Patna High Court
Anirudh Singh And Ors. vs Tarkeshwar Singh And Ors. on 12 November, 1971
Equivalent citations: AIR1973PAT63, AIR 1973 PATNA 63
ORDER G.M. Prasad, J.
1. This second appeal has been preferred by the plaintiffs in a suit brought by them under Rule 8 of Order 1 of the Code of Civil Procedure for removal of certain encroachment (sic) a gairmazrua am land forming part of plot Nos. 1925 and 2711 in village Diha and serving as pind of Barka Ahar, which is alleged to be a public bank. The plaintiffs have also sued for issue of a permanent injunction restraining the defendants from making any encroachment upon the suit plots.
2. Defendants Nos. 1 to 3 filed a written statement in paragraph 6 of which it was stated that the plaintiffs have already taken recourse to the remedy provided under the Bihar Public Land Encroachment Act 1956 (Bihar Act XV of 1956) and the said proceedings is pending before the Land Reforms Deputy Collector at Giya and "as such the pre-
sent suit is barred and the Court has no jurisdiction to adjudicate upon the same subject-matter which is already sub judice before the said Land Reforms Deputy Collector. It should be noted that the said proceeding has been initiated before the filing of the present suit".
3. Twelve issues were framed by the learned munsif before whom the suit was pending. Issue No. 1 was whether the suit as framed was maintainable and issue No. 9 was whether the suit was barred by the provisions of the Bihar Public Land Encroachment Act. The question of jurisdiction and maintainability of the suit was taken up for decision as preliminary issues in the case and the Courts below have concurrently held that the suit is barred by the provisions of the aforesaid Act and that the Civil Court has no jurisdiction to adjudicate upon the matter in respect of which proceeding already taken in the revenue Court is still pending.
4. The Courts below have relied particularly upon Section 16 of the Act which reads;
"No suit or other legal proceeding shall lie in any Court in respect of any order passed under this Act".
The Courts below have also referred to Section 19 of the Act which reads;
"The provisions of this Act for the removal of any encroachment on a public land shall be in addition to and not in derogation of any remedy available under any other law for the time being in force for the removal of such encroachment".
With regard to the provisions of Section 19 apparently lending support to the plaintiffs' case that the jurisdiction of the civil court is not wholly barred the courts below seem to think that to take such a view would lend to an anomalous position inasmuch as there may be two conflicting decisions with regard to the subject-matter, one of the revenue Court and the other of the Civil Court, the courts below have therefore, taken the view that the plaintiffs had to elect as to which remedy they would pursue and having already elected to take the matter to the revenue Court they are precluded from enforcing the same relief by means of the present suit in the civil Court.
5. In my opinion, there are numerous difficulties in the way of accepting the views expressed by the courts below. To start with. Section 16 talks of an order passed under the Act. An order under the Act would obviously refer to final order of the Collector envisaged in Section 6 of the Act. Under Clause (a) of Sub-section (1) of Section 6 such a final order of the Collector might be one of dropping the proceeding. In that situation the entire rights of the parties would remain un adjudicated which could never have been the intention of the legislature. Secondly, it has now been held by a Bench of this Court in Ramzan Mian v. Executive Engineer P.W.D. Dehri-on-Sone, Shahabad (1969 Pat LJR 241) that Section 5 of the Act which empowers the Collector to pass an order for removal of encroachment on the public land as defined in Section 2 (3) of the Act is void. Therefore, the Collector is no more in a position to pass any final order as mentioned in Section 6 of the Act.
6. Thirdly, no order of the revenue Court has vet been recorded and one does not know when it will at all be recorded. Evidently it could not have been the intention of the legislature to provide for any suit which would otherwise He in a Civil Court to remain in abeyance for an indefinite period.
7. Fourthly, the question of election does not arise because Section 19 of the Act, far from barring the jurisdiction of the ordinary Civil Court, seems to recognise it. The principle is well settled as laid down in Secretary of State v. Mask & Co., (AIR 1940 PC 1051 at p. 110 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, jt is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The same view was reiterated by their Lordships of the Supreme Court in Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai, (AIR 1969 SC 439) at p. 446. The Courts below were, therefore not right in construing Section 19 of the Act in the manner in which they have done.
8. For the aforesaid reasons this appeal must succeed. The decision of the Courts below is reversed and the suit is remanded to trial Court for disposal on the merits according to law. In the circumstances of this case, however, there will be no order as to costs.