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TMI Blog1967 (4) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 the application was dismissed. It seems that thereafter the respondent made some representations to the then Government of PEPSU but it is not known what happened thereto. On September 10, 1956, the respondent applied for review of the order of the Custodian dated July 3, 1954. That review application was dismissed on April 5, 1957 mainly on the ground that it was belated. The respondent then went in revision to the Deputy Custodian General but her revision was dismissed on September 27, 1957. Thereafter on December 3, 1958, the Deputy Custodian General suo motu rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion whether certain person was or was not evacuee was determinable by the Custodian, but the determination of the Custodian on a question of a title if such question arouse was not final and question of title could be reopened in the civil court and was to be finally determined by such court. They limited by above decision by observing that a mere ascertain 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 Custodian 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 facts 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. 5. 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity. The definitions also includes certain properties and exclude certain 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 not with standing anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law Sections 5 and 6 provide for appointment of Custodian-General, Deputy Custodian and General, and Assistant Custodian General, Custodian, Additional Custodian, Deputy Custodian and Assistant Custodian whose duty is to administer the Act. Section 7 empowers the Custodian to give notice, where he is of opinion that certain property is evacuee property, 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. It is clear that in view of the definition of evacuee property to which we have already referred, that two questions will arise in ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder this Act to determine. 9. 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 matters specified therein. A perusal of these provisions in our opinion shows that the Act is a complete code in itself in the matter of dealing with evacuee property. As observed by this Court in Ram Gopal Reddy v. Additional Custodian [1966]3SCR214 , the Act thus provides a complete machinery for a person interested in any property to put forward his claims before the authorities competent to deal with the question and to go in appeal and 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 property 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 du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be enter into all questions whether of fact or of 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 facts 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 questions 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 is s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 where the jurisdiction of a tribunal of limited jurisdiction depends upon the first finding certain state of facts, it cannot give itself jurisdiction 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 not 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 courts in any matter which which can be decided under s. 7. This conclusion is reinforced by the provision contained in s. 4(1) of the Act which provides that the Act overrides other laws and would thus override s. 9 of the Code of Civil Procedure on a combined reading of Sections 4, 28 and 46. But as we have said already, s. 46 or s. 28 cannot bar the jurisdiction of the High Court Art. 226 of the Constitution, for that is a power co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 property 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 Illuri Subbayya Chetty v. state of Andhra Pradesh [1963]50ITR93(SC) this Court observed at p. 763 that the observations in Mask Co.'s case were in some respects too widely stated. 15. The next case to which reference may be made is S. M. Zaki v. The State of Bihar AIR1953Pat112 . 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 constructed to mean 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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