Patna High Court - Orders
Smt.Basmati Devi vs Smt.Anju Kumari & Ors on 12 April, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3041 of 2012
Under Article 227 of the Constitution of India
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1. Smt.Basmati Devi Wife Of Shri Yogendra Sahni Resident Of Mohalla -
Rusulpur Saiyad Saleem, P.O.- Bhikhanpur, P.S.- Ahiyapur, District -
Muzaffarpur
.... .... Petitioner/s
Versus
1. Smt.Anju Kumari W/O Dr. Ram Krishna Mishra Resident Of Village -
Kachaur, P.S. - Sonbarsa, District - Sitamadhi, At Present Residing At
Mohalla - Rusulpur Saiyad Saleem, P.O. - Bhikhanpur, P.S.- Ahiyapur,
District - Muzaffarpur
2. Smt. Rasmi Devi Wife Of Ramphal Sahni Resident Of Mohalla -
Rusulpur Saiyad Saleem, P.O.- Bhikhanpur, P.S.- Ahiyapur, District -
Muzaffarpur
3. Shri Arun Kumar Sahni Son Of Hari Nandan Sahni Resident Of Mohalla
- Rusulpur Saiyad Saleem, P.O.- Bhikhanpur, P.S.- Ahiyapur, District -
Muzaffarpur
4. Shri Nanu Sahni Son Of Bhagela Sahni Resident Of Mohalla - Rusulpur
Saiyad Saleem, P.O.- Bhikhanpur, P.S.- Ahiyapur, District - Muzaffarpur
5. Tasaduk Ahmad Son Of Abdul Quadir Resident Of Mohalla - Rusulpur
Saiyad Saleem, P.O.- Bhikhanpur, P.S.- Ahiyapur, District - Muzaffarpur At
Present C/O Late Abdul Quadir , Mohalla - Moghalpura, Nawab Bahadur
Road, Patna City, Patna
6. Nessar Ahmed Son Of Abdul Quadir Resident Of Mohalla - Rusulpur
Saiyad Saleem, P.O.- Bhikhanpur, P.S.- Ahiyapur, District - Muzaffarpur At
Present C/O Late Abdul Quadir , Mohalla - Moghalpura, Nawab Bahadur
Road, Patna City, Patna
7. Bibi Husam Bandi Daughter Of Abdul Quadir Resident Of Mohalla -
Rusulpur Saiyad Saleem, P.O.- Bhikhanpur, P.S.- Ahiyapur, District -
Muzaffarpur At Present C/O Late Abdul Quadir , Mohalla - Moghalpura,
Nawab Bahadur Road, Patna City, Patna
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Shambhu Nath, Adv.
For the Respondent/s : Mr. Prabhat Kumar, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
3 12-04-2012Heard learned counsel for the petitioner and the learned counsel for the respondents.
2. The petitioner is challenging the order dated 9th December 2 Patna High Court CWJC No.3041 of 2012 2 / 15 2011 passed in T.S.No. 374 of 2011 by which the court below has rejected the petition filed by her challenging the jurisdiction of the civil court to proceed with the matter on the ground that earlier the same issue was raised under Bihar Land Disputes Resolution Act, 2009 (hereinafter, in short, referred to as the „BLDR Act‟) which was disallowed and at the same time, the court below by the same order has allowed the petition filed by the respondents and appointed an Advocate Commissioner to find out the physical feature of the disputed land.
3. The defendant is the petitioner and the respondents 1st set is the plaintiff in the court below. A suit has been filed vide T.S.No. 374 of 2011 in which the plaintiff had claimed title interest and possession over the land in question on the basis of a sale-deed executed in his favour on 3rd June 2005 whereas the defendant has claimed title on the basis of sale deed executed on 29th February 1992.
4. The petitioner filed a petition stating that before filing the suit, the plaintiff had filed Case No.4 of l2010-11 before the Deputy Collector Land Reforms (East) Muzaffarpur under Bihar Land Tribunal Act, 2009 and the parties have sought the same relief as mentioned in the suit. After hearings the parties, the learned D.C.L.R.(East), Muzaffarpur finally decided the matter on merit and passed the order date d 4 th April 2011 in favour of petitioner and against plaintiff-Respondent.
5. Learned counsel for the petitioner submitted that Section 18 of the Bihar Land Tribunal Act bars the jurisdiction, save and except otherwise provided under the Act as no Court except Patna High Court and the Hon‟ble Supreme Court of India shall have jurisdiction to entertain any proceeding to set aside or modify the any order or decision taken by the 3 Patna High Court CWJC No.3041 of 2012 3 / 15 authority under Bihar Land Tribunal Act or Rules made hereunder. As the issue has been settled in such a situation, the suit is fit to be dismissed on the point of jurisdiction only. Respondents did not file any rejoinder but only made submission stating that Civil Court is the only forum to adjudicate the dispute in the question. Further submission was made on behalf of plaintiff- respondents that the case was not filed under the Bihar Land Tribunal Act, 2009 rather it was filed under the BLDR Act, 2009 and there is no Section 18 as only seven teen sections are available in that Act. It has further been submitted that as the issue involved in the case was complex in nature as it related to adjudication of title and possession and as such, it was open to seek remedy before the competent civil court and it has been submitted that jurisdiction of civil court is not barred. It has been submitted that only the matter which relates to Schedule-I of the Act can only be decided by the Authority under BLDR Act and other disputes not related to items mentioned in Schedule-I, the Authority will not have jurisdiction under the BLDR Act to decide the issue relating to title of parties. Petitioner has claimed that it is a title dispute between the partiers which is complex in nature and, as such, under the BLDR Act, that issue cannot be decided.
6. In this case, learned counsel for the petitioner submitted that once the plaintiff has chosen a forum under the BLDR Act, which has decided the case against her and she did not prefer any appeal against that order, she cannot be allowed to go to the civil court which is not permissible in law. Before deciding the issue as has been raised in this case, it is necessary to examine the area of scope of BLDR Act and what nature of dispute can be decided by the authorities under the aforesaid Act. This Court will have to examine as to whether the Authority BLDR Act has jurisdiction 4 Patna High Court CWJC No.3041 of 2012 4 / 15 to decide the issue with regard to title of the parties.
7. The examination of the preamble of BLDR Act, will give aims and object of Act and a guideline about the area of jurisdiction of Authority with regard to power of the authority to decide the nature of the dispute.
The preamble of the BLDR Act is as follows:
"Preamble: -- Whereas, in the State of Bihar, disputes relating to record of rights, boundaries, entries in revenue records, unlawful occupation of Raiyati land and forcible dispossession of allottees and settlees of public land, generate problems and cause unnecessary harassment to bona fide allottees/settlees, raiyats or occupants;
Whereas, such dispute s with respect to Raiyati land or public land allotted in favour of different classes of allottees are unnecessarily occupying major space of Civil Courts and Hon‟ble High Court and which shall otherwise have been resolved by the Revenue Authorities, who may be better equipped to deal with such disputes having regard to their continued presence in the field offices and their expertise in Revenue Administration, Whereas, in larger public interest, it is deemed necessary to provide for effective and speedy mechanism to resolve such disputes which give rise to major turbulence if not addressed immediately and effectively;
And, whereas, it has been found in analysis of date relating to nature of disputes that they mostly appertain to matters connected with the Record of Rights, partition of Jamabandi, forcible dispossession of allottees/raiyats, boundary disputes etc. and in this 5 Patna High Court CWJC No.3041 of 2012 5 / 15 context, the administration of the following Acts is involved:
(1) The Bihar Land Reforms Act, 1950. (2) The Bihar Tenancy Act, 1985,
(3) The Bihar Privileged Persons Homestead Tenancy Act, 1947, (4)The Bihar Bhoodan Yagya Act, 1954, (5)The Bihar Land Reforms (Fixation of Ceiling and Acquisition of Surplus Land) Act, 1961, (6) The Bihar Consolidation of Holdings and prevention of Fragmentation Act, 1956.
And, whereas, different forums and procedures have been provided for the resolution of disputers under the above referred Acts and it is considered expedient to provide a uniform and common forum, procedure and mechanism which would achieve the objective of effective, efficacious and speedy resolution of dispute."
8. From the preamble it appears that this legislation has been brought to adjudicate the dispute connected with dispute in regard to matter connected with provisions of Acts mentioned in Schedule-I of the Act in regard to right arising from the aforesaid legislation. Aims and objects only provides the inner core of the Act but to find out the nature and scope of the Act this Court will have to examine the relevant Section of the Act which are as follows:
Section 4 of BLDR provides jurisdiction of Authority and the nature of dispute can be adjudicated under the Act.
"Section 4: Jurisdiction and Authority to Resolve Disputes.--(1) The Competent Authority shall have jurisdiction and 6 Patna High Court CWJC No.3041 of 2012 6 / 15 authority to hear and adjudicate, on an application or complaint or on any application referred to by a Prescribed Authority or officer any issue arising out of following types of disputes:--
a) Unauthorized and unlawful dispossession of any settlee or allottees from any land or part thereof, settled with or allotted to him under any Act contained in Schedule-1 to this Act by issuance of any settlement document/parcha by a Competent Authority;
b) Restoration of possession of settled/allotted land in favour of legally entitled settlee/allottee or his successors/heirs, upon adjudication of unauthorized and unlawful dispossession;
c) Threatened dispossession of a legally entitled settlee/allottee.
d) Any of the maters enumerated in (a), (b) and
(c) above appertaining to Raiyati land;
e) Partition of land holding;
f) Correction of entry made in the Record of Rights including map/survey map;
g) Declaration of the right of a person;
h) Boundary disputes;
i) Construction of unauthorized structure; and
j) Lis pendens transfer.
(2) The Competent Authority shall not have jurisdiction to review or reopen any finally concluded and adjudicated proceeding under any of the Acts contained in Schedule
1. The Competent Authority shall exercise his authority for resolving 7 Patna High Court CWJC No.3041 of 2012 7 / 15 the dispute brought before him on the basis of any final order passed by any of the authorities empowered to do so in the Acts contained in Schedule-1 of this Act.
(3) The competent Authority shall not have jurisdiction to adjudicate any fresh rights of allottee/settlee or a Raiyat which is not yet determined and is required to be determined in accordance with provisions contained in any of the Acts contained in Schedule-1:
Provided that where rights of allottee/settlee or Raiyat are already determined under any of the Acts contained in Schedule 1, the Competent Authority shall have jurisdiction to entertain case appertaining to matters enumerated in sub-section(1).
(4) Notwithstanding anything contained in subs-
section(2) and (3) hereinabove, if no provision is made in any of the Acts contained in Schedule-1 for determination of rights of allottee/settlee or Raiyat and claimed right is yet to be determined, it shall be open to the Competent Authority to finally determine such right.
(5) The Competent Authority, wherever it appears to him that the case instituted before him involves complex question of adjudication of title, he shall close he proceeding and leave it open to parties to seek remedies before the competent Civil Court.
Section.7: Summary disposal of Proceeding.--All proceedings under the Act shall be disposed off summarily in accordance with the provisions of the Act and rules framed under the Act.
8 Patna High Court CWJC No.3041 of 2012 8 / 15 Section.10: Cognizance of cases filed under this Act.--(1) Not other Court except the Courts mentioned in Schedule 2 shall take cognizance of a case filed under this Act."
9. There is no provision in BLDR Act which has barred the jurisdiction of Civil Court Sub-section(2) of Section 4 says that the competent authority shall exercise his authority for resolving the dispute brought before him on the basis of final order passed by any authority empowered to do so in the Acts contained in Schedule-I of the Act and sub- section(3) provides that the competent authority shall not have jurisdiction in the matter of , any fresh right to allottee, settlee or Raiyat which is not yet determined and is required to be determined in accordance with the provisions as contained in Schedule-I.
10. Further the proviso provided that the right of allottee or settlee or Raiyat already determined under any Act contained in Schedule-I the competent authority shall have jurisdiction to entertain such matter enumerated in sub-section(1) . Sub section-4 provides that if no provision is made in any of the Acts contained in Schedule-I for determination of right of allottee or settlee or Raiyat and it has yet to be determined, it shall be open to the authority to finally adjudicate and determine lis under BLDR Act. Section 4 itself shows that the authorities will have a jurisdiction to decide the dispute with regard to the matters arising from different Acts mentioned in Schedule-I of the Act and as such operations of area of the BLDR Act is confined to the Acts mentioned in the Schedule-I of the Act. The jurisdiction of the authority has been circumscribed to the extent that he will only see with regard to dispute arising from the Acts mentioned in the Schedule. That too, sub-clause(2) itself says that the authority under the 9 Patna High Court CWJC No.3041 of 2012 9 / 15 BLDR Act will only resolve the dispute on the basis of final order passed by the respective authority empowered to do so as mentioned in different legislations mentioned in the Schedule-I of the Act. Meaning thereby the authority will act upon with regard to the dispute arising from the Acts mentioned in the Schedule-I of the Act. It further provides that the authority shall not have a jurisdiction to adjudicate any fresh right of the pities which has not yet been determined and is required to be determined in accordance with the Acts mentioned in the Schedule. It has further been provided, the complex question would be referred to Civil Court for adjudication. So the authority under the BLDR Act has a very limited jurisdiction and only sub- clause(4) provides that if no mechanism has been provided under any of the Acts, mentioned in the Schedule-I of the Act, only then the authority will have jurisdiction to decide issue arising . Section 7 of the Act shows that it is a summary proceeding and the authority has limited adjudicatory power and area of operation. On conspectus of the aforesaid provisions of the Act, it is apparent that the authorities have limited power only with regard to the Acts mentioned in Schedule-1 and that too, when any final order has been passed by the authority. Basically under the BLDR Act DCLR has been assigned the job as an implementing Agency of the orders passed under any Act mentioned in the schedule-I of the BLDR Act. The BLDR further provides complex question is to be referred to Civil Court.
11. It is well known principle of law that the ouster of Civil Court‟s jurisdiction is not to be easily inferred. Where a particular Act/Statute creates a right and also provides a forum for enforcement of such right and oust the jurisdiction of Civil Court, the ouster of the jurisdiction of Civil Court will apply. Where the Statute neither creates the right in question 10 Patna High Court CWJC No.3041 of 2012 10 / 15 nor provides any remedy for the created right dispute arising out of such right and in that situation the jurisdiction of the Civil Court cannot be deemed to have been ousted.
12. The Supreme Court in (1968)3 SCR 663 (Dhulabhai v. Madhya Pradesh) was considering the issue with regard to ouster of jurisdiction of civil court and summarized when the jurisdiction of Civil Court will be deemed to have been ousted. Primarily the Court was of the view that if either expressly or impliedly jurisdiction has been ousted then only, in that circumstance, the court can infer that the jurisdiction of the Civil Court has been excluded.
13. The Hon‟ble Supreme Court in Premier Automobiles v. K.S.Wadke, AIR 1975 SC 2238 was considering the similar issue of ousting the jurisdiction of Civil Court, the Court has summarized its view in the following term:-
"Para 23: To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus:
(1) Of the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the civil Court.
(2) If the dispute is an industrial dispute, arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
11 Patna High Court CWJC No.3041 of 2012 11 / 15 (3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be."
14. In this connection, a case reported in (1994)1 SCC 611 (Saraswati v. Lachanna) is relevant where the Hon‟ble Supreme Court has refused to accept the contention that the jurisdiction of the Civil Court has been ousted and has stated as follows:-
Para 7:
"Where a particular Act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil court then ouster of the civil court jurisdiction has to be upheld. But the situation will be different where the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out of such right or liability is provided. In such a situation, the ouster of the civil court‟s jurisdiction is not to be easily inferred. Recently, this court in the case of Shiv Kumar Chadha v. Municipal Corpn. of Delhi,(1993)3 SCC 161 has examined the aforesaid question in detail."
In this view of discussions made above, in the present case, neither right has been created under the Statute nor forum similar to of the 12 Patna High Court CWJC No.3041 of 2012 12 / 15 Civil Court is available the jurisdiction of Civil Court cannot be inferred to have been excluded as in this Act primarily it has been made to adjudicate the dispute concerning the Acts which have been mentioned in Schedule-I and that too where the authorities have already decided the dispute. Sub- clause(5) of Section 4 of the said Act provides that in a case of complex question of facts, the authorities will refer the matter to the Civil Court. In this view of the matter, dispute of title and declaration of possession is a complex subject matter which cannot be decided without there being full dressed trial as deciding the dispute the court will have to take oral and documentary evidence and on analysis of the same, court will come to final conclusion. Nature of power that has been conferred to Authority under BLDR Act, authorities have limited jurisdiction and have no jurisdiction to entertain the case with regard to title of the parties. Only the Civil Court has the jurisdiction to adjudicate the dispute relating to title and possession of parties. Under the BLDR Act the authorities have to decide the case in a summary way whereas deciding the title and possession of parties requires thorough enquiry by way of taking evidence to find out the right of the parties.
15. Learned counsel for the petitioner has submitted that when the plaintiff had filed this case under the BLDR Act, they had objected and raised jurisdiction of authority but plaintiff remained stick to that forum and the case has been decided against them, now she cannot turn round and move to the Civil Court for adjudication on same subject matter. It is well settled that if the authority or court has no jurisdiction, even with the agreement of the parties, jurisdiction cannot be conferred on court/authority the jurisdiction and any order passed by the authority having no jurisdiction is a 13 Patna High Court CWJC No.3041 of 2012 13 / 15 void order.
16. In that connection, a judgment reported in AIR 2005 SC 4446 (Harshad Chiman Lal Modi v. D.L.F.Universal Ltd.) will be relevant wherein in the Hon‟ble Supreme Court held as follows:
"We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction;
(ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing.
Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity.
In Halsbury's Laws of England, (4th edn.), Reissue, Vol.10; para 317; it is stated;
317. Consent and waiver - Where, by reason of any limitation imposed by statute, charter or commission, a court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled. Where the court has jurisdiction over the particular subject matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a defendant by entering an appearance without protest, or by taking steps in the proceedings may waive his right to object to the court taking 14 Patna High Court CWJC No.3041 of 2012 14 / 15 cognizance of the proceedings. No appearance or answer, however, can give jurisdiction to a limited court, nor can a private individual impose on a Judge the jurisdiction or duty to adjudicate on a matter. A statute limiting the jurisdiction of a court may contain provisions enabling the parties to extend the jurisdiction by consent."
In Bahrein Petrolem Co., this Court also held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. It is well-settled and needs no authority that 'where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing'. A decree passed by a court having no jurisdiction is non-est and its validity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice. AIR 1966 SC 634.
In Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117:
AIR 1954 SC 340, this Court declared;
"It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction ........... strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties".
17. In view of aforesaid discussion, this Court is of the view that the authorities under the BLDR Act have no jurisdiction to adjudicate the dispute of title, the Authorities under BLDR can adjudicate the matter concerned with the Acts mentioned in Schedule-I of the Act. It is further to hold that the jurisdiction of Civil Court can only be excluded when the Act 15 Patna High Court CWJC No.3041 of 2012 15 / 15 itself has created a right and has provided the forum for remedy but here it is a dispute of title and, as such, the jurisdiction of the Civil Court cannot be taken away so much so that there is no mechanism provided under the Act for complete adjudication of the dispute, rather the authorities will decide the dispute by adopting summary methods and any order passed by the authority deciding the title is void, even if the plaintiff has gone there that will not estop the plaintiff to get final adjudication of title by the Civil Court.
18. In this view of the matter, this Court does not find any merit in this petition. It is, accordingly, dismissed.
Jay/- (Shivaji Pandey, J)