Devinder
Singh & Ors Vs. State of Haryana & Anr [2006] Insc 365 (4 July 2006)
Arijit
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
Appellants
call in question legality of the judgment rendered by a learned Single Judge of
the Punjab and Haryana High Court dismissing
the second appeal filed by the appellants.
Backgrounds
facts in a nutshell are as follows:
Appellants
filed suit for declaration on 7.9.1991 to the effect that they are the owners
in possession of = share of the land measuring 155 kanals 4 marlas as per jamabandi
for the year 1983-84 situated in village Kairanwali, Tehsil and District Sirsa
and the order of allotment and declaration of surplus area so far as the said
land is concerned are ineffective, inoperative and against the principles of natural
justice, null and void and as such not binding on the rights of the plaintiffs.
The suit was decreed by learned Senior Sub Judge, Sirsa in Civil Suit No.1054
of 1989. Respondents filed an appeal before the District Judge. The appeal was
assigned to learned Additional District Judge who by his judgment and decree
dated 14.10.1997 set aside the judgment and decree of the Trial Court and
dismissed the suit. A second appeal was carried before the High Court which by
the impugned judgment dismissed the appeal holding that since Section 26 of the
Haryana Ceiling on Land Holding Act, 1972 (in short 'the Act') provides that no
Civil Court shall have the jurisdiction to entertain or proceed with a suit for
specific performance of the contract for transfer of land which affects the
right of the State Government to the surplus area under the Act, or settle any
matter which under the Act is required to be settled, decided or dealt with by
the Financial Commissioner, the Commissioner, the Collector or the Prescribed
Authority; the suit was not maintainable.
Learned
counsel for the appellants submitted that the first Appellate Court and the
High Court were not justified in their conclusion.
Case
of the appellants-plaintiffs and the respondents- defendants in the suit is as
follows:
According
to the plaintiffs Jagmal, son of Nanhu was a big land owner under the
provisions of the Punjab Security of Land Tenures Act, (in short 'Tenures Act')
and his surplus area case was decided on 30.12.1961 in old khasra numbers. After
the consideration, no proceedings under Section 25 A(ii) under Tenures Act or
under Section 14(1) of the Act were initiated against the plaintiffs or said Jagmal.
By Civil Court decree of 1970, the plaintiffs got the suit land from Jagmal,
the grandfather of the plaintiffs and mutation No.413 dated 20.2.1970 was
sanctioned in their favour and since then they are recorded as owners in
possession of the suit land and have never been summoned, heard and they have
not received any notice from the revenue officers for any proceedings. Land in
dispute was never declared surplus and they are transferees from Jagmal.
Mutation No.610 dated 26.7.1982 has been attested in favour of the State of Haryana on the basis of the order dated
26.9.1980, which is illegal, null and void and liable to be set aside as the
plaintiffs were not parties to that order nor they were summoned or heard.
Similarly, the order dated 8.3.1981 allotting the land is also null and void
because they were also not party to that order and hence, the same is liable to
be set aside.
In the
written statement filed refuting the statement made in the plaint defendants
stated that the Court has got no jurisdiction to entertain and try the suit;
that the suit is bad for want of notice under Section 80 of Code of Civil
Procedure, 1973, that the suit is bad for non-joinder of allottees as the
disputed land has been allotted vide order dated 8.3.1981; that the plaintiffs
have not come to the Court with clean hands; that the suit is not maintainable
in the present form; that the plaintiffs have not availed of the remedies
provided under the Act and that the plaintiffs have no cause of action to file
this suit.
On
merits, it was pleaded that Jagmal son of Nanu Ram, a big land owner
transferred the suit land in favour of the plaintiffs as evidenced by Civil
Court decree in the year 1970, and under the provisions of the Act of 1972, the
father of plaintiffs Udey Paul son of Jagmal filed the declaration form wherein
he has included the plaintiffs as members of his family and he has also
included the land obtained by the plaintiffs from Jagmal. The declaration form
of Udey Paul was decided on 26.9.1980 by the Prescribed Authority, Sirsa and as
per this order, the suit land was declared surplus and vested in the State. The
order dated 26.9.1980 is final as no appeal has been preferred against it. It
is also pleaded that the surplus area has been allotted by the Allotment
Authority, Sirsa on 8.3.1981 and possession has been delivered to the allottees
on the spot, as per rules. It is further pleaded that Jagmal who was a big land
owner under the Tenures Act transferred the land in favour of plaintiffs as
evidenced by Civil
Court decree of 1970
which is based on collusion. It was further pleaded that since the declaration
form was filed by the head of the family, there was no need to hear or give
notice to the plaintiffs. Lastly, it was prayed that the suit be dismissed with
special costs. Following issues were framed:
-
Whether the
orders for declaration of the suit property as surplus, vesting in the State of
Haryana and its allotment are illegal, invalid, not binding upon the right of
the plaintiff and liable to be set aside as alleged? OPP
-
Whether this
Court has no jurisdiction to try the suit? OPD
-
Whether the suit
is bad for want of notice u/s 80 of CPC? OPD
-
Whether the suit
is time barred? OPD
-
Whether the suit
is bad for non-joinder of necessary parties? OPD
-
Whether the suit
is premature? OPD
-
Whether the suit
is malafide? OPD
-
Whether the
plaintiffs have no locus standi to file the suit? OPD
-
Whether the
plaintiffs have no cause of action? OPD
-
Whether the suit is not maintainable
in the present form? OPD
-
Whether the defendants are entitled
for special costs u/s 35-A or CPC? OPD
-
Relief.
The
Trial Court held that the suit was maintainable, as the matter was decided
without notice to the plaintiffs. It was also held that there was no period of
limitation for getting the orders set aside.
The
respondents filed appeals before the District Judge, Sirsa who allowed the
appeal and set aside Trial's Court judgment and decree.
The
Second appeal as noted above, was dismissed upholding view of the First
Appellate Court.
With
reference to the aforesaid background, learned counsel for the appellants
submitted that the suit was clearly entertainable and the Civil Court had jurisdiction. The procedures
prescribed in the Act in the matter of filing of return, determination of
ceiling and the selection of permissible area have not been followed. It has
been pointed out that in the return filed by the father of the plaintiffs, the
age of the plaintiffs were clearly mentioned. By the time of adjudication they
had attained majority and, therefore, had interest in the property. Though they
did not claim any land beyond the permissible they had a right so far as choice
of land is concerned and, therefore, the Trial Court had rightly decreed the
suit. Unfortunately, the first Appellate Court and the High Court lost sight of
the relevant provisions and held that the Civil Court had no jurisdiction.
In
response, learned counsel for the respondents submitted that the suit was filed
after 9 years of the order passed by the concerned authority. Father of the
appellants had filed details of the area to be retained. The remedies available
under the Act clearly ruled out any resort to Civil Court. Reference has been made to Section 26(1)(b) of the Act in
this regard. It was, therefore, submitted that the First Appellate Court and
High Court have rightly held that the suit was not maintainable.
Section
26 deals with bar of jurisdiction. The same reads as follows:
-
"Bar of
jurisdiction:
-
No civil court
shall have jurisdiction to
-
entertain or proceed with a suit for specific performance of a contract for
transfer of land which affects the right of the State Government to the surplus
area under this Act; or
-
settle, decide
or deal with any matter which is under this Act required to be settled, decided
or dealt with by the Financial Commissioner, the Commissioner, the Collector or
the prescribed authority.
-
No order of the
Financial Commissioner, the Commissioner, the Collector or the prescribed
authority made under or in pursuance of this Act shall be called in question
".
At
this juncture it is relevant to take note of Section 18 also which reads as
follows:
-
"Appeal,
Review and Revision.
-
Any person
aggrieved by any decision or order of the prescribed authority, not being the
Collector, may, within [fifteen days] from the date of the decision or order,
prefer an appeal to the Collector in such form and manner as may be prescribed:
Provided
that the Collector may entertain the appeal after the expiry of the said period
of [fifteen days] if he is satisfied that the appellant was prevented by
sufficient cause from filing the appeal in time.
-
Any person
aggrieved by a decision or order of the Collector (whether acting as prescribed
authority or not) being a decision or order made in an appeal under sub-section
(1), may, within [fifteen days] from the date of the decision or order, prefer
an appeal to the Commissioner in such form and manner as may be prescribed:
Provided
that the Commissioner may entertain the appeal after the expiry of the said
period of [fifteen days] if he is satisfied that the appellant was prevented by
sufficient cause from filing the appeal in time.
-
[(3) Omitted ]
-
Any person
aggrieved by an order of the Collector under sub-section (1), may, within
[thirty days] from the date of the order, file a revision petition before the
Commissioner so as to challenge the legality or propriety of such order and the
Commissioner may pass such order as he may deem fit. The order of the
Commissioner shall be final.
-
[(5) Omitted ]
-
Notwithstanding
anything contained in the foregoing sub-sections, the Financial Commissioner
may suo motu at any time call for the record of any proceedings or order of any
authority subordinate to him for the purpose of satisfying himself as to the
legality or propriety of such proceedings or order, and may pass such order in
relation thereto as he may deem fit.
-
No appeal under
sub-section (1) or sub- section (2) shall be entertained unless the appellant
or the petitioner, as the case may be, has deposited a sum equal to thirty
times the land holdings tax payable in respect of the disputed surplus area or
has furnished a bank guarantee of the equal amount as security with the
appellate or revisional authority;
-
Notwithstanding
contained in Section 21, a person who files an appeal or a revision against the
order declaring his land as surplus area and the appeal or revision filed by
him fails, shall be liable to pay, for the period he is or has at any time been
in possession of the land declared surplus to which he is or was not entitled
under the law, a licence fee equal to thirty times the land holdings tax,
recoverable in respect of this area.
-
If the appeal or
revision succeeds, the amount deposited or the bank guarantee furnished under
sub-section (7) shall be refunded or released, as the case may be. If the
appeal or revision fails, the amount deposited in cash or the amount of the
bank guarantee furnished, shall be adjusted against the licence fee recoverable
under sub-section (8)." The law relating to jurisdiction has been the
subject- matter of various decisions. In State of Tamil Nadu v. Ramalinga Samigal Madam (1985
(4) SCC 10) it was, inter alia, held as follows:
-
"The
principles bearing on the question as to when exclusion of the Civil Court's jurisdiction can be inferred have
been indicated in several judicial pronouncements but we need refer to only two
decisions. In Secretary of State v. Mask and Company (AIR 1940 PC 105 the Privy
Council at page 236 of the Report has observed thus :
It is
settled law that the exclusion of the jurisdiction of the Civil Courts is not
to be readily inferred, but that such exclusion must either be explicitly
expressed or clearly implied. It is also well settled that 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 in conformity with the fundamental principles of
judicial procedure.
In Dhulabhai
v. State of M. P. (1968 (3) SCR 662) Hidayatullah, C.J., speaking for the
Court, on an analysis of the various decisions cited before the Court
expressing diverse views, culled out as many as 7 propositions; out of them the
first two which are material for our purposes are these :
-
Where the
statute gives a finality to the orders of the special tribunal the Civil Court's jurisdiction must be held to be
excluded if there is adequate remedy to do what the Civil Courts would normally
do in a suit. Such provision, however, does not exclude those cases where the
provisions of the particular Act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of
judicial procedure.
-
Where there is
an express bar of the jurisdiction of the Court, an examination of the Scheme
of the Particular Act to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
Where
there is no express exclusion 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.
In the
latter case it is necessary to see of 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. xxx xxx xxx
-
Thirdly, having
regard to the principles stated by this Court while enunciating the first
proposition in Dhulabhai case it is clear that even where the statute has given
finality to the orders of the special tribunal the Civil Court's jurisdiction
can be regarded as having been excluded if there is adequate remedy to do what
the Civil Court would normally do in a suit. In other words, even where
finality is accorded to the orders passed by the special tribunal one will have
to see whether such special tribunal has powers to grant reliefs which Civil
Court would normally grant in a suit and if the answer is in the negative it
would be difficult to imply or infer exclusion of Civil Court's jurisdiction.
Now take the case of an applicant who has applied for a ryotwari patta under
Section 11 staking his claim thereto on the basis of his long and uninterrupted
possession of the ryoti land but the Settlement Officer on materials before him
is not satisfied that the land in question is ryoti land; in that case he will
refuse the patta to the applicant. But can he, even after the refusal of the patta,
protect the applicant's long and uninterrupted possession against the
Government interference? Obviously, he cannot, for it lies within his power and
jurisdiction merely to grant or refuse to grant the patta on the basis of
materials placed before him. But such a person even after the refusal of the ryotwari
patta would be entitled to protect his possessory title and long enjoyment of
the land and seek an injunction preventing Government's interference otherwise
than in due course of law and surely before granting such relief the Civil
Court may have to adjudicate upon the real nature or character of the land if
the same is put in issue. In other words since the Settlement Officer has no
power to do what Civil Court would normally do in a suit it is difficult to
imply ouster of Civil Court's jurisdiction simply because finality has been
accorded to the Settlement Officer's order under Section 64-C of the Act."
In Richpal Singh and Ors. v. Dalip (1987 (4) SCC 410), it was held as under:
-
"It is well
settled that ouster of jurisdiction of civil courts should not be inferred
easily. It must be clearly provided for and established." Strong reliance
was placed by learned counsel for the appellant on (1979 (2) All ER 1016). Para
15 of State of Tamil Nadu's case (supra) deal with question relating to
jurisdiction.
These
cases dealt with cases where there was no exclusion of any other remedy.
The
principles culled out from various decisions of this Court are that even when
the statute has given finality to the orders of the special tribunal, the Civil Court's jurisdiction can be regarded as
having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit.
Section
26(1)(d) on the other hand specifically excludes jurisdiction of the Civil Court so far as matters which are
required to be settled, decided or dealt with by the Financial Commissioner,
the Commissioner, Collector or prescribed Authority. The entitlement, choice of
land and the allotment are matters which are to be dealt with specifically by
the authorities under the Act. Additionally, Section 18 provides a forum to
ventilate the grievances under the Act in respect of several matters. This is a
case of exclusion of the remedy in certain contingencies. It is not a case
where the controversy cannot be resolved by the forum provided under the Act.
Further
in case of any grievance, the validity of the order could have been questioned
before the forum provided. That has not been done and on the other hand, the
suit was filed after about nine years.
Above
being the position, the appeal is without merit and is dismissed. No costs.
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