1. This regular second appeal under Section 100 of the Code of Civil Procedure has been filed by the Union of India and the Custodian of Evacuee's property defendants and is directed against the appellate judgment and decree of Shri R.N. Aggarwal, Additional District Judge, Delhi dated 27th April, 1966 by which the learned Judge allowed the appeal and reversing the decree of the trial Court dated 6th September, 1963 finally decreed the suit of the plaintiffs for a declaration that the notification notifying the property in dispute as the evacuee property was illegal and without jurisdiction.
2. The facts giving rise to this appeal are that on 8th of May, 1929 Abdul Caffar and Allahawala purchased the property in dispute by a sale-deed (Exhibit P-2) and after the purchased, they, on 29th September, 1931, divided the property between them by a released-deed and sale-deed, with the result that Abdul Gaffar became the owner of property No. 37-A (corresponding to new No. 54) while Allahawala became the owner of property No.37 (present Nos. 56 to 61) Mst. Fatma (also known as Fahiman) who was sister of Abdul Gaffar and wife of Allahawala became the sole owner of 37 (corresponding to 55 new) vide Exhibit P-1. It may be mentioned that the property of Allhawala bearing No.37 originally, now bears Nos. 55 to 61 out of which No.55 belongs to Mst. Fatma. It may also be noted that the property owned by allahawala has been released to him by the Custodian while the property No. 55 of Farma is in dispute in these proceedings.
3. Fatma Bi died at Delhi on 23rd October, 1954 and Abdul Gaffar died at Delhi on the 30th December, 1958. The legal representatives of Mst. Fatma instituted the suit giving rise to this appeal being aggrieved by notification of the property in dispute (No. 55) on 23rd February, 1951 as evacuee's property. The other material facts alleged in the plaint are that the other properties of Allahawala and his wife (Nos. 55 to 61) mentioned above were notified to be evacuee properties but the same were restored to Allahawala except No.55. however, in of the property in dispute, Allahawala earlier raised an objection on 8th July, 1949 and then he understood to produce Fatma Bi to support her affidavit dated 28th October, 1949 which was rejected. Abdul Gaffar, as legal representative of Fatma Bi, then filed an application under Section 16 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act) for restoration of the property. It was rejected on 28th February, 1958 merely on the ground that it was barred by time and a review of the same applied for on 2nd of September, 1959 was dismissed on 4th February, 1960.
4. The suit was contested by the Union of India and the Custodian of Evacuees property on the ground that the property vested in the Custodian under, Section 7 of the East Punjab Evacuee Property Act, 1947 and the property in dispute had automatically vested in the Custodian and so had been rightly notified as such on 23rd February, 1951. It is admitted case of the parties that no inquiry under Section 7 of the Act Xxxi of 1950 had been made before the issue of the notification and there were no proceedings to declare Fatma Bi as an evacuee or to vest her property in the Custodian. Reliance has wholly been placed by the Custodian on the statutory provision of automatic vesting. On the pleadings of the parties, the following issues were framed:-
'1. Whether the plaintiff are the owners of the suit property as alleged in the plaint?
2. Whether the notification No. 27857 dated 27th February 1951 is illegal, ultra virus and in operative as alleged? OPP.
3. Whether the suit in the present form does not lie? OPD.
4. Whether the Civil Court has no jurisdiction to try this suit OPP.
5. Whether notice under Section 80, Civil Procedure Code was served upon the defendant OPP.'
5. The trial Court answered issue No. 1 in favor of the plaintiffs and issue No. 2 against them. Issues Nos. 3 and 5 were decided in favor of the plaintiffs while issue no. 4 was decided against them and the Court of first instance held that the civil Court had no jurisdiction to entertain the suit so dismissed it, leaying the parties to bear their respective costs.
6. On appeal, the Additional District Judge reversed the findings of the Court below on issues Nos. 2 and 4 and held that the impugned notification was illegal and without jurisdiction and that the civil Court had jurisdiction and that the civil Court had jurisdiction to entertain the suit and so he set aside the decree of the Court below and passed a decree in favor of the plaintiffs.
7. The learned counsel for the appellants has in this second appeal contended that the findings of the lower appellate Court on issue No. 2 and incidentally on issue No. 4 are contrary to law and so must be set aside and the decree of the trial Court be restored.
8. I have heard the learned counsel for the parties. The relevant provisions of the law may, for ready reference, be reproduced below. Section 2(b) of the East Punjab Evacuees (Administration of Property) Act. Xliv of 1947 defines 'evacuee' as follows:-
'Evacuee means a person ordinarily resident in or owning property or carrying on business within the territories comprised in the Provinces of the East Punjab who on account of civil disturbances or the partition of the country :
(i) leaves, or has since the first day of March, 1947, left the said territories for a place outside India or
(ii) cannot personally occupy or supervise his property or business or watch his interests or enforce his rights.'
Section 2(c) defines evacuee property as under :- 'Evacuee property includes all property in which an evacuee has any right or interest but not include any movable property in his immediate physical possession.'
Section 4 of the said Act provides that all evacuees' property situated within the province shall vest in the Custodian for the purposes of this Act and shall continue to be so vested until it is returned to the owner in accordance with the provisions of Section 12. Section 6 deals with the powers of the Custodian to take possession of evacuee property and Section 7 deals with enquiries into the claim as to evacuee property :
9. Act Xliv of 1947 was repealed by the Administration of Evacuee Property Ordinance No. Xii of 1949. Section 5 of this Ordinance provided that subject to the provisions of this Ordinance all evacuee properties situate in a province shall vest in the Custodian for that province. Sun-section (2) of Section 5 provided that 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 corresponding law in force in that province immediately before such commencement, the evacuee property shall, on the commencment of this Ordinance, be deemed to have vested in the Custodian appointed for the province under this Ordinance. Section 7 gives the power to the Custodian to take possession of an evacuee property vested in him and Section 8 provides for enquiry into claims to evacuee property by interersted persons. The next legislation on the subject is Administration of Evacuee property Ordinance Xxvii of 1949. Section 7 (1) of this Ordinance provides:-
'Where the Custodian is of opinion that any property is evacuee property within the meanings of this Ordinance, he may, after causing notices thereof to be given in such manner as may be prescribed to the persons interested and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property.'
Sub-section (3) of Section 7 provides that the Custodian shall, from time to time, notify either by publication in the official Gazette or in such other manner as may be prescribed all properties declared by him to be evacuee properties under sub-section (1). Section 8 provided for vesting of evacuee property in the Custodian. Ordinance Xxvii of 1949 was replaced by Act Xxxi of 1950. Section 7(1) and 7(3) of the Act are in similar terms as Section 7 of the Ordinance reproduced above. Section 8 of Act Xxxi of 1950 reads as follows:-
'Vesting evacuee property in the Custodian:- (1) Any property declared to be evacuee property under Sectioin 7 shall be deemed to have vested in the Custodian for the State-
(a) in the case of the property of an evacuee as defined in sub-clause (I) of clause (d) of Section 2 from the date on which he leaves or left any place in a state for any place outside the territories now forming part of India;
(b) in the case of property of an evacuee as defined in sub-clause (ii) of clause (d) of Section 2 from the 15th day of August, 1947; and
(c) in the case of any other property; from the date of the notice given under sub-section (1) of Section 1 in respect thereof.
(2) Where immediately before the commencment of this Act any property in State had vested as evacuee property in any person exercising the powers of Custodian under any law repealed hereby the property shall, on the commencement of this Act, be deemed to be evacuee property declared as such within the meanings of this Act and shall be deemed to have vested in the Custodian appointed or deemed to have been appointed for the State under this Act and shall continue to do vest;
Act 1 of 1960 added Section 2 (A) in Section 8 and it reads as under:-
'(2A) Without prejudice to the generality of the provisions contained in sub-section (2) all property which under any law repeated 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 the 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.'
The notification in dispute dated 23rd February, 1951 is obviously, as held by the lower appellate Court, without jurisdiction and is not sustainable. It has been issued under Section 7 of Act Xxxi of 1950, but without any notice, without any inquiry or without any determination and as such it is illegal and ineffective in view of Ebrahim Aboobaker v. Telk Chand : 4SCR691 and Dr.Zafar Ali Shah v. The Assistant Custodian of Evacuee Property : 1SCR749 .
10. The notification is, however, sought to be supported under sub-section (2) of Section 8 of the Act as pertaining to the property having already vested in the Custodian under Section 7 of the East Punjab Evacuee Property Act of 1947. The relevant provision of the said statute, a matter of law, vests all evacuee properties in the Custodian without doubt. But on the record of the case, I do not find any determination by the Custodian either before or after the notification about the jurisdictional facts relating to Fatma Bi having become an evacuee. The definition of evacuee given in the East Punjab Act and recapitulated in the 1950 Act defines an evacuee as a person who, on account of disturbances, leaves or has, after 1st March, 1947, left any place in India. Had it been established as a fact that Fatma Bi had left India or had settled in Pakistan then she could rightly be treated as an evacuee and the properties owned or held by her would be deemed to be evacuee properties under the law. Had the Custodian ever recorded a finding that she was or had become an evacuee, the jurisdiction of the Civil court of re-appraise the evidence or determine the correctness or otherwise of the finding of the Custodian, whether in fact or law, would be barred.
But in this case, there is absolutely no finding by him and the jurisdictional facts constituting her to be evacuee, have not been shown to have been established at any time to the satisfaction of the Custodian. Unfortunately, the Custodian did not give any notice in its respect at any time before the notification in dispute. On the record of the Civil Suit, an attempt has been made by the Custodian to show that a notice had been given in respect of property No.37, but 37 was a number previously assigned to a group of properties and the property in dispute in this case is No.55 (new) and Beli Ram was never a tenant or an attorney in respect of the property in dispute. The Field Inspector of the Custodian giving evidence in the suit had stated that Fatma Bi lived, died and was buried, in Delhi and that no notice was given to her and no rent was realised in respect of her property by the Custodian. Fatma Bi, thereforee, had not had any notice of the intention of the Custodian to assume possession and control of the property in dispute, nor of his intention to treat it as an evacuee property. * * * So neither on the record of the Custodian, has it been established that she had ever migrated to Pakistan. Under these circumstances, she, could legally not be treated as an evacuee by mere application of the definition of an evacuee in the absence of a determination by the Custodian in this behalf in exercise of his jurisdiction. In view of this circumstances, there could not be any automatic vesting of her property in the Custodian.
11. The learned Counsel for the State has urged that there was a general notification assuming possession and control of all evacuees' properties, but as held by A.N.Grover, J., (as his Lordship, now a Judge of the Supreme Court then was) in Ram Gopal v. Banta Singh, , such a notification which does not contain any particulars of the property of or the evacuees is of no effect in vesting any particular property in the Custodian.
12. The learned counsel next urged that the legal representatives of Fatma Bi applied to the Central Government under Section 16 of the Act for restoration of the property and this application would necessarily imply that she had acquiesced in her treatment is an evacuee by the Custodian as otherwise the application could not be made for restoration of what was not an evacuee property. I find that there is a fallacy in this argument since under R.15-B of E.B. Rules 1950 a non-evacuee can also apply for restoration of a property which is claimed to have wrongly notified as evacuee property. There cannot be any estoppel or acquiescence against the provisions of law and if the property has legally not vested in the Custodian, as evacuee property, the acquiescence on the part of the party cannot remove the legal infirmity in exercise of jurisdiction of Custodian.
13. Lastly, the learned Counsel for the appellant has strongly urged that the jurisdiction of the Civil Court to investigate as to whether the property in dispute is evacuee's property or not is expressly barred by Section 46 of the Evacuee Property Act and he has relied upon two authorities of the Supreme Court reported as Ram Gopal Reddy v. The Additional Custodian Evacuee Property, : 3SCR214 and Custoidan, Evacuee Property v. Jafran Begum, : 3SCR736 . Most respectfully, the said authorities are binding on this Court and even otherwise on a plain reading of Section 46 of the Act, the Jurisdiction of a Civil Court to entertain or adjudicate upon the question, whether any property is or is not evacuee property or with regard to the legality of the action of the Custodian under the Act, is expressly barred. As mentioned by me above, had there been any finding or any order by the Custodian holding the property to be evacuee property, the Civil Court would obviously have no jurisdiction to investigate the matter afresh or arrive at a different finding however erroneous or illegal the finding of the Custodian might have been. But in this case, I find on the record that there is absolutely no finding by the Custodian that Fatma Bi was an evacuee.
The learned Counsel for the respondent brings this case within the first exception laid down by Hidayatullah, C.J., speaking for a Bench of five Judges of the Supreme Court in Dulabhai v. State of Madhya Pradesh, : 3SCR662 , where his Lordship laid down that the jurisdiction of the Civil Court is not ousted if the provisions of the particular statute have not been complied with by the statutory tribunal or if it has not acted in conformity with the fundamental principles of judicial procedure. The said authority was followed by the Supreme Court in State of West Bengal v. Indian Iron and Steel Co. Ltd., : 1SCR275 , where Hegde, J., speaking for the Court, inter alias observed that the Civil Court always retains jurisdictions to determine if quasi judicial tribunal has complied with the provisions of law under which it has acted. thereforee, I am inclined to accept the submission of the counsel for the respondent and hold that where the Custodian of evacuee property does not even purport to act in conformity with the statutory provisions to declare a person as an evacuee, the jurisdiction of the Civil Court is not ousted. Consequently, the decision of the lower Appellate Court is correct.
14. As a result, the appeal id dismissed, but in view of the circumstances of the case, the parties will bear their respective costs.
15. Appeal dismissed.