Full Judgment Text
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PETITIONER:
M/S. HAJI ESMAIL NOOR MOHAMMAD & CO. AND ORS.
Vs.
RESPONDENT:
THE COMPETENT OFFICER, LUCKNOW & ORS.
DATE OF JUDGMENT:
08/03/1967
BENCH:
RAO, K. SUBBA (CJ)
BENCH:
RAO, K. SUBBA (CJ)
SHAH, J.C.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
MITTER, G.K.
CITATION:
1967 AIR 1244 1967 SCR (3) 134
CITATOR INFO :
F 1983 SC 259 (19)
ACT:
U.P. Administration of Evacuee Property Ordinance, 1949.
Administration of Evacuee Property Act (Central) 1950 and
Evacuee Interest (Separation) Act (Central) 1951--Partner of
firm declared ’evacuee’ under U.P. Ordinance-Fresh
declaration under s. 7 of 1950 Act whether necessary-
Proceedings under 1951 Act before Appellate Authority at
Delhi-Appellate Authority appointed by U.P. State but office
situated at Delhi-Allahabad High Court whether has
jurisdiction under Art. 226 over Appellate Authority.
Constitution of India, Part III-Fundamental Rights of
partners of firm whether affected by one of the partners
being declared evacuee and his property being taken over by
Custodian.
HEADNOTE:
A partnership firm carrying on business in Calcutta had also
a branch in Kanpur. In 1948, ’A’ one of its partners went
away to Pakistan. Under the United Provinces Administration
of Evacuee Property Ordinance 1949 all evacuee property
situated in the United Provinces, vested in the Custodian of
Evacuee Property. In September 1949 the Deputy Custodian of
Evacuee Property, Kanpur, took possession of the Kanpur
property of the firm. The firm raised objections under s. 8
of the aforesaid Ordinance. On October 18, 1949 a Central
Ordinance namely the Administration of Evacuee Property
Ordinance 1949 came into force; it was succeeded on April
17, 1950, by the Administration of Evacuee Property Act,
1950. Under the provisions of the Central Ordinance as also
the Act any property which had vested in the Custodian under
the Provincial Ordinance would be deemed to continue being
so vested. On May 31, 1950 The Deputy Custodian of Evacuee
Property (Judicial) Allahabad Circle, Kanpur, dealing with
the aforesaid objections raised by the firm held ’A’ to be
an evacuee and his share in the firm to be evacuee property.
No appeal was filed against this order. on December 13, 1952
the Competent Officer, Kanpur -sent separate notices under
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s. 6 of the Evacuee Interest Separation Act, 1951 to each of
the partners of the firm calling upon them to file their
claim for the purpose of determining the interest of the
evacuee in the partnership business. The firm filed a claim
under s. 7 of the Act and raised various objections
contending that ’A’ was not -a member of the firm. The
competent officer rejected all the objections. The firm’s
appeal to the Appellate Officer failed; whereupon it filed
petitions under Art. 226 of the Constitution before the High
Court. The petitions were dismissed by a single Judge who
took the view that the order of the Competent Officer had
merged in that of the Appellate Authority whose office was
situated in Delhi beyond the territorial jurisdiction of the
High Court. Special appeals before the Division Bench were
also dismissed. The firm and its partners appealed to this
Court. They also filed a petition under Art. 32. The Court
’had to consider (i) Whether a fresh notice and declaration
under s, 7 of the Central Ordinance of 1949 or of tile Cen-
tral Act of 1950 was necessary, (ii) Whether any fundamental
right of
135
the partners of the firm had been. affected, (ii) Whether
the Appellate Authority was subject to the jurisdiction of
the High Court of Allahabad.
HELD : From the Facts ’it was clear that ’A’, in view of
disturbed conditions, went away to Pakistan in the year 1948
and therefore he was an ’evacuee’ within the meaning of U.P.
Ordinance 1 of 1949. His property i.e. his interest in the
partnership business immediately vested under the Ordinance
in the Custodian. This automatic vesting 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 arose. Section 7 only applied to properties
other than those which have vested automatically in the
Custodian. Such a vesting cannot be reopened under the Cen-
tral Ordinance or the Central Act for it has already vested
thereunder by a fiction. [142 E-G]
(ii) It followed that the partners had no interest in the
share of ’A’ in the firm which had vested in the Custodian.
They had also acquiesced in the order of the Deputy
Custodian of Evacuee Property (Judicial) (Allahabad) holding
’A"s property to be evacuee property. It was no longer open
to them to question that finding. The partners had there-
fore no fundamental right in regard to the interest of ’A’
in the partnership. L143 B]
(iii) The Appellate Authority, though for convenience
having its head office in New Delhi, was factually and
legally functioning under the State Act within the
territorial jurisdiction of the Allahabad High Court. 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. [146 B-C]
Election Commission, India v. Saka Venkata Subba Rao [1953]
S.C.R. 1144, Lt. Col. Khajoor Singh v. Union of India,
[1961] 2 S.C.R. 828, A. Thangal Kunju Musaliar v. M.
Venkitachalam Potti, [1955] 2 S.C.R. 1196, Collector- of
Customs v. East India Commercial Company,[1963] 2 S.C.R.
563, Shriram v. Tire State of Boimbay A.I.R. 1962 S.C. 670
and The State of Uttar Pradesh v. Mohammad Nooh, [1958]
S.C.R. 595, distinguished.
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JUDGMENT:
ORIGINAL/CIVIL APPELLATE JURISDICTION : Writ Petition No. 14
of 1963.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
AND
Civil Appeals Nos. 1566 and 1567 of 1966.
Appeals by special leave from the judgment and order dated
January 11, 1963 of the Allahabad High Court in Special
Appeals Nos. 26 and 27 of )963 respectively.
S. T. Desai, E. C. Agarwala, Bhawanilal, Champat Rai and
P. C. Agrawala, for the petitioners (in W.P. No. 14 of
1965).
S. P. Sinha, E. C. Agarwala, Bhawanilal, Champat Rai and
P. C. Agrawala, for the appellants (in both the appeals).
136
136
N. S. Bindra and S. P. Nayyar, for the respondents (in W.P.
No. 14 of 1963 and C.As. Nos. 1566 and 1567 of 1966).
The Judgment of the Court was delivered by
Subbarao, C.J. The writ petition and the two appeals are
connected and they arise out of a dispute under the Evacuee
interest (Separation) Act, 1951, (Act No. 64 of 1951) in re-
gard to a partnership firm carrying on business in the name
and style of Messrs. Hajee Esmail Noor Mohammad & Co. its
principal place of business is Calcutta and it has branches
at Kanpur and Bombay. In 1947 a partnership deed was
executed in respect of the said business. Though the
business continued to be carried on under the said name from
time to time, having regard to the exigencies. new
partnership deeds were executed. In the year 1948, Abdul
Latif Hajee Esmail, one of the partners of the firm, went to
Pakistan. On May 1, 1949, it appears that the said Abdul
Latif Hajee Esmail sent from Pakistan a letter addressed to
the partnership firm at Calcutta indicating his intention to
retire from the partnership. On June 24, 1949, The United
Provinces Administration of Evacuee Property Ordinance, 1949
(U.P. Ordinance No. 1 of 1949) came into force. Under that
Ordinance all evacuee property situated in the United
Provinces vested in the Custodian. On August 8, 1949,
another deed of partnership was executed between the
partners excluding therefrom the said Abdul Latif Hajee
Esmail and the document was registered on October 24, 1949.
On September 7, 1949, the Deputy Custodian of Evacuee
Property, Kanpur, informed the firm that possession of the
Kanpur property of the firm would be taken within 24 hours.
Pursuant to the notice, possession of the firm at Kanpur was
taken by the Deputy Custodian. On September 24, 1949, the
firm filed a claim under s. 8 of the U.P. Ordinance 1 of
1949 to the effect that the said property was not evacuee
property. On October 18, 1949, The Administration of
Evacuee Property Ordinance No. 27 of 1949, hereinafter
called the ’Central Ordinance’, came into force.
Thereafter, on April 17, 1950, The Administration of Evacuee
Property Act, 1950 (Act 31 of 1950) came into force. On May
31, 1950 the Deputy Custodian of Evacuee Property
(Judicial), Allahabad Circle, Kanpur, in the objection
petition filed by the firm found that Abdul Latif Hajee
Esmail was an evacuee, that the notice issued by him to the
firm was invalid, as it was not given to the individual
partners thereof, that the said Abdul Latif Hajee Esmail
would be deemed to be continuing as a partner, that he was
an evacuee and that, therefore, his share in the partnership
vested in the Custodian. In the result he declared that the
share of Abdul Latif Hajee Esmail in the firm, which was
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annas 5 out of annas 19 and pies 3, was evacuee property.
He released the other shares from attachment. No
137
appeal was filed against that order. On December 13, 1952,
the Competent Officer, Kanpur, sent separate notices under
s. 6 of the Evacuee Interest (Separation) Act, 1951 (Central
Act 64 of 1951 ) to each of the partners of the firm calling
upon them to file their claim for the purpose of determining
the interest of the evacuee in the partnership business. In
March 1953, the firm filed a petition under s. 7 of the
Central Act 64 of 1951 claiming 14 annas and 3 pies share
out of the total share of 19 annas and 3 pies of the Kanpur
branch of the partnership firm. On December 31, 1953, Abdul
Latif Hajee Esmail died. On September 12, 1959, the firm
raised various objections, including one of jurisdiction,
the main objection being that Abdul Latif Hajee Esmail was
not a partner of the present firm. The Cornpetent Officer
rejected all the objections and held, by his order dated
November 10, 1950, that the firm was accountable to the
Custodian in respect of the assets and profits of the firm
so far as it related to the Kanpur Branch of the firm, from
February 10, 1949 upto the date of the order. The firm
preferred an appeal against that order to the Appellate
Officer appointed under Central Act 64 of 1951. On April
25, 1960, the Appellate Officer dismissed the appeal.
Thereafter, on July 25, 1960, the firm filed a petition in
the High Court of Allahabad under Art. 226 of the
Constitution against respondents 1 and 2 for quashing their
orders and for issuing an appropriate writ or suitable
directions against all or any of the respondents. On Sep-
tember 25, 1961, the firm and its partners filed another
petition under Art. 226 of the Constitution in the said High
Court for similar reliefs. The second petition became
necessary because certain technical objections were raised
in regard to the first petition. On November 29, 1962, Oak,
J., of the said High Court dismissed both the petitions.
The learned Judge held that the High Court had no
jurisdiction to quash the order of the Competent Officer for
taking accounts inasmuch as his order had merged in the
order of the Appellate Authority whose office was situated
in Delhi beyond the territorial jurisdiction of the said
High Court. Special Appeals preferred to a Division Bench
of the High Court were also dismissed. Hence the two
appeals. The firm and its partners also filed a petition in
this Court under Art. 32 of the Constitution for the same
reliefs.
We shall first take the petition filed in this Court under
Art. 32 of the Constitution.
Mr. S. T. Desai, learned counsel for the petitioners, raised
before us the following points : (1) Abdul Latif Hajee
Esmail was not an evacuee and, therefore, his property was
not evacuee property within the meaning of cls. (c) and (d)
of s. 2 of the U.P. Ordinance No. 1 of 1949 and, therefore,
the orders of the Competent Officer or of the Appellate
Officer were without
L4 Sup. Cl/67-10
138
jurisdiction. (2) The decision given by the two officers
were also without jurisdiction as no notice was issued and
as no declaration was ’Made under s. 7 of the Central
Ordinance No. 27 of 1949 or of the Central Act 31 of 1950.
(3) The said officers also had no jurisdiction to pass any
order relating to the share of Abdul Latif Hajee Esmail
confined only to the Kanpur branch of the firm. (4) In any
case, the said Officers committed an error in holding that
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Abdul Latif Hajee Esmail had a subsisting share in the
partnership even after February 10, 1949 and August 8, 1949,
i.e., after the dates of reconstitution of the partnership.
Mr. N. S. Bindra, learned counsel for the respondents, apart
from contesting the correctness of the points raised by the
petitioners’ counsel, argued that the petitioners had no
fundamental right to maintain the petition. His contention
was that the interest of Abdul Latif Hajee Esmail in the
partnership had automatically vested in the Custodian under
the provisions of the U.P. Ordinance No. 1 of 1949, that the
petitioners had no interest in the said share and, that,
therefore, no fundamental right of theirs was affected by
the order of the Competent Officer or of the Appellate
Officer made in the appeal against the said ,order.
To appreciate the contentions it is necessary to consider
the provisions of the relevant Ordinance and the Acts.
U.P. Ordinance No. 1. of 1949
Section 2. (c) "evacuee" means any person,
(i) who, on account of the setting up of the
Dominions of India and Pakistan or on account
of civil disturbances or the fear of such
disturbances, leaves or has on or after the
1st day of March, 1947 left any place in the
United Provinces for any place outside the
territories now forming part of India, or
(ii) who is resident in any place now forming
part of Pakistan and is for that reason unable
to occupy, supervise or manage in person his
property in the United Provinces or whose
property in the Province has ceased to be
occupied, supervised or managed by any person,
or is being occupied, supervised or managed by
an unauthorised person, or......
(d) "evacuee property" means any property in
which an evacuee has any right or
interest ......
139
(e) "property" includes any property, right
or interest, but does not include a mere right
to sue or a cash deposit in a bank-.
Section 5. Vesting of evacuee property in the
Custodian.
(1) Subject to the provisions of this
Ordinance, all evacuee property situated in
the United Provinces shall vest in the
Custodian.
Section 6. Notification of evacuee property.
(1) The Custodian may from time to time,
notify by publication in the official Gazette
or in such other manner as may be prescribed,
evacuee properties which have vested in him
under this Ordinance.
(2) Where after the vesting of any evacuee
property in the Custodian any person is in
possession of any such property, he shall be
deemed to be holding it on behalf of the
Custodian and shall on being so required,
surrender possession thereof to the Custodian
or any person appointed by him in this behalf.
Under this Ordinance ’property of an evacuee’ as defined in
s. 2(c) automatically vests in the Custodian under s. 5.
Thereafter any person in possession of the said property
holds it only on behalf of the Custodian, who can take
necessary steps to take possession from him.
The Administration of Evacuee Property (Chief Commissioners’
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Provinces) Ordinance, No. 12 of 1949.
This Ordinance was extended to the United Provinces by the
Administration of Evacuee Property (Chief Commissioners’
Provinces) Amendment Ordinance, No. 20 of 1949. It came
into force on August 23, 1949.
Section 5. Vesting of evacuee property in the Custodian.-
(1) Subject to the provisions of this
Ordinance, all evacuee properties situate in a
Province shall vest in the Custodian of that
Province.
(2) Where immediately before the
commencement of this Ordinance any evacuee
property in a Province had vested in any
person exercising the powers of a Custodian
under any corresponding law in force in that
Province immediately before such commencement,
that evacuee property shall, on the
commencement of this Ordinance, be deemed to
have vested in the Custodian appointed for the
Province under this Ordinance.
140
Section 7 and 8 of this Ordinance correspond to ss. 7 and 8
Of the U.P. Ordinance No. 1 of 1949; the former confers
power on the Custodian to take possession of any evacuee
property vested in him and the latter provides for filing of
claims by interested persons. Under this Ordinance the
evacuee property automatically vested in the Custodian was
deemed to have vested in the Custodian for the Province
concerned.
Central Ordinance No. 27 of 1949.
This Ordinance came into force on October 18, 1949.Section
55.
(1) The Administration of Evacuee Property
Ordinance, 1949 (XII of 1949), as in force in
the Chief Commissioners’ Provinces and the
Province of Madras and the United Provinces is
hereby repealed.
(2)............................
(3) Notwithstanding the repeal by this
Ordinance of the Administration of Evacuee
Property Ordinance, 1949, or of any
corresponding law, anything done or any action
taken in the exercise of any power conferred
by that Ordinance or law shall be deemed to
have been done or taken in the exercise of the
powers conferred by this Ordinance, and any
penalty incurred or proceeding commenced under
that Ordinance or law shall be deemed to be a
penalty incurred or proceeding commenced under
this Ordinance as if this Ordinance were in
force on the day on which such thing was done,
action taken, penalty incurred or proceeding
commenced.
Section 8.
(1)..............................
(2) Where immediately before the
commencement of this Ordinance any evacuee
property in a Province had vested in any
person exercising the powers of a Custodian
under any law repealed hereby, the evacuee
property shall, on the commencement of this
Ordinance, be deemed to have vested in the
Custodian appointed or deemed to have been
appointed for the Province under this
Ordinance, and shall continue to so vest. It
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is clear from the said provisions that the
Administration of Evacuee Property (Chief Com-
missioners’ Provinces) Ordinance, No. 12 of
1949, was repealed and under s. 8(2) the
evacuee property automatically vested under
U.P. Ordinance No. 1 of
141
1949 and thereafter deemed to have been vested
in the Custodian under the Administration of
Evacuee Property (Chief Commissioners’
Provinces) Ordinance, No. 12 of 1949, as
amended by the Administration of Evacuee
Property (Chief Commissioners’ Provinces)
Amendment Ordinance, 1949, Ordinance No. 20 of
1949, was deemed to have been vested in the
Custodian appointed under this Ordinance.
Under the saving clause things done or action
taken under the previous Ordinance was deemed
to have been taken or done under this
Ordinance.
Central Act 31 of 1950
Section 58.
(1) The Administration of Evacuee Property
Ordinance, 1949........ are hereby repealed.
(2)........................................
(3) The repeal by this Act of the
Administration of Evacuee Property Ordinance,
1949...... shall not affect the
previous operation of that Ordinance, Regu-
lation or corresponding law, and subject
thereto, anything done or any action taken in
the exercise of any power conferred by or
under that Ordinance, Regulation or
corresponding law, shall be deemed to have
been done or taken in the exercise of the
powers conferred by or under this Act as if
this Act were in force on the day on which
such thing was done or action was taken.
Section 8(2) of this Act corresponds to s. 8(2) of the
Central Ordinance No. 27 of 1949. This Act repeals the
Ordinance and practically enacts its provisions. Under this
Act also the automatic vesting of the evacuee property in
the Custodian under the U.P. Ordinance No. 1 of 1949 deemed
to have continued to vest under the Custodian appointed
under the Central Ordinance No. 27 of 1949 is continued, by
fiction, under this Act. The High Court of Allahabad in
Azimunnissa’s(1) case held that there was no valid vesting
under Ordinance XII of 1949 or even under Ordinance XX of
1949 for lack of legislative competence and, that,
therefore, the deeming, clause in Ordinance XXVII of 1949 or
Act XXXI of 1950 would not continue the vesting. This
defect was cured by Act 1 of 1960 retrospectively validating
the vesting under the earlier laws. This aspect of the case
was considered by this Court in Azimunnissa v. The Deputy
Custodian, Evacuee
(1) A.1.R. 1951 All 561.
142
Properties, District Deoria(1). Therein Kapur, J., speaking
the Court, observed :
"The effect of s. 8(2-A) is that what
purported to have vested under s. 8 (2) of
Ordinance XXVII of 1949 and which is to be
deemed to be vested under s. 8 of the Act
which repealed that Ordinance, notwithstanding
any invalidity in the original vesting or any
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decree or order of the Court shall be deemed
to be evacuee property validly vested in the
Custodian and any order made by the Custodian
in relation to the property shall be deemed to
be valid. Thus retrospective effect is given
to the Act to validate (1) what purports to be
vested; (2) removes all defects or invalidity
in the vesting or fictional vesting under s.
8(2) of Ordinance XXVII of 1949 or s. 8(2) of
Ordinance XXVII of 1949 or s. 8(2) of the
Act which repealed the Ordinance; (3) makes
the decrees and judgments to the contrary of
any court in regard to the vesting in-
effective; (4) makes the property evacuee
property by its deeming effect; and (5)
validates all orders passed by the Custodian
in regard to the property."
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 provisions of the said Central Ordinance and
Act. As stated above, the automatic vesting of Abdul Latif
Hajee Esmail’s 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 have 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 a fiction. It follows that the peti-
tioners have no interest in the share of Abdul Latif Hajee
Esmail in the firm which had vested in the Custodian.
(1) [1961] 2 S. C. R. 91, 104.
143
That 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 on the objections 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 bad become final. It is no
longer open to it to question this finding. It follows that
the petitioners have no fundamental right in regard to the
interest of Abdul Latif Hajee Esmail in the partnership.
But 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
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the appeals. As we are remanding the appeals to the High
Court for decision on merits, the other questions 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
Court, this writ petition will become unnecessary; if they
fail, the findings therein will be binding in the writ
petition. In that event, if appeals are filed in this
Court, the questions 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 costs.
Now coming to the appeals, the High Court, as indicated
earlier, dismissed the writ petitions on the ground that it
hid no jurisdiction to issue a writ against the Appellate
Officer in whose order the order of the Competent Officer
had merged, as he held his office outside the territorial
jurisdiction of the High Court of Uttar Pradesh.
To appreciate this argument it is necessary to state some
relevant facts. The Competent Officer of Kanpur who made
the order dated November 10, 1959, has his office at Kanpur
in Uttar Pradesh. The Appellate Officer, who by his order
dated April 25, 1960, dismissed the appeal against the order
of the Competent Officer, has his office located at New
Delhi. In the memo-
144
randum of appeal filed by the appellants before the
Appellate Officer the location of his office was described
thus .
"In the Court of the Appellate Officer. Under
the Evacuee Interest (Separation) Act, 1951.
Ministry of Rehabilitation. Government of
India, Dilaram Place, Mussoorie."
In the order of the Appellate Officer, the
said Officer is described thus :
"Shri Parshottam Swarup, Appellate Officer,
India."
It also shows that the appeal was heard and the judgment was
delivered at Allahabad. In the counter-affidavit filed in
the writ petition on behalf of the Appellate Officer it is
stated in paras 4(a) and 4(b) that the office of the
Appellate Officer is situated at New Delhi and the record of
the Appellate Court is kept at Delhi. In the rejoinder
affidavit filed by the appellants it is averred that the
Appellate Officer to whom the appeal was presented had his
head-office at Mussoorie, that he was appointed by the State
Government and that he gave his decision at Allahabad on
April 25, 1960. From the aforesaid affidavits the following
facts emerge : The Competent Officer’s office is at Lucknow
and he made his order at Lucknow. The Appellate Officer,
who was appointed 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, 1951 (Act No. 64 of 1951) defines
"appellate officer" thus :
" a appellate" officer means an officer
appointed as such
by the State Government under section 13."
Under s. 13 of the said Act, the State Government with the
approval of the Central Government may, by notification in
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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
officer shall have jurisdiction over such local area 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 is now situated at Delhi,
though he disposes of appeals pertaining to each State only
in that State.
145
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 Veniata Subba Rao(1) and Lt. Col. Khajoor Singh v.
The Union of India(2). 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, (1) 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, A. Thangal Kunju Musaliar
v. V. Venkitachalam Pott(3); Collector of Customs v. East
India Commercial Company (4) and Shriram Jhunjhunwala v. The
State of Bombay(,). This Court has also held that in all
cases after the appellate authority has disposed of the
appeal. the operative order was of the final authority
whether it has reversed, modified or confirmed the original
orders : see Collector of Customs v. East India Commercial
Company(4). Though Das, C.J., in The State of Uttar Pradesh
v. Mohammad Nooh(6), 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
Collector of Customs, Calcutta v. East India Commercial Co.,
Ltd. (4 ) distinguished that case with the following
observations at p. 573
"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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
presented to us. They dealt with the case of an appellate
authority or tribunal which bad been appointed by the
Central Government and was disposing of only
(1) [1953] S.C.R. 1144. (2) [1961] 2 S.C.R. 828.
(3) [1955] 2S.C.R. 1196. (4) [1963] 2 S .C.R. 563.
(5) A.I.R. 1962 S.C. 670. (6) (1958] S.C.R. 595, 610.
146
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., Election Commission, India
v. Saka Venkata Subba Rao(1), the Central Authority for
convenience heard the parties and made the order within the
territorial jurisdiction of the High Court. In all these
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 presumbly 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.
In the result, the order of the High Court is set aside and
the appeals are remanded to it for disposal in accordance
with law. Costs will abide the result.
G.C. Appeal remanded
(1) [1953] 3 S.C.R. 1144.
147