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2008 DIGILAW 1407 (ALL)

BADRI SINGH v. STATE OF UTTAR PRADESH

2008-07-23

PANKAJ MITHAL

body2008
JUDGMENT Hon’ble Pankaj Mithal, J.—The dispute in the present appeal is with regard to entitlement of plaintiff/appellants to receive compensation in respect of the land in dispute which is part of plot No. 59 situate in village Niardih, Pargana Kathihar, district Varanasi. 2. The aforesaid plot of land having an area of 91 decimals was owned by Bacha Singh, Surya Prasad and Ram Bali Singh all sons of Sukhdeva Singh. The plaintiff/appellants purchased the same from the aforesaid owners vide two registered sale deeds dated 19.11.1952 and 16.6.1953. They were also given possession of the said land and it is said that they were cultivating the same ever since then. However, their names were not mutated in the revenue records. In the meantime, part of the aforesaid land having an area of 33 decimal was acquired by the State of U.P. An award of Rs. 1033.20 was made in the name of the previous owners as they continued to be recorded in the revenue record. Therefore, the plaintiff/appellants applied for receiving compensation, which was not permitted. In the aforesaid background they instituted original suit No. 422 of 1971 for permanent prohibitory injunction restraining the defendants No. 1 and 2 i.e. the State of U.P. and Land Acquisition Officer from paying the aforesaid compensation to the contesting defendants No. 3 to 10 and for recovery of the said amount from the defendants. The suit was decreed by the Court of first instance vide judgment and order dated 22.12.75 and the plaintiff/appellants were held to be true owners of the land in dispute, entitle to receive compensation as the previous owners had ceased to have any right in the same. Aggrieved by the aforesaid judgment and order of the lower Court civil appeal No. 16 of 1976 was preferred by the private contesting defendants. The appeal was allowed vide judgment and order dated 10.5.77 on a technical ground that the suit itself was not maintainable as civil Court had no jurisdiction to try the suit. The decree passed by the lower Court was set aside and the suit of the plaintiff/appellants was dismissed. It is against the aforesaid judgment and order that the plaintiff/appellants preferred this second appeal. The decree passed by the lower Court was set aside and the suit of the plaintiff/appellants was dismissed. It is against the aforesaid judgment and order that the plaintiff/appellants preferred this second appeal. The appeal was admitted on the following question of law : “Whether the plaintiffs suit was not maintainable despite the fact that the plaintiff was not a party to the land acquisition proceedings and had received no notice thereof.” 3. I have heard Sri Sankatha Rai, learned Counsel for the plaintiff/appellants and Sri Sirish Chandra, learned Standing Counsel for respondents No. 1 and 2. No one is present for respondents No. 3 to 10 despite the list being revised. 4. The plaintiff/appellants are claiming compensation of the land in dispute on the basis of the sale deeds dated 19.11.1952 and 16.5.1953. The execution of these sale deeds in their favour is not disputed by the previous owners, who are contesting respondents No. 3 to 10 here in this appeal. Therefore, the plaintiff/appellants became the lawful owners. On the land being acquired it is lawful owners of the land who are entitle to receive compensation. This is also clear from the 3rd proviso to Section 31 of the Land Acquisition Act which provides that where there is any dispute as to the title to receive compensation the Collector shall deposit the compensation in Court and this shall not affect the liability of any person, who may have received the compensation awarded, to pay the same to the person lawfully entitled thereto. However, as the names of plaintiff/appellants were not mutated in the revenue records the compensation was prepared in the name of the recorded tenure holders, i.e. respondents No. 3 to 10. It is settled legal position that the entries in the revenue records are only for fiscal purposes to enable the recorded persons to pay land revenue. They are not the documents of title nor they create or extinguish title in the land [JT 1996 (7) SC 580, Smt. Swarni v. Smt. Inder Kaur; JT 1996 (10) SC 43, State of U.P. v. Amar Singh and JT 1997 (5) SC 703, Balwant Singh and another v. Daulat Singh]. Therefore, merely for the reason that the names of the plaintiff/appellants were not got recorded in the revenue records they cannot be denied the right to receive compensation provided they are held to be lawful owners of the same. Therefore, merely for the reason that the names of the plaintiff/appellants were not got recorded in the revenue records they cannot be denied the right to receive compensation provided they are held to be lawful owners of the same. Even in cases where the land has been transferred after the issuance of the notifications to acquire the land it has been held by the Apex Court that as the subsequent purchaser steps into the shoes of the previous owner he becomes entitle to compensation though he may not have any right to challenge the acquisition proceedings [JT 1995 (6) SC 274, Union of India v. Shri Shivkumar Bhargava and others; and JT 1996 (1) SC 354, U.P. Jal Nigam v. M/s. Kalra Properties (P) Ltd. and others]. 5. In this case the position of the plaintiff/appellants is still better as they have purchased the land prior to the acquisition which appears to have taken place some time in the year 1971, though no actual date is on record. Therefore, the right of the plaintiff/appellants to receive compensation cannot be denied if they are held to be lawful owners. 6. Now the point arises for consideration is as to who is the authority competent to determine the right of the persons entitle to receive compensation. 7. Section 9 of the Code of Civil Procedure provides that the Courts have jurisdiction to try all suits of civil nature, except those that are expressly or impliedly barred by any statute. For the sake of convenience Section 9 of the Code of Civil Procedure is reproduced here-in-below : “9. Courts to try all civil suits unless barred.—The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I.—A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II.—For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.” 9. Explanation II.—For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.” 9. In State of Bihar v. Dhirendra Kumar, AIR 1995 SC 1955 and Laxmi Chand and others v. Gram Panchayat, AIR 1996 SC 523 it has been laid down that by necessary implication the power of the civil Court to take cognizance of a case challenging the acquisition proceedings and for a decree of injunction stands excluded. Similarly, in S.P. Subramanya Shetty and others v. K.S.R.T.C. and others, JT 1997 (4) SC 594 : AIR 1997 SC 2076 it has been reinterpreted that cognizance under Section 9 of the Code of Civil Procedure cannot be taken as civil suit relating to acquisition proceedings is not maintainable and the Court has no power to issue directions to de-notify the land under Section 48 of the Land Acquisition Act. However, the aforesaid proposition holds good only where the land acquisition proceedings are sought to be challenged or a decree for permanent injunction restraining the State or the acquiring body either from taking possession or from interfering in the possession of the person concerned is sought or a mandatory injunction to de-notify the land from acquisition is prayed for. This is not the position in the present case. Here the plaintiff/appellants are not seeking any relief regarding acquisition proceedings. They are only claiming compensation as the lawful owners. Their entitlement to receive compensation therefore depends upon their being the rightful owner which right can only be determined by the Court on the basis of evidence. The remedy to this is provided in Section 30 of the Land Acquisition Act which is quoted below : “30. Dispute as to apportionment.—When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the person to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court.” 9. Dispute as to apportionment.—When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the person to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court.” 9. In this connection learned Standing Counsel cited (1996) 6 SCC 408 : JT 1996 (8) SC 432, Arulmighu Lakshminarasimhaswamy Temple Singirigudi v. Union of India and others which lays down that if the Collector finds that there is any dispute as to the person entitle to receive compensation, he has to deposit the amount into Court under Section 31 of the Act and has to make a reference to the Court under Section 30 of the Act to decide about the person competent to receive compensation. There is, however, no provision in the Land Acquisition Act which excludes the jurisdiction of the civil Court in such matters or which says the decision of the reference Court in this respect shall be final and binding. 10. In view of above the alternative remedy of reference provided under the Act is not sufficient to completely oust the jurisdiction of the civil Court. A reference under Section 30 has to be made by the Collector and the person concerned or the person claiming himself to be the lawful owner cannot directly approach the Collector for adjudication of his rights. In the event the Collector for some reason refuses to make a reference the person so concerned shall be rendered remediless which would be antithesis to proviso 3 to Section 31. Therefore, in my opinion, the legislature in its wisdom while providing a remedy under the Act for resolving the dispute as to the person entitled to receive compensation has also kept the option of the civil Court open by not providing an express bar to the jurisdiction of the civil Court and at the same time by not declaring the order passed under Section 30 to be final and conclusive. Therefore, availability of a remedy of reference under Section 30 of the Land Acquisition Act in itself is not sufficient to bar the jurisdiction of the civil Court as notwithstanding the above forum the Collector may not refer the dispute to the’ Court rendering the lawful owner remediless. 11. Therefore, availability of a remedy of reference under Section 30 of the Land Acquisition Act in itself is not sufficient to bar the jurisdiction of the civil Court as notwithstanding the above forum the Collector may not refer the dispute to the’ Court rendering the lawful owner remediless. 11. In State of West Bengal v. Indian Iron and Steel Company Ltd., AIR 1970 SC 1298 the Supreme Court while interpreting the provisions of Section 9, C.P.C. in connection the Bengal Cess Act provided that exclusion of the jurisdiction of the civil Court cannot be readily inferred unless the same is expressly or impliedly barred by the statute. It is only where the statute gives finality to the special tribunals the jurisdiction of the civil Court can be held to be excluded. 12. A similar view has been expressed in Premier Automobile Ltd. v. Kamlakar Shantaram Wade and others, AIR 1975 SC 2238 in connection with the jurisdiction of the civil Court vis-a-vis the provisions of the Industrial Disputes Act and it has been held that if the dispute is an industrial dispute arising out of right or liability under the general common law and not under the Industrial Disputes Act the jurisdiction of the civil Court is alternative, living it to the election of the person concerned to choose the remedy for the relief which he is contemplating. It means that where two forums are provided, it is open for the party concerned to choose either of them. 13. In Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508 also a similar view has been expressed and it has been stated by the Supreme Court that even where jurisdiction is conferred upon special tribunal the jurisdiction of the civil Court is not excluded. 14. Similar view has again been taken by the Supreme Court in Mardia Chemicals Ltd. v. Union of India and others, AIR 2004 SC 2371 by laying down that where several remedies are available, one of them being civil suit, the person concerned can also approach the civil Court to a limited extent. 15. 14. Similar view has again been taken by the Supreme Court in Mardia Chemicals Ltd. v. Union of India and others, AIR 2004 SC 2371 by laying down that where several remedies are available, one of them being civil suit, the person concerned can also approach the civil Court to a limited extent. 15. Thus, the legal position which comes out from the aforesaid decisions is that where a special forum has been provided normally the parties aggrieved should avail the said forum but if the dispute arising out is of a general common law the jurisdiction of the civil Court would not stand ousted until and unless it has been expressly barred by the statute concerned or is impliedly barred by attaching finality to the order passed by such a special forum. Here, in the instant case, as stated earlier, the jurisdiction of the civil Court has not been expressly excluded by any provision of the Land Acquisition Act nor any finality has been attached to the order of the Collector. Apart from the above, the claim for compensation or the entitlement to receive compensation is basically a claim under the general law which itself has been recognized under the Act by virtue of 3rd proviso to Section 31(2) of the Act as recoverable by the lawful person from the person to whom it may have been paid under the Act. 16. In Shri Deo Sansthan Chinchwad and others v. Chintaman Dharnidhar Deo and another, AIR 1962 Bom 214 while considering the 3rd proviso to Section 31(2) of the Land Acquisition Act it was held that a person who is lawfully entitle to compensation or a share in compensation would be entitle to file a suit to recover his share from the person who may have received the whole or any part of the compensation awarded under the Act. 17. Even the Apex Court in Shayam Rao v. Land Acquisition Officer (Spl.)-cum-Dy. Collector Singoor, AIR 1991 AP 219 , observed that the person concerned who has not received notice under Section 9 of the Land Acquisition Act i.e. who had no knowledge of the acquisition can maintain a suit for recovery of the compensation due to him against the State as well as against the persons who have received the same from the Collector in view of 3rd proviso to Section 31 (2) of the Act. 18. 18. In the aforesaid facts and circumstances as the jurisdiction of the civil Court under Section 9 of the Code of Civil Procedure in respect of the recovery of the amount of compensation paid or payable under the Act has not been expressly or impliedly excluded irrespective of the fact that there is a remedy under Section 30 of the Act also, the suit for recovery of the amount before the civil Court is held to be maintainable. 19. Thus, substantial question of law as formulated above is answered in affirmative, in favour of the plaintiff/appellants and the civil suit for recovery of the compensation by the lawful owners of the land is maintainable as against the State as well as private contesting respondents in whose name the award has been made. 20. Accordingly, the appeal is allowed. The judgment, order and decree of the lower appellate Court dated 10.5.77 passed by 1st Additional Civil Judge, Varanasi in Civil Appeal No. 16 of 1976, Ram Narain Singh and others v. U.P. State and others, in so far as it holds that the suit of the plaintiff-appellants was not maintainable is set aside. Since the plaintiff/appellants have been held to be lawful owners of the land in dispute by both the Courts below and there is no independent appeal or cross-objection by the respondents, the suit stands decreed and the judgment, order and decree of the trial Court dated 22.12.75 is affirmed. 21. No order as to costs. ————