Gujarat High Court
State Of Gujarat vs Rasiklal Hiralal Saini (Abet) on 28 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/64/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 64 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary.
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STATE OF GUJARAT
Versus
RASIKLAL HIRALAL SAINI (ABET)
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Appearance:
MR. RAKESH PATEL, ASST. GOVERNMENT PLEADER(1) for the
PETITIONER(s) No. 1,2,3
MR DIPUM S RAMI(6015) for the RESPONDENT(s) No. 2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/06/2018
ORAL JUDGMENT
1. This second appeal under section 100 of the CPC is at the instance of the original defendants and is directed against the Page 1 of 53 C/SA/64/2015 JUDGMENT judgment and order dated 15th November, 2013 passed by the 3rd Addl. District Judge, Deesa in the Regular Civil Appeal No.6 of 2010 arising from the judgment and decree passed by the Principal Senior Civil Judge, Deesa in the Regular Civil Suit No.104 of 2003.
2. The respondents herein-original-plaintiffs preferred the Regular Civil Suit No.104 of 2003 in the court of the Civil Judge (SD) at Deesa for declaration, permanent injunction and for compensation of Rs.25,000/-. Having regard to the peculiar facts of this case, I deem fit to reproduce the entire plaint along with the reliefs prayed for in the suit.
"The plaintiffs above named humbly submits as under;
(1) The whole village Rajpur of Deesa Taluka, originally was a Devasthan Inami village, and Mahant of Rajpur-
Math was the sole proprietor of the village. Old Revenue Survey No.340, 346, 347 of this village, were renumbered in revision survey, as new Revenue Survey No.6. This R.S. No.6 was shown in village form No.7/12 as Banas Rived-bed. The entry No.304 in Village Form No.6 of this village was sanctioned in this respect and that entry is not challenged till now by my any revenue authority.
(2) That due to the operation of the Gujarat Devasthan Inam Abolition Act-1969, from 15.11.1969, the said S. No.6, believing river-bed land, it was vested in Government, and entry No.377 was made in Village Form No.6, to show this mutation.
(3) That Mr. Hiralal Bhuidarbhai Saini the father of the plaintiff No.1,2 & 3 was in possession of land admeasuring A.223 Guntha 31, out of this said Survey No.6, on the appointed day of the said Act, i.e., on 15.11.69. His name was also running in revenue record as tenant on the said land.He expired in July-1967, the present plaintiffs have been continued in legal possession of the said land of deceased Hiralal, since Page 2 of 53 C/SA/64/2015 JUDGMENT then.
(4) Thus, when Talati inserted an Entry No.377 in Village Form No.6, as a result of Sec.8 of the Gujarat Devasthan Inam Abolition Act, 1969, showing vesting of Revenue Survey No.6 under the head of 'State', the present plaintiffs objected for the legality of this entry no.377 and filed their written objections before the Talati, by claiming this land of S.No.6 in their own personal possessary right, and also claimed that they are the inferior holder of this land, under section 4(1)(C) of the Gujarat Devasthan Inam Abolition Act. The dispute of this entry was entered in register of disputed cases, and the Mamlatdar was to decide this dispute. But before he decides the dispute, he by his order dtd. 20.11.72, he decided to settle this point first, by inquiry under sec. 37(2) of the Bombay Land Revenue Code-just to settle the rival claims, in respect of this land of S. No.6, whether it is a Government land or not?, and he at the same time postponed the proceedings of the decision of dispute of Entry No.377, till the decision of the inquirer under sec. 37(2). In this inquiry under section 37(2) the main question raised was whether this land of S. No.6 is a river bed land or not, and whether it is vested in Governmetn? and what are the rights of the present plaintiffs over this land.
(5) As per the order of the Mamlatdar, Deesa, this matter went before the Deputy Collector, Palanpur for holding inquiry under sec. 37(2) . But before this matter reaches to the office of the Deputy Collector, Palanpur, he ordered on 27.9.71 to hold public auction to dispose of the said land, for one year on lease, believing the land being of Government and river-bed land. That the present plaintiffs who were aggrieved with the said order of Deputy Collector, Palanpur, for the disposal of this land, filed their appeal before the Gujarat Revenue Tribunal, Ahmedabad, by G.R.T.A. No.509/71. And the honourable Tribunal set aside the order of the Deputy Collector, Palanpur for holding public auction, and directed to the Deputy Collector, Palanpur to start the inquiry under sec. 37(1).
(6) Againt Deputy Collector, Palanpur postponed the inuquiry undersec. 37(2) by his ordderdtd. 18.7.72 observing that let the Mamlatdar first to take decision Page 3 of 53 C/SA/64/2015 JUDGMENT under the Devasthan Inam Abolition Act, to decide the right of plaintiffs over this land, and till then, his inquiry under sec. 37(2) be stayed.
(7) That as per this order of Deputy Collector, the Mamlatdar, Deesa, hold an inquiry under the Gujarat Devasthan Inam Abolition Act, and he decided that this land of Survey No.6 is river-bed and is vested in Government. The appeal was filed under the Gujarat Devasthan Inam Abolition Act, by the present plaintiffs against the said order of Mamlatdar, before the Special Secretary as Appeal No.41/72 and in the said appeal, the decision of Mamlatdar was set aside, and remanded the case to the Deputy Collector, Palanpur for holding enquiry u.s.37(2) and to take the decision first that whether it is a river-bed land or not? and whether the land is of the Government or not? And after taking such decision if Deputy Collector thinks it proper he may transfer the case to the Mamlatdar to hold enquiry u.s.4(1)(c), of the Gujarat Dev. Inam Abolition Act and thereafter, whatever decision comes, that will decide the dispute of entry No.377. As per this order of remand by Special Secretary, Deputy Collector, Palanpur, hold the enquiry under sec. 37(2), by registering the case No.6/73, and he decided by his order dtd. 23.3.73 that this land R.S. No.6 is not a river-bed land and is not vested in Government, under sec. 8 of the Guj. Dev. Inam Abolition Act. Along with this order, Deputy Collector, Palanpur also as per the order of the Special Secretary in appeal No.41/72, transferred this case to Mamlatdar, Deesa, to hold inquiry the rights of plaintiffs under sec. 4(1)(C) of the said Gujarat Devasthan Abolition Act.
(8) The Collector, Palanpur, took this order of Deputy Collector- passed in land inquiry case No. 6/73, under his revisional jurisdiction and he set aside the said order of Deputy Collector, Palanpur and decided that this land S.No 6 is river-bed land and also decided that this land is vested in Government- by his order dt. 30-9-73. The present plaintiffs filed their appeal against this order of the Collector, before the Gujarat Revenue Tribunal, vide appeal No.340/73, and the said order of the Collector dtd. 30-9-73 was set aside by the Tribunal in the said appeal, and confirmed the order of the Deputy Collector Palanpur, dtd.23-3-73 in Inquiry Case No.6/73, that this land is not rover-bed land and is not vested in Page 4 of 53 C/SA/64/2015 JUDGMENT Government under section 8 of the Gujarat Devasthan Inam Abolition Act.
(9) So, at last, the Mamlatdar, Deesa, again started the inquiry in his case No.1/82 under sec. 4(1)(C) of the Gujarat Devesthan Inam Abolition Act, to decide the rights and status of the plaintiffs over this Survey No. 6. When the inquiry was to start, one Shri Gordhandas Sonaram Saini and another Shri Bhemabahi also gave their application to decide their status in respect of some land in their possession of this Revenue Survey No.6. (10) In the inquiry under sec. 4(1)(C) of the Gujarat Devasthan Inam Abolition Act, Mamlatdar, Deesa, who had been delegated the power to hold inquiry on behalf of the State of Gujarat, under sec.4(1)(C) of the said Act, decided in Devasthan Inquiry Case No.1/82, by his order dtd. 30-6-92, that plaintiffs who are in possession of A.173-31 Guntha of land out of Survey No. 6, are holding this land as an inferior holder, and he also decided that other claimants named Gordhanbhai and Bhemabhai, each holding 30 acre land of Survey No.6, are also holding as an inferior holder..
(11) This decision was a final decision under the said Act and as a result of this order, original entry No.377 was cancelled, and new entry No.2390, dtd.19-7-93 was entered and promulgated by the competent authority, to give the effect to the order of Mamlatdar, under section 4(1)(C) of the said Act.
(12) No appeal was preferred by the State Govt. against this order of the Mamlatdar passed under sec. 4(1)(C) of the said Act, to the Special Secretary to whom the power of hearing appeal is entrusted by the State of Gujarat, under the said Act. No revision was also filed to the Special Secretary against this order of Mamlatdar within the time limit of one year provided under the said act. (13) As there was a dispute amongst plaintiffs and other claimants, in the inquiry under sec. 4(1)(C), regarding the measurement of land in possession, the present plaintiffs one of the claimant in the said inquiry, preferred appeal No. 1/92 before the Special Secretary against the other claimants name Gordhanbhai and Bhemabhai, contending on the ground that they both have been wrongly declared inferior holder under the inquiry, by the Mamlatdar, Deesa, and the plaintiffs should have been declared in possession of A. 231-33 Guntha land instead Page 5 of 53 C/SA/64/2015 JUDGMENT of A. 173-31 Guntha.
(14) Hon' able Special Secretary, Revenue department allowed our appeal, and declared the plaintiffs as an inferior holder for the whole land of A.231 G. 33, instead of acre A. 173 G. 31 of Revenue Survey No.6. The above said two claimants who lost the appeal have preferred their writ petition against this decision of the Special Secretary, before the Hon'ble High Court of Gujarat, and the same is pending at present.
(15) So, the history of the land of S.No.6 rest here at this stage that the plaintiffs are the inferior holder of 231 A.33 G. land of S.No.6, and the land S.No. 6 is not of the Government land is never vested in Government. This decision is final for ever as there is no remedy now remains to be exhausted under the Gujarat Dev. Inam Abolition Act.
(16) It is also now established beyond any doubt that under the Gug. Dev. Inam Abolition Act, the order of Mamlatdar, Deesa, which was passed u/s. 4(1)(C) of the said Act, in deleged authority by the State of Gujarat. The order of the Mamlatdar was also came to the notice of the Special Secretary, who is also having both the appellant and the revisional powers under the said Act on behalf of the State of Gujarat, and Special Secretary has not thought fit to take this order of Mamlatdar in to his own revisional jurisdiction, as provided under the proviso of Sec. 4 of the said Act. And thus, so fas as the order declaring the status of plaintiffs as inferior holder of the land of S.No.6, by the Mamlatdar, Deesa remains final for ever, and now no authority under any act, or no revenue officer, have any legal authority, under any law to take in to his revisional jurisdiction, this order of the Mamlatdar, Deesa.
(17) Since the decision of the Special Secretary passed in appeal No. 1-92, the plaintiffs were sitting silent regarding the payment of revenue for this land of S.No.
6. The Government officer had not fixed the assessment of revenue of this land. Because of this reason, the plaintiffs applied to the Deputy Collector, Deesa to decide the revenue for the land in possession of plaintiffs, in respect of Revenue Survey No.6. At the time of making of Page 6 of 53 C/SA/64/2015 JUDGMENT this application defendant No.3 Mr. Dube was on the post of the Deputy Collector, Deesa.
(18) To the surprise of the plaintiffs Mr.Dube, Deputy Collector, Deesa, instead fixing the assessment of revenue of this land, he entered in the merits of the order of the Mamiatdar, Deesa, and he, under his own wrong notion that the order of Mamlatdar, Deesa, in the inquiry under Sec. 4(1)(C) of the said Act, is illegal, he decided to issue show-cause notice, to the plaintiffs and others, for setting aside the said order of the Mamlatdar, Deesa. He also in the personal meeting with the plaintiffs in the presence of two witnesses demanded illegal gratification for not issuing show-cause notice. The plaintiffs did not surrendered to the demand of Mr. Dube, and he ultimately going against the law and intentionally neglacting the entire provision of the Gujarat Dev lnam Abolition Act, issued show--cause notice to the plaintiffs dtd.27-3-2003. In the said notice, he did not mentioned even under what provision he is issuing such notice, and he gave such notice to show why the order of the Mamlatdar, Deesa, dtd.30-6-92 should not be set side. (19) Plaintiffs were astonised to recieve and to read this notice as in fact the plaintiffs were believing that there is no revenue authority, who has any power to take this matter into his revisional jurisdiction. As stated above, only Special Secretary on behalf of the State of Gujarat had appellate and revisional jurisdiction, which he did not exercised within the prescribed time limit. It is day light clear that Deputy Collector, or Collector has no authority or jurisdiction to examine the order of the Mamlatdar on merits passed under Sec. 4(1)(C) of the said Act. Deputy Collector or Collector they being only revenue authority, cannot examine this case on merits, or under his revisional jurisdiction, under the Bombay Land Revenue Act or Rules.
(20) Deputy Collector, Deesa, Mr. Dube inspite of having all his legal knowledge that he has no legal or inherent jurisdiction to examine the order of the Mainlatdar, passed under section 4(1)(C) of the Gujarat Devasthan Inam Abolition Act, but just with a malafide intention to harass and damage the right of plaintiffs, at what so ever reason, he issued above said illegal show-cause notice.
(21) In reply to this notice, we humbly submitted to him Page 7 of 53 C/SA/64/2015 JUDGMENT by filing our written reply, informing him the whole story of this case, and informed him regarding the legal position that, he has no inherent jurisdiction to take this matter into revision.
(22) But, as it was pre-decided, in the mind of Mr. Dube to go against us, in this matter, he even though had no authority as a revisional jurisdiction under Gujarat Devasthan Inam Abolition Act, examined the whole case on merits and decided that this land Survey No.6 is river- bed land and belongs to Government by his order in Gujarat Devasthan Inam Case No. 1/2003. Deputy Collector, Deesa, just to justify himself in the order to show that he is having revisional jurisdiction, under the Gujarat Devasthan Inam Abolition Act, he has wrongly stated that under sec.2(5) of the Gujarat Devasthan Inam AbolitionAct, and as per the notification of Revenue department of 25-11-69, he has got revisional jurisdiction over the order of the Mamlatdar, who has acted under sec.4(1)(C) of the said Act. In fact there is no such notification dt.25-11-69 which empowers Deputy Collector, for revisional jurisdiction. Thus, Mr. Dube, def. No.3, took help of wrong notification to have revision power ..........just to damage the plaintiffs right. (23) We the plaintiff humbly submit that this action to set aside the order of . Mamlatdar, Deesa by the defendant No. 3, as a Deputy Collector of Deesa is absolutely without inherent jurisdiction with him and he has gone beyond his limit of jurisdiction as a Deputy Collector. (24) He does not have any power as a revisional jurisdiction under the Gujarat Devasthan Inam Abolition Act. He is also not delegated any such power of revision jurisdiction, by the State Government, under the said Act. And if any such power is proved to be delegated to him, then also he is bound to exercise such power within one year of limitation as provided in the Act . In this case he has set aside the order after 10 years which was absolutely beyond his inherent jurisdiction. Thus, from every angle, if we examine the order of the Deputy Collector, Deesa, is laking from inherent jurisdiction, and it is absolutely ab initio void. It does not carry any legal value in the eye of law, and does not have any adverse effect on the order of the Mamlatdar, Deesa. The order of the Mamlatdar, Deesa, passed under the Gujarat Devasthan Inam Abolition Act, remains as it is, without Page 8 of 53 C/SA/64/2015 JUDGMENT having any adverse effect of the order of the Deputy Collector. In this order he has falsely mentioned the notification dtd.25-11-69, and stated that he has got revisional jurisdiction.
(25.) On such ab initio order of the Deputy Collector, Deesa, no action is supposed to be taken by village Talati or any revenue officers, to give effect of such order. No revenue officer of the State Government can take possession of the land of Survey No.6 from the plaintiff, because of the order of the Deputy Collector, Deesa. Thus, to prevent revenue officer from taking any action on this order, for the above said reasons, the plaintiffs have been constrained to file this suit against the defendants, for getting proper reliefs of the suit. (26) Moreover, it is kindly submitted that, the plaintiffs have been compelled to tile the suit only because of the malafide action of the defendant No.3, who wanted some benefit from us, and we never surrendered to him for this demand, he intentionally, disobeying all the rules and regulations and crossing all the limit of standard of a responsible officer, he issued this show-cause notice, and also passed his liking order in the matter just to damage the rights of the plaintiffs, without any inherent jurisdiction, under any law.
(27) We therefore, submit that he should be made personally responsible for the whole special cost of the suit, and we the plaintiffs, as such also are entitled to get compensation and damages for the cost of this litigation and for the mental agony suffered through out the litigation, from him, personally by fixing lump-sum amount of Rs. 25,000/-.
(28) The cause of action of this suit has arisen on the day of issuing such illegal show-cause the notice dtd. 27-3- 2003, and thereafter from the 30-6-92 to date of the order of the Deputy Collector, Deesa, in Gujarat Devasthan Inam case No. 1/2003. Therefore, this honourable court has jurisdiction to conduct this case, and the suit is within the period of limitation. (29) For the purpose of Court fees, as the suit is for declaration and permanent injunction, and the subject matter of the suit is not in terms of money, Court fee stamp of Rs.1OO/- is affixed as provided as per Sec. 6(4) (J) of the Bombay Court Fees Act. And for the further relief of Rs.25,000/-, Court Fee Stamp of Rs.5/- affixed Page 9 of 53 C/SA/64/2015 JUDGMENT herewith.
(30) The value for the purpose of jurisdiction of the suit is valued for Rs.25,000/-.
(31) The plaintiffs therefore, pray as under:-
(1) Please declare that the order of Deputy Collector, Deesa, Mr. Dube,, passed in Deesa Devasthan Inam Case No. 1/2003, dtd. on 18-6-2003, is absolutely ab initio-
void, and also declare that all subsequential revenue proceedings, started due to this ab initio order are also vitiated.
(2) Please declare that the State of Gujarat, or of any of its officer has got no jurisdiction to set aside the order of Mamlatdar, Deesa, passed under sec. 4(1)(C), of the Gujarat Devasthan Inam Abolition in his Case No. 1/82.
(3) Please, pass the decree of permanent injunction against the State of Gujarat and its all officers, and servant from disturbing the legal possession of the plaintiffs as an inferior holder over the land of Revenue Survey No.6.
(4) Please pass a personal decree of Rs. 25,000/- by way of the compensation against the defendant No.3, Mr. Dube, who has malafidely passed the order, in his Devasthan Inam Case No.1]2003, going beyond his jurisdiction, and setting aside the order of the Mamlatdar, just to cause personal damage to the plaintiffs in respect of the suit-land.
(5) Any other appropriate and necessary reliefs which are grantable as per the evidence, and pleadings in the case, kindly be allowed against the defendants. (6) Please, allow the cost of the suit and advocate fees in the suit from the defendants. "
3. Thus, it appears that the Mamlatdar passed an order in favour of the respondents-original plaintiffs in exercise of his powers under section 4(1)(c) of the Gujarat Devasthan Inam Abolition Act, 1969 dated 30th June, 1992. The Mamlatdar declared the respondents herein- original plaintiffs to be the inferior holders of the land in question. It also appears that in Page 10 of 53 C/SA/64/2015 JUDGMENT the proceedings before the Mamlatdar, the plaintiff No.1- Rasiklal Hiralal Saini and his heirs were before the Mamlatdar. The order passed by the Mamlatdar under section 4(1)(C) of the Act came to be challenged before the State Government (SSRD) by the Plaintiffs Nos.2,3,4 and 5. This challenge was on the ground that they had the exclusive share in the property in question. It appears that the S.S.R.D passed an order holding as under;
"- : O R D E R : -
The appeal of the applicants is allowed. The impugned order of Mamlatdar, Deesa dated 30/6/1992 is set aside and as per section - 4 (1) (c) of Devshan Inami Abolition Act, 1969, the applicants of this case are held as the inferior holder of land located in Moje Rajpur village of Deesa Taluka bearing survey no. 6 admeasuring acre 231
- 33 guntha being the heirs of original occupant Hiralal Bhudarlal Saini. "
4. The order passed by the S.S.R.D was challenged by filing two Special Civil Applications Nos.7900 of 1993 and 7897 of 1993 respectively. It appears that as settlement took place between the private parties, both the special civil applications, referred to above, came to be disposed of. The order passed in the Special Civil Application No.7897 of 1993 dated 8th October, 2010 is reproduced herein below;
"1.0 By way of present petition, the petitioner has prayed to quash and set aside the judgment and order dated 11.06.1993 passed by the Secretary (Appeals), Revenue Department, Gujarat State, Ahmedabad in Appeal No. 1 of 1992 declaring that respondent Nos. 1 to 4/1 to 4/5 are inferior holders of land at Sr. No. 6 of Rajpur village.
2.0 Today, when the matter is taken up for final hearing, learned advocate for the petitioner has Page 11 of 53 C/SA/64/2015 JUDGMENT submitted compromise pursis dated 05.04.2004 which is binding to the private parties and also the State Government. Hence, the petition stands disposed of in terms of compromise pursis. Rule is made absolute in terms of compromise pursis with no order as to costs. "
5. In short, the entire dispute between the private parties came to an end with the disposal of the two special civil applications as well as with the disposal of the letters patent appeal before this Court. Although, the Special Secretary, in his order, observed that he was quashing the order of the Mamlatdar, yet, in substance the order of the Mamlatdar was upheld with a necessary clarification that others also have a share in the property.
6. After a period of almost 10 years, the Deputy Collector, Deesa thought fit to take the order passed by the Mamlatdar in a suo motu review. In the review proceedings, the Deputy Collector, in the purported exercise of his powers under the Act, quashed the order of the Mamlatdar.
7. In such circumstances, referred to above, the respondents-original plaintiffs thought fit to file a Regular Civil Suit questioning the legality and validity of the order passed by the Deputy Collector.
8. The Trial Court framed the following issues vide Exh.50;
"1. Whether the plaintiffs prove that they were held as ' inferior holder' qua survey no. 6 of Rajpur village under section - 4 (1) (c) of the Gujarat Devsthan Inami Abolition Act?
2. Whether the order dated 30/6/92 passed by the Mamlatdar, Deesa under section - 4 (1) (c) of the Page 12 of 53 C/SA/64/2015 JUDGMENT said act, is the final order?
3. Whether the respondent no.3 had authority under any act to set aside the order of the Mamlatdar, Deesa passed under section - 4 (1) (c)? If he does not have any authority then whether the order of the respondent no. 3 dated 27/3/2003 setting aside the order of Mamlatdar, Deesa passed under section
- 4 (1) (c) is 'null and void' ab initio?
4. Whether the order 'null and void ab initio' passed by the respondent no. 3 on 27/3/2003, was passed with malafide and malicious intention and due to this, the plaintiffs are entitled to receive damages as demanded from the respondents?
5. (a) Whether this court has the jurisdiction to hear this suit?
(b) Whether the plaintiffs are entitled to get all the reliefs?
6. What judgement and order?"
9. The issues, referred to above, came to be answered as under;
"1. In affirmative.
2. In affirmative.
3. In affirmative.
4. As respondent no.3 has been deleted, this decision is not required.
5. (a) In affirmative.
(b) As per Final Order
6. As per Final Order."
10. The Trial Court came to the conclusion that the order passed by the Mamlatdar, Deesa dated 30th June, 1992 in exercise of his powers under section 4(1)(C) of the Act having attained finality, the same could not have been taken in review by the Deputy Collector after a period of almost 10 years. To put it in other words, the Trial Court recorded a finding that Page 13 of 53 C/SA/64/2015 JUDGMENT the order passed by the Deputy Collector was per se without jurisdiction and contrary to the provisions of the Act. The Trial Court also took into consideration the fact that the order passed by the Mamlatdar which came to be quashed by the Deputy Collector had been, in fact, affirmed by the State Government.
11. The issue with regard to the jurisdiction of the Civil Court to try the suit was also raised and it was answered in the affirmative. The Trial Court took the view that it had the jurisdiction to try the suit and section 20 of the Act was not applicable. Ultimately, the suit came to be allowed and the decree, as prayed for, was granted.
12. Being dissatisfied with the judgment, order and decree passed by the Trial Court, the appellant herein preferred the first appeal under section 96 of the CPC before the District Court, Banaskantha at Deesa. The First Appellate Court, on re- appreciation of the entire evidence on record, framed the following points for determination in accordance with Order 41 Rule 31 of the CPC.
(1) Whether it is proved that as a matter of law is the appraisal of evidence by the Trial Court suffers from material Irregularity, illegality or is passed on inadmissible evidence or on conjuncture and surmises, so this Court have to be interfere with the findings of facts as well as finding of law in this appeal?
(2) Whether it is proved that Trial Court has failed to appreciate the evidence on record, hence required to allow the appeal?
(3) Whether Civil Court has right to entertain the suit of plaintiff?
Page 14 of 53C/SA/64/2015 JUDGMENT (4) Whether it is proved that as per Section - 8 of Gujarat Devsthan Inam Abolition Act 1969, the river, riverbed and lands are vested in the government which is of Survey No.6?
(5) What order?
13. The points for determination, referred to above, came to be answered by the first appellate court as under;
"Point No.1 Negative Point No.2 Negative Point No.3 Affirmative Point No.4 Negative Point No.5 As per final order."
14. Upon detailed examination of all the relevant aspects of the matter, ultimately, the first appellate court thought fit to affirm the judgment and decree passed by the Trial Court. The appeal filed by the appellants herein came to be dismissed. Being dissatisfied with the judgment and order passed by the first appellate court, the appellants-original defendants are before this Court with this second appeal under section 100 of the CPC.
15. The following substantial questions of law have been formulated in the memo of the appeal;
"(A) Whether river-bed land which has admittedly been under the ownership and possession of the Government since 1947 and even before that, can be decreed in favour of any private person who seek to claim the same only on the basis of documents which are otherwise invalid/inadmissible in law?
(B) Whether a suit filed in 2003 for claim of property, without any valid proof of title, and admittedly under the Page 15 of 53 C/SA/64/2015 JUDGMENT ownership and possession of the Government since prior to 1947, is maintainable in law?
(C ) Whether in the facts and circumstances of the case the Learned Appellate Court was right in confirming the judgment and decree passed by the learned Civil Court specifically in view of the fact that plaintiffs-Respondents had failed to pass the primary test as to whether the suit filed by them was itself maintainable under the law of limitation and easements?
(D) Whether when it has been admitted that "Hiralal Bhupendrabhai Saini was in possession of land.. and his name was also running in revenue record as a tenant"
(Emphasis supplied) on and from 1969 can claim ownership of title to such land in perpetuity?
(E) Whether river-bed land which has admittedly been under the ownership and possession of the Government since 1947 and even before that, can be the subject matter of a compromise between two private parties, when none of them can claim any legal or vested right therein?
(F) Whether in the facts and circumstances of the case, the Learned Appellate Court was right in confirming the judgment and decree passed by the Learned Civil Court, specifically in view of the fact that plaintiffs-respondents had failed to pass the primary test as to whether such a suit was maintainable in a civil court as barred by section 20 and 21 of the Gujarat Devasthan Inam Abolition Act 1969.
(G) Whether when previous generations of the same family have admittedly not staked-laid a claim in respect of the said property, such government property can be decreed in favour of a private person without any valid/substantiating evidence in law?
(H) Whether the courts below ought to have appreciated that article 112 of the Limitation Act 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals, is squarely applicable in the facts of the present case.
(I) Whether in the light of the judgment of the Hon'ble
Page 16 of 53
C/SA/64/2015 JUDGMENT
Supreme Court in the case of R. Hanumaiah v/s.
Secretary to Government of Karnataka Revenue Department reported in 2010(5)SCC 203 it can be said that the courts below have taken things "... in a casual manner, ignoring or overlooking the special features relating to government properties.
(J) Whether in the facts of the present case the judgment of the Hon'ble Supreme Court in the case of R. Hanumaiah vs. Secretary to Government of Karnataka Revenue Department reported in 2010 (5) SCC 203 is squarely applicable when the claim was admittedly made on the basis of documents which cannot be held to be valid proof in law.
(K) Whether in the facts and circumstances of the case, the Learned Appellate Court was right in confirming the judgment and decree passed by the Learned Civil Court, specifically in view of the fact that plaintiffs-Respondents had failed to pass the primary test as to whether the property could be said to accrue in their name suddenly in respect of property when there was no proof worthy of admitting especially with regard to their right of ownership therein.' (L) Whether in the facts and circumstances of the case, the Learned Appellate Court was right in confirming the judgment and decree passed by the Learned Civil Court, specifically in view of the facts pleaded by the plaintiffs-
respondents and which shows no cause of action or grounds to justify their claim without it ever having formed part of the land records."
Submissions on behalf of the appellants;
16. Mr. Rakesh Patel, the learned AGP very vehemently submitted that both the courts below committed a serious error in accepting the case put up by the respondents herein- original plaintiffs. Mr. Patel, the learned AGP, would submit that a riverbed land of the ownership and possession of the State Government since 1947 could never have been declared as the Page 17 of 53 C/SA/64/2015 JUDGMENT land of the private individuals , i.e, the plaintiffs.
17. Mr. Patel would submit that it is true that the Mamlatdar did passed an order in favour of the plaintiffs way back in 1992 in exercise of his powers under section 4(1)(C) of the Act and such order was affirmed by the State Government with few clarifications as regards individual shares of the private parties, yet, the Deputy Collector, having found the order of the Mamlatdar to be absolutely erroneous in law, thought fit to take it in suo motu review after a period of 10 years. According to Mr. Patel, such action on the part of the Deputy Collector could not be termed as without jurisdiction.
18. Mr. Patel would submit that the court below committed a serious error of law in taking the view that the civil court had the jurisdiction to try the suit. Mr. Patel submits that section 20 of the Act makes the position of law as regards the jurisdiction abundantly clear. Section 20 of the Act bars the jurisdiction of the Civil Court as to decide or settle any issues which the authorities under the Act could have decided. The argument proceeds on the footing that there may be a gross delay of about 10 years at the end of the Deputy Collector in taking the order of the Mamlatdar in review, yet, the order, being a nullity, the same could have been taken in review..
19. In the last, Mr. Patel, relying on a decision of the Supreme Court in the case of R. Hanumaiah & Anr. vs. Secretary to Government of Karnataka, Revenue Department & Ors., 2010 (5) SCC 203 submitted that the courts of law should take due care to protect the Government properties from being grabbed. Mr. Patel submits that any .loss of Government Page 18 of 53 C/SA/64/2015 JUDGMENT property is ultimately the loss to the community. The courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements. In such circumstances, referred to above, Mr. Patel, the learned AGP would submit that as there are substantial questions of law involved in this second appeal, the same may be admitted.
Submissions on behalf of the respondents:-
20. On the other hand this second appeal has been vehemently opposed by Mr. Kavina, the learned senior counsel appearing with Mr. Deepam Rami, the learned counsel appearing for the respondents - original plaintiffs. Mr. Kavina would submit that assuming for the moment without admitting that the order passed by the Mamlatdar was without jurisdiction, yet the same could not have been quashed and set aside by the Deputy Collector after a period of ten years, more particularly, when the order of the Mamlatdar came to be affirmed by the State Government. Once the order is affirmed by the State Government how could a subordinate revenue officer like the Deputy Collector take such an order in suo motu review and quash the same. Mr. Kavina would submit that both the courts have recorded concurrent findings of fact with regard to the status of the land as well as the status of the plaintiffs so far as the land is concerned. Mr. Kavina submitted that both the Courts rightly came to the conclusion as regards the jurisdiction. Section 20 of the Act, in the peculiar facts and circumstances of the case, would not act as a bar for the civil court to exercise its jurisdiction for the purpose of declaring the order passed by the Deputy Collector as erroneous in law and without jurisdiction. In such circumstances, referred to Page 19 of 53 C/SA/64/2015 JUDGMENT above, the learned senior counsel would submit that as no substantial questions of law are involved, this appeal deserves to be dismissed.
Analysis:-
21. Having heard the learned counsel appearing for the parties and having considered the materials on record, the questions that fall for my consideration are whether the two courts below committed any error in passing the impugned orders and whether this second appeal involves any substantial question of law.
22. Although, both the sides, in their own way, tried to make good their case on various issues, yet at the end of the arguments, I have thought fit to concentrate only on one issue and, i.e., with regard to the jurisdiction of the Civil Court to try the suit. To put it in other words, whether the Civil Court had the jurisdiction to try the suit filed by the plaintiffs in view of section 20 of the Act. All other questions raised are questions of fact and I would not like to disturb the concurrent findings of fact as they cannot be termed or dubbed as perverse findings.
23. To answer the question with regard to the jurisdiction, I must first look into few provisions of the Act. The term Devasthan Inam has been defined under section 2(6) as under;
"(6) 'Devasthan inam' means an inam consisting of a grant or recognition as a grant-
(a) of a village, portion of a village or land, whether such grant be-
(i) of soil with or without exemption from payment of land Page 20 of 53 C/SA/64/2015 JUDGMENT revenue or
(ii) of assignment of the whole of the land revenue of the village, portion of the village or, as the case may be, land, or of a share of such land revenue, or
(iii) of total or partial exemption from payment of land revenue in respect of any land; or
(b) of cash allowance or allowance in kind by whatever name called, 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 any other revenue record or public record maintained in respect of alienations or determined as such by a decision under Section 5 of the Gujarat Surviving Alienations Abolition Act, 1963, but does not include-
(i) revenue free sites granted by a competent authority for the construction of schools, colleges, hospitals, dispensaries or other public works from which no profit is intended to be derived, or
(ii) any alienation to which the provisions of the Gujarat Surviving Alienations Abolition Act, 1963 cir of any of the laws specified in the Sche6ule thereto apply;"
24. The "Devasthan Land" has been defined under section 2(7) of the Act as under;
"2(7) "Devasthan Land" means a village, potion of a village or land held under a Devasthan inam;"
25. The term "inferior holder" has been defined under section 2(9) of the Act as under;
"2(9) 'Inferior holder' means a person who is in possession of a Devasthan land whether by inheritance, or succession or valid transfer under the Tenancy Law or otherwise and who, being liable to pay assessment in cash or kind, holds such land, whether on payment of Page 21 of 53 C/SA/64/2015 JUDGMENT assessment or not. "
26. The term "Inamdar" under the Act has been defined under section 2(10) of the Act;
"2(10) "Inamdar" means the religious or charitable instituion for which a Devasthan inam is held, whether such inam is actually entered in the relevant revenue record in the name of such institution or of any person in charitable of such institution or having the management thereof;"
27. The term "unauthorized holder" has been defined under section 2(14) of the Act as under;
"2(14) "unauthorized holder" means a person in possession of a Devasthan land under any kind of alienation thereof which is null and void under the law applicable to such land immediately before the appointed day;'
28. Section 4 is relevant for the purpose of deciding the issue of jurisdiction. Section 4 is extracted hereunder;
"4. (/) If any question arises--
(a) whether any village, portion of a village or land, is held under a Deva-
sthan inam, or,
(b) whether any Devasthan inam consists of --
(i) merely a total or partial exemption from payment of land revenue, or
(ii) a grant of soil, with or without exemption from payment of land revenue, or Page 22 of 53 C/SA/64/2015 JUDGMENT
(iii) assignment of land revenue of a village, portion of village or land or a share in such land revenue, or
(c) whether any person is an inamdar, authorised holder, unauthorised holder or inferior holder, the State Government shall after giving an opportunity to the parties to be heard and holding a formal inquiry decide the question:
Provided that the State Government may authorise any officer (hereinafter in this section referred to as "the authorised officer") to decide in the like manner questions arising under clause (a), (b) or (c).
(2) Any person aggrieved by the decision of the authorised officer under the proviso to sub-section (7) may file an appeal to the Stale Government within sixty days from the date of such decision.
(3) Where from a decision of the authorised officer no appeal is filed under sub-section (2), the State Government may, after the expiry of the period for filing an appeal mentioned in sub-
section (2), but not 'later than one year from the date of the decision, call for the record of the proceedings of the authorised officer for the purpose of satisfying itself as to the legality, propriety or regularity of such proceeding or 'decision and may pass such order thereon as it thinks fit.
(4) The decision of the authorised officer, subject to an appeal under sub- section (2) or revision under sub- section (3) and the decision of the Stale Government under sub-section (l) or sub-section (2) or, as the case may be, sub-section (3) shall be final and conclusive and shall not be questioned in any suit or proceeding in any court.
(5) The provisions of section 4,5, 12 and 14 of the Limitation Act, 1943 shall apply to the filing of an appeal under sub-section (2).'
29. Section 20 is with regard to the jurisdiction of the Civil Page 23 of 53 C/SA/64/2015 JUDGMENT Court in the matters arising under the Act. Section 20 is extracted hereunder;
"20. No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or 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."
30. The plain reading of section 4 of the Act would indicate that if any question arises whether any person is an Inamdar, authorized holder, unauthorized holder, or inferior holder, the said question has got to be decided by the State Government after giving an opportunity to the parties to be heard and after holding a formal inquiry. The proviso to section 4 provides that the State Government may authorize any officer to decide the questions arising under clause (4) (b) or (c) of section 4(1. If any person is aggrieved by the decision of the authorized officer under the proviso to subsection (1) an appeal has been provided to the State Government within 60 days from the date of such decision. Clause (3) to section 4 further provides that if no appeal is filed from a decision of the authorized officer under sub section (2), the State Government has the power after the expiry of the period for filing an appeal mentioned in sub section (2) but not beyond the period of one year from the date of the decision to call for the record and proceedings of the authorized officer for the purpose of satisfying itself as to the legality, propriety or regularity of such proceeding or decision. Sub section (4) to section 4 further clarifies that the decision of the authorized officer subject to an appeal under sub section (2) or revision under Page 24 of 53 C/SA/64/2015 JUDGMENT sub section (3) and the decision of the State Government under sub section (1) or sub section (2) or sub section (3) shall be final and conclusive and shall not be questioned in any suit or proceeding in any Court.
31. Having regard to the provisions of the Act referred to above it could be said without any hesitation that the order passed by the Mamlatdar way back on 30th June, 1992 in exercise of powers under section 4(1)(C) declaring the plaintiffs as the inferior holders attained finality and more particularly after the order of the State Government (SSRD). Once the order could be termed as final and conclusive within the meaning of sub section (4) of section 4 of the Act, the Deputy Collector, in my opinion, could not have taken it up in review after a period of ten years. It is this action on the part of the Deputy Collector and the order passed by him had to be challenged by way of filing the civil suit. The declaration had to be prayed for having regard to the fact that the Deputy Collector had no jurisdiction, at all, to disturb the order passed by the Mamlatdar. In this factual back ground and having regard to the provisions of law, this is the right stage for me to decide the issue of jurisdiction keeping in mind section 20 of the Act.
32. Let me look into the observations of the first appellate court as regards the history of the litigation and the manner in which the Deputy Collector passed the order which came to be declared as null and void.
"[10] It is the fact of plaintiff that the whole village Rajpur of Deesa Taluka is originally Devsthan lnami Village and Mahant of Rajpur Math was the sole Proprietor of the Page 25 of 53 C/SA/64/2015 JUDGMENT village. The old revenue Survey No.340, 346, 347 of this village were renumbered in Revision survey and there was new number as Survey No.6. This revenue survey No.6 was shown in village form No.7/12 as Banas Riverbed and the entry No.304 was also postulated in village form No.6 and it is sanctioned in that respect and that entry is not challenged till filing of suit by any revenue authority. It is also the case of plaintiff that due operation of Gujarat Devshtan lnam Abolition Act 1969 which came into force from 15/11/1969. The said survey No.6 believing as a riverbed land and it was vested in government and the entry No.377 was also postulated in village form No.6. It is also the case plaintiffs that the Hiralal Bhupendrabhai Saini was in possession of land admeasuring 233 acre 31 guntha out of this survey No. 6 on the apointed date that means on 15/11/1969 and his name was also running in revenue record as a tenant on a said land Such Hiralal Bhupendrabhai expired on July 1967 hence present plaintiff have been continued in legal possession of said land. Rajpur Math Mahant Shri Chandrapuriji Guru Uttampuriji of Rajpur was admittedly the occupant of land. The land was Devsthan lnam land and on coming into force of the Gujarat Devsthan lnam Abolition Act 1969, the rights of the Mahant Shri Chandrapuriji in the said land were abolished. On other hand, the State of Gujarat was claimed that on the abolition of Devsthan lnam, the land vested in it on that assumption. Deputy Collector ordered to public auction hence present plaintiff Rasiklal Hiralal and others has filed a appeal before Gujarat Revenue Tribunal which is registered as Appeal No.GRT 501/71 and claimed that Hiralal Bhupendradas was originally the tenant of land as the same had been leased to him by the Mahant of Rajpur Math and in abolition of lnam, they had become entitled to occupancy of the land hence the State was not entitled to dispose of land by public auction. Moreover, they have contented that since the plaintiffs claimed right over the disputed land, it was incumbent on the Deputy Collector to hold a formal inquiry under section 37(2) of Bombay Land Revenue Code. In absence such inquiry the Government is not competent to disposed of land. It is also in record that disputed land belonged to the Rajpur Math and were cultivated by their predessessor Hiralal as a tenant and decree of Civil Court in Civil Suit No.40/53 between the deceased Hiralal and Mahant Uttampuriji, it shows that deceased Hiralal Page 26 of 53 C/SA/64/2015 JUDGMENT claimed to be the tenant of the land that a permanent Injunction was issued against Mahant Uttampuriji restraining him from taking away the possession of land from deceased Hiralal in that suit. Mahant Uttampuriji has accepted as a tenant to the deceased Hiralal over 10 years from the date of compromise. It is also observed by the member of G.R.T. that there is nothing to show no vesting order has been produced on behalf of Government and land as is in disputed would not vested in the State. In this connection the words "and all lands in respect of which no person is deemed to be an occupant under this act" in said are important. This words read with section 23 of the act would certainly exclude the disputed land from perview of section- 8 and would not vested in the government and in result, the appeal was allowed by the G. R. T. and order of Deputy Collector was set aside and directed to hold the formal inquiry under section 37(2) Under B.L.R. Code and to decide the claim of plaintiffs over the disputed land. Prior to this proceedings, the Talati had inserted the entry No.377 in form No.6 as a riverbed in village form No.6 due to section-8 of G.D.I.A. Act 1969 showing vesting of revenue Survey No.6 under the head of State hence plaintiffs have filed objection for the legality of entry No.377 and claiming their own personal possessory right and also claimed that they are the inferior holder of this land under section 4(1)(C) of G.D.I.A. Act 1969. The dispute of this entry was entered in register in disputed case. The Mamlatdar have to decide the dispute but prior to that Mamlatdar had decided to settle this point first by inquiry Under section 37(2) of B.L.R. Code. he by his order dated 20/11/1972 like as whether it is a government land or not? and same time they have postponed the proceeding of entry No.377 till the decision of Inquiry under section 37(2) of B.L.R. Code and in Inquiry under section 37(2), the main question raised that whether land of Survey No.6 is a riverbed land or not and whether it is vested in government and what are the rights of present plaintiffs over the land. As per order of Mamlatdar, Deesa, the matter went before Deputy Collector Palanpur for holding inquiry under section 37(2) but before the matter reached to the office of Deputy Collector, he ordered on 27/9/1971 to hold public auction to dispose of said land for one year on lease believing that land being of government and riverbed land. Being aggrieved and dissatisfied with the order passed by Page 27 of 53 C/SA/64/2015 JUDGMENT Deputy Collector, plaintiffs filed an appeal before the G.R.T. Ahmedabad vide G.R.T. No.501/71 and tribunal has set aside the order of Deputy Collector and directed to hold inquiry under section 37(2) even though again Deputy Collector postponed the inquiry under section 37(2) by his order dated 18/7/1972 observing that Mamlatdar have to take first decision under the G.D.l.A. Act to decide the right of plaintiffs over this land and till then, his Inquiry ' under section 37(2) be stayed hence as per the order of Deputy Collector the Mamlatdar Deesa has hold an inquiry under GDIA Act and he decided that land of Survey No 6 Is riverbed land and is vested in government As against this order, the plaintiffs have filed an appeal before Special Secretary as Appeal No.41/72 and in said appeal the order of Mamlatdar was set aside and matter remanded back to the Deputy Collector for holding inquiry under section 37(2) and to take the decision first that whether it is riverbed land or not? and whether the land is of government or not? and after taking such decision if Deputy Collector thinks fit it proper, he may transfer the case to Mamlatdar to hold inquiry under section 4(1)(C) of G.D.l.A. Act. and as per this order of remand by Special Secretary, the Deputy Collector hold the inquiry under section 37(2) by registered the case No.6/1973 and in such case, Deputy Collector had decided that the land of Survey No.6 is not riverbed land and is not vested in government under section-8 of G.D.l.A. Act. The order passed on 23/3/1973. Alongwith this order, Deputy Collector also as per the order of Special Secretary in Appeal No.41/72, transferred the case to the Mamlatdar, Deesa to hold inquiry for the purpose of rights of plaintiffs under section-4(1)(c) of said G.D.l.A. Act. Meanwhile the Collector, Palanpur took the order of Deputy Collector passed in land inquiry case No.6/73 under his revisional jurisdiction and set aside the order of Deputy Collector and decided that the land Survey No.6 is riverbed land and also decided that this land is vested in government by his order dated 30/9/1973. Being aggrieved and dissatisfied with the order passed by Collector in inquiry case No.6/73, the plaintiffs filed and appeal before G.R.T. which is registered as G.R.T. Appeal No.340/73 and as per order of G.R.T. dated 19/8/1974. The order dated 23/3/1973 passed by Collector Banaskantha in revision application No.6/73 is set aside and order of Deputy Collector dated 23/3/1973 was restored and confirmed.Page 28 of 53
C/SA/64/2015 JUDGMENT The copy of such order is on record at Ex.79 hence Mamlatdar, Deesa started the inquiry vide inquiry Case No.1/82 under section-4(1)(C) of G.D.l.A. Act. and in such inquiry, the Mamlatdar by his order dated 30/6/92 decided that plaintiffs are in possession of 173 acre 31 guntha land of Survey No. 6 and holding this land as inferior holder and when the inquiry was started, one Shri Gordhandas Sonaram Saini and Bhemabhai has filed application to decided their status in respect of some land in their possession of survey No.6 hence by the order -of Mamlatdar, the Gordhanbhai and Bhemabhai ordered to be holding each 30 acres land of survey No.6 and are also holding as an inferior holder. Such order of Mamlatdar is on record at Ex.80. This decision was final under the said Act and as a result of such order, original entry No.377 was canceled am No.2390 dated 19/7/1993 was entered and promolgated by competent authority to give the effect to the order of Mamlatdar under section 4(1)(C) of the Act. Looking to the record of suit, no appeal was preferred by the State against the order of Mamlatdar which is passed under section 4(1)(c) of the Act, to the Special Secretary to whom the power of hearing appeal is entrusted by the State of Gujarat under the said Act. No revision also filed to the Special Secretary against the order of Mamlatdar within time limit of one year. Being aggrieved and dissatisfied with the order of Mamlatdar dated 30/6/1992 in Devsthan Inami Case No.1/82, under section 4(1)(c) regarding the measurement of land in possession, the present plaintiffs preferred appeal before the Special Secretary, Revenue vide Appeal No.Devsthan Inami No.1/92 and contended that Gordhanbhai and Bhemabhai have been wrongly declared inferior holder under the inquiry by the Mamlatdar Deesa and plaintiffs should have been declared in possession of 231 acre and 33 guntha land instead of 173 acre 31 guntha and in this appeal, Special Secretary, Revenue has allowed the appeal by his order dated 11/6/1993 and declared that plaintiffs as an inferior holder for the whole land of 231 acre 33 guntha of revenue survey No.6. Such order of Special Secretary is on record at Ex.55 and 81 respectively. Being aggrieved and dissatisfied with the order passed by Special Secretary, the other two claimants who have been lost his appeal have preferred a writ petition before Hon'ble High Court against the decision of Special Secretary. The claimant Padhiyar Bhemabhai Okhabhai Page 29 of 53 C/SA/64/2015 JUDGMENT had filed Special Civil Application 7900 of 1993 but looking to the record, by the order of Hon'ble Gujarat High Court dated 19/10/10, the dispute between parties have been amicably settled outside the court hence they produced compromise pursis dated 5/4/2004 and thereafter in view of such pursis the petition disposed of on 19/10/10. It is also admitted that the State has not filed any appeal or revision as may be against the order passed by Specialgegggtam Revenue Department in Devsthan Inami No.1/92 dated 11/6/93 hence such order of Special Secretary is in existence and when Special Secretary has set aside the order of Mamlatdar, Deesa dated 30/6/92 and declared the plaintiffs as an inferior holder of survey No.6 admeasuring 231 acre and 33 guntha of Rajpur Village. in these circumstances, it cannot be said that the disputed land is vested to the government even though Deputy Collector has issued notice to the plaintiffs and other two claimants and initiated the Devsthan Inami Case No.1/03. The notice is on record at Ex.74. The plaintiffs have filed reply against this notice which is on record at Ex.75. The Deputy Collector, Deesa has entertained the Devsthan Inami Revision Case No.1/03 instead of fixing the assessment of the revenue of such land, when under G.D.I.A. Act the order of Mamlatdar which was passed under 4(1)(c) under this act in delegated authority by the state of Gujarat, the order of Mamlatdar was also came to notice of the Special Secretary who is also having both the appellant and revisional power under the said act on behalf of the government. The Special Secretary has not thought fit to take this order of Mamlatdar into his own revisional jurisdiction as provided under the provision of section 4 of the act hence so far as the order declaring the status of plaintiff as an inferior holder of the land of survey No.6 by the Mamlatdar Deesa remain final forever and no authority under an act or no revenue officer have any legal authority under any law to take into his revisional jurisdiction the order of Mamlatdar Deesa hence when there is decision of Special Secretary passed in an Appeal No.1/92, the government officer had not fixed the assessment of revenue of this land because plaintiff applied to the Deputy Collector Deesa to decide the revenue for the land in possession of plaintiffs but Deputy Collector, Deesa instead of fixing assessment of revenue of Survey No.6 he entered in a merits of order of Mamlatdar, Deesa in the inquiry under section 4(1)(c) of Page 30 of 53 C/SA/64/2015 JUDGMENT the said act is illegal hence Issued the notice to the plaintiffs for setting aside the order of Mamlatdar but Deputy Collector has no power to take the matter into his revisional jurisdiction. Only Special Secretary on behalf of Government has appellate and revisional jurisdiction. Deputy Collector Deesa have no authority as revisional jurisdiction under G.D.I.A. Act examined the whole case on merits and decided that this land of survey No.6 is riverbed land and belongs to government by this order in G.D.l. Case No.1/03. Ld. AGP has argued that Deputy Collector had revisional power under section 2(5) of G.D.l.A. Act and as per notification of Revenue Department dated 25/11/1979, if any such power is delegated to the Deputy Collector then also it is bound to exercise such power within one year of limitation as provided in the act but in this case Deputy Collector has set aside the order of Mamlatdar after ten years. Thus from every angle, the order of Deputy Collector is lacking from inherent jurisdiction and absolutely ab-initio void and it can be said that it is not legal valued in eye of law and order of Deputy Collector does not have any adverse effect of Mamlatdar, Deesa. In short, it can be said that as per section-2,5 of Gujarat Devasthan lnami Abolition Act 1969, the Collector includes an officer appointed by the State Government to perform the function and exercise the power of collector under this act and in exercise of power conferred by section 2,5 of G.D.l.A Act, Govt. of Gujarat had appointed all the Assistant Collector, Deputy Collector and Special Deputy Collector to perform the function and exercise the power of Collector within their respective jurisdiction and passed a notification on 25th November, 1969 but if we consider such notification even though the Deputy Collector has not taken any action within one year from the order passed by Mamlatdar, Deesa but it is on record that Deputy Collector had set aside the order of Mamlatdar after the lapse of ten year of limitation which is absolutely beyond the inherent jurisdiction. As per section 4 of G.D.l.A. Act 1969, when any question arise about whether any village, portion of village, land under Devsthan lnam or whether any Devsthan lnam consist of merely a total or partial exemption from payment of and revenue or a grant of soiled with or without exemption of payment of land revenue or assignment of land, revenue of a Village, portion of village or land or share in such land revenue or whether any person is Inamdar authorised holder Page 31 of 53 C/SA/64/2015 JUDGMENT unauthorised holder or inferior holder, in that case the State Government shall, after giving an opportunity to the parties to be heard and holding a formal inquiry decide the question provided that the State Government may authorise any officer herein after in this section referred to as authorised officer to decide in the like manner, question arising under such section hence as per section 4 of said act, the power to decide certain questions and appeal and a revision is vested to the State Government or authorised officer by the State Government. But looking to the record of proceeding there is no any notification on record to extend that power conferred under section-4 by the State Government to the Deputy Collector hence I do not want to interfere with the order passed by Trial Court i.e. Ld. Principal Senior Civil Judge. As per section 17 of the G.D.l.A. Act 1969, the decision of Gujarat Revenue Tribunal in Appeal shall be final and conclusive and shall not question in any suit or proceeding in any court. In these circumstances, the order passed by GRT is final in nature which is on record at Ex.79. As per Ex.55 and 81, the order of Special Secretary, Revenue Department allowed the appeal of plaintiffs and declared that they are as inferior holder of whole land of survey No.6 admeasuring 231 acre 33 guntha. In short, looking to the documentary evidence on record the decision of superior authority is basically decided by the Mamlatdar, Deesa and all the orders are in favour of plaintiffs and lastly the Special Secretary has also ordered in favour of plaintiffs which is in force which is competent authority hence Deputy Collector has no revisonal power under said act hence it is without substance and without jurisdiction. Ld. A.G.P. has argued that civil court has no jurisdiction to entertain the suit when subject matter is based upon Devshthan lnam Abolition Act but in reported judgment AIR 1981 Supreme Court 2016 Saiyad Mohammad Bakir deceased by legal representatives(LRS) V/s State of Gujarat. In this case Hon'ble Supreme Court has evident that, Civil Court has jurisdiction to decide the question whether in a case is a personal lnam or not? It is admitted that plaintiffs are in possession in disputed land from beginning as a tenant and Mamlatdar Deesa has also ordered and declared as inferior holder of the said land. Such order is dated 30/6/1992 in Rajpur Devshthan lnami Case No.1/92 at Ex.80 and it is admitted fact that on the basis of such order, the revenue entry also Page 32 of 53 C/SA/64/2015 JUDGMENT postulated in revenue record in favour of plaintiffs. Looking to the order of Higher Forum of Revenue Dept, they have also not declared the disputed land vested in Government under section 8 of the act hence there is no interest of government in said land. Moreover, as per the order of Special Secretary dated 11/6/1993 in Devsthan lnami No.1/12 of Special Secretary, Revenue Dept. they have also ordered that plaintiffs are inferior holder of Survey No.6 admeasuring 231 acre 33 guntha under section 4(1)(c) of G.D.l.A. Act. 1969. In these circumstances, plaintiffs are inferior holder as per order Ex.80 and 81. Collector has only the power to fix the assessment of revenue under section 10(2) of the said act. The Mamlatdar Deesa has passed an order on 30/6/92 as per Ex.80 and as per section 4(2) of the act, any person aggrieved by the decision of authorised officer under the proviso to sub section-1 may file an appeal to the State Government within 60 days from the date of decision and as per section 4(3) where from a decision of the authorised officer, no appeal is filed under sub section-2, the State Government may after the expiry of the period for filing an appeal within 60 days from the date of such decision, but not later than one year from the date of decision, call for record a proceeding of the authorised officer for the purpose of satisfying itself as to the legality, proprietary or regularity of such proceedings or decision and pass such order thereon as it thinks fit but looking to the order made by Deputy Collector is passed after ten year hence it is without jurisdiction. In these circumstance, Deputy Collector or Collector have no revisional power to revise the order of Mamlatdar which passed under section 4(1)
(c) of G.D.l.A. Act. and revisional power vested .to the State Government or any authorised officer on behalf of State Government under section 4(2) and 4(3) of the act and there is no any notification in favour of Deputy Collector or Collector in view of section 4(2) and 4(3) of the act. In these circumstances the order of Mamlatdar Deesa is in existence. In these circumstance, the order passed by Principal Senior Civil Judge in R.C.S NO.104/03 is not required to be interfered and it is to be in perview of four corner of law hence I pass following order in the interest of justice. "
33. Thus, it appears that the entire village Rajpur of the Page 33 of 53 C/SA/64/2015 JUDGMENT Deesa Taluka was originally a Devasthan Inami village and the Mahant of the Village Rajpur Math was the sole proprietor of the village. It all started with an inquiry under section 37(2) of the Bombay Land Revenue Code. The inquiry was on the question whether the land is owned by the Government or not?. The main issue raised in the inquiry under section 37(2) of the Code was whether the land of Survey No.6 is a riverbed land and vested in the Government vis-a-vis the rights of the plaintiffs over the land.
33.1 The inquiry under section 37(2) of the Code ended with the conclusion that the land bearing Survey No.6 is not a riverbed land and not vested in the Government under section 8 of the Gujarat Devsthan Inam Abolition Act.
33.2 It appears that the Collector, Palanpur took the order of the Deputy Collector in revision and declared the land in question to be a riverbed land having vested in the Government vide order dated 30th September, 1973.
33.3 The plaintiffs preferred an appeal before the Gujarat Revenue Tribunal against such order passed by the Collector, and the Tribunal quashed and set aside the order of the Collector, thereby affirming the order of the Deputy Collector dated 23rd March, 1973.
33.4 On conclusion of the proceedings before the Revenue Tribunal, the Mamlatdar, Deesa initiated inquiry under section 4(1)(C) of the Act and held the plaintiffs to be in possession of Survey No.6. The plaintiffs were held to be inferior holders under the Act.
Page 34 of 53C/SA/64/2015 JUDGMENT 33.5 Thereafter, disputes cropped up, inter se, between the private parties. These disputes came to be settled with the final orders passed by the Special Secretary, State of Gujarat, and ten years thereafter, out of the blue, the Deputy Collector, on his own, took the order passed by the Mamlatdar in review and declared the land to be a riverbed land.
33.6 Having regard to the above facts, both the courts took the view that the order passed by the Deputy Collector could be termed as a nullity as he had no jurisdiction to pass such an order.
34. Section 9 of the Civil Procedure Code, 1908 provides that whenever a question arises before the Civil Court whether its jurisdiction is excluded expressly or by necessary implication, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by any special statute is sufficient or adequate. In cases where exclusion of the Civil Court's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or sufficiency of the remedy provided for by it may be relevant, but cannot be decisive. Where exclusion is pleaded as a matter of necessary implication such consideration would be very important and in conceivable circumstances might become even decisive.
35. In Dhulabhai & Ors. v. State of M.p. & Anr. [1968] 3 SCR 662 a Constitution Bench of the Supreme Court reviewed the entire case law on the question of maintainability of civil suit and laid down seven propositions. Propositions 1 and 2 are Page 35 of 53 C/SA/64/2015 JUDGMENT relevant, which read thus:
"(1) 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 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 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."
36. There is a para-materia provision like section 20 of the Act in the Bombay Tenancy and Agricultural Lands Act 1948 in the form of section 85. Section 85 of the Bombay Tenancy and Agricultural Lands Act 1948 is extracted hereunder:
"Section 85 Bar of jurisdiction (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question [(including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him) which Page 36 of 53 C/SA/64/2015 JUDGMENT is by or under this Act required to be settled, decide or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the [Maharashtra Revenue Tribunal] in appeal or revision or the [State] Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the [Maharashtra Revenue Tribunal] or the [State] Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation:- For the purposes of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906.(Bom II of 1906)
37. Section 85 of the Act 1948 fell for consideration before a Division Bench of the Bombay High Court in the case of Husein Miya vs. Chandubhai, reported in AIR 1954 Bom
239.
38. In that case, the order of the Mamlatdar passed under the said Act was challenged as ultra vires. In that case, an application was made by the landlords for possession against their tenant under Section 29 of the said Act to the Mamlatdar and a consent order was taken on August 24, 1948, by which the tenant agreed to hand over possession to the landlords. According to the tenant in that case, there was a fresh tenancy agreement between him and the landlords and that was in July 1949 and by reason of the fresh tenancy the tenant continued to remain on the lands and the landlords never took possession of them. It was further the case of the tenant that in July 1950 he exchanged with the consent of the landlords the lands demised to him with the same area of the lands which had been demised to another tenant. On February 15, 1952, the landlords applied to the Mamlatdar to execute the order of August 24, 1948. On March 22, 1952, the tenant filed Page 37 of 53 C/SA/64/2015 JUDGMENT an application before the Mamlatdar stating that he was a tenant of the landlords under a new agreement and that he should not be dispossessed. On March 17, 1952, the Mamlatdar ordered the tenant to hand over the possession of the lands, in execution of the order dated August 24, 1948 and on March 20, 1952 the landlords took possession of the lands from the tenant. On March 22, 1952, the tenant applied to the Mamlatdar under Section 29(1) for possession alleging that he was a tenant of the landlords, and on August 9, 1952, the Mamlatdar made an order in favour of the tenant and directed that possession be given to him on August 16, 1952. On August 15, 1952 the landlords filed a suit in the civil Court contending that the order passed by the Mamlatdar on August 9, 1952 was invalid and ultra vires and asked for an injunction against the tenant preventing him from taking possession of the lands from them. While interpreting Section 85 of the said Act ousting the jurisdiction of the civil Court, the learned Chief Justice Mr. M. C. Chagla observed (p. 948):
... It is clear that the jurisdiction of the civil Court has been only ousted in respect of valid orders made by the Mamlatdar. It is only when the Mamlatdar makes an order "with jurisdiction, or, in other words, makes an order for the purposes of the Act or an order required by the Act, that that order cannot be questioned in a civil Court. If the Mamlatdar while passing a valid order deals with any of the matters under Section 70, then those matters cannot be dealt with by the civil Court. But if the order made by the Mamlatdar is not for the purposes of the Act or not required by the Act and the order is incompetent or ultra vires, then the order is a nullity and it can be challenged in a civil Court."
39. While dealing with the argument in that case that it was open to the landlords to prefer an appeal against the decision of the Mamlatdar and that instead of preferring an appeal they Page 38 of 53 C/SA/64/2015 JUDGMENT had filed a suit in a civil Court, the learned Judges posed a question whether the fact that a statute provides for a right of appeal against an order made by an authority set up under that statute would make any difference to the position when the order made by the authority is an invalid or ultra vires order. The learned Judges answered that question and the argument as follows (p. 949):
"... It is clear that if the order itself is ultra vires, it is a nullity and there is no obligation upon a party against whom the order is made to prefer an appeal against that order. The appeals that are provided for under Section 74 are strictly appeals against valid orders made by the Mamlatdar and orders made with jurisdiction. It may be that the Collector could have corrected, the Mamlatdar and could have held that the order of the Mamlatdar was ultra vires, But the question is not whether the opponents (landlords) could have appealed to the Collector and could, have got the necessary relief. The question is whether the opponents (landlords) are bound to appeal and, are prevented or precluded from going to a civil Court. In our opinion, on principle it is erroneous to argue that merely because a statute provides for a right of appeal, the party against whom the order is made is bound to appeal although the order made is a nullity. If the order is a nullity, the party is entitled to ignore it, to treat it as waste paper, and to go to a civil Court for a declaration that the order is a nullity and no action should be taken against the party under that order which would prejudice his rights."
40. In HIS Highness The Gaekwar Sarkar of Baroda and The Bombay, Baroda, and Central India Railway Company vs. Gandhi Kachrabhai Kasturchand, AIR 1903 Privy Council 70, the respondent who was the plaintiff in the suit, was the owner of the lands in the village of Kokta and its neighbourhood. He complained that since the making of the Mehsana - Viramgam Railway his lands had been flooded in the rainy season. The respondent brought his suit against the Page 39 of 53 C/SA/64/2015 JUDGMENT Gaekwar with the consent of the Governor - General in Council as required by section 433 of the CPC and also against the railway company. His case was that the mischief, of which he complained, was occasioned by the negligent manner in which the works of the railway had been constructed and maintained. He claimed damages and injunction. The Subordinate Judge of Ahmedabad and the High Court of Judicature at Bombay, both found in favour of the Respondent on the question of negligence and concurred in awarding damages and an injunction, though the damages assessed by the Subordinate Judge were reduced in amount by the High Court Both the defendants appealed to HIS Majesty. The issue of jurisdiction of the Civil Court fell for the consideration of the Privy Council. It was contended that although the statutory authority of the Indian Railway Act, 1890 might have been abused or exceeded, yet no suit would lie and that the respondent's only remedy was by proceeding for compensation under the Land Acquisition Act 1870. While affirming the orders passed by the Subordinate Judge of Ahmedbad and the High Court of Judicature at Bombay and dismissing the appeal, their Lordships of the Privy Council observed as under;
"it would be simply a waste of time to deal seriously with such contentions as these. It has been determined over and over again that if a person or a body of persons having statutory authority for the construction of works (whether those works are for the benefit of the public or for the benefit of the undertakers or, as in the case of a railway, partly for the benefit of the under-takers and partly for the good of the public) exceeds or abuses the powers conferred by the Legislature, the remedy of a person injured in consequence is by action "or suit and not by a proceeding for compensation under the statute Page 40 of 53 C/SA/64/2015 JUDGMENT which has been so transgressed. Powers of this sort are to be exercised with ordinary care and skill and with some regard to the property and rights of others. They are granted on the condition sometimes expressed and sometimes understood - expressed in the Act of 1890, but if not expressed always understood - that the undertakers shall do as little damage as possible in the exercise of their statutory powers."
41. In Secretary of State vs. Mask & Co., reported in AIR 1940 Privy Council 105, their Lordships of the privy council with regard to the jurisdiction of the Civil Courts to entertain a suit observed as under:
"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 proceeding. "
42. In Raizada Topandas & Anr. vs. M/s. Gorakhram Gokalchand, reported in AIR 1964 SC 1348, the Supreme Court has explained the general principle which governs the question of jurisdiction at the instance of the suits. The relevant observations are as under:
"7] In answering this question it is perhaps necessary to refer to the general principle which admittedly governs the question of jurisdiction at the inception of suits. This general principle has been well explained in the Full Bench decision of the Allahabad High Court, Ananti v. Channu, ILR 52 All 501 : (AIR 1930 All 193) (FB) and has not been disputed before us. It was observed there :
"The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen. If ...... he frames his suit in Page 41 of 53 C/SA/64/2015 JUDGMENT a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief ............... If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of court to which the court belongs, the plaintiff's suit will have to be dismissed in its entirety."
Having regard to the general principle stated above, we think that the view taken by the High Court in this case is correct. Section 28 no doubt gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II apply; it also gives exclusive jurisdiction to decide any application under the Act or any claim or question arising out of the Act or any of its provisions - all this notwithstanding anything contained in any other law. The argument of learned counsel for the appellants is that the section in effect states that notwithstanding any general principle, all claims or questions under the Act shall be tried exclusively by the courts mentioned in the section, e.g. the Court of Small Causes in Greater Bombay, and it does not matter whether the claim or question is raised by the plaintiff or the defendant. The argument is plausible, but appears to us to be untenable on a careful scrutiny. We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those courts with exclusive power to try questions of title, such as questions as between the rightful owner Page 42 of 53 C/SA/64/2015 JUDGMENT and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his pliant does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under S. 28 depends, we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. The interpretation canvassed for by the appellants will give rise to anomalous results; for example, the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly, if the Court of Small Causes finds against the defendant's plea, the plaint may have to be returned for presentation to the proper court for a second time. Learned counsel for the appellants has argued in the alternative that the Court of Small Causes need not return the plaint a second time, for his contention is that court has "exclusive" jurisdiction to decide the case whenever a claim is made under the Act even though the claim is found to be false on trial. We do not think that this contention can be accepted as correct, for to do so would be to hold that the Court of Small Causes has exclusive jurisdiction to decide questions of title, which is clearly negatived by S. 29-A. Anomalous results may not be a conclusive argument but when one has regard to the provisions in Part II it seems reasonably clear that the exclusive jurisdiction conferred by S. 28 is really dependent on an existing or previous relationship of landlord and tenant and on claims arising under the Act as between such parties.
[8] Dealing with a similar argument in Govindram Salamartai, 53 Bom LR 386 : (AIR 1951 Bom 390) Chagla, C. J., said :
"There can be no doubt that when a plaintiff files a suit against a defendant alleging that he is his licensee, it is a suit which cannot be entertained and tried by the Small Causes Court because it is not a suit between a landlord and a tenant, and judging by the plaint no question arises out of the Rent Control Act or any of its provisions which would have to be determined on the plaint as it stands ........... . It cannot be suggested that the plaintiff should anticipate any defence that might be taken up by the defendant that he is tenant or that the initial jurisdiction which the Court had or which the Court lacked should be controlled or affected by any Page 43 of 53 C/SA/64/2015 JUDGMENT subsequent contention that might be taken up by the defendant. The jurisdiction of a Court is normally and ordinarily to be determined at the time of the inception of a suit. Therefore when a party puts a plaint on file, it is at that time that the Court has to consider whether the Court had jurisdiction to entertain and try that suit or not. But it is argued that although the Court might have had jurisdiction when the suit was filed; as soon as the defendant raised the contention that he was a tenant the Court ceases to have jurisdiction to try that suit and that contention could only be disposed of by the Small Causes Court by virtue of the provisions of S. 28.
Therefore, the question that I have to address myself to is whether the question as to whether the defendant is a tenant or a licensee is a question which arises out of the Act or any of its provisions. Really, this question is not a question that has anything to do with the Act or any of its provisions. It is a question which is collateral and which has got to be decided before it could be said that the Act has any application at all."
We are in agreement with these observations and we do not think that S. 28 in its true scope and ....... effect makes a departure from the general principle referred to earlier by us. Nor do we think that the right of appeal given by S. 29 affects the position in any way. In respect of a decision given by a Court exercising jurisdiction under S. 28, an appeal is provided for in certain circumstances under S. 29. This does not mean that S. 28 has the effect contended for on behalf of the appellants.
43. In Pabbojan Tea Co. Ltd. vs The Deputy Commissioner, Lakhimpur & Ors., reported in AIR 1968 SC 271(1), the Supreme Court, while dealing with a matter under the Minimum Wages Act observed as under:
"5)Our task is to ascertain whether the above provisions of the Act impose a bar on the institution of suits of the nature described in this case either expressly or impliedly. The question of maintainability of civil suits to challenge actions purported to have been taken under certain special statutes has engaged the attention of this Page 44 of 53 C/SA/64/2015 JUDGMENT Court in a number of cases in recent years as also of the Judicial Committee of the Privy Council before the establishment of this Court. Under S. 9 of the Code of Civil Procedure "the courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred." In Secy. of State v. Mask and Co., 67 Ind App 222 at p. 237:
(AIR 1940 PC 105 at p. 110) the question was, whether the order of the Collector of Customs on an appeal under S. 188 of the Sea Customs Act from a decision or an order passed by an officer of Customs as to rate of duty leviable under a tariff excluded the jurisdiction of the civil court to entertain a challenge on the merits of the decision of the Officer of Customs. It was there pointed out that the determination of the question depended on the terms of the particular statute under construction and decisions on other statutory provisions were not of material assistance except in so far as general principles of construction were laid down. The Board relied upon the exposition of law by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CB (NS) 336 that
-
"where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it"
the party must adopt the form of remedy given by the statute. S. 188 of the Sea Customs Act was one of a number of sections contained in Chapter XVII of the Act headed "Procedure relating to offences, appeals etc." and included Ss. 169 to 193. S. 182 provided for liability to confiscation or increased rates of duty in certain cases. S. 188 laid down that any person deeming himself aggrieved by any decision or order passed by an officer of Customs under the Act may, within three months from the date of such decision or order, appeal therefrom to the Chief Customs Authority, or, in such cases as the Local Government directs, to any officer of Customs not inferior in rank to a Customs Collector and empowered in that behalf by name or in virtue of his office by the Local Government. Such officer or authority may thereupon make such further enquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against and every order passed in appeal under this section was to be, subject to the power of revision conferred by S. 191, final.
Page 45 of 53C/SA/64/2015 JUDGMENT [6] According to the Judicial Committee Ss. 188 and 191 contained a precise and selfcontained code of appeal in regard to obligations which were created by the statute itself, and it enabled the appeal to be carried to the supreme head of the executive government. The Board observed :
"It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the civil courts."
[7] The well-known dictum of this judgment to be found at p. 236 is that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied and even if jurisdiction was excluded, the civil courts would still have jurisdiction to examine into cases where the provisions of the Act had not been complied with, or the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedure.
[8] In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Govt., 1960 AC 260 at p. 286 Viscount Simonds observed :
"It is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words".
[9] In Raleigh Investment Co. Ltd. v. Governor-General in Council, 74 Ind App 50 at p. 62. (AIR 1947 PC 78 at p 80) where the plaintiff-appellant had filed a suit claiming a declaration that certain provisions of the Indian Income- tax Act purporting to authorise the Assessment and charging to tax of a non-resident in respect of dividers declared or paid outside British India, but not brought into British India were ultra vires the legislative powers of the Federal Legislature and for repayment of the sums mentioned, the Judicial Committee observed, while dismissing the appeal, that "In construing the sections it is pertinent in their Lordship's opinion to ascertain whether the Act contains machinery which enables an assessee effectively to raise Page 46 of 53 C/SA/64/2015 JUDGMENT in the courts the question whether a particular provision of the Income-tax Act bearing on the assessment made is or is not ultra vires. The presence of such machinery, though by no means conclusive, marches with a construction of the section which denies an alternative jurisdiction to inquire into the same subject matter."
The Judicial Committee examined the different provisions of the Indian Income-tax Act in some detail including S. 67 of the Act and came to the conclusion that as the machinery provided by the Act could be effectively adopted by the assessee complaining of ultra vires assessment "jurisdiction to question the assessment otherwise than by use of the machinery expressly provided by the Act would appear to be inconsistent with the statutory obligation to pay arising by virtue of the assessment."
44. In Sardara Singh (Dead) by Lrs. & Anr., vs. Sardar Singh (Dead) & Anr., reported in (1990) 4 SCC 90, the supreme Court observed as under:
"The suit was, therefore, clearly de hors the provisions of the Act and hence ordinarily the civil court was entitled to hear and decide the same. But it was contended on behalf of the auction purchasers that the jurisdiction of the civil court was ousted by the specific provisions contained in clauses (xiv) and
(xv) of Ss. (2 of S. 158 of the Act. In order to appreciate this contention we may refer to the said provision:
"158(2) : A Civil court shall not exercise jurisdiction over any of the following matters, namely :
(xiv) any claim connected with, or arising out of, the collection by the government, or the enforcement by the government of any process for the recovery of land revenue, or any sum recoverable as an arrear of land revenue;
(xv) any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue.Page 47 of 53
C/SA/64/2015 JUDGMENT "in the present case the suit was instituted for a permanent injunction to restrain the defendants from taking possession of the land sold in public auction on the strength of the sale certificate issued on 12/03/1966.
The validity of this document was challenged on the ground that the sale was void since the auction purchasers had failed to deposit the balance of the sale price within the time allowed by S. 88 of the Act. As the sale was void, the subsequent acts of confirmation of the sale on 21/02/1966 and issuance of sale certificate on 12/03/1966 by the concerned authorities were of no avail to the auction purchasers. The owner of the land, therefore, contended that the auction purchasers were not entitled to possession under the sale certificate which was wrongly issued by the concerned authorities after the sale had become void in the eye of law. In order to protect his possession the land owner was, therefore, entitled to sue the auction-purchasers who were seeking to dispossess him on the strength of a document which had no efficacy in law. This is not a case of the land owner seeking to set aside the sale under S.91 of the Act, since it was not necessary for him to apply for setting aside the sale as there existed no sale. It was, therefore, open to the land owner to approach the civil court to protect his possession as the same was threatened. Such a suit, therefore, does not attract the provisions of S. 158 (2) on which reliance is placed. The High court, therefore, rightly observed as under:
"As his property had been sold by the revenue authorities without jurisdiction he had the right to file the suit in the civil court and which had the jurisdiction to decide the matter. It is an established principle of law that if the act of the parties under any Act is without jurisdiction, then the jurisdiction of the civil court is not excluded.
"we respectfully agree with the above observation. Once it is held that the sale was rendered null and void on the failure of the auction purchasers to comply with the requirements of S. 88 of the Act, it was the imperative duty of the authorities to put the properly to resale for the law did not confer any discretion in the concerned authorities to extend the time for the payment of the balance amount. Once the mandatory requirement of S. 88 of the Act was not complied with, the only course open to the concerned authorities was to put the Page 48 of 53 C/SA/64/2015 JUDGMENT property to re-sale. It, therefore, did not have any jurisdiction to accept the balance money after the expiry of the period prescribed by Section 88 of the Act. Therefore, the action of the concerned authority in accepting the balance money on 2/03/1965 long after the period prescribed by s. 88 of the Act had expired was an act without jurisdiction and of no avail. So also the confirmation of sale on 21/02/1966 was without jurisdiction and must be ignored. If that is the true position in law, there can be no doubt that there was no sale in the eye of the law in favour of the appellants herein and, therefore, the threatened action of the appellants to dispossess the land owner was clearly de hors the Act and could validly be challenged in a civil court. We, therefore, do not find any infirmity in the view which found favour with the High court."
45. Applying the dictum as laid in the aforenoted decisions to the case on hand, it can be said that the jurisdiction of the Civil Court has been only vested in respect of valid orders made by the authorized officers under the Act. It is only when the authority concerned makes an order with jurisdiction, or, in other words makes an order for the purposes of the act or an order required by the Act, that that order cannot be questioned in a civil court. If the authority concerned while passing a valid order deals with any of the matters under section 20 of the Act then those matters cannot be dealt with by the Civil Court., but if the order made by the authority is incompetent or ultra vires then the order is a nullity and it can be challenged in a civil court. If the order is without jurisdiction and is a nullity the party is entitled to ignore it, to treat it as a waste paper and to go to a civil court for a declaration that the order is a nullity and no action should be taken against him under that order as that would prejudice his rights.
46. I could lay my hands on one more decision of the Page 49 of 53 C/SA/64/2015 JUDGMENT Supreme Court on the subject in K.C Dora vs. G. Annamanaidu, reported in AIR 1974 SC 1069. In that case, their Lordships were considering the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. Section 9(1) of that Act makes the jurisdiction of the Settlement Officer and the Tribunal an exclusive one. This exclusion of the jurisdiction of the civil Court was interpreted to be subject to two limitations. First, 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. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The principle laid down by this decision supports the view that merely because a statute bars the jurisdiction of a civil Court, it does not mean that for all purposes the jurisdiction of the civil Court is taken away. The power of the civil Court to examine 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, remains unaffected."
47.. Mr. Patel, the learned AGP in support of his contention that the suit filed by the respondents herein - original plaintiffs was not maintainable in view of section 20 of the Act has relied upon a full bench decision of this Court in Sayed Mohomed Baquir vs. State of Bombay (Now Gujarat), reported in 1977 AIR (Guj) 62. Two questions came to be referred by a learned Single Judge for the decision of the Full Bench. The questions are extracted hereunder:
Page 50 of 53C/SA/64/2015 JUDGMENT "(i) Whether Civil Court has jurisdiction to decide whether a particular grant is a personal inam in view of Explanation I to sec. 2(1)(e) of the Bombay Personal Inams Abolition Act, 1952? and
(ii) Whether the Inams held by religious or charitable institutions and entered as such in the alienation register kept under sec. 53 of the Code or in the records kept under the rules made under the Pensions Act 1871 only are saved from the operation of the Act in view of the Explanation to sec. 3 of the aforesaid Act?"
48. In the said case the appellant plaintiff had preferred a civil suit in the court of the Civil Judge, Senior Division at Surat for a declaration that the village Orma is an Inam village held by the religious institution of Edroos-Durghas (i.e. Shrines i.e. Rouzas) and that the provisions of the Bombay Personal Inams Abolition Act 1952 are not applicable to the suit village in view of the provisions of the Act. The plaintiff also asked for an injunction against the defendant, the then State of Bombay, restraining it and its officers and servants from taking any action under the said Act. The defendant contended that the suit village, being a personal Inam within the meaning of section 2(1)(e) of the Personal Inams Abolition Act and that the State Government alone being competent to decide the question whether the land is a personal Inam or not, the Civil Court had no jurisdiction to decide the question. The Full Bench of this Court, relying upon the decision of the Supreme Court, in Dhulabhai (supra) held as under;
"The jurisdiction of the Civil Court to determine whether a particular inam is a personal inam or a Devasthan Inam is specifically taken out by the provisions of both the Acts. Under the Personal Inams Abolition Act the State Government is made the sole and final authority. Under the latter Act there are hierarchy of Tribunals to determine the question which has been raised in the Page 51 of 53 C/SA/64/2015 JUDGMENT suit."
49. Thus, the question before the Full Bench was whether the Inam was an Inam falling under section 2(e) of the Personal Inam Abolition Act. Having regard to the nature of the issue, the Full Bench took the view that having regard to the jurisdictional question, the State Government alone was competent to determine that question and no other authority. In such circumstances, the Full Bench held that the Civil Court was not competent to go into the question with regard to the Inam falling within section 2(e) of the Act.
50. In the case on hand, the facts are very glaring. The Deputy Collector had no jurisdiction to take the order of the Mamlatdar in suo motu review after a period of 10 years and that too knowing fully well that the order of the Mamlatdar had been affirmed by the State Government. In fact, once the order of the Mamlatdar attains finality, there is no provision in the Act by virtue of which the Deputy Collector could have initiated the inquiry and passed the order.
51. In view of the aforesaid discussion, I have arrived at the conclusion that both the courts below have rightly held as regards the jurisdiction of the civil court to try the suit.
52. Although, Mr. Patel the learned AGP tried his best to persuade this Court to entertain this second appeal on the ground that the subject land is huge and priceless and the court should see to it that the same is not grabbed or usurped by unscrupulous elements like the plaintiffs, yet I am afraid the appellants should not succeed only on such contention. The Page 52 of 53 C/SA/64/2015 JUDGMENT plaintiffs are not unscrupulous elements or land grabbers. Their rights have been crystallized and declared by the authorities concerned in accordance with law. All factual issues, which are sought to be raised, stood concluded way back almost in 1973. This litigation is nothing but an outcome of overzealousness on the part of the Deputy Collector to protect the subject land on a serious misconception of fact and law that the same belongs to the Government. The other issues which are sought to be raised, in my view, are all questions of fact. There are concurrent findings of the two courts below on all these questions of fact. In such circumstances, it would not be permissible or appropriate for this Court to once again look into all factual issues by re- appreciating the evidence in a second appeal under section 100 of the CPC.
53. For the foregoing reasons, this second appeal fails and is hereby dismissed.
(J.B.PARDIWALA, J) Vahid Page 53 of 53