Lassa Mir vs Custodian General

J.N. Wazir, C.J.—This is a petition under Article 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir and u/s

103 of the Constitution of Jammu and Kashmir for a writ of certiorari or any other appropriate writ for quashing the order passed by the Custodian

General on 30-10-1958.

The facts which gave rise to this writ petition briefly stated are these. The Petitioner, by means of a registered mortgage deed dated 27-12-

2004, obtained a three storeyed house situate at Khawja Bazar, Srinagar, from one Mst. Zoona Bibi wife of Mohammad Hussain for a

consideration of Rs. 2,000. The Petitioner was placed in possession of the mortgaged property and continued to be in possession till he was

evicted by the Custodian Evacuee Property Kashmir. The Assistant Custodian, by means of his order dated 25-4-2011, released the said

property in favour of the Petitioner after full enquiry with respect to the said property described as an evacuee property belonging to one Mst.

Gwasha Bibi.

Thereafter the Custodian Evacuee Property Kashmir made further enquiries and declared the said property to be evacuee property belonging to

Mst. Gwasha Bibi who had migrated to Pakistan and was an evacuee as defined in the Evacuees' (Administration of Property) Act. The Petitioner

appealed against that order to the then Custodian General, Syed Mir Qasim, who overset the order of the Custodian on 17-11-1956 declaring

that the property was not an evacuee property and the Petitioner was a mortgagee of the property. Against that order a review was filed by the

Custodian and Mr. Mahajan, the Custodian General accepted that review petition and directed that the appeal preferred by the Petitioner be

disposed of on merits.

Ultimately on 30-10-1958 the Custodian General set aside the order of his predecessor dated 17-11-56 and held the property to be an evacuee

property belonging to Mst. Gwasha Bibi. In other words, the order passed by the Custodian was confirmed by the Custodian General and the

appeal preferred by the Petitioner was dismissed. The Petitioner has questioned the order of the Custodian dated 1-3-1956 and that of the

Custodian General dated 30th October 1958 as being without jurisdiction and has prayed that a writ of certiorari be issued quashing these orders.

It has been contended on behalf of the Petitioner that there is an error of law committed by the Custodian General which is apparent on the face

of the record and, therefore, the order may be quashed. The error pointed out by the learned Counsel is that the Custodian General has not

carefully gone into the evidence and has not at all applied his mind to the documentary and oral evidence adduced by the Petitioner to show that

the property is not an evacuee property and has erred in holding that the property belonged to Mst. Gwasha Bibi who was an evacuee. My

attention has been further drawn to the averments in the mortgage deed executed in favour of the Petitioner in which Mst. Zoona Bibi described

herself as the daughter of Mst. Gwasha Bibi and as such had mortgaged the property in favour of the Petitioner. The learned Counsel argued that

no notice was given to Mst. Zoona Bibi who was an interested person and the Custodian General passed the impugned order in the absence of

Mst. Zoona Bibi which was contrary to the principles of natural justice.

The first question for consideration in this petition is whether or not the order passed by the Custodian General is without jurisdiction.

u/s 6 of the Evacuees' (Administration of Property) Act the Custodian issued a notification that the property in dispute was an evacuee property

and it vested in him. It appears that Mst. Zoona Bibi neither claimed any interest in the property nor did she file any objections before the Assistant

Custodian. The Petitioner alone claimed right or interest in the property and filed objections and the Assistant Custodian after enquiry held the

property not an evacuee property and released it. The Custodian made further enquiry and found that the property was an evacuee property and

declared it as such. The Petitioner, who was an aggrieved party, had the right to go up m appeal u/s 30 of the Evacuees' (Administration of

Property) Act, and he did file an appeal against the order of the Custodian. The Custodian General at first released the property, but, later on, on

review overset his order releasing the property and confirmed the order of the Custodian holding that the property was an evacuee property.

The Custodian General was competent u/s 30 of the Act to hear an appeal filed by any person aggrieved by an order of the Custodian or an

Officer subordinate to the Custodian. The Custodian General u/s 30(4) of the Act has powers to call for the record, either on his own motion or on

an application made to him in this behalf, of any proceeding which may be pending before or has been disposed of by an officer subordinate to

him, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding and he is competent to pass such

order in relation thereto as he thinks fit. He can review his order u/s 30(5) of the Act. The Custodian General, therefore, has wide powers given to

him u/s 30 of the Evacuees' (Administration of Property) Act and it cannot be said that the order which he had passed was without jurisdiction.

The argument of the learned Counsel is that the Custodian General has passed an order which is erroneous in view of the fact that he had not

applied his mind to the documentary and the oral evidence adduced in the case.

The Custodian General had jurisdiction to hear the appeal and to pass such order as he thought fit, put merely because the order passed,

according to the counsel for the Petitioner is wrong, it cannot be said that that order is without jurisdiction. The authority which has jurisdiction to

hear an appeal can pass a right or wrong order. If the statute has given the aggrieved party a right to get the order rectified, he may do so, but if

there is no remedy available to the aggrieved party to get the wrong order rectified he has to be satisfied with the order which has been passed by

the authority having jurisdiction. An error of law or any other technical error cannot be said to be an error apparent on the face of the record to

attract the extraordinary writ jurisdiction of the High Court to overset the order.

This view is supported by the following Supreme Court decisions. In Ebrahim Aboobakar v. Custodian General of Evacuee Property AIR 1952

SC 319, it has been observed by their Lordships that 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.

In Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, the same view has been

reiterated and it has been laid down that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of

law apparent on the face of the record and not every error either of law or fact, which can be corrected by a superior court, in exercise of its

statutory powers as a court of appeal or revision.

In this respect the law in India and the law in England are the same. The Common Law writ, now called the order of certiorari, which has also

been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is

only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance

with the essential requirement; of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be

sufficient to attract this extraordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they

are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other

words errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected and the appellate authority under the

statute in question has unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or revisional jurisdiction and it

has not been shown that in exercising Its powers the appellate authority disregarded any mandatory provisions of the law but what can be said at

the most was that it had disregarded certain executive instructions not having the force of law, there is no case for the exercise of the jurisdiction

under Article 226.

It has been pointed out that Mst. Zoona Bibi who was person interested was not served with a notice when the case was being heard by the

Custodian General and in her absence the order in appeal has been passed by the Custodian General which offends the principles of natural

justice.

This contention is again without force. Mst. Zoona Bibi ought to have put in her claim as a person interested when the notification was issued

by the Custodian holding the property as an evacuee property. She did not come forward and did not file any objections to the property being

declared as an evacuee property. It was not necessary, therefore, for the Custodian General to have given notice to her in an appeal which was

filed by the Petitioner against the order of the Custodian. The Petitioner was a mortgagee and had taken the mortgage from Mst. Zoona Bibi. He

was representing the interest of Mst. Zoona Bibi and it cannot be said that Mst. Zoona Bibi was unrepresented before the Custodian General when

the order was passed by him holding the property as an evacuee property. The Custodian General had jurisdiction to pass the order in appeal and

even if his order was erroneous, though I doubt it was so, it cannot be interfered with in writ jurisdiction.

I find no force in this petition which is dismissed with costs and I assess the cost at Rs. 50 which the Petitioner will pay to the Respondent.