indian Courts was different from the very restricted power of review given to the English Courts.
5. There an application for review can, in certain circumstances, be entertained if there is error of law appearing in the body of the decree or when there is any fresh or new matter discovered after the passing of the decree. The scope of the power of review in English Courts has been discussed in --'Charles Bright & Co. v. Sellar', (1904) 1 KB 6 (B), where the history of procedure in England has been explained.
6. It is manifest, therefore, that the expression "review" has a well known legal significance, and Section 26 (2), Administration of Evacuee Property Act must be construed in the context and background of the Code of Civil Procedure where the same expression has been used. It is a familiar rule of construction that when the legislature has deliberately used a term which has a known legal significance in law, it must be taken that the legislature has attached to that term that known legal significance (see -- 'L. p. E. Pugh v. Ashutosh Sen', AIR 1929 PC 69 (C) ), In our opinion the expression "review" used in -Section 26 (2), Administration of Evacuee Property Act must be construed not in a grammatical sense but it must be construed to have the same legal meaning as in Order 47, Rule 1, Civil P. C. If this view is right, it follows that Mr, R. P. Singh had no jurisdiction to review the order of his predecessor, Mr. S. N. Ray, in absence, of any fresh material or in the absence of any mistake or error apparent on the face of the record. In this view of the matter, the petitioners would be entitled to a writ of certiorari for quashing the order of Mr. R. P. Singh dated 18-12-1952, on the ground that he acted in excess of his' jurisdiction.
7. There is another important ground on which the order of Mr. R. P. Singh has been impeached. It was alleged on behalf of the petitioners that no notice of the proceeding was given to Bibi Nazma Khatoon. In absence of such notice, the contention on behalf of the petitioners is that the entire proceeding initiated by Mr. R. P, Singh suffers from want of jurisdiction. It is conceded on behalf of the opposite party that no notice was given to Bibi Nazrna Khatoon.
8. It is a fundamental principle of justice that the party against whom a judgment or order is to operate should have an opportunity of being heard. The principle is embodied in the maxim 'audi alterum partem'. That is the general rule, and a breach of this rule affects the jurisdiction of the Court or Tribunal which passes final order. To illustrate the rule, reference may be made, for instance, to -- 'Capel v. Child', (1832) 2 Cr. & J. 558 at pp. 579, 580 (D) in which a complaint was made to the Bishop of London that the incumbent of a parish in his diocease had neglected his duties. The Bishop, without calling upon him to show cause, issued a requisition, ordering him to nominate a curate at a certain stipend to assist in the duties of the parish. The incumbent ignored the order whereupon the Bishop appointed a curate, and, upon the incumbent neglecting to pay the stipend, directed sequestration. The incumbent brought an action against the sequestrators for fees detained) and on a special case stated for the opinion cf the Court of Exchequer it was held that the requisition and the proceedings founded on it were void. In the present case, therefore, the order of review made by Mr. Rule P. Singh must be held to be without jurisdiction on the ground that no notice was served upon Bibi Nazma Khatoon who had purchased a share of the house in question.
9. In the course of argument, the question was much discussed whether the power of the High Court under Article 226 of the Constitution can be invoked in a case where the petitioner has an alternative remedy by way of revision or appeal. It was pointed out on behalf of the opposite party that the petitioners had filed an application for revision before the Custodian General against the order of review. As a general rule, the writ of certiorari or prohibition will not lie when there is an alternative procedure by way of appeal or revision provided in the statute. But there is an exception in a case where the want of jurisdiction complained of is based upon the violation of some fundamental principle of justice. In such an exceptional case, the existence of a remedy by way of appeal or revision is no answer to an application asking for a writ of certiorari or prohibition.
In the -- 'King v. North', (1927) 1 KB 491 (E) Scrutton L. J. states:
"The other objection raised by the Divisional Court was that there was a right of appeal, and that where an appeal lay there could be no prohibition. But the case to which Atkin L. J. has referred us, -- 'White v. Steele', (1862) 12 CB (NS) 383 (F) appears to be a distinct answer to that. The judgment of Willes J. showed that in the opinion of a very strong Court the fact of there being a right of appeal was not necessarily fatal to the claim for prohibition. In -- 'Martin v. Mackonochie', (1880) 4 QBD 697 at p. 732 (G) Thesiger L. J. dealing with this question, said that error of the Judge in the conduct of the suit, in the pronouncement of the sentence, or in the means of its enforcement is matter in respect of which appeal and not prohibition would be the proper remedy 'unless his error involves the doing of something which, in the words of Littledale J. in -- 'Ex parte Smyth'. (1835) 3 Ad & E 719 (H) is contrary to the general laws of the land, or to use the language of Lush J. in the Court below, is so vicious as to violate some fundamental principle of justice. And as I have already said to order a man to pay what is in the nature of a penalty for an offence without first giving him notice that an application for such an order is going to be made, is both contrary to the general law of the land, and is so vicious as to violate a fundamental principle of justice. The ease therefore falls within the exceptions to the general rule."
10. In view of these considerations, we make the rules absolute and grant a writ of certiorari quashing the order of the Custodian Mr. R. P. Singh, dated 18-12-1952. There will no order as to costs of hearing of these applications.