TMI Blog1965 (5) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... 1950 Act. The appellant also furnished security of ₹ 20,000/- before taking possession of the business of the firms as Manager. The order of appointment-Ex. P-1 dated March 6, 1952 states : The Custodian approves the proposal of the Deputy Custodian, Malabar that the Management of both the firms of Adam Hajee Peer Muhammad Issack and Hajee Ibrahim Kassam Cochinwala at Kozhikode may be allotted to Sri L. S. Lalvani for the present on the same system as exists now between the Government and the present two managers and on his furnishing a security of ₹ 20,000 to the satisfaction of the Deputy Custodian. The question of outright allotment as contemplated in Custodian General's letter No. 2811/CG/50 dated 20-3-50 will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erns in terms of Section 10(2) (b) of the Administration of Evacuee Property Act, 1950 read with rule 34 of the rules made thereunder. The Deputy Custodian is requested to evaluate the business concerns properly after getting prepared a balance sheet of each year of the vesting of the concerns, evaluating the concerns, the Deputy Custodian should keep in view the other assets and liabilities of the concerns and their goodwill etc. His comment and suggestions as to how and by what easy instalments the value of the concerns if sold to Shri Lalvani is to be realised from him should also be intimated. The bargain was not concluded and on March 25, 1958 there was an advertisement in the Press about the public auction of the business of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashing the order dated December 15, 1959--Ex. P-13 -and the proceedings dated December 18, 1959-Ex. P-16, (2) a writ of mandamus directing respondents nos. 1 and 2 to hand over possession of the two business concerns including the premises, stock-in-trade all records etc. to the appellant, and in prayer ( 1 ) (2) but (3)for a writ of mandamus or appropriate writ or order directing respondents nos. 1 to 3 not' to sell by public auction or otherwise the two evacuee business concerns. S. Velu Pillai, J. by his order dated June 8, 1960, granted writ to the appellant as prayed for restraining the respondents from selling the business by public auction. Against the order of the Single Judge the respondents filed an appeal being A.S. no. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person appointed. Section 16 of the General Clauses Act states Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power. It is manifest that the management of the appellant with regard to the business concerns can lawfully be terminated by the Deputy Custodian by virtue of s. 10(2) (b) of the 1950 Act read with s. 16 of the General Clauses Act. The principle underlying the section is that the power to terminate is a necessary adjunct of the power of appointment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. The Union of India.) [1958] S.C.R. 1052 at p. 1059 We, therefore, reject the argument of the appellant on this aspect of the case. 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Simondsd. (A.I.R. 1947 Cal. 307 ) In our opinion, these cases lay down the correct law on the point. We pass on to consider the next question presented on behalf of the appellant viz., whet-her there was a final allotment of the business in favour of the appellant by the Chief Settlement Commissioner. It was contend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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