Case: Ebrahim Aboobakar And Another Vs. Custodian General Ofevacuee Property

2. Aboobaker Abdul Rahman, the father of the appellants, was possessed of considerable moveable as well as immovable properties including a cinema theatre, known as the Imperial Cinema, situate at 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 Additional Custodian started proceedings under the Bombay Evacuees (Administration of Property) Act, 1949, against Aboobaker 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 December 1949 the Additional Custodian issued a notice to the said Aboobaker under S. 7 of the Ordinance and a further 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 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 declareing 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 he 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 aggrieved 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 1949.5. The hearing of the appeal was concluded on the 13th May 1950 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 respondent 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 Aboobakers property as evacuee property. He further held that the said Tekchand Dolwani was interested in the appeal and has locus standi to prefer it. Having overruled the preliminary objections raised by the appellants, 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 entitled 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.6. Being aggrieved by the order of the respondent dated the 13th 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 or 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.7. 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 inasmuch 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.(2) 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.(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.8. 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 Tekchand 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 S. 24 of the Ordinance. 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.

Reasoning: It is plain that such a writ cannot be granted to quash the decision 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 subject-matter, 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 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 prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well asa 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 determine any points raised before it in the nature of preliminary 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 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 meritcivil court is barred from entertaining or adjudicating upon the questions whether the property is or is not evacuee property, 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 adjudication under section 7 and is as sucha certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead evidence, then the decision of the court whether favourable or unfavorable to him has to take the form of an adjudication and necessarily amounts to anour opinion, therefore, the order made by the Additional Custodian refusing to declare Aboobakar an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section 24.