Ebrahim Aboobakar v Custodian General of Evacuee Property (1952)

This is not a labour case on its facts; it is an evacuee-property case. You study it in labour law because of one proposition about certiorari that the Supreme Court later carried into industrial adjudication: a superior court will not quash the decision of an inferior tribunal merely because the decision is wrong, so long as the tribunal acted within its jurisdiction. In the Court's words, "a court has jurisdiction to decide rightly as well as wrongly."

In Dharangadhara Chemical Works Ltd v State of Saurashtra (1956) the employers relied on Mahajan J's observations here to argue that neither the High Court under Articles 226 and 227 nor the Supreme Court on appeal should interfere with an Industrial Tribunal's finding that the salt workers were workmen. The Court found considerable force in that contention. That is why the case sits in Unit 4: it sets the limits of judicial review of industrial awards.

The case also explains the difference between a jurisdictional fact that a tribunal cannot conclusively decide for itself, and a preliminary question that the legislature has entrusted to the tribunal to decide.

Aboobaker Abdul Rahman, the appellants' father, owned considerable property in Bombay, including the Imperial Cinema. Soon after Partition he went to Pakistan and was in Karachi in September 1947, where he bought property.

On information supplied by one Tekchand Dolwani, the Additional Custodian of Evacuee Property began proceedings against him. After Ordinance XXVII of 1949 came into force, notices were issued under s. 7. After an enquiry in which Tekchand filed a written statement and led evidence, the Additional Custodian held on 8 February 1950 that Aboobaker was not an evacuee. On 9 February 1950 he declared him an intending evacuee under s. 19.

Tekchand, as informant claiming a first right to allotment of the cinema, appealed to the Custodian General under s. 24. His memorandum described the appeal as one against the order of 9 February. The Custodian General heard the appeal on 13 May 1950, dictated and signed an order that day, and pronounced it on 15 May; Aboobaker had died on 14 May. The order held that the appeal was in substance against the order of 8 February, and that Tekchand had locus standi. It overruled the preliminary objections and directed further inquiry.

Two of Aboobaker's heirs petitioned the Punjab High Court under Article 226 for certiorari to quash that order, and for prohibition or mandamus to stop the appeal. The High Court dismissed the petition. They appealed to the Supreme Court.

1. Can certiorari issue to quash the Custodian General's order on the objections raised — or did those objections go to his jurisdiction at all?
2. Was the appeal in substance against the order of 8 February rather than 9 February?
3. Was Tekchand a "person aggrieved" under s. 24?
4. Is an order under s. 7 refusing to declare a person an evacuee appealable under s. 24?
5. Was the order pronounced after Aboobaker's death a nullity?

The appeal was dismissed with costs.

The limits of certiorari

The Court said the questions could be the subject of certiorari only if they made the Custodian General's decision a nullity. It laid down the rule in terms later relied on in labour cases:

"It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong."

"Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice."

Want of jurisdiction may arise from the nature of the subject-matter, or from the absence of some essential preliminary or collateral fact that is a condition precedent to jurisdiction. But "once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly."

Two kinds of tribunal

The appellants argued that a court of limited jurisdiction cannot give itself jurisdiction by wrongly deciding a collateral point. The Court adopted Lord Esher MR's two categories from R v Commissioners of Income Tax (21 QBD 313):

• The legislature may make jurisdiction depend on a certain state of facts. Then the tribunal cannot conclusively decide whether that state of facts exists, and if it acts without it, "it will be held that they have acted without jurisdiction."
• Or the legislature may entrust the tribunal "with a jurisdiction which includes the jurisdiction, to determine whether the preliminary state of facts exists". Then the rule that a tribunal cannot give itself jurisdiction by a wrong decision does not apply.

The Custodian General had been constituted an appellate court "in words of the widest amplitude". A court of appeal inherently decides preliminary issues: "Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted." The tribunal therefore fell within the second class, and certiorari could not issue.

The merits, all the same

The Court went on to hold that none of the contentions had any merit:

• Person aggrieved. Tekchand had filed a reply and led evidence under the rules, and as first informant was entitled to be heard. "He is certainly aggrieved by the order disallowing his contention." The Court relied on In re Lamb, ex parte Board of Trade.
• 8 February or 9 February. Which order the appeal was really against was within the Custodian General's competence and involved no question of jurisdiction. In any case, the relief and grounds concerned the order of 8 February; the wrong description was an error that could not prejudice the party.
• Appealability. Section 24 gives an appeal against all orders under s. 7. A decision in the affirmative or the negative is an adjudication under s. 7. "The power of granting a certain relief includes obviously the power of refusing that relief."
• Death of Aboobaker. Counsel effectively conceded that the order, dictated and signed on 13 May, was not a nullity for being pronounced after his death. The contention was rejected. Whether the property could be declared evacuee property after it devolved on his heirs was not raised, and the Court left it open.

Certiorari lies against an inferior court or tribunal only for want or excess of jurisdiction, or violation of natural justice — not to correct a wrong decision made within jurisdiction, because a court has jurisdiction to decide rightly as well as wrongly. Where the legislature has entrusted a tribunal with deciding the preliminary facts on which its jurisdiction depends — as it does with a court of appeal constituted in wide terms — a wrong decision on those facts is not a jurisdictional error open to certiorari.

• Unit 4 link: when answering on judicial review of industrial awards, cite this case for the rule that the High Court under Article 226 and the Supreme Court do not sit in appeal over a tribunal's findings within jurisdiction. Then show how Dharangadhara Chemical Works (1956) applied it to the tribunal's finding that the workers were workmen.
• Problem question: A Labour Court decides a question of fact wrongly. The employer seeks certiorari. Advise. Ask first whether the error goes to jurisdiction. If the fact was one the tribunal was entrusted to decide, a wrong answer is still within jurisdiction; the remedy is the course prescribed by law, not the writ.
• Distinguish: a jurisdictional fact the legislature makes a condition precedent (reviewable) versus a preliminary question entrusted to the tribunal itself (not reviewable by certiorari). Lord Esher's two categories are the framework.
• Short note: Write a short note on the grounds for issuing a writ of certiorari. The three grounds here: no jurisdiction, excess of jurisdiction, violation of natural justice.
• Point of caution: remember this is an evacuee-property case. Say so in the exam and explain why it matters to labour law.