BHAGWAN DAS Vs. APPELLATE OFFICER

JUDGEMENT

(1.) The facts in this writ petition are numerous but having regard to the limited question raised at the bar, it would be necessary only to state a few of them. The petitioner, along with his brother Panna Lal, the father of respondent Banwari Lal (respondent No. 4), was carrying on business in partnership under the name of Bijjamal Melaram. On 2nd January, 19 9, the said two brothers entered into a partnership with one Abdul Rehman Raji Ghani carrying on business as Moosa Umar and company in Bombay and the new firm was named as Bijjamal Moosa Umar. The petitioner and Panna Lal had one-fourth share each in the partnership, while Abdul Rehman Raji Ghani had one-half. On 16th May, 1949, there were certain variations made in the terms of partnership, the duration where of was fixed at five years It was agreed that the tenancy rights in the business premises, the goodwill and telephone shall, on dissolution, belong exclusively to Abdul Rehman Haji Ghani. Abdul Rehman Haji Ghani died on 14th December, 1949, and since his heirs were all evacuees, the business including the stock intrade and tenancy rights of the firm Bijjamal Moosa Umar, being carried on at two different places in Bombay, was declared evacuee property. It is claimed by the petitioner that the business was still continued and carried on by Panna Lal, the father of respondent No. 4. Differences arose between the petitioner and Panna Lal and the dispute was referred to arbitration. The firm Bijjamal Melaram was dissolved. The arbitrator is alleged to have issued some interim directions, under which the control and business of the firm Bijjamal Moosa Umar in Bombay was saken over by Panna Lal to the exclusion of the petitioner. According to the petitioner, a complete inventory of the stocks lying in the Bombay shops was prepared and possession taken by Panna Lal to the exclusion of the petitioner. The arbitration to Dr. Gopi Chand Bhargava was, however, revoked and it appears that some new arbitrator was appointed. A notice under section 6 of the Evacuee Interest (Separation) Act, 1951, was issued to the petitioner and Panna Lal on 7th November, 1952, and in response thereto the petitioner claimed one-fourth share in the firm Bijjamal Moosa Umar. Panna Lal also filed a claim alleging that he was sole owner of the composite property, the suggestion being that the deceased's interest had been sold to him. The Deputy Custodian of Evacue property disputed Panna Lal's claim as to the sole ownership and asked for accounts from Panna Lal. The competent office issued interim directions to Panna Lal to furnish security for Rs. 45.000.00 failing which the possession of the assets of the business etc. shall be taken from him. Panna Lal complied with that order and also undertook to maintain stocks in the shop of the value of not less than Rs. 60,000.00 , which undertaking had also been called for from Panna Lal by the competent officer. On 27th September, 1954, certain compromise terms were recorded to which the Assistant Custodian of Evacuee Property, Bombay, the petitioner and Panna Lal were parties. It was, by the said terms, agreed that the accounts of the firm Bijjamal Moosa Umar be taken till 31 December, 1953, and thereafter the business will be run by Panna Lal on his own account and the other partners will not be liable for profits or losses. It was further agreed that Panna Lal will be liable to make good the value of the assets of the firm as on 31st December, 1953. The competent officer passed an order on 5th November, 1954, declaring that-

(2.) Panna Lal died on 15th July, 1957, and the appellate officer disposed of the appeal on 28th February, 1958. While summing up the findings of the Competent officer, the appellate officer said, "He further held that a sum of Rs. 68.510/7.00 is due to the evacuee as his share in the property and directed the claimant to pay the amount to the Custodian with interest at 4 per cent per annum from 31.12 1953 till the date of payment." I may mention here that, according to the petitioner, the entire tenor o{ the competent officer's order as well as the order of the appellate officer shows that both the authorities were, while disposing of the matter, acting under an assumption that the petitioner had no personal liability to pay and the extent of evacuee's interest in the firm was decided on that assumption. It has been suggested that it was lor this reason that the appellate officer, in the quotation extracted above, used the word -claimant' and not the word 'Claimants' and this was in conformity with the consent terms dated 27th September, 1954, mentioned hereinabove, wherein it had been agreed that, "Shri Panna Lal will also be liable to make good the Value of the assets of the firm as on 31-121953." With these two orders, the petitioner has made no grievance before me so far as the determination of liability to pay to the Custodian is concerned as, acco ding to him, Panna Lal alone had been held liable to pay. As a matter of fact, the learned counsel for the petitioner says that he is happy with the order of the competent officer and the appellate officer as it stands. The real trouble, according to the petitioner, arises by reason of the order dated 31st December, 1959, made by Shri M. L. Vijh appellate officer, on a review application made by the petitioner asking for review of the order dated 28th February, 1958. In paragraph 47 of the order dated 28th February, 1958, the appellate officer says, "The Custodian is entitled to this amount and interest at 4 per cent per annum from 31. 12. 1953 till the date of payment.' The non-evacuee 'claimants' should pay the amount by 30 4-1958 and in default the property should be sold." Similarly, in an earlier part in paragraph 46, the appellate officer has said, "The learned competent officer had also Valued goodwill, premises, telephone, furniture etc. at Rs. 50.000.00 and had asked the parties if they wanted to purchase the premises. It is common- ground now before me that on the dissolution of the partnership, the goodwill, tenancy rights, fittings, furniture and the telephone exclusively belong to the Custodian. It is, therefore, not composite property. The Custodian may allot to any person he likes. It may, however, be mentioned that the value of these rights has been estimated by the competent officer at Rs. 50,000.00 The Custodian before allotting these rights to any person should, however, insist on payment of the amount held as due fromr the firm." By review application, the petitioner asked for correction of the following accidental slips or omission :-

(3.) The appellate officer, while dealing with the review application. rejects the same holding that. the words 'the firm' used in paragraph 46 of the order dated 28th February, 1958, meant the first of Bijjamal Melaram and that the appellate officer rightly used the word 'claimants' in paragraph 47. It does appear that the appellate officer, while dismissing the review application, was not quite correct in the reading of paragraph 46 of the order dated 28th February, 1958. The words 'the firm' there, obviously, could not mean the firm Bijjamal Melaram, because the said paraeraph was dealing with the property which was held not to be a composite property but as belonging to the evacuees exclusively. Since this property was to be taken away by the Custodian and allotted to somebody else, it appears that the appellate officer could not have intended to burdon the firm Bijjamal Melaram for payment of this sum of Rs. 50.000.00 This controversy, however does not very much arise now before me, though aid has been sought from this in support of the plea urged by the petitioner that the appellate officer's entire approach was vitiated by this finding inasmuch as it led him to believe that the liability to pay to the Custodian lay not only with Panna Lal, but with the petitioner as well.