Firm Nanji Premji Bhadlawala and Others vs Evacuee Property

Chhatpar, J.—This is an application for a writ of certiorari under Article 226 of the Constitution of India to declare an order of the Assistant Custodian, Jamnagar, declaring one Kadarbhai Alibhai as an evacuee under the Administration of Evacuees'' Property Act, 1950, as being without jurisdiction and also for declaring the amount lying with the Collector, Halar, in the name of Kadarbhai Alibhai as evacuee property void and generally praying for quashing of all other acts of the Assistant Custodian incidental thereto.

The applicants claimed to have obtained a decree against the said Kadarbhai for Rs. 40,000/-and odd in the Court of the Civil Judge, Senior Division, Jamnagar, on 30-5-41. In the suit they had imp leaded the Assistant Custodian as a party on the ground that the property of Kadarbhai was taken possession of as evacuees property and sold and the sale proceeds deposited by the Assistant Custodian with the Collector; to this statement however the Assistant Custodian pleaded that Kadarbhai had not then been declared an evacuee.

Kadarbhai and his brother Noormahmad were formally declared evacuees under the Administration of Evacuees''. Property Act No. 31 of 1950 by an order of the Assistant Custodian dated 11-7-51. In his order there is mention of a notice under the Evacuee Property Law having been issued against the two persons of Jamnager on 8-5-51 It Is also mentioned that these persons had migrated to Pakistan about 31/2 years back which would mean in about the beginning of the year 1948, The notice referred to in the order seems to have been affixed on the notice board of the office of the Assistant Custodian.

Notice contemplated by Section 7 of this Act done not appear to have been issued, us there is a spicily averment in the application that such notice was not issued and there is no denial of the fact in the return filed by the Assistant Custodian. The fact that Kadarbhai had migrated to Pakistan in about the beginning of 1948 is however not disputed.From this order of the Assistant Custodian declaring Noormahmad and Kadarbhai as evacuees, the applicants filed an appeal before the Custodian of Evacuee Property, Saurashtra State, and the Custodian by his order dated 9-3-50 dismissed the appeal.

From this order the applicants filed a revision application to the Custodian General of Evacuee Property, New Delhi, who by his order dated 20-10-52 dismissed the revision in limine observing that there was no ground for interference. The applicants thereafter filed the present application for it writ of certiorari in this Court on 16-1-1953. consioncration.

Conation objection arise for Constitution the first is as to the jurisdiction of this Court to entertain the application. The ground of objection is based upon the contention chat the order of the Assistant Custodian as also of the Custodian, Evacuee Property, Saurashtm State, have been merged in the order of the Custodian General, New Delhi, and that the applicants remedy is to file the application in the appropriate Court at Delhi where the office of the Custodian General is situated.

The second point for consideration is whether the applicants are parties aggrieved by the order in question to maintain an application for a prerogative writ under Article 223 of the Constitution. The applicants admittedly are merely creditors of the alleged evacuee. They have no direct interest in the property of the evacuee such as may be the case if they were mortgagees of the property or had any share or interest in the property of the alleged evacuee.

The third question for consideration that arises is whether the Court should, in the circumstances of the present case, grant the discretionary relief under Article 226 in favour of the applicants. The contention urged on behalf of the opponent is that any order passed would be futile as it is beyond doubt that Kadarbhai was in fact an evacuee, although his declaration as such may be defective: in law and air that would be necessary would be to comply with some technical procedure to declare him as such.

On the first question there is some divergence of views of some High Courts and these views are expressed in Hafiz Mohammad Yusuf Vs. The Custodian General, Evacuee Properties, New Delhi and Others, , Har Prasad Vs. Union of India (UOI) and Another, , Barkatali Vs. Custodian General of Evacuee Property of India, and Haji Suleman Yusaf v. Custodian of Evacuee Property Madhya-Bharat, AIR 1954 MP 173 (AIR v. 41) (D).

The same question in somewhat different form) is also pending in a case before the Full Bench of this Court. I do not propose to give my decision on this important question, and would proceed on the assumption as if this Court had the Jurisdiction to entertain the application, as I am clearly of the opinion that the Petitioners'' application must fail on the other two points referred to above.

The first of these two other points is whether the applicants have the right to maintain the application for a writ of certiorari as aggrieved parties. It must be borne in mind that Kadar bhaf himself has not questioned the order of his being declared an evacuee; only one of his creditors holding a money decree against him personally has chosen to agitate the question of the validity of his being declared an evacuee.

In Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, , the Supreme Court held that the one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. In that case an application was filed by the holder of one ordinary share of the Sholapur Spinning and Weaving Company Ltd., for a writ of mandamus and certain other reliefs under Article 32 of the Constitution of India.

The Supreme Court held that the Company and the shareholders were in law separate entities. and if the allegation was made that any property belonging to the Company had been taken possession of without compensation or the right enjoyed by the Company under Article l9(l)(f) had been infringed, it would be for the Company to come forward to assert or vindicate its own rights and riot for any individual shareholder to do so.

The petition was therefore dismissed by the majority of their Lordships of the1 Supreme Court. In The State of Orissa Vs. Madan Gopal Rungta, at p. 13 their Lordships of the Supreme Court observed:

The language of the article shows that the issuing of writs or direcllons by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can 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.

In the present case no fundamental right of the applicants is alleged to have been infringed. No property of theirs is being taken possession of or prejudicially affected. Under the ordinary law avid down in the Code of CPC they would be entitled to realise the decree by attachment and sale of the property of the judgment-debtor. Under the Evacuee Property Law they have to file a claim before the Ousiodiau, who will give the appropriate relief. It is only the mode of the realisation of the decree which has been altered by the Administration of the Evaence be Property Law.

It earned therefore be said that any (missing) mental rise of property has been infringed. There is however, a Bench decision of the Madras, High Court directly on the point in question, in M.B. Namazi Vs. Deputy Custodian of Evacuee Property and Others, . In this case an application for a writ of certiorari was filed by a partner of the evacuee whose property was declared as evacuee property and their Lordships held that he had no right to maintain the application At p. 984 It was observed:

The second circumstance is that the evacuee himself has not chosen to complain before as against the order in A. C. No. 224A. It is he who should feel aggrieved if there had been any deprivation of his right and he has not complained." I may also further refer to a subsequent Bench decision of the same Court In Re: P. Ramamoorthi, , wherein it was held that it was not the province of the High Court to interfere either suh motif or at the instance of any person whenever there was any disregard or violation of any of the provisions of the Constitution. Its power under Article 226 of the Constitution could only be invoked at the instance of a person who had a personal grievance against any act of the State in its executive capacity which inflicted a legal injury on him, since the right which is the foundation of a petition under Article 226 of the Constitution or a corresponding provision is a personal and individual right.

The learned Judges relied upon the observations of the Supreme Court in Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, . I therefore hold that the applicants have no right to maintain the application for a writ of certiorari in the present case as they are not the aggrieved persons. The person really aggrieved is Kadarbhai.

On the second point whether the High Court should exercise its discretion in issuing a prerogative writ under Article 226 of the Constitution, I am of the opinion that this is not a fit case in which I should issue a writ. Chitaley and Rao in their commentary on the Constitution of India, Vol. 2 (1954 Edn.), at p. 2032 observe:

Certiorari is a discretionary remedy. One of the principles that will be applied to the exercise of that discretion is that the writ will not be issued if it will be futile or unnecessary. In other words, where the remedy will not be an effective one, the writ will not be granted. Thus, among the reasons why a writ of certiorari is not granted in regard to an order of a returning officer, rejecting a nomination paper of a candidate, standing for election to a Legislature under the Constitution, is the reason that the Election Tribunal may Ultimately hold that the rejection of the nomination paper was sound, and thus nullify the effect of the order in the certiorari proceedings.

Any writ issued by this Court can be nullified by the Custodian complying with the provisions of Section 7 in respect of the notice which is the main ground on which this present application has been filed. In fact Kadarbhai is an evacuee within the definition of the Evacuee Property Law And as the Evacuee Property. Law applicable to the State of Saurashtra stood in the beginning of 1948, there was no necessity of a notice required by the present Act. Ordinance No. 8/1948 then governed the administration of the property of an evacuee in the State of Saurashtra.

Under this Ordinance an ''evacuee'' meant a person ordinarily residing in or owning property or carrying on business with in the territories comprised in the Stale of Saarashtra by integration. merger or otherwise of the State, Talukas and Fstates of Kathtiawar, who on account of civil disturbances or the four of such disturbances or the Partition of the country lived or pad since 1-3-1947 or any later date left the said territories for a place outside India or could not personally occupy or supervise his purpose or business.

Evacuee property'' included all property in which an evacuee had any right or interest, but did not include any moveable property in his immediate possession. The procedure then laid down was that the Custodian was to take possession, of the evacuee property which vested in him by reason of the person becoming an evacuee within the definition of the Ordinance.

Although Kadarbhai was formally declared an evacuee under the Central Act 31 of 1950, he was already an evacuee in the beginning of 1948 when he migrated to Pakistan under the Saurashtra Law. Under the eircumutances, I hold that this is not a fit case in which this Court should grants the discretionary relief under Article 226 of the Constitution of India.

In view of my decision on these two points, I do not propose to deal with the rest of the case.

In the result this application fails and is dismissed with costs.