Writ Petition No.5746 of 2017

12th October, 2018.

Petitioner Counsel: Shri R.M. PANDE
Respondent Counsel: Shri A.N. VASTANI

Cases Cited:
Tulsabai Deokaran Agrawal Vs. State of Maharashtra and others, 2014(7) ALL MR 790=2014(1) Mh.L.J. 921 [Para 14,16]
Putalabai w/o Lakhu Pawar and others Vs. Shiva Dhondi Pawar and others, 1980 ALLMR ONLINE 126 : 1980 Mh.L.J. 547 [Para 14,16]

JUDGMENT

JUDGMENT :- Heard Shri R.M. Pande, the learned Counsel for the petitioners and Shri A.N. Vastani, the learned Counsel for respondent.

2. Rule. Rule made returnable forthwith by consent of the learned Counsels for the parties.

3. The petitioners - who are the defendants in Regular Civil Suit 215/2013 is assailing the order dated 29.06.2017 rendered by the Joint Civil Judge, Junior Division, Gondia, by and under which, the application preferred by the defendants under section 36B of the Maharashtra Prevention of the Fragmentation and Consolidation of Holdings Act, 1947 ('Act' for short) for referring the issue of the effect of the provisions of the Act on the sale-deed, to the Competent Authority, is rejected.

4. Few facts, which are broadly not disputed or are irrefutable may be noted.

5. The respondent - plaintiff instituted Regular Civil Suit 215/2013 against the petitioners seeking, inter alia decree of permanent injunction and possession qua the suit property.

6. The respondent - plaintiff is claiming ownership of the suit property by and under registered sale-deed dated 30.09.2011.

7. It is not in dispute that by amending the written statement, the petitioners - defendants took a plea that the said sale-deed is hit by the provisions of the Act.

8. It is further apparent from record that one of the issues framed by the Trial Court is:

6. Whether defendants prove that the sale-deed of plaintiff is hit by the provisions of Prevention of Fragmentation and Consolidation Act.

9. The respondent - plaintiff opposed the reference under section 36B contending, inter alia, that the application suffers from delay and laches and further that the defendants have not demonstrated that the conditions which are statutorily envisaged for attracting the prohibition under section 7 of the Act, are fulfilled.

10. The learned Trial Judge has recorded reasons which are strange, to put it mildly. Inexplicably, having framed issue 6 which is reproduced supra, the learned Judge observes in paragraph 9:

"In the present matter the suit is for permanent injunction and there is no real dispute under the Fragmentation and Consolidation Act."

The learned Judge then proceeds to observe that initially the defence was of total denial and it was only by way of amendment that the defence under the Act was raised. This observation is followed by a finding that the defendants are delaying the matter "and the crux of the suit is not the provisions or relief of Fragmentation and Consolidation Act".

11. The reasons recorded by the learned Judge are no reasons in the eyes of law. Non-application of mind to statutory provisions is writ large upon the face of the order impugned. The learned Judge failed to appreciate that issue 6 refers to the effect of the provisions of the Act on the sale-deed of which the suit claim is predicated and issue 7 pertains to the jurisdiction of the Civil Court. Concededly, the plaintiff did not challenge the order dated 22.11.2016, by and under which, issues 6 and 7 were framed. It is inexplicable as to how the learned Judge could have arrived at the conclusion that since the suit seeks permanent injunction, the dispute does not touch the provisions of the Act. It is further difficult to comprehend the observation of the learned Judge that the defence based on the provisions of the Act is raised by amending the written statement. Irrefutably, the amendment was allowed and issues 6 and 7 came to be framed without any demur from the plaintiff. The learned Judge clearly and obviously failed to look into the provisions of section 36A and 36B of the Act.

12. Section 36A of the Act reads thus:

36A. Bar of jurisdiction.

(1) No Civil Court or Mamlatdars Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the State Government or any officer or authority.

(2) No order of the State Government or any such officer or authority made under this Act shall be questioned in any Civil, Criminal or Mamlatdars Court.

Section 36B of the Act reads thus:

36B. Suits involving issues required to be decided under this Act.

(1) If any suit instituted in any Civil Court or Mamlatdar's Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as 'Competent-Authority') Civil Court or Mamlatdar's Court shall stay the suit and refer such issues to such Competent Authority for determination.

(2) On receipt of such reference from the Civil Court or Mamlatdar's Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court or Mamlatdar's Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

13. The conjoint reading of sections 36A and 36B would indicate that the Civil Court is statutorily denuded of the power and the jurisdiction to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the authorities under the Act and if any suit instituted before the Civil Court involves any such issue, the Civil Court is obligated to stay the suit and refer such issues to the Competent Authority.

14. Shri Vastani, the learned Counsel would submit, relying on the decisions in Tulsabai Deokaran Agrawal v. State of Maharashtra and others reported in 2014(1) Mh.L.J. 921 : [2014(7) ALL MR 790] and Putalabai w/o Lakhu Pawar and others v. Shiva Dhondi Pawar and others reported in 1980 Mh.L.J. 547 : [1980 ALLMR ONLINE 126], that the defendants have not demonstrated, even prima facie, that the mandatory conditions of section 6 and 7 are fulfilled. The submission is, that notwithstanding that the Civil Court has framed issues 6 and 7 it was further necessary for the defendants to prove that the standard area under sub-section 3 of section 5 for a local area is notified and the fragments in the local area are entered as such in the record of rights or in the absence of record of rights, in such village record as the State Government may prescribe and further that notice of such entry in the record of rights or village record prescribed by the State Government is given in the manner prescribed under section 6(2) of the Act. I am afraid, vehement as Shri Vastani was in making the said submission, I am not inclined to accept the same.

15. The statutory scheme is that the jurisdiction of the Civil Court to settle or decide or deal with any question which under the Act is required to be decided, settled or dealt with by the Competent Authority, is specifically barred. If such question arises in a civil suit the Civil Court has no option but to refer "such issue" to the Competent Authority for determination. Shri Vastani fairly conceded that it is beyond the jurisdiction of the Civil Court to decide whether the land which is the subject matter of the sale-deed is a fragment. Shri Vastani further does not dispute that the effect, import and implication of section 7 would necessarily have to be determined by the Competent Authority. Indubitably, since issues 6 and 7 are framed by the Civil Court, the suit involves an issue which is required to be decided by the Competent Authority. It is, therefore, difficult to appreciate, much less accept the submission that notwithstanding that the effect of the provisions of the Act on the legality of the sale-deed, which is the edifice of the suit plaint, is in issue, the Civil Court was obligated to conduct a further inquiry to ascertain prima facie that the conditions envisaged in section 6 of the Act are fulfilled. Such view would militate against the legislative intent underlying sections 36A and 36B of the Act.

16. The decisions in Tulsabai Deokaran Agrawal v. State of Maharashtra and others [2014(7) ALL MR 790] and Putalabai w/o Lakhu Pawar and others v. Shiva Dhondi Pawar and others [1980 ALLMR ONLINE 126] do not take the case of the respondent any further. The ratio of the decision in Tulsabai Deokaran Agrawal v. State of Maharashtra and others [2014(7) ALL MR 790] is that the provisions of section 6 and 7 are mandatory in nature. The decision in Putalabai w/o Lakhu Pawar and others v. Shiva Dhondi Pawar and others [1980 ALLMR ONLINE 126] is again an authority for the proposition that the prohibition under section 7(1) is attracted only if notice under section 6(2) is given.

17. I have already observed that the Civil Court is not expected to and is indeed precluded from settling, deciding or dealing with any issue which under the Act is required to be settled, decided or dealt with by the Competent Authority. In view of the unambiguous legislative mandate, it is difficult to accept the submission that the Civil Court is not precluded from, and is indeed obligated to, conduct a preliminary inquiry to ascertain the prima facie merit of the submission that the provisions of the Act are attracted. I am of the opinion, that having come to the conclusion that the applicability of the provisions of the Act to the sale-deed is in issue, and having framed issue 6 reproduced supra, the Civil Court was mandated to refer the issue to the Competent Authority under section 36B of the Act.

18. The order impugned is patently erroneous and is quashed and set aside.

19. The application Exh.30 seeking reference under section 36B is allowed.

20. The Competent Authority shall decide the reference within three months and the Trial Court shall finally dispose of the suit as expeditiously as possible, and in any event within nine months from the receipt of the reference adjudication from the Competent Authority.

21. The Registrar (Judicial) is directed to bring this judgment to the notice of the learned Judge, who is the author of the order impugned.

22. Rule is made absolute in the afore-stated terms.

Petition allowed.