S. BENJAMIN Vs. EBRAHIM ABOOBAKER
LAWS(BOM)-1954-8-15
HIGH COURT OF BOMBAY
Decided on August 24,1954

S. Benjamin Appellant
VERSUS
EBRAHIM ABOOBAKER Respondents

JUDGEMENT

TENDOLKAR, J. - (1.)THIS is a petition for an appropriate writ, direction or order restraining the respondent, the Deputy Custodian of Evacuee Property, from giving effect to a notice of demand dated the August 10, 1953.
(2.)THE facts necessary for the determination of this petition are few. By an order dated October 23, 1951, the Assistant Custodian of Evacuee Property notified as evacuee property the following: Right, title and interest of Shree Husein Aboobakar in the business concern called Nishat Talkies with furniture, fittings and certain machines etc. together with the tenancy right situated at Grant Road, Bombay. The case of the petitioner is that he was a partner with Husein Aboobaker and Alimahomed Aboobaker in the said business and that Husein Aboobaker and Alimahomed Aboobaker retired from the partnership and received Rs. 15,000 each in full satisfaction of their share, right, title and interest and he became the sole proprietor of that business. This contention of the petitioner was apparently not accepted by the Custodian and the declaration that I have referred to relating to the evacuee property was made.
Now, under Section 8(1)(a) of the Evacuee Property Act any property declared to be evacuee property is deemed to have been vested in the Custodian, in the case of the property of an evacuee as defined in Sub -clause (1) of Clause (d) of Section 2 from the date on which he leaves India for any place outside India. It is common ground in this case that Alimahomed end Husein were declared to be evacuees under Section 2(d)(J) and the Custodian in his affidavit says that they left India in October 1947, and therefore the result of the notification read with Section 8(7)(a) is that the right, title and interest of Alimahomed and Husein in the business of Nishat Talkies vested in the Custodian from October 1947. As a matter of fact, however, the petitioner was conducting this business and in sole management of it; and therefore by a letter dated October 22 addressed to the petitioner's attorneys the Assistant Custodian called upon him to render an account for the period during which he was in possession. It is not necessary to go into the correspondence that followed or the reasons for which no account as such was rendered by the petitioner. The Custodian by the order now impugned states that a sum of Bs. 1,60,000 is 'now due and unpaid,' and demands payment with a threat that the payment would otherwise be enforced and recovered 88 arrears of land revenue. The role question that has been raised on this petition is whether the Custodian has power to determine what is due by the petitioner in respect of his management of the business from October 1947 until the date when the Custodian took possession.

(3.)NOW , a preliminary objection has been raised on this petition on behalf of the Custodian, it being urged that there is an adequate and specific legal remedy under the Evacuee Property Act, viz. a revision against this order, end therefore an application for a writ should not be entertained. The petitioner challenges the order on the ground that there is want of jurisdicticn in the Custodian to determine what is due to him ; but Mr. Kantawala for the respcndent points out that that is not sufficient to entitle the petitioner to a writ and unless there is a violation of the fundamental principles of justice a writ should not be granted as there is a provision for a revision. As I will point out later, in the view that I take of this case, the order is contrary to the fundamental principles of justice, and I would therefore entertain the application notwithstanding the fact that there might be another remedy under the Evacuee Property Act.


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.