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issardas Somamal Lulla Vs. the Collector of Madras and Additional Custodian of Evacuee Property, Madras - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 5 of 1959
Judge
Reported inAIR1959Mad528; (1959)2MLJ313
ActsConstitution of India - Article 226
Appellantissardas Somamal Lulla
RespondentThe Collector of Madras and Additional Custodian of Evacuee Property, Madras
Appellant AdvocateK.V. Venkatasubramania Iyer and ;P.P. Selvarajan, Advs.
Respondent AdvocateAddl. Govt. Pleader
Cases ReferredR. v. Postmaster General
Excerpt:
.....assistant custodian only recommended to the regional settlement officer the permanent allotment of quota right to the petitioner, but that no reply had been received from the regional settlement officer accepting the same and that therefore there was no concluded contract. it was found that as notice was not affixed at a particular place as required by the statute, the orders complained of were made without jurisdiction. south holland drainage committee, (1838) 8 ad & el 429. in other cases where the application is by the party aggrieved, so as to answer the same purpose as a writ of error, we think that it ought tobe treated like a writ of error, as ex debito justitiae; but where the applicant is not a party grieved (who substantially brings error to redress his private wrong) but comes..........to the petitioner, the proprietor of messrs. oceanic agencies, a lease of the import and export quota rights possessed by sri hussain kasam dada, who had been declared to be an evacuee. that lease was granted under section 10 of the administration of evacuee property act, 1950, and was for a period of one year. it was then renewed for a further period of one year on 16-2-1958. under instructions from the regional settlement commissioner, bombay, the assistant custodian of evacuee property enquired of the petitioner on 26-2-1958 whether he would prefer to get the export and import quota rightspermanently allotted to him for a capitalised value of rs. 4000 oil certain terms and conditions. the petitioner expressed his willingness and accepting the offer deposited a sum of rs. 3200 after.....
Judgment:
ORDER

Ramachandra Iyer, J.

1. This is an application under Article 226 of the Constitution to call for the record relating to the order dated 29-12-1958 in proceedings Ac. A. 2/104/58 of the respondent, which purported to cancel the permanent allotment of the export and import rights and the renewal of lease of import ant! export rights given to the petitioner.

2. The petitioner is a displaced person from West Pakistan. By the proceedings dated 17-4-1957, the Additional Custodian of Evacuee Property, Madras granted to the petitioner, the proprietor of Messrs. Oceanic Agencies, a lease of the import and export quota rights possessed by Sri Hussain Kasam Dada, who had been declared to be an evacuee. That lease was granted under Section 10 of the Administration of Evacuee Property Act, 1950, and was for a period of one year.

It was then renewed for a further period of one year on 16-2-1958. Under instructions from the Regional Settlement Commissioner, Bombay, the Assistant Custodian of Evacuee Property enquired of the petitioner on 26-2-1958 whether he would prefer to get the export and import quota rightspermanently allotted to him for a capitalised value of Rs. 4000 oil certain terms and conditions.

The petitioner expressed his willingness and accepting the offer deposited a sum of Rs. 3200 after deducting Rs. 800 already paid as the premia for the temporary lease and the renewal thereof. This deduction was made on the strength of a letter of the Assistant Custodian who agreed that credit would be given for the premia in case the petitioner decided to take the permanent quota for the sum of Rs. 4000. It is stated on behalf of the petitioner, that his acceptance resulted in a concluded contract, under which he was entitled to the permanent quota rights.

3. The respondent has contested that position, He stated that the Assistant Custodian only recommended to the Regional Settlement Officer the permanent allotment of quota right to the petitioner, but that no reply had been received from the Regional Settlement Officer accepting the same and that therefore there was no concluded contract. It is then said that certain complaints were received by the Additional Custodian of Evacuee Properly from which it was ascertained that the petitioner's family really owned four firms in different names, under which they were able to acquire four distinct quota rights all of them for the benefit of the same family.

In those circumstances, the Additional Custodian of Evacuee Property issued a notice dated 15-11-1958 calling upon the petitioner to show cause why the permanent allotment offered to the petitioner should not be cancelled, as he and his brother-in-law had fraudulently obtained allotment of the goodwill of several firms without divulging their relationship inter se and as the allotments standing in different names were ultimately run for the benefit of a single family, thus monopolising the benefit of several allotments in excess of his requirements and also for the reason that the petitioner has been trafficking in the licences issued without actually importing the goods, thus violating the import trade control regulations.

The notice also mentioned about the violations of the conditions of the lease granted to the petitioner and called upon the petitioner to show cause within a week from the receipt of the notice as to why the permanent right offered to him should not be cancelled. In the notice there is no mention of the cancellation of the lease although the non-compliance with the conditions of the lease were adverted to in the preamble to the notice. The petitioner offered his explanation and was also given a personal hearing.

It was found by the Collector of Central Excise that one family was virtually running the business, and various allotments were obtained by them without disclosing the relationship. After referring to certain malpractices the respondent proceeded to pass an order on 29-12-1958 canceling the allotment made by the letter dated 14-2-1958. The right of the petitioner to import and export licence from 17-4-1958 which had been issued by the control authorities was also forfeited.

4. The petitioner has thereupon filed this petition seeking to quash the Order of the Collector.

5. The learned advocate for the petitioner contended that the respondent had no jurisdiction to cancel the permanent allotment which was made under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, the Collector not being an authority under the Act, but only an agent for the settlement Commissioner at Bombay. It was further contended that the Administration of Evacuee Property Act of 1950 could only relate to immoveable property as Section 2(a) of the Act would show, and could not properly cover the subject-matter of an intangible right as the export and import quota right, and that therefore, the Collector as the Custodian of Evacuee Property would have no Jurisdiction to pass any order of forfeiture of the import quota.

6. On behalf of the respondent it was stated in the counter-affidavit that there was no valid contract or permanent allotment. That position was further clarified before me by the learned Additional Government Pleader. He stated that neither under the appropriate provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 nor in the factual circumstances of the case was there any contract between the parties. Both the parties therefore in effect stated that the order of cancellation of the permanent quota rights- was without jurisdiction. The petitioner contended that he had acquired the right but that the cancellation of it was wrong as having been done by an authority not being competent to do the same.

7. On the other hand, the Government contended that there was no permanent allotment of the quota right at all, and therefore there was nothing to cancel. The learned advocate for the petitioner was not, however, able to substantiate his contention that there has been an allotment of the permanent quota right by the appropriate authority under the Disputed Persons Compensation and Rehabilitation) Act of 1954. He stated that whatever the position may be, he is confining his objection to the validity of the purported cancellation of the quota rights by the respondent, and that the petitioner would take appropriate proceedings for the purposes of obtaining his rights recognised by the authorities.

8. The learned Additional Government Pleader does, not concede that the petitioner has at all any rights. But at the same time he stated that there was no necessity to cancel, as there was no allotment of the quota rights. Without, therefore, deciding the question as to whether, there was a valid allotment of the permanent quota right in favour of the petitioner by the Assistant Custodian of Evacuee Property, it must be held that die cancellation of the same by the respondent is without jurisdiction.

9. The learned advocate for, the petitioner next contended that in the notice issued to his client, there was no mention of cancelling the renewed lease dated 14-2-1958, and that therefore the respondent had no power to cancel the lease for any alleged breach of the conditions thereof. In this the learned advocate for the petitioner is supported by the terms of the notice. There was no void termination or cancellation of the lease.

10. It is next contended that as no valid rights by way of permanent allotment had been created in favour of the petitioner, he would not be a person interested, so as to invoke the jurisdiction of this court under Article 226 of the Constitution. Although the question whether the petitioner is entitled to the right claimed is not being decided by me, I am of opinion that he would be entitled to move the court under Article 226 of the Constitution as a person aggrieved.

11. In 11 Halsbury's Laws of England, Simonds Edn. at page 139, it is stated that the order of certiorari is granted as of course upon the application of the Attorney General acting onbehalf of the Crown, in all cases in which the Court has jurisdiction over the subject-matter of the proceedings in the inferior court. In other cases, the order is stated to be discretionary. In regard to an application by a party aggrieved it states thus:

'Although the order is not of course it will though discretionary nevertheless be granted ex debito justitiae to quash proceedings which the court has power to quash, where it is shown that the court below has acted without jurisdiction or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief and this is the case even though certiorari is taken away by statute and although there is an alternative remedy.'

This matter has been elucidated in the Queen v. Justices of Surrey, (1870) 5 QB 466. In that case a question arose as to the propriety of a certificate granted by two Justices that a highway was no longer required to be repaired by the parishes. One of the inhabitants of the parishes concerned applied for a writ of certiorari. It was found that as notice was not affixed at a particular place as required by the statute, the orders complained of were made without jurisdiction. The question then arose as to whether, the orders having been found to be without jurisdiction, a Writ of certiorari could be issued to quash it. It was held that although certiorari was not a writ of course, yet as the applicant had by reason of his local situation a peculiar grievance of his own, and was not merely applying as one of the public, he was entitled to the writ ex debito justitiae. At page 472, Blackburn J. observed as follows:

'In the very analogous case of prohibition a distinction is taken, thus expressed by Cockburn C. J. in Forster v. Forster, (1863) 4 B & S 187, I entirely concur in the proposition that, although the court will listen to a person who is a stranger, and who interferes to point out that some other court has exceeded its jurisdiction, whereby some wrong or grievance has been sustained, yet that is not ex debito justitiae, but a matter upon which the court may properly exercise its discretion, as distinguished from the case of a party aggrieved, who is entitled to relief ex debito justitiae, if he suffers from the usurpation of jurisdiction by another court.'

The same distinction between an application by a party aggrieved and by one who conies merely as a stranger to inform the court, is taken as to certiorari in Arthur v. Commissioners of Sewers, (1724) 8 Mad 331, where one of the Judges said that a certiorari was not a writ of right, for if it was it could never be denied to grant it; but it has often been denied by this court, who, upon consideration of the circumstances of cases, may deny it or grant it at discretion; so that it is not always a writ of right. It is true where a man is chosen into an office or place, by virtue where of he has a temporal right; and is deprived thereof by an inferior jurisdiction to proceed in a summary way, in such case he is entitled to a certiorari ex debito justitiae, because he has no other remedy, being bound by the judgment of the inferior judicature.'

Where the party aggrieved has by his conduct precluded himself from talking an objection, the court will not permit him to make it as in R. v. South Holland Drainage Committee, (1838) 8 Ad & El 429. In other cases where the application is by the party aggrieved, so as to answer the same purpose as a writ of error, we think that it ought tobe treated like a writ of error, as ex debito justitiae; but where the applicant is not a party grieved (who substantially brings error to redress his private wrong) but comes forward as one of the general public having no particular interest in the matter, the court has a discretion, and if it thinks that no good would be done to the public by quashing the order, it is not bound to grant it at the instance of such a person.'

Thus a writ of certiorari is issued at the discretion of the superior court. It cannot be held to be a writ of right or one issued as a matter of course. But for the exercise of the discretion of the court, there are some well accepted principles. In issuing the writ, if the court is moved by a member of the public having no personal or particular interest in regard to the subject-matter, the matter would be one, entirely for the discretion of the court. But if on the other hand it is moved by a party aggrieved by the order of the inferior tribunal, the court is bound to issue the writ at his instance, except in cases where he had disentitled himself to the discretionary relief by reason of his own conduct like submission to jurisdiction, laches etc.

12. In R. v. Groom; Ex parte Cobbold, 1901 2 KB 157, a question arose whether the issue of a liquor licence made at an adjourned meeting held beyond the period limited by the statute was valid. On the facts of the case an application for cancellation by the issue of a writ of certiorari was found to have been moved by a person, who was a rival in the trade. Lord Alverstone C. J. stated that if he could see his way to decide against the applicants for a certiorari, he would be glad to do so as the point raised was only technical in nature. That eminent Chief Justice held that writ should be issued notwithstanding the fact that the application was only at the instance of a rival. After having found that the licence having been issued beyond the period permitted by the statute, the learned Chief Justice held thus at page 162,

'As to the question whether the applicants for the rule are persons aggrieved, there can be no doubt that they have no real grievance arising from the omission to serve the notice in time. That, however, is not the sense in which persons applying for a certiorari are required to be persons aggrieved. It is sufficient if they have a real interest in the decision of the justices, and they have in 'this case. They took the point now raised before the justice at the adjourned general annual licensing meeting and when the confirming order was made, and it would be too strong to say that they had a sufficient interest in the matter to enable them apply for the rule.'

This decision would indicate that a party to the proceedings who took the objection in the proceedings before the inferior tribunal would be an aggrieved person who would have sufficient interest to maintain an application for the issue of a writ of certiorari.

13. In R. v. Richmond Confirming Authority; Ex parte Howitt, 1921 1 KB 248, an application for licence for the sale of intoxicating liquor was granted in favour of the Secretary of a company. That application was opposed by a rival. Before the confirmation of the licence the secretary in whose favour the licence was granted died. The licensing authority issued the licence in the name of the succeeding secretary. The propriety of this order was challenged by way of the writ of certiorari at the instance of the rival who opposed the grant of licence.

It was contended on behalf of the respondent that as the applicant was only seeking to take advantage of what utmost was only a highly technical irregularity and where no substantial injustice was done the rule should not be issued. It was further contended that the applicant could not be treated as an aggrieved person as there was only a substitution of one name, namely, the secretary of the company, by another. It was held that the applicant did not stand in the same category of a member of the public, who might be said to have only a general interest in saying that the law should be properly carried out, but that he had a particular interest in the subject-matter and nothing better could show that fact than he incurred expenses of instructing the counsel to secure the refusal of confirmation and to contend that the confirming authority had no jurisdiction. The fact, that the applicant was a person who was entitled to appear and object the grant of licence entitled him to move for the issue of a writ of certiorari.

14. R. v. Postmaster General; Ex parte Carmichael, 1928 1 KB 291, decided that if the application for certiorari was made by a party aggrieved it ought to be granted ex debito justitiae and that the court had not the general discretion which it would have when the application was made by one of the public who was not personally concerned.

15. It is, therefore, clear that, where an inferior tribunal has exceeded its jurisdiction, apart from the question of the subsistence of any right, a party to the proceeding before the inferior tribunal will be entitled to apply for the issue of a writ of certiorari. He would be person aggrieved by reason of the fact that he contested the application before the Tribunal and that contest was overruled. In such a case there is no question of discretion of the court except where ho by his own conduct had disabled himself from applying for a writ,

16. I am, therefore, of opinion that even though it has not been decided in this case that the petitioner acquired any right to the quota rights that had been claimed by him he having been a party to a proceeding before the respondent would be entitled to apply under Article 226 of the Constitution as a person aggrieved by that order. In such a case the writ should be issued to quash an order passed without jurisdiction, ex debito justitiae. No question of discretion can arise in the matter, as it is not contended that the petitioner has precluded himself from applying to this court by reason of any conduct on his part.

17. I, therefore, make the rule nisi absolute. There will, however, be no order as to costs.


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