RAGHUNANDANLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India by Raghunandanlal and three others against an order of the Custodian of Evacuee Property, Rajasthan, dated the 2nd December 1950. Jt is alleged by the petitioners that a shop had been mortgaged in favour of Girdharilal the father of the petitioners, by Mohd. Taqi, Kasim Ali, Riazul Hasan, Khurshed Ali and Amjad Ali some time before the year 1941. The mortgagors left India and went to Pakistan. Under Section 4 of the Matsya Evacuee Property Ordinance the equity of redemption which belonged to the Muslim evacuees vested in the Custodian of the evacuee properties and under Section 5 (2) of the Rajasthan Administration of Evacuee Property Ordinance, 1949 any evacuee property which had vested in any person exercising the powers of a custodian under the Matsya Ordinance which had been repealed by the Rajasthan Ordinance is to be deemed' to have vested in the Custodian appointed under the Rajasthan Ordinance. The equity of redemption therefore vested in the Custodian of Evacuee Property, Rajasthan, when the Rajasthan Ordinance came into force. Thereafter, the Rajasthan Ordinance was repealed by the Administration of Evacuee Property Act of 1950 which was enacted by the Parliament. By Section 8 (2) of the Administration of Evacuee Property Act of 1950 all such property which had vested in any person under the laws repealed by the Act was to be deemed to have been vested in the Custodian appointed under the Act on its commencement. The equity of redemption of the shop in question therefore vested in the Custodian of the Evacuee property appointed under the Rajasthan Administration of Evacuee Property Act. The Deputy Custodian at Bharatpur initiated an enquiry and held that Raghunandanlal and three others were in possession of a shop as mortgagees and the amount of mortgage money was of Rs. 850/- only and that the mortgagors had left India and had gone to Pakistan. He therefore ordered payment of Rs. 850/- to the petitioners and ordered them to deliver possession to the Deputy Custodian. An appeal was filed against that order to the Custodian, Evacuee property, Rajasthan, at Jodhpur, which was dismissed on the 2nd of December 1950. Steps were thereafter taken by the Deputy Custodian to elect the petitioners from the shop which was in their possession as mortgagees. They however took three days time from the Deputy Custodian to enable them to vacate the shop and in the meantime they have come to this court under Article 226 of the Constitution of India. The case of the petitioners is that the mortgagee rights relating to the disputed shop were not evacuee property and these rights did not vest in the Custodian under any of the Evacuee Property Acts or Ordinances. The Deputy Custodian or the Custodian therefore had no jurisdiction to order their ejectment. What had vested in the Custodian was the equity of redemption only. The Custodian, if he wanted to take possession of the shop, should have proceeded by way of a regular suit rather than attempting to take forcible possession of the shop. No notice, it is said, was issued under Section 7 of the Administration of Evacuee Property Act and there was no basis for the exercise of any jurisdiction by the Custodian. It is also stated by the petitioners that the Deputy Custodian has put a seal on the lock of the petitioners and thus the petitioners are deprived of the use of the shop. It is therefore prayed by the petitioners that a writ of certiorari, prohibition or Mandamus be issued quashing the order of the Custodian and restraining the Custodian from interfering with the use of the shop by the petitioners. A reply was filed on behalf of the Custodian, Evacuee property of Rajasthan, and it was stated that Section 7 of the Administration of Evacuee Property Act was not applicable to the present case, as this shop had vested in the Custodian under the Matsya Ordinance. It was said that the petitioners did not take any objection as regards the jurisdiction of the Custodian and they are therefore estopped from taking any such plea in this application. It is also said that the petitioners agreed to deliver possession of the shop to the Custodian and they are therefore not within their rights to dispute the validity of the Custodian's order.

(2.) It is an admitted fact that the shop in question was in the possession of the petitioners as mortgagees and the mortgagors had left for Pakistan. It is therefore clear that the equity of redemption alone could have vested in the Custodian under the Matsya Evacuee Property Ordinance. The mortgagee rights of the petitioners which did not form part of the property of the Muslim evacuees could in no circumstance be considered to be an evacuee property and it could not have vested in the Custodian under the Matsya Ordinance. Similarly, the position of the Rajasthan Evacuee Property Ordinance is not different and the position under the Matsya Ordinance continued to hold good under the Rajasthan Ordinance. Under the Administration of Evacuee Property Act the same position continues. The equity of redemption therefore can be claimed_ to have been vested in the Custodian of the Evacuee property, Rajasthan, and there was no necessity of issuing a notice under Section 7 of the Administration of Evacuee Property Act in so far as the question of the equity of redemption of this shop was concerned. However the question of the mortgagee rights is quite different and the Custodian of the Evacuee property, Rajasthan, cannot lay his hands on the mortgagee rights of the petitioners unless a notice under Section 7 of the Administration of Evacuee property Act is issued in proper form and proceedings are taken according to law, provided the Custodian has grounds to think that mortgagee rights are also evacuee property. No notice under Section 7 has been given in this case and obviously the Custodian cannot be said to possess any jurisdiction over the rights of the petitioners. The learned Government Advocate has vehemently argued that the petitioners failed to take an objection relating to the point of jurisdiction in the court of the Custodian or the Deputy Custodian and hence they should not be allowed now to agitate this point. He has referred to A. S. Chaudhri's Book of High Prerogative Writs, 1950 Edition, page 426 under the head "Acquiescence" wherein two English cases -- 'Dierken v. Philpot', (1901) 2 K. B. 380 and -- 'Giusti Patents and Engineering Works Ltd. v. Maggs', (1923) 1 Ch. D. 515 have been discussed.

(3.) It may be observed that it is a fundamental rule of law that a judgment of a court without jurisdiction is a nullity, and consent cannot give jurisdiction to the court if it has none. There is however a distinction between the cases of want of jurisdiction and irregularity in the exercise of jurisdiction or irregularity in the assumption of jurisdiction. The leading case on the point is -- 'Ledgard v. Bull', 13 Ind. App. 134 (P.C.) decided by the Privy Council in 1886. In that case the Judicial Committee of the Privy Council held that the suit having been instituted in a court which had no jurisdiction no order of transfer could be made, but that the District Court being competent to entertain and try the suit if it were competently brought, the defendant could waive the objection to the irregularities of its institution, but that he had not done so, and the decree of the District Court could not, therefore, stand and it ought to have been set aside by the High Court. The principles laid down in -- 'Ledgard v. Bull', were reiterated by their Lordships of the Privy Council in -- 'Meenakshi Naidoo v. Subramaniya Sastri', 14 Ind. App. 160 (P.C.). That was a case in which the High Court of Madras had entertained an appeal from an adjudication from which no appeal was provided for by any enactment. Their Lordships held that the decree of the High Court was a nullity. In the course of the judgment their Lordships said :