HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR C.Rev. 140 of 1999 Tariq Hameed Kara petitioner Ghulam Mohi-ud-din Wani & Ors. respondent !Mr.Z.A.Qureshi, Advocate ^Mr.M.H.Attar, Advocate The Hon'ble Mr. Justice Hakim Imtiyaz Hussain Date: 07/02/2005 : J U D G M E N T :
The question involved in the case is as to ‘whether the
jurisdiction of a Civil
Court is excluded to grant injunction in respect of evacuee property in a suit
filed by an
allottee against private persons.’
Tariq Hamid Kara legal heir of Kaukab Jabeen W/o Lt. Ab. Hameed
Karra
(Advocate) R/o Shivpora, Srinagar has filed this revision petition against the
order of City
Munsiff Srinagar dated 02-08-1999 passed on file no. 647/Numberi titled Tariq
Hameed
Karra vs. Ghulam Mohi-ud-din Wani and Ors.
The facts relevant for the disposal of the present petition are that
Tariq
Hameed Karra petitioner herein filed a suit for perpetual injunction against Gh.
Mohi-ud-
din Wani & Ors. (respondents). The matter relates to land which has been fully
described
in the plaint before the Civil Court. The land is evacuee land and therefore
under the
management of Custodian, Kashmir. The petitioner claims to be the legal heirs of
the
original owners-evacuees and, therefore, by means of separate proceedings the
land has
been duly allotted by the Custodian Kashmir in his favour. There is no dispute
over these
facts. By means of the allotment the petitioner has come into possession of the
suit land.
He is enjoying the fruits of the property and is looking after it. It is alleged
by him that
defendants-respondents, who are the residents of Shivpora for one reason or the
other are
trying to interfere with the possession of the petitioner over the suit
property. He has
therefore, prayed for a decree of perpetual injunction restraining the
respondents from
interfering in the possession of the petitioner over the suit property.
The respondents appeared before the trial Court and raised the plea that
the suit
property being evacuee property Civil Court had no jurisdiction to try the suit
as the same
was hit by Section 31 of J&K Evacuee (Administration of Property) Act. The trial
Court
on consideration of the matter agreed with the plea raised by the respondents
and held that
the Court had no jurisdiction to try the suit. It accordingly dismissed the suit
by means of
the impugned order. The court observed as under:-
“Accordingly in view of the above discussion and the facts and
circumstances of the case and in the light of the case law referred by the
counsel for the respective parties, the suit is hit by provisions of Section 31
of the Evacuee Administration of Property Act. This court has no
jurisdiction to try the suit, the suit is accordingly dismissed. The order
passed in the temporary injunction application on 24.2.1999 stands vacated.
However, the plaintiff shall be at liberty to take other appropriate action as
may be permissible under law before the appropriate forum. No order as to
costs. The file is accordingly disposed off, after due completion, the same
shall go to records.”
Aggrieved by the said order the present petition has been filed with the
prayer that the main suit does not fall within the provisions of the J&K Evacuee
(Administration of Property) Act as such the court had the jurisdiction and by
holding otherwise the trial court has failed to exercise jurisdiction so vested
in it and
has therefore, caused failure of justice.
Heard.
The only point raised by the Ld. Counsel for the respondents to
contest the present revision petition is that the Civil Court in view of the
provisions
of Sections 15 and 31 of the J&K Evacuee Administration of Property Act (for
short
the Act) does not have the jurisdiction to grant injunction in respect of the
property
which falls within the definition of Evacuee Property under the Act. In this
behalf
he has referred two authorities of this Court cited as Karan Singh v. Sushila
Rajpoot 1997KLJ 62 and Satpal v. Chanak Ram 1993 SLJ368.
Section 15 of the Act provides as under:-
Exemption from attachment, sale, etc._(1) No property which has
vested in the Custodian shall be liable to attachment, distress or sale in
execution of a decree of a. order of a Court or of any other authority],
and no injunction in respect of any b.such property shall be granted by
any Court or other authority.
(2) Any attachment or injunction subsisting on the commencement of
this Act in respect of any evacuee property which has vested in the
Custodian shall cease to have effect on such commencement, and any
transfer of such property under the orders of a Court or any other
authority made after such date as may be specified in this behalf by the
Government by notification in the Jammu & Kashmir Government
Gazette, shall be set aside if an application is made to such Court or
authority by or at the instance of the Custodian within three months
from the commencement of this Act.”
This section according to the Ld. Counsel for the respondents ousts
the jurisdiction of Civil Court and exempts the evacuee property from
attachment, distress or sale and execution of decree and specifically provides
that no injunction in respect of any such property shall be granted by any
court or other authority.
Section 31 bars the jurisdiction of Civil Court in certain matter. It
provides:-
1) “save as otherwise expressly provide in this Act, no Civil Court shall
have jurisdiction___
i) to entertain or adjudicate upon any question whether any property is
or is not evacuee property or whether any evacuee has or has not any
interest in any evacuee property.
ii) To question the legality of any action taken by Custodian General or
the Custodian under this Act.
iii) In respect of any matter which the Custodian General or the
Custodian is empowered by or under this act to determine.”
Under Section 31 therefore, the jurisdiction of Civil Court is
barred in
the following matters:
a) to entertain or adjudicate upon any question whether any property is or is
not evacuee property or whether any evacuee has or has not any interest
in any evacuee property;
b) whether an evacuee has or has not any right or interest in any evacuee
property;
c) to question the legality of any action taken by the Custodian General or
the Custodian under the Act;
d) in respect of any matter which the (Custodian General or the Custodian)
is empowered by or under the Act to determine.
This provision, as is clear from its plain language provides that
when any
action is required to be taken by the Custodian or Custodian General under the
Act
the legality of such a question cannot be challenged before a Civil Court nor
can the
Civil Court decide regarding any right in respect of evacuee property as the
questions as to whether the property is or is not an evacuee property is
required to be
decided, under the Act, by the authorities only. The scheme of the Act however,
shows that while the authorities under the Act have got powers to deal with and
determine certain issues including the questions regarding the nature of
property, the
authorities have got no powers to grant or refuse injunction to preserve or
protect the
property, against a private party.
This section, therefore, bars jurisdiction of a Civil Court only in
matters
which are specifically mentioned in the Section. Adjudication of matters falling
beyond this Section will definitely fall within the jurisdiction of Civil Court.
Ld. Counsel for the respondents has taken resort to Section 15 which
according to him, excludes the jurisdiction of Civil Court in respect of
attachment,
distress or sale and execution of decree. The Ld. Counsel referring to the word
injunction, would argue that since no injunction could be passed under the said
section, a suit for perpetual injunction would not lie before a Civil Court .
The
argument of the Ld. Counsel is devoid of any merit. A conjoint reading of
Section
15 and 31 bars the jurisdiction of Civil Court only in matters which fall within
the
competence of Custodian or the Custodian General. Similarly Section 15 on the
other hand bars the grant of remedy in certain cases not the jurisdiction. It
nowhere
bars the jurisdiction of civil Court but exempts the Evacuee property from
attachment, distress, sale or injunction. Exemption of the property does not
amount
to exclusion of jurisdiction of the civil Court.
The suit before the trial Court is a civil suit between private
individuals
where neither the order passed by the authorities under the Act nor any issue
relating
to the exercise of jurisdiction by these authorities is involved. It will by no
stretch of
imagination fall either within section 15 or Section 31 of the Act.
The authorities relied upon by the Ld. Counsel for the respondents
also
cannot support him on the ground that the points in issue in both the
authorities were
entirely different from the one raised in the present case. In Karan Singh v.
Sushila
(supra) the Court was dealing with the issue of raising new structures on
evacuee
property, the Court held:-
“power to make alteration in evacuee property or raising new structures
are vested in the Custodian in terms of Section 9 of Evacuee
Administration of Property Act. As such Civil Court has no jurisdiction
and its jurisdiction is barred under Section 9 of CPC. The facts of the case
are that the plaintiff of that case has filed a suit for permanent prohibitory
injunction against the defendants restraining them from interfering in
construction of stairs and bath rooms in a house which admittedly an
evacuee property. The trial court has framed the issues and one issue
framed was whether court has no jurisdiction try the suit. The trial Court
has decided the issue in favour of plaintiff but the Hon’ble High Court in
the revision petition has quashed the order and has held that the Civil
Court has no jurisdiction in view of the provisions of Evacuee
Administration of Property Act to try the suit.”
Similalrly in Satpal v. Janak Ram (supra) the plaintiff had raised
complicated questions regarding the right of the parties over the property. He
had
alleged that his father and father of the defendants were displaced persons who
were
allotted two separate pieces of land out of the evacuee land and by mutual
consent
both of them had exchanged their respective portion of land. Later when the
dispute
arose the defendants denied the exchange of allotted land. In view of the
issues
involved it was held that the Civil Court had no jurisdiction to try the case
u/s 31 of
the Evacuee (Administration of Property)Act.
Law relating to exclusion of the jurisdiction of Civil Court to
hear
cases of civil nature is now settled by the Apex Court by catena of authorities.
In
Dhualbai v. State of M.P AIR 1969 SC 78 the Apex Court held that an exclusion of
the jurisdiction of the civil Court is not readily to be inferred. The Court
further
observed that where there is no express exclusion of the jurisdiction of the
Civil
Court the examination of the remedies and the scheme of the particular Act to
find
out the intendment becomes necessary and the result of the inquiry may be
decisive.
It is necessary to see if the statute creates a special right or a liability and
provides
for the determination of the right or liability and further lays down that all
questions
about the said right and liability shall be determined by the tribunals so
constituted,
and whether remedies normally associated with actions in civil courts are
prescribed
by the said statute or not.
In Dwarka Prasad Agarwal v.Ramesh Chandra Agarwala AIR 2003
SC 2696 , the Apex Court observed as under:-
” The dispute between the parties was eminently a civil dispute and not a
dispute
under the provisions of the Companies Act. Section 9 of the Code of Civil
Procedure confers jurisdiction upon the civil Courts to determine all disputes
of
civil nature unless the same is barred under a statute either expressly or by
necessary implication. Bar of jurisdiction of a civil Court is not to be readily
inferred. A provision seeking to bar jurisdiction of civil Court requires strict
interpretation. The Court, it is well-settled, would normally lean in favour of
construction, which would uphold retention of jurisdiction of the civil court.
The
burden of proof in this behalf shall be on the party who asserts that the civil
Court’s
jurisdiction is ousted. (see Sahebgouda (dead) by LRs. And others v. Ogeppa and
others (2003 (3) SC 13). Even otherwise, the civil court’s jurisdiction is not
completely ousted under the Companies Act, 1956.”
Similar observations were made in Sahebgouda v. Ogeppa 2003 (3)
SCC 13.
A careful perusal of the provisions of Sections 15 & 31 of
the Act,
relied upon by the Ld. Counsel for the respondents shows that the jurisdiction
of the
Civil Court to hear a suit of injunction interse private parties is nowhere
expressly
barred.
Another important test to determine as to whether the
jurisdiction of a
civil Court is excluded under the provisions of a special Act is to see as to
whether
the Act provides for the alternate forum and remedy. The Act does not provide
any
mechanism or remedy where a private party threatens to invade the right of the
allottee over the property. If argument of exclusion of civil courts
jurisdiction in all
matters under the Act is accepted, it will left an allottee with no remedy in
case its
possession over the Evacuee property is interfered with by a private party.
In view of this legal position the jurisdiction of Civil Court
cannot be taken
to have been excluded by the provisions of the Act in cases where an allottee
claims
a relief of an injunction from a civil court if his possession over the property
is
interfered with by a private party.
The present revision petition is, therefore, accepted, the impugned
order is
set aside .
Order accordingly.
Let the parties appear before trial Court on 3.3.2005.
Srinagar
02.2005 (Hakim Imtiyaz Hussain)
Judge
Mujtaba