Dismissed

Lochan Prasad v. Raghuwar Singh and Ors.

Chhattisgarh HC1 Aug 2012FA/52/2008

Case brief

AI extract

What is this about?

This first appeal challenged the dismissal of a suit for declaration of title on the grounds that civil court jurisdiction was barred. The High Court held that under Section 257(1-A) of the Chhattisgarh Land Revenue Code, civil courts lack jurisdiction regarding matters covered under Section 170-B, rendering the suit not maintainable. The appeal was dismissed.

What did the court decide?

The appeal was dismissed and the decree for costs was drawn up.

Lochan Prasad Vs Raghuwar Singh and Ors. — Land Acquisition | Chhattisgarh HC (2012)

¶1

HIGH COURT OF CHHATTISGARH : BILASPUR

F.A.No.52 of 2008

APPELLANT PLAINTIFF

Lochan Prasad

VERSUS

RESPONDENTS Defendants

¶7

Raghuwar Singh and others.

¶8

PostforpronouncementofJudgmenton

2- I ? /2012

Sd/-

N.K.Agar'i<?al Judge

y^ ^ 'ViSSS's. I "ivs ',-,

¶13

HIGH COURT OF CHHATTISGARH AT BILASPUR

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First Apueal No. 52 of 2008

¶15

APPELLANT

¶16

Plaintiff

¶17

Lochan Prasad, aged about 51
years, S/o Arjunlal, Caste - Sahu,
R/o Village - Sarakho, Tahsil -
Janjgir, District-Janjgir - Chainpa (C.G.)

¶18

		Versus
RESPONDENTS	1.	Raghuwar Singh, aged about	66
Defendants		years, S/o Dev Singh,
	2.	Lakhan Singh, aged about years, S/o Dev Singh,	63
	3.	Bachan Baeya, aged about	56
		years, D/o Dev Singh,
	4.	Bhuri Baeya, aged about	54
		years, D/o Dev Singh,
	5.	Jamuna Singh, aged about	86
		years, W/o Dev Singh,
	6.	Bahoran Singh, aged about	51
		years, S/o Lakshman Singh,
	7.	Sundar Singh, aged about	46
		years, S/o Lakshman Singh,
	8.	Prem Kunwar, aged about	41
		years, D/o Lakshman Singh,
		All by caste - Tanwar,	R/o
		Madanpur, Tahsil - Janj	gir,
		District-Janjgir-Chanipa (C.G	.)
		(Defendant No.9 Bund Kun	war
		has not been arrayed	as
		respondent as she is dead)
	9.	Sub-Divisional Officer, Janj	gir,
		Tahsil Janjgir, District Janj Champa (C.G.)	gir-
	10.	State of Chhattisgarh, Thro	ugh
		Collector Janjgir, District	-

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Janjgir-Champa (C.G.)

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APPEAL UNDER SECTION 96 QFLTHE CODE QFCIVIL PRQC^WRE

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SB:- HON. SHRI N.K. AGARWAL, J.

¶22

PRESENT:

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Shri S. K. Tiwari, counsel for the appellant. Shri Sanjeev Banjare, counsel for respondents No.l to 8. Shri Akhil Agrawal, P.L. for the State.

¶24

,?? •^'-^•i, 's s •s?

¶25

JUDGMENT

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(Delivered on 1. .0-5 .-2012)

¶27

¶28

This is plamtiffs first appeal under Section 96 of the Code of the Civil Procedure, 1908 (for short the Code') against thejudgment and decree dated 17.12.2007 passed by the 2nd Additional District Judge (F.T.C.), Janjgir in Civil Suit No. 9- A/2007 whereby the plamtiff's suit has been dismissed as not maintainable in view of Section 257 of the Chhattisgarh Land Revenue Code, 1959 (for short the Code'). 2. Facts necessary for for disposal of this this appeal are as under: under:

¶29

Facts necessary for for disposal of this this appeal are as under: under:

¶30

Admittedly, the owner of suit land, i.e. Kh.Nos.1665 8s 1666 area 3.71 acres, was Lakshman Singh, son of Pitamber Singh, an aboriginal tribe. Defendants No. 1 to 8 are his legal representatives.

¶31

(i)

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On survey, the Sub-Divisional Officer, Janjgir (S.D.O.) found plaintiffs possession over the suit land. Since plaintiff did not notify to the S. D.0. in the format prescribed^{therefor,alltheinformationastohowhehas} come in possession of the suit land, as per provisions contained in Section 170-B(1) of the Code, the notice was issued by the S.D.0. to the plaintiff. Despite service of notice, the remained absent. plaintiff Therefore, the S.D.0. directed the plaintiff to deliver the possession of the suit land to the legal representatives of late Lakshm.an Singh. According to the plaintiff, he preferred^{anappealbeforetheCollectorbutthesame} was also dismissed by the Collector.

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(ii)

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Thereafter, challenging the order of S.D.O., the plaintiff preferred the present suit for declaration of his title; declaration of order of S.D.0. as null and void and for permanent injunction, pleading inter alia, he purchased

¶35

(iii)

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the suit land from late Lakshman Singh vide registered sale deed dated 12.12.1974 with due perraission of the Collector under the provisions of Section 165 (6) of the Code of 1959, and therefore, the S.D.0. is not entitled to direct the plaintiff to hand over fhe possession of the suit land to the legal representatives of late Lakshman Singh under the provisions of Section 170-B ofthe Code as he is not aufhorised to enquire into the validity of the permission granted by the Collector.

¶37

The trial Court dismissed the suit holding, the jurisdiction ofthe Civil Court is barred under sub-section (1-1) ofSection 257 ofthe Code. Hence, this first appeal. 4. I have heard Shri S.K.Tiwari, learned counsel appearing for the appellant and Shri Sanjeev Banjare, learned counsel appearing for respondents No.l to 8 and perused the record of the trial court including judgment and decree impugned.

¶38

As per plaintiff's own case, he entered into the possession of the suit land pursuant to sale deed dated 23.12.1974 executed by a person who was a member of aboriginal tribe.

¶39

Provisions of Section 170-B of the Code reads as under: "170-B. Reversion of land of menibers of aboriginal tribe which was transferred by fraud(l)Every person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 (hereinafter referred to as the Amendment Act of 1980) is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal tribe under subsection (6) of Section 165 between the period conimencing on the 2nd October, 1959 and ending on the date of the commencement of Amendment Act, 1980 shall, within [two years] of such commencement, notify to the Sub Divisional OfGcer in such form and in such

¶40

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manner as may be prescribed; all the information as to how he has come in possession of such land.

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(2) If any person fails to nottfy the information as required by sub-section (1) within the period specified therein it shall be presumed that such person has been in possession of the agricultural land without any lawful authority and the agricultural land shall, on the expiration of the period aforesaid revert to the person to whom it originally belonged and if that person be dead, to his legal heirs.

¶43

[2-A) If a Gram Sabha in the Scheduled area referred to in Clause (1) ofArticle 244 ofthe Constitution finds that any person, other than a member of an aboriginal tribe, is in possession of any land of a Bhumiswami belonging to an aboriginal tribe, without any lawful authority, it shall restore the possession of such land to that persons to whom it originally belonged and if that person is dead to his legal heirs:

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Provided that if the Gram Sabha fails to restore the possession of such land, it shall refer the matter to the Sub-Divisional Officer, who shall restore the possession of such land within three months froin the date of receipt of the reference.

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(3) On receipt of the information under Sub section (1), the Sub-Divisional Officer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds fhat the inember of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and pass an order reverting the agricultural land in the transferer and, if he is dead, in his legal heirs.

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[(3) On receipt of the information under Sub-section (1) the Sub-Divisional Officer shall make such enquiry as may necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and-

¶47

(a) Where no building or structure has been

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erected on the agricultural land prior to such finds pass an order reverting the agricultural land in the transferer and if he be dead, in his legal heirs,

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(b) Where any building or structure has been erected on the agricultural land prior to such finding, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land in the Land Acquisition Act, 1894 (No. 1 of1894) and order the person referred to in Subsection (1) to pay to the transferer the difference, if any, between the price so fbced and the price actually paid to the transferer:

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Provided that where the building or structure has been erected after the 1st day of January, 1984 the provisions of Clause (b) above shall not apply:

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Provided further that fixation of price under Clause (b) shall be with reference to the price on the date of registration of the case before the Sub-Divisional Officer.]"

¶53

As per provisions of Section 170-B of the Code, in case any transaction between the period commencing on the 2nd October, 1959 and ending on 23rd October, 1981, a person in possession of agricultural land belonged to a niember of tribe which has been declared to be an aboriginal tribe under subsection (6) of Section 165 of the Code is required to notify his possession to Sub-Divisional Officer that how he has come in possession of such land, failing such, the S.D.0. shall such has been in of the presume person possession agricultural land without any lawful authority and the agricultural land shall, on the expiration of the period aforesaid, revert to the person to whom it originally belonged and if that person is dead, to his legal heirs. Specific procedure has been prescribed under Section 170-B of the Code and a person not a member of Scheduled Tribe if he was

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in possession of the agricultural land originally belonged to a member of taribe was under obligation to notify such possession to the S.D.0.

¶56

As per clause (1-1) of Section 257 of the Code, jurisdiction of the Civil Court is barred in relation to the matter covered under Section 170-B ofthe Code.

¶57

While dealing with the exclusion of the Civil Court, the Supreme Court, in the case of Dhuldbhai v. State of M.P. 1969 MPLJ 1, has laid down the following tests:

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(i) (ii) (iii) Where the statutes gives a finality to the orders of the Special Tribunal 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 provisions, however, does not exclude those cases where the provisions of particulEir Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles ofjudicial procedure.

¶59

(iv) 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

¶60

jurisdiction of the civil court.

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(V) 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 relevant enquiry.

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(vi) (vii) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.

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The same principles are enunciated by the Supreme Court in the case of State of Andhra Pradesh vs. Manjeti Laxmi Kantha Rao (Dead) by LRs and others, 2000 (3) SCC 689 wherein para - 5 . of its judgment, the Supreme

¶65

observed as under:

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The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of fhe civil courts to try civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. In Dkulabhai & Ors. vs. The State of Madhya Pradesh & Anr.,1968 (3) SCR 662, it was noticed that where a statute gives finality to the orders of the special tribunals jurisdiction of the civil courts must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit and such provision, however, does not exclude those cases where the provisions of fhe particular Act have not been complied with or the statutory ta-ibunal has not acted in conforraity with the fundamental principles ofjudicial procedure.

¶68

The Supreme Court, in the matter of

¶69

K.S.Venfcataraman & Co. P*( Ltd. vs. State of Madrcis, AIR 1966 SC 1089 held that if a statute imposes a liability and creates an effective machinery for deciding questions of law or fact arising in regard to that liability, it may, by necessary iraplication, bar the maintainability of a civil suit in respect of the said liability. A statute may also confer exclusive jurisdiction on the authorities constituting the said machinery to decide the finally a jurisdictional fact thereby

¶70

^^^w^S" ^°'*& 's^ '^ ftte'i'a. 1 ''~S'WA 6 A. ^^--^ ^

¶71

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excluding by necessary implication the jurisdiction of a Civil Court in that regard.

¶73

While dealing with the sarae question, fhe Supreme Court in the matter of Stute of Kerala vs. N. Rarnaswami lyer and Sons, AIR 1966 SC 1738, held that after referring to earlier cases, the view was reiterated that where the legislature sets up a special tribunal to determine questions relating to rights or liabilities which are the creation of a statute, the jurisdiction of the Civil Court would be deemed excluded by implication.

¶74

The Code of 1959 gives a finality to the orders passed under Section 170-B of the Code, inasmuch as, section 257 (1-1) of the Code explicitly bars the jurisdiction of the civil Court in relation to the matter covered under Section 170-B of the Code. The Code of 1959 provides procedure for enquiiy relating to the transaction hit by Section 170-B. The order made under Section 170-B has been made appealable under the provisions of Section 44 of the Code. The revision against the order passed by the first appellate Court is maintainable in accordance with Section 50. Therefore, adequate remedy has been provided under the Code in case of grievance against the order made by the S. D.0. under Section 170-B.

¶75

The case in hand is not a case where the provisions of the Code have not been complied with or the statutory Tribunal has not acted in conformity with the fundaniental principles ofjudicial procedure.

¶76

Admittedly, despite notice, the appellant/plaintiff did not appear before the S. D.0., and therefore, in terms of provisions contained in Section 170-B, the order has been passed by the S. D.0. At the time of passing of the order,

¶77

^- '-\ ..••'f

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there was no material before the S.D.0. regarding alleged purchase of the suit land by the plaintiff from late Lakshman Singh with due permission ofthe Collector under Section 165 (6) of the Code as the appellant/plaintiff failed to notify to the S. D.0. all the information as to how he has come into possession of fhe suit land.

¶79

The provisions contained in Section 170-B of the Code are revolutionary provisions for fulfillnient of social object of giving protection to aboriginal tribes, very wide in its scope and all the transfers are to be examined under it where land belonging to aboriginal tribe is in possession of the non-tribe on 23rd October, 1981, even if the transfer was made after obtaining permission under Section 165 (6) ofthe Code.

¶80

Where land of aboriginal tribe is purchased after obtaining permission under Section 165 (6), enquiry under Section 170-B (3) has to be made as to whether such tribe has been defrauded of his legitimate right [please see Amritlal Kesharwani v. Commissioner, Bilaspur and others, 2001 RN 279 (HC)]. Therefore, it is not correct to say that the S.D.0. has no jurisdiction to enquire into the matter under Section 170-B of the Code where land of aboriginal ta-ibe is purchased after obtaining permission under Section 165 (6) of the Code.

¶81

The appellant's remedy was to file an appeal before the appellate authority challenging the alleged erroneous order passed by the S. D.0. but challenging the merits of the order, the civil suit is not m.aintainable in view of specific bar contained in Section 257 (1-1) ofthe Code.

¶82

Considering the facts of the present case in the light of ratio of law laid down by the Supreme Court in the cases referred herein above, in my opinion, the trial Court has not

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committed any illegality in dismissing the suit as not maintainable in view of specific bar contained under Section 257 (1-1) ofthe Code and the appeal, being devoid ofmerit, is liable to be and is hereby dismissed. However, considering the peculiar circumstances of the case that instead of filing appeal and/or revision, the present appellant filed the Civil Suit, he is at liberty to challenge the order passed by the S. D.0. or order passed by the Collector in appeal before the appellate or the revisional Forum. and if the appeal or revision is filed, then the appellate and/or revisional authorities inay consider to condone fhe delay in such filing of appeal or revision, in the light of pendency of Civil Suit and Civil appeal.

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Parties shall bear their own costs.

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A decree be drawn accordingly.

¶87

Sd/N.K.Agarwai Judge

Lochan Prasad v. Raghuwar Singh and Ors.

Case brief

What is this about?

What did the court decide?

Lochan Prasad v. Raghuwar Singh and Ors.

Case brief

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What did the court decide?

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