Lekhraj Sathramdas Lalvani v. N. M. Shah, Deputy Custodian cum Managing Officer, Bombay, (SC) BS110086
SUPREME COURT OF INDIA

Before:- A.K. Sarkar, M. Hidayatullah and V. Ramaswami, JJ.

Civil Appeals Nos. 414 and 415 of 1963. D/d. 4.5.1965.

Lekhraj Sathramdas Lalvani - Appellant

Versus

N. M. Shah, Deputy Custodian cum Managing Officer, Bombay and others - Respondent

For the Appellant :- M/s. R. Mahalingier and N. N. Keswani, Advocates.

For the Respondent :- Mr. Gopal Singh, Advocate and Mr. R. N. Sachthey, Advocate, for Mr. B. R. G. K. Achar, Advocate.

A. Administration of Evacuee Property Act, 1950, Section 10(2)(b) -General Clauses Act, 1897, Section 16 - Evacuee Property - Deputy Custodian of Evacuee Property has the power to terminate management of a person with regard to the business concern by notice of Section 10(2)(b) of the Act read with Section 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 is exercised as an incident to or consequence of that power.

[Para 3]

B. Administration of Evacuee Property Act, 1950, Section 10(2)(b) Evacuee Property - Order of removal of a person from the management of a business concern made by the Managing Officer-cum-Deputy Custodian of - Evacuee Property, after coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is not invalid because he has the legal competence to make the order under the 1950 Act, though he describes himself in that order as "Managing Officer" who is not the proper authority to cancel the appointment of the manager under the 1954 Act.

[Para 4]

C. Constitution of India, Article 226 - Evacuee Property - Writs of - Mandamus - Rights relating to contract - Administration of Evacuee Property Act, 1950, Section 10(2)(b) - Appointment of a person as a manager by the custodian under Section 10(2)(b) is contractual in nature - There is no statutory obligation as between latter and the former - Thus, the former is not entitled to move the High Court for grant of a writ in the nature of mandamus under Article 226 of the Constitution.

[Para 5]

Cases Referred :-

Balakotaiah v. Union of India, 1958 SCR 1052 at p. 1059.

Commissioner of Income Tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408.

P.K. Banerjee v. L. J. Simonds. AIR 1947 Calcutta 307.

JUDGMENT

Ramaswami, J. - The proprietors of two firms styled "Adam Hajee Peer Mohd. Essack" and "Hajee Ebrahim Kassam Cochinwala" had in the year 1947, migrated to Pakistan and both these firms became vested in the Custodian of Evacuee Properties for the State of Madras under Section 8 of the Administration of Evacuee Property Act, 1950, hereinafter referred to as the 1950 Act. On March 6, 1952 the appellant was appointed as Manager of the two firms under Section 10(2)(b) of the 1950 Act. The appellant also furnished security of Rs. 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:

On October 9, 1954 the Displaced Persons (Compensation and Rehabilitation) Act, 1954 was passed which will hereafter be referred to as the 1954 Act. On April 11, 1956 there was an advertisement published in the Press for the sale of the aforesaid evacuee properties. The appellant applied to the Chief Settlement Commissioner for stopping the sale of the two concerns. On April 25, 1956 the Central Government made an order-Ex. P-5-which states:

On June 21, 1956 another letter-P-8-was written to the appellant by the Custodian of Evacuee Properties which states:

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 firms. The appellant moved the High Court of Kerala for grant of a writ restraining the District Collector from selling the business of the firms by a public auction. The application was allowed and on June 25, 1959 the Kerala High Court directed the District Collector not to sell the properties of the business of the two firms without an appropriate order of the Chief Settlement Commissioner. The decision of the High Court is based upon the ground that there was no order under the 1954 Act by the Chief Settlement Commissioner for sale of the properties and that in the absence of such an order the sale of the properties cannot take place. It appears that the order of the Chief Settlement Commissioner was subsequently made on September 15, 1959. In pursuance of that order the management of the appellant was terminated and the possession of the business was taken over by the Deputy Custodian-Respondent No. 1. The order-Ex. P-13- dated December 18, 1959 states:

2. The appellant filed a writ petition in the High Court of Kerala-being O. P. No. 1438 of 1959 for grant of (1) a writ of certiorari for quashing the order, dated December 15, 1959-Ex. P-13-and the proceedings, dated December 18, 1959-Exhibit 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 (3) 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 in prayers (1) and (2) but refused prayer (3) for a writ of mandamus 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. 484 of 1960 before the Division Bench of the High Court. The appellant also preferred an appeal A. S. No. 445 of 1960 against the order of Single Judge which was in regard to the refusal of the third relief. By judgment, dated December 6, 1960 the Division Bench of the High Court dismissed Appeal A. S. No. 445 of 1960 filed by the appellant but allowed the appeal A. S. No. 484 of 1960 filed by the respondents. The present appeals are brought on behalf of the appellant by certificate of the Kerala High Court granted under Article 133(1) (a) of the Constitution.

3. The first question arising in this case is whether the appellant was lawfully removed from the management of the business by the order of the respondent No. 1, dated December 18, 1959-Exs. P-13 and P-16. It was submitted on behalf of the appellant that under Section 10(2) (b) of the 1950 Act the Custodian had the power to appoint a Manager for the Evacuee Property for carrying on any business of the evacuee and there was no power conferred by the Act upon the Custodian to remove the Manager so appointed. It was argued by the Counsel on behalf of the appellant that an indefeasible right of management was conferred upon the appellant because of the order of the Custodian-Ex. P-1, dated March 6, 1952. In our opinion, there is no warrant for this argument. The power of appointment conferred upon the Custodian under Section 10(2) (b) of the 1950 Act confers, by implication, upon the Custodian the power to suspend or dismiss any person appointed. Section 16 of the General Clauses Act states:

4. It was then contended on behalf of the appellant that the order of removal-Exs. P-13 and P-16-was made by the Managing Officer-cum-Deputy Custodian of Evacuee Property of Southern States under the 1954 Act which conferred no power on such an officer to cancel the appointment of a Manager. It was pointed out that the order of removal was made after the provisions of the 1954 Act had come into force. In our opinion, there is no justification for this argument. We shall assume that the Managing Officer under the 1954 Act is not the proper authority to cancel the appointment of a Manager but it is not disputed that the provisions of the 1950 Act have not been repealed and still continue to be in force. Under Section 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. 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 Article 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 Section 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 Article 226 of the Constitution. In Commissioner of Income Tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd., 63 Ind App 408, an application was made under Section 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) of the report it is observed by the Judicial Committee :

A similar view has been expressed by the Calcutta High Court in P. K. Banerjee v. L. J. Simonds. AIR 1947 Calcutta 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 Custodian's Manager for these concerns in terms of Section 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.

7. In our opinion, there is no merit in these appeals, which are accordingly dismissed with costs.

Appeals dismissed.