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Hafiz Abdul Rahim Vs. Deputy Custodian - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberConstitutional Writ Appln. No. 12 of 1951
Judge
Reported inAIR1952Raj162
ActsConstitution of India - Article 226; Administration of Evacuee Property Ordinance, 1949 - Sections 7; Administration of Evacuee Property Act, 1950 - Sections 7
AppellantHafiz Abdul Rahim
RespondentDeputy Custodian
Appellant Advocate P.N. Dutt, Adv.
Respondent Advocate R.K. Rastogi, Government Adv.
DispositionApplication allowed
Excerpt:
.....will vitiate any decision however arrived at. the rule with which we are concerned is rule 5, which says that after a survey of any property is made and the custodian is satisfied that his information discloses that the property or any interest therein is evacuee property, he shall cause a notice to be served in form no. a perusal, therefore, of these provisions clearly shows that the foundation of the jurisdiction of the custodian is the notice which is issued in form no......of certiorari or any other writ praying that certain proceedings taken by the deputy custodian of evacuee property, jaipur, were without jurisdiction and should be quashed along with all proceedings consequent on the proceeding of the assistant custodian or any other order or direction which the court considers proper in the circumstances of the case.2. the application has been made in the following circumstances :there is a house no. 767 situate in mohalla bisatiyan chaukri ghat darwaza, jaipur city. a report was made to the assistant custodian, jaipur, in april 1950 that this house belonged to one aja khan, who had left for pakistan and had been taken in possession by certain muslims from agra without authority. the assistant custodian called for a report from the field inspector and.....
Judgment:

Wanchoo, C.J.

1. This is an application by Abdul Rahim under Article 226 of the Constitution of India for a writ of certiorari or any other writ praying that certain proceedings taken by the Deputy Custodian of Evacuee Property, Jaipur, were without jurisdiction and should be quashed along with all proceedings consequent on the proceeding of the Assistant Custodian or any other order or direction which the Court considers proper in the circumstances of the case.

2. The application has been made in the following circumstances :

There is a house No. 767 situate in Mohalla Bisatiyan Chaukri Ghat Darwaza, Jaipur City. A report was made to the Assistant Custodian, Jaipur, in April 1950 that this house belonged to one Aja Khan, who had left for Pakistan and had been taken in possession by certain Muslims from Agra without authority. The Assistant Custodian called for a report from the Field Inspector and after perusing that report notice was issued under Rule of the Administration of Evacuee Property Central Rules, 1949 hereinafter called the Rules. Thereafter on the 15th of April 1950, the Assistant Custodian passed an order under Section 7(1) of the Administration of Evacuee Property Ordinance No. 27 of 1949 hereinafter called the Ordinance. Thereafter on the 24th of April 1950, the applicant filed a written statement before the Assistant Custodian objecting to the declaration that had been made under Section 7, This objection was considered by the Assistant Custodian. On the 12th of July 1950 the Assistant Custodian, who had by now become the Deputy Custodian, dismissed the objections holding that he had no power to review his order. Thereupon the applicant filed an appeal before the Custodian soon after. This appeal was dismissed for default of appearance on the 28th of October 1950. Thereupon there was an application for restoration which was dismissed on the 28th November 1950. In the meantime, it appears that the applicant had gone in revision to the Custodian General also. That revision was dismissed on the 30th of December 1950. The present application was then made on the 29th Of January 1951 in this Court.

3. The contention on behalf of the applicant is that there was no foundation for the jurisdiction of the Assistant Custodian who dealt with this matter and passed the first order on the 15th of April 1950. (It may be mentioned that in the application the applicant calls the order as that of the 17th of April 1950, but the correct date seems to us to be the 15th of April 1950). As such it is urged that all the subsequent proceedings should be quashed.

4. The application has been opposed on behalf of the State on two main grounds. In the first place it is urged that the Assistant Custodian had jurisdiction to decide the matter and any irregularity in his procedure would not give jurisdiction to this Court to interfere by a writ of certiorari or by any other writ. In the second place, it is urged that even if this Court has the jurisdiction to interfere by a writ of certiorari it should not exercise that extraordinary power in favour of the applicant who has been guilty of negligence in prosecuting his remedies under the Ordinance.

5. We shall first consider whether this Court can interfere in these proceedings. There is no doubt that: the jurisdiction of this Court to issue a writ of certiorari is a limited jurisdiction. The limits of that jurisdiction were considered in a case of the Bombay High Court in 'MOHASINALI MOHAMEDALI V. STATE OF BOMBAY', AIR 1951 Bom 303, and if we may say so with great respectwe agree with the observations in that case. These observations which appeared at p. 305 are as follows :

'Now it is unnecessary to repeat that the jurisdiction that the High Court exercises when it issues the high prerogative writ of certiorari is a limited jurisdiction. The Court is not a Court of appeal nor is it a Court of revision. It has no power to correct either findings of fact or even errors of law. Its sole function is to correct persons or tribunals exercising judicial or quasi judicial functions when they do not possess or when they refuse to exercise jurisdiction which is vested in them by law, or when in the exercise of their jurisdiction, they violate principles of natural justice.....But when the Court hasbeen empowered to determine certain questions and jurisdiction has been conferred upon it to determine those questions, then the determination by the Court of those questions, however erroneous in fact or in law, cannot call info question the jurisdiction of the High Court under its high prerogative of issuing a writ of certiorari.'

6. It is further observed that there are two well recognised exceptions to the above limits, and the superior Court will interfere (1) when an error of law is patent on the face of record, and (2) when the determination is arrived at mala fide in which case it will not be a determination at all and fraud or mala fides will vitiate any decision however arrived at.

7. Reference may also be made to an English case, viz., 'CARATAL (NEW) MINES LTD.' In re : (1902) 2 Ch 498. That was a case where there was an error on the face of the record and in such a case it was held that the Court will correct an error of law patent on the face of the record by a writ of certiorari.

8. Reference may further be made to Halsbury's Laws of England, Vol. 9, at p. 387 where the following passage occurs :

'Where upon the face of the proceedings themselves it appears that the determination of the inferior Court is wrong in law, certiorari to quash will be granted.'

9. We have, therefore, to see whether on the facts of this case we have the power to issue a writ of certiorari. The facts show that the proceedings were started under Section 7 of the Ordinance. Under that section the Custodian (which term of course includes the Deputy Custodian and the Assistant Custodian) has to give notice before declaring any property to be evacuee property. The manner in which the notice has to be given is prescribed in the Rules under the Ordinance. The rule with which we are concerned is Rule 5, which says that after a survey of any property is made and the Custodian is satisfied that his information discloses that the property or any interest therein is evacuee property, he shall cause a notice to be served in Form No. 1 on the person claiming title to such property or interest therein and on any other person or persons whom he considers to be interested in the property. It is further prescribed that the notice shall as far as practicable mention the grounds on which the property is sought to be declared evacuee property and shall specify the provision of the Ordinance under which the person claiming any right to, or interest in, such property is alleged to be an evacuee.

After the notice has been given the person to whom the notice is given has the right to show cause to the Custodian in the inquiry which that section enjoins him to hold. Further under Section 24 of the Ordinance an appeal is provided againstcertain orders passed under Section 7 and under Section 25 against other orders passed under the same section. A perusal, therefore, of these provisions clearly shows that the foundation of the jurisdiction of the Custodian is the notice which is issued in Form No. 1. That Form is provided in the Rules and is as follows:

'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 & all your property as evacuee property under the provisions of the said Ordinance. The hearing of your case is fixed before the undersigned on -----at-----.Grounds : (Here give the grounds as far as practicable).'

10. An analysis of this form shows that it is the duty of the Custodian who gives notice under Section 7 of the Ordinance to inform the person, to whom the notice is given, that his property is to be declared as evacuee property, because his case comes under certain provisions of the Ordinance. Section 2 (e) of the Ordinance defines an 'evacuee' and Section 2 (f) 'evacuee property.' The definition of 'evacuee property' is that it must be property of an evacuee or an evacuee must have an interest in it. Therefore, before any property can be declared evacuee property the Custodian has to come to the conclusion that an evacuee owns it or has interest in it. The definition of an 'evacuee' in Section 2 (e) contains three clauses and the intention of the law is that the person, to whom notice is given under Section 7, should be told under what provision of the law he is going to be declared an evacuee. This has been provided in order that, the person concerned may be able to raise objections before the Custodian and meet the case against him. If no such information is given to the person to whom notice is issued, he may not be able to explain to the Custodian why his property should not be considered evacuee property.

11. It has been urged on behalf of the State that a notice under Section 7 was given in this case. That is no doubt so but the notice is, in our opinion, very defective and does not comply with the provisions of Rule 5, and is not according to Form No. 1. The notice that was given to the applicant was simply this :

NOTICE UNDER SECTION 7 (1). 'BECAUSE it has been made to appear to me that the following property which is in your possession is evacuee property, so you are hereby given notice to appear before me on the 15th of April 1950, and show cause why the property should not be declared evacuee property. You should bring all documents with you on which you wish to rely.'

12. This notice, as is quite clear, is not in accordance with Form No. 1. It does not show under what clause of Section 2 (e) the Custodian considers that the person is an evacuee. It also does not give any grounds why the Custodian considers that the property should be declared evacuee property.

13. The question then arises whether on a, notice of the kind which has been issued in this case, the Assistant Custodian can be said to havejurisdiction to proceed with the matter. There is no doubt that the Custodian had jurisdiction in the ordinary sense to deal with a matter relating to evacuee property in Jaipur. It is, therefore, urged that the mere fact the notice that was given was defective was not sufficient to take away his jurisdiction and, therefore, this Court! should not interfere by a wrib of certiorari. It seems to us that even though there was jurisdiction in the Assistant Custodian to take proceedings under the Ordinance, he did not lay the foundation of his jurisdiction by giving a notice as required by the law and rules. The person whose interests are affected has no further remedy if once an order under Section 7 is passed against him and is upheld by the authorities provided in the Ordinance. It is, therefore, necessary that the person concerned should be supplied with particulars which the Rules in this case make incumbent on the Custodian to supply to him and which are to be found in Rule 5, Form No. 1. Where such particulars are not supplied and the person concerned is not put in a position to prefer his objection, there is, in our opinion, no foundation for the jurisdiction of the Custodian to deal with the particular case.

14. We may in this connection refer to 'ABDUL MAJID HAJI MAHOMED V. P. R. NAYAK', 53 Bom L R 621. That was also a case under the Administration of Evacuee Property Ordinance, and the Question as to the effect of non-compliance with the provisions of Section 7 (1) and Rule 5 was specifically considered. It was held :

'(1) that the two conditions laid down by Section 7 (1) of the Ordinance, which were not merely procedural in character but substantive in nature, not having been complied with, the notice was not validly issued;

(2) that bearing in mind the object of serving the notice viz., to give an intimation to the person concerned that he was going to be held to be an evacuee and that all his property was to vest in the Custodian, the notice should specify with sufficient clarity and particularity what were the grounds which had led the Custodian to come to the conclusion that the person against whom action was going to be taken was an evacuee.

(3) that inasmuch as the notice did not mention any grounds whatsoever on which the property of petitioner No. 1 was sought to be declared evacuee property, the notice was not in compliance with Section 7 (1) of the Ordinance and that the order was therefore without jurisdiction.'

15. We respectfully agree with the view that has been taken in this case, and are of opinion that in view of the invalid notice issued in this case, the Assistant Custodian did not lay the foundation of his jurisdiction as was required under the law, and, therefore, all subsequent proceedings were without jurisdiction, and are liable to be set aside.

16. It was next urged that the applicant had his remedies under the Ordinance and he could not, therefore, come to this Court under Article 226 of the Constitution of India. So far that is concerned the applicant has exhausted all his remedies under the Ordinance and he can get no relief anywhere except under Article 226 of the Constitution of India. Whether he should get any relief under that Article is a matter which we should consider just now.

17. We have already held that this Court has jurisdiction to issue a writ of certiorari in the special circumstances of this case; but before we do so we have to examine the second argument on behalf of the State, viz., that this Court shouldnot help a person who has been negligent. The negligence that has been pointed out is this. It is said that the applicant did not appear to contest the notice issued under Section 7. We have already pointed out that notice was gravely defective. It may also be mentioned that the Central Ordinance, had only come into force recently and the Rajasthan Ordinance (No. XIV of 1949) was different and it was not necessary under that Ordinance to appear and object till a notification was made in the Gazette.

In any case, if the applicant did not appear to! contest the notice under Section 7, he would have to suffer the consequences of that non-appearance. That cannot however be called such negligence as to dis-entitle him to an order from us. It is further said that the applicant did not immediately appeal after the order of the 15th of April 1950 and allowed the time to expire and appealed some time in July 1950. That is no doubt so, but here again we may point out that the law in the Rajasthan Ordinance was different and it seems that the impression in the mind of the Assistant Custodian also was that he could hear the objections of the applicant after the order of the 15th pf April 1950. If this was not so, there is no reason why the Custodian did not dismiss the objections which the applicant filed on the 24th of April 1950 then and there and told him to go in appeal which he actually did almost three months later i.e., on the 12th of July 1950. If the Custodian had dismissed the applicant's objections on the 24th of April 1950 at once, the applicant could have gone in appeal and he would have had ample time to prefer the appeal within limitation. The delay in filing the appeal was due to the fact that the Assistant Custodian kept his objections pending for about three months and then dismissed them on the 12th of July 1950. The delay therefore occasioned in this manner cannot really be called negligence on the part of the applicant, for he was apparently pursuing some remedy which might have been proper under the Rajasthan Ordinance but which was not the proper remedy under the Central Ordinance which had come into force.

18. Lastly, it has been urged that the applicant was negligent in allowing his appeal to be dismissed in default on the 28th of October 1950. This charge, if correct, is certainly serious and a person who allows an appeal to be dismissed for default and takes no further steps thereafter cannot come! to this Court and ask it to exercise its extraordinary powers in his favour.

Reference in this connection was made to 'KHUR-SHED MODY V. BENT CONTROLLER, BOMBAY', AIR 1947 Bom 46, In that case the applicant had a right of appeal and did not file any. He then came to the High Court under Section 45 of the Specific Relief Act and wanted issue of a writ of certiorari. It was held that where a party has a remedy given to him by law and does not avail himself of that opportunity owing to his own default the High Court would not interfere by means of a high prerogative writ. With due respect, we agree with this view where the prayer as in that case, is for a writ of certiorari.

What we have, however, to see is whether the applicant did not avail of the remedy that was open to him on account of his own default. The reason why the appeal was dismissed on the 28th of October 1950 is that the applicant's counsel did not appear before the Custodian. The applicant's counsel who was engaged to appear before the Custodian has filed an affidavit to the effect that he had been engaged by the applicant and had been paid his full fees and expenses and was togo alone to Jodhpur to argue the case before the Custodian. He however fell ill on the afternoon of the 27th of October 1950 and could not proceed to Jodhpur by the evening train. He therefore sent a telegram to the Custodian saying that he was ill and praying for adjournment. He could not inform the applicant of his illness and his inability to go to Jodhpur. The result of this however was that the applicant made no other arrangement to look after the case in Jodhpur and the appeal was dismissed for default. We accept this affidavit, for, it is not being controverted by the other side. It is true that in the Custodian's order it is said that the reason for the postponement was not mentioned in the telegram which was admittedly received; but as the original telegram is not forthcoming we must accept the affidavit of the counsel and it is possible that the recital in the order might be a mistake. Thus it appears that it was no fault of the applicant that the appeal happened to be dismissed for default on the 28th'of October 1950. His conduct after that date also shows that he has been vigilant throughout. He immediately filed an application for restoration which was however dismissed on the 28th of November 1950. He also applied in revision to the Custodian-General at the same time. This revision was dismissed on the 30th of December 1950. It is only when he had exhausted all other remedies that he made an application to this Court. Taking a comprehensive view of the applicant's action throughout, we do not think that it can be said that he had been negligent in this case. Under these circumstances, the principle of 'KHURSHED MODY'S CASE', AIR 1947 Bom 46, does not apply in this case and we will not be helping a negligent litigant if we exercise our jurisdiction under Article 226 of the Constitution of India in his favour.

19. We are of opinion that it is the duty of the Custodian (in which term we include the Assistant Custodian or Deputy Custodian) when he issues a notice under Section 7 of the Ordinance now replaced by Section 7 of the Administration of Evacuee Property Act No. XXXI of 1950 to comply with the Rules framed thereunder for issue of notice and to see that the notice, which is issued in Form No. 1 under Rule 5 of the Rules under the Ordinance and which is now being issued under Rule 6 Form No. 1 of the Act, is in conformity with that form and supplies the necessary information to the person concerned. If he does not do so, no foundation is laid for the jurisdiction of the Custodian and the proceedings taken by him are liable to be set aside.

20. We, therefore, allow this application and issue a wit of certiorari quashing the order of the Assistant Custodian dated the 15th April 1950, and all proceedings consequent to that order. We may point out that, in accordance with the law, the Custodian can take fresh proceedings after laying the foundation of his jurisdiction. In view of all the circumstances of the case, we pass no order as to costs.


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