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Abdulla Alimohamed and anr. Vs. Union of India, Through the Secretary Ministry of Rehabilitation and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberAppeal No. 662 of 1961
Judge
Reported inAIR1964Bom241; (1964)66BOMLR38; 1964MhLJ197
ActsAdministration of Evacuee Property Act, 1950 - Sections 2, 7, 16, 28, 46 and 56; Code of Civil Procedure (CPC), 1908 - Sections 9, 80 and 115; Administration of Evacuee Property Ordinance - Rule 5(1); Constitution of India - Article 226
AppellantAbdulla Alimohamed and anr.
RespondentUnion of India, Through the Secretary Ministry of Rehabilitation and ors.
Appellant AdvocateK.N. Mirchandani, ;H.N. Mirchandani and ;A.N. Mirchandani, Advs.
Respondent AdvocateM.A. Rane, Asst. Govt. Pleader
Excerpt:
.....on ground of their illegality--defective notice issued under act whether vitiates jurisdiction of deputy custodian to proceed further under section 7.;the orders made by the officers under the administration of evacuee property act, 1950, cannot be called in question in a civil court on the ground that the decision taken by them is wrong or illegal. a civil court can interfere only when a clear case has been made out that the action taken by the authorities is in excess of the jurisdiction given to them.;a defect of an ordinary character e.g. a defective notice issued under section 2(d)(i) of the act will not vitiate the jurisdiction of the deputy custodian to proceed further in the matter and pass an order under section 7 of the act.;the queen v. commissioners for special purposes of..........london stores, bori bunder, bombay. they were occupying the premises as tenants. on 15-6-1950 the deputy custodian of evacuee property issued a show cause notice in the joint names of the plaintiffs calling upon them to show cause as to why they should not be declared as evacuees and their property as evacuee property under section 2(d)(i) of the administration of evacuee property act, 1950 (hereinafter referred to as the act). the notice inter alia stated that they had left for pakistan on account of the selling up of the dominions of india and pakistan and that all their property was intended to be declared as evacuee properly. the notice further stated that the hearing of the case was fixed before the dy. custodian or mr. bhagtani, who was an inspector, on the 26th june, 1950, at 1.....
Judgment:

1. The suit giving rise to this appeal was filed by the appellants (who will hereafter be called the plaintiffs) against the Union of India, the Custodian of Evacuee Property and the Regional Settlement Commissioner (who will hereafter be called the defendants) for a declaration that the plaintiffs continued to be the tenants of two shop premises and for possession of the said shop premises, The facts underlying this litigation may be briefly stated as follows: The plaintiffs were carrying on business as partners in two shops; (1) M/s, M. Gani and Co., Mahomedali Road, Bombay, and (2) M/s. London Stores, Bori Bunder, Bombay. They were occupying the premises as tenants. On 15-6-1950 the Deputy Custodian of Evacuee Property issued a show cause notice in the joint names of the plaintiffs calling upon them to show cause as to why they should not be declared as evacuees and their property as evacuee property under Section 2(d)(i) of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act). The notice inter alia stated that they had left for Pakistan on account of the selling up of the dominions of India and Pakistan and that all their property was intended to be declared as evacuee properly. The notice further stated that the hearing of the case was fixed before the Dy. Custodian or Mr. Bhagtani, who was an Inspector, on the 26th June, 1950, at 1 p. m. for Bombay. On 19-9-50 another show cause notice was issued to plaintiff No. 1 under Section 2(d)(iii) of the Act. The plaintiffs appeared before Inspector Bhagtani and also the Deputy Custodian. The Deputy Custodian recorded their statements and gave a hearing. On 23-12-1950 the Deputy Custodian passed an order declaring both the plaintiffs as evacuees and their property as evacuee property under Section 2(d)(i) of the Act. In accordance with the above decision, a notification was issued declaring them to be evacuees and their property as evacuee property on 30-12-1950. From the decision, the plaintiffs went in appeal to the Custodian. The appeal was dismissed. Thereafter, the plaintiffs went in revision to the Custodian General. The revision application was rejected. Again, the plaintiffs approached the Custodian General for restoration of the property declared to be evacuee property, that is to say, stock-in-trade under Section 16 of the Act. That application also was rejected. On 14-4-60 the Custodian took charge of the properly belonging to the plaintiffs including the stock-in-trade of the first shop viz., M. Gani and Co., and on 16-4-60 took possession of the other shop viz., London Stores. The plaintiffs thereafter gave a notice under Section 80 Civil Procedure Code and filed the suit, which has given rise to this appeal, on 17-1-1961.

(2) The plaintiffs have challenged the legality and validity of the order passed by the Deputy Custodian on the following grounds:-

(1) The show cause notice was issued to two persons jointly even though the allegations against them on which the orders were passed were quite different.

(2) The notice did not contain any particulars of the property sought to be declared as evacuee property.

(3) The notice did not contain any grounds and what was stated there was a mere repetition of the section. The notice was made returnable before Bhagtani, who was merely an Inspector without any powers to hear the same.

It was, therefore, contended that the notice was defective and bad in law and the order declaring the plaintiffs to be evacuees and their property as evacuee property was an order without jurisdiction and was, therefore, a nullity.

3. The defendants appeared and resisted the plaintiff's claim. They contended inter alia, that the decision of the Custodian General was final under Section 28 of the Act. They also contended that the Civil Court has no jurisdiction to entertain the question relating to the legality of the action taken by the Custodian General under Section 46 of the said Act,

4. As many as seven issues were framed. Issue No. 2 ran thus:

'Whether this Court has jurisdiction to entertain and try the suit?'

Issue No, 6 was as follows:-

'Whether the orders passed against the plaintiffs are nullities as alleged in para 8 of the plaint?'

Issue No. 2 was treated as preliminary issue, and on hearing arguments on both the sides, the trial Court came to the conclusion that the civil Court had no jurisdiction to decide the matter. Consequently, it dismissed the plaintiffs' suit. It is against that judgment that the plaintiffs have come up in appeal.

5. Mr. Mirchandani, for the appellants, contended that issues Nos. 2 and 6 were inter-connected and, therefore, it was improper for the trial Judge to have tried the case only on one preliminary issue viz., issue No. 2. There is no substance in this argument. Actually, issue No. 6 is a paraphrase of issue No. 2. The question of jurisdiction of the Court depended upon the question as to whether the order or orders passed by the Custodian or Custodian General were nullities. Issue No. 6, therefore, was superfluous and was in a sense implicit in issue No. 2, No prejudice could have been caused to the plaintiffs by trying issue No. 2 alone as a preliminary issue, because the argument and the discussion in the judgment revolve round the question as to whether the orders passed by the officers under the said Act were nullities.

6. Turning to the main points raised by the plaintiffs for challenging the legality of the orders passed, it would at once be noticed that all the three grounds centred round the show cause notice that was issued on the 15th June, 1950 (Ex. A). Ex. A mentions the names of both the plaintiffs and styles them as proprietors of M/s. M. Gani and Co. The notice says that all the property was intended to be declared as evacuee property. Under the heading 'grounds', the notice says the following:

'You have left for Pakistan on account of the setting up of the Dominions of India and Pakistan.'

The plaintiffs contended that the joint notice was wrong inasmuch as the allegations against the two plaintiffs were quite different. They have not explained as to what is meant by saying that the allegations against them were different. Beyond making a vague assertion that the allegations were different, the plaintiffs have not stated anything by way of illustration, in support of the allegation. So far as the ground is concerned, the notice alleges that both of them had left for Pakistan as a result of the setting up of the Dominions of India and Pakistan. Form of the notice has been prescribed under the Rules. Section 7 of the Act provides that notice is to be given in such manner as may be prescribed. The manner is to be prescribed by the rules framed under Section 56 of the Act, Before the Act, there was Ordinance bearing the name Administration of Evacuee Property Ordinance. Rules were framed under the provisions of the Ordinance which were published in the Gazette dated 30th December, 1949. The notice (Ex. A) shows that the notice was in the form prescribed under Rule 5 (1) of the Rules. These Rules continued to be in force till they were replaced by the Rules, which were published in the month of September, 1950. Under the heading 'grounds', one ground among others is mentioned by way of illustration. I do not think that the notice was in any way bad or violative of the provisions of the Act merely because it purported to be issued to both the plaintiffs jointly. The second ground on which the notice is attacked is that, the particulars of the property sought to be declared as evacuee property have not been mentioned. The notice says that all the property of the evacuees was intended to be declared as evacuee property. In these circumstances, it was wholly unnecessary to give the particulars of the property belonging to the evacuee which was intended to be declared as evacuee properly. The third ground states that the ground mentioned amounts to mere repetition of the section. That means that the grounds are vague and general and are not specific. I am unable to understand why the ground mentioned in Exh. A can be styled as either vague or general. It is specifically stated that the plaintiffs had left for Pakistan. Section 2(d)(i) of the Act defines 'evacuee' to mean any person who, on account of the setting up of the Dominions of India and Pakistan, leaves or has left, any place in a State for any place outside the territories now forming part of India. The assertion that the plaintiffs had left for Pakistan as a result of the setting up of the two Dominions can, in no sense of the expression, be regarded as vague or general. None of the grounds on which the declaration is sought to be challenged as invalid can be regarded as making out a good case for challenging the legality of the order.

7. The principles relating to the powers of a civil Court in declaring the orders passed by the administrative tribunals are well established. Lord Esher M.R. in Reg. v. Commissioner of Income-tax (1888) 21 QBD 313 has laid down the following proposition in that respect.

'When an inferior Court or Tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal, or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as the jurisdiction, on finding that it does exist, to proceed further or do something more .... In the second of the two cases I have mentioned it is erroneous application of the formula to say that the Tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.'

The above passage has been cited with approval by the Supreme Court in Province of Bombay v. K. S. Advani : [1950]1SCR621 . The case under the Administration of Evacuee Properly Act falls within the second category of cases mentioned by Lord Esher M, R. because the Deputy Custodian, the Custodian and the Custodian-General have been invested with the jurisdiction to determine the preliminary facts viz., whether a particular person is an evacuee and whether his property is evacuee property. The decision of the aforesaid officers is final and cannot be called into question in any Court of law. Section 28 of the Act, in substance, provides;

'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 proceeding.'

Similarly, Section 46 of the Act, in effect, provides;-

'No Civil or Revenue Court shall have jurisdiction

(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or ..............

(c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act; or

(d) in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine.'

In view of the above provisions and in view of the general principles laid down by Lord Esher, M. R., it is quite clear, that the order of the Officers under the Act cannot be called in question on the ground that the decision taken by them is wrong or illegal. Every Tribunal has jurisdiction to decide a case rightly as also wrongly. At the same time, it is equally well-settled that when the authority acts in excess of the jurisdiction given to it or abuses the authority or acts in an arbitrary way, such an action can be challenged by an appropriate action taken in a Civil Court. It is not the case of the plaintiffs that no notice was issued to them as required by the provisions of the Act. It is not also their case that the notice was not served on them; nor is it their case that they have not been given proper hearing. The plaintiffs did appear before the authorities and put forth their point of view. After the order was passed by the Deputy Custodian, they went in appeal to the Custodian and later on to the Custodian-General in revision. They also asked the Custodian-General to review his own order under Section 16 of the Act. In other words, the plaintiffs have exhausted all the remedies provided under the Act. The Act has set up an elaborate machinery for considering the claims and objections of the persons concerned and several checks have been provided for correcting the orders passed by the subordinate officers. A Civil Court can interfere only when a clear case has been made out that the action taken by the authorities is in excess of the jurisdiction. All that the plaintiffs have made out in the plaint is that, the notice is defective and bad in law. A defect of an ordinary character would not vitiate the jurisdiction of the Deputy Custodian to proceed further in the matter and pass an order' under Section 7 of the Act. I have laboured to point out that the three grounds mentioned at paragraph (4) of the plaint do not in any way affect the jurisdiction of the Deputy Custodian or the Custodian or the Custodian General. At best, the grounds made out would amount to picking up certain holes in the notice issued. These grounds, therefore, are not sufficient for vitiating the jurisdiction vested in the Deputy Custodian or the Custodian General under the Act.

8. It is also stated at paragraph (4) (c) of the plaint that the notice was bad, because it was made returnable before Bhagtani, who was merely an Inspector without any powers to hear the same. A mere perusal of the notice will show that this statement is incorrect. What the notice stated was that the hearing of the case was fixed before the Deputy Custodian or before Mr. Bhagtani. The plaintiff No. 1 himself has admitted that the notice was heard by Bhagtani, in the first instance, and thereafter a report was put to the Deputy Custodian, who also recorded the statement. There is, therefore, no substance in this argument either. .

9. In the view that I have taken of the grounds urged by the plaintiffs in support of their contention that the action taken by the Deputy Custodian was null and void, it is not necessary to consider the point that was strenuously urged by Mr. Rane viz., that the action of the authorities under the Act can only be called into question in a writ application under Article 226 of the Constitution and is not liable to be challenged by a regular suit

The result is that the appeal fails and is dismissed with costs.

10. Appeal dismissed.


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