Orissa High Court
Smt. Champabati Devi vs Duryodhan Swain (Dead) And After Him ... on 24 March, 2006
Equivalent citations: 102(2006)CLT279, 2006(I)OLR588, AIR 2006 (NOC) 1337 (ORI), 2006 (5) ABR (NOC) 824 (ORI), 2006 (6) AKAR (NOC) 836 (ORI), 2006 A I H C 2199, (2006) 1 ORISSA LR 588, (2006) 43 ALLINDCAS 748 (ORI), (2006) 4 CIVLJ 719, (2006) 102 CUT LT 279, (1995) 31 ATC 188, 1995 SCC (L&S) 1281, 1995 SCC (SUPP) 3 395, (2006) 43 ALLINDCAS 748
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1. This appeal is directed against the order dated 23rd September, 1986 passed by learned Sub-ordinate Judge, Khurda in Title Appeal No.6 of 1985 confirming the judgment and decree of learned Munsif, Khurda in O.S. No.150 of 1978 (I).
2. The appellant as plaintiff filed O.S. No.150 of 1978(1) in the Court of Munsif, Khurda seeking the following reliefs:
(i) to declare the order of the Revenue Officer, Khurda declaring the defendant-respondent as Raiyat, as illegal, without any jurisdiction and not binding.
(ii) for declaration of her title, confirmation of possession over the suit land and if found dispossessed for recovery of possession of the same.
(iii) for permanent injunction restraining the defendant-respondent from entering into the suit land and interfering with her possession.
3. The case of the plaintiff-appellant, in brief, is that, she got the suit land in her share in the family partition and was in possession of the same but suddenly in the year 1975, the defendant-respondent started O.L.R. Case No. 722 of 1975 under Section 36-A of O.L.R. Act before the Revenue Officer, Khurda claiming that he is a tenant under the plaintiff-appellant over the suit land. She claimed that fraudulently suppressing the notice in that case, the respondent obtained an ex parte decree and when she got that ex pane decree set aside, he entered into collusion with her son Jagannath Prasad Daspuria and obtained an endorsement on an amendment petition that he is a raiyat on Ac.0.380 dec of land out of plot Nos. 444 and 446 and basing on such concession of Jagannath Prasad Daspuria, the Revenue Officer declared the respondent as a raiyat over that land and issued a certificate in his favour under Section 8 of the O.L.R. Act. She alleged that the Revenue Officer declared the respondent as a tenant over the suit land without making any statutory enquiry and without ascertaining as to whether Jagannath Prasad Daspuria had any right to concede to the claim of the respondent on her behalf She, accordingly, filed the suit seeking the aforementioned reliefs.
4. Defendant-respondent while denying the entire allegation of the plaintiff-appellant pleaded inter alia that he is a tenant over Ac.0.370 decimals of land under he appellant and that the said fact was confirmed by the local Revenue Inspector, who conducted an inquiry and also by Jagannath Prasad Dasapuria, who is the son and general power of attorney holder of the appellant. He claimed that notice was never suppressed and the Revenue Officer scrupulously followed the relevant provisions of the O.L.R. Act. He also denied any collusion with the son of the appellant. In addition to these pleadings, the respondent challenged the maintainability of the suit on the ground that in view of Section 67of the O.L.R. Act, the Civil Court has no jurisdiction to entertain or try the suit.
5. From the pleadings, learned Munsif framed as many as six issues and received evidences of the parties. The plaintiff examined herself only as P.W. 1 and filed the certified copy of entire order sheet of O.L.R. Case No.722 of 1975 of the Tahasildar, Khurda and the certificate granted by the Revenue Officer in favour of the defendant-respondent, which were marked as Exts. 1 and 2 respectively. The defendant-respondent examined himself as D.W.2 and examined the son of the plaintiffs as D.W.1 and one local person as D.W.3. On assessment of these evidences, learned Munsif concluded that D.W.1 was the authorised agent and power of attorney holder of the appellant, that there was no collusion between D.W.1 and D.W.2, that order passed by the Revenue officer in O.L.R. Case No.722 of 1975 is in conformity with the fundamental principle and procedures of the O.L.R. Act and is in no way capricious, unfair or arbitrary. He accordingly held that Section 67 of the O.L.R. Act bars jurisdiction of the Civil Court to entertain the suit or to interfere with the order of learned Revenue Officer. Consequently, the suit was dismissed on contest with cost. The appellant filed Title Appeal No.6 of 1985 before Subordinate Judge, Khurda challenging the judgment and decree of the trial Court. In that appeal, the appellant only challenged the finding of trial Court relating to issue Nos. 1 and 4 wherein learned trial Court held that the Civil Court has no jurisdiction in view of the bar under Section 67 of the O.L.R. Act. Learned Sub-ordinate Judge, after considering the contentions of the parties and the materials on record rejected the plea of the appellant and confirmed the judgment of the trial Court. Unhappy with the said order, the appellant has filed the present second appeal.
6. At the time of admission, Ground Nos. 3 and 5 of the appeal memo were considered as substantial questions of law. Both the grounds relate to the findings of the Courts below about the jurisdiction of the Civil Court to entertain suit to declare the order of an O.L.R. Court as null and void.
7. Mr. S.P. Mishra, learned Counsel for the appellant argued that in spite of the specific bar provided under Section 67 of the O.L.R. Act, Civil Court can assume jurisdiction and entertain a suit to decide whether the O.L.R. Court followed the statutory procedures laid down in the O.L.R. Act and whether the order is arbitrary, unfair and capricious. Mr. Mishra alleged that the Courts below without appreciating the correct position of law and without sincerely examining whether the order of the O.L.R. Court suffers from statutory lacuna, casually held that the jurisdiction of the Civil Court is barred.
8. Mr. A. Pal, learned Counsel appearing for the respondent on the other hand submitted that disputes and matters relating to tenancy of lands come within the purview of the O.L.R. Act and under the said statute special forums have been created to decide all matters relating to tenancy and Section 67 of the Act clearly bars jurisdiction of the Civil Court in the matter. He indicated that the respondent had sought for a declaration that he is a tenant over the suit land under the appellant and such matter being within the jurisdiction of the O.L.R. Court, jurisdiction of the Civil Court is barred under Section 67 of the Act particularly when appeal and revision forums have also been provided in that Act to test the correctness of the order of the Revenue Officer. He thus claimed that the Courts below did not commit any legal error in holding that the jurisdiction of the Civil Court in the matter is barred.
Learned Counsel for both parties cited a number of decisions of the apex Court and this Court in support of their respective contentions.
9. It is not disputed that special authorities have been created under the O.L.R. Act to deal with the matters relating to tenancy of land and that jurisdiction of Civil Court has been barred under Section 67 of the Act. It is also not disputed that the appeal and Revision forums have been created under the O.L.R Act to test the correctness of the orders passed by the Revenue Officer under the said Act. Now the question is whether in spite of such provision of the O.L.R. Act, Civil Court can assume jurisdiction and declare the order of the O.L.R. Court illegal and not binding. In this context some of the decisions cited by learned Counsel for the parties, which are relevant are indicated below.
10. In the case of Smt. Gouri Dei and Anr. v. Agadhu Sahu and Anr. Vol. 37 (1971) CLT-687, this Court held that the dispute between landlord and tenant as regards to tenant's possession is to be decided by the Revenue Officer under Section 15(1)(b) of the Act and not by a Civil Court as Section 67 provides bar of jurisdiction of the Civil Court. It was also held that Section 16(5) of the O.L.R. Act empowers Revenue Officer to grant injunction in suitable cases and therefore, Civil Court cannot entertain a suit for injunction. In the cases of Sankar Kumar Bhattar and Ors. v. Tehsildar-cun-Revenue Officer, Basta and Ors. AIR 1976 Orissa 103; Brajakishore Panda and Ors. v. Damodar Rout and Anr. 63 (1987) CLT 347 & Bishnu Charan Mohapatra and Ors. v. Krushna Chandra Mallick and Ors. 97(2004) CLT 329 the same principle was reiterated. In the case of The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors. the apex Court while considering the jurisdiction of Civil Court under Section 9 of the C.P.C. observed that if an Industrial Dispute relates to enforcement a right or an obligation created under the Act, then the only remedy available to the suitor is to get adjudication under the Industrial Disputes Act in a specially constituted Tribunal and not in a Civil Court. It was clarified that where special Tribunals have been constituted to adjudicate a particular clause of dispute and the jurisdiction of the Civil Court is expressly or impliedly barred, then Civil Court will have no jurisdiction to entertain any matter which is adjudicable by the special Tribunal.
11. In the case of Paramananda Pradhan and Anr. v. Palau Sahu and Ors. 1984 (I) OLR 40, this Court while dealing with a matter under the Orissa Merged Territories (Village Offices Abolition) Act, 1962 had the occasion to observe thus:
...It is well settled that where a special statute provides for a person aggrieved by an order passed thereunder, a particular remedy to be sought in a particular forum in a particular way it must be sought in that forum and in that manner and all other forums and modes of seeking it are excluded. In the light of the principle, it is clear that Civil Court's jurisdiction to set aside the settlement made under Section 6 of the Act is excluded. The decision of the competent authorities being final subject to appeal or revision provided in the statute, it cannot be questioned in the Civil Court.
Legal position is well settled that even if jurisdiction is excluded, it is always open to the Civil Courts which are Courts of general jurisdiction to consider and decide whether the statutory Tribunal has acted within the ambit of the powers conferred upon it by the statute to which it owes its existence or 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 or it has transgressed the limits placed on its powers by the legislature. The Civil Court would interfere if it finds that the order of the statutory Tribunal is unfair, capricious or arbitrary. (Pr. 19).
In the case of Mangulu Jal and Ors. v. Bhagaban Rai and Ors. a Full Bench of this Court while considering the jurisdiction of the Civil Court in a matter relating to conversion of Bhogara Lands made the following observations;
In such a case also, the Civil Court cannot take fresh evidence to determine which person was in possession on the particular date and as such is entitled to settlement. The Civil Court can only examine if the Collector's order is unfair, arbitrary or capricious. Such a conclusion can be reached if on the materials placed before the Collector a reasonable man could not have reached the same conclusion. However unsatisfactory the Collector's conclusion may be, it cannot be set aside merely because a different view could be take by the Civil Court on the materials before the Collector. Similarly, the correctness of the Collector's view cannot be tested in the light of evidence adduced before the Civil Court. (Para-24).
In the case of Firm Seth Radha Kishan (deceased) represented by Hari Kishan and Ors. v. Administrator Municipal Committee, Ludhlana while dealing with a matter relating to Punjab Municipal Act, a question came up as to whether a suit can be filed to question the order of a Tribunal on the ground that the same was passed in violation of the provisions of the Act. In that context, the apex Court observed that normally Civil Court cannot have jurisdiction to entertain a suit if under the particular statute Tribunals and appellate forums have been created to decide the matters coming under the Act, but evening such cases the Civil Court's jurisdiction will not be completely ousted because a suit in a Civil Court will always lie to question the order of the Tribunal created by the statute if the said Tribunal abuses its power and does not act under the Act, but in violation of its provision.
12. In the case of Laxman Pradhan v. Brajabandhu Mohapatra and Ors. 59 (1985) CLT 74, this Court while dealing with the restrictions provided under Section 67 of the O.L.R. Act observed that Section 67 of the Act expressly bars jurisdiction of the Civil Court to entertain any suit or proceeding relating to any matter which any officer or other competent authority is empowered under the Act to decide. But if the Revenue Officer wrongly exercises his jurisdiction in passing the order, then the Civil Court would retain its jurisdiction to find out if the order of the Revenue Officer is palpably erroneous, illegal and capricious.
13. A close reading of the ratios of the above noted cases would indicate that if under the Act a statutory Tribunal has been created to adjudicate disputes and matters relating to a particular area and the jurisdiction of the Civil Court is expressly or impliedly barred by virtue of some provision of the Act, then normally suit will not lie in the Civil Court relating to matters which can be adjudicated by the Special Tribunal and its appellate forums created under the Act. However, if the statutory Tribunal acts in excess of its jurisdiction or does not act in conformity with the statutory provisions and procedures or passes unfair, arbitrary or a capricious order, then Civil Court can assume jurisdiction to decide the legality of the order of the Tribunal.
14. In the present case, the plaintiff-appellant sought a declaration that the order of the Revenue Officer, Khurda passed in O.L.R. Case No.722 of 1975 is illegal, without jurisdiction and not binding and simultaneously prayed for declaration of her title, confirmation of possession over the suit land and for injunction against the respondent. The Courts below held that in view of the bar under Section 67 of the O.L.R. Act and in view of the fact that appeal and revision forums are available to test the order of the Revenue Officer, the suit of the plaintiff-appellant is not maintainable. The Courts below also analyzed the evidence and circumstances on record and came to the conclusion that the Revenue Officer concerned did not act in excess of his jurisdiction in passing the aforesaid order and did not contravene the statutory provisions of the O.L.R. Act. They were also of the view that the order of the Revenue Officer is neither arbitrary nor unfair or capricious. The impugned orders show that the Courts below have taken into consideration the facts, evidences and circumstances of the case before reaching the above conclusions. In fact the record shows that the Revenue Officer did not pass the order declaring Duryodhan Swain as tenant over the suit land basing on any compromise petition, rather he passed the said order after considering the report of the local Revenue Inspector about possession of the land and other factors including the endorsement of Jagannath Das Puria. There were evidence also to show that said Jagannath Das Puria was having joint power of attorney of the appellant and had also sold and transferred some Of the lands of the appellant in that capacity. The record also shows that there was no suppression of notice as the ex parte order passed was set aside on the prayer of the appellant and the matter was reheard giving opportunity to the appellant.
15. Law is settled that the correctness of the finding of the Revenue Officer is to be tested in appellate and revisional forum and not before the scheduled Court when the concurrent finding of the Courts below is that the Revenue Officer did not violate the statutory provisions of the Act and his order is not arbitrary, unfair and capricious and such findings of fact are of good reasons supported by materials on record, there is hardly any scope of interference.
16. Mr. Mishra, learned Counsel for the appellant submitted that the appellant-plaintiff had also prayed for declaration of her title, confirmation of possession over the suit land and grant of such relief not being within the legal competency of the Revenue Officer, the suit should have been maintained by the Civil Court. No doubt a Civil Court gets jurisdiction to entertain a suit where the relief sought cannot be granted by the special Tribunal constituted under the Special Act. But to decide such issue the facts and circumstances of the case must be taken into consideration otherwise by using some clever words in the prayer portion of the plaint, litigants can bring every matter within the jurisdiction of the Civil Court. In the present case, admittedly the appellant was the owner of the suit land. The respondent filed the O.L.R. Case to declare him as tenant under the plaintiff and because that prayer was allowed and certificate under Section 8 of the O.L.R. Act was granted, the plaintiff filed the suit to set aside that order and certificate and simultaneously prayed that after setting aside such order of the O.L.R. Court her title and possession be declared and respondent be injuncted. The reliefs prayed for cannot be granted unless the order of the O.L.R. Court is set aside. The entire suit, therefore, revolved round the order of the Revenue Officer and the tenancy certificate granted in favour of the respondent. Such being the case, Section 67 of the O.L.R. Act provides bar for entertaining suit of the plaintiff-appellant. Learned Courts below were, therefore, justified in deciding issues Nos. 1 & 4 against the appellant.
17. In view of the foregoing discussions, the second appeal is found to be without any merit and is dismissed on contest with cost.