Nand Lal Ahuja vs Union of India and others

P.C. Pandit, J.—This is a plaintiff''s second Appeal against the concurrent decision of the courts below dismissing his suit on the ground that the Civil Courts had no jurisdiction to entertain it.

In order to determine the question as to whether a particular suit is triable by a civil court or not, it is undisputed, that one has to go to the pleadings of the parties, especially the allegations made in the plaint. The case of Nand Lal Ahuja, appellant, in the plaint was that one Rashid Ahmed was running an industrial establishment at Ludhiana known as Rashid Ahmed Engineering works in the premises No. B. 2V/1523, which was owned by one Amar Nath Sud. On the partition of the country, Rashid Ahmed migrated to Pakistan, with a result that the industrial establishment vested in the Custodian under the law relating to the Administration of Evacuee Property. On 3rd of September, 1948, the said establishment was auctioned and the plaintiff made a bid of Rs. 210/- per mensem. Since this was the highest bid, it was accepted. The establishment, according to the plaintiff, was sealed at the time when it was put to auction. On 8th of September, 1948, the seal was broken by the officers of the Custodian Department for delivering possession of the establishment to the plaintiff. It was found at that time that the establishment did not contain any machinery, electric motor, tools or raw material. The building itself was in a damaged condition and its roof had fallen to the ground. The electric connection had also been disconnected. The possession of the non-evacuee shop in which Rashid Ahmed had only tenancy rights was, therefore, delivered to the plaintiff. Soon after taking possession, the plaintiff approached the Public Works Department (Electricity Branch) for the grant of an electric connection which was later on given to him, and for which purpose, the plaintiff had to deposit a sum of Rs. 43/- as p. security and execute an agreement in the prescribed form. Thereafter a 3 Horse Power electric connection was installed at the expense of the plaintiff. Subsequently, he found that shop No. B. IV/1523 was insufficient for carrying on the printing press business. He therefore, exchanged it with evacuee shop Nos. B. IV/ 1469 and 1470 with the permission of the Custodian. According to the plaintiff, on 8th September, 1948 when the possession of shops No. B. IV/ 1523 was given to the plaintiff, no evacuee property was delivered to him. The lease of the so called industrial establishment by public auction was, thus, void ab initio, as both the Custodian and the plaintiff were labouring under a mistake of fact that the establishment was a running concerned duly fitted with machinery, electric connection and electric motor, etc. The plaintiff and the other prospective bidders were given an assurance by the officers to the Custodian Department that it was a proper industrial establishment, although it contained nothing and even the electric connection, which belonged to the Public Works Department (Electricity Branch), had been disconnected and had re-vested in the Electricity Department. The Custodian could not claim any right in the disconnected and nonexistent electric connection and did not in fact lease out any such right to the plaintiff. The plaintiff was, therefore, liable only for the rent of the evacuee shops B. IV/1469 and 1470 at the rate of Rs. 5/- and Rs. 6/- per mensem respectively. In fact the District Rent and Managing Officer had claimed rent at the above rates and it accordingly came to Rs. 731/69 and Rs. 874/- for the two shops up to 31st March, 1961. A further sum of Rs. 132/- had become due from the plaintiff at these rates in respect of the two shops, because about a year had passed when the District Rent and Managing Officer had claimed the amount from him. The plaintiff was, thus, liable to pay Rs. 1737/89. A sum of Rs. 2420/- had been illegally recovered from the plaintiff by way of lease money in respect of the industrial establishment No. B. IV/1523. Consequently, the suit was filed against the Union of India, the Punjab State and the Custodian General for the following reliefs:

(i) a decree for the recovery of Rs. 682/31 out of Rs. 2420/- illegaily recovered from him as lease money after the adjustment of Rs. 0737/69 towards arrears of rent in respect of the evacuee shops Nos. B. IV/1469 and 1470 up to 31st March, 1962;

(ii) a permanent injunction restraining the defendants from recovering any amount from the plaintiff on the basis of the alleged contract of lease granted to him in respect of the industrial establishment No B. IV/1523 as arrears of land revenue; and

(iii) a declaration that the attachment of the properties of the plaintiff already effected in pursuance of the recovery proceedings as arrears of land revenue, was void.

The suit was resisted by the defendants on a number of grounds. It was said that the industrial establishment, known as Rashid Ahmed Engineering Works, belonged to Rashid Ahmed and vested in the Custodian after the partition of the country. It contained a disconnected electric connection of 3 1/2 Horse Power without any machinery. The industrial establishment was leased by public auction on 4th September, 1948 and the lease was given to the plaintiff for Rs. 210/- per mensem, he being the highest bidder. It was made clear to the prospective bidders at the time of auction that the industrial establishment contained only a disconnected electric motor connection. It was admitted that the premises were sealed and there was nothing at the site except the disconnected electric connection. It was denied that the Assistant Custodian gave any assurance to the prospective buyers that the establishment was in a working order with 3 1/2 Horse Power electric connection. It was incorrect that the plaintiff came to know that the establishment did not contain any machinery only at the time of actual delivery of the possession. The plaintiff did not raise any such objection at the time he accepted the possession of the shop. He could refuse its possession on that ground if he so desired. The plaintiff offered the bid with open eyes and his main idea for doing so, was that he wanted to obtain and electric connection at a time when there was shortage of electric energy at Ludhiana, which was a town of great industrial and commercial importance. The agreement of lease entered into by the plaintiff also contained a clause which read : "The lessee has seen the industrial establishment, has satisfied himself on all points in regard to it including the nature of the machinery and equipment as entered in the inventory attached herewith etc." It was admitted that Rs. 2420/- were paid by the plaintiff, but it, was said that that payment was made by him in order to retain the lease and the possession of the shop. It was stated that arrears of rent for the industrial establishment No. B. IV/1523 remained due from the plaintiff and that he was liable to pay the same. A number of preliminary objections were also raised by the defendants and it was said, inter alia, that the civil court had no jurisdiction to entertain the suit, that that plaintiff had availed of all the remedies available to him under the Administration of Evacuee Property Act, 1950, and the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and, therefore, the orders passed by the officers under both the Acts could not be challenged.

On the pleadings of the parties, the following issues were framed:

Whether the Civil Court has no jurisdiction to entertain the present suit ?

Whether the suit is barred by res judicata ?

Whether the suit is within time ?

Whether a valid notice u/s 80 of the C.P.C. has been served upon the defendants?

Whether the electric connection and the right to get supply of electric connection constituted the industrial establishment and as such, vested in the Custodian ? if so, to what effect ?

Whether the plaintiff is entitled to the refund of the suit amount ?

Whether the plaintiff is entitled to the declaration and injunction prayed for?

6-A. Whether the plaintiff is estopped by act or conduct from filing the present suit ?

The trial Judge decided issue No. 1 in the first instance and dismissed the suit holding that the civil court had no jurisdiction to try the same. According to her, the industrial establishment was an evacuee concern and the same had vested in the Custodian. The officers of the Custodian Department were, therefore, fully competent to deal with it. They having dealt with it, in exercise of the authority vested in them under the statutes, the civil courts could have no jurisdiction to sit in appeal or revision over them. According to her, section 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, absolutely excluded the jurisdiction of the civil courts in matters which fell within the domain of the powers of the officers of the Rehabilitation Department. The administration and the disposal of the evacuee property was thus within the jurisdiction of those officers. The learned Judge also remarked that there was not even a suggestion by the plaintiff, much less evidence, to the effect that the officers under the Administration of Evacuee Property Act, 1950 and Displaced Persons (Compensation and Rehabilitation) Act, 1954 had no jurisdiction to go into the matter in dispute or that they had in any other way gone beyond their jurisdiction. When the matter went in appeal before the learned Senior Subordinate Judge, Ludhiana, it was urged before him that the trial court should have first decided issue No. 5 before taking up issue No. 1. It was observed by the learned Senior Subordinate Judge that this objection was present to the mind of the trial court when it decided issue No. 1. It was held by the learned Senior Subordinate Judge that the Custodian had decided that the electric connection was evacuee property and that finding could not be challenged before the civil courts. The lower appellate court affirmed the findings of the trial Judge and dismissed the appeal. Against this decision, the plaintiff has come here in Second appeal.

Learned counsel for the appellant, in the first instance, contended that the courts below should have decided issue No. 5, after taking evidence, thereon, and it is only after that, that a finding could be given on issue No. 1. His point was that if it was found on issue No. 5 that the electric connection and the right to get supply of electric energy did not constitute the industrial establishment and as such it did not vest in the Custodian then it could not be held to be evacuee property and as such the officers of the Rehabilitation Department would have no jurisdiction to deal with the same. Secondly, it was submitted that it was for the civil courts to determine whether the alleged lease in favour of the plaintiff by the Custodian Department was void or not because it had been made under a mistake of fact on behalf of both the plaintiff and the Custodian Department. Lastly, it was argued that, in any case, the finding of the courts below on issue No. 1 was incorrect in law, inasmuch as the trial of the suit as laid was not barred under the provisions of section 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954.

After hearing the counsel for the parties I find that there is no merit in any of these contentions. The first contention involved the determination of the question as to whether the subject-matter covered by the lease in favour of the plaintiff was evacuee property or not. So far as this point is concerned, it is common ground that the plaintiff had already approached the Custodian Department in that behalf and it was held that the property leased to the plaintiff was evacuee in nature. It was decided by the Custodian that the tenancy rights in the evacuee shop and the un-connected electric connection constituted evacuee property. The plaintiff bad been unsuccessful in this connection before all the officers under that Department. This decision of the Department could not be challenged by means of a civil suit. It has been ruled by the Supreme Court in Custodian of Evacuee Property Punjab and Others Vs. Jafran Begum, , that the jurisdiction of the civil or revenue court is barred u/s 46 of the Administration of Evacuee Property Act, 1950 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property.

So far as the second contention is concerned, it was not the case of the plaintiff that the lease in favour of the plaintiff was the result of fraud played upon him by the Custodian Department. All that he said in the plaint was that the lease was the out come of a mistake of fact on the part of both the Custodian and the plaintiff. But even on this matter, the plaintiff did not get any issue struck in the case. After having exhausted all his remedies under the Administration of Evacuee Property Act, 1950, and the Displaced Persons (Compensation and Rehabilitation) Act, 1954, he cannot now be allowed to urge this point in second appeal, especially when it was not raised even before any of the courts below. This apart, section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, says that if any question arises as to whether a sum is payable to the Government or to the Custodian in respect of any evacuee property under any agreement, express or implied, lease or other document or otherwise howsoever, it shall be referred to the Settlement Commissioner within whose jurisdiction the property is situated, and the Settlement Commissioner shall after making such inquiry as he may deem it and giving to the person by whom the sum is alleged to be payable an opportunity of being heard, decide the question and the decision of the Settlement Commissioner shall, subject to any appeal or revision under this Act, be final, and shall not be called in question by any court or other authority. In the instant case, the Department had already decided that the plaintiff had entered into the lease and a certain amount was due from him on that account. The question regarding the validity of the lease and the quantum of the amount due from the plaintiff thereon, cannot, therefore, be agitated before a civil court.

As regards the last contention, learned counsel for the petitioner could not point out any error of law in the finding given by the courts below on issue No 1, section 36 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 provided that the jurisdiction of the civil courts was barred in respect of the matters which could be decided by the officers under that Act. Similarly, section 27 of that Act gave finality to the orders passed by the officers under that Act and they could not be challenged in any court by way of an appeal or revision or in any original suit, application or execution proceeding. The Department had decided that the plaintiff, who was a lessee, was liable to pay the lease money at the rate of Rs. 210/- per mensem. The plaintiff could not point out as to why the officers of the Rehabilitation Department had no jurisdiction to determine that matter. As a matter of fact, the trial Judge, in her judgment, had mentioned that there was not even a suggestion, much less evidence, on behalf of the plaintiff that the said officers were not competent to decide that point. Even before the learned Senior Subordinate Judge, it was not the case of the plaintiff that that matter could not have been determined by the said officers. In fact, as already mentioned by me above, u/s 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, it was the Settlement Commissioner who was the final authority to decide as to what amount was due to the Government or the Custodian in respect of the lease of the evacuee property and his decision could not be called in question in the civil courts. The liability of the plaintiff having been determined by the officers under the Rehabilitation Department, the jurisdiction of the civil courts for re-opening the same matter was barfed. It may be mentioned that there was no allegation on behalf of the plaintiff that the officers under the Rehabilitation Department did not hear him or comply with the principles of natural justice, while deciding the said dispute.

In view of what I have said above, this appeal fails and is dismissed. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.