Allahabad High Court
Ishlam vs State Of U.P. And 5 Others on 2 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved A.F.R. Case :- SECOND APPEAL No. - 172 of 2021 Appellant :- Ishlam Respondents :- State of U.P. and 5 others Counsel for Appellant :- Mr. Ramendra Asthana, Advocate Counsel for Respondents :- Mr. Devendra Dahma, Advocate for respondent Nos. 5 and 6 and Mr. Girijesh Tripathi, Standing Counsel for respondent Nos. 1, 2 and 3 Hon'ble J.J. Munir,J.
1. This is a plaintiff's second appeal arising out of a suit for declaration and permanent injunction. The plaintiff-appellant's suit has been dismissed by both the Courts below.
2. How could a man go without a remedy against a summary determination of his right to property, with no Court of determinative jurisdiction hearing him, is a question of the most fundamental importance. It is this essential issue involved in the appeal, which led this Court to admit this appeal to hearing on two substantial questions of law formulated on one day and then add one more before hearing commenced. The following substantial questions of law are involved in this appeal:
1. Whether in view of the law laid down by this Court in Rajendra Singh vs. State of U.P. and others, 2008 (4) ADJ 37, holding that the remedy against an order of eviction under Section 122-B U.P.Z.A.& L.R. Act is a suit, the present suit is maintainable before the Civil Court?
2. Whether in a case where the Civil Court finds that the suit is not cognizable by it but the Revenue Court, the appropriate order to make is one for return of the plaint instead of dismissal of the suit?
3. Whether in a case where an order of eviction passed under Section 122-B of the U.P.Z.A. & L.R. Act is challenged in revision under Section 122-B(4-A) a suit before the court of competent jurisdiction under Section 122-B(4-D) would be barred under Section 122-B (4-E) of the Act?
3. The facts giving rise to this appeal are these: On 03.01.1993, according to the plaintiff-appellant, Ishlam son of Chand Khan (for short, 'the plaintiff', unless the context requires a different reference), the Halqa Lekhpal submitted a bogus report to the Tehsildar, Bah saying that the plaintiff's father, Chand Khan (now deceased) had illegally occupied plot No. 119/1 (Minjumla), admeasuring 1 bigha 10 biswa, situate at Village Derakh, Pargana Bah, District Agra. The Tehsildar, Bah drew proceedings against the plaintiff's father under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short, 'the Act') and issued notice to him on 09.01.1993, asking him to show cause why an order of eviction etc. be not made. The plaintiff's father submitted his objections before the Tehsildar on 07.01.1994. The defence taken was that the land aforesaid was his ancestral property, a bhumidhari that had come to his hands through his father. The plaintiff was in possession of the land, subject matter of the notice, as the bhumidhar thereof and that he had not encroached any land of the Gaon Sabha.
4. On 28.08.1995, the Halqa Lekhpal, who had made the report alleging encroachment of Gaon Sabha land by the plaintiff's father, testified before the Tehsildar, Bah in proceedings under Section 122-B of the Act. The Tehsildar on 26.06.1997 proceeded to pass an order, directing eviction of the plaintiff's father from plot No. 119/2, whereas the notice to show cause had been issued vis-a-vis plot No. 119/1. The plaintiff's father challenged the order of the Tehsildar dated 26.06.1997 in revision carried to the Collector of Agra under Section 122-B (4-A) of the Act. The Additional Collector (Administration), Agra, before whom the revision came up, dismissed it by an order dated 14.06.2001. According to the plaintiff, the order of eviction and its affirmation in revision are absolutely illegal and beyond jurisdiction. The plaintiff's father never encroached any land of the Gaon Sabha. The notice under Section 122-B (2) of the Act was based on incorrect facts and proceedings drawn on its basis were void.
5. The plaintiff asserted that his father and his co-sharers were in possession of the land, subject matter of the eviction proceedings. The Lekhpal's report is not proved by the evidence on record and the order of the Tehsildar/ Assistant Collector, Bah, District Agra, ordering the plaintiff's eviction and obliging him to pay compensation is manifestly illegal and without basis. The plaintiff's father challenged the orders of eviction and its affirmation in revision by the Collector by means of Civil Misc. Writ Petition No. 37440 of 2001 before this Court. Pending the writ petition, the plaintiff's father passed away. The plaintiff then prosecuted the writ petition. This Court dismissed the writ petition on ground that the plaintiff had an alternative remedy of filing a suit. Accordingly, the plaintiff has proceeded to institute the present suit. Pending suit, the Gram Panchayat Derakh, Pargana Bah, District Agra has proceeded to allot the land, subject matter of proceedings, under Section 122-B of the Act (for short, 'the suit property') in favour of one Chhotey Khan and another Munney Khan, both sons of Shaukat Ali. These allottees were arrayed as defendant Nos. 5 and 6 to the suit.
6. It was pleaded that the orders of the Tehsildar/ Assistant Collector and the Additional Collector dated 26.06.1997 and 14.06.2001, respectively, were void. These were made ex parte without affording any opportunity of hearing. The suit was instituted after service of notice under Section 80 CPC and Section 106 of the U.P. Panchayat Raj Act, 1947, claiming a declaration to the effect that the order dated 26.06.1997 passed by the Tehsildar/ Assistant Collector and the order dated 14.06.2001 passed by the Additional Collector are null and void and not binding upon the plaintiff. A consequential relief by way of a permanent injunction was claimed, restraining the defendants from interfering in the plaintiff's peaceful possession in the suit property or forcibly dispossessing him in any manner whatsoever
7. Two written statements were filed in the suit. One was a joint written statement by defendant Nos. 1, 2 and 3, who are respondent Nos. 1, 2 and 3 to this appeal and the other by defendant Nos. 5 and 6, who are respondent Nos. 5 and 6 here. The Gaon Sabha who were arrayed as defendant No. 4 to the suit and are respondent No. 4 here, represented by the Pradhan, do not appear to have filed a written statement. The defendant-respondents aforesaid shall hereinafter be referred to as 'the defendants' according to their position in the array of parties in the plaint giving rise to the suit.
8. Defendant Nos. 1, 2 and 3 in their written statement denied the plaint allegations and asserted that the Lekhpal's report of 3rd January, 1993 was one made after doing a survey of plot Nos. 119/1 and 119/2 with reference to the measurement of each of these. The Tehsildar had taken proceedings under Section 122-B of the Act strictly in accordance with law after issuing notice to the plaintiff. The plaintiff's father did not hold title to the suit property and assertions to the contrary are incorrect. The plaintiff's father had encroached upon plot Nos. 119/1 and 119/2. The Tehsildar, finding it to be a case of unauthorized occupation, ordered the plaintiff's eviction.
9. It is further asserted that plot No. 119 of Village Derakh, Pargana Bah, District Agra has a total area of 3 bigha. There is no subdivision of plot No. 119 or a partition thereof. Out of plot No. 119, an area 1 bigha 10 biswa had been allotted to defendant No. 5 and an identical area to defendant No. 6. It is for the felicity of demarcation of parts of the land of plot No. 119 between defendant Nos. 5 and 6, after allotment in their favour, that there is a mention made of plot Nos. 119/1 and 119/2. It is emphasized that formally and in accordance with law, no subdivision or partition of plot No. 119 has ever taken place. It is the case of these defendants that the plaintiff's father having been found to be an unlawful occupant, had been dispossessed and actual physical possession delivered to defendant Nos. 5 and 6, who are allottees of their respective parts of land in plot No. 119. It is also the defendants' case that the plaintiff's father or the other co-sharers mentioned in plot No. 119 do not have their lands near or adjoining the said plot. According to the defendants, the plaintiff incorrectly asserts that his father was not given opportunity of hearing or to lead evidence before the Tehsildar. The defendants say that the plaintiff has deliberately not shown the plot number of his ancestral property in the plaint nor annexed a plaint map, which may facilitate identification of the land that the plaintiff claims to be his ancestral holding. Defendant Nos. 5 and 6 have been allotted land in plot No. 119, which is government land under the management of the Land Management Committee of Village Derakh. The plaintiff or his co-sharers have no right, title or interest in the suit property. There is further detail carried in the written statement jointly filed on behalf of defendant Nos. 1, 2 and 3, but those may not be very material.
10. Defendant Nos. 5 and 6 in their joint written statement have denied the plaintiff's allegations and asserted that the plaintiff's father was an encroacher and in unlawful occupation of the suit property. He filed objections to the proceedings under Section 122-B of the Act to protect his unlawful possession. When land carved out of plot No. 119 was allotted to defendant Nos. 5 and 6, the two plots were assigned plot Nos. 119/ 1 and 119/2. Earlier, the plot bore a single number. The plaintiff's father was never the recorded tenure holder of the suit property and it is not his ancestral holding. Rather, the plaintiff's father had encroached upon Gaon Sabha land and was in occupation thereof. It is on this account that his eviction has been ordered. The plaintiff's father was given full opportunity of hearing. There is a plea that this Court by virtue of order made in the writ petition under reference had never permitted or asked the plaintiff to file a civil suit. The plaintiff has not instituted the suit before the Court of competent jurisdiction. Defendant Nos. 5 and 6 are in possession of the suit property and, as such, the plaintiff cannot be granted a permanent prohibitory injunction. The jurisdiction of the Civil Court to try the suit was questioned and it was pleaded on behalf of defendant Nos. 5 and 6 that the suit is barred under Section 331 of the Act.
11. On the pleadings of parties, the following issues were framed (translated into English from Hindi):
"1. Whether the order dated 26.06.1997 passed by defendant No.3 and the order dated 14.06.2001 passed by defendant No.2 are void and illegal? If yes, its effect?
2. Whether the suit is barred by the principle of res judicata?
3. Whether the Court has jurisdiction to try this suit?
4. Whether the suit is barred by the provisions of Section 331 of the Uttar Pradesh Zamindari Abolition Act?
5. Whether the suit is undervalued and the court-fee paid insufficient?
6. To what relief is the plaintiff entitled?"
12. On behalf of the plaintiff, the plaintiff examined himself as PW-1, besides another Natthi Lal, who testified as PW-2. The defendants in their oral evidence examined Vishambhar as DW-1. On behalf of defendant Nos. 5 and 6, defendant No. 5 testified as DW-2 and another Dharam Singh as DW-3.
13. The documentary evidence filed through a list, bearing paper No. 11-Ga, on behalf of the plaintiff, carries a copy of the notice, registered postal receipts and a photostat copy of this Court's order dated 09.09.2008. These were numbered as paper Nos. 12-Ga/1 to 12-Ga/8. On behalf of the defendants through a list, bearing paper paper No. 21-Ga, a notice, paper No. 22-Ga, an application, paper No. 23-Ga, copy of an order, paper Nos. 24-Ga to 26-Ga, copy of the khatauni, bearing paper No. 27-Ga and 28-Ga, were filed. No documentary evidence was produced on behalf of defendant Nos. 5 and 6.
14. The Trial Court held in favour of the defendants on Issue No. 1. Issue No. 2, which is a defendants' issue, was not pressed. Issues Nos. 3 and 4, which were dealt with together, led the Trial Court to the conclusion that the suit is barred by Section 331 of the Act and the Civil Court has no jurisdiction to try it. Issue No. 5 appears to have been disposed of as a preliminary much earlier and there was no controversy surviving about it by the time the Trial Court rendered judgment. On Issue No. 6, it was held that in view of the findings on Issue No. 1, the orders dated 26.06.1997 and 14.06.2001 were valid. It was further held that the Civil Court had no jurisdiction to try the suit. It is on these findings that the learned Trial Judge ordered the suit to be dismissed.
15. The plaintiff appealed the Trial Judge's judgment to the District Judge of Agra, where his appeal was number as Civil Appeal No. 25 of 2017. It came up for determination before the Additional District Judge, Court No. 6, Agra on 10.02.2021, who dismissed the appeal and affirmed the Trial Court.
16. Dissatisfied, the plaintiff has preferred the present appeal from the appellate decree.
17. Heard Mr. Ramendra Asthana, learned Counsel for the plaintiff in support of this appeal, Mr. Girijesh Kumar Tripathi, learned Standing Counsel appearing on behalf of defendant Nos.1, 2 and 3 and Mr. Devendra Dahma, learned Counsel appearing for defendant Nos. 5 and 6. No one appears on behalf of defendant No.4.
18. The Lower Appellate Court has remarked that this Court while dismissing Civil Misc. Writ Petition No. 37440 of 2001 has done so on the ground of availability of an alternative remedy and refused to entertain the writ petition following the decision of the Division Bench in Rajendra Singh v. State of U.P. and others, 2008(4) ADJ 37 (DB). It is further remarked by the Lower Appellate Court that this Court while dismissing the writ petition on the ground of alternative remedy had never said that the orders passed by the Authorities under Section 122-B of the Act could be challenged by the plaintiff before the Civil Court in a suit. The Lower Appellate Court has concluded in its reasoning on point of determination No. 1 that it found the orders passed by the Tehsildar and the Additional Collector not void or illegal. It is further held by the Lower Appellate Court in the next breath that the Civil Court had no jurisdiction to examine the legality of the orders passed by the Authorities of competent jurisdiction, bearing obvious reference to the Tehsildar and Additional Collector, exercising powers under Section 122-B of the Act. It has also been opined that it is for the plaintiff to institute a suit in the Court of competent jurisdiction to establish his rights.
19. Mr. Ramendra Asthana, learned Counsel for the plaintiff has drawn the attention of this Court to the fact that the plaintiff's writ petition was dismissed by this Court on the ground of availability of an alternative remedy following the Division Bench decision in Rajendra Singh (supra), which held that Section 122-B of the Act afforded the person aggrieved a remedy against an order of eviction by way of a revision, and failing there, by suit before the Court of competent jurisdiction. The said Division Bench had held that a writ petition would not lie challenging orders of eviction passed by the Authorities under Section 122-B. Mr. Asthana points out that after the plaintiff's writ petition was dismissed by the learned Single Judge vide order dated 09.09.2008, following the Division Bench in Rajendra Singh. The correctness of the decision was doubted by another Single Judge of this Court, who made a reference of the matter to a Larger Bench, framing three questions of law for consideration. The Full Bench, that was constituted, held in Shiv Ram vs. State of U.P. and others, 2016(9) ADJ 366 (FB) in answer to Question Nos. 1 and 2, that the jurisdiction of this Court under Articles 226 and 227 of the Constitution cannot be taken away by legislation and it is open to this Court to examine the validity of orders to which finality is attached under the Statute.
20. Mr. Asthana submits that the decision in Rajendra Singh was, therefore, held not good law without expressly using those words. Since in the interregnum, that is to say, between the decision of the Division Bench in Rajendra Singh on 18.03.2008 and the decision of the Full Bench in Shiv Ram (supra), the plaintiff's writ petition was dismissed by the learned Single Judge on 09.09.2008 following the decision of the Division Bench in Rajendra Singh, the plaintiff instituted the present suit before the Civil Court, questioning the orders of the Statutory Authorities, ordering his eviction.
21. It is argued by Mr. Asthana that the plaintiff's writ petition was dismissed against the defendants upon objections by them that it was not maintainable in view of the holding in Rajendra Singh and that the plaintiff's remedy is by way of suit. It is submitted that once the defendants, who are respondents to the plaintiff's writ petition before this Court, had objected to this Court's jurisdiction to entertain the writ petition against the orders of the Statutory Authorities, saying that the plaintiff's remedy was by way of a suit, the plea was no longer open to the defendants that the suit before the Civil Court instituted by the plaintiff is not maintainable. Learned Counsel for the plaintiff urges that the principle is well acknowledged in law that if a party objects to the jurisdiction of one Court and says that the party applying has remedy before another Court, in a different jurisdiction, it is not open to the objecting party to question the proceedings before the other Court or Forum, where the party has been forced to go at the objecting party's instance. The other Court too cannot adversely hold on the question of jurisdiction for a party, who has been shunted out of another Forum to the Court of alternate resort.
22. It is urged that the aforesaid salutary principle has been devised to prevent a party being rendered remediless. In this connection, Mr. Asthana has drawn the Court's attention to each of the substantial questions of law, regarding which he has advanced his submissions together, the questions being ones involving common and overlapping propositions of the law. Mr. Asthana has drawn the Court's attention to the decision of the Supreme Court in Kiran Devi v. Bihar State Sunni Wakf Board, (2021) 153 RD 56 and a later decision in Premlata alias Sunita v. Naseeb Bee and others, (2022) 6 SCC 585. It is pointed out by the learned Counsel for the plaintiff that both these decisions hold that the parties cannot be permitted to approbate or reprobate about the jurisdiction of Courts. Once one party forces the other to go to another Court on the question of jurisdiction, the objecting party in the other Court cannot be heard to say that the latter Court too does not have jurisdiction. It must be remarked here that these decisions have bearing on Substantial Question of Law No. 1 and would be considered during the course of this judgment.
23. It is next submitted by Mr. Asthana that if the Courts below were of opinion that the suit was not maintainable before the Trial Court, they ought not to have entered into the merits of the parties' case and dismissed the suit. Instead, the option available to them was to direct return of the plaint for presentation to the Court of competent jurisdiction. Mr. Asthana says that this course of action was pre-eminently advisable because of the remarks of the Lower Appellate Court that the remedy of the plaintiff was to establish his rights by suit before a Court of competent jurisdiction.
24. As regards the last question, Mr. Asthana submits that a suit to question the orders of Statutory Authorities under Section 122-B after the revisional order would be barred under Section 122-B (4-E) of the Act, in view of the holding of the Full Bench in Shiv Ram. But, that would not prevent the Court to independently judge the rights of a party to the land that he claims and decided against him in summary proceedings by the Statutory Authorities under Section 122-B.
25. Mr. Devendra Dahma, learned Counsel appearing for defendant Nos. 5 and 6, on the other, has come up with a short submission that he says is a complete answer to all the questions. It is submitted that a reading of the provisions of Sections 122-B (4-D) and 122-B (4-E) conjointly, leads one to the inevitable conclusion that it is open to a party after an order of eviction is passed by the Tehsildar/ Assistant Collector to institute a suit in the Court of competent jurisdiction to establish his right that he claims, which the Assistant Collector has negatived in the statutory proceedings. But, a person aggrieved by the order of the Assistant Collector under sub-Section (3) of Section 122-B, that is to say, an order of eviction etc., who elects to prefer a revision to the Collector against that order under sub-Section (4-A) of Section 122-B, loses the right under sub-Section (4-D) of Section 122-B to institute a suit, envisaged therein, against the Assistant Collector's summary determination.
26. According to Mr. Dahma, once the person ordered to be evicted by the Assistant Collector in proceedings under Section 122-B, chooses to pursue his remedy of revision before the Collector where he fails, the order of eviction passed against him is rendered immune from challenge by way of a suit to establish his rights before the Court of competent jurisdiction. It is argued by Mr. Dahma that it is for the said reason that the Full Bench in Shiv Ram has held an order of eviction passed by the Assistant Collector, affirmed by the Collector in revision, open to challenge before this Court in a petition under Article 226 or 227 of the Constitution, overruling the contrary view of the Division Bench in Rajendra Singh.
27. Learned Counsel for the defendant Nos. 5 and 6 submits that the plaintiff having chosen to apply in revision to the Collector against the order of eviction passed by the Tehsildar, he cannot question the order or establish his rights to the contrary by a suit before the Court of competent jurisdiction.
28. Mr. Girijesh Tripathi, learned Standing Counsel appearing for defendant Nos. 1, 2 and 3, adding to the submissions of Mr. Dahma, says that a civil suit, in any case to establish a right to a bhumidhari, would not lie before the Civil Court in view of the bar under Section 331 of the Act.
29. Notwithstanding the very alluring proposition by Mr. Asthana that the substantial questions of law involved in this appeal being interconnected, may be dealt with all at once, this Court thinks that it would be more orderly to consider and answer each question separately.
30. So far as the first question is concerned, it is true indeed that the plaintiff was the victim of a warp in the law on account of the decision of the Division Bench in Rajendra Singh, that came to be overruled later by the Full Bench in Shiv Ram. The Division Bench in Rajendra Singh held:
"19. Therefore, according to us, having alternative and efficacious remedy of suit under Section 122-B of the Act of 1950, there is no scope for the aggrieved person to invoke the writ jurisdiction of the Court either from the order of the Assistant Collector or from the order of the Collector. It is clarified hereunder that a self corrective process to invoke the jurisdiction of the Assistant Collector, then by way of revision before the Collector and thereafter by filing suit before the Court, is the integral part of the Act, which cannot be avoided. Thus, in our considered opinion, contentions of the writ petitioners, cannot be held to be sustainable, consequently, all the aforesaid writ petitions are dismissed without imposing any cost. Interim order, if any, stands vacated. However, aggrieved persons are at liberty to file civil suit for appropriate relief in accordance with law, if they are so advised.
20. So far as the conflicting judgments of learned single Judge in Sewak Shankar (supra) and in Shankar Saran (supra) are concerned, we find that the earlier says if revision is filed, suit cannot be filed, when the later says that the remedy of revision before the Collector would not deprive the remedy of suit, with a recommendation to the Legislature to make the necessary amendments. In our view, amendment or no amendment, the law is very clear from its plain reading. In case a revision from an order of Assistant Collector is filed before the Collector, it will not stand in the way of an aggrieved of a revisional order to file a suit before the Court. Incidentally later view is more acceptable. Hence, the conflict stands resolved by the view taken and interpretation of the Act given by us as above keeping in mind the intention of the Legislature."
31. The decision in Rajendra Singh is no longer good law in view of the decision of the Full Bench in Shiv Ram on the point that a writ petition against orders of eviction passed by the Statutory Authorities under Section 122-B of the Act can be challenged before this Court in a writ petition. A writ petition under Article 226 or a petition under Article 227 of the Constitution would lie to this Court in view of the decision in Shiv Ram against orders passed by the Statutory Authorities under Section 122-B. In Shiv Ram, the learned Single Judge, who doubted correctness of the holding by the Division Bench in Rajendra Singh, referred the following questions for consideration by a Larger Bench:
"(i) Whether the Division Bench in the case of Rajendra Singh (supra) is correct in holding that writ petition challenging the orders passed in proceedings under Section 122-B of the U.P. Zamindari Abolition & Land Reforms Act would not be maintainable in view of alternative remedy of suit provided by the Statute itself, against the orders passed by the Assistant Collector or the Collector in the said proceedings?
(ii) Whether the view expressed by the Division Bench in the case of Rajendra Singh (supra) that since a remedy by way of suit has been provided in sub Section (4-D) of Section 122-B, the writ petition challenging the order passed in proceedings under Section 122-B would be barred by principles of existence of alternative remedy requires reconsideration in view of Division Benches of co-ordinate jurisdiction in the case of K.H. Panjani v. State of U.P., AIR 1959 All. 26 (DB); Smt. Shanti Devi v. State of U.P., 1978 AWC 189 and Satyapal Singh Chauhan v. Chairman-cum-chief Executive Officer, 1984 UPLBEC 587 (DB) as well as Full Bench decisions in the case of Buddhu v. Municipal Board, AIR 1952 All 753 (FB) and Bijli Cotton Mills Pvt. Ltd., Hathras v. Estate Officer/Secretary, National Textile Corporation, U.P. and others, 1977 AWC 191 (SB)?
(iii) Whether the Division Bench judgment in the case of Rajendra Singh (supra) holding that ''civil suit' is the appropriate remedy to resolve every dispute under Section 122-B of U.P.Z.A. & L.R. Act, lays down the correct law, even though the legislature has used the words ''suit in a Court of competent jurisdiction in sub Section ''4-D', and Section 331 of the U.P.Z.A. & L.R. Act specifically bars the jurisdiction of civil Court, in respect of any suit, application or proceedings based on a cause of action in respect of which relief could be granted by Revenue Courts?"
32. Their Lordships of the Full Bench in Shiv Ram answered the questions referred to them, in Paragraph No. 17 of the report, thus:
"17. In view of the aforesaid discussions, we answer the questions referred to us as follows :
(i) Answer to question (i) is in negative. The jurisdiction of High Court under Article 226 and 227 of the Constitution are basic structure of the Constitution, it can neither be taken away nor be limited either by Constitutional amendments or by other legislations of Central Government or State Governments or by judicial dicta.
(ii) Answer to question (ii) is in negative. Finality attached to the orders passed by Statutory authority under the Act, also does not affect the jurisdiction of High Court under Article 226 and 227 of the Constitution to examine its illegality, irrationality and procedural impropriety.
(iii) Answer to question (iii) is in negative. In view of Proviso to Section 229-D of the Act, the suit before Revenue Court may not be efficacious alternative remedy in a given case. The suit in Civil Court may not be maintainable in every case in view of Section 331 of the Act. In the cases, where the Statutory Authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions, which are repealed, or when an order has been passed in total violation of the principles of natural justice, writ petition can be entertained.
The reference to the larger Bench stands answered accordingly. The writ petitions shall now be placed before Hon'ble Single Judge for disposal in the light of this judgment."
33. Although, it is settled that an order of eviction passed under Section 122-B (3) by the Tehsildar, affirmed in revision by the Collector under sub-Section (4-A) of Section 122-B, afford the person liable to be evicted under orders of the Statutory Authorities, a remedy to challenge the same before this Court by a writ petition under Article 226 or a petition under Article 227 of the Constitution, the Statute still speaks of the option of filing a suit before the Court of competent jurisdiction. It requires to be examined notwithstanding the overruling of the decision in Rajendra Singh on the point of maintainability of a writ petition against orders of eviction under Section 122-B, if the person ordered to be evicted by the Statutory Authorities, can maintain a suit to establish his right before the Civil Court. In short, what has to be examined is whether the Court of competent jurisdiction, where a person aggrieved by the order of the Assistant Collector may file a suit to establish his right to the property, from which he has been ordered to be evicted, is the Civil Court. Or, is it some other Court?
34. What has to be borne in mind is that the remedy with the Gaon Sabha or the State to evict a trespasser under Section 122-B is a summary remedy to rid the Gaon Sabha or a Local Authority's property of encroachment or save it from damage at the hands of a private person, who has trespassed. Bearing in mind the aforesaid object, a summary remedy has been provided. The laudable object of ridding public property vested in the Gaon Sabha or a Local Body of encroachment, trespass or damage by an unauthorized person cannot be construed in a manner that may exclude the right of a person, who says he has title to the property, but is unsuccessful before the Statutory Authorities to lose that right to the inherent and perceptible vagaries of a summary procedure.
35. What sub-Section (4-D) of Section 122-B of the Act, therefore, envisages is not the judicial review of the order passed by the Assistant Collector, directing eviction in the sense of a challenge being laid to it in the suit envisaged under sub-Section (4-F), but a suit to establish aliuende the right of the person ordered to be evicted to that property before a Court of competent jurisdiction. The said right or title if established before the Court of competent jurisdiction in the suit upon a trial being held, would efface the conclusion of the Assistant Collector recorded in summary proceedings. In substance, therefore, what an ousted person under an order of eviction passed by the Assistant Collector under sub-Section (3) of Section 122-B would have to do is to seek an independent declaration of his rights to the property, wherefrom he has been ordered to be evicted by the Authority.
36. The suit property here is claimed to be bhumidhari and a suit for declaration of rights in it would be cognizable by the Court mentioned in Column 4 of Schedule II to the Act. A suit for declaration of bhumidhari rights is one that is envisaged under sub-Section (3) of Section 229-B read with sub-Sections (1) and (2) thereof. A suit for that relief by virtue of Entry 34 of Schedule II would lie before the Assistant Collector, First Class; not before the Civil Court.
37. This Court finds that what sub-Section (4-D) of Section 122-B allows, is the right of a person to seek a declaration of his title etc. as a bhumidhar or asami notwithstanding a summary order of eviction passed against him by the Assistant Collector under Section 122-B (3).
38. In the present case, therefore, keeping aside the affirmation of the Assistant Collector's order directing eviction by the Additional Collector in a revision, if the plaintiff was non-suited before this Court because of the prevalent view of the law held at the time when his writ petition came to be dismissed, the Court of competent jurisdiction that the plaintiff could approach was the Revenue Court. It was not the Civil Court.
39. So far as the submission of Mr. Asthana regarding the principle of approbate and reprobate is concerned, forbearing the party defending the proceedings from objecting to the jurisdiction of the Court in a case where the party's objections have been accepted about jurisdiction of the Court, where the party applying first moved, preventing the objecting party from questioning the jurisdiction of the other Court also, the decision of the Supreme Court in Kiran Devi (supra) must be noticed. In Kiran Devi, it was held by the Supreme Court:
"13. We have heard learned counsel for the parties and find that it is not open to the appellant at this stage to dispute the question that the suit filed before the learned Munsif could not have been transferred to the Wakf Tribunal. The plaintiff had invoked the jurisdiction of the Civil Court in the year 1996. It is the Wakf Board and the appellant who then filed an application for transfer of the suit to the Wakf Tribunal. Though, in terms of Ramesh Gobindram, the Wakf Tribunal could not grant declaration as claimed by the plaintiff, but such objection cannot be permitted to be raised either by the Wakf Board or by the appellant as the order was passed by the Civil Court at their instance and was also upheld by the High Court. Such order has thus attained finality inter-parties. The parties cannot be permitted to approbate and reprobate in the same breath. The order that the Wakf Tribunal has the jurisdiction cannot be permitted to be disputed as the parties had accepted the order of the civil court and went to trial before the Tribunal. It is not a situation where plaintiff has invoked the jurisdiction of the Wakf Tribunal.
14. The argument raised by the learned counsel for the appellant that there was no estoppel against the statute as consent could not confer jurisdiction upon the Authority which did not originally have jurisdiction. Hence, it was submitted that the decision of the Tribunal was without jurisdiction. It is to be noted that the plaintiff had filed proceedings before the Civil Court itself but the same was objected to by the appellant as well as by the Wakf Board. Thus, it is not conferment of jurisdiction by the plaintiff voluntarily but by virtue of a judicial order which has now attained finality between parties. The suit was accordingly decided by the Wakf Tribunal. We do not find that it is open to the appellant to raise the objection that the Wakf Tribunal had no jurisdiction to entertain the suit in the facts of the present case. Therefore, we do not find any merit in the first argument raised by the learned counsel for the appellant."
40. Again, in Premlata alias Sunita (supra) their Lordships of the Supreme Court applied the same principle of approbate and reprobate to repel an objection to the jurisdiction of the Court of alternate resort, where the first Court moved, also had its jurisdiction objected to by the defending party. In Premlata alias Sunita, it has been held:
"4. At the outset, it is required to be noted and it is not in dispute that the plaintiff instituted the proceedings before the Revenue Authority under Section 250 of the Mplrc. These very defendants raised an objection before the Revenue Authority that the Revenue Authority has no jurisdiction to deal with the matter. The Tahsildar accepted the said objection and dismissed the application under Section 250 of the Mplrc by holding that as the dispute is with respect to title the Revenue Authority would not have any jurisdiction under Mplrc. The said order passed by the Tahsildar has been affirmed by the appellate authority (of course during the pendency of the revision application before the High Court).
5. That after the Tahsildar passed an order rejecting the application under Section 250 of the Mplrc on the ground that the Revenue Authority would have no jurisdiction, which was on the objection raised by the respondents herein original defendants, the plaintiff instituted a suit before the civil court. Before the civil court the respondents -- original defendants just took a contrary stand than which was taken by them before the Revenue Authority and before the civil court the respondents took the objection that the civil court would have no jurisdiction to entertain the suit.
6. The respondents -- original defendants cannot be permitted to take two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tahsildar and the proceedings under Section 250 of the Mplrc came to be dismissed and thereafter when the plaintiff instituted a suit before the civil court it was not open for the respondents -- original defendants thereafter to take an objection that the suit before the civil court would also be barred in view of Section 257 of the Mplrc.
7. If the submission on behalf of the respondent-defendants is accepted in that case the original plaintiff would be remediless. The High Court has not at all appreciated the fact that when the appellant -- original plaintiff approached the Revenue Authority/Tahsildar he was non-suited on the ground that the Revenue Authority/Tahsildar had no jurisdiction to decide the dispute with respect to title to the suit property. Thereafter when the suit was filed and the respondent-defendants took a contrary stand that even the civil suit would be barred. In that case the original plaintiff would be remediless. In any case the respondents -- original defendants cannot be permitted to approbate and reprobate and to take just a contrary stand than taken before the Revenue Authority.
8. Therefore, in the facts and circumstances of the case, the learned trial court rightly rejected the application under Order 7 Rule 11 CPC and rightly refused to reject the plaint. The High Court has committed a grave error in allowing the application under Order 7 Rule 11 CPC and rejecting the plaint on the ground that the suit would be barred in view of Section 257 of the Mplrc. The impugned judgment and order passed by the High Court is unsustainable and is liable to be set aside."
41. To the understanding of this Court, the principle laid down by the Supreme Court in Kiran Devi would not be applicable to the facts here. In Kiran Devi, the facts were that the plaintiff instituted a suit for declaration before the Civil Court praying that it be declared that he is a tenant in the suit premises and entitled to continue holding the premises on payment of monthly rent. The declaration was sought on the ground that the plaintiff had succeeded to the tenancy from one Ram Sharan Ram, his great grandfather. The dispute about succession to the tenancy was within the tenant's family and the cause of action was said to arise on 21.03.1996 when the plaintiff's grandfather along with others broke into the suit premises and removed the plaintiff's belongings. The plaintiff's father had gone to the Police for lodging a report, but they refused to register it. The plaint before the Civil Court was amended to implead the appellant before the Supreme Court as defendant No. 5 to the suit with an allegation that the lease in her favour by the Wakf Board is forged, fabricated, antedated and collusive. The Wakf Board in its written statement had asserted that Md. Salimuddin was the duly appointed Mutawalli of the Wakf and the fifth defendant to the suit, the appellant before the Supreme Court was a duly inducted tenant by the managing committee. The other details of the fifth defendant's defence and that of the Wakf Board may not be necessary. However, what is of importance to note is that both the appellants, that is to say, defendant No. 5 to the suit and the Wakf Board filed applications before the Civil Court, seeking transfer of the suit for trial by the Wakf Tribunal, in accordance with the provisions of Sections 85 and 85-A of the Wakf Act, 1995. The said application was accepted by the Civil Court, transferring the suit to the Wakf Tribunal. The transfer order was challenged by the plaintiff in a revision preferred to the Patna High Court. The revision was dismissed. The cause was tried by the Tribunal on issues framed, where parties led evidence. The suit was dismissed by the Tribunal. The High Court on a writ petition by the plaintiff set aside the Tribunal's order with a direction to dispossess the fifth defendant from the suit premises and handover vacant possession thereof to the plaintiff. On appeal to their Lordships of the Supreme Court, one of the contentions advanced on behalf of defendant No. 5 to the suit, who was the appellant, was that the Tribunal had no jurisdiction to entertain the suit filed by the plaintiff in view of the judgment of the Supreme Court in Ramesh Gobindram (dead) through LRs v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726. After the aforesaid decision, the Wakf Act was amended by Act No. 27 of 2013. It was pointed out that the Supreme Court in Punjab Wakf Board v. Sham Singh Harike, (2019) 4 SCC 698 had considered the amendment in the Act and held that proceedings instituted prior to the amendment were to continue, unaffected by the amendment. It was contended that the suit for declaration by the plaintiff as a tenant of the Waqf property was not maintainable before the Waqf Tribunal. It was urged that there was no estoppel against Statute and consent could not confer jurisdiction on the Waqf Tribunal, which the Tribunal never had. It was in the context of the aforesaid facts that in Kiran Devi, their Lordships held that the principle of approbate and reprobate prevented the defendant from questioning the Waqf Tribunal's jurisdiction. The objection based on the principle of 'no estoppel against Statute' was also repelled by their Lordships, holding as already referred to hereinabove.
42. Likewise, in Premlata alias Sunita, there was an objection by the opposite party before the Revenue Authority that proceedings under Section 250 of the MP Land Revenue Code, 1959 (for short, 'MPLRC') were not maintainable, which the plaintiff in the suit had earlier instituted before the Tehsildar/ Revenue Authority. The Tehsildar rejected the plaintiff's application, accepting the defendant's objections, the opposite party before the Tehsildar, holding that the issue involved related to title, which was beyond the scope of Section 25 of the MPLRC. The plaintiff appealed the Tehsildar's order before the S.D.O. under Section 44 of the MPLRC. Pending the appeal in the revenue jurisdiction, the plaintiff filed a suit before the Civil Court for recovery of possession and injunction. In the said suit, an application was made by the defendant that the plaint was liable to be rejected under Order VII Rule 11 CPC on ground that the suit before the Civil Court was barred by Section 257 of the MPLRC. The Civil Court rejected the said application and declined to reject the plaint under Order VII Rule 11 CPC. The said order was put in issue through a revision preferred by the defendant before the High Court. The High Court allowed the revision, set aside the order, allowed the application under Order VII Rule 11 CPC and rejected the plaint. It was held that the suit was barred under Section 257 of the MPLRC. It was in the context of the aforesaid facts that their Lordships of the Supreme Court applied the principle of approbate and reprobate, holding that the defendant could not object both to the jurisdiction of the Revenue Authority and the Civil Court. The observations of their Lordships in this regard have already been extracted hereinabove.
43. In the present case, what transpires from the record is that Civil Misc. Writ Petition No. 37440 of 2001, that was preferred by the plaintiff was heard in the presence of the learned Standing Counsel, representing defendant Nos. 1, 2 and 3. The order dated 09.09.2008 passed by this Court in the writ petition does not record what objection was taken by the learned Standing Counsel. All that is said is that the writ petition arises out of proceedings under Section 122-B of the Act and that the matter is squarely covered by the Division Bench decision of this Court in Rajendra Singh, which holds that a writ petition cannot be maintained against orders passed under Section 122-B of the Act. The stand taken by defendant Nos. 1, 2 and 3, the other defendants, who were also respondents to the writ petition, not being heard at all, does not show that it was urged on their behalf that the plaintiff's remedy was by way of a civil suit. The Court dismissed the petition on the principle laid down by the Division Bench in Rajendra Singh that a writ petition against an order of eviction under Section 122-B was not maintainable. In Rajendra Singh, as already noticed, it was held that the order of eviction passed by the Assistant Collector could be challenged in revision or by way of a suit by the party evicted to establish his right. It was also held that the remedy of revision before the Collector would not deprive the party ordered to be evicted to establish his right by a suit before the Court. It was further held that the bar to a suit after the Collector's decision in revision would not exclude the remedy of a suit. A writ petition was, however, held not maintainable by the Division Bench against an order of eviction passed under Section 122-B of the Act.
44. In this Court's opinion, therefore, it was just the principle in Rajendra Singh, which led the Court vide order order dated 09.09.2008 to dismiss Civil Misc. Writ Petition No. 37440 of 2001 as not maintainable. The logical corollary of the said order is that the plaintiff was left free to pursue his remedy under the law. It is not a case where the defendants to the suit had taken a stand that the plaintiff's remedy was by way of a suit before the Civil Court and the Court had accepted the said plea while dismissing the writ petition. Had that been the case, the principle of approbate and reprobate would be attracted and the defendants not heard to say that the present suit before the Civil Court is not maintainable. In that case, the principle laid down by the Supreme Court in Kiran Devi and Premlata would apply. Here, as already noticed, there is no such stand on the defendants' part and the writ petition was dismissed as not maintainable going by the declaration of the law as it stood at the time. It was for the plaintiff to correctly elect his remedy under the law. If the plaintiff has, therefore, chosen a Court of incompetent jurisdiction to institute a suit, the principle of approbate and reprobate would not redeem him.
45. In view of what has been held above, Substantial Question of Law No. 1 is answered in the manner that notwithstanding the law laid down by this Court in Rajendra Singh holding that the remedy against an order of eviction under Section 122-B is a suit, the present suit is not maintainable before the Civil Court.
46. It would be more convenient in the logical sequence of the controversy involved to take up Substantial Question of Law No. 3 before answering Question No. 2. The question is whether an order of eviction passed under Section 122-B of the Act, challenged in a revision under Section 122-B(4-A) afford the party aggrieved a right to institute a suit before the Court of competent jurisdiction, in accordance with sub-Section (4-D) of Section 122-B, or would the right of that party be barred by sub-Section (4-E) of Section 122-B of the Act?
47. It would be apposite to reproduce the provisions of Section 122-B of the Act for the felicity of understanding what this Court says. Section 122-B of the Act reads:
122-B. Powers of the Land Management Committee and the Collector.--(1) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or Local Authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.
(2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be, why he should not be evicted from such land.
(3) If the person to whom a notice has been issue under sub-section (2) fails to show cause within the time specified in the notice or within such extended time not exceeding thirty days from the date of service of such notice on such person, as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land and may for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue.
(4) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2) he shall discharge the notice.
(4-A) Any person aggrieved by the order of the Assistant Collector under sub-section (3) or sub-section (4) may, within thirty days from the date of such order, prefer a revision before the Collector on the grounds mentioned in clauses (a) to (e) of Section 333.
(4-B) The procedure to be followed in any action taken under this section shall be such as may be prescribed.
(4-C) Notwithstanding anything contained in Section 333 or Section 333-A, but subject to the provisions of this section--
(i) every order of the Assistant Collector under this section shall, subject to the provisions of sub-sections (4-A) and (4-D), be final,
(ii) every order of the Collector under this section shall, subject to the provisions of sub-section (4-D), be final.
(4-D) Any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section may file a suit in a court of competent jurisdiction to establish the right claimed by him in such property.
(4-E) No such suit as is referred to in sub-section (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section (4-A).
(emphasis by Court)
48. There does appear to be some contradiction between the provisions of sub-Section (4-D) of Section 122-B of the Act on one hand and sub-Section (4-E) on the other. While sub-Section (4-C) makes an order of the Assistant Collector under Section 122-B (3), subject to the provisions of sub-Section (4-A) and (4-D) final, and the order of the Collector under Section 122-B (4-A) final, subject to the provisions of sub-Section (4-D), that is to say, a suit before the Court of competent jurisdiction, sub-Section (4-E) bars a suit at the instance of a person aggrieved, where the order of the Assistant Collector has been challenged in revision before the Collector under sub-Section (4-A). In other words, while the scheme of Section 122-B (3), (4), (4-A), (4-C) and (4-D) is consistent to the effect that the order of eviction passed by the Assistant Collector, whether challenged or not, in a revision before the Collector under sub-Section (4-A), would be subject to the outcome of a suit before the Court of competent jurisdiction, sub-Section (4-E) excludes the suit after a revisional affirmation by the Collector under sub-Section (4-A).
49. Sub-Sections (1) to (4-E) were substituted by U.P. Act No. 20 of 1982 for the existing provisions. Quite early, after amendment, the contradiction was brought to the notice of this Court in Sewak Shankar v. Additional Collector, Agra and others, 1985 SCC OnLine All 165 and urged that the procedure was discriminatory in that, that a person, ordered to be evicted, who applied in revision to the Collector, had his remedy of establishing his right in a duly constituted suit curtailed. This Court in Sewak Shankar (supra) repelled the said contention holding:
22. It does appear that the dominant object of enacting Section 122-B and particularly Proviso to sub-section (4-E) of Section 122-B of the Act is to provide speedy, expeditious and effective remedy for, the ejectment of unauthorised occupants of the Gaon Sabha land. The procedure contemplated by sub-section (4-E) of Section 122-B was for avoiding unusual, dilatory process and with the object of achieving the purpose of recovering possession without recourse to prolonged litigation in a regular suit. It is common knowledge that a regular suit takes long time commencing with the trial court, first appellate court, second appellate court, and the leave petition being preferred before the Hon'ble Supreme Court. In pursuing revenue and civil suits several years could have elapsed before the possession could have been recovered. It is for this object that in case a person avails the remedy of preferring revision before the Collector, he has been deprived of the remedy of the suit. It was this mischief which the Legislature intended to avoid by incorporating the Proviso to sub-section (4-E) of Section 122-B of the Act.
23. Section 122-C provides that the land in possession of the Gaon Sabha has to be earmarked for Abadi sites for the members of the Scheduled Castes and Scheduled Tribes, agricultural labourers and village artisans. The land thus obtained is for the welfare of downtrodden and under-privileged section of society. Ours is a welfare State.
24. It would not be out of place to mention that there is a maxim Salus Populist Suprema lex, which obviously means that the regard for public welfare is highest law. Individual welfare shall in case of necessity yield to that of the community and that his property, liberty and life shall, in certain circumstances, be placed in jeopardy or even sacrificed for public good.
25. In view of these discussions it is crystal clear that the Legislature in its wisdom thought it proper to lay down the procedure that in case revision was filed, the remedy of suit cannot be availed. I am, therefore, of the opinion that the provisions of sub-sections (4-A), (4-C), (4-D) and (4-E) of Section 122-B of the Act are not discriminatory nor are they violative of Article 14 of the Constitution of India.
50. Soon thereafter, the issue again engaged the attention of this Court in Shankar Saran and others vs. State of U.P. and others, 1987 SCC OnLine All 235. Here, the Court frowned upon the apparent contradiction and held that notwithstanding the provisions of sub-Section (4-E), the remedy of a suit even after the order in revision had been made against a party, would not be lost. K.P. Singh, J. in Shankar Saran (supra) expressed his disagreement with B.L. Yadav, J. in Sewak Shankar, where his Lordship had held that after a party had preferred a revision and failed, his remedy of a suit would be curtailed. The Court in Shankar Saran went on to suggest that the legislature ought to make necessary amendments to Section 122-B of the Act, so as to clarify the legislative intent in enacting sub-Section (4-E). It would be apposite to refer to the holding of this Court in Shankar Saran, which reads:
"17. It is necessary to observe that when a person files a revision petition the order in revision petition would be final between the parties and the order of the Trial court i.e. Assistant Collector shall merge into the order of revisional court. Therefore, after the decision in revision petition filed by the aggrieved party, the aggrieved party will be required to file a suit against the order of the revisional court and the remedy under sub-sec. (4-D) is against the order of the Collector.
18. I am unable to accept the contention of the learned counsel for the petitioners that the petitioners have no alternative remedy to establish their claim to the disputed land in view of provisions of S. 122-B(4-E) of the Act. I think, that the petitioners have an alternative remedy to seek their title to the disputed land because the order in revision has been passed by the Additional Collector and against his order a suit under sub-section (4-D) of S. 122-B of the Act has been provided.
19. In 1983 Rev Dec 32, Abdul Ghafoor v. Gaon Sabha a learned Member has made the following observations vide para 6:--
".......If a revision is filed, before the Collector regular suit will not be filed against the order of the Assistant Collector in view of the provisions of sub-sec. (4-E) but the remedy of regular suit will be available against the order passed by the Collector in revision. By the ordinance revisions u/ss. 333 and 333-A of the Act are barred against the order of the Assistant Collector or Collector, but the remedy of regular suit is made available to the aggrieved party against the order of the Assistant Collector or Collector as the case may be. The order passed by the Assistant Collector, 1st Class and Collector under amended S. 122-B of the U.F.Z.A. and L.R. Act are not revisable u/s. 333 or S. 333-A of U.F.Z.A. and L.R. Act."
20. The bare reading of S. 122-B(4-D) and (4-E) of the Act indicates that there is some contradiction in the two provisions. The Collector is the revisional authority and against his order a suit has been contemplated under sub-sec. (4-D). Therefore, it is difficult to say that the order of the Assistant Collector which is merged in the order of the revisional court, cannot be challenged in a regular title suit. The suggestion by the learned Member, Board of Revenue, to the effect that no suit against the order of the Assistant Collector shall lie during the pendency of the revision petition before the revisional court cannot be readily accepted because of the wordings of the provisions of sub-sec. (4-E). Had the Legislature intended so it would have expressed itself as below:--
"No such suit as is referred to in sub-sec. (4D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-sec. (4-A) and is pending."
21. As I have indicated that the order of Assistant Collector would merge in the order of the revisional court, therefore, the aggrieved party would be required to file a suit against the order in revision, I am unable to agree with brother B.L. Yadava, J. that when an aggrieved party avails the remedy of preferring revision before the Collector, he would be deprived of the remedy of the suit. IT would be better for the Legislature to make necessary amendments in S. 122-B of the U.P.Z.A. and L.R. Act so as to clarify its intention in enacting sub-sec. (4-E) of S. 122-B of the Act."
51. Thus, the later decision in Shankar Saran held that notwithstanding a party availing his remedy against an order of eviction by preferring a revision to the Collector under sub-Section (4-A), sub-Section (4-E) would not curtail his right of instituting a suit to establish his right under sub-Section (4-D). To the understanding of this Court, the right to file a suit to establish one's right to property notwithstanding an affirmation of the eviction order by the Collector is clearly provided by both clauses (i) and (ii) of sub-Section (4-C) of Section 122-B. Sub-Section (4-E) seems to be not in keeping with the otherwise clear legislative intent to afford the party aggrieved by an order of eviction passed in summary proceedings, the remedy to establish his right by suit.
52. It may be that looking to the provisions of sub-Section (2) of Section 229-D of the Act in a suit brought under sub-Section (4-D) of Section 122-B, the person ordered to be evicted cannot secure interim relief. He would be evicted pursuant to an order of eviction passed under Section 122-B, retaining the right to establish in a suit his claim to the property, of which he has been dispossessed. In the event of success in the suit, he would recover lost possession. This provision may be intended to achieve the purpose that this Court in Sewak Shankar spoke of, that is to say, the provision of a speedy, expeditious and effective remedy for the ejectment of unauthorized person from Gaon Sabha land. But, that object could not be carried to the extent that a party who says that the property of which he has been deprived in summary proceedings is his property, may be denied his right of establishing that claim in a duly constituted suit before a Court of competent jurisdiction. It was the latter consideration which led this Court to remark in Shankar Saran, the way it did, that has been noticed hereinabove, and the holding that the right to sue before a Court of competent jurisdiction to establish one's right to property, wherefrom a person has been evicted, would not be lost, notwithstanding that the remedy of revision was availed.
53. The question further fell for consideration of the Division Bench in Rajendra Singh, where after noticing the conflicting judgments of the learned Single Judges of this Court in Sewak Shankar and Shankar Saran, their Lordships held that the law is very clear on a plain reading thereof that in case a revision is carried from the Assistant Collector's order to the Collector, it would not bar the right of the person aggrieved by the revisional order to file a suit before the Court of competent jurisdiction. The decision of the learned Single Judge in Shankar Saran was approved by the Division Bench in Rajendra Singh. It was remarked that the conflict stands resolved in terms of the view that the Division Bench had adopted and the interpretation of the Act by the Division Bench, bearing in mind the legislative intent.
54. No doubt, the Full Bench in Shiv Ram overruled the Division Bench in Rajendra Singh, but the answers to the three questions that were referred shows that the Division Bench was overruled with regard to the principle that a writ petition would not be maintainable to challenge the order of eviction under Section 122-B of the Act. The holding of the Division Bench that a suit notwithstanding a revision would lie before the Court of competent jurisdiction has been left undisturbed by the Full Bench; nor was it in issue on a question for consideration before the Full Bench.
55. There is a remark in reference to Question No. 3 by the Full Bench that a suit in the Civil Court may not be maintainable in every case, in view of the provisions of Section 331 of the Act. But, that does not derogate from the principle that a suit before the Court of competent jurisdiction would be maintainable as held by the Division Bench, even after the revisional order by the Collector, notwithstanding the provisions of sub-Section (4-E) of Section 122-B.
56. In the opinion of this Court, Substantial Question of Law No. 3 is answered in the negative and it is held that a suit under sub-Section (4-D) of Section 122-B would not be barred, despite the order of eviction passed under Section 122-B being unsuccessfully challenged in revision under Section 122-B (4-A) of the Act.
57. This brings to the fore Substantial Question of Law No. 2. The question in substance is that in a case where the Civil Court finds that the suit is not cognizable by it, but the Revenue Court, what would be the appropriate order to make: a direction to return the plaint or dismissal of the suit. I had occasion to consider this question in Bansraj and others v. Moti and others, 2019 SCC OnLine All 4238. If the Court finds that it has no jurisdiction to try the suit and the suit as framed can be tried by a Court of competent jurisdiction, which is a Revenue Court, the Civil Court ought not to dismiss the suit. In fact, issues on the merits of a party's case may not at all be gone into if the Civil Court thinks that the suit is not cognizable by it, but by the Revenue Court in view of the provisions of Section 331 of the Act. There is a provision under the Code of Civil Procedure entitling the Court, in case it comes to the conclusion that the suit is not cognizable by it but another Court, to direct a return of the plaint under Order VII Rule 10 of the Code.
58. Substantial Question of Law No. 2 is, therefore, answered in the affirmative and it is held that in a case where the Civil Court finds that the suit is not cognizable by it but the Revenue Court, the appropriate order to make is to direct a return of the plaint and not dismissal of the suit.
59. In the result, this appeal succeeds and is allowed in part. The decree passed by the Lower Appellate Court is set aside and an order made directing the Trial Court to return the plaint to the plaintiff for presentation to the Court of competent jurisdiction. Costs easy.
Order Date :- 02.01.2023 Anoop (J.J. Munir, J.)