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High Court Of Madhya Pradesh
G. P. Bhutt and P. K. Tare, JJ.
MASALKHAN - Appellant
Versus
CUSTODIAN OF EVACUEE PROPERTY - Respondents
Letters Patent Appeal 125 Of 1956
Decided On : 11/13/1958
EVACUEE PROPERTY ACT - ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - SECTION 2(D)(I) - INTERPRETATION - PERSON LEAVING INDIA FOR PAKISTAN ON TEMPORARY PERMIT AND NOT RETURNING - DECLARATION AS EVACUEE - VALID.
Fact of the Case:
Abdul Gafoor Khan, a fruit merchant from Bilaspur, Madhya Pradesh, went to Pakistan in September 1948 along with his family. He returned to India on a temporary permit in August 1949, which was valid until August 1950. He overstayed in Pakistan and did not return to India. In 1952, proceedings were initiated to declare him an evacuee under the Administration of Evacuee Property Act, 1950. He was declared an evacuee by the Assistant Custodian, and the order was upheld by the Custodian and the Deputy Custodian General.
Finding of the Court:
The court held that the tribunal's finding that Abdul Gafoor Khan was an evacuee was not without jurisdiction, in excess of jurisdiction, or in violation of the principles of natural justice. The court found that Abdul Gafoor Khan had left India for Pakistan on a temporary permit and did not return, which was a valid ground for declaring him an evacuee under Section 2(d)(i) of the Act.
Issues: 1. Whether the tribunal had jurisdiction to declare Abdul Gafoor Khan an evacuee. 2. Whether the tribunal's finding that Abdul Gafoor Khan was an evacuee was in excess of jurisdiction or in violation of the principles of natural justice.
Ratio Decidendi: 1. The court held that the tribunal had jurisdiction to declare Abdul Gafoor Khan an evacuee because he had left India for Pakistan on a temporary permit and did not return, which was a valid ground for declaring him an evacuee under Section 2(d)(i) of the Act. 2. The court held that the tribunal's finding that Abdul Gafoor Khan was an evacuee was not in excess of jurisdiction or in violation of the principles of natural justice because the tribunal had considered all the relevant evidence and had reached a reasonable conclusion.
Final Decision: The court dismissed the appeal, holding that the tribunal's order was valid and that Abdul Gafoor Khan was an evacuee.
( 1 ) THIS appeal is directed against the order of Naik J. dated 20-7-1956 passed in miscellaneous Petition No. 224 of 1956, refusing to issue a writ of certiorari under article 226 of the Constitution of India against the orders of the authorities acting tinder the Administration of Evacuee Property Act (XXXI of 1950 ).
( 2 ) THIS case has had a chequered history. The facts as established from the record are as follows : one Abdul Gafoor Khan, a fruit merchant of Bilaspur in Madhya Pradesh, went to village Pir Piyai (West Pakistan) in September, 1948 along with his wife, children and his parents. On 15-1-1949, Abdul Gafoor applied from village Pir Piyai for permission to come to India. A non-objection certificate dated 1-2-1949 was issued granting him the necessary permission. He returned to India on the said permit and again applied on 2-8-1949 for a permit to visit Pir Piyai. A temporary permit dated 26-81949 was granted to him, which was valid upto 25-8-1950. He overstayed there and after the expiry of the period of the permit applied to the Union Government for permission to return to India. But by an order dated 24-7-1951, he was refused permission. There is nothing on record to indicate that he made any subsequent attempts to return to india.
( 3 ) IN the year 1952, proceedings were started for declaring Ashraf Khan, father of abdul Cafoor Khan, an evacuee vide Evacuee Property Case No. 16-33/7 of 195152. In the course of the proceedings not only Ashraf Khan, but Abdul Gafoor Khan also was declared an evacuee, without a proper Notice to him, vide order dated 72-1953.
( 4 ) ON 13-5-1953, the appellant, Masalkhan, who claims to be related to Abdul gafoor Khan and his partner in fruit business, filed an objection against the declaration of Abdul Gafoor Khan as an evacuee. His objection was allowed by the assistant Custodian, who started the proceedings afresh after directing a proper notice to be issued to Abdul Gafoor Khan.
( 5 ) BY order dated- 15-10-1953, the Assistant Custodian declared Abdul Gafoor khan an evacuee. However, the Custodian, by order dated 22-1-1954 passed in evacuee Property Appeal No. 9-33/7 of J 953-54 set aside the order of the assistant Custodian and remanded the case for a fresh inquiry. After remand, the assistant Custodian held a fresh inquiry and by order dated 18-12-1954 again declared Abdul Gafoor Khan as evacuee.
( 6 ) THE appellant filed Appeal No. 11-33/7 of 1954-55 before the Custodian, who -vide order dated 10-3-1955 -- again set aside the order of the Assistant Custodian and remanded the case for a fresh inquiry. The Assistant Custodian, after holding a detailed inquiry by recording evidence, again by order dated 24-9-1955, declared Abdul Gafoor Khan an evacuee. The appeal filed by Masalkhan before the custodian was dismissed by order dated 26-11-55-The revision filed by the appellant before the Deputy Custodian General, New Delhi was rejected by order dated 16-3-1956. Therefore, the appellant filed a writ petition under Article 226 of the Constitution, which was rejected in limine by a Single Bench of this Court vide order dated 20-7-1956, which is the subject matter of the present appeal.
( 7 ) THE learned counsel for the respondents raised a preliminary objection that even assuming the orders of the tribunals to be incorrect, this Court would have no jurisdiction to issue a writ of certiorari, as the final and operative order was that of the Deputy Custodian General, New Delhi, a tribunal located outside the territorial jurisdiction of this Court. Reliance was placed on the Division Bench case of Ptemchand v. State of M. P. 1957 M. P. LJ 780 : (AIR 1958 Madh. Pra. 68) : See also Burhanpur Nation Textile Workers' Union v. Labour Appellate Tribunal of india, ILR (1955) Nag 108 : ( (S) AIR 1955 Nag 148) and Surajmal v. State of M. P. 1957 M. P. LJ 788 : (AIR 1958 Madh. Pra. 103 (FB) ).
( 8 ) HOWEVER, the learned counsel for the petitioner urged that the question of territo
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