Ebrahim Aboobakar and Another v. Custodian General of Evacuee Property.

Ordinarily, a c~urt 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 prelimenary 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 prescrribed, 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 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 pro-perty, who has filed a written statement and adduced evidence, is a "person aggrieved" by an order that the latter is not an ~vacuee and has a locus standi to prefer an appeal from the order.

CML APPELLATE JuRISDICTION : Civil Appeal No. 4 of 1952. Appeal from the judgment and order of the High Court of Judicature for the Punjab at 2-8 S.C. India/71

1952 Simla dated 24th May, 1951, in Civil Writ No. 15 Evacuee of 1951.

Aboobakar M. L. Manekshatv (P. N. Bhagwati, with him) for end Aneiher the appellant.

v.

Custodian M. C. Setaluad, Attorney-General for India ( G. N. General of foshi, with him) for the respondent.

Evacuee Property. 1952. May 26. The Judgment of the Court was

delivered by MRhajan }.

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 appel-lants, was possessed of considerable movable as well as immovable properties including a cinema theatre, known as the Imperial Cinema, situate at 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 informatjon 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 proceed .. ings, the Government ·-of India Ordinance XXVII of 1949 came into force. Thereupon, on the 16th Decem-ber, 1949, the Additional Custodian issued a notice to the said Aboobaker under section 7 of the Ordinanc{ and a further notice on the 11th January, 1950, to shov. cause why his property should not be declared to be evac_uee 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 evi-dence produced by the said Tekchand Dolwani and takino- " into consideration the written starement filed by him, adjudicated on the 8th February, 1950, that the said Aboobaker was not an evacuee. He, however, 1952 issued another notice to Aboobaker on the same day calling upon Htm to show cause why he should not be Ebrahim Aboobakar declared an intending evacuee under section 19 of the and Another said Ordinance. On the 9th February, 1950, he ad-v. judicated him as an intending evacuee. Custodian General o/ On the 31st March, 1950, Tekchand Dolwani being Evacuee the informant and interested in the adjudication of the Property. said Aboobaker as an evacuee, filed an appeal against Mahajan the order of the 9th February to the respondent (The Custodian General of India) praying for an order declanng 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 a and that the said Tekchand Dolwani was not person aggrieved by any order passed by the Additional Custodian and there-fore 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 13th May, 1950, 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. Aboo-bakcr 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 purpodng 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 Qrder 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.

1952 He further held that the said Tekchand Dolwani was

interested in the appeal and had locus standi to prefer Ebrahim it. Having overruled the preliminary objections Aboobakar and Another raised by the appellants, the hearing of the appeal

v. was adjourned and further inquiry was directed to be Custodia11 made in the matter. Notices of the adjourned hearing General of of the appeal were given from time to time to the two Evacuee appellants. On the 30th February, 1951, they were Property.

informed that the appeal would be heard on the 7th Mahaian /. 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 13th May, 1950, the appellants filed a peti-tion 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 quash-ing and setting aside that order and for a writ of prohi-bition or mandamus directing the said respondent io forbear from proceeding with the heating 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 :

¶1That the appeal preferred by Tekchand Dol-wani before the respondent was in terms an appeal against tl1e 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, Tek-t chand had no right of appeal against the same and the respondent had no jurisdiction to entertain it or make any order therein.

¶2That 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.

¶3That after the death of Aboobaker on the 14th 1952 May, 1950, the respondent ceased to have jurisdiction Ebrahim to proceed with the hearing of the appeal or make any Aboobakar order therein. and Another v. The High Court held that the order of the respond-Custodian ent pronounced on the 15th May, 1950, was not a General of nullity and_ the appeal preferred by Tekchand was in Evacuee effect and in substance an appeal from the order passed Property. by the Additional Custodian on the 8th February, 1950, Mahajan /. and that Tekchand was ·a preson 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 apr.eal 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 :

¶1That 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 Sith the respondent had no jurisdiction to hear it.

¶2That assuming that the appeal was preferred _., against the order of the 8th, that order was not an

appcalable order inasmuch as section 24 allows an appeal agaimt an order declaring properties evacuee properties and not against any conclusion that a cer-tain person is or is not an evacuee, and thus no appeal was competent at all which could he heard by the respondent.

¶3That 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 •y respondent had no jurisdiction to entertain it at his

instance.

1952 4. That the order pronounced on the 15th after

the death of Aboobaker was a uullity.

Ebrahim It is mentioned in the judgment of the High Court Aboobakar ind Another that Shri M. L. Manekshah conceded that the death of

v. Aboobaker docs not in any way affect the validity of Custodian the order pronounced by the Custodian General on the General oj 15th May, 1950. The learned counsel adopted practi-Evacuee cally the same attitude before us in view of the affid-Property,

avit of the respondent in which it was affirmed that Mahajan /, the order in question was dictated on the 13th May,

1950, and -was signed 011 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 docs not require any further considera-tion and is rejected.

The larger question that has been raised in the peti-tion pending before the High Court of the State oi 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 lefo 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 subject-matter, so that the inferior court might not have authority to enter on the inquiry or upon some part Y' of 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 1952 the court has to try and which are conditions prrce ..

dent to the assumption of jurisdiction . by it. But once Ebrahim it is held that the court has jurisdiction but while Aboobakar and Another exercisiing 'jr, it made a mistake, rhe '.Vronged party y, can only take the course prescribed by law for setting Custodian matters right inasmuch . as a court has jurisdiction to General of decide rightly as well as wrongly. The three ques-Evacuee Property, •ions agitated before us do not seem to be questions which bear upon the jurisdiction of the court of Vfahairm f. appeal, 0r its authority to entertain them.

It was contended that no court of limited jurisdic-tion can give itself jurisdiction by a wrong decision 011 a point collateral to the merits of the case upon v1hich tbe limit of its jurisdiction depends and that the ques-tions 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 of fncome T ax(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 :

"'Vhen an inferior court or tribunal or body which has to exercise the power of deciding facts, is 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 statr.

of facts exists and is shown to sucb. tribunal or body before it proceeds to do certain things, it shall have iurl.sdiction to do such things bur not otherwise. There it is not for them conclusive] 1 to drcide whether that •tate of facts exists, and, if they exercise the jurisdic-tion without its existence, what they do may be ques.

ti1:med, and it will be held that they have acted without iurisdiction. But there is anotl!r:r state of things which may exist. The legislature may entrust tl1e tribunal or body wit!t i.I jurisdiction which include-! the jurisdiction to determine wliethcl' the preliminary state of facts exists.

as well as the jurisdiction, and on finding that it does exist, to proceed further or do something more. When

1952 the legislature are establishing such a tribunal or body

with limited jurisdiction, they also have to consider· Ebrahim whatever jurisdiction they give them, whether there Aboobakar 11nd Another shall be any appeal from their decision, for otherwise

v. there will be none. In the second of the two cases I have Custodian mentioned it is erroneo11s application of the formula to General of say that the tribunal cannot give themselves jnrisdiction Evacuee Property. by wrongly deciding certain facts to exist, because the

legislature gave them jurisdiction to determine all the Mahajan f. facts including the existence of the preliminary facts on

which the further exercise of their jurisdiction depends; and if they were given iuhsdiction so to decide, with-out any appeal being given, there is no appeal froni 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 origiml order has been passed by a Deputy or As,,;stant Custodian; (b) to the Custo(fon-Genernl, 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 jurisdic-tion 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 exist-ence of any particular state of facts. Ordinarily, a court of appeal has not only jurisdidion 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 /oms 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 1952 within the time prescribed, are all matters for the decision of the appellate court so constituted. Such Ebrahim Aboobakar a tribunal falls within class 2 of the classification of and A.notht:f the Master of the Rolls. In these circumstances it v .. seems to us that the order of the High Court of Punjab Custodian that a writ of certiorari could not issue to the respond~ General of ent quashing the order of the 13th May, 1950, was Evacuee Property. right. We are further of the opinion that none of the contentions raised has any merit whatsoever. Mahajan f.

For a proper appraisal of the contention that Tek-chand 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 5 (5).. that a~y 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 part)' 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 suoport of the stand taken by h 11m that the proper-ty 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 consi-deration in the allotment of this property, the Additional Custodian was bound to hear him on the truth ahd 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

1952 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 Ebrahim certainly aggrieved by the order disallowing his con-Aboobakar and AnotAer tention. Section 24 allows a right of appeal to any

v. person aggrieved by an order made under section 7. Custodian The conclusion reached. by the Additional Custodian General of on the 8th February, 1950, that Aboobaker was not Evacuee an evacuee amounted to an order under section 7 and Property. \,..._II

Tekchand therefore was a person aggi:ieved by that Mahajan /. 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(') observed as follows :- "The meaning of the term 'person aggrieved' was explained by this Court in Ex paru Official Receiver('). 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 sub-nlit to a decision, is, if the decision goes against l:im,_ thereby a 'person aggrieved' by that <lecision."

Lord Justice Kay in the same judgment made the following observations :- "The preliminary objection to the appeal is two-fold : (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 bas

( 1 ) [1894] 2 Q.B.D. 805. (')° 19 Q.B.D. 174.

'· j ,.,,

S.C.R. cSUPREME, COURT.:REPORTS <707.

been against them .. How it can be said that they are _ I9.5:Z not 'persons aggrieved', by the . decision, passes my Ebrahim understanding. \Vhen two persons are in the position Aboobakar of litigants before the High Court, and the decision of .and Another , the Court goes against one of them, how it can be said v. that .he is not a 'person aggrieved' by the decision, Ouatoaian 0;;:::,.:1 I cannot understand: I am clearly of opinion that the Board were 'persons aggrieved' by this decision. Then .. Property. (2) it is said that the decision is not an 'order'. When --. __ _the High . Court makes_ a declaration . of right, and · Mahajan J. further orders the costs of the application to. be paid (which is the common form. here used), and that_ is dr_aw_n .up an.d sealed with_ the seal of the Court, an_d, I suppose plac_e.d on record, as all orders of· the High .Court are, it seems t? me thatitis.clearly an order of the Court.'.' , , 0 In our opinion, Tekchand Dolwani is a person aggrieved within the rule stated in the decision men-tioned 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 respon-.

dent 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 _f ----F-· the order passed by the Additional Custodian oil the I 8th February. The relief claimed in appeal concerns ( f the order of the. 8th and the grounds of appeal only relate to this matter. The only defect poillted out was ' in the description of the order attacked in appeal. .. It l,~ · is well settled that such errors of description cannot be a!lowed to prejudice the ri~ht of a party. The two

708 SUPREME' COURT REPORTS [1952]

. 19.51 orders of the 8th and 9th made on consecutive days,

. though under different provisions of , the Ordinance, J,,~"/:.~:, were interlinked and the latter order was merely conse-and Another 'quential on the conclusion·reached on the 8th and the

v. •description in the memorandum of appeal that the aus:odia,. a;:::,,7 , appeal was against the order of the 9th cannot be

considered as really an error of a kin.d of which serious -notice <;ould be taken. - Pr<YP.,.~J. The last point raised before us was not taken in the ·-.lI~hd}anJ. - 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 undersectiori 7isanorder 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 withouf 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 appeal-able. 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._ .If he comes within the ambit of the definition, then any property held by him becomes evacuee property. The civil court is barred from entertaining or adjudicating upon the questions whe-ther 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. \Vhen a certain person claiming to be interested in getting a property declared evacuee pro-per~y is allowed to put in a written st;iteµient ;ind le;iq

1952 orders of the 8th and <Jth made on consecutive days, Ebrahim though under different provisions of the Ordinance Aboobakar were interlinked and the latter order was merely conse'. Mid Another quential on the conclusion reached on the 8th and the

v. description in the memorandum of appeal that the Custodian appeal was against the order of the qth cannot be General of considered as rea)ly an error of a kind ot which serious Evacuee Property. notice could be taken.

/. The last point raised before us was not taken in the Mahajan

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 he , evacuee property and that it is this order and this order alone which is appealahle under section 24. In our opinion, this contention is witliout 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 appeal-ahle. 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 jn the Ordinance. If he comes within the ambit of the definition, then any property held by him becomes evacuee property. The civil court 1s barred from entertaining or adjudicating upon the questions whe-ther 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 appealahle.

It was contended that when the Custodian reached the conclusion that a certain person is not an evacuee, then he i> 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 pro-l'' perty is allowed to put in a written statement and lead evidence, then the decision of the court whether 1952 favourable or unfavourable to him has to take the form of an adjudication and necessarily amounts to an Ebrahim order. Reference in this connection may be made to Aboobakar and Another the decision of the Federal Court in Rayarappan v. Nayanar v. Madhavi Amma(1) on an analogous provi-Custodian sion of the Code of Civil Procedure contained in Orders General of XL, Rule 1, and XLIII, Rule 1 (s). Order XLIII, Rule Evacuee 1 (s) makes any order made under Order. XL, Rule 1, Property. ...... appealable, while Order XL, Rule 1, only empowers the Makaian f.

court to appoint a receiver. It was held that the order removing a receiver was appealable under Order XLIII, Rule I; 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 otder made by the Addi-tional 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, Appeai dismissed.

Agent for the appellants : Rajindar Narain.

Agent for the respondents : P. A. Mehta.