- (1.) A short but rather important point affecting the rights of third parties under the Evacuee Property law arises in this appeal. On 12-9-1951 the _ properties of Messrs. Ahmed Abdul Karim Bros. Ltd. , were declared evacuee properties. These properties consisted of Woolen Mills at Ambernath, a bobbin factory at Tardeo, and certain other moveable. The respondent to this appeal was appointed manager by the Custodian to manage these properties. He was appointed on 1-8-1952 and he continued as manager till 30-8-1952. On that date an arrangement was arrived at by which the lease of evacuee properties was granted by the Custodian to a partnership of three persons of whom the respondent was one, and pursuant to this arrangement possession of the properties was given to the partnership on 31-8-1952. The lease was terminated by the Custodian on the 25th May 1954. After the lease was granted the respondent continued to be the manager for the purpose of collecting the dues and discharging the debts in respect of evacuee property for the period 1-8-1952 to 30-8-1952. On 30-6-1954 the Custodian took back the possession of the evacuee properties. He called upon the respondent to submit a statement of accounts with regard to his management of evacuee properties. This statement was submitted by the respondent on 12-8-1954. After considering the statement, the Custodian decided that a sum of Rs. 4,73,000/- and odd was due by the respondent to him and on 30-3-1955 he issued a notice against the respondent to show cause why this amount should not be paid by him to the Custodian. On 5-9-1955 the respondent presented a petition to this Court contending that the Custodian had no jurisdiction to determine the amount payable by him to the Custodian and asking for a direction from this Court to quash the show cause notice. Coyajee J. who heard the petition held that the Custodian had no jurisdiction to determine the amount and therefore the show cause notice was not well founded and passed an order Quashing that notice. The Custodian has now come in appeal.
(2.) THE relevant section that has got to be considered in order to determine the rights of parties is Section 48 (1) and Section 48 (2 ). Section 48 (2) was introduced in the original Act by amending Act XLII of 1954. The original section 48 was to the following effect: "any sum due to the State Government or to the Custodian under the provisions of this Act may be recovered as if it were an arrear of land revenue. " It will be noticed that this is a procedural section which Jays down the mode of recovery of any sum due to Government or the Custodian. It does not purport either to create rights or impose liabilities. The sum that may become due under the provisions of the Act must be ascertained by looking to the other provisions of the statute. Section 48 itself throws no light on what are the sum or sums due under the provisions of the Act. The new Sub-section (2) provided : "for the purposes of Sub-section (1) the decision of the Custodian as to the sum due to the State Government or to the Custodian shall be final. " It is significant that whatever power is conferred upon the Custodian under Sub-section (2) is for the purposes of Sub-section (1) which, as we have already indicated, is a procedural section providing for the mode of recovery of certain sums due to Government or the Custodian. This sub-section makes the decision of the Custodian final, but the finality attaches only to that decision of the Custodian which is given with regard to the sums due to the Custodian, and reading Sub-section (2) in the light of Sub-section (1) it is clear Chat the sums due to the Custodian with regard to which his decision is rendered final are the sums due under the provisions of the Act. It will therefore again be noticed that just as in the case of Section 48 (1), Sub-section (2) does not create any new rights or impose any new liabilities. Having laid down the procedure with regard to the recovery of certain sums under Section 48 (1), the Legislature proceeded further and made the decision of the Custodian with regard to those sums final. It has been argued by Mr. Manekshaw that this section does not confer any power upon the Custodian to decide or determine anything. All that it provides is that this decision, if he has the power to decide, is rendered final, and Mr. Manekshaw's contention is that unless we find somewhere in the Act of power conferred upon the Custodian to decide or determine a matter, we must not import that power into Sub-section (2) of Section 48. In our opinion that contention is clearly untenable. When the Legislature makes the decision of the Custodian final, by necessary implication, it confers upon the Custodian the power to decide. The making of his decision final necessarily carries with it the power to decide that which becomes final, and it would be too technical a construction to put upon Sub-section (2) that because in terms the Legislature did not confer the power to decide upon the Custodian, therefore, he has no power to decide under this sub-section, but the power must be found elsewhere in the statute. But even if the Custodian has the power to decide the question still remains what is the extent and the ambit of his power. The extent and the ambit of his power is clear from the language of Section 48 (1) and that extent and that ambit is confined and limited to deciding and determining what are the sums due to Government or the Custodian under the provisions of the Act.
(3.) THE Solicitor General attempted to argue that this was one of those cases where the Legislature set up a tribunal with a limited Jurisdiction and conferred upon that tribunal not only the power to decide matters in issue but also jurisdictional facts which must exist before the tribunal would have jurisdiction to decide, and therefore the argument was advanced that not only the Custodian had the power to decide what were the sums due to the state or the Custodian, but he had also the power to decide whether any sum was due under the provisions of the Act, and according to the Solicitor General if the Custodian decided that certain sum was due to him under the provisions of the Act that decision of his was final. We are not prepared to accept that contention. When a Court or a Tribunal with a limited jurisdiction is set up, ordinarily it is the duty and the function of the higher Court to see that the Court or tribunal of limited jurisdiction; functions within the jurisdiction conferred upon it. Undoubtedly there are cases in the books which go to show that legislature have set up Courts and tribunals with much wider powers and have conferred upon them the jurisdiction to decide even jurisdictional facts, but those are rare and exceptional cases and unless there is clear language to indicate that legislature intended to set up such a Court or tribunal, as a matter of ordinary construction the Courts or tribunal of limited jurisdiction could not be assumed to possess the power finally to decide facts with regard to their own jurisdiction. Therefore, in our opinion, it is a condition, precedent to the exercise of a power of the custodian under Sub-section (2) that the sum with regard to which he gives his decision or determination must be a sum due under the provisions of the Act. It is not sufficient for the Custodian to say that in his opinion a certain sum is due under the provisions of the Act. That opinion is subject and must always be subject to the scrutiny of the Court to which, he is subordinate and as under Article 227 of the Constitution every tribunal is subordinate to the High Court, the High Court has the power to examine the decision of the Custodian from the point of view of deciding whether he has acted within jurisdiction.;