P (PLP)

It cannot be disputed and has not been disputed that the declaration as to what body of persons in any district ought to be deemed agricultural tribes or groups of agricultural tribes can only be made by the, Provincial Government and no Court has anything to do with it. Similarly, it is for the Deputy Commissioner to determine, where such question or doubt arises, whether a person is or is not to be deemed to be a member of an agricultural tribe. It is also clear that the Deputy Commissioner has plenary powers to declare a person a m3mber or not of an agricultural tribe notwithstanding the fact that a different order had been made on a previous occasion or there was a decree of a Civil Court, holding that person a member of a tribe notified as agricultural tribe. These matters are exclusively the concern of the Deputy Commis sioner or any other Revenue Officer referred to in the Act. The Civil Courts as such cannot interfere. As mentioned above, the plaintiff assailed the order of the Deputy Commissioner, dated 19th of March 1946, on four grounds. Numbers 1 and 2 are clearly covered by subsection (2) of section 4, and the Civil Court cannot go into them. Number 3 has no relevancy. The dispute centres only around No. 4, based on the allegation that the order to the prejudice of the plaintiff was passed in his absence and without giving him an opportunity to prove his own case. Subsection (2) of section 4 lays down that " the Deputy Commissioner shall, `'after such enquiry as may be prescribed, determine whether that person is to be deemed to be a member of the said agricultural tribe for the purposes of this Act". An enquiry in the prescribed manner must, therefore, precede the finding of the Deputy Commissioner about a person being or not being a member of an agricultural tribe. The rules regarding the enquiry came into force on 1st of June 1939'and are known as " the Punjab Alienation of Land Act Rules, 1939 ". Rule 6 may be quoted :‑ " Every enquiry under section 4 (2) of the Act shall be held by the Deputy Commissioner or by an Assistant Collector under the orders of the Deputy Commissioner. The enquiry officer shall cause notice to be served on the person concerned and shall record the statements of witnesses produced by the person concerned or summoned by himself and shall examine such documentary evidence as may be produced". The enquiry may be made either by the Deputy Commissioner himself or under his order, by an Assistant Collector. A notice by the authority holding the enquiry, is to be served on the person concerned and the statements of his witnesses have to be recorded as also the examination made of the documentary evidence that may be produced. It is only after this enquiry has been made, that the Deputy Commissioner is to make an order under subsection (2) of section 4 of the Punjab Alienation of Land Act. Any order passed by him, holding a person a member or not a member of an agricultural tribe, without the enquiry to be made under the rules of 1939, would not be in accordance with the requirements of the Act. Section 9 of the Code of Civil Procedure clearly says :‑‑‑ " The Courts shall (subject to the provisions herein contained) have jurisdiction to try .all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation.‑A suit in which the right to property or to an office is contested, is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of question as to religious rites or ceremonies." The jurisdiction of the Civil Court to try all suits of a civil nature is to be presumed and it is for the person objecting to the jurisdiction, to prove that the suit is of a nature of which cogni zance is " either expressly or impliedly barred". A suit dealing in a matter that the Local Government or the Revenue Officer is empowered to dispose of under the Punjab Alienation of Land Act or a suit taking cognizance of the manner, in which the Local Government or any Revenue Officer exercises any power vested in it or in him by or under the Punjab Alienation of Land Act. are expressly taken out of the jurisdiction of the Civil Court. But, the jurisdiction is barred only where the act of the Revenue Officer or the Local Government falls strictly within the four corners of the statute. Where something is done in excess of the powers conferred by the statute, the Civil Court shall have a right to interfere. Similarly, where a question arises whether there has been a strict compliance with the requirements of the statute, the Civil Court shall have a right to enquire into it. One of the principles on which the jurisdiction of the Civil Court can be exercised, was clearly laid down in Smith v. Queen L. R. (1878) 3 A. C.

614. The question there was whether a grant of land by the Crown had been duly forfeited. Forfeiture was to be made by the order of a Commissioner under the Crown Lands Alienation Act. A grant was to be held forfeited if, at any time during the currency of the lease, it was proved to the satisfaction of the Commissioner that tire lessee had abandoned his selection and failed in regard to the performance of his conditions of residence during a period of six months, whereupon an order of forfeiture might be made by the Governor. The matter was brought before the Courts in a suit to contest ejectment and coming eventually before the Privy Council, Their Lordships made the following observations :‑ " It appears to them that the defendant has not been heard in the sense in which " a hearing " has been used in the cases which have been quoted in many others, and in the sense requir ed by the elementary principles of natural justice. The Commis sioner doubtless acted with perfect good faith, but apparently without being aware that he was performing a judicial function, or even a function of judicial nature. He has not stated upon what evidence he formed his opinion, whether written or viva voce, whether direct or hearsy. He refused to furnish the solicitor of the defendant with any note or memorandum of that evidence, to give him any information as to who the witnesses against his client were, or even what was the general character of their evidence. The defendant could not answer or explain testimony of which he was kept in ignorance, and therefore was not heard in his defence in any proper sense of that term." It was held that the Governor had no jurisdiction to issue the proclamation of forfeiture. In Secretary of State v. Mask & Co., reported as A. I. R. 1940 P. C. 105, a case under the Sea Customs Act (1878), their Lordships laid down:‑-- " It is a 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. 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 to confirmity with the fundamental principles of judicial procedure." A more recent case, Muhammad Din etc. v. Imam Din etc., reported as A. I. R. 1948 P. C. 33, may also be profitably referred to in this connection. It was pointed out : "Their Lordships have no doubt that the Civil Court has power to entertain a suit, in which the question is whether the executive authority has acted ultra vires". This arose under the Colonisation of Government Lands Act, 1912, at the time of the grant of proprietary rights to a tenant on payment of the zari‑i‑milkiat " proper purchase price " a condition was attached that the land should not be alienated during the tenure of the grantee " without the con currence of the reversioners ". An imposition of such a condition would mean granting rights, which are very different, and in fact creating an estate of a kind unknown to the law, for the result of a grant with such a condition would be to deprive the grantee of proprietary rights of an essential right of property, viz., the free power of disposition, and moreover to fetter it not by an absolute bar against alienation nor by such a bar except with the consent of a particular person, but by a bar against alienation " except with the concurrence of the reversioners," a body of persons presumably altering from time to time and perhaps at no time easily ascertain able. It was also held that section 3, Crown Grants Act, did not justify a grant with such a condition imposed, Their Lordships consequently directed that the original grant by the Deputy Com missioner, who clearly acted within his competence, should stand and the so‑called condition imposed by the superior executive authority, which was in their view incompetent, should be dis regarded. The weight of the above observations of their Lordships of the Privy Council should be viewed in reference to the language of section 36 of the Colonization of Government Lands, Act V of 1912. The section is as follows :‑

"A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the manner in which the Provincial Government or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act." Its language may be compared with that used in section 21 of the Punjab Alienation of Land Act. The phrase "shall not take cog nizance of the manner in which the Provincial Government or Revenue Officer exercises any power vested in it or in him by or under this Act," is common in both. The words "of the manner did not preclude the Civil Court from giving its own decision as to the legality or otherwise of a condition imposed upon the grant, which was not contemplated by the Colonization of Government Lands Act. Consistently with the provisions of the Punjab Alienation of Land Act 1900, .the expression " no Civil Court shall take cognizance of the manner " must in its application be restricted to the matters which fall within the unfettered discretion of the Revenue Officer or the Provincial Government. There are several such matters. By way of illustration, under section 9, the Deputy Commissioner, in the case of a mortgage by an agricul turist, has power to revise and alter the terms of the mortgage, so as to bring it in accordance with such form of mortgage permitted under or by this Act as the mortgagee appears to him to be equitably entitled to claim. Under section 14, any permanent alienation of land by an agriculturist to which sanction has not been given, the Deputy Commissioner shall have the authority to convert into a usufructuary mortgage, permitted by section 6 for such term not exceeding 20 years and on such conditions, as the Deputy Commissioner considers to be reasonable. Under section 4 (1), the Provincial Government has the exclusive right to determine what bodies of persons in any district or group of districts are to be deemed to be agricultural tribes or groups of agricultural tribes for the purposes of this Act. In such cases, the Civil Court shall not sit in judgment on such orders or enquire into the reasons therefore. It would be too, much to say and would verge upon absurdity' to allege that the Legislature intended that even the whims and caprices of the Revenue Officer should be beyond question by the Civil Court. A. I. R. 1948 P. C. 33 was cited before the learned Senior Sub-Judge. He dismissed it with the remarks :‑ "That was a case under the Colonization of Government Lands Act and it does not appear from the judgment that there was any provision in the Act which expressly barred the juris diction of the Civil Court as section 21 of the Punjab Alienation of Land Act has done. This ruling, therefore, cannot help plaintiff. Evidently, it was not brought to the notice of the learned Senior Sub‑Judge that section 36 of the Colonization of Government Lands Act was couched in almost identical language with section 21 of the Punjab Alienation of Land Act. It was contended for the respondent and this contention pre vailed with the trial Court that, if the procedure contained in Rule 6 of the Punjab Alienation of Land Act, Rules of 1939, was not followed, the only remedy open to the plaintiff was by way of appeal under section 13 (b), or revision under section 13 (c) of the punish Alienation of Land Act and not by a regular suit. The plaintiff did avail of the chance of making an appeal to the Com missioner, but it was dismissed as time‑barred. The appeal is no doubt provided in section 13 (b) against an order passed whether in original or on review by a Deputy Commissioner under section 4, and the powers of revision are given to the Financial Commissioner under section 13 (c). These powers will certainly correct the mistakes made by the Deputy Commissioner or the Revenue Officer in making an order under section 4 of the Act. The superior officers may not agree with the view of the Deputy Com missioner or other Revenue Officer that a particular person was or was not a member of a notified agricultural tribe or may even satisfy themselves that the enquiry prescribed in subsection (2) of section 4 had been instituted, before the order under subsection (2) was made which appears to be absolutely necessary to make, sup posing that the enquiry, before the order is passed under subsection (2) of section 4, were never made and the Deputy Commissioner and the superior officers either deliberately ignored this aspect or overlooked that the 'enquiry was really necessary, is there no other remedy open to the aggrieved person ? The learned Sub‑Judge says no. The trend of the authorities cited above is in a contrary direction. The Civil Court, as a Court of general jurisdiction, has the power to examine, with a view to see, if the requirements of the special Act, under which the authority was allowed to be exercised, by a particular person or officer, have or have not been fulfilled. The enquiry cannot be shut out. If it is found that there has been a full compliance with the provisions of the Act ousting the jurisdiction of the Civil Court, the Civil Court shall decline to proceed further. If the result is otherwise, the Civil Court shall declare that the provisions of the Act were not followed in a specified matter or matters. Such a declaration by the Civil Court shall not preclude the Deputy Commissioner from making an order, which the law empowers him to make under subsections (2) and (3) of section 4, after the illegality pointed out by the Civil Court had been removed. In the present case, if it be established that the plaintiff was given no opportunity to present his own case or produce relevant evidence in support of his position, as allowed by Rule 6 referred to above, he shall be given such an opportunity before an order to his prejudice is made. If the requisite opportunity has already been allowed, this finding shall conclude the suit brought by him. In view of the above the appeal is accepted. The case is remanded to the trial Court with the direction that the plaintiff be permitted to lead evidence to prove his allegation that, before making the order of 19th of March, 1946, the Deputy Commis sioner did not serve him with a notice and did not give him the opportunity to produce his evidence. The learned Sub‑Judge shall then decide the case according to law. As the point involved was of considerable difficulty; the parties are left to bear their own costs throughout. K. M. A. Case remanded.