RIAZ AHMAD v. UNION OF INDIA — 1973 DIGILAW 11 (DEL)

B. C. MISRA ( 1 ) THIS revision petition has been filed by the plaintiff petitioners against the order of a Subordinate Judge 1st Class, Delhi, dated 21st March. 1968 by which he has answered the first issue against the plaintiffs and held that the Civil Court had no iurisdiction to try the suit and has dismissed their suit with costs. ( 2 ) THE facts giving rise to the revision are that the property in dispute was declared to be evacuee property and had been sold on 19th December, 1964 by the Managing Officer in exercise of powers conferred by the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954 after the property had been acquired bv the Central Government under Section 12 of the said Act. The plaintiffs have brought the suit on the following material allegations, namely. (1) plaintiffs Nos. 1 and 2 are son and daughter of Mohd. Ahmad and plaintiff No. 3 is the husband of plaintiff No. 2 and that they have been living in the property in dispute: (2) the said Property it is alleged bv the plaintiffs, originally belonged to Khudah-Baksh, grandfather of plaintiffs 1 and 2 and after his death devolved on Mohd. Ahmad, father of plaintiffs Nos. 1 and 2 and that Mohd. Ahmad has not been heard of since 1947 and the plaintiffs have been residing in the property in dispute. The plaintiffs claim that plaintiffs Nos. 1 and 2 are the legal heirs of Mohd. Ahmad and were entitled to inherit the property and are thus the persons interested in the property, but they had not received a notice from the Custodian s Department to the effect that the property was being declared evacuee property and as such no opportunity had been given to them to contest the vesting of the same by the Custodian. It is urged that the acquisition of the property under Section 12 of the Displaced Persons Act was illegal, void and not binding on the plaintiffs. The plaintiffs have also challenged the sale in favour of the second defendant mainly on the ground of irregularities in publication of the sale which are mentioned in paragraphs 10. 11, 12 and 13 of the plaint. They have alleged that the property was allottable and ought to have been transferred to the plaintiffs. The plaintiffs have also challenged the sale in favour of the second defendant mainly on the ground of irregularities in publication of the sale which are mentioned in paragraphs 10. 11, 12 and 13 of the plaint. They have alleged that the property was allottable and ought to have been transferred to the plaintiffs. The relief claimed by the plaintiffs is a declaration to the effect that the aforesaid property is still the property of the plaintiffs and its sale in favour of the second defendant is illegal, void and without any legal force whatsoever and that the vesting of the property in the Custodian and subsequently in the Central Government is bad in law. An injunction restraining the defendants from recovering any rent from the plaintiffs and disturbing their peaceful occupation of the property has also been claimed. The suit has been contested on behalf of the Union of India the first defendant as well as the purchaser from the Union of India, the second defendant. ( 3 ) THE Union of India has denied the contentions of the plaintiffs and have urged that the plaintiffs had nothing to do with the property in dispute and they have challenged the iurisdiction of the Court to try the suit. ( 4 ) ON the pleadings of the parties, four issues were framed, namely: "1. Whether this Court has not jurisdiction to try the suit ? 2. Whether the sale of the property in suit is illegal as alleged ? 3. Whether the plaintiff has locus standi to sue ? 4. Relief. "on the application of the defendants, only the first issue was tried and as mentioned above, the same has been answered against the plaintiff in view of an authority of the Supreme Court in Custodian Evacuee property v. Jafran Begum, AIR 1968 SC 169 . ( 5 ) THE learned counsel for the plaintiff-petitioners in this Court has, in support of the revision, contended that Mohd. Ahmad had died earlier and the plaintiffs were the heirs and legal representatives of the deceased and so they were entitled to a notice under Section 7 of the Administration of Evacuee Property Act 31 of 1950 and since such a notice has not been served on them personally. the declaration of the property as evacuee property is without jurisdiction. Ahmad had died earlier and the plaintiffs were the heirs and legal representatives of the deceased and so they were entitled to a notice under Section 7 of the Administration of Evacuee Property Act 31 of 1950 and since such a notice has not been served on them personally. the declaration of the property as evacuee property is without jurisdiction. The second contention raised by him is that the sale is illegal and void. ( 6 ) THE principles from which exclusion of the jurisdiction of the Civil Court is to be inferred have authoritatively been laid down by the Supreme Court in Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78 . The same have been followed by the Supreme Court in Srinivasa v. State of Andhra Pradesh, AIR 1971 SC 71 . They are as follows: " (I) Where the statute gives a finality to the orders of the special tribunal the Civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the iurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the iurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive, in the latter case it is necessary to see if the Statute creates a special right or a liability and provides for the determination of the right or liability and further lavs down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions in civil Courts are prescribed bv the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot so into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is relevant enquiry. (7) An exclusion of the iurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. "the rule of law mentioned therein at No. 2 is to the effect that where there is an express bar of the iurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or sufficiency of the remedies provided may be relevant, but that is not decisive to sustain the iurisdiction of the Civil Court Rule No. 1 lays down that where the statute gives a finality to the orders of the special tribunal, the Civil Courts iurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principlesof judicial procedure. The counsel for the petitioner relies upon the aforesaid rules of law to support the revision. ( 7 ) IN my opinion, the submission of the counsel for the petitioner is not tenable. The counsel for the petitioner relies upon the aforesaid rules of law to support the revision. ( 7 ) IN my opinion, the submission of the counsel for the petitioner is not tenable. Section 28 of the Administration of Evacuee Property Act lends finality to the orders of the officers of the Custodian s department mentioned therein and Section 46 in terms excludes the jurisdiction of the Civil Courts. It reads as follows: "46. Save as otherwise expressly provided in this Act, no Civil or Revenue Court shall have iurisdiction. (a) to entertain or adiudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property: or X X X x X (c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act: or (d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine. "in the plaint, the plaintiffs have not made any allegations of fact to brine the suit within any of the exceptions laid down by the Supreme Court to the exclusion of the jurisdiction of the Civil Court. The learned counsel for the petitioners sought to urge that the plaintiffs had become the owners of the property before it had been. declared to be evacuee property, but there is no allegation to that effect made in the plaint. In the plaint, it is alleged that Khudah-Baksh had died and this property had devolved on Mohd. Ahmad. but it is not mentioned as to where and when Khudah-Baksh had died. In respect of Mohd. Ahmad, the plaint is extremely vague and misleading. It is only mentioned that Mohd. Ahmad is not being heard of since 1947. If that is so. it cannot be said that Mohd. Ahmad had died at any time before and not after 14th August, 1947. In fact the plaintiffs have not even alleged the death of Mohd. Ahmad categorically, much less given any particulars about the date or the place of his death. Therefore, their claim that the plaintiffs had become heirs and legal representatives of Mohd. ahmad before the property was declared to be evacuee property is wholly untenable and is not borne out even by their allegations. Ahmad categorically, much less given any particulars about the date or the place of his death. Therefore, their claim that the plaintiffs had become heirs and legal representatives of Mohd. ahmad before the property was declared to be evacuee property is wholly untenable and is not borne out even by their allegations. It is obvious that under the Administration of Evacuee Property Act, an evacuee is denned as a person who leaves the dominion of India, inter alia on or after 1st March, 1947. It has not been alleged that the Custodian s Department had not acted according to law if the property were belonging to Mohd. Ahmad. It is legitimate to presume that The quasi judicial authorities perform their public duties and functions according to law and the declaration of evacuee property must consequently have been made according to law. The same has not even been challenged, what has been alleged in challenge is that the plaintiffs as legal heirs of Mohd. Ahmad had not received notice, but if Mohd. Ahmad was alive on the date, the property became evacuee property, his legal representatives would obviously not be entitled to any notice. This is the plea taken up in the written statement that the plaintiffs had nothing to do with property. No infirmity can, therefore, be found with the declaration of the property as evacuee property, assuming the allegations made in the plaint to be correct. ( 8 ) AS a matter of law, it is finally concluded by the decision of the Supreme Court in Jafran Begum s case, AIR 1968 SC 169 (supra) where Wanchoo, C. J. speaking for the Court observed that the Act was a complete Code in itself in the matter of dealing with the evacuee property and the questions whether a particular person had or had not become evacuee and whether the property in dispute belonged to him, had to be decided by the Custodian under Section 7 of the Act and that Section 46 of the Act was a complete bar to the jurisdiction of civil or revenue Courts in any matter which can be decided under Section 7 of the Act and their Lordships found that this conclusion stood reinforced by the provisions contained in Section 4 (1) of the Evacuee Act which overrode Section 9 of the Code of Civil Procedure on a combined reading of Sections 4. 28 and 46 of the Act. The first contention of the counsel for the petitioner, therefore, fails and is rejected. ( 9 ) THE second contention of the learned counsel has still less merit. The property can be acquired bv the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act and Section 20 of the Act permits the Managing Officer to transfer the property out of the compensation pool by sale. Detailed statutory rules have been made for sale of the property, being Rules 91 and 92 and power has been given to the prescribed authorities to set aside the sale on the grounds mentioned in the said rules. It may be observed that they closely follow the pattern of the procedure of the Civil Courts in setting aside sales held in public auctions ordered by the Civil Courts. Section 27 of this Act confers a finality on the orders passed by any officer or authority under the Act and it has been expressly provided that they shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceedings. Section 36 of the Act further bars the jurisdiction of the Civil Courts to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under the Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. These sections therefore, make it clear that the sale conducted by an authority under the said Act is final and orders passed in its respect cannot be called in question in the Civil Courts. The plaintiffs have not shown "any ground as to how the order as well as the sale are without jurisdiction and nothing has beenshown to bring it within the exceptions laid down by the Supreme Court in Dhulabhai s case, AIR 1969 SC 78 . ( 10 ) THE ground on which the plaintiffs have made their submission is that the house in question had been advertised for sale on 23rd November. ( 10 ) THE ground on which the plaintiffs have made their submission is that the house in question had been advertised for sale on 23rd November. 1964 in the statesman Delhi and the said auction was advertised to be held on 19th December, 1964 and on learning about the sale. plaintiff No. 3 moved an application on behalf of himself and plaintiffs Nos. 1 and 2 to the authorities concerned for setting aside the sale. This shows that the plaintiffs knew of the sale and it had been advertised. The only ground on which the plaintiffs challenge the sale is that it took place on 19th December, 1964 which was a public holiday on account of Shabe-Barat and that the sale had taken place in collusion with the officers or defendant No. I and the property had been sold for Rs. 12,200. 00 and that proper publicity had not been given to the same. None of these grounds can be agitated in Civil Court to Question the sale conducted by the authorities under the Compensation Act. These are the grounds which may merit consideration of the authorities if an application had been moved to them for setting aside the sale under Rule 92. The plaint is silent with regard to the fact of the plaintiffs having moved such an application or any orders passed by the authorities thereon, but the counsel for the plaintiffs suggested that some application on the subject was made before the authorities concerned, but it failed. In any view of the matter, whether the application had not been made for setting aside the sale or having been made, it was rejected, the legal position remains the same and neither the sale nor the orders of the authorities refusing to set aside the sale can be challenged in the Civil Court on the ground of the sale being collusive or not properly published or not properly conducted. The reasoning of the Supreme Court in Jafran Begum s case, AIR 1968 SC 169 (supra) in respect of Section 7 of the Administration of Evacuee Property Act, applies with equal force to the bar created by Section 27 of the Displaced Persons Act in respect of actions under the said Act. There is. therefore, no force in the revision. The same is dismissed with costs.