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Union of India (Central Government) and ors. Vs. Koka Raghava Rao - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 169 of 1962
Judge
Reported inAIR1965AP337
ActsCode of Civil Procedure (CPC), 1908 - Sections 9; Administration of Evacuee Property Act, 1950 - Sections 24, 27 and 48(2)
AppellantUnion of India (Central Government) and ors.
RespondentKoka Raghava Rao
Appellant AdvocateM.V. Nagaramaiah, Adv. for ;N.V.B. Shankara Rao, Govt. Pleader
Respondent AdvocateN.C.V. Ramanujachari and ;C. Srinivasachari, Advs.
Excerpt:
.....- section 9 of code of civil procedure, 1908 and sections 24, 27 and 48 (2) of administration of evacuee property act, 1950 - whether civil court has jurisdiction to entertain suit with respect to recovery of rent of evacuee property under act - matter to be decided by forum constituted under section 48 of act - held, civil court not entitled to entertain suit arising under act. - - janco, who was declared an evacuee under the provisions of the act, and the lands, in question were declared as evacuee property on 18-12-52. it would appear that as the respondent failed to pay the amount due as rent for fasli 1361, the revenue divisional officer (assistant custodian of evacuee property) issued a notice to the respondent and after hearing him in person on 6-3-1959 and 14-3-1959 ,and..........in firm sahib dayal bakshi ram v. asst. custodian evacuees' property, and in custodian general of evacuee property v. harnam singh, , and another decision of the allahabad high court in lord krishna sugar mills ltd., saharanpur v. asst. custodian, saharanpur, : air1958all396 which the courts below purported to follow, seemed to have taken an erroneous view of section 48 of the administration of evacuee property act, (1950), (hereinafter called the act') in holding that the provisions of that section did not oust the jurisdiction of the civil courts. the question, however, has now been decided by the supreme court in abdul karim v. dy. custodian general : [1964]6scr837 and in the light of that decision, the judgment of the punjab and allahabad high courts referred to above, must be held.....
Judgment:

Basi Reddy, J.

(1) This second appeal was referred to a Division Bench by one of us, because two decisions of the Punjab High Court in Firm Sahib Dayal Bakshi Ram v. Asst. Custodian Evacuees' property, and in Custodian General of Evacuee Property v. Harnam Singh, , and another decision of the Allahabad High Court in Lord Krishna Sugar Mills ltd., Saharanpur v. Asst. Custodian, Saharanpur, : AIR1958All396 which the courts below purported to follow, seemed to have taken an erroneous view of section 48 of the administration of Evacuee Property Act, (1950), (hereinafter called the Act') in holding that the provisions of that section did not oust the jurisdiction of the Civil Courts. The question, however, has now been decided by the Supreme Court in Abdul Karim v. Dy. Custodian General : [1964]6SCR837 and in the light of that decision, the judgment of the Punjab and Allahabad High Courts referred to above, must be held to have been wrongly decided . This position is rightly conceded by the learned Advocate fro the plaintiff respondent in this second appeal.

(2) The suit out of which this second appeal by the defendant (Union of India, Central Government ; District Collector, East Godavary, Custodian of Evacuee Property, Revenue Divisional Officer, Kakinada, the Assistant Custodian of Evacuee Property and the Tahsildar, Kakinada) arises, was brought by the respondent for a permanent injunction restraining the defendants from collecting an amount of Rs 1200 alleged to be due as rent for fasli 1361 in respect of certain lands, which had been taken on lease by the respondent from one Tar Md. Janco, who was declared an evacuee under the provisions of the Act, and the lands, in question were declared as evacuee property on 18-12-52. It would appear that as the respondent failed to pay the amount due as rent for fasli 1361, the Revenue Divisional Officer (Assistant Custodian of Evacuee Property) issued a notice to the respondent and after hearing him in person on 6-3-1959 and 14-3-1959 , and on being satisfied that the respondent was liable to pay the amount, passed an order on 23-4-1959 directing that the amount of Rs. 1200 should be recovered from the respondent. The Tahsildar, Kakinada, was directed to recover the amount as an arrear of land revenue.

(3) It is apparent from the order passed by the Assistant Custodian that it was one made under section 48 of the Act. Section 48 as amended in 1956, reads as follows :-

'48 recovery of certain sums as arrears of land revenue:-

(1) Any sum payable to the Government or to the Custodian in respect of any evacuee property, under any agreement, express or implied lease or other document or otherwise howsoever may be recovered in the same manner as an arrear of land revenue.

(2) If any question arises whether the sum is payable to the Government or to the Custodian within the meaning of subsection (1), the Custodian shall, after making such inquiry as he may deem fit, and giving the person by whom the sum is alleged to be payable an opportunity of being heard, decided the question; and the decision of the custodian shall, subject to any appeal or revision under this Act, be final and shall not be called in question by any court or other authority.

(3) For the purposes of this section, a sum shall be deemed to be payable to the Custodian notwithstanding that its recovery is barred by the Indian Limitation Act, 1908 (9 of 1908), or any other law for the time being in force relating to limitation of action.'

In the above cited Supreme Court decision, Wanchoo, J. speaking for the court analysed the provision of the section as follows : (at p. 1258)

'It will be seen that this is mainly a procedural section replacing the earlier S. 48 and lays down that sums payable to the Government or to the custodian can be recovered there under as arrears of land revenue. the section also provides that where there is any dispute as to whether any sum is payable or not to the .Custodian or to he Government the custodian has to make an enquiry into the matter and give the person raising the dispute an opportunity of being heard and thereafter decide the question. Further, the section makes the decision the question of the Custodian final, subject to any appeal or revision under the Act and not open to question by any court or any other authority . Lastly the section provides that the sum shall be deemed to be payable to the Custodian notwithstanding that its recovery is barred by the Indian Limitation Act or any other law for the time being in force relating to limitation of action. Sub-section (1) and (2) are clearly procedural and would apply to all cases which have to be investigated in accordance therewith after October, 22, 1956, even though the claim may have arisen before the amended section was inserted in the Act. It is well settled that procedural amendments to a law apply, in the absence of anything to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the action may have begun earlier or the claim on which the action may be based may be of an anterior date.'

(4) On the authority of this ruling, it is manifest that once a decision is given under S. 48 of the Act by the Custodian, (which term includes an Additional, Deputy or Assistant custodian of Evacuee property appointed in a state), it cannot be called in question in any civil court and it can be Challenged only by way of appeal or revision as provided by Ss. 24, 27, and 28 of Act. Thus, the jurisdiction of the Civil Courts is expressly ousted.

(5) The respondent filed the present suit for an injunction restraining the defendants from proceeding under Sec. 48 of the Act to realise the amount due, raising various please such as the bar of limitation, that the lands had yielded a poor crop in that fasli and the crop had been attached and sold for Rs. 300 by the Income-tax Department for arrears of income-tax alleged to be due by the evacuee and lastly that in reply to Section 80 C. P. C. notice which the respondent had given to the authorities, the Collector had intimated to him by a communication dated 10-7-59 stating that he had issued orders to the Revenue Divisional officer and the Tahsildar, Kakinada, to withdraw the proceedings under section 48 of the Act and therefore, it was not open to the authorities to seek to realise the amount from the respondent.

(6) The stand taken by the defendants was that the decision of the Assistant Custodian was that Rs. 1200 was due from the plaintiff and that the civil court had no Jurisdiction to entertain a suit against that decision. It was further maintained that the reply sent by the collector to the suit notice was under a misapprehension that time barred debts could not be recovered, but that did not preclude the authorities from taking action in accordance with law.

(7) The trial court, holding that the civil court AIR 1965 ANDHRA PRADESH jurisdiction to entertain the suit, partially decreed the suit for permanent injunction with regard to a sum of Rs. 300. On appeal preferred by the plaintiff, the principal Subordinate Judge allowed the appeal and decreed the suit in its entirely, restraining the defendants from proceedings to collect Rs. 1200, invoking the powers under section 48 of the Act. The lower appellate Court framed the following points for determination :-

1. Whether plaintiff is entitled to the injunction asked fob1 r ?

(2) Whether defendants are not entitled to take proceedings under section 48 of Act 31 of 1950 for recovery of any amount alleged to be due to the evacuee when the liability to pay the amount is disputed by plaintiff on the ground that it is not due and that it is barred by time ?

3. Whether defendants are entitled to collect Rs. 1200 alleged to be due from plaintiff to the evacuee only by filing a separate suit ?

4. Whether civil Court has no jurisdiction to entertain the suit?

The lower appellate Court held that under section 48 of the Act, the Custodian had no power to recover the amount as the liability was disputed, but that the proper course for the Custodian was to file a suit as provided by section 10(2)(j) of the Act. The court also held that since the defendants could not legally invoke the powers under section 48 of the Act, the plaintiff's suit for injunction could be entertained by the civil Court.

(8) In our opinion the lower appellate court is plainly wrong in holding that the civil Court had jurisdiction to entertain the present suit. Since the matter had been decided by the Assistant Custodian under section 48 of the Act, the respondent cannot escape his liability to pay the sum of Rs. 1200.

(9) While not contesting this position, the learned Advocate for the respondent has sought to argue that the reply sent by the respondent, would amount to a compromise under section 10(2)(j) of the Act, which the Collector was competent to enter into. This is a manifestly untenable contention. No such plea was taken at any stage of the proceedings before the authorities constituted under the Act nor in the plaint in the present suit. The reply sent by the Collector was based on a misapprehension of the legal position and that cannot, by any stretch of imagination, be constructed as amounting to a compromise.

(10) Since the civil court had no jurisdiction to entertain the present suit, this second appeal is allowed and the plaintiff's suit is dismissed. In the peculiar circumstances of the case, we direct each party to bear its own costs throughout.

(11) Appeal allowed.


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