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Reference Custodian No. 6 of 1956, by the Assistant Collector, Poonch, dated 18th February, 1956.

, Ss. 99, 100‑Assistant Collector's reference to be made through Commissioner under S. 99 and not S. 100‑Reference be made after hearing parties‑Revenue Officer's doubt that he is precluded from taking cogni zance‑Whether condition precedent to making reference to High Court.

S. 77 . Group 11, cl. (d) protection of Evacuee Property Act, 1950, S. 11‑Latter provi sion overrides former‑Deputy Custodian competent to decide question of claim to an occupancy tenancy under evacuee landlord.

Plaintiff filed a suit in the Court of the Assistant Collector, 1st Grade, Pallandri under section 77 Group 11, clause (d) of the Tenancy Act and prayed that he should be declared occupancy tenant of the land under landlord, a similar suit had been filed by in the Court of Deputy Custodian which was decided by the Deputy Custodian dismissing the suit. On appeal the Custodian, after some inquiry, upheld that decision.

The Assistant Collector, 1st Grade, was of the view that the Deputy Custodian was not competent to entertain and adjudicate upon the claim of the plaintiff that he was an occupancy tenant in view of the provisions of section 77 Group Il clause (d) of the Tenancy Act, because only a Revenue Court had jurisdiction to hear such claim and adjudicate upon it. He, therefore, referred the matter to the High Court.

Question was whether the Deputy Custodian was competent to adjudicate upon the applicant's claim.

Held, that S. 11 of Protection of Evacuee Property Act, 1950 being later in date, would override the provisions of S. 77 of tenancy Act (XVI of 1887) so far as evacuee property was concerned.

The Deputy Custodian therefore was competent to adjudicate upon the claim.

Zain‑ul‑Abdin Shah for Plaintiff.

Kh. Muhammad Sharif for Rehabilitation Authority and the Custodian.

This is a reference by Chaudry Mir Zaman, Assistant Collector, Ist Grace, Poonch, Pallandri which was despatched to this Court under No. 918 dated the 18th February, 1956. Hassan Shah plaintiff filed a suit in the Court of the Assistant Collector, Ist Grade, Pallandri under 'section 77 Group II, clause (d) of the Tenancy Act and prayed that he should be declared occupancy tenant of the land measuring 45 kanals and 5 marlas comprised of Khasra Nos. 79, 80 and 81 situate in Bandi Abbaspur, Tehsil Haveli, Poonch under General Faqir Chand, the landlord, who has since left this place and is an evacuee. A similar suit. had been filed by Hassan Shah in the Court of Deputy Custodian, Haveli on 12th April, 1953, which was decided by the Deputy Custodian on 21st January, 1954 dismissing the plaintiff's suit. On appeal to the Custodian, a report was called by the Custodian by his order dated the 24th June, 1954 from the Deputy Custodian, Haveli on the point whether Hassan Shah was an occupancy tenant of the suit land or not. The Deputy Custodian after framing an issue "whether Hassan Shah was an occupancy, tenant of the suit land", allowed an opportunity to the parties to produce evidence and then submitted his report to the Custodian on 21st September, 1954 in which he held that Hassan Shah and his brother Akbar Shah had failed to prove that they were occupancy tenants of the suit land. This finding was upheld by the Custodian by his order dated the 7th February, 1955.

The Assistant Collector, 1st Grade, Poonch is of the view that the Deputy Custodian was not competent to entertain and adjudicate upon the claim of Hassan Shah, that he was an occupancy tenant in view of the provisions of section 77 Group II clause (d) of the Tenancy Act, because only a Revenue Court had jurisdiction to hear such claim and adjudicate upon it. He has, therefore referred the matter to this Court.

The Assistant Collector in his reference quoted section 100 of the Tenancy Act as the section under which he was making the reference. This is obviously wrong. He could not have made a reference to this Court under section 100 of the Tenancy Act. The proper 'section under which such a reference could be made by him is section 99 of the Tenancy Act and in that too the reference should have come through the Commissioner after hearing the parties to the suit. This, the Assistant Collector has not done which is wrong. The second thing noteworthy in the reference is that the Assistant Collector has not expressed any doubt whether he is precluded from taking cognizance of the suit' which is a necessary condition for making a reference to this Court. He is on his part confident that the Deputy Custodian had no jurisdiction to hear the suit and decide it. It is, therefore contended by the learned Counsel for the Rehabilitation Department that on this ground too the reference should be thrown out. I make no secret of the fact that the reference can be thrown out on the grounds pointed out above but since I feel that the point involved in the reference is not free from difficulty, the matter should be clarified for guidance of the Courts in future.

There is section 77 of the Tenancy Act which lays down, "that the suits mentioned therein shall be instituted in and heard and determined by Revenue Court, and no other Court shall take cognizance of any such dispute or matter with respect to which any suit might be instituted". A suit by a tenant to establish a claim to a right of occupancy falls in the second group of section 77 of the Tenancy Act and is, therefore, triable by a Revenue Court only. But on the other hand there is section 11 of the Protection of Evacuee Property Act of 1950 which lays down "that no Court shall entertain or adjudicate upon a claim. in any suit, appeal, execution application or other proceedings . . . . . . as to what interest, if any, an evacuee has in such property etc". Thus section 11 of the Protection of Evacuee Property Act clashes with the provisions of section 77 of the Tenancy Act. According to section 11 of the Protection of Evacuee Property Act, the claim of Hassan Shah could only be determined by the Deputy Custodian because in this suit, the interest of the evacuee in the suit land had to be determined. It is, therefore, to be seen, whether the provisions of section 11 of the Protection of Evacuee Property would override the provisions of section 77 of the Tenancy Act. An author must be supposed to be consistent with himself and the work of the legislature is treated in the same manner as that of any other author. The language of every enactment must be construed as far as possible in accordance with the terms of any other statute which it does not in express terms modify or repeal. The law will not allow the revocation or alteration of a statute by construction when the words may be capable of proper operation without it. It will not be assumed that the Legislatures have given with one hand what they have taken away with another, but it is impossible to construe absolute contradictions. Consequently, if the provisions of a later Act are so inconsistent with, or repugnant to those of an earlier Act, that the two cannot stand together, the earlier Act stands impliedly repealed by the later. Thus, since 1the Protection of Evacuee Property Act is later in date, the provisions of section 11 of this Act will override the provisions of section 77 of the Tenancy Act, so far as evacuee property is concerned. The Deputy Custodian was, therefore, competent to adjudicate upon the claim of Hassan Shah and his brother and the Revenue Court is, therefore, no competent to entertain the claim. With this answer, the reference is returned.

S. K./A. H. Reference answered.

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