Case: Lekhraj Satramdas, Lalvani Vs. N.M. Shah, Deputy Custodian-Cum-Managing Officer &amp; Others

1950 Act have not been repealed and still continue to be in force. Under S. 10 (2) (b) of the 1950 Act the Deputy Custodian is the proper authority to cancel the appointment of a Manager and the order-Exs. P-13 and P-16, dated December 18, 1959 is, therefore, legally valid. It is true that the order Exs. P-13 and P-16 is signed by Mr. Mathur as "the Managing Officer-cum-Deputy Custodian of Evacuee Property" but the order of removal of the appellant from the management is valid because Mr. Mathur had the legal competence to make the order under the 1950 Act, though he has also described himself in that order as "Managing Officer?. It is well-established that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rule, and the validity of the impugned order should be judged on a consideration of its substance and not of its form. The principle is that we must ascribe the act of a public servant to an actual existing authority under which it would have validity rather than to one under which it would be void (See Balakotaiah v. Union of India, 1958 SCR 1052 at p. 1059: (AIR 1958 SC 232 at p. 236).We, therefore, reject the argument of the appellant on this aspect of the case. 5. In our opinion, the order of the Deputy Custodian-P-13 and P-16-removing the appellant from the management of the business is not vitiated by any illegality. But even on the assumption that the order of the Deputy Custodian terminating the management of the appellant is illegal, the appellant is not entitled to move the High Court for grant of a writ in the nature of mandamus under Art. 226 of the Constitution. The reason is that a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions. In the present case, the appointment of the appellant as a Manager by the Custodian by virtue of his power under S. 10 (2) (b) of the 1950 Act is contractual in its nature and there is no statutory obligation as between him and the appellant. In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution. In Commr. of Income-tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408: (AIR 1936 PC 269 ), an application was made under S. 45 for an order directing the Commissioner to set aside an assessment to income-tax and to repay the tax paid by the applicant the Bombay High Court made the order asked for but the decision of the Bombay High Court was set aside by the Judicial Committee. At p. 427 (of Ind App): (at p. 277 of AIR) of the report it is observed by the Judicial Committee :"Before Mandamus can issue to a public servant it must, therefore, be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown, his principal." A similar view has been expressed by the Calcutta High Court in P. K. Banerjee v. L. J. Simonds. AIR 1947 Cal 307 . In our opinion, these cases lay down the correct law on the point. 6. We pass on to consider the next question presented on behalf of the appellant viz., whether there was a final allotment of the business in favour of the appellant by the Chief Settlement Commissioner. It was contended for the appellant that in view of Ex. P-5, dated April 25, 1956 there was final allotment of the business, though the terms of allotment had to be subsequently determined. In Ex. P-5 the Government of India state that "It has been decided in principle that the aforesaid evacuee concerns should be allotted to you" and the "terms of allotment would be communicated to you separately". Reference was made to Ex. P-8, dated June 21, 1956 wherein it is stated that the Government of India have decided that "the two evacuee concerns, viz., firms of Adam Hajee Peer Mohammed Essack and Hajee Ebrahim Kassan Cochinwala of Kozhikode are to be allotted to the present Manager Shri L. S. Lalvani and ultimately sold to him." It is also mentioned in the letter that "until the question of terms and conditions of allotment of the concerns is decided Shri Lalvani will continue to function as Custodians Manager for these concerns in terms of S. 10 (2) (b) of the Administration of Evacuee Property Act. 1950 read with R. 34 of the Rules made thereunder". It was submitted on behalf of the appellant that in view of these two letters it must be held that there was a final allotment of the business in favour of the appellant. We do not however, think there is any justification for this argument. It is manifest that the terms and conditions of allotment were not finally settled between the parties and there was no concluded contract of sale and, therefore, the appellant had no legal right to the business of the two concerns and the High Court was right in holding that the appellant was not entitled to the grant of a writ in the nature of mandamus with regard to the possession of the two business concerns.

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

Explanation:
0[ds]5. In our opinion, the order of the Deputy Custodian-P-13 and P-16-removing the appellant from the management of the business is not vitiated by any illegality. But even on the assumption that the order of the Deputy Custodian terminating the management of the appellant is illegal, the appellant is not entitled to move the High Court for grant of a writ in the nature of mandamus under Art. 226 of the Constitution. The reason is that a writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions. In the present case, the appointment of the appellant as a Manager by the Custodian by virtue of his power under S. 10 (2) (b) of the 1950 Act is contractual in its nature and there is no statutory obligation as between him and the appellant. In our opinion, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Art. 226 of the Constitution. In Commr. of Income-tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408: (AIR 1936 PC 269 ), an application was made under S. 45 for an order directing the Commissioner to set aside an assessment to income-tax and to repay the tax paid by the applicant the Bombay High Court made the order asked for but the decision of the Bombay High Court was set aside by the Judicial Committee. At p. 427 (of Ind App): (at p. 277 of AIR) of the report it is observed by the Judicial Committee :"Before Mandamus can issue to a public servant it must, therefore, be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown, his principal."A similar view has been expressed by the Calcutta High Court in P. K. Banerjee v. L. J. Simonds. AIR 1947 Cal 307  . In our opinion, these cases lay down the correct law on the point6. We pass on to consider the next question presented on behalf of the appellant viz., whether there was a final allotment of the business in favour of the appellant by the Chief Settlement Commissioner. It was contended for the appellant that in view of Ex. P-5, dated April 25, 1956 there was final allotment of the business, though the terms of allotment had to be subsequently determined. In Ex. P-5 the Government of India state that "It has been decided in principle that the aforesaid evacuee concerns should be allotted to you" and the "terms of allotment would be communicated to you separately". Reference was made to Ex. P-8, dated June 21, 1956 wherein it is stated that the Government of India have decided that "the two evacuee concerns, viz., firms of Adam Hajee Peer Mohammed Essack and Hajee Ebrahim Kassan Cochinwala of Kozhikode are to be allotted to the present Manager Shri L. S. Lalvani and ultimately sold to him." It is also mentioned in the letter that "until the question of terms and conditions of allotment of the concerns is decided Shri Lalvani will continue to function as Custodians Manager for these concerns in terms of S. 10 (2) (b) of the Administration of Evacuee Property Act. 1950 read with R. 34 of the Rules made thereunder". It was submitted on behalf of the appellant that in view of these two letters it must be held that there was a final allotment of the business in favour of the appellant. We do not however, think there is any justification for this argument. It is manifest that the terms and conditions of allotment were not finally settled between the parties and there was no concluded contract of sale and, therefore, the appellant had no legal right to the business of the two concerns and the High Court was right in holding that the appellant was not entitled to the grant of a writ in the nature of mandamus with regard to the possession of the two business concerns.