Uttarakhand High Court
Hukum Singh Rawat And Another ... ... vs State Of Uttarakhand And Others on 12 April, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 732 of 2022
Hukum Singh Rawat and Another ... Petitioners
Vs.
State of Uttarakhand and others ... Respondents
Advocates : Mr. M.K. Goyal, Advocate, for the petitioners
Mr. Suyash Pant, Standing Counsel, for the State
Hon'ble Sharad Kumar Sharma, J.
The District Help and Rehabilitation Officer, Dehradun, vide its order dated 02.01.2014, as it has been recorded in the records of Case No. 159DRR/2013, has passed an order dated 09.12.2013, which has been put to challenge in the present writ petition at a much belated stage. Though, apparently this challenge given to this order suffers from the vices of laches and if it is read in correlation with the other reliefs which has been sought by the petitioner, in fact, they would fall to be within an ambit of consideration of facts and law both, which could only be gone into by way of proceedings to be held before the regular competent Civil Court under Section 9 of the Code of Civil Procedure.
2. In order to overcome the said observation made by this Court, the learned counsel for the petitioners had made a reference to a judgment as reported in AIR 1968 SC(1) 169, where in the matters of Custodian, Evacuee Property, Punjab and others Vs. Jafran Begum, as rendered in Civil Appeal No. 772 of 1964, the Hon'ble Apex Court was ceased with the proceedings which were emanating from the orders passed under Section 46, 28, 7 and 4 of the Administration of Evacuee Property Act, 1950. The learned counsel for the 2 petitioner in order to sustain his writ petition under Article 226 of the Constitution of India, had made reference to para 9 of the said judgment wherein from it he drawn an inference, that as against the order pertaining to the proceedings, which are held under the said Act of 1950, the regular proceedings before the Civil Court would be barred in view of the principles, which have been laid down therein in para 9 of the said judgment, which is extracted hereunder:-
"9. Under S. 7 the Custodian has to determine whether certain property is or is not evacuee property. To determine that he is to find out whether a particular person is or is not an evacuee. 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 the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to an evacuee. There is no reason to hold that under S. 7 the Custodian cannot decide what are called complicated questions of law or questions of title. It is difficult to see how the Custodian can avoid deciding a question of title if it is raised before him in proceedings under S. 7. Nor do we find it possible to make a distinction between questions of fact and questions of law that may arise before the Custodian under S. 7. If he has the power to decide questions of fact, which the learned Judges in the order under appeal seem to concede, we do not see why he should not have the power of deciding questions of law also. Further if the learned Judges in 'the order under appeal are correct in. saying that if a question of title rests on a simple allegation of fact it can be finally determined by the Custodian, we cannot see on what reasoning, it can be said that where a question of title, depends 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 nothing in S. 7 which restricts that power to deciding only questions of fact. There can 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 arise therein. That power cannot be denied on the ground that the Custodian, which term for these purposes includes the Deputy Custodian or the Assistant Custodian may not be an experienced judicial officer and therefore may not be in a position to decide- questions of title. His decision is not final 3 and is open to appeal under S. 24 and to revision under S. 27. If he makes a mistake the two higher authorities who, we are told, have always been recruited from experienced judicial officers can correct him. It is after the matter has been decided under S. 7 and S. 24 if an appeal is filed and under s. 27 if a revision is filed, that S. 28 gives finality to orders 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 execution proceeding. As we have already said, the legislature was not satisfied by merely conferring 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 any property or any right to or interest in any property is or is not evacuee property. These words are very wide and clear and bar the courts from entertaining or-adjudicating upon any such question. Where therefore the question whether certain properties are evacuee properties has been decided under S. 7, etc., whether that decision is based on issues of fact or issues of law, the jurisdiction of courts is clearly barred under S. 46 (a). It is difficult to see 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.
3. The argument of the learned counsel for the petitioners pertaining to the bar attracted by the implications of para 9 of the said judgment, this Court is of the opinion, that it is not acceptable by this Court for the reason being, that if the ratio laid down in para 9 of the said judgment is taken into consideration, it reads as under:-
"the decision is made final whether based on the issues of law or of fact by Sections 28 and 46 bars the jurisdiction of civil and revenue Courts in matters which are decided under Section 7".4
4. In relation thereto, I am of the view that it was a clear mandate of the aforesaid judgment, the restriction from approaching to the Civil Court is only qua the decision which has been taken in proceedings which are held under Section 28 and 46 in the matters which are decided finally under Section 7 of the Act of 1950, irrespective of the nature of its decision.
5. In the case at hand, the order which has been put to challenge; is an order passed by the District Help and Rehabilitation Centre, Dehradun. But, even this order, which is said to have been passed is by the District Help and Rehabilitation Officer, Dehradun, on its simplicitor reading, it cannot be said that this order challenge it was falling within the ambit of a case which has been decided under Sections 28 and 46 of the Act of 1950, in order to attract the bar of Section 46 of approaching the Civil Court; because this Court is of the view, that the order passed by the said Authority will not be an order which would be falling to be an adjudication made within the ambit of Section 7 of the Act, where Section 7 of the Act, contemplates issuance of a notification by the custodian of the evacuees property, within the meaning of the Act, he may after causing notice to the public at large or to any person who is interested over the evacuees property may conduct an inquiry and pass an order in the circumstances, as the case may permit for declaring such property as to be an evacuees property. Meaning thereby, when Section 7 has been conferred a right on a custodian, for declaring the property as to be an evacuees property in order to attract the 5 bar, by virtue of the implications of para 9 of the judgment referred to hereinabove, this Court is of the view, that the order under challenge will not fall within the scope of either under Section 46 or 28, nor it happens to be having any trapping of being a decision rendered by the custodian of the evacuees property as it has been defined under sub Section
(c) of Section 2 of the Act.
6. In that eventuality, and for the reasons aforesaid, I am of the view that since the order does not fall to be within the ambit of Section 7 and it has not been passed by the custodian, as defined under sub Section (c) of Section 2 of the Act and since it is not in a shape of a declaration made by virtue of the notification issued under Section 7, declaring the property as to be an evacuees property, the writ would not be the remedy. The petitioner would have to work out his remedy as available to him which would be decided in accordance with law and the ratio of para 9 of the aforesaid judgment will not be available to the petitioner on account of the bar of jurisdiction created by Section 46 of the Act.
(Sharad Kumar Sharma, J.) 12.04.2022 Mahinder/