Full Judgment Text
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PETITIONER:
SAYED MOHOMED BAQUIR EL-EDROOS (DEAD) BY LRS.
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT01/10/1981
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
KOSHAL, A.D.
ERADI, V. BALAKRISHNA (J)
CITATION:
1981 AIR 2016 1982 SCR (1) 882
1981 SCC (4) 383 1981 SCALE (3)1555
ACT:
Administrative Law-Special Tribunals-Statute gave
finality to the orders-Jurisdiction of Civil Courts-When
must be excluded.
Bombay Personal Inams Abolition Act 1952-Section
2(1)(e) Explanation- Scope of.
HEADNOTE:
A notice was issued to the Sajjadanashin of the
appellant institution stating that consequent on the coming
into force of the Bombay Personal Inams Abolition Act 1952
exemption from payment of land revenue was extinguished in
respect of the inam village and that he should hand over the
village records to mamlatdar.
The appellent in a suit filed in the Civil Court
claimed that the inam was held by a religious institution
and that, therefore, the provisions of the 1952 Act had no
application to it. In replication the State claimed that
under the provisions of the 1952 Act the State Government
alone was competent to decide the question whether the grant
was a personal or a religious inam and that the Civil Court
had no jurisdiction to decide it. Holding that it was a
personal inam the Trial Court dismissed the appellant’s
suit.
When the appellant’s appeal was pending before the High
Court the Gujarat Devasthan Inams Abolition Act, 1969 was
passed abolishing the inams held by religious charitable
institutions as well.
On the question of jurisdiction to decide whether an
inam was personal or religious the High Court held that it
was the State Government and not the Civil Court which had
exclusive jurisdiction in this respect.
In appeal to this Court it was contended on behalf of
the appellant that unless the jurisdiction of the Civil
Court is barred specifically or by necessary implication the
Civil Court would have jurisdiction and that the finality
contemplated by Explanation I to section 2 (1) (e) (which
provides that if any question arises whether any grant is a
personal inam such question shall be referred to the State
Government and that the decision of the State Government
shall be final) is only for the purposes of the 1952 Act and
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could not stand in the way of the Civil Court entertaining
the suit.
883
Allowing the appeal,
^
HELD: 1. The finality of the decision of the Government
as contemplated by Explanation I to section 2(1) (e) of the
Act cannot exclude the jurisdiction of the Civil Court.
Except for the Explanation, there is no other provision in
the Act touching upon the jurisdiction of the Civil Court.
[890 C-D]
2. In Dulabhai v. State of Madhya Pradesh, [1968] 3
S.C.R. 662 this Court held that where a statute gave
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. Under the provisions of the 1952 Act it cannot
be said that an adequate remedy is available to the
plaintiffs on reference made to the Government. [888 G.H]
3. The second principle laid down in the above case is
that where there is an express bar to the jurisdiction of
the Court, an examination of the scheme of the Act to find
out the adequacy or the sufficiency of the remedies provided
there in may be relevant. In the absence of any details in
the enactment about the reference to be made to the
Government, the procedure to be followed by the Government,
and the opportunity to be afforded to the aggrieved party,
it cannot be held that the expression "finality of the
decision of the Government" used in the Explanation was
meant to bar the jurisdiction of the Civil Court. [890 F-G]
4. The High Court, however, erred in travelling beyond
the provisions of the 1952 Act by referring to the
provisions of the 1969 Act and coming to the conclusion that
Explanation I to section 2(1) (e) of the 1952 Act and
section 20 of the 1969 Act put beyond the pale of any doubt
that the jurisdiction of the Civil Court had been taken away
by the legislature to determine the question whether a
particular Inam was a personal or devasthan inam. The High
Court was not justified in invoking the provisions of the
1969 Act while deciding a case under the 1952 Act. [891 E-G]
5. An entry in the alienation register as to whether an
inam is personal or religious cannot be said to be so
sacrosanct that it cannot be changed. Explanation 1 to
section 2 (1) (e) of the 1952 Act indicates that the entry
in the register is not an essential part of the definition
of personal inam but is only descriptive. If the Government
decides a case contrary to the entry in the register of
alienation the register shall be deemed to have been
amended. If an entry in the register would be deemed to have
been automatically amended by the decision of the
Government, there is no sanctity to such entry. The
explanation itself contemplates a change in view of the
decision of the Government on the question. An entry in the
register is mainly intended to serve the purpose of
realisation of land revenue. [892 C-D]
6. Section 203 of the Bombay Land Revenue Code provides
for an appeal to a superior officer from an order passed by
the revenue officer. This section cannot be said to
completely bar the jurisdiction of the Civil Court because
section 212 of the Code contemplates that whenever it is
declared that a decision or order shall be final such
expression shall be deemed to mean that no appeal lies from
such decision or order. If this is what finality meant under
section 212 it cannot be said that the jurisdiction of the
Civil Court is barred. [893 A-C]
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884
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2132 of
1977.
Appeal by special leave from the judgment and order
dated the 23rd September, 1976 of the Gujarat High Court in
First Appeal No. 76 of 1963
D.V. Patel, R. Shroff, Gopal Subramaniam and D.P.
Mohanty for the Appellant.
M.N. Phadke, S.C. Patel and R.N. Poddar for the
Respondent.
The Judgment of the Court was delivered by
MISRA J. The present appeal by special leave is
directed against the Full Bench decision of the High Court
of Gujarat at Ahmedabad dated 23rd of September, 1976. The
sole question for consideration in this appeal is whether
Civil Court has jurisdiction to entertain and decide the
suit giving rise to the present appeal.
There is an old institution known as Edroos Dargah of
Hazrat Sayedina Mohomed-Bin Abdulla El-Edroos at Surat.
Village Orma is an inam village held by the said
institution. The dispute in the present case relates to the
property of the said village orma comprising its soil,
trees, lanes, roads together with cultivated lands of about
1093 acres with land revenue alienated Rs. 2,747.10.5.
Pursuant to the Bombay Personal Inams Abolition Act, 1952
(Act 42 of 1953) hereinafter referred to as ’the 1952 Act’,
the State of Bombay and after the reorganization of States,
the State of Gujarat, declared that the said Act was
applicable to village Orma from I st of August, 1955 and,
therefore, the exemption from the payment of land revenue
was extinguished from the 1st of August, 1955. Accordingly
the State of Bombay through its Mamlatdar of Olpad sent a
notice to the Sajjadanashin of the institution to that
effect and also demanded the village records from his
possession. He also proceeded to take further and
consequential action and declared that the rights of the
institution in public roads, lanes, village site and land
etc. are extinguished. In the circumstances the
Sajjadanashin was obliged to file the suit which was later
on numbered as suit No. 9 of 1956.
The stand of the plaintiff is that village Orma was an
inam village held by the religious institution of Edroos
Dargah and the
885
provisions of section 4 of the 1952 Act have no application
in view of clause (2) of section 3 of the said Act. The
defendant State contested the suit on grounds inter alia
that the village in question was a personal inam within the
meaning of section 2 (1) (a) of the 1952 Act and the State
Government alone is competent to decide the question whether
the grant is a personal inam or not and the Civil Court has
no jurisdiction to decide the question. B
The pleadings of the parties gave rise to fourteen
Issues and the Trial Court decided all the substantial
issues against the plaintiff. Consequently it dismissed the
suit holding that the inam in question was personal inam.
Feeling aggrieved, the plaintiff went up in appeal to
the High Court. The appeal came up for hearing before a
learned Single Judge. He took up the question of
jurisdiction first. The stand of the plaintiff-appellant was
that the Civil Court had the jurisdiction to entertain the
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suit and in support of his contention he placed reliance on
Sayed Mohmed Baquir El-Edroos v. The State of Bombay.(1) The
learned Single Judge, however, doubted the correctness of
the proposition laid down in that case and referred the case
to a larger Bench and it was eventually decided by a Full
Bench of that Court.
It appears that during the pendency of the appeal
another Act was passed known as the Gujarat Devasthan Inams
Abolition Act, 1969 (Act 16 of 1969) hereinafter referred to
as ’the 1969 Act’. It came into force on I 5th of November,
1969. By this Act devasthan inams or inams held by religious
and charitable institutions were also abolished. The
inevitable result of the 1969 Act is that whether the inam
in question is a personal inam or a devasthan inam it cannot
subsist. The plea of the plaintiff, on the basis of which he
filed the suit, was no more available to him after the
passing of the latter Act. But the question was still to be
enquired into because if the plaintiff succeeds in
establishing that the inam in question was a religious or
charitable inam, it would be abolished only by the 1969 Act
and, therefore, the plaintiff will be entitled to all the
benefits of devasthan inam open to him till the enforcement
of that Act. The High Court, therefore, proceeded to hear
the appeal despite the passing of the 1969 Act and by its
judgment dated 2nd of September, 1976 came to the conclusion
that the exclusive jurisdiction to decide the question was
with the State
886
Government and the Civil Court has no jurisdiction to
entertain the suit. In view of its finding on the question
of jurisdiction, the High Court did not think it necessary
to enter into other issues involved in the case. The
plaintiff has now come to challenge the judgment of the Full
Bench on obtaining special leave of this Court to appeal.
In the present appeal the plaintiff again reiterates
that the Civil Court has jurisdiction to entertain the suit.
In order to appreciate the contentions, of the counsel of
the parties on the question of jurisdiction, it will be
appropriate to refer to the relevant provisions of the 1952
Act Section 2 (1) (e) defines personal inams. Insofar as it
is material, it reads:
"2. (1) In this Act, unless there is anything
repugnant in the subject or context,-
(e) "personal inam" means-
(i) a grant of a village, portion of a village,
land or total partial exemption from the
payment of land revenue entered as personal
inam in the alienation register kept under
section 53 of the Code.
(ii) ... ... ... ...
Explanation 1: If any question arises whether any
grant is a personal inam such question shall be
referred to the State Government and the decision of
the State Government shall be final and the entry, if
any, in respect of such grant in the alienation
register kept under section 53 of the Code shall be
deemed to have been amended accordingly.
Explanation II... ... ... ..."
The expression ’Code’ has been defined in section 2 (1) (b)
of the Act as the Bombay Land Revenue Code 1879 (Bombay V of
1879). Section 3 of the Act insofar as it is material,
reads:
"3. Act not to apply to certain inams and grants
Nothing in this Act shall apply to-
(1) ... ... ... ...
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(2) devasthan inams or inams held by religious or
charitable institutions.
887
(3) ... ...
(4) ... ...
(5) ... ...
Explanation: -For the purposes of this section
inams held by religious or charitable institutions
means Devasthan or Dharmadaya inams granted or
recognised by the ruling authority for the time being
for a religious or charitable institution and entered
as such in the alienation register kept under section
53 of the Code or in the records kept under the rules
made under the Pensions Act 1871 (XXIII of 1871)."
Section 4 of the Act reads:
"4. Abolition of personal inams and rights in
respect of such inams.-Notwithstanding anything
contained in any usage, settlement, grant, sanad or
order or a decree or order of a Court or any law for
the time being in force, with effect from and on the
appointed date .
(i) all personal inams shall be deemed to have
been extinguished,
(ii) save as expressly provided by or under the
provisions of this Act, all rights legally
subsisting on the said date in respect of
such personal inams shall be deemed to have
been extinguished:
Provided that in the case of a personal inam
consisting of exemption from the payment of land
revenue only, either wholly or in part, such exemption
shall be deemed to have been extinguished:-
(a) if the amount of such exemption is or exceeds Rs.
5,000 with effect from the 1st day of August,
1953, and
(b) in all other cases, with effect from the 1st day
of August, 1955."
Mr. D.V. Patel, senior counsel for the appellant,
assisted by Mr. G. Subramaniam, has contended that the High
Court has gravely erred in holding that the Civil Court had
no jurisdiction to deal with the suit. According to the
learned counsel unless the
888
jurisdiction of the Civil Court is barred specifically or by
necessary implication the Civil Court would have
jurisdiction. Admittedly there is no specific bar under the
1952 Act. No provision has been brought to our notice
specifically excluding the jurisdiction of the Civil Court.
Now the question is whether the jurisdiction of the Civil
Court has been excluded by necessary implication. The only
bar is provided by Explanation I to section 2 (1) (e).
Explanation r provides that if any question arises whether
any grant is personal inam, such question shall be referred
to the State Government and the decision of the State
Government shall be final. Whether Explanation I to section
2 (1) (e) excludes the jurisdiction of the Civil Court by
necessary implication is the question for consideration. The
finality of the decision of the State Government
contemplated by the explanation, says the learned counsel,
is only for the purpose of the Act, namely, the 1952 Act,
and this finality cannot stand in the way of the Civil Court
to entertain the suit. In support of his contention the
learned counsel has strongly relied upon two decisions:
Secretary of State, Represented by the Collector n of South
Arcot v. Mask and Company,(1) and Dhulabhai and Ors. v. The
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State of Madhya Pradesh and Anr.(2) In the first case the
Privy Council dealing with the jurisdiction of the Civil
Court observed as follows (at page 236):
"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 Dulabhai’s case (supra) Hidayatullah C.J., speaking for
the Court, on an analysis of the various decisions cited
before the Court expressing diverse views, laid down the
following propositions:
(1) Where the statute gives a finality to the orders
of the special tribunals the Civil Court’s
jurisdiction must he held to be excluded if there
is adequate remedy to
889
do what the Civil Courts would normally do in a
suit. A 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. B
(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. C
Where there is no express exclusion the
examination of the remedies and the scheme or the
particular Act to find out the intendment becomes
necessary and the result of the inquiry may be
decisive. In the latter case lt 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 statute or not.
(3) Challenge to the provisions of the particular Act
as ultra views 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.
(4) 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. G
(5) Where the particular Act contains no machinery for
refund of tax collected in excess of
constitutional limits or illegally collected a
suit lies.
(6) Questions of the correctness of the assessment
apart from its constitutionality are for the
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decision of the
890
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.
(7) An exclusion of the jurisdiction of the Civil
Court is not readily to be inferred unless the
conditions above set down apply."
If we consider the present case, in the light of the
principles laid down by the Supreme Court in the above noted
case, in our opinion the finality of the decision of the
Government as contemplated by Explanation I to section 2 (1)
(e) cannot exclude the jurisdiction of the Civil Court.
Except for the Explanation, there is no other provision in
the Act touching upon the jurisdiction of the Civil Court
and none has been referred to before us by either party. The
Act does not give any details about the reference to and the
enquiry by the Government. No appeal has been provided for
and it cannot be said that the case of the plaintiff has
been considered by the Government in the same way as it
would have been considered if the case had been filed before
a Civil Court.
The very first principle laid down in the case of
Dhulabhai postulates that where a 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. From a perusal of the provisions of the Act it
cannot be said that there is adequate remedy available to
the plaintiffs on reference made to the Government. Even
according p to the second principle laid down by the Supreme
Court where there is an express bar of the jurisdiction of
the court, an examination of the scheme of the particular
Act to find out the adequacy or the sufficiency of the
remedies provided may be relevant. The Act does not give any
details about the reference to be made to the Government,
the procedure to be followed by the Government, the
opportunity to be afforded to the aggrieved party. In the
absence of any such details in the Act it is not possible to
hold that the use of the expression ’finality of the
decision of the Government’ in Explanation I to section 2
(1) (e) of the 1952 Act was meant to bar the jurisdiction of
the Civil Court.
The High Court in our opinion has committed a manifest
error in travelling beyond the 1952 Act and referring to the
provi-
891
sions of the 1969 Act. The High Court referred to section 4
of the 1969 Act, which exclusively vests the power to decide
whether any village, portion of a village, or land is held
in devasthan inam, in the authorised officer, and the State
Government is empowered to authorise any officer under the
proviso to section 4 (l) to decide questions arising under
clauses (a) (b) or (c) of section 4. Subsection (2) of
section 4 of the said Act enables the person aggrieved by
the decision of the authorised officer to go up in appeal to
the State Government within sixty days from the date of the
decision. The High Court also referred to section 20 of the
1969 Act which specifically bars the jurisdiction of the
Civil Court. It reads:
"20. No Civil Court shall have jurisdiction to
settle, decide or deal with any question which is by or
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under this Act required to be settled, decided or dealt
with, by the officer authorised under the proviso to
sub section (I) of section 4 or section 25 or the
Collector, the Gujarat Revenue Tribunal in appeal, or
the State Government in appeal or revision or in
exercise of their power of control."
On the basis of the provisions of the 1969 Act the High
Court came to the conclusion that Explanation 1 to section 2
(1) (e) of the 1952 Act and section 20 or the 1969 Act put
beyond the pale of any doubt that the jurisdiction of the
Civil Court had been taken away by the legislature to
determine the question whether a particular inam is a
personal or a devasthan inam.
We are concerned in the present case with the
provisions of the 1952 Act. There is no corresponding
provision like section 20 of the 1969 Act in the 1952 Act
nor is there any detailed procedure of appeal and revision
in that Act as contemplated by the 1969 Act. The High Court
in our opinion was not justified in invoking the provisions
of the 1969 Act while deciding the case under the 1952 Act.
The counsel for the State of Gujarat on the other hand
referred to the definition of personal inam as given in
section 2 (1) (e) of the 1952 Act and according to the
learned counsel the inam in question is a personal inam in
view of the definition itself which says: Personal inam
means a grant of a village, portion of a village, land or
total partial exemption from the payment of land revenue
entered as personal inam in the alienation register kept
892
under section 53 of the Code." So, entry of the nature of
the inam in the alienation register is a decisive factor. In
the instant case the inam in question has been entered as
personal inam in the alienation register. Therefore,
perforce it has to be taken as a personal inam and the
plaintiff cannot escape the definition of the expression
’personal inam’ as given in section 2 (1) (e). Likewise, for
a devasthan inam also it is necessary to be so entered in
the alienation register kept under section 53 of the Code in
view of Explanation to section 3 of the 1952 Act. The
counsel for the appellant on the other hand referred to
Explanation I to section 2 (1) (e) of the 1952 Act which
indicates that the entry in the register is not an essential
part of the definition of the personal inam but it is only
descriptive. If the Government decides the case contrary to
t he entry in the alienation register, the alienation
register shall be deemed to have been amended accordingly.
This part of the Explanation takes away the rigour of the
entry in the alienation register. If the entry in the
alienation register will be deemed to have been
automatically amended by the decision of the Government on
the question whether it is a personal inam or a devasthan
inam there is no sanctity attached to such entry which is
mainly intended to serve the purpose of realisation of land
revenue. The entry cannot be said to be so sacrosanct that
it cannot be changed. Indeed the explanation itself
contemplates a change in view of the decision of the
Government on the question.
It was next contended for the State that the Revenue
Court alone has exclusive jurisdiction to correct the
entries in the revenue records and the counsel referred to
section 53 of the Bombay Land Revenue Code. It reads:
"53. A Register shall be kept by the Collector in
such form as may from time to time be prescribed by the
State Government of all lands, the alienation of which
has been established or recognized under the provisions
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of any law for the time being in force; and when it
shall be shown to the satisfaction of the Collector
that any sanad granted in relation to any such
alienated lands has been permanently lost or destroyed,
he may, subject to the rules and the payment of the
fees prescribed by the State Government under section
213, grant to any person whom he may deem entitled to
the same a certified extract from the said Register,
which shall be endorsed by the Collector to the effect
that it has been issued in lieu of the sanad said to
have been lost or destroyed, and shall be deemed to be
as valid a proof of title as the said sanad."
893
Section 203 of the said Code provides for appeal from any
order passed by the Revenue officer to his superior and on
the strength of these provisions it is sought to be argued
that the plaintiff could have gone up in appeal against the
decision of the officer under section 53 of the Code and the
jurisdiction of the Civil Court is completely barred. If we
refer to section 212 of the Code, the argument of the
counsel for the State cannot be accepted. Section 212 con-
templates that whenever in this Code it is declared that a
decision or order shall be final such expression shall be
deemed to mean that no appeal lies from such decision or
order. If this is what finality means under section 212 it
cannot be argued with any force on behalf of the State that
the jurisdiction of the Civil Court is barred. C
For the foregoing discussion the decision of the Full
Bench of the High Court cannot be sustained. We accordingly
accept the appeal, set aside the judgment of the High Court
dated 23rd September, 1976 and remand the case to the High
Court for deciding other points involved in the case. The
parties shall, however, bear their own costs.
P.B.R. Appal allowed.
894