Patna High Court
Bibi Abeda Khatoon And Anr. vs Assistant Custodian Of Evacuee ... on 22 April, 1965
Equivalent citations: AIR1966PAT29, AIR 1966 PATNA 29
JUDGMENT Ramratna Singh, J.
1. This appeal by the plaintiffs is directed against the decision of an Additional Subordinate Judge, Arrah, dismissing a suit for declaration that an order dated the 22nd December 1952 passed by the Assistant Custodian of Evacuee Property, Arrah (defendant No. 1) in Evacuee Case No. 65 of 1952 (State v. Bibi Sadiqua) was without jurisdiction, and, therefore, a pucca house (described in Schedule 'A' to the plaint) at village Koilwar did not vest in the defendants, defendant No. 2 being the Union of India in the Relief and Rehabilitation Department.
2. The disputed house originally belonged to one Bibi Sadiqua, wife of Fazal Karim of village Koilwar, in the district of Shahabad. She sold this house to the plaintiffs for a sum of Rs. 10,000/- in the name of Bibi Abeda Khatoon (Plaintiff No. 1), wife of plaintiff No. 2, under a registered sale-deed dated the 29th December, 1950 (Ext. 1). On this sale-deed, the Sub-Registrar who registered the document made an endorsement that he gave a warning to the transferee that the transferor was an intending evacuee or the property sought to be transferred was an evacuee property and that the transferee will take the risk in purchasing the property. Evacuee Case No. 65 of 1952 was started by the Assistant Custodian at Arrah and notice was issued under Section 7 (1) of the Administration of Evacuee Property Act, 1950, on the 30th May 1952 to Bibi Sadiqua. This notice could not, however, be served, as it was reported that Bibi Sadiqua was not there and her husband had left India for Pakistan. Under a subsequent order dated the 3rd July 1952, a notice seems, however, to have been served by affixing the notice at the aforesaid house, and on the 25th July 1952, an objection was filed before the Assistant Custodian in the aforesaid evacuee case on behalf of Bibi Abeda Khatoon, which was signed in her own pen. In that objection, she said that she had received information about the evacuee proceeding against Bibi Sadique and that she had learnt that a notice in the name of Bibi Sadiqua had also been taken to Koilwar, whereby Bibi Sadiqua was called upon to show cause why orders should not be passed declaring her to be evacuee and all her properties to be evacuee properties under the provisions of the said Act, on the ground that she had opted to Pakistan. Thereafter Bibi Abeda Khatoon stated about her purchase and her possession over the house as also about improvements and repairs made by her in the said house and prayed that, inasmuch as the proceeding was not warranted by law. the same may be dropped. Thereafter, by the order dated the 25th July 1952 of the Assistant Custodian (Ext. B), Bibi Abeda Khatoon was directed to produce evidence in support of her statement by the 16th August 1952. No further step was, however, taken by the plaintiffs; and ultimately on the 22nd December 1952, the Assistant Custodian passed an order, the relevant extract of which is re-produced below :
"It appears from enquiry that the O. P. left for Pakistan on account of the setting up of the dominions of India and Pakistan and has since been residing there with the result that she is unable to supervise or manage her properties lying within the Sadar sub-division of the district of Shahabad. She is therefore declared an evacuee within the meaning of Clauses (i) and (ii) of Section 2 (d) of the Administration of Evacuee Property Act, 1950. Consequently all her properties are evacuee property within the meaning of Section 2 (f) of the Act. Accordingly, under Section 7 (1) of the Act, I declare all her properties including those described below as evacuee property.
Issue notifications under Section 7 (3) of the Act, Also issue notice in the prescribed form to the occupants under Sub-clause (4) of Section 8 of the Act to surrender possession of properties in question by 22-1-53."
Below this order, is the description of the properties, namely, the aforesaid pucca house at Koilwar and some kasht land in the same village. A notification under Section 7 (3) of the Act was made for general information in November 1956 (Ext. A/1).
3. In the meantime, it appears that plaintiff No. 1 Bibi Abeda Khatoon made an application under Section 40 of the Act for confirmation of her right, title and interest in respect of the house on the basis of the registered sale deed, but this application was dismissed on the 17th September 1956, on merits as well as on the technical ground of limitation. It was stated in this order by the Assistant Custodian that it had been conclusively proved that Bibi Sadiqua had migrated to Pakistan sometime in 1946-47 and that she was living with her husband, the Evacuee case was started on 3-5-1952 and finally disposed of on 22-12-1952; and, inasmuch as the petition under Section 40 of the Act had been filed on 7-5-1953, that is, more than sixty days after the order dated the 22nd December 1952, it was barred by limitation, particularly in view of the fact that there was no application for condonation of the delay. There was an appeal to the Custodian against this order, and this appeal was also dismissed on 24-11-1956 (See Exts. B/1 and E). A revision against the appellate order was dismissed by the Deputy Custodian-General of Evacuee Property on the 12th August 1957. Thereafter, the present suit was instituted on the 17th May 1958.
4. Both the defendants filed a common written statement and contended that the orders of the Assistant Custodian and other authorities were quite legal and totally within their respective jurisdiction. It was further asserted that the present suit was barred by the provision of Sections 28 and 46 of the said Act.
5. The learned Additional Subordinate Judge accepted the contentions of the defendants and dismissed the suit.
6. The only contention of Mr. K. B. N. Singh, who appeared for the appellants is that the order dated the 25th July 1962 declaring Bibi Sadiqua to be an evacuee and the disputed house to be an evacuee property is without jurisdiction; and he has urged several grounds in support of this contention.
7. It is well settled that the said Act is a Code by itself. It was conceded that the Act of 1950, as in force prior to the amendment in 1953, applies to the instant case. The impugned order in the instant case was passed under Section 7; and Section 24 provides for appeal from orders under Section 7, 16 or 40 of the Act. Section 25 provides for appeals from other orders. Section 26 permits the person aggrieved to apply for review or revision to the Custodian, Additional Custodian or Authorised Deputy Custodian. Section 27 confers powers of revision on the Custodian-General. Section 28 gives finality to the orders passed by the aforesaid officers on appeal or revision, and reads as follows :
"28. Finality of orders under this Chapter (Chapter V)--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 46 of the Act enacts :
"46. Jurisdiction of Civil Courts barred in certain matters--Save as otherwise expressly provided in this Act, no Civil or Revenue Court shall have jurisdiction :
(a) to entertain or adjudicate upon any question whether any property or any right to, or interest in, any property is or is not evacuee property; or
(b) ..............................
(c) to question the legality of any action taken by the Custodian-General or the Custodian under this Act; or
(d) in respect of any matter which the Custodian-General or Custodian is empowered by or under this Act, to determine."
In the context of the aforesaid provisions, Sections 28 and 46 of the Act must be construed to mean that the jurisdiction of a Civil or Revenue Court is ousted even if the Custodian, Additional Custodian, Deputy Custodian or Assistant Custodian has wrongly decided that any person is an evacuee or any property is an evacuee property under the Act.
8. It is also well settled that, in spite of the provisions contained in Sections 28 and 46 of the Act, any order of the aforesaid officers, which is without jurisdiction, can be challenged in a Civil Court. The distinction between absolute lack of jurisdiction and I irregular exercise of jurisdiction must also be borne in mind. This distinction has been clearly pointed out by Full Bench of this Court in Ramranbijyaya Prasad Singh v. Ram Kawal Upadhya, ILR 26 Pat 748 at 754 : (AIR 1949 Pat 139 at p 140) in these words : "In the approach to this question it is essential to keep in mind the important distinction between an absolute want of jurisdiction and an irregular assumption of jurisdiction. By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. As pointed out by West, J. in Amritray Krishna v. Balkrishna Ganesh, ILR 11 Bom 488 'jurisdiction consists in taking cognizance of a case involving the determination of some jural relation, in ascertaining the essential points of it, and in pronouncing upon them'. Objections affecting jurisdiction must relate either to the person, the place or the character of the suit. If a Court has competence in these respects, it may exercise jurisdiction and does exercise it whether correctly or erroneously in dealing judicially with a cause placed before it. If however by reason of any limitation imposed by statute, character, or commission, a Court is without jurisdiction to entertain any particular action or matter, neither the acquiescence nor the express con-
sent of the parties can confer jurisdiction upon the Court, nor can consent give a Court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled (R. v. Essex Justices, (1895) 1. Q B 38, see also Scrutton L. J. in Coleshill v. Manchester Corporation, (1928) 1 K B 776).
A different question, however, arises when it is suggested that a Court in the exercise of the jurisdiction, which it possesses, has not acted according to the mode prescribed by the statute. If such a question is raised, it relates obviously not to the existence of jurisdiction but to the exercise of it in an irregular or illegal manner. In such a case the maxim 'consensus tollit errorem' applies. In Pisani v. Att. Gen. Gibralter, (1874) 5 P C 516, the Judicial Committee pointed out that where there was jurisdiction over the subject-matter but non-compliance with the procedure prescribed as essential for the exercise of the jurisdiction, the defect might be waived. In Ledgard v. Bull, 13 Ind App 134 (PC) the Judicial Committee held on the facts of the case that there was no want of jurisdiction but only an irregularity as to its existence. In pronouncing the Committee's opinion Lord Watson stated--'When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit.'
9. The above principles were not disputed by Mr. K. B. N. Singh. But he submitted that the order of the Assistant Custodian dated the 22nd December, 1952, was without jurisdiction, because the notice under Section 7 (1) of the Act was not issued to or served upon the plaintiffs who were interested parties. Section 7 reads as follows :
"7. Notification of evacuee property--(1) Where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice thereof to be given in such manner as may be prescribed to the person interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property.
(2) where a notice has been issued under subsection (1) in respect of any property, such property, shall, pending the determination of the question whether it is evacuee property or otherwise, be incapable of being transferred or charged in any way, except with the leave of the custodian, and no person shall be capable of taking any benefit from such transfer or charge except with such leave.
(3) The Custodian shall, from time to time, notify, either by publication in the Official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under Sub-section (1)."
It was held by a Bench of this Court in Surajdeo Narain Singha v. Custodian, Evacuee Property, Bihar, AIR 1958 Pat 29 that non-compliance with the provisions of Section 7 render the order declaring any property to be evacuee property ultra vires and without jurisdiction. The fulfilment of the two conditions, namely, the conditions of notice to the person interested in the property and the holding of such enquiry into the matter as the circumstances of the case permit, are conditions precedent to the exercise of jurisdiction by the Custodian; and if either of these two conditions is not complied with, then the order passed by him under Section 7 (1) of the Act, would be an order without jurisdiction.
10. It is true that, in the instant case, no notice under Section 7 (1) of the Act was issued to or served upon either of the plaintiffs; but this fact does not matter, because Bibi Abeda Khatoon, the purchaser under the sale deed dated the 29th December 1950, herself filed an objection petition on the 25th July 1952 before the Assistant Custodian and requested him to drop the proceeding. She was asked by the Assistant Custodian to produce evidence in support of her statement in the objection petition by the 16th August 1952; but she did not appear after the 25th July 1952 in Evacuee Case No. 65 of 1952, and on the 22nd December 1952, orders were finally passed declaring the house in question to be an evacuee property on the ground that Bibi Sadiqua had been residing in Pakistan since the setting up of the dominions of India and Pakistan. The object of notice under Section 7 (1) of the Act to an interested person is to give him or her an opportunity to be heard by the Assistant Custodian before the matter is finally decided and, therefore, if such a person appears before the Assistant Custodian, even without having received a notice, the object is achieved and that person cannot be allowed to challenge the order to be without jurisdiction for want of service of notice.
In this connection, it is profitable to refer to some decisions in respect of the effect of non-issue or non-service of notice under Order 21, Rule 22, Code of Civil Procedure, against a judgment-debtor or his legal representatives. It is well settled that the issue of notice under this rule gives jurisdiction to the executing Court to proceed further and that an execution proceeding, in a case of non-issue or non-service of notice under that rule, is void in the sense that it is not valid and operative against the judgment-debtor or his legal representatives. On the basis of a large number of decisions of this Court, it was held by a Bench in Raj Kishore Prasad v. Subak Narain Singh, A I R 1959 Pat 89 that, if the judgment-debtor has put up his appearance even without the issue of any notice under Order 21, Rule 22, and has placed his objections against the execution, then it is no more open to him to challenge the sale on the ground that it is void and without jurisdiction as the notice under Order 21, Rule 22 had never been issued to him. A Bench of this Court decided in Mohammad Umar v. Moti Chand, AIR 1952 Pat 244 that there is no want of jurisdiction in consequence of non-service of a notice under Order 21, Rule 22, : where a notice had, in fact, been issued and it was found that the judgment-debtor had knowledge of the fact of issue of notice, as proved by his appearing and contesting the execution. Of course, in the instant case, no notice under Section 7 (1) of the Administration of Evacuee Property Act was issued to either of the two plaintiffs; but the material thing is the service of notice and, therefore, the principle underlying the above decision applies to the instant case, in view of the fact that Bibi Abeda Khatoon had appeared before the Assistant Custodian and had filed an objection petition.
11. Mr. B. D. Singh who appeared for the respondents relied on a decision of the Supreme Court in Aniyoth Kunhamina Umma v. Ministry of Rehabilitation, Government of India, AIR 1962 S C 1616 in respect of a case under the Administration of Evacuee Property Act. In that case, the petitioner's husband, who had gone away to Pakistan, had transferred his right, title and interest in respect of some property in favour of the petitioner, who was his wife. In the proceeding to declare the property to be evacuee property, : notices were issued against both the husband and the wife. The husband did not appear, but the petitioner appeared before the Assistant Custodian and contested the assertion that the property was an evacuee property. The question was, however, decided against her by the Assistant Custodian as also by the superior authorities, to whom she went up in appeal and revision. In the petition under Article 32 of the Constitution before the Supreme Court, the petitioner contested the validity of the notice under Section 7 (1) of the Act issued on the 8th December, 1954, on the ground of non-compliance with certain rules. It was argued on her behalf that the invalidity of the notice issued under Section 7 of the Act went to the root of jurisdiction of the subsequent orders. Their Lordships of the Supreme Court, however, thought that no question of lack of jurisdiction was involved in that case and observed that, though the petitioner appeared in response to the notice, she raised no point of jurisdiction. Mr. K. B. N. Singh distinguished this case on facts; and I agree with him that the decision in that case does not apply to the facts of the instant case. But the fact that Bibi Abeda Khatoon appeared before the Assistant Custodian in time to contest the assertion that the house in question was evacuee property is sufficient to support the contention of the respondents that the order dated the 22nd December i952 passed by the Assistant Custodian cannot be said to be without jurisdiction for failure to issue any notice to the plaintiffs; and the first contention raised by Mr. K. B. N. Singh must fail.
12. The next ground urged by Mr. K. B. N. Singh is that, in the notice to Bibi Sadiqua, no ground as required by Rule 6 of the Rules made under the Act, was given. He submitted that the reason, namely, that she had opted for Pakistan, was not at all clear. He submitted that the word "opted" was used with reference to the option exercised by the servants of the Government of India before the partition of the country. That is true; but that does not mean that the word "opted" cannot be used in its ordinary sense with reference to persons who are not Government servants. The word "opt" means to make a choice, especially of nationality, when territory is transferred; and what was meant by the notice--(Ext. A) to Bibi Sadiqua was that she had migrated to Pakistan. It will be recalled that even in the objection petition of Bibi Abeda Khatoon (Ext. C), it was mentioned that a notice in the name of Bibi Sadiqua had been served in the village at Koilwar. The relevant portion of this notice (Ext. A) reads as follows :
"Whereas there is credible information in possession of the Custodian that you are an Evacuee under the Administration of Evacues Property Act on account of the grounds mentioned below :
And whereas it is desirable to hear you in person.
Now, therefore, You are hereby called upon to show cause (with all material evidence on which you wish to rely) why orders should not be passed declaring you an evacuee and all your property as evacuee property under the provisions of (he said Act. The hearing of your case is fixed before the undersigned on 25-7-1952 at 10.30 a. m. grounds--As you have opted to Pakistan."
13. This is substantially in accordance- with Form No. 1 prescribed under Rule 7 (1) of the Rules for notice under Section 7 (1) of the Act.
14. Then Mr. K. B. N. Singh submitted that the grounds given in the definition of the word "evacuee" in Section 2 (d) of the Act were not "mentioned in the notice (Ext. A) issued to Bibi Sadique. Mr. B. D. Singh submitted that Bibi Sadique was declared an evacuee on the grounds mentioned in Clauses (i) and (ii) of Section 2 (d) of the Act, which are re-produced below :
"(d) 'evacuee' means any person-
(i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances, leaves or has, on or after the 1st day of March, 1947, left, any place in a State for any place outside the territories now forming part of India, or
(ii) who is resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property in any part of the territories to which this Act extends, or whose property in any part of the said territories has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by an unauthorised person."
The fact that Bibi Sadique had opted for Pakistan is sufficient compliance with Clause (i) of Section 2 (d) of the Act.
15. Another ground urged by Mr. K. B. N. Singh was that there is nothing to indicate that any inquiry was held before the house was declared to be an evacuee property and Bibi Sadique an evacuee. The relevant portion of the notice (Ext. A) quoted above states that there was credible information in possession of the Custodian ; and such a statement implies that a preliminary inquiry had been held before the said notice was issued. Then in the final order dated the 22nd December 1952, it is clearly stated that an inquiry had been made and it was found that Bibi Sadique had left for Pakistan on account of the setting up of the dominions of India and Pakistan and had since then been residing there, and on account of her permanent residence in Pakistan, she was unable to supervise or manage her properties lying within the Sadar sub-division of the district of Shahabad; admittedly village Koilwar is within that subdivision. This ground also, therefore, fails.
16. The last ground urged by Mr. K. B. N. Singh is that the property in dispute had not been described in the notice. The notice (Ext. A) speaks of all the properties of Bibi Sadiqua. Of course, these properties are not described in the notice; but it is not the case of the plaintiffs that anybody was misled by this non-description of the property; rather it is established that the plaintiffs, who were interested in the house, were not at all misled, as appears from the objection petition of Abeda Khatoon dated the 25th July 1952. Further, they were also made aware by the Sub-Registrar's endorsement on the sale deed (Ext. 1) that the vendee was taking the risk of purchasing an evacuee property. Hence, this ground as well fails.
17. No other ground was urged by Mr. K. B. N. Singh in this Court.
18. In view of the aforesaid findings, the Assistant Custodian was competent to pass the impugned orders and therefore, the Civil Court has no jurisdiction to interfere with the said order. Hence, there is no merit in this appeal and the same is dismissed with costs.
Bahadur, J.
19. I agree.