LEKHRAJ SATRAMDAS, LALVANI versus DEPUTY CUSTODIAN-CUM-MANAGING OFFICER & ORS.

LEKHRAJ SATRAMDAS, LALV ANI

DEPUTY CUSTODIAN-CUM-MANAGING OFFICER & ORS.

May 4, 1965

·[A. Jo.:. SARKAR, M. HJI>AYATl.:I.I.AI! Al'O V. RAMASWAMI, JJ.J

Ad11Unistratio11 of £\•acuee Properly Act 1950, s. 10(2) (b)-Alanacer for evacuee shops appv/nied by Deputy Cuslotiiai1 of Evacuee Properly-· Dtpury Cur1odian whe1her can cancel appoinunent subsequently.

The appellant was appointed Manager of two evacuee •hops which vcr;ted in the Custodian of Evacuee Property. '!be appointment was made in 1952 under s. 10(2) (b) of the Administration of EYacuec Property Act, 1950. In 1956 the appellant was informed hy letter Ex. p.8 writlen hy tile Custodian of Evacuee Property that decision to allot the shops to him had been taken and that subscqucnUy the shops would be sold to him. The letter was based on the orders of the Chief SetUement C.ommissiooer in Ex. p. 5. llowevcr the said de.:ision could not he implemented and in punuance of orders from the Chief Setllemoot Omunissioner the Deputy Custodian hy Ex. p. 13 and proceedings Ex. p. 16 cancelled the appoint-ment of the appellant as Manager and asked him to hand over pos""8ioo of the shops. The a?inllant tiled writ petition in the High Coun praying that the order Ex. p. 13 and proceedings p. 16 be quashed, that the possession of the shops be given to him, and that the sale of the shops be llDpped. The High Court gr:wted the first two prayers but not the third. Both parties appealed to Division Bench of the High C-Ourt which held apin.•t the appellant on all these counts. By cenificatc under Art. 133 (I) (a) he came to the Supreme Court.

It was cont.ended on behalf of the appellant : (I) that he was not lawfully removed from the management of the shol"' as the Deputy Custo-dian had no power to cancel an appointment, (2) that the ordor of removal in Ex. 13 and Ex. 16 was made by the Managing Officer cum Deputy Custodian of Evacuee property under the Displaced Per;ons (Com· pensation and Rchabili:ation) Act 1954 which conferred M power on •uch an officer to cancel the appointm<:r.t of the manager and (3) that hy virtue of Ex. p. 5 and F.x. p. 8 ·the shops s1ood allotted to the "ppollant.

HELD ; (i) Section 16 of the General Qauscs Act provides that the power to terminate is necessary ~i<ljunct of the power of appointnlCnt an<l ii, exercised as an incident to or consequence of that power. ·The power of appointment conferred on the Cu'1o<l1an under s. 10(2)(h) of the 1950 Act confers by implication upon the Custodian the power to suspend or dismis." any person appointed. It is manifest that the mauagemcnt of the appellant with regard to the business oonccrn.c,. could be lawfully terminated "Y the Deputy Custodian by ,;nuc of s. 10(2)(b) of the 1950 Act read with s. 16 of the General Clauses Act. [124 F-G]

(ii) The order cancelling the appellant's appointment a.~ man:1gcr could not be said to be invalid on the ground that it purponed to have bcco made under the J 954 Act. The Act of 1950 was not repealed by the Act of 1954 and continued in force. Under s. 10(2)(b) of the 1950 Act the Deputy Custodian is the proper authority to cancel the appointment of manager and the order of cancellation must therefore be held to be valid. The principle is that the act of public servant must be ascribed to an :ictual exi.~ting authority under which it would have validity rather th•n one under which it would be void. ! 125 C-EJ

Ba/akotaiah v. The Union of India, [1958] S.C.R. 1052, referred to. -

(iii) Even on the assumption that the order of cancellation was i!lepl the appellant was not entitled to writ from the High Court. Writs can be i=ed only to enforce the performance of statutory duties, not duties under contract. The appointment of the appellant \\'as under con-tract [126 A-BJ

Commissioner of Income-tax Bombay Presidency and Aden v. Bombay 'frwt Corporation Ltd., 63 I.A. 408 and P. K. Banerjee \·. L. J. Simonds, A.LR. 1947 Cal. 307 referred to.

(iv) Ex. 5 and Ex. 8 did not make any final allotment in favour of the appellant. 1l1c letters did not show any concluded contract of sale. [127 A-Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 414-c 416 of 1963.

Appeals from the judgment and order dated December 6, 1960 of the Kerala High Court in A.S. Nos. 445 and 484 of 1960.

R. Mahallngier and K. N. Kcswai, for the appellant (In both the appeals):

Gopal Singh, R. N. Sachthey and B. R. G. K. char, for the Respondents (In both the appeals).

The Judgment of the Court was delivered by

Ramaswami. J. The proprietors of two firms styled "Adam Haji Peer Mohd. Essack" and "Haji Ebrahim Kasim Cochinwala" had, in the year 194 7, migrated to Pakistan and both these firms became vested in the Custodian of Evacuee Properties for the State of Madras under s. 8 of the Administration of Evacuee Property Act, 1950, hereinafter referred to as the 1950 Act. On March 6, 1952 the appellant was appointed as Manager of the two firms under s. 10(2) (b) of the 1950 Act. The appellant also furnished security of Rs. 20,000/- before taking possession of the business of the firms as Manager. The order of appointment-Ex. P-1 dated March 6, 1952 states :

"The Custodian approves the proposal of the Deputy Custodian, Malabar that the Management of both the firms of Adam Hajee Peer Muhammad Issack and Hajee Ibrahim Kassam Cochinwala at Kozhikode may be allot-ted to Sri L. S. Lalvani for the present on the same sys-tem as exists now between the Government and the pre-sent two managers and on his furnishing security of Rs. 20,000 to the satisfaction of the Deputy Custo-H dian. The question of outright allotment as contemplat-ed in Custodian General's letter No. 2811 /CG/50 dated 20-3-50 will be taken up in due course."

On October 9, 1954 the Displaced Persons (Compensation and Rehabilitation) Act, 1954 was passed which will hereafter be referred to as the 1954 Act. On April 11, 1956 there was an advertisement published in the Press for the sale of the aforesaid evacuee properties. The appellant applied to the Chief Settlement Commissioner for stopping the sale of the two concerns. On April 25, 1956 the Central Government made an order-Ex. P-5 -which states :

"I am directed to state that it has been decided in principle that the aforesaid evacuee concerns will be allotted to you. The terms of allotment will be commu-nicated to you separately. Meanwhile, you will continue to function as the Custodian's Manager for these concerns in terms of section 10(2) (b) of the Administration of Evacuee Property Act, read with Rule 34 of the rules made under the Act."

On June 21, 1956 another letter-P-8-was written to the appcl-D !ant by the Custodian of Evacuee Properties which states :

"The Deputy Custodian is informed that the Govern-ment of India have decided that the two evacuee con-cerns viz., firms of Adam Hajee Peer Mohammed Essack and Hajee Ebrahim Kassam Cochinwala of Kozhikode are to be allotted to the present Manager Shri L. S. Lalvani and ultimately sold to him. He is also inform-ed that until the question of terms and conditions of allotment of the concerns in quesiion is decided Shri Lalvani will coniinue to function as Custodian's Mana-ger for these concerns in terms of Section 10(2) (b) of the Administration of Evacuee Property Act, 1950 read with rule 34 of the rules made thereunder. The Deputy Custodian is requested to evaluate the business concerns properly after getting prepared balance sheet of each year of the vesting of the concerns, evaluating the con-cerns, the Deputy Custodian should keep in view the other assets and liabilities of the concerns and their good-will etc. His comment and suggestions as to how and by what easy instalments the value of the concerns if sold to Shri Lalvani is to be realised from him should also be intimated.

The bargain was not concluded and on March 25, 1958 there wa.~ an advertisement in the Press about the public auciion of the busi-ness of the firms. The appellant moved the High Court of Kerala

for grant of writ restraining the District Collector from selling the business of the firms by public auction. The application was allowed and on June 25, 1959 the Kerala High Court directed the District Collector not to sell the properties of the business of the two firms without an appropriate order of the Chief Settlement Commissioner. The decision of the High Court is based upon the ground that there was no order under the 1954 Act by the Chief Settlement Commissioner for sale of the properties and that in the absence of such an order the sale of the properties cannot take place. It appears that the order of the Chief Settlement Commis-sioner was subsequently made on September 15, 1959. In pur-suance of that order the management of the appellant wa~ termi-c nated and the possession of the business was taken over by the Deputy Custodian-Respondent no. 1. The order-Ex. P-13-dated December 18, 1959 states :

"Shri L. S. Lalvani is informed that his services as Manager of the business concerns of Adam Haji Peer Mohd. Essack and Haji Ibrahim Kassam, Cochinwala, at Kozhikode, are hereby terminated with immediate effect. He is further required to hand over immediate possession of the premises and the stock-in-trade, account books and other assets of the business including furniture etc."

The appellant filed writ petition in the High Court of Kerala -being 0.P. no. 1438 of 1959 for grant of ( 1) writ of certio-rari for quashing the order dated December 15, 1959-Ex. P-13 -and the proceedings dated December 18, 1959-Ex. P-16, (2) writ of mandamus directing respondents nos. 1 and 2 to hand over possession of the two business concerns including the pre-mises, stock-in-trade all records etc. to the appellant, and (3) writ of mandamus or appropriate writ or order directing respon-dents nos. 1 to 3 not to sell by public auction or otherwise the two evacuee business concerns. S. Velu Pillai, J. by his order dated June 8, 1960, granted writ to the appellant as prayed for in prayer ( 1) & (2) but refused prayer (3) for writ of mandamus restraining the respondents from selling the business by public auction. Against the order of the Single Judge the respondents filed an appeal being A.S. no. 484 of 1960 before the Division Bench of the High Court. The appellant also preferred an appeal A.S. no. 445 of 1960 against the order of Single Judge which was in regard to the refnsal of the third relief. By judg-ment dated December 6, 1960 the Division Bench of the High LSSup. CJ/65-9

[ 1966] I S.C.R.

SUPllEMB COUllT llEPORTS

Court dismissed Appeal A.S. no. 445 of 1960 filed by the appel-I.ant but allowed the appeal A.S. no. 484 of 1960 filed by the respondents. The present appeals are brought on behalf of the appellant by certificate of the Kerala High Court granted under Art. 133(l)(a) of the Consl'itution.

The first question arising in this case is whether the appellant was lawfuUy removed from the management of the business by the order of the respondent no. 1 dated December 18, 1959-Ex. P-13 and P-16. It was submitted on behalf of the appellant that under s. 10(2)(b) of the 1950 Act the Custodian had the power to appoint Manager for the Evacuee Property for carry-ing on any business of the evacuee and there was no power con-ferred by the Act upon the Custodian to remove the Manager so appointed. It was argued by the Counsel on behalf of the appel-lant that an indefeasible right of management was conferred upon the appellant because of the order of the Custodian-Ex. P-1 dated March 6, 1952. In our opinion, there is no warrant for this argument. The power of appointment conferred upon the Custodian under s. 10(2)(b) of the 1950 Act confers, by impli-cation, upon the Custodian the power to suspend or dismiss any person appointed. Section 16 of the General Clauses Act states :

"Where, by any Central Act or Regulation, power

to make any appointment is conferred, then, unless different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power."

It is manifest that the management of the appellant with regard to the business concerns can lawfully be terminated by the Deputy Custodian by virtue of s. 10(2)(b) of the 1950 Act read with s. 16 of the General Clauses Act. The principle underlying the section is that the power to terminate is necessary adjunct of the power of appointment and is exercised as an incident to or consequence of that power.

It was then contended on behalf of the appellant that the order of removal-Ex. P-13 and P-16-was made by the Manag-ing Officer-cum-Deputy Custodian of Evacuee Property of South-ern States under the 1954 Act which conferred no power on such an officer to cancel the appointment of Manager. It was pointed out that the order of removal was made after the provisions of the 1954 Act had come into force. In our opinion, there is no

justification for this argument. We shall assume that the Manag· ing Officer under the 1954 Act is not the proper authority to cancel the appointment of Manager but it is not disputed that the provisions of the 1950 Act have not been repealed and still continue to be in force. Under s. 10(2)(b) of the 1950 Act the Deputy Custoclian is the proper authority to cancel the appoint-B ment of Manager and the order-Ex. P-13 and P-16 dated December 18, 1959 is, therefore, legally valid. It is true that the order Ex. P-13 and P-16 is signed by Mr. Mathur as "the Managing Officer-cum-Deputy Custodian of Evacuee Property" but the order of removal of the appellant from the management is valid because Mr. Mathur had the legal competence to makti the order under the 1950 Act, though he has also described him· self in that order as "Managing Officer". It is well-established that when an authority passes an order which is within its com-petence, it cannot fail merely because it purports to be made under wrong provision if it can be shown to be within its power under any other rule, and the validity of the impugned order should be judged on consideration of its substance and not of its form. The principle is that we must ascribe the Act of public servant to an actual existing authority under which it would have validity rather than to one under which it would be void (See Balakotaiah v. The Union of India.) ([1 ]) We, therefore, reject the argument of the appellant on this aspect of the case.

In our opinion, the order of the Deputy Custodian-P-13 and P-16-removing the appellant from the management of the busi-ness is not vitiated by any illegality. But even on the assumption that the order of the Deputy Custoclian terminating the manage-F ment of the appellant is illegal, the appellant is not entitled to move the High Court for grant of writ in the nature of mandamus under Art. 226 of the Constitution. The reason is that writ of mandamus may be granted only in case where there is statutory duty imposed npon the officer concerned and there is failure on the part of that officer to discharge that statutory obli-G gation. The chief function of the writ is to compel the perform-ance of public duties prescribed by statute and to keep the sub-ordinate tribunals and officers exercising public functions within the limits of their jurisdictions. In the present case, the appoint-ment of the appellant as Manager by the Custodian by virtue of his power under s. 10(2)(b) of the 1950 Act is contractual in its nature and there is no statutory obligation as between him and the appellant. In our opinion, any duty or obligation falling

(I) [1958] S.C.R. 1052 at p. 1059.

[1966] I S.C.R.

upon public servant out of contract entered into by him as such public servant cannot be enforced by the machinery of writ under Art. 226 of the Constitution. In Commissioner of Income-tax Bombay Presidenty and Aden v. Bombay Trust Cor-poration l.td. ( [1 ]) an application was made under s. 45 for an order directing the Commissioner to set aside an assessment to income tax and to repay the tax paid by the applicant; the Bombay High Court made the order asked for but the decision of the Bombay High Court was set aside by the Judicial Committee. At page 427 of the report it is observed hy the Judicial Committee :

'"Before mandamus can issue to public servant it mu1t therefore be shown that duty towards the appli-cant has been Imposed upon the public servant by statute so that he can be charged thereon, and inde-pendently of any duty which as servant he may owe to the Crown. his principal." simi!ar view has been expressed by the Calcutta High Court in l'. K. H1111erjee v. L. 1. Simonds.(') In our opinion. these cases lay down the correct law on the point.

We pa" on to cdnsider the next question presented on behalf of the appellant vi~ .. whether there was final allotment of the business in favour of the appellant by the Chief Settlement Com-missioner. It was contended for the appellant that in view of Ex. P-5 dated April 25, 1956 there was final allotment of the business, though the terms of allotment had to be subsequently detem1ined. In Ex. P-5 the Government of India state that "It has been decided in principle that the aforesaid evacuee concerns should be allotted to you" and the "terms of allotment would be communicated to you separately". Reference was made to Ex. P-8 dated June 21, 1956 wherein it is stated that the Govern-ment of Indi:i have decided that "the two evacuee concerns viz .. firms of Adam Hajee Peer Mohammed Essack and Hajee Ebrahim Kassam Cochinwala of Kozhikode are to be allotted to the present Manager Shri L. S. Lalvani and ultimately sold to him". It is also mentioned in the letter that "until the question of terms and conditions of allotment of the concerns is decided Shri Lalvani will continue to function as Custodian's Manager for these con-cerns in tern1s of s. 10(2)(b) of the Administration of Evacuee Property Act, 1950 read with rule 34 of the rules made there-under". It was submitted on behalf of the appellant that in view of these two letters it must be held that there was final allot-mcnt of the business in favour of the appellant. We do not. (I} 63 I.A. 408. (~) A.LR. t947 Cal. 307.

(I} 63 I.A. 408.

however, think there is any justification for this argument. It is manifest that the terms and conditions of allotment were not finally settled between the parties and there was no concluded contract of sale and, therefore, the appellant had no legal right to the business of the two concerns and the High Court was right in holding that the appellant was not entitled to the grant of writ in the nature of mandamus with regard to the possession of the two business concerns.

In our opinion, there is no merit in these appeals which are accordingly dismissed with costs.

Appeals dismissed.