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Lekhraj Sathramdas Lalvani Vs. Mathur and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 445 and 484 of 1960
Judge
Reported inAIR1962Ker152
ActsConstitution of India - Article 226; Administration of Evacuee Property Act - Sections 10(2)
AppellantLekhraj Sathramdas Lalvani
RespondentMathur and ors.
Appellant Advocate V.K.K. Menon,; C.S. Padmanabha Iyer and M.; Ramachandran
Respondent Advocate V.K.K. Menon,; C.S. Padmanabha Iyer and; M. Ramachandran
Cases Referred and Sohan Lal v. Union of India
Excerpt:
.....remove custodian - rights of custodian neither protected under article 19 nor under article 311 - writ of mandamus cannot be issued to protect right of custodian. - - ' the bargains contemplated have not been concluded and on march 25, 1958, an advertisement appeared in 'the hindu' about the sales by public auction of these concerns as well on april 10, 1958. the petitioner thereafter filed in this court o. on his failure to do so, possession of the same will be taken with force. rule 1. it was further pleaded that the dispossession from as well as the cancellation of the writ petitioner's managership was authorised under the 1950 act. it is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a..........that the question arising for consideration in the aforesaid consolidated cases is whether the writ of mandamus has been rightly issued or properly withheld. 2. the facts of the case are not complicated and can be briefly narrated. the proprietors of two firms, 'adam hajee peer mohammed essak' and 'hajee ebrahim kassem cochinwala' had, in or about the year 1947, migrated to pakistan, and both the businesses, therefore, became vested in the custodian of the evacuee properties for the state of madras, under section 8 of the administration of evacuee property act, 1950, hereinafter referred to as the 1950 act. the writ petitioner, l.s. lalvani, who is a refugee from pakistan, and averse to have under the displaced persons (claims) act, 1950 registered his claim as a displaced person,.....
Judgment:

Ansari, C. J.

1. These two appeals arise from the order by a learned Judge, whereby he has vacated two orders, Exts. P. 13 and P. 16, which had terminated the services of the writ petitioner as the Manager of two evacuee businesses, and has directed the petitioner's being put back in possession. The respondents to the petition have appealed against the mandamus so granted. The learned Judge has not issued any writ restraining the aforesaid respondents from selling the business by public auction and not to do anything in violation of the petitioner's right under the Central Government's order, Ext. 5. The writ petitioner has, therefore, appealed against the refusal to issue such a writ. Connected with the aforesaid two appeals, is the application for contempt on the ground of the respondents to the writ petition failing to comply with the mandamus issued by the learned Judge. It follows that the question arising for consideration in the aforesaid consolidated cases is whether the writ of mandamus has been rightly issued or properly withheld.

2. The facts of the case are not complicated and can be briefly narrated. The proprietors of two firms, 'Adam Hajee Peer Mohammed Essak' and 'Hajee Ebrahim Kassem Cochinwala' had, in or about the year 1947, migrated to Pakistan, and both the businesses, therefore, became vested in the Custodian of the Evacuee Properties for the State of Madras, under Section 8 of the Administration of Evacuee Property Act, 1950, hereinafter referred to as the 1950 Act. The writ petitioner, L.S. Lalvani, who is a refugee from Pakistan, and averse to have under the Displaced Persons (Claims) Act, 1950 registered his claim as a displaced person, had in February 1952 applied to the Custodian for being allotted the two businesses, as Kozhikode then formed part of Madras State and the two businesses were situated in Kozhikode. On March 6, 1952, the prayer was allowed by the Custodian, who thereby approved the proposal of the Deputy Custodian about the management of the firms being allotted to the writ petitioner. The petitioner was asked to furnish security of Rs. 20,000/- which he did; and on March 21, 1952, took possession as the Manager. Thereafter, the Assistant Custodian of Evacuee Property addressed a communication on October 27, 1952, asking whether the writ petitioner would accept the allotment of the aforesaid business concerns; but nothing further appears to have been done in that year, nor during the next year. On October 9, 1954, the Displaced Persons (Compensation and Rehabilitation) Act, 1954, was passed, which will hereinafter be referred to as the 1954 Act. Also no steps were taken during 1955 about the two concerns being allotted to the writ petitioner; but on April 11, 1956, the proposals for the sale of the aforesaid evacuee properties by public auction appeared in 'The Hindu'. It js petitioner's case that he under the 1954 Act applied to the Chief Settlement Commissioner for orders stopping the sale of the two concerns and that the Central Government by proceedings dated April 24, 1956 stopped the sale, and ordered their allotment to the writ petitioner on terms and conditions to be communicated later. This order is marked Ext. P.5 and its relevant part reads as follows:

'I am directed to state that it has been, decided in principle that the aforesaid evacuee concerns will be allotted to you. The terms or allotment will be communicated to you separately. Meanwhile you will continue to function as the Custodian's Manager for these concerns, in terms of Section 10(2)(b) of the Administration of Evacuee Property Act, read with Rule 34 of the Rules made under the Act.''

The order was communicated to the Custodian of Evacuee Property, Madras; and, in pursuance Messrs. T. K. Menon and Co., Chartered Accountants were appointed to submit valuation report regarding the assets. The copy of the letter from the Custodian of Evacuee Property received by the petitioner is Ext. P-8 and reads thus:

'The Deputy Custodian is informed that the Government of India have decided that the two evacuee concerns viz., firms of Adam Hajee Peer Mohammed Essak and Hajee Ebrahim Kassem Cochinwala of Kozhikode, are to be allotted to the present Manager Sri L. S. Lal-vani and ultimately sold to him. He is also informed that until the question of terms and conditions of allotment of the concerns in question is decided, Sri Lalvani will continue to function as Custodian's Manager for these concerns in terms of Section 10(2)(b) of the Administration of Evacuee Property Act, 1950, read with Rule 34 of the Rules made thereunder.

The Deputy Custodian is requested to evaluate the business concerns properly after getting prepared a balance sheet cf each year of the vesting of the concerns. In evaluating the concerns, the Deputy Custodian should keep in view the other assets and liabilities of the concerns and their goodwill etc. His comment and suggestions as to how, and by what easy instalments the value of the concerns, if sold to SriLalvani, is to be realised from him should also be intimated.'

The bargains contemplated have not been concluded and on March 25, 1958, an advertisement appeared in 'The Hindu' about the sales by public auction of these concerns as well on April 10, 1958. The petitioner thereafter filed in this Court O. P. No. 204/59 praying for a writ of prohibition to restrain the District Collector from selling by public auction or otherwise the two concerns to any other than himself and for the issuance of other appropriate writs, and a Division Bench on June 25, 1959, directed the District Collector not to sell the properties, of which the writ petitioner was the Manager, without ar appropriate order by the Chief Settlement Commissioner. The order is Ext. P9 and runs as follows:

''No order, general or special, of the Chief Settlement Commissioner is forthcoming, and in view of that, the respondent has to be directed not to sell the items by public auction or otherwise without an appropriate order under that Rule .....'

3. The aforesaid judgment, therefore, rests on the short ground of there being no order under the 1954 Act by the Chief Settlement Commissioner for the sale of the properties as directed by Rule 101 of the Rules framed under the 1954 Act. Thereafter the writ petitioner was given notice of the tour programme of the Deputy Custodian of Evacuee Property, Southern States, who reached Kozhikode on December 12, 1959; and on December 18, 1959, received an order, Ext. P13. The relevant extract of the order is as follows:

'.....is informed that his services asmanager of the business concerns of Adam Hajee Peer Mohammed Essack and Hajee Ebrahim Kassam Cochinwala, at Kozhikode are hereby terminated with immediate effect. He is further required to hand over immediate possession of the premises and the stock-in-trade account books and other assets of the business including furniture, etc. On his failure to do so, possession of the same will be taken with force.'

The petitioner's case is that he only accepted the direction under protest and prayed for two days to consult his lawyer, which was rejected; and, on December 18. 1959, he was forcibly dispossessed of all the assets, of which he was the manager. On the same date a proceeding was drawn up, showing what exactly happened, whose copy is Ext. P16, and its paragraph 6 reads as follows:

''Sri Lalvani having refused to give possession, it has been taken in the presence of witnesses, who have signed below and who have signed all the inventories aforesaid .....'

4. Thereafter the writ petition, from which these appeals arise, was filed in this court. Therein the petitioner has asked for mandamus restraining the respondents from doing any act in violation of the petitioner's right under the order which is Ext. P5. The grounds, on which the writ has been asked, are firstly that, having regard to the terms of the Government's direction about the possession in favour of the writ petitioner continuing till allotment the subordinate officers cannot vary and cancel the appointment of the writ petitioner as the Manager. The next is that, the petitioner being a Manager was a Government servant and cannot be dismissed in violation of Article 311 of the Constitution. The mandamus has been asked to restore the possession of the firms and certiorari for being vacated Exts. P13 and P16, because of their being passed by authority not competent to pass the orders. In reply, the Deputy Custodian and the District Collector, Kozhikode have taken up the position of the sale being in pursuance of the order of properly constituted authority under the 1954 Act which was marked as Ext. Rule 1. It was further pleaded that the dispossession from as well as the cancellation of the writ petitioner's managership was authorised under the 1950 Act.

5. The learned Judge in partly granting the writ petition has held that the interests of a quasi-permanent allottee are not 'property' within the concept of the word so as to attract the protection of the fundamental rights, that the initial entrustment was nothing more than management of the firms with reference to Section 10(2)(b) of the 1950 Act, that Rule 34 did not change the original nature of the possession, and that as the writ petitioner could not find his way to accept the terms and conditions in their entirety, the offer to allot had lapsed. Therefore, the learned Judge has further held:

'It is impossible to hold that by Exts. P5 and P8 the petitioner was granted a right of management to ensure till the final allotment, whenever it may be made, or as the contention implies, indefinitely if no allotment is to take place ..... But it seems unreasonable to holdthat an indefeasible right of management has been conferred on the petitioner or still survives to him after all that had transpired.'

6. He has accordingly disallowed the claim for mandamus on the basis of Ext. P15 but has held Exts. P13 and P16 to be ultra vires and illegal. The reasons for his so deciding are that the aforesaid two orders were under the 1954 Act, which vested the property under Section 12 only after proper notification, the notification Ex. P-21, covers urban immovable properties, and would not extend to movables, Exts. P. 13 and P. 16 not being by the Deputy Custodian of Evacuee Property, the petitioner's right of management, though not indefeasible, had not been terminated, for such a right can be terminated only by authority competent to do so. The learned Judge concludes his judgment with these words:

'.....that the managing officer underthe 1954 Act is not a proper authority, and I did not understand the learned Advocate General to contend that he is. I therefore held Exts. P13 and P16 are ultra vires.'

7. In the appeals, the position taken up by the writ petitioner's learned counsel is that the right of management under Ext. P5 and Ext. P8. was by the Central Government, which has under Section 54 of the 1950 Act, the authorityto issue directions; and as the cancellation orders were by an officer not competent to vary the order passed by such an authority, even though empowered under Section 12 of 1950 Act to cancel appointment of a Manager, the writ petitioner was still the Manager and wag entitled to mandamus for enforcement of the duties of the Custodian and the Deputy Custodian not to cancel the orders of their superior officers under the 1950 Act. The arguments by the learned Advocate General on behalf of respondents to the writ petition are:

(1) The petitioner in the earlier proceedings had from this court asked for appropriate order on the ground of being aggrieved by unauthorised exercise of powers under the 1954 Act and was, therefore, precluded by the principle of res judicata from complaining again about some right under the 1950 Act having been infringed.

(2) The authorities under the two enactments being the same the Manager could be dismissed by authority appointing him and the authority passing the orders not having properly described his office would not justify the court's treating the exercise to be illegal, when the orders are by the authority that can under 1950 Act dismiss the writ petitioner.

(3) The writ of mandamus is a special writ and would not be issued where there be probability of another authority negativing the court's direction.

8. Now it is clear that courts cannot vary orders of authorities professedly under certain enactments should the authorities legally have power to issue the orders under some other Jaws. In other words if there be sufficient legal justification for passing orders, they cannot be vacated on the ground of their purporting to be under some power that does not confer the jurisdiction. That we think is a settled proposition by P. Balakotaiah v. Union of India, AIR 1958 SC 232 at p. 236, where Venkatarama Aiyar, J. observed as follows:

'It is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule and that the validity of an order should be judged on a consideration of its substance and not its form. No exception can be taken to this proposition, .....'

Similar view has been taken in Velayudhan Pillai v. State, 1959 Ker LT 636 at p. 641 where Raman Nayar J. observes as follows:

''It is not and indeed cannot be disputed that in making the rules, the Government were acting as a subordinate Legislature and not as an executive authority. The intention to make rules to provide for punishments being manifest and the power to make such rules under Section 72 read with Section 323 being indisputable, it would follow that the rules actually made were rules validly made in exercise of this power notwithstanding the omission to refer either to Section 72 or to Section 323 in the preamble as the Section from which the power is derived .....'

9. It follows that should the authoritymaking the orders impugned have powers under 1950 Act to revoke the petitioner's appointment, the notification not extending to movables would not be fatal to the orders being accepted as legal. The learned Advocate General has contended that the business concerns having under Section 8 of the 1950 Act vested in the Custodian and the Deputy Custodian, they would have the power under Section 10 of the same enactment to appoint a Manager which power, having regard to the provisions of Section 12 of the General Clauses Act would include the authority to vary the appointment. Therefore he has urged that the order directing the petitioner to hand over the possession of the business concerns and dismissing him from the office are proper, though they appear to be under the 1954 Actt particularly when the officer making the orders has powers under Sections 8 and 10 of the 1950 Act. The petitioner's learned counsel does not challenge the correctness of the Custodian's and Deputy Custodian's power to vary an order of appointment, and the position taken by him is that the appointment orders being by the Central Government, which have the power of direction under Section 54 of the 1950 Act, a subordinate officer cannot vary them. It I is clear, however, that the crucial issue in the case is not which authority has passed the appointment order but by what writ the impugned orders should be vacated. We do not see how a writ of certiorari can be issued; for, the appointment of a Manager, being essentially an executive act, the cancellation of such an appointment would also be an executive act, and, therefore, such a writ would not be available in this case, there being no quasi-judicial approach required.

It also follows that no writ of Prohibition can be issued. The next question is wheher mandamus in these circumstances can be issued either for enforcement of the order under Ext. P-5 or for enforcement of the duty to keep the petitioner; which brings us to the last ground taken by the Advocate General in support of his appeal as well as for dismissing the appeal by the writ petitioner. Now it is well-settled that mandamus would not be issued where its effect would be nullified by a properly constituted authority giving direction within its competence that nullifies the court's direction contained in the writ. In this connection we would begin by referring to the following passage in Halsburys Laws of England, Vol. XI, Page 106, Para. 199:

'A mandamus will not go when it appears that it would be futile in its result. Accordingly, the Court will not by mandamus, order something which is impossible of performance by reason of the circumstance that the doing cf the act would involve a contravention of law, or because the party against whom the mandamus is prayed does not, for some other reason, possess the power to obey. A mandamus will not be granted if the party complained of has powers which would enable him to make the order Inoperative; or when it seems that obedience to the command would not be followed by any resultdifferent from that in respect of which complaint is made'.

We further find the position similar in theAmerican Jurisprudence (Vol. XXXIV, Page831) where these words occur :

''It is a fundamental principle that courts will not employ their coercive process to compel the doing of a useless thing. Particularly is this true with respect to such a summary and expeditious process as mandamus. The writ is invariably withheld where it would be unavailing, nugatory or useless and its issuance an idle act... .. Thus, the court may well refuse to awardthe writ to compel the reinstatement of the petitioner in his office or employment where his term has almost expired, or has expired, or the office itself has been abolished, or where because of ineligibility or for other reason, he could, it restored to office, be at once removed or to compel submission to the electors of a city, of a proposed ordinance which if adopted would be unconstitutional.'

In this country the position is the same; tor the learned Chief Justice in Shankar v. Returning Officer, Kolaba, AIR 1952 Bom 277 at p. 2811 has refused to issue mandamus to an election officer on the following grounds:

''There is another objection also to the issue of a writ of mandamus, which is equally serious. A writ of mandamus is a high prerogative writ. The Court issues a command in order to remedy a grave error or to set right injustice, and the Court would never issue such a command unless it is certain that that command would be respected and carried out. Looking to the scheme of the Representation of the People Act, it is quite possible that our decision and our command, which may take the form of a writ of mandamus, may be set at naught by another Tribunal which may have to deal with the same matter. If, for ins-tance, we were to take the view in this case that the rejection of the petitioner's nomination ppper was an improper one, if would be per-fectly competent to the Election Tribunal, if an election petition were to be filed after the election, to take a contrary view and come to the conclusion that the nomination paper of the Peti-tioner was rightly rejected by the Returning Officer and the Election Tribunal would thereupon act upon that view of the law. Now, a Court issuing a prerogative writ should never put itself in a position where as I said before, its command is likely to be set at naught.'

Now the aforesaid rule appears to have been settled as far back as 1777, when Lord Mansfield in Rex v. Axbridge Corporation (1777) 98 ER 1220 held that the court would not grant a party the assistance of this prerogative writ when it was acknowledged that the Corporation bad very sufficient cause to remove him; and when they would undoubtedly remove him again, the very instant he should be restored. It follows that should the higer authorities under the 1950 Act have the discretion of removing the petitioner from the managership -- and it is not disputed that they have-- a writ of mandamus directing, the petitioner's restoration to possessionand office in the light of the aforesaid principle, should not be issued. The learned Judge, in issuing the mandamus, has relied on Himmatlal v. State of M.P., AIR 1954 SC 403 and Sohan Lal v. Union of India, (S) AIR 1957 SC 529, but in both the cases the parties had properties and the court's order could not be nullified by some action of any other tribunal. Therefore, the cases relied upon do not establish a legal proposition contrary to what we have stated earlier. On the other hand the Manager of the evacuee property under 1950 Act has neither a right under Article 19 nor under Article 31; and he can be removed by the authority, who had appointed him, with the result that any mandamus restoring. him to the possession of the two concerns can be nullified by the order of the proper authority dismissing him. Under these circumstances, we think the writ of mandamus given in the case is not in accordance with the principle governing, the issuance of the writ. It is equally clear that we cannot issue mandamus for enforcing what is claimed under Ext. P-5, as any right under it would be contractual and not enforceable by--the writ. It follows that we should allow the Custodian's appeal and dismiss that by the writ petitioner. It is a hard case; but we cannot help him in view of the aforesaid legal position; and the concerned authorities, we hope, having regard to the circumstances of this case, would make proper orders. Having taken the view, it is clear that the contempt application should also be dismissed.

10. Therefore, A.S. 484/60 is allowed, and the order granting mandamus is vacated. A. S. 445/60 is dismissed and also the Contempt Application 6/60. Having regard to the fact of the writ petitioner in this case being a displaced person, we feel he should not be saddled with costs. This order will govern all the three cases.


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