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Riaz Ahmad and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revn. No. 235 of 1968, from order of Har Kishan Singh Malik, Sub. J. 1st Class, Delhi. D/- 21-
Judge
Reported inAIR1974Delhi151
ActsAdministration of Evacuee Property Act - Sections 7 and 46; Code of Civil Procedure (CPC), 1908 - Sections 9; Displaced Persons (Compensation and Rehabilitation) Act - Sections 27
AppellantRiaz Ahmad and ors.
RespondentUnion of India and ors.
Appellant Advocate Tarlochan Singh, Adv
Respondent Advocate S.S. Chadha, Adv.
Cases ReferredSrinivasa v. State of Andhra Pradesh
Excerpt:
.....court to decide on the status of the property under section 7 and 46 of the administration of evacuee property act - it was held that the custodian could decide on the question whether the property was an evacuee property and the civil court had no power to decide on the status of the property b) the case debated on the integrity of the orders for sale of property passed under section 27 of the displaced persons (compensation and rehabilitation) act - it was held that the sale conducted under the act could not be challenged in the civil court on the ground of irregularity - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a..........of the assessment apart from its constitute- are for the decision of the authority and a civil suit does not. lie if the orders of the authorities are declared to be final or there is an express prohibit 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 jurisdiction 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 jurisdiction 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 jurisdiction of the civil court......
Judgment:

1. This revision petition has been filed by the Plaintiff petitioners against the order of a Subordinate Judges 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 jurisdiction to try the suit and. has dismissed their suit with costs.

2. The facts Living 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 eateries of powers conferred by the Displaced Persons (Compensation and Rehabilitation) Act 44 of 1954 after the property had been acquired by the Central Government under Section 12 of the said Act. The Plaintiffs have brought the suit on the following material allegations, namely (1) plaintiff s 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 by 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 am 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 favor 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 the plaint. They have alleged that the property was allot table 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 favor 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 jurisdiction 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, : [1967]3SCR736 .

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. 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, : [1968]3SCR662 . The same have been followed by the Supreme Court in Srinivasa v. State of Andhra Pradesh, : [1970]2SCR714 . They are as follows:

'(1) Where the statute Lives 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 jurisdiction 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 jurisdiction 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 laws 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 by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra wires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go 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 constitute- are for the decision of the authority and a civil suit does not. lie if the orders of the authorities are declared to be final or there is an express prohibit 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 jurisdiction 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 jurisdiction 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 jurisdiction of the Civil Court. Rule No. 1 law down that where the statute gives a finality to the , of the special tribunal, the Civil Courts' jurisdiction must be held to be , if there is adequate remedy to 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. 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 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

(b) 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 bring 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 developed 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 since1947.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. thereforee. 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 un tenable and is not borne out even by their allegations. It is obvious that under the Administration of Evacuee Property Act, an evacuee is defined as a Person who leaves the dominion of India. Inter alias 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 hasn't 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, thereforee, 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, : [1967]3SCR736 (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 wag 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 a Sections 4, 28 and 46 of the Act. The first contention of I the counsel for the petitioner, thereforee fails and is rejected.

9. The second contention of the learned counsel has still less merit. The property can be acquired by 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 pres- 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 getting, aside sales held in Public auctions ordered by the Civil Courts. Section 27 of this Act confers a finality on the orders passed bit any officer or authority under the Art 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 , 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 thereforee, make it clear that the sale conducted by an authority under the said Act is final and orders passed in its expect 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 gale are without jurisdiction and nothing has been shown to bring it within the exceptions laid down by the Supreme Court in Dhulabhai's case, : [1968]3SCR662 .

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 apply 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 11941 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. 1 and the property had been sold for Rs. 12,200/- 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 Property published or not property conducted. The reasoning of the Supreme Court in Jafran Begum's case, : [1967]3SCR736 (,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 thereforee, no force in the revision. The same is dismissed with costs.

11. Revision dismissed.


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