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PETITIONER:

EBRAHIM ABOOBAKAR AND ANOTHER

Vs.

RESPONDENT:

CUSTODIAN GENERAL OFEVACUEE PROPERTY.

DATE OF JUDGMENT:

26/05/1952

BENCH:

MAHAJAN, MEHR CHAND

BENCH:

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-mat-

ter, 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.

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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 prelimi-

nary 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 par-

ties. Such jurisdiction is inherent in its very constitu-

tion 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 appel-

late 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.

JUDGMENT:

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 appel-

lants 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 Imperi-

al Cinema. situateat Bombay. Soon after the partition of

India, he went to Pakistan and was in Karachi in the month

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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 Addi-

tional Custodian started proceedings under the Bombay Evacu-

ees (Administration of Property) Act, 1949, against Aboobak-

er 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 Decem-

ber, 1949, the Additional Custodian issued a notice to the

said Aboobaker under section 7 of the Ordinance and a fur-

ther 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 ag-

grieved 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 respond-

ent 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 interest-

ed in the appeal and had locus standi to prefer it. Having

overruled the preliminary objections raised by the appel-

lants, 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

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two appellants allege that they are some of the heirs enti-

tled 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 inas-

much 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 Ordi-

nance. 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 juris-

diction to entertain it at his instance.

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702

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 pro-

nounced 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 af-

fected.

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 deci-

sion 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 pre-

scribed 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 ques-

tions 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 mislead-

ing. 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

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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 what-

ever 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 tribu-

nal 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 juris-

diction." 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 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 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 deter-

mine any points raised before it in the nature of prelimi-

nary 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

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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 certain-

ly aggrieved by the order disallowing his contention. Sec-

tion 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 Aboo-

baker 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 Custo-

dian. 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 ex-

plained by this Court in Ex parte Official Receiver U). It

was there determined that any person who makes an applica-

tion 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

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been against them. How it can be said that they are not

'persons aggrieved', by the decision, passes my understand-

ing. 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 ag-

grieved' 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 pre-

ferred against the order of the 9th February and not against

the order of the 8th and that the respondent had no juris-

diction 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 compe-

tence 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 inter-

linked 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 con-

fers 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. 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 proper-

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ty, 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 adjudica-

tion 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 adjudica-

tion 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, inas-

much 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.

710