Full Judgment
S.K. Katriar, J.
1. Heard learned Counsel for the parties. The appellants are represented by Mr. S.S. Nayar Hussain, learned Sr. Advocate Respondent Nos. 1 to 3 by Mr. Ajay Tripathi, Addl. SCCG, and Respondent Nos. 4(i) to 4(iv) are represented by Mr. Suman Kumar.
2. The plaintiffs are the appellants against a judgment of affirmance. This appeal is directed against the judgment dated 2-2-1999, passed by the learned Additional District Judge, Hilsa, Nalanda, in Title Appeal No. 32 of 1991 Md. Shariff and Ors. v. Union of India and Ors. whereby he has upheld the order dated 3-4-1991, passed by the learned Munisff, Hilsa, in Title Suit No. 19 of 1978, Md. Shariff Mian and Ors. v. Union of India and Ors. The trial Court held that the suit is not maintainable in terms of Sections 42 and 28 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act).
3. The suit properties were declared to be evacuee property after following the procedure prescribed by the Act. The plaintiffs herein had moved the Assistant Custodian, thereafter, the Deputy Custodian, and finally the Custodian-General. Their case before the authorities under the Act was that the property beloged to Abdul Rauf who died leaving behind two sons, namely, Md. Sharif and Md. Hanif. Md. Sharif has had one son, namely, Shorab. It was their further case that they never migrated to Pakistan and, therefore, there was no question of declaration of the suit property to be evacuee property which belonged to Abdul Rauf. The plaintiffs' contention was rejected by all the three authorities under the Act, who held that neither Md. Sharif nor Md. Hanif nor Sohrab was the heir of Abdul Rauf. They have further found that Md. Sharif was not the son of Abdul Rauf. Liaquat was the son of Shafique Mian, whereas Shafique and Liyakat Mian, son and grandson of Abdul Rauf had migrated to Pakistan, leaving behind the suit properties. Md. Sharif and Md. Hanif and Sohrab were not the heirs of Abdul Rauf and they have no right, title and interest in the suit properties.
4. Having exhausted the three-tier remedy under the Act and having lost although, the plaintiffs instituted the aforesaid suit for declaration that they are the heirs of Abdul Rauf and they had never migrated to Pakistan. The trial Court dismissed the suit holding that the suit was not maintainable in terms of Sections 46 and 28 of the Act, which clearly bars a suit. The-plaintiffs preferred appeal before the District Judge who has dismissed the appeal by the impugned judgment and has on the same ground upheld the order of the learned Munisf.
5. Learned Counsel for the appellants has formulated the following substantial questions of law for consideration of this Court:
I. The Act is applicable only to the evaucee property. The plaintiffs' clear case is that they never migrated to Pakistan and they are owners of the suit property. Therefore, the suit is maintainable.
II. The relief sought for in the suit, namely, the plaintiffs are the heirs of Abdul Rauf, cannot be adjudicated by the authorities under the Act, and can be adjudicated only in a duly-constituted suit.
6. Learned Addl. Standing Counsel for the Central Government has strenuously opposed this appeal.
7. Learned Counsel for the heirs of deceased Respondents Nos. 4(i) to 4(iv) has also opposed the appeal. According to him, Sardar Himmat Singh the original Respondent No. 4 had auction purchased the suit property on 4-1-1972 under the Act, and is the owner and in possession of the suit property since then. The suit property was declared evacuee property long time back. In his submission, therefore, the appeal is fit to be dismissed.
8. Having considered the rival submissions, I am of the view that this appeal is fit to be dismissed. After having exhausted the statutory remedies under the Act and lost although, it is no longer open to the appellants to institution a suit. The same is obviously barred by Sections 46 and 28 of the Act as well as Section 9 of the Code of Civil Procedure. Learned Courts below have, therefore, rightly held that the suit is not maintainable. So far as the second contention is concerned, the same is also fit to be rejected. Law is well settled that an authority exercising judicial, quas/-judicial or statutory powers giving rise to civil consequences has all the incidental powers for proper exercise of the dominant power under, the Act which has created the authority, except those displaced by the Statute. If this power were not available to the authorities under the Act, the same (the Act) would be rendered unworkable. The judgment of the Supreme Court reported in : (1961)IILLJ663SC , Bidi, Bidi Leaves and Tobacco Merchants Association v. Bombay State, is relevant in the present context Paragraph 20 of which is set out hereinbelow for the facility of quick reference:
(20) 'one of the first principles of law with regard to the effect of an enabling act', observes Craies, 'is that a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view'. The principle on which this doctrine is based is contained in the legal maxim 'Quando lex aliquid concedit concedered videtur entillud sins quo res ipsa ease non postes.' This maxim has been translated by Brom thus : 'whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect.' Dealing with this docrine Pollock. C.B. observed in Fenton v. Hampton (1858) 117 Rules 32 at p. 41 : 11 Moo PC 347 'it become therefore, all important to consider the true import of this maxim, and the extent to which it has been applied. After the fullest research which have been able to bestow, I take the matter to stand thus : Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something will be supplied by necessary intendment. 'This doctrine can be invoked in cases 'where an Act confers a jurisdiction it also confers by implication that power of doing all such acts, or employing such means, as are essentially necessary to its execution.' In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is found that the duty cannot be discharged or some auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead-letter and cannot be enforced unless a subsidiary power is implied. This position in regard to the scope and effect of the doctrine of implied powers is not seriously in dispute before us. The parties are at issue, however, on the question as to whether the doctrine of implied powers can help to validate the impugned Clauses in the notification.
9. The judgment of a learned Single Judge of the Nagpur High Court, reported in Vol. 6 (1955) Sales Tax Cases Burhanpur Tapti Mills Ltd. v. Board of Revenue, is to the same effect, Paragraph 3 of which is set out hereinbelow:
The general principle laid down in Partingtion v. Attorney General, that there is no room in a taxing statute for what is called the equitable construction only applies to the taxing part of the statute and not to the procedural part. Since an appeal is expressly provided in Sub-section (3) of Section 22B of the Sales-Tax Act, it is implicit that the Board of Revenue can exercice all the powers which are necessary for the proper disposal of the appeal. The law on the subject is laid down in Maxwell on the Interpretation of Statutes, 10th edition, on Page 361 in the following terms:
Where an Act confers at jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui Jurisdiction explicari non poluit.
10. I have, therefore, no manner of doubt that in order to determine whether or not the property in question is evacuee property, the authorities under the Act have incidental powers to adjudicate whether or not the claimants are the heirs of the owner who have migrated to Pakistan and have title and possession of the same. In that view of the matter, the contention advanced on behalf of the appellants is rejected.
11. In the result, this appeal is devoid of merit and is dismissed with costs throughout. No substantial question of law arises for consideration of this Court.