Madhya Pradesh High Court
State Of Madhya Pradesh And Anr. vs Gyasiram And Ors. on 19 November, 1992
Equivalent citations: AIR1993MP155, 1993(0)MPLJ503, AIR 1993 MADHYA PRADESH 155, (1993) MPLJ 503
JUDGMENT S.M. Dubey, J.
1. In this petition, under Article 227 of the Constitution of India, the State of Madhya Pradesh has raised a question for decision whether a suit, where a dispute arises between the State Government and any person in respect of any right under Section 57(1) of the M.P. Land Revenue Code, 1959 (for short, the 'Code') is cognizable by civil Court in view of Section 57(2) of the Code, which vests jurisdiction in Sub-Divisional Officer for deciding such dispute.
2. Material facts leading to this petition are thus :
The respondents Nos. 1 to 5/plaintiffs filed a suit averring therein that the plaintiffs are in settled possession since last 65 years as owner and have perfected their title by adverse possession over agricultural land, situated at Survey No. 565, area 14 biswas, in village Jouri, Tehsil and District Morena. It is only on 30th May, 1989 the plaintiffs came to know that in revenue records, the State is recorded as owner of the land, this entry is against the rights and title of the plaintiffs, therefore, they be declared as owner of the suit land and the orders dated 18-10-1989 and 19-10-1989 for granting lease of the suit land in favour of the petitioner No. 2 the Department of Commerce and Industries/ defendant for setting up industries be declared as illegal and ineffective and a permanent injunction be issued against the defendants, restraining them not to interfere with the possession of the plaintiffs. The petitioners/defendants in their written-statement took the defence that the land is of the ownership of the State, the plaintiffs by a stray and single entry in the revenue record of Samvat 2046 in Col. 12 as that of trespassers, are not entitled to claim declaration of ownership as against the State. A plea about the maintainability of the suit in the Civil Court, based on Section 57(2) of the Code was also raised.
3. The trial Court decided the preliminary issue and held that the suit was not cognizable by the Civil Court. The respondents/plaintiffs preferred a revision, wherein, the order was reversed holding that suit for declaration of title and for permanent injunction was not barred Under Section 57(2) of the Code. Aggrieved by the order of the revisional Court, the Petitioners have approached this Court under Article 227 of the Constitution of India.
4. Shri R.A. Roman, Government Advocate for the petitioners and Shri R. D. Jain, counsel for the respondents-plaintiffs heard.
5. Before the enforcement of the Code on 2-10-1959 in the State of Madhya Pradesh, different laws dealing with land revenue, land tenure and other matters relating thereto in the different regions of the State were in force. Therefore, to consolidate and amend the law relating to land revenue, the powers of Revenue Officers, rights and liabilities of holders of land from the State Government, agricultural tenures and other matters relating to land and the liabilities incidental thereto in Madhya Pradesh, the legislature enacted the Code.
6. Section 57 of the Code declares the ownership in all types of land in the State Government, Section 57,reads thus :
"57. State ownership in all lands-- (1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government.
Provided that nothing in this section shall, (save as otherwise provided in this Code) be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property.
(2) Where a dispute arises between the State Government and any person in respect of any right under Sub-section (1) such dispute shall be decided by the Sub-Divisional Officer.
(3) Any person aggrieved by any order passed under Sub-section (2) may institute a Civil suit to contest the validity of the order within a period of one year from the date of such order.
(3-A)(a) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908), no civil Court shall, in a civil suit instituted under Sub-section (3) or after 24th October, 1983, by order of temporary injunction disturb the person to whom possession is restored under Section 250 if such person furnishes a reliable surety to recompensate the aggrieved party against any loss in case the Civil Court grants a decree in favour of the aggrieved party:
Provided that no surety shall be required to be furnished by a member of a tribe declared to be an aboriginal tribe under Sub-section (6) of Section 165;
(b) Where a civil Court by an order of temporary injunction disturbed the person referred to in Clause (a) on or after 24th October, 1983, but before the publication of Revenue Department's Notification No. 1-70-VII-N-2-83, dated 4th January, 1984, such order shall abate on such publication and the Tehsildar shall restore possession to a person who is disturbed by such order.
(4) Where a civil suit has been instituted under Sub-section (3) against any order, such order shall not be subject to appeal or revision."
7. A reading of Sub-section (1) to Section 57 shows that ownership of all types of land situate within its territory vested in the State Government from the date of enforcement of the Code, i.e. 2-10-1959, except of the 'rights' of any person subsisting at the coming into force of the Code, in such properties, which remained unabolished, before the commencement of the Code by various enactments. The rights preserved by the proviso are the rights of enjoyment by tenure holder, defined Under Section 2(z) of the Code, that is a person who holds the land from the State Government and who is or is deemed to be the 'Bhumiswami' under the provisions of the Code. Such a tenure holder is not a mere lessee as rights are higher and superior, akin to those of a proprietor which are transferable and heritable. Rights of a tenure holder are not liable to be curtailed, except by legislation, nor he can be deprived of the possession without due process of law under statutory provisions. See a Full Bench decision of this Court in case of Ramgopal Kanhaiyalal v. Chetu Batte, AIR 1976 MP 160 : 1976 JLJ 278.
8. Sub-section (2) of Section 57 envisages a dispute between the State Government and any other person in respect of the proprietary rights or interest in respect of the land declared in Sub-section (1). If such a dispute is raised by aprivate person as against the State in respect of any right and its establishment, that has to be adjudicated upon by the Sub-Divisional Officer.
9. Sub-section (3) of Section 57 lays down that any person aggrieved by any order passed under Sub-section (2) may institute a civil suit to contest the validity of the order, within a period of one year from the date of such order.
10. From reading the two provisions, i.e. Sub-sections (2) and (3) of Section 57, it is candid clear that dispute of ownership vis-a-vis State and any person who can even be a tenure holder, or occupancy tenant or a Government lessee has to be entertained and decided by the forum provided in Sub-section (2) of Section 57, i.e. by the Sub-Divisional Officer, who has exclusive jurisdiction to decide such dispute. It is only after the order passed in such dispute by the Sub-Divisional Officer, an aggrieved party may institute a civil suit as contemplated under Sub-section (3) of Section 57 to contest the validity of order passed under Sub-section (2) of Section 57.
11. A Division Bench of this Court in case of Her Highness Mehr Taj Nawab Sultan, Bhopal v. State of M.P., AIR 1977 MP 193 : 1977 JLJ 337, while dealing a case under M.P. Ceiling on Agricultural Holdings Act, 1960, considering the question of ownership in land, passed to the State Government Under Section 57(1), observed that the word 'right' in Sub-section (2) also includes full ownership and the dispute is within the jurisdiction of the Sub-Divisional Officer, and thereafter, a Civil suit can be instituted. 12. True, it is a general principle of law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, and such exclusion must either be "explicitly expressed or clearly implied" by the statutory provisions, which expressly provide or which necessarily and inevitably lead to such inference. Civil Courts exercise general jurisdiction of civil nature as conferred by Section 9 of the Civil P.C., which provides that Civil Courts shall have jurisdiction to try suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
13. The question of exclusion of Civil Court's jurisdiction has been considered by the Supreme Court in more than one case, reference of two decisions will be appropriate. In case of Dhulabhai v. State of M.P., AIR 1969 SC 78 : 1969 JLJ 1, the Supreme Court has laid down the principles for considering the bar of jurisdiction of Civil Courts, which are thus :
(i) Where the statute gives a finality to the orders of the special tribunals the civil court's 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.
(ii) 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 or 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 intend-ment 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, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(iii) 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.
(iv) 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 within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(v) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(vi) 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.
(vii) An exclusion of thejurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.
14. In case of Raja Ram Kumar Bhargava v. Union of India, AIR 1988 SC 752, the Supreme Court on consideration of various pronouncements has laid down guiding principles for considering the exclusionary clause in the statute of excluding the jurisdiction of Civil Courts in para 10 thus :
"Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common-law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil court's jurisdiction is impliedly barred. If, however, a right preexisting in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil court's jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the person of inherence. To what extent, and on what areas and under what circumstances and conditions, the civil court's jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai's case."
15. Applying the guiding principles, from the language of Section 57, it is clear that the State of M.P. is owner of all types of land within its territory, if any person claims any right or raises a dispute of ownership as against the State, the dispute has to be raised before the Sub-Divisional Officer. Thereafter, aggrieved party may institute a suit to challenge the validity of the order, or may prefer an appeal or revision under Section 44 or Section 50 of the Code, as the case may be. The order passed in appeal or revision can be challenged in the same manner as provided in Section 57(3) of the Code, on the principle of 'merger', as the order passed by the Sub-Divisional Officer Under Section 57(2) merges into appeal or revision, as the case may be, and for that the period of one year for instituting the suit will be available from the date of the order on merger.
16. But, concurrently the remedy of suit Under Section 57(3) and of filing an appeal or revision cannot be availed of by an aggrieved party against the order passed Under Section 57(2) as Section 57(4) puts a bar which speaks that if a civil suit is instituted as provided in Section 57(3), in that case, the order passed Under Section 57(2) will not be subject to appeal or revision.
17. From the scheme of the provision and its intendments, it is clear that the dispute in respect of 'any right' as against the State is barred by Section 57(2) of the Code, and a civil suit can only be instituted Under Section 57(3) of the Code to challenge the validity of the order. The provision thus excludes the jurisdiction of the civil courts and even a case of declaration of rights or title relating to ownership of the land as against the State cannot be instituted. Therefore, it cannot be contended that the provision is enabling and concurrent or alternate.
18. The cases relied by the learned counsel for the respondents to support the maintainability of civil suit without resorting to the remedy provided Under Section 57(2), in our opinion, are of no help to the respondents as in none of the decisions cited, the scope and the bar of jurisdiction of civil court by necessary implication to a dispute raised by any person in respect of any right subsisting as against the State on coming into force of the Code was considered.
19. In the result, the petition is allowed, the order of the revisional Court holding civil Court's jurisdiction is quashed. No costs.
S.K. Chawla, J.
20. I agree with the conclusions reached by my learned brother Shri S. K. Dubey, J. excepting that the discussion is not articulate enough on the question whether a Civil suit against the State Government with respect to any right short of ownership, said to have been acquired by a person after coming into force of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter called "the Revenue Code"), i.e. after 2-10-1959, over any land, is barred?
21. The relevant provisions calling for construction are : Sections 57 and 257 of the Revenue Code and Section 9 of the Civil P.C., 1908. If certain dispute is required to be decided by a Sub-Divisional Officer under Section 57(2) of the Revenue Code, the main Clause in Section 257 ibid gets attracted, which says that no Civil Court shall entertain any suit to obtain a decision or order on any matter which the State Government, the Board or any Revenue Officer is by the Revenue Code empowered to determine, decide or disposed of, except as otherwise provided in the Revenue Code itself or in any other enactment for the time being in force. Section 9 of the Civil P.C. 1908, gives general jurisdiction to a Civil Court on matters of civil nature. It provides that the Civil Courts shall have jurisdiction to try all suits of a civil nature, excepting suits on which their cognizance is either expressly or impliedly barred. Section 9 thus itself makes a provision for exclusion of the jurisdiction of the Civil Court either expressly or by clear implication. It is an accepted rule of construction that bar of jurisdiction of Civil Court should not readily be inferred and such exclusion must either be "expressly expressed or clearly implied" by statutory provision.
22. Section 57 of the Revenue Code has been extracted in the order of my learned brother. Sub-section (1) thereof not only says that all lands belong to the State Government, but goes on further to declare that all such lands are the property of the State Government. The declaration, it may be seen, is not limited to any point of time, for example, that State Government was the owner of all lands on the date of the coming into force of the Revenue Code. The declaration, it may be emphasised, is made without any limitation as to point of time.
23. The proviso to Sub-section (1) of the said provision however saves rights of any person subsisting in the land at the date of coming into force of the Revenue Code, i.e. on 2-10-1959. Two things are clear. First, what is saved is not only ownership but any kind of right. Such right may be, for instance, a right to hold land as tenure holder or lessee or even be an easementary right. Secondly, such rights only are saved as were subsisting on the date of coming into force of the Revenue Code. With respect to rights acquired on the land by a private person after the commencement of the Revenue Code, the provision does not say that such rights shall never be acquired. Such rights can therefore be always acquired in accordance with law.
24. Section 57(2) of the Revenue Code is an important provision and says that where a dispute arises between the State Government and any person in respect of any right under Sub-section (1), such dispute shall be decided by the Sub-Divisional Officer. The words are, "in respect of any right under Sub-section (1)" and not "in respect of ownership". What are the rights under Sub-section (1)? If any person says as against the State that certain land is owned by him, that is a dispute with respect to a right under Sub-section (1), because that provision clearly and categorically and without any point of time says that all lands belong to the State Government and are the property of the State Government. It does not matter whether the person says that ownership was acquired by him before or after coming into force of the Revenue Code. The position however will be different with respect to disputes about rights short of ownership. Such rights, including ownership, no doubt, in favour of any person subsisting on the date of coming into force of the Revenue Code are saved by proviso to Section 57(1). If the dispute involved in the civil suit is whether such rights claimed by the plaintiff were saved, that is dispute falling within the ken of Section 57(1) ibid and the suit cannot straightway be brought against the State by any person except after decision of the dispute by the Sub-Divisional Officer. But if the dispute involved in the suit is whether the person acquired rights short of ownership over the land after the commencement of the Revenue Code, such dispute does not fall within the ambit of Sub-section (1) of Section 57 and hence Sub-section (2) will not be attracted which makes it obligatory that the dispute shall first be decided by the Sub-Divisional Officer. But even in such a case, if the dispute involved is whether the person acquired ownership over the land after the commencement of the Revenue Code, that would be a dispute falling under Sub-section (1), for that provision contains a declaration without any point of time that all lands belong to the State Government and arc the property of the State Government. To give a concrete instance, a suit is brought by a person against the State Government that he acquired Bhumi Swami rights over certain piece of land after coming into force of the Revenue Code. The dispute in such a situation does not fall to be considered by the Sub-Divisional Officer, as it does not fall within the ambit of Sub-section (1) of Section 57. Hence such a suit can be directly brought. But if a suit is brought by a person against State Government saying that ownership of that person in the land was saved by virtue of proviso to Sub-section (1) or because ownership was subsequently acquired, such a dispute falls within the ambit of Sub-section (1), because Sub-section (1) makes a declaration without limiting it to any point of time that all lands belong to the State and are the property of the State Government. Such a suit cannot be directly brought in a Civil Court except after decision of the dispute by the Sub-Divisional Officer under Sub-section (2) of Section 57.
25. Only one more thing needs to be noticed. A combined reading of Sections 57 and 257 of the Revenue Code would show that they do not in fact bar a person's right to bring a suit against the State Government with respect to land. They only regulate that right by providing that certain disputes shall first be decided by the Sub-Divisional Officer before any Civil suit is brought.
26. My Conclusions may be summed up as follows :
(1) A dispute about ownership of land between the State Government and any person has first to be carried for decision to the Sub-Divisional Officer. A suit involving such dispute cannot be directly brought in a Civil Court.
(2) A dispute about rights short of ownership in any land, said to have been saved on the date of the coming into force of the Revenue Code arising between the State Government and any person should also be first carried for decision to the Sub-Divisional Officer. A suit involving such a dispute cannot be directly brought in a Civil Court.
(3) A dispute about rights short of ownership, said to have been acquired by any person in any land, after the commencement of the Revenue Code arising between the State Government and any such person, faiis out side the ambit of Section 57(1) and cannot, therefore, be decided by the Sub-Divisional Officer under Section 57(2} of the Revenue Code. A suit involving such dispute may be directly brought in a Civil Court. For instance, a civil suit raising a dispute that the plaintiff had acquired Bhumi Swami rights over any piece of land after the commencement of the Revenue Code, may be directly brought against the State Government in a Civil Court.
26A. My answer to the question initially posed by me is that a civil suit against the State Government with respect to any right short of ownership, said to have been acquired by any person after coming into force of the Revenue Code over any land may be directly brought in a Civil Court.
27. In the present case, respondents 1 to 5 had directly brought the suit against the State Government on the averment that those respondents had become owners and had perfected title by adverse possession to the land and on that footing reliefs of declaration, quashing of certain orders and permanent injunction were claimed. Such a suit involving dispute as to ownership of land between State Government and private persons could not have been directly brought in the Civil Court. The decision of Revisional Court (Third Additional District Judge to the Court of District Judge, Morena) holding that such a suit could be directly entertained in Civil Court was wrong and the said decision must be quashed. I agree that the present petition under Article 227 of the Constitution deserves to be allowed by quashing the order of the Revisional Court.