Civil Appeal No 4 of 1952
Appeal from the judgment and order of the High Court of Judicature for the Punjab at 698 Simla dated 24th May 1951 in Civil Writ No 15 of 1951
ML Manekshaw P N Bhagwati with him for the appellant
MC Setalvad Attorny General for India G N Joshi with him for the respondent
May 26
The Judgment of the Court was delivered by MAHAJAN J
This is an appeal from the judgment of the High Court of Judicature of the State of Punjab dated the 24th May 1951 dismissing the petition filed by the appel lants for writs of certiorari prohibition and mandamus against the respondent
Aboobaker Abdul Rahman the father of the appellants was possessed of considerable movable as well as immovable properties including a cinema theatre known as the Imperi al Cinema
situateat Bombay
Soon after the partition of India he went to Pakistan and was in Karachi in the month of September 1947 where he purchased certain properties in that month
On information supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee Property the Addi tional Custodian started proceedings under the Bombay Evacu ees Administration of Property Act 1949 against Aboobak er in or about the month of July 1949
During the pendency of the said proceedings the Government of India Ordinance XXVII of 1949 came into force
Thereupon on the 16th Decem ber 1949 the Additional Custodian issued a notice to the said Aboobaker under section 7 of the Ordinance and a fur ther notice on the 11th January 1950 to show cause why his property should not be declared to be evacuee property
Pursuant to the said notices an enquiry was held by the Additional Custodian of Evacuee Property who after recording the statement of the said Aboobaker and examining some other evidence produced by the said Tekchand Dolwani and taking into consideration the written statement filed by him adjudicated on the 8th February 1950 that 699 the said Aboobaker was not an evacuee
He however issued another notice to Aboobaker on the same day calling upon him to show cause why he should not be declared an intending evacuee under section 19 of the said Ordinance
On the 9th February 1950 he adjudicated him as an intending evacuee
On the 31st March 1950 Tekchand Dolwani being the informant and interested in the adjudication of the said Aboobaker as an evacuee filed an appeal against the order of the 9th February to the respondent The Custodian General of India praying for an order declaring the said Aboobaker an evacuee and that he being the first informant should be allotted the said cinema
On the 18th April
1950 the Ordinance was replaced by Act XXXI of 1950
The appeal was heard by the respondent in New Delhi on the 13th May 1950
At the hearing it was urged on behalf of Aboobaker that he having been declared an intending evacuee and he having accepted that order no appeal lay therefrom and that the said Tekchand Dolwani was not a person ag grieved by any order passed by the Additional Custodian and therefore had no locus standi to appeal under the provisions of section 24 of Ordinance XXVII of 1949
The hearing of the appeal was concluded on the lath May 1951 and it is alleged in the written statement of the respondent that the order was dictated by him on the same day after the conclusion of the hearing and was also signed by him and it bore that date
Aboobaker suddenly died on the 14th May 1950 which was a Sunday and the respondent pronounced the order written on the 13th to the counsel of Aboobaker on the 15th May 1950
By this order the respond ent held that the appeal purporting to be from the order passed by the Additional Custodian on the 9th February 1950 declaring the said Aboobaker an intending evacuee in effect and in substance was directed against the order made on the 8th February in the proceedings started under section 7 of the Ordinance declining to declare the said Aboobaker s property as evacuee property
700 He further held that the said Tekchand Dolwani was interest ed in the appeal and had locus standi to prefer it
Having overruled the preliminary objections raised by the appel lants the hearing of the appeal was adjourned and further inquiry was directed to be made in the matter
Notices of the adjourned hearing of the appeal were given from time to time to the two appellants
On the 30th February 1951 they were informed that the appeal would be heard on the 7th March 1951
The two appellants allege that they are some of the heirs enti tled to the estate of the said Aboobaker
Two of his sons migrated to Pakistan and one of the appellants is his third son and the other appellant is his only daughter
Being aggrieved by the order of the respondent dated the lath May 1950 the appellants filed a petition in the High Court of the State of Punjab at Simla on the 26th February 1951 under article 226 of the Constitution praying for a writ of certiorari for quashing and setting aside that order and for a writ of prohibition or mandamus directing the said respondent to forbear from proceeding with the hearing of the said appeal on the 7th March 1951 or on any other date or dates
The appellants raised the following contentions in the petition 1
That the appeal preferred by Tekchand Dolwani before the respondent was in terms an appeal against the order of the 9th February 1950 and not an appeal against the conclusion reached on the 8th February 1950 and inas much as the said order was made against Aboobaker and not in his favour Tekchand had no right of appeal against the same and the respondent had no jurisdiction to entertain it or make any order therein
That Tekchand was not a person aggrieved by the order dated the 8th February 1950 within the meaning of section 24 of the Ordinance and was not entitled to appeal against the said order and inasmuch as no appeal lay at his instance the respondent had no jurisdiction to entertain it or make any order therein
701 3
That after the death of Aboobaker on the 14th May 1950 the respondent ceased to have jurisdiction to proceed with the hearing of the appeal or make any order therein
The High Court held that the order of the respondent pronounced on the 15th May 1950 was not a nullity and the appeal preferred by Tekehand was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February 1950 and that Tekchand was a person aggrieved within the meaning of section 24 of the Ordi nance
It accordingly dismissed the petition with costs but on the 27th June 1950 granted him leave to appeal to this Court under article 133 of the Constitution
On the 30th July 1951 during the pendency of the appeal in this Court the respondent finally pronounced orders on the appeal of Tekchand and held that Aboobaker was an evacuee and his property was declared evacuee property
A petition under article 226 for quashing
this order is pending in the High Court of the State of Bombay
The learned counsel for the appellants canvassed the following points before us 1
That the appeal to the respondent was against the order of the 9th and not against the order of the 8th and as no appeal lay against the order of the 9th the respondent had no jurisdiction to hear it
That assuming that the appeal was preferred against the order of the 8th that order was not an appealable order inasmuch as section 24 allows an appeal against an order declaring properties evacuee properties and not against any conclusion that a certain person is or is not an evacuee and thus no appeal was Competent at all which could be heard by the respondent
That Tekchand was not a person aggrieved within the meaning of section 24 of the Ordinance and had no locus standi to prefer the appeal and the respondent had no juris diction to entertain it at his instance
702 4
That the order pronounced on the 15th after the death of Aboobaker was a nullity
It is mentioned in the judgment of the High Court that Shri ML Manekshah conceded that the death of Aboobaker does not in any way affect the validity of the order pro nounced by the Custodian General on the 15th May 1950
The learned counsel adopted practically the same attitude before us in view of the affidavit of the respondent in which it was affirmed that the order in question was dictated on the 13th May 1950 and was signed on the same date
the High Court on the principle of Order XXII Rule 6 Code of Civil Procedure held that an order written but not pronounced could be pronounced even after the death of the party af fected
In these circumstances the last contention of the learned counsel does not require any further consideration and is rejected
The larger question that has been raised in the petition pending before the High Court of the State of Bombay that the properties of Aboobaker could not be declared evacuee properties after his death as they had devolved on his heirs was not raised in these proceedings and we have not been invited to decide it
That being so the question is left open
The remaining three questions canvassed before us unless they are of such a nature as would make the decision of the respondent dated the 13th May 1950 a nullity cannot be the subject matter of a writ of certiorari
It is plain that such a writ cannot be granted to quash the deci sion of an inferior court within its jurisdiction on the ground that the decision is wrong
Indeed 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
Want of jurisdiction may arise from the nature of the subjectmatter so that the inferior court might not have authority to enter on the inquiry or upon some part of it
It may also arise from the absence of some essential preliminary or upon the existence of some 703 particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it
But once it is held that the court has jurisdiction but while exercising it it made a mistake the wronged party can only take the course pre scribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly
The three questions agitated before us do not seem to be ques tions which bear upon the jurisdiction of the court of appeal or its authority to entertain them
It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision a point collateral to the merits of the case upon which the limit of its jurisdiction depends and that the questions involved in the appeal before the respondent were collateral to the merits of the case
As pointed out by Lord Esher MR in Reg
vs Commissioner Income Tax1 the formula enunciated above is quite plain but its application is often mislead ing
The learned Master of the Rolls classified the cases under two categories thus 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
It may in effect say that if a certain stab of facts exists and is shown to such tribunal or body before it proceeds to do certain things it shall have jurisdiction to do such things but not otherwise
There it is not for them conclusively to decide whether that state of facts exists and if they exercise the jurisdiction without its existence what they do may be questioned and it will be held that they have acted without jurisdiction
But there is another state of things which may exist
The legislature may entrust the tribunal on body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction and on finding that it doe exist to proceed further or do something more
Wher 1 21 Q B DD 313
704 the legislature are establishing such a tribunal or body with limited jurisdiction they also have to consider what ever jurisdiction they give them whether there shall be any appeal from their decision for otherwise there will be none
In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribu nal 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 juris diction
 The tribunal constituted to hear appeals under section 24 has been constituted in these terms Any person aggrieved by an order made under section 7 section 16 section 19 or section 38 may prefer an appeal in such manner and within such time as may be prescribed a to the Custodian where the original order has been passed by a Deputy or Assistant Custodian b to the Custodian General where the original order has been passed by the Custodian an Additional Custodian or an Authorized Deputy Custodian
 Like all courts of appeal exercising general jurisdic tion in civil cases the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts
Ordinarily a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error but by the very nature of things it has also jurisdiction to deter mine any points raised before it in the nature of prelimi nary issues by the parties
Such jurisdiction is inherent in its very constitution as a court of appeal
Whether an appeal is competent whether a party has locus standi to prefer it whether the appeal in substance is from one or another order 705 and whether it has been preferred in proper form and within the time prescribed are all matters for the decision of the appellate court so constituted
Such a tribunal falls within class 2 of the classification of the Master of the Rolls
In these circumstances it seems to us that the order of the High Court of Punjab that a writ of certiorari could not issue to the respondent quashing the order of the 13th May 1950 was right
We are further of the opinion that none of the contentions raised has any merit whatsoever
For a proper appraisal of the contention that Tekchand Dolwani is not a person aggrieved within the meaning of those words in section 24 of the Ordinance it is necessary to refer to the rules made under the Ordinance
It is provided in rule S 5 that any person or persons claiming to be interested in the enquiry or in the property being declared as evacuee property may file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared evacuee property the Custodian shall then either on the same day or on any subsequent day to which the hearing may be adjourned proceed to hear the evidence if any which the party appearing to show cause may produce and also evidence which the party claiming to be interested as mentioned above may adduce
In the proceedings before the Additional Custodian Tekchand Dolwani filed a reply to the written statement of Aboobaker and adduced evidence in support of the stand taken by him that the property of Aboobaker was evacuee property
Further Tekchand Dolwani was the first informant who brought to the notice of the Custodian concerned that the property of Aboobaker was evacuee property and in view of the order of the Ministry of Rehabilitation he was as a first informant entitled to first consideration in the allotment of this property the Additional Custodian was bound to hear him on the truth and validity of the information given by him
When a person is given a right to raise a contest in a certain matter and his contention is negatived then 706 to say that he is not a person aggrieved by the order does not seem to us to be at all right or proper
He is certain ly aggrieved by the order disallowing his contention
Sec tion 24 allows a right of appeal to any person aggrieved by an order made under section 7
The conclusion reached by the Additional Custodian on the 8th February 1950 that Aboo baker was not an evacuee amounted to an order under section 7 and Tekchand therefore was a person aggrieved by that order
Section 43 bars the jurisdiction of the civil court in matters which fall within the jurisdiction of the Custo dian
In clause 1 a it provides as follows 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 
 It is clear therefore that the Additional Custodian has to find and adjudicate on the question whether a certain property is or is not evacuee property and whether a certain person is or is not an evacuee and such an adjudication falls within the ambit of section 7 of the Ordinance
Lord Esher MR in In re Lamb Ex parte Board of Trade1 observed as follows  The meaning of the term person aggrieved  was ex plained by this Court in Ex parte Official Receiver U
It was there determined that any person who makes an applica tion to a Court for a decision or any person who is brought before a Court to submit to a decision is if the decision goes against him thereby a person aggrieved  by that decision Lord Justice Kay in the same judgment made the following observations The preliminary objection to the appeal is twoold 1 It is said that the Board of trade are not persons aggrieved 
They are persons whom the court was bound to hear If they wished to be heard on the validity of this objection and the decision has 1 2 707 been against them
How it can be said that they are not persons aggrieved  by the decision passes my understand ing
When two persons are in the position of litigants before the High Court and the decision of the Court goes against one of them how it can be said that he is not a person aggrieved  by the decision I cannot understand
I am clearly of opinion that the Board were persons ag grieved  by this decision
Then 2 it is said that the decision is not an order 
When the High Court makes a declaration of right and further orders the costs of the application to be paid which is the common form here used and that is drawn up and sealed with the seal of the Court and I suppose placed on record as all orders of the High Court are it seems to me that it is clearly an order of the Court
 In our opinion Tekchand Dolwani is a person aggrieved within the rule stated in the decision mentioned above and the respondent rightly held that he had locus standi to prefer the appeal
The next point urged was that the appeal had been pre ferred against the order of the 9th February and not against the order of the 8th and that the respondent had no juris diction to hear it
Whether the appeal in substance had been preferred against the order of the 8th or the order of the 9th was a matter which was certainly within the compe tence of the respondent to decide and does not involve any question of jurisdiction whatsoever
Be that as it may
we have examined the memorandum of appeal presented by Tekchand Dolwani to the respondent and it appears to us that the High Court was right when it held that the appeal was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February
The relief claimed in appeal concerns the order of the 8th and the grounds of appeal only relate to this matter
The only defect pointed out was in the description of the order attacked in appeal
It is well settled that such errors of description cannot be allowed to prejudice the right of a party
The two 708 orders of the 8th and 9th made on consecutive days though under different provisions of the Ordinance were inter linked and the latter order was merely consequential on the conclusion reached on the 8th and the description in the memorandum of appeal that the appeal was against the order of the 9th cannot be considered as really an error of a kind of which serious notice could be taken
The last point raised before us was not taken in the High Court and therefore we have not the benefit of that court s decision on the point
It was contended that no appeal lay against the order of the Additional Custodian dated the 8th February declining to declare Aboobaker an evacuee that the only order that the Custodian is entitled to pass under section 7 is an order declaring any property to be evacuee property and that it is this order and this order alone which is appealable under section 24
In our opinion this contention is without force
Section 24 con fers a right of appeal against all orders made under section 7 and does not specify the nature of the orders made appeal able
In an enquiry under section 7 the first point for adjudication is whether a certain person falls within the definition of the word evacuee given in the Ordinance
Ii he comes within the ambit of the definition then any property heldby him becomes evacuee property
The civil court is barred from entertaining or adjudicating upon the questions whether the property is or is not evacuee proper ty or whether an evacuee has any right or interest in any evacuee property
The decision of the Custodian whether in the affirmative or in the negative amounts to an adjudica tion under section 7 and is as such appealable
It was contended that when the Custodian reached the conclusion that a certain person is not an evacuee then he is not entitled to make any order whatsoever but has just to file the proceedings
This contention is unsound
When a certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead 709 evidence then the decision of the court whether favourable or unfavourable to him has to take the form of an adjudica tion and necessarily amounts to an order
Reference in this connection may be made to the decision of the Federal Court in Rayarappan Nayanar vs Madhavi Amma1 on an analogousprovision of the Code of Civil Procedure contained in Orders XL Rule 1 and XLIII Rule 1 s
Order XLIII Rule 1 s makes any order made under Order XL Rule 1 appealable while Order XL Rule 1 only empowers the court to appoint a receiver
It was held that the order removing a receiver was appealable under Order XLIII Rule 1 inas much as such an order fell within the ambit of Order XL Rule 1 and the power of appointing a receiver included the power of removing or dismissing him
The present case stands on a higher footing
The power of granting a certain relief includes obviously the power of refusing that relief
In our opinion therefore the order made by the Additional Custodian refusing to declare Aboobaker an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section 24
The result is that this appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The appellant company had been carrying on various classes of insurance business other than life insurance after its incorporation in 1941 but in 1956 the shareholders of the company passed a resolution by which all its insurance business was to be closed
Accordingly on application made by the company to the Controller of Insurance the certificate granted to it for carrying on insurance business was cancelled with effect from July 1 1957
in the meantime complaints against the company were being received by the Government of India who thereupon passed an order on July 17 1957 under section 33 of the  directing the Controller of Insurance to investigate the affairs of the company and to submit a report
The company challenged 11923 LR 51 IA 129
2 ILR 858 the legality of the order on the grounds 1 that as all its insurance business had been closed the Central Government had no jurisdiction to pass an order under section 33 of the Act which only enables the investigation of the affairs of an insurer who as defined in section 29 is one who is actually carrying on the business of insurance 2 that such an order could not be sustained under section 2D of the Act as that section was applicable only to those cases where an insurer was carrying on different classes of insurance business and had closed some of them but not all of them 3 that even if such order could be passed under section 33 read with s2D it could not be done in the present case as the company s liabilities did not remain unsatisfied or not otherwise provided for and 4 that in any case the order in question was invalid because it did not show on the face of it that the Central Government was prima facie satisfied that the liabilities had remained unsatisfied or not otherwise provided for Held 1 that the word  insurer  in section 33 of the  refers not only to a person who is actually carrying on the business of insurance but also to one who has subsequently closed it
2 that in section 2D of the Act an  insurer  means a person who was carrying on the business of insurance but has closed it
3that the word  class  in section 2D though used in the singular includes the plural also and the section is applicable to the case where an insurer who was carrying on different classes of insurance business closes all of them
4 that the expression  not otherwise provided for  in section 2D refers to liabilities in the nature of claims against the insurer whether the insurer admits them or not and whether a decree has been finally passed in respect of them or not
5 that under section 2D the satisfaction or  provision other wise  for the liabilities of insurance business which is closed does not refer to the deposit made under section 7 and has to be over and above that deposit
6 that though an order under section 33 read with section 2D of the Act should show on the face of it that the Central Government was prima  facie satisfied that the liabilities had remained unsatisfied or not otherwise provided for the fact that the order does not on the face of it show that the Central Government considered this aspect of the matter would not make it bad if in subsequent proceedings taken to challenge it it is shown that there were materials before the Central Government which would justify its coming to the prima facie conclusion that the liabilities had not been satisfied or otherwise provided for and therefore an investigation into the affairs was called for