Delhi High Court
Kacheru vs Risal Singh on 21 April, 1970
Equivalent citations: 6(1970)DLT571
Author: H.R. Khanna
Bench: H.R. Khanna
JUDGMENT Prakash Narain, J.
(1) This judgment will dispose of two regular second appeals Nos. 263-D and 264-D of 1964 inasmuch as the question of law involved in both the cases is the same. Originally, both these appeals had come up for hearing before I. D. Dua, J, who by his order dated April 26, 1967 referred the matter to a larger Bench in view of the importance of the question involved.
(2) The facts in both the appeals are similar although the parties and the land in dispute are different. The plaintiffs-respondents were the proprietors of land in Village Hulabi Kalan, Delhi. The defendants-appellants were tenants of some of the plots of land of which the respondents were the owners. The appellants were evicted from the land in their possession sometime after July I, 1950 on ground other than for non-payment of rent. Thereafter there was consolidation of holdings in this village and the respondents were allotted plots of land other than those which were held by them prior to consolidation. The new holdings of the respondents also included plots of land in lieu of plots which were earlier under the tenancy of the appellants. After the enforcement of the Delhi Land Reforms Act, 1954 the appellants initiated two separate proceedings for restoration of the possession of land alleging that they had been dispossessed and evicted after July 1, 1950 and were, therefore, entitled to be put back in possession as they had been evicted for grounds other than for nonpayment of rent in view of the provisions of sub-section (2) of section 18 of the Delhi Land Reforms Act. These applications were heard by the Court of the Additional Revenue Assistant, Delhi, who by means of an order dated 19-8-1958 directed the appellants in one matter to be put back in possession of the entire land and in the other the entire land except khasra No. 1135/154. The respondents appealed against the orders in both the applications but in one of the matters in which khasra No. 1135/154 was not given to the applicants in that case they also filed a crossappeal. The appellate Court dismissed the appeals of the present respondents and accepted the cross-objections in respect of Khasra No. 1135/154. The result was that the applicants in both the proceedings succeeded in getting orders for restoration of possession under sub-section (2) of Section 18 of the Delhi Land Re- forms Act. Thereafter the present respondents filed their respective suits bearing Nos. 408 and 409 of 1962. In these suits the respondents raised various pleas and, infer alia, urged that the orders passed by the Revenue Assistant and the Chief Commissioner were without jurisdiction, ultra vires illegal and a nullity on the following grounds :-
"(A)The provisions of section 18(2) of Delhi Land Reforms Act are ultra vires, being ex-proprietory and discriminating based on no rational basis.
(B)The defendant was merely a tenant at will and not a non occupancy tenant as contemplated by section 18 of the Delhi Land Reforms Act.
(C)The relief in application made on 12-2-1955 by defendant related to old Khasra Numbers only which had ceased to exist and not to post consolidation kilas.
(D)The defendant was not evicted under any decree or order from khasra No. 1135/154 but surrendered possession himself much after eviction from other land by the Tehsildar effected on 8-6-1951.
(E)The eviction other than under decree or order do not fall u/s 13(2) of Delhi Land Reforms Act and the defendant was in arrears of rent also.
(F)The consolidation officer had no authority in this case to propose any kilas in lieu of old khasra no. specially when he had become functus officio nor a tenant at will is entitled to any substitute tenancy holding in consolidation nor defendant was tenant just before consolidation."
(3) The respondents had also contended in these suits that they were not liable to be dispossessed inasmuch as they had been granted Bhumindari rights under the Delhi Land Reforms Act and could be evicted from their holdings only if the requirements of section 76 of that Act were fulfillled. In consequence, the respondents had prayed for the issue of a perpetual injunction restraining the appellants from dispossessing them from the land in dispute in each of the suits.
(4) These suits were contested by the appellants who, inter alia raised the plea that the Civil Courts had no jurisdiction to try the suits as filed by the respondents. On the pleadings of the parties the trial Court framed the following issues :-
(5) Whether the orders, actions and proceedings of the Revenue Authorities are ultra vires and nullity for reasons stated in the plaint ?
2.Whether the plaintiffs are entitled to the reliefs of injunction claimed ?
3.Whether the suit is within time ?
4.Whether this Court has no jurisdiction to try and determine this suit ?
(6) The trial Court decided Issues 1 and 2 in favor of the present appellant but decided Issues 3 and 4 againgt them. In view, however, of its decision on Issues 1 and 2 the trial Court dismissed both the suits. Aggrieved from the judgment and decree of the trial Court the present respondents preferred appeals to the Court of Senior Sub Judge, Delhi. These appeals (R.C.A. 215 :]nd 216 of 1963) were allowed by the Additional Senior Sub-Judge, Delhi on September 1, 1964. Aggrieved by the judgment and decree of the trial Court the defendants-appellants preferred second appeals in the High Court.
(7) The first point for consideration in these appeals is whether on the facts disclosed, which are not in dispute, the jurisdiction of the civil Courts to entertain and try the suits as filed by the plaintiffs-respondents was barred by the provisions of the Delhi Land Reforms Act, 1954. For this purpose it will, therefore, he necessary to examine some of the provisions of that Act. Before, however, we proceed to read the relevant provisions it will he pertinent to observe that both the appellants and the respondents were asserting and enforcing rights created by and in view of "he Delhi Land Reforms Act. Prior to the enforcement of this statute there were two systems in force in Delhi, namely, the Punjab and Agra systems of tenancy laws. As the preamble of the Delhi Land Reforms Act, 1954 makes it clear this statute was enacted "lo provide for modification of Zamindari system so as to create an uniform body of peasant proprietors without intermediaries, for the unification of the Punjab and Agra systems of tenancy laws in force in the State of Delhi and to make provision for other matters connected therewith." The Act came into force on 20-7-1954 and repealed the Punjab Tenancy Act, 1887 as modified by the Punjab Act No. 9 of 1939, the Agra Tenancy Act, 1901, the Punjab Tenants (Security of Tenure) Act, 1950, the Punjab Land Revenue Act, 1887, in so far as its provisions were inconsistent with this Act, and the U.P. Land Revenue Act, 1901. It created only two types of holders of lands known as Bhumidars and Asamis and abolished all other types of tenures. Chapter Ii of this Act apart from creating these two types of tenures also laid down how these tenures were to be acquired or conferred. Chapter Iii dealt with the declaration of these tenures and tile rights which accrued under each tenure. The termination of intermediary rights in land was also provided along with its consequences. Section 22 laid down that a Bhumidar or Asami shall subject to the provisions of this Act have the right to the exclusive possession of land in his holding and to use land for any purpose connected with agriculture, horticulture or animal husbandry which included pisciculture, and poultry farming. Provision was also made regarding jurisdiction of the tenures or the use of land for purposes other than as set out in section 22. Section 76 provided that subject to the provisions of sections 33, 42, 46, 81, 86 and 87 no Bhumidar shall be liable to ejectment. These various sections deal res- pectively on restrictions on the transfers of land by a Bhumidar (Section 33) the consequence of and liability of ejectment If the transfer of land was made in contravention of section 33 (Section 42), the declaration that any transfer of land in contravention of the provision of section 33 shall be a void transfer and the person obtaining land on the basis of such transfer was liable to be ejected (Section 46), the liability of a Bhumidar or an, Asami to be ejected on a suit filed by the Gaon Sabha or the land-holder for using land for any purposes other than a purpose connected with agriculture, horticulture or animal husbandry (Section 81), the liability to ejectment of a Bhumidar at the instance of the Gaon Sabha in certain circumstances (section 86), and the liability to ejectment of persons from land of public utility on payment of compensation (section 87). Under Section 18(2) tenants evicted from land after 1-7-1950 were given certain rights. This section reads as under :
"NOTWITHSTANDINGany decree or order where a tenant of Sir or sub-tenant of tenants referred to in subsection (1) of section 10 or sub-tenant of tenants referred to in section 12 or a non-occupancy tenant referred to in clause (f) of sub-section (1) of section 13 was evicted from land after 1st July, 1950, on any ground other than for arrears of rent, "the tenant or the sub-tenant shall be entitled to regain possession thereof on his making an application in this behalf to the Revenue Assistant (and, shall on regaining possession have the same rights as he would have had but for such eviction decree or order): PROVIDED that the land is not in the possession of any other tenant in the fasli year immediately before the commencement of this Act."
(8) The idea obviously was that a tenant who had been evicted from land on any ground other than for arrears of rent should not be denied the right to be declared a Bhumidar on the enforcement of the Act on 20-7-1954 and so, such tenants were given the right of being put back in the same position as prior to eviction. For this purpose the tenant had to make an application to the Revenue Assistant. According to Shri Dalal, the learned counsel for the respondents, this right given to a tenant was in conflict with the right conferred upon a former proprietor of land declared Bhumidar who was entitled to the possession and undisturbed enjoyment of his tenure and could not be evicted except in circumstances set out in Section 76 of the Act and so would be in derogation of the rights given by Section 11 of the said Act. If that be so. it is urged, the respondents were entitled to bring a civil suit, irrespective of Section 185 of this Act which reads as under :-
"185(1)Except as provided by or under this Act no court other than a court mentioned in Column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof.
"(2)Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the schedule aforesaid.
(3)An appeal shall lie from the final order passed by a court mentioned in column 7 in the proceedings mentioned in column 3 to the court or authority mentioned in column 8 thereof.
(4)A second appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid."
(9) On a reading of this section and the schedule referred to therein it is apparent that under Entry 3 of the Schedule an application to regain possession under section 18 is to be moved to the Court of the Revenue Assistant and the first appeal is to go to the Court of the Deputy Commissioner and the second appeal to the Court of the Chief Commissioner, Delhi. Thus a hierarchy of court is created to consider the matter of restoration of possession to a tenant. Under section 186 of the Act a revenue court can frame an issue for being decided by the civil court if a question of title is involved and on receiving advice of the civil court lias to dispose of the matter in accordance with that advice. Section 191 of the Act gives power to frame rules and under which the Delhi Land Reforms Rules have been framed. Appendix Vi of these Rules makes provision for the procedure of Revenue Courts while section 190 itself provides that unless otherwise provided by or under columns 4 and 6 of Schedule I to the Act the provisions of the Indian Court Fees Act, 1870, the Code of Civil Procedure, 1908 and the Indian Limitation Act, 1908, shall apply, to the proceedings under the Delhi Land Reforms Act. Rule 15 of the Delhi Land Reforms Rules provided that an application under section 18 shall be in the form of a plaint complying with the rules laid down in orders Vi and Vii of the Code of Civil Procedure and apart from all the other particulars to be given in the said application what the rule call a plaint shall be accompanied by certified extracts of the Khasra and Khatauni for the years in question. On receiving this plaint the court of the Revenue Assistant is enjoined to hold a proper judicial enquiry and then pass necessary orders. Appendix Vi of the Delhi Land Reforms Rules, as already noticed earlier, further sets out provisions which leave no doubt in one's mind that applications under section 18 of the Delhi Land Reforms Act are to be heard by Revenue Officers in their capacity and acting as courts and not as Revenue Officers. It is in this view of the law in force that it has to be considered whether the suits brought by the respondents were such as could be tried by civil courts.
(10) Mr. Dalal, the learned counsel for the respondents, had urged that it is on a reading of the plaint as such that it has to be decided whether the suit was one which could be tried by the civil courts. He invited our attention to the plaints in the suits and urged that since he had challenged the vires of section 18(2) of the Delhi Land Reforms Act and the action of the Consolidation Officer in advising which land should be given to the tenants after the order being put back impossession had been passed by the Revenue Assistant which was under challenge and that these joints could be tried only by civil courts. Further, according to him, the conflict of rights' created by sections 11 and 18(2) of the Act could be decided only by the civil courts. According to him these were not matters within the competence of the Revenue Boards and so only a civil suit could be filed. The observations of the Privy Council in Secretary of States v. Mask and Company (67 Indian Appeals 222 were strongly relied upon. It is true, as observed by the Privy Council, in the case of Mask and Company, that the exclusion of the jurisdiction of the civil courts is not to be readily inferred. but that such exclusion must either be explicitly expressed or clearly implied and that the Courts would be relunctant to divest the civil courts of their jurisdiction unless so compelled to do by the provisions of any statute, all the same the circumstances of each case have to be seen to find out whether in that particular case the plaintiff can invoke the jurisdiction of a civil court. In the present cases it is not in dispute that the appellants were tenants under the respondents and had been evicted after July 1, 1954 so as to attract the provisions of Section 18(2) of the Act. In this view of the matter the Court of the Revenue Assistant undoubtedly had jurisdiction to entertain applications filed by the appellants under section 18(2). These had to be then tried like suits in view of the procedure laid down which is entirely in accord with the procedure for trial of civil suits and thus not only fair but in accordance with accepted principles and mode of trying a lis. From the decision of the Revenue Assistant appeals are provided again to courts which have to be heard according to established principles of jurisprudence and procedure. Thus all the pleas which the plaintiffs-respondents could raise by way of defense, to an application under section 18(2) could be tried by these courts. Mr. Dalal urged that even in such circumstances where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial' procedure, the civil court had jurisdiction to examine the case. For this contention he sought support from a decision of the Supreme Court in State of Kerala v. M/s N. Ramaswami Iyer and Sons . In our opinion the learned counsel has not appreciated the ratio of the decision cited by him. ln, fact it is clearly laid down by this very decision that "the jurisdiction of the Civil Court may be excluded expressly or by clear implication arising from the scheme of the Act. Where the legislature sets up a special tribunal to determine questions relating to rights or liabi- lities which are the creation of a statute, the jurisdiction of the civil court would be deemed excluded by implication." The Delhi Land Reforms Act has created the rights and liabilities which the parties to this litigation sought to enforce. As has been noticed earlien a whole hierarchy of courts has been created for the determination of the question relating to those rights and liabilities. In such an event and even on a plain reading of section 185 the jurisdiction of civil courts is ousted by implication. If the jurisdictional facts we not in dispute the hierarchy created by the Act itself would be die only one to which parties can have recourse. A Bench decision of this Court to which both of us were parties has laid down the law on this aspect quite clearly. In that case Shri Ghanaya and another v. Sim Nanka (R.S.A. 343 of 1967 decided by the Himachal Bench on 13-11-1969, it was laid down that where the revenue courts acted within and in accordance with the provisions of the statute the jurisdiction of the civil courts to entertain suits in respect of the question arising out of such rights and liabilit'.es as are determinable by those courts could be barred.
(11) The conflict between section 18(2) and section 11 to which Mr. Dalal adverted is really imaginary. The plea of the plaintiffsrespondents that in view of the rights conferred on them by section 11 and the prohibition contained in section 76 regarding eviction of Bhumidars they could not be deprived of their- holdings or any part thereof ignores the scheme of the Act and the opening words of Section 18(2) which would seem to have an overriding effect. There is no jurisdicational infirmity or lack of jurisdiction in a Revenue Assistant entertaining an application under section 18(2) in respect of land earlier declared to be in the Bhumidari of a proprietor. In any case it is not necessary to dilate on this aspect as this plea was open to the plaintiffs-respondents in the revenue by way of defense to the application under section 18(2) of the Act. If this plea was taken and rejected the decision would be final having been given by a competent court, if, however, this pica was not taken, it is not open to the plaintiffs-respondents to agitate a plea by way of a civil suit when that plea could be taken in the revenue courts.
(12) Regarding the challenge to the actions of the Consolidation. Officers, once again, the plea, in our opinion, is misconceived. It is settled law that on consolidation of holdings when new plots of land are given in lieu of the former ones held by a person the rights and liabilities attached to the earlier holdings stand transferred to the new holdings. If the tenants had the right to get back their preconsolidation holding that right would ensure to their benefit even after consolidation and would be applicable to new holdings.
(13) The challenge to the vires of section 18(2) was vis-a-vis the rights claimed by the respondents under section 11 and section 76 about which we have already commented above. Nothing further was urged in the plaint nor shown to us. The mere mention of a challenge to the vires of a statute or its provision is not a magic incantation to confer jurisdiction on a civil court to try the suit on the plea that when the vires of a statute is challenged it becomes a jurisdictional fact. The plea, therefore, as raised would not confer jurisdiction on the civil courts to try the suit. Indeed Mr. Dalal conceded that even if the civil court tried the suit once it came to the conclusion that section 18(2) was a valid piece of enactment, it must withhold its hand from trying the rest of the pleas. So, in the circumstances we are convinced that the trial of the plea as raised would have been a mere exercise in futility.
(14) In this view of the matter we are of the opinion that the civil courts did not have jurisdiction to entertain the suit. The result is that the appeals are accepted, the judgment and decree of the lower appellate court are set aside and the plaintiffs-respondents' suits are dismissed. The appellants will be entitled to their costs of these appeals.