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Ebrahim Aboobaker and anr. Vs. L. Achhru Ram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. (Writ) No. 15 of 1951
Judge
Reported inAIR1952P& H1
ActsConstitution of India - Article 226; Administration of Evacuee Property Ordinance, 1949 - Sections 2, 7 and 24; Code of Civil Procedure (CPC) , 1908 - Order 22, Rule 6; Administration of Evacuee Property (Central) Rules, 1949 - Rule 5 and 5(5)
AppellantEbrahim Aboobaker and anr.
RespondentL. Achhru Ram
Appellant Advocate Manekshah,; P.N. Bhagwati and; Bishen Narain, Adv.
Respondent Advocate Basant Kishen Khanna, Adv. General
DispositionApplication dismissed
Cases ReferredNagapah Chitty v. Rachumma
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....harnam singh, j. 1. on the 28th february, 1951, ebrahim aboobakar and hawabai aboobaker applied under article 226 of the constitution of india that a writ of 'certiorari' should issue to the custodian-general, evacuee property, delhi, to bring up, in order to be quashed, the order pronounced by him on the 15th of may, 1950, in proceedings under section 24 read with section 7 of the administration of evacuee property ordinance, 1949, hereinafter referred to as the ordinance, and that writs of prohibition and 'mandamus' should issue to the custodian-general forbidding him from proceeding with the hearing of appeal pursuant to that order.2. briefly summarised, the facts of the case, so far as material, are these. on the 16th of december, 1949, the additional custodian, evacuee property,.....
Judgment:

Harnam Singh, J.

1. On the 28th February, 1951, Ebrahim Aboobakar and Hawabai Aboobaker applied under Article 226 of the Constitution of India that a writ of 'certiorari' should issue to the Custodian-General, Evacuee Property, Delhi, to bring up, in order to be Quashed, the order pronounced by him on the 15th of May, 1950, in proceedings under Section 24 read with Section 7 of the Administration of Evacuee Property Ordinance, 1949, hereinafter referred to as the Ordinance, and that writs of prohibition and 'mandamus' should issue to the Custodian-General forbidding him from proceeding with the hearing of appeal pursuant to that order.

2. Briefly summarised, the facts of the case, so far as material, are these. On the 16th of December, 1949, the Additional Custodian, Evacuee Property, Bombay, hereinafter referred to as the Additional Custodian, gave notice under Section 7 of the Ordinance to Aboobakar Abdulrehman calling upon him to show cause why his right, title and interest in the Imperial Cinema, Bombay, and in immovable properties situated at Apollo Street, Colaba Market, Vithilbhai Patel Road and Kolsa Mohalla should not be declared to be evacuee properties. Pursuant to that notice Aboobakar Abdulrehman appeared before the Additional Custodian on different dates when evidence was recorded.

3. On the 11th of January, 1950, the Additional Custodian gave notice to Aboobakar Abdulrehman under Section 7 of the Ordinance requiring him to show cause why he should not be declared an evacuee.

4. On the 8th of February, 1950, the Additional Custodian finding that Aboobakar Abdulrehman was not an evacuee within Section 2 (d) of the Ordinance, declined to declare the properties of Aboobakar Abdulrehman to be evacuee properties. On the last mentioned date the Additional Custodian gave notice to Aboobakar Abdulrehman to show cause why he should not be declared an 'intending evacuee' within Section 2 (e) of the Ordinance and on the 9th of February, 1950, the Additional Custodian declared Aboobakar Abdulrehman to be an 'intending evacuee'.

5. Shri Tekchand Dolwani on whose information proceedings under Section 7 of the Ordinance were initiated against Aboobakar Abdulrehman and who wanted the Imperial Cinema, Lamington Road, Bombay, to be allotted to him, appealed against the order of the Additional Custodian claiming that the order passed by the Additional Custodian on the 9th of February, 1950, may be set aside, that Aboobakar Abdulrehman be declared an evacuee and that the Imperial Cinema may be allotted to him as the first informant.

6. Shri Rewachand Sadarangani applies under Section 27 of the Ordinance for the revision of the order passed by the Additional Custodian.

7. Finding that Section 27 of the Ordinance provided for revision from the appellate order of a Custodian or a specially designated District Judge, the Custodian-General dismissed the revision petition as incompetent.

8. In the appellate proceedings before the Custodian-General, counsel for Aboobakar Abdulrehman urged a double-barrelled objection to the competency of the appeal. In the first place counsel urged that the respondent having been declared an 'intending evacuee' and he himself having accepted that order no appeal was competent from that order. In the second place counsel urged that the appellant had no 'locus standi' to prefer the appeal for Shri Tekchand Dolwani was not a 'person aggrieved' within Section 24 of the Ordinance. The Custodian-General has found against Aboobakar Abdulrehman on both the points.

9. In deciding the objections set out in the preceding paragraph, the Custodian-General has found that although the appeal purported to be from the order passed by the Additional Custodian on the 9th of February, 1950, declaring the respondent an 'intending evacuee,' in effect and in substance the appeal was against the order passed by the Additional Custodian on the 8th of February, 1950, declining to declare the properties of Aboobakar Abdulrehman to be evacuee properties. Dealing with the second objection, the Custodian-General has found that considering the provisions of Sub-rule (5) of the rules made under the Administration of Evacuee Property (Central) Rules, 1949, (sic) hereinafter referred to as the Rules, and the directions issued by the Central Government that displaced persons who bring fresh evacuee property to the notice of the Custodian concerned will also be entitled to first consideration in the allotment of that property, Shri Tekchand Dolwani was a 'person aggrieved' within Section 24 of the Ordinance.

10. Finding as he did, that Shri Tekchand Dolwani had 'locus standi' to prefer the appeal and that the appeal was in effect and in substance from the order passed by the Additional Custodian on the 8th of February, 1950, the Custodian-General proceeded to examine the merits of the appeal. On the merits of the appeal the Custodian-General came to the conclusion that inasmuch as there were important lacunae in the enquiry as held by the Additional Custodian, it was fit case for the examination of additional evidence. It is common ground that the order passed by the Custodian-General in appeal was pronounced by him on the 15th of May, 1950, and that Aboobakar Abdul Rehman died at Delhi on the 14th of May, 1950.

11. In the circumstances given above Ebrahim Aboobakar and Hawabai Aboobakar apply for the writs of 'certiorari', prohibition and 'mandamus' under Article 226 of the Constitution of India.

12. Basing himself on 'Ryots of Garabandho v. Zamindar of Parlakimedi', 70 Ind App 129 (PC), Mr. Basant Krishan Khanna, Advocate-General, urges a preliminary objection that this Court has no jurisdiction to entertain the petition giving rise to these proceedings. The objection raised is that this Court has no jurisdiction to make an order under Article 226 of the Constitution of India when that order is to take effect outside the jurisdiction of this Court. The objection put in this form seems to me to be plainly unacceptable.

13. In my judgment the jurisdiction of the Court under Article 226 of the Constitution of India must be gathered from the statute and the statute alone. Article 226 reads :

'226 (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of 'habeas corpus', 'mandamus', prohibition 'quo warranto' and 'certiorari', or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred on a High Court by Clause (1) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.'

In plain English Article 226 of the Constitution of India provides that this Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or 'authority within those territories', writs in the nature of 'mandamus', prohibition or 'certiorari'. That being so, this Court has jurisdiction to issue the writs of 'certiorari', prohibition and 'mandamus' to the Custodian-General, who resides at Delhi. In such cases, I apprehend, the Court acts 'in personam' and looks to the fulfilment of its order to the person of the respondent.

14. In '70 Ind App 129 (P C)', dealing with the question of jurisdiction Viscount Simon, L. C., after referring to the case 'Nundo Lal v. Calcutta Corporation', 11 Cal 275, said :

'The question is whether the principle of that case can be applied in the present case to the settlement of rent for land in Ganjam merely upon the basis of the location of the Board of Revenue, as a body which is ordinarily resident or located within the town of Madras or on the basis that the order complained of was made within the town. If so, it would seem to follow that the jurisdiction of the High Court would be avoided by the removal of the Board of Revenue beyond the outskirts of the town, and that it would never attach but for the circumstances that an appeal is brought to, or proceedings in revision taken by, the Board of Revenue. Their Lordships think that the question of jurisdiction must be regarded as one of substance and that it would not have been within the competence of the Supreme Court to claim jurisdiction over such a matter as the present by issuing 'certiorari' to the Board of Revenue on the strength of its location in the town. Such a view would give jurisdiction to the Supreme Court, in the matter of the settlement of rents for 'ryoti' holdings in Ganjam between parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the matter at first instance.'

15. In order to appreciate the point decided by their Lordships of the Privy Council in '70 Ind App 129 (PC)' it is necessary to bear in mind the facts of that case. In that case the appellants before their Lordships were 'ryots' of three villages included in the Parlakimedi estate in the district of Ganjam and the respondents were the Zamindar of Parlakimedi and Board of Revenue at Madras. In October, 1925, the Zamindar applied, under Chapter II, Madras Estates Land Act, for the settlement of rent in respect of three villages, and, by a supplemental application in March, 1926, he applied for settlement of a 'fair and equitable rent' under Section 168 (1) of the Act. The Government of Madras in November, 1927, directed the Special Revenue Officer of the district to settle a fair and equitable rent in respect of lands in the said villages. In 1935 the Special Revenue Officer made an order doubling the previous rents. On the 'ryots' appeal to the Board of Revenue, a member of that Board sitting alone reversed the decision of the Special Revenue Officer and allowed an increase of rent of only 12 1/2 per cent, considering himself bound by proviso (b) of Clause (1) of Section 30. The Zamindar appealed by way of revision to the Collective Board of Revenue from the decision of the single member. The Collective Board on 9th October, 1936, decided by a majority of two members to one, that proviso (b) of Section 30 (1) did not apply to the casa. On the other hand, they were not prepared to endorse so drastic an enhancement of rent as 100 per cent, and fixed as the appropriate increase, an enhancement of six annas in the rupee On 9th February, 1937, the 'ryots' petitioned the Madras High Court for a writ of 'certiorari' to quash the order of the Collective Board of Revenue, complaining that the rents had been raised above the limit of 12 1/2 per cent, which was the maximum increase permitted under Section 30 (1) (b) of the Act. On 5th November, 1937, the Madras High Court held that if the section of the statute applied so that no increase beyond 12 1/2 per cent, could lawfully be made, the appellants would be entitled to a writ of 'certiorari' addressed to the Board of Revenue to correct the illegality, but that in the circumstances the Board of Revenue had power to enhance by 37 1/2 per cent. The petition for the writ was, therefore, dismissed. From the order passed by the High Court dismissing the 'ryots' petition for the writ of 'certiorari' the 'ryots' of Garabandho and other villages went up on appeal to His Majesty in Council.

16. In the appellate proceedings in the Privy Council, the question that arose for decision was whether the Madras High Court had jurisdiction to issue the writ of 'certiorari' merely by reason of the location of the Board of Revenue as a body within the town of Madras or on the basis that the order complained of was made within the town. In deciding the case. Viscount Simon, L. C., pointed out that the question 'raised in the appeal depended upon the true construction to be put upon the charter dated the 26th December, 1800, establishing the Supreme Court at Madras. In other words Viscount Simon, L. C, held that if the power to issue the writ of certiorari was given by that charter to the Supreme Court at Madras it was vested in the High Court by virtue of the Indian High Courts Act, 1861, and the statutes repeating that provision. Clause 8 of the charter reads :

'8. And it is our further will and pleasure that the said Chief Justice, and the said Puisne Justices, shall, severally and respectively, be, and they are all and every of them hereby appointed to be, Justices and Conservators of the Peace, and Coroners, within and throughout the Settlement of Fort St. George, and the town of Madras and the limits thereof,' and the factories subordinate thereto, and all the territories which now are, or hereafter may be, subject to, or dependent upon, the Government of Madras aforesaid; and to have such jurisdiction and authority as our Justices of our Court of King's Bench have, and may lawfully exercise, within that part of Great Britain called England, as far as circumstances will admit.'

17. Clearly, Clause 8 of the charter is silent about the persons over whom the authority was to be exercised by the Supreme Court at Madras. Clauses 21, 22, 33 and 34 of the charter, however, mention the persons over whom the authority was to be exercised. That being the situation, Viscount Simon, L.C., came to the conclusion that Clause 8 of the Charter gave and in general terms denned the authority which was to be exercised over persons who by Clauses 21, 22, 33 and 34 were made subject to the Court. On this point Viscount Simon, L.C., said :

'Nothing is said in Clause 8 about the persons over whom the authority is to be exercised. Much is said in Clauses 21, 22, 33 and 34. If it was intended by Clause 8 to grant jurisdiction as in England over all inhabitants of the province, why is the jurisdiction defined, limited and guarded by the elaborate provisions of the later Clauses? What is the point in saying that Indians employed by the company should only come under the jurisdiction for wrongs and trespasses--if all Indians are put by Clause 8 under all the jurisdiction that there is? Why is it said that to be a landholder or 'ijardar' shall not subject an Indian to the jurisdiction if all Indians have been made subject to it? Why is it so elaborately provided in Clause 22 that Hindus shall have the benefit of the Hindu law and yet not a word is expended in Clause 8 to safeguard any personal law? These considerations lead necessarily, as their Lordships think, to the conclusion that Clause 8 gives and is in general terms defines an authority which is to be exercised over those who by the later clauses are made subject to it'. The character and quality of the jurisdiction is naturally approached from the standpoint of the status and authority of the individual Judge. 'It is not possible to treat Clause 8 as giving a separate jurisdiction over all persons in the province independently of Clauses 21, 22, 33 and 34.'

18. Finding that the Madras High Court had no jurisdiction or authority to issue writs of 'certiorari' against persons who were outside the jurisdiction of that Court, their Lordships of the Privy Council held that the High Court at Madras could not claim jurisdiction over parties not otherwise subject to its jurisdiction 'solely' by reason of the fact that the Board of Revenue had their office in the town of Madras. In '70 Ind App 129 (PC)' there was an order passed by the Board of Revenue in favour of Zamindar of Parlakimedi. The 'ryots' of Garabandho and other villages wanted that order to be quashed and in those circumstances the Privy Council found that inasmuch as the Zamindar of Parlakimedi was not within the jurisdiction of the High Court, the High Court had no jurisdiction to issue the writ of 'certiorari'. In the present case the sole respondent is within the territories in relation to which this Court exercises jurisdiction and I have no doubt that this Court has power to issue the writs claimed in the petition provided the conditions for the issuance of such writs are satisfied.

19. On the merits of the case Shri M.L. Manaksha, learned counsel for the petitioner, points out that Aboobakar Abdulrehman died on the 14th of May, 1950, and the Custodian-General pronounced the order on the 15th of May, 1950. On these facts it is said that inasmuch as the Custodian-General pronounced the order subsequent to the death of Aboobakar Abdulrehman, the order in question is a nullity.

20. In paragraph No. 5 of his affidavit sworn by him on the 28th of April, 1951, Shri Achhru Ram, Custodian-General, affirms :

'It is submitted that the order was dictated by the respondent on the 13th May, 1950, after the conclusion of the hearing, and, therefore, it was dated the aforesaid date. It is true that the order was pronounced to the counsel for Aboobakar Abdulrehman on Monday, the 15th May, 1950, after the said counsel had informed the respondent of Aboobakar Abdulrehman's death on the previous day.'

Now, in civil cases the death of a party after the conclusion of arguments in the case but before the pronouncement of judgment does not affect the judgment in that case. On this point rule 6 of Order XXII of the Code of Civil Procedure may be seen. Finding as I do, in a later part of this order that in proceedings under Section 7 of the Ordinance the death of an evacuee does not affect the continuation of; proceedings, I have no doubt that the argument raised has no substance. Indeed, Shri M.L. Manaksha conceded that the death of Aboobakar Abdulrehman does not affect the validity of the order pronounced by the Custodian-General on the 15th of May, 1950.

21. Shri M.L. Manaksha urges that Aboobakar Abdulrehman having been declared an 'intending evacuee' in proceedings under Section 19 of the Ordinance and he having accepted that order no appeal lay from the order passed by the Additional Custodian on the 9th of February, 1950. The argument raised is that no appeal was competent from the order passed on the 9th of February, 1950, and that the appeal of Shri Tek Chand Dolwani was not an appeal from the order passed on the 8-2-1950. As stated above, on this point the Custodian-General has found that although the appeal purported to be from the order passed by the Additional Custodian on the 9th of February, 1950, declaring Aboobakar Abdulrehman an 'intending evacuee', in effect and in substance the appeal was directed against the order passed on the 8th of February, 1950, in proceedings under Section 7 of the Ordinance, declining to declare Aboobakar Abdulrehman's properties to be evacuee properties.

22. In deciding this point, I wish to mention that a writ of 'certiorari' will not be granted to quash the decision of an authority within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before a writ of 'certiorari' is issued that the authority which passed the order has acted without jurisdiction or in excess of it. In considering the point whether the appeal was directed against the order passed by the Additional Custodian on the 8th of February, 1950, the Custodion-General has found against Aboobakar Abdulrehman. In the opinion of the Custodian-General a perusal of the memorandum of appeal filed by Shri Tek Chand Dolwani disclosed that the matter complained of in the appeal was that Aboobakar Abdulrehman was an evacuce and that he should have been declared to be an evacues. In this connection paragraph 6 of the memorandum of appeal may be seen. In any case, a wrong decision on the merits of proceedings given in the proper exercise of jurisdiction is not the subject-matter of writs of 'certiorari' or prohibition. The point was raised before the Custodian-General and he has given a decision on that point in the exercise of jurisdiction vested in him by law.

23. Relying on 'Ex parte Sidebotham' (1880) 14 Ch D 458, Shri M.L. Manaksha then urges that Shri Tek Chand Dolwani was not a person aggrieved from the order passed by the Additional Custodian on the 8th of February 1950. In (1880) 14 Ch D 458, James, L. J. said :

'The words 'person aggrieved' do not really mean who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.'

24. In these proceedings we are concerned with the meaning of the words 'person aggrieved' in Section 24 of the Ordinance, and this must be gathered from the provisions of the Ordinance and the Rules and Orders made thereunder. Under Rule 5 (5) of the Rules any person or persons, claiming to be interested in the enquiry or in the property being declared as evacuee property, may file a reply to the written statement filed by the persons interested in that property claiming that the property should not be declared evacuee property. Rule 5 (5) then provides that the Custodian shall either on the day that the reply to the written statement is filed of on any subsequent day to which the hearing may be adjourned, proceed to hear the evidence, if any, which the 'party appearing to show cause' may produce and also evidence which the 'party claiming to be interested' as mentioned above may adduce. In proceedings before the Additional Custodian Shri Tek Chand Dolwani filed a reply to the written statement of Aboobakar Abdulrehman and adduced evidence in support of the stand taken by him that the property of Aboobakar Abdulrehman was 'evacuee property'.

25. On the 12th of May, 1949, the Government of India, Ministry of Rehabilitation, acting under Section 51 of the Ordinance, passed 'inter alia' the following order :

'(3) Displaced persons who bring fresh evacuee property 10 the notice of the Custodian concerned will also be entitled to first consideration in the allotment of that property.'

26. Shri Tek Chand Dolwani was the first informant who brought to the notice of the Custodian concerned that the property of Aboobakar Abdulrehman was 'evacuee property', he put in a reply to the written statement of Aboobakar Abdulrehman and adduced evidence in the enquiry before the Additional Custodian. In the enquiry under Rule 5 the Additional Custodian was bound to hear, if Shri Tek Chand Dolwani wished to be heard, on the truth and validity of the information given by him and the decision has been against Shri Tek Chand Dolwani. In Rule 5 (5) persons in the position of Shri Tek Chand Dolwani are referred to as parties to proceedings under Section 7 of the Ordinance. Clearly, Shri Tek Chand Dolwani is a 'person aggrieved' by the order passed by the Additional Custodian on the 8th of February, 1950.

27. In connection with the point mentioned in the preceding paragraph counsel cites Thakardass v. Custodian Evacuees Property East Punjab Jullundur', AIR (37) 1950 EP 175. In that case on the 11th of August, 1949, the Additional Custodian confirmed the lease created by Said Mohammad Nawab on the 10 h of September, 1947, in favour of Shri Govind Ram Jaggi and then cancelled the allotment in favour of Messrs. Thakardass-Pyarelall. In appeal to the High Court Messrs. Thakardass-Pyarelall wanted to impugn the order of the Additional Custodian passed by him on the 11th of August, 1949, confirming the lease made by Said Mohammad Nawab in favour of Shri Govind Ram on the 10th of September, 1947. In deciding that case I found that the mere fact that if the Custodian had not confirmed the lease in favour of Shri Gobind Ram the allotment in favour of Messrs. Thakardass-Pyarelall would not have been cancelled, did not bring the case within Section 30 of the East Punjab Evacuee Property (Administration) Ordinance, 1949. In that case no appeal was competent from the order passed under Section 10 of the Ordinance and the appellant was not a 'person aggrieved' by the order passed under Section 8 of the Ordinance. Clearly, 'AIR (37) 1950 East Punj 175' does not govern the case.

28. Finding as I do that the order pronounced by the Custodian-General on the 15th of May, 1950, is not a nullity, that the appeal preferred by Shri Tek Chand Dolwani was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th of February, 1950, and that Shri Tek Chand Dolwani is a 'person aggrieved' within the meaning of the statute, I dismiss the petition of Ebrahim Aboobakar and Hawabai Aboobakar that a writ of 'certiorari' should issue to the Custodian-General at Delhi to bring up, in order to be quashed, the order pronounced by the Custodian-General on the 15th of May, 1950, under Section 24 read with Section 7 of the Ordinance.

29. Then it is said that Aboobakar Abdulrehman having died on the 14th of May, 1950, proceedings under Section 7 of the Ordinance cannot be continued, In this connection counsel bases himself on the provisions of Section 2 (f) and Section 40 of the Ordinance and Form No. 1 prescribed by the Administration of Evacuee Property (Central) Rules, 1949.

30. On the 17th of April, 1950, the Administration of Evacuee Property Act, 1950, came into force and by virtue of the provisions of Section 58 of the Act the action taken against Aboobakar Abdulrehman shall be deemed to have been taken in the exercise of the powers conferred by' or under the Act as if the Act were in force on the day on which action under the Ordinance was taken against Aboobakar Abdulrehman. Sections 2 (f) and 40 of the Ordinance corresponded to Sections 2(f) and 43 of the Act.

31. 'Evacuee Property' as defined in Section 2(f) means

'any property in which an evacuee has any right or interest.................................'

Counsel for the applicants maintains that before it can be said that property is 'evacuee property' it must be shown that in that property an evacuee has any right or interest. In other words it is said that Aboobakar Abdulrehman having died, he cannot be said to have any right or interest in the property.

32. From a perusal of Section 7 it, however, appears that the order passed under Section 7 does not give the property the character of 'evacuee property'. The property becomes evacuee property when the case comes within Section 2(f) of the Act. Section 7 deals with the declaration of that property to be evacuee property for the purpose of vesting that property in the Custodian. Clearly, if the Custodian-General finds that Aboobakar Abdulrehman was an evacuee within Section 2(d) of the Act, the Custodian-General can declare the property to be evacuee property even after the death of Aboobakar Abdulrehman.

33. But it is said that Form No. 1 prescribed by the Administration of Evacuee Property (Central) Rules, 1949, places it beyond dispute that for the initiation of proceedings under Section 7 of the Ordinance notice must go to the evacuee. Form No. 1 reads :

'OFFICE OF THE CUSTODIAN OF EVACUEE

PROPERTY.

Notice.

Dated 19

To,

Shri..........................................

Whereas there is credible information in possession of the Custodian that you are an evacuee under Clause (iii) of Section 2 (d) of the Administration of Evacuee Property Ordinance on account of the grounds mentioned below;

And whereas it is desirable to hear you in person;

Now, therefore, you are hereby called upon to show cause (with all material evidence on which you wish to rely) why orders should not be passed declaring you an evacuee and all your property as evacuee property under the provisions of the said Ordinance.

The hearing of your case is fixed before the undersigned in Room No....... on ......19...at..........

'Grounds'. Acquisition of evacuee property by way of allotment in Pakistan (as an illustration).

'Deputy' Custodian.'

Assistant

34. Relying on Form No. 1, counsel urges that on the death of Aboobakar Abdulrehman it is not possible to continue the proceedings under Section 7 of the Act. I do not accept the argument raised. In the clearest possible terms Section 7 of the Act provides that where the Custodian is of opinion that any property is evacuee property within the statute, notice will be given in such manner as may be prescribed to the 'persons interested'. Section 7 of the Act does not leave the question of persons to whom notice has to go to the rules made under the Act or the forms prescribed under the Act. Rule 5 itself states that the Custodian shall cause a notice to be served in Form No. 1, on the person claiming title to such property or interested and on any other persons or persons whom he considers to be interested in the property. Clearly, Form No. 1 is inconsistent with Section 7 of the Act and rule No. 5 of the Rules. That being the situation, it is not possible to reconcile Form No. 1 with Section 7 of the Act or rule No. 5 of the Rules. That being so Form No. 1 must give way to Section 7 and rule No. 5. An authority on this point is to be found in 'Chartered Institute of Patent Agents v. Joseph Lockwood', (1894) A C 347. In that case Lord Herschell, L. C., said :

'No doubt there might be some conflict between a rule and a provision of the Act. Well, there is a conflict sometimes between two Sections to be found in the same Act. You have to try to reconcile them as best as you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other. That would be so with regard to the enactment and with regard to rules which are to be treated as if within the enactment. In that case probably the enactment itself would be treated as the governing consideration and the rule as subordinate to it.'

35. Form No. 1 in my opinion cannot govern or control the words of Section 7 or rule 5.

36. Shri M.L. Manaksha points out that whereas Section 43 of the Act provides that the death of an evacuee at any time after his property is vested in the Custodian shall not affect the vesting of that property or render invalid anything done in consequence thereof, there is no provision in the Act to meet the contingency created by the death of an evacuee pending the adjudication of the point arising under Section 7(j) of the Act. Shri M.L. Manaksha maintains that if the Legislature thought the death of an evacuee should not affect the proceedings under Section 7 of the Act, the Legislature could have made a provision corresponding to Section 17 of the Provincial Insolvency Act, 1920, In the Act itself. In my judgment there is no force in the argument raised. In proceedings under Section 7 of the Act what the competent authority is to find out is whether the property assumed the character of evacuee property on a given date. Section 7 provides that notice shall be given to persons interested in the 'evacuee property' and I am not prepared to read the word 'evacuee' in place of the words 'persons interested' in Section 7 of the Act.

37. For the foregoing reasons, I find that notwithstanding the death of Aboobakar Abdulrehman the Custodian-General can proceed with the case pursuant to the order pronounced by him on the 15th of May, 1950. In this view of the matter, the petition that writs of prohibition and 'mandamus' should issue to the Custodian-General forbidding him from proceeding with the enquiry pursuant to the order pronounced by him on the 15th of May, 1950, fails and is dismissed.

38. No other point was urged in these proceedings. In the result the petition fails and is dismissed with costs.

39. Before parting with this order, I wish to mention that it was open to the respondent to urge that under Section 27 of the Act the Custodian-General possessed powers to revise the order passed by the Additional Custodian on the 8th of February, 1950. That Act came into force on the 17th of April, 1950, before the appeal came up for disposal before the Custodian-General. Now, the Custodian-General was of the view that he had no jurisdiction to revise the order passed by the Additional Custodian before the Act came into force. As the point was not raised, I have not had the benefit of arguments on the point. 'Prima facie' it appears that the Custodian-General had under Section 27 of the Act jurisdiction to revise orders passed before the Act came into force. That this is so appears from a perusal pf Sections 26 and 27 of the Act. Under Section 26, the Custodian Additional Custodian or Authorised Deputy Custodian may at any time, either on his own motion or on the application made to him in this behalf, call for the records of any proceeding under the Act which is pending before, or has been disposed of by, an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of any orders passed in the said proceeding, and may pass such order in relation thereto as he thinks fit. Section 27 of the Act dealing with the powers of revision of the Custodian-General, enacts that 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 proceeding in which any District Judge or 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. Section 27 does not limit the powers of revision of the Custodian-General to the orders passed under the Act. It was then open to the respondent to urge that Shri Tek Chand D3lwani should have been impleaded a party to proceedings under Article 226 for the issuance of the writs would have put an end to the appeal preferred by him. As at present advised, I think, that Shri Tek Chand Dolwani was entitled to show cause before any writ could be issued. Indeed, in modern practice the application for a rule is made against the party and the Tribunal, but it is the party and very rarely the Tribunal that shows cause against the rule. On this point Halsbury's Laws of England, Volume IX, second edition, page 836, may be seen.

40. Considering, however, that the points mentioned in the preceding paragraph were not canvassed in proceedings under Article 226 and that a decision on the points is not necessary for the disposal of Civil Miscellaneous (Writ) No. 15 of 1951, I express no opinion thereon in this order.

Soni, J.

41. The first point to be considered in this case is whether this Court hag jurisdiction in the matter. Mr. Justice Kapur when admitting this petition on 1st March 1951 was doubtful whether this Court has jurisdiction and referred to the 'Parlakimedi case', ILR (1944) Mad 457 : 70 Ind App 129 (PC). The point regarding jurisdiction has not been taken by the respondent in this case, but as the point was raised at the time of admission we have heard arguments on it. In order to appreciate the point the facts of this case have to be stated. Certain property situate in Bombay was owned by one Aboobaker Abdulrehman. The question arose whether it was evacuee property. The case was heard by the Custodian at Bombay and he came to the conclusion that Aboobaker Abdulrehman was not an evacuee but was an intending evacuee and made two orders regarding this matter one on the 8th of February 1950 and another on the 9th February 1950. In the earlier order he held that Aboobaker Abdulrehman was not an evacuee and in the order on the following day he held that he was an intending evacuee. The Custodian at Bombay began to deal with his property. When proceedings were taken initially regarding this property the Custodian had been moved in Bombay by a man called Tek Chand Dolwani. There was another person Sadarangani who had also moved the Custodian in the matter. After the orders of 8th and 9th February 1950 Tek Chand Dolwani appealed to the Custodian-General and Sadarangani put in a revision petition before him regarding the matter of the property of Aboobakar Abdulrehman. The Custodian-General dealt with the subject in a lengthy order dated the 13th of May, 1950. He dismissed Sadarangani's revision, but in Tek Chand Dolwani's appeal he came to the conclusion that Aboobaker Abdulrehman appeared to him to be an evacuee. He, however, did not give a final opinion on the point. He wrote as follows:

'After having given my most careful thought to all the facts and circumstances disclosed on the record, I am of the opinion that there are very important lacunae in the enquiry, as held by the Additional Custodian and that in fairness to the parties, I should refrain from giving a decision one way or the other, without removing those lacunae.'

42. The Custodian-General then made areference to a number of documents whoseexamination he thought was necessary for acorrect decision of the case. 'While concludinghis order he wrote as follows :

'Inasmuch as the respondent may find it inconvenient to bring all his account bookswhich may also include books relating to the'current accounts, to Delhi and inasmuch asit may involve very considerable delay andmay be otherwise inconvenient or impracticable if the income-tax records have to besent for to Delhi it becomes necessary to getsome information from some banks in Bombay, I consider it desirable to hear this casein Bombay. * * * *

I will examine the respondent at Bombayin the office of the Additional Custodianon 19th August 1950, on which date he shalland the appellant may, attend at that office at 10-30 a.m. The respondent shall also communicate the Additional Custodian in writing by 15th July 1950, the names of the banks in Bombay with which he had any account for January 1947 onwards and on receipt of such communication the learned Additional Custodian shall require the banks concerned to furnish either a complete statement of the respondent's account up-to-date or a statement about all transactions and transfers of cash made at the respondent's instance and in his account to Pakistan all cheques drawn by him favouring pagees in Pakistan. Such statement should reach the Additional Custodian's office by 14th August, 1950.'

43. The order of the Custodian-General is being challenged in this Court by an application for writs under Article 226 of the Constitution by Ebrahim and Hawabai, son and daughter respectively of Aboobakar Abdulrehman who died on 14th May 1950. The first question that has to be decided is whether this Court has jurisdiction to issue a writ, direction or order under Article 226 of the Constitution in this case where the property is in Bombay, the parties are in Bombay and the officer or Court which dealt with this matter in the first instance and who will eventually have to deal with this property is in Bombay. I have already considered a similar point in the case of Jupiter General Insurance Co. Ltd., Bombay v. Rajgopalan of Simla', Civil Misc Writ No. 17 of 1951. I shall be repeating what I said there.

44. The facts in the 'Parlakimedi case' referred to by Kapur J. and dealt with by their Lordships of the Privy Council (ILR (1944) Mad 457) were as follows. The appellants before the Privy Council were ryots of three villages included in the Parlakimedi estate in the district of Ganjam in the Northern Circars. The respondents were (1) the Zamindar of Parlakimedi and (2) the Board of Revenue at Madras. In October, 1325, the Zamindar applied, under Chapter II, Madras Estates Land Act, for the settlement of rent in respect of these villages, and, by a supplemental application in March 1926, he applied for settlement of a 'fair and equitable rent' under Section 168 (1) of the Act. The Government of Madras in November 1927, directed the Special Revenue Officer of the district to settle a fair and equitable rent in respect of lands in the said villages. After memoranda had been submitted by the contesting parties and after elaborate investigation on the spot, the Special Revenue Officer In 1925 made an order doubling the previous rents. On the ryots' appeal to the Board of Revenue, a member of that Board sitting alone reversed this decision and allowed an increase of rent of only 12 1/2 per cent. The Zamindar appealed by way of revision to the Collective Board of Revision from the decision of the single member. The Collective Board on 9th October, 1936, increased the rent to 37 1/2 per cent. On 9th February 1937, the appellants petitioned the Madras High Court for a writ of 'certiorari' to quash the order of the Collective Board of Revenue. On 5th November 1937 the Madras High Court dismissed the application for the writ. Before their Lordships of the Privy Council the question raised was whether the Madras High Court had any jurisdiction to issue the writ, the contention of the appellants being that it had. Their Lordships held that the High Court of Madras had no power to issue writs of certiorari outside the Presidency Town of Madras unless the person to whom the writ was directed was a British subject and that in the case before them as both the ryots and the Zamindar were not and were outside the limits of the town of Madras and as also the Special Revenue Officer, who dealt with the matter in the first instance, was outside the limits, the mere fact that the Board of Revenue had its office in Madras did not give the Madras High Court the power to issue a writ. Their Lordships thought that the question of jurisdiction must be regarded as one of substance and that it was not within the competence of the Madras High Court to issue a writ.

45. The learned Advocate-General relied on this case and submitted that it applied to the present case. It was however, argued by Mr. Manakshah that that case did not apply, that the Custodian-General passed his order at Delhi and the fact that he wanted to have further enquiry made at Bombay was a matter of no importance. The argument was that as the Custodian-General had his office in Delhi and that as the petitioners had submitted to the jurisdiction of this Court, this Court has jurisdiction to give them relief, if this Court came to the conclusion that they were entitled to relief; that the reliefs sought by way of issue of writs of 'certiorari', p oh bition or 'mandamus' can be obtained through the personal obedience of the person resident within the jurisdiction of this Court; that the jurisdiction that, is exercised in these writs is exercised in 'personam and if the Custodian-General to whom the writs were to be directed were to disobey the orders of this Court proceedings for contempt of Court can be taken against him. The argument is that under Article 226 of the Constitution the only necessary condition for the issue of direction, order or writ is that the person to whom it is to be directed within the territorial limits of the High Court to whom the application for the direction, order or writ is made. If this condition in satisfied the powers given are the amplest, ampler than those exercised by the Court of King's Bench in England.

46. There is, however, not only the 'Parlakimedi case', (70 Ind App 129) to be considered but there are two later cases also of their Lordships of the Privy Council. One of them is 'Hamid Hassan Nomani v. Banwarilal Ray' reported in ILR (1948) 1 Cal 230 : 74 Ind App 120 (P C). In this case an application was made for a writ of 'quo warranto' to be issued to a person resident within the original jurisdiction of the Calcutta High Court regarding the usurpation of an office by him without that jurisdiction. Their Lordships held that the High Court of Calcutta had no jurisdiction in these circumstances to issue the writ. Another case was under Section 45 of the Specific Relief Act regarding a 'mandamus' to be issued to the Textile Commissioner whose office was at Madras within the limits of the original jurisdiction of the Madras High Court regarding an act with reference to which the relief asked for was to take place beyond those limits. This is the case of 'Shree Meenakshi Mills Ltd. v. Provincial Textile Commr., Madras', reported: in 76 Ind App 191 : AIR (36) 1949 PC 307. In this case also their Lordships held that the Madras High Court had no jurisdiction to issue the writ.

47. Mr. Manakshah referred to two unreported judgments of the Calcutta High Court and the Bombay High Court in which those Courts had before the promulgation of the Constitution distinguished the 'Parlakimedi case', (70 Ind App 129) and the other cases decided by the Privy Council. Mr. Manakshah further argued that cases decided under the old law may have laid down good law, but the law that now to be considered is what is laid down by the framers of the Constitution. The argument that under Article 226 of the Constitution the only necessary condition for the issue of a direction, order or writ is that the person to whom it is to be directed should be within the territorial limits of the High Court is based on the wording of the Article and on the analogy of the exercise by the Court of King's Bench of jurisdiction in similar cases in England. But regarding the Courts in England, I find it mentioned in the case of the 'Justices of Bombay In re', (1829) 12 E R 222 at p. 235 that Sir Thomas Strange, Chief Justice Madras, observed at page 135 in the first volume of his 'Notes of Cases at Madras' in the case of 'Nagapah Chitty v. Rachumma' as follows :

'Those Courts being by their constitution according to their respective modes and purposes of proceeding, the great depositories of the universal justice of the realm, and as such, in every instance in which it is attempted to withdraw a case from their cognizance, bound to see, distinctly and unequivocally, 'that a jurisdiction adequate to the object in view exists elsewhere'. If that be not stated so as to appear to the Court, a plea to no jurisdiction fails, and the jurisdiction remains.'

In the present case a jurisdiction adequate to the object in view exists in Bombay where the Custodian-General proposes to hold his enquiry and where the property is situate, where the parties reside and where the officials who eventually will deal with this property are functioning. In my opinion the remedy for any wrongs alleged to be done to the petitioners would be more adequate and complete and their grievances better dealt with by the High Court of Bombay than here. I hold accordingly. The issue of a writ, order or direction is discretionary under Article 226 of the Constitution.

48. Supposing, however, it is held that itwas imperative for this Court to exercise itsjurisdiction I wholly agree on all points withmy learned brother that on the merits the application should be dismissed with costs for thereasons given by him.


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