Jammu & Kashmir High Court
Tariq Hameed Kara vs Ghulam Mohi-Ud-Din Wani And Ors on 7 February, 2005
HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR C.Rev. 140 of 1999 Tariq Hameed Kara petitioner Ghulam Mohi-ud-din Wani & Ors. respondent !Mr.Z.A.Qureshi, Advocate ^Mr.M.H.Attar, Advocate The Hon'ble Mr. Justice Hakim Imtiyaz Hussain Date: 07/02/2005 : J U D G M E N T :
The question involved in the case is as to 'whether the jurisdiction of a Civil Court is excluded to grant injunction in respect of evacuee property in a suit filed by an allottee against private persons.' Tariq Hamid Kara legal heir of Kaukab Jabeen W/o Lt. Ab. Hameed Karra (Advocate) R/o Shivpora, Srinagar has filed this revision petition against the order of City Munsiff Srinagar dated 02-08-1999 passed on file no. 647/Numberi titled Tariq Hameed Karra vs. Ghulam Mohi-ud-din Wani and Ors.
The facts relevant for the disposal of the present petition are that Tariq Hameed Karra petitioner herein filed a suit for perpetual injunction against Gh. Mohi-ud-
din Wani & Ors. (respondents). The matter relates to land which has been fully described in the plaint before the Civil Court. The land is evacuee land and therefore under the management of Custodian, Kashmir. The petitioner claims to be the legal heirs of the original owners-evacuees and, therefore, by means of separate proceedings the land has been duly allotted by the Custodian Kashmir in his favour. There is no dispute over these facts. By means of the allotment the petitioner has come into possession of the suit land.
He is enjoying the fruits of the property and is looking after it. It is alleged by him that defendants-respondents, who are the residents of Shivpora for one reason or the other are trying to interfere with the possession of the petitioner over the suit property. He has therefore, prayed for a decree of perpetual injunction restraining the respondents from interfering in the possession of the petitioner over the suit property.
The respondents appeared before the trial Court and raised the plea that the suit property being evacuee property Civil Court had no jurisdiction to try the suit as the same was hit by Section 31 of J&K Evacuee (Administration of Property) Act. The trial Court on consideration of the matter agreed with the plea raised by the respondents and held that the Court had no jurisdiction to try the suit. It accordingly dismissed the suit by means of the impugned order. The court observed as under:-
"Accordingly in view of the above discussion and the facts and circumstances of the case and in the light of the case law referred by the counsel for the respective parties, the suit is hit by provisions of Section 31 of the Evacuee Administration of Property Act. This court has no jurisdiction to try the suit, the suit is accordingly dismissed. The order passed in the temporary injunction application on 24.2.1999 stands vacated. However, the plaintiff shall be at liberty to take other appropriate action as may be permissible under law before the appropriate forum. No order as to costs. The file is accordingly disposed off, after due completion, the same shall go to records."
Aggrieved by the said order the present petition has been filed with the prayer that the main suit does not fall within the provisions of the J&K Evacuee (Administration of Property) Act as such the court had the jurisdiction and by holding otherwise the trial court has failed to exercise jurisdiction so vested in it and has therefore, caused failure of justice.
Heard.
The only point raised by the Ld. Counsel for the respondents to contest the present revision petition is that the Civil Court in view of the provisions of Sections 15 and 31 of the J&K Evacuee Administration of Property Act (for short the Act) does not have the jurisdiction to grant injunction in respect of the property which falls within the definition of Evacuee Property under the Act. In this behalf he has referred two authorities of this Court cited as Karan Singh v. Sushila Rajpoot 1997KLJ 62 and Satpal v. Chanak Ram 1993 SLJ368.
Section 15 of the Act provides as under:-
Exemption from attachment, sale, etc._(1) No property which has vested in the Custodian shall be liable to attachment, distress or sale in execution of a decree of a. order of a Court or of any other authority], and no injunction in respect of any b.such property shall be granted by any Court or other authority.
(2) Any attachment or injunction subsisting on the commencement of this Act in respect of any evacuee property which has vested in the Custodian shall cease to have effect on such commencement, and any transfer of such property under the orders of a Court or any other authority made after such date as may be specified in this behalf by the Government by notification in the Jammu & Kashmir Government Gazette, shall be set aside if an application is made to such Court or authority by or at the instance of the Custodian within three months from the commencement of this Act."
This section according to the Ld. Counsel for the respondents ousts the jurisdiction of Civil Court and exempts the evacuee property from attachment, distress or sale and execution of decree and specifically provides that no injunction in respect of any such property shall be granted by any court or other authority.
Section 31 bars the jurisdiction of Civil Court in certain matter. It provides:-
1) "save as otherwise expressly provide in this Act, no Civil Court shall have jurisdiction___
i) to entertain or adjudicate upon any question whether any property is or is not evacuee property or whether any evacuee has or has not any interest in any evacuee property.
ii) To question the legality of any action taken by Custodian General or the Custodian under this Act.
iii) In respect of any matter which the Custodian General or the Custodian is empowered by or under this act to determine."
Under Section 31 therefore, the jurisdiction of Civil Court is barred in the following matters:
a) to entertain or adjudicate upon any question whether any property is or is not evacuee property or whether any evacuee has or has not any interest in any evacuee property;
b) whether an evacuee has or has not any right or interest in any evacuee property;
c) to question the legality of any action taken by the Custodian General or the Custodian under the Act;
d) in respect of any matter which the (Custodian General or the Custodian) is empowered by or under the Act to determine.
This provision, as is clear from its plain language provides that when any action is required to be taken by the Custodian or Custodian General under the Act the legality of such a question cannot be challenged before a Civil Court nor can the Civil Court decide regarding any right in respect of evacuee property as the questions as to whether the property is or is not an evacuee property is required to be decided, under the Act, by the authorities only. The scheme of the Act however, shows that while the authorities under the Act have got powers to deal with and determine certain issues including the questions regarding the nature of property, the authorities have got no powers to grant or refuse injunction to preserve or protect the property, against a private party.
This section, therefore, bars jurisdiction of a Civil Court only in matters which are specifically mentioned in the Section. Adjudication of matters falling beyond this Section will definitely fall within the jurisdiction of Civil Court.
Ld. Counsel for the respondents has taken resort to Section 15 which according to him, excludes the jurisdiction of Civil Court in respect of attachment, distress or sale and execution of decree. The Ld. Counsel referring to the word injunction, would argue that since no injunction could be passed under the said section, a suit for perpetual injunction would not lie before a Civil Court . The argument of the Ld. Counsel is devoid of any merit. A conjoint reading of Section 15 and 31 bars the jurisdiction of Civil Court only in matters which fall within the competence of Custodian or the Custodian General. Similarly Section 15 on the other hand bars the grant of remedy in certain cases not the jurisdiction. It nowhere bars the jurisdiction of civil Court but exempts the Evacuee property from attachment, distress, sale or injunction. Exemption of the property does not amount to exclusion of jurisdiction of the civil Court.
The suit before the trial Court is a civil suit between private individuals where neither the order passed by the authorities under the Act nor any issue relating to the exercise of jurisdiction by these authorities is involved. It will by no stretch of imagination fall either within section 15 or Section 31 of the Act.
The authorities relied upon by the Ld. Counsel for the respondents also cannot support him on the ground that the points in issue in both the authorities were entirely different from the one raised in the present case. In Karan Singh v. Sushila (supra) the Court was dealing with the issue of raising new structures on evacuee property, the Court held:-
"power to make alteration in evacuee property or raising new structures are vested in the Custodian in terms of Section 9 of Evacuee Administration of Property Act. As such Civil Court has no jurisdiction and its jurisdiction is barred under Section 9 of CPC. The facts of the case are that the plaintiff of that case has filed a suit for permanent prohibitory injunction against the defendants restraining them from interfering in construction of stairs and bath rooms in a house which admittedly an evacuee property. The trial court has framed the issues and one issue framed was whether court has no jurisdiction try the suit. The trial Court has decided the issue in favour of plaintiff but the Hon'ble High Court in the revision petition has quashed the order and has held that the Civil Court has no jurisdiction in view of the provisions of Evacuee Administration of Property Act to try the suit."
Similalrly in Satpal v. Janak Ram (supra) the plaintiff had raised complicated questions regarding the right of the parties over the property. He had alleged that his father and father of the defendants were displaced persons who were allotted two separate pieces of land out of the evacuee land and by mutual consent both of them had exchanged their respective portion of land. Later when the dispute arose the defendants denied the exchange of allotted land. In view of the issues involved it was held that the Civil Court had no jurisdiction to try the case u/s 31 of the Evacuee (Administration of Property)Act.
Law relating to exclusion of the jurisdiction of Civil Court to hear cases of civil nature is now settled by the Apex Court by catena of authorities. In Dhualbai v. State of M.P AIR 1969 SC 78 the Apex Court held that an exclusion of the jurisdiction of the civil Court is not readily to be inferred. The Court further observed that where there is no express exclusion of the jurisdiction of the Civil Court 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.
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 actions in civil courts are prescribed by the said statute or not.
In Dwarka Prasad Agarwal v.Ramesh Chandra Agarwala AIR 2003 SC 2696 , the Apex Court observed as under:-
" The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil Courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil Court is not to be readily inferred. A provision seeking to bar jurisdiction of civil Court requires strict interpretation. The Court, it is well-settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil Court's jurisdiction is ousted. (see Sahebgouda (dead) by LRs. And others v. Ogeppa and others (2003 (3) SC 13). Even otherwise, the civil court's jurisdiction is not completely ousted under the Companies Act, 1956."
Similar observations were made in Sahebgouda v. Ogeppa 2003 (3) SCC 13.
A careful perusal of the provisions of Sections 15 & 31 of the Act, relied upon by the Ld. Counsel for the respondents shows that the jurisdiction of the Civil Court to hear a suit of injunction interse private parties is nowhere expressly barred.
Another important test to determine as to whether the jurisdiction of a civil Court is excluded under the provisions of a special Act is to see as to whether the Act provides for the alternate forum and remedy. The Act does not provide any mechanism or remedy where a private party threatens to invade the right of the allottee over the property. If argument of exclusion of civil courts jurisdiction in all matters under the Act is accepted, it will left an allottee with no remedy in case its possession over the Evacuee property is interfered with by a private party.
In view of this legal position the jurisdiction of Civil Court cannot be taken to have been excluded by the provisions of the Act in cases where an allottee claims a relief of an injunction from a civil court if his possession over the property is interfered with by a private party.
The present revision petition is, therefore, accepted, the impugned order is set aside .
Order accordingly.
Let the parties appear before trial Court on 3.3.2005. Srinagar 02.2005 (Hakim Imtiyaz Hussain) Judge Mujtaba