R.S Sarkaria, J.:— Regular Second Appeals 1017, 1019 and 1020 of 1964, arise out of common facts, and will be disposed of by this judgment. The facts in brief are as follows:—

2. Four different suits were brought in the Court of the Senior Sub-ordinate Judge, Hissar, for a declaration against an order, dated 30th March, 1961 of the Additional Director, Consolidation of Holdings Punjab, purporting to have been passed under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, (hereinafter referred to as ‘the Act’), varying the order of the Consolidation Officer to the detriment of the plaintiffs. It was alleged that the said order was ultra vires, without jurisdiction, and illegal inasmuch as no notice as required by the proviso to section 42 of the statute, was ever served upon the plaintiffs, nor were they given any opportunity of being heard in those proceedings before the Director.

3. Suit Nos. 383, 380 and 387, out of which R.S As 1017, 1019 and 1020, have arisen, were decreed by the trial Court on the ground that the order in question had been passed to the detriment of the plaintiffs by the Director of Consolidation of Holdings, without giving the plaintiffs any notice or an opportunity of being heard, as is peremptorily required by the proviso to section 42 of the Act. The trial Court, however, dismissed Suit No. 382; instituted by Harchand son of Indrai, Pohlu sin of Udmi, and Chandgi, son of Jawala, on the ground, that the necessary notice had been served by the Director of Consolidation on Harchand, plaintiff.

4. The defendant went up in appeal to the District Judge against the decrees passed in Suit Nos. 380, 383 and 387. The plaintiffs also appealed against the dismissal of Suit No. 382. The Additional District Judge, Hissar, by his judgment, dated 7th February, 1964, accepted the appeals of the defendants and dismissed Suit Nos. 387, 380 and 383. By the same judgment, he also dismissed the plaintiffs' appeal arising out of Suit No. 302.

5. Aggrieved by that judgment and decree of the Additional District Judge, the plaintiffs of Suit Nos. 383, 380 and 387, have preferred Regular Second Appeals 1017, 1019 and 1020 to this Court, while Harchand, Pohlu, etc. plaintiffs, whose Suit No. 382, was dismissed by the Courts below, have preferred Regular Second Appeal No. 1018 of 1964 which shall be disposed of separately, while the other 3 appeals will be disposed of by this judgment.

6. Mr. D.N Aggarwal, the learned counsel for the plaintiffs-appellants contends that the finding of the learned Additional District Judge, that plaintiffs had failed to prove by conclusive and positive evidence that they were not served with notice or heard before the passing of the impugned order, was manifestly erroneous, if not perverse. Mr. Aguihotri's reply to this objection is more or less an aplogia for the Additional District Judge.

7. I find force in the contention of Mr. Aggarwal, true, that the initial onus for proving the real issue, viz., whether the plaintiffs had not been served with notice or heard before the passing of the impugned order by the Additional Director of Consolidation of Holdings, was on the plaintiffs. The plaintiffs appeared in the witness-box and swore that they never received any such notice, nor were they given any opportunity of being heard by the Additional Director. The records of the case from the office of the Additional Director were also summoned and perused by the trial Court. The records revealed that no such notice had been issued to the plaintiffs in Suit Nos. 387, 380 and 383. That was sufficient to discharge the initial onus for proving this issue that lay on the plaintiffs, and to shift the burden on to the defendants to show to the contrary. The Additional District Judge says that the plaintiffs had failed to prove this negative fact by positive evidence. I fail to understand what more was required of the plaintiffs. The sworn statements of the plaintiffs had not been effectively rebutted. This issue was thus, rightly found by the trial Court in favour of the plaintiffs.

8. Another objection has been raised by Mr. Agnihotri. He says that the civil court was not competent to entertain and determine these suits, because their jurisdiction had been expressly barred by section 44 of the Act, as amended up to 1st August, 1961.

9. Let me examine this contention.

10. Section 44 of the Act reads as follows:—

“No civil court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the State Government or any officer is, by this Act empowered to determine, decide, or dispose of”.

11. It will be useful to reproduce here section 42 of that Act, also:—

“The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit.

Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard (except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration).”

12. Two things may be noted. Firstly, if any order or scheme or repartition is to be varied or reversed in exercise of its powers under section 42 of the Act by the State Government or its delegate, it or he is imperatively required as a condition precedent to the exercise of such jurisdiction, to give notice to the parties interested to appear and also an opportunity of being heard. Secondly the jurisdiction of the civil Court under section 44 is barred in respect of any matter which the State Government or any officer is, by this Act, empowered to determine, decide, or dispose of. The crucial words are “by this Act empowered”. It follows, therefore, that the jurisdiction of the civil Court is barred only where the State Government or the officer concerned acts within the provisions of the Act, and not where he acts illegally in contravention of the mandatory provisions of the Act, or in excess of the powers conferred by it.

13. There is a long array of judicial authorities which have firmly established the rule that, where the special Tribunal or Authority acts ultra vires or illegally, the civil Court has, by virtue of section 9 Civil Procedure Code, power to interfere and set matters right. In the case before me, the power of the State under section 42 of the Act for varying an order, passed by an officer in consolidation proceedings, is not untrammeled. Giving of notice or an opportunity of being heard to the person interested is the very foundation of, and a condition precedent to the exercise of such jurisdiction. That preliminary condition to the vesting of jurisdiction in the State has not been fulfilled. The proceedings before the Additional Director, whom the State had delegated its power under section 42, were, therefore nail and void, and could be declared as such by the civil Court. If any authority is needed, reference may be made to Secretary of State v. Mask & Co. . A.I.R 1440 P.C 105., where it was laid down that if the provisions of the statute have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil Courts have jurisdiction to examine those cases. This rule was recently approved by the Supreme Court in State of Kerala v. N. Ramaswami Iyer & Sons . A.I.R 1936 S.C 1738..

14. Mr. Agnihotri contends that a mere error by the State or the Additional Director in the exercise of its or his jurisdiction under section 42, would not empower the civil Court to interfere, because the State had the necessity jurisdiction to decide wrong as well as right in respect of any matter within its exclusive jurisdiction under that Act.

15. I am afraid, the contention is misconceived. There is a clear distinction between usurpation of jurisdiction and error in the exercise of jurisdiction. The present is a case which belongs to the former category inasmuch as the pre-requisite for the exercise of its jurisdiction by the State under section 42 did not exist.

16. The ratio of the well-known Full Bench case Gobindparsad v. Pawankumar . AIR 152 Nag. 278. is a complete answer to the contention of Mr. Agnihotri. The following observations of Hidayatullah, J., (as he then was), who spoke for the Full Bench, at page 281 of the Report, Paragraph 16 are pertinent:—

“We would point out that there is a clear distinction between the jurisdiction of the Court to try and determine a matter, and the erroneous action of Court in the exercise of that jurisdiction. The former involves the power to act at all, while the latter involves the authority to act in the particular way in which the Court does act. Therefore, the question whether a condition necessary for the exercise of that power exists or not, is a matter included in the conception of jurisdiction and is not related to the exercise of jurisdiction.”

17. Further, in the penultimate paragraph, the same learned Judge has made it clear, that where exclusive jurisdiction is given to a special tribunal under statute, a Civil Court has power to ascertain whether conditions which are pre-requisite for the exercise of its jurisdiction by the tribunal, exist or not. A similar rule was laid down by Mr. Justice Kapur in Smt. Raj Rani v. Union of India . AIR 1952 punj. 383..

18. To sum up, in the proviso to section 42 of the Act it has been laid down that the power of varying or reversing an order, scheme, or repartition, is to be exercised only after the fulfilment of the essential preliminary condition of giving notice to the parties interested to appear and also an opportunity of being heard. If that condition precedent was not satisfied, the order of the State varying an order or scheme to the detriment of the plaintiffs is totally without jurisdiction, and the civil Court has the necessary power to interfere and strike down the illegality.

19. In the light of what has been said above, I would allow Regular Second Appeals Nos. 1017, 1019, and 1020 of 1964, set aside the judgment and decree of the Additional District Judge, Hissar, and restore the decree of the trial Court in favour of the plaintiffs. In the circumstances of the case, there will be no order as to costs.

Appeal allowed.