Samudri Bai vs Sukhiram and Another

T.P. Sharma, J.—Present applicant has challenged the legality and propriety of the order dated 6-5-2002 passed by the Vth Civil Judge Class II, Ambikapur, District Surguja in Civil Suit No. 21-A/2000 whereby learned Vth Civil Judge Class II has decided the issue relating to tenability negative against the applicant.

Order is challenged on the ground that Court below has exceeded its jurisdiction vested on it by holding that Civil Court is having jurisdiction to try the suit which was barred u/s 257 read with Section 170B of the C.G. Land Revenue Code, 1959 (in short ''the Code'' of 1959).

Short facts relating to the dispute are one application was filed before the Sub Divisional Officer by one Ramjatan which was allowed and finally the order was maintained by the Revenue Commissioner and possession was handed over to present applicant after order of Revenue Authority suit for declaration arid possession of land was filed by non-applicant No. 1 against the applicant and non-applicant No. 2 on the ground that non-applicant No. 1 is owner of the suit land and Sub Divisional Officer has not followed the procedure prescribed during the course of enquiry into the matter and had committed an illegality in that suit State was made as defendant No. 2.

Shri Manoj Paranjpe, Advocate for the applicant, Shri Sushil Dubey, Advocate for the respondent No. 1 and Shri Samir Behar, P.L. for the respondent No. 2/State are heard.

Order impugned and copy of other documents perused.

On the basis of the averments in the written statement two preliminary issues relating to the maintainability of the suit was framed and both were against the applicant.

Learned Counsel for the applicant argued that Ramjatan originally owner of the land was a member of Scheduled Tribe and has purchased the land from present non-applicant No. 1 who is also member of Scheduled Tribe at the instance of Ramjatan enquiry was made u/s 170 of the Code of 1959 and Revenue Court has held that Ramjatan has fraudulently obtained a sale deed in his favour and transaction was barred u/s 170B of the Code of 1959 and present applicant was declared the owner of the land and both was also delivered to her. No notice u/s 80 of the Code has been served to the non-applicant No. 2. On the basis of averments of the parties two following preliminary issues were framed:

(i) Whether suit is not maintainable in accordance with the provisions of Section 257 (l-1) of the Code of 1959?

(ii) Whether suit is not maintainable for want of noncompliance of the provisions of Section 80 of the Code.

After affording an opportunity of hearing to the parties Court below has decided both the issues negative.

Learned Counsel for the applicant further argued that Court below is not considered the legal bar created u/s 257 (l-1) of the Code of 1959 and thereby failed to exercise the jurisdiction vested on it.

Learned Counsel for the applicant placed reliance in the matter of Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, , in which it has been held by the Apex Court that an exclusion of the jurisdiction of the Civil Court is not readily to be inferred and also issued the guiding principles.

Learned Counsel for the applicant further placed reliance in the matter of State of A.P. v. Manjeti Laxmi Kantha Rao (dead) by L.Rs. and Ors. (2000) SCC 689, in which Apex Court has held that on the ground of exclusion of jurisdiction of Civil Court two tests are required to be examined-

(i) Is Legislative intention of excluding jurisdiction explicit or clear by necessary implication; and

(ii) Does the statute provide adequate remedy in case of grievance against order made under the statute.

On the other hand, order is supported on behalf of the non-applicant No. 1 and submits that even in case of any bar created under the law Civil Court is empowered to examine the legality and propriety of the order and proceeding and also examined whether the authority of Tribunal has followed the procedure prescribed. Non-applicant No. 2 is formal party and no relief have been claimed against the non-applicant No. 2 and, therefore, no notice u/s 80 of the Code is necessary.

Learned Counsel for the non-applicant No. 1 further argued that applicant has made the State as party in accordance with the provisions of Order 1 Rule 3B of the Code and in such cases suit cannot be dismissed in accordance with the provisions of the Sub-section (4) of the Code as amended by undivided State of M.P. vide Act of 29 of 1984, dated 14-8-84.

Learned Counsel for the non-applicant No. 1 placed reliance in the matter of Ranjeet Singh s/o Pooransingh v. Harji alias Hazari s/o Urjan and Ors. 1991 MPLJ 495, in which it has been held by the High Court of M.P. that the bar of jurisdiction of Civil Court not attracted if challenge is to the jurisdiction of the authority under the Adhiniyam who passed the impugned orders. Counsel for the non-applicant also placed reliance in the matter of Dhulabhai etc., Appellant v. State of Madhya Pradesh and Anr., Respondents.

While dealing the question of maintainability of the suit u/s 9 of the Code Hon''ble Apex Court in case of Dhulabhai (supra), has laid down following principles:

(i) Where the statute gives a finality to the orders of the Special Tribunals 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.

(ii) 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 if 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 stature or not.

(iii) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(iv) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the limitation Act but it is not a compulsory remedy to replace a suit.

(v) Where a particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.

(vi) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.

(vii) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. Case law discussed.

As held in case of State of A.P. v. Manjeti Laxmi Kantha Rao (supra), an exclusion jurisdiction of Civil Court should not be readily inferred but Legislative intention of excluding jurisdiction explicit or clear by necessary implication and adequate statutory provisions for remedy in case of grievances against the order made under the statute is required.

As regard the question of necessity of notice u/s 80 of the Code is concerned Order 1 has been amended by the undivided State of M.P., vide Act No. 29 of 1984 which came into operation from 14-8-84 and new provisions, i.e., 3B was inserted which reads as follows:

3B. Conditions for entertainment of suits.- (1) No suit or proceeding for,-

(a) declaration of title or any right over any agricultural land, with or without any other relief; or

(b) specific performance of any contract for transfer of any agricultural land with or without any other relief,

shall be entertained by any Court, unless the plaintiff or applicant, as the case may be, knowing or having reason to believe that a return u/s 9 of the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960 (No. 20 of 1960) in relation to land aforesaid has been or is required to be filed by him or by any other person before Competent Authority appointed under that Act, has impleaded the State of Madhya Pradesh as one of the defendants or non-applicants, as the case may be to such suit or proceeding.

(2) No Court shall proceed with pending suit or proceeding referred to in Sub-rule (1) unless, as soon as may be, the State Government is so impleaded as a defendant or non-applicant.

Explanation: The expression "suit or proceeding" used in this Sub-rule shall include appeal, reference or revision, but shall not include any proceeding for or connected with execution of any decree or final order passed in such suit or proceeding.

Sub-section (4) of Section 80 of the Code was also inserted (amended) by the same Act which reads as follows:

(4) Where in a suit or proceeding referred to in Rule 3B of Order 1, the State is joined as a defendant or non-applicant or where the Court orders joinder of the State as defendant or non-applicant in exercise of the powers under Sub-rule (2) or Rule 10 of Order 1 such suit or proceeding shall not be dismissed by reason of omission of the plaintiff or applicant to issue notice under Sub-section (1).

In this case, State was made party by the non-applicant No. 1 under Rule 3B of Order 1 of the Code therefore, the suit was not filed for dismissal in absence of any notice u/s 80 of the Code in accordance with the provisions of Sub-section (4) of Section 80 of the Code.

Present applicant has pleaded the fact that after enquiry u/s 170B of the Code of 1959 the Revenue Court has declared the transaction was fraudulent transaction and directed to hand over the possession to the present applicant but present applicant has not filed any document to show that present applicant was party before the Revenue Court or is a legal representative of Ramjatan or the applicant was original owner of the land in dispute. Applicant has also not filed any document to show that the Revenue Courts has acted in accordance with the procedure prescribed and the present suit is not maintainable in accordance with Section 170B of the Code of 1959. Court below has rightly decided the Issue No. 2 as negative in the light of Order 1 Rule 3B read with Sub-section (4) of Section 80 of the Code. The suit in present form is maintainable in absence of notice u/s 80 of the Code. Learned Court below has also decided the Issue No. 1 negative but Court below has not considered the documents for deciding the same. The issue No. 1 is relating to maintainability of the suit and Court below was required to decide on the basis of documents specially copies of order-sheet, order and other documents of revenue cases. In absence of such documents the decision on issue No. 1 is not sustainable and the order impugned requires modification. Consequently, revision is partly allowed and order impugned relating to the finding on the issue No. 1 is partly modified and the issue No. 1 relating to the maintainability of the suit in the light of the provisions of the Section 257(l-1) of the C.G. Land Revenue Code, 1959, is set aside. Case is remitted back for deciding the issue No. 1 afresh after affording an opportunity of producing the documents and hearing to the parties.

No order as to costs.