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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.