Tarkeshwar Nath, J.
1. This appeal by the plaintiffs arises out of a suit for a declaration that the order dated 9-5-1950 passed in Evacuee Property Case No. 134 of 1950-51 and a subsequent order dated 30-12-1954 passed in Confirmation Case No. 1 of 1952-53 were without jurisdiction, void ab initio, ultra vires and inoperative,
2. plaintiffs' case was that the property in suit measuring 4 kathas and bearing holding No. 592 in the Monghyr Municipality with a pucca house and trees standing thereon was owned previously by one Abdul Majeed Khan and he was in actual possession of the same. On 22-4-1948 the said owner executed a usufructuary mortgage deed in favour of Sushila Devi, mother of the plaintiffs, and she came in possession thereof. On 9-5-1950, the Assistant Custodian declared this property as an evacuee property in Evacuee Property Case No. 134 of 1950-51, but neither the said owner Abdirl Majeed Khan nor the plaintiffs' father had any knowledge of that case. The mortgagee (plaintiffs' mother) as well was unaware of that proceeding. On 7-11-1951, Abdul Majeed Khan transferred the said property to Mani Lal Mehta, father of the plaintiffs, by a registered sale deed (Ex. 1) for a sum of Rs. 6,500/- and the purchaser had to pay the previous mortgage dues to the tune of Rs. 4000/-. Plaintiffs' father got his name mutated in the Municipal records and he remained in possession of the said property on the basis of the sale deed. Bhuneshwar Mahton, Pleader, was living in the said house as a tenant of the plaintiffs.
At the time of the execution of the mortgage deed and the sale deed referred to above, Abdul Majeed Khan was residing in Monghyr and he had no intention of going out of India. Plaintiffs' father died on 22-4-1953 and, out of the three plaintiffs, plaintiff 1 attained majority on 2-9-1954, whereas the other two plaintiffs were minors. Plaintiffs came to learn that their father had filed an application for confirmation of the said sale dead and this was registered as Confirmation Case No. 1 of 1952-53, but during the pendency of that case he died with the result that the said application was rejected on 30-12-1954. Plaintiffs learnt on 25-10-1956 for the first time that the property in suit had been declared as an evacuee property. It further transpired that the notice under Section 7 of the Administration of Evacuee Property Ordinance (No. XXVII of 1949) or under Section 7 of the Administration of Evacuee Property Act (No. XXXI of 1950) was not at all issued to the persons interested in the said property and no enquiry was ever held before passing an order declaring the said property to be an evacuee property. Accordingly, the order dated 9-5-1950 and the subsequent order dated 30-12-1954 rejecting the application for confirmation were without jurisdiction and void. The plaintiffs gave notices under Section 80 of the Code of Civil Procedure about their claim and then they instituted the suit out of which this appeal arises on 19-2-1957.
3. There was no written statement on behalf of the Union of India, the Custodian General and the Revenue S. D. O. (defendants 1, 3 and 5), but the State of Bihar, the Custodian of Evacuee Property and the Assistant Custodian (defendants 2, 4 and 6) filed a written statement and contested the suit. Their case was that the suit was barred under the provisions of Section 46 of the Administration of Evacuee Property Act and Abdul Majeed Khan was an evacuee. According to them, Abdul Majeed Khan migrated to Pakistan before 15-8-1947 and the usufructuary mortgage bond and the sale deed dated 224-1943 and 7-11-1951 respectively were neither genuine nor valid. Those documents came to be executed with a view to make an illegal gain and they were illegal and void under Section 41 of the said Act. Abdul Majeed Khan was declared an evacuee in the year 1950 in the presence of the plaintiffs' father and the latter did not come in possession of the house on the basis of the sale deed dated 7-11-1951.
On 25-3-1950 a proceeding was started in accordance with the provisions of the Administration of Evacuee Property Ordinance against Abdul Majeed Khan and the Assistant Custodian declared him (Abdul Majeed Khan) as an evacuee and his house bearing holding No. 592 of Mahalla Belan Bazar to be an evacuee property in Case No. 134 of 1950-51. Notice under Section 7 was duly issued and served and the order in question was valid. The petition filed by the plaintiffs', father under Section 40 of the said Act for confirmation of the sale deed was rightly rejected, as the transaction was void and the District Assistant Custodian had no knowledge of the death of Mani Lal Mehta. Another plea taken by them was that the suit was barred by limitation. The three issues in the suit were as follows:
"1. Are the orders dated 9-5-1950 and 30-12-1954 passed in E. P. Case No. 134 of 1950-51 and in confirmation Case No. 1 of 1952-53 respectively void and illegal?
2. Have the plaintiffs got title to the disputed property?
3. Are the plaintiffs entitled to any relief?"
4. The Additional Subordinate Judge held that the notice under Section 7 of the Administration of Evacuee Property Act was issued and served on the persons interested and an enquiry was held in that case. He thus came to the conclusion that the orders dated 9-5-1950 and 30-12-1954 were legal, valid and operative. He further found that the disputed property having vested in the Custodian under Section 8, the plaintiffs had no title to the same. In view of these findings he dismissed the suit on contest with cost to the contesting defendants and ex parte without cost as against the non-contesting defendants. Hence the plaintiffs have preferred this appeal.
5. Learned counsel for the appellants assailed the finding of the trial Court with regard to the issue of notice under Section 7 and the service thereof on the persons interested in the disputed property. Section 7 of the Administration of Evacuee Property Act (No. 31 of 1950) (which will be hereinafter referred to for the sake of brevity as the Act) provides as follows:
"7 (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 persons 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."
This sub-section requires that the Custodian should form, an opinion that any property is evacuee property as defined in this Act. "Evacuee property", according to Section 2 (f), means 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), and includes any property which has been obtained by any person from on evacuee after that 14th day of August, 1947, by any mode of transfer which is not effective by reason of the provisions contained in Section 40. ''Evacuee" as well has been defined in Section 2 (d) and it means
"any person, -- (j) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day cf March, 1947, left, any place in a State for any place outside the territories now forming part of India .... .".
After forming an opinion about the character of the property, the Custodian has to give a notice under Section 7 to the persons interested in the property and he has to hold an inquiry as well before declaring any property to be evacuea property.
Rule 6 framed under the Act provides that where the Custodian is satisfied frcm information in his possession or otherwise that any property or an interest therein is prima facie evacuee property, he shall cause a notice to be served in Form No. 1 on the person claiming title to such property or interest and on any other person or persons whom he considers to be interested in the property. Clause (2) of that rule lays down that the notice shall, as far as practicable, mention the grounds on which the property is sought to be declared evacuee property and shall specify the provision of the Act under which the person claiming any title to, or interest in such property is alleged to be an evacuee. Clause (3) is to the effect that the notice shall be served personally, but if that is not practicable, the service may be effected in any manner provided in Rule 28. Clause (4) provides that where a notice has been duly served, and the party called upon to show cause why the property should not be declared as evacuee property, fails to appear on the date-fixed for hearing, the Custodian may proceed to hear the matter ex parte and pass such order on the material before him as he deems fit.
The question, therefore, for consideration is as to whether the two requirements of Section 7 were fulfilled; in other words, whether a notice was issued and an inquiry was held before declaring the property in suit to be an evacuee property. Learned counsel submitted that the evidence to establish that a notice was issued is entirely unsatisfactory and unreliable. It appears that on 14-11-1956 plaintiff 1 filed an application, exhibit 15 (a), in case No. 134 of 1950-51 for certified copies of the entire order-sheet and the notice under Section 7 issued in the name of any person with the report of the peon after service, but the head clerk made a note on that petition that no notice was attached with the record of that case and hence the question of giving certified copy of any notice and the service report did not arise at all. It is essential to refer to the order-sheet (Ex. F) of the Evacuee Property Case No. 134 of 1950-51. The first order dated 25-3-1950 indicates that the Assistant Custodian perused the Inspector's report dated 14-3-1950 and he was satisfied that the property belonging to Abdul Majeed Khan was an evacuee property according to the provisions of Administration of Evacuee Property Ordinance and he then directed as follows:
"Issue notice under Section 7 of the Ordinance against the persons concerned to show cause by 9-5-53 as to why the. property mentioned therein should not be declared to be an evacuee property. Put up on 9-5-1950."
In this order-sheet there is no note of any kind in the margin or elsewhere to indicate that the notice was actually issued. The order of course was to issue notice, but the question as to whether notice was actually issued is one which has to be determined on the facts and circumstances of each case. The next order dated 9-5-1950 runs thus:
"No cause shown. The property is as such declared Evacuee property. Notify it as an Evacuee property in the Official Gazette and also publish a copy on the notice Board and put up on 15-6-1950."
Learned counsel pointed out that this order does not indicate that the notice was served and this as well should be a basis for coming to the conclusion that the notice under Section 7 was not at all issued in spite of an order to issue it. A mere order for issue of notice is not sufficient and there must be a positive evidence that the notice under Section 7 was actually issued. It is surprising that the notice under Section 7, if issued, was not available on the record and as such the plaintiffs were not able to get a certified copy of it.
Learned Additional Government Pleader attempted to support the finding of the trial Court with regard to the issue of notice and the service thereof and relied on the evidence of Baijoo Lal Sharma (D.W. 5). This witness was a neighbour of Abdul Majeed Khan, but his evidence was that he had not seen Abdul Majeed Khan for the last 11 or 12 years and he had heard about his going to Pakistan. His statement is that one peon went and asked him about the house of Abdul Majeed Khan. He pointed out the house but it was locked and as nobody responded, the peon affixed the notice on the house of Abdul Majeed Khan. This witness had done contract work in the office of the Collector and he came to depose without receiving summons. The Inspector brought him to Court. He was not able to say as to whether the peon who served the notice was a Hindu or Mohammadan and he did not know the name of that peon. He admitted that he did not sign on the notice (as an identifier) and he was not in a position to say whether the peon wrote any- thing. It was expected that if he had gone with the peon, he would have put his signature on the notice as an identifier, but, in absence of that it is difficult to rely on his testimony.
The next witness on this point is Saroj Kumar Dey (D.W. 6). He was not in service in the office of the Custodian while Evacuee Property Case No. 134 of 1950-51 was going on, but his evidence is that in the file of that case there was a notice under Section 7 and its service report. He said that at present they were not in that file and he could not trace them in spite of his search. His evidence is prevaricating. At one stage he said that title page was not maintained in Evacuee Property Case No. 134, but in the next breath he said that title page was maintained in that case. He did not know if then was any paper which could show as to whether notice was issued and served on Abdul Majeed Khan. He searched for enquiry report of that case, but he could not find it out. His evidence as well does not establish that the notice under Section 7 was issued or served in Evacuee Property Case No. 134. The evidence of plaintiff 1 (P. W. 10) is that no notice was issued and no inquiry was held before declaring the property as an evacuee property. He further said that no notice was served on Abdul Majeed Khan or his (plaintiff 1's) father or mother.
The learned Subordinate Judge came to the conclusion on a perusal of the order-sheet (Ex. F) that the notice was issued, but I fail to see as to how he came to that conclusion. The two orders already referred to above do not indicate that the notice was actually issued or served. If the entry in the order-sheet would have been that the notice was served, the matter would have stood on a different footing, but it is not so. I thus do not find any warrant for the conclusion arrived at by the learned Subordinate Judge and it must be held, on the facts and circumstances of this case, that the notice under Section 7 of the Act was not issued in Evacuee Property Case No. 134 of 1950-51. Section 7 envisages that there should be an inquiry by the Custodian, but the evidence about that as well is lacking and the inquiry by the Inspector cannot be a substitute for the inquiry by the Custodian. I am, therefore, of the view that the two essential conditions prescribed by Section 7 before declaring the property to be evacuee property have not been fulfilled and the plaintiffs' case in this respect is correct.
6. Next question for consideration is as to what is the effect of not issuing the notice under Section 7 of the Act and whether the order in question is void and without jurisdiction on that score. The object of giving notice is that the persons interested in the property should be given an opportunity to make their claims, produce their evidence, if any, in respect of their claims before they are deprived of their properties. If it were not so, the position would be that the Custodian having formed an opinion on the basis of some report or on some information that any property was an evacuee property would declare the same to be an evacuee property without giving a hearing to the persons interested with the result that they would suffer considerable loss. The Legislature has further provided that the Custodian should hold an inquiry before declaring any property to be evacuee property and this as well is a golden rule. In course of an inquiry, the Custodian has to act judicially, take into account such evidence as may be produced by the persons interested and then he has to act to the best of his judgment before declaring any property to be evacuee property.
Learned counsel contended that the notice not having baen issued, the order dated 9-5-1950 should be held to be without jurisdiction. In support of this proposition, he referred to the case of Ebrahim Aboobaker v. Tek Chand, AIR 1953 SC 298 : 1953 SCR 691. The provisions of Sections 7 and 8 of the Act came to be considered in that case and it Was held that the Custodian got dominion over the property only after the declaration was made. Their Lordships' view was that the declaration followed upon the inquiry made under Section 7, but until the proceeding was taken under Section 7, there could be no vesting of the property and consequently no right in the Custodian to take such possession of it. It was then observed as follows:
"The inquiry under Section 7 is a condition precedent to the making of a declaration under Section 8 and the right of the Custodian to exercise dominion over the property does not arise until the declaration is made. There is no reason, therefore, why the heirs should be deprived of their property before the Custodian obtains dominion."
A similar question arose in Mohd. Sharfuddin v. R, P. Singh, ILR 35 Pat 920 : ((S) AIR 1957 Pat 235). It was urged in that case that the entire proceeding was void, because the initial notice issued under Section 7 of the Act was illegal, inasmuch as there were defects in the notice which materially affectad the jurisdiction of the Assistant Custodian to proceed in the matter. The contention was that it was the notice under Section 7 of the Act, which was the foundation of the jurisdiction of the Assistant Custodian, and, as such, if the notice was illegal, the entire proceeding was void 'ab initio'. It was observed that Section 7 required, in the first place that the Custodian should form an opinion that there was some property which was evacuee property within the meaning of the Act, and, in order that he should form that opinion he would also have to form an opinion that the person whose property he wished to proceed against was an evacuee within the meaning of the Act, because evacuee property was property in which an evacuee had any right or interest. According to their Lordships, the Custodian having formed that opinion he had to satisfy two conditions before he could issue an order declaring any property to be an evacuee property, and those two conditions were that he must give a notice in such manner as may be prescribed, to the persons interested in the property, and that he must hold such inquiry into the matters as the circumstances of the case permitted. These two conditions were conditions precedent to the exercise of his jurisdiction, and if either of these two conditions was not complied with then the order passed by him under Section 7 [1) was an order without jurisdiction. Another observation was that under Section 7 (1) the two conditions were not merely procedural in character, but they were substantive conditions laid down by the Legislature as a safeguard for the citizens and those conditions must strictly be complied with.
Learned counsel relied upon these observations and he was fair enough to point out that the decision In this case was reversed by the Supreme Court in Md. Sharfuddin v. R. P. Singh, AIR 1961 SC 1312. Four questions were raised in the Supreme Court and one of them was that the notice issued under Section 7 (1) being defective the proceedings taken pursuant thereto were void. But it appals that this question was not seriously pressed and the case was decided there only on the first question, namely, whether an appeal lay to the Custodian from that order of the Assistant Custodian, Giridih, at the instance of the Assistant Custodian, Headquarters, Patna. Their Lordships held that the Assistant Custodian, Headquarters, Patna, was not a person aggrieved within the meaning of Section 24 of the Act and in view of that conclusion it was not necessary to decide the other questions. On that ground alone, the order of the High Court was set aside. It is worthy of note that a notice was issued in the case of Md. Sharfuddin, but it was urged to be defective in certain manners. It was not a case where no notice was issued at all and as such the decision of the High Court reported in ILR 35 Pat 920 : ((S) AIR 1957 Pat 235), is not helpful.
Another decision of this Court in Surajdeo Narain Singha v. Custodian, Evacuee Property, Bihar, AIR 1953 Pat 29 is relevant. The argument in that case was that no notice was given to the petitioners and the notice that was sent to Bibi Anis Fatma did not fulfil the requirements of Section 7 of the Act read with Rule 6. It was observed that non-compliance with the provisions of Section 7 of the Act rendered the order declaring any property to be evacuee property ultra vires as without jurisdiction. Their Lordships referred to the case of Adbul Majeed v. P. R. Nayak, AIR 1951 Bom 440. It was held by the Bombay High Court in that case that the failure to comply with the two conditions (giving notice and holding inquiry) would make the order declaring the property to be evacuee property without jurisdiction and this view was approved by this Court in AIR 1958 Pat 29. In my view it would be contrary to the fundamental principles of justice that property should be declared to be evacuee property without giving notice under Section 7 (1) to the persons interested in that property.
Learned counsel referred to the case of Dr. Zafar Ali Shah v. Asst. Custodian of Evacuee Property, Jhansi, (1962) 1 SCR 749. In that case, the Custodian of evacuee property had made a declaration that two houses were evacuee properties. Notice under Section 7 of the Act which initiated the proceedings resulting in the declaration was served on two persons as owners, but they did not contest the proceedings. The petitioners (of that case) claimed to be entitled to certain shares in the houses and no notice under Section 7 was at any time served on them. They were never declared evacueas. One of the petitioners filed an appeal before the Custodian General, but it was dismissed as time-barred. The petitioners then filed a petition under Article 32 of the Constitution of India on the ground that they were wrongly deprived of their shares in the houses. It was held that as no notice was issued to the petitioners undar Section 7, their interest in the two houses never vested in the Custodian. Their interest in the properties not having been affected, their application was allowed. In view of the principles laid down in these cases, I am of the opinion that the notice under Section 7 of the Act Rot having been issued, the order dated 9-5-1950 declaring the property as evacuee property is without jurisdiction.
7. In view of the aforesaid conclusion, another point which arises for consideration is as to whether a Civil Court is empowered to declare the two orders in question as being without jurisdiction -- in other words, whe- ther the plaintiffs' suit for the relief claimed was maintainable? Learned Additional Government Pleader contended that the jurisdiction of the Civil Courts was barred according to the provisions of Section 46 of the Act. That section provides that 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 General 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 Act to determine. Learned counsel referred to Section 28 as wall of this Act and submitted that the orders passed in these cases were final and could not be called in question in any court by way of appeal or revision or in any original suit. In the present case, the plaintiffs were not parties to the case in which the property in suit was declared to be evacuee property, but the contention is that it was still open to them to prefer an appeal against the order of the Assistant Custodian. It is true that this Act is a comprehensive one having a special tribunal with exclusive powers to declare properties as evacuee properties and the aggrieved person has remedy by way of appeal or revision as provided Under Sections 24 and 27 respectively of the Act, but if the authority in question acts without jurisdiction or purports to exercise these powers in excess of the jurisdiction conferred upon it, the Civil Court has jurisdiction to question the proceedings.
We (myself and, my learned brother) had occasion to consider the provisions of Section 7 in the case of Mahomad Zakiuddin v. Dist. Asst. Custodian of Evacuee Property, Patna, AIR 1963 Pat 11 and it was observed as follows:
"The jurisdiction of the Custodian under Section 7 is two-fold; he is to determine if a person is evacuee and if a property belongs to him, and then to make a declaration to that effect and take the property as vested in him. When a special tribunal is created by the legislature for any specific purpose, it is open to it to provide powers for such tribunal to determine for itself the basic facts which alone will clothe it with further jurisdiction and authority to deal with the subject. If such initial jurisdiction is not given to a Tribunal, the existence of the basic fact may be challenged in the Civil Court to knock down the authority of the Tribunal for its final orders and action. The provisions of a particular enactment will show what kind of jurisdiction has been vested in the Tribunal. Section 7 provides the initial jurisdiction for the Custodian to enquire into and find out the basic facts and then to assume jurisdiction to deal with the evacuee property. If one would challenge the correctness of his action, he can approach the appellate authority under the Act. Any act done by a Tribunal without jurisdiction can be disputed in the Civil Court, but an act done in wrong exercise of its jurisdiction by a Tribunal is only amenable to correction by its superior authority and not the municipal Court."
I can usefully refer to Secy. of State v. Mask and Co., AIR 1940 PC 105 and their Lordships observed:
"It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have juris- diction to examine 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."
In AIR 1951 Bom 440, a question arose in limine as to whether in view of Section 43(c)(of Ordinance No. XXVII of 1949) it was open to the Court to question the legality of any action taken by the Custodian under the Ordinance. Chagla C. J. observed as follows:
"It is clear that whether under Section 28 or under Section 43, the jurisdiction of the Court to consider any orders passed by the Custodian or any action taken by him would not be barred if the orders passed or the action taken was without jurisdiction. It is only with regard to orders passed under the Ordinance or the action taken under the Ordinance that the jurisdiction of the Court is taken away."
Learned Additional Government Pleader urged that it may be open to a person aggrieved to challenge the validity of the order passed by the Assistant Custodian by filing an application for a writ, but he could not file a suit for that purpose and that observations of the learned Chief Justice of the Bombay High Court were made in an appeal arising out of a petition filed for a writ. But apart from it, there are certain decisions which have taken the view that if the order" is without jurisdiction, then it can be questioned even in a Civil Court. In Khalil Ahmad Khan v. Malka Mehar Nigar Begum, AIR 1954 Alt 362 (FB) it was observed as follows:
"It is true that under paragraph 5 of the Ordinance No. 1 of 1949, a property which was evacuee property vested in the Custodian automatically and by virtue of clause (2) of Section 8 of the present Act it will be deemed to be evacuee property, declared as such, within the meaning of the Act and shall be deemed to be vested in the Custodian automatically and shall continue to so vest. But in a case of dispute who is to determine whether the property has vested in the Custodian. The Custodian cannot, because the Act does not give him the power to determine such a question. Obviously it is the Civil Court which must determine that question. Therefore, in such a case also clauses (a) and (d) cannot bar the jurisdiction of the Civil Court. Clause (a) in my opinion does not come into operation when notice under Section 7 has not been given because before such notification is given there is no question of any authority deciding whether the property is evacuee property. The Civil Court in such an event decides merely whether the property can be claimed by a certain person as owner or mutwalli or in any other capacity and not whether it is an 'evacuee property'. The law could not have contemplated that even though the Custodian has acquired no jurisdiction to determine, whether a certain property is evacuee property, the Civil Courts should not entertain suits of title with respect to such property.
I should, not, however, be assumed to assent to the proposition that in a case instituted after the commencement of the Act, even after notice under Section 7 of the Act has been published and the Custodian has acquired jurisdiction to decide whether, the disputed property is evacuee property, or in other words, whether the evacuee is interested in such property as owner or in any other capacity as mentioned in Section 2(f) read with Section 11, still the Civil Court can decide substantially the same matter as a question of title? If this were allowed, Section 46 could be avoided and rendered nugatory."
In Wazira v. Shamulal, AIR 1960 Raj 283, the provisions of Section 46 of the Act were Considered and it was field that before the bar of this section could be held to be properly applicable to a given case, it must be found that the action taken by the Custodian or the Custodian General was or would have been within his jurisdiction embraced in the Act and that where the action taken by him or if takan by him would have been beyond his jurisdiction or in excess of the legitimate jurisdiction entrusted to him under the Act, the jurisdiction of the Civil or the revenue Courts should not be held to have been excluded or taken away. I.N. Modi J. further held that if the notice under Section 7 of the Act was not given, the proceedings taken by the Custodian would be entirely without jurisdiction and Section 46 of the Act could not bar the Civil Court in holding that the order passed by the Custodian was without jurisdiction.
Learned counsel for the appellants referred to Bennett and White (Calgary) Ltd. v. Municipal District of Sugar City, 1951 AC 786. A question there arose as to whether a tax-payer called on to pay a tax in respect of certain property had a right to submit to the ordinary courts the question whether he was taxable. It was held that he had such a right unless his right to do so was clearly and validly taken away by some enactment, and the fact that the statute which authorised assessment allowed an appeal or a series of appeals against assessments to other tribunals was not sufficient to deprive the taxpayer of that right. In that cases the right to submit to the ordinary courts was not taken away by the relevant provincial legislation. The question as to whether a person's rights have been curtailed would depend on the facts and circumstances of each case and also on the provisions of an Act which formed the subject-matter of consideration.
In Firm Seth Radha Kishan v. Administrator, Munici pal Committee, Ludhiana, AIR 1963 SC 1547, it was held that
"a suit in a Civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions."
In T. P. Daver v. Lodge Victoria, AIR 1963 SC 1144, it was observed as follows:
"The Jurisdiction of a Civil Court is rather limited; it cannot obviously sit as a court of appeal from decisions of such a body; it can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice..........".
On a review, of these decisions, I am of the opinion that the order dated 9-5-1950 passed in the aforesaid evacuee case was without jurisdiction and the plaintiffs' suit for the reliefs claimed is maintainable in Civil Court.
Learned Additional Government Pleader submitted that in the present case the plaintiffs were estopped from contending that the orders in question were without jurisdiction. He pointed out that plaintiffs' father had filed a petition for confirmation of the transfer as envisaged in Section 40 of the Act, but that petition was rejected on 30-12-1954. This fact is mentioned in the plaint as well of the present suit. Accordingly his contention was that the plaintiff's father acted on the foot ing that the property in question was evacuee property and that it was declared to be so by the Assistant Custodian and as such an application was made for holding the transfer as valid. In these circumstances, he argued that the plaintiff were estopped from contending that the orders in question wera without jurisdiction and he relied upon the case of Bindhyachal v. S. C. Mukherji, ILR 33 Pat 905, In that case the petitioners had moved the High Court for the issue of a writ in the nature of a quo warranto restraining respondents 3 to 42 from usurping the office of the Councillors of the Patna Municipal Corporation. The petitioners had also prayed for a writ in the nature of mandamus directing respondents 1 and 2 to prepare a fresh register of voters and hold the election in accordance with the provisions of the Patna Municipal Corporation Act. On behalf of the respondents (of that case) an objection was taken that the petitioners were not competent to maintain that application for mandamus, inasmuch as they knew of the illegality and still acquiesced or concurred in the election of the Municipal Cour.cillors. That objection was upheld and it was observed that a petitioner wilt not be entitled to information in the nature of a quo warranto if it was shown that he acquiesced in the election to which he objected. The granting of a relief in the nature of a quo warranto is a discretionary one, but the position in the case of a suit or an appeal is somewhat different. The facts and circumstances of the present case are different and neither the plaintiffs nor their father were parties to the aforesaid evacuee case.
The order dated 9-5-1950 was not passed in their presence and they never took part in that proceeding. Learned counsel referred to the case of Raghuni Nayak v. District Magistrate, Darbhanga, AIR 1959 Pat 7, but there also two applications were filed for writs under Article 226 of the Constitution of India. There as well, the petitioners having known of the illegality had participated in a municipal election and thus it was held that on account of their acquiescence or concurrence in the election they ware estopped from challenging the validity of that election after having lost therein. This decision as well is of no assistance to learned counsel for the respondents. The order dated 9-5-1950 being without jurisdiction, I find it difficult to hold that the plaintiffs are estopped from contending that the said order was without jurisdiction. It is true that a person cannot be allowed to approbate and reprobate, but there cannot be any estoppel when the order of a tribunal is without jurisdiction and contrary to the express words of a statute. I can usefully refer to a decision of this Court in Raghuraj Prasad Singh v. Basudeo Singh, AIR 1950 Pat 318 where, it was observed as follows:
"..... ....in my opinion, when the order of the Commissioner was not an order of a Court having competent jurisdiction to decide the question raised it cannot be pleaded as an estoppel, and neither acquiescence nor request nor application on the part of the plaintiff landlord would give the Commissioner a jurisdiction over the subject-matter of the cause. This is a case in which the want of jurisdiction appeared on the face of the proceedings and the question of approbating and reprobating does not at all arise..........There cannot be the least doubt that in this present case there was an inherent incompetency to decide the questions that has been raised before him and therefore, according to the view taken by their Lordships of the Judicial Committee in Ledgard v. Bull, 13 Ind App 134 : ILR 9 All 191 (PC) and Meenakshi Naidoo v. Sutramaniya Sastri, 14 Ind App 160 : ILR 11 Mad 26 [PC) no amount of consent by the plaintiffs landlord could confer upon the Commissioner the jurisdiction which he never possessed."
The application for confirmation of the transfer filed by the plaintiffs' father cannot lead to the inference that there was a valid declaration of the property in question to be an evacuee property in accordance with the provisions of the Act. I am, therefore, of the view that the principle of estoppel will not appty in the present case and the plaintiffs are competent to get the reliefs sought for. The order dated 9-5-1950 itself being with-out jurisdiction the subsequent order dated 30-12-1954 as well will not have any effect so far the title of the plaintiffs is concerned. The plaintiffs having got a valid title the question of possession is immaterial and need not be gone into.
8. In the result, the appeal is allowed, the judgment and decree of the trial Court are set aside and the plaintiff's suit is decreed. In the circumstances of the present case, the parties are directed to bear their own costs throughout.
9. I agree. On facts, the main disputs batween the parties in this case was, if notice under Section 7 of the Administration of Evacuee Property Ordinance (Ordinance No. 27 of 1949) was served on the persons interested in the property which was later declared as evacuee property. Two questions are involved in that; whether any notice was at all issued and served and, if so, whether it was served on the persons interested in the property. On the first part of the question there was oral evidence of D. W. 5 only who said that he pointed out the house of Abdul Majid to a peon who affixed a notice on that house as that was locked. In cross-examination he said that he had gone to the house with the peon. When was that occasion or in what connection was that notice does not appear from his evidence. The other witness D. W. 6 was an assistant in the office of the Assistant Custodian, Monghyr, but he was not in that post in 1950-51. Besides he did not say that he had seen either the issurance of the notice under Section 7 or its service report. Ext. F, the order-sheet in E. P. Case No. 134 of 1950-51 only shows that on the 25th of March, 1950, there was an order for issue of notice under Section 7 of Ordinance No. 27 of 1949. There is nothing also to indicate if in fact any such notice was issued, nor there is anything to show that the Court accepted the service of such notice as sufficient.
When the moot point is about the service, proof of its contents along with proof of its issue and service has to be established. About the contents of the notice, there cannot be any oral evidence (vide Section 59 of the Evidence Act); they can only be proved either by primary or secondary evidence (vide Section 61); the notice itself could not be produced before the Court. So primary evidence was absent. Under Section 63 (5), secondary evidence of that, if at all, might have been given by oral accounts of the contents of the notice by some persons who had himself seen it. Neither D. W. 5 nor D. W. 6 had seen the notice; therefore, their statement even if they would have spoken about the contents of that notice would not have been admissible. Since the notice was a public document within the meaning of Section 74 of the Evidence Act, the only kind of secondary evidence that could be given under Section 65 (e) was by a certified copy of that document and no other kind of secondary evidence was admissible. In that view, neither primary nor secondary evidence of the notice under Section 7 was given in this, case. About the fact of service of notice, there is no evidence. Thus the conclusion is inevitable that there was no notice issued or served under Section 7. The other part of the question as to on whcm it was served does. not arise for consideration.
10. The. next question that fails for consideration is whether the declaration made by the Assistant Custodian under Section 7(1) was merely erroneous or illegal, or, that was void and without jurisdiction. If it was the former, there was ample remedy open to the aggrieved party under the Ordinance (which later on became an Act) itself; but if it was the latter, in that case that declaration was to be taken as non-existent and the party concerned could invoke the aid of the Civil Court for establishing that position. The ordinance created a, special Tribunal for specified purposes. The purpose was. to declare a person as evacuee and his property as evacuee property and to take possession and management of such property. The vesting of the property in Custodian or his taking possession and management of the same was an act that came within the powers and jurisdiction of the Custodian only after the person and the property were declared to be of an evacuee. This declaration was the primary act within his jurisdiction before subsequent action about possession could be taken by him on that basis. That primary act being in the special and exclusive jurisdiction of the Custodian could not be challenged in the Civil Court whose ordinary jurisdiction in this respect was. excluded by express provisions in that Ordinance itself. The position would have been so if that primary act of special jurisdiction consisting in the declaration of the property as evacuee property was not subject to any previous conditions by the previsions of the Ordinance; for example, if Section 7 would have said that where the Custodian was of opinion that any property was evacuee property, he may pass an order declaring any such properly to be so. Then on a, mere subjective mental satisfaction of the. Custodian 3 declaration could be made. Whether such arbitrary power could have been sustained in law and in face of that fundamental guarantee under the Constitution is a different matter and it need not be canvassed here. But Section 7(1) clearly laid down that after such subjective mental satisfaction about the prima facie nature of the property being that of an evacuee, the custodian had to give notice in the prescribed manner to the person interested in that property and thereafter to hold an enquiry into the matter before he would exercise his special jurisdiction in declaring that property to be an evacuee property.
The enactment did not bestow upon the custodian any exclusive jurisdiction about determining, in a particular case, if there was any such notice given or/and any enquiry held. Those are the conditions of fulfilment-of which the special and exclusive jurisdiction of the Custodian of declaring and then possessing any property as an evacuee property could commence. Whether those conditions were fulfilled or not will, therefore, be fundamental for the exercise of special jurisdiction under the Ordinance, and in absence of any express provision to the contrary, the Civil Court's jurisdiction to enquire about the fulfilment of those conditions cannpt be inferred. Neither the provisions under Section 28 nor under Section 46 can come into play in that respect. These provisions are in ragard to matter covered by the exclusive jurisdiction of the Custodian as provided in the Act, If it is established, as it has been done in the present case, that neither the notice nor the enquiry was held, there was nothing to authorise the Assistant Custodian to assume any jurisdiction under the Ordinance. Issuing the notice and holding the enquiry were, no doubt, to be done by him under the Ordinance, but they were preliminary acts on performance of which his special jurisdiction depended. Those preliminary acts could, therefore, be challenged in the Civil Court.
Assuming that prima facie a notice was issued and an enquiry was held, it would be still open to an aggrieved party to challenge either or both of the acts in the Civil Court and establish that they were not actually performed, in which case all other acts done by the Custodian in exercise of his special jurisdiction would be come void and without jurisdiction. The wholesome dictum laid down by Esher, M. R., in R. v. Income-tax Special Commr., (1888) 2 Tax Cas 332 distinguishing the preliminary set of facts that leads to the second set of facts covered by the special jurisdiction created by a statute for a tribunal supports the explanation that I have given to Section 7(1) of the Ordinance.
11. An apparently substantial argument was advanced for the respondants saying that the absence of notice or/ and an enquiry under Section 7 (1) could have been raised by the aggrieved party in an appeal and revision as provided under that Ordinance and the declaration of the property as evacuee property could have been challenged on those grounds within the ambit of the statute. In that view, it was further contended that the jurisdiction of the Civil Court could be deemed to have been ousted by that special enactment. It was also urged that a person who could and who was bound to seek the redress within the provisions of the Ordinance cannot invoke the ordinary jurisdiction of a Civil Court for the same purpose. Alternatively, Learned Counsel contended that in the present case, as a matter of fact, the plaintiffs' father and applied for confirmation of the transfer of the property in his favour on the basis that it was and had been validly declared to be an evacuee property. The plaintiffs claiming through him cannot now repudiate that position and challenge the declaration by the Assistant Custodian in the Civil Court. The argument can be well met by the principle that if the jurisdiction of the Civil Court is not excluded by express provision of an enactment, the citizen can invoke that jurisdiction even if he can seek or has in fact sought unsuccessfully his remedy in the different forums provided by the special enactment. Ouster of the jurisdiction of the Civil Court is not to be easily inferred. Such ouster by implication from the provisions of a statute shall not be accepted unless for compelling reasons.
It is well established on high authority that the rule is that a confirmative statute giving new rights does not by itself and of necessitv destroy a previously existing right (such as to invoke the jurisdiction of the Civil Court). No doubt, the Legislature can make its intention apparent in a particular statute that the two righs should not exist together. But until that intention is established either by express provision or by compelling implication the right of the litigant that existed before a statute is enacted will continue to be available to him. In the case of 1951 AC 786 the Dominion Government entered into a contract with the appellant company for the construction of some irrigation tunnels and one of the conditions of that contract was that all machinery, tools, plant, materials, equipment, articles and things whatsoever provided by the contractor for the works shall from the time of their being so provided become and until the final completion of that work shall be the property of his Majesty for the purpose of the said work. A large variety of plant and equipment including a number of motor vehicles were provided by the appellant contractor and they remained on the site during the year 1947. The municipality of that area which were respondents assessed the appellant contractor for the year 1947 on the basis that those plant and machinery and vehicles were their personal property. The appellants challenged that assessment before the Council of respondents sitting as a Court of revision under the Assessment Act but without any success. Again under Section 47 of that Assessment Act they appealed to the Assessment Commission on the grounds, inter alia, that the personal property which was assessed was really the property of His Majesty according to the terms of the contract and all properties of His Majesty being exempted from taxation under Section 5 of the Assessment Act and Section 125 of the British North America Act, 1867, the assessment imposed was illegal. There also the appellant failed.
Thereafter the respondents, pursuant to their powers under the Municipal District Act demanded a sum as tax in respect of the assessment from the appellants. The appellants, therefore, instituted proceedings in the ordinary and usual forum alleging that they had been wrongfully and illegally assessed. One of the main arguments against their action was that in view of the provisions of the Assessment Act and the different remedies available to the person taxed under that Act and they haying availed themselves of these remedies though without success, the appellant company could not maintain proceedings in the ordinary forum, again challenging the assessment. The House of Lords repelled that argument and it was observed:
"In their Lordships' judgment the effect of these authorities is that a tax-payer called on to pay a tax in respect of certain property has a right to submit to the ordinary courts the question whether he is taxable in respect of that property unless his right to do so has been clearly and validly taken away by some enactment, and that the fact that the statute which authorises assessment allows an appeal or a series of appeals against assessments to other tribunals is not sufficient to deprive the tax-payer of that right.
As has already been stated, a person who objects to an assessment under the Assessment Act of the Province of Alberta is entitled under that Act to complain to a Court of Revision on any of the grounds set out in Section 35: these grounds include a complaint that any property has been wrongfully assessed or that the name of any person has been wrongfully entered on the assessment roll. If dissatisfied with the decision of that court he can, under Section 47, appeal against that decision to the Alberta Assessment Commission. So there are three stages at which a person might plead in an action in the ordinary courts that he had been illegally assessed and was not bound to pay tax levied in consequence of that assessment. He might do so without having exercised his right to complain to the Court of Revision; or he might do so after having complained unsuccessfully to the Court of Revision but without having exercised his right to appeal to the Assessment Commission; or he might do so after having appealed unsuccessfully to the Assessment Commission."
12. These observations are complete answer to the contention raised by the respondents before us. The action of the plaintiff in the Civil Court to challenge the orders passed by the Assistant Custodian on the 9th of May, 1950, declaring the said property as avacuee property on the ground of lack of jurisdiction for such declaration in absence of a notice or/and an enquiry under Section 7 (1) of the Ordinance was maintainable. Their challenge has been established successfully on evidence. The other order passed on the 30th of December, 1954, refusing the confirmation of sale of the property by the alleged evacuee to the plaintiffs' father was also therefore, without any legal basis.