Patna High Court
Nand Kumar Rai And Ors. vs State Of Bihar And Ors. on 30 October, 1973
Equivalent citations: AIR1974PAT164, AIR 1974 PATNA 164, ILR (1974) 53 PAT 543, 1974 BLJR 757, ILR (1974) 53 PAT 177, 1974 BLJR 59
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, C.J.
1. In these three cases is involved a common and important question of law in regard to constitutional validity and scope of Section 109 of the Bihar Tenancy Act, 1885 (Bihar Act VIII of 1885), as it stands after the Bihar Tenancy (Amendment) Act, 1970 (Act 6 of 1970), enacted by the President of India in exercise of the powers conferred by Section 3 of the State Legislature (Delegation of Powers) Act, 1969 (Act 32 of 1969).
2. C.W.J.C. 1438 of 1970 and Civil Revision No. 847 of 1970 are between the same parties and the plaintiffs have filed by way of abundant precaution both the writ application and the civil revision to challenge the same order dated the 12th May, 1970, passed by the Court below in Title Suit No, 48 of 1969. C.W.J.C. 2080 of 1970 has been filed by the plaintiffs of Title Suit No. 175 of 1970 to challenge the order dated the 4th December, 1970 passed by the Court below in that suit.
3. Mr. Kailash Roy has advanced the main argument on behalf of the petitioners in all the cases and the learned Advocate-General appeared for the State to oppose the applications and his argument was adopted by learned counsel for other respondents.
4. Facts are not necessary to be stated in any detail. As C.W.J.C. 1428 of 1970 and Civil Revision No. 847 of 1970 are to all intents and purposes the same, I shall briefly state their facts with reference to the writ application. The three plaintiff-petitioners instituted a title suit (Title Suit No. 48 of 1969) in the court of Munsif 2nd at Buxar for declaration of title, confirmation of possession, or in the alternative, for recovery of possession in respect of the suit lands, described in Schedule 2 at one place and separately in Schedules 3 and 4 appended to the plaint. A decree for permanent injunction was also asked for to restrain the defendants from interfering with the plaintiffs' possession. Their case in the plaint is that defendants first party, who have been impleaded as respondents Nos. 3 to 6. have got no Sikmi right over any portion of the suit lands. By bringing the Survey staff under their collusion, the defendants got the name of defendant No. 2 recorded as Sikmidar to lay a false claim. There was a proceeding under Section 145 of the Code of Criminal Procedure in respect of a portion of the suit land which was decided in favour of the defendants first party on the 18th April, 1969. Hence the suit.
5. During the pendency of Title Suit No. 48 of 1969, Bihar Act 6 of 1970 was enacted and published in the Bihar, Gazette Extraordinary, dated February 11, 1970. Section 109 of the Bihar Tenancy Act was replaced by Section 2 of the Amending Act, Section 3 of which provided that all suits of the nature referred to in Sub-section (1) of Section 109 shall stand transferred to the Collector of the district in which such Court is situated and the Collector shall dispose them of. Defendants first party filed a petition before the learned Munsif for transfer of the suit to the Collector of Shahabad (now Collector. Bhojpur, respondent No. 2) in accordance with Section 3 of the Amending Act. A copy of this petition is Annexure 2 to the writ application. The plaintiffs filed a petition for amendment of the plaint proposing to drop all references in the body of the plaint to the survey entry relating to the schedules. A copy of their petition is Annexure 3 to the writ application. Learned Munsif heard the parties and passed order dated 12-5-1970 (Annexure 4). The order consists of two parts. It states that in view of the provision contained in the Amending Act, the suit is beyond the jurisdiction of the learned Munsif and stands transferred to the Collector, The learned Munsif has, therefore, directed sending of the record to the Collector through the District Judge and has refused to allow amendment of the plaint since he has lost jurisidiction in the case. Although the prayer made both in the writ application and in the civil revision by the plaintiffs is in identical terms, at the time of argument. Mr, Kailash Roy confined the writ application to the challenge of the impugned order on the ground of constitutional invalidity of the Amending Act and, in the alternative, in the civil revision he confined his prayer for allowing amendment of the plaint in any event.
6. Plaintiffs are the petitioners in C. W. J. C. 2080 of 1970. Defendants First Party have been impleaded as respondents Nos. 2 to 18. Defendants Second Party are respondents Nos. 19 to 22, They filed Title Suit No. 175 of 1970 in the Court of Munsif 2nd at Buxar for partition of their half share in the properties described in Schedule 3 appended to the plaint, and for appointment of a pleader commissioner for carving out their Takhta. A copy of the plaint is Annexure 2 to the writ application. In paragraphs 5, 6, 7 and 8 of the plaint the petitioners challenged the survey entries made in the name of the defendants, but their prayer, pure and simple, was one of partition. Summonses were issued to the defendants in pursuance of the order dated 25-9-70, but before their appearance, by order dated 4-12-70, a copy of which is contained in Annexure 1, the learned Munsif directed return of the plaint to the plaintiffs for presenting it before a court of competent jurisdiction on the ground that he had no jurisdiction to proceed with the suit any longer. On identical ground this order has also been challenged by Mr. Kailash Roy appearing for the petitioners.
7. The points urged on behalf of the petitioners are the following:--
(1) That Bihar Act 6 of 1970 is a fraud on the legislative power of the State and has been enacted in colourable exercise of it.
(2) That the said Act is discriminatory and void as being violative of Article 14 of the Constitution of India.
(3) That it has not prescribed a procedure in the matter of conduct and trial of suits and disposal of appeals.
(4) That unguided, uncontrolled and arbitrary powers have been vested in the Revenue Courts which are presided over by Executive Officers directly under the control of the State Government. In many disputes, the State may be a party and notices under Section 80 of the Code of Civil Procedure may have to be given to the State Government; and Executive Officers are not supposed to judicially decide the disputes which may be brought before them.
(5) That partition suits, mortgage suits and other kinds of suits are not covered by the impugned Section 109.
(6) That the legislation is against the Directive Principles engrafted in Article 50 of Part IV of the Constitution.
(7) That there is a conflict between Sections 106 and 109 of the Bihar Tenancy Act as the latter stands after the impugned amendment, (8) That the suits in which entries in the Survey record-of-rights will be challenged by way of defence are not barred.
(9) That there is no nexus between the object of the legislation and the Act.
(10) That no machinery has been provided for execution of the order of the Revenue Court (11) That there is no provision for giving interlocutory reliefs by Revenue Courts in suits filed before them tinder Section 109 (2).
8. The learned Advocate-General while combating the arguments put for ward on behalf of the petitioners enunciated the following points:--
(1) That at different stages under limited conditions the old law providing remedy to the affected litigants in Revenue or Civil law barred jurisdiction of the Civil Court to re-determine an issue which had been previously determined by a Revenue Court. Under the impugned amendment the jurisdiction of the Civil Court is completely barred in respect of specified classes of suits which cropped up in large numbers during the Survey operations in the State of Bihar and Revenue Officers have been vested with complete jurisdiction in such matters.
(2) That owing to the outcrop, their nature and genesis, such suits have been treated as a class by themselves presenting the problem of their speedy disposal as an integral step towards implementation of measures of land reform.
(3) That since delay in the disposal of such suits in the Civil Courts has been sapping the agricultural economy and holding the plan in doldrums, the basis of classification and treatment of such suits as a distinct class is perfectly reasonable.
(4) The question of discriminatory treatment is to be judged from the standpoint of an exclusive creation of jurisdiction for administration of justice, not only from the stand-point as to whether the litigants deprived of their opportunity of going to the Civil Court have been discriminated against procedurally or otherwise by the impugned amendment under any of its provisions within the realm of the Revenue Court to which they have to resort now and whether they have been left free to elect their remedies or whether they have been placed at the mercy of some executive authorities in the matter of pursuing their remedies.
(5) That the question has to be Judged from the stand-point of any such discrimination as aforesaid from the effects of the statute or on the basis of adequate pleading or evidence of any such discrimination. Pleading or evidence being singularly absent in these cases, it cannot be held on the face of the statute that any discrimination has been brought about.
9. The first point urged on behalf of the petitioners does not warrant any detailed discussion. The point could not be elaborated and pressed with any precision. It has been stated merely to be rejected. The main point for consideration, however, is, whether the impugned Act 6 of 1970 stands the test of equal protection of laws guaranteed under Article 14 of the Constitution. Points Nos. 3 to 11 urged on behalf of the petitioners and those enunciated on behalf of the respondents are really part and parcel of or subsidiary to the main point No. 2, the alleged violation of Article 14 of the Constitution. I shall, therefore, discuss those points in my judgment together. Before I do so, however, I may state that Bihar Act 6 of 1970 was enacted by the President of India at a time when the State of Bihar was under the President's Rule, and therefore, in view of the constitutional provision contained in Clause (2) of Article 357 of the Constitution, the law engrafted in the said Act ceased to have effect on the expiration of a period of one year after the proclamation made under Article 356 had ceased to operate. It is undisputed that during the pendency of these the proclamation had ceased to operate and Bihar Act 6 of 1970 would have also ceased to operate. But incorporating the law on identical terms the Governor of Bihar promulgated Bihar Ordinance No. 14 of 1971 on March 26, 1971, in exercise of his powers under Article 213 of the Constitution. Thereafter, though Bihar Legislature had met several times, one feels unhappy to find that the law has been sought to be kept alive by a series of Ordinances passed from time to time and up-till now it has not assumed the shape of an Act passed by the Bihar Legislature, The Ordinances passed from time to time are the following:--
Promulgated on (1) Bihar Ordinance No. 14 of 1971 26-3-71 (2) Bihar Ordinance No. 41 of 1971 26-4-71 (3) Bihar Ordinance No. 56 of 1971 17-7-71 (4) Bihar Ordinance No. 25 of 1972 25-4-72 (5) Bihar Ordinance No. 89 of 1972 3-7-72 (6) Bihar Ordinance No. 156 of 1972 24-9-72 (7) Bihar Ordinance No. 23 of 1973 7-4-73.
10. No Ordinance after the last one was brought to our notice. Two points were also canvassed before us in connection with the fact that this law was always sought to be kept alive by Ordinances, namely, (1) that ignoring the Bihar Legislature repeated exercise of power of promulgation of Ordinance under Article 213 of the Constitution is mala fide in law; and (2) that the last Ordinance ceased to operate at the expiration of six weeks from the re-assembly of the Legislature in accordance with Sub-clause (a) of Clause (2) of Article 213 of the Constitution, as six weeks expired after the last re-assembly of the Bihar Legislature in the month of July, 1973. Neither of these two points, however, was ultimately pressed for our decision and we were asked to decide the main question of constitutional validity of the law with reference to the provisions contained in Bihar Act 6 of 1970, as kept alive by various Ordinances referred to above, as if the law is still alive or can be made alive with retrospective effect, if necessary, by promulgation of another Ordinance by the Governor, as at present the Bihar Legislature is not sitting. I shall, therefore, in these circumstances, proceed to determine the main point in this case with reference to the provisions contained in Bihar Act 6 of 1970. Before I do so, I shall briefly trace the relevant history of some of the provisions of the Bihar Tenancy Act.
11. Bengal Tenancy Act of 1885 which also governed the areas covered by the State of Bihar, as is well known, later on became, for the territory of Bihar, Bihar Tenancy Act, 1885. The law contained therein has been amended in diverse matters from time to time. I am in this judgment concerned mainly with some of the provisions contained in Parts I to IV of Chapter X of the Bihar Tenancy Act as they stood before Bihar Ordinance No. 2 of 1964, published in the Bihar Gazette Extraordinary dated the 15th October, 1965, which was followed by Bihar Act 2 of 1965, published in the Bihar Gazette Extraordinary dated the 7th January, 1965, and after.
12. The heading of Part I of Chapter X of the Bihar Tenancy Act is "Record-of-Rights" and in this part are Sections 101 to 103-B. Under Section 101 the State Government may make an order directing that a survey be made and record-of-rights be prepared by a Revenue Officer in respect of the lands in any local area, estate or tenure. Section 102 enumerates some of the particulars which are to be recorded in the record-of-rights. Under Section 102-A the State Government has power to order survey and preparation of record-of- -rights as to water. Under Section 103 on the application of one or more of the proprietors or tenure-holders, or of a large proportion of the raiyats of an estate or tenure the Revenue Officer has got power to record the particulars specified in Section 102 with respect to the estate or tenure. Section 103-A prescribes the mode of preliminary publication, amendment and final publication of the record-of-rights. Section 103-B is important. It provides for presumption as to final publication and correctness of the record-of-rights. Sub-section (3) of this section says--
"Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect."
It would thus be seen that the entry in the reoord-of-rights has got presumptive evidentiary value. But the presumption is rebuttable and in any litigation in a Civil Court it may be shown that the entry did not correctly record the facts.
13. In Part II are dealt with matters relating to settlement of rents, preparation of Settlement Rent Roll and disposal of objections in cases where a settlement of land revenue is being or is about to be made. Section 104-A prescribes the procedures to be adopted for settlement of rents and preparation of Settlement Rent Roll and Section 104-B enumerates the contents of table of rates. Final revision of Settlement Rent Roll and incorpooration of the same in the record-of-rights are to be made under Section 104-F. Appeals to and revisions by superior Revenue authorities are provided in Section 104-G. Section 104-H made .provision for institution of suits in Civil Courts in matters relating to rent But this section was omitted by Bihar Ordinance No. 2 of 1964 and Bihar Act 2 of 1965. Hereinafter I shall refer to this amendment with reference to the Act only. All rents settled under Sections 104-A to 104-F and entered in the record-of rights finally published under Section 103-A or settled under Section 104-G are to be deemed to have been correctly settled and to be fair and equitable rents within the meaning of the Bihar Tenancy Act, as provided for in Section 104-J.
14. Then starts Part III from Section 105 which provides for settlement of rents by Revenue Officer in cases where a settlement of land revenue is not being or is not about to be made. The procedure for filing of application and its disposal has been provided in various sub-sections of Section 105. Where, in any proceeding for the settlement of rents under Part III, any of the questions enumerated in Section 150-A arises, the Revenue Officer has to try and decide such issue and settle the rent under Section 105 accordingly. Then comes Section 106 which, as it stood before the Amending Act 2 of 1965, ran as follows:--
"In proceedings under this Part, a suit may be instituted before a Revenue Officer at any time within three months from the date of the certificate of the final publication of the record-of-rights under Sub-section (2) of Section 103-A of this Act, by presenting a plaint on stamped paper, for the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which the said officer has made from, the record, whether such dispute be between landlord and tenant, or between landlords of the same or of neighbouring estates, or between tenant and tenant, or as to whether the relationship of landlord and tenant exists, or as to whether the land held rent-free is properly so held, or as to any other matter;
and the Revenue Officer shall hear and decide the dispute:
Provided that the Revenue Officer may, subject to such rules as the Provincial Government may prescribe in this behalf, transfer any particular case or class of cases to a competent Civil Court for trial:
Provided also that in any suit under this section the Revenue Officer shall not try any issue which has been, or is already, directly and substantially in issue between the same parties, or between parties under whom they or any of them claim, in proceedings for the settlement of rents under this Part, where such issue has been tried and decided, or is already being tried, by a Revenue Officer under Section 105-A."
The first proviso to the section which empowered the Revenue Officer to transfer any particular case or class of cases to a competent Civil Court for trial was omitted by Bihar Act 2 of 1965. In Mahendra Narayan Ray v. Girish Chandra Kar, 3 Pat LJ 379 = (AIR 1918 Pat 660 (2)) it was held, to quote the placitum-
"Where, in a proceeding under Section 105-A of the Bengal Tenancy Act, 1885 it has been found that the relationship of landlord and tenant does not exist between the parties, that decision operates as res iudicata, and the defendants are not entitled, in a suit for ejectment by the landlord, to re-agitate the question."
As to the scope of a suit under Section 106 there have been some varying observations in some decisions of the Calcutta High Court. But following many Calcutta decisions our Patna view has been consistent that the scope of a suit or a proceeding under Section 106 to alter an entry made in the record-of-rigths must primarily be limited to the question of possession and not to the question of title--vide E. A Moore v. Gulab Chand, (AIR 1923 Pat 213) followed in Jageyanand Pande v. Giriananda Pande, (AIR 1929 Pat 590). The Calcutta High Court in some cases has taken the view that where determination of actual possession may be dependent on the question of title, then such a question may also be determined by the Revenue Court In Braio Mohan Pal v. Darsan Pal, (AIR 1929 Calcutta 308) it seems to have been opined that the scope of a suit under Section 106 can extend to the question of title also, but prayer for possession cannot be included in such a suit. In Chairman, District Board, Rangpur v. Jagatpat Singh, (AIR 1941 Cal 676), Pal, J., sitting singly, on a review of some Calcutta decisions, seems to be of the view that a suit under Section 106 is in the nature "of a declaratory one and the whole object is only to secure a prompt correction, of an erroneous record". I think, the view expressed in the Patna decisions on the basis of certain decisions of the Calcutta High Court in this regard is correct and I may say so with respect that the view expressed in some of the Calcutta decisions is not correct. An entry in the record-of-rights does not create any title in favour of any person. The presumption of correctness of entry could be displaced--vide decision of the Supreme Court in Harihar Prasad Singh v. Deonarain Prasad, 1956 BLJR 306 = (AIR 1956 SC 305) and a decision of this Court in Mst. Mohni v. Faridud-din, (1968 BLJR 761). It is not necessary to bring a suit to avoid a presumption arising under Section 106--videRamgulam Singh v. Bishnu Pargash Narain Singh, (1907) 11 Cal WN 48. An entry in the record-of-rights neither creates nor extinguishes rights--vide Brij Bihari Singh v. Sheo Shankar Jha, 2 Pat LJ 124 = (AIR 1916 Pat 120).
In a suit under Section 106, therefore, the correctness of the entry made by the Revenue Officer has to be judged with reference to the factum of possession and not of title. Section 107 prescribes the procedure to be adopted by the Revenue Officer in all proceedings under Sections 105, 105-A and 106. He has to adopt the procedure laid down in the Code of Civil Procedure for trial of the suit and his decision in every such proceeding shall have the force and effect of a decree of a Civil Court in a suit between the parties, and subject to the provisions of Sections 108 and 109-A, the decision is final. Section 108 provides for revision by Revenue Officer and Section 109-A, which, by Act 2 of 1965 has been included in separate Part IV, provides for appeals from decisions of Revenue Officers to a Special Judge to be appointed by the State Government for the purpose. The appeal is also to be disposed of in accordance with the provisions of the Code of Civil Procedure, as mentioned in Sub-section (2) of Section 109-A. Sub-section (3) provides for a second appeal to the High Court from the decision of a Special Judge in any case. It would thus be seen that matters which are within the jurisdiction of the Revenue Officer to be decided in proceedings under Part III of Chapter X of the Bihar Tenancy Act have been left to his exclusive jurisdiction and his decision has been made final.
15. I now come to the vexing Section 109. Before the amendment brought about by Bihar Act 2 of 1965, the section read as follows:--
"Subject to the provisions of Section 109-A, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted or proceedings taken under Sections 105 to 108 (both inclusive)."
The bar of Civil Court provided in Section 109 was attracted only when the matter was or had already been the subject of an application made, suit instituted or proceedings taken under Sections 105 to 108. The bar has been held to be applicable even when the proceeding or the suit has been withdrawn whether with or without the leave of the Court. The view of Walmsley, J., in the Full Bench decision of the Calcutta High Court in Purna Chandra Chatterji v. Narendra Nath Cboudhury, ILR 52 Cal 894 = (AIR 1925 Cal 845) (FB) has been approved by the Privy Council in Raja Reshee Case Law v. Satish Chandra Pal, 56 Ind App 179 = (AIR 1929 PC 134). But if there was no proceeding or suit under Sections 105 to 108, then Section 109 did not bar the jurisdiction of the Civil Court. It could entertain a suit in regard to any matter which could be the subject of a proceeding or a suit under Sections 105 to 108, but had not been so.
16. In Bihar it was observed that persons could straightway go to the Civil Court for correction of entries in the record-of-rights without initiating a proceeding or a suit in a Revenue Court, and that was not thought congenial in the interest of large number of under-raiyats. So Section 109 was amended by Bihar Act 2 of 1965. After amendment it ran as follows:--
"Subject to the provisions of Section 109-A, a Civil Court shall not entertain any application or suit concerning the preparation or publication of record-of-rights or settlement of rent or preparation of Settlement Rent Roll or for alteration of any entry in any such record or roll or for the determination of the incidents of any tenancy."
17. Interpretation of this section came up for consideration before a Bench of this Court in Chhatri Mehta v. State of Bihar, (1967 BLJR 236 = M. J. C. No. 1709 of 1964). The petitioner before the High Court had filed a title suit alleging that the suit land belonged to him. But a cloud had been cast on his title because in the recent Survey Settlement Operations in the finally published record-of-rights the said plot was recorded in the names of defendants first party who, being emboldened by such wrong entry, held out threats to forcibly dis possess the plaintiff-petitioner from the land. By virtue of Section 11 of Ordinance 2 of 1964 which was replaced by Section 11 of Act 2 of 1965, such a suit stood transferred to the Revenue Court, as per order of the Additional Munsif passed in the title suit. The question for consideration was, whether a suit in which declaration of title, confirmation of possession or in the alternative, recovery of possession in respect of the suit land had been asked for could be held to be outside the jurisdiction of the Civil Court in view of the amended Section 109. The object of the amending Act, as given in the Statement of Objects and Reasons, quoted at page 240 column 1, would indicate that a very large number of title suits had been filed by the land owners to evict the under-raiyats and it was difficult for the latter to defend their cases in the Civil Courts. Therefore, it was considered necessary to replace the jurisdiction of the Civil Court and provide a suitable machinery for hearing these cases locally in camps by the Revenue Officers. It is pertinent to point out here that no amendment was made in Section 106 by Bihar Act 2 of 1965, except that of deleting the first proviso. The scope of a suit under Section 106 remained a limited one, as held by this Court in the cases referred to above, namely, AIR 1923 Pat 213 and AIR 1929 Pat 590.
Narasimham, C, J., with whom Bahadur, J. agreed, said at .page 241 column 1--
"All suits and proceedings which. under the unamended Act could be instituted either in the Civil Court or Revenue Court at the choice of the party were now required to be filed only in the Revenue Court. But the suits which even prior to the amendment could be heard only by the Civil Court were not intended "to be dealt with by the Amending Act The Legislature could not possibly have intended that a Revenue Court was competent to decide questions of title between parties. Thus under no principle of interpretation can Section 11 be so construed as to enlarge the jurisdiction of the Revenue Court and to confer on it powers to hear regular title suits."
The learned Chief Justice further observed at pages 241-242--
"It is well known that the entry in the record-of-rights neither creates title nor extinguishes title, and though, as the law stood prior to 1964, a suit in the Civil Court for mere correction of an entry in the Settlement Record-of-Rights was maintainable, such suit was not ordinarily instituted unless there was a cloud cast on the title of the plaintiff or apprehension of dispossession or interference with possession. In such instances tha main relief, as in this case, was always for declaration of title and confirmation of possession or recovery of possession. Such a suit was not barred by Section 109 of the Act, as amended, and on the same line of reasoning Section 11 of the Amending Act 1964 could not possibly apply to such suits. It is also difficult to imagine how the Legislature could have thought of transferring regular title suits from ordinary civil courts to Revenue Officers merely because one of the reliefs asked for in the suits was for corrrection of any entry in the Settlements Record-of-Rights. It is well known that Civil Courts are better qualified to decide questions of title to immovable pro-! perty than Revenue Officers."
18. To overcome the difficulty created by the decision of this Court in Chhatri Mehta's case (ML J. C. No. 1709 of 1964 = 1967 BLJR 236), Bihar Act 6 of 1970 was enacted. The reasons for the enactment, as mentioned in the Bihar Gazette Extraordinary, dated February 11, 1970, page 8, are the following:--
"Survey and settlement operations have been undertaken in several districts of Bihar with a view to effecting a thorough revision of record-of-rights. A large number of suits were filed in Civil Courts challenging the entries in the record-of-rights. Considering that it would be difficult for the under-raiyats to defend their cases in Civil Courts and for the Civil Courts to deal with a large number of cases speedily, the Bihar Tenancy (Amendment) Act 1964 was enacted which barred a Civil Court from entertaining any application or suit concerning (1) the preparation or publication of record-of-rights, (2) settlement of rent and preparation of Settlement Rent Roll, (3) alteration of any entry in such record or roll, and (4) determination of the incidents of any tenancy, and for transfer of such suits from Civil Courts to Revenue Courts.
2. On an interpretation of the wordings of Section 109 of the Bihar Tenancy Act, 1885, as substituted by the Bihar Tenancy (Amendment) Act, 1964 and the transitional provision contained in Section 11 of the said amending Act, it has been held by the Patna High Court in Misc. Judicial Case No. 1709 of 1964 that in a suit for declaration of title between rival claimants to property and for confirmation of possession or recovery of possession, a prayer for correction of the entry in the record-of-rights is of an ancillary nature and the Bihar Tenancy (Amendment) Act. 1969 (sic) did not take away the jurisdiction of a Civil Court in such suit.
3. It is apprehended that the purpose of the Bihar Tenancy (Amendment) Act 1964 would be defeated as in the suits for correction of records or determination of incidents of tenancy, disputes relating to title and possession are generally involved. It is, therefore, necessary to further amend the Bihar Tenancy Act, 1885 and specially provide for barring the jurisdiction of a Civil Court with regard to suits for declaration of title to or recovery of possession of or confirmation of possession over any holding or tenancy or part thereof in which correct ness of any entry in any record-of-rights or Settlement Rent Roll is expressly or impliedly challenged or in which determination of incidents of tenancy is in volved, for empowering the Revenue Court to decide such suits and for transfer of such cases to the Revenue Courts for disposal. The present measure is intended to achieve that object."
Section 2 of this Amending Act replaces Section 109 and makes the following provision:--
"2. Substitution of new section for Section 109.-- For Section 109 of the Bihar Tenancy Act, 1885 (Bihar Act VIII of 1885), the following section shall be substituted, namely:--
'109. Bar of jurisdiction to Civil Courts.--
(1) Subject to the provisions of Section 109-A, a Civil Court shall not entertain any application or suit--
(a) concerning the preparation or publication of record-of-rigths or settlement of rent or preparation of Settlement Rent Rolls;
(b) for alteration of any entry in any such record or roll;
(c) for the determination of incdents of any tenancy; or
(d) for declaration of title to or recovery of possession of or confirmation of possession over any holding or tenancy or part thereof in which correctness of any entry in any such record or roll is expressly or impliedly challenged or in which determination of incidents of any tenancy is involved.
(2) Suit for declaration of title to or recovery of possession of or confirmation of possession over any holding or tenancy or part thereof, in which correctness of any entry in any record-of-rights or Settlement Rent Roll is expressly or impliedly challenged or in which determination of incidents of any tenancy is involved may be instituted before the Collector or any Revenue Officer specially empowered by the State Government by notification in this behalf who shall dispose of the suit in the prescribed manner.
(3) An appeal against the decision under Sub-section (2) shall lie,
(a) if the decision is by an officer other than the Collector of a district to the Collector of the district or to any other officer as may be specially empowered by the State Government by notification in this behalf, whose decision thereon shall be final; or
(b) if the decision is by the Collector of a district, to the Commissioner of the Division whose decision thereon shall be final.
(4) Every appeal under Sub-section (3) shall be presented within ninety days from the date of the decision under Sub-section (2)'."
After having endeavoured to bar the jurisdiction of the Civil Courts in cases for declaration of title to or recovery of possession of or confirmation of possession over any holding, tenancy or part thereof in which correctness of any entry in any record-of-rights or Settlement Rent Roll is expressly or impliedly challenged and providing for filing of such suits in Revenue Courts, Section 3 of Bihar Act 6 of 1970 provided for transfer of certain applications and suits pending in the Civil Courts to Revenue Courts, just as it was done by Section 11 of Bihar Act 2 of 1965. I would do better to quote Section 3 of Bihar Act 6 of 1970 in full--
"3. Transfer of certain applications and suits pending in Civil Courts.-- (1) Notwithstanding anything contained in the Bihar Tenancy Act, 1885 (Bihar Act VIII of 1885), or any other law for the time being in force all applications and suits of the nature referred to in subsection (1) of Section 109 of the said Act as amended by this Act, pending in a Civil Court immediately before the commencement of this Act shall, on such commencement, stand transferred to the Collector of the district in which such court is situated and the Collector shall either dispose them of himself or transfer them to any Revenue Officer competent to hear an application or suit of such nature under subjection (2) of the said Section 109;
Provided that an appeal against or proceedings in execution of any judgment, decree or order of a Civil Court passed in any such suit before the commencement of this Act shall be disposed of as if this Act had not been enacted.
(2) The Collector or the Revenue Officer shall dispose of the suit transferred to him under Sub-section (1) in the prescribed manner.
(3) An appeal against the decision under Sub-section (2) shall lie,--
(a) if the decision is. by an officer other than the Collector of a district to the Collector of the district or to any other officer as may be specially empowered by the State Government by notification in this behalf, whose decision thereon shall be final; or
(b) if the decision is by the Collector of a district, to the Commissioner of the Division, whose decision shall thereon be final.
(4) Every appeal under Sub-section (3) shall be presented within ninety days from the date of the decision under Sub-section (2)."
19. It is plain that if the whole of Section 109 as substituted by Section 2 of Bihar Act 6 of 1970 is constitutionally valid, then Title Suit No. 48 of 1969 which is the subject-matter of consideration in C.W.J.C. 1428 of 1970 stood transferred to the Revenue Court. Yet Title Suit No. 175 of 1970 the order of transfer made in which is under challenge in C.W.J.C. 2080 of 1970 cannot stand transferred because that is not a suit for declaration of title or possession wherein correctness of an entry in the record-of-rights has been challenged, but the suit is a suit for partition. Mortgage Suits, Partition Suits or suits of other nature in which other reliefs have been asked for even by challenging the correctness of entries in the record-of-rights, either over and above the relief for declaration of title and possession or even without asking for such a relief are still not covered by Section 109 on a plain reading of the amended section, But the main question for consideration is, whether the whole of Section 109 is constitutionally valid.
20. Clauses (a), (b) and (c) of Sub-section (1) of the impugned Section 109 are merely bifurcation of the various parts of Section 109 as it stood after amendment by Bihar Act 2 of 1965, Clause (d) is a new one. Filing of suits for declaration of title and possession in the Revenue Courts has not been provided for by amending Section 106. It has been so done in Sub-section (2) of Section 109 itself The Kevenue Officer has been enjoined upon to dispose of the suit in the prescribed manner. The Rules framed by the State Government prescribing the manner of disposal of such suits were placed before us by the learned Advocate-General. They are called the Bihar Disposal of Tenancy Suits (Procedure) Rules, 1970 and has been published in the Bihar Gazette Extraordinary of December 29, 1970, Rule 2 reads as follows:--
"In all proceedings under Sub-section (2) of Section 109 of the Bihar Tenancy Act, 1885 (Act 8 of 1885) as amended by the Bihar Tenancy (Amendment) Act, 1970 (President's Act No. 6 of 1970) and under Sub-section (2) of Section 3 of the Bihar Tenancy (Amendment) Act, 1970 (President's Act 6 of 1970), the Collector or the Revenue Officer specially empowered by the State Government shall adopt the procedure laid down in the Code of Civil Proce dure, 1908 (5 of 1908) for the trial of suits and his decision in every such proceeding shall have the force and effect of a decree of a Civil Court in a suit between the parties:
Provided that the procedure prescribed in clause (2) of Section 148 of the Bihar Tenancy Act, 1885 (Act VIII of 1885) in respect of rent suits, shall be, applicable, mutatis mutandis, to such proceedings."
If the procedure prescribed in the Code of Civil Procedure, 1908 has got to be followed by Revenue Officers also for disposal of tenancy suits, it is difficult to understand how they will be able to dispose of the suits speedily and quickly. I have mentioned at another place of my judgment that under the rule making power the Government of Bihar could not clothe the decision of the Revenue Officer in a tenancy suit as having the force and effect of a decree of a Civil Court. I have also stated that no procedure for giving effect to such a decision or for its execution has been provided for by the impugned legislation.
21. While in Section 109-A provision for appeal from the decision of the Revenue Officer in a suit under Section 106 to the Special Judge and Second Appeal to the High Court was left intact in Sub-section (3) of the impugned Section 109 only one appeal has been provided either to the Collector or to the Commissioner, as the case may be. In the procedural aspect of the law, therefore, in my opinion, there is a clear discrimination in that two appeals including one to the High Court have been provided for in a suit under Section 106 of the Bihar Tenancy Act which is of a much lesser impact and complication while only one, and that also only to the Revenue Officer, has been provided for in a much more complicated and cumbrous suit wherein the question of title and possession will have to be gone into and decided.
22. The next difference between the two types of suits to be pointed out is that while the decision of a Revenue Officer in a suit under Section 106 has to be taken in accordance with the Code of Civil Procedure and it has to be the force of a decree of a Civil Court, as has been engrafted in subjection (1) of Section 107, such a matter for a suit under Section 109 (2) has been provided for by the Rules. The provision in the Rules that the decision of the Revenue Officer given in' a suit instituted under Section 109 (2) shall have the force of a decree of a Civil Court is ultra vires as it is beyond the rule making power of the State Government. It is not warranted by the language of Sub-section (2) of Section 109 nor by Section 189. The third lacuna which brings about the discrimination is that it has not been provided how the decision of the Revenue authority in a . suit for title and possession has to be executed. On the other hand, correction in the record-of-rights according to the decision in a suit under Section 106 has to be made in accordance with Subsection (2) of Section 107 of the Act. It is doubtful whether the Revenue Court will be competent to pass any order giving any interlocutory relief such as appointment of a receiver, issuance of injunction etc.
23. It is difficult to conceive how complicated title suits would be speedily and summarily disposed of by Revenue Courts and how the under-raiyats would be benefited thereby. I can take judicial notice of the fact that a large number of title suits have been filed throughout the State of Bihar wherever Revisional Survey operations have taken place. I am also aware that the number of Civil Courts is too small to dispose of such large number of title suits, I am, however, also aware of the fact that the number of Revenue Courts is also not sufficient, rather too small to dispose of such a large number of complicated title suits. They will be simply unable to decide them unless they technically choose to literally dispose of the suits by any means; no Court by a judicial approach will be able to dispose of such a large number of suits, I am, however, not concerned with the wisdom behind this legislation. I am concerned merely with its constitutional validity. In procedural matter suits of lighter vein have been allowed to be brought to the High Court and complicated suits are to be finally disposed of by the Revenue authorities, I also do not see any justification for making a distinction between title suits for declaration of title and possession and suits of other types such as partition or mortgage suits.
24. It is further to be pointed out that Section 109 of the Bihar Tenancy Act bars only a suit for title or possession, but a defence in which there may be necessity of challenging the correctness of the survey entry is not barred. Supposing a person has got his name entered as an under-raiyat in the Survey record-of-rights, but actually he is not able to get possession and cultivate the land. In such a case, if he files a suit for possession, it would be open to the defendant to resist the suit by pleading that the survey entry is wrong. I have already stated that an entry in the record-of-rights neither creates nor extinguishes rights nor does an omission of entry affects the rights of the parties vide Mohendra Nath Biswas v. Syam Lal Banerjee, 19 Cal LJ 308 = (AIR 1914 Cal 617). Irrespective of the entry in the record-of-rights, the owner of the land remains the owner, the person in possession remains to be so unless ousted in due course of law. Will it then be reasonable to say that a person must go to the Revenue Court if he wants to challenge the entry seeking declaration of title and possession when he is at liberty to challenge the entry in the Civil Court as a defendant? Many under-raiyats may be in the position of plaintiffs or defendants. Is it, therefore, correct to say that there is a rational nexus between the classification made and the avowed object of the impugned Act?. The law of rebuttal of presumption engrafted in Sub-section (3) of Section 103-B is still intact Will it, therefore, be not discriminatory to the title holders of the lands to ask them to go to the same Revenue Court for rebutting the presumption of the correctness of the entry? Or is it not fair to allow them to establish their title and possession in a Civil Court? To my mind, the answers suggested in the questions themselves are all against the validity of the impugned legislation.
25. A suit under Section 106 of the Bihar Tenancy Act, as I have pointed out above, is on a different footing, It has to be filed within three months of the date of the survey and final publication of the record-of-rights, under Subsection (2) of Section 103-A of the Act, while the period of limitation for filing a title suit in a Civil Court is much longer. It may well be that if a suit under Section 106 is filed by any person claiming correction of entry on the basis of actual physical possession, the finding recorded on the question of possession in such a suit will operate as res judicata in a subsequent civil suit where relief of possession is sought for on establishment of title. But that is not to say that a suitor who wants to combine all the reliefs in one and the same litigation must be forced to go to the Revenue Officer for correction of entry on the basis of possession and then come to the Civil Court for establishment of title and to seek recovery of possession, It will merely lead to multiplicity of litigations, To avoid the situation no doubt, it was necessary to provide for a single forum for establishment of title and possession of property after correction of entry.
The Legislature in its wisdom thought that the Revenue Court will be a better forum for this purpose. It is not open to me to question the wisdom of the Legislature, but surely if it has violated Article 14 of the Constitution, as in my opinion it has, then I think, I can strike down the portion of the law which is invalid on that account.
26. There are numerous decisions of the Supreme Court interpreting Article 14 of the Constitution. Many were cited at the Bar and specially by the learned Advocate-General. I think, I will make reference to only a few of them in my judgment. In Kangshari Haldar v. State of West Bengal, (AIR I960 SC 457), on a review of several authorities of the Supreme Court, Gajendragadkar, J. as he then was, finally said in paragraph 19 at page 464--
"The result of these decisions appears to be this. In considering the validity of the impugned statute on the ground that it violates Article 14 it would first be necessary to ascertain the policy underlying the statute and the object intended to be achieved by it. In this process the preamble of the Act and its material provisions can and must be considered. Having thus ascertained the policy and the object of the Act the Court should apply the dual test in examining its validity: Is the classification rational and based on intelligible differentia; and has the basis of differentiation any rational nexus with its avowed policy and object? If both these tests are satisfied the statute must be held to be valid; and in such a case the consideration as to whether the same result could not have been better achieved by adopting a different classification would be foreign to the scope of judicial enquiry. If either of the two tests is not satisfied the statute must be struck down as violative of Article 14."
In Khandige Sham Bhat v. Agricultural Income-tax Officer, Kasaragod, (AIR 1963 SC 591), a passage has been quoted with approval at page 594, column 2 from the case, Ram Krishna Dalmia v. S. R. Tendolkar, (AIR 1958 SC 538). Summarising the law neatly and succinctly the passage runs thus:
"It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguished persons or things that are grouped together from others left out of the group and (ii) that the differentia must have a rational relation to the subject sought to be achieved by the statute in question. The classification may be founds ed on different bases, namely geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
Subba Rao, J., as he then was, added-
"Though a law ex facie appears to treat all that fall within a class alike, if -in effect it operates unevenly on persons or property similarly situated, it may be said that the law offends the equality clause. It will then be the duty of the Court to scrutinise the effect of the law carefully to ascertain its real impact on the persons or property similarly situate ed. Conversely, a law may treat persons who appear to be similarly situate differently; but on investigation they may be found not to be similarly situate. To state it differently, it is not the phraseo" logy of a statute that governs the situation but the effect of the law that is decisive. If there is equality and uniformity within each group, the law will not be condemned as discriminative, though due to some fortuitous circumstance arising out of a peculiar situation some included in a class get an advantage over others, so long as they are not singled out for special treatment."
I have endeavoured to follow the above dicta of the Supreme Court and apply them to the facts of the instant case as far as possible.
27. Although as laid down by the Supreme Court in V. S. Rice and Oil Mills v. State of Andhra Pradesh, (AIR 1964 SC 1781) in paragraph 22 at page 1788 and in Probhudas Morarjee v. Union of India, (AIR 1966 SC 1044). in paragraph 8 at page 1047, the facts have to be pleaded to establish the point of infraction of Article 14, it is not necessary to do so in cases where ex facie the law smacks of violation of equal protection of law. In the instant case, no special facts were necessary to be pleaded. The facts are all such that judicial notice of them can be taken and has been taken.
28. In Lachhman Dass v. State of Punjab (AIR 1963 SC 222) the question for consideration was whether Patiala State Bank could be treated as a class by itself and whether it was within the power of the State to enact a law with respect to it. On a consideration of the various aspects of the impugned Act and the Rules, it was held that the law did not contravene Article 14 nor was there any violation of the principles of natural justice in the procedure prescribed by the said Act and the Rules. I do not think that the ratio of this case can be pressed into service to sustain the validity of the law under consideration before us. Our attention was drawn by the learned Advocate-General to the sidelined portion in paragraph 31 at page 1427 in the decision of the Supreme Court in Banarsi Das v. Cane Commr., Uttar Pradesh, (AIR 1963 SC 1417). The decision by the Cane Commissioner was the normal mode of disposing of disputes regarding the supply of sugarcane. He had, however, the power to direct that the dispute be referred to arbitration; but the rules showed that there could be no arbitration unless the parties themselves agreed. In such a situation, it was observed by Hidayatullah, J., as he then was,--
"Where there are two procedures one for every one and the other if the disputants voluntarily agree to follow it, there can be no discrimination because discrimination can only be found to exist if the election is with someone else who can exercise his will arbitrarily."
In the present case, it is no doubt true, as was argued on behalf of the State, that the litigants have not been left at the mercy of the executive authorities to prescribe the procedures to be followed by them, as was the case in Northern Indian Caterers (Pvt.) Ltd. v. State of Punjab, (AIR 1967 SC 1581), nonetheless, compelling the suitors to go to a Revenue Court for establishment of their title and confirmation and recovery of possession is by itself discriminatory, even though discrimination does not depend upon choice or election of the authorities concerned.
29. The learned Advocate-General placed reliance upon a decision of the Supreme Court in Sakhawat All v. State of Orissa, (1955) 1 SCR 1004 ati p. 1010 = (AIR 1955 SC 166), wherein Bhagwati, J. has said--
"...... that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution."
The observation must be appreciated with reference to the facts of the case. It was to repel the argument that only lawyers appearing against the Municipality have been disqualified to be candidates at the election and not the litigants themselves. The facts of this case and the point involved in it are too clearly different for application of the ratio aforesaid. Reliance was also placed upon a decision of the Supreme Court in Attar Singh v. State of U. P. (AIR 1959 SC 564), at paragraph 9 at p. 567, wherein on a consideration of the relevant provision it was found that there was no such violent departure from the ordinary procedure so as to enable the Court to strike down the impugned provision in Chapter II of the Act as discriminatory. In my opinion, in the present case, there is a violent departure.
30. Learned Advocate-General also drew our attention to paragraph 23 of the judgment of the Supreme Court at page 1467 in the case Harakchand Ra-tanchand v. Union of India, (AIR 197(1 SC 1453). An argument was advanced to challenge the vires of Sections 27 and 39 of the Gold Control Act that the said provisions with regard to the licensing of dealers were more harsh than in the case of registered goldsmiths. It was repelled on the ground that the licensed dealers and certified goldsmiths formed separate classes and the classification was a reasonable one. A licensed dealer is essentially a trader who does business of a wider magnitude than a certified goldsmith who is merely a craftsman. The more stringent provisions which were therefore applicable for licensing of dealers, than to certified goldsmiths were held to be valid. In the instant case, the position is just the reverse. As I have pointed out above, two appeals are provided including one to the High Court in a suit under Section 106 of the Act while there will be only one appeal and that also to the Collector or to the Commissioner under the impugned Section 109. In my judgment, such a discrimination in the matter of procedure in the reverse gear must be held to be violative of Article 14.
31. After a careful consideration of the matter, I have come to the conclusion that Clause (d) of Sub-section (1) and Sub-section (2) of Section 109 of the Act introduced by Bihar Act 6 of 1970 are constitutionally invalid. As a corollary to that, Sub-sections (3) and (4) of Section 109 also must be struck down as void. Clauses (a), (b) and (c) of Sub-section (1) of Section 109 are not being struck down as they correspond to Section 109 as it stood after amendment by Bihar Act 2 of 1965. In the matter of transfer of applications and suits pending in the Civil Courts, similarly, the operation of Section 3 of Bihar Act 6 of 1970 must be confined to such applications and suits which are covered by Clauses (a), (b) and (c) of Sub-section (1) of Section 109 and not Clause (d). It also follows that Sub-sections (2), (3) and (4) of Section 3 of Bihar Act 6 of 1970, must be struck down, because if within the limited scope of Section 3 any suit shall stand transferred, it shall be disposed of as a suit under Section 106 of the Act, for which a provision of appeal is already there in Section 109-A. It is also to be made clear that I respectfully agree with the Bench decision of this Court in Chhatri Mehta's case reported in 1967 BLJR 236. The portion of Bihar Act 6 of 1970 which has not been struck Mown as invalid by me must be understood to be operative in the light of the said decision. In other words, suits pending in the Civil Courts for declaration of title, confirmation of possession or recovery of possession will remain pending in these Courts and will be triable only by them even though entry in survey has been challenged expressly or impliedly. It is no doubt true, as stated in the reasons for the impugned enactment, that "in the suits for correction of records ...... disputes relating to title and possession are generally involved", but It does not seem to be sound in law to enlarge the ambit of the power of the Revenue Courts for deciding complicated title suits merely because in them are Involved questions of correction of record-of-rights, as the main plank of dispute in such cases would be title and possession. Compared to that, an allegedly wrong entry is an insignificant matter.
32. For the reasons stated above, both the writ applications are allowed, the impugned order of the learned Munsif dated 12-5-1970, contained in Annexure 4 of C.W.J.C. 1428 of 1970, passed in Title Suit No. 48 of 1969 is quashed and so is also quashed the order dated 5-12-1970, contained in Annexure 1 of C.W.J.C. 2080 of 1970, passed in Title Suit No. 175 of 1970. Both the title suits shall proceed in the Civil Courts in accordance with law. Since C.W.J.C. 1428 of 1970 has been allowed, it is not necessary to make any order in Civil Revision No. 847 of 1970, and it is dismissed as infructuous. There will be no order as to costs in any of the cases.
S.N.P. Singh, J.
33. I entirely agree.
S.K. Jha, J.
34. I wholly agree.