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Azmat Ullah v. Custodian, Evacuee Property
Structured Summary of the Opinion (Full Bench Reference concerning writ jurisdiction and mandamus)
Factual and Procedural Background
On 3 September 1949 the Deputy Custodian of Evacuee Property at Gonda declared certain persons to be evacuees and their property to be evacuee property. The petitioners claimed to be sub‑tenants and were permitted by the Assistant Custodian to remain in possession, with the first petitioner appointed supurddar. The Assistant Custodian later reported that the petitioners' sub‑tenant status was fictitious. On 10 May 1952 the Deputy Custodian passed two orders directing eviction of the petitioners and allotment of the property to others.
The petitioners filed revision applications before the Additional Custodian, asserting they had not been given an opportunity to contest a notice of surrender under Section 8 of the Administration of Evacuee Property Act, 1950 (read with Rule 8). By order dated 29 July 1952 the Additional Custodian allowed both applications, set aside the 10 May 1952 orders and directed restoration of possession to the petitioners.
The Custodian General, exercising powers under Section 27 of the Act, on 21 November 1952 quashed the Additional Custodian's order and restored the Deputy Custodian's orders dated 10 May 1952. The petitioners then filed a petition under Article 226 naming only the Custodian, Evacuee Property, U.P., Lucknow as respondent and sought writs (mandamus, prohibition or certiorari) quashing the Custodian General's order and directing issuance of a proper notice under S.8(4) so they might be allowed to contest eviction.
The respondent objected that the Custodian General's office is in Delhi and the impugned order was made in Delhi, and therefore this Court lacked jurisdiction to issue the writs sought. Two learned Judges of this Court considered the jurisdictional objection an important question of law and referred the matter to a Full Bench.
Legal Issues Presented
- Whether, where the impugned order is a revisional order made by an authority (the Custodian General) residing and acting outside this High Court's territorial jurisdiction, this High Court can nonetheless issue a writ of mandamus to a local officer (the Custodian of Evacuee Property, U.P.) within its jurisdiction commanding that officer to treat the out‑of‑jurisdiction revisional order as a nullity and act as if a prior subordinate officer's order in favour of the petitioners remains valid.
- More generally, whether a High Court may issue a writ which would be effective beyond the limits of its own territorial jurisdiction or which would, in practical effect, nullify or neutralize a valid and subsisting order made by an authority outside its territorial jurisdiction.
Arguments of the Parties
Petitioners' Arguments
- The petitioners asserted a legal right to contest notices issued under Rule 5 read with Section 8(4) of the Act; that right had been denied by the Custodian General's order.
- Although this Court could not directly quash the Custodian General's order (because the Custodian General sat outside its territorial jurisdiction), the Court could examine the order and, if it found it contrary to law, issue a mandamus to the Additional Custodian directing him to ignore the Custodian General's order and proceed on the basis that the Additional Custodian's order of 29 July 1952 remained valid and subsisting.
Respondent's Arguments
- A preliminary objection: the Custodian General had his office in Delhi and the impugned order was passed in Delhi; therefore the High Court had no jurisdiction to issue the writs sought against or in relation to that order.
- Implicit in the objection: no High Court can issue a writ effective beyond its territorial limits, so this Court could not quash or neutralize the Custodian General's order.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Election Commission, India v. Venkata Rao, AIR 1953 SC 210 | Establishes that a High Court cannot issue a writ effective beyond the limits of its territorial jurisdiction. | Used to support the proposition that no High Court can issue a writ to affect persons or orders outside its territorial limits; this precludes issuing a writ to neutralize an order made by an authority sitting outside the Court's jurisdiction. |
| K.S. Rashid & Son v. Income Tax Investigation Commission, AIR 1954 SC 207 | Reinforces the territorial limit on a High Court's writ jurisdiction (i.e., a High Court cannot issue writs effective beyond its territorial limits). | Applied together with the Venkata Rao decision to conclude the Court lacks power to issue a writ that would be effective beyond its territorial jurisdiction and thus cannot quash or nullify the Custodian General's order made outside the Court's jurisdiction. |
| Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 217 | Principle that a court cannot do indirectly what it has no power to do directly; cannot reopen final transactions which have become closed and final by invoking new law to reach backward‑looking relief. | Relied upon to hold that this Court cannot, by issuing a mandamus to a local officer to ignore a higher authority's order, effectively do indirectly what it lacks the power to do directly (i.e., set aside the Custodian General's order). |
| Thangalkunju Musaliar v. Venkitachalam Potti, AIR 1954 Trav‑C 131 (Full Bench) | Authority relied on for the proposition that a High Court may issue a writ of mandamus (or prohibition) against a local official to prevent enforcement of an investigation/order even though a higher authority named in the proceedings sits outside the State. | The Court treated this decision as distinguishable and not an authority for the petitioners' proposition. The Travancore‑Cochin Full Bench's reasoning emphasized that the local official resided within the State and a writ against him would be sufficient to stop the complained‑of activity; the present Court found that circumstance materially different from the present case. |
| Har Prasad v. Union of India, AIR 1954 Raj 189 | Rajasthan High Court decision that where a subordinate officer's order within the High Court's jurisdiction is the real operative order (even if confirmed by higher authority outside jurisdiction), the High Court may quash that subordinate order under Article 226. | Distinguished by the present Court because, in the instant matter, the Custodian General's order had restored the Deputy Custodian's orders and superseded the subordinate order; also distinguished by reference to the Allahabad decision (Mohammad Yusuf) which treats the Custodian General's order as superseding the subordinate order. |
| Barkatali v. Custodian General of Evacuee Property of India, AIR 1954 Raj 214 | Similar to Har Prasad — the Rajasthan Court treated the subordinate officer's order as the operative order subject to quashing under Article 226. | Distinguished on the ground that the present case differs: the superior authority had set aside the subordinate order, and the Allahabad decision (Mohammad Yusuf) indicates a Custodian General's order supersedes the subordinate order. |
| Mohammad Yusuf v. Custodian General, Evacuee Properties, AIR 1954 All 433 | Held that an order of the Custodian General, even when it merely affirms the order of an Assistant Custodian, supersedes and merges the latter order. | Applied to distinguish the Rajasthan decisions and to support the conclusion that where the Custodian General's order stands, the subordinate officer's order is merged and cannot be treated as the operative order for purpose of quashing under Article 226 of a local High Court. |
Court's Reasoning and Analysis
The Court began by reframing the question referred to the Full Bench: in light of Supreme Court decisions, no High Court can issue a writ effective beyond its territorial jurisdiction; therefore the real question is whether this High Court can issue a mandamus to the local Custodian commanding him to treat as null a revisional order made by the Custodian General at New Delhi under Section 27 of the Act.
The Court analyzed the petitioners' contention that, although the Custodian General's order could not be quashed by this Court, this Court might nonetheless examine that order and, if found contrary to law, direct the Additional Custodian to ignore it and act as if his own order (dated 29 July 1952) remained valid. The Court rejected this approach for two principal reasons disclosed in the opinion:
- Jurisdictional limitation: Following the cited Supreme Court authorities (Election Commission v. Venkata Rao and K.S. Rashid & Son), a High Court cannot issue a writ effective beyond its territorial limits; hence it cannot issue a writ that would neutralize an order made outside its territorial jurisdiction.
- Principle against indirect displacement of a higher authority's final order: The Court invoked the principle from Janardhan Reddy that a court cannot do indirectly what it lacks power to do directly. If this Court were to examine the Custodian General's order, declare it invalid or treat it as a nullity, and thereby compel a local official to act contrary to it, the Court would be effectively setting aside that higher authority's order indirectly. Because the Court has no power to quash the Custodian General's order made outside its jurisdiction, it likewise has no power to accomplish the same effect by issuing a mandamus directed at a local officer.
The Court also noted a technical procedural point: the Additional Custodian (the officer whom the petitioners asked to be commanded to ignore the Custodian General's order) had not been made a party to the petition. Although the Court treated this as a technical objection, it reinforced the conclusion that the Court had no basis upon which to issue the mandamus sought.
The Court reviewed the authorities relied upon by the petitioners. It found the Travancore‑Cochin Full Bench decision distinguishable because in that case the local official resided within the State and a writ against him would be sufficient to prevent the alleged mischief — a circumstance materially different from the present case where the revisional order of the Custodian General stood and had effectively superseded the subordinate order. The Rajasthan decisions were also distinguished on the ground that they turned on treating the subordinate officer's order as the operative order; but the Allahabad decision in Mohammad Yusuf establishes that a Custodian General's order merges and supersedes the subordinate order, making those Rajasthan decisions not applicable to the present situation.
Finally, the Court observed that it was not contended that the Custodian General lacked jurisdiction to make the order under Section 27; therefore there was no occasion to decide issues arising from excess of jurisdiction.
Holding and Implications
Core Ruling: ANSWERED IN THE NEGATIVE. The Court held that it cannot issue a writ of mandamus to the Custodian of Evacuee Property, U.P., commanding him not to give effect to or to treat as a nullity a quasi‑judicial order made by the Custodian General so long as that order remains valid and subsisting.
Direct consequences:
- The petition for the writ relief sought (i.e., a mandamus directing local officials to ignore the Custodian General's revisional order) cannot be sustained on the basis argued before this Court.
- The petition will be placed with the opinion before the Bench which made the reference for final hearing (i.e., procedural continuation, but no direction issued to treat the Custodian General's order as void).
Broader implications: The opinion rests on existing Supreme Court authority limiting a High Court's territorial writ jurisdiction and on the principle that a court cannot indirectly do what it has no jurisdiction to do directly. The opinion does not purport to create a new precedent beyond applying those principles; it confines itself to the direct effect on the petitioners' ability to obtain the specific relief sought in this Court.
D.S.P
Mootham, C.J:— The following question has been referred to a Full Bench by two learned Judges of this Court:
“Where the relief claimed is a writ of ‘mandamus’ relating to property situate within the jurisdiction of one High Court directed to an officer residing within the jurisdiction of that Court and it was that officer who and whose subordinates, also residing within the jurisdiction of the same High Court, originally passed the orders complained of but the writ cannot issue without setting aside, in exercise of the power of ‘certiorari’, the order passed in appeal or revision by an authority residing outside the jurisdiction of that High Court and within the jurisdiction of another High Court, which is the High Court competent under Article 226 of the Constitution to issue the writ?”
2. It is necessary to state shortly the circumstances in which the reference has been made. On 3-9-1949, the Deputy Custodian of Evacuee Property, Gonda, in the exercise of powers vested in him under the United Provinces Administration of Evacuee Property Ordinance, 1949, declared certain persons to be evacuees and their property to be evacuee property. The petitioners now before this Court claimed to be sub-tenants of the evacuee, and they were allowed by the Assistant Custodian to remain in possession of the property upon the first petitioner being appointed supurddar. The Assistant Custodian subsequently formed the opinion that the petitioners' claim to be sub-tenants was fictitious, and he made a report to that effect to the Deputy Custodian who, on 10-5-1952, passed two orders directing that the petitioners be evicted from the property and that the latter be allotted to certain other persons. Against these orders applications in revision were filed by the petitioners before the Additional Custodian it being asserted on their behalf that they had not been afforded an opportunity of contesting the notice of surrender served upon them under Section 8 of the Administration of Evacuee Property Act, 1950 (which had replaced the original Ordinance) read with R. 8 of the Rules made under the Act. By an order dated 29-7-1952, both applications were allowed. The orders of 10-5-1952, were set aside, and the Additional Custodian directed possession of the property to be restored to the petitioners. The matter then went to the Custodian General who, by an order dated 21-11-1952, made in exercise of his powers under S. 27 of the Act, quashed the order of the Additional Custodian and restored the two orders of the Deputy Custodian dated 10-5-1952.
3. The petitioners thereupon filed a petition in this Court under Article 226 of the Constitution. The only person made the respondent to the petition was “The Custodian, Evacuee Property, U.P, Lucknow”, and the prayer was that a
“Writ, direction or order of the nature of ‘mandamus’, prohibition or ‘certiorari’ or any of these may be issued, quashing the order of the learned Custodian General so far as it relates to applicants, and a direction be issued to the opposite party to issue a proper notice under S. 8(4) Evacuee Property Act (to the applicants) and of giving the applicants an opportunity to contest the said notice of eviction after holding that the notice of the learned Custodian General so far as it relates to the applicants is ultra vires and illegal and without jurisdiction.”
4. When the petition first came on for hearing, a preliminary objection was taken by the respondent that as the Custodian General had his office in Delhi and the order which the petitioners sought to have quashed had been passed in Delhi, the Court had no jurisdiction to issue the writs prayed for or any of them. The learned Judges being of opinion that this objection raised an important question of law, accordingly referred to a Full Bench the question which we have already set out.
5. With great respect we do not think that the question propounded is really the question that arises in this case. It is now clear, and learned counsel for the petitioners concedes, that after the decision of the Supreme Court in — ‘Election Commission, India v. Venkata Rao’, AIR 1953 SC 210 (A), and — ‘K.S Rashid & Son v. Income Tax Investigation Commission’, AIR 1954 SC 207 (B), no High Court can issue a writ which will be effective beyond the limits of its own territorial jurisdiction. It therefore follows that no other High Court can issue a writ to an official who resides within the jurisdiction of this Court. After hearing counsel for the petitioners, the real question which in our opinion arises is whether this Court can issue a writ of ‘mandamus’ to the respondent, the Custodian of Evacuee Property, U.P, commanding him to treat as a nullity an order made by the Custodian General in New Delhi in the exercise of his revisional powers under Section 27 of the Administration of Evacuee Property Act, 1950.
6. We are of opinion both on principle and authority that the answer to this question must be in the negative. It is argued for the petitioners that they have a legal right to contest the notices issued to them under R. 5 read with S. 8(4) of the Act; that right has been denied by the Custodian General, and that this Court, although it cannot quash the Custodian General's order, can examine that order and, if it finds that it is contrary to law, can issue a ‘mandamus’ to the Additional Custodian commanding him to ignore the order and proceed on the basis that his own order of 29-7-1952, is a valid and subsisting order. Apart from the technical objection that the Additional Custodian has not been made a party to the petition, we are of opinion that as this Court has no jurisdiction to quash the Custodian General's order it has no power to examine the validity of the order.
7. In — ‘Janardhan Reddy v. State of Hyderabad’, AIR 1951 SC 217 (C) the petitioners had been convicted of certain offences, including murder, and sentenced to death by a Special Tribunal constituted under the Special Tribunals Regulation enacted by the Nizam of Hyderabad. The convictions and sentences were subsequently confirmed by the Hyderabad High Court. After the Constitution came into force the petitioners filed petitions under Article 32 in the Supreme Court challenging the validity of their convictions. They did not in the petition as originally presented to the Supreme Court apply for the issue of writs of ‘habeas corpus’, but at a late stage of the hearing an application to amend by including such a prayer was made on their behalf and was allowed. The argument on their behalf was that their detention was illegal from day to day as it was based on an order made without jurisdiction and that order, even if it could not be quashed, could be ignored as a nullity. The Supreme Court refused to grant the writs, and one of the grounds on which it did so was that the judgment of the High Court affirming the conviction of the petitioners having acquired finality before the coming into force of the Constitution on 26-1-1950, the question of the validity of the convictions could not thereafter be challenged. Their Lordships said, at page 225 of the report:
“Can then a new law or a change in the old law entitle us to reopen a transaction which has become closed and final? It is common ground that the provisions of the Constitution which are invoked here were not intended to operate retrospectively, and therefore something which was legally good on the 25th January, 1950, cannot be held to have become bad on the 26th of January, 1950. If we had no jurisdiction to sit in appeal over the judgment of the Hyderabad High Court, can we now reinvestigate the cases and pass orders which cannot be passed without virtually setting aside the judgments of the High Court which have become final? Can we in other words, do indirectly what we refused to do directly? It is argued that we are asked not to reopen a past transaction but to deal with the present detention of the petitioners i.e, their detention at this moment. But, how can we hold the present detention to be invalid, unless we reopen what could not be reopened prior to 26th January, 1950? This is, in our opinion, one of the greatest difficulties which the petitioners have to face, and it rests not merely on technical grounds but on sound legal principles which have always been, and should be respected.”
8. In our opinion it is no less clear that we cannot do indirectly what we have no power to do directly. We have no power to set aside the Custodian General's order; it is so far as this Court is concerned, a final order. If we examine the grounds of that order for the purpose, should we find the order to be invalid, of declaring it to be a nullity, we are in effect doing indirectly what we cannot do directly.
9. Until the Custodian General's order be quashed or set aside by a Court competent to do so, this Court must deem the order to be a valid order, and there is consequently no material upon the basis of which we can issue the ‘mandamus’ which the petitioners seek.
10. Learned counsel for the petitioners has relied on a decision of the Travancore-Cochin High Court in — ‘Thangalkunju Musaliar v. Venkitachalam Potti’, AIR 1954 Trav-C 131 (FB) (D) as authority for the proposition that a High Court can issue a writ of mandamus commanding a person within its jurisdiction not to carry out a quasi-judicial order which the Court has no power to quash. In that case the petitioner had applied for a writ of prohibition to prohibit the respondents from holding an inquiry into certain cases on the file of the Income-tax Investigation Commission of Travancore, and from holding an investigation into his income. The first respondent was the Authorised Official and Income-tax Officer on Special Duty, Trivandrum, and the second respondent was the Income-tax Investigation Commission at New Delhi. A preliminary objection was taken that the Court was not competent to entertain the petition in view of the fact that the second respondent was not amenable to its jurisdiction. The Court overruled the preliminary objection, its reason being summarised in the following paragraph:
“The first respondent in this case is a resident within the State of Travancore-Cochin and his office is situate at Trivandrum. All his communications to the petitioner have emanated from within the State and the activities complained about are activities confined to the State. The prayer in the petition is in essence a prayer to paralyse his hands and thus prevent the mischief, and we are of the opinion that by his residence and the location of his office within the State, he is clearly amenable to the jurisdiction of this Court under Article 226 of the Constitution. As a writ against the first respondent if issued is sufficient for stopping completely the mischief complained about, it is unnecessary for us to decide whether a writ can be issued or not as far as the Second respondent is concerned.”
11. The Enactment under which the investigation into the petitioner's income was proposed to be made was the Travancore Taxation of Income (Investigation Commission) Act, 1124. That Act is not available to us and it is somewhat difficult from the report to appreciate precisely the circumstances upon which the judgment proceeds. It appears, however, that by a notification dated 18-10-1951, the first respondent had been appointed by the Central Income-tax Investigation Commission to be an “authorised official” under Section 6 of the Travancore Act, and that the inquiry was being conducted under the provisions of the latter Act. If this be so, it is somewhat difficult to see why it was considered necessary to make the second respondent a party to the petition at all, for the act of this Commission in nominating the respondent would seem clearly to have been an executive act. It appears that the first respondent was purporting to conduct the proposed investigation under powers which he derived from the Travancore Act, and in such circumstances there would seem to be no reason why, if it thought fit, the Travancore-Cochin Court should not (as in fact it did) issue a writ of prohibition to the first respondent. It appears to us that this decision is no authority for the proposition for which it was cited.
12. The petitioners also relied on two cases of the Rajasthan High Court — ‘Har Prasad v. Union of India’, AIR 1954 Raj 189 (E) and — ‘Barkatali v. Custodian General of Evacuee Property of India’, AIR 1954 Raj 214 (F). In each of these cases, the order of a subordinate officer within the jurisdiction of the High Court had been confirmed by higher authority outside the jurisdiction. The Court in each case held that in these circumstances the real order against which relief was sought was the order of the subordinate officer, and that order the Court had jurisdiction to quash under Article 226. This Court has however held in — ‘Mohammad Yusuf v. Custodian General, Evacuee Properties’, AIR 1954 All 433 (G) that an order of the Custodian General, even if it does no more than affirm the order of an Assistant Custodian, supersedes the latter order which becomes merged in the former; and it is further to be noted the Rajasthan High Court observed that the legal position would have been different if—as in the petition now before us—the order of the subordinate officer had been set aside by the superior authority. The two Rajasthan cases are therefore clearly distinguishable.
13. It has not been contended that the Custodian General had no jurisdiction to make his order of 21-11-1952, in the exercise of his revisional powers under S. 27 of the Act; it is not therefore necessary for us to consider the legal issues which would arise were he to act in excess of his jurisdiction.
14. In our opinion this Court cannot issue a writ of mandamus to the Custodian of Evacuee Property, U.P commanding him not to give effect to or to treat as a nullity a quasi judicial order made by the Custodian General so long as that order is a valid and subsisting order. The Petition will now be placed with this opinion before the Bench which made the reference for final hearing.
D.S.P
15. Answered in negative.
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