Ebrahim Aboobakar And Another vs Custodian General Ofevacuee Property

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 4 of 1952

Decision Date: 26 May 1952

Coram: Mehr Chand Mahajan, M. Patanjali Sastri, B.K. Mukherjea, Vivian Bose

In this matter, the petitioners Ebrahim Aboobakar and another challenged a decision of the Custodian General of Evacuee Property. The case was filed before the Supreme Court of India and the judgment was delivered on 26 May 1952. The opinion was authored by Justice Mehr Chand Mahajan, who was joined by Justices M. Patanjali Sastri, B. K. Mukherjea and Vivian Bose. The bench therefore comprised Justice Mahajan, Justice Sastri, Justice Mukherjea and Justice Bose. The official citation of the decision is reported in 1952 AIR 319 and also as 1952 SCR 696. Various later reports refer to the case as 1953 SC 298, 1955 SC 233, 1957 SC 264, 1958 SC 398, 1961 SC 1312, 1970 SC 1727, 1973 SC 883, 1973 RF 2720 and 1989 RF 49. The statutory provisions that were in issue were sections 7 and 24 of the Bombay Evacuees (Administration of Property) Act, 1949, which was enacted by Ordinance No. XXVII of 1949.

The Court explained that a writ of certiorari may not be issued merely to set aside a decision of a lower court on the ground that the decision is erroneous. For such a writ to lie, it must first be shown that the authority which made the order acted without jurisdiction, exceeded its jurisdiction, or breached the principles of natural justice. The Court clarified that lack of jurisdiction may arise from the very nature of the subject-matter, meaning that the lower court might not possess authority to entertain the inquiry at all, or it may arise because an essential preliminary condition was missing, or because certain factual circumstances that are prerequisite to jurisdiction were absent. However, if the lower court did possess jurisdiction and simply made a mistake while exercising it, the aggrieved party must resort to the procedural remedies prescribed by law, because a court that has jurisdiction can decide both correctly and incorrectly. The Court also noted that where the legislature creates a tribunal with the power to decide facts, it may stipulate that the tribunal has jurisdiction only if a particular state of facts exists and is shown to it before it proceeds. In such a situation, the tribunal is not empowered to conclusively determine whether that state of facts exists; if it proceeds without that existence, its action can be questioned as a jurisdictional error. Conversely, the legislature may also grant the tribunal the authority to determine for itself whether the preliminary factual condition exists, and, upon finding it does, to continue with its functions.

The Court observed that the principle preventing a tribunal from creating its own jurisdiction by incorrectly finding certain facts does not apply to the present appeal. Generally, an appellate court possesses not only the power to review the correctness of decisions of lower courts, but also inherent authority to consider preliminary questions raised by the parties. Such jurisdiction forms an essential part of the appellate court’s constitutional role. It enables the court to decide issues such as the competence of the appeal, the standing of the appellant, and the nature of the order appealed against. Determinations concerning whether an appeal is properly filed, whether the appellant possesses locus standi, and whether the appeal is directed against a specific order all fall within the appellate court’s jurisdiction. The court also decides whether procedural requirements, such as filing the appeal in the correct form and within the prescribed time, have been satisfied. An order issued by an Additional Custodian under the 1949 Ordinance that refuses to declare a person to be an evacuee is classified as an order made under section 7. The same order also declares that the person's property is not evacuee property. Under section 24 of the Ordinance, an order of this kind is appealable to the appellate court. A person who has filed a written statement, produced evidence, and seeks an enquiry into whether he is an evacuee is considered a “person aggrieved” by the order that denies his evacuee status. The same individual also has locus standi to prefer an appeal against the order.

The appeal in this matter is identified as Civil Appeal No. 4 of 1952 and arises from the judgment and order of the High Court of Judicature for the Punjab at Simla dated 24 May 1951. The underlying proceeding was Civil Writ No. 15 of 1951. Counsel for the appellant was counsel for the petitioner, while the Attorney-General for India appeared as counsel for the respondent. The judgment was delivered on 26 May 1952 by Justice Mahajan. The case concerned Aboobaker Abdul Rahman, the father of the appellants, who owned substantial movable and immovable assets, including the Imperial Cinema located in Bombay. Following the Partition of India, he migrated to Karachi in September 1947 and purchased certain properties there during that month. Information supplied by a person named Tek Chand Dolwani prompted the Additional Custodian of Evacuee Property to commence proceedings under the Bombay Evacuees (Administration of Property) Act, 1949 against Aboobaker in approximately July 1949. During the pendency of those proceedings, the Government of India enacted Ordinance No. XXVII of 1949, which subsequently came into force. Consequently, on 16 December 1949, the Additional Custodian issued a notice to Aboobaker under section 7 of the Ordinance requiring him to show cause why his property should not be declared evacuee property. The appellant responded to the notice, filed a written statement, and produced evidence in support of his claim that he was not an evacuee. The Additional Custodian thereafter held an enquiry, recorded the appellant’s statement, examined the evidence presented by the informant, and on 8 February 1950 adjudicated that the appellant was not an evacuee. On the same day the Custodian issued a further notice invoking section 19 of the Ordinance, asking the appellant to show cause why he should not be declared an intending evacuee. The appellant was adjudicated as an intending evacuee on 9 February 1950. Subsequently, the informant, Tek Chand Dolwani, who was interested in the appellant’s adjudication as an evacuee, filed an appeal before the Custodian General of India seeking a declaration that the appellant should be treated as an evacuee.

Further notice was issued on 11 January 1950 requiring Aboobaker to show cause why his property should not be declared evacuee property. In response to those notices, the Additional Custodian of Evacuee Property conducted an inquiry, recorded Aboobaker’s statement, examined additional evidence produced by the informant Tek Chand Dolwani, and considered the written statement filed by Aboobaker. After this examination, on 8 February 1950 the Custodian adjudicated that Aboobaker was not an evacuee. Nevertheless, on the same day the Custodian issued another notice demanding that Aboobaker show cause why he should not be declared an intending evacuee under section 19 of the Ordinance. The following day, 9 February 1950, the Custodian adjudicated Aboobaker as an intending evacuee. On 31 March 1950, the informant Dolwani, who had a personal interest in the adjudication, filed an appeal against the 9 February order before the Custodian General of India, praying that Aboobaker be declared an evacuee and that, as the first informant, Dolwani should be allotted the cinema property. The Ordinance was superseded on 18 April 1950 by Act XXXI of 1950. The appeal was heard by the Custodian General in New Delhi on 13 May 1950. During that hearing, counsel for Aboobaker argued that, having been declared an intending evacuee and having accepted that order, no further appeal lay from it, and that Dolwani was not a person aggrieved by any order of the Additional Custodian and therefore lacked standing under section 24 of Ordinance XXVII 1949. The hearing concluded on 31 May 1951. The respondent’s written statement claimed that the order was dictated and signed by him on the same day as the hearing’s conclusion, bearing that date. Aboobaker died suddenly on 14 May 1950, a Sunday, and the respondent read to Aboobaker’s counsel on 15 May 1950 the order dated 13 May 1950. By that order the respondent held that the appeal, purportedly arising from the 9 February 1950 declaration of Aboobaker as an intending evacuee, was in substance directed against the 8 February 1950 decision under section 7 of the Ordinance which had refused to declare Aboobaker’s property evacuee property. The respondent further held that Dolwani, being interested in the matter, possessed locus standi to prefer the appeal. After overruling the appellants’ preliminary objections, the hearing of the appeal was adjourned and a further inquiry was ordered. Notices of the adjourned hearing were issued periodically to the two appellants.

In this matter the two appellants were notified on 30 February 1951 that the pending appeal would be scheduled for hearing on 7 March 1951. The appellants asserted that they were among the legal heirs of the deceased Aboobaker. It was explained that two of Aboobaker’s sons had migrated to Pakistan; the third son, who was one of the appellants, and the only daughter, who was the other appellant, remained in India. Feeling aggrieved by the respondent’s order dated 1 May 1950, the appellants instituted a petition before the High Court of the State of Punjab at Simla on 26 February 1951. The petition was filed under article 226 of the Constitution and sought a writ of certiorari to set aside and quash the respondent’s order, together with a writ of prohibition or mandamus directing the respondent to refrain from proceeding with the hearing of the appeal on 7 March 1951 or on any other date. In support of the petition the appellants advanced three specific contentions. First, they contended that the appeal filed by Tekchand Dolwani before the respondent was in substance an appeal against the order of 9 February 1950 and not an appeal against the conclusion reached on 8 February 1950; consequently, because that order was directed against Aboobaker rather than in his favour, Tekchand possessed no right of appeal and the respondent lacked jurisdiction to entertain or dispose of it. Second, they argued that Tekchand was not a person aggrieved by the 8 February 1950 order within the meaning of section 24 of the Ordinance, and therefore he was not entitled to lodge an appeal; as no appeal lay at his instance, the respondent again had no jurisdiction to entertain or order anything in relation thereto. Third, they submitted that after Aboobaker’s death on 14 May 1950 the respondent’s jurisdiction to continue hearing the appeal or to make any further order was extinguished. The High Court, after hearing the petition, held that the order pronounced by the respondent on 15 May 1950 was not a nullity. The Court further concluded that the appeal presented by Tekchand was, in effect and substance, an appeal from the order dated 8 February 1950 issued by the Additional Custodian, and that Tekchand qualified as a person aggrieved within the meaning of section 24 of the Ordinance. Accordingly, the High Court dismissed the petition with costs, but on 27 June 1950 it granted the appellants leave to appeal to this Court under article 133 of the Constitution. While the appeal was pending before this Court, the respondent on 30 July 1951 finally rendered orders on Tekchand’s appeal, finding that Aboobaker was an evacuee and that his property was to be declared evacuee property. A further petition under article 226 seeking to quash that order is presently pending before the High Court of the State of Bombay. The counsel for the appellants, before this Court, reiterated the earlier points, emphasizing that the respondent’s hearing of the appeal was against the order of 9 February and not the order of 8 February, that the 8 February order was not appealable under section 24 because it did not declare property as evacuee, that Tekchand lacked locus standi as a person aggrieved within the meaning of section 24, and that the order pronounced on 15 May after Aboobaker’s death was a nullity.

The counsel submitted four separate points. First, it was argued that the appeal was directed against the order dated the 9th and not against the order dated the 8th, and that because no appeal had been lodged against the order of the 9th, the respondent court lacked jurisdiction to hear the matter. The second point assumed, for the sake of argument, that the appeal had been filed against the order of the 8th. It was contended that such an order was not appealable because section 24 of the Ordinance permits an appeal only against an order that declares property to be evacuee property, and not against a finding that a particular person is or is not an evacuee. Consequently, the counsel argued that no competent appeal could be entertained by the respondent. The third submission maintained that Tekchand was not a “person aggrieved” within the meaning of section 24 of the Ordinance, and therefore he possessed no locus standi to prefer the appeal; accordingly, the respondent court had no jurisdiction to entertain the appeal on his behalf. The fourth contention advanced the view that the order pronounced on the 15th of May, after the death of Aboobaker, was a nullity.

The High Court judgment recorded that Shri M.L. Manekshah conceded that Aboobaker’s death “does not in any way affect the validity of the order pronounced by the Custodian General on 15 May 1950.” The counsel before this Court adopted essentially the same position, relying on the respondent’s affidavit which affirmed that the order in question had been dictated on 13 May 1950 and signed on the same date. The High Court, applying the principle of Order XXII, Rule 6 of the Code of Civil Procedure, held that an order that has been written but not yet pronounced may be pronounced even after the death of the party affected by it. In view of these authorities and facts, the last contention raised by the counsel was found to require no further consideration and was therefore rejected.

A broader issue had been raised in the petition pending before the High Court of the State of Bombay, namely whether the property of Aboobaker could be declared evacuee property after his death, given that the property would have devolved upon his heirs. That issue was not raised in the present proceedings, and no request was made to this Court to decide it. Consequently, the question remains open and is not addressed in the present order.

The remaining three questions presented to this Court must be examined in the context of their relevance to a writ of certiorari. Unless those questions are of a nature that would render the respondent’s decision dated 13 May 1950 a nullity, they cannot form the subject-matter of a writ of certiorari. It is clear that a writ of certiorari cannot be issued simply to quash a decision of an inferior court that lies within its jurisdiction merely because the decision is erroneous. To obtain such a writ, it must be shown that the authority that passed the order acted without jurisdiction, exceeded its jurisdiction, or violated the principles of natural justice. A lack of jurisdiction may arise from the character of the subject-matter, indicating that the inferior court did not have authority to entertain the entire inquiry or any part of it. It may also stem from the absence of an essential preliminary requirement or from other conditions precedent that are necessary for the court to assume jurisdiction.

The Court explained that a court’s jurisdiction may be conditioned on the existence of certain facts that are separate from, but prerequisite to, the matter that the court is required to try. Those prerequisite facts must be established before the court can lawfully assume jurisdiction. However, when it is finally determined that the court possessed jurisdiction, any error it commits while exercising that jurisdiction does not invalidate the court’s authority; instead, the aggrieved party must pursue the remedial procedures that the law provides for correcting a mistaken decision. The three questions that were presented for consideration in this appeal did not, in the Court’s view, affect the jurisdiction of the Court of Appeal nor its power to entertain those questions. One argument advanced was that a court of limited jurisdiction cannot expand its own jurisdiction by erroneously concluding that a collateral fact, which is essential to the jurisdictional limit, exists. The argument further asserted that the matters raised in the appeal were merely collateral to the merits of the case and therefore fell outside the court’s jurisdiction. The Court referred to the observation of Lord Esher, M.R., in Reg. v. Commissioner Income Tax(1), noting that the principle articulated there is straightforward, yet its practical application often leads to confusion.

The Court then cited the analysis of the learned Master of the Rolls, who divided relevant cases into two distinct categories. In the first category, an inferior court, tribunal, or body is empowered by statute to decide factual issues only after the legislature has prescribed a specific set of facts that must be established before the body can act. In such a situation, the body is not authorized to determine conclusively whether those facts exist; if it proceeds without those facts being proven, its actions are liable to be challenged as acting without jurisdiction. In the second category, the legislature may confer upon the tribunal or body a broader jurisdiction that includes the authority to ascertain both the preliminary facts and the substantive issues. When the legislature explicitly grants such a tribunal the power to decide whether the preliminary facts exist, and also decides that no appeal lies against that determination, the tribunal’s decision on those facts is final and cannot be reviewed by an appeal. The Court quoted the Master of the Rolls that, “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… In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal 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 jurisdiction.” (1) 21 Q.B DD. 313.

The tribunal that was created to hear appeals under section 24 was established by a provision that said any person who is dissatisfied with an order made under section 7, section 16, section 19 or section 38 may file an appeal in the manner and within the time prescribed. The appeal must be made (a) to the Custodian when the original order was issued by a Deputy or Assistant Custodian, or (b) to the Custodian-General when the original order was issued by the Custodian, an Additional Custodian or an Authorized Deputy Custodian. In the same way that all courts of appeal that deal with civil matters have a broad statutory remit, the respondent in this case was given the status of an appellate court in the widest possible terms, and the legislature did not attach any condition that the exercise of its jurisdiction would depend on the existence of particular facts. Normally a court of appeal not only reviews the correctness of the decision of the lower court as a court of error, but also has the inherent power to consider any preliminary issues that the parties raise. Whether an appeal is proper, whether a party has standing to file it, whether the appeal is effectively against one order or another, and whether it has been filed in the correct form and within the prescribed time are all matters that such an appellate tribunal must decide. This type of tribunal falls within class 2 of the Master of the Rolls classification. Accordingly, the Court agreed that the order of the High Court of Punjab, which held that a writ of certiorari could not be issued against the respondent to set aside the order dated 13 May 1950, was correct. The Court further held that none of the submissions presented by the parties possessed any merit. To examine the argument that Tekchand Dolwani was not a “person aggrieved” within the meaning of section 24, the Court looked at the rules made under the Ordinance. Rule S (5) provides that any person or persons claiming an interest in the enquiry or in the property that is to be declared evacuee may file a written statement in reply to the written statement filed by those who claim that the property should not be declared evacuee. The Custodian must then, either on the same day or on a later day to which the hearing is adjourned, hear any evidence that the party showing cause may produce as well as any evidence that the interested party may adduce. In the proceedings before the Additional Custodian, Tekchand Dolwani filed a reply to the written statement of Aboobakar and presented evidence supporting his position that the property in question was evacuee property.

Tekchand Dolwani was the first informant who brought to the attention of the Custodian concerned that the property of Aboobaker was evacuee property. In view of the order issued by the Ministry of Rehabilitation, the first informant was entitled to receive the first consideration in the allotment of that property. Consequently, the Additional Custodian was bound to hear Tekchand Dolwani on the truth and validity of the information he had supplied. The Court observed that when a person is given a right to contest a matter and his contention is rejected, it is not proper to say that he is not a person aggrieved by the order. The Court held that Tekchand Dolwani was certainly aggrieved by the order that disallowed his contention. Section 24 of the Ordinance provides a right of appeal to any person aggrieved by an order made under section 7. The conclusion reached by the Additional Custodian on 8 February 1950, that Aboobaker was not an evacuee, amounted to an order under section 7, and therefore Tekchand Dolwani was a person aggrieved by that order.

Section 43 bars the jurisdiction of the civil court in matters that fall within the jurisdiction of the Custodian. Clause 1(a) of that section states: “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.” The Court therefore concluded that the Additional Custodian must find and adjudicate the question of whether a particular property is or is not evacuee property and whether a particular person is or is not an evacuee, and that such adjudication falls within the ambit of section 7 of the Ordinance. The Court also referred to the observations of Lord Esher M.R. in In re Lamb, Ex parte Board of Trade (1), where it was held that the term “person aggrieved” includes any person who makes an application to a court for a decision or any person who is brought before a court to submit to a decision, and who is dissatisfied by that decision. Similarly, Lord Justice Kay, in the same judgment, noted that the preliminary objection that the Board of Trade were not “persons aggrieved” was untenable because any party against whom a court’s decision is adverse is a person aggrieved. The Court therefore affirmed that Tekchand Dolwani qualified as a “person aggrieved” within the rule stated in the cited decision and that the respondent rightly possessed locus standi to prefer the appeal.

In this case the Court observed that when two parties are litigants before a High Court and the judgment goes against one of them, it is impossible to say that the disappointed party is not a “person aggrieved” by that judgment, and the Court was clearly of the view that the Board qualified as “persons aggrieved” by the decision at hand. The Court then addressed the argument that the decision was not an “order”. It explained that when the High Court declares a right and simultaneously orders that the costs of the application be paid, the declaration and cost order are drawn up, sealed with the Court’s seal and placed on the record, just as every High Court order is, and therefore such a declaration with cost order indisputably constitutes an order of the Court. Accordingly, the Court held that Tekchand Dolwani was a person aggrieved within the rule explained in the earlier decision and that the respondent correctly found that he possessed locus standi to prefer an appeal.

The next submission argued that the appeal had been filed against the order dated 9 February rather than against the order dated 8 February, and that consequently the respondent lacked jurisdiction to hear the appeal. The Court noted that deciding whether the substance of the appeal concerned the order of the 8th or the order of the 9th lay squarely within the respondent’s competence and did not raise any jurisdictional question. Having examined the memorandum of appeal filed by Tekchand Dolwani, the Court concurred with the High Court’s finding that the appeal was, in effect and in substance, an appeal from the Additional Custodian’s order issued on 8 February. The relief sought in the appeal related solely to that 8 February order, and the grounds of appeal were confined to that matter.

The only defect identified by the Court was a misdescription of the order attacked in the memorandum of appeal. It reiterated the settled principle that such descriptive errors cannot be allowed to prejudice a party’s right. The Court explained that the two orders, made on consecutive days under different provisions of the Ordinance, were inter-linked; the later order was merely a consequence of the conclusion reached in the earlier order. Consequently, the memorandum’s reference to the appeal being against the 9 February order could not be treated as a serious error that warranted dismissal.

The final point raised before the Court had not been addressed by the High Court, and therefore the Court could not rely on any prior decision on that issue. The contention was that no appeal was permissible against the Additional Custodian’s 8 February order declining to declare Aboobaker an evacuee, arguing that the Custodian’s only authority under section 7 was to issue an order declaring property as evacuee property, and that such a declaration alone was appealable under the relevant provision. The Court found this contention without merit, observing that section 24 confers a right of appeal against all orders made under section 7, without limiting the nature of those orders, and therefore the appeal against the 8 February order was proper.

The Court held that the submission advanced by the respondents was without merit and could not be sustained. Section 24 of the Ordinance grants an unconditional right of appeal against every order that is issued under the authority of section 7. The provision does not limit the right of appeal to any particular class or nature of orders made pursuant to section 7. In any proceeding instituted under section 7, the initial question for determination is whether the individual in question falls within the definition of “evacuee” contained in the Ordinance. If the individual is found to satisfy that definition, then all property held by him automatically becomes evacuee property. The civil courts are expressly prohibited from entertaining any issue concerning whether a particular property is evacuee property. They are also barred from adjudicating any right or interest that an evacuee might claim in that property. Consequently, the determination made by the Custodian, whether it affirms or rejects the status of a person as an evacuee, constitutes an adjudication under section 7. Because such a determination is an order made under section 7, it is automatically subject to appeal under the authority of section 24. Thus, every decision of the Custodian, irrespective of its content, triggers the appellate jurisdiction conferred by section 24.

The respondents further argued that when the Custodian concluded that a person was not an evacuee, the Custodian was not empowered to issue any order and could only initiate the proceedings. The Court rejected that argument as untenable and explained that the power to decide a matter inherently produces an order, even if the decision is negative. When an individual claims a right to have his property declared evacuee property, he is permitted to file a written statement and to present evidence in support of his claim. The adjudication rendered by the authority, whether favorable or unfavorable to the claimant, must therefore take the form of an order. The Court drew an analogy to the Federal Court decision in Rayarappan Nayanar v. Madhavi Amma (1), which interpreted the Code of Civil Procedure provisions contained in Orders XL Rule 1 and XLIII Rule 1(s). Order XLIII Rule 1(s) provides that any order made under Order XL Rule 1 is appealable, even though Order XL Rule 1 itself merely authorises the appointment of a receiver. The Federal Court held that the order removing a receiver was appealable because the power to remove the receiver fell within the broader power to appoint a receiver. The present matter, the Court observed, stands on still higher ground because the authority to grant a specific relief innately includes the authority to refuse that relief. Accordingly, the order issued by the Additional Custodian refusing to declare Aboobaker an evacuee is an order made under section 7. The refusal to deem his property as evacuee property is likewise covered by section 7 and is therefore appealable under section 24. Because the appeal was filed against an order that is properly appealable, the Court concluded that the appeal fails and dismissed it with costs. The appeal was dismissed, and the agents for the parties were recorded as Rajindar Narain for the appellants and P. A. Mehta for the respondent. The citation to the Federal Court case is (1) [1949] F.C.R. 667.