G.D. Sahgal, J.
1. This is a plaintiff's 2nd appeal whose suit for declaration to the effect that she and defendants. Nos. 7 and 8 (respondents Nos. 7 and 8) were the owners in possession of the suit property and that the other defendants had no title or interest therein stands dismissed in the first appeal by the District Judge of Barabanki, it having been decreed by the Munsif of Barabanki in whose court it was instituted.
2. Smt. Israr Fatima, the plaintiff-appellant, is related to defendants-respondents Nos. 7 to 9 as would appear from the following pedigree:
Ziaul Huain Shifaul Husain
| (Died Issueless)
| | |
Wafau Husain Rifauj Husain. Mst. Israr Wajahat
(Defdt. 7) (Defdt. 8) Fatima Husain
(Defdt. No. 9)
the property belonged to
Her case was that the property belonged to Ziaul Husain and Shifaul Husain the two brothers, and even though the plaintiff was the daughter of Ziaul Husain, Shifaul Husain treated her as her daughter and gifted his half share in his property to her. he thus became owner of the property to the extent of one-half share belonging to Shifaul Husain and 1/7th of the one-hull belonging to Ziaul Husain. her total share being 4/7.
3. Wajahat Husain migrated to Pakistan in the year 1947 There was a notification in the National Herald in April 1956 to the effect that the house of Wajahat Husain in Zaidpur was to be auctioned by the Managing Officer, Barabanki. No notice of any kind was served on her at any time indicating that the property in question had been declared as evacuee property. Her case was that there was no declaration to the effect that the property was evacuee property and if there was one, it was invalid on account of U. P. Ordinance 1 of 1949 being declared void by the Allahabad High Court in 1957 It was also asserted that the property was never described any where is belonging to Wajahat Husain. The suit, therefore, had to be filed as the plaintiff apprehended that defendants Nos. 1 to 6, namely, the Custodian Evacuee property, the Managing Officer Barabanki the Regional Settlement Commissioner, U. P. Lucknow the Custodian General, Evacuee property, New Delhi, the Chief Settlement Commissioner, India, New Delhi and the Competent Officer U. P., Lucknow, would get the property auctioned and this will adversely affect the interest of the plaintiff.
4. The suit was contested only by defendants Nos. 1, 4 and 5 who are respondents Nos. 1, 4 and 5 to this appeal
5. They contended that the property had been taken over by the Custodian as evacuee property in 1949, that it had also been acquired by the Union Government under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (Act XLIV of 1954), that Rifaul Husain and Wafaul Husain filed an objection on the 1st of June, 1949 before the Deputy Commissioner, Barabanki which failed, that the plaintiff was the daughter of Ziaul Husain and that Shifaul Husain had no right or title in the disputed property so as to have donated it to her and that the suit was barred by the provisions of Act I of 1960 and by the provisions of Section 42 of the Specific Relief Act.
6. The suit was decreed by the learned Munsif, but the appeal filed by defendants Nos. 1 to 6 was allowed by the District Judge of Barabanki on the ground that the property had vested in the Custodian under Section 5 of U. P. Ordinance I of 1949 which became retrospectively valid by the introduction of Section 8(2A) into the Administration of Evacuee Property Act (Act XXXI of 1950) by way of an amendment by the Administration of Evacuee Property (Amendment) Act, 1960 (Act I of 1960).
7. The learned District Judge did not enter into the merits of the case as to whether the appellant had any interest in the property at all which she claimed
8. The appeal has been argued before me at length Shri Mohammad Husain on behalf of the appellant and Sri Wadhawani on behalf of the respondents have taken me through all the relevant Acts and Ordinances and the relevant case law to show as to how far some of the Ordinances which had been declared void by the High Court in 1957 have been validated by Central Act I of 1960 and what is the effect of their validation.
9. It would do well to deal with the various pieces of legislation which are relevant for the purposes of this case seriatim,
10. The first piece of legislation is U.P. Ordinance I of 1949 known as the U. P. Administration of Evacuee Property Ordinance. It defined the term evacuee and also evacuee property. It is not disputed that Wajahat Husain of the above pedigree, defendant No. 9 to the suit filed by Smt. Israr Fatima and respondent No. 9 to this appeal, was an evacuee within the meaning of that term in that Ordinance Under Section 2 (d) of the Ordinance 'evacuee property' among other things with certain exceptions, means any property in which an evacuee has any right or interest, or which is held by him under any deed of trust or other instrument. We are not concerned with the exceptions in this case.
11. Under Section 5 (1) of the Ordinance, subject to the provisions of the Ordinance with which we are not concerned, all evacuee property situated in the United Provinces shall vest in the Custodian.
12. Section 6(1) of the Ordinance provided that the Custodian may from time to time, notify by publication in the official Gazette or in such other manner as may be prescribed, evacuee properties which have vested in him under the Ordinance. Under Sub-section (2) of Section 6 where after the vesting of any evacuee property in the Custodian any person is in possession of any such property, he shall be deemed to be holding it on behalf of the Custodian and shall on being so required, surrender possession thereof to the Custodian or any person appointed by him in this behalf.
13. Under Section 7 the Custodian may use or cause to be used such force as is necessary for taking possession of the property in case any person in possession of the property refuses or fails on being required to surrender possession thereof to the Custodian or the person so appointed, to give possession to the Custodian.
14. Section 8 provides that any person claiming any right to, or interest in, any property which has been notified under Section 6 as evacuee property, of in respect of which a requisition has been made thereunder may prefer a written claim to the Custodian on the ground that (a) the property is not evacuee property, or (b) his interest in the property has not been affected by the provisions of the Ordinance. It also provides for the holding of a summary enquiry by the Custodian by taking evidence as may be produced opposing an order, rejecting or allowing the claim in whole or in part.
15. Section 30 of the Ordinance provides for appeal by any person aggrieved by an order made under Section 8.
16. Section 31 bars the jurisdiction of civil courts to entertain or adjudicate upon any question whether any property is or is not evacuee property or whether an evacuee has or has not any right or interest in the evacuee property It also bars the jurisdiction of the civil courts to question the legality of any action taken by the Custodian and also a suit in respect of any matter which the Custodian is empowered to determine.
17. Thus under the Ordinance the property of the evacuee automatically veted in the Custodian. Though Section 5 provides for the automatic vesting of the property of the evacuee in the Custodian it does not provide as to how that property will be defined No doubt, the property will vest in the Custodian but how it is to be known as to which property actually had vested in the Custodian is not provided in this Section. It only means that it is a general provision of law laying down that whatever be the property of the evacuee it shall vest in the Custodian. If the Custodian has in his mind that property 'A' belongs to an evacuee and it vests in him, no one will ever know this unless there is a clash between his interest and the interest of the Custodian as to what property the Custodian thought as belonging to the evacuee which vested in him. In order, therefore, to define such properties we have the procedure provided in Sections 6 and 8. A notification may be published describing the evacuee properties which have vested in the Custodian. Such a publication gives a right to a person who claims any right or Interest in such property which claim or interest will be determined under Section 8. Thus so long as the property is not notified, it is difficult to say as to which property had actually vested in the Custodian, though under the law whatever property was the property of the evacuee concerned would automatically vest in the Custodian. An appeal also has been provided for against the decision of the Custodian and the civil courts' jurisdiction has been barred for determining such matters
18. In the instant case Wajahat Husain having migrated to Pakistan his property automatically vested in the Custodian under Section 5 of the Ordinance at this stage we leave aside the question as to whether this Ordinance is valid or not. There is no evidence on record to show that there was any notification. In fact, a notification under Section 6, it is urged is not obligatory. It is only optional because the word 'may' has been used therein by providing that the Custodian may from time to time notify by publication the evacuee properties which have vested in him under the Ordinance. But if publication is not made, how is any body to know as to which property had actually vested in the Custodian even though all evacuee property may have automatically vested in the Custodian? So long as such evacuee property is not defined, no one can know which that property is. There is nothing on the record of this case to show that any notification under Section 6 of the Ordinance was made with respect to the evacuee property relating to Wajahat Husain. The plaintiff-appellant, therefore, could not know as to what property was being claimed by the Custodian as being the property belonging to the evacuee Wajahat Husain so that in case the Custodian was claiming any property which belonged to the plaintiff, she might have raised an objection under Section 8. The appellant, therefore, was denied the right of contesting the claim of the Custodian to any property that may have belonged to her but may have been claimed by the Custodian as being that of the evacuee Wajahat Husain and thus vesting in him. Though it is said that defendants Nos. 7 and 8 (respondents Nos. 7 and 8) did file objections before the Deputy Commissioner which decided against them, there is no material on the record to indicate that this was ever done or how it was that they filed objections even though there was no notification under Section 6(1). In this connection what will have to be determined is as to whether a civil suit is still barred in view of the provisions of Section 31 when, as contemplated in the Ordinance, no opportunity was afforded to the appellant by publication of the evacuee property under Section 6(1) to contest the claim, if any, of the Custodian that any property belonging to the plaintiff was not the property of the evacuee that might have vested in the Custodian.
19. Ordinance I of 1949 was followed by Central Ordinance XII of 1949 being an Ordinance to provide for the adminstration of evacuee property in the Chief Commissioners provinces. This Ordinance was known as the Administration Evacuee property (Chief Commissioners' Provinces) Ordinance, 1949. It repealed the East Punjab Evacuees Administration of Property) Act. 1947 (East Punjab Act XIV of 1947).
20. We then had Central Ordinance XX of 1949 known as the Administration of Evacuee Property (Chief Commissioner's Provinces) Amendment Ordinance, 1949. It added Section 41 to Ordinance XII of 1949 by providing:
''41. Notwithstanding the expiry of the United provinces Administration of Evacuee Property Ordinance, 1949 (U. P. Ordinance I of 1949) immediately before the commencement of the Evacuee Property (Chief Commissioners' Provinces) Amendment Ordinance, 1949, anything done or any action taken in the exercise of any power conferred by the first named ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by this ordinance as amended by the second--named Ordinance, and any penalty incurred or proceeding commenced under the first-named Ordinance shall be deemed to be a penalty incurred or proceeding commenced under this Ordinance, as if this Ordinance as so amended were in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced.'
21. It may here be mentioned that certain amendments were made in Ordinance XII of 1949 by Ordinance XX of 1949 which it may be necessary to point out in order to appreciate the provisions of Section 41 introduced in Ordinance XII of 1949 by Ordinance XX of 1949.
22. There was an amendment in the title of the preamble of the Administration of Evacuee Property (Chief Commissioners Provinces) Ordinance. 1949 by omitting the words 'Chief Commissioners' Provinces' with the result that the Ordinance became an Ordinance to provide for the administration of evacuee property generally and not, with respect to the Chief Commissiosers' only. It was extended by means of an amendment in Section 1 not only to the Chief Commissioners' Provinces but also to the Province of Madras and the United Provinces
23. Ordinance XXVII of 1949 repealed Ordinance XII of 1949 as amended by Ordinance XX of 1949 and enforced in the Chief Commissioners' Provinces, Province if Madras and the United Provinces but provided for a saving Clause under Section 55 (3). This Ordinance provided in Section 7 for the declaration of evacuee property and also for the vesting of the evacuee property in the Custodian. It did not provide for the automatic vesting of the property but provided first for the notification of the property, then determination of disputes and then declaration of the evacuee property which property was to vest in the Custodian. Sub-section (2) of Section 8 of this Ordinance provides:
'Where immediately before the commencement of this Ordinance, any evacuee property in a province had vested in any person exercising the powers of a Custodian under any law repealed hereby, the evacuee property shall, on the commencement of this Ordinance, be deemed to have vested in the Custodian appointed or deemed to have been appointed for the province under this ordinance and shall continue to so vest.'
Thus any vesting under Ordinance XII of 1949 was deemed to be one under Ordinance XXVII of 1949 as if the latter had been enforced on the date of vesting.
24. Under Ordinance XII of 1949, we also had a provision similar to that contained in Section 5 of U. P Ordinance I of 1949 which also provides for the vesting of the evacuee property in the Custodian of the provinces automatically without the notification being first made as provided under Section 7 of Ordinance XXVII of 1949.
25. There then came the Administration of Evacuee Property (Amendment) Ordinance, 1950 (Ordinance IV of 1950) which was only an amending Ordinance and substituted Section 8 of Ordinance XXVII of 1949 in the revised form as follows:
'8 (2). Where immediately before the commencement of this Ordinance, any property in a province had vested as evacuee property in any person exercising the power of a Custodian under any law repealed hereby, the property shall, on the commencement, of this Ordinance, be deemed to be evacuee property declared as such within the meaning of this Ordinance and shall be deemed to have vested in the custodian appointed or deemed to have been appointed for the province under this Ordinance, and shall continue to so vest'
Under this provision of the Ordinance the effect as to vesting was that the vesting under the earlier Ordinance was deemed to be under Ordinance XXVII of 1949 which it amended
26. Then came into force on April 18, 1951 the Administration of Evacuee Property Act, 1950 (Act XXXI of 1950) which repealed Ordinance XXVII of 1949 The definitions of evacuee and evacuee property are the same as in Ordinance XXVII of 1949 Sections 7 and 8 also are in the same terms. The provisions regarding vesting of evacuee property in the Custodian were also the same as amended by Section 8 of Ordinance XXVII of 1949 Section 58 deals with repeals and savings.
27. The consequence of Section 8 (2) was that the property vesting under Ordinance XXVII was deemed to have vested in the Custodian under the corresponding provisions of the Act.
28. On February 27, 1960 the Act was amended by the Administration of Evacuee Property (Amendment) Act, 1960. Sub-section (2A) was added to Section 8 in the following terms:
' (2A) Without prejudice to the generality of the provisions contained in Sub-section (2), all property which under any law repealed hereby purports to have vested as evacuee property in any person exercising the powers of Custodian in any State shall, notwithstanding any defect in, or the invalidity of, such law or any judgment, decree or order of any court, be deemed for all purposes to have validly vested in that person as if the provisions of such law had been enacted by parliament and such property shall, on the commencement of this Act, be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken.'
29. U. P. Ordinance I of 1949, Central Ordinance XII of 1949. Central Ordinance XX of 1949 and Central Ordinance XXVII of 1949 had all been held to be invalid by this Court as the legislative competence of the Governor and of the Governor General in regard to the evacuee and evacuee property matters was wanting (Vide Azizun Nisa v. Assistant Custodian, AIR 1957 All 561) and against the judgment a petition for special leave to appeal to the Supreme Court, also was dismissed, but after the introduction of Sub-section (2A) in Section 8 of the Administration of Evacuee Property Act, 1950 (Act XXXI of 1950) the vesting of the evacuee property under those Ordinance became retrospectively competent. As has been remarked by the Supreme Court in Azimunnissa v. Deputy Custodian. Evacuee Properties Dist Devria AIR 1961 SC 365 the effect of Section 8(2A) is that what purported to have vested under Section 8(2) of Ordinance XXVII of 1949 and which is to be deemed to be vested under Section 8 of the Act which repealed that Ordinance, notwithstanding any invalidity in the original vesting or any decree or order of the Court, shall be deemed to be evacuee property validly vested in the Custodian and any order made by the Custodian in relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validate (1) what purports to be vested: (2) removes all defects or invalidity in the vesting or fictional vesting under Section 8(2) of Ordinance XXVII of 1949 or Section 8(2) of the Act which repealed the Ordinance, (3) makes the decree and judgments to the contrary of any court in regard to the vesting ineffective; (4) makes the property evacuee property by its deeming effect; and (5) validates all orders passed by the Custodian in regard to the property.
30. The result of the above discussion is that Section 5(1) of Ordinance I of 1949 vested the evacuee property in the Custodian and that vesting cannot now be challenged. There has, however, been no notification under Section 6(1) of that Ordinance and we do not know as to what property was actually meant to be vested in the Custodian except that the evacuee property relating to Wajahat Husain vested in the Custodian. In the year 1954 came into being the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954) which provided for the payment of compensation and rehabilitation grants to displaced persons and the matters connected therewith. Under Section 12 of that Act if the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section. The result of such a publication is that the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacueee property shall vest absolutely in the Central Government free from all encumbrances. Such a notification was made in the year 1955 in the Gazette of India, Part II, Section 3 at page 1015 under S. R. O. 1188 as to the evacuee property which has vested in the Central Government. The notification does not describe any property specifically, but it relates to urban property--the property in this case being situated a Town Area -- which has been declared or deemed to have been declared as evacuee property under Act XXXI of 1950.
31. Under Section 16 of this Act the Central Government may take such measures as it considers necessary or expedient for the custody management and disposal of the compensation pool in order that it may be effectively utilised in accordance with the provisions of the Act It may here be mentioned that under Section 14 the evacuee property which has vested in the Central Government becomes part of the compensation pool Under Sub-section (2) of Section 16 the Central Government may for the purpose of the custody, management and disposal of the compensation pool appoint officers known as managing officer? and under Section 17 a managing officer may take such measures as the considers necessary or expedient for the purpose of, among others, disposing of any property in the compensation pool entrusted to him and it appears that it was in this connection that the advertisement was made in the National Herald which attracted the notice of the plaintiff appellant. That notification related to the property for which the plaintiff seeks declaration. Her claim is that the property belongs to her and defendants-respondents Nos. 7 and 8. It is difficult to understand how she could ignore the claim of defendant No. 9, namely, Wajahat Husain, the evacuee, who too would have an interest in the property if the allegations in the plaint that the property belonged to Ziaul and Shifaul Hussain are correct, In any case suit has been brought in the circumstances above mentioned.
32. The contention on behalf of the respondents is that the suit is barred in view of the provisions of Section 46 of the Administration of Evacuee Property Act, 1958 (Act XXXI of 1950). This section provides:
'46. Save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction--
(a) 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, or
(c) to question the legality of any action taken by the Custodian-General or the Custodian under the Act; or
(d) in respect of any matter which the Custodian-General or the Custodian is empowered by or under this Act to determine.'
33. Under Clause (a), it is urged, the suit could not be entertained. The contention on behalf of the plaintiff appellant, however, is that this provision would not apply as the appellant was never given an opportunity before the Custodian to contest her claim to the property inasmuch as it was never notified and she could never know that the property would be treated at the property of the evacuee Wajahat Husain. It may be that the property of Wajahat Husain would be evacuee property and it would automatically vest in the custodian, but, as pointed out above, how could the plaintiff-appellant know that the property in dispute would be treated as having vested in the Custodian. The Custodian cannot come and say, though the property of the evacuee Wajahat Husain may have vested in him, that any particular property was the property of Wajahat Husain without giving an opportunity to the persons who may claim any interest in that property to show that they too had an interest in that property.
34. There is a complete provision in Act XXXI of 1950--there was a similar proision in the Ordinance prior to it also--to determine such claims of the persons other than the evacuee like the plaintiff-appellant inasmuch as they could raise such claims after notification under Section 7 which could be determined under that provision of law against which there was a provision for appeal also under Section 24. But in view of the property having never been notified, how could the appellant make a claim as to it before the Custodian? There was automatic vesting of the property prior to Ordinance XXVII of 1949 under the earlier Ordinances, but since the coming into force of the Ordinance XXVII of 1949 onwards a notification has to be made before any property is declared to be an evacuee property. No such difficulty would have arisen in case the property had been declared to be evacuee property after Ordinance XXVII of 1949. The difficulty arises because in view of the earlier ordinance, the property of the evacuee Wajahat Husain automatically vested in the Custodian and as no notification was made under Section 6(1) of U. P. Ordinance I of 1940, there arose no occasion for the plaintiff to lay her claim to the property which is now claimed to be the property of Wajahat Hussain having vested in the Custodian and having been acquired by the Government under Section 12 of Act XLIV of 1954. The question is whether even in such cases Section 46 is a bar to the exercise of jurisdiction by the civil courts in determining as to whether the plaintiff-appellant has any interest in any such evacuee property? Act XXXI of 1950 and the preceding Ordinance which it repeals contemplate an opportunity being given to non evacuees to lay claims before the Custodian in respect of the evacuee property claimed by him as having vested in him. Even an appeal is provided against the decision of the Custodian. But if no such opportunity has been given to any person to claim that he also as an interest in the property which the Custodian claims to be vesting in him as belonging to an evacuee, then Section 46, will stand as a bar to the jurisdiction of the civil courts.
35. I am of opinion that the word 'may' used in Sub-section (1) of Section 6 of Ordinance I of 1949 has the force of 'shall' and does not make it optional for the Custodian whether to notify by publication the property that has vested in him or not.
36. Sub-section (1) of Section 5, no doubt, vests the evacuee property in the Custodian automatically without its being notified, but it must be determined as to what that property actually is and such property cannot be determined without a notification being made and objections being invited from interested persons. The Custodian, therefore, ought to have followed the procedure with respect to what he considered to be the evacuee property of Wajahat Husain evacuee as contained in Sections 6 and 8 of Ordinance I of 1949. He has not done so. As to whether by his not doing so a party will be barred to raise an action in the civil court in view of the provision of Section 46 of Act XXXI of 1950, one view may be that the remedy of the appellant was to approach the High Court under Article 226 of the Constitution for a writ of mandamus requiring the Custodian to follow the procedure contained in Sections 6 and 8 of Ordinance I of 1949. If that view is accepted, then suit of the appellant should be dismissed and also this appeal. The appellant, if he is so advised, will then have to seek his remedy for a writ of mandamus against the Custodian under Article 226 of the Constitution. Another view that was prevailed with the Rajasthan High Court in Wazira v. Shamulal, AIR 1960 Raj 283 is that Section 46 of the Administration of Evacuee Property Act, 1950 which creates new jurisdiction in derogation of a right of suit in competent courts of law must be strictly construed and the bar as to the jurisdiction of the civil court should be held only to the extent to which it is strictly necessary to do so. This bar, as has been held in that case, cannot apply where the Custodian or the Custodian-General has acted without jurisdiction or in excess of his jurisdiction. Considering the observations made by the Patna High Court in S. M. Zaki v. State of Bihar, AIR 1953 Pat 112 to the effect that once it was apparent that the Custodian had acquired jurisdiction to take action under the Act of 1950, the mere circumstances that the Custodian had wrongly decided that any property was evacuee property under the Act would not be a sufficient warrant for the High Court to interfere with the order of the Custodian or the Custodian-General inasmuch as Section 46 of the Act bars the jurisdiction of a civil court in 'such matters even though the point may have been wrongly decided, the learned Judge who decided the case of Wazira and another (supra) remarked that the decision may be all right in one sense, but it does not afford any answer to the question whether the civil courts or for that matter the High Court would be powerless to interfere in a matter where the order of the Custodian or Custodian General is without jurisdiction or in excess of their legitimate jurisdiction, and a separate example was then given and it was pointed out that such a case would clearly seem to arise where for example, the Custodian may not have given any notice under Section 7 of the Act of 1950 and nevertheless he proceeds to declare a certain property to be evacuee property. The Judge had no doubt that in such a case the proceedings taken by the Custodian would be entirely without jurisdiction and Section 46 of the Act cannot be allowed as a bar in the way of the civil courts going to hold that the order passed by the Custodian was without jurisdiction in a matter of this kind. The Civil court may not be barred from holding that the order of the Custodian in such a case is without jurisdiction when he declares the property as evacuee property but how does the civil court get jurisdiction to decide whether the property is evacuee property or not or that besides the evacuee some other persons also have interest therein in view of the provisions contained in Section 46. Clause (a) of Section 46 specifically imposes a bar to the entertainment or adjudication of any question whether any property or any right to or interest in any property is or is not evacuee property. This bar has been provided because Act XXXI of 1950 contemplates the giving of complete opportunity to third person to get his right determined as against the Custodian by his objecting against the vesting of the notified property in the Custodian and the presumption is that the procedure will be followed and opportunity will be offered as provided under the Act. In the instant case, as I have already pointed out, the procedure contemplated under Sections 6 and 8 of Ordinance I of 1949 also ought, to have been followed. But if it has not been followed, the remedy to the person aggrieved is not by way of a civil suit which is barred but is by way of a writ under article 226 of the Constitution for a mandamus. The plaintiff, therefore, ought to have filed a writ of mandamus and not the suit giving rise to this second appeal. The remedy by way of a suit is clearly barred under Clause (a) of Section 46.
37. The learned counsel for the appellant drew my attention to certain observations made by a learned Judge in a Full Bench case of this Court and also the trend of authority of the Punjab High Court to which I will presently refer.
38. The Full Bench case on which reliance has been placed is Khalil Ahmad Khan v. Malka Mehar Nigar Begum, AIR 1954 All 362. It was a case, it may be pointed out, where the trial court, (a civil Court) had already adjudicated upon the rights of the parties. There was an appeal pending in the civil court challenging the correctness of the decree of the trial court. The Custodian in that case had acted on the strength of the decree of the trial court in which Malka Mehar Nigar Begum had been granted a decree, for treating the property for which a decree had been granted in her favour, as evacuee property, Malka Mehar Nigar Begum having migrated to Pakistan. The question arose whether the appeal could be proceeded with in view of the provisions of Section 46 of Act XXXI of 1950 which barred the remedy of a third party in a civil court. It was held that Section 46 was not a bar. The Custodian had acted on the basis of the decree of the trial court which itself was under appeal and could be challenged in appeal. To hold that the appellate court could not proceed to decide the appeal would mean that aggrieved party would be deprived by the retrospective operation of the law relating to the administration of evacuee property, of a right already possessed by him and in the absence of a very clear provision to that effect in the statute it would be against all the canons of interpretation. It was in these circumstances that the appeal in that case was heard, though it was ultimately dismissed on the merits. In that case Agarwala, J. however made the following observations on which reliance has been placed by the appellant.
'Secondly, the Custodian-General or the Custodian is empowered to determine whether a property is or is not evacuee property under Section 7 of the Act, only when a notice has been given as prescribed in that Section. There is no other provision in the Act authorising them to determine whether a certain property is evacuee property or not. Admittedly, the Custodian has not given any notice as prescribed in Section 7 and consequently he has no jurisdiction to determine whether the property in dispute is or is not evacuee property. It was urged that under the U. P. Ordinance No. 1 of 1949, which in terms was replaced by Government of India Ordinance 27 of 1949. which itself was replaced by the present Act, no notice was necessary to be given and all property which was evacuee property vested in the Custodian automatically, and once such property had vested under Ordinance No. 1 1949, it remanded vested even under the present Act by virtue of Clause (2) of Section 8. 'But this position also does not help the respondent. It is true that under paragraph 5 of the Ordinance No. 1 of 1949, a property which was evacuee property vested in the Custodian automatically and by virtue of Clause (2) of Section 8 of the present Act it will be deemed to be evacuee property, declared as such, within the meaning of the Act and shall be deemed to be vested in the Custodian automatically and shall continues to so vest But in a case of dispute who is to determine whether the property has vested in the Custodian? The Custodian cannot, because the Act does not give him the power to determine such a question. Obviously it is the Civil Court which must determine that question Therefore, in such a case also Clauses (a) and (d) cannot bar the jurisdiction of the civil Court. Clause (a) in my opinion does not come into operation when notice under Section 7 has not been given because before such notification is given there is no question of any authority deciding whether the property is evacuee property The civil court in such an event decides merely whether the property can be claimed by a certain person as owner of mutawalli or in any other capacity and not whether it is an 'evacuee property'. The law could not have contemplated that even though the Custodian has acquired no jurisdiction to determine whether a certain property is evacuee property the civil courts should not entertain suits of title with respect to such property.'
These observations are only by way of obiter as they were not necessary to decide the case. The facts of the case, as already pointed out above, are such that the appeal should have been entertained and allowed to be heard. The framers of Ordinance I of 1949 never contemplated that the Custodian would rely on Section 5 of the Ordinance for the property to be vested in him without even describing the property by notification under Section 6(1) and allowing an opportunity to any third person who may like to claim that property. Under Act XXXI of 1950 also a notification was obligatory. The legislature never contemplated that the Custodian will not carry out his obligations. If the Custodian had carried out his obligation under Section 6(1) of the Ordinance, this difficulty would not have arisen. The remedy to the appellant, therefore, was by way of a writ of mandamus against the Custodian directing him to carry out his duty by issuing a notification and not by of way suit which is clearly barred,
39. In a Full Bench case of the Punjab High Court, namely, Mst. Jafran Begum v. Custodian Evacuee Property, Punjab, AIR 1963 Punj 40 (FB). In which have been considered a large number of earlier authorities of the same Court, it has been laid down that although the question, whether certain property is or is not evacuee property, is determinable by the Custodian, the determination of a question of title by the Custodian, if such a question properly arises in such a case. is not final and the question of title can be reopened in the civil courts and is to be finally determined by those courts. This does not, however, mean that a mere assertion of claim to any property raises a question of title for such an assertion may rest on a simple allegation of fact which can be finally determined by the Custodian. It is further stated therein that when a question arises whether any property is or is not evacue property two matters have to be considered--(1) whether a particular person has or has not become an evacuee: and (2) whether the property in dispute belongs to him Dulat, J. who spoke for the Full Bench pointed out that the first question, almost invariably is a question of fact and is to be determined finally, by the Custodian and the civil courts have nothing to do with it. The second question may, however, involve a simple question of fact, while, on the other hand, it may involve a complicated question of law or, as many of the decisions have put it, a 'question of title' It is about such matters that the controversy mainly arises. He then went on to consider the earlier cases and came to the conclusion that a question of title cannot be finally determined by the Custodian, though he went on to add that he did not mean that a mere assertion of claim to any property raised a question of title for such an assertion may rest on a simple allegation of fact which can be finally determined by the Custodian and the further question whether in a particular case a question of title does or does not properly arise, has to be decided on the facts of each case and no general rule about it can usefully be laid down. With respect I do not agree with the reasoning of the Punjab High Court and I am of opinion that, as the Administration of Evacuee Property Act (Act XXXI of 1950) and the Ordinance preceding it contain a complete code in respect of the determination of the competing claims of the Custodian and third persons so much so that it gives even a right of appeal, Section 46 is a bar to the type of the suit that has been filed in this case being filed in a civil court, the only remedy open to the appellant being to get a writ of mandamus issued to compel the Custodian to do his duty,
40. Thus, in this circumstances, it is not necessary to refer to the earliar authorities of the Punjab High Court which have all been referred to in the Full Bench case.
41. An authority of the Patna High Court was also cited by the Bar, namely AIR 1953 Pat 112 (supra), In that case the decision turned on a finding as to whether the petitioner in that case was an evacuee or not and it was held that it was the Custodian who had the jurisdiction to decide that he was the evacuee and as such the property vested in him, whether he decided it rightly or wrongly. That case does not help either party.
42. Lastly we come to the latest pronouncement of the Supreme Court in Ram Gopal Reddy v. Additional Custodian. Evacuee Property AIR 1966 SC 1438 wherein it has been held that whatever may be the position of law where the title of the evacuee himself is in dispute, as to which the Supreme Court expressed no opinion, there can be no doubt that where the property admittedly belonged to the evacuee and the persons filing the suit claims to be a transferee from the evacuee, the suit would certainly be barred in view of Section 46 of the Act. Obviously, these observations did not apply to the instant case, for it is not a case where the property admittedly belonged to the evacuee and the person filing the suit claimed to be a transferee from the evacuee.
43. The learned counsel appearing for the respondents drew my attention to certain provisions of Act XXXI of 1950 and Act XLIV of 1954 to show that she could set the relief even without filing a suit. He drew my attention to the provisions of Section 16 of Act XXXI of 1950 under which it is provided that an evacuee or any other person claiming to be an heir of evacuee may apply to the Central Government in this behalf that any evacuee property which has vested in the Custodian and to which the applicant would have been entitled if this Act were not in force, may be restored to him. Obviously, this provision cannot help the appellant who is neither an evacuee nor one claiming to be an heir of an evacuee.
44. Attention was then drawn to the provisions of Section 27 of the Act which provides that the Custodian General may at any time either on his own motion or an application made to him in this behalf call for the record of any proceedings in which any Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit The learned counsel could not point out to me as to what order has been passed by the Custodian against which the appellant could go in revision and seek her remedy before the Custodian-General. Obviously, therefore, if there is no order against which she could go up in revision, the appellant had no remedy under this provision of law.
45. The provisions of Sections 27 and 36 of Act XLIV of 1954 were then referred to. Under Section 27 every order made by any officer or authority under that Act, including a managing corporation, shall be final and shall not be called in question in any court by way of an appeal or revision or in any original suit, application or execution pro-ceding. In this case the plaintiff does not seek to challenge any order passed under Act XLIV of 1954. What she seeks to challenge is that the property which is claimed to be that of the evacuee was not his property, but it belonged to her and defendants Nos. 7 and 8 or in any case they too had an interest in that property, even if it be held that the evacuee also had an interest therein
46. Section 36 provides that no civil court shall have jurisdiction to entertain am 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 the 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 the Act. The learned counsel could not point out whether the matter in controversy in the suit could be determined by the Central Government or any officer or authority appointed under the Act empowered by or under the Act to determine the same. This provision of law also does not help the respondents.
47. Altogether, therefore, I am of opinion that the suit was a misconceived one and the remedy which the appellant could have sought was that by way of a writ of mandamus against the Custodian to issue a notification as required under Section 6 (1) of U P. Ordinance I of 1949. It is not necessary to decide in this case as to whether such a remedy would be barred on account of laches in the circumstances of the case. Such a point can he decided only if it so arises for determination in any writ petition that may be filed by the appellant if she is so advised to do at this stage The appeal has, therefore, to fail, though on reasons different Prom those given by the learned District Judge.
48. The appeal accordingly fails andis hereby dismissed. No order is made asto costs.