Skip to content


Masalkhan S/O Kalandar Khan Vs. Custodian of Evacuee Property and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 125 of 1956
Judge
Reported inAIR1959MP256
ActsAdministration of Evacuee Property Act, 1950 - Sections 28 and 28(2); Constitution of India - Article 226
AppellantMasalkhan S/O Kalandar Khan
RespondentCustodian of Evacuee Property and ors.
Appellant AdvocateR.K. Pandey, Adv.
Respondent AdvocateS.B. Sen, Govt. Adv.
DispositionAppeal dismissed
Cases ReferredEbrahim Aboobakar v. Custodian General of Evacuee Property
Excerpt:
- - director, rural rehabilitation, pepsu, (s) air 1955 pepsu 91. these decisions, however, are clearly not in point for, in each of them, the order passed by the authority within the territories and accordingly with. the finding arrived at by the tribunal was covered by the said section, particularly the portion which we have underlined (here in '). since this court does not sit in judgment on the impugned order as an appellate authority, and there is no error of jurisdiction or any error apparent on the face, of the record, the appeal is liable to fail......nagpur and pepsu which, according to him, supported his contention, viz., asmat ullah v. custodian, evacuee property, u. p. lucknow, (s) air 1955 all 435 (fb), burhanpur national textile workers union, burhanpur v. labour appellate tribunal of india, (s) air 1955 nag 148, and joginder singh waryam singh v. director, rural rehabilitation, pepsu, (s) air 1955 pepsu 91. these decisions, however, are clearly not in point for, in each of them, the order passed by the authority within the territories and accordingly with. in the jurisdiction of the high court concerned had merged, in the order of the superior authority which was located outside the territories and was, therefore, beyond the jurisdiction of that high court. in that situation, a writ against the inferior authority.....
Judgment:

P.K. Tare, J.

1. This appeal is directed against the order of Naik J. dated 20-7-1956 passed in Miscellaneous Petition No. 224 of 1956, refusing to issue a writ of certiorari under Article 226 of the Constitution of India against the orders of the authorities acting tinder the Administration of Evacuee Property Act (XXXI of 1950).

2. This case has had a chequered history. The facts as established from the record are as follows :

One Abdul Gafoor Khan, a fruit merchant of Bilaspur in Madhya Pradesh, went to village Pir Piyai (West Pakistan) in September, 1948 along with his wife, children and his parents. On 15-1-1949, Abdul Gafoor applied from village Pir Piyai for permission to come to India. A non-objection certificate dated 1-2-1949 was issued granting him the necessary permission. He returned to India on the said permit and again applied on 2-8-1949 for a permit to visit Pir Piyai. A temporary permit dated 26-8-1949 was granted to him, which was valid upto 25-8-1950. He overstayed there and after the expiry of the period of the permit applied to the Union Government for permission to return to India. But by an order dated 24-7-1951, he was refused permission. There is nothing on record to indicate that he made any subsequent attempts to return to India.

3. In the year 1952, proceedings were started for declaring Ashraf Khan, father of Abdul Cafoor Khan, an evacuee vide Evacuee Property Case No.16-33/7 of 1951-52. In the course of the proceedings not only Ashraf Khan, but Abdul Gafoor Khan also was declared an evacuee, without a proper Notice to him, vide order dated 7-2-1953.

4. On 13-5-1953, the appellant, Masalkhan, who claims to be related to Abdul Gafoor Khan and his partner in fruit business, filed an objection against the -declaration of Abdul Gafoor Khan as an evacuee. His objection was allowed by the Assistant Custodian, who started the proceedings afresh after directing a proper notice to be issued to Abdul Gafoor Khan.

5. By order dated- 15-10-1953, the Assistant Custodian declared Abdul Gafoor Khan an evacuee. However, the Custodian, by order dated 22-1-1954 passed in Evacuee Property Appeal No. 9-33/7 of J 953-54 set aside the order of the Assistant Custodian and remanded the case for a fresh inquiry. After remand, the Assistant Custodian held a fresh inquiry and by order dated 18-12-1954 again declared Abdul Gafoor Khan as evacuee.

6. The appellant filed Appeal No. 11-33/7 of 1954-55 before the Custodian, who -- vide order dated 10-3-1955 -- again set aside the order of the Assistant Custodian and remanded the case for a fresh inquiry. The Assistant Custodian, after holding a detailed inquiry by recording evidence, again by order dated 24-9-1955, declared Abdul Gafoor Khan an evacuee. The appeal filed by Masalkhan before the Custodian was dismissed by order dated 26-11-55-The revision filed by the appellant before the Deputy Custodian General, New Delhi was rejected by order dated 16-3-1956. Therefore, the appellant filed a writ petition under Article 226 of the Constitution, which was rejected in limine by a Single Bench of this Court vide order dated 20-7-1956, which is the subject matter of the present appeal.

7. The learned counsel for the respondents raised a preliminary objection that even assumingthe orders of the tribunals to be incorrect, this Court would have no jurisdiction to issue a writ of certiorari, as the final and operative order was that of the Deputy Custodian General, New Delhi, a tribunal located outside the territorial jurisdiction of this Court. Reliance was placed on the Division Bench case of Ptemchand v. State of M. P. 1957 M. P. LJ 780 : (AIR 1958 Madh. Pra. 68) : See also Burhanpur Nation Textile Workers' Union v. Labour Appellate Tribunal of India, ILR (1955) Nag 108 : ( (S) AIR 1955 Nag 148) and Surajmal v. State of M. P. 1957 M. P. LJ 788 : (AIR 1958 Madh. Pra. 103 (FB)).

8. However, the learned counsel for the petitioner urged that the question of territorial jurisdiction of this Court does not arise after the pronouncements of their Lordships of the Supreme Court in A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-tax Officer, (S) AIR 1956 SC 246 and State of U. P. v. Mohammad Nooh AIR 1958 SC 86. The learned counsel urged that there was no merger of the order of the inferior tribunal into that of the superior tribunal and as the only operative order in the present case was that of the Assistant Custodian, a tribunal located within the territorial limits of this Court, this Court could exercise prerogative powers under Article 226of the Constitution of India.

9. This is what their Lordships of the Supreme Court laid down in (S). AIR 1956 S C. 246. (supra) :

'28. It is clear from the above provisions that the authorised official has considerable powers conferred upon him in the conduct of the investigation and even though he could be called a mere arm of the Commission or an authorised agent of the Commission, he has important functions to discharge and is not merely a mouth-piece of the Commission or a conduit pipe transmitting the orders or the directions of the Commission.

He is no doubt under the general control and supervision of the Commission but he performs the various functions assigned to him on his own initiative and in the exercise of his discretion. If, therefore, he does anything in the discharge of his functions as authorised official which is not authorised by law or is violative of the fundamental rights of the petitioner, he would be amenable to the jurisdiction of the High Court under Article 226.

29. Even though this is the 'prima facie' position, it was urged that he is acting under the Directions of the Commission as its authorised, agent and as such no writ can issue against him because the principal who directs the activities and not the agent would be liable for the same. This contention is unsound. There can be no agency in the matter of the commission of a wrong.

The wrong doer would certainly be liable to be dealt with as the party directly responsible for his wrongful action. The relationship between principal and agent would only be relevant for the purpose of determining, whether the principal also is vicariously liable for the wrong perpetrated by his agent.

On the analogy of criminal liability, the offender could certainly not be heard to say that he was committing the offence under the behest or directions of his principal. On the analogy of a civil wrong, the tortfeasor could certainly not protect himself against liability on the ground of having committed the tort under the directions of his principal.

The agent could in no event exculpate himself from liability for the wrongful act done by him and if he is thus amenable to the jurisdiction of the High Court the High Court could certainly issue an appropriate writ against him under Article 226.

The jurisdiction under Article 226 is exercised by the High Court in order to protect and safeguard the rights of the citizens and wherever the High Court finds that any person within its territories is guilty of doing an act which is not authorised by law or is violative of the fundamental rights of the citizens, it exercises that, jurisdiction in, order to vindicate his rights and redress his grievances and the only conditions of its exercise of that jurisdiction are those laid down in the passage from Patanjali Sastri, C. J.'s judgment cited above.

The argument that by issuing a writ against the agent under those circumstances the High Court would be putting him in a position whereby he would be compelled to disobey the directions of his principal is also of no avail for the simple reason that an agent is bound to obey all lawful directions of his principal and not directions which the High Court holds to be unlawful or not justified in law.

The agent could certainly be prohibited from obeying the unlawful directions of his principal and even if the principal cannot be reached by reason of his being outside the territories, the arm of the law could certainly reach the agent who is guilty of baying committed the wrong and the High Court could certainly issue a writ against him under Article 226.

30. It was further contended that by issuing such a writ against the authorised official the High Court would be indirectly prohibiting the Commission from conducting the investigation within the territories even though it could not directly prohibit the Commission from cluing so.

If the Commission was doing something, within the territories through its authorised official which Was not justified in- law, it would not lie in the mouth of the Commission to urge that the High Court could not issue a writ of prohibition against its agent, theauthorised official, who had his residence or permanent location within the territories merely because it would be indirectly prohibited from perpetrating wrong within the territories.

The principal could, in no event, urge that his agent should be allowed to function for him within the territories in a manner which was not warranted by law or had no justification in law. It is expected that once this Court has declared the law the Investigation Commission would comply with it and not place its agent in the wrong by directing him to act contrary to the law so declared,

31. Our attention was drawn by the learned Attorney-General in this connection to three recent decisions of the High Court of Allahabad, Nagpur and Pepsu which, according to him, supported his contention, viz., Asmat Ullah v. Custodian, Evacuee Property, U. P. Lucknow, (S) AIR 1955 All 435 (FB), Burhanpur National Textile Workers Union, Burhanpur v. Labour Appellate Tribunal of India, (S) AIR 1955 Nag 148, and Joginder Singh Waryam Singh v. Director, Rural Rehabilitation, Pepsu, (S) AIR 1955 Pepsu 91.

These decisions, however, are clearly not in point for, in each of them, the order passed by the authority within the territories and accordingly with. in the jurisdiction of the High Court concerned had merged, in the order of the superior authority which was located outside the territories and was, therefore, beyond the jurisdiction of that High Court. In that situation, a writ against the inferior authority within the territories could be of no avail to the petitioner concerned and could give him no relief for the order of the superior authority outside the territories would remain outstanding and operative against him...........'

Thus Their Lordships indicated that the position would be different, in cases, where the order of an inferior tribunal merges into that of the superior tribunal from the other cases, where there is no such merger.

10. While considering the question about the retrospective operation of Article 226 of the Constitution, Their Lordships laid down the following dictum in AIR 1958 SC 86 (supra) :

'13. There appear to be two answers to the foregoing contention. As we have already observed an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department can hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure by the Court of first instance and the decree dismissing the appeal therefrom by an appeal Court and the order dismissing the revision petition by a yet higher Court, as has been sought to be done by the High Court in this case, because the departmental tribunals of the first instance or on appeal or revision are not regular Courts manned by persons trained in law although they may have the trappings of Courts of law.

The danger of so doing is evident from what has happened in the very case now before us. In the next place, while it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Manni Dei, 41 Ind App 104 : (AIR 1914 PC 65), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Genddan Singh, 53 Ind App 197: (AIR 1926 PC 93). But as pointed out by SirLawrence Jenkins in delivering the judgment of the Privy Council in Jascurn Boid v. Prithichand Lal, 46 Ind App 52: ILR 46 Cal 670 at pp. 678 and 679: (AIR 1918 PC 151 at pp. 152-153), whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal.

There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. In that view of the matter the original order of dismissal passed on 20-4-1948 was not suspended by the presentation of appeal, by the respondent nor was its operation interrupted when the Deputy Inspector General of Police simply dismissed the appeal from that order or the Inspector General simply dismissed the application for revision.

The original order of dismissal, if there were no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned. That order of dismissal having been passed before the Constitution and rights having accrued to the appellant State and liabilities having attached to the respondent before the Constitution came into force, the subsequent conferment of jurisdiction and powers on the High Court can have no retrospective operation on such rights and liabilities.

Even if the order of dismissal of the respondent was a nullity on the ground that it was passed by disregarding the rules of natural justice, the High Court could not properly be asked to exercise its newly acquired jurisdiction and powers under Article 226 to correct errors, irregularities or illegalities committed by the inferior departmental tribunal before the commencement cf the Constitution, for then there will be no limit to its going backward and that will certainly amount to giving the provisions of Article 226 a retroactive operation. This aspect of the matter does not appear to have been pressed in the High Court or adverted to by it. It is only on this ground that we are constrained, not without regret, to accept this appeal.'

Their Lordships have indicated that departmental tribunals stand on a different tooting and the principle of merger of Civil Court decrees of inferior Court into that of the superior Court cannot be applied to the orders of departmental tribunals.

11. In the light of the principles laid down by Their Lordships, it is necessary to see what kind of tribunals, the Assistant Custodian, Custodian and Deputy Custodian General are. Section 28 of the Administration of Evacuee Property Act (XXXI of 1950) is as follows :

'28. Save as otherwise expressly provided in this Chapter, every order made by the Custodian-General, 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.'

Therefore, subject to any appellate or revisional order, the orders of the original tribunal are final. As such the operative orders are those of the original tribunal, except in cases where they are modified or superseded by the orders of the appellate tribunals. It, therefore, appears that, although the tribunals may be exercising in some cases judicial and inother cases quasi-judicial powers, the principle of merger of the original order into that of the appellate or revisional order cannot be applied in cases, where the appellate or revisional authority refuses to interfere with the order of the inferior tribunal.

In cases of interference, the operative order would be that of the tribunal interfering. As such the question of jurisdiction under Article 226 of the Constitution would have to be decided with reference to the authority whose order is operative and final under Section 28 of the Act. This would be the inevitable conclusion to be drawn from the principles laid down by their Lordships of the Supreme Court in the said two cases.

12. One of us (Bhutt J.) took a similar view in Sm. Betulbi v. Custodian of Evacuee Property, M.P., Misc. Petn. No. 228 of 1955, D/- 10-11-1955 (Nag). The following were the observations made :

'In Election,Commission, India v. Vankata Rao, AIR 1953 SC 210, cases, in which the original authority is located in one State and the appellate authority in another State, were left open. In Shamji Naranji v. State of Madhya Pradesh, ILR 1954 Nag 286: (AIR 1954 Nag 161), to which, I was a party, it was indicated that jurisdiction in such cases will depend upon the answer to the question as to which authority would be deemed to have passed an order to which finality is attached under the statute. Another set of cases was further envisaged in that case, in which the order passed by the authority in one State has to be executed by the authorities in another State, and it was observed that the working of the two conditions of Article 226 in such cases will have to be determined upon their own facts. Shamji Naranji, AIR 1954 Nag 161, therefore, suggests a workable way of proceeding in such cases.

In ILR (1955) Nag 108 : ((S) AIR 1955 Nag 148) in which the appellate order passed by the Provincial Industrial Tribunal at Nagpur was affirmed by the Appellate Tribunal at Bombay, the decision rested upon the peculiar provisions of Section 15 of the Industrial Disputes (Appellate Tribunal) Act, 1950, which make the decision of the Appellate Tribunal enforceable at law. In the instant case, however, there is no such provision in the statute. Here the original order was passed by the second respondent under the powers vested in him under Section 5 of the Act and as it was not modified in appeal or revision, it forms the basic decision which affects the administration of the property in dispute. Under similar circumstances it was held in Har Prasad v. Union of India, AIR 1954 Raj 189 and Barkatali v. Custodian General of Evacuee Property of India, AIR 1954 Raj 214, that the High Court had jurisdiction to give relief under Article 226 of the Constitution.

These cases were referred to in (S) AIR 1955 All 435 (FB) in which the opposite view held in Hafiz Mohd. Yusuf v. Custodian General Evacuee Properties, AIR 1954 All 433 by a Division Bench of the Court was also noted but no final pronouncement was made on the point and the case was decided on its own facts. Where the appellate or revisional orders, which do not modify the original decision, are not made enforceable by statute on their own strength, they create by themselves no legal rights, In such cases they would have no legal effect once the basic order is removed. The contention that this Court has no jurisdiction in the instant case has, therefore, no force.'

The said case is similar to the present case, where the operative order is that of the Assistant Ctistodiani We are therefore, of opinion that the question of territorial jurisdition does not arise in the present case. Accordingly, we overrule the preliminary objection of the learned counsel for the respondent.

13. Coming to the merits of the case, the learned Single Judge refused to interfere with the orderof the tribunal on the ground that it was not without jurisdiction or in excess of it, or in violation of the principles of natural justice, as laid down by their Lordships of the Supreme Court in Ebrahim Aboobakar v. Custodian General of Evacuee Property, 1952 SCR 696: (AIR 1952 SC 319) and we think rightly. On the facts established, the tribunal's finding about migration could not be said to be with out jurisdiction, in excess of it or it violation of the principles of natural justice.

14. However, the learned counsel for the appellant urged that the tribunal committed an error of law apparent on the face of the record, which amounted to acting in excess of jurisdiction as laid down by their Lordships in 1952 SCR 696: (AIR 1952 SC 319) (supra). It was pointed out that the tribunal in its order did not find it as a fact that Abdul Gafoor Khan left for Pakistan on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances. It is true that no such specific finding is given by the tribunal. What the tribunal found was that Abdul Gafoor Khan left India for Pakistan on a temporary permit issued on 26-8-1949, valid upto 25-8-1950 and he did not come back. This, in our opinion, was a valid ground for declaring Abdul Gafoor Khan an evacuee under Section 2(d)(i) of the Act, which is as follows :

'Evacuee--means any person -- who, on account of the setting up of the Dominion of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day of March, 1947, left, any place in a State for any place outside the territories now forming part of India, or'. (Underlining (here in ' ') ours).

In the present case, since Abdul Gafoor Khan had left India for Pakistan and did not, thereafter return, the authorities administering the evacuee law had basis for finding that he had left the territories of India on account of the setting up of the two dominions. The finding arrived at by the tribunal was covered by the said section, particularly the portion which we have underlined (here in ' '). Since this Court does not sit in judgment on the impugned order as an appellate authority, and there is no error of jurisdiction or any error apparent on the face, of the record, the appeal is liable to fail.

15. We are accordingly of opinion that the viewof the learned Single Judge was correct. This appeal,therefore, fails and is dismissed with costs. Counsel'sfee Rs. 25/- if certified. The outstanding amount ofsecurity deposit after deduction of the costs, shallbe refunded to the appellant.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //