Full Judgment Text
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CASE NO.:
Appeal (civil) 4552 of 2000
PETITIONER:
Devinder Singh & Ors.
RESPONDENT:
State of Haryana & Anr.
DATE OF JUDGMENT: 04/07/2006
BENCH:
ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
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
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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:
1. 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
2. Whether this Court has no jurisdiction to try
the suit? OPD
3. Whether the suit is bad for want of notice u/s
80 of CPC? OPD
4. Whether the suit is time barred? OPD
5. Whether the suit is bad for non-joinder of
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necessary parties? OPD
6. Whether the suit is premature? OPD
7. Whether the suit is malafide? OPD
8. Whether the plaintiffs have no locus standi to
file the suit? OPD
9. Whether the plaintiffs have no cause of action?
OPD
10. Whether the suit is not maintainable in the
present form? OPD
11. Whether the defendants are entitled for special
costs u/s 35-A or CPC? OPD
12. 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:
"26. Bar of jurisdiction: (1) No civil court shall
have jurisdiction to \026
(a) 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
(b) settle, decide or deal with any matter
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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.
(c) 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:
"18. Appeal, Review and Revision. (1) 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.
(2) 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 ]
(4) 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 ]
(6) 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
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may deem fit.
(7) 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;
(8) 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.
(9) 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:
"8. 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 :
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(1) 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.
(2) 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
14. 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
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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:
"12. 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.