First Appeal No. 665 of 2019

8th April 2019

Petitioner Counsel: Mr. V.J. DIXIT Mr. SATYAJEET S. DIXIT
Respondent Counsel: Mr. S.S. DANDE
Act Name: Specific Relief Act, 1963 Maharashtra Land Revenue Code, 1966

Section :
Section 34 Specific Relief Act, 1963 Section 11: Maharashtra Land Revenue Code, 1966

Cases Cited :
Paras 9, 12: Dhulabhai and ors. Vs. The State of Madhya Pradesh and ors., 2015 ALL SCR (O.C.C.) 94 : AIR 1969 SC 78
Paras 9, 18: Gopinath Ganpatrao Pensalwar Vs. State of Maharashtra and ors., 2006(6) ALL MR 504

JUDGEMENT

1. Admit. Learned AGP waives notice on behalf of the respondents. With the consent of learned Counsel for the parties, appeal is heard finally.

2. Assailed in this appeal is the judgment and order dated 27.09.2018 passed by the Court of learned Joint Civil Judge, Senior Division (11th Court), Ahmednagar, rejecting the plaint in Special Civil Suit (No.5 of 2017). The appellant/plaintiff is, therefore, in appeal before this Court.

3. Heard Mr.Dixit, learned Senior Counsel for the appellant and Mr.Dande, learned AGP for the respondents.

4. The appellant/plaintiff filed suit against the State of Maharashtra through the Collector, Ahmednagar and the Tahsildar, Ahmednagar, praying for relief of declaration and perpetual injunction. The prayers in the suit, are as follows :-
(a) It be declared that the order dated 07.10.2016 passed by defendant no.2 – Tahsildar is not binding on the plaintiff.
(B) The defendants may permanently be restrained from taking any steps for recovery of the amount mentioned in the order dated 07.10.2016.

5. It is the case of the appellant/plaintiff that he is dealing in sale and purchase of old cars. He is also in the business of building and construction. The appellant/plaintiff is, however, not dealing in building material like sand, grit, Murum (hard soil), etc. Defendant no.2 issued the appellant/plaintiff notice dated 25.04.2016 to show cause, as to why no penal action shall be taken against him for unauthorised excavation of Murum (hard soil) in the land survey nos.29/1, 29/2, 30/1 and 30/2 situated at Burhannagar and for unauthorised hoarding of 170 brass of sand and 7 brass of grit. The appellant/plaintiff claims to have never received the notice. The appellant/plaintiff’s cousin found the notice lying out of appellant/plaintiff’s residence.

6. It is also the case of the appellant/plaintiff that he immediately approached defendant no.2 and informed to have in no way concerned with the said lands and unauthorised excavation of the minerals therefrom. Defendant no.2, however, issued order dated 07.10.2016 directing the appellant/plaintiff to pay the State Government a sum of Rs.11,46,16,350/- towards cost of extracted minerals with five times penalty thereon.

7. The appellant/plaintiff, therefore, filed the suit with the aforesaid prayers.

8. The defendants appeared in the suit and filed written statement inter-alia taking exception to the maintainability of the suit. It is the case of the defendants that the appellant/plaintiff had equally efficacious remedy in the nature of appeal under the Maharashtra Land Revenue Code, 1966 (“M.L.R. Code”, for short). The Trial Court, therefore, framed a preliminary issue as, “whether the suit is maintainable” and gave finding thereof in “negative”. According to the Trial Court, the suit filed by the appellant/plaintiff does not fit in the provisions of Section 34 of the Specific Relief Act, 1953. In view of the Trial Court, when the revenue authority of the State has initiated an action for unauthorised excavation, the appellant/plaintiff cannot attribute himself any legal character. The Trial Court also referred to Section 41 of the Specific Relief Act to enumerate the situations wherein relief of injunction cannot be granted. According to the Trial Court, such relief cannot be granted where efficacious relief may certainly be obtained by any usual mode of proceeding. In view of the Trial Court, the appellant/plaintiff should have preferred appeal under M.L.R. Code, as Section 247 thereof provides for remedy of appeal and the forum therefor. For all these reasons, the Trial Court held the appellant/plaintiff’s suit to have not been maintainable and therefore, rejected the plaint (Suit) by the order impugned herein.

9. Mr.Dixit, learned Senior Counsel appearing for the appellant/plaintiff, would submit that Section 34 of the Specific Relief Act (“the Act”, for short), is not exhaustive. Section 41 of the Act restrains the Court from granting relief of injunction in the circumstances enumerated therein. It does not prohibit institution of a suit. The Civil Court has jurisdiction to entertain and try any suit of civil nature. The jurisdiction is to be ascertained on the basis of the averments in the plaint. There is no provision under the M.L.R. Code excluding the Civil Court’s jurisdiction. In support of his contentions, learned Senior Counsel has relied on the following two authorities :-
(i) Dhulabhai and ors. Vs. The State of Madhya Pradesh and ors., AIR 1969 SC 78 : [2015 ALL SCR (O.C.C.) 94];
(ii) Gopinath Ganpatrao Pensalwar Vs. State of Maharashtra and ors., 2006(6) ALL MR 504. According to learned Senior Counsel, the Trial Court erred in rejecting the plaint. He, therefore, urged for allowing the appeal.

10. Mr.Dande, learned AGP representing the respondents, would, on the other hand, submit that the suit, as has been brought in the form, is not maintainable. The appellant/plaintiff ought to have preferred appeal to the Sub-Divisional Officer and after exhausting the remedies under the M.L.R. Code, if any, he could have filed Writ Petition for redressal of his grievance. Learned AGP reiterated the reasons given by the Trial Court in support of the impugned judgment and decree.

SETTLED LEGAL POSITION :-

11. A litigant having a grievance of a civil nature has, independently of any statute, a right to institute a suit in some Court or other unless its cognizance is either expressly or impliedly barred. The jurisdiction of the Civil Court to which a right to decide a lis between the parties has been conferred can only be taken by a statute in specific terms and such exclusion or right, cannot be easily inferred because there is always a strong presumption that the Civil Courts have the jurisdiction to decide all questions of civil nature, therefore, if at all there has to be an inference the same should be in favour of the jurisdiction of the Court rather than the exclusion of such jurisdiction. The onus lies on the party, seeking to oust the jurisdiction, to establish his right to do so. The question of jurisdiction of Civil Court is to be determined primarily on the averments made in the plaint. Section 34 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of the section.

12. In the case of Dhulabhai [2015 ALL SCR (O.C.C.) 94] (Supra), the Hon’ble Supreme Court has observed thus:-
“(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, 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.”

AVERMENTS IN THE PLAINT :

13. Defendant no.2 – Tahsildar issued the appellant/plaintiff the notice dated 25.04.2016 and called upon him to show-cause, as to why no penal action shall be taken against him for unauthorised excavation of minerals from the land survey nos.29/1, 29/2, 30/1 and 30/2 situated at Burhannagar. The appellant/plaintiff responded the notice. Defendant no.2 then issued order dated 07.10.2016 directing the appellant/plaintiff to pay the State Government a sum of Rs.11,46,16,350/- towards cost of extracted minerals with five times penalty thereon.

14. The order impugned in the suit has been issued under Section 48(7) of the M.L.R. Code. True, under Section 247 of the M.L.R. Code, a remedy of appeal has been provided against an order passed by any Officer sub-ordinate to the Sub-Divisional Officer, to the Sub-Divisional Officer or such Assistant or Deputy Collector, as may be specified by the Collector in this behalf. A remedy of further appeal has also been provided. The M.L.R. Code does not contain any provision that expressly takes away/excludes jurisdiction of a Civil Court. Section 158 of the M.L.R. Code speaks of exclusion of Civil Court’s jurisdiction in respect of a claim to have an entry made in any record or register maintained under Chapter X (Land Records) or to have any such entry omitted or amended.

15. As stated above, the jurisdiction of the Civil Court is to be ascertained from the averments in the plaint. The averments in the plaint suggest that the appellant/plaintiff claims to have no title to or possession over the lands from which minerals have, allegedly, been unauthorisedly extracted. He has also disowned his ownership to Poclain Machine and Tempo, allegedly used for extraction and/or removal of the minerals. The appellant/plaintiff has, therefore, pleaded that the impugned order is not binding on him.

16. It needs no mention that the relief of negative declaration may be prayed much less granted. Whether the appellant/plaintiff would succeed in the suit, is a matter of evidence in the case. If the appellant/plaintiff could prove to have in noway been concerned with the lands and/or the minerals, the action of defendant no.2 in passing the impugned order would be non-est so far as the appellant/plaintiff is concerned. Thus, the suit brought by the appellant/plaintiff for exercising his civil rights, is justified in law. True, the Trial Court may be right in observing that the suit did not fit in terms of Section 34 of the Act. It, however, ignored the legal position that Section 34 of the Act is not exhaustive.

17. Although the appellant/plaintiff had a remedy of appeal to take exception to the impugned order passed by defendant no.2 – Tahsildar, he was very well justified in directly filing the suit in view of his claim to have noway concerned with the minerals. We are, therefore, not at one with the reasons and findings given by the Trial Court.

18. Learned AGP, before this Court, has relied on Section 11 of the Maharashtra Revenue Jurisdiction Act, 1876, to contend that the appellant/plaintiff should have first exhausted the remedy of appeal before filing of the present suit.
The contention raised by learned AGP had not been raised before the Trial Court. Still, we propose to address the same. The Maharashtra Revenue Jurisdiction Act came to be passed with a view to limit the jurisdiction of the Civil Courts throughout the Bombay Presidency in matters relating to the land revenue and for other purposes since in certain parts of the Presidency of Bombay the jurisdiction of the Civil Courts in matters connected with the land-revenue was more extensive than it was in the rest of said Presidency. As such, the statement and object of the Act suggest that the jurisdiction of Civil Courts in the matters connected with the land revenue was sought to be limited. Section 11 of the Act, therefore, would not be read as a universal provision out of context. Section 3 of the Act defines land revenue to mean all sums and payments in money or in kind, received or claimable by or on behalf of the Government from any person on account of any land held by or vested in him and any cess or rate authorised by State Government under the provisions of any law for the time being in force.
The facts of the case on hand are no way connected with recovery of the land revenue or matters relating thereto.
The issue is no longer res-integra. The Full Bench of this Court in the case of Gopinath (Supra), held thus :-
3. The Act of 1876 came into force on 28th March, 1876. It was enacted to limit the jurisdiction of the Civil Courts throughout the Bombay Presidency in matters relating to the land revenue and for other ancillary purpose. Section 4 provides bar of certain suits to specific Court thus:
4. Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters:
(a) claims against the Government, relating to any property appertaining to the office of any hereditary officer appointed or recognised under Bombay Act No. III of 1874 or any other law for the time being in force, or of any other village officer or servant, or claims to perform the duties of any such officer or servant, or in respect of any injury caused by exclusion from such office or service, or suits to set aside or avoid any order under the same Act or any other law relating to the same subject for the time being in force passed by the State Government or any officer duly authorized in that behalf, or claims against the Crown relating to lands held under treaty, or to lands granted or held as saranjam, or on other political tenure, or to lands declared by the Provincial Government or any officer duly authorized in that behalf to be held for service;
(b) objections -
to the amount or incidence of any assessment of land-revenue authorised by the Provincial Government, or to the mode of assessment, or to the principle on which such assessment is fixed, or to the validity or effect of the notification of survey or settlement, or of any notification determining the period of settlement;
(c) claims connected with or arising out of any proceedings for the realization of land-revenue or the rendering of assistance by the Provincial Government or any officer duly authorized in that behalf to superior holders or occupants for the recovery of their dues from inferior holders or tenants; claims to set aside, on account of irregularity, mistake or any other ground except fraud, sales for arrears of landrevenue;
(d) claims against the Crown -
(1) to be entered in the revenue-survey or settlement-records or village-papers as liable for the landrevenue, or as superior holder, inferior holder, occupant or tenant, or
(2) to have any entry made in any record of a revenue-survey or settlement or
(3) to have any such entry either omitted or amended;
(e) the distribution of land or allotment of land-revenue on partition of any estate under Bombay Act IV of 1868 or any other law for the time being in force;
(f) claims against the Crown -
to hold land wholly or partially free from payment of land-revenue or to receive payments charged on or payable out of the land-revenue, or to set aside any cess or rate authorized by the Provincial Government under the provisions of any law for the time being in force, or respecting the occupation of waste or vacant land belonging to the Crown;
(g) claims regarding boundaries fixed under Bombay Act No. I of 1865, or any other law for the time being in force, or to set aside any order passed by a Competent Officer under any such law with regard to boundary-marks:
Provided that, if any person claim to hold wholly or partially exempt from payment of land-revenue under-
(h) any enactment for the time being in force expressly creating an exemption not before existing in favour of an individual or of any class of persons, expressly confirming such an exemption on the ground of its being shown a public record, or of its having existed for a specified term of years, or
(i) an instrument or sanad given by or by order of the Provincial Government under the Bombay Act No. II of 1863, Section 1, Clause first, or Bombay Act No. VI of 1863, Section 2, Clause first, or
(j) any other written grant by the British Government expressly creating or confirming such exemption, or,
(k) a judgment by a Court of law, or an adjudication duly passed by a competent officer under Bombay Regulation XVII of 1827, Chapter X, or under Act No. XI of 1852, which declares the particular property in dispute to be exempt, such claim shall be cognizable in the Civil Courts.
4. Section 5 saves certain classes of suits entertainable by Civil Courts. It reads thus:
5. Nothing in Section 4 shall be held to prevent the Civil Courts from entertaining the following suits:
(a) suits against the Crown to contest the amount claimed, or paid under protest, or recovered, as landrevenue, on the ground that such amount is in excess of the amount authorised in that behalf by the State Government or that such amount had, previous to such claim, payment or recovery, been satisfied, in whole or in part or that the plaintiff, or the person whom he represents is not the person liable for such amount;
(b) suits between private parties for the purpose of establishing any private right, although it may be affected by any entry in any record of revenue-survey or settlement or in any village-papers;
(c) suits between superior holders or occupants and inferior holders or tenants, regarding the dues claimed or recovered from the latter; and nothing in Section 4, Clause (g), shall be held to prevent the Civil Courts from entertaining; suits, other than suits against the Government for possession of any land being a whole survey-number or a recognized share of a survey-number; and nothing in Section 4 shall be held to prevent the Civil Courts in the districts mentioned in the Second Schedule hereto annexed from exercising such jurisdiction as, according to the terms of any law in force on the twenty-eighth day of March, 1876, they could have exercised over claims against the Government -
(a) relating to any property appertaining to the office of any hereditary officer appointed or recognized under Bombay Act No. III of 1874 or any other law for the time being in force, or of any other villageofficer or servant;
(b) to hold land wholly or partially free from payment of land-revenue;
(c) to receive payments charged on, or payable out of, the land-revenue.
5. Section 11 provides that certain suits shall not be entertained by the Civil Courts unless the plaintiff has exhausted the right of appeal. Section 11 reads thus:
11. No Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue-officer unless the plaintiff first proves that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within period of limitation allowed for bringing such suit, it was possible to present.
13. Section 11 of the Act of 1876 can not, in our view, be said to create a bar in entertaining the suit relating to an action of the Revenue Officer, where he purports to do an act which is without jurisdiction. It goes without saying that where an authority acts without jurisdiction or purports to pass an order, that is without jurisdiction, such order is void, non est and nullity.

19. At the cost of repetition, it is stated that the appellant/plaintiff has come with a case that the impugned order is not binding on him, as is impliedly non-est for the reasons/averments given in the plaint. Section 11 of the Bombay Revenue Jurisdiction Act, would, therefore, not come in the way of the appellant/plaintiff.

20. For the reasons aforesaid, the appeal succeeds in terms of the following order :-
(i) The appeal is allowed.
(ii) The order dated 27.09.2018 passed below Exh.1 in Special Civil Suit No.5 of 2017, is hereby set aside.
(iii) The suit is remitted back to the Trial Court to decide the same in accordance with law.
(iv) No costs.
(v) The appellant/plaintiff be issued a certificate for refund of full amount of Court fees paid by him on the memo of appeal, as per Section 15 of the Maharashtra Court Fees Act.
(vi) In view of disposal of First Appeal, Civil Application stands disposed of.

Decision : Appeal allowed.