# S. M. Zaki v. The State of Bihar, A.l.R. 1953 Pat. 112 and Khalil'

- **Citation:** [1967] 3 S.C.R. 736
- **Court:** Supreme Court of India
- **Decided:** 1967-04-20
- **Case number:** Civil Appeal No. 772 of 1964
- **Bench:** K. N. Wanchoo, V. Bhargava, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-m-zaki-v-the-state-of-bihar-a-l-r-1953-pat-112-and-khalil-4017
- **Pages:** 11

## Headnote

B
Administration of Evacuee Property Act (31 of 1950), s. 4~Decision by Custodian that property was evacuee
property~uit in Civil
Court challenging decision-If maintainable.
A person who was in possession of a house in India, migrated to
Pakistan. Notice was issued to his son under s. 7 of the Administra•
tion of Evacuee Property Act, 1950, and after hearing him the Deputy c
Custodian declared the house to be evacuee property. The respondent,
who was the wife of the evacuee and on whom the notice under s. 7 of
the Act was not served, started proceedings before the OJstodian, claiming that the owner of the house had executed a will bequeathing the property to her and so the property could not be declared evacuee property.
When she failed before the authorities
constituted under the Act, she
filed a suit in the civil court basing her case on the will and prayed for
a permanent injunction restraining the authorities under the Act from
D
evicting her from the house.
On the question whether the suit in the civil court was maintainable,
the High Court held that the question whether a certain person had or
had not become an evacuee was determinable
only by the authorities
under the Act, but the determination of a complicated question of law
relating to title by such ·authorities, if such a question . arose, was not
final and could be reopened in the civil court; that the suit in the present
E
case did raise such a question and therefore, the civil court bad jurisdiction to entertain it.
In appeal to this Court,
HELD : Two questions will arise in every case where the authoritv
has to declare under s. 7 of the Act whether a property is evacuee prOperty, namely, (i) ·whether a particular person has or has not become an
F
evacuee, and (ii) whether the property in dispute belongs to him. There
is nothing in the section which shows that the authority under the Act
(being a quasi judicial authority) cannot enter into all questions, whether
of fact or law, simple or complicated, in deciding whether certain property belon~s to an evacuee; nor does his jurisdiction depend upon a
correct finding on a collateral fact.
The power to decide all these questions could not be denied on the ground that . the authority under s. 7
may not be an experienced judicial officer, because, his decision is
not
G
final and is open to appeal under s. 24 and to revision under s. 27 by
authorities who are experienced judicial officers. Havin$ thus provided
a complete machinery for adjudication of all claims with respect to
evacuee property, under ss. 7, 24 and 27, the Act, by s. 28, gives finality
to the order of the authorities mentioned therein and lays down that such
orders shall not be called in question in any court by way of appeal or
revision or in any ·original suit, application or executio!' ~r~e~ing. The
H
Legislature has gone further and expressly bai:ed the 1un~d1ction of the
civil and revenue courts under s. 46 to entert.ain or ad1ud1cate upon imy
question whether any property or any right to or interest in any J>roperty
is or is not evacuee property. Further, s. 4(1) of the Act provides that
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CUSTODIAN v. JAFRAN BEGUM (Wanchoo, C.J.)
737
the Act overrides other laws and would thus override s. 9 of the Civil
Procedure Code.
Jn these circumstances, . s. 46 is ~ compl~te _bar to the
jurisdiction of the Civil Court to entertain the. smt or a~1ud1cate u~n
the question whether the property in dispute or nght to or mterest. th!'r~m
is or is not evacuee property. But ""· 28 and 46 cannot bar the 1unsd1ction of the High Court under Art. 226 for, that is a power conferred by
the Constitution. [740 G-H; 742 A, E, F-G; 743
A-B, D:-G,
744 A,
B-Fl
S. M. Zaki v. The State of Bihar, A.l.R. 1953 Pat. 112 and Khalil'
Ahmad Khan v. Malka Meher Nigar Begum, A.I.R. All. 362, approved.
Observation at page 934 in Namazi v. Deputy
Custodian Evacuee
Property, A.I.R. 1951 Mad. 930, disapproved.
[The question whether the civil courts have jurisdiction to ~ami.ne·
·in

## Text

CUSTODIAN OF EVACUEE PROPERTY PUNJAB & ORS.
A
v .
.JAFRAN BEGUM
April 20, 1967
[K. N. WANCHOO, C.J., V. BHARGAVA AND G. K. MITTER, JJ.)
B
Administration of Evacuee Property Act (31 of 1950), s. 4~Decision by Custodian that property was evacuee
property~uit in Civil
Court challenging decision-If maintainable.
A person who was in possession of a house in India, migrated to
Pakistan. Notice was issued to his son under s. 7 of the Administra•
tion of Evacuee Property Act, 1950, and after hearing him the Deputy c
Custodian declared the house to be evacuee property. The respondent,
who was the wife of the evacuee and on whom the notice under s. 7 of
the Act was not served, started proceedings before the OJstodian, claiming that the owner of the house had executed a will bequeathing the property to her and so the property could not be declared evacuee property.
When she failed before the authorities
constituted under the Act, she
filed a suit in the civil court basing her case on the will and prayed for
a permanent injunction restraining the authorities under the Act from
D
evicting her from the house.
On the question whether the suit in the civil court was maintainable,
the High Court held that the question whether a certain person had or
had not become an evacuee was determinable
only by the authorities
under the Act, but the determination of a complicated question of law
relating to title by such ·authorities, if such a question . arose, was not
final and could be reopened in the civil court; that the suit in the present
E
case did raise such a question and therefore, the civil court bad jurisdiction to entertain it.
In appeal to this Court,
HELD : Two questions will arise in every case where the authoritv
has to declare under s. 7 of the Act whether a property is evacuee prOperty, namely, (i) ·whether a particular person has or has not become an
F
evacuee, and (ii) whether the property in dispute belongs to him. There
is nothing in the section which shows that the authority under the Act
(being a quasi judicial authority) cannot enter into all questions, whether
of fact or law, simple or complicated, in deciding whether certain property belon~s to an evacuee; nor does his jurisdiction depend upon a
correct finding on a collateral fact.
The power to decide all these questions could not be denied on the ground that . the authority under s. 7
may not be an experienced judicial officer, because, his decision is
not
G
final and is open to appeal under s. 24 and to revision under s. 27 by
authorities who are experienced judicial officers. Havin$ thus provided
a complete machinery for adjudication of all claims with respect to
evacuee property, under ss. 7, 24 and 27, the Act, by s. 28, gives finality
to the order of the authorities mentioned therein and lays down that such
orders shall not be called in question in any court by way of appeal or
revision or in any ·original suit, application or executio!' ~r~e~ing. The
H
Legislature has gone further and expressly bai:ed the 1un~d1ction of the
civil and revenue courts under s. 46 to entert.ain or ad1ud1cate upon imy
question whether any property or any right to or interest in any J>roperty
is or is not evacuee property. Further, s. 4(1) of the Act provides that
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CUSTODIAN v. JAFRAN BEGUM (Wanchoo, C.J.)
737
the Act overrides other laws and would thus override s. 9 of the Civil
Procedure Code.
Jn these circumstances, . s. 46 is ~ compl~te _bar to the
jurisdiction of the Civil Court to entertain the. smt or a~1ud1cate u~n
the question whether the property in dispute or nght to or mterest. th!'r~m
is or is not evacuee property. But ""· 28 and 46 cannot bar the 1unsd1ction of the High Court under Art. 226 for, that is a power conferred by
the Constitution. [740 G-H; 742 A, E, F-G; 743
A-B, D:-G,
744 A,
B-Fl
S. M. Zaki v. The State of Bihar, A.l.R. 1953 Pat. 112 and Khalil'
Ahmad Khan v. Malka Meher Nigar Begum, A.I.R. All. 362, approved.
Observation at page 934 in Namazi v. Deputy
Custodian Evacuee
Property, A.I.R. 1951 Mad. 930, disapproved.
[The question whether the civil courts have jurisdiction to ~ami.ne·
·into cases where the provisions of the Ac.t have not _been .comphed with.
or the statutory tribunal has not acted m confonn1ty with the fundamental principles of judicial procedure, not decided.] [745 D-E]
Abdul Majid Haji Mohmed v. P. R. Nayak, A.I.R. 1950 Born. 440,
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 772 of
1964.
Appeal by special leave from the judgment and order dated
May 28, 1962 of the Punjab High Court in Regular Second
Appeal No. 1819 of 1959.
K. S. Chawla and R. N. Sachthey, for the appe)lants.
The respondent did not appear.
The Judgment of the Court was delivered by
Wanchoo, C.J. In this appeal by special leave the only question that arises is the interpretation of s. 46 of the Administration of Evacuee Property Act, No. 31 of 1950, (hereinafter
referred to as the Act) . Brief facts necessary in that connection
are these. The house in dispute is situate in Malerkotla and belonged to one Muradbux who died sometime in 1922. In 194 7,
the house was in possession of Muradbux's son, Mohd. Rafiq and
Muradbux's widow, Jafran Begum.
Sometime after
partition,
Mohd. Rafiq migrated to Pakistan. Thereafter notice was issued
under s. 7 of the Act to Dildar son of Mohd. Rafiq to show cause
Gwhy the house be not declared as evacuee property. No notice
was however issued to respondent Jafran Begum. It seems that
Dildar appeared before the Deputy Custodian and admitted that'
his father had migrated to Pakistan.
So on June 7, 1952, the
house was declared to be evacuee property. No appeal was taken
against this order which thus became final. However, on March
2, 1954, the respondent filed an application before the Custodian
claiming that by virtue of a will made in her favour by Muradbux
H
in 1918 he had bequeathed the house to her and therefore she was
the owner of the entire property. ·On July 3, 1954, the Custodian
738
SUPREME COURT REPORTS
[1967] 3 S.C.R.
held that under Mohammedan law a person could not will away
more than one-third of his property and as it had not been proved
that the house willed away by Muradbux was one-third of his entire
property or less, the will could not be acted upon. In consequence
lhe application was dismissed. It seems that thereafter the res•
pondent made some representations to the then Goven:iment of
PEPSU but it is not known what happened thereto. On Septem·
.ber 10, 1956, the respondent applied for review of the order of
the Custodian dated July 3, 1954. That review application wag
dismissed on April 5, 1957 mainly on the ground that it was belated. The respondent then went in_ revision to the Deputy Custo·
dian General but her revision was dismissed on September 27.
1957. Thereafter on December 3, 1958, the Deputy Custodian
·General suo motu reviewed the order of September 27, 1957
holding that the respondent as the widow was entitled to one-eighth
share under Mohammedan law. He therefore held that only seven-
·eighths share of the house became evacuee property and one-eighth
share of the respondent was not evacuee property.
In the meantime, the suit out of which the present appeal has
.arisen was filed by the respondent on March 3, 1958. She based
her case on the will of Muradbux already referred to and prayed
for a permanent injunction against the Custodian Evacuee Property Punjab and others barring them from evicting her from
the house in dispute. The suit was dismissed on December 31,
1958 by the trial court holding that the civil court had no jurisdiction to decide the matter in the face of s. 46 of the Act. The
:trial court decided the other issues also but we are not concerned
with them as in the present appeal only the question of jurisdiction of civil courts to entertain the suit has been raised.
The respondent then went in appeal to the Additional District
.Judge.
The Additional District Judge held relying on certain
decisions of the Punjab High Court that civil courts had no jurisdiction to entertain a suit of this nature and therefore dismissed the
appeal. He also decided other points but we are not concerned
with them.
The respondent then went in second appeal to the High Court.
The learned Single Judge who first heard the appeal referred it
for decision to a larger Bench. The matter then went before a
Division Bench which noticed that there was some conflict between certain decisions of the Punjab High Court and therefore
referred the matter to a larger Bench. In consequence a Bench
-of three Judges was constituted to decide whether civil courts ~ad
jurisdiction in such a case. The learned Judges were of the view
that when a question arose whether any property was or was not
evacuee property, two matters had to be decided namely-(i)
-whether the particular person had or had not become evacuee and
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CUSTODIAN v. JAFRAN BEGUM tWanchoo, C.J.)
739'
(ii) whether the property in dispute belonged to him.
On the
first question they were of ~e view ~a~ the matter coul~ only
be determined by the Custodian and ClVll courts had nothmg to
do with it. On the second question they_ were of the view that
it might involve a simple question of fact or a complicated ques·
tion of law i.e. a question of title. They finally decided that the
question whether certain person was or was not evacuee was
determinable by the Custodian, but. the determination of the Custodian on a question of title if such, question arose was not final
and the question of title could be reopened in the civil court and
was to be finally determined by such court. They limited the
above decision by observing that a mere assertion of claim to any
property did not raise a question of title for such assertion might
rest on a simple allegation of fact which could be finally determined by ·the Cqstodian and that the question whether in a particular case a question of title did or did not properly arise had to be
decided on the faots of each case and no general rule about it
could be usefully laid down. On this view of the law they held
that in the particular case before them a complicated question of
law arose and therefore the suit was competent and the civil courts
had jurisdiction to entertain it. Thereupon the appellant obtained
special leave from this Court and that is how the matter has come
before us.
There have been a large number of cases in the Punjab High
Court on this question. We do not however propose to go into
them in detail, for it appears to us that the view taken in some
of them conflicts with the view taken in others. That is the reason
why a Bench of three Judges was constituted to go into the·matter
and we have already set out their decision.
These cases are :
F. Sahib Dayal v. Assistant Custodian of Evacuee Property( 1);
Firm Pariteshah Sadashiv v. Assistant Custodian Evacuee Property('); Duni Chand v. Ibrahim('); Kai/ash Chand v. Addi. Custodian General('); Narendra Kumar v. Custodian General(");
C!istodJan General v. Harnam Singh("); Ram Gopal v.
Banta
Smgh( ); Parkash Chand v. Custodian Evacuee
Property(8 );
Gurf!Dr~had, v. Asst. Custodian Genera/(9 ); and Custodian G~neral
~· R1kh1 .Ram('0 ). Some of these cases arose on writ petitions filed
in the Hi.gh Court. A distinction must be made between jurisdiction
o_f the HiJl~ Court under Art. 226 of the Constitution and jurisdicti?n of CIVIi courts about entertaining civil suits in matters of this
kmd. Whatever may be the interpretation of s. 46 to which we
shall address ourselves presently, the jurisdiction of the
High
Court under Art. 226 of the Constitution is not and cannot be
(I) (19S2) S4 Punj. L.R. 318,
(2) (19S2) S4 Punj. L. R. 468.
(3) (19s.\) S6 Punj, L.R. 2S7.
(4) (1955) 57 Punj. L.R. 440.
(5) A.l.R. 1956 Punj. 163.
(6} A.l.R. 1957 Punj, 58.
(7) (1958) 60 Punj L.R. 307,
(8) (1958) 60 Punj. L.R. 592.
(9) (19'9} 61 Punj. L.R. 137.
(l"l (1959) 61 Punj. L.R. 91S.
\
740
SUPRll:tdE COURT REPORTS
[1967] 3 S.C.R.
affected thereby.
Other cases arose out of suits and two views
seem to have prevailed in the High Court, one holding that suits
of this nature were barred while the other view was that where a
question of title arose, jurisdiction· of civil courts was not barred
under s. 46 of the Act.
It is necessary to consider the scheme of the Act before we
actually decide the question posed before us.
As is well known
the. Act had to be passed in order to deal with the enormous problem which arose on the division of the Punjab and large scale
niigration that took place from one side of the Punjab as it was
before 194 7 to the other side. Large numbers of Muslims migrated to that part of the ·Punjab which is now in Pakistan leaving
their properties in that part of the Punjab which is now in India.
It was to deal with this problem that the Act was passed, though
we may· add that there were earlier laws dealing with the same
matter, which were all ·repealed by the Act, wherever it was extended.
The Act defines "an evacuee" and also "evacuee property". "Evacuee property" is defined as meaning any property
of an evacuee whether held by him as owner or as a trustee or as
a beneficiary or as a tenant or in any other capacity. The definition also includes certain properties and excludes e¢rtain other properties, but we are not concerned with that. Section 4 of the Act
which is important provides that "the provisions of this Act and
of the rules and orders made thereunder shall have· effect notwithstanding anything inconsistent therewith contained in any other
law for the time being in force or in" any instrument having
1 effect by virtue of any such law". Sections 5 and 6
provide
for
appointment of Custodian-General,
Deputy
CustodianGeneral, and Assistant Custodian-General, Custodian, Additional Custodian, Deputy Custodian and Assistant custodian whose
duty it is to administer the Act. Section. 7 empowers the Custodian to give notice, where. he is of opinion tbat certain property
is evacuee property, to the person interested and after holding
such inquity into the matter as the circumstances of the. case permit, pass an order declaring any such property to be evacuee property. It is clear in view of the definition of "evacuee property"
to which we have already referred, that two questions will arise
in every case where the Custodian has to declare wh~ther a property is evacuee property. These two questions are : ( i) w~ethcr a
particular person has or has not become an evacuee and .( 11) whether the property in dispute belongs to him. Both these questions
have to be decided under s. 7 of the Act by the Custodian. Under
s. 8 any property declared to be evacuee property under s. 7 vests
in the Custodian from certain dates with which we are not concerned. Section 9 gives power to the Custodian to take possession of
evacuee property vested in him.
Section 10 provides for powers
and duties of the Custodian generally. Then follow certain secA
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CUSTODIAN v. JAFRAN BEGUM (Wanchoo, C.J.)
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tions which gi:ve special powers to the Custodian with respect to
the management of the property to which it is unnecessary to
refer. Section 16 provides for restoration of evacuee property by
the Central Government. Section 24 inter a/ia gives a right to a
person aggrieved by an order made under s. 7 by the Custodian
to appeal. Section 27 gives power of revision to the CustodianGeneral either on his own motion or orr application made to him
to call for the record of any proceeding in order to satisfy himself as to the legality or propriety of any order passed therein
and to p!ISs such order in relation thereto as he thinks fit. Section 28 which is also important reads thus :
"Save as otherwise expressly provided in this Chapter every order made by the Custodian-General, Custodian, Additional Custodian, Authorised Deputy Custodian, Deputy Custodian or Assistant Custodian shall be
final and shall not be called in question in any court by
way of appeal ·or revision or in any original suit, application or execution proceeding."
Section 28 thus clearly bars the jurisdiction of any court to entertain an ,original suit with respect to an order passed by the authorities mentioned therein.
Section 46 with which we are particularly concerned is in
these terms :
"Save as otherwise expressly provided in this Act, no
civil or revenue court shall have jurisdiction-
(a) to entertain or adjudicate upon any question
whether any property or any right to or interest in any
property is or is not evacuee property; or
( c) to question the legality of. any action taken by
the Custodian-Genera! or the Custodian under this Act;
or
( d) in respect of any matter which the Custodian
General or the Custodian is empowered by or under
this A~t to determine."
A bare reading of s. 46 shows how widely it is worded and how
clearly it bars the jurisdiction of civil and revenue
courts in
ml!tters specified therein.
A perusal of these provisions in our
opinion shows that the Act is a complete code in itself in the
ml)tter. of dealing with evacuee property.
As observed by this
Court Ill Ram Gopa/ Reddy v. Additionttl Custodian('), "the
~ct thus provides a eomplete machinery for a person interested
m any property to put forward his claims before the authorities
.com~tent to deal .. with the. question and to go in appeal and
(I} [1966] 3 S.C.R. ZJ4.
742
SUPREME COURT REPORTS
[1967) 3 S.C.R.
in revision if the person interested feels aggrieved. Having provided this complete machinery for adjudication of all claims
with respect to evacuee property, the Act, by s. 46, bars the
jurisdiction of civil or revenue courts to entertain or adjudicate
upon any question whether any property or any right to or interest in any propenty is or is not evacuee property".
It is true
that the Act is concerned with the administration of evacuee property and a large number of its provisions deal with actual administration of such property. But before the authorities under
the· Act take on: the duties of administration of evacuee property
some one has to detennine what properties are evacuee properties of which the authorities provided under the Act can take over
administration. The Act itself provides a machinery for determining what properties are evacuee properties. Section 7 is that
provision which gives power to the Custodian to determine what
properties are evacuee properties.
The Custodian
determines
that .after notice to persons interested and after such enquiry as
the circums•ances of the case pennit. It is thereafter that the Custodian declares certain propertY to be evacuee property and on
such declarat:J.on the property vests in the Custodian under s. 8.
Then we have the provision of appeal under s. 24 and revision
under s. 27 of the Act so that any person aggrieved by the
order of the Custodian has two forums open to him to ventilate
his grievance. Clearly the Custodian under s. 7 acts as a quasijudicial authority and so does the authority hearing appeals under
s. 24 and the Custodian-General hearing revisions under s. 27.
Thus all persons interested get a hearing under s. 7 and all persons aggrieved have a right of appeal under s. 24 and can go in
revision. under s. 27. That is why s. 28 provides that every order
made by the authorities indicated therein shall be final and shall
not to be called in question in any court by way of appeal, revision
or in any original suit, application or execution proceeding. The
legislature was not however satisfied merely by giving finality to
the orders of the authorities mentioned ins. 28; it went on to bar
specifically the jurisdiciion of civil and revenue courts in three
matters indicated in s. 46. Under cl. (a) of s. 46, jurisdiction
of civil and revenue courts is expressly barred and they are forbidden to entertain or adjudicate upon any question ·whether any
property or any right to or interest in any property is or is not
evacuee property.
Under s. 7 the Custodian has to detem1ine whether certain
property is or is not evacuee property. To determine that he is
to pnd out whether a: particular person is or is not an ev~cuee.
Having found that, he is to find whether the property in dispute
belongs to that person. If he comes to the conclusion that the
property belongs to that person, he declares the property to be
evacuee property. Now there is nothing in s. 7 which shows that
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CUSTODIAN v. JAFRAN BEGUM (Wanchoo, C.J.)
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the Custodian cannot enter into all questions whether of fact or of
law in deciding whether certain property belongs to 11n evacuoo.
Ihere is no reason to hold that under s. 7 the Custodian cannot
dccidi: what are called complicated questions of law or question~
of title. It is difficult to see how the Custodian c.an avoid deciding a question of title if it is raised before him in p1'0ceedings
under s. 7. Nor do we find it possible to make a distinction between questions of fact and questions of law that may arise befor~
the Custodian under s. 7. If he has the power to decide ques·
tions of fact. which the learned Judges in the order under appeal
,ccm to concede, we do not see why he should not have the
power of deciding questions of law also. Further if the learned
J Ltdges in the order under appeal arc correct in saying tha.t if a
question of title rests on a simple allegation of fact it can be
finally determined by the Custodian, we cannot sec on what
reusoning, it can be said that where a question of title depend\
on a question of law it cannot be finally decided under s. 7 by the
Custodian.
His power under s. 7 is to decide whether certain
property is evacuee property or not and there is nothinp; in s. 7
which restricts that power to deciding only questions of fact ..
There c•in in our opinion be no escape from the conclusion that
under s. 7 when deciding whether certain property is evacuee
property or not. the Custodian has to decide all questions, whether of fact or law, whether simple or complicated, which aris~
therein.
That power cannot be denied on the ground that the
Custlldian, which term for these purposes includes the Dcput~
Custodian or the Assi~tant Custodian may not be an experienced
.iudicial oftkcr and therefore may not be in a position to decide
questions of title. His decision is not final and is open to. appeal
under s. 24 and to revision under s. 27. lf he makes a mistake
the two higher authorities who, we arc told, have always been
recruited from experienced judicial officers can correct him. lt
is after the matter has been decided under s. 7 and s. 24 if an
appeal is filed and under s. 27 if a revisilln is filed, that s. ?.~
gives finality to orders of the authorities mentioned therein and
lays down that such orders shall not be called in question in an~
court by way of appeal or revision Ol' in any original suit, application or execution proceeding. As we have already said,
the
legislature
was
not satisfied
by
merely
conferrini:
finality on such orders; it went further
and
expressly
barred the jurisdiction of civil and revenue courts under
s. 46 to entertain or adjudicate upon any question whether an~
property or any right to or interest in any property is or is no(
evacuee property. These words arc very wide and clear and bar
t.hc courts from entertaining or a~judicating upon any such que'-
tron.
Where therefore the qucstton whether certain propcrtic'
;ire evacuee properties has been decided under s. 7, etc. whcthe;
that decision is based on issues of fact or issue~ of law, th~ jurisdicvi Sllp. CJ.'67 . 4
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SUPREME COURT REPORTS
[1967] 3 S.C.R.
tion of courts is clearly barred under s. 46 (a). It is difficult to sec
how a distinction can be drawn between decisions under s. 7 based
on questions of fact and decisions based on questions of law. The
decision is made final whether based on issues of law or of fact
by s. 28 and s. 46 bars the jurisdiction of civil and revenue
courts in matters which are decided under s. 7 whatever may be
the basis of decision, whether issues of fact or of law and whether
simple or complicated.
It may be added that the only question to be decided under
s. 7 is whether the property is evacuee property or not and the
jurisdiction of the Custodian to decide this question does not depend
upon any finding on a collateral fact. Therefore there is no scope
for the application of that line of cases where it has been held
that wt.ere the jurisdiction of a tribunal of limited jurisdiction depends upon first finding certain state of facts, it cannot give itself
1urisdiction on a wrong finding of that state of fact. Here under
s. 7 the Custodian has to decide whether certain property is or
is not evacuee property and his jurisdiction does n.ot depend upon
any collateral fact being decided as a condition precedent to his
assuming jurisdiction. In these circumstances, s. 46 is a complete bar to the jurisdiction of civil or revenue court~ in any matter
which can be decided under s. 7. This conclusion is reinforced
by the provision contained in s. 4 ( 1) of the Act which provide'
that the Act overrides other laws and would thus override s. 9
of the Code of Civil Procedure on a combined reading of ss. 4.
28 and 46.
But as we have said already, s. 46 or s. 28 cannot
bar the jurisdiction of the High Court under Art: 226 of the
Constitution, for that is a power conferred on the High Court
under the Constitution.
It now remains to refer to certain cases of .other courts in this
connection. In M. S. Namazi v. Deputy Custodian of E. P.('),
the Madras High Court was mainly considering the constitutional
validiey of the Act.
At p. 934, however, Rajamannar C. J.
made t,he following observations :-
"There is however one thing about which I am not
quite clear. The Ordinance no doubt declares the
order of the Custodian declaring any property to be
ev'aciiee property as final. That might be so in one
sense, i.e., if any property belongs to a person who has
been declared to be an evacuee within the meaninr of
the definition in the Ordinance, then the Custodian's
order would be final. But, does the finality amount to
an adjudication on title in case there is any dispute?
Take for instance the case. where a property is declared
to be evacuee property on the assumption that it belongs to A who is an evacuee. Does it mean that some
(I) .4.I.R. 1951 Mad. 930.
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CUSTODIAN v. JAFRAN BEGUM (Wm1clroo, C.J.)
745
one else cannot say that the property really does not
belong to the evacuee but belongs to himself who is not
an evacuee? I am inclined to hold that the order of the
Custodian or the notification under s. 7 of the Ordinance
is not final, in case of disputed title."
These observations themselves show that the learned Chief Justice was not finally deciding the matter for the question did not
directly arise before him. He does not seem to have considered
the matter in the light of s. 4 and s. 46 of the Act. In any
case in view of what we have said above these observations cannot be accepted as laying down correct law.
In Abdul Majid Haji Mohmed v. P. R. Nayak,(') the main
question for consideration was again the constitutional validity
of the Act. That was a case which arose on a writ petition. As
we have already said,. s. 46 cannot bar the jurisdiction of th~
High Court under Art. 226. But during the course of the judgment, Chagla C. J. referred to the decision of the Privy Council
in The Secretary of State v. Mask & Co.(') and observed that
it was well settled that "even if jurisdiction of courts is excluded.
civil courts have jurisdiction to exmnine into cases where the
provisions of the Act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of judicial procedure". We do not think it necessary to go
into that question in the present appeal, for no such facts have
been alleged in the present suit which would bring it within the
ratio of the decision in Mask & Co.'s case('). Normally jurisdiction of civil courts to entertain or adjudicate upon such question
relating to evacuee properly would be barred under s. 46; the
question whether in some extreme circumstances civil courts may
have jurisdiction inspite of s. 46 need not be decided just now.
However we may add that in Firm of /l/11ri Subbayya Cheuy v.
State of Aml/Jra Pradesh(') this Court observed at p. 763 t\wt
the observations in Mask & Co.'s case(') were in some respect>
loo widely stated.
The next case to which reference may be made is S. M. 7aki
v. The State of Bi/tar('). There the question was whether the
property was evacuee and the court held that the Act had provided adequate remedies and that s. 46 must be construed tomean that the jurisdiction of a civil or revenue court was ousted
even if the Custodian had wrongly decided that any property was
an evacuee property. The distinction between those cases where
a collateral fact is to be decided before a tribunal of limited
jurisdiction assumes jurisdiction and those cases where the tribunal has to decide the whole matter itself was rcfered to and
(I) A.l.R. 1951 Bom. 440.
(3) [t9M] I S.C.R. 7.12 .
(2) A.t.R. 1941 P.C. 105.
14) 1\.l.R. 1953 Pat. 112.
7 ·I l~
SL'l'RHrn COURT REPORTS
[1967] 3 s.c.R.
Rumaswam i J. (as he the11 was) l'ightly held that under s. 7 the
whole nrntte1· has to be decided by the Custodian and there was
no question of the decision of any collateral fact os a condition
pr~•cdcnt to assumption of jurisdiction by the Custodian.
The last case to which reference may be made is Kl1a/il
Ahmad Khan v. Malka Mehar Nigar Beg11m( 1). The questian
there was somewhat different, namely, whether s. 46 bars the
jurisdi9tion of the civil court in a .pending matter. The majority
of 1be Judges in that case observed that in a case where a matter
had been adjudicated· upon in accordance with the provisions of
the Act it might not be possible for courts to interfere by reason
of the provisions of s. 46 of the Act.
This case therefore to
some extent is in line with the view we have taken.
On a careful consideration therefore of the authorities cited
before us, we arc of opinion that generally speaking the juris·
diet ion of the civil or revenue court is barred under s. 46 and no
such court can entertain any suit or adjudicate upon any ques·
tion whether ;1 particular property or right to or interest therein
is nr is not evacuee property.
We therefore allow the appeal
:ind hold that in the view we have taken the suit was not main·
t•iinable in the civil court. The matter will now go back to the
Single Judge of the High Court to, pass order in confonnity with
th~ view we have expressed. As the respondent has not appeared
in this Coutt we pass no order as to costs.
V.P.S.
Appeal allowed.
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