TMI Blog1967 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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', ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Ordinanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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' Provinces) Ordinan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cising 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 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 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals. 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 memorandum 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, Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 [1953] S.C.R. 1144 and Lt. Col. Khajoor Singh v. The Union of India [1961] 2 S.C.R. 828. 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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