Case: Custodian of Evacuee Property Punjab &amp; Others Vs. Jafran Begum

jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in S. 4 (l) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of I Civil Procedure on a combined reading of l s. 4, 28 and 46. But as we have said already, S. 46 or S. 28 cannot bar the jurisdiction of the High Court under Art 226 of he Constitution, for that is a power conferred on the High Court under the Constitution. 11. It now remains to refer to certain oases of other courts in this connection. In M. B. Namazi v. Deputy Custodian of Evacuee Property, AIR 195l Mad 930 the Madras High Court was mainly considering the constitutional validity of the Act. At p. 934, however, Rajamannar C. J. made the following observations :There is however one thing about which I am not quite clear. The Ordinance no doubt declares the order of the Custodian declaring any property to be evacuee property as final That might be so in one sense, i.e., if any property belongs to a person who has been declared to be an evacuee within the meaning of the definition in the Ordinance, then the Custodians order would be final. But, does the finality amount to an adjudication on title in case there is any dispute ? Take for instance the case where a property is declared to be evacuee property on the assumption that it belongs to A who is an evacuee. Does it mean that some one else cannot say that the property really does not belong to the evacuee but belongs to himself who is not an evacuee P I am inclined to hold that The order of the Custodian or the notification under S. 7 of the Ordinance is not final in case of disputed title" These observations themselves show that the learned Chief Justice was not finally deciding the matter for the question did not directly arise before him He does not seem to have considered the matter in the light of S. 4 and S. 46 of the Act. In any case in view of what we have said above these observations cannot be accepted AS laying down correct law. 12. In Abdul Majid Haji Mahomed v. P. R. Nayak, AIR l951 Bom 440 the main question for consideration was again the constitutional validity of the Act. That was a case which arose on a writ petition. As we have already said, S. 46 cannot bar the jurisdiction of the High Court under Art. 226. But during the course of the judgment, Chagla C. J. referred to the decision of the Privy Council in Secy. of State v. Mask and Co., AIR 1940 PC 105 and observed that it was well settled that :"even if jurisdiction of courts is excluded, civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. We do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in Mask and Cos case, AIR 1940 PC 105 . Normally jurisdiction of civil Courts to entertain or adjudicate upon such question relating to evacuee property would be barred under S. 46; the question whether in some extreme circumstances civil courts may have jurisdiction in spite of S. 46 need not be decided just now. However we may add that in Firm of Illuri Subbayya Chetty v. State of Andhra Pradesh. (1964) 1 SCR 752 : (AIR 1984 SC 322 ) this Court observed at p. 763 (of SCR): (at pp. 325-326 of AIR) that the observations in Mask and Co.s case, AIR 1940 PC 105 were in some respects too widely stated. 13. The next case to which reference may be made is S. M. Zaki v. State of Bihar, AIR 1953 Pat 112 There the question was whether the property was evacuee and the court held that the Act had provided adequate remedies and that S. 46 must be construed to mean that the jurisdiction of a civil or revenue court was ousted even if the Custodian had wrongly decided that any property was an evacuee property. The distinction between those cases where a collateral fact is to be decided before a tribunal of limited jurisdiction assumes jurisdiction and those cases where the tribunal has to decide the whole matter itself was referred to and Ramaswami J. (as he then was) rightly held that under S. 7 the whole matter has to be decided by the Custodian and there was no question of the decision of any collateral fact as a condition precedent to assumption of jurisdiction by the Custodian. 14. The last case to which reference may be made is Khalil Ahmad Khan v. Malka Mehar Nigar Begum, AIR l964 All 362 (FB). The question there was somewhat different, namely, whether S. 46 bars the jurisdiction of the civil court in a pending matter. The majority of the Judges in that case observed that in a case where a matter had been adjudicated upon in accordance with the provisions of the Act it might not be possible for courts to interfere by reason of the provisions of S. 46.of the Act. This case therefore to some extent is in line with the view we have taken. 15. On careful consideration therefore of the authorities cited before us, we are of opinion that generally speaking the jurisdiction of the civil or revenue court is barred under S. 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We do not however propose to go into them in detail, for it appears to us that the view taken in some of them - conflicts with the view taken in othersThe definition also includes certain properties and- exclude certain other properties but we are not concerned with thatUnder S. 8 any property declared to be evacuee property under S. 7 vests in the Custodian from certain dates with which we are not concerned7. Section 28 thus clearly hers the jurisdiction of any court to entertain an original suit with respect to an order passed by the authorities mentioned thereinIt is true that the Act is concerned with the administration of evacuee property and a large number of its provisions deal with actual administration of such property. But before the authorities under the Act take on the duties of administration of evacuee property someone has to determine what properties are evacuee properties of which the authorities provided under the Act can take over administration. The Act itself provides a machinery for determining what properties are evacuee properties. Section 7 is that provision which gives power to the Custodian to determine what properties are evacuee properties. The Custodian determines that alter notice to persons interested and after such enquiry as the circumstances of the case permit. It is thereafter that the Custodian declares certain property to be evacuee property and on such declaration the property vests in the Custodian under S. 8. Then we have the provision of appeal under S. 24 and revision under S. 27 of the Act so that any person aggrieved by the order of the Custodian has two forums open to him to ventilate his grievance. Clearly the Custodian under S. 7 acts as a quasijudicial authority and so does the authority hearing appeals under S. 24 and the Custodian-General hearing revisions under S. 27Now there is nothing in S. 7 which shows that the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to an evacuee. There is no reason to hold that under S. 7 the Custodian cannot decide what are called complicated questions of law or questions of title.It is difficult to see how the Custodian can avoid deciding a question of title if it is raised before him in proceedings under S. 7. Nor do we find it possible to make a distinction between questions of feet and questions of law that may arise before the Custodian under S. 7. If he has the power to decide questions of fact, which the learned Judges in the order under appeal seem to concede we do not see why he should not have the power of deciding questions of law also. Further if the learned Judges in the order under appeal are correct in saying that if a question of title rests on a simple allegation of fact it can be finally determined by the Custodian, we cannot see on what reasoning it can be said that where a question of title depends on a question of law it cannot be finally decided under S. 7 by the Custodian. His power under S. 7 is to decide whether certain property is evacuee property or not and there is nothing in S. 7 which restricts that power to deciding only questions of fact. There can in our opinion be no escape from the conclusion that under S. 7 when deciding whether certain property is evacuee property or not, the Custodian has to decide all questions, whether of fact or law, whether simple or complicated, which arise therein That power cannot be denied on the ground that the Custodian, which term for these purposes includes the Deputy Custodian or the Assistant Custodian may not be an experienced judicial officer and therefore may not be in a position to decide questions of title. His decision is not final and is open to appeal under S. 24 and to revision under S. 27. If he makes a mistake the two higher authorities who, we are told, have always been recruited from experienced judicial officers can correct him.It is after the matter has been decided under S. 7 and S. 24 if an appeal is filed and under S. 27 if a revision is filed, that S. 28 gives finality to orders of the authorities mentioned therein and lays down that such orders shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding. As we have already said, the legislature was not satisfied by merely conferring finality on such orders; it went further and expressly barred the jurisdiction of civil and revenue courts under S. 46 to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. These words are very wide and clear and bar the courts from entertaining or adjudicating upon any such question. Where therefore the question whether certain properties are evacuee properties has been decided under S. 7 etc., whether that decision is based on issues of fact or issues of law, jurisdiction of courts is clearly barred under S. 46 (a). It is difficult to see how a distinction can be drawn between decisions under S. 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issues of law or of fact by S. 28 and S. 46 bars the jurisdiction of civil and revenue courts in matters which are decided under Section 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicatedTherefore there is no scope for the application of that line of cases where it has been held that where the jurisdiction of a tribunal of limited jurisdiction depends upon first finding certain state of facts, it cannot give itself jurisdiction on a wrong finding of that state of fact.Here under S. 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does not depend upon any collateral fact being decided as a condition precedent to his assuming jurisdiction. In these circumstances, S. 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in S. 4 (l) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of I Civil Procedure on a combined reading of l s. 4, 28 and 46. But as we have said already, S. 46 or S. 28 cannot bar the jurisdiction of the High Court under Art 226 of he Constitution, for that is a power conferred on the High Court under the ConstitutionIn any case in view of what we have said above these observations cannot be accepted AS laying down correct lawWe do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in Mask and Cos case, AIR 1940 PC 105  . Normally jurisdiction of civil Courts to entertain or adjudicate upon such question relating to evacuee property would be barred under S. 46This case therefore to some extent is in line with the view we have taken15. On careful consideration therefore of the authorities cited before us, we are of opinion that generally speaking the jurisdiction of the civil or revenue court is barred under S. 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property.