Gujarat High Court
Gandaji R. Thakor & 2 vs State Of Gujarat on 9 June, 2016
Author: S.G.Shah
Bench: S.G.Shah
C/SA/28/1995 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 28 of 1995
With
CIVIL APPLICATION NO. 3435 of 2013
In SECOND APPEAL NO. 28 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GANDAJI R. THAKOR & 2....Appellant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR A J PATEL, ADVOCATE for the Appellant(s) No. 1 - 3
MR PM BHATT, ADVOCATE for the Appellant(s) No. 2
MR JANAK RAVAL, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 09/06/2016
CAV JUDGMENT
1. The appellants herein are original plaintiffs Page 1 of 10 HC-NIC Page 1 of 10 Created On Fri Jun 10 02:56:06 IST 2016 C/SA/28/1995 CAV JUDGMENT whereas respondent being original defendant is State of Gujarat. The appellants are challenging the judgment and decree dated 30.7.1994 in Regular Civil Appeal No.134 of 1986 by 2nd Jt.District Judge of Ahmedabad (Rural) at Mirzapur. By such impugned judgment, the District Court has while allowing the appeal, reversed the judgment and decree dated 28.2.1986 in Regular Civil Suit No.3 of 1981 by the Civil Judge (S.D.) of Ahmedabad (Rural). Therefore, the ultimate result is now to the effect that though the suit of the appellants was decreed by the Civil Court, the same stood dismissed by the impugned judgment, which is under challenge in such Second Appeal. While admitting the appeal in the year 1995, this Court has framed a substantial question of law to be decided in this appeal as under:-
"Whether in the facts and circumstances of the case, learned Judge of the lower Appellate Court has committed an error in holding that the learned trial Judge had no jurisdiction to entertain the suit?"
2. If we consider the factual details, the appellants - plaintiffs have filed the suit for the relief of declaration and injunction that the order No.CB/LND/C/379 dated 14.10.1980 by the Collector, Ahmedabad, is illegal, arbitrary, malicious and not binding Page 2 of 10 HC-NIC Page 2 of 10 Created On Fri Jun 10 02:56:06 IST 2016 C/SA/28/1995 CAV JUDGMENT on the plaintiffs and also to restrain the defendant and its Officer from executing the said order in any manner against the plaintiff. Therefore, prima facie it becomes clear that the suit is challenging the order of the Collector, which was passed in his capacity as a Revenue Officer and thereby, it is a quasi judicial order. So far as factual details are concerned, it is appellant's case that he is holding land bearing S.No.335 at Ranip Village in City and Taluka of Ahmedabad as inherited from his ancestors, but the revenue authority has played mischief in revenue record at the lower level and thereby, land was endorsed as of restricted tenure by mutation entry No.1000 dated 30.5.1956. It is further contended that no notification was ever issued as required u/s.73(A) of the Bombay Land Revenue Code ('Code', for short) and therefore, in absence of any legal permission u/s.135(J) of the Code, said entry could not be considered as a true and genuine entry and therefore, tenure of the land cannot be converted. It is further contended that because of such lawful entry, request to convert such land for non- agricultural purpose was lawfully denied. It is further contended that Collector has not fixed the premium and issued the notice for Page 3 of 10 HC-NIC Page 3 of 10 Created On Fri Jun 10 02:56:06 IST 2016 C/SA/28/1995 CAV JUDGMENT forfeiting the land.
3. However, the most crucial issue in the appeal and entire litigation, right from the Civil Court uptil such appeal, is to the effect that whether quasi judicial order of revenue authority can be challenged before the Civil Court or not. It is also evident from record that, initially, the matter was remanded back by the Secretary (Appeal) for reconsideration by the Collector, but thereafter, when revenue authority has passed an order dated 14.10.1980, instead of challenging said order in proper hierarchy of litigation under the revenue laws, the plaintiff has all of a sudden preferred a Civil Suit contending that such entry dated 14.10.1980 is illegal, arbitrary, malicious and not binding on the plaintiff. Now, when the Appellate Court has by impugned judgment held that Civil Court has no jurisdiction to decide such issue and to grant such relief because of the provisions of the then Revenue Jurisdiction Act, the appellant has challenged such judgment in this appeal. At present, the Gujarat Revenue Jurisdiction Act ('Act', for short) is applicable, which is pari materia same to the provisions of the old Bombay Revenue Jurisdiction Act; wherein, Section 11 provides that - "No Civil Court shall Page 4 of 10 HC-NIC Page 4 of 10 Created On Fri Jun 10 02:56:06 IST 2016 C/SA/28/1995 CAV JUDGMENT entertain any Civil Suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bring his suits he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suits it was possible to present." Section 6 of the same Act also bars certain suits against Revenue Officers when it provides that Revenue Officers shall not be liable to be sued for damages in any Civil Court for any act bonafide done or ordered to be done by them in pursuance of the provisions of any law for the time being in force. Whereas, Sections 4 and 5 also bars the jurisdiction of Civil Court in certain cases. Clause (D) of Section 4 confirms that Civil Courts shall not exercise jurisdiction in a scheme against the Government with respect to claims against the Government regarding any entry made in record of revenue survey. In view of such restriction, practically, Civil Court has no jurisdiction to directly entertain a suit against an order of a revenue authority and more particularly, with reference to revenue entry of particular land for which there are provisions in the law to challenge such order Page 5 of 10 HC-NIC Page 5 of 10 Created On Fri Jun 10 02:56:06 IST 2016 C/SA/28/1995 CAV JUDGMENT before higher authority under revenue laws upto the Secretary (Appeals) and order of Secretary (Appeals) are generally challenged before High Court since there were three levels of hierarchy in such jurisdiction upto the High Court.
4.Whereas, for some dispute, even there is remedy to challenge certain orders by the revenue authority before the Land Revenue Tribunal and therefore, the provisions of Section 11 of the Act perfectly bars the jurisdiction of Civil Courts when it provides that before filing any such suit wherever remedy is available under particular law, the aggrieved litigant must have exhausted such remedy.
5. However, the learned counsel Mr.A.J.Patel for the appellant has relied upon the wordings of such section when there is reference of only appeals contending that no appeal is provided under the revenue laws and therefore, Civil Court has jurisdiction to entertain such suit. In support of his submission, learned counsel Mr.Patel is relying upon the decision of Hon'ble Supreme Court of India in the case of Shiv Kumar Chadha etc. Vs. Municipal Corporation of Delhi reported in (1993)3 SCC 161 wherein the Hon'ble Supreme Court of Page 6 of 10 HC-NIC Page 6 of 10 Created On Fri Jun 10 02:56:06 IST 2016 C/SA/28/1995 CAV JUDGMENT India has held that Civil Court's jurisdiction to go into the question that whether order under challenge was a nullity being vitiated by jurisdictional error, is not barred. However, the scrutiny of judgment makes it clear that it is with reference to provision of Section 9 of the Civil Procedure Code and Section 343 of the Delhi Municipal Corporation Act, wherein so far as demolition or stoppage of unauthorized constructions are concerned, the Hon'ble Supreme Court of India has held that if the Officer of the Corporation has committed jurisdictional error, then, such order can be challenged before the Civil Court. However, in the present case, though learned advocate Mr.Patel has tried to convince the Court by submitting that the impugned order is result of jurisdictional error, the fact remains that in the suit and throughout the civil proceedings, it was never contended and pleaded or proved that impugned order dated 14.10.1980 by the Revenue Officer was without jurisdiction, but on the contrary what is pleaded and emphasized is to the effect that order is illegal, arbitrary, malicious. Therefore, such judgment would not help the appellant to succeed in the appeal.
6. Learned counsel Mr.Patel is also relying upon Page 7 of 10 HC-NIC Page 7 of 10 Created On Fri Jun 10 02:56:06 IST 2016 C/SA/28/1995 CAV JUDGMENT the decision in Magiti Sesamel Vs. Pandab Bissoi & Ors. reported AIR 1962 SC 547. However, such judgment would also not help the appellant to succeed in the appeal for the simple reason that the issue in such judgment is pertaining to exclusion of jurisdiction of Civil Court pursuant to Orissa Tenants Protection Act, 1948 when Hon'ble Supreme Court of India has held that question of existence of relationship of landlord and tenant between the parties cannot be decided by the Revenue Officer, but only the Civil Court has jurisdiction. Therefore, when there is no such dispute or issue between the parties in the present case, even such judgment would not help the appellant. The appellant has also relied upon few more unreported judgments, which are touching the merits of the dispute between the parties, but not regarding the issue of jurisdiction of the Civil Court, wherein in its jurisdiction under Articles 226 and 227 of the Constitution, this Court has held that orders of the revenue authority regarding conversion of tenure without notice to the land owner, is bad in law. However, the fact remains that in all such judgments, practically, High Court was dealing with the final order of revenue authority under its Page 8 of 10 HC-NIC Page 8 of 10 Created On Fri Jun 10 02:56:06 IST 2016 C/SA/28/1995 CAV JUDGMENT constitutional writ jurisdiction under Articles 226 and 227, but not under its appellate jurisdiction in Second Appeal u/s.100 of the Civil Procedure Code. Therefore, all such judgments are not material to be recollected here and in any case, it would not help the appellant to succeed in the present Second Appeal. As against that, perusal of impugned judgment makes it clear that the Appellate Court has rightly dealt with all the issues wherein in paragraph 1 itself, the history of dispute and litigation between the parties was mentioned in detail. Therefore, I do not want to reproduce the entire history except to recollect that the dispute between the parties has been dragged upto the High Court in first round wherein appellant has also preferred an appeal before the Secretary (Appeals) being L&D/A.687/79, which was decided on 7.3.1980 setting aside the order of the Collector, Ahmedabad and remanded the matter back to the Collector and therefore, even if thereafter, Collector has again passed any order against the appellant, then, they have a remedy to challenge such order dated 14.10.1980 before the Secretary (Appeals) by filing an appeal. If such appeal is not preferred and if order is directly Page 9 of 10 HC-NIC Page 9 of 10 Created On Fri Jun 10 02:56:06 IST 2016 C/SA/28/1995 CAV JUDGMENT challenged before the Civil Court, then, pursuant to the provision of Section 11 of the Act, it becomes clear that Civil Court has no jurisdiction to entertain such suit. The learned Appellate Court has righly discussed all such issues in detail and rightly decided the issues in favour of the respondent - State that the trial Judge has committed an error in holding that the Civil Court has got jurisdiction to decide such suit.
7.Therefore, I do not see any fault in the impugned judgment so as to quash and set- aside the same or even to modify it in any manner whatsoever as prayed for. When I am endorsing the judgment of the Appellate Court, I do not want to reproduce its observations in detail.
8.In view of above facts and circumstances, the present Second Appeal stands dismissed.
9.In view of the order passed in Second Appeal, Civil Application does not survive and stands disposed of.
(S.G.SHAH, J.) binoy Page 10 of 10 HC-NIC Page 10 of 10 Created On Fri Jun 10 02:56:06 IST 2016