P.K. Banerjee, C.J.
1. This rule is directed against an order passed by the Central Government on September 10. 1975, through its delegated authority viz, Commissioner-cum Surety to the Government, Department of Rehabilitation, Rajasthan, Jaipur, in a case under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act of 1954.
2. The brief facts of the case are that the opposite parties, Asa and Ami Khan, alleged to be the sons of one Suleman are residents of the village Parlika, Tehsil Nohar, Distt. Ganganagar. since prior to the partition of India before 1947. It is a leged further, that Suleman was in possession of Khasra Nos. 4,0 and 411 measuring about 39 bighas and 12 biswas of land at the said village. It is alleged that the area was declared evacuee property on the eve of partition and consequently was allotted in the year 1960 as evacuee property. Subsequently, Asa and Ami Khan' sons of Suleman applied to the Custodian General for the release and restoration of property under Section 27 of the Administration of Evacuee Property Act of 19.o and by order dated April 4,1963 the property was declared as non evacuee property and therefore, it is alleged, the petitioner applied for restoration of the property. The Chief Settlement Commissioner by the order dated May 28, 1975 rejected the claim of the petitioner. Hence the petitioner preferred a revisional application before the competent authority for an order of restoration from the opposite party who were in possession.
3. It is not disputed that the original allottee secured Sanad of temporary allotment in their favour on 25-2-0-65. Subsequent to the issue of the Sanand the property was sold on 26-6-1965 and again on 23-7 69. It is alleged that these sales were all void be initio. In view of the declaration by the competent authority under the Administration of Evacuee Property Act, the property is not an evacuee property and it was directed by the order which is under challenge, the property be restored to the petitioner, before the authority, as non-evacuee property. Being aggrieved by the said order, the present possessor of the property moved this Court to obtain the present rule.
4. It must be stated, in the mean time the petitioner filed a proceeding before the competent authority for a declaration that the property is not an evacuee property. In that suit Asa and Ami Khan, sons of Suleman, were made party and the suit was decreed in favour of the petitioner herein and that suit has never been challenged. There were no affidavit by any of the parties in these proceedings. On these allegations the parties come to trial.
5. Mr. Mridul on behalf of the petitioner, contended that the finding of the authorities concerned that the property is not an evacuee property is not a proper finding and does not take into consideration the meaning of the word 'evacuee' in respect of the persons who were the erstwhile residents of the State of Bikaner in 1948 Older, namely, Bikaner State Evacuee (Administration of Property) Order of 1948. In the said order 'evacuee' has been defined as follows.
2(b) Evacuee' means a person ordinarily resident in or owning property or carrying on business within the territories comprised in the Bikaner State, who on account of civil disturbance, or the fear of such disturbance of the partition of the country:
(i) leaves, or has since the first day of March 1947 left the said territories for a place outside the State of Bikaner, or
(ii) Cannot personally occupy or supervise his property or carry on his business or watch his interests or enforce his rights.
6. Therefore, at the relevant time admittedly Suleman was resident of Bikaner. The word 'Evacuee' is to be considered as defined in the said Order. There is a Division Bench judgment of this Court in State of Rajasthan v. Asha Ram and other Civil Appeals decided on February 24, 1984, where the same question arose. It was held by their Lordships of the Division Bench that for the purpose of Muslim occupants in Bikaner, the Managing Officer can allot tenancy right of lands in dispute, and it is not necessary for a person to go outside India but will satisfy if he has gone outside the Bikaner State at the relevant time. Admittedly, when this Order was in force, in 1949 Suleman diedThis Division Bench judgment is binding on me and relates to allotment and settlement of land, which is also the case here. In the said judgment also the occupation of Muslim tenants were, who formed a part if erstwhile State of Bikaner and some of the Muslim tenants left their agricultural lands on account of communal disturbance and all such disturbances were on account of setting up a separate State of Pakistan. Their Lordships held, all such persons of the former State of Bikaner or its territories, which now form part of Pakistan, will come within the definition 'Evacuee' under the said order.
7. Looking at that angle it is relevant to consider the effect of 1976 suit. The 1976 suit, Mr. Bishnoi contended, was without jurisdiction. It must be stated, Mi, Bishnoi's clients were parties to that suit. The petitioner applied for injunction, stating there the defendaut may be injucncted from disturbing the possession of the petitioners-herein in that suit. It was agitated, that these orders were passed as far back as 1963, and allotment was made in 1965 and the petitioners-herein purchased from the allottee in 1959. Now,the respondents, of which Mr. Bishnoi's client is one of the parties cannot get the restoration of possession as there is a bar of Section 46 of the Administration of Evacuee Property Act. The bar of jurisdiction and the finality of the decision of an appropriate Tribunal will only be valid if it comes within the four corners of the statute. It has been held in 1963 that the property is an evacuee property. Now it has been brought to my notice that even in 1984 the Division Bench judgment contended to consider the meaning of the word 'evacuee' in the context of the residents of the State of Bikaner, before its merger into the State of Rajasthaa. Traat has not been considered at all. Therefore, it cannot be sail that the bar is final and the ordinary jurisdiction of this Court is taken away. Mr. Bishnoi has correctly pointed out that if there is a bar of jurisdiction the Court has its decided it whether it has jurisdiction or not if the Court has not considered the relevant materials for the the puropose of consider of the word 'Evacuee' and has obssesed that same definition of the word 'Evacuee' of a particular Act without considering the Order of the Bikaaer State Evacuee Administration of Property Order, 194s it can not be said that the Civil Court' has jurisdiction is ousted and is any case Civil Court has jurisdiction to consider whether the order passed is within the provisions of the Act and that the finding is not perverse or in violation of the principles of natural justice. In such cases, the bar of finality of the order by a Tribunal can be questioned in a Civil Court.
8. In Custodian, Evacuee Property, Punjab v. Jafran Begum : 3SCR736 it has been held by the Supreme Court that under Section 46 of the Administration of Evacuee Property Act of 19.50, the finding of the Custodian or the appropriate Tribunal under the Abt is finding, not only on question of fact but also on question of law. But the question still remains is that Court has jurisdiction to consider whether the order has been passed by the Tribunal in conformity with the principles of ratural Justice and whether this was within the four corners of the statute. As the Supreme Court has already held that Section 7 and 46 of the Administration of Evacuee Property Act of 1950 is a complete Code in itself and if they have the jurisdiction to decide the matter, civil court's jurisdiction is ousted. It has also been held in the said judgment that under Article 220of the Constitution of India, however, the Court can consider whether the Court sitting under Article 226 can say whether the finding in without jurisdiction or not.
9. In the present case clearly has referred to the evacuee property and the word evacuee as administered in the State of Bikaner was not considered by the authorities concerned at the relevant time. But be that as it may. In my opinion, in the suit of 1976 it is clear that the question of jurisdiction was raised by respondents No, 2 and 3, This question was decided against them and they did not dispute the decision by preferring an appeal against that order.
9. In Abdul Qadir v. Asstt, Custodian, Evacuee Property : 1SCR993 it has been held by the Supreme Court that in respect of the Displaced Persons (Compensation and Rehabilitation) Act 1954 and that in particular reference to Section 20A of the Act, restoration can be refused Iinspite of a certificate granted by Section 16 of the Act. Their Lordships of the Supreme Court have stated that the provision of Section 20A A.I.R. 1968 S.C. 169 have over riding effect by virtue of Explanation appended to it. Inspite of certificate issued under Section 16 of the Evacuee Property Act the Central Government can disallow restoration of the house property and to pay to the applicant compensation only. It was held in the particular facts of this case that a displaced person was inducted as tenant long back and the property was also sold to him by the Custodian In such a rule it is just and proper to refuse restoration of the property and t j pay the applicant compensation in lieu there of.
11. To this argument of Mr. Mridul, Mr. Bisbnoi contended that the order was not made under Section 16 of Act and therefore, Order under Section 16 does not help Mr. Mridul at all. On the other hand it is contended by Mr. Bishnoi that the order was made under Section 16 of the Act and therefore, this cannot be availed of by the petitioner still and more so when it is found that rule 20 B of the Act was held to be ultravires.
12. In the facts of this case it appears, that the property was being administered by the Custodian from quite a long time and was being settled to different tenents. The last settlement was in 1965. Thereafter, the tenant in possession, transferred the land to the petitioner-herein as far back as 1969 and after 1969 the petitioner was in possession of the property in question and after when he came to know of this order, he filed a suit making respondente Nos. 2 & 3 a party defendant. But unfortunately for respondents Nos. 2 and there was an injunction against them.
13. In Dhulabhal v. State of M.P : 3SCR662 their Lordships of the Supreme Court had to consider the exclusional jurisdiction of the Civil Court and in doing so laid down the principles regarding exclusional jurisdiction in the following terms:
(1) Where the statute gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provisions, 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 lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with action in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Trsbunals 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 machinary for refund of tax collected in excess of constitutional limits for illegally collected, a suit lies.
(6). Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply : Case law discussed.
14. It appears to me, the suit cannot be said to be within the mischief of either (1) or (2). In (1) it has been stated where the statute gives a finality to the order 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 court 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. In the facts of this case it appears to be correct. But Mr. Mridul has argued that in 1963 Order the Tribunal itself did not confirm to the fundamental and judicial procedure in as much as is took into consideration evidence without proof of the same by any of the parties and more over at the relevant time of course the petitioner was not in the picture at all. Whether this has binding no the petitioner or not can only be agitated in a properly framed suit and having been done so and that suit having none against the opposite party No. 1 and 2, it cannot be said the suit is bad because of Section 45 of the Administration of Evacuee Property Act of 1950.
15. In the circumstances, therefore, in my opinion, the order of the Tribunal for restoration of the property to the alleged heirs of Suleman cannot be given effect to and the rule is made absolute. The impugned order is set aside.
16. This is, however, without prejudice to any right the Central Government may make in on application alleged to be pending before the Central Government.