Himachal Pradesh High Court
Lachman vs State Of Himachal Pradesh And Others on 11 September, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
FAO No.101 of 2011.
Reserved on : 05.09.2018.
Date of decision: 11th September,2018.
Lachman .....Appellant/Plaintiff.
Versus
State of Himachal Pradesh and others
r ....Respondents/Defendants.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the Appellant : Mr. Romesh Verma, Advocate.
For the Respondents : Mr.Vinod Thakur, Additional
Advocate General with Mr.
Bhupinder Thakur, Deputy
Advocate General, for
respondents No.1 to 3.
Mr. G.R.Palsra, Advocate, for
respondents No.4 to 7, 9(i) to
9(v), 10 and 11.
Tarlok Singh Chauhan, Judge
On 21.08.2018, this Court passed the following
orders:-
1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes
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2
"Heard. Apart from deciding the merits of the case, the
learned trial Court has concluded that it has no jurisdiction in
view of the judgment rendered by this Court in Duglu Ram
.
and others versus State of H.P. and others, 1998 (2) Shim.
L.C. 98. A perusal of the aforesaid judgment would reveal that
the learned Single Judge of this Court has held that the Civil
Court has no jurisdiction to entertain the matters regarding
grant of 'Nautor' under the 'Nautor Scheme', 1975, by
concluding as follows:-
"9. The matter can be examined from another angle.
Although there is no such plea in the pleadings of the parties
and no issue has been framed, but the fact remains that
admittedly the impugned order of the Collector could be
r challenged by way of revision under relevant rules. The
same not having been done and the present suit having
been filed, it was liable to be dismissed on that score alone.
It is settled law that where a specific statute or rules provide
for a remedy by way of appeal or revision, etc. then unless
that remedy is exhausted, the party cannot approach the
Civil Court except in cases where the impugned action is
without jurisdiction or sufficient cause being shown that the
remedy thus provided could not be availed of. Neither of the
two situations exist in the present case."
Evidently, the learned Single Judge has while deciding
the question of jurisdiction equated the non-statutory scheme
of 1975 as if the same was a statutory scheme. Therefore, I
am of the considered opinion that the view as taken by the
learned Single Judge may not be the correct law.
The learned counsel for the parties are directed to
assist this Court on this point on the next date of hearing.
List on 04.09.2018."
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3
2. It is not in dispute that the 'Nautor Scheme' 1975 is a non-
.
statutory scheme and there is no provision in the said scheme on the
basis of which it can be inferred/gathered that the jurisdiction of the
Civil Court is expressly or by necessary implication barred. However,
even if, there was such ouster so provided in the scheme, would that
have any force, especially, when the scheme is not framed under any
statute, is one of the question that will require consideration.
3. Section 9 of the Code of Civil Procedure reads thus:-
"9. Courts to try all civil suits unless barred
The Courts shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting suits
of which their cognizance is either expressly or impliedly
barred.
1
Explanation: [I] A suit in which the right to property or to an
office is contested is a suit of a civil nature, notwithstanding
that such right may depend entirely on the decision of
questions as to religious rites or ceremonies.
2
[Explanation II: For the purposes of this section, it is
immaterial whether or not any fees are attached to the office
referred to in Explanation I or whether or not such office is
attached to a particular place.]"
4. The learned Single Judge (Hon'ble Surinder Sarup, J.
(retd.) of this Court in Duglu Ram and others versus State of H.P. and others, 1998 (2) Shim. L.C. 98. while dealing with the 'Nautor ::: Downloaded on - 11/09/2018 23:01:30 :::HCHP 4 Scheme' held that it was settled law that where a specific statute or rules provide for a remedy by way of appeal or revision, etc. then .
unless that remedy is exhausted, the party cannot approach the Civil Court except in cases where the impugned action is without jurisdiction or sufficient cause being shown that the remedy thus provided could not be availed of and on this score held the suit assailing therein the order passed by the Collector under the scheme being illegal, null and void and without action to be not maintainable.
5. It is apt to reproduce the relevant observations made in paragraph-9 of Duglu Ram's case (supra) which reads thus:-
"9. The matter can be examined from another angle. Although there is no such plea in the pleadings of the parties and no issue has been framed, but the fact remains that admittedly the impugned order of the Collector could be challenged by way of revision under relevant rules. The same not having been done and the present suit having been filed, it was liable to be dismissed on that score alone. It is settled law that where a specific statute or rules provide for a remedy by way of appeal or revision, etc. then unless that remedy is exhausted, the party cannot approach the Civil Court except in cases where the impugned action is without jurisdiction or sufficient cause being shown that the remedy thus provided could not be availed of. Neither of the two situations exist in the present case."::: Downloaded on - 11/09/2018 23:01:30 :::HCHP 5
6. Before proceeding further, it would be necessary to make note that the judgment in Duglu Ram's case (supra) came up for .
consideration before another learned Single Judge (Hon'ble Justice Kuldip Singh, J.(retd.) of this Court in State of H.P. versus Yashwant Singh and others, Latest HLJ 2011 (HP) 234 and the said judgment was distinguished by observing as under:-
"10. It is thus clear that exclusion of jurisdiction of civil court is not readily to be inferred unless the conditions mentioned by the Supreme Court in Dhulabhai case (supra) are fulfilled. In the present case, the Deputy Commissioner as well as Divisional Commissioner have not considered the eligibility of respondent Yashwant Singh under Rule 7 in accordance with law. Both the authorities have given their judgements on the basis of resident of `village' and not of resident of `estate'. The fundamental requirement of eligibility has not been considered by the said two authorities. The substantial rights of respondent Yashwant Singh were involved. He had no other remedy but to assail the orders of Deputy Commissioner and Divisional Commissioner before the civil Court. In these circumstances it cannot be said simply because remedy of appeal and revision are provided in the Rules, therefore, jurisdiction of civil court is impliedly barred under the Rules. The trial before the civil court has caused no prejudice to any party inasmuch as the civil court has decided the lis by affording opportunity to both the sides. `Duglu Ram' (supra) is not applicable in the facts and circumstances of the case. In `Duglu Ram' , the allotment was made under the H.P. Grant of Nautor Land to Landless persons Scheme 1975, whereas in ::: Downloaded on - 11/09/2018 23:01:30 :::HCHP 6 the present case, the allotment was made under the Rules. The appellants have failed to make out a case that civil court has no jurisdiction. The two courts below have rightly recorded .
a finding that civil court has jurisdiction to try the suit. There is no merit in the appeals. The substantial question of law referred above is decided against the appellants in both the appeals."
7. However, the moot question is whether the judgment in Duglu Ram's case (supra) can be said to be laying down the correct law, more particularly, in light of the fact that the 'Nautor Scheme' is a non-statutory scheme.
8. Section 9 of the Code of Civil Procedure as quoted above provides that the Courts shall, subject to the provisions contained in the CPC have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
9. It is well settled that the provisions barring the jurisdiction of Civil Courts should be strictly construed and unless there is a specific provision barring the jurisdiction of Civil Courts, the Courts cannot infer bar of jurisdiction by a process of implied reasoning.
10. It is equally settled that the jurisdiction of the Civil Courts to try suits of civil nature is very expensive. It is only when there is a provision in any statute which excludes such jurisdiction that may in a given circumstance the party has an exception to the general rules ::: Downloaded on - 11/09/2018 23:01:30 :::HCHP 7 that all suits shall be tried by the Civil Court. However, any such exception can be readily inferred by the Courts. The Courts will lean in .
favour of the construction that would upheld the retention of the jurisdiction of the Civil Courts and shift the onus of proof to the party that asserts that the Civil Courts' jurisdiction is ousted. Even, in a case, where the statute causes finality to the order passed by the Tribunal, the Court will have to see whether Tribunal has power to grant reliefs which the Civil Courts normally grant in a suit filed before them. If the answer is in the negative, exclusion of the Civil Court jurisdiction would not be readily inferred.
11. The principles barring on the question as to when the exclusion of Civil Court jurisdiction can be inferred have been indicated in several judicial pronouncements. A reference can be made to the celebrated decision of the Hon'ble Privy Council in Secretary of State versus Mask and Company, AIR 1940 PC 105 wherein it was observed that "it is settled law 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. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have ::: Downloaded on - 11/09/2018 23:01:30 :::HCHP 8 not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure."
.
12. However, locus classicus on the subject is the judgment of the Constitution Bench of the Hon'ble Supreme Court in Dhulabhai etc. versus State of Madhya Pradesh and another, AIR 1969 SC 78, wherein the Hon'ble Supreme Court discussed the ambit of Section 9 of the CPC and laid down the following principles:-
"(1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, ::: Downloaded on - 11/09/2018 23:01:30 :::HCHP 9 and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund' of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for. the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
13. Therefore, it is a fundamental presumption in statutory interpretation that ordinarily the Civil Courts have jurisdiction to decide ::: Downloaded on - 11/09/2018 23:01:30 :::HCHP 10 all matters of civil nature. As a corollary, (i) provisions excluding the jurisdiction of Civil Court receives strict construction (see: H. H. the .
Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur versus The State of Rajasthan and others AIR 1964 SC 444; M/s Raichand Amulakh Shah and another versus Union of India AIR 1964 SC 1268) and (ii) provisions conferring the jurisdiction on authority and tribunal other than Civil Courts (see: Kasturi and Sons (Private) Ltd. versus N. Salivateswaran and another AIR 1958 SC 507, Upper Doab Sugar Mills Ltd. Shamli (U.P.) versus Shahdara (Delhi) Saharanpur Light Railway Company Ltd., Calcutta AIR 1963 SC 217) have to be strictly construed.
14. As observed earlier and is otherwise not disputed that the scheme in question is a non-statutory scheme and the objection regarding Civil Court having no jurisdiction appears to be raised on the basis of the letter dated 21.01.1987 addressed by the Secretary (Revenue) to the Government of Himachal Pradesh which reads thus:-
"No. Rev. 2A(3) 11/77 IMMEDIATE
Government of Himachal Pradesh
Revenue Department
From
1. The Secretary (Revenue) to the
Government of Himachal Pradesh.
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To
.
1. The Divisional Commissioner Kangra at Dharamshala/ Mandi/Shimla.
2. The Settlement Officers Kangra at Dharamshala/Shimla-6.
3. The Director of Land Records, Himachal Pradesh, Shimla.
4. The Director Consolidation of Holdings, Himachal Pradesh, Shimla.
5. All the Deputy Commissioners in Himachal Pradesh.
6. All the Sub Divisional Officers (Civil) in Himachal Pradesh.
7. All the Tehsildars in Himachal Pradesh.
Dated Shimla-171002, the 21st January,1987.
Subject:-Allotment of land to landless and other eligible persons-
Jurisdiction of Civil Courts to entertain suits arising therefrom.
Sir, I am directed to say that at present land is being allotted to the landless or other eligible persons under the following three Schemes:-
1. The Himachal Pradesh Utilization of Surplus Area Scheme, 1975.
2. The Himachal Pradesh Village Common Land Vesting and Utilization Scheme,1975.
3. The Himachal Pradesh Grant of Land to Landless and Other Eligible Persons Scheme, 1975.
2. In this behalf, as you know, the first two Schemes are statutory schemes and have been framed under the Acts passed by the Himachal Pradesh State Legislature. However, the third, namely the Nautor Scheme is an independent one and does not derive sanction from any other law. You are also aware that these Acts contain a provision barring the jurisdiction of the Civil Courts. It is, therefore, implied that a dispute arising out of the allotment of land or cancellation thereof by the competent authority is not subject to adjudication by the Civil Courts whose jurisdiction stands barred in the Acts. It has, however, been noted by the Government that cases are being taken to Civil Courts by the interested parties and the courts are entertaining them for decision totally disregarding the bar contained in the Acts. As you know, the very purpose of launching ::: Downloaded on - 11/09/2018 23:01:30 :::HCHP 12 the programme of allotment of land is defeated once a case goes to the court since it takes a lot of time there and the person concerned who often not eligible for allotment of land, continues in possession of the land erroneously alloted to him.
.
3. It appears that the District Attorney or other Officers are not well posted of this provision do not often raise this point before the Courts at the time of admission of the suits. It should be brought home to all concerned that the civil Courts have no jurisdiction to try the cases arising out of the H.P. Ceiling on Land Holdings Act, 1972, or the H.P. Village Common Lands Vesting and Utilization Act, 1974 and those cases where the land has been allotted under the two schemes namely The Himachal Pradesh Utilization of Surplus Area Scheme and the Himachal Pradesh Village Common Land Vesting and Utilization Scheme. A copy of these schemes should be made available to all Law Officers who are concerned with the defence of the cases arising out of the above two Schemes and they should be instructed to take the plea of jurisdiction in the Courts invariably. Where however the courts still entertain the cases, an appeal should be filed in the next court against this decision until the issue has been finally settled once for all.
4. As regards the cases of allotment of land under the third scheme, namely the Himachal Pradesh Grant of Land to Landless and Other Eligible Persons Scheme, suitable arrangements are being made to strengthen the hands of the authorities concerned in this behalf also.
Please acknowledge receipt.
Yours faithfully, sd/-
Secretary (Revenue) to the Government of Himachal Pradesh.
(Copy with 10 spare copies to the Superintendent Incharge, allotment of land to landless and other eligible persons in Revenue Branch-B, for record)."
15. Since the Adjudicatory Authority is not created or constituted under a statute, it can at best be considered or termed to ::: Downloaded on - 11/09/2018 23:01:30 :::HCHP 13 be an alternative settlement mechanism and, therefore, such alternative settlement mechanism, is established by the Government .
by way of a scheme at best would be in the nature of departmental remedy which obviously cannot oust the jurisdiction of the Civil Court.
16. In view of the aforesaid discussion, I find it extremely difficult to concur and agree with ratio of the judgment rendered by the learned Single Judge of this Court in Duglu Ram's case (supra) that the Civil Court has no jurisdiction even though the scheme is a non-
statutory scheme. Accordingly, the following question is referred for adjudication by a larger Bench:-
Whether the jurisdiction of the Civil Courts can be held to be barred in matters arising out of 'Nautor Scheme' 1975 which admittedly is a non-statutory scheme?
17. Accordingly, the Registry is directed to place the papers before Hon'ble the Acting Chief Justice for constitution of a larger Bench.
(Tarlok Singh Chauhan) 11 th September, 2018. Judge (krt) ::: Downloaded on - 11/09/2018 23:01:30 :::HCHP