Shaik Mohammad vs The Custodian General of Evacuee Property and Another

Misra, C.J.—This is an application for issue of a Writ of Certiorari under Article 236 of the Constitution. It is directed against an order of the Custodian-General of Evacuee Property, dismissing the Petitioners revision application on the ground of limitation. The application was preferred against the appellate decision of the Custodian, upholding the order of the Deputy Custodian, Hyderabad, whereby the Petitioner''s application dated 19-1-1951, for confirmation of the sale of a house by an evacuee in his favour was rejected.

The case was, at first, sought to be argued on behalf of the Petitioner on the ground that the Custodian''s Notification u/s 7 of the Act did not include houses Nos. 201/10 and 201/11, which are now the subject of dispute inasmuch as it called for claims in respect of only one of the houses belonging to the evacuee at Latur, viz., House No. 54/10. It was urged that in the absence of a specific notice covering the two houses they could not be deemed to be evacuee properties and their ownership could not vest in the Custodian so as to render confirmation of the sale neces-1954 Hyd/5 & 6 say under the provisions of Section 40 of the Evacuee Property Act of 1950. The argument was, however, abandoned when it was pointed out to the learned Counsel for the Petitioner that his application u/s 40 of the Act praying for confirmation of the sale must be deemed to premise that the Deputy Custodian had the jurisdiction to confirm the sale and that the property covered by the transfer executed by the evacuee on 4-6-4949 was evacuee property.

The sole surviving question which was then argued before us on behalf of the Petitioner and which talks for decision relates to the omission of the Custodian-General to exercise his jurisdiction properly in deciding the revision. The order complained of purported, as staled above, to dismiss the Petitioner''s application on the ground of limitation and it is urged that the Custodian-General must be deemed to have refused to exercise his jurisdiction which he was bound to do under the provisions of Section 27 of the aforesaid Act, because the view taken by him on the point of limitation was, on the face of it, wholly erroneous. For the purpose of this application it is unnecessary to enter into the merits of the question because on the principles enunciated in-- Election Commission, India Vs. Saka Venkata Subba Rao and, (A), no direction in the nature of a Writ of Certiorari or Mandamus can be issued to the Custodian-General inasmuch as he resides and holds his office in territories beyond the jurisdiction of this Court. An action by way of a writ is an action in personam and disobedience of the orders therein is punishable in contempt. The provisions of Article 226 are expressly intended to be used against persons or authorities within the territorial jurisdiction of the High Court and as remarked by their Lordships of the Supreme Court in the aforementioned case, the characteristics of the remedy available to a litigant by way of a writ further support this view.

Mr. Vaidya on behalf of the Petitioner tried to differentiate the decision referred to above on the ground that the Court of the Deputy Custodian who initially decided the present case and whose obedience can be effectively enforced is located in the State of Hyderabad and the mere fact that the appellate authority resides in another State and, therefore, outside the jurisdiction of this High Court is immaterial. He relied for this proposition on a number of cases decided prior to the aforementioned decision of the Supreme Court. The following observation of their Lordships in the above case is sufficient answer, in our opinion, to the contention urged for the Petitioner:

The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority ''within the territories'' in relation to which the High Court exercises jurisdiction.

And dealing with the case of AIR 1943 164 (Privy Council) (B), which was cited before us also in support of the Petitioner''s contention, their Lordships remarked:

It will thus be seen that the decision is no authority for dispensing with the necessity of the presence or location within the local limits of the Court''s jurisdiction of the person or authority to whom the writ is to be issued, as the basis of its power to issue it.

And again:

In any case the decision did not turn on the construction of a statutory provision similar in scope, purpose or wording of Article 226 and is not of much assistance in the construction of that Article.

In the present case, there is the further point that the Petitioner specifically prays for quashing the order of the Custodian-General throwing out his revision on the preliminary ground of limitation. It is obvious that if we set aside the order, we would have to issue a direction to him to proceed with Petitioner''s revision application on merits. It is clear that this direction cannot be carried out by any authority inside the State of Hyderabad.

We accordingly dismiss the application. In the special circumstances of the case, we pass no order as to costs.