Madhya Pradesh High Court
Datar Singh vs State Of M.P. And Ors. on 2 September, 1997
Equivalent citations: 1997(2)MPLJ393, 1998 A I H C 256, (1997) 2 MPLJ 393 (1998) 2 LACC 546, (1998) 2 LACC 546
JUDGMENT T.S. Doabia, J.
1. The brief facts which led to the filing of the suit out of which this appeal has arisen be noticed :
The land in the hands of one Kammod Singh father of the appellant in this appeal was declared surplus. The plea taken by him before the revenue authorities was that his son i.e., the appellant, Datar Singh, being a major, he is entitled to some more land was negatived. An order to this effect was passed by the Competent Authority on 26th October, 1983. It was specifically mentioned in the order that on the material available with the competent authority, Datar Singh was a minor. His age was below 18 years. Accordingly, land to the extent of 3.790 hectares was declared surplus. This order passed by the competent authority was challenged in the civil suit out of which this appeal has arisen.
2. The trial Court came to the conclusion that it has no jurisdiction to proceed with the suit on account of provisions contained in Section 46 of the Madhya Pradesh Land Ceiling on Agricultural Holdings Act, 1960 (hereinafter referred to as the Act). The matter was taken up in appeal. The appellate Court agreed with the conclusions arrived at by the Court below and came to the conclusion that bar of section 46 of the Act would be attracted. It is this judgment and decree passed by both the Courts below which is being impugned in the present second appeal.
3. According to the learned counsel for the appellant, the above provision would not be attracted because of the provisions contained in Section 11(5) of the Act.
4. The provisions of Section 11(4) and (5) of the Act as there existed before Amendment Act No. 8 of 1989, be noticed.
"11. Preparation of statement of land held in excess of the ceiling area.
*** *** *** (4) If while considering the objections received under Sub-section (3) or otherwise, the competent authority finds that any question has arisen regarding the title of a particular holder and such question has not already been determined by a Court of competent jurisdiction the competent authority shall proceed to enquire summarily into the merits of such question and pass such orders as it thinks fit:
Provided that if such question is already pending for decision before a competent Court the competent authority shall await the decision of the Court.
(5) The order of the competent authority under Sub-section (4) shall not be subject to appeal or revision, but any party may, within three months from the date of such order institute a suit in the civil Court to have the order set aside, and the decision of such Court shall be binding on the competent authority, but subject to the result of such suit if any, the order to the competent authority shall be final and conclusive."
5. It be seen that if a title dispute was settled Under Section 11(4), then a right was given to a party to approach the civil Court under Section 11(5) of the Act.
6. In the present case, there is no title dispute arises at all. The dispute was only as to whether Kammod Singh is entitled to extra land on account of the fact that his son, Datar Singh, appellant was a major on the appointed day as indicated in the aforementioned Act. As indicated above, the competent authority came to the conclusion that Datar Singh was a minor, and therefore, the father of the appellant, Kammod Singh was not entitled to retain extra land.
7. Thus, there was no dispute as to title, and therefore, the view expressed by the Court below that the bar created under section 46 of the Act, would be attracted is a view to which no exception can be taken. Kammod Singh, original land owner could have challenged the order passed by the competent authority on 26th October, 1983, before the revenue hierarchy. This was not done.
8. By placing reliance on a decision given by this Court in the case reported as Rengati v. Rupdevi Kumari, 1997 RN 276 it is urged that there is no absolute bar to the entertainment of civil suit even if there exists a provision in the shape of Section 46 of the Act. It be seen that in the above case, notice was not given to the person concerned and it was in these circumstances, this Court expressed an opinion that the jurisdiction of the civil Court would not be barred. This decision does not advance the case of the plaintiff/appellant.
9. It is settled law that if an order is passed by an authority constituted under the statute without affording opportunity of hearing and without issuing notice, then the civil Court would have jurisdiction. See : the Full Bench decision of Punjab and Haryana High Court in the case reported as State of Haryana v. Vinod Kumar, AIR 1986 P&H 407. In this case, the land was declared surplus under the Punjab Security of Land Tenures Act, 1953. This was done without giving hearing to the land owners. The Full Bench expressed an opinion that the civil Court would have jurisdiction and the bar created under section 25 of the Punjab Act, would not operate. As a matter of fact, the law is well settled in this regard, the civil Court would have jurisdiction when an order is passed without affording hearing or the person who passed the order had no authority to pass such an order. See : (i) Dhula Bhai v. State of M.P., 1969 MPU 1 (SC) = AIR 1969 SC 78, (ii) B. M. Lakhani v. M. C. Malkapur, AIR 1970 SC 1002, (iii) Munshi Rani v. Chheharta M. C, AIR 1979 SC 1250, (iv) Firm Seth Radha Krishan v. Administrator, M. C. Ludhiana, AIR 1963 SC 1547, Firm Suraj Mal v. Municipal Board, Ganganagar, AIR 1979 SC 246, and (iv) Swadeshi Industry Ltd. v. Administrator, Panihati Municipality, AIR 1959 Cal. 411. As a matter of fact, such an opinion was expressed by the Privy Council in the early Forties, in the case reported as Secretary of State v. Mask and Company, AIR 1940 PC 105. It was observed that the civil Courts have jurisdiction where the statutory tribunal "has not acted in conformity with the fundamental principles of judicial procedure."
10. In the present case, the position is different. Kammod Singh, father of the appellant was afforded an opportunity of hearing and an order was passed after complying with the principles of natural justice. Thus, all that can be said is that a wrong order has been passed by the competent authority. This is not an order which can be said to have been passed without authority. As such, the civil Court would have no jurisdiction.
11. The other argument raised by the learned counsel for the appellant be seen.
12. It be seen that the original Act was amended in 1989. The proviso to Sub-section (4) of section 11, was omitted. Sub-section (5) of section 11, was also amended. The amended provision reads as under :
"The order of the competent authority under Sub-section (4) shall subject to decision in appeal or revision be final and conclusive."
13. I am of the opinion that the amendment made in the Act of 1960, does not improve the situation. Under the Act as it existed prior to this amendment by Act No. 8 of 1989, a party could go to the civil Court in terms of Sub-section (5). Now, that opportunity also not available. Even on the basis of the amended provisions, the appellant had no right to file the suit in the civil Court.
14. This appeal is therefore found to be without merit and the same is dismissed. The appellant may if he so wishes may approach the revenue authorities. If this course is adopted within thirty days, then the State shall not raise objection to the resorting of departmental remedies on the ground of limitation. This is because, the provisions of section 14 of the Limitation Act, 1963, can come to the rescue of the appellant. He has been availing the remedy in the Civil Court. Accordingly, as indicated above, this appeal is dismissed leaving the appellant to pursue his remedies before the forums created under the State.