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SefudIn and ors. Vs. K.G. Raj - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan
Decided On
Case NumberAppln. No. 21 of Samwat 2005
Judge
Reported inAIR1950Raj58
ActsConstitution of India - Article 226; Rajasthan (Administration of Evacuee Property) Ordinance, 1949 - Sections 6 and 7
AppellantSefudIn and ors.
RespondentK.G. Raj
Appellant Advocate Anand Swarup, Adv.
Respondent Advocate S.S. Bapna, Govt. Adv.
DispositionApplication dismissed
Cases ReferredShri Tayyab Hussain v. The Collector Udaipur No.
Excerpt:
- - it also includes government officers and departments with like jurisdiction. the very basis and the foundation of the writ that the act complained of must be a judicial or a quasi-judicial act. reliance has been placed on behalf of the non applicant on a letter of shri waswani to the commissioner udaipur informing him that he bad delegated all his powers under the ordinance to shri k. the letter is dated 3rd october 1949 and it would be clear that it was issued even before the custodian bad delegated some of his powers to deputy custodian and assistant custodians under the notification dated 4th october 1949 as represented to me......circumstances.2. a notice with the following contents under the signatures of shri. k.g. raj for deputy custodian, evacuee property, udaipur, was pasted on 12th october 1949 on a shop and a flour mill belonging to the petitioners.'the under-mentioned property is hereby declared as evacuee property under section (2) (f) of the rajasthan (administration of evacuee property) ordinance 1949 no. xiv [14] of 1949 and notified as such under section 6, and possession taken by ma under section 7 on behalf of the custodian evacuee property government of rajasthan. any person aggrieved may prefer an appeal in 30 (thirty) days hereof under section 5 or section 30 of the ordinance to the custodian evacuee property, government of u. s. r. against the order of the undersigned. details of the.....
Judgment:
ORDER

Sharma, J.

1.s is an application by Shefuddin, Abid Hussin, Ibrahim and Kamaruddin of Udaipur for writ of certiorari and prohibition against Shree K.G. Raj of the Rehabilitation Department and arises out of the following circumstances.

2. A notice with the following contents under the signatures of Shri. K.G. Raj for Deputy Custodian, Evacuee Property, Udaipur, was pasted on 12th October 1949 on a Shop and a Flour Mill belonging to the petitioners.

'The under-mentioned property is hereby declared as evacuee property under Section (2) (f) of the Rajasthan (Administration of Evacuee Property) Ordinance 1949 No. XIV [14] of 1949 and notified as such under Section 6, and possession taken by ma under Section 7 on behalf of the custodian evacuee property Government of Rajasthan.

Any person aggrieved may prefer an appeal in 30 (thirty) days hereof under Section 5 or Section 30 of the Ordinance to the Custodian Evacuee Property, Government of U. S. R. against the order of the undersigned. Details of the property Cloth and General Store, Esmailji,Ibarahimji Outside Hathipol.'

3. In pursuance of this notice the shop and the flour Mill were closed and sealed. The petitioners thereupon filed objection before K.G. Raj who by his order dated 26th October 1949 repelled those objections and on that very date another notice under the signatures of Shri K.G. Raj for Deputy Custodian, Evacuee Property, Udaipur, was pasted on the above premises and was as follows:

Office of the Deputy Custodian, Evacuee Property,

Udaipur,

Mahakama Khas, Udaipur.

Dated 26th October 1949.

Notification :

The undermentioned property is hereby declared as evacuee property under Section 2 (f) of the Rajasthan (Administration of Evacuee Property) Ordinance 1949 No. XIV [14] of 1949 and notified as such under Section 6 and possession taken by me under Section 7 on behalf of the Custodian, Evacuee Property, Government of Rajasthan,

Any person aggrieved may prefer a claim within 30 (thirty) days hereof under Section 6 of the Ordinance to the undersigned. Details of the PropertyMessrs Esmailji Ebrahimji, Cloth and General Shop, OutsideHathipol,Proprietors M/s. Shefuddin and Bros. K.G. Raj. For Deputy Custodian, Evacuee Property, Udaipur.'

4. The main objection of the petitioners is that Shri K.G. Raj has no authority whatsoever under the Rajasthan (Administration of Evacuee Property) Ordinance No. XIV [14] of 1949 to notify and declare the property in question as the evacuee property and taking possession there-of as he was neither Deputy Custodian nor an Assistant or Additional Custodian. They consequently pray that the proceedings in question be called and after examination they be quashed.

5. A Rule nisi was issued to Shri K.G. Raj by my learned brother, Amar Singh on 29th October 1949 to Shri K.G. Raj to show cause why writ of certitori be not issued. Shri K.G. Raj (who will hereinafter be referred to in some places as the non-applicant) filed an affidavit on 1st November 1949, and swore that he had not usurped the powers of the Deputy Custodian and was carrying out the order passed by the Deputy Custodian; that he was exercising the functions delegated to him under Section 9 (2) (n) of the Ordinance. That the keys of the properties of the applicants were with them and the seal had been put so that it might not be misused or fritterred away by any unauthorised person and that whatever had been done, had been done under the jurisdiction given under the ordinance No. XIV [14] 1949.

6. The case was sent to me by my learned brother and came up for hearing on 4th November 1949. On this date, a written reply was filed on behalf of Shri K.G. Raj. In this reply the non-applicant says that he did not do anything without authority that the shop and business premises in question were sealed by the order of the Deputy Custodian dated 12th October 1949, and that whatever the non-applicant had done has been done by the Deputy Custodian and he had only carried out the orders of the Deputy Custodian and has performed those functions which were delegated to him under Section 9 (2) (n).

7. I have beard the learned counsel for the petitioner and the learned Government Advocate appearing on behalf of the non-applicants. Before coming to a finding whether the present case is a fit case for issue of a writ of certiorari and prohibition I shall first discuss what these writs are and under what circumstances they are to be issued.

8. I had an occasion to discuss the nature of those writs in a recent decision of mine dated 29th October 1949 in the case of Tej Singh Rajput v. The Minister's Appeal Board No. 7 of Samvat year 2005. Therein on a review of various English and Indian authorities I have said that :

'By a writ of prohibition which restrains an inferior Court from proceeding further in excess or in absence of jurisdiction (sic) by writ of a certiorari is meant a writ which requires the record or the order of an inferior Court to be sent up to the High Court to have its legality inquired into, and if necessary to have the Order quashad. Both the writs issue out of a superior Court. Both of them lie in respect of judicial as distinguished from purely ministerial or administrative act.'

9. Again from the various authorities I have deduced the definition of the inferior Court and judicial acts which are as follows :

'The term inferior Court is not restricted to bodies known in ordinary parlance as Courts of justice directly subordinate to the High Court, but extends to all the bodies of limited jurisdiction on whom a duty is cast of exercising after having evidence, judicial functions in the sense that they have to decide on evidence between a proposal and an opposition. Thus it includes statutory bodies exercising legal jurisdiction brought into existence by acts of Legislature. It also includes Government Officers and departments with like jurisdiction.

Judicial Acts are those acts in which a tribunal has to consider and decide upon an objective fact. It is not necessary that the dispute should be between subject and subject. It may be between the state and the subject and Government itself might be invested with the powers of deciding that dispute.'

10. Of the various authorities which I have examined in that case it would be profitable to quote the following from the ruling of a Division Bench of Bombay High Court consisting of Chagla C. J. and Tendolkar J. in the case of P.V. Rao v. Kushal Das, A. I. R. (36) 1949 Bom. 277 : (51 Bom. L. R. 342) :

'A writ of certiorari can only be issued against an inferior Court or against a person or persons who are required by law to act judicially or quasi-judicially. It is a high prerogative writ and its purpose is to prevent a judicial or quasi-judicial body from acting in excess of jurisdiction conferred upon it by law or to see that in exercising its jurisdiction the body acts in confirmity with principles of natural justice. Such a writ can never lie to correct executive or administrative acts. An executive or administrative act may be illegal or ultra vires and a subject may challenge it in a Court of law but it cannot challenge it by a writ of certiorari. The very basis and the foundation of the writ that the act complained of must be a judicial or a quasi-judicial act. The right to obtain a writ of certiorari is a very important and valuable right that the subject enjoys. It is by means of this writ that the subject can compel the judicial or quasi-judicial body to act within the four corners of its jurisdiction, and, the Court should not be chary of exercising its jurisdiction to issue writs of certiorari and prohibition and wherever the Legislature entrusts to any body of persons other than to the superior Courts the power of imposing an obligation upon individuals the Court. ought to exercise as widely as they can, the power of controlling those bodies of persons if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament.'

11. Further, on their Lordships give the tests for the determination of the question whether the order in question is judicial or quasi judicial and say :

'In the first place a duty must be cast by the Legislature upon the person or persons who is, or are empowered to act, to determine to decide some fact or facts. There must also be some lis or dispute resulting from there being two sides to the question he has to decide. There must be a proposal and an opposition. It must be necessary that he should have to weigh the pros and cons before he can come to the conclusion. He would also have to consider facts and circumstances bearing upon the subject. In other words the duty cast must not only be to determine and decide a question but there must also be a duty to determine or decide that fact judicially. If the determination or decision of the authority resulted in binding the subject so as to affect his right or impose a liablity upon him and if the exercise of the power by the authority is made dependant by the Legislature upon a contingency or a condition which condition or contingency is an objective fact to be established and not left to the opinion of the authority, then, the Court would come to the conclusion that there is a duty upon the authority not only to decide and determine but to decide and determine judicially.'

12. In Halsbury's Laws of England, Vol. X, p. 169, para. 334, the learned author says that certiorari will not be granted where, if the writ were subsequently quashed, the inferior Court could not be ordered by a writ of procedendo to resume the proceedings. Thus where an unauthorised person has assumed the office of coroner and has conducted what purported to be an inquest, certiorari will not be granted to bring up the inquisition for the proceedings are not merely voidable but wholly void. Support is given to this view of Lord Halsbury by a case reported in the English and Empire Digest, Vol. XVI, p. 415 at Para. 2742 wherein a writ to quash the inquisition proceedings was refused because the inquisition was held by a coroner's clerk in the name of the coroner, which was in many respects invalid, and seven months later a certiorari was applied for to quash it for irregularity, as the proceeding was altogether a nullity.

13. Coming to the present case I shall first examine the various provisions of the Ordinance relevant to the purposes of this case.

Section 2 (e)--Evacuee means any person,

(i) Who on account of the setting up the Dominion of India and Pakistan or on account of civil disturbances, or the fear of such disturbances, leaves and has on or after 1st March 1947, left any place in Rajasthan for any place outside the territories now forming part of India or '

(ii) who is resident in any place now forming any put of Pakistan and for that reason is unable to occupy, supervise or manage in parson his property in Rajasthan or whose property in Rajasthan has ceased to be occupied, supervised or managed by an authorised person or

(iii) who has after 1st March 1947, acquired in any manner whatsoever any right to, interest in or benefit from any property which is treated as evacuee property under any law for the time being in force in Pakistan.'

Section 2 (f)--'Evacuee property'--means any property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument but does not include-

(i) Any movable property in his immediate physical possession ;

(ii) any property belonging to a joint stock company, the Head Office of which was situated in Pakistan before 15th August 1947, and continues to be as situated after the said date.

Section 4--Appointment of custodian etc.

(i) For the purposes of carrying into effect the provisions of this Ordinance the Government may appoint for the whole of Rajasthan a custodian and as many Additional, Deputy or Assistant Custodians of Evacuee Property as may be necessary, and may by general or special order provide for the distribution or allocation of work to be performed by them under this Ordinance or the rules framed thereunder.

(ii) Subject to the provisions of this Ordinance and to the orders made by the Government from time to time, Additional, Deputy or Assistant Custodians, shall perform the duties imposed on them by or under this Ordinance under the general, superintendence and control of the custodian.

Section 5--Vesting of evacuee property in the custodian-

(i) Subject to the provisions of this Ordinance all evacuee property situate in Rajasthan shall veal in the custodian. Section 6--Notification of evacuee property-

(i) The custodian may from time to time, notify either by publication in the Rajasthan Gazette or any such other manner as may be prescribed, evacuee properties which have vested in him under this Ordinance.

(ii) Where after the vesting of any evacuee property in the custodian any person is in possession of any such property, he shall on demand surrender possession of it to the custodian or any person duty authorised by him in this behalf.

Section 7--Power of custodian to take possession of evacuee property vested in him.

If any person in possession of any evacuee property refuses or fails on demand to surrender possession thereof to the custodian or any parson duly authorises by him in this behalf, the custodian may use such property and may for this purpose after giving reasonable warning and facility to any woman not appearing in public to withdraw, remove or break open any lock, bolt or any door or do any other act necessary for the said purpose.

Section 8--Claims by interested persons.

(i) Any person claiming any right to, or interest in any property which has been notified under Section 6 as evacuee property, or in respect of which a demand requiring surrender or possession has been made by the Custodian, may prefer a claim to the custodian on the ground that

(a) The property is not an evacuee property; or

(b) Has interest in the property which has been affected by the provisions of this Ordinance.

(ii) Any claim under Sub-section (i) shall be preferred by an application made within thirty days from the date on which notification was issued or the demand requiring surrender of possession was made by the custodian;

Provided that the custodian may for sufficient reason to be recorded entertain the application even if it is made after expiry of the aforesaid period.

(iii) On receiving an application under Sub-section (ii) the custodian shall hold a summary inquiry in the prescribed manner, take such evidence as may be produced and pass an order (stating the reasons therefor) either rejecting the application or allowing it wholly or in part.

Section 38. Delegations of powers--The Government may, by order direct that the powers exercisable by it under this Ordinance shall, in such circumstances and under such conditions, if any, as may be specified in the order, be exercised by an officer subordinate to the Government. (ii) Subject to the provisions of this Ordinance and the rates made thereunder, the custodian may by order delegate all or any of his powers and functions under this Ordinance to an Additional, Deputy or Assistant Custodian subject to such conditions if any, as may be specified in order.

14. In pursuance of Section 4 of the Ordinance Shri Ranjeetmal Mehta was appointed custodian of the evacuee property in Rajasthan, vide Notification No. C268 (Refugee) dated 29th September 1949, published in the Rajasthan Gazette dated 8th October 1948. By the same Notification the Deputy Director Rehabilitation Udaipur was appointed as ex officio Deputy Custodian for Udaipur City and the Collector in each district was appointed as ex-officio Deputy Custodian for his district (Excluding the Divisional Head Quarters) while the Tehsildar in each Tehsil was appointed as ex officio, Assistant Custodian for his Tehsil. I have been informed by both the parties that one Shri Waswani who is the Deputy Director Rehabilitation, Udaipur, is under the said Notification an ex-officio Deputy Custodian for Udaipur city.

15. Under Section 38 (2) of the Ordinance the custodian is authorised subject to the provisions of the Ordinance and rules made thereunder, to delegate, by order all or any of his powers and functions under the Ordinance to an Additional, Deputy or Assistant Custodian subject to such conditions, if any, as may be specified in the order. Under a Notification which is said to have been issued from the custodian's office on 14th October 1949 but has not yet been published in the Gazette, it was represented to me, that the powers under Sections 5, 6, 7, 8, 10, 12, 13, 14 and 15 of the Ordinance have been delegated by the custodian to the Assistant Custodians and that powers under Section 25 have been delegated to the Deputy Custodians.

15a. The proceedings which have been taken by Shri K.G. Raj are under Sections 6 and 7 of the Ordinance. He has also purported to take proceedings similar to those of Section 8 as he has held some sort of summary enquiry on the objection of the petitioners. These proceedings could be taken only by the Custodian unless any Additional, Deputy, or Assistant Custodian was specifically delegated these powers by an order of the Custodian under Section 38 of the Ordinance. Even if the reported Notification is taken into consideration the Assistant Custodians under the supervision of their respective Deputy Custodians have been invested with powers under Sections 5, 6, 7, 8, 10, 12, 13, 14 and 16 Shri K.G. Raj is neither a Deputy nor an Assistant Custodian. It is thus clear that K.G. Raj had no authority to act under Section 6 or 7 or 8. Shri K.G. Raj himself had acted under these sections of the Ordinance of on behalf of the Deputy Custodian as the words 'For the Deputy Custodian Udaipur City' occurring after his signatures show. Reliance has been placed on behalf of the non applicant on a letter of Shri Waswani to the Commissioner Udaipur informing him that he bad delegated all his powers under the Ordinance to Shri K.G. Raj. There is however no provision in the Ordinance authorising the Deputy Custodian to delegate his powers to another officer. The letter is dated 3rd October 1949 and it would be clear that it was issued even before the custodian bad delegated some of his powers to Deputy Custodian and Assistant Custodians under the Notification dated 4th October 1949 as represented to me. The said letter therefore cannot validly confer any power of a Deputy custodian on the non-applicant in any case.

16. It cannot be doubted for a moment that Shri K.G. Raj could not exercise any powers under Section 6 or 7 of the Ordinance on behalf of the Deputy Custodian.

17. The question however is whether a writ of certiorari or prohibition can be issued against Shri K.G. Raj.

18. According to law discussed in the earlier part of this judgment a writ of certiorari or prohibition can be issued only against an inferior Court which expression has now been held to include the bodies created by the acts of the legislature. It can only be issued against such bodies if a duty has been cast upon them of exercising, after hearing evidence, judicial functions in the sense that they have to decide on evidence between a proposal and an opposition, Shri K.G. Raj is neither a Custodian nor an Additional Deputy or Assistant Custodian. Simply because he has been acting on behalf of the Deputy Custodian under an alleged authority which is not warranted by law, it cannot be said that he bas been acting as an inferior Court because law bas cast no duty upon him to decide the questions under the Ordinance in a judicial or quasi judicial manner.

19. According to the Lord Halsbury's Laws of England Vol. 8 p. 159, para 334 certiorari will not lie where, if the writ were subsequently quashed, the inferior Court could not be ordered by a writ of procedendo to resume the proceedings. Thus where an unauthorised person has assumed the office of coroner and has conducted what purported to be inquest, certiorari will not be granted to bring up the inquisition, for the proceedings are not merely voidable but wholly void. Similarly, according to a ruling cited in the English and Empire Digest Vol. XVI, p. 416 at Para. 2742 referred to above where a coroner's clerk held inquistion in the came of the coroner, which was in many respect invalid and seven months later a certiorari was applied for to quash it for irregularity, as the proceeding was altogether a nullity.

20. In the Bombay ruling referred to above it has been held that a writ cannot be issued against an Assistant Secretary acting for the Government where the authority for doing that act vested in the Government and not in the Assistant Secretary. In that case a Notification for the requisition of a certain building under the Bombay Requisitioning Ordinance purporting to be issued by the order of the Governor of Bombay was signed by one P.V. Rao as Secretary to the Government of Bombay Health and Local Government Department. The writs of prohibition and certiorari were sought against the provincial Government, Mr. P.V. Rao Assistant Secretary, Health and Local Government Department Mr. Vartak, a Minister of the Government of Bombay. It was held that a writ of certiorari can only be directed against the authority which has to perform judicial functions and upon which is cast a duty to act judicially and not to act in excess of its jurisdiction. As under Section 3 of the Bombay Requisitioning Ordinance, it is Provincial Government which is empowered by order in writing to requisition any land, it is neither Mr. P.V. Rao nor. Mr. Vartak, the Minister who is so empowered.

21. It has been argued on the basis of judgment of the trial Court of Appeal of Mewar dated 4th October 1947 in Mangilal v. Sirkar that even if Shri K.G. Raj had absolutely no power to act the way he did, the writ should be issued against him. That judgment however does not help the petitioners as in that case writ was sought against Mewar Government and not against one L.N. Rawat who without any authority signed the order for the extradition of Mangi Lal on behalf of the Chief Secretary.

22. The learned counsel for the petitioners has also directed my attention to a recent decision of mine dated 3rd November 1949, in the case of Shri Tayyab Hussain v. The Collector Udaipur No. 18 of Samwat 2005. That case is also distinguishable from the present case in that the Collector under Requisitioning Ordinance, 1948 of former Rajasthan was recognised as a tribunal under the said Ordinance although subject to certain conditions and the writ was sought against the Collector for acting on his own behalf and not on behalf of any other superior officer.

23. Under the circumstances neither a writ of certiorari nor for the matter of that of prohibition can be directed against Shri K.G. Raj. The application is dismissed and the rule is discharged. Under the circumstances of the case however I do not allow any costs to Shri K.G. Raj.


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