A.H Khan, J.:— This is an application for the issue of a writ in the nature of Certiorari, quashing the proceedings of the Custodian of the evacuee-property and also for a writ of mandamus, ordering him to restore the possession of the shop to the petitioner who on the admission of the Costodian himself is not an evacuee.

2. The facts, in brief, leading to the petition are that the petitioner Haji Suleman Yusuf has been doing some business in cutlery under the name and style of “Haji Suleman Yusuf Bhai” in a shop owned by him for the last thirty years at Bonzaquet Market, Indore. He has had four sons, three of whom went to Pakistan and are admittedly evacuees. On 22-9-49, the Custodian of the Madhya Bharat State, holding that the sons and the father were running the shop jointly, declared the cutlery shop and one godown of Haji Suleman as an evacuee-property and ordered the shop and godown to be sealed. In passing the above order, the Custodian purported to act under Section 5 of Ordinance No. 56 of the Madhya Bharat Government. Later on a claim was made by Haji Suleman Yusuf that the business belonged exclusively to him. An investigation was made and on 18-3-1950, the Custodian rejected the claim petition, confirming his previous decision. He also directed the Deputy Custodian to take charge of this property and said that as it would not be profitable to run the business, he authorised the Deputy Custodian to take steps for the final disposal of the goods lying in the shop and godown, of which inventories had already been made, and to send tenders for the sale of goods for his approval.

3. Subsequent to the above decision of the Custodian dated 18-3-1950, the petitioner alleges that he gave several applications for the removal of the goods that had been declared an evacuee-property and to let him have the shop—the building in which the goods were stocked — so that he may re-start his business but no heed was paid to him. It is stated by the counsel for the applicant that the goods were under two locks the applicant had put on one of his paddock and the other was that of the Custodian. Nothing was actually done under the order of the Custodian dated 18-3-50 till 1st March 1952, when without notice to him, his lock was broken open and the goods therein were sold.

4. Along with this, the shop (the building) which contained the goods was also allotted to someone by the Custodian. The applicant is aggrieved by this order and his contention is that the order of 1-3-1952 violates the rights guaranteed to him under the Constitution. It is submitted that the shop (building) exclusively belongs to him, and that it was constructed by him when no sons were born to him. The building was never declared an evacuee property, and, that in allotting it, the Custodian exercised a jurisdiction not vested in him. It is contended that the orders of the Custodian are illegal and not in accordance with law and as such they should be quashed and the Custodian be asked to return the shop to the applicant.

5. In the return submitted by the Custodian it is said that the applicants have not preferred an appeal to the Custodian General against the order of the Custodian, and, by not doing so, they have disentitled themselves from seeking any redress under Article 226 of the Constitution. That all orders passed by the Custodian are according to law and in the circumstances his jurisdiction cannot be challenged. It is also stated that all the rights and interests of evacuees in the property of Haji Suleman Yusuf Bhai, including the occupancy and tenancy rights in the shop have been declared evacuee property under the law. In support of this, along with the return, the Custodian has filed an order dated 14-3-51 declaring the tenancy right to be evacuee property. It is submitted on behalf of the Custodian that there has been for this reason no violation of the rights of the applicants and that his application should be dismissed.

6. We have heard lengthy arguments that have been addressed to us by the learned counsel of both the parties, and, we are grateful to the learned Advocate General for the assistance he has afforded us in considering the matter before us.

7. After stating the facts which are submitted by the parties, let us set down the points for decision. They are:

(1) That the orders of the Custodian dated 22-9-49, declaring the cutlery shop and the go-down as evacuee property under Ordinance 56 of 1949 (M.B) and his subsequent decision, rejecting the claim petition on 18-3-50 are illegal and wrong.

(2) That without declaring the shop (building) to be an evacuee property, the Custodian has inter meddled with it and allotted it to a person without any jurisdiction.

8. Before tackling these points, let us make a brief survey of the law under which all these orders are passed. For the administration of the evacuee-property, the State of Madhya Bharat promulgated an Ordinance No. 56 on 9th August 1949. Subsequent to this, a Central Ordinance No. 27 of 1949 came in force from 18-10-1949, which repealed the Madhya Bharat Ordinance No. 56 of 1949 by reason of Section 55 of the Ordinance. This Central Ordinance No. 27, was later on replaced by the Central Act, Act No. 31 of 1950, which became effective from 18-4-1950. One peculiar feature of the legislation on the subject is that Section 55, Central Ordinance No. 27, provides that any action, done prior to the coming in force of the Ordinance No. 27, shall be deemed to have been done in exercise of the powers conferred by the Ordinance, as if the Ordinance was in force on the day the act was done.

9. The legislature thus made the Ordinance No. 27 operate ex post facto and when the Ordinance No. 27 was replaced by Act No. 31, Section 58 of the Act, by use of a similar language as was employed in S. 55 of the Ordinance No. 27, made the Act, so to speak, an antedated legislation. Thus the Parliament in its wisdom and legislative competence enacted the law in such a way that the true position to day is that if any act relating to administration of evacuee property is challenged as illegal, that act shad have to be judged with reference to the provisions of Act 31 of 1960. It is not disputed by any one that in spite of S. 43 of the Act it is open to a party to approach the High Court and enailenge the validity of an order passed or any action taken by the Custodian, if the order passed or the action then is either in excess of jurisdiction or in the improper exercise of the jurisdiction conferred by the Act.

10. Such orders can also be challenged if they contravene any of the fundamental rights guaranteed to the citizen of India by the Constitution. The whole gamut of the subject has been adequate and very ably considered by Chagia, C.J in — ‘Abdul Majid v. P.R Nayak’, AIR 1951 Bom 440 (A). I am in complete agreement with the observations made by him and I am happily relieved of the necessity to reconsider the proposition over again.

11. Before considering the points raised by the applicants in this case, I find that this petition, is filed by Haji Suieman Yusuf (the father) and his son, Noor Mohammad. The main contention of the applicants is that Haji Suleman Yusuf has been the exclusive proprietor of the shop and the stock-in-trade and that if his sons have gone to Pakistan, his rights in the property are in no way affected thereby because according to Mahommadan Law, a son does not acquire any right by birth in his father's property. Accepting this contention as a correct statement of law, I do not quite see how the son is one of the applicants. He has no legal status. On his father's own showing his name should be deleted from the list of applicants as he has no locus standi. I shall, therefore, now consider this application as being presented by Haji Suleman Yusuf alone.

12. Coming now to the consideration of two points submitted by the applicant, let us consider the first point.

13. The Custodian passed his first order, declaring the property to be evacuee-property on 22-9-49. The view taken by the Custodian was that as the father (Haji Suleman Yusuf) was running the shop (doing business) with his sons, the sons had an interest in the property, and as they had gone to Pakistan, under the Madhya Bharat Ordinance No. 56 of 1949, the property was an ??? property and by virtue of S. 5 of the Ordinance No. 56, it became vested in the Custodian. So far, without expressing any opinion about the merits of the case, the action of the Custodian cannot be said to be without jurisdiction.

14. The claim petition was filed by the applicant on 21-11-49. At this time no doubt the Central Ordinance No. 27 had come in force (it came in force on 18-10-49) but the enquiry in the matter was conducted under Madhya Bnarat Ordinance No. 5th of 1949. Was this right? The learned counsel for the applicant says that the M.B Ordinance having come to an end by S. 55, Central Ordinance No. 27 of 1949, the entire enquiry was illegal because it was under a law that had been repealed.

15. The learned Advocate General has drawn our attention to S. 8 of the Ordinance No. 27 and also S. 8 of the Act No. 31 of 1950 (both sections are identical) and he contends that in pending cases the property that had already vested in the Custodian would continue to so vest and that according to the proviso, the pending proceeding shall be disposed of as if the definition of evacuee property and evacuee in S. 2 of the Act, had become applicable thereto. This raises the question whether the proceedings should be regarded as pending proceedings. The proceedings must be deemed to relate back to the period when the Custodian declared the property as evacuee property. In this view of the matter the proceedings commenced from 22-9-49 and they were pending and all that the Custodian had to see was whether the property was evacuee property as defined in Section 2 of the Act. Section 2 of the Act defines evacuee property thus:

“Evacuee property means any property in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in any other capacity)”

16. Now the Custodian had declared the property to be evacuee property on the ground that the sons had an interest in the business and for this reason (bearing S. 8 of the Ordinance No. 27 in mind) the decision of the Custodian in a pending case cannot be said to be without jurisdiction.

17. The learned counsel for the applicant has contended that the orders of the Custodian dated 22-9-49 and 18-3-50 themselves admit that the applicant has at least a share in the business and as such the whole property was not an evacuee property and that the Custodian should have seized only so much of it that consisted of the shares of the evacuees. But having regard to the definition of evacuee property in S. 2 of the Act, which has been referred to above, any property in which an evacuee has a share or interest, however small it may be becomes evacuee property. In this particular case under S. 5 of the Ordinance No. 56 of 1949 (Madhya Bharat), the property became vested in the Custodian and by virtue of S. 8 of the Act No. 31 of 1959, it continues to be so vested. I do not, therefore see a patent lack of jurisdiction in the Custodian. The Allahabad High Court in — ‘Asiatic Engineering Co. v. Achhru Ram’, AIR 1951 All 746 (FB) (B), has held that although at first sight this provision may appear to be a harsh one, yet the Court cannot for that reason hold the Act as ultra vires of the Constitution.

18. The learned counsel for the Custodian has invited our attention to Act 64 of 1951, known as Evacuee Interest (Separation) Act of 1951. It provides for the separation of the interests of the Evacuees from those of non-evacuees. Under this Act, it is contended by the learned counsel for the Custodian that the applicant can have his interest separated. The argument has force in it and however ??? the earlier provision may appear to be, it cannot be denied that this enactment has mitigated its rigour.

19. The learned Advocate General has addressed an argument which needs to be noticed. He has urged that one of the orders, which the applicant seeks to impeach was passed as far back as 18-3-1950 — two years have elapsed since the order was passed and at this distant period of time, we should refuse to issue a high prerogative writ. It is true Chat the applicant has sought to challenge an order that was passed two years ago, and in order nary cases the Court would on ??? to exercise its discretion where there have been latches. The ambit of the power of the High Court under Article 226 of the Constitution has been a subject of considerable judicial discussion. In considering, the question of limitation, I would point out that no article of the Limitation Act has prescribed any period within which an application for a writ should be made.

20. In the absence of any specific legislation, I would not of my own motion put limitations upon the power which should continue to remain unuammelled in order to be made use of, as and when the occasion may demand their exercise. I would venture to suggest that in so far as a writ is sought on the ground of the violation of some fundamental right, the breach should be regarded to be a continuing wrong and as such the question of limitation does not arise. The learned Advocate General has referred to Volume 9 of Halsbury Laws of England, page 898, and, relying upon it has urged that a writ of certiorari cannot be granted unless it is applied within six calendar months. A careful perusal of the English law would show that at first this period was fixed by a Statute but later on it was repealed. Now the period is fixed not by a statute, but by Rule 21 of the Crown Office Rules, and, because the period of six months is not a statutory period, the English Court is empowered to extend it.

21. This shows that the period of six months even according to English Law is not the inflexible rule. Besides this, I would not like to follow the English, Law in this respect, the reason being that the English Constitution is not a written Constitution and there are no such fundamental rights as are the special features of our written Constitution. But I have held above that the orders of the Custodian (dated 22-9-49 and 18-3-50) do not infringe any fundamental rights and, therefore no question of issuing a writ in respect of orders dated 22-9-49 and 13-3-50 at all arises.

22. The learned Advocate General has also stated that against the order of the Custodian dated 13-3-51 the applicant preferred a ‘Misc. Appeal No. 28 of 1950 (MB) (C)’ before this High Court, which was disposed of in limine. It was held referring, to a Division Bench of this Court ‘(Civil Misc. Appeal No. 36 of 1950 (MB) (D)’ of which I was a member, that no appeal lies to High Court from the order of the Custodian, and, that the proper remedy was to appeal to Custodian General from the decision of the Custodian. The appeal was in consequence returned to the applicant for presentation to the proper authority. It seems that the applicant has not gone up in appeal to the Custodian General and has preferred to file this writ. But as the applicant has not so far made out a case for the issue of a writ, it is unnecessary to consider this aspect of the matter.

23. For reasons stated above, I do not find any substance in the first contention of the applicant.

24. Regarding the second point, namely that without declaring the shop (building) to be an evacuee property the Custodian has allotted it to some one and this act of the Custodian is without jurisdiction, we have first to determine whether the first order of the Custodian dated 22-9-49, declaring the goods to be an evacuee property included the shop (building) or not. The first order dated 22-9-49 is not very clear on the point, but the subsequent order dated 18-3-50, whereby the claim petition of the applicant was rejected makes it abundantly clear that the building was neither declared an evacuee property nor was it otherwise dealt with as such. The order runs thus:

“The Deputy Custodian Indore will now finally take charge of this property and as it would not at all be profitable to run this petty shop under the Department's management, he is hereby authorised by me to take steps for the final disposal of the goods lying in the shop and godown which still remain sealed and locked. Complete inventories of the goods were then prepared, and are on file.”

25. The inventories referred to in the order and contained in file No. 468.R of 1949 of the office of the Custodian bear the following note:

“The Ghumti in which the shop is, belongs to Haji Suleman Yusuf Bhai and the land on which the Ghumti stands belongs to the Municipality.”

26. This note on the face of it shows that the shop (building) was regarded as belonging to Haji Suleman Yusuf Bhai, alone, and, as such no orders were passed about it, because the matter was not within the competence of the Custodian. This property was not at all treated as evacuee-property.

27. The learned Advocate General has referred to Section 5 of the Madhya Bharat Ordinance No. 50 of 1949 and has urged that all property of an evacuee vests in the Custodian whether the Custodian makes a declaration to that effect or not. It is true, but before the property vests in the Custodian it must be an evacuee property. Not only was it not so declared by the Custodian on 22-9-49 in his initial order, but in his subsequent order too, dated 18-3-1950, the Custodian did not regard it as evacuee property though he had the inventories before him in which this property was referred to. In the circumstances it is difficult to hold that the property vested in the Custodian till 18-3-50. There is another reason for holding this view. The return of the Custodian is accompanied by an order dated 14-3-1951, the relevant portion of which runs as follows:

“The premises mentioned in the list affixed thereof situated in Indore city, were under the occupation of tenants or persons who have been declared evacuees under the evacuee property administration laws, as applicable to the State of Madhya Bharat. All the rights and interests of the evacuees including occupancy or any tenancy rights in any property are evacuee property as defined in section 2(f) and 2(I) of Act 31 of 1950, and as such the same vest in me under the provision of the Evacuee property Administration Laws, as in my opinion the tenancy rights of persons, who have been declared as evacuees in any property come within the definition of any rights and interests. They are “therefore hereby declared as ‘evacuee rights’ and evacuee property within the meaning of the said Act, and vest in me and continue to so vest accordingly.”

28. It is by this order that the Custodian held the right of the tenancy to be a right in the property and declared it as evacuee property on 14-3-1951. Now on 14-3-51, not only the Madhya Bharat Ordinance No. 56 of 1949 had become defunct, but the Central Ordinance No. 27 of 1949 had also been replaced by Act 31 of 1950. If there was any reason to declare the shop (building) to be an evacuee property, or, in other words if there was reason to seize the lease-hold of the shop as evacuee property, the Custodian ought to have proceeded in the matter according to S. 7 of the Act No. 31 of 1950. The order specifically refers to the Act, binder which it is purported to be given, but it completely ignores its provisions in so far as the procedure laid down in S. 7 of the Act was not followed. Section 7(I) of the Act runs thus:

“Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act he may after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matters the circumstances of the case permit, pass an order declaring any such property to be evacuee property.”

29. This section requires three conditions to be satisfied before a property can be declared an evacuee property. First, the Custodian must be of opinion that the property is an evacuee property within the meaning of the Act; two, that he must cause a notice to be given and, three, that he must hold an enquiry. Till 18-3-1950, the Custodian did not think this property to be evacuee property — what led him to think that it was evacuee property is not clear from the record of the case sent to us by the Custodian. No notice, as required by the Act was given — in fact this order was passed without the applicant being given an opportunity to represent the matter.

30. The counsel for the applicant says that the copy of the order filed with the return is the first information to his client that the shop has been declared an evacuee property. The order is passed behind the applicant's back and is in violation of the principles of natural justice. Last but not least, no inquiry has been made as enjoined by S. 7 of the Act, There are three conditions precedent to the exercise of jurisdiction by the Custodian under Act 31 of 1950, and, if any of the conditions has not been complied with, here all the three conditions have been ignored, the order would be without jurisdiction. See ‘AIR 1951 Bombay 440 at p. 454 (A)’

31. Orders made by a Custodian are of quasijudicial nature and as held in ‘AIR 1951 Bom 440 (A)’ and — ‘Khurshed Mody v. Rent Controller, Bombay’, AIR 1947 Bom 46 (E) are capable of being corrected by High Court by a writ of certiorari in appropriate cases. It has been contended by the learned Advocate General and the learned counsel for the Custodian that there being an alternative remedy open to the applicant, namely the right of appeal to the Custodian General, we should not issue the high prerogative writ. But in ‘AIR 1947 Bom 46 (E)’ and in ‘AIR 1951 Bom 440 (A)’ it has been held,

“That although the High Court was ordinarily very loath to issue the high prerogative writ of certiorari if there was another suitable remedy open to the petitioner, as for instance, a right of appeal, it may issue a writ even though such a suitable remedy was open, if it was satisfied that the officer against whom the writ was sought had acted in a manner which was contrary to the fundamental principles of justice.”

32. It was also laid down in ‘AIR 1951 Bom 440 (A)’ that in a petition of this nature, the petitioner does not merely challenge the order on the ground, that it was without jurisdiction but also that the; order violated his fundamental right. The second, ground could not be urged before the Custodian. General and therefore it cannot be said that

“the petitioner was in error in coming to this Court on a consolidated petition challenging the order both on the ground that it violated the fundamental right and that it was violation of fundamental principles of justice.”

33. I have had occasion to refer to the violation of the principles of natural, justice, but I shall also point out that in so far as the petitioner has been deprived of his property, save by authority of law, it constitutes a violation of his fundamental right under Article 31(i) of the Constitution.

34. From the record of proceedings sent to us to the Custodian, we do not find that there were any lease-hold rights which the Custodian sought to seize. There is no evidence on record to show that any lease-hold rights were left by those who had migrated from Indore. The learned Advocate General has frankly conceded that if there are no lease-hold rights (and there appear to be none in this case) the order of the Custodian cannot be said to be in accordance with law. In so far as the Custodian ignored the provisions of Section 7 of Act 31 of 1950 and declared the lease-hold of the shop an evacuee property on 14-3-1951, lie acquired no jurisdiction to pass any order and acted not only in violation of the principles of natural justice, but he also violated petitioner's fundamental right of not being deprived of property save by authority of law. The second contention of the petitioner must, therefore, be accepted. In result, we hold that the order passed by the Custodian on 14-3-1951 holding the tenancy of shop to be evacuee-property and allotting it to a person is bad in law and is in consequence set aside. He is directed to restore possession of the shop (building) to the petitioner. No order as to the costs are made.

V.M Mehta, J.:— I agree.

35. Order accordingly.