- (1.) THIS is an appeal against the order of remand passed by the learned District Judge, Bharatpur. The plaintiff Nathilal was a tenant of certain evacuee property which had vested in the Custodian Rajasthan. The Deputy Custodian, Bharatpur, issued eviction orders for the forcible eviction of the plaintiff. Thereupon, the plaintiff filed the present suit alleging that the eviction order was given without issuing notice as required under rule 14 (4) of the Administration of Evacuee's Property Central Rules, 1950, and prayed for a permanent injunction, that the Deputy Custodian, Bharatpur, should be restrained from obtaining forcible possession of the property. The Deputy Custodian, Evacuee Property, Bharatpur filed the written statement taking various objection to the maintainability of the suit. One of the objections was that the suit was not cognisable by civil court as the jurisdiction of the civil court is barred under sec. 46 of the Administration of Evacuee Property Act, 1950 (hereinafter called the Act ). The learned Civil Judge Bharatpur in whose court the suit was instituted dismissed the suit on that ground. He also held that the relief for the permanent injunction cannot be granted under sec. 17 of the Act. The plaintiff went in appeal to the court of the District Judge, Bharatpur, who held that the jurisdiction of the Civil Court was not barred and remanded the case for trial in accordance with Jaw.
(2.) THE main question in this appeal is whether the jurisdiction of the civil court is barred because of sec. 46 of the Act. Before taking up this point, it is necessary to refer to certain provisions relating to the power of the Custodian to vary and cancel the lease. Sec. 12 of the Act provides that the Custodian may cancel any allotment or terminate any lease notwithstanding anything contained in any other law. Sec. 56 of the Act provides that the Central Government may by notification in the official gazette make rules to carry out the purposes of the Act. In exercise of the power conferred by sec. 56 of the Act, the rules. Rule 14 (4) provided that before cancelling or varying the terms of the lease or before evicting any lessee the custodian shall serve the person or the persons concerned with a notice to show cause against the order proposed to be made and shall afford him the reasonable opportunity of being heard. It is admitted in this case, as has been mentioned in the judgment of the learned District Judge that no notice as required in rule 14 (4) was served on the plaintiff by the Custodian Rule 14 (4) makes it a condition precedent for cancellation or varying the terms of the lease or for evicting any lessee that a notice to show cause against the order proposed to be made, should be served on the person against whom the order is purported to be made. Service of such notice is therefore, mandatory under rule 14 (4) which is a part of the Act and it is clear in this case that the Custodian committed a breach of the mandatory provision as contained in the aforesaid rule. Now I turn to the question of jurisdiction of the civil court. Section 46 of the Act runs as follows: - "jurisdiction of civil court barred in certain matters. 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 (b ). . . . . . . . . . . . . . . . . . (c) to question the legality of any action taken by 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. In the particular case it is clause (s) which is under consideration. There is no doubt that under sec. 46 (c) the jurisdiction of civil court to question the legality of any action taken by the Custodian under the Act is barred. In order that the jurisdiction of the civil court may be barred it is necessary that the action taken by the Custodian must be under the Act. The action in this case was taken by the Custodian purporting to act under sec. 12 of the Act, but sec. 12 is to be read along with rule 14. The Custodian did not follow the mandatory provision contained in rule 14 (4) and it cannot be said, therefore, that he was acting under the Act. It is clear from the reading of sec. 46 (c) that the jurisdiction of a civil court is barred only in cases in which the Custodian has acted in conformity with the provision of the Act and the rules made thereunder. If he had not followed the mandatory provisions provided under the Act in taking a particular action, he cannot be said to have acted under the Act. It has been observed by their Lordships of the Privy Council in the case of" Secretary of State vs. Mask & Co (1) as follows - "it is settled law that the exclusion of the jurisdiction of the civil, courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied and that is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction 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 the case of Ebrahim Aboobakar vs. Custodian General of Evacuee Property, New Delhi (2) it is observed by their Lordships of the Supreme Court - "want of jurisdiction may arise from the nature of the subject matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. " In the case before me, want of jurisdiction in the Custodian did arise from the absence of some essential preliminary i. e. , failure to issue notice as provided under R. 14 (4) of the Rules. In the case of Abdul Majid Haji Mahomed vs. P. R. Nayak (3), it has been observed by a Division Bench of Bombay High Court - "the question that arises in limine is whether in view of sec. 43 (c) it is open to the Court to question the legality of any action taken by the Custodian under the Ordinance. There can be no doubt that what the petitioner is doing is to question the legality of the action taken by the Custodian in vesting his property and also in issuing directions relating to that property. Shah J. took the view that the jurisdiction of the Court was barred under this section. It is clear that whether under sec. 28 or under sec. 43, the jurisdiction of the Court to consider any order passed by the Custodian or any action taken by him would not be barred if the order 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. But if a party succeeds in establishing that the action taken or the orders passed were outside the purview of the Ordinance, then those would not be the orders or the action taken within the meaning of sec. 28 or 43. Any order passed or any action taken in excess of jurisdiction or in the improper exercise of jurisdiction would not be an order or action contemplated by these two sections. " This case was followed by the Saurashtra High Court in the case of Bai Marium Haji Ali Mohmad vs. The Assistant Custodian of Evacuee Property, Jaipur (4 ). In a recent case of the Pepsu High Court in the case of Jagat Singh vs. Nidhan Singh (5) it is observed - "the jurisdiction of the civil court is not excluded where the order is made in the absence of a fact on the existence of which alone depends the jurisdiction of the officer or authority making the order, because the special jurisdiction of such officer or authority does not carry with it a power to action beyond and outside that jurisdiction. " Thus the view taken by the learned District Judge is supported both on principle and on authorities. The learned Deputy Government Advocate, who argued the case for the appellant, referred to the case of Sultan Ali Nanghiama vs. Nur Hussain (6) (F. B. ). But that authority rather supports the view of the learned District Judge. The following observations may be quoted with advantage: "it may be that in such cases the party seeking to enforce right is entitled to claim the constitution of the tribunal by petitioning the relevant authority or by instituting a property framed action or to object to its improper constitution exceeding its jurisdiction for acting in an unauthorised manner in the exercise of its jurisdiction, as it is a settled rule that the jurisdiction of a special tribunal may be limited by conditions as to its constitution, as competent to try, and as to the orders which it is empowered to make or by other conditions which the law makes essential to the validity of its proceeding and orders. As the jurisdiction of the civil courts is excluded only to the extent that the power or adjudication is given to the special tribunal, while such courts cannot assume to themselves the functions of the special tribunal, they would be perfectly competent to entertain and determine all actions the object of which may be to seek the determination of the right in the manner in which the statute intended it to be determined. " If an executive authority acts ultra vires not in conformity with the provisions of the law under which it purports to act, a civil court is not debarred from entertaining an action against that executive authority. Reference in this connection may be made to the case of Mohammad Din vs. Imam Din (7) wherein it has been laid down that "the civil courts had jurisdiction to entertain suits where the question is whether the executive authority had acted ultra vires. " In this case the Deputy Custodian Bharatpur failed to follow the essential preliminary conditions before ordering the eviction of the plaintiff and as observed above, he cannot be said to have acted and exercised power under the Act. The learned Civil Judge had also dismissed the suit on the ground that, under sec. 17, he had no power to grant permanent injunction against the defendant. On the bare reading of this section, it is not applicable to the present case. The appeal has got no force and is dismissed with costs. .;