Case: M/S. Haji Esmail Noor Mohammad &amp; Co. And Ors Vs. The Competent Officer, Lucknow &amp; Ors

by the State Government, had his main office at Mussoorie in Uttar Pradesh, heard the appeal at Allahabad and dismissed it there. Later on, his main office was shifted to Delhi. Section 2 (a) of the Evacuee Interest (Separation) Act, l951 (Act No. 64 of 1951) defines "appellate officer thus :"appellate" officer means an officer appointed as such by the State Government under S. 13." 14. Under S. 13 of the said Act, the State Government with the approval of the Central Government may, by notification in the Official Gazette, appoint as many appellate officers as may be necessary for the purpose of hearing appeals against the orders of the competent officers and an appellate of officer Shall have jurisdiction over such local are or areas as may be specified in the notification. Sections 14 to 18 provide for filing of appeals and also define the powers of the competent appellate officers in the matter of disposing of those appeals. The Appellate Officer, therefore, derives his jurisdiction under a State statute, he is appointed by the State Government, though in consultation with the Central Government, and exercises his jurisdiction within the territorial limits of the High Court. It appears that the same officer is also appointed by other States and that for convenience his office it now situated at Delhi, though he dispose of appeals pertaining to each State only in that State. 15. On these facts the question arises whether the High Court of Allahabad has jurisdiction to issue a writ under Art. 226 of the Constitution against the Appellate Officer. It has now been well settled that under Art. 226 of the Constitution, before it was amended, the High Court had no jurisdiction to issue a writ thereunder against a person or authority unless the person or authority resided or was located within the territorial jurisdiction of the appropriate High Court: See Election Commission, India v. Saka Venkata Rao. I953 .SCR 1144 (AIR 1953 SC 210 ) and Lt. Col. Khajoor Singh v. Union of India, 1961-2 SCR 828 : (AIR 1961 SC 532 ). 16. In the context of jurisdiction of the High Court to issue a writ of certiorari against orders made by a hierarchy of tribunals or authorities, two situations arise, namely, (i) where the order of an appellate authority or tribunal, having its office outside the territorial jurisdiction of the High Court, is a nullity, and (ii) where the order of the original authority within the territorial jurisdiction of the High Court merges with that of the appellate authority outside its territorial jurisdiction, in the former case the appropriate High Court can issue a writ against the order of the original authority and in the latter it cannot : see Thangal Kunjo Musaliar v. M. Venkatatchalam Potti, 1955-2 SCR 1196 : (AIR 1956 SC 246 ) Collector of Customs Calcutta v. East India Commercial, Co. Calcutta, 1963-2 SCR 563 : (AIR 1963 SC 1124 ) and Shriram Jhunjhunwala v. State of Bombay, AIR 1962 SC 670 . This Court has also held that in all cases after the appellate authority has deposed of the appeal, the operative order was of the final authority whether it has reversed, modified or confirmed the original order : see 1963 SCR 563 : (AIR 1963 SC 1124 ).Though Das, C. j in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 at p. 610: (AIR 1958 SC 86 at p. 94), was not able to equate the orders made in departmental enquiries with decrees in civil Courts in the context of the doctrine of merger, this Court in 1963-2 SCR 563 : (AIR 1963 SC 1124 ), distinguished that case with the following observations at p. 573 (of SCR): (at p. 1127 of AIR) :"That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must, therefore, be confined to the special facts with which it was dealing." In that case the Court held that, as the Central Board of Revenue which had confirmed the order of the Collector of Customs had its office in New Delhi, the Calcutta High Court could not issue a Writ against it. But in none of the cases the Court considered a situation similar to that now presented to us. They dealt with the case of an appellate authority or tribunal which had been appointed by the Central Government and was disposing of only statutory appeals or other proceedings in a place outside the territorial jurisdiction of the concerned High Court though in one of the cases, i.e., 1953 SCR 1144 : (AIR 1953 SC 210 ), the Central Authority for convenience heard the parties and made the order within the territorial jurisdiction of the High Court. In all those cases the appellate authority, both factually and legally, had its residence or location outside the territorial jurisdiction of the High Court. But in the present case, the appellate authority, though for convenience is having its head office in New Delhi is factually and legally functioning under the State Act within the territorial jurisdiction of the High Court. To hold that such an authority which is appointed by the State Government and holds office, entertains and disposes of appeals within the State is outside the jurisdiction of the High Court is to carry technicality beyond reasonable limits. One can hold reasonably that such an appellate authority is located within the territorial limits of the High Court for the purpose of disposing of the appeals under the Act. This is a converse case where legally and factually the appellate authority is located in the State though for convenience it also holds office in New Delhi, as presumably the same officer has been appointed appellate officer by other States under different Acts. We, therefore, hold that the High Court has jurisdiction to issue a writ in appropriate cases against such an authority under Art 226. 17.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In the instant case, from the narration of the facts it is clear that Abdul Latif Hajee Esmail, in view of the disturbed conditions, went away to Pakistan in the year 1948 and therefore, he was an evacuee within the meaning of the U. P. Ordinance 1 of 1949 . His property , i. e., his interest in the partnership business, automatically vested under the Ordinance in the Custodian. The Deputy Custodian of Evacuee Property Kanpur. Issued notice to the firm on September 7, 1949, informing the firm that the Kanpur property of the firm would be taken possession. The said vesting was deemed to have taken place under the Central Ordinance 27 of 1949 and the Central Act 31 of 1950. Subsequent proceedings were taken under the provision of the said Central Ordinance and Act.As stated above, the automatic vesting of Abdul Latif Hajee Esmails share in the firm was continued by Central Ordinance 27 of 1949 and Central Act 31 of 1950 by the deeming provisions contained therein. Therefore, no question of issuing further, notice or making a declaration that the said interest was evacuee property under S. 7 (1) of the Ordinance arises. Section 7 only applies to properties other than those which been vested automatically in the Custodian. Such a vesting cannot be reopened under the Central Ordinance or the Central Act, for it has already vested thereunder by fiction. It follows that the petitioners have no interest in the share of Abdul Latif Hajee Esmail in the firm which had vested in the CustodianThat apart, after the Central Act 31 of 1950 came into force on April 17,1950, the Deputy Custodian of Evacuee Property (Judicial) Allahabad, made an order an order on the objection filed by the firm . Therein he held that the share of Abdul Latif Hajee Esmail in the firm i.e., 5 annas out of 19 annas and 3 pies, vested in ;the Custodian and on that finding declared it to be evacuee property.That order had become final. The firm did not take any further proceedings under the Act to set aside that order which had become final. It is no longer open to it to question this finding. It follows that the petitioners have no fundament right in regard to the interest of Abdul Latif Esmail in the partnershipBut this will not dispose of the petition. The petition is not solely based upon the fundamental right in respect of the interest of Abdul Latif Hajee Esmail, for the allegations made in the petition and the reliefs asked for disclose that the petitioners case is that the fundamental right of the firm and its partners is infringed by the impugned orders in the manner mentioned in the petition. But the reliefs asked for are similar to those asked for in the appeals. As we are remanding the appeals to the High Court for decision on merits the other question raised in the writ petition can more conveniently be disposed of only after the High Court gives its findings on the other points raised in the appeals. If the appeals succeed in the High Courts , this writ petition will become unnecessary; if they fail, the finding therein will be binding in the writ petition. In that event, if appeals are filed in this Court, the question will be finally decided therein. In these circumstances we dismiss the writ, petition without prejudice to the petitioners personal rights which we will presently consider in the appeals. This order will be subject to the final orders that may be passed in the petitions, by the High Court pursuant to the order of remand that we are .making in the appeals. There will be no order as to costsIn that case the Court held that, as the Central Board of Revenue which had confirmed the order of the Collector of Customs had its office in New Delhi, the Calcutta High Court could not issue a Writ against it. But in none of the cases the Court considered a situation similar to that now presented to us. They dealt with the case of an appellate authority or tribunal which had been appointed by the Central Government and was disposing of only statutory appeals or other proceedings in a place outside the territorial jurisdiction of the concerned High Court though in one of the cases, i.e., 1953 SCR 1144  : (AIR 1953 SC 210  ), the Central Authority for convenience heard the parties and made the order within the territorial jurisdiction of the High Court. In all those cases the appellate authority, both factually and legally, had its residence or location outside the territorial jurisdiction of the High Court. But in the present case, the appellate authority, though for convenience is having its head office in New Delhi is factually and legally functioning under the State Act within the territorial jurisdiction of the High Court. To hold that such an authority which is appointed by the State Government and holds office, entertains and disposes of appeals within the State is outside the jurisdiction of the High Court is to carry technicality beyond reasonable limits. One can hold reasonably that such an appellate authority is located within the territorial limits of the High Court for the purpose of disposing of the appeals under the Act. This is a converse case where legally and factually the appellate authority is located in the State though for convenience it also holds office in New Delhi, as presumably the same officer has been appointed appellate officer by other States under different Acts. We, therefore, hold that the High Court has jurisdiction to issue a writ in appropriate cases against such an authority under Art 226.