ALLAUDIN ALLABUX Vs. M B MEHER

JUDGEMENT

(1.) This is a petition for a writ of certiorari or other writ, direction or order under Article 226 of the Constitution of India against the Additional Custodian of Evacuee Property, who is respondent 1, and the Deputy Custodian of Evacuee Property, who is respondent 2, to quash and get aside certain orders made by them. The matter arises in this way. The petitioner and cue Mahomed Shafi were partners and carried on business in the name and style of "Cafe Grant Bakery" at 36, Station Road, Bandra. The partners claim to have been beneficially interested in the tenancy rights of a portion of the premises at 36, Station Road, Bandra, which the partnership oaupiad, although the rent bill in respect thereof was made out in the name of Mahomed Shafi, By an order male on 12 9.1950, the Deputy Custodian of Evacuee Property declared the said Mahomed Shafi to be an evacuee, and his right, title and interest in the said partnership, viz , his 1/4th share, to be evacuee properly. A notification, dated 20-9-1950, was issued under Section 7(3), Administration of Evacuee Property Act, 18SO, notifying the said 1/4th share of Mahomed Shafi in the said partnership as evacuee property. The said Mahomed Shan had migrated to Pakistan in November 1947. It is alleged by the petitioners that Mahomed Shan retired from the partnership and surrendered in their favour all his right, title and interest in the said partnership. The petitioners, therefore, applied on 19- 10 1950, to the Deputy Custodian of Evacuee Property for confirmation of the relinquishment and surrender under Section 40, Administration of Evacuee Property Act, 1950. By an Order dated 21-11-1950, the Deputy Custodian not only rejected the application for confirmation, but further ordered that the tenancy rights in the property which the partnership occupied at 36, Station Road, Bandra, may be notified as evacuee property and possession be taken of the same. The petitioner wend in appeal to the Additional Custodian of Evacuee Property and the Custodian dismissed the appeal on 12-1-1951, and confirmed the order declaring the tenancy rights in the said premises to be evacuee property. It is the petitioners' contention that it was not competent to the Deputy Custodian in the first instance or to the Additional Custodian in appeal to declare the tenancy rights to ha evacuee property in proceedings under Section 40, Administration of Evacuee Property Act, and in doing so they acted without jurisdiction. It is further the case of the petitioners that before any property can be declared to be evacuee property notice has to be given to every person interested, such notice being a condition precedent to the jurisdiction of the Custodian of Evacuee Property to declare any property as evacuee property; and a no notice has at any time been given to the petitioners regarding the tenancy right of these promises which was sought to be declared as evacuee property, both the Deputy Custodian and the Additional Custodian acted without jurisdiction in passing the order that the tenancy right was evacuee property.

(2.) Respondent 2 has filed an affidavit On this petition in which he has taken up the position that an enquiry under Section 7, Administration of Evacuee Property Act (which I will hereinafter refer to as the Act) wag taken up along with the enquiry in the matter of the petitioners' application for confirmation Allaudin Allabux and Ors. vs. M.B. Meher and Anr. (27.03.1951 - BOMHC) Page 3 of 7 under Section 40 of the said Act and that it was open to him to pass a joint order in respect of both the enquiries which he proceeded to do.

(3.) Now, before I deal with the important questions of law that arise for determination on this petition, it would be convenient at the outset to set out the proceedings that were in fact taken by the Custodian. On 27-5-1950, notice in Form No. 1, appended to the Administration of Evacuee Property' (Central) Rules, 1950, (which I will hereinafter refer to as the Rules) was given to Mahomed Shafi, and a copy of this notice was sent to petitioner No. 1 who is described as "now running the said concern." Petitioner No. 1 by his letter dated 30-6-1950, addressed to the Deputy Custodian, contended that Mahomed Shafi had no subsisting inter oat in the business and that petitioner No. 1 was running it on behalf of the other three partners. He also stated that the tenancy o the promises had been transferred by the landlord to Abdul Shakoor, petitioner No. a, but the landlord had refused to transfer the rent bill from the name of Shafi to Abdul Shakoor as he wanted to extort some money. Thereafter, an enquiry was held by the Deputy Custodian in which all the three petitioners were examined" before him and have signed the statements made by them. On 5.7.1950, and on 29.7.1950, the account books of certain creditors who had supplied articles to the bakery were also examined by the Custodian; and it is as the result of all this inquiry that a notification was issued on 20-9-1960, that the right, title and interest of 1/4th share of Mahomed Shafi in the business concern known as "Cafe Grant Bakery", 36, Station' Road, Bandra, was declared to be evacuee property. Thereafter an application was presented under Section 40 of the Act on 19-10-1955. It asked for a confirmation of the transfer and relinquishment of the 1/4th share of Mahomed Shafi in the said partnership in favour of the petitioners. Thereafter, on 7-11- 1950, all the petitioners appeared before the Deputy Custodian, who examined them and reduced their statements to writing; and the statements bear the thumb-impressions of the two petitioners and the signature of the third. It is as a result of this enquiry that the Deputy Custodian made the order complained of on 21-11-1950.