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2004 DIGILAW 257 (JHR)

Bhairab Mahto v. Dalo Ram Mahto

2004-03-11

P.K.BALASUBRAMANYAN

body2004
ORDER P.K. Balasubramanyan, J. 1. The plaintiff is the appellant. He filed a suit for declaration that he was entitled to a conveyance of the property in view of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 and for a further declaration that the sale deed executed by defendants 1 and 2 in the suit in favour of defendants 3 to 5 was invalid. According to the plaintiff, he was a co-sharer of the plot adjacent to the property assigned by defendant No. 1 and in terms of Section 16(3) of the Act, he had a right of pre-emption to get the suit property conveyed to him and in that context, his right in that behalf had to be declared and the sale deed executed in favour of others had to be nullified. The suit was resisted by the defendants by contending that the suit was not maintainable since it was barred by Section 43 of the Act. 2. In terms of Order XIV Rule 2 of the Code of Civil Procedure, the Trial Court considered the question of maintainability of the suit as a preliminary issue since the facts in that regard were not in dispute. It held that the suit was barred by Section 43 of the Act and hence it was not maintainable. The suit was, thus, dismissed. The plaintiff filed an appeal. The lower appellate Court agreed with the conclusion of the Trial Court that the suit was not maintainable and dismissed the appeal. This Second Appeal challenges the decision of the lower appellate Court. 3. Normally, it being a question relating to the maintainability of the suit, this Court would have admitted the second Appeal since the question of maintainability of a suit might give rise to a substantial question of law. But in the case on hand, I find that there is no scope for any further enquiry by this Court in Second Appeal in view of the clear position emerging from the facts of the case and the provisions of the Bihar Land Reforms Act. 4. The plaintiff has claimed a right only in terms of Section 16(3) of the Bihar Land Reforms Act. 4. The plaintiff has claimed a right only in terms of Section 16(3) of the Bihar Land Reforms Act. That section confers a fight on a co-sharer or a raiyat of adjoining land to make an application before the Collector in the prescribed manner for the transfer of and to him on the terms and conditions contained in the sale deed executed by a person in favour of another, in violation of his right under Section 16(3) of the Act. The section while conferring the right which can be called a right of preemption on a co-sharer or a raiyat of an adjacent land, also creates the forum through which that right has to be worked out. That forum is the Collector in terms of Section 16(3) of the Act and the relief has to be obtained through that machinery provided by this Act, by making an appropriate application and on complying with the conditions laid down by the Section. When a statute confers a right on a person and also provides a machinery for the enforcement of that right, a person claiming to enforce that statutory right has to invoke that machinery alone for getting relief and he is not entitled to approach the Civil Court having general jurisdiction to claim that relief. This is not a case of mere conferment of a right by the statute. This is also a case of that statute proving the machinery for working out that right. This comes within the third class of cases envisaged by Willes, J. in Wolverhamption New Water Works Company v. Hawkesford, 1859 6 CB (NS) 336. At, the learned Judge stated thus : "There are three classes of cases in which a liability might be established, founded upon statute. On is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law, there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the parties suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy, there, the party can only proceed by action at common law. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy, there, the party can only proceed by action at common law. But there is a third class, viz, where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it the remedy provided by the Statute must be followed, and it is not competent of the party to pursue the course applicable to cases of the second class." 5. A striking illustration of the third class of cases came up for consideration before the House of Lords in Barraclough v. Brown, 1895-99 All ER Rep 230, Section 47 of the Aire and Colder Navigation Act, 1889 provided that if any vessel should be sunk in any part of the navigation of the river ouse and if the owner should not remove it shall be lawful for the undertakers to remove the vessel and the undertakers may, if they think fit recover such expenses from the owner of such vessel in a Court of summary jurisdiction. The undertakers having removed a sunken vessel, sued in the High Court for recovery of the expenses from the owners of the vessel. On an objection to jurisdiction, the House of Lords held that the right conferred by the statute to recover the expenses was not a common law right, but a right created by the statute which itself provided for the remedy in a Court of summary jurisdiction, and therefore, the normal remedy of a direct approach to the High Court was excluded. Lord Herschell said : "The respondents were under no liability to pay these expenses at common law. The liability, if it exists, is created by the enactment..............The only right conferred is to recover such expenses from the owner of such vessel in a Court of summary jurisdiction. I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those, prescribed by the statute which alone confers the right." Lord Watson stated. I do not think the appellant can claim to recover by virtue of the statute, and at the same time insist upon doing so by means other than those, prescribed by the statute which alone confers the right." Lord Watson stated. "The right and the remedy are given unoflatu and the one cannot be dissociated from the other." In Pyx Granite Company v. Ministry of Housing and Local Government 1959 3 All ER (HL), which distinguishing Barracloughstated that the principle therein applies "where the statute creates a new right which has no existence part from the statute creating it; and the statute creating the right at the same time prescribes a particular method of enforcing it.........If A has a right founded entirely on a particular statute to recover a sum of money from B and the stature goes on to provide that the sum in question may be recovered in proceeding of a particular kind, then it is wholly reasonable to impute to the legislature an intention that the sum in question recoverable solely by virtue of the statute, should be recoverable in proceedings of the kind provided by the statute and not otherwise." 6. It is in this context that Section 43 of the Act has to be appreciated. Section 43 ousts the jurisdiction of the Civil Court in respect of a question which requires to be settled, decided or dealt with under the Act by the Board of Revenue, the appellate authority or the Collector. Here the right under Section 16(3) of the Act requires to be settled by the Collector. Therefore, the right put forward by the plaintiff is one that requires to be settled under the provisions of the Act by the machinery provided for by the Act. It is, therefore, clear that such a question cannot be agitated before the Civil Court. There is no dispute that the right available to the plaintiff is not a common law right but is only a right conferred by under Section 16(3) of the Act. In that situation, the Courts below, in may view, were clearly right in holding that the suit was not maintainable. 7. It is not as if the plaintiff, a stranger, to the owner of the property that was transferred, had the right to challenge the sale on any of the grounds that may be available to the transferor himself or his legal representatives. 7. It is not as if the plaintiff, a stranger, to the owner of the property that was transferred, had the right to challenge the sale on any of the grounds that may be available to the transferor himself or his legal representatives. The sole right of the plaintiff to challenge that transaction is based on the claim under Section 16(3) of the Act. He has to first establish that right can be established only through the machinery created by the Act. He has no general right to attack the transaction entered into by defendants 1 and 2 in favour of others. Therefore, nothing turns on the plea that the transaction is vitiated by coercion and so on. 8. Since the position appears to be clear that the suit is not maintainable, I am satisfied that I would not be justified in admitting this Second Appeal. This Second Appeal is dismissed.