HAJI SULEMAN YUSUF BHAI AND ANOTHER Vs. CUSTODIAN OF EVACUEE PROPERTY, MADHYA BHARAT, GWALIOR AND ANOTHER

JUDGEMENT

(1.) 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.

(3.) 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.