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Mirchumal Samandas and ors. Vs. the Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 396 of 1966
Judge
Reported inAIR1974Guj174
ActsDisplaced Persons (Compensation and Rehabilitation) Rules, 1955 - Rule 42; Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 14 and 36
AppellantMirchumal Samandas and ors.
RespondentThe Union of India and ors.
Appellant Advocate S.B. Majmudar, Adv.
Respondent Advocate K.M. Chhaya, Asst. Govt. Pleader and; S.B. Vakil, Adv.
Cases ReferredAnisminic Ltd. v. The Foreign Compensation Commission
Excerpt:
property - interpretation - rule 42 of displaced persons (compensation and rehabilitation) rules, 1955 - plaintiff displaced in possession of tenement without verified claim - dispossession and sale of tenement challenged - authorities bound to rehabilitate plaintiff before dispossessing him - right of authorities to dispossess such person coupled with duty to rehabilitate them - dispossession without rehabilitating plaintiff untenable. - - verified claim' means any claim registered under the displaced persons (claims) act, 1950 (xliv of 1950) in respect of which a final order has been passed under that act or under the displaced persons (claims) supplementary act, 1954 (12 of 1954), and includes any claim registered on or before the 31st day of may, 1953. under the east punjab.....s.h. sheth, j.1. the plaintiff is a displaced person from west pakistan. he does not hold a verified claim. he is. therefore, a non-claimant. he has been residing in a tenement situate in varashiya colony at baroda which is a government built colony. the tenement in his occupation was allotted to him. the central government some time back took decision to dispose of all the tenements in varashiya colony. the tenement in the occupation of the plaintiff was therefore also to be. disposed of. the plaintiff applied to the appropriate authority to transfer to him the tenement in his occupation. he relied upon rule 42 of the displaced persons (compensation habilitation) rules, 1955 in support of his application. the appropriate officer rejected his application and -put to sale his tenement. the.....
Judgment:

S.H. Sheth, J.

1. The plaintiff is a displaced person from West Pakistan. He does not hold a verified claim. He is. therefore, a non-claimant. He has been residing in a tenement situate in Varashiya Colony at Baroda which is a Government built colony. The tenement in his occupation was allotted to him. The Central Government some time back took decision to dispose of all the tenements in Varashiya Colony. The tenement in the occupation of the plaintiff was therefore also to be. disposed of. The plaintiff applied to the appropriate authority to transfer to him the tenement in his occupation. He relied upon Rule 42 of the Displaced Persons (Compensation habilitation) Rules, 1955 in support of his application. The appropriate officer rejected his application and -put to sale his tenement. The defendant No. 5 purchased it at the auction sale. The plaintiff, therefore filed, the present suit for a declaration that the auction sale of the tenement in his possession was ultra vires the powers of the officer of the Central Government and that, therefore, the said auction had not conferred any title upon the defendant No. 5. He joined to the suit as defendants the Union of India, the Chief Settlement Commissioner, the Regional Settlement Commissioner, State of Gujarat and auction purchaser Bhagwandas Kandomal.

2. It was inter alia contended in defence by the defendants that the suit was not maintainable because the plaintiff had no right enforceable at law.

3. The learned trial Judge raised preliminary issues relating to the maintainability of the suit and the jurisdiction of the Civil Court to entertain and try such a suit. He held that the plaintiff had no right enforceable at law and, therefore, his suit could not be maintained. He also held that the jurisdiction of the Civil Court was barred by Section 36 of the Displaced Persons (Compensation and Rehabilitation) Act. 1954. In view of his findings on these two preliminary issues he dismissed the suit. The plaintiff appealed to the District Court against the decree passed by the learned trial Judge. The learned Extra Assistant Judge at Baroda who heard the appeal concur-red in the findings recorded by the learned trial Judge and dismissed the appeal.

4. It is that appellate decree which is called in question by the plaintiff in this Second Appeal.

5. Mr. Majmudar, appearing for the plaintiff, has raised two contentions before us. His first contention is that Rule 42 of the said Rules creates in favour of the plaintiff a right enforceable at law. His second contention is that the Civil Court has jurisdiction to entertain the suit because the act of Putting to auction sale the tenement in the occupation of the plaintiff is ultra vires the powers of the officer who did it.

6. This appeal in the first instance came up for hearing before my learned brother before whom an unreported decision of Mr. Justice D. P. Desai in Second Appeal No. 42 of 1965 decided on 21-12-1970 (Guj) was cited. He has taken the view that Section 36 bars the jurisdiction of the Civil Court and Rule 42 neither creates in favour of a displaced person any right enforceable at law nor does it create any duty in favour of the appropriate officer which can be enforced. My learned brother Aid with the view taken by Mr. justice D. P.Desai in the aforesaid decision and referred this matter to the Division Bench.

7. It is under these circumstances that this appeal has been placed before us.

8. The first contention raised by Mr. Majmudar requires the examination of the scheme of the said Act and the said Rules. We propose to briefly refer to the relevant sections and the relevant Rules. The preamble to the said Act shows that it has been enacted for achieving two objects-payment of compensation and rehabilitation grants to, displaced persons. Bearing these paramount objects of the Act in mind we propose to examine some of the relevant provisions of the said Act. Section 2(a) defines 'compensation pool' in the following terms.

'`compensation pool' means the compensation pool constituted under Section 14, '

It is not necessary to examine the definition of the expression 'displaced person' given in Section 2(b) because there is no dispute before us that the plaintiff is a displaced person within the meaning of that expression given in Section 2(b); Section 2(c) defines 'evacuee property' in the following terms.

' 'evacuee property' means any -property which has been declared or is deemed to have been declared as evacuee property under the Administration of Evacuee Property Act, (XXXI of 1950).' Section 2(d) defines 'Public dues' with which we are not concerned in this appeal. The expression 'verified claim' is defined by clause (e) of Section 2 in the following terms.

' 'verified claim' means any claim registered under the Displaced Persons (Claims) Act, 1950 (XLIV of 1950) in respect of which a final order has been passed under that Act or under the Displaced Persons (Claims) Supplementary Act, 1954 (12 of 1954), and includes any claim registered on or before the 31st day of May, 1953. under the East Punjab Refugees (Registration of Land Claims) Act, 1948 (East Punjab Act, XII of 1948) or under the Patiala Refugees (Registration of Land) (Claims) Ordinance 2004 (Order 10 of 2004 BK) and verified by any authority appointed for the purpose b y the Government of Punjab, the Government of Patiala and East Punjab States Union, as the case may be, which has not been satisfied wholly or partially by the allotment of any evacuee land under the relevant notification specified in Section 10 of this Act, but does not include ...........'

It is not necessary to reproduce for the purpose of this judgment items (i) and (ii) which are excepted from the definition of 'verified claim'. Clause (f) of Section 2 defines the expression 'prescribed' so as to mean prescribed by rules made under the said Act. Clause (h) of Section 2 is a residuary clause which provides that

'all other words -and expressions used but not defined in this Act and defined in the Administration of Evacuee Property Act, 1950 (XXXI of 1950) have the meanings respectively assigned to them in that Act.'

8-A. Having looked at the definitions of some of the expressions which are material for the purposes of the present case we now turn to Section 14 which deals with the constitution of compensation pool the definition of which has been given in Section 2(a). Section 14 lays down that 'For the purpose of payment of compensation and rehabilitation grants to displaced -persons', a compensation pool shall be constituted and that it shall consist of '(a) all evacuee property acquired under Section 12, including the sale proceeds of any such property and all profits and income accruing from such property; (b) such cash balances lying with the Custodian as may, by order of the Central Government, be transferred to the compensation pool; (c) such contributions, in any form whatsoever, as may be made to the compensation pool by the Central Government or any State Government' and '(d) such other assets as may be prescribed'. Sub-section (2) of Section 14 vests the compensation pool in the Central Government free from all encumbrances and directs it to utilize it in accordance with the provisions of the said Act and the Rules made thereunder. A look at Section 14 makes it clear beyond doubt that the compensation pool has been constituted with the express object of paving compensation and rehabilitation grants to displaced persons. There are four sources specified in Section 14 which contribute funds and properties to the compensation pool. The evacuee properties acquired under Section 12, including their sale proceeds constitute the first source of contribution to the compensation Pool. Acquisition of evacuee properties is dealt with by Section 12 of the said Act with which we are not concerned in this case. Cash balances which may be lying with the Custodian is the second source which contributes to the compensation Pool. Contributions which the Central Government or any State Government may make in any form whatsoever to the compensation pool is its third source. The last source consists of assets which may be Prescribed as constituting a part of compensation pool. The expression 'prescribed' means prescribed by rules made under the said Act (vide Section 2(f)). The fourth source of contribution to the compensation pool therefore takes us to Rule 36 of the said Rules which provides as under :

'The following classes of Government built properties shall ordinarily be allotable, namely;

(a) Every Government built residential Property valued at rupees fifteen thousand or less and occupied by a displaced person on a rental basis:

Provided that the Central Government may in any particular case direct that any such property shall not be allotable;

(b) Every Government built shop valued at rupees fifteen thousand or less.

Explanation. No such property shall be allotable, if it is in the occupation of two or more Persons, whether any or all of them, be displaced persons or not.'

The expression 'Government built property' has been defined by Rule 2 (d) in the following terms:

'Government built property' means any pro perty forming part of the compensation pool, which has been built in connection with the rehabilitation of displaced persons by the Central Government or a State Government, and includes any such property built by a local authority in pursuance of a scheme for the rehabilitation of displaced persons sanctioned by the Central Government or a State Government.'

There is no dispute before us that Varashiya Colony at Baroda and the plaintiff's tenement therein are Government built properties within the meaning of the aforesaid expression given in Rule 2 (d) of the said Rules. When Section 14(d) of the said Act is read with R. 36 and Rule 2 (d) of the said Rules it is clear that, subject to, the exception made in Rule 36 the Government built properties form a part of the compensation pool. Rule 35 of the said Rules enables the Central Government, for the purpose of payment of compensation by transfer of Government built Property, to classify colonies in which Government built Properties are situate as 'A', 'B' or 'C' colonies.

9. Now, Rule 36 makes two divisions of Government built properties. One division consists of such properties which are allotable and another division consists of properties which are not allotable. In case of Government built properties which are not allotable, Rule 37 provides that 'every Government built Pro Rule 36 may, unless the Central Government otherwise directs, be sold'. It is clear therefore, that having made the Government built properties a part of compensation pool the procedure which has been prescribed in regard to them provides for their allotment and for their sale. Chapter XIV of the said Rules lays down the procedure for sale of properties in compensation pool. We are not concerned in this case with the Rules in Chapter XIV. Pausing here for a moment we find, on an analysis of the aforesaid sections and Rules, that the compensation pool to which contributions are made from four sources specified in Section 14 has been constituted to fulfill two objects-payment of compensation and rehabilitation grants with the ultimate object of rehabilitating in India displaced persons who have migrated here from West Pakistan. Payment of compensation and rehabilitation grants does not necessarily mean cash payment, as that expression may otherwise appear to indicate.

10. In Lachhman Dass v. Municipal Committee, Jalalabad, AIR 1969 SC 1126 the Supreme Court after having considered the Provisions of the said Act has observed that elaborate rules have been framed under the said Act for the Purpose of paying compensation placed persons out of the compensation pool and that one of the ways of paying compensation is transfer of property. It is therefore clear that payment of compensation and rehabilitation grants from the compensation pool may take the form of transfer of immovable property to a displaced person. Whether compensation and rehabilitation grants are paid in cash or in kind, they are the steps which are necessary to be taken under the said Act to rehabilitate displaced persons who broadly speaking, are classified in two categories. One category consists of claimants and another category consists of non-claimants. Those who have verified claims for compensation are claimants. Those who left their properties in West Pakistan, migrated to India and made claims for compensation and whose claims have been verified are the persons who fall under the category of claimants. The plaintiff is a non-claimant. In other words, he is not a holder of a verified claim within the meaning of that expression given in Section 2(e) of the said Act. Elaborate procedure has been prescribed in regard to claims, Section 4 provides for an application to be made for compensation. Section 5provides for determination of public dues by settlement officer. Section 7 provides for determination of the amount of compensation. Section 8 deals with the form and manner of payment of compensation. Section 9 deals with payment of compensation in cases of disputes. Section 10 lays down special Procedure for payment of compensation in certain cases specified therein. These are the sections which lay down the procedure in relation to claims. Section 11 enables the Central Government to pay rehabilitation grant or any other grants out of the compensation pool to a displaced person under such conditions and to such extent and in such form and manner as may be prescribed. We have already referred to Section 14 which provides for the constitution of compensation pool and specified its sources. Section 20 is an important section which confers upon the managing officer or managing corporation power to transfer any property out of the compensation pool. It Provides as under:-

'(1) Subject to any rules that may be made under this Act, the managing officer or managing corporation may transfer any Property out of the compensation pool-

(a) by sale of such property to a displaced person or any association of displaced persons. whether incorporated or not or to any other person whether the property is sold by public auction or otherwise;

(b) by lease of any such property to a displaced person or any association of displaced persons, whether incorporated or not, or to any person;

(c) by allotment of any such property to a displaced person or an association of displaced persons whether incorporated or not. or to any other person, on such valuation as the Settlement Commissioner may determine;

(d) in the case of a share of an evacuee in a company, by transfer of such share to a displaced person or any association of displaced persons whether incorparated or not, or to any other person.'........................

Sub-sections (I-A), (2) and (3) are not material for the purposes of the Present case. So far as immovable properties constituting a part of compensation pool are concerned, three modes have been prescribed by Section 20 for their transfer. Sale, grant of lease and allotment are the three methods prescribed by Section 20 in that behalf. Power under Section 20 is to be exercised by the managing officer or managing corporation subject to any Rules which may be made under the said Act. Clause (c) of sub-section (1) of Section 20 uses the expression 'allotment' which has not been defined by the said Act. Section 2(h) of the said Act incorporates in the said Act definitions from the Administration of Evecuee Property Act, 1950 of those expressions which have not been defined by the said Act, 'allotment' has been defined by Section 2(a) of the Administration of Evacuee Property Act. 1950 in the following terms:

' 'allotment' means the grant by a Person duly authorised in this behalf of a right of use or occupation of any immovable evacuee property to any other person, but does not include a grant by way of lease;'

Allotment, therefore, means the right to or to occupy an immovable evacuee property without acquiring the status of a lessee in respect thereof. Section 40 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 confers upon the Central Government power to make Rules under the said Act and in particular for the purposes specified in sub-section (2).

11. We now turn to the said Rules. The said Rules are divided in several Chapters. Chapter I contains definitions. We have already reproduced the definition of the expression 'Government built -property' given in Rule 2 (d) with which we are concerned in this case. Rule 2 (c) which defines the express-ion 'compensation' may also be noted. ''Compensation' includes rehabilitation grant where such rehabilitation grant is payable along with the compensation'. Chapter 11 lays down the procedure for submission of compensation applications and determination of Public dues. Chapter III lays down the procedure which is to, be followed by the Settlement Commissioner an receipt of the duplicate copy of compensation application. Chapter IV deals with determination of compensation. Rule 17 which is in this Chapter lays down the manner of payment of com pensation. It provides that 'compensation may be paid in one or more instalments' and that 'no Person shall be paid compensation in cash exceeding eight thousand rupees'. Proviso to sub-rule (2) of Rule 17 is not necessary to be Produced. So also it is not necessary to reproduce sub-rules (3) and(4) of Rule 17. Sub-rule (5) of Rule 17 provides that 'where any property is transferred to any person under this rule, deed of conveyance shall be executed in the form specified in Appendix XXV-A.' Payment of compensation, sub rule (5) indicates, does not necessarily take the form of cash -payment. It may take the form of transfer of a property which is a part of the Property in the compensation pool. Some of the Rules in Chapter V require detailed consideration. We shall refer to them a little later. Chapter V-A deals with allotment of evacuee agricultural lands situated in urban areas. Chapter VI deals with Payment of compensation by transfer of Government built property. There are some Rules in this Chapter which require a detailed examination. in particular Rules 41 and 42. We shall refer to them a little later. Chapter VII deals with payment of compensation for rural houses and shops left in West Pakistan. Chapter VIII deals with compensation in respect of verified claims for agricultural lands situated in rural areas. Similarly, Chapter IX deals with allotment and sale of certain groves and gardens. Chapter X deals with payment of compensation under Section 10 of the said Act Chapter X-A deals with -adjustment by association of claims and making of transfer deeds. Chapter XI deals with payment of compensation, to minors, persons of unsound mind and other persons suffering from physical or mental disability. Chapter XII deals with payment of compensation to persons residing in Homes and Infirmaries. Chapter XIII lays down procedure for settlement of disputes regarding payment of compensation. We have already referred to Chapter XIV which lays down procedure for sale of property in the compensation pool. Chapter XV deals with different classes of evacuee property which may be acquired. Chapter XVI deals with payment of rehabilitation grants. Chapters XVII to XX which deal with incidental matters need not be referred to. These Chapters contain a large number of Rules which deal with the cases of claimants. But they also contain Rules which deal with the cases of non-claimants. In particular, reference should be made, so far as the non-claimants are concerned, to Rules 25, 41 and 95.

12. Having referred to the scheme of the Rules we now proceed to examine how the claimants and non-claimants have been dealt with. Rules 22. 23, 24, 25 and 26 deal with cases of claimants and non-claimants in relation to acquired properties. Rule 22 specifies three classes of acquired evacuee properties which may be allotted. Residential property, as described in clause (a) of Rule 22, in the occupation of a displaced person, having the specified value, any shop in the occupation of a displaced person having the specified value and any industrial concern in the occupation o f a displaced person, having the specified value are the three classes of acquired evacuee properties which may be allotted. Whereas Rule 22 specifies classes of acquired evacuee properties which may be allotted. Rule 23 provides that all acquired evacuee properties which are not allotable under Rule 22 shall -ordinarily be sold. Therefore. three classes of acquired evacuee properties which are allotable are not to be sold. Rule 24 deals with valuation of acquired evacuee property which is an allotable Property. If it is to be transferred under Rule 24, valuation thereof must be fixed. That is the purpose for which Rule 24 has been made. Rule 25 provides for transfer of acquired evacuee property which is an allotable property to a person in occupation thereof who holds a verified claim. In other words Rule 25 deals with transfer of acquired evacuee property to a claimant if it is allotable. Let us look at the language of the principal part of sub-rule (1) of Rule 25. It is in the following terms :

'Where an applicant for payment of compensation is in sole occupation of an acquired evacuee property which is an allotable property, such property may be transferred to him in lieu of t he compensation payable to him under the Act.'

If all the conditions laid down in Rule 25 are satisfied by a claimant, then an acquired evacuee property has got to be transferred to him. That is the force of the expression 'shall'. This transfer is in lieu of the compensation payable to him under the said Act. In other words, a claimant holds a verified claim and therefore has a right to recover the specified amount of his claim. It is for the purpose of satisfying that claim of his that an acquired evacuee Property which is allotable and which is in his sole occupation is to be transferred to him. Rule 26 deals with the case of a non-claimant in a similar set of circumstances. It provides that for of the property to him'. The language which has been used in similar set of circumstances . It provides that

'Where an acquired evacuee property which is an allotable property is in the sole occupation of a displaced person who does not hold a verified claim, the property may be transferred to......' We are not directly concerned with the construction of Rules 25 and 26. Arguments have been advanced on them in order to enable us to place an appropriate construction upon Rule 42. Chapter VI contains Rules 35 to 43. Chapter VI contains Rules 35 to 43. We have already referred to Rules 35,36 and 37. This Chapter deals with payment of compensation by transfer of Government built properties both to claimants as well as to non-claimants. Rule 40 deals with adjustment of compensation against purchase price of Government built poperty and plots. The principal part of sub-rule (1) of Rule 41 provides as under:

'A displaced person having a verified claim who is in occupation of a Government built property which is an allotable property shall be paid compensation by the transfer of the property to him.'.... .......... ..........

If a claimant is in occupation of a Government built property his claim is to be satisfied by transferring to him an allotable Government built property. In regard to this transfer the expression which the rule-making authority has used is ' shall be paid compensation by the transfer of the property to him'. The language which has been used in similar set of circumstances for non-claimants in Rule 42 is different. The material part of Rule 42 reads as under:

'Where a displaced person who does not hold a verified claim is in occupation of a Government built property which is an allotable property, the property may be transferred to him if he makes an initial payment of ........'

The expression used in regard to a non-claimant is 'may be transferred to him'. It lays down conditions which must be satisfied before a transfer is effected in his favour. Whereas Mr. Majmudar has tried to argue before us that the use of the expression 'shall'' in Rule 41 and the use of the expression 'may' in Rule 42 do not make any difference whatsoever in the context in which they have been used, Mr. Vakil has tried to argue that the expression 'may' used in Rule 42 confers upon the appropriate officer an unfettered discretion to transfer or not to transfer an allotable property to a non-claimant even if all other conditions are satisfied. According to him, he may as well, instead of transferring to a non-claimant, sell it. According to him, the use of the expression 'shall' in Rule 41 leaves no such discretion to the appropriate officer when he is dealing with allotable Government built properties so far as their transfers to the claimants are concerned. Very strenuously and vehemently he has asked us to bear this distinction in mind and to contra distiguish the expression 'shall' used in Rule 42. According to him, if the rule making authority has used two different expressions in two different Rules dealing with the same subject, it must have meant some distinction between them. We propose shortly to analyse the effect of those two expressions used in those two Rules. Before we do so we may briefly refer to Rule 94 which deals with the question of paying rehabilitation grants to claimants. Rule 95 which deals with the question of paying rehabilitation grants to claimants. Rule 95 deals with payment of rehabilitation grants to non-claimants. A reference to Rules 25, 41 and 94 on one hand and a reference to Rules 26,42 and 95 on the other hand clearly bring out that the rule-making authority is equally concerned with rehabilitating both the claimants as well as the non-claimants. A reference to Rules 25, 41 and 94 on one hand and a reference to Rules 26, 42 and 95 on the other hand clearly bring out that the rule-making authority is equally concerned with rehabilitating both the claimants as well as the non-claimants. There may be slight variations here and there so far as the details are concerned, but it cannot be gainsaid that the solicitude and concern which the rule-making authority has shown for rehabilitating those who have migrated to India after leaving their properties in West Pakistan is equal in measure to the solicitude and concern which it has shown for those who have migrated to India without leaving any property whatsoever in West Pakistan. Bearing this legislative object in mind we proceed further. One analysis of the scheme of the Act and the Rules so far as it is germane to the contention raised before us, clearly establishes certain things. Firstly, Section 14(d) read with Rule 36 and Rule 2 (d) makes Government built properties a part of compensation pool. Properties constituting compensation pool have to be utilized for the purpose of payment of compensation and rehabilitation grants with the ultimate object of rehabilitating the displaced persons who have migrated from West Pakistan to India. Subject to the Rules which have been made in that behalf immovable pro- ties forming a -part of compensation pool may be sold to displaced -persons, may be leased out to them or may be allotted to them. In any one of the three forms economic assistance is to be rendered to them so as to rehabilitate them in this country. Then follow further details in Rules 25, 26, 41 and 42. Whereas Rules 25 and 26 deal with transfer of acquired evacuee properties, Rules 41 and 42 deal with transfer of Government built properties. We are not directly concerned in this case with Rules 25 and 26. The scheme of Rule 26 is similar to the one which is contained in Rule 42. It is for that reason that Rule 26 has been brought in. We are also not directly concerned with R.41. It has been brought in order to persuade us to contradistinguish Rule 42 from it. Mr. Majmudar has argued before us that the expression 11 may' which Rule 42 uses does not confer upon the appropriate officer any unfettered discretion to transfer or not to transfer a Government built property to a non-claimant. On analysis of Rule 42 it is clear that it applies to that Government built property which is in the occupation of a non-claimant and which is an alterable property. The question which we are called upon to answer is this. Does an appropriate officer have discretion to transfer or not to transfer a Government built property to a non-claimant under Rule 42 even if all the conditions and factors specified therein are satisfied? There is no dispute before us that the plaintiff is a non-claimant and he is in occupation of his tenement which is a Government built property. It is also not in dispute before us that it is an allotable property. Therefore, the three conditions required to be satisfied by the principal part of Rule 42 have been satisfied. There are certain other conditions which a non-claimant who wants a Government built property in his occupation to be transferred to him has to satisfy. These conditions are purely subjective in the sense that a non-claimant who wants such a transfer must have volition and ability to pay for the property the transfer of which he seeks to himself. He must have the volition and the ability to pay for that property in accordance with the terms specified in Rule 42. If all the conditions laid down in Rule 42 are satisfied and yet if discretion is left to the appropriate officer to transfer or not to transfer an allotable Government built property to him, it, in our opinion, will not be an exercise of discretion. It will introduce discrimination. Even if all the conditions laid down by Rule 42 are satisfied and yet he has such a discretion nothing will prevent him from transferring an allotable Government built property to one and from not transferring another Government built property to another. 'Therefore, the use of the expression 'may', in our opinion, cannot mean an, unfettered or arbitrary discretion. The provisions of Rule 42 are meant acid have got to be used for furthering the object of the Act and not for frustrating or defeating it. The object of the Act can be furthered only if a non-claimant is helped or assisted in the process of his permanent rehabilitation in this country. The expression 'may' used in Rule 42 implies a judicial discretion on the part of the appropriate Government officer and that judicial discretion has got to be exercised by him justly and fairly. Rule 42 indeed confers power to transfer a Government built property, but exercise of that power is coupled with the performance of a duty. In other words, the exercise of power to allot is coupled with a duty to rehabilitate a non-claimant displaced person. The duty to rehabilitate claimants and non-claimants is writ large throughout the Act and the Rules, particular, we refer to the preamble of the Act and the opening words of Section 14 of the Act. It is not necessary that the performance of duty with which the exercise of power conferred by Rule 42 is coupled should be written or should find an expression in the Rule itself. There are numerous ways in which legislature expresses itself and it is for the Court to construe a statute in order to uphold its object and purpose. Therefore, power which Rule 42 confers upon the appropriate Government officer is exercisable for discharging the duty to the displaced community. This is the public law duty which has got to be discharged and if there is any breach or violation of this public law duty, it, in our opinion, is enforceable at law. Rule 26 uses a similar expression in the context of a similar set of circumstances in respect of an allotable acquired evacuee property. It also confers a similar -power coupled with a similar duty and cannot have a different meaning from one which Rule 42 has. It is not strictly necessary for the purpose of this case for us to construe Rule 26. We are making this observation because Rule 26 has been construed in some of the decisions cited before us in a different manner. For the reasons which we shall state shortly we are not able to concur in the construction which has been placed upon Rule 26 in some of those decisions. If we agree to the construction which has been placed upon Rule 26, we must necessarily place a similar construction upon Rule 42. It is in that context that we say that neither Rule 42 nor Rule 26 is capable of any other construction than one which we have placed on Rule 42. Rule 41 has been marshaled to his aid by Mr. Vakil in order to press for our consideration the contradistinction between the different expressions used in them. Whereas Rule 42 uses the expression 'the property may be transferred to him', Rule 41 uses the expression 'a displaced person having a verified claim who is in occupation of a Government built property which is an allotable property shall be paid compensation by the transfer of the property to him......'. Ordinarily, if a similar context the -rule making authority had used at one place the expression 'shall' and used at another place the expression 'may' they should bear two different connotations. However, so far as Rules 41 and 42 are concerned, the expressions 'shall' and 'may' have been used in them respectively by the rule making authority to meet different situations with the object of producing a uniform set of conditions both for claimants and non-claimants. It is difficult for us to think that by using the expressions 'shall' and 'may' in Rules 41 and 42 the rule-making authority has tried to introduce some basic difference in treating the claimants and the non-claimants, both of whom are required to be rehabilitated in this country Rule 41, in our opinion uses the expression 'shall' because a claimant has a right to receive compensation on the strength of his verified claim and that that claim has got to be satisfied. So far as the transfer of a Government built property to him is concerned, he is not required to do anything. Therefore. by using the expression 'sha1l' the rule-making authority Prima facie has used a more emphatic language. Under that Rule it is only the appropriate officer who is required to act. His action does not depend upon any factors which are not within his control. It is in that context that the expression 'shall' has been used in Rule 41. Rule 42 uses the expression 'may' -because a non-claimant has no right to compensation and, therefore, transfer of a Government built -property to him depends upon his volition and ability to pay in the terms specified in Rule 42. If he is willing and able to comply with the conditions relating to payment, then only the question of transfer arises. Therefore, the action of an appropriate Government officer of transferring the Government built Property to a non-claimant is dependent upon circumstances which are not within his control. The rule-making authority has, therefore, used the expression 'may'. Ordinarily, a transfer under Rule 41 will not fail it cannot be so in case of a transfer under Rule 42 where a non-claimant occupier of a Government built tenement is required to do certain things. Indeed, if a property becomes non-allotable on account of any one or more reasons, Rules 37 and 87 step in to remedy the situation. Implementation of the scheme contained in Rule 42 therefore depends. upon the volition and ability of a non-claimant to pay. But therefore can it be said that even though a non-claimant may be willing and able to pay the specified price of a Government built tenement in his occupation he shall not get it merely because the appropriate officer so thinks fit to do? We cannot construe Rule 42 in such a manner as to invest the appropriate Government officer with arbitrary and capricious exercise of discretion nor can we construe it so as to allow him to introduce discrimination ---hostile discrimination- in his dealings with two non-claimants situate in similar Rule 42, therefore, clearly carves out a public law duty which is enforceable against him at law. To take any other view will lead to desettling a temporarily settled non-claimant whom the legislature requires to be rehabilitated. If he has been occupying a Government built property and if he is willing and able to purchase that property and yet if the appropriate Government officer thinks fit not to transfer it to him but to sell it off by public auction and if such a non-claimant-occupier is not able to Pay the price at its highest bid, he will be thrown out of his tenement and completely desettled as against at least a temporary settlement which he enjoyed when he had been occupying it is extremely difficult for us to hold that Rule 42 confers upon the appropriate Government officer such a wide and unfettered discretion as to produce such an unhappy situation. In our opinion, therefore, it is the duty of the appropriate Government officer to transfer to a non-claimant under Rule 42 a Government built property in his occupation if all the conditions laid down by Rule 42 are satisfied. in such a case he has no further discretion left to him. In the instant case, that duty has been committed breach of because even though the plaintiff is willing and able to purchase the Government built property in his occupation, it has been sold by public auction to the defendant No. 5. Such an action, in our view, is completely ultra vires the Powers of the officer. The breach of the duty which is cast by Rule 42 upon him is enforceable at law. Though strictly speaking the plaintiff may not have any right to purchase the tenement in his occupation, however it must be said that he is entitled to protect his occupation. It is not necessary for us to decide whether he can institute a suit to protect his occupation of the Government built property because we are of the opinion that he is entitled to enforce against the appropriate Government officer the duty which has been cast upon him by Rule 42. Rule 42 casts upon the appropriate Government officer a duty for the welfare of the plaintiff. It is in that context that we say that Rule 42 confers power which is coupled with a duty.

13. Some of the decisions cited at the Bar fortify our conclusion in this behalf. Others take a contrary view. We now proceed to refer to them. The case of Govindrao v. The State of Madhya Pradesh, AIR 1965 SC 1222 lays down the principle that the word 'may' is often read as 'shall' or 'must' when there is something in the nature of the thing to be done which makes it the duty of the person on whom the power is conferred to exercise the power. It was a case under the C. P. and Berar Revocation of Land Revenue Exemption Act, 1948. Section 5 which dealt with awards of money grants or pension, inter alia, provided that the Provincial Government may make a grant of money or pension. It is in that context that the question arose whether the expression may' used therein had the force of 'shall' or 'must'. In the said C. P. and Berar Act whereas sub-section (2) used the expression 'shall' while providing that the Deputy Commissioner shall forward the application to the Provincial Government, which may pass such orders as it deems fit, sub-section (3) thereof used the expression 'the Provincial Govt. may make a grant of money or pension.......'. This decision is the authority for the proposition that if the expression 'may' is used in the context of something which has got to be done, then it creates a duty for that person to discharge.

14. In Rohtas Industries Ltd. V. S. D. Agarwal, AIR 1969 SC 707 the Supreme Court was dealing with Section 237(b) of the Companies Act, 1956. The principle which has been approved is that there is no absolute and untrammeled discretion under which an action can be taken on any ground or for any reason which suggests itself to the mind of the administrator. The Supreme Court in that decision has also approved the principle that 'discretion' means discretion to do something according to the rules of reason and justice and not according to private opinion of the officer concerned. The Supreme Court has further approved the decision of the House of Lords in Padfield v. Minister of Agriculture, Fisheries and Food, 1968-1 All ER 94 in which it has been laid down that where a statute confers a discretion on a Minister to exercise or not to exercise a power without expressly limiting or defining the extent of his discretion and does not require him to give reasons for declining to exercise the power, it is nevertheless limited to the extent that it must not be so used, whether by reason of misconstruction of the statute or other reason, as to frustrate the object of the statute which confers it. Discretion must be exercised lawfully and not for the purpose of misdirecting himself in law.

15. In A. K. Kraipak v. Union of India, AIR 1970 SC 150 it has been laid down that the dividing line between the administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or Capriciously.

16. In L. Hirday Narain v. Incometax officer, Bareilly, AIR 1971 SC 33 it has been laid down that if a statute invests a public officer with authority to do ,an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that be half and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or private of a citizen.

17.In Smut. Sahodara Devi v. Government of India,AIR 1971 SC 1599 the principle laid down by the Supreme Court in Govindrao's case, AIR 1965 SC 1222 (supra) has been followed.

18. Reliance has also been placed upon the decision of the House of Lords in Frederic Guilder Julius v. The Right Rev. the Lord Bishop of Oxford, (1880) 5 AC 214. The House of Lords in that case was construing the expression 'it shall be lawful' used in the Church Discipline Act. In his speech Lord Chancellor Earl Cairns has observed as follows:

'The question has been argued and has been spoken of by some of the learned Judges in the Courts below as if the words 'it shall be lawful' might have a different meaning, and might be differently interpreted in different statutes, or in different parts of the same statute. I cannot think that this is correct. The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or -power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that -power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our System of law, speaking generally, it falls to the Court of Queen's Bench to decide, on an application for a mandamus. And the words 'it shall be lawful' being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to show in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation.'

A similar view has been expressed by Lord Penzance, Lord Selborne and Lord Blackburn in their separate speeches.

19. We have borne in mind the principles laid down in the decisions referred to above by us and it is on the basis of those principles that we have construed Rule 42 and recorded our conclusion thereon. These decisions fortify us in that conclusion of ours. Bearing directly on some of the said Rules there are some decisions which have been cited before us.

20. In Harisingh Anand v. Union of India, AIR 1972 Delhi 216, a Full Bench of the Delhi High Court was interpreting Rule 30 of the said Rules. It was a case in which a Government built property was occupied by two persons. It was transferred to one of them and its cost was adjusted against the claim payable to the father of the transferee. The person to whom it was not transferred filed a writ petition for vindicating his grievance and it was out of that writ petition that the Letters Patent Appeal which the Full Bench decided arose. The Delhi High Court in that case was principally concerned with Rule 30 with which we are not concerned in the instant case. Rules 41 and 42 of the said Rules were adverted to in order to show that whereas Rule 30 used the expression 'the property shall be offered to the Person' and Rule 41' used the expression 'shall' Rule 42, in contradistinction from them, used the expression 'may'. Relying upon an earlier decision of a learned single Judge of that High Court in vasudev Singh Biji v. Union of India, AIR 1970 Delhi 85 it was contended that the expressions 'shall' and 'may' used respectively in Rules 41 and 42 had different connotations and that, therefore, a distinction must be drawn between them. It was further contended that the primary object of the said Act was to give compensation to displaced persons with verified claims. That argument was negatived by the Full Bench of the Delhi High Court and it was observed that the object of the statute was not merely to provide for payment of compensation but also for payment of rehabilitation grants to displaced persons and for matters connected therewith. Referring to Rule 42 it has been observed that it is in Pari materia with Rule 26 and that under Rr. 22 & 26 allotable properties are ordinarily to be allotted to displaced Persons and not to be sold. It has been further observed that it does not follow that displaced persons with verified claims are to be given preference and displaced persons with no such claims are to be thrown out. In the case of persons holding verified claims, compensation payable to them is adjusted against the value of the property transferred to them. In the case of non-claimants, the

value is Paid in cash or by instalments. There is no further distinction between them. The view expressed by the Delhi High Court in this decision goes some way in lending support to the view which we have taken. The Delhi High Court was not concerned directly with construing Rule 42 and the facts of the case which they were deciding were different from the facts in the instant case. Therefore, the aforesaid decision of the Delhi High Court is capable of lending only some support to the view which we are taking.

21. In AIR 1970 Delhi 85, Chief Justice I. D. Dua (as he then was) has made distinction between Rules 41 and 42 of the said Rules. It has been laid down by him that there is no reason why the word 'shall' used in Rule 41 should be given a permissive colour or the word 'may' in Rule 42 should be construed in a peremptory manner. According to him, the word 'shall' does not always conclusively convey an imperative mandate and similarly the word 'may' is at times intended to mean 'must'. But in order to construe 'shall' as 'may' and 'may' as 'shall', there must be compelling reasons discernible from the context -and the statutory aim, object and purpose. In the absence of such considerations, these words must be given their normal meanings in the English language. In that decision it has been held that whereas the expression 'shall' used in Rule 41 carries with it a mandatory obligation, the expression 'may' used in Rule 42 merely confers upon the appropriate officer discretion. We are unable to accept the principle laid down in the aforesaid decision for the following reasons. Firstly, it has been impliedly overruled by the Full ,Bench decision of that very High Court in Harisingh Anand's case (supra). Secondly, the learned Chief justice, with respect to him, has failed to notice that under Section 14(d) read with Rule 36 and Rule 2 (d) Government built properties have been made a part of compensation pool and he has also failed to notice the difference in two situations with which the rule-making authority was dealing, as analysed by us above. It was in the context of the special situations in regard to non-claimants that the rule-making authority has used the expression 'may' in Rule 42. Even if it had so desired, the expression 'shall' could not have been used in Rule 42. Next, he has failed to notice that it is the paramount desire of the legislature to rehabilitate both the claimants as well as the non-claimants in, as far as practicable, a uniform way, though they are situate differently.

22. The next decision which has been cited before us is in S. Balwant Singh v. Union of India, AIR 1964 Punj 138. It has been laid down by the learned single Judge of the Punjab High Court, in relation to Rule 22, that the discretion conferred by that Rule upon the authorities cannot be exercised arbitrarily.

23. The next decision is in Sodhi Harbaksh Singh v. The Central Government, AIR 1964 Punj 137. It has been held by a Division Bench of the Punjab High Court that there is no justification in importing into Rule 26 the obligation which exists under Rule 25. The learned Judges have noted that the pre-existing conditions in the two rules are different. However, having noted them, they have recorded the conclusion that the expression 'may' used in Rule 26 cannot be taken as 'must', and that, therefore, Rule 26 cannot be construed as casting an obligation on the authorities concerned to transfer allotable property to a non-claimant in whose occupation such property may happen to be. It has also been laid down that there is no obligation on the part of the authority concerned to do an act which it is merely authorised to do. It has therefore concluded that Rule 26 does not cast any obligation upon the concerned authority. They have, however, observed that such an unusual construction is not to be resorted to lightly and must be justified by the-scheme -of the provision in question. While placing that construction upon the expression 'may' used in Rule 26 they have relied upon two unreported decisions of their own High Court. We are unable to accept the principle laid down in the aforesaid decision of the Division Bench of the High Court of Punjab because it does not examine the scheme of the Act and the Rules nor does it examine the context in which the expression 'shall' has been used in Rule 26. Strictly speaking, it is not necessary for us to make any observation upon that decision for the simple reason that whereas the Punjab High Court was particularly concerned with the construction of Rule 26, we are concerned in the instant case with Rule 42. A few observations which we have made in regard to the aforesaid decision of the Punjab High Court have been made only to show that if the construction placed by the Punjab High Court on Rule 26 is to be adopted for Rule 42, because both contain similar schemes, we are unable to do so.

24. The last decision upon which reliance has been placed is in Raghumal Budhumal v. Tikamdas Gehmal, 67 Bom LR 470 = (AIR 1966 Bom 53). In that decision a Division Bench of the High Court of Bombay consisting of Chief Justice Chainani and Mr. Justice Gokhale was construing the expression 'may' used in Rule 39 of the said Rules. They have held that the expression 'may' used in Rule 39 does not mean 'shall'. The principle laid down in that decision cannot be applied to the instant case because the scheme of Rule 39 is quite different from the scheme of Rule 42. Rule 39 provides thus:-

'A Government plot forming part of the compensation pool may be sold by public auction.'

When the language of Rule 39 is compared with the language of Rule 42 it is quite clear that Rule 39 prescribes only one mode of disposal for Government plots forming part of the compensation pool. It is sale by public auction. It is not in the occupation of any one unlike a Government built Property in the occupation of a non-claimant as contemplated by Rule 42. Secondly, there is no allotment of such a Government plot to anyone. In case of Rule 42 the Government built property which is sought to be auctioned is already in occupation of a non-claimant. Thirdly, when Rule 42 is read in light of Rules 36 and 37 it appears to us that the transfer to a non-claimant occupier of a Government built property is the first mode of transferring such a Government built property and that sale by public auction comes into play only when transfer by the first mentioned mode fails. There is no such thing in Rule 39. Since the schemes of Rule 39 and Rule 42 are completely different from each other, it is extremely difficult for us to make any use of the aforesaid decision of the High Court of Bombay, so far as the instant case is concerned. Out to all the decisions to which our attention has been invited there is none which has comprehensively considered the Act and the Rules. In the Full Bench decision of the High Court of Delhi in Harisingh Anand's case, AIR 1972 Delhi 216 (FB) (supra) since the situation which arose for its decision was different from the situation which has arisen in the instant case, there is no full-dress discussion of the exact and correct connotation of Rule 42. There is only a passing reference to it.

25. Mr. Vakil has contended before us that the expression 'may' used in Rule 42 does not create a right in favour of a non-claimant. We are in agreement with him that the expression 'may' used has been used, incapable of creating a right in favour of a non-claimant. But it does not mean that if it creates a duty for the authorities, it cannot be enforced by public law by the person who has been aggrieved by the failure on the part of the authorities to discharge that duty. Mr. Vakil has also contended that Rule 42 does not confer upon a non-claimant a right in the nature of preemption or a preferential right. He seems to be right in that contention of his. He has next contended in the alternative that the expression 'may' confers upon the authorities unfettered discretion because, according to him, Rule 42 is only an enabling or a permissive provision. So far as the latter part of his submission is concerned, he is correct. Rule 42 is indeed an enabling or permissive provision inasmuch as it confers upon the authorities power which it is their duty to exercise in favour of the person who is intended to be benefited by it. Though, therefore, the latter part of Mr. Vakil's submission is correct, we cannot uphold the whole of it. He has further contended that the power which Rule 42 confers upon the authorities is not meant for public benefit. We have examined the scheme of the Act -and the Rules and we feel that the argument advanced by Mr. Vakil is wholly misconceived. He has further argued that Rule 42 does not specify the circumstances under which -power shall be exercised by the authorities to discharge their duty. Rule 42 as analysed by us above expressly specifies the circumstances under which a Government built property is to be transferred to a non-claimant. It is extremely difficult for us, therefore,, to accept the contention raised by Mr. Vakil that Rule 42 does not specify any circumstances under which a Government built property may be transferred to a non-claimant. He has next contended that a non-claimant has no right to compensation or to rehabilitation grant nor has he any further right. It is true that a non-claimant has no right to compensation. It may be technically true that he has no right to receive the rehabilitation grant but it is the duty of the authorities to rehabilitate him. While making all these submissions Mr. Vakil has overlooked this principal proposition. He has further contended that the power which Rule 42 confers is not intended for the enforcement of any legal right in favour of a displaced person. That submission of his is not a complete one. Power which Rule 42 confers may not be intended for the purpose of enforcing any legal right in favour of a displaced person but it is certainly intended to enable the authorities to discharge their duty of rehabilitating a non-claimant displaced person. For the reasons which we have -stated above we are unable to uphold the arguments advanced by Mr. Vakil.

26. Mr. Vakil has relied upon the unreported decision of Mr. Justice D. P. Desai in Second Appeal No. 42 of 1965 decided on December 21, 1970. In that decision it has been held that a non-claimant under Rule 42 has no right to have transferred to him the Government built property which is in his occupation and that, therefore, a suit filed by a displaced person on the strength of Rule 42 is not maintainable. The learned Judge, with great respect to him, has not examined the scheme of the Act and the Rules. There are two fallacies from which his decision suffers. Firstly, he has held that a Government built property does not form part of compensation pool. That view of his is, with respect to him, incorrect. He has failed to notice the impact of Section 14(d) read with Rule 36 and Rule 2 (d). The second fallacy from which his decision suffers is that there is no Rule which lays down the duty on the part of the authority to transfer to a non-claimant a Government built property in his occupation. He has observed in his judgment that no Rule laying down such a duty has been shown to him. Again, with great respect to him, the duty of the authority upon whom Rule 42 confers power is implicit in the power itself. The duty is a duty to rehabilitate a non-claimant and that duty is writ large in the Act and the Rules and permeates through its entire fabric. The assumptions on which that decision has therefore been rendered, are not well founded. In our opinion, therefore, it does not lay down the correct law.

27. For the reasons stated above we uphold the first contention raised by Mr. Majmudar to the extent that Rule 42 confers on the authorities power which is coupled with a duty and that the plaintiff's suit is maintainable for the purpose of enforcing the duty which has been cast upon the authorities. We set aside the contrary finding recorded in that behalf by the Courts below.

28. Turning to the next contention which Mr. Majmuder has raised it is necessary for us to have a look at Sections 27 and 36. Section 27 of the Act provides for finality of orders. It reads thus:

'Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Ac t, 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 proceeding.'

Section 36 deals with bar of jurisdiction It provides thus:

'Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.'

Relying upon these two sections Mr. Vakil in his turn has contended that the jurisdiction of the Civil Court to entertain the present suit is barred. Indeed he has placed reliance upon the finding recorded in that behalf by the Courts below. Mr. Majmudar has contended to the contrary. His contention is that the act of the authorities of selling the Government built property in occupation of the plaintiff is ultra vires their power and therefore beyond the reach of Sections 27 and 36. According to him, an ultra vires order is not one made under the Act. It is beyond the Act, de hors the Act and in breach thereof. Therefore, according to him, the bar of jurisdiction cannot be attracted to the instant case. Mr. Vakil in his turn has contended that the Act is a self-contained Code providing adequate and efficient machinery to challenge any type of act by which a person may be aggrieved. Irrespective of whether the Act contains adequate machinery or not, if the act of the authorities of selling the tenement in the occupation of the plaintiff is ultra vires, it can be called in question in a Civil Court because such an act is not under a statute but is de hors it. The question, therefore, which we have to consider is whether the impugned act of the authorities is ultra vires their power or not.

29. In Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78 seven tests have been laid down to determine whether an act of an authority is ultra vires its power or not. The first test enunciated by the Supreme Court is in the following terms.

'Where the statute gives a finality to the orders of the special tribunals the civil court's 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.'

The application of the latter part of this test renders the act of the authorities of selling the tenement in the occupation of the plaintiff ultra vires their powers because Rule 42, subject to the satisfaction of the conditions specified therein, requires the authorities to transfer for value the tenement in occupation of a non-claimant. The act of the authorities of selling by public auction the plaintiff's tenement is, therefore, in clear breach or violation of Rule 42. It is therefore ultra vires their powers. It is not necessary to refer to the other tests laid down by the Supreme Court in that decision.

30. In the State of West Bengal v. The Indian Iron and Steel Co. Ltd., AIR 1970 SC 1298 it has been laid down, in the case of a cess payable under the Bengal Cess Act, 1880, that the mode of computation of cess is a matter for the assessing authorities except where the computation is done in violation of any provision of law. If there is any mistake in such a computation, it should be rectified by following the procedure prescribed by the Bengal Cess Act. It is settled law, it is laid down by the Supreme Court in that decision, that the exclusion of jurisdiction of a civil court is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. Even where the jurisdiction o f a civil court is excluded, it has jurisdiction to examine the cases where the provisions of an Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The latter proposition laid down by the Supreme Court helps us in negativing the contention raised by Mr. Vakil. Their earlier decision in Dhulabhai's case, AIR 19,69 SC 78 (supra) has been followed by them.

31. The last decision on the point is in Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558. The Supreme Court was construing in that case the expression 'a decision or order passed by an officer of Customs under this Act' used in Section 188 of the Sea Customs Act. While construing that expression it has laid down that a decision or order contemplated by Section 188 must mean a real and not a purported determination. A determination, which takes into consideration factors which the officer has no right to take into account, is no determination at all. If while recording a determination factors which should not have been taken into account have been taken into account, then challenge to such a determination in a civil court is not excluded by the provision which excludes the jurisdiction of the civil court. While laying down that principle the Supreme Court has relied upon the decision of the House of Lords in Anisminic Ltd. v. The Foreign Compensation Commission, (1969) 1 All ER 208. It has been further observed in that decision that since the order was made in noncompliance with the provisions of the statute, the provision excluding the jurisdiction of civil Courts was not applicable.

32. Applying the test laid down in the aforesaid decision we are clearly of the opinion that the act of the authorities of selling the tenement in the plaintiffs occupation, in the facts and circumstances of the case and in light of the construction which we have placed upon Rule 42, is ultra vires their powers. Therefore, the bar of jurisdiction enacted by Section 36 is not attracted to the instant case. The contention raised by Mr. Majmudar that the Civil Court has jurisdiction to entertain the suit must, therefore, be upheld. In that view of the matter, we set aside the finding recorded by the Courts below in that behalf. The suit was fought out in both the Courts below on these preliminary points. It was not tried on merits. Since we are unable to uphold the decree passed by the Courts below, it has become necessary for us to remand the suit to the trial Court for decision on merits and according to law.

33. In the result, we allow the appeal, set aside the decree passed by the Courts below and remand the suit to the trial Court for decision on merits and according to law and in light of the observations made in this judgment. So far as costs are concerned, the respondents shall pay the appellant's costs of this Second Appeal and of the appeal in the District Court. So, far as the costs of the trial Court are concerned, they shall abide by the result.

34. Appeal allowed.


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