- (1.) R. K. Mahajan, J. This common order would dispose of all the above writ petitions as they involve the same question of law and facts.
(2.) WITHOUT expressing any opinion upon the merits and de-merits of the case we would like to dispose of it on a limited question regarding the maintainability of the revision petition under Section 27 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the 'act' only ). This case has a long innings between the parties. The property was sold to one Tulja Ram in the year, 1951 for Rs. 61,000 and Shri Har Nath Chaturvedi entered into an agreement to sell it in the year 1982 for Rs. 25 lacs and the present value of the property is in crores. It also reveals some startling and tragic facts regarding how the evacuee property has been dealt with the attempts have been made to grab it. By this petition, the State Government seeks a direction or order in the nature of certiorari quashing the impugned order dated 11-10-1985, contained in Annexure-20 to this petition and order dated 11-11- 1982 contained in Annexure-15 to the writ petition and sale certificate dated 17-11-1982 and further a direction or order in the nature of mandamus not to give effect to the order dated 11-10-1985, 11-11- 1982 and sale certificate dated 18-11-1982 and to issue man damus directing the Agra Development Authority not to permit the sub-plotting over the Plot No. 182/195 Civil Lines, Agra and/or to permit any construction over the said property and lastly for issuance of mandamus restraining the respondent; No. 14 from alienating the land and/or building on 183/195, Civil Lines, Agra. The' brief facts out of which this petition has arisen are as under: There was one Shri Abdul Waheed who migrated to Pakistan after partition in 1947. It is alleged that he owned property bearing Municipal No. 183/195, Civil Lines, Agra known as Bagh Farzana. The property consists of a Big Kothi situated in an area of 1 Bigha 11 biswa which is equivalent to 4639 sq. yards approximately and appurtenant land measuring 2 Bighas. 10 Biswa equivalen to 7562 sq. yards approximately. According to the State Shri Abdul Waheed had appointed Chatur vedi as General Agent with power to repair the house. In records the property was recorded in Khasra No. 519 of Village Sarjupur with a total area of 4 Bighas and 1 Biswa. The aforesaid property vested in the Custodian, Evacuee Properties by vir tue of the provisons of Administration of Evacuee property Act, 1950. it appears from the allegation that the entire property was given in the tenancy of Har Nath Chaurvedi and Shri Guru Datt Chaturvedi in the year 1949 on monthly rent of Rs. 50 and 25. On 18-8-1955 the entire property i. e. Kothi and the appurtenant land was sold to one Tulja Ram for a consideration of Rs. 61,000 in an auction proceeding. Now first round of litigation starts. Shri Har Nath Chaturvedi has filed a petition under Rule 92 of the Displaced Persons (Compensation and Rehabilita tion) Rules, 1955 before the Managing Officer, Agra challenging the auction in respect of auction of appurtenant land claiming that the land entered as plot No. 519 in village Surjepur was in his tenancy and he became hereditary tenant, it was also claimed by him that Zamindari rights had vested in the Custodian and that It was only the Kothi which was auctioned and not the land for which he was ;in peaceful possession. It appears that Shri Har Nath Chaturvedi prepared a revision under Section 27 of the Act before the Assistant Custodian General against vesting of Plot No. 519 area 4 Bighas 1 Biswa claiming that Abdul Waheed was simply a Zamindar and he had no tenancy rights and the petitioner became a landlord of 2 Bighas 10 Biswansis of land out of 4 Bighas 1 Biswa and for the remaining area he was the Sirdar. He further contended that vesting of agricultural land with the Kothi in custodian general was illegal. It appears that the Assistant Custodian General held vide his order dated 25-2-1972 that the land measuring 2 Bighas and 10 Biswa is not a part of Kothi and Zamindari rights vested in the custodian. Later on Har Nath Chaturvedi applied for transfer of 2 Bighas and 10 Biswa land on 25-2-1972 before the Assistant Custodian General by moving an application and approval was given by one Assistant Custodian of 2 Bighas and 10 Biswa of land for consideration of 800 and sale certificate was also issued vide Annexure-3. Then Shri Har Nath Chaturvedi preferred an appeal under Section 22 of the Act for challeng ing the sale in favour of Tulja Ram and sale certificate dated 18-8-1955. It appears that Har Nath Chaturvedi succeeded in the transfer of plot in his name and Tulja Ram failed despite battles upto High Court and Supreme Court. When the sale in favour of Tulja Ram was cancelled he moved an application for transfer of the property i. e. Kothi and the real controversy is regarding this plot for transferring at Rs. 61,000 Ultimately Shri Har Nath Chaturyedi succeeded from the Evacuee Authorities to get the property transferred in his name. He later on executed an agreement with one Gulab Chand Mittal for a consideration of Rs. 20 lacs and agreement to sale is on the record. It appears that Assistant Custodian General granted permission on 11-11-1982 for transfer of the plot No. 183, Civil Lines, Agra and he entered into an agreement on the same day. The State has described the entire transaction as a fraudulent, illegal and also consequently the transfer of the property in the name of Gulab Chand Mittal. The property has been again transferred to Shri Behari Kunj Sahkari Awas Samiti by Gulab Chand Mittal for a consideration of Rs. 25 lacs and the demarcation of the plot started for selling the same. The State filed a revision petition under Section 27 of the Act challenging the orders before the Custodian General with respect to transfer of Kothi as described above but the revision petition was dismissed on the technical grounds that Custodian General cannot exercise the power under Section 27 of the Act. Relevant order is quoted below : "i have heard the elaborate arguments of the learned counsel for the parties and gone through the record. The first and the foremost contention raised is about the maintainability of these revision petitions under Section 27 of the Administration of Evacuee Property Act, 1950. It is an admitted fact that the transfer has been made under Section 10 (2) (o) of the Administration of Evacuee Property Act, 1950. Under this section, the Custodian can transfer any evacuee property in any manner, whatsoever, provided that Custodian shall not sell any immovable property except with the previous approval of the Custodian General. In this case, the Custodian of Evacuee Property, U. P. , had obtained the approval of the Assistant Custodian General, Lucknow, as is evident from the copy of the impugned order. This approval would be deemed to be the approval of the Custodian General under the provisions of the Administration of Evacuee Property Act because Custodian General, Deputy Custodian General and Assistant Custodian General have concurrent jurisdiction. Under Section 55 (3), the Custodian General could delegate all or any of his powers under this Act to any Deputy Custodian General or Assistant Custodian General. This delegation of powers to the Assistant Custodian General of UP had in fact been done under Notification No. 1 (4)/spl. CELL/77-SS-II dated 3rd July, 1980. The legal position would be that the Custodian General as delegator would not be a competent to invoke the delegated power already exercised on his behalf for the sake of an isolated case, more particularly without having formally withdrawn the order of delegation. Nor would it even otherwise be desirable for reasons of administrative property to seek to invoke this power. On behalf of the Government of Uttar Pradesh and Shri Tulja Ram, it was contended that the order of transfer was made by the Custodian and as such the revision was maintainable before the Custodian General. This argument is not tenable and does not take into account the legal position that the transfer could not have been done without the approval of the Assistant Custodian General. The final and the subsisting order would be deemed to be that of the Assistant Custodian General. The principle of merger would also apply. There is no provision under the Act whereby, the Custodian General could revise or modify the order passed by the Deputy Custodian General or the Assistant Custodian General. Hence, the present petitioners are not maintainable on this ground. " 5. It has Been contended by Shri S. R. Gupta learned counsel for the respondents in another connected petition that in view of the legal battle fought by Tulja Ram upto High Court and Supreme Court and who had failed and State was a party and as such the revision petition has been rightly disposed of and the application under Section 27 of the Act is not maintainable. He further contended that in view of the long bettle the State has no locus standi to re-open the case. 6. State counsel has submitted that since it is a case of fraud and attempts have been made to grab the property, the State should be given opportunity to be heard on merits before the competent authority. State has relied upon Section 10 (0) of the Act which is quoted below : "provided that custodian shall not transfer in any manner whatsoever any evacuee property notwithstanding anything to the contrary contained in any law or agreement relating thereto: Provided that the Custodian shall not sell any immovable property or any business or other undertaking of the evacuee, except with the previous approval of the Custodian General". 7. The Revisional Court has interpreted Section 27 of the Act which is ex facie wrong. Section 27 of the Act is quoted below: "27. Powers of revision of Custodian General.-The Custodian General may at any time either on his own motion or on application made to him in this behalf call for the record of any proceedings in which any Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit: Provided that the Custodian General shall not pass an order under the sub-section prejudicial to any person without giving him a reasonable opportunity or being heard. " 8. We are of the opinion that the delegator never loses the power of deciding the case and he retains the original power. The principal never loses the power if he has delegated the power to the agent. It is elementary principle of law that one can divest its statutory powers completely and still retain it and he may delegate powers for convenience sake. Thus the power has remained with the Custodian General to decide the case. Revisional power even if delegated were still with the Custodian General. Since there are allegations of serious fraud, we cannot go into the merits as well as we cannot assume the role of a revisional court in writ jurisdiction. 9. However, in the interest of justice and in the peculiar facts and circumstances of the case we quash the impugned order dated 11-10-1985 and direct the revisional authority to decide the case on merits after giving opportunity to the parties. In our opinion, application under Section 27 of the Act is maintainable. We have serious doubts whether Har Nath Chaturvedi could become a tenant of the property of Abdul Waheed who had migrated to Pakistan. In case he was not a tenant of original owner how he could become a tenant of the custodian property and it is for the State to look into this aspect to protect the property. We hope that necessary probe would be made at the highest level. 10. With these observations the petition is finally disposed of. 11. Registry is directed to send a copy of this order to the Chief Secretary, U. P. Shashan, Lucknow for necessary action. Petition disposed of. .;