HAJI ESMAIL NOOR MOHAMMAD AND CO HAJI ESMAIL NOOR MOHAMMAD AND CO HAJI ESMAIL NOOR MOHAMMAD AND CO Vs. COMPETENT OFFICER LUCKNOW:COMPETENT OFFICER LUCKNOW

JUDGEMENT

(1.) The writ petition and the two appeals are connected and they arise out of a dispute under the Evacuee Interest (Separation) Act, 1951, (Act No. 64 of 1951) in regard to a partnership firm carrying on business in the name and style of Messrs. Hajee Esmail Noor Mohammad and Co. Its principal place of business is Calcutta and it has branches at Kanpur and Bombay. In 1947 a partnership deed was executed in respect of the said business. Though the business continued to be carried on under the said name, from time to time having regard to the exigencies, new partnership deeds were executed. In the year 1948, Abdul Latif Hajee Esmail, one of the partners of the firm, 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 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', came into force. Thereafter, on April 17, 1950. The Administration of Evacuee Property Act, 1950 (Act 31 of 1950) came into force. On May 31, 1950, the Deputy Custodian of Evacuee Property (Judicial), Allahabad Circle, Kanpur in the objection petition filed by the firm found that Abdul Latif Hajee Esmail was an evacuee, that the notice issued by him to the firm was invalid, as it was not given to the individual partners thereof, that the said Abdul Latif Hajee Esmail would be deemed to be continuing as a partner, that he was an evacuee and that, therefore, his share in the partnership vested in the Custodian. In the result he declared that the share of Abdul Latif Hajee Esmail in the firm, which was annas 5 out of annas19 and pies 3, was evacuee property. He released the other shares from attachment. No appeal was filed against that order. On December 13, 1952, the Competent Officer, Kanpur, sent separate notices under S. 6 of the Evacuee Interest (Separation) Act, 1951 (Central Act 64 of 1951), to each of the partners of the firm calling upon them to file their claim for the purpose of determining the interest of the evacuee in the partnership business. In March 1953, the firm filed a petition under S. 7 of the Central Act 64 of 1951 claiming 14 annas and 3 pies share out of the total share of 19 annas and 3 pies of the Kanpur branch of the partnership firm. On December 31, 1953, Abdul Latif Hajee Esmail died. On September 12, 1959, the firm raised various objections, including one of jurisdiction, the main objection being that Abdul Latif Hajee Esmai1 was not partner of the present firm. The Competent Officer rejected all the objections and held by his order, dated November 10, 1950 that the firm was accountable to the Custodian respect of the assets and profits of the firm so far as it related to the Kanpur Branch of the firm, from February 10, 1949 upto the date of the order. The firm preferred an appeal against that order to the Appellate Officer appointed under Central Act 64 of 1951. On April 25, 1960, the Appellate Officer dismissed the appeal. Thereafter, on July 25, 1960, the firm filed a petition in the High Court of Allahabad under Art. 226 of the Constitution against respondents 1 and 2 for quashing their order and for issuing an appropriate writ or suitable directions against all or any of the respondents. On September 25, 1961, the firm 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 inas-much 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.

(2.) We shall first take the petition filed in this Court under Art. 32 of the Constitution.

(3.) 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. Ordinance No. 1 of 1949 and, therefore, the orders of the Competent Officer or of the Appellate Officer were without jurisdiction. (2) The decisions given by the two officers were also without jurisdiction as no notice was issued and as no declaration was made under S.7 of the Central Ordinance No. 27 of 1949 or of the Central Act 31 of 1950. (3) The said officers also had no jurisdiction to pass any order relating to the share of Abdul Latif Hajee Esmail confined only to the Kanpur branch of the firm. (4) In any case, the said Officers committed an error in holding that Abdul Latif Hajee Esmail had a subsisting share in the partnership even after February 10, 1949 and August 8, 1949, i.e., after the dates of reconstitution of the partnership.