Ebrahim Aboobakar & ANR Vs.
Custodian General of Evacuee Property [1952] INSC 33 (26 May 1952)
MAHAJAN, MEHR CHAND SASTRI, M. PATANJALI (CJ)
MUKHERJEA, B.K.
DAS, SUDHI RANJAN BOSE, VIVIAN
CITATION: 1952 AIR 319 1952 SCR 696
CITATOR INFO :
F 1953 SC 298 (5) R 1955 SC 233 (21) F 1957
SC 264 (18) R 1958 SC 398 (13,19) D 1961 SC1312 (7) A 1970 SC1727 (5) R 1973 SC
883 (18) RF 1973 SC2720 (9) RF 1989 SC 49 (20)
ACT:
Bombay Evacuees (Administration of Property) Act,
1949 Ordinance No. XXVII of 1949, ss. 7, 24--Order refusing to declare person
evacuee--Whether appealable--Informant, whether "person
aggrieved"--Right to appeal--Courts with limited jurisdiction--Power to
decide facts upon which jurisdiction depends--Powers of an appellate
court--Grant of writ of certiorari--Guiding principles.
HEADNOTE:
A writ of certiorari cannot be granted to
quash the decision of an inferior court within its jurisdiction on the ground
that the decision is wrong. It must be shown before such a writ is issued that
the authority which passed the order acted without jurisdiction or in excess of
it, or in violation of the principles of natural justice. Want of jurisdiction
may arise from the nature of the subject-matter, so that the inferior court
might not have authority to enter on the inquiry or upon some part 0 697 it. It
may also arise from the absence of some essential preliminary or upon the
existence of some particular facts collateral to the actual matter which the
court has to try and which are conditions precedent to the assumption of
jurisdiction by it. But once it is held that the court has jurisdiction but
while exercising it, it made a mistake, the wronged party can only take the
course prescribed by law for setting matters right inasmuch as a court has
jurisdiction to decide rightly as well as wrongly.
When an inferior court or tribunal which has
the power of deciding facts is established by the legislature. it may in effect
say that, if a certain state of facts exists and is shown to such tribunal or
body before it proceeds to do certain things, it shall have jurisdiction to do
such things but not otherwise. There, it is not for them conclusively to decide
whether that state of facts exists, and, if they exercise the jurisdiction without
its existence, what they do may be questioned, and it will be held that they
have acted without jurisdiction. But the legislature may entrust the court or
tribunal itself with a jurisdiction which includes the jurisdiction to
determine whether the preliminary state of facts exists and on finding that it
does exist, to proceed further or do something more. In the second case the
rule that a tribunal cannot give itself jurisdiction by wrongly deciding
certain facts to exist does not apply.
Ordinarily, a court of appeal has not only
jurisdiction to determine the soundness of the decision of the inferior court
as a court of error, but by the very nature of things it has also jurisdiction
to determine any points raised before it in the nature of preliminary issues by
the parties. Such jurisdiction is inherent in its very constitution as a court
of appeal. Whether an appeal is competent, whether a party has locus standi to
prefer it, whether the appeal in substance is from one or another order and
whether it has been preferred in proper form and within the time prescribed,
are all matters for the decision of the appellate court so constituted.
An order by an Additional Custodian in a
proceeding under Ordinance No. XXVII of 1949 refusing to declare a person an
evacuee and his property evacuee property is an order under s. 7 of of the
Ordinance and is appealable under s. 24.
A person claiming to be interested in an
enquiry as to whether a person is an evacuee and his property evacuee property,
who has filed a written statement and adduced evidence, is a "person
aggrieved" by an order that the latter is not an evacuee and has a locus
standi to prefer an appeal from the order.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 4 of 1952. Appeal from the judgment and order of the High Court of
Judicature for the Punjab at 698 Simla dated 24th May, 1951, in Civil Writ No.
15 of 1951.
M.L. Manekshaw (P. N. Bhagwati, with him) for
the appellant.
M.C. Setalvad, Attorny-General for India (G.
N. Joshi, with him) for the respondent.
1952. May 26. The Judgment of the Court was
delivered by MAHAJAN J.--This is an appeal from the judgment of the High Court
of Judicature of the State of Punjab dated the 24th May, 1951, dismissing the
petition filed by the appellants for writs of certiorari, prohibition and
mandamus against the respondent.
Aboobaker Abdul Rahman, the father of the
appellants, was ,possessed of considerable movable as well as immovable
properties including a. cinema theatre, known as the Imperial Cinema. situateat
Bombay. Soon after the partition of India, he went to Pakistan and was in
Karachi in the month of September, 1947, where he purchased certain properties
in that month. On information supplied by one Tek Chand Dolwani to the
Additional Custodian of Evacuee Property, the Additional Custodian started
proceedings under the Bombay Evacuees (Administration of Property) Act, 1949,
against Aboobaker in or about the month of July, 1949. During the pendency of
the said proceedings, the Government of India Ordinance XXVII of 1949 came into
force. Thereupon, on the 16th December, 1949, the Additional Custodian issued a
notice to the said Aboobaker under section 7 of the Ordinance and a further
notice on the 11th January, 1950, to show cause why his property should not be
declared to be evacuee property.
Pursuant to the said notices an enquiry was
held by the Additional Custodian of Evacuee Property who after recording the
statement of the said Aboobaker and examining some other evidence produced by
the said Tekchand Dolwani and taking into consideration the written statement
filed by him, adjudicated on the 8th February, 1950, that 699 the said
Aboobaker was not an evacuee. He, however, issued another notice to Aboobaker
on the same day calling upon him to show cause why he should not be declared an
intending evacuee under section 19 of the said Ordinance. On the 9th February,
1950, he adjudicated him as an intending evacuee.
On the 31st March, 1950, Tekchand Dolwani
being the informant and interested in the adjudication of the said Aboobaker as
an evacuee, filed an appeal against the order of the 9th February to the
respondent (The Custodian General of India) praying for an order declaring the
said Aboobaker an evacuee and that he being the first informant should be
allotted the said cinema. On the 18th April. 1950, the Ordinance was replaced
by Act XXXI of 1950.
The appeal was heard by the respondent in New
Delhi on the 13th May. 1950. At the hearing it was urged on behalf of Aboobaker
that he having been declared an intending evacuee and he having accepted that
order, no appeal lay therefrom and that the said Tekchand Dolwani was not a
person aggrieved by any order passed by the Additional Custodian and therefore
had no locus standi to appeal under the provisions of section 24 of Ordinance
XXVII of 1949.
The hearing of the appeal was concluded on
the lath May, 1951 and it is alleged in the written statement of the respondent
that the order was dictated by him on the same day after the conclusion of the
hearing and was also signed by him and it bore that date. Aboobaker suddenly
died on the 14th May, 1950, which was a Sunday and the respondent pronounced
the order written on the 13th to the counsel of Aboobaker on the 15th May,
1950. By this order the respondent held that the appeal purporting to be from
the order passed by the Additional Custodian on the 9th February, 1950,
declaring the said Aboobaker an intending evacuee in effect and in substance
was directed against the order made on the 8th February in the proceedings
started under section 7 of the Ordinance declining to declare the said
Aboobaker's property as evacuee property.
700 He further held that the said Tekchand
Dolwani was interested in the appeal and had locus standi to prefer it. Having
overruled the preliminary objections raised by the appellants, the hearing of
the appeal was adjourned and further inquiry was directed to be made in the
matter. Notices of the adjourned hearing of the appeal were given from time to
time to the two appellants. On the 30th February, 1951, they were informed that
the appeal would be heard on the 7th March, 1951. The two appellants allege
that they are some of the heirs entitled to the estate of the said Aboobaker.
Two of his sons migrated to Pakistan and one of the appellants is his third son
and the other appellant is his only daughter.
Being aggrieved by the order of the
respondent dated the lath May, 1950, the appellants filed a petition in the
High Court of the State of Punjab at Simla on the 26th February, 1951, under
article 226 of the Constitution, praying for a writ of certiorari for quashing
and setting aside that order and for a writ of prohibition or mandamus
directing the said respondent to forbear from proceeding with the hearing of
the said appeal on the 7th March, 1951, or on any other date or dates.
The appellants raised the following
contentions in the petition:
1. That the appeal preferred by Tekchand
Dolwani before the respondent was in terms an appeal against the order of the
9th February, 1950, and not an appeal against the conclusion reached on the 8th
February, 1950, and inasmuch as the said order was made against Aboobaker and
not in his favour, Tekchand had no right of appeal against the same and the
respondent had no jurisdiction to entertain it or make any order therein.
2. That Tekchand was not a person aggrieved
by the order dated the 8th February, 1950, within the meaning of section 24 of
the Ordinance and was not entitled to appeal against the said order and inasmuch
as no appeal lay at his instance, the respondent had no jurisdiction to
entertain it or make any order therein.
701
3. That after the death of Aboobaker on the
14th May, 1950, the respondent ceased to have jurisdiction to proceed with the
hearing of the appeal or make any order therein.
The High Court held that the order of the
respondent pronounced on the 15th May, 1950, was not a nullity and the appeal
preferred by Tekehand was in effect and in substance an appeal from the order
passed by the Additional Custodian on the 8th February, 1950, and that Tekchand
was a person aggrieved within the meaning of section 24 of the Ordinance. It
accordingly dismissed the petition with costs but on the 27th June, 1950,
granted him leave to appeal to this Court under article 133 of the
Constitution. On the 30th July, 1951, during the pendency of the appeal in this
Court, the respondent finally pronounced orders on the appeal of Tekchand and
held that Aboobaker was an evacuee and his property was declared evacuee
property. A petition under article 226 for quashing. this order is pending in
the High Court of the State of Bombay.
The learned counsel for the appellants
canvassed the following points before us:
1. That the appeal to the respondent was
against the order of the 9th and not against the order of the 8th, and as no
appeal lay against the order of the 9th the respondent had no jurisdiction to
hear it.
2. That assuming that the appeal was
preferred against the order of the 8th, that order was not an appealable order
inasmuch as section 24 allows an appeal against an order declaring properties
evacuee properties and not against any conclusion that a certain person is or
is not an evacuee, and thus no appeal was Competent at all which could be heard
by the respondent.
3. That Tekchand was not a person aggrieved
within the meaning of section 24 of the Ordinance and had no locus standi to
prefer the appeal and the respondent had no jurisdiction to entertain it at his
instance.
4. That the order pronounced on the 15th
after the death of Aboobaker was a nullity.
It is mentioned in the judgment of the High
Court that Shri M.L. Manekshah conceded that the death of Aboobaker does 'not
in any way affect the validity of the order pronounced by the Custodian General
on the 15th May, 1950. The learned counsel adopted practically the same
attitude before us in view of the affidavit of the respondent in which it was
affirmed that the order in question was dictated on the 13th May, 1950, and was
signed on the same date. the High Court on the principle of Order XXII, Rule 6,
Code of Civil Procedure, held that an order written but not pronounced could be
pronounced even after the death of the party affected.
In these circumstances the last contention of
the learned counsel does not require any further consideration and is rejected.
The larger question that has been raised in
the petition pending before the High Court of the State of Bombay that the
properties of Aboobaker could not be declared evacuee properties after his
death as they had devolved on his heirs was not raised in these proceedings and
we have not been invited to decide it. That being so, the question is left
open.
The remaining three questions canvassed
before us, unless they are of such a nature as would make the decision of the
respondent dated the 13th May, 1950, a nullity, cannot be the subject-matter of
a writ of certiorari. It is plain that such a writ cannot be granted to quash
the decision of an inferior court within its jurisdiction on the ground that
the decision is wrong. Indeed, it must be shown before such a writ is issued
that the authority which passed the order acted without jurisdiction or in
excess of it or in violation of the principles of natural justice. Want of
jurisdiction may arise from the nature of the subjectmatter, so that the
inferior court might not have authority to enter on the inquiry or upon some
part of it. It may also arise from the absence of some essential preliminary or
upon the existence of some 703 particular facts collateral to the actual matter
which the court has to try and which are conditions precedent to the assumption
of jurisdiction by it. But once it is held that the court has jurisdiction but
while exercising it, it made a mistake, the wronged party can only take the
course prescribed by law for setting matters right inasmuch as a court has
jurisdiction to decide rightly as well as wrongly. The three questions agitated
before us do not seem to be questions which bear upon the jurisdiction of the court
of appeal, or its authority to entertain them.
It was contended that no court of limited
jurisdiction can give itself jurisdiction by a wrong decision a point
collateral to the merits of the case upon which the limit of its jurisdiction
depends and that the questions involved in the appeal before the respondent
were collateral to the merits of the case. As pointed out by Lord Esher, M.R.,
in Reg. v. Commissioner Income Tax(1),, the formula enunciated above is quite
plain but its application is often misleading. The learned Master of the Rolls
classified the cases under two categories thus:
"When an inferior court or tribunal or
body which has to exercise the power of deciding facts, first established by
Act of Parliament, the legislature has to consider what powers it will give
that tribunal or body. It may in effect say that, if a certain stab of facts
exists and is shown to such tribunal or body before it proceeds to do certain
things, it shall have jurisdiction to do such things but not otherwise. There
it is not for them conclusively to decide whether that state of facts exists,
and, if they exercise the jurisdiction without its existence, what they do may
be questioned, and it will be held that they have acted without jurisdiction.
But there is another state of things which may exist. The legislature may
entrust the tribunal on body with a jurisdiction which includes the
jurisdiction, to determine whether the preliminary state of facts exists as
well as the jurisdiction, and on finding that it doe: exist, to proceed further
or do something more. Wher (1) 21 Q .B DD. 313.
704 the legislature are establishing such a
tribunal or body with limited jurisdiction, they also have to consider whatever
jurisdiction they give them, whether there shall be any appeal from their
decision, for otherwise there will be none. In the second of the two cases I
have mentioned it is erroneous application of the formula to say that the tribunal
cannot give themselves jurisdiction by wrongly deciding certain facts to exist,
because the legislature gave them jurisdiction to determine all the facts.
including the existence of the preliminary facts on which the further exercise
of their jurisdiction depends; and if they were given jurisdiction so to
decide, without any appeal being given, there is no appeal from such exercise
of their jurisdiction." The tribunal constituted to hear appeals under
section 24 has been constituted in these terms:
"Any person aggrieved by an order made
under section 7, section 16, section 19 or section 38 may prefer an appeal in
such manner and within such time as may be prescribed-(a) to the Custodian,
where the original order has been passed by a Deputy or Assistant Custodian;
(b) to the Custodian-General, where the
original order has been passed by the Custodian, an Additional Custodian or an
Authorized Deputy Custodian." Like all courts of appeal exercising general
jurisdiction in civil cases, the respondent has been constituted an appellate
court in words of the widest amplitude and the legislature has not limited his
jurisdiction by providing that such exercise will depend on the existence of
any particular state of facts. Ordinarily, a court of appeal has not only
jurisdiction to determine the soundness of the decision of the inferior court
as a court of error, but by the very nature of things it has also jurisdiction
to determine any points raised before it in the nature of preliminary issues by
the parties. Such jurisdiction is inherent in its very constitution as a court
of appeal. Whether an appeal is competent, whether a party has locus standi to
prefer it, whether the appeal in substance is from one or another order 705 and
whether it has been preferred in proper form and within the time prescribed,
are all matters for the decision of the appellate court so constituted. Such a
tribunal falls within class 2 of the classification of the Master of the Rolls.
In these circumstances it seems to us that the order of the High Court of
Punjab that a writ of certiorari could not issue to the respondent quashing the
order of the 13th May, 1950, was right. We are further of the opinion that none
of the contentions raised has any merit whatsoever.
For a proper appraisal of the contention that
Tekchand Dolwani is not a "person aggrieved" within the meaning of
those words in section 24 of the Ordinance, it is necessary to refer to the
rules made under the Ordinance. It is provided in rule S (5), that any person
or persons claiming to be interested in the enquiry or in the property being declared
as evacuee property, may file a written statement in reply to the written
statement filed by the persons interested in the property claiming that the
property should not be declared evacuee property; the Custodian shall then
either on the same day or on any subsequent day to which the hearing may be
adjourned, proceed to hear the evidence, if any, which the party appearing to
show cause may produce and also evidence which the party claiming to be
interested as mentioned above may adduce. In the proceedings before the
Additional Custodian, Tekchand Dolwani filed a reply to the written statement
of Aboobaker and adduced evidence in support of the stand taken by him that the
property of Aboobaker was evacuee property. Further Tekchand Dolwani was the first
informant who brought to the notice of the Custodian concerned that the
property of Aboobaker was evacuee property and in view of the order of the
Ministry of Rehabilitation he was, as a first informant, entitled to first
consideration in the allotment of this property, the Additional Custodian was
bound to hear him on the truth and validity of the information given by him.
When a person is given a right to raise a contest in a certain matter and his
contention is negatived, then 706 to say that he is not a person aggrieved by
the order does not seem to us to be at all right or proper. He is certainly
aggrieved by the order disallowing his contention. Section 24 allows a right of
appeal to any person aggrieved by an order made under section 7. The conclusion
reached by the Additional Custodian on the 8th February, 1950, that Aboobaker
was not an evacuee amounted to an order under section 7 and Tekchand therefore
was a person aggrieved by that order. Section 43 bars the jurisdiction of the
civil court in matters which fall within the jurisdiction of the Custodian. In
clause 1 (a) it provides as follows:"no civil court shall have
jurisdiction to entertain or adjudicate upon any question whether any property
is or is not evacuee property or whether an evacuee has or has not any right or
interest in any evacuee property ." It is clear therefore that the
Additional Custodian has to find and adjudicate on the question whether a
certain property is or is not evacuee property and whether a certain person is
or is not an evacuee and such an adjudication falls within the ambit of section
7 of the Ordinance.
Lord Esher M.R. in In re Lamb, Ex parte Board
of Trade(1) observed as follows :"The meaning of the term 'person
aggrieved' was explained by this Court in Ex parte Official Receiver U). It was
there determined that any person who makes an application to a Court for a
decision, or any person who. is brought before a Court to submit to a decision,
is, if the decision goes against him, thereby a 'person aggrieved' by that
decision." Lord Justice Kay in the same judgment made the following
observations:-"The preliminary objection to the appeal is two/old:
(1) It is said that the Board of 'trade are
not 'persons aggrieved'. They are persons whom the court was bound to hear, If
they wished to be heard, on the validity of this objection, and the decision
has (1) [1894] 2 Q.B.D. 805. (2) 19 Q.B.D. 174.
707 been against them. How it can be said
that they are not 'persons aggrieved', by the decision, passes my understanding.
When two persons are in the position of litigants before the High Court, and
the decision of the Court goes against one of them, how it can be said that he
is not a 'person aggrieved' by the decision, I cannot understand. I am clearly
of opinion that the Board were 'persons aggrieved' by this decision. Then (2)
it is said that the decision is not an 'order'. When the High Court makes a
declaration of right, and further orders the costs of the application to be
paid (which is the common form here used), and that is drawn up and sealed with
the seal of the Court, and, I suppose placed on record, as all orders of the
High Court are, it seems to me that it is clearly an order of the Court."
In our opinion, Tekchand Dolwani is a person aggrieved within the rule stated
in the decision mentioned above and the respondent rightly held that he had
locus standi to prefer the appeal.
The next point urged was that the appeal had
been preferred against the order of the 9th February and not against the order
of the 8th and that the respondent had no jurisdiction to hear it. Whether the
appeal in substance had been preferred against the order of the 8th or the
order of the 9th was a matter which was certainly within the competence of the
respondent to decide and does not involve any question of jurisdiction
whatsoever. Be that as it may. we have examined the memorandum of appeal
presented by Tekchand Dolwani to the respondent and it appears to us that the
High Court was right when it held that the appeal was in effect and in
substance an appeal from the order passed by the Additional Custodian on the
8th February. The relief claimed in appeal concerns the order of the 8th and
the grounds of appeal only relate to this matter. The only defect pointed out
was in the description of the order attacked in appeal. It is well settled that
such errors of description cannot be allowed to prejudice the right of a party.
The two 708 orders of the 8th and 9th made on consecutive days, though under
different provisions of the Ordinance, were interlinked and the latter order
was merely consequential on the conclusion reached on the 8th and the
description in the memorandum of appeal that the appeal was against the order
of the 9th cannot be considered as really an error of a kind of which serious
notice could be taken.
The last point raised before us was not taken
in the High Court and therefore we have not the benefit of that court's
decision on the point. It was contended that no appeal lay against the order of
the Additional Custodian dated the 8th February declining to declare Aboobaker
an evacuee, that the only order that the Custodian is entitled to pass under
section 7 is an order declaring any property to be evacuee property and that it
is this order and this order alone which is appealable under section 24. In our
opinion, this contention is without force. Section 24 confers a right of appeal
against all orders made under section 7 and does not specify the nature of the
orders made appealable. In an enquiry under section 7 the first point for
adjudication is whether a certain person falls within the definition of the
word "evacuee" given in the Ordinance. Ii he comes within the ambit
of the definition, then any property heldby him becomes evacuee property. The
civil court is barred from entertaining or adjudicating upon the questions
whether the property is or is not evacuee property, or whether an evacuee has
any right or interest in any evacuee property. The decision of the Custodian
whether in the affirmative or in the negative amounts to an adjudication under
section 7 and is as such appealable.
It was contended that when the Custodian
reached the conclusion that a certain person is not an evacuee, then he is not
entitled to make any order -whatsoever but has just to file the proceedings.
This contention is unsound. When a certain person claiming to be interested in
getting a property declared evacuee property is allowed to put in a written
statement and lead 709 evidence, then the decision of the court whether
favourable or unfavourable to him has to take the form of an adjudication and
necessarily amounts to an order. Reference in this connection may be made to
the decision of the Federal Court in Rayarappan Nayanar v. Madhavi Amma(1) on
an analogous,provision of the Code of Civil Procedure contained in Orders XL,
Rule 1, and XLIII, Rule 1 (s). Order XLIII, Rule 1 (s) makes any order made
under Order XL, Rule 1, appealable, while Order XL, Rule 1, only empowers the
court to appoint a receiver. It was held that the order removing a receiver was
appealable under Order XLIII, Rule 1, inasmuch as such an order fell within the
ambit of Order XL, Rule 1, and the power of appointing a receiver included the
power of removing or dismissing him. The present case stands on a higher
footing. The power of granting a certain relief includes obviously the power of
refusing that relief.
In our opinion, therefore, the order made by
the Additional Custodian refusing to declare Aboobaker an evacuee and his
property evacuee property was an order made under section 7 of the Ordinance
and was therefore appealable under section, 24.
The result is that this appeal fails and is
dismissed with costs.
Appeal dismissed.
Agent for the appellants: Rajindar Narain.
Agent for the respondent: P, A. Mehta.
(1) [1949] F.C.R. 667.
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