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Ebrahim Aboobaker and anr. Vs. U.M. Mirchandani - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 70 of 1952
Judge
Reported inAIR1953Bom26; (1952)54BOMLR822; ILR1953Bom406
ActsAdministration of Evacuee Property Act, 1950 - Sections 2, 24 and 25; Code of Civil Procedure (CPC), 1908; Constitution of India - Article 226
AppellantEbrahim Aboobaker and anr.
RespondentU.M. Mirchandani
Appellant AdvocateP.N. Bhagwati and ;Rafiq Zakaria, Advs.
Respondent AdvocateM.P. Amin, Adv. General
Excerpt:
.....and under section 2(d)(i) or section 2(d)(ii) of the act, and;that, as in the present case, the deputy custodian held the petitioners to be evacuees both under section 2(d)(i) and 2(d)(iii) of the act, an appeal lay to the custodian to the extent that the finding of the deputy custodian related to the ground under section 2(d)(i) and to the district judge to the extent that the finding related to the ground under section 2(d)(iii).;the scheme of sections 24 and 25 of the administration of evacuee property act, 1950. is that general jurisdiction is conferred upon the custodian to hear all appeals against orders made by the deputy custodian under section 7 of the act; but there is one class v of cases where jurisdiction is not conferred upon him, and that is the case where the..........an appeal under the administration of evacuee property act, 1930. on 28th december 1951, the deputy custodian declared the properties of the appellants to be evacuee properties, holding that they were evacuees within the meaning of section 2 (d) (i) and 2 (d) (iii). the appellants preferred an appeal from this decision to the district judge. they also preferred an appeal to the custodian without prejudice to their contention that no appeal lay to the custodian. when the custodian fixed the date for the heaving of the appeal, the appellants preferred a petition to this court for a writ of prohibition.we would like to observe that the petitioners should have waited for the decision of the custodian before coming to this court. as they had preferred the appeal to the custodian and as.....
Judgment:

Chagla, C.J.

[1] This appeal raises a shout question as to the jurisdiction of the Custodian to decide an appeal under the Administration of Evacuee Property Act, 1930. On 28th December 1951, the Deputy Custodian declared the properties of the appellants to be evacuee properties, holding that they were evacuees within the meaning of Section 2 (d) (i) and 2 (d) (iii). The appellants preferred an appeal from this decision to the District Judge. They also preferred an appeal to the Custodian without prejudice to their contention that no appeal lay to the Custodian. When the Custodian fixed the date for the heaving of the appeal, the appellants preferred a petition to this Court for a writ of prohibition.

We would like to observe that the petitioners should have waited for the decision of the Custodian before coming to this Court. As they had preferred the appeal to the Custodian and as they had raised the question of jurisdiction, primarily it was for the Custodian to decide whether he had jurisdiction or not. Assuming he erroneously came to a decision with regard to his jurisdiction, it would then have been perfectly competent to the appellants to come to this Court for a writ of certiorari or prohibition. But as the Advocate General is anxious that we should give an authoritative decision on the question raised, which is of considerable importance, we have proceeded to hear the appeal on merits.

[2] Section 24 of the Act provides that any person aggrieved by an order made under Section 7--and I am reproducing the material portion of the section--may prefer an appeal in such manner and within such time as may be prescribed, to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian. Now, in this case the appellants are aggrieved by an order made by the Deputy Custodian under Section 7 and, therefore, under Section 24 the appeal would lie to the Custodian. But we have a proviso to this section and that proviso lays down that where the appeal is preferred on the ground that the person aggrieved is not an evacuee within the meaning of Sub-clause (iii) of Clause (d) of Section 2, the appeal shall bo preferred In the manner prescribed in Section 25. Therefore, the proviso takes out of the main section a certain area over which the Custodian has no jurisdiction, and the area is restricted to the finding of the Deputy Custodian that the person aggrieved is an evacuee within the meaning of Sub-clause (iii) of Clause (d) of Section 2.

Then we come to Section 25 and that provides that any person aggrieved by an order under Section 7 declaring his property us evacuce property on the ground that he is an evacuee within the meaning of Sub-clause (iii) of Clause (d) of Section 2, may prefer an appeal, in such manner and within such time as may be prescribed, to the District Judge nominated in this behalf by the State Government. Therefore, Section 25 deals with those matters which are taken away from the jurisdiction of the Custodian and in those matters jurisdiction is conferred upon the District Judge. Therefore, broadly speaking, the scheme of Sections 24 and 25 is clear; general jurisdiction is conferred upon the Custodian to hear all appeals against orders made by the Deputy Custodian under Section 7; but there is one class of cases where jurisdiction is not conferred upon him, and that is the case where the Deputy Custodian holds the person aggrieved to be an evacuee within the meaning of Section 2 (d) (iii). In such a case jurisdiction is conferred exclusively upon the District Judge to decide the matter.

Now, in this particular case the order com-plained of is made both under Sections 2 (d) (i) and 2 (d) (iii), and Mr. Bhagwati seems to be right when he contends that the order made by the Deputy Custodian is one and indivisible, that the appellants are aggrieved by that order and only one appeal can lie against that order. Ordinarily, there would be no answer to Mr. Bhagwati's contention. But when wo find a special Act which deals with special circumstances, we must hold that in this particular case although the order, is one, two appeals are provided. One appeal is to the Custodian who would go into the question of the ground under Section 2 (d) (i) which has led the Deputy Custodian to hold that the appellants' property is evacuee property, and the other to the District Judge on the ground under Section 2 (d) (iii) which has led the Deputy Custodian to hold that the appellants' property is evacuee property.

Although Mr. Bhagwati is theoretically right, we see no practical difficulty in coming to this conclusion. If the appeal is first heard by the Custodian under Section 2 (d) (i) and if ho wishes to reverse the order of the Deputy Custodian, he would reverse it only to the extent that the Deputy Custodian was in error in holding that the appellants were evacuees within the meaning of Section 2 (d) (i); he would not he able to set aside the order, because the order was based not only on the ground under Section 2 (d) (i), but also on the ground under Section 2 (d) (iii). When the appeal is heard by the District Judge under Section 2 (d) (iii), if the District Judge is also of the opinion that the Deputy Custodian was in error in holding the appellants to be evacuees under Section 2 (d) (iii), then the order would be insupportable on both the grounds and, therefore, the order would be liable to be set aside. If, on the other hand, the District Judge came to the conclusion that the Deputy Custodian was right in the view that he took with regard to the ground under Section 2 (d) (iii), then, notwithstanding the Custodian holding against the Deputy Custodian under Section 2 (d) (i), the order would have to be sustained because one ground would be sufficient to sustain the order. Therefore, in practice no difficulty should arise in working out these two sections.

[3] Now, Mr. Bhagwati has appealed to us to look at the language of the section, and, according to him, looking to the proviso, if an appeal is preferred and one of the grounds of the appeal is that the person aggrieved is not an evacuee within the meaning of Sub-clause (iii) of Clause (d) of Section 2, then the District Judge alone has jurisdiction to hear the appeal and the jurisdiction of the Custodian is ousted- In the first place, it is not possible to give that interpretation on a plain grammatical construction of the proviso. A proviso merely carves out something from the section itself; a proviso never destroys the section as a whole; and if this interpretation were to be given to the proviso, it would mean that by means of the proviso the power conferred upon the Custodian to hear appeals under Section 7 on grounds falling under Section 2 (d) (i) and Section 2 (d) (ii) has been taken away; it would mean chat although the Deputy Custodian decided on three grounds, Section 2 (d) (i), (ii) and (iii), merely because he decided on ground 2 (d) (iii) the jurisdiction of the Custodian was taken away and the District Judge had the jurisdiction to decide on all the three grounds on which the order was made by the Deputy Custodian.

It is impossible to accept the contention that the expression 'the ground' means one among many grounds. On the other hand, there is force in the Advocate General's contention that the proviso only applies where the solo ground on which the Deputy Custodian has held the aggrieved person's property to be evacuee property is that he is an evacuee within the meaning of Sub-Clause (iii) of Clause (d) of Section 2; because it is possible to argue that the general jurisdiction being conferred upon the Custodian, the exceptional jurisdiction conferred upon the District Judge was confined to a case where the Deputy Custodian held that the aggrieved person was an evacuee within the meaning of Sub-clause (iii) of Clause (d) of Section 2; in other words, where the finding was based on more than one ground, appeal would only lie to the Custodian and not to the District Judge. We have not been able to accept the contention of the Advocate General, because in our opinion there was good ground why the Legislature conferred jurisdiction upon the District Judge to decide cases falling under Subb-clause (iii) of Clause (d) of Section 2.

The cases that fall under this sub-clause relate to complicated questions of title and, therefore, the scheme of the Act was that such questions should be decided by a trained judicial authority, and Section 27 further provides that if the Custodian. General wishes to revise the decision of the District Judge and he differs from the view taken by the District Judge, he has no power to set aside the order of the District Judge, but he has to refer the matter to the High Court. Therefore, we are not inclined to give an interpretation to Section 24 the result of which would be to oust the jurisdiction of the District Judge to decide complicated questions of title. Therefore, in our opinion, the learned Judge below was right when he came to the conclusion that looking to the scheme of Sections 24 and 25 two appeals are provided where eases arise under Section 2 (d) (iii) and under Section 2 (d) (i) or Section 2 (d) (ii). As in this ease the Deputy Custodian held the appellants to be evacuees both under Sections 2 (d) (i) and 2 (d) (iii), an appeal would lie to the Custodian to the extent that the finding of the Deputy Custodian related to the ground under Section 2 (d) (i) and to the District Judge to the extent that the finding related to the ground under Section 2 (d) (iii).

[4] The result is, the appeal fails and is dismissed with costs.

[5] Appeal dismissed.


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