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Judgment
Shah, C.J.—This is an appeal from an order of Chhatpar J. dismissing the Appellants'' petition for a writ of certiorari to quash the order of
the Assistant Custodian, Jamnagar, dated 11-7-51 declaring one Kadarbhai Alibhai an evacuee under the Administration of Evacuee Property Act
31 of 1950 and his property an evacuee property, and to further quash all. other acts of the Assistant Custodian Incidental thereto.
The Petitioners have obtained a money decree for Rs, 40,558-7-0 inclusive of costs against the said Kadarbhai from the Court of the Civil Judge,
Senior Division, Jamnagar, on 30-4-51. The Assistant Custodian, Evacuee Property, Jamnagar, was impleaded as a party to the suit on the ground
that the property of Kadarbhai was taken possession of as evacuee property and the sale proceeds thereof were held by the Collector of
Jamnagar.
The Assistant Custodian, however, pleaded: that Kadarbhai- had not then been declared an. evacuee, and thereupon the Assistant Custodian''s
name was struck oil'' from the suit. The order of the Assistant Custodian, which is impugned, mentions that a notice was issued against Kadarbhai
on 8-6-51, but it is now admitted that the notice, had not been served on him but was merely affixed on the notice board of the office of the
Assistant Custodian; and the non-service of the notice on Kadarbhai is the main ground on which this petition is rested. The order of the Assistant
Custodian dated ll-7-51 states:
Evidence recorded in case No, 190, against All Ababliai Jhaverl of Jamnagar shows that, bolls Normammad and Kadarbhai sons of Ali Ababhai
Zaveri of Jamnagar have migrated to Pakistan about 31 years back.
Chhatpar J. mentions in his order that this fact is not disputed, but Mr. Shah appearing for the Appellants contends that what is not disputed is the
fact that Kadarbhai had left for Pakistan since then, and that the Petitioners did not admin that Kadarbhai had left on account of the reasons stated
in the definition of ''evacuee'' in Section 2(d) (i) of the Act.
This point assumes importance, because the contention urged for the Respondent is that; Kadarbhai was already an evacuee as soon as he left
India for Pakistan and that the subsequent, inclusion of his name in the list of evacuees and a formal declaration as such had no bearing on the fact
of his being an evacuee from the inception.
Now the available material on this controversy is firstly that in ground No. 2 of their appeal to the Custodian of Evacuee Property, Saurashtra,
against the order of the Assistant Custodian dated 11-7-51, the Petitioners had stated that no inquiry was made and no evidence was recorded in
the case against Kadarbhai and the evidence in the case against Alibhai was not relevant and could not be used as evidence against Kadarbhai.
In ground No. 4 of the revision petition which they filed to the Custodian General against the order of the Custodian, the Petitioners stated that
there was no evidence much less any proof to show when and under what circumstances Kadarbhai left for Pakistan and that the Assistant
Custodian had erred in holding that the requirements of Section 2(d)(i) of the Act had-been fulfilled that is to say, the Petitioners had contended
that the fact of Kadarbhai leaving for Pakistan did not constitute him an evacuee. The learned Government Pleader however'' referred to para 11
of the plaint in Suit No. 74/50 filed by the Petitioners in the Civil Judge''s Court, Jamnagar, where they had stated as follows:
On the Nawanagar State taking over possession of Defendant No. l''s property (Kadarbhai''s property) and selling it and on the sale proceeds
being taken as evacuee property and in that event on the Defendant''s going away to Pakistan, his property would be treated as evacuee property,
according to law and that the more the abstains'' Custodian was joined as a party to the suit.'' (The rendering in English is mine.) The above
averment is rather clumsy, but it does suggest that the Plaintiffs'' impression then was that Kadarbhai''s property was evacuee property and it was
therefore that they joined the Assistant Custodian as a party to the suit. As to this, the Assistant Custodian''s plea in his written-statement was that
Kadarbhai had not been then declared an evacuee and it was therefore that the Assistant Custodian was removed from the wit.
That being the position the Respondent can-not now be heard to say that Kadarbhai had al-ready been an evacuee and'' that his order dated 11-
7-51 Was merely a formal declaration thereof. Apart from it, the Administration of Evacuee Property Act does not contemplate any formal
declantion. It must be taken therefore that Kadarbhai was declared an evacuee only by the abovesaid order.
Now Rule 6(1), Administration of Evacuee Property (Central) Rules requires the service of a notice on the person, claiming title to such property,
and Rule 6(3) lays down that the notice shall be served personally; and if that is not practicable, then the service is to be effected In any manner
provided in Rule 28.
Admittedly, service has not been effected in either of these manners and the affixing of the; notice on the notice board of the office of the Custodian
General is clearly not sufficient compliance with Section 7 of the Act. The service of notice u/s 7 is mandatory and. unless that condition is satisfied,
the Assistant Custodian would have no jurisdiction to hold the inquiry. Therefore any proceedings taken by him in the absence of due service of a
notice would be without jurisdictionthe raji Sulthan Yusuf Bhai v. Custodian of Evacuee Property AIR 1854 MP 173 (AIR v. ""D (A).
It is contrary to the basic principles of Justice that a property should be declared to be eva-cuee property without serving a notice on the oervison
concerned (See - Hafiz Abdul Rahim Vs. Deputy Custodian, and - ''Hussaini Begum v. State of Hyderabad AIR 1952 AP 141 (AIR v. 39) (C).
Therefore the declaration of Kadarbhai as an evacuee and his property as evacuee property In this case must be held to be without jurisdiction.
However, there are certain technical impeimpeliments in the way of the Petitioners. No doubt they have not joined the Custodian of Evacuee
property, Saurashtra and the Custodian General of Evacuee Property, New Delhi, and particularly the latter, as parties to the petition, but they
cannot get away from the effect of the true legal position by ignoring to join them as parties.
The Assistant Custodian''s order has been con-|firmed on appeal by the Custodian of Saurashtra and the revision application filed against the
letter''s order has been dismissed by the Custodian (General, whose order is in these terms:
No grounds for interference, dismissed in limine.
The question which then arises is whether the Assistant Custodian''s order is merged in the order of the Custodian and the latter''s order is merged
in the order of the Custodian General. If it is so merged, then it is the order of the Custodian General, which in effect is being impugned, though the
Petitioners may not choose to say so in terms.
In view of the decision of the Supreme Court in Election Commission, India Vs. Saka Venkata Subba Rao and, ), it is not disputed that this High
Court, has no Jursdiction to entertain a writ petition against'' the Custodian General, who resides and has his office located at New. Delhi, outside
the territorial jurisdiction of tills Court: But it is contended that the orders of the Assistant Custodian and the Custodian do not merge la the order of
the Custodian General, and the question of this Court''s jurisdiction therefore does not arise.
Mr. Shah has cited two decisions of the Raja-IliKh Court, the Har Prasad Vs. Union of India (UOI) and Another, . In that case an appeal filed by
the Petitioner was dismissed by the General Manager of the Western Railway, and the Union of India and the General Manager were joined as
opponents in the petition. A preliminary objection was taken on their behalf that the Court had no Jurisdiction because-the General Manager had
his office outside the jurisdiction of the High Court. Repelling this objection, the learned Judge observed:
In our opinion, this preliminary objection has no force in the present case. There are two classes of cases where the Respondent, a head of a
department, against whom relief is sought, is resident outside the jurisdiction of a particular High Court. One plass of cases would be where the
particular order is passed by an officer resident or having office within the jurisdiction of the High Court and the superior officer, residing outside
the jurisdiction only purports to confirm the order and to dismiss the appeal or revision made by the person affected by the order.
The other class of cases would be those where the superior officer residing outside the-jurisdiction of the, High Court purports to set aside the
order of the subordinate officer and substitutes his own order for the same. This would include also a modification of the order passed: by the
subordinate officer. In the first class of cases what the Petitioner wants is that the order of the subordinate officer should be set aside, and he only
makes the superior officer a party, because he avails of the remedy provided by the-rules or the law of approaching the superior officer. In the
second class of cases the prayer of the Petitioner would directly involve a direction to-the superior officer not resident within the jurisdiction.
The second decision is - Barkatali Vs. Custodian General of Evacuee Property of India, .'' There the Custodian General had dismissed a
revision application filed by the Petitioner. Wanchoo C. J. held that the revision having been dismissed in toto by the Custodian General, the order
of the Custodian, Rajasthan, stood as it was and that in the circumstances it was not the order of the Custodian General in revision which was
being impugned before the High Court but the order of the Custodian, Rajasthan.
The learned Judge said that it; would have-been different had the Custodian General in any manner modified the order of the Custodian, Rajasthan,
for in that case the Impugned order would have been the order of the Custodian General so as to exclude the High Court''s jurisdiction to issue a
writ. With respect, we are unable to agree with this view.
The crux of the question is not whether the Custodian''s order is modified or substituted by a new order in revision. Even where the revisional
authority dismisses the revision, it does so because it affirms the order of the appellate authority and in that sense the order is the order of the
provisional authority. That order is final and it is that order which operates. This is true even where the revision application is dismissed in limine.
Moreover to grant a writ in this case, on the footing that the Custodian General''s order merely dismisses the revision application and confirms the
Custodian''s order and therefore it is the Custodian''s or the Assistant Custodian''s order that remains in force would be creating an anomalous,
position in that whereas on the one hand the writ would prevail, on the other hand the Custodian General''s order would still stand.
The writ will not bind the custodian General who might even be free to have action taken in accordance with his own order, That is a situation
which should be avoided by a Court exercising:; the powers of granting a discretionary remedy by way of a writ.
The point has been considered in - Hafiz Mohammad Yusuf Vs. The Custodian General, Evacuee Properties, New Delhi and Others, . Reliance
was there placed for the Petitioner on - (Ghafar Shah v. Sikandar Shah AIR1935 Pesh 91 (AIR v. 22) (H) where a distinction was drawn
''between the case where an application in revision Tiara dismissed and the case in which it was a Jlowd and it was held that it was only in the latter
ase that the decree of the lower Court merged in that of the High Court.
The distinction appeared to have been based on the fact that when a revision is dismissed i, Ho High Court docs not confirm the decree of the
lower Court but merely declines to interfere, This view was not accented by the learned Judges of the Allahabad High Court because, in their
opinion, a Court of appeal which dismisses .without modification the lower Court''s order declines to interfere no less than a Court of revision
which issues an application in revision. Chaturvedi, J. observed :
Looking UDOU the matter somewhat more broadly, the word ""appeal."" includes an application an revision. ""Appeal"" has been defined in
Wharton''s Law Lexicon as ""the removal of a cause -from an inferior to a superior Court for the purpose of testing the soundness of the decision of
the inferior Court"", and the expression ""appellate Jurisdiction"" has been defined by the same authority as ""the power of superior Court to review
the decision of an inferior Court.
Section 27, Administration of Evacuee Property Act was then considered and it was held that the powers of the Custodian General under this
Section were very wide and for all practical purposes were indistinguishable from those of the appellate authority.
The order of the Assistant Custodian in that case was treated as merer-1 in the order of the Additional Custodian and the hitter''s order, in its turn,
as merged in the order of the Custodian General. This decision of the Allahabad High Court has been followed, and the decisions of the Rajasthan
High Court have been dissented from in - ''Joginder Singh v. Director, Rural Rehabilitation, Pepsu1 AIR 1955 P&H 91 (AIR v. 42) (I), where the
Question has been dealt .with in detail.
With respect, we agree with the view taken by the Allahabad High Court and the Pepsu High Court and in our judgment the order of the Assistant
Custodian in this case merges in the order of the Custodian General, and since no writ can issue against the Custodian General, he being not
jamenable to the Jurisdiction of this High Court, ''{the petition is not maintainable and is liable to be dismissed on that ground.
The second objection urged for the Respondent is that a petition for a writ under Article 228 rf the Constitution can lie at the instance of a
person whose right has bean infringed and that here the Appellants being, merely money decree-holders they hive no right to Kadarbhai''s
property. In the - ''State of Orissa v. Madan Gopal AIR 195 SC 12 (AIR v. 39) (J), Kanta C. J. has observed with reference to Article 223 of
the Constitution: ....
The language of the Article shows that the issuing of writs cr directions by the Court is found-V only on its decision that right of the aggrieved
''jparty under Part III of the Constitution (Fundajpent&l Rights) has been infringed. It cans also issue, -writs or give similar directions for any other
purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the
foundation of the exercise of jurisdiction of the Court under this Article.
Therefore the relief under Article 226 posit the existence of a right in the persons claiming the relief1 for the infringement of, their right.
Now here although the Appellants may not have a direct right to the property in Question they are nevertheless aggrieved partied;- Inasmuch us
they hold a decree against Kadtirbhal to realist which they have a right to proceed against Kadarbhai''s property, that is. to say, to attach the
amount lying with the Collector, but this remedy is denied to them by the Assistant Custodian''s order and their interests are thus injuriously all
selected. That order therefore does involve direct injury, to the Appellants'' Interests and as a patty affected they are entitled to imply for a writ.
The learned Government I leader has roll) upon - ''M.B. Namazi v. Deputy Custodian of Evacuee Property, Madras'', 1051 Mad 930 (A lit v. 38/
(K) where Rajarnannar C.J. has observed that it is the evacuee who should feel aggrieved if there was any deprivation, of his right and he has not
complained. With respect, however, the learned Chief Justice has not considered whether the Petitioner''s interests were prejudicially affected by
the order complained for. ''In re, Ramamoorthi AIR 1953 Mad 94 (AIR v. 40) (L), the tame learn in Judge observed:
It is certainly not the province of this Court to interfere either ''suo motu'' or at the instance of any person whenever there is any disregard or
violation of any of the provisions of the Constitution, Our power under Article 226 of the Constitution can only be invoked at the instance of a
person who has a personal grievance against any ac'' of the State in its executive capacity which inflicts a legal injury on him. Ft has ban held oven-
and again both in the United States of America and in this country that the right which is the foundation of a petition under Article 226 of the
Constitution or a corresponding provision is a persona), and individual right.
On the facts, the learned Chief Justice held that the Petitioner had no personal or direct interest, in the matter and he could not therefore invoke the
provisions of Article 226 of the Constitution. Therefore If a person had such a personal or direct interest, it follows that a petition for a writ will lie
at his instance, and in the present case we find that the Appellants have a. personal interest in the amount in question, inasmuch as they can have it
attached in execution of their decree.
Mr. Shah has contended in the alternative that even if the Appellants'' right could not be said to have been infringed, and they could not be said to
have suffered any injury, they can still apply for a writ of certiorari, and that the only distinction is that whereas in the case of a party aggrieved, if
the Court or quasi-judicial Tribunal has acted without or in excess of jurisdiction, the writ'' will issue ex debito justitiae, in the ease T a person who
has not sufloiod any injury the Court has a discretion to grant or refuse the writ according to the circumstances of the case. In the view we are
taking, this contention need not be ooruldered. We hold therefore that this writ petition is maintainable at the instance of the petit Worg.
However, the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to
refuse to grant a writ if the aggrieved party has an adequate or suitable alternative remedy (see - ''K. S. Rashid & Son. Income Tax Investigation
Commission AIR 1954 SC 07 (AIR v. 41) CM)). Now here the Appellants have a remedy under Rule 22, Administration of Evacuee Property
full, which deals with'' claims of third parties and nub-rule (1) says that any person, claiming any right to rocei the prolion to Till Tiun older sub may
rich men l b. right to as in Tl: Cree and Court t todian, uttered. The med air out auk ing ihui or eciua ''Dineslii Muclh-B Lilawati 1952 Ma no matf in
quest it and v. have is would tl. (8) if issue dean, co Act in IJJ''OUIK! Altered perty (A vant po; ""7A, party on anything be decla: ,7th dayI Vov
tion sha (a) ings a declaims and , (b) I of the Pakistan the fear the 1st c part of I: was respire for decla with refevisoshal from the Uvacues In
viUn''yu tlH.V Ed, beach commence Wild Act fore the able to Court ire (9) E the first certiorari dismissed O receives any payment from any
evacuee or from) (properly of such evacuee, may present a petition to the Custodian for registration of his claim.
The procedure to be adopted on the presentation of such an application is then prescribed. Under Sub-rule (2) (b) of the Rules, the Custodian
may register the claim. Rule 43, provides, for pay-meat by the Custodian. Therefore the Appellants'' right to realise their decree is not affected.
Where-a in the normal course they can execute the decided against the property by execution through Court they are now required to apply to the
Custodian , and UUIK the mode of realizations Is only allured.
The Appellants have thus an alternative remedy and it is not shown that the said remedy is not adequate or efficacious. The burden of proving that
the alternative remedy is not adequate or decimally efficacious is on the Petitioners (see) Dineshcharan v. State of Madhya Eharaf AIR1953 MP
165 (171) (AIR v. 40) (N) and - ''Mrs. LllB.wati Mutatkar v. State of Madhya Bharat AIR 1951 MP 105 (113T (AIR v. 39) (O). There is no
material before us ,to show what the amount in question is or what are the other claims against; it, and whether the remedy which the Appellants
haven is not adequate or equally efficacious and we would therefore refuse to grant the writ.
The third objection is that the writ even if issued may be nullified by the Assistant Custodian, complying with the provisions of Section 7 of the
Act in respect of want of notice, which is the main ground of this petition. As to this, the -position is altered by the Administration of Evacuee
Property (Amendment) Act 42 of 1954 Section 7A the relevant portion of which is in the following terms:
7A. Property not to be declared evacuee property on or after 7th May, 1954. Notwithstanding anything contained in this Act, no property shall ix
declared to be evacuee property on or after the Valhi day of May, 1954:
Provided that nothing contained in this section shall apply to-
(a) Any property in respect of which proceedings are pending on the 7th day of May, 1954, for declaring such property to be evacuee property;
and (b) The property of any person who, on account in 1954, May. of day 7th the on who and, Part forming now place any 1947, March, I-?,
Hoe after or left had disturbances aioli fear I disturbance civil account ? India Dominions up setting>
provided further that no notice u/s 7 for declaring, any property to be evacuee property ''villa reference lo Clause (b) of the preceding proviso shall
be issued after the expiry of six months Iron'', the commencement of the Administuition of Bviulec Properly (Amendments Act, 1954.
In view of Clause (b) Of Section 7A read with the proviso thereto, no notice u/s 7 can now be issue-M, because six months have expired from the
''up Hiieiiceilieiil. Of name Land Act of 1935 the Act, having commenced from 0-10-54. There-fore the objection on this score is no longer
available to and it will not prevent the Court from granting a writ.
Since we hold against the Petitioners on the first two points, the petition for the writ of etu''liovurl must Jail mid this appeal is accordingly
dismissed. No order as to costs.
Baxi, J
I agree.