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D.B. Godbole Vs. Kunwar Rajnath - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberMisc. No. 285 of 1955
Judge
Reported inAIR1956Bom652; (1956)58BOMLR779; ILR1956Bom865
ActsAdministration of Evacuee Property Act, 1950 - Sections 10(2), 23, 24, 28, 45, 48, 48(1) and 48(2); Administration of Evacuee Property (Amendment) Act, 1954; Constitution of India - Article 227; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantD.B. Godbole
RespondentKunwar Rajnath
Appellant AdvocateG.N. Joshi, ;Porus Mehta, ;Bhabha, Advs., ;Solicitor General and ;Adv. General
Respondent AdvocateManekshaw and ;Bhagwati, Advs.
Excerpt:
.....1950), sections 48, 10 -- constitution of india, article 227--condition precedent to exercise of power by custodian under section 48(2)--whether high court has power to examine decision of custodian that sum determined by him as due is due under provisions of act--respondent appointed manager by custodian to manage evacuee property--custodian calling upon respondent to submit statement of account with regard to evacuee property--custodian after considering such statement deciding that certain sum due to him from 'respondent and seeking to recover it under section 48 of act--whether amount determined by custodian a sum payable under provisions of act--applicability of section 48 --object of act--whether court or tribunal of limited jurisdiction can be assumed to possess power finally to..........to decide or determine anything. all that it provides is that this decision, if he has the power to decide, is rendered final, and mr. manekshaw's contention is that unless we find somewhere in the act of power conferred upon the custodian to decide or determine a matter, we must not import that power into sub-section (2) of section 48. in our opinion that contention is clearly untenable. when the legislature makes the decision of the custodian final, by necessary implication, it confers upon the custodian the power to decide. the making of his decision final necessarily carries with it the power to decide that which becomes final, and it would be too technical a construction to put upon sub-section (2) that because in terms the legislature did not confer the power to decide upon.....
Judgment:

Chagla, C.J.

1. A short but rather important point affecting the rights of third parties under the Evacuee Property law arises in this appeal. On 12-9-1951 the _ properties of Messrs. Ahmed Abdul Karim Bros. Ltd., were declared evacuee properties. These properties consisted of Woolen Mills at Ambernath, a bobbin factory at Tardeo, and certain other moveable. The respondent to this appeal was appointed manager by the Custodian to manage these properties. He was appointed on 1-8-1952 and he continued as manager till 30-8-1952.

On that date an arrangement was arrived at by which the lease of evacuee properties was granted by the Custodian to a partnership of three persons of whom the respondent was one, and pursuant to this arrangement possession of the properties was given to the partnership on 31-8-1952. The lease was terminated by the Custodian on the 25th May 1954.

After the lease was granted the respondent continued to be the manager for the purpose of collecting the dues and discharging the debts in respect of evacuee property for the period 1-8-1952 to 30-8-1952. On 30-6-1954 the Custodian took back the possession of the evacuee properties. He called upon the respondent to submit a statement of accounts with regard to his management of evacuee properties. This statement was submitted by the respondent on 12-8-1954.

After considering the statement, the Custodian decided that a sum of Rs. 4,73,000/- and odd was due by the respondent to him and on 30-3-1955 he issued a notice against the respondent to show cause why this amount should not be paid by him to the Custodian. On 5-9-1955 the respondent presented a petition to this Court contending that the Custodian had no jurisdiction to determine the amount payable by him to the Custodian and asking for a direction from this Court to quash the show cause notice.

Coyajee J. who heard the petition held that the Custodian had no jurisdiction to determine the amount and therefore the show cause notice was not well founded and passed an order Quashing that notice. The Custodian has now come in appeal.

2. The relevant section that has got to be considered in order to determine the rights of parties is Section 48(1) and Section 48(2). Section 48(2) was introduced in the original Act by amending Act XLII of 1954. The original section 48 was to the following effect:

'Any sum due to the State Government or to the Custodian under the provisions of this Act may be recovered as if it were an arrear of land revenue.'

It will be noticed that this is a procedural section which Jays down the mode of recovery of any sum due to Government or the Custodian. It does not purport either to create rights or impose liabilities. The sum that may become due under the provisions of the Act must be ascertained by looking to the other provisions of the statute. Section 48 itself throws no light on what are the sum or sums due under the provisions of the Act.

The new Sub-section (2) provided :

'For the purposes of Sub-section (1) the decision of the Custodian as to the sum due to the State Government or to the Custodian shall be final.'

It is significant that whatever power is conferred upon the Custodian under Sub-section (2) is for the purposes of Sub-section (1) which, as we have already indicated, is a procedural section providing for themode of recovery of certain sums due to Government or the Custodian. This sub-section makes the decision of the Custodian final, but the finality attaches only to that decision of the Custodian which is given with regard to the sums due to the Custodian, and reading Sub-section (2) in the light of Sub-section (1) it is clear Chat the sums due to the Custodian with regard to which his decision is rendered final are the sums due under the provisions of the Act.

It will therefore again be noticed that just as in the case of Section 48(1), Sub-section (2) does not create any new rights or impose any new liabilities. Having laid down the procedure with regard to the recovery of certain sums under Section 48(1), the Legislature proceeded further and made the decision of the Custodian with regard to those sums final.

It has been argued by Mr. Manekshaw that this section does not confer any power upon the Custodian to decide or determine anything. All that it provides is that this decision, if he has the power to decide, is rendered final, and Mr. Manekshaw's contention is that unless we find somewhere in the Act of power conferred upon the Custodian to decide or determine a matter, we must not import that power into Sub-section (2) of Section 48.

In our opinion that contention is clearly untenable. When the Legislature makes the decision of the Custodian final, by necessary implication, it confers upon the Custodian the power to decide. The making of his decision final necessarily carries with it the power to decide that which becomes final, and it would be too technical a construction to put upon Sub-section (2) that because in terms the Legislature did not confer the power to decide upon the Custodian, therefore, he has no power to decide under this sub-section, but the power must be found elsewhere in the statute.

But even if the Custodian has the power to decide the question still remains what is the extent and the ambit of his power. The extent and the ambit of his power is clear from the language of Section 48(1) and that extent and that ambit is confined and limited to deciding and determining what are the sums due to Government or the Custodian under the provisions of the Act.

3. The Solicitor General attempted to argue that this was one of those cases where the Legislature set up a tribunal with a limited Jurisdiction and conferred upon that tribunal not only the power to decide matters in issue but also jurisdictional facts which must exist before the tribunal would have jurisdiction to decide, and therefore the argument was advanced that not only the Custodian had the power to decide what were the sums due to the state or the Custodian, but he had also the power to decide whether any sum was due under the provisions of the Act, and according to the Solicitor General if the Custodian decided that certain sum was due to him under the provisions of the Act that decision of his was final.

We are not prepared to accept that contention. When a Court or a Tribunal with a limited jurisdiction is set up, ordinarily it is the duty and the function of the higher Court to see that the Court or tribunal of limited jurisdiction; functions within the jurisdiction conferred upon it. Undoubtedly there are cases in the books which go to show that legislature have set up Courts and tribunals with much wider powers and have conferred upon them the jurisdiction to decide even jurisdictional facts, but those are rare and exceptional cases and unless there is clear language to indicate that legislature intended to set up such a Court or tribunal, as a matter of ordinary construction the Courts or tribunal of limited jurisdiction could not be assumed to possess the power finally to decide facts with regard to their own jurisdiction.

Therefore, in our opinion, it is a condition, precedent to the exercise of a power of the custodian under Sub-section (2) that the sum with regard to which he gives his decision or determination must be a sum due under the provisions of the Act. It is not sufficient for the Custodian to say that in his opinion a certain sum is due under the provisions of the Act.

That opinion is subject and must always be subject to the scrutiny of the Court to which, he is subordinate and as under Article 227 of the Constitution every tribunal is subordinate to the High Court, the High Court has the power to examine the decision of the Custodian from the point of view of deciding whether he has acted within jurisdiction.

4. It was then argued by the Solicitor General that in fact the amount determined by the Custodian was a sum due under the provisions of the Act, and for that purpose reference was made to Section 10 which deals with the powers and duties of the Custodian and it was pointed out that the manager was appointed under Sub-clause (b) of Section 10(2), that he was required to furnish returns and accounts under Sub-clause (f) and the sum of Rs. 4,73,000 and odd was determined by the Custodian as a result of his having appointed the respondent as a manager under the provisions of the Act and having called that manager to submit returns and accounts.

In our opinion it is fallacious to suggest that this sum of Rs. 4,73,000/- and odd is due by the respondent under any provision of the Act, Undoubtedly the Custodian has the authority under the Act to appoint a manager, undoubtedly he has also the authority to call upon him to render accounts, but it does not follow from that that under the provisions of the Act either he has the authority to determine the liability of the manager whom he has appointed or to call upon him to pay any amount which he determined as due from him. This sum of Rs. 4,73,000/- and odd is really due under the arrangement arrived at between the Custodian and the respondent.

It was suggested by the Solicitor General that the property which the respondent was managing was evacuee property and this amount was due in respect of both properties and that this amount when collected would constitute an accretion to evacuee properties. This would have been a very sound argument if the legislature had used the expression 'any sum due to the State Government or to the Custodian in respect of evacuee property'.

But that is not the language that the legislature has used. It was also urged upon us that this sum is due in consequence of carrying out the provision of the Act and that this sum is due in pursuance of the Act. It is unnecessary to consider that argument more closely because we refused to substitute a different expression for the expression advisedly used by the legislature.

5. In asking us to accept his contention, the Solicitor General wishes us to accept the position that Parliament conferred upon the Custodian such wide powers that he could conclude the rights and liabilities of third parties merely by his fiat that a certain sum was due by them to him, and the Solicitor-General wanted us to accept this position because he said that as we ourselves had held before that this was a special legislation and a child of an emergency, we must give a construction to this section consistent with the object of the Act.

The object of the Act is to administer evacuee property, to manage, look after and preserve evacuee property. The object of the Act is not strictly to decide rights and liabilities of the third parties who have dealing with the Custodian or with evacuee property. A Court of law must be anxious to safeguard contractual rights and liabilities of the third parties.

The Court must be anxious to see that those rights and liabilities are determined in the ordinary Courts of the land and unless Parliament expressly precludes a third party from going to a Civil Court or preclude the Civil Court from determining his rights and liabilities, the Court must try not to put a construction which would bring about tills unsatisfactory result.

In our opinion it is impossible to take the view that the Parliament in incorporating Sub-section (2) of Section 48 in the Act intended that the Custodian should be given the power to decide the liability of third party in alt matters where third party had any dealings either with him as the Custodian or with evacuee properties and that in deciding this liability, his decision should be final and that the rights and liabilities of third parties should be concluded by his decision, then Parliament would not have used more appropriate language. It is difficult to believe that by a side-wind by amending a procedural section such drastic powers were intended to be conferred upon the Custodian.

It is also surprising that whereas rights of appeal and revision are conferred upon a party aggrieved by a decision of the Custodian, which rights are to be found la Chapter V commencing with Section 24, and Section 28 renders orders made by the Custodian or other authorities final subject to this powers of appeal and revisions, when we turned to Section 48(2) the finality of the Custodian is so complete that apparently there does not seem to be any right of appeal conferred upon the third party whose liability is determined, nor does there seem to be any power of revision against that decision of the Custodian. That seems to lend an added strength to the contentions that by this provision, the legislature did not intend to confer upon the Custodian, the power to determine the liability of the third parties.

There seems to be no principle whatever underlying this extraordinary conferment of absolute power upon the Custodian in the case of the third Party who has nothing whatever to do with migration or directly with evacuee property and when even evacuees have been given the right not only of appeal but of revision to the Custodian General.

6. Realising the extent and scope of the power which his submission would confer upon the Custodian the Solicitor General was driven to make a more limited submission and his submission was that it may be that if the Custodian is carrying on business under Section 10(2)(a) and in the course of business he enters into contracts, it would not be open to him to determine the liabilities of third parties with whom he enters into contract, the position would be different when he appoints a manager under Section 10(2)(b) and calls upon that manager under Sub-section (f) to render account. His contention was that whereas in the former case it might be said that the amount was not due under the provisions of the Act, in the latter case, inasmuch as the manager was appointed under the Act and accounts were called for from him under the Act, it may be said that the amount was due under the provisions of the Act.

Now, it is always a mistake to try and construe a section of an Act only bearing in mind the particular fact that comes up before a Court. A section must be construed so that it applies not only to particular facts of the case but which should be applied similarly if other facts come before the Court. The construction of a section cannot vary with the facts to which the section has got to be applied and therefore we must construe this section on principle and not in the light of the particular fact which we have to decide in this appeal, and we see no distinction in principle between applying this section in the same manner, whether the case falls under Section 10(2)(a) or under Section 10(2)(b). Either the contention of the Solicitor General is right that anything done by the Custodian as a Custodian and arty power exercised by him under the Act, if it leads to a contract or arrangement being made, amounts becoming due under the contract or arrangement become sums due under the provisions of the Act, or the Solicitor General's contention is erroneous.

If his contention is erroneous then it is as much erroneous whether the sum of Rs. 4,73,000/-and odd is due under a contract entered into with the respondent in the course of the business which the custodian carries on behalf of the evacuee or the sum of Rs. 4,73,000/- and odd is due under an arrangement arrived at with the respondent who is constituted a manager.

7. We were also told that if Legislature enacts any provision of the law it does so with some purpose and we must find some cases to which the particular provision of the law would attach and it is said that if we give to Section 48 the meaning which we suggest is the proper meaning then it would be difficult to find any cases to which Section 43 would be applicable.

It is true that ordinarily the function of the, court should not be to render any legislation futile or infructuous but it is equally the function of the court not to alter the language of the legislature in order to give effect to any piece of legislation. There are innumerable instances of what a learned Law Lord said of legislature misfiring and often the legislature by failure to use adequate language fails to achieve its object.

We are not at all sure in the first instance that the legislature ever intended to confer upon the Custodian the wide and drastic power of deciding liabilities of third parties and even assuming we were satisfied that that was the object of the legislature, we refuse to extend and alter the meaning of the language used by the legislature merely because we may find that Section 48 would have no application if it was given the strict meaning which the language bears.

As a matter of fact Mr. Maneckshaw has drawn our attention to two provisions of the Act winch were extant when Section 48 was originally enacted, Sections 23 and 45(b), which go to show that there might have been provisions when Section 48 was enacted which would satisfy the language used by the legislature, viz. sum due under the provisions of the Act. But that is neither here nor there. We cannot throw the burden upon the respondent to show us some provision of the Act to which Section 48 applies. Rather it is for the custodian to satisfy us that on the language used by the legislature in Section 48 it applies to the case of the third parties.

8. Turning to the authorities our attention was drawn naturally to a decision of this court reported in 'S. Benjamin v. Ebrahim Aboobakar' 67 Bom LR 40 (A). That is a decision directly in point. In that case we Held that Section 10(2)(i) of the Administration of Evacuee Property Act did not confer upon the custodian the power to recovers debt due to an evacuee by a summary process without having resort to the civil courts and that he could only recover that debt by going to a civil court establishing the debt and getting the court to pass a decree in his favour and further that the right conferred upon the custodian under Section 10(2)(f) to call upon a person to furnish information returns and accounts did not carry with it the right by the custodian's own adjudication to determine the liability of any person in respect of any property which was vested in him.

What is now sought to be argued is that when this decision was given, Parliament had not enacted Section 48(2) and what is urged upon us is that by reason of the enactment of Section 48(2) this decision is no longer good law and that we would never have come to this conclusion if Section 48(2) had been upon the statute book. In our opinion the enactment of Section 48(2) does not make the slightest difference to the ratio of this decision. As a matter of fact, in that case the Advocate-General relied on Section 48 and we pointed out to him that before he could rely on that section he must satisfy us that any sum was due to the custodian under the provisions of the Act, and inasmuch as the Advocate General was not in a position to satisfy us he failed.

The position is identical today. The only change in the law that Section 48(2) has brought about is that it has conferred a power upon the Custodian to decide and it has made his decision final. But the law is still the same today viz. that what he can decide is something due under the provisions of the Act, and unless the Solicitor General can satisfy us-that this sum claimed by the Custodian from the respondent is due under the provisions of the Act, just as Section 48 was of no help to the Advocate General in that case Section 48(2) can be of no help to the Solicitor General in this case.

What was argued in that case was that because a debt was due by a third party to the evacuee or the Custodian the Custodian had the right to determine the liability of the debtor. We rejected that contention because we found nothing in any provision of the Act, which conferred such a power upon the Custodian. We again look in vain through the provisions of the Act to find such a power conferred upon the Custodian because what the Custodian is purporting to do today is exactly what the Custodian purported to do in that case.

9. The Solicitor General referred to a Full Bench decision of this court reported in 'Municipal Borough, Ahmedabad v. Jayantilal' AIR 1948 Bom. 98 (B). It is rather an instructive case because we were construing there words Used in the Bombay Municipal Boroughs Act which were much wider in their import than the words used in Section 48, and the words used there were : 'an act done in pursuance of the Act.' Even so the Full Bench held that :

'the act done must be the direct result of some duty cast upon the local body or some authority conferred upon it. If it is the direct result of a contract, which although the local body is impowered to enter into but is under no obligation to do so then that act is not the act contemplated by the section.'

Therefore even in the case of language stronger than the language used in Section 48 we made a distinction between a contract entered into pursuant to the Act, which was not obligatory upon the local authority. In coming to this conclusion, we relied on the well known English case 'Braddford Corporation v. Mysers' (1913) 1 A. C. 242 (C). The Solicitor-General says that there is a recent English case. 'Firestone Tire and Rubber Co. v. Singapore Harbour Board' 1952 A. C. 452 (D), where the view seems to have been taken that if the local authority in entering into a contract is doing a public duty then the mere fact that the contract entered into is not obligatory does not deprive the act of its public quality.

In the first place we are bound by the decision of the Full Bench and even assuming the law is as stated by the more recent English decision we are not here construing the language which had to be considered by the Full Bench and by the Englishcourt, but we are here considering the language which is very different in its connotation and in its import.

10. Under the circumstances we are of the opinion that the learned Judge was right in the view that he took. The result is that the appeal fails and must be dismissed with costs.

11. Appeal dismissed.


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